Sri T. Kesava

1 O.S.No.936/2010, dated 13.03.2017

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

Monday, this the 13th day of March, 2017

Present:: T.Kesava, B.L., III Addl. Junior Civil Judge, Nellore

O.S.No.936 of 2010

Syed Abdul Rahim.... Plaintif

Vs

1.Darsi Hari Krishna

2.Darsi Deepa....Defendants

This suit is coming on 17.01.2017 for final arguments before this court in the presence of Sri D.Chandrasekhar, advocate for the plaintif and Sri K.Penchalaiah, advocate for the defendants and having stood over for consideration till this day, this court delivered the following:

:: JUDGMENT ::

This suit is filed to declare JK wall shown in the plaint plan as joint wall to whichever height it may be raised from ground floor, 1st floor, 2nd floor with consequential relief of permanent injunction to restrain the defendants from causing any damage to the said wall and for grant of mandatory injunction for removal of newly constructed western wall of item No.2 of suit schedule property from north to south and to restore the joint wall width about 18 inches shown in the plaint plan and for costs of the suit.

2. Initially the suit was filed only for declaration and for grant of permanent injunction referred to supra. Subsequently, as per orders in I.A.No.526/2014 the plaintif got amended the plaint and incorporated the relief of mandatory injunction.

3. The averments of the plaint in brief are as follows: (a). Originally item No.1 of suit schedule property to an extent of 24 ankanams consisting 2 constructed portions bearing 2 O.S.No.936/2010, dated 13.03.2017 door Numbers 17/297 and door No.17/298 belonged to one

Vemireddy Sankara Reddy and Vakati Raghava Reddy of Isukupalem village Kovur taluk. Later on the said two persons under a registered sale deed, dated 21.12.1961 sold entire 24 ankanams to one

Beejanbibi. Said Beejanbibi settled eastern half portion of 12 ankanams out of 24 ankanams to her son Pattan Chan Khan under a registered settlement deed, dated 17.06.1978 which is shown as item No.2 in the suit schedule. Subsequently, said Beejanbibi sold remaining western half portion to one Gousunnisa Begum under a registered sale deed, dated 16.05.1979 bearing door No.17/297. The said property is shown as item No.3 in the suit schedule. The said

Gousinnasa Begum died intestate leaving behind the plaintif and his three brothers namely Khadar Basha, Abdul Sattar and Chan Basha as her legal heirs to succeed her estate. One of the brothers of the plaintif by name Chan Basha died in the year 2006.

(b). The property settled in favour of Pathan Chan Khan by

Beeijanbibi under the settlement deed, dated 17.06.1978 was sold to one Raja Krishnaiah under a registered sale deed, dated 19.03.1980 and the said Raja Krishnaiah died on 31.08.1996 intestate. Later on, the defendants purchased the said property from the legal heirs of

Raja Krishnaiah under a registered sale deed, dated 31.07.2009. All the above referred title deeds clearly provides existence of joint wall between item No.2 and 3 of suit schedule properties. This suit is relates to joint wall situated in between door No.17/297 and 17/298 shown as JK in the plaint plan. In the sale deed of the defendants,

dated 31.07.2009 JK joint wall is shown as the western boundary for

item No.2 of suit schedule property.

(c). The plaintif is working at Muscat and during his visit 3 O.S.No.936/2010, dated 13.03.2017 he used to visit and stay in item No.3 of suit schedule property. The owners of item No.2 and 3 suit schedule properties retain their joint right over entire length, breath and height of joint wall. The width of the joint wall is 18 inches. 15 days prior to filing this suit, the defendants without consent of the plaintif removed 3/4th of width of joint wall in some area and some where ranging from 90 to 100 percent from the side of the house bearing door no.17/298 leaving the joint wall of 1 1/2 to 2 inches and occupied the site covered by the removed portion and put up new wall thereon. Due to removal of the joint wall the rain water seeped into the house of plaintif and damaged the furniture and articles. Removing 3/4th of joint wall in the ground floor and attempting to remove the same in the 1st floor the building in door no.297 is being afected.

(d). The defendants are raising height of JK wall in the 1st floor also. In view of the law of land the defendants cannot claim JK wall from ground floor to 2nd floor and in future towards 3rd floor as his exclusive wall. The plaintif protests the acts of the defendants and asked them to maintain the JK wall the defendants with their power and unruly social elements are trying to disturb the possession of the plaintif. The joint wall shall be kept intact and the defendants have no right to reduce the width of the joