SK.Shireen

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE,

AT SOMPETA

PRESENT: Kum. ROKKAM VARALAKSHMI,

ADDITIONAL JUNIOR CIVIL JUDGE, SOMPETA.

(FAC) PRL. JUNIOR CIVIL JUDGE, SOMPETA.

Monday this the 27th day of November, 2017.

O.S.No.57/1989

Between :

Smt. Agunna Damayanthi, W/o Aggunna Dalibandu, aged 45 years, Residing at Bellupatia village, Mandasa Mandal, Srikakulam Dist.

...Plaintiff

And

1. Vandaru Sreeramulu, S/o Appanna, aged 40 years, Resident of Pothrakonda village, Sompeta Mandalam, Srikakulam District.

2. Vandaru Domburu, S/o Appanna, aged about 55 years, -do-.

3. Vandaru Appanna, S/o not known, aged 80 years, -do-.

4. Vandaru Himamsu, S/o Appanna, aged 48 years, B.E. Deputy Divisional Engineer, (Electrical) Officers colony, Seetammadara, Visakhapatnam.

5. Vandaru Santayya, S/o Appanna, aged 45 years, Deputy Registrar, Andhra University, Waltair.

6. Komma Janakamma, W/o Bheema Rao, aged 42 years, Resding at Kodanda Rama Street, Tekkali village, Tekkali Mandal.

...Defendants

This suit is coming before me for hearing in the presence of Sri. M. Dharama Rao, learned counsel for the plaintiff and Sri. D.Nanda Gopala Rao, learned counsel for the defendant and having heard and stood over consideration the court delivers the following:

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

This suit is being filed by the plaintiff for permanent injunction simpliciter restraining the defendants not to interfere with the peaceful possession and enjoyment of the plaintiff from the plaint schedule property.

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Brief averments of the plaint are as follows:

1.The plaint schedule property was purchased by the plaintiff and Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna under a registered a sale deed date 23-01-1971 for an extent of 34.65 cents from this property the shares of the Gokarla Appanna and the plaintiff were separated, the plaintiff is in possession of the said property. The plaint schedule property was allotted to the share of Gokarla

Appanna and plaintiff. The plaint schedule property is treated and recognized and the share of the plaintiff by other partners. The other purchasers were kept their property jointly with a view to separate at a point of the time. The plaintiff reclaimed the land and made it fit for cultivation, the cashew nut and mango trees and other fruit plants were grown up . The plaintiff is paying taxe regularly to the Government. The revenue records also maintained by the revenue officials in the name of the plaintiff. The R.O.R.

pass book was issued in the name of the plaintiff. The defendants have no right in the plaint schedule property, they also admitted that the plaintiff is the owner of the plaint schedule property. The defendants are making preparation to trespass into the plaint schedule property and to cause wrongful loss to the plaintiff. The plaintiff being a house wife is not capable to protect the property from the hands of the defendants filed this suit seeking permanent injunction against the defendants hence this suit.

2.The defendants filed written statement submitted that the defendants are Harizans and they are not powerful persons in their village the plaint schedule property belongs to

Binnala Padmanadham it was purchased by him under registered sale deed date 20-01- 1971 from the land mortgage Bank, Sompeta he was in possession till 1989, later he executed possessory agreement on dated 10-04-1989, and delivered possession of the land to the defendants, this defendants with an intention to purchase a suit land and other 3 lands from Binnala Padmanabham for Rs. 65,280/- paid advance of Rs.5,000/-. He executed possessory agreement and delivered the land. The defendants are in possession and enjoyment of the said land after execution. The plaintiff has neither title nor possession over the plaint schedule land, and moreover plaintiff’s husband with an intention to take revenge against the defendants falsely filed this suit. The 3rd defendant is in actual possession of the land, and the suit is liable to be dismissed with exemplary costs.

3.Basing on the above pleadings the following issues were framed by my Ld. Predecessor

1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. To what relief ?

4. Heard the both sides and perused the record.

5.In support of the claim the plaintiff her husband got examined himself as Pw-1, (Agguna Dalibhandu) and also examined Pw-2 Puriya Rasmaswamy PW-3 Jalasutrapu

Bholoku, PW.4- Seela Narayana and PW.5- Agguna Appanna, marked Exhibits A.1 to

A.15, Ex.A.1 to Ex.A.4 are the tax receipts Ex.A.5 to A.7 are certified copies of the tax receipts, Ex.A.8 is the certified copy of the No.2 Adangal showing enjoyment of the plaintiff’s in respect of faslices 1399 to 1401, Ex.A.9 is the certified copy of the R.O.R.

pass book containing 3 pages, Ex.A.10 is the certified copy of the statement scheduled

before land ceiling tribunal, Tekkali, by Binnala Padmanabham, Ex.A11 is the certified

copy of the declaration filed by B. Padmanabham before land ceiling,Tekkali Ex.A.12- is the relinquishment deed executed by Gokarla Appanna infavour of the plaintiffs on 10.08.1975. Ex.A.13 is the certified copy of the Decree and Judgment in O.S. 24/1989 on the file of the subordinate Judge’s Court, (Now Senior Civil Judge’s Court). Ex.A.14 is the certified copy of the decree and Judgment in O.S.59/1993 on the file of the 4

Subordinate Judge’s Court, ( Senior Civil Judge’s Court). And Ex.A.15 is the R.O.R pass book issued in the name of the plaintiff by the Tahsildar, Mandasa marked. The defendant to support his case got examined himself as Dw-1- Vandara Santhayya and

DW-2- Binnala Eswarao and got marked Ex.B1 to B.15, Ex.B.1: is the certified copy of the extract of the sale dated 20-01-1971, Ex.B.2: is the certified copy of the sale deed from Binnala Padmanabham, Ex.B.3: is Extract of the original sale deed filed in O.S.

07/93, Ex.B.4: is Extract of the original sale deeds filed in O.S. 07/93, Ex.B.5: is Extract of the original sale deed filed in O.S. 07/93, Ex.B.6: is the said order (the learned counsel for plaintiff objected for marking that documents through the witnesses),

Ex.B.7: is suit register extract of O.S.19/1977, Ex.B.8: is the certified copy of the pattadar pass book, Ex.B.9: is the cash receipt issued in the name of vendor for faslis 1395 to 1398, Ex.B.10 is tax receipt. Ex.B.10 to Ex.B.15 tax receipts issued in the name of family members.

6. ISSUE No.1:

This is a suit filed by the plaintiff for permanent injunction to restrain the defendants not to interfere with the enjoyment of the suit schedule property. As per the contention of the plaintiff the suit schedule property was purchased by Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna in the year 1971 under a registered sale deed with an extent of 34 acres. The plaintiff and Gokarla Appanna were separated from the remaining. And Gokarla Appanna relinquished his share by executing relinquish deed. From that day onwards the plaintiff is in possession and enjoyment of the suit schedule property by planting the cashew, coconut and mango trees in the plaint schedule property.

7.To prove the said contentionPW.1 (Agguna Dalibhandu) examined in chief on behalf of his wife she is none other than the plaintiff in this suit. The extent of plaint 5 schedule is 13.05 cents it is a garden consisting with cashew, coconut and mango trees it was made up by him in the year 1975, about 34 acres land was purchased by the plaintiff, Binnala Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna and

Mallipeddi Vajram from co-operative land mortgage Bank, Sompeta under a registered sale deed dated 23-01-1971 which includes the plaint schedule property. In the year 1975 the share of his wife and Gokarla Appanna who is his brother-in-law was separated from the 34.00 cents and possession was delivered to them. Since then have been absolutely enjoying the suit schedule property. The remaining 3 shares were continuing in joint enjoyment, paying taxes to the Government to the plaint schedule property from the year 1975. Ex.A.1 to A.15 were marked. Binnala Padmanabham and the defendants have no right to interfere with the suit schedule property.

8.In his cross examination PW.1 stated that he do not remember whether the property was purchased jointly or not and also stated he did not file the sale deed, dated 23-01-1971 along with the suit. He admitted that he did not see the sale deed, and further admitted the sale deed was executed in the name of Binnala Padmanabham, but he denied the suggestion that the said Padmanabham had paid entire sale consideration and got registered in his name. He admitted that he do not have any paper to show that the plaint schedule property had jointly purchased. He stated that he filed the documents to show that his property and Gokarla Appanna property was separated from the other property, but he did not file any document to show that the property was given by

Binnala Padmanabham. He denied the suggestion that he never in possession and enjoyment of the suit schedule property and managed the revenue people to create the said documents, as he worked as Samithi president for 5 years. He denied the suggestion given that Binnala Padmanabham was in possession since 1971 and that in the years 1981 a possessory agreement was executed in favour of the D.3 and delivered 6 the possession. He further stated he do not know whether Binnala Padmanabham executed sale deed in favour of his wife and his children. Witness admitted in Ex.B.1 the names of Agguna Damayanthi, Bendalam Ramurthy Naidu, Mallipeddi Vagram and

Gokarla Appanna were not there, and further admitted they are not the parties to the land ceiling proceedings. He had not mentioned the date of Ex. A.12 in the written statement filed by plaintiff, (D.2) in OS 24 of 1989 on the filed of Sub-Court, Sompeta. He was present at the time of execution of Ex.A.12, the stamp was purchased in the year 1973 but Ex.A.12 executed in the year 1975.

9.PW.2- Puriya Ramaswamy in his chief examination he deposed that he know the plaintiff and plaint schedule property consisting of cashew and mango trees with an extent of 13 acers. Binnala Padmanabham, Bendalam Ramamurthy Naidu,

Gokarla Appanna, Mallipeddi Vajram and plaintiff jointly purchased the suit land and some other lands in the name of Binnala Padmanabham in the auction conducted by the land mortgage Bank, Sompeta about 13 acers of land towards shares of the plaintiff and

Gokarlla Appanna with a surveyor and given to the plaintiff. Plaintiff removed the bushes and shurbs and made it fit for cultivation by planting cashew and mango trees in the year 1975. Since from that that date the plaintiff is in possession and enjoyment of the suit schedule property 13 acres, but he can not say the survey number and patta number. He did not file any document to show that he is having lands near the suit schedule property. Further stated he do not know whether the 5 persons who jointly purchased the from the Bank doing joint business or not. He had not participated the auction was conducted by Bank, But auction was confirmed in the name of Binnala

Padmanabham for an extent of 13 acres after that he was inducted into possession of the land. He denied the suggestion, no surveyor was come and survey the land, he do not know whether Binnala Padmanabham sold away acres 20 on the southern site of the 7 schedule to the wife of D.4. He denied the suggestion that Binnala Padmanabham was executed a possessory agreement in favour of D.3, before the said sale in favour of wife of D.4 and wife and children of D.5.He denied the suggestion that the plaintiff never in possession and enjoyment of suit schedule property and family of the D.5 is in possession and enjoyment of the suit schedule property.

10.PW.3 Jalasutrapu Bhuloku he is the adjacent land owner of the suit schedule property he stated that he know the plaintiff and PW.1 the plaint schedule property is about 12 or 13 acres consisting of cashew and mango trees the plaintiff and PW.1 has been cultivating since 25 or 30 years. The property was purchased by 5 or 6 persons. In his cross examination he stated that I do not know the patta number and survey number but the lands situated in Srirampuram village. He do not know whether the plaintiff purchased the scheduled property or not but he know the enjoyment of the plaintiff. I was worked in the said land as coolie for removal of bushes. He denied the suggestion that D.4 and his family numbers are cultivating the southern land and also he denied that D.3 possess a possessory agreement for entire property of suit schedule.

11.PW.4 Seela Narayana in his chief examination he stated he know the plaintiff, PW.1 and Gokarla Appanna. He know the plaint schedule property with an extent of 13 acres is cultivating by PW.1 and plaintiff since 25 years at Srirampuram

Village. He own one acre of land in the northern side of suit schedule property, on the western side there a road, Eastern side water channel. He do not know who is the owner of south side. Plaintiff has been paying tax to the Government. since 10 years. In his cross examination he stated he do not know to whom the property belongs to but now it belongs to plaintiff. He do not know how the plaintiff acquired the suit schedule property, he do not know the owner of the land situated in southern boundary, he do not know who is D.3, he do not know whether Padmanabham handed over the schedule D.3.

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He denied the suggestion that the plaintiff never in possession and enjoyment of the suit schedule property.

12.PW.5. Aggunna Appanna he stated he know plaintiff and Gokarla Appanna.

He know the plaint schedule property and the possession and enjoyment of the plaintiff.

The plaint schedule land raised with cashew mango trees at about 25 years by the plaintiff. Gokarla Appana executed a document Ex.A.12 in favour of the plaintiff, relinquishing his rights in respect of plaint schedule property, he is the one of attester to that deed. In his cross examination he stated Ex.A.12 is a unregistered document. He was called by Gokarla Appanna to act as attester. Gokarla Appanna is having 5 acres. He admitted that Gokarla Appanna along with some others purchased the plaint schedule property in LM Bank auction. The sale deed was executed in the name of Binnala

Padmanabham, Gokarla Appanna was not obtained separate document. Boundaries East:

Water channel, South: vacant site of B. Padmanabham and others. He admitted that he that Ex.A.12 was executed the house of the plaintiff. Gokarla Appna has got one son and he has 5 acres he do not know whether Gokarla Appanna drafted Ex.A.12. and do not know the particulars of acquisition of land in Ex.A.12 by Appanna.

13.The evidence of defendants Vandara Santhayya examined in chief as DW.1 he is the 5th defendant D.3 is his father after his death D.4 to D.6 came on record as

Legal Representative of D.3. D.1 and D.2 are brothers. The witness is working as special registrar of Andhra University. He stated the suit schedule property is situated in

Srirampuram village he know the Binnala Padmanabham. The said Padmanabham was purchased an extent of 34.60 cents which included plaint schedule property in the year 1971. After that the Binnala Padmanabham executed possessory agreement date 10-04- 1989 in the favour of the D.3 (my father) since then his father is cultivating the said land and Padmanabham is possession and enjoyment of the suit schedule property till 9 1989. D.3 cultivated the entire lands 3 years. Wife of D.4 purchased 20 acres from

Binnala Padmanabham. The extent of Ex.B.3 to B.5 is about 1260 cent which is plaint schedule property from 1989 such lands are in possession of D.3 (my father). The suit schedule contains cashew, mango, eucalyptus trees. The plaintiff has no right in the plaint schedule property. In cross examination the witness stated that Binnala

Padmanabham executed a possessory agreement to sell in favour of his father alone.

Himself, his wife and children were not parties to that agreement. He do not know on which date it was executed but it may be around 1989. He denied the suggestion that he do not have any interest title or possession over the suit schedule property, and also denied the possession of the plaintiff.

14.DW.2. Binnala Eswara Rao examined as DW.2. He is the son of the Binnala

Padmanabham he stated his father purchased 34.65 cents land from Land Mortgage

Bank,Sompeta under a registered sale deed dt. 23-01-1971 for Rs. 8,400/-. His father has been in possession and paying tax to the Government. He reclaimed the land and made it fit for cultivation planted cashew, and mango. Revenue issued pattadar pass book in the name of my father. Land ceiling proceedings were took place with respective to the suit property and other properties, the tribunal declared that the land is belongs to his father, it’s total extent is 32.60 cents includes suit schedule property. The plaintiff have no right in the suit schedule property. In the question posed by his counsel as who created Ex.A.1 to A.12, for that he answered the husband of plaintiff (Agguna Dalibandu) with active assistance of the revenue people created those documents. He did not receive any notice before issuing of Ex.A.1 to A.12 by the revenue. The entire land covered under Ex.B.1 is sold to one Vandara Hemalatha

Himansu under Ex.B.2 to B.5. Neither Plaintiff nor anybody raised objection at the time of sale under Ex.B.2 to B.5. We alienated 20 cents of land to Vandara Hemalatha 10

Himansu the remaining 12.60 sold by us to Vandara Saradha Devi. D.4 and D.5 are in possession of the suit schedule property. In his cross examination he stated that he do not know the extent of the suit schedule and boundaries but it consist of mango and cashew nut trees. He do not know whether the suit land sold to Vandara Saradha Devi and others, but have the copy executed infavour of One Saradha Devi and others, but the recitals of the agreement total extent of 32.65 cents, at the rate of Rs.7000/- per acre, the land was described as dry land and delivered the possession there under the agreement is in two pages, he is not the signatory to that agreement. He do not know who are the attestors and the scribes. Witness admitted that it is a fact the land ceiling declaration it is mentioned that in the entire land of 34 acres his father has got 1/5 share and remaining 4/5 belongs to Agguna Damayanthi, Gokarla Appanna, Mallepeddi

Vajram and Bendalam Ramamurthy Naidu he denied the suggestion that the plaintiff in the suit schedule property as she has been paying the tax to the revenue office and issued pattadar pass book.

15.PW.1 is the husband of plaintiff herein, he was examined on behalf of his wife, he stated plaint schedule property had been purchased by plaintiff, Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna under a registered sale deed dated 23-01-1971 for an extent of 34.65 cents in auction held by Mortgage Bank, Sompeta. After that plaintiff and Gokarla Appanna separated from remaining three others Gokarla Appanna relinquished his right over his share and executed Ex.A.12 unregistered relinquishment deed from that day onwards plaintiff is in possession and enjoyment of plaint schedule property reclaiming the said land and planted cashew nut plants, coconut plants, mango plaints. To prove the contention of plaintiff got examined PW.2 to Pw.5 and got marked Ex.A.1 to 11

A.15. PW.2 during his chief examination he stated 5 persons namely plaintiff,

Binnala Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna purchased the plaint schedule property in the name of Binnala Padmanabham since purchasing of the said land plaintiff in the possession and enjoyment of the plaint schedule property. During cross examination he stated he do not know whether 5 persons jointly purchased the said property, but the auction was confirmed in the name of Binnala Padmanabhan, he inducted into 30 acres of land, further he stated there was no written partition between plaintiff and Binnala

Padmanabham. As per his evidence it shows he do not know how the plaintiff acquired the plaint schedule property.

16.PW.3 stated that the plaintiff is in possession and enjoyment of the property, but he do not know how she acquired the same, he stated he worked as labour at the time of reclaiming the plaint schedule property. He is the adjacent owner of plaint schedule property, as per his evidence nowhere mentioned the survey number and extent of his land instead of he simply stated he is the adjacent owner of the plaint schedule property, in the absence of the said details it can not be considered as he is the adjacent owner of plaint schedule property. But he is the

Eastern side owner of plaint schedule property as per his evidence.

17.PW.3 is Eastern side of owner of plaint schedule property he own one acre of land, but he also not gave any particulars of his land. He denied the suggestion that plaintiff is not in possession and enjoyment of the plaint schedule property.

18.PW.5. Aggunna Appanna he stated he know plaintiff and Gokarla Appanna. He know the plaint schedule property and the possession and enjoyment of the plaintiff. The 12 plaint schedule land raised with cashew mango trees at about 25 years by the plaintiff.

Gokarla Appana executed a document Ex.A.12 in favour of the plaintiff, relinquishing his rights in respect of plaint schedule property, he is the one of attester to that deed. In his cross examination he stated Ex.A.12 is a unregistered document. He was called by

Gokarla Appanna to act as attester. Gokarla Appanna is having 5 acres. He admitted that

Gokarla Appanna along with some others purchased the plaint schedule property in LM

Bank auction. The sale deed was executed in the name of Binnala Padmanabham,

Gokarla Appanna was not obtained separate document. Boundaries East: Water channel,

South: vacant site of B. Padmanabham and others. He admitted that he that Ex.A.12 was executed the house of the plaintiff. Gokarla Appna has got one son and he has 5 acres he do not know whether Gokarla Appanna drafted Ex.A.12. and do not know the particulars of acquisition of land in Ex.A.12 by Appanna.

19.DW.1 he is the 5th defendant D.3 is his father after his death D.4 to D.6 came on record as Legal Representative of D.3. D.1 and D.2 are brothers. The witness is working as special registrar of Andhra University. He stated the suit schedule property is situated in Srirampuram village he know the Binnala Padmanabham. The said Padmanabham was purchased an extent of 34.60 cents which included plaint schedule property in the year 1971. After that the Binnala Padmanabham executed possessory agreement date 10- 04-1989 in the favour of the D.3 (my father) since then his father is cultivating the said land and Padmanabham is possession and enjoyment of the suit schedule property till 1989. D.3 cultivated the entire lands 3 years. Wife of D.4 purchased 20 acres from

Binnala Padmanabham. The extent of Ex.B.3 to B.5 is about 1260 cent which is plaint schedule property from 1989 such lands are in possession of D.3 (my father). The suit schedule contains cashew, mango, eucalyptus trees. The plaintiff has no right in the plaint schedule property. In cross examination the witness stated that Binnala 13

Padmanabham executed a possessory agreement to sell in favour of his father alone.

Himself, his wife and children were not parties to that agreement. He do not know on which date it was executed but it may be around 1989. He denied the suggestion that he do not have any interest title or possession over the suit schedule property, and also denied the possession of the plaintiff.

20.DW.2. Binnala Eswara Rao examined as DW.2. He is the son of the Binnala

Padmanabham he stated his father purchased 34.65 cents land from Land Mortgage

Bank,Sompeta under a registered sale deed dt. 23-01-1971 for Rs. 8,400/-. His father has been in possession and paying tax to the Government. He reclaimed the land and made it fit for cultivation planted cashew, and mango. Revenue issued pattadar pass book in the name of my father. Land ceiling proceedings were took place with respective to the suit property and other properties, the tribunal declared that the land is belongs to his father, it’s total extent is 32.60 cents includes suit schedule property. The plaintiff have no right in the suit schedule property. In the question posed by his counsel as who created Ex.A.1 to A.12, for that he answered the husband of plaintiff (Agguna

Dalibandu) with active assistance of the revenue people created those documents. He did not receive any notice before issuing of Ex.A.1 to A.12 by the revenue. The entire land covered under Ex.B.1 is sold to one Vandara Hemalatha Himansu under Ex.B.2 to B.5.

Neither Plaintiff nor anybody raised objection at the time of sale under Ex.B.2 to B.5.

We alienated 20 cents of land to Vandara Hemalatha Himansu the remaining 12.60 sold by us to Vandara Saradha Devi. D.4 and D.5 are in possession of the suit schedule property. In his cross examination he stated that he do not know the extent of the suit schedule and boundaries but it consist of mango and cashew nut trees. He do not know whether the suit land sold to Vandara Saradha Devi and others, but have the copy executed infavour of One Saradha Devi and others, but the recitals of the agreement 14 total extent of 32.65 cents, at the rate of Rs.7000/- per acre, the land was described as dry land and delivered the possession there under the agreement is in two pages, he is not the signatory to that agreement. He do not know who are the attestors and the scribes. Witness admitted that it is a fact the land ceiling declaration it is mentioned that in the entire land of 34 acres his father has got 1/5 share and remaining 4/5 belongs to

Agguna Damayanthi, Gokarla Appanna, Mallepeddi Vajram and Bendalam Ramamurthy

Naidu he denied the suggestion that the plaintiff in the suit schedule property as she has been paying the tax to the revenue office and issued pattadar pass book.

21.To prove the possession of plaintiff filed Ex.A.1 to A15. Ex.A.1 to A.7 are tax receipts contained the survey number 164, but the survey number of plaint schedule property is ½, Ex.A.8 is the Adangal copy it was carefully perused and found the names of the all the purchasers were mentioned it means all are in joint possession. Ex.a.9 is certified copy of ROR issued in favour of Aggunna

Damayanthi for Survey Number 1.2 along with Gokarla Appanna, carefully perused the document found no Khata number and no year of issuance of ROR.

But PW.1 was stated ROR was issued in the name of his wife/plaintiff and they are regularly paying tax to Government. PW.1 failed to state that to what survey number they are paying tax. The plaint schedule survey number is different from survey number mentioned in Ex.A.1 to A.7, Ex.A.1 to A.9 not correlated each other Ex.A.10 is the statement given by the Binnala Padmanabham before Land

Ceiling Tribunal he stated he along with 4 members purchased from the land

Mortgage Bank in extent of 30 acres i.e. Ex.A.10 and A.11. A.13 and 14 are the subsequent copies of this suit.

22.A.13 is certified copy of Decree and Judgment in O.S.24/1989 on the file of 15 the Subordinate Judge’s Court. This suit filed for partition by Bendalam Ramurthy

Naidu, Malipeddi Vajram against Binnala Padnabhamm, Agguna Damayanthi and to there the same was allowed by allotting their respective shares, the date of the decree and judgment of this suit is 3rd September, 1996, originally the main suit

O.S. 57/89 filed on 20th April, 1989 so Ex.A.13 is subsequent document to this

suit.

23.Ex.A.14 is certified copy of Decree and Judgment in O.S.59/1993 on the file of the Subordinate Judge’s Court. This suit filed for declaration of title and recover of possession filed by Vandara Saradhavi and others against Agguna Dalibandu and others the same was dismissed, the date of the decree and judgment of this suit is 17th June, 2004, originally the main suit O.S. 57/89 filed on 20th April, 1989 so

Ex.A.14 is subsequent document to this suit. Hence from the above observations

Ex.A.13 and 14 are not relevant documents to this suit.

24.Ex.A.15 is ROR Pass Book issued infavour of plaintiff in the year 2016 so this document is also subsequent document to this suit. Ex.A.10 and A.11 also filed subsequent filing of this suit the plaintiff filed only the documents Ex.A.1 to

A.9 at the time of filing of this suit and also the PW.1 is silent about the document to show that plait schedule property was purchased by them jointly in an auction.

But DW.1 filed the said document the same is marked as Ex.B.1. PW.1 admitted that he never seen the Ex.B.1 and no where mentioned Ex.B.1 is in whose possession. PW.1 simply stated that plaint schedule was purchased in auction without giving any details of auction i.e., date of auction and whose property was purchased by them in said auction.

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25.Ex.a.12 is unregistered relinquishment deed which was alleged to deed executed by Gokarla Appanna in the favour of plaintiff is not a valied document in the eye of Law as per the Section 17 of Regisration Act. Moreover it was executed in the year 1973 but completed in the year 1975. One of the attester of this document was examined as PW.5. He stated that Ex.A.12 was executed at the house of plaintiff at the the time of execution he questioned the executant i.e.,

Gokarla Appanna as why he is relinquishing his right over his share and giving to plaintiff, the answer was given by the executant is that plaintiff is his brother’s daughter, but PW.5 stated Gokarala Appanna have one son. It means instead of giving his share to his son he gave it to the plaintiff, the reasons for relinquishment is not mentioned.

26.The oral evidence of witnesses to be supported with the documentary evidence PW.3 and PW.4 are the Eastern side and Northern side owners of plaint schedule property both submitted that plaintiff is in possession and enjoyment of the plaint schedule property. But their evidence not supported with documentary evidence. Plaintiff not at all chose to examine any one of the purchasers to prove that the plaint schedule property was purchased by them jointly in an auction.

27.On the other hand the defendant strongly contending that Binnala

Padmanabham had purchased an extent of 34.60 cents which included plaint schedule property in the year 1971, to show that to filed Ex.B.1 certified copy of the extract of sale deed dated 20-01-1971. Ex.B.2 to B.5 are the certified copies of sale deeds executed by Binnala Padmanabham. Ex.B.7 is the suit register extract of O.S.19/77, Ex.B.8 is certified copy of pattadar Pass book issued in the name of 17

Binnala Padmanabham. Ex.B.10 to B.15 are tax receipts issued in the name of family members of DW.1. Ex.B.9 is cash receipt issued in the name of vendor for faslis 1395 to 1398.

28.Now it is not the issue to decide whether the defendants purchased the property or not, but the main issue in this suit is whether the plaintiff is in possession of the plaint schedule property at the time of filing of this suit is not.

Plaintiff to prove her possession filed Ex.A.1 to A.9 and other documents Ex.A.10 to A.15 all the documents are filed subsequent filing of this suit, but A.1 to A.9 not correlated to each other to prove the possession of the plaintiff and moreover how the plaintiff acquired the plaint schedule is silent no document was filed and further relinquishment deed is not a valid document in the eye of Law. Basing on the observations made supra the plaintiff failed to prove her possession over the plaint schedule property hence this suit is dismissed without costs.

29. Issue No.2:

In the result, this suit is dismissed without costs.

Typed to my dictation, corrected and pronounced by me in the Open court on this the 27th day of November, 2017.

Addl. Junior Civil Judge, Sompeta. (FAC) Prl. Junior Civil Judge, Sompeta.

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APPENDIX OF EVIDENCE

Witness Examined

On behalf of the Plaintiff:

Pw.1: Agguna Dalibhandu

Pw.2: Piriya Ramaswami

PW.3: Jalasutrapu Bholoku

PW.4:Seela Narayana

PW.5: Agguna Appanna

On behalf of the Defendant :

DW.1: Vandara Santhayya

DW.2: Binnala Eswararao

On behalf of the Plaintiff :

Ex.A.1: is the Tax receipt

Ex.A.2: is the Tax receipt

Ex.A.3: is the Tax receipt

Ex.A.4: is the Tax receipt

Ex.A.5: is the certified copies of the tax receipt

Ex.A.6: is the certified copies of the tax receipt

Ex.A.7: is the certified copies of the tax receipt

Ex.A.8: is the certified copy of the No.2 adangal showing enjoyment of the plaintiff’s in respect of faslices 1399 to 1401

Ex.A.9: is the certified copy of the R.O.R. Pass book containing 3 pages.

Ex.A.10: is the certified copy of the statement schedule before land celing tribunal, Tekkali, by Binnal Padmanabham

Ex.A.11: is the is the certified copy of the declaration filed by B. Padmanabham

before land cellig, Tekkali

Ex.A.12: is the relinquishment deed executed by Gokarla Appanna

Ex.A.13: is the certified copy of the Decree and Judgment in O.S 24/1989 on the file of the subordinate Judge’s Court. (Now Senior Civil Judge’s Court)

Ex.A.14: is the certified copy of the decree and Judgment in O.S. 59/1993 on the file of the Subordinate Judge’s Court, (Senior Civil Judge’s Court)

Ex.A.15: is the R.O.R pass book issued in the name of the plaintiff by the 19

Tahsildar, Mandasa

On behalf of the Defendant :

Ex.B.1: is the certified copy of the extract of the sale dated 20-01-1971

Ex.B.2: is the certified copy of the sale deed from Binnala Padmanabham.

Ex.B.3: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.4: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.5: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.6: is the said order (the learned counsel for plaintiff objected for marking that documents through the witnesses)

Ex.B.7: is suit register extract of O.S.19/1977

Ex.B.8: is the certified copy of the pattadar pass book.

Ex.B.9: is the cash receipt issued in the name of vendor for faslis 1395 to 1398.

Ex.B.10 is tax receipt issued in the name of our family members.

Ex.B.11is tax receipt issued in the name of our family members.

Ex.B.12 is tax receipt issued in the name of our family members.

Ex.B.13 is tax receipt issued in the name of our family members.

Ex.B.14 is tax receipt issued in the name of our family members.

Ex.B.15 is tax receipt issued in the name of our family members.

Addl. Junior Civil Judge, Sompeta. (FAC) Prl. Junior Civil Judge, Sompeta.

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE,

AT SOMPETA

PRESENT: Kum. ROKKAM VARALAKSHMI,

ADDITIONAL JUNIOR CIVIL JUDGE, SOMPETA.

(FAC) PRL. JUNIOR CIVIL JUDGE, SOMPETA.

Monday this the 27th day of November, 2017.

O.S.No.57/1989

Between :

Smt. Agunna Damayanthi, W/o Aggunna Dalibandu, aged 45 years, Residing at Bellupatia village, Mandasa Mandal, Srikakulam Dist.

...Plaintiff

And

1. Vandaru Sreeramulu, S/o Appanna, aged 40 years, Resident of Pothrakonda village, Sompeta Mandalam, Srikakulam District.

2. Vandaru Domburu, S/o Appanna, aged about 55 years, -do-.

3. Vandaru Appanna, S/o not known, aged 80 years, -do-.

4. Vandaru Himamsu, S/o Appanna, aged 48 years, B.E. Deputy Divisional Engineer, (Electrical) Officers colony, Seetammadara, Visakhapatnam.

5. Vandaru Santayya, S/o Appanna, aged 45 years, Deputy Registrar, Andhra University, Waltair.

6. Komma Janakamma, W/o Bheema Rao, aged 42 years, Resding at Kodanda Rama Street, Tekkali village, Tekkali Mandal.

...Defendants

This suit is coming before me for hearing in the presence of Sri. M. Dharama Rao, learned counsel for the plaintiff and Sri. D.Nanda Gopala Rao, learned counsel for the defendant and having heard and stood over consideration the court delivers the following:

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

This suit is being filed by the plaintiff for permanent injunction simpliciter restraining the defendants not to interfere with the peaceful possession and enjoyment of the plaintiff from the plaint schedule property.

2

Brief averments of the plaint are as follows:

1.The plaint schedule property was purchased by the plaintiff and Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna under a registered a sale deed date 23-01-1971 for an extent of 34.65 cents from this property the shares of the Gokarla Appanna and the plaintiff were separated, the plaintiff is in possession of the said property. The plaint schedule property was allotted to the share of Gokarla

Appanna and plaintiff. The plaint schedule property is treated and recognized and the share of the plaintiff by other partners. The other purchasers were kept their property jointly with a view to separate at a point of the time. The plaintiff reclaimed the land and made it fit for cultivation, the cashew nut and mango trees and other fruit plants were grown up . The plaintiff is paying taxe regularly to the Government. The revenue records also maintained by the revenue officials in the name of the plaintiff. The R.O.R.

pass book was issued in the name of the plaintiff. The defendants have no right in the plaint schedule property, they also admitted that the plaintiff is the owner of the plaint schedule property. The defendants are making preparation to trespass into the plaint schedule property and to cause wrongful loss to the plaintiff. The plaintiff being a house wife is not capable to protect the property from the hands of the defendants filed this suit seeking permanent injunction against the defendants hence this suit.

2.The defendants filed written statement submitted that the defendants are Harizans and they are not powerful persons in their village the plaint schedule property belongs to

Binnala Padmanadham it was purchased by him under registered sale deed date 20-01- 1971 from the land mortgage Bank, Sompeta he was in possession till 1989, later he executed possessory agreement on dated 10-04-1989, and delivered possession of the land to the defendants, this defendants with an intention to purchase a suit land and other 3 lands from Binnala Padmanabham for Rs. 65,280/- paid advance of Rs.5,000/-. He executed possessory agreement and delivered the land. The defendants are in possession and enjoyment of the said land after execution. The plaintiff has neither title nor possession over the plaint schedule land, and moreover plaintiff’s husband with an intention to take revenge against the defendants falsely filed this suit. The 3rd defendant is in actual possession of the land, and the suit is liable to be dismissed with exemplary costs.

3.Basing on the above pleadings the following issues were framed by my Ld. Predecessor

1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. To what relief ?

4. Heard the both sides and perused the record.

5.In support of the claim the plaintiff her husband got examined himself as Pw-1, (Agguna Dalibhandu) and also examined Pw-2 Puriya Rasmaswamy PW-3 Jalasutrapu

Bholoku, PW.4- Seela Narayana and PW.5- Agguna Appanna, marked Exhibits A.1 to

A.15, Ex.A.1 to Ex.A.4 are the tax receipts Ex.A.5 to A.7 are certified copies of the tax receipts, Ex.A.8 is the certified copy of the No.2 Adangal showing enjoyment of the plaintiff’s in respect of faslices 1399 to 1401, Ex.A.9 is the certified copy of the R.O.R.

pass book containing 3 pages, Ex.A.10 is the certified copy of the statement scheduled

before land ceiling tribunal, Tekkali, by Binnala Padmanabham, Ex.A11 is the certified

copy of the declaration filed by B. Padmanabham before land ceiling,Tekkali Ex.A.12- is the relinquishment deed executed by Gokarla Appanna infavour of the plaintiffs on 10.08.1975. Ex.A.13 is the certified copy of the Decree and Judgment in O.S. 24/1989 on the file of the subordinate Judge’s Court, (Now Senior Civil Judge’s Court). Ex.A.14 is the certified copy of the decree and Judgment in O.S.59/1993 on the file of the 4

Subordinate Judge’s Court, ( Senior Civil Judge’s Court). And Ex.A.15 is the R.O.R pass book issued in the name of the plaintiff by the Tahsildar, Mandasa marked. The defendant to support his case got examined himself as Dw-1- Vandara Santhayya and

DW-2- Binnala Eswarao and got marked Ex.B1 to B.15, Ex.B.1: is the certified copy of the extract of the sale dated 20-01-1971, Ex.B.2: is the certified copy of the sale deed from Binnala Padmanabham, Ex.B.3: is Extract of the original sale deed filed in O.S.

07/93, Ex.B.4: is Extract of the original sale deeds filed in O.S. 07/93, Ex.B.5: is Extract of the original sale deed filed in O.S. 07/93, Ex.B.6: is the said order (the learned counsel for plaintiff objected for marking that documents through the witnesses),

Ex.B.7: is suit register extract of O.S.19/1977, Ex.B.8: is the certified copy of the pattadar pass book, Ex.B.9: is the cash receipt issued in the name of vendor for faslis 1395 to 1398, Ex.B.10 is tax receipt. Ex.B.10 to Ex.B.15 tax receipts issued in the name of family members.

6. ISSUE No.1:

This is a suit filed by the plaintiff for permanent injunction to restrain the defendants not to interfere with the enjoyment of the suit schedule property. As per the contention of the plaintiff the suit schedule property was purchased by Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna in the year 1971 under a registered sale deed with an extent of 34 acres. The plaintiff and Gokarla Appanna were separated from the remaining. And Gokarla Appanna relinquished his share by executing relinquish deed. From that day onwards the plaintiff is in possession and enjoyment of the suit schedule property by planting the cashew, coconut and mango trees in the plaint schedule property.

7.To prove the said contentionPW.1 (Agguna Dalibhandu) examined in chief on behalf of his wife she is none other than the plaintiff in this suit. The extent of plaint 5 schedule is 13.05 cents it is a garden consisting with cashew, coconut and mango trees it was made up by him in the year 1975, about 34 acres land was purchased by the plaintiff, Binnala Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna and

Mallipeddi Vajram from co-operative land mortgage Bank, Sompeta under a registered sale deed dated 23-01-1971 which includes the plaint schedule property. In the year 1975 the share of his wife and Gokarla Appanna who is his brother-in-law was separated from the 34.00 cents and possession was delivered to them. Since then have been absolutely enjoying the suit schedule property. The remaining 3 shares were continuing in joint enjoyment, paying taxes to the Government to the plaint schedule property from the year 1975. Ex.A.1 to A.15 were marked. Binnala Padmanabham and the defendants have no right to interfere with the suit schedule property.

8.In his cross examination PW.1 stated that he do not remember whether the property was purchased jointly or not and also stated he did not file the sale deed, dated 23-01-1971 along with the suit. He admitted that he did not see the sale deed, and further admitted the sale deed was executed in the name of Binnala Padmanabham, but he denied the suggestion that the said Padmanabham had paid entire sale consideration and got registered in his name. He admitted that he do not have any paper to show that the plaint schedule property had jointly purchased. He stated that he filed the documents to show that his property and Gokarla Appanna property was separated from the other property, but he did not file any document to show that the property was given by

Binnala Padmanabham. He denied the suggestion that he never in possession and enjoyment of the suit schedule property and managed the revenue people to create the said documents, as he worked as Samithi president for 5 years. He denied the suggestion given that Binnala Padmanabham was in possession since 1971 and that in the years 1981 a possessory agreement was executed in favour of the D.3 and delivered 6 the possession. He further stated he do not know whether Binnala Padmanabham executed sale deed in favour of his wife and his children. Witness admitted in Ex.B.1 the names of Agguna Damayanthi, Bendalam Ramurthy Naidu, Mallipeddi Vagram and

Gokarla Appanna were not there, and further admitted they are not the parties to the land ceiling proceedings. He had not mentioned the date of Ex. A.12 in the written statement filed by plaintiff, (D.2) in OS 24 of 1989 on the filed of Sub-Court, Sompeta. He was present at the time of execution of Ex.A.12, the stamp was purchased in the year 1973 but Ex.A.12 executed in the year 1975.

9.PW.2- Puriya Ramaswamy in his chief examination he deposed that he know the plaintiff and plaint schedule property consisting of cashew and mango trees with an extent of 13 acers. Binnala Padmanabham, Bendalam Ramamurthy Naidu,

Gokarla Appanna, Mallipeddi Vajram and plaintiff jointly purchased the suit land and some other lands in the name of Binnala Padmanabham in the auction conducted by the land mortgage Bank, Sompeta about 13 acers of land towards shares of the plaintiff and

Gokarlla Appanna with a surveyor and given to the plaintiff. Plaintiff removed the bushes and shurbs and made it fit for cultivation by planting cashew and mango trees in the year 1975. Since from that that date the plaintiff is in possession and enjoyment of the suit schedule property 13 acres, but he can not say the survey number and patta number. He did not file any document to show that he is having lands near the suit schedule property. Further stated he do not know whether the 5 persons who jointly purchased the from the Bank doing joint business or not. He had not participated the auction was conducted by Bank, But auction was confirmed in the name of Binnala

Padmanabham for an extent of 13 acres after that he was inducted into possession of the land. He denied the suggestion, no surveyor was come and survey the land, he do not know whether Binnala Padmanabham sold away acres 20 on the southern site of the 7 schedule to the wife of D.4. He denied the suggestion that Binnala Padmanabham was executed a possessory agreement in favour of D.3, before the said sale in favour of wife of D.4 and wife and children of D.5.He denied the suggestion that the plaintiff never in possession and enjoyment of suit schedule property and family of the D.5 is in possession and enjoyment of the suit schedule property.

10.PW.3 Jalasutrapu Bhuloku he is the adjacent land owner of the suit schedule property he stated that he know the plaintiff and PW.1 the plaint schedule property is about 12 or 13 acres consisting of cashew and mango trees the plaintiff and PW.1 has been cultivating since 25 or 30 years. The property was purchased by 5 or 6 persons. In his cross examination he stated that I do not know the patta number and survey number but the lands situated in Srirampuram village. He do not know whether the plaintiff purchased the scheduled property or not but he know the enjoyment of the plaintiff. I was worked in the said land as coolie for removal of bushes. He denied the suggestion that D.4 and his family numbers are cultivating the southern land and also he denied that D.3 possess a possessory agreement for entire property of suit schedule.

11.PW.4 Seela Narayana in his chief examination he stated he know the plaintiff, PW.1 and Gokarla Appanna. He know the plaint schedule property with an extent of 13 acres is cultivating by PW.1 and plaintiff since 25 years at Srirampuram

Village. He own one acre of land in the northern side of suit schedule property, on the western side there a road, Eastern side water channel. He do not know who is the owner of south side. Plaintiff has been paying tax to the Government. since 10 years. In his cross examination he stated he do not know to whom the property belongs to but now it belongs to plaintiff. He do not know how the plaintiff acquired the suit schedule property, he do not know the owner of the land situated in southern boundary, he do not know who is D.3, he do not know whether Padmanabham handed over the schedule D.3.

8

He denied the suggestion that the plaintiff never in possession and enjoyment of the suit schedule property.

12.PW.5. Aggunna Appanna he stated he know plaintiff and Gokarla Appanna.

He know the plaint schedule property and the possession and enjoyment of the plaintiff.

The plaint schedule land raised with cashew mango trees at about 25 years by the plaintiff. Gokarla Appana executed a document Ex.A.12 in favour of the plaintiff, relinquishing his rights in respect of plaint schedule property, he is the one of attester to that deed. In his cross examination he stated Ex.A.12 is a unregistered document. He was called by Gokarla Appanna to act as attester. Gokarla Appanna is having 5 acres. He admitted that Gokarla Appanna along with some others purchased the plaint schedule property in LM Bank auction. The sale deed was executed in the name of Binnala

Padmanabham, Gokarla Appanna was not obtained separate document. Boundaries East:

Water channel, South: vacant site of B. Padmanabham and others. He admitted that he that Ex.A.12 was executed the house of the plaintiff. Gokarla Appna has got one son and he has 5 acres he do not know whether Gokarla Appanna drafted Ex.A.12. and do not know the particulars of acquisition of land in Ex.A.12 by Appanna.

13.The evidence of defendants Vandara Santhayya examined in chief as DW.1 he is the 5th defendant D.3 is his father after his death D.4 to D.6 came on record as

Legal Representative of D.3. D.1 and D.2 are brothers. The witness is working as special registrar of Andhra University. He stated the suit schedule property is situated in

Srirampuram village he know the Binnala Padmanabham. The said Padmanabham was purchased an extent of 34.60 cents which included plaint schedule property in the year 1971. After that the Binnala Padmanabham executed possessory agreement date 10-04- 1989 in the favour of the D.3 (my father) since then his father is cultivating the said land and Padmanabham is possession and enjoyment of the suit schedule property till 9 1989. D.3 cultivated the entire lands 3 years. Wife of D.4 purchased 20 acres from

Binnala Padmanabham. The extent of Ex.B.3 to B.5 is about 1260 cent which is plaint schedule property from 1989 such lands are in possession of D.3 (my father). The suit schedule contains cashew, mango, eucalyptus trees. The plaintiff has no right in the plaint schedule property. In cross examination the witness stated that Binnala

Padmanabham executed a possessory agreement to sell in favour of his father alone.

Himself, his wife and children were not parties to that agreement. He do not know on which date it was executed but it may be around 1989. He denied the suggestion that he do not have any interest title or possession over the suit schedule property, and also denied the possession of the plaintiff.

14.DW.2. Binnala Eswara Rao examined as DW.2. He is the son of the Binnala

Padmanabham he stated his father purchased 34.65 cents land from Land Mortgage

Bank,Sompeta under a registered sale deed dt. 23-01-1971 for Rs. 8,400/-. His father has been in possession and paying tax to the Government. He reclaimed the land and made it fit for cultivation planted cashew, and mango. Revenue issued pattadar pass book in the name of my father. Land ceiling proceedings were took place with respective to the suit property and other properties, the tribunal declared that the land is belongs to his father, it’s total extent is 32.60 cents includes suit schedule property. The plaintiff have no right in the suit schedule property. In the question posed by his counsel as who created Ex.A.1 to A.12, for that he answered the husband of plaintiff (Agguna Dalibandu) with active assistance of the revenue people created those documents. He did not receive any notice before issuing of Ex.A.1 to A.12 by the revenue. The entire land covered under Ex.B.1 is sold to one Vandara Hemalatha

Himansu under Ex.B.2 to B.5. Neither Plaintiff nor anybody raised objection at the time of sale under Ex.B.2 to B.5. We alienated 20 cents of land to Vandara Hemalatha 10

Himansu the remaining 12.60 sold by us to Vandara Saradha Devi. D.4 and D.5 are in possession of the suit schedule property. In his cross examination he stated that he do not know the extent of the suit schedule and boundaries but it consist of mango and cashew nut trees. He do not know whether the suit land sold to Vandara Saradha Devi and others, but have the copy executed infavour of One Saradha Devi and others, but the recitals of the agreement total extent of 32.65 cents, at the rate of Rs.7000/- per acre, the land was described as dry land and delivered the possession there under the agreement is in two pages, he is not the signatory to that agreement. He do not know who are the attestors and the scribes. Witness admitted that it is a fact the land ceiling declaration it is mentioned that in the entire land of 34 acres his father has got 1/5 share and remaining 4/5 belongs to Agguna Damayanthi, Gokarla Appanna, Mallepeddi

Vajram and Bendalam Ramamurthy Naidu he denied the suggestion that the plaintiff in the suit schedule property as she has been paying the tax to the revenue office and issued pattadar pass book.

15.PW.1 is the husband of plaintiff herein, he was examined on behalf of his wife, he stated plaint schedule property had been purchased by plaintiff, Binnala

Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna under a registered sale deed dated 23-01-1971 for an extent of 34.65 cents in auction held by Mortgage Bank, Sompeta. After that plaintiff and Gokarla Appanna separated from remaining three others Gokarla Appanna relinquished his right over his share and executed Ex.A.12 unregistered relinquishment deed from that day onwards plaintiff is in possession and enjoyment of plaint schedule property reclaiming the said land and planted cashew nut plants, coconut plants, mango plaints. To prove the contention of plaintiff got examined PW.2 to Pw.5 and got marked Ex.A.1 to 11

A.15. PW.2 during his chief examination he stated 5 persons namely plaintiff,

Binnala Padmanabham, Bendalam Ramamurthy Naidu, Gokarla Appanna purchased the plaint schedule property in the name of Binnala Padmanabham since purchasing of the said land plaintiff in the possession and enjoyment of the plaint schedule property. During cross examination he stated he do not know whether 5 persons jointly purchased the said property, but the auction was confirmed in the name of Binnala Padmanabhan, he inducted into 30 acres of land, further he stated there was no written partition between plaintiff and Binnala

Padmanabham. As per his evidence it shows he do not know how the plaintiff acquired the plaint schedule property.

16.PW.3 stated that the plaintiff is in possession and enjoyment of the property, but he do not know how she acquired the same, he stated he worked as labour at the time of reclaiming the plaint schedule property. He is the adjacent owner of plaint schedule property, as per his evidence nowhere mentioned the survey number and extent of his land instead of he simply stated he is the adjacent owner of the plaint schedule property, in the absence of the said details it can not be considered as he is the adjacent owner of plaint schedule property. But he is the

Eastern side owner of plaint schedule property as per his evidence.

17.PW.3 is Eastern side of owner of plaint schedule property he own one acre of land, but he also not gave any particulars of his land. He denied the suggestion that plaintiff is not in possession and enjoyment of the plaint schedule property.

18.PW.5. Aggunna Appanna he stated he know plaintiff and Gokarla Appanna. He know the plaint schedule property and the possession and enjoyment of the plaintiff. The 12 plaint schedule land raised with cashew mango trees at about 25 years by the plaintiff.

Gokarla Appana executed a document Ex.A.12 in favour of the plaintiff, relinquishing his rights in respect of plaint schedule property, he is the one of attester to that deed. In his cross examination he stated Ex.A.12 is a unregistered document. He was called by

Gokarla Appanna to act as attester. Gokarla Appanna is having 5 acres. He admitted that

Gokarla Appanna along with some others purchased the plaint schedule property in LM

Bank auction. The sale deed was executed in the name of Binnala Padmanabham,

Gokarla Appanna was not obtained separate document. Boundaries East: Water channel,

South: vacant site of B. Padmanabham and others. He admitted that he that Ex.A.12 was executed the house of the plaintiff. Gokarla Appna has got one son and he has 5 acres he do not know whether Gokarla Appanna drafted Ex.A.12. and do not know the particulars of acquisition of land in Ex.A.12 by Appanna.

19.DW.1 he is the 5th defendant D.3 is his father after his death D.4 to D.6 came on record as Legal Representative of D.3. D.1 and D.2 are brothers. The witness is working as special registrar of Andhra University. He stated the suit schedule property is situated in Srirampuram village he know the Binnala Padmanabham. The said Padmanabham was purchased an extent of 34.60 cents which included plaint schedule property in the year 1971. After that the Binnala Padmanabham executed possessory agreement date 10- 04-1989 in the favour of the D.3 (my father) since then his father is cultivating the said land and Padmanabham is possession and enjoyment of the suit schedule property till 1989. D.3 cultivated the entire lands 3 years. Wife of D.4 purchased 20 acres from

Binnala Padmanabham. The extent of Ex.B.3 to B.5 is about 1260 cent which is plaint schedule property from 1989 such lands are in possession of D.3 (my father). The suit schedule contains cashew, mango, eucalyptus trees. The plaintiff has no right in the plaint schedule property. In cross examination the witness stated that Binnala 13

Padmanabham executed a possessory agreement to sell in favour of his father alone.

Himself, his wife and children were not parties to that agreement. He do not know on which date it was executed but it may be around 1989. He denied the suggestion that he do not have any interest title or possession over the suit schedule property, and also denied the possession of the plaintiff.

20.DW.2. Binnala Eswara Rao examined as DW.2. He is the son of the Binnala

Padmanabham he stated his father purchased 34.65 cents land from Land Mortgage

Bank,Sompeta under a registered sale deed dt. 23-01-1971 for Rs. 8,400/-. His father has been in possession and paying tax to the Government. He reclaimed the land and made it fit for cultivation planted cashew, and mango. Revenue issued pattadar pass book in the name of my father. Land ceiling proceedings were took place with respective to the suit property and other properties, the tribunal declared that the land is belongs to his father, it’s total extent is 32.60 cents includes suit schedule property. The plaintiff have no right in the suit schedule property. In the question posed by his counsel as who created Ex.A.1 to A.12, for that he answered the husband of plaintiff (Agguna

Dalibandu) with active assistance of the revenue people created those documents. He did not receive any notice before issuing of Ex.A.1 to A.12 by the revenue. The entire land covered under Ex.B.1 is sold to one Vandara Hemalatha Himansu under Ex.B.2 to B.5.

Neither Plaintiff nor anybody raised objection at the time of sale under Ex.B.2 to B.5.

We alienated 20 cents of land to Vandara Hemalatha Himansu the remaining 12.60 sold by us to Vandara Saradha Devi. D.4 and D.5 are in possession of the suit schedule property. In his cross examination he stated that he do not know the extent of the suit schedule and boundaries but it consist of mango and cashew nut trees. He do not know whether the suit land sold to Vandara Saradha Devi and others, but have the copy executed infavour of One Saradha Devi and others, but the recitals of the agreement 14 total extent of 32.65 cents, at the rate of Rs.7000/- per acre, the land was described as dry land and delivered the possession there under the agreement is in two pages, he is not the signatory to that agreement. He do not know who are the attestors and the scribes. Witness admitted that it is a fact the land ceiling declaration it is mentioned that in the entire land of 34 acres his father has got 1/5 share and remaining 4/5 belongs to

Agguna Damayanthi, Gokarla Appanna, Mallepeddi Vajram and Bendalam Ramamurthy

Naidu he denied the suggestion that the plaintiff in the suit schedule property as she has been paying the tax to the revenue office and issued pattadar pass book.

21.To prove the possession of plaintiff filed Ex.A.1 to A15. Ex.A.1 to A.7 are tax receipts contained the survey number 164, but the survey number of plaint schedule property is ½, Ex.A.8 is the Adangal copy it was carefully perused and found the names of the all the purchasers were mentioned it means all are in joint possession. Ex.a.9 is certified copy of ROR issued in favour of Aggunna

Damayanthi for Survey Number 1.2 along with Gokarla Appanna, carefully perused the document found no Khata number and no year of issuance of ROR.

But PW.1 was stated ROR was issued in the name of his wife/plaintiff and they are regularly paying tax to Government. PW.1 failed to state that to what survey number they are paying tax. The plaint schedule survey number is different from survey number mentioned in Ex.A.1 to A.7, Ex.A.1 to A.9 not correlated each other Ex.A.10 is the statement given by the Binnala Padmanabham before Land

Ceiling Tribunal he stated he along with 4 members purchased from the land

Mortgage Bank in extent of 30 acres i.e. Ex.A.10 and A.11. A.13 and 14 are the subsequent copies of this suit.

22.A.13 is certified copy of Decree and Judgment in O.S.24/1989 on the file of 15 the Subordinate Judge’s Court. This suit filed for partition by Bendalam Ramurthy

Naidu, Malipeddi Vajram against Binnala Padnabhamm, Agguna Damayanthi and to there the same was allowed by allotting their respective shares, the date of the decree and judgment of this suit is 3rd September, 1996, originally the main suit

O.S. 57/89 filed on 20th April, 1989 so Ex.A.13 is subsequent document to this

suit.

23.Ex.A.14 is certified copy of Decree and Judgment in O.S.59/1993 on the file of the Subordinate Judge’s Court. This suit filed for declaration of title and recover of possession filed by Vandara Saradhavi and others against Agguna Dalibandu and others the same was dismissed, the date of the decree and judgment of this suit is 17th June, 2004, originally the main suit O.S. 57/89 filed on 20th April, 1989 so

Ex.A.14 is subsequent document to this suit. Hence from the above observations

Ex.A.13 and 14 are not relevant documents to this suit.

24.Ex.A.15 is ROR Pass Book issued infavour of plaintiff in the year 2016 so this document is also subsequent document to this suit. Ex.A.10 and A.11 also filed subsequent filing of this suit the plaintiff filed only the documents Ex.A.1 to

A.9 at the time of filing of this suit and also the PW.1 is silent about the document to show that plait schedule property was purchased by them jointly in an auction.

But DW.1 filed the said document the same is marked as Ex.B.1. PW.1 admitted that he never seen the Ex.B.1 and no where mentioned Ex.B.1 is in whose possession. PW.1 simply stated that plaint schedule was purchased in auction without giving any details of auction i.e., date of auction and whose property was purchased by them in said auction.

16

25.Ex.a.12 is unregistered relinquishment deed which was alleged to deed executed by Gokarla Appanna in the favour of plaintiff is not a valied document in the eye of Law as per the Section 17 of Regisration Act. Moreover it was executed in the year 1973 but completed in the year 1975. One of the attester of this document was examined as PW.5. He stated that Ex.A.12 was executed at the house of plaintiff at the the time of execution he questioned the executant i.e.,

Gokarla Appanna as why he is relinquishing his right over his share and giving to plaintiff, the answer was given by the executant is that plaintiff is his brother’s daughter, but PW.5 stated Gokarala Appanna have one son. It means instead of giving his share to his son he gave it to the plaintiff, the reasons for relinquishment is not mentioned.

26.The oral evidence of witnesses to be supported with the documentary evidence PW.3 and PW.4 are the Eastern side and Northern side owners of plaint schedule property both submitted that plaintiff is in possession and enjoyment of the plaint schedule property. But their evidence not supported with documentary evidence. Plaintiff not at all chose to examine any one of the purchasers to prove that the plaint schedule property was purchased by them jointly in an auction.

27.On the other hand the defendant strongly contending that Binnala

Padmanabham had purchased an extent of 34.60 cents which included plaint schedule property in the year 1971, to show that to filed Ex.B.1 certified copy of the extract of sale deed dated 20-01-1971. Ex.B.2 to B.5 are the certified copies of sale deeds executed by Binnala Padmanabham. Ex.B.7 is the suit register extract of O.S.19/77, Ex.B.8 is certified copy of pattadar Pass book issued in the name of 17

Binnala Padmanabham. Ex.B.10 to B.15 are tax receipts issued in the name of family members of DW.1. Ex.B.9 is cash receipt issued in the name of vendor for faslis 1395 to 1398.

28.Now it is not the issue to decide whether the defendants purchased the property or not, but the main issue in this suit is whether the plaintiff is in possession of the plaint schedule property at the time of filing of this suit is not.

Plaintiff to prove her possession filed Ex.A.1 to A.9 and other documents Ex.A.10 to A.15 all the documents are filed subsequent filing of this suit, but A.1 to A.9 not correlated to each other to prove the possession of the plaintiff and moreover how the plaintiff acquired the plaint schedule is silent no document was filed and further relinquishment deed is not a valid document in the eye of Law. Basing on the observations made supra the plaintiff failed to prove her possession over the plaint schedule property hence this suit is dismissed without costs.

29. Issue No.2:

In the result, this suit is dismissed without costs.

Typed to my dictation, corrected and pronounced by me in the Open court on this the 27th day of November, 2017.

Addl. Junior Civil Judge, Sompeta. (FAC) Prl. Junior Civil Judge, Sompeta.

18

APPENDIX OF EVIDENCE

Witness Examined

On behalf of the Plaintiff:

Pw.1: Agguna Dalibhandu

Pw.2: Piriya Ramaswami

PW.3: Jalasutrapu Bholoku

PW.4:Seela Narayana

PW.5: Agguna Appanna

On behalf of the Defendant :

DW.1: Vandara Santhayya

DW.2: Binnala Eswararao

On behalf of the Plaintiff :

Ex.A.1: is the Tax receipt

Ex.A.2: is the Tax receipt

Ex.A.3: is the Tax receipt

Ex.A.4: is the Tax receipt

Ex.A.5: is the certified copies of the tax receipt

Ex.A.6: is the certified copies of the tax receipt

Ex.A.7: is the certified copies of the tax receipt

Ex.A.8: is the certified copy of the No.2 adangal showing enjoyment of the plaintiff’s in respect of faslices 1399 to 1401

Ex.A.9: is the certified copy of the R.O.R. Pass book containing 3 pages.

Ex.A.10: is the certified copy of the statement schedule before land celing tribunal, Tekkali, by Binnal Padmanabham

Ex.A.11: is the is the certified copy of the declaration filed by B. Padmanabham

before land cellig, Tekkali

Ex.A.12: is the relinquishment deed executed by Gokarla Appanna

Ex.A.13: is the certified copy of the Decree and Judgment in O.S 24/1989 on the file of the subordinate Judge’s Court. (Now Senior Civil Judge’s Court)

Ex.A.14: is the certified copy of the decree and Judgment in O.S. 59/1993 on the file of the Subordinate Judge’s Court, (Senior Civil Judge’s Court)

Ex.A.15: is the R.O.R pass book issued in the name of the plaintiff by the 19

Tahsildar, Mandasa

On behalf of the Defendant :

Ex.B.1: is the certified copy of the extract of the sale dated 20-01-1971

Ex.B.2: is the certified copy of the sale deed from Binnala Padmanabham.

Ex.B.3: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.4: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.5: is Extracts of the original sale deeds filed in O.S. 07/93

Ex.B.6: is the said order (the learned counsel for plaintiff objected for marking that documents through the witnesses)

Ex.B.7: is suit register extract of O.S.19/1977

Ex.B.8: is the certified copy of the pattadar pass book.

Ex.B.9: is the cash receipt issued in the name of vendor for faslis 1395 to 1398.

Ex.B.10 is tax receipt issued in the name of our family members.

Ex.B.11is tax receipt issued in the name of our family members.

Ex.B.12 is tax receipt issued in the name of our family members.

Ex.B.13 is tax receipt issued in the name of our family members.

Ex.B.14 is tax receipt issued in the name of our family members.

Ex.B.15 is tax receipt issued in the name of our family members.

Addl. Junior Civil Judge, Sompeta. (FAC) Prl. Junior Civil Judge, Sompeta.

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF FIRST CLASS

AT SOMPETA

Present: Smt Sk.Shireen

Principal Junior civil Judge-cum-

Judicial Magistrate Of First Class, Sompeta.

Friday the 05 th day of October 2018.

M.C.No.07/2014

Between:

1. Koti Suhasini, W/o Ramakrishna, 29 years, Seetharamanagar, palasa Town, Presently residing at C/o Rama Rao, Baruva village, Sompeta Mandal, Srikakulam District.

2. Koti Pavan Kumar, W/o Ramakrishna, 9 years, Seetharamanagar, palasa Town, Presently residing at C/o Rama Rao, Baruva village, Sompeta Mandal, Srikakulam District.

3.Koti Janshirani, D/o Ramakrishna, 7 years, Seetharamanagar, palasa Town, Presently residing at C/o Rama Rao, Baruva village, Sompeta Mandal, Srikakulam District.

(Petitioners no.2 and 3 being minor are Rep. By their mother, natural guardian, petitioner no.1)

...Petitioners.

AND:

Koti Ramakrishna, S/o Tavitayya, 32 years, Sudhikonda colony, Palasa Town, Kasibugga, Srikakulam District.

..Respondent.

This petition is coming on 25-09-2018 for final hearing before me in the presence of Sri. S. Nagabushana Rao, Advocate for the Petitioners, and Sri C.S.Bhagavanulu and Sri G. Yogesh Advocates for the Respondent, and upon hearing and having stood over for consideration till this date, this court made the following:

ORDER

This petition is filed by the petitioners against the respondent under section 125 of The Criminal Procedure Code seeking maintenance at the rate of Rs.5,000/- per month towards the maintenance of the 1st petitioner and Rs. 2,500/- each per month 2 towards the maintenance of the 2nd and 3rd petitioners, from the date of filing of this petition.

2. The facts set out in the petition, in brief, are as follows:

The 1st petitioner and the respondent loved each other and as the parties to the petition belong to one community, the matter was referred to parents of parties and there were negotiations of marriage between the 1st petitioner and the respondent in the negotiations, the respondent and his parents demanded for dowry and other presentations. As there was no other alternative, the parents of the 1st petitioner agreed for the same. Accordingly, marriage between the 1st petitioner and the respondent was celebrated on 13-02-2005 at Bhimalingeswara Swamy Temple, in Chinna Badam village within Palasa Mandal. At the time of the marriage, as per the demand of the respondent and his parents, the parents of the 1st petitioner gave cash gift of Rs.2,50,000/- of

Rs.10,000/- gold chain 2 tulas and gold ring weighing half a tula to the respondent. The parents of the petitioner no.1 also presented 2 tulas of gold pustelatadu to the 1st petitioner.

Soon after the marriage, 1st petitioner joined the respondent at Sudhikonda in

Palasa Town where the respondent is staying to lead marital life with him. They lead happy marital like and as a result of the marital wed-lock between the petitioner no.1 and the respondent,the petitioners 2 and 3 herein were born. That after the birth of the second child, the respondent started ill treating and harassing the 1st petitioner in several ways demanding the 1st petitioner to bring additional dowry from her parents to meet his licentious habits. When ever, the 1st petitioner expressed her inability to bring the

additional dowry from her parents, the respondent used to abuse her and beat her and

tortured her in several ways by words or deeds. Then the 1st petitioner has expressed that her parents are not in position to give any additional dowry and expressed her inability to get the additional dowry, the respondent used to beat her and torture her. The respondent always used to insult, ill treat and humiliate the 1st petitioner on every occasion. The 1st petitioner beat all the ill treatment and humiliations with a hope that the respondent would realize his mistakes and set himself right. There was no change in the attitude of the respondent, through the 1st petitioner continued to stay with him and leading conjugal life with him and it became unbearable. He used to come late in the nights in a drunken state and beat the 1st petitioner mercilessly.

3

Thereafter about 3 months back, the respondent brought the petitioners to the parents houses of the 1st petitioner, and dropped them at her parents house. Thereafter, the parents of the 1st petitioner and the 1st petitioner tried to pacify the respondent personally and also through elders. But, the respondent did not come to take back the petitioners along with him, through her parents and elders tried their level best.. Thus the respondent has totally neglected and deserted the petitioners and left them at the parents house of the 1st petitioner to their fate. That through the 1st petitioner has made all efforts to join the respondent, it was not be possible for her to join her husband. As there is no other alternative, the petitioners took shelter in the parents house of the 1st petitioner and are living at their mercy. That now the petitioner are staying with the Junior Paternal

Uncle’s House at Baruva.

That the respondent in anticipation of the legal action to be taken by the petitioner for their maintenance against the respondent, the respondent got issued a registered notice dated 10-08-2014 through his Advocate with all false and untenable allegations.

The 1st petitioner sent a reply to the aforesaid notice with all true facts. That the petitioner has no means to maintain themselves. The 1st petitioner is unable to work and earn anything. The 1st petitioner require Rs. 5,000/- each per month towards their maintenance, residence, educational and medical expenses. The respondent is doing business by maintaining a chicken Centre at the Bazaar (Daily Market) at Kasibugga and earning Rs.2,000/- per day and he is also having movable and immovable properties, and 3 slabbed houses at Sudhionda street, in Palasa town. He is having two storeyed building at Tekkali. He is also having vacant land in an extent of 0.60 cents which is useful for house sites at Takkali. He is also doing money lending business and getting

Rs.1,00,000/- per annum. The respondent is able bodied and capable of maintaining the petitioners. From all sources, the respondent is getting Rs.70,000/- to Rs.80,000/- per month. That the respondent has neglected and deserted the petitioners, and the respondent is liable to pay maintenance to the petitioners. Hence, this petition.

3. The Contentions of the Respondent are:

The respondent filed his counter denying all the material allegations in the petition and contending that he married the 1st petitioner on 13-02-2011 in Chinnabadam village in Bhimalingeswara Swamy Temple and it is a love marriage. The respondent adorned 4 gold ornaments to the 1st petitioner nearly 2 ½ tulas at the time of marriage. Later on the 1st petitioner joined the respondent to lead happy marital life till 29-05-2014. During the wed-lock, the petitioners 2 and 3 were born. As the marriage was performed against the will of the parents of the respondent, no dowry or sarisamanulu were received by the respondent.

That the respondent is running a chicken shop in Palasa market. He used to go to his shop in the morning 05-00 am and he used to come to his house at 09-00 pm. As such during the absence of the respondent in the house, she developed illicit intimacy with one Janakana Adinarayana, who is resident of opposite to the house of the respondent, Thota Ramu, Kotni Adinarayana, Madigana Mohanarao, Lingubori Danayya and Marpu Dorababu. That on 28-05-2014 at about 11-00 am while un expectedly he reached to his house, the 1st petitioner and one Marpu Dorababu were in a compromising position without clothes. That on seeing the respondent the said Dorababu left and ran away from house on the backyard with his clothes, the neighbours also witnessed the same. For which the respondent questioned the 1st petitioner verified the mobile phone of the 1st petitioner and observed following numbers and they are 0666063327, 9866218834, 8437751446, 9948799761, 739645295, 9550325322, 9550325437, 7382244704, 8096204587, 9177123896, 7702930026, 9491266472 etc., and the sister in laws of the respondent by name Dasari Lalitha, jogi Varalaxmi, Subbhu Jayamma,

Parvati etc., helped the 1st petitioner for the sexual affair with the above persons. That the respondent also recorded the conversation which were recorded in his mobile in a

CD. That the 1st petitioner has illicit intimacy with the said Marpu Dorababu more than 2 years and it was also witnessed by the 2nd petitioner. That 1st petitioner left the house of the respondent and took away the 3rd petitioner to her parents house and staying there only. That 1st petitioner and the said Marpu Dorababu are still leading adulterous life.

Subsequently, with the advise of Marpu Dorababu, the 1st petitioner lodged a false complaint before the station house officer, Kasibuga on 23-08-2014 under section 498-A of Indian Penal Code and section 3 and 4 of Dowry Prohibition Act with all false allegations. This respondent narrated the entire story of the 1st petitioner for which the station house officer, Kasibugga Police station enlarged the respondent on his self bail.

That subsequently, the respondent reported the matter to the human rights commission on 25-08-2014 and the same was returned on 27-08-20174 as no jurisdiction and sent to Judicial magistrate of First class, Palasa, Subsequently the 5 respondent reported the matter to the superintendent of Palasa, Srikakulam and the superintendent of police directed the station house officer, Kasibugga to register the case against Marpu Dorababu. Accordingly, a case is registered against the said Marpu

Dorababu under section 497 of Indian Penal Code by the station house officer,

Kasibugga and the case is pending. That the respondent sent a registered legal notice through his counsel to the 1st petitioner and the said Marpu Dorababu and the 1st petitioner and Dorababu received the same and the 1st petitioner gave a reply with all false allegations. But the Said Marpu Dorababu did not give any reply. The said notice was sent for divorce as the 1st petitioner is leading an adulterous life.

The respondent submits that the petitioners 1 and 3 are residing at Palasa but not at Baruva. In order to create cause of action, the 1st petitioner intentionally gave the wrong address in the petition. That the 2nd petitioner is residing with the respondent and the respondent is alone looking after the education and welfare of the 2nd petitioner. As such the 1st petitioner is not entitled to claim maintenance for the 2nd petitioner from the respondent. The 1st petitioner suppressed all the material facts and filed the partition with all false allegations. The 1st petitioner did not give any dowry or sarisamanu as alleged in the petition. That the 1st petitioner is hale and healthy and she is working in a cashew factory at Palasa and getting Rs.200/- per day and she is able to maintain herself. As the 1st petitioner is living in adultery with the said Marpu Dorababu and others she is not entitled to claim maintenance from the respondent and the 1st petitioner is also guilty of desertion. That due to the behaviour and character of the 1st petitioner, the respondent suffering from mentally and physically and unable to do any work and the respondent is not able to pay separate maintenance of the 1st petitioner. Hence this petition is liable to be dismissed.

4. Heard the learned counsel for the petitioners. No arguments were submitted on behalf of the respondent.

5.Now the Point for consideration is:

“Whether the petitioners are entitled to maintenance as prayed for and if so to

what amount?” 6

6. POINT:

a)The case of the petitioners is that the 1st petitioner and the respondent got married on 13-02-2005 at Palasa. The petitioners' no.2 and 3 are their children. That the parents of the 1st petitioner gave dowry of Rs. 2,50,000/-, Sarisamanulu worth Rs.10,000/-, Gold chain of 2 tulas and gold ring of ½ tula to the respondent at the time of marriage. And they also presented gold pustelatadu of 2 tulas to the 1st petitioner. That the 1st petitioner and the respondent lead a happy marital life. That after the birth of the 3rd petitioner, the respondent started harassing the 1st petitioner for additional dowry. That he used to come home drunk, and used to beat the 1st petitioner mercilessly. That the 1st petitioner bore the harassment with the hope that the respondent would change. That the respondent left the petitioners at the house of the parents of the 1st petitioner and totally neglected and deserted the petitioners. That thereafter he sent a registered legal notice dated 10-08- 2014 expecting a legal action to be taken by the petitioners. That the respondent is having chicken business and is earning Rs.2000/- per day and that he is also having a 2 storied building at Tekkali, and 3 slabbed houses at Palasa, and a vacant land of 60 cents at Tekkali. That he is getting an income of Rs.1,00,000/- per annum from money lending business. That he is receiving an income of Rs.70,000/- to Rs.80,000/- per month from all the above and is capable of paying maintenance but neglected to do the same.

In order to prove her case the 1st petitioner got herself examined as PW.1, PW.2 by name Pathala Nagabushanam and PW.3 by name Dasari Gopayya are the village elders.

b)The case of the respondent is that the marriage of the 1st petitioner and himself was a love marriage and the respondent gave gold ornaments of nearly 2 ½ tulas to the 1st petitioner at the time of marriage. That as the marriage took place against the will of the parents of respondent, no dowry or gifts were given to him. That the respondent has chicken shop at Palasa and he used to work from 5-00 am to 9-00 pm. And the during the absence of the respondent, the 1st petitioner developed illicit intimacy with one

Jankana Adinarayana, Thota Ramu, Kotni Adinarayana, Madigana Mohana Rao,

Lingubari Danayya and Marpu Dorababu who are living opposite to the house of the respondent. That the respondent on 28-05-2014 at 11-00 am when he unexpectedly went to home he found the 1st petitioner in a compromising position with one Marpu 7

Dorababu without clothes. That the 1st petitioner accepted her illegal relationships with the said persons. That the respondent verified the phone calls of the 1st petitioner and found out that the sisters of the 1st petitioner helped her in such illegal relationships. That the 1st petitioner herself left the respondent and on the advice of the said Marpu

Dorababu she filed a false complainant against him under section 498-A Indian Penal

Code and Section 3 and 4 of Dowry Prohibition Act in Kasibugga Police station.

Thereafter, the respondent sent a registered legal notice to the 1st petitioner and Marpu

Dorababu. That the 2nd petitioner is residing with the respondent and he is looking after his welfare. Hence, the 1st petitioner is not entitled to claim maintenance on behalf of 2nd petitioner. That the 1st petitioner is working in a cashew factory at Palasa and earning

Rs.200/- per day. Hence, she is capable of maintaining herself.

The respondent filed his chief affidavit, but failed to appear before the court for cross examination even after giving ample time, hence his evidence was eschewed. The respondent side evidence was closed.

c) After consideration of the above circumstances, this court is of an opinion that the main ingredients for claiming maintenance by a wife under section 125 of Cr.P.C are:

There should be marital Relationship between the Petitioner and the

Respondent.

The respondent has sufficient means, and has neglected or refused to maintain the petitioner.

The Petitioner is unable to maintain herself.

The Petitioner has not left the respondent voluntarily, or living in adultery or living separately by mutual consent.

i)There is no dispute with regard to the marriage between the parties. Hence, this point is answered accordingly.

ii)The respondent himself admits that he is having a chicken shop at Palasa. However, he contends that due to the behaviour of the 1st petitioner, the respondent suffered mentally and physically, and is unable to do any work. The 1st petitioner contends that the respondent is earning Rs.70,000/- to Rs.80,000/- per month and in order to prove the same, she got herself examined as P.W.1, and PW.2 and PW.3 on her behalf. However, 8 no documentary proof has been produced before this court to prove the income or the properties of the respondent. On the other hand, the respondent failed in proving that he is not earning any income.

iii) The respondent contends that the 1st petitioner is also doing chicken business at

Palasa and is earning Rs.200/- per day. PW.2 also admitted in his evidence that PW.1 is doing chicken business. However, as held by the Hon'ble Apex Court in 2008 (1) ALT (Cr.) 131 (SC) in Chaturbhuj v. Sita Bai. In which it has been held that “The appellant has placed material to show that the respondent-wife was earning some income. That is not sufficient to rule out application of section 125 of Cr.P.C. it has to be established that with the amount she earned the respondent-wife was able to maintain herself.”

It is not sufficient to prove that the petitioner is earning some amount, but it is to be seen whether the petitioner is able to live up to the standard of living of her husband.

And here even if it is proved that the 1st petitioner is doing chicken business, it is not sufficient to show that the petitioners are living up to the standard of living of the respondent. Hence, the contention of the respondent that the 1st petitioner is earning Rs.

200/- per day from chicken business is not sufficient to show that she is capable of maintaining herself.

iv) The contention of the respondent is that the 1st petitioner is living in adultery and left the respondent voluntarily on questioning about the same. The 1st petitioner contends that the respondent himself got addicted to bad vices and left the petitioners. Except for the said contentions the respondent failed to produce any other proof on his behalf to show that the 1st petitioner is living in adultery. On the other hand the 1st petitioner already reported about the harassment of the respondent before the station house officer,

Kasibugga Police station, which prima facie shows that the 1st petitioner did not leave the respondent without any reasonable cause. Hence, the point is answered accordingly.

7.After taking into consideration the above circumstances, this court is of an opinion that the 1st petitioner is none other than the wife and the 2nd and 3rd petitioners are the children of the Respondent. And they have no means to maintain themselves. It is the duty of the Respondent to maintain his wife and children. Hence, The petitioners are 9 entitled to claim maintenance from the Respondent.

As far as the amount of maintenance to be awarded is concerned, the 1st petitioner, claims that the respondent is getting Rs.70,000/- to 80,000/- per month from chicken business and Rs.1,00,000/- per annum from other sources. The petitioner is claiming

Rs.5,000/- per month for herself and Rs. 2,500/- per month each for the 2nd and 3rd petitioners by way of maintenance. Except for such statement, the petitioner has not filed any document to show that respondent is receiving such income. Therefore, keeping in view the above circumstances, and the capacity of the respondent, this court is of the opinion that granting Rs.3,000/- per month each towards the maintenance of the petitioners' no.1 to 3 would meet the ends of justice.

8. Therefore, after taking into consideration all the above pleadings and the evidence, this court is inclined to grant Rs.3,000/- per month each towards the

Maintenance of the petitioners' no.1 to 3. Accordingly, this point is answered.

In the result, the petition is allowed granting monthly maintenance of Rs. 3,000/- per month each towards the Maintenance of the petitioners' no. 1 to 3 from the date of the order i.e., 05-10-2018. And the respondent shall also pay Rs.1000/- towards the costs incurred by the petitioners. The respondent is directed to pay the said maintenance amount directly to the petitioners on or before 10th day of every succeeding month.

Dictated to the Typist, Typed by her, corrected and pronounced by me in open

Court this the 5th day of October 2018.

Sd/-Sk. Shireen.

Principal Junior Civil Judge-cum-

Judicial Magistrate of First Class,

Sompeta.

Appendix of Evidence

Witnesses Examined

For Petitioner:

P.W.1:19-09-2017-Koti suhasini 10

P.W.2:28-02-2018-Pathala Nagabushanam P.W.3:28-02-2018- Dasari Gopayya

For Respondent:

-Nil-

Documents Marked

For Petitioner: For Respondent:

-Nil--Nil-

Sd/-Sk. Shireen.

Principal Junior civil Judge-cum-

Judicial Magistrate of First Class,

Sompeta. //True copy//

Principal Junior civil Judge-cum-

Judicial Magistrate of First Class,

Sompeta.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE ­cum­

JUDICIAL MAGISTRATE OF FIRST CLASS AT SOMPETA

Present: Smt Sk.Shireen

Principal Junior civil Judge ­cum­

Judicial Magistrate Of First Class, Sompeta.

Wednesday, the 03 rd day of June’ 2020

C.C. No. 111/2018

Between: State Represented by Sub­Inspector of police, Sompeta Police Station. …. Complainant And:

1.Sandip Kumar, S/o Vijay Singh, Age 32 yrs, Driver, Resident of Barsi Jattan Village, Bhavani District, Harynana state.

2.Kishan, S/o. Unknown, Bhavani keda village

3.Tejpal, S/o. Late Ramesh Kumar, age 34 years, Dhanak by caste, Resident of Barsi Jattan Village, Bhavani District, Harynana state.

4.Krishan, S/o. Late Jile Singh, age 28 years, Sansi by caste, Resident of Barsi Jattan Village, Bhavani District, Harynana state.

5.Della, S/o. Unknown, Auranganagar village.

(The case against the accused no.2 to 5 was separated and alloted a new case

number in CC 493/2019 vide docket order dated 20­12­2019)

... Accused no.1 to 5

This case coming on 17.03.2020 for final hearing before me in the presence of Assistant Public Prosecutor for the State and Sri B. Dharma Rao, Advocate for the Accused no.1 and upon hearing both sides and having stood over till this day for consideration, this court delivered the following.

JUDGMENT

The Sub­ Inspector of Police, Sompeta Police Station laid a charge sheet against the accused no.1 to 5 in Cr. No. 52/2017 for the offences Under Section 420 and 379 of

Indian Penal Code (herein after referred to as 'IPC' for the sake of brevity).

2. The Brief case of the prosecution as per the charge sheet is as follows:

On 01.11.2017 at 16.00 hrs, LW.1/Majji Trinadh presented a report before the

Station House Officer, Sompeta Police station, alleging that on 13.09.2017 at 09.00 hours he went to the State Bank of India Main branch and tried to withdraw the amount from the ATM machine, Sompeta. Two unknown culprits tried to help the complainant for withdrawing the amount and changed the ATM card of the Defacto complainant and

CC 111 of 2018 Date:03-06-2020

JFCM Court, Sompeta 2 gave him another card. That later he came to know from his brother that an amount of

Rs.1,45,000/­ was withdrawn using his ATM card from his brother's account. 

Basing on the report of LW­1/Majji Trinadh, LW­6/P. Tulsamma, Head constable, Sompeta police station, registered a case in Cr.No.52/2017 under sections 420 and 379 of IPC on 01.11.2017 at 16.00 hrs. LW.7/K. Bhaskar Rao, Sub­inspector of police,

Sompeta took up further investigation and on 03.11.2017 about 12.00 hrs., on credible information he along with staff arrested the accused no.3 and 4 at ATM center, State

Bank of India, Sompeta at about 12.10 hrs in the presence of mediators and a translator.

That the accused no.3 and 4 confessed about their crimes and the crimes of the other accused in assisting them for the theft of the amount of Rs.1.45,000/­ from A/C No.

30498542613. and the investigating officer seized the car belonging to the accused no.3 and 4 along with their Records. After completion of investigation, LW.8/ Ch. Durga

Prasad, Sub­inspector of police, Sompeta police station filed the charge sheet. Hence, the charge.

3.This case was taken on file for the offences under section 420 and 379 of IPC against the Accused no.1 to 5. However, as the Non bailable warrants of accused no.2 and 5 and the summons of accused no.3 and 4 were pending since long, the case against the accused no.2 to 5 was separated and alloted a new case number in CC 493/2019 vide docket order dated 20­12­2019.

4. After appearance of accused no.1, case copies were furnished to him Under section 207 of Criminal Procedure Code and he was examined Under section 239 of

Criminal Procedure Code and the charges framed under sections 420 and 379 of IPC was

Read over and explained to him in Hindi, for which he pleaded not guilty and claimed to be tried.

5. In the trial afforded by both parties, prosecution cited 8 witnesses. Examined

P.W1 to PW.4, and the evidence of LW.2/ Majji Janaki, LW.4/Cheedi Dilleswara Rao,

LW.6/P. Tulasamma and LW.8/Ch. Durga Prasad, Sub­Inspector of Police, Sompeta was given up by the prosecution. Ex.P.1 to P.4 are marked. No material objects are marked.

6. After completion of prosecution evidence, accused no.1 was examined Under section 313 of Criminal Procedure Code and the Incriminating material in Prosecution evidence was read over and explained to him in Hindi for which he denied and reported no defense. No Exhibits were marked in “D” series.

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JFCM Court, Sompeta 3

7. Heard the Learned Assistant Public Prosecutor and the Learned counsel for the accused.

8. Now the points for determination are:

I. Whether the Accused no.1 cheated the Defacto complainant for dishonestly inducing him to deliver any property ?

II. Whether the Accused no.1 committed theft of Rs.1,45,000/­ from the bank account of the Defacto complainant's brother ?

III. Whether the prosecution proved the guilt of the accused no.1 for the

offences under section 420 and 379 of The Indian Penal Code beyond

reasonable doubt ?

9. POINT No.1 and 2:

a)The case of the prosecution is that the accused no.1 cheated the Defacto complainant by swapping his ATM card with another ATM card. And committed theft of Rs.1,45,000/­ from the bank account of the Defacto complainant's brother. In order to prove his case, the Defacto complainant got himself examined as PW.1, the mediator present at the time of arrest of accused no.3 and 4 is examined as PW.2, the translator is examined as PW.3 and the investigating officer is examined as PW.4. Ex.P.1 is the report filed by PW.1, Ex.P.2 is the relevant portion in the mediators report, Ex.P.3 is the First

Information Report and Ex.P.4 is the Seizure report. 

b)PW.1 deposed that one Majji Satyam is his elder brother and he is working in

Army. That he gave his ATM card to his wife i.e. LW.2/Majji Janaki. That PW.1 used to withdraw amounts from the said ATM card for the purpose of giving the same to his sister­in­law i.e. LW.2/Majji Janaki. That in the year 2017 he took the ATM card and tried to withdraw the amount from the ATM Center at Main Branch of SBI at Sompeta on 13.11.2017. and amount was not withdrawn, and while he was returning the accused no.1 requested him to try another time. And as he was trying to contact his brother the accused no.1 grabbed his cell phone and requested him that he wants to try again in

Hindi. The accused no.1 swapped the ATM card after entering the pin. And PW.1 took the ATM card as no cash was withdrawn. Thereafter, PW.1's brother called him and informed him that cash of Rs. 1,45,000/­ was withdrawn from his account. 

He statedduring his cross examination that he cannot say the ATM card number or the account number of his brother. That he told the police that the accused was wearing particular dress and that he can identify accused. That he is seeing the accused for the first time in the court. No security guard was present at the ATM on the said day.

As per the norms only Rs. 10,000/­ could be withdrawn from an ATM in the year 2017. 

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JFCM Court, Sompeta 4

c)PW.2 is the mediator, he deposed that on 03.11.2017 at 12 PM the Sub­inspector of police Sompeta PS sent a constable to their office calling upon him and LW.4/Cheedi

Dilleswara Rao , VRO, Sompeta­I to act as mediators. That they went there and the sub­ inspector informed them that they have arrested 2 accused persons by names Kishan and Tejpal who are accused in ATM theft cases. That PW.3 translated the version of the accused into Telugu. And the accused confessed about their crimes with regard to

ATMs. The police seized the papers from the accused. The accused were arrested in their presence. The police also seized ATM cards and Aadhar cards from the accused.

He deposed during his cross examination that no written summons were issued to him to act as mediator. That there is a security guard in the main branch ATM.

d)PW.3 is the translator, he deposed that he is working as Hindi Pandit at ZPH

School Kanchili since 2017. That on 03.11.2017 at 12.30 PM the Sub­inspector of police,

Sompeta PS requested him to come to the ATM center main branch, sompeta for acting as a translator. That he went there and translated the version of the accused from Hindi to Telugu. PW.2 drafted the report in Telugu in his presence. He deposed during his cross examination that the Sub­inspector issued written summons to him. That there is a security guard in the main branch ATM. Generally the security guards are Ex­service men and they know Hindi.

e)PW.4 is the investigating officer, he deposed about the Woman Head constable,

Sompeta Police station receiving Ex.P.1 report and registering the Ex.P.3 First

Information Report basing on the same in Cr.No. 52/2017 under section 420 and 379 of

IPC. He deposed about the seizure of ATM card belonging to PW.1 by her under the cover of Ex.P.4 seizure report. He deposed about arrest of accused no.3 and 4 in the presence of mediators and translator. And about recording of confession of the accused no.3 and 4 and about seizure of records from them. He deposed during his cross examination that the date is not mentioned in the Ex.P.1 anywhere. That there is a delay of 50 days in report of the offence from the date of offence. The signature of PW1 is not obtained in Ex.P.4. and no written summons were issued to the mediators or the translator. And that no Test identification parade was conducted in this case. 

f)As per the evidence of PW1, the accused no.1 and another unknown person swapped his ATM card after entering the PIN. And after some time PW1's brother called him and informed him that cash of Rs. 1,45,000/­ was withdrawn from his account. The said offence happened on 13­09­2017. and the report was given on 01­11­

CC 111 of 2018 Date:03-06-2020

JFCM Court, Sompeta 5 2017. PW1 stated in his report, that after the incident he informed the bank authorities and waited for CCTV footage, and thereafter came to know that the same will be furnished through the police, and filed the police report. The offence was reported after a delay of 49 days. It being one with regard to an amount to the tune of Rs. 1,45,000/­ the explanation of the complainant with regard to the delay is not satisfactory. Moreover no CCTV footage of the incident is produced before this court. The Learned counsel for the accused argues that the accused no.3 and 4 were arrested in the month of October 2017, and thereafter they were implicated in this offence, and a report was obtained from PW1 thereafter. He claims that he also produced the newspaper clipping of arrest of accused no.3 and 4 in the month of October, at the time of the bail of the accused no.3 and 4. However, the same is not marked and cannot be considered. PW1 was not even able to depose the account number or the ATM card number with regard to which the offence happened. The Learned counsel for the accused argues that by the time of the incident, there was a limit on withdrawal of money of more than Rs.10,000/­ through bank and ATM due to demonetization. PW1 also admitted the same in his evidence. The police failed to file any authentication from the bank authorities with regard to such withdrawal of Rs.1,45,000/­ from the bank account of the complainant's brother through the ATM on the said day. 

g)PW1 also stated in his report that after receiving a phone call from his brother, he checked the ATM card and found that it was not his brother's card. As per the version of

PW4 the ATM card belonging to PW.1 was seized by the Woman head constable under the cover of Ex.P.4 seizure report, However the same is not produced before this court and not shown in seized property. As per the prosecution case, the accused no.3 and 4 confessed about their crimes in this case, and Rs.5000/­ was recovered from them, which as per them is the money stolen in this case. PW4 stated that on credible information, he went to the SBI main branch, sompeta and arrested the accused no.3 and 4 in the presence of the mediators and translator. And that the accused confessed about their crimes before them. Despite the presence of the mediators, the confession statement of the accused is considered to be inadmissible as the accused were in police custody. Only when any fact is discovered in consequence of such information given by the accused and so much of such information leading to the discovery is admissible and can be proved. Here in the present case on hand, PW.4 stated that he seized Rs.5,000/­ from the accused no.3 and 4. However, the number of the currency notes seized by police is not mentioned in the mediators report. Hence, it could not be proved that the property seized by the police is actually the property stolen from the ATM. And the

CC 111 of 2018 Date:03-06-2020

JFCM Court, Sompeta 6 police also failed to recover the original ATM card of complainant from the accused no.3 and 4. 

h)After considering the above circumstances, this court is of the opinion that the delay in filing report is not sufficiently explained. And the prosecution failed to produce the CCTV footage or authentication from the concerned bank authorities showing withdrawal of Rs.1,45,000/­ from the account of PW1's brother on the day of the incident. When PW1 has specifically admitted about the restriction on withdrawal of money from the ATM by the time of the incident, the absence of any proof in that regard is damaging to the case of prosecution. Hence, in view of the above this court finds that the evidence on behalf of the prosecution is not sufficient to establish beyond reasonable doubt that the accused no.1 dishonestly induced PW1 to deliver Rs.1,45,000/­ to him, and committed theft of such amount from his brother's account. 

10. POINT No.3:

I)After considering the entire evidence produced on behalf of the prosecution, this court is of the opinion that the same is not sufficient to prove the guilt of the accused no.1 for the offences under section 420 and 379 of the Indian Penal Code beyond reasonable doubt. And the points are answered accordingly.

11.In the result, Accused no.1 is found not guilty for the offences under section 420 and 379 of the Indian Penal Code. He is acquitted under section 248(1) of Cr.P.C for the offences under section 420 and 379 of the Indian Penal Code. The bail bonds of the accused no.1 if any shall stand cancelled after expiry of appeal time. The Accused no.1 shall be set at liberty if not required in any other case. The unmarked property i.e., (i) the car bearing no. HR 21 L 2795 being the property seized from the accused no.3 and 4, (ii) copy of Registration certificate of the car bearing no. HR 21 L 2795, (iii) copy of insurance policy of the car bearing no. HR 21 L 2795, (iv) driving license of one Sunil kumar, (v) Copy of Aadhar card of accused no.3, (vi)Copy of Aadhar card of accused no.4, (vii) cash of Rs.5,000/­ seized from accused no.3 and 4, as the case against the accused no.2 to 5 having been separated and alloted a new CC no.493/2019, and as the same is pending against the accused no. 2 to 5, no property order is passed with regard to the same.

Dictated to typist, typed by her and corrected and pronounced by me through

video conferencing, on this the 03 nd day of June 2020 . Sd/­ SK. Shireen

Principal Junior Civil Judge ­cum­

Judicial Magistrate of First Class, Sompeta.

CC 111 of 2018 Date:03-06-2020

JFCM Court, Sompeta 7

Appendix of Evidence

Witness Examined

For Prosecution: For Defence:

PW.1: 28.02.2020/ Majji Trinadh NIL PW.2: 28.02.2020/Pyla Chudamani Reddy PW.3: 28.02.2020/Sadasivuni Ravindra Rao PW.4: 05.03.2020/K. Bhaskara Rao, Sub Inspector of police, Sompeta, (Investigating officer)

Exhibits Marked

For Prosecution: For Defence:

Ex.P1:01.11.2017/Report filed by P.W.1 ­Nil­ Ex.P2:03.11.2017/The relevant portion in the mediators report. Ex.P3:01.11.2017/ First Information Report Ex.P4:01.11.2017/The seizure report

Material Objects:

NIL

Sd/­ SK. Shireen­ SK. Shireen

Principal Junior Civil Judge ­cum­

Judicial Magistrate of First Class, Sompeta.

// True Copy//

Principal Junior Civil Judge ­cum­

Judicial Magistrate of First Class, Sompeta.

CC 111 of 2018 Date:03-06-2020

JFCM Court, Sompeta 8

CALENDAR AND JUDGMENT in CC 111/2018

Calendar Cases tried by the Principal Junior civil Judge ­cum­

Judicial Magistrate of 1 st Class, Sompeta.

Date of Date of Date of Date of Date of Date of Date of

offence Report or Apprehensi Release on Commence Closure of Sentence or

complaint on of bail ment of trial order 

accused trial 

13­09­201701­11­201703­11­2017Under trial28­02­202017­03­202003­06­2020 prisoner Place of Offence At State Bank of India main branch ATM, Sompeta. Explanation for delay Due to non production of witnesses by prosecution in time. (Accused appeared on 15.11.2019 examined under section 239 of Cr.P.C. on 23.01.2020 witnesses produced on 28.02.2020) Calendar Case No.on the file of Principal Junior civil Judge­ Cum­ Judicial Magistrate of I Class Court, Sompeta, in Cr. No. 52/2017, Sompeta P.S. 

CC.No. 111/2018.

Name of the State Represented by Sub Inspector of police, Sompeta Police Station. complainant

Name of the accused Father's/Husband’s AgeReligion/ VillageMandal NameOccupation/ caste

Sandip Kumar S/o Vijay Singh 32 years,DriverBarsiJatanHaryana Village,

Offences : cheating and dishonestly inducing delivery of property under section 420 of Indian Penal Code and punishment for commission of theft under section 379 of Indian Penal Code.

Finding: accused no.1 is found not guilty.

Sentence of order: In the result, Accused no.1 is found not guilty for the offences under section 420 and 379 of the Indian Penal Code. He is acquitted under section 248(1) of Cr.P.C for the offences under section 420 and 379 of the Indian Penal Code. The bail bonds of the accused if any shall stand cancelled after expiry of appeal time. The Accused no.1 shall be set at liberty if not required in any other case. The unmarked property i.e., (i) the car bearing no. HR 21 L 2795 being the property seized from the accused no.3 and 4, (ii) copy of Registration certificate of the car bearing no. HR 21 L 2795, (iii) copy of insurance policy of the car bearing no. HR 21 L 2795, (iv) driving license of one Sunil kumar, (v) Copy of Aadhar card of accused no.3, (vi)Copy of Aadhar card of accused no.4, (vii) cash of Rs.5,000/­ seized from accused no.3 and 4, as the case against the accused no.2 to 5 having been separated and alloted a new CC no.493/2019, and as the CC493/2019 is pending against the accused no. 2 to 5, no property order is passed with regard to the same. Sd/­ SK. Shireen Sd/­ SK. Shireen

Principal Junior Civil Judge ­cum­

Judicial Magistrate of First Class, Sompeta.

Copy Submitted to The Hon'ble I Addl. District and Sessions Judge, Srikakulam, for kind perusal. The superintendent of police, Srikakulam.

// True Copy//

Principal Junior Civil Judge ­cum­

Judicial Magistrate of First Class, Sompeta.

CC 111 of 2018 Date:03-06-2020

JFCM Court, Sompeta 9

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

AT SOMPETA

Present: Smt Sk.Shireen

Judicial Magistrate Of First Class,

Sompeta.

Thursday, the 19 th day of April, 2018.

C.C 116/2017

Between:

State Represented by Sub-Inspector of Police, Mandasa Police Station.

…... Complainant

And:

1.Savara Devisri @ Bhagyasri, D/o Rammurthy, aged 21 years, ST (Savara) by caste, Resident of Kullogam colony, Mandasa Mandal,. Srikakulam District.

2.Savara Rammurthy, S/o late Rangayya, aged 37 years, ST (Savara) by caste, Resident of Kullogam colony, Mandasa Mandal,. Srikakulam District.

3.Savara Neelamma, W/o Rammurthy, aged 32 years, ST (Savara) by caste, Resident of Kullogam colony, Mandasa Mandal,. Srikakulam District.

…... Accused no.1 to 3

This case coming on 16-04-2018 for final hearing before me in the presence of Assistant Public Prosecutor for the State and of Sri S. Nagabushana Rao Advocate for the Accused and upon hearing both sides and having stood over till this day for consideration, this court delivered the following.

JUDGMENT

The Sub- Inspector of Police, Mandasa Police Station laid a charge sheet against the accused for the offenses charged Under Sections 341,323, and 506 r/w 34 of The

Indian Penal Code.

2. The Brief case of the prosecution as per the charge sheet is as follows:

That LW.1-Savara Chandramma and LW.2-Savara Dasarathi daily go to Mandasa 2 on Job purpose and would leave their children at Konkadaputti school. On 21-04-2017 both of them went as usually and left their children at Konkadaputti school. On the same day at about 01-00 p.m. during the lunch hour their children playing at the Tamarind tree, at the backyard of the complainant house, and when all the children left that place, accused NO.1-Savara Devisri of the same village wrongfully restrained LW.5-Savara

Pravallika beat on the chest by hands and pushed her on the floor because of their previous grudges. LW.3-Savara Chukkamma and LW.4-Savara Krishnamurthy witnessed the incident. When LW.1 came by evening and tried to perform the bath to LW.5, LW.5 with crying told that she is having chest pain as accused NO.1 beat her on the chest. On the LW.1 and LW.2 went to the accused house and asked. But the accused NO.2-Savara

Rammurthy, accused NO.3-Savara Neelamma and accused No.1-Savara Devisri threatened them with dire consequences. By threatening with that incident they informed the matter to the village elders, but they didn’t hear the village elders. Therafter L.W.1 and L.W.2 filed a report before L.W.9- Sub inspector of police, Mandasa police station on 24-05-2017.

2. Basing on the report of LW.1 and L.W.2, L.W.9- Y.Ravikiran, Sub Inspector of

Police, Mandasa Police Station registered the First Information Report in Cr.No.22/2017 of Mandasa Police Station Under Sections 341,323 and 506 r/w 34 of the Indian Penal

Code. During investigation, L.W.9 recorded the statements of the witnesses, prepared the scene observation report, and rough sketch of the scene of offense, and obtained the wound certificate of L.W.5 From L.W.8- Dr. Pradeep kumar, Civil assistant surgeon,

Community Health Center, Baruva, After the completion of investigation, filed the charge sheet. Hence, the charge.

3. After appearance of accused no.1 to 3, case copies were furnished to them U/s 207 of Cr.P.C. they were examined U/s 251 of Cr.P.C. and the accusation made under sections 341,323 and 506 r/w 34 of The Indian Penal Code, was Read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

4. In the trial afforded by both parties, prosecution cited 9 witnesses. Examined

P.W1 to PW.6 and the evidence of LW2, LW.3 and LW.6 was given up by the prosecution. Ex.P.1 to and P.5 are marked.

3

5.After completion of prosecution evidence, accused no.1 to 3 were examined

Under section 313 of Criminal Procedure Code, and the Incriminating material in prosecution evidence was read over and explained to them in Telugu for which they denied and reported no defense. No exhibits were marked in “D” series.

6. Heard the Learned Assistant Public Prosecutor and the Learned counsel for the accused.

7. Now the point for determination is:

“Whether the prosecution has proved the guilt of the accused for the offenses

charged Under section 341,323 and 506 r/w 34 of The Indian Penal Code beyond all reasonable doubt?”

8. POINT:

a) On behalf of the prosecution P.W.1 to P.W.6 were examined. Exhibits P.1 to P.5 are marked. P.W.1 Savara Chandramma is the Defacto complainant and P.W.2 Savara

Krishna murthy is the direct witness, P.W.3 Savara Pravallika is the victim, P.W.4 Duvvu

Shyam sundar is the witness present during preparation of scene observation report,

P.W.5 Dr. Pradeep kumar, Civil Assistant Surgeon, Community Health Center, Baruva issued the wound certificate of P.W.3, P.W.6- Y. Ravi kiran, Sub inspector of police,

Mandasa Police Station, registered the First Information Report and conducted

Investigation, and filed the charge sheet.

The evidence of L.W.2 Savara Dasarathi, L.W.3 Savara Chukkamma, L.W.6

Savara Sankararao was given up by the Prosecution.

b)The case of the prosecution is that on 21-04-2017, accused no.1 wrongfully restrained P.W.3 and beat her on her chest, and P.W.3 informed her mother, P.W.1 in the evening on the said day, and P.W.1 questioned accused no.1 for the same, on which accused no.1 to 3 threatened P.W.1. P.W.1 informed the same to the village elders and as the matter was not settled, P.W.1 along with L.W.2, her husband, filed a report before the

Mandasa P.S. on 24-05-2017. P.W.3 was examined by P.W.5 and a wound certificate was 4 issued on 24-05-2017.

c)Admittedly, the incident happened on 21-04-2017 as per the evidence of P.W.1 and P.W.2, and Ex.P.1 was filed on 24-05-2017. There is a delay of approximately 33 days in lodging the First Information report. There are various decisions laid down with regard to the delay in lodging of the FIR as under, which state that:

2010 (1) ALD (Crl.) 231 in I Additional District & Sessions Judge, FAC-II,

Madanapalle v. G.Appaiah (AP)

“Delay in lodging of FIR by itself in each and every case does not become fatal

to prosecution version leading for drawing of an adverse inference against its case

Court may, however, be required to examine version of material witnesses with great care and circumspection After such strict scrutiny, evidence of such witnesses, if

found to be truthful and reliable, Court can safely act upon such evidence

notwithstanding fact that there is some delay in lodging FIR Circumstances, in

instant case, since do not indicate any scope for introducing false, improved or

distorted version because of delay, a few hours delay in lodging FIR, held,

inconsequential.”

In 2009 (2) ALT (Crl.) 64 A.P., Munavath Redia v. State of A.P., wherein it was held that, “The inordinate delay in registering the F.I.R in this case creates any amount of doubt in the mind of the court that the eyewitnesses were introduced only as an after thought. The F.I.R in this case thus looses it's authenticity and in strict sense it is only a statement made during the course of investigation and is hit by section 162 of

Cr.P.C.” and “The reason being the recovery evidence is only a subsidiary evidence and a conviction cannot be rested solely on such evidence, in the absence of any other incriminating evidence indicating involvement of the appellant in commission of the offense”.

In Thulia Kali v. State of Tamil Nadu 1972 Cri.L.J. 1296, it has been held that

“ Delay in lodging the F.I.R. quite often results in embellishment which is a

creature of after thought on account of delay, the report not only gets bereft of the 5 advantage of spontaneity danger creeps in of the introduction of coloured version , exaggerated account on concocted story as a result of deliberation and consultation.

It is therefore, essential that the delay in lodging of the F.I.R should be satisfactorily

explained. When an occurrence is not reported for more than 20 hours after the

occurrence it is unsafe to base conviction upon the evidence. It is therefore necessary that delay in lodging FIR should be satisfactorily explained.”

Taking into consideration the above decisions it is clear that the Delay in lodging the Report before the police is not fatal to the case of prosecution, provided that such delay is sufficiently explained by the evidence of material witnesses to the case. In this regard P.W.1 Deposed that “we informed the same to the elders by name Simhadri and

Ramakrishna and surpanch of our village. And on the advice of the elders the accused did not pay heed to their words. Thereafter, we filed the report before the police.” and she stated in her cross examination that “the police filed the FIR after one month of my report. I was examined by the police on 22-04-2017. the police examined L.W.2 and

P.W.3 on the same day, and P.W.3 was taken to Government Hospital on 22-04-2017.” the version of P.W.1 in her report i.e., Ex.P.1 compared to her cross examination is different, in which she states that the report was lodged on the same day and the FIR was registered after one month. P.W.1 stated in Ex.P.1 that she waited till 24-05-2017 so, that elders would settle the issue. So, it is clear that the evidence of P.W.1 is ambiguous as far as lodging the report on the same day is concerned.

Taking into account the above evidence, this court is of an opinion that the delay in lodging the First Information Report is not properly explained.

d) According to the evidence produced before this court, accused no.1 beat P.W.3 on 21-04-2017. and P.W.3 was sent for medical examination on 24-05-2017, i.e., after filing of the report. Ex.P.3 wound certificate was issued on 24-05-2017.

P.W.5 stated in his evidence that “On 24-05-2017 at 12:30 p.m. I examined P.W.3 and found the following injuries. 1) small superficial abrasion on left side of chest measuring 1 X 1 cm., and 2) small contusion on forehead measuring ½ X ½ cm. Red in colour. According to my opinion the injuries are simple in nature” in his cross examination he deposed that, There is no possibility of sustaining the above injuries by 6 falling on the ground. There may be pain for the above injuries for about one to two days.

The biggest blunder in this case is that Ex.P.3 wound certificate states that “the injury is said to have been caused on 24-05-2017 and to be due to alleged to have been beaten.” the medical examination was done on 24-05-2017, according to P.W.5, however the same was signed by him on 30-05-2017.

If the injury is said to have been caused on 21-04-2017, it might have been healed by 24-05-2017, according to the Opinion of P.W.5, if taken into consideration. However according to the medical examination, the injuries are said have been caused on 24-05- 2017. and Ex.P.3 failed to disclose the age of the said injuries, thereby causing more discrepancy in this case. Ex.P.3 seems to have been prepared either according to the instructions of the party or just mechanically. Hence, Ex.P.3 Cannot be taken into consideration.

e) Coming to the evidence of P.W.3, who is alleged to be the victim and is 5 years old. She deposed that “accused no.1 beat her on her two shoulders and chest, and she was examined by the police after 5 days of the incident. Accused no.1 beat her in the backyard of P.W.1's house, and there was no one else present at the time of the incident.” P.W.3 States that she was beat on her chest and shoulders. However, the injuries as in Ex.P.3 are 1) small superficial abrasion on left side of chest, and 2) small contusion on forehead red in colour.

P.W.2, who is alleged to have witnessed the incident. Deposed that “he saw the accused no.1 pushing the daughter of P.W.1. he stated the same before the police after 5 to 6 days of the alleged incident.” he stated in his cross examination that, the incident happened near kullogam village besides the tamarind tree. And he went there for buying bullocks to the house of L.W.2 Savara Dasarathi. He didnt purchase any. He cannot say the exact date on which police examined him. He does not know what is there in his 161

Cr.P.C. Statement. He was examined at mandasa police station., no one else was present there. However, the evidence of P.W.6 shows that he was examined at the scene of offense, along with L.W.3 and P.W.3.

f) P.W.6, who is the investigating officer in this case stated that he received the 7 report from P.W.1 and L.W.2 on 4-05-2017 at 2.00 p.m. and he deposed about the registration of First Information Report under sections 341, 323, and 506 r/w section 34 of the Indian Penal Code which is marked as Ex.P.4, and preparation of Ex. P.2 Scene

Observation Report, drafting Ex.P.5 Rough Sketch, and about examining P.W.2, L.W.3-

Savara Chukkamma and P.W.3 at the scene of offense, and about serving section 41-A notices on the accused. And filing of charge sheet after completion of investigation.

P.W.6 deposed in his cross examination that L.W.2 and the accused no.2 are brothers, and they are having civil disputes, and Ex.P.1 is filed after one month of the incident. And that P.W.3 was sent for medical examination on 24-05-2017. that he went to the scene of offense at 3.30 p.m. on the same day of report, along with one constable.

That Ex.P.2 was drafted by L.W.6 Savara Sankararao, who is a native of Kullogam village.

P.W.5 who acted as a mediator during the preparation of the scene observation report, deposed that “he saw the scene of offense on 23-04-2017 at 3:30 p.m. at

Kullogam village in the presence of police and L.W.6.” The scene observation report is marked as Ex.P.2 through him.

P.W.6 stated in his cross examination that from Mandasa he went on the motor cycle of P.W.6 to the scene of offense. And again stated that he went on a bus from

Mandasa to Kullogam village. That he went there by 3.00 p.m. and P.W.6 came there by 4:00 or 5:00 p.m. that Ex.P.2 was prepared near the tamarind tree at a distance of 10 feet from house of P.W.1. That he did not state the survey number or boundaries of scene of offense before the police. That Ex.P.2 was drafted by the constable at 3:00 p.m. he does not know when L.W.6 arrived at the scene of offense.

Taking into account the evidence of P.W.4 and P.W.6, With regard to the scene of offense, and With regard to preparation of Ex.P.2, P.W.6 states that the same is prepared by L.W.6 Savara Sankararao, and P.W.4 states that the same is prepared by a constable.

P.W.6 also states that he does not know when L.W.6 arrived at the scene of offense. So, the fact of preparation of Ex.P.2 report in the presence of P.W.6, P.W.4 and L.W.6 is negated by the evidence of P.W.4.

And contrary to P.W.4's evidence, Ex.P.2 also states the boundaries of the scene of offense. According to Ex.P.1, P.2 and P.5 and the evidence of other witnesses, the incident happened near the tamarind tree located near the house of P.W.1. However, 8

P.W.3 deposed that she was beat by accused no.1 in the backyard of her house.

g) The learned counsel for the accused submits that L.W.2 Savara Dasarathi and the accused no.2 are brothers and they are having some civil disputes between them with regard to lands, and P.W.1 filed this case against the accused no.1 to 3 by way of grudge.

And that the case is based on all false allegations. And that P.W.3 was well tutored by her mother and the police, to depose in the said way. And that are several contradictions in the evidence of the prosecution, And that the Prosecution has failed miserably in

Proving the guilt of the accused beyond all reasonable doubt. And the Accused no.1 to 3 deserve acquittal forthwith. P.W.1 and P.W.6 Admitted in their evidence that there are civil disputes between P.W.1, L.W.2 and the accused.

f)After taking into consideration the evidence of P.W.1 to P.W.6, this court is of an opinion that there are several discrepancies in the evidence of P.W.1 to P.W.6, with regard to the scene of offense, filing of report, injuries sustained. And the delay in filing of Ex.P.1 report, also leaves room for possible embellishments in the case of the prosecution, like Ex.P.3.

Hence, in view of the same it is inevitable to hold that the prosecution has miserably failed in proving the guilt of the accused beyond all reasonable doubt. Hence, the point is answered in favour of the Accused no.1 to 3 and against the prosecution.

In the result, The Accused no.1 to 3 are found not guilty for the offenses under sections 341, 323 and 506 r/w section 34 of the Indian Penal Code and they are acquitted under section 248(1) of Cr.P.C. The Accused no.1 to 3 are directed to execute a bond for

Rs. 5000/- each with a single surety as required Under section 437A of Cr.P.C to appear

before the appellate court, if preferred any appeal.

Dictated to typist, typed by her and corrected and pronounced by me in the

open court on this the 19th day of April, 2018.

Judicial Magistrate of First Class,

Sompeta.

9

Appendix of Evidence

Witness Examined

For Prosecution: For Defence:

P.W.1: 21-03-2018-Savara Chandramma-NIL- P.W.2: 21-03-2018-Savara Krishnamurthy P.W.3: 03-04-2018-Savara Pravallika P.W.4: 03-04-2018-Duvvu Shyam Sundar P.W.5: 11-04-2018-Pradeep Kumar, CAS, CHC, Baruva P.W.6: 11-04-2018-Y. Ravi Kiran

Exhibits Marked

For Prosecution: For Defence:

Ex.P1: Report given by PW.1 - NIL- Ex.P2: Scene observation Report Ex.P.3: Wound Certificate Ex.p.4: First Information Report Ex.P.5: Rough Sketch

Material Objects:

-Nil-

Judicial Magistrate of First Class,

Sompeta.

10

CALENDAR AND JUDGMENT

SRIKAKULAM DISTRICT

Calendar Cases tried by the Judl.Magistrate of Ist Class, Sompeta.

Date of offence :21-04-2017 Date of Report or complaint :01-06-2017 Date of Apprehension of accused : 41-A Notice on 24-05-2017 Date of Release on bail : On bail Date of Commencement of trial : 21-03-2018 Date of Close of trial : 11-04-2018 Date of Sentence or order : 19-04-2018 Place of Offence : Tamarind tree back yard of the house of the complainant of Kullogam village Mandasa Mandal. Explanation for delay : Due to non production of witnesses by prosecution in time. Calendar Case No. : 116/2017 on the file of Judl. Magistrate of I Class Court, Sompeta

Name of the complainant : State Represented by sub-Inspector of police, Mandasa.

Name of the Father’s/HusbaAgeReligion VillageMandal accused nd’s Name

Savara Devisri @ Rammurthy21 HinduKullogam Mandasa Bhagyasriyearscolony

Savara late Rangayya37 HinduKullogam Mandasa Rammurthyyearscolony

Savara Neelamma Rammurthy32 HinduKullogam Mandasa yearscolony

Offenses :Under Section 341,323 and 506 r/w 34 of Indian Penal Code. Punishment for wrongful restraint, voluntarily causing hurt and criminal intimidation,

Sentence of order: In the result, The Accused no.1 to 3 are found not guilty for the offenses under sections 341, 323 and 506 r/w section 34 of the Indian Penal Code and they are acquitted under section 248(1) of Cr.P.C. The Accused no.1 to 3 are directed to execute a bond for Rs. 5000/- each with a single surety as required Under section 437A of Cr.P.C to appear before the appellate court, if preferred any appeal.

Judicial Magistrate of First Class,

Sompeta.

Copy Submitted to the Hon'ble I Addl. District and Sessions Judge, Srikakulam.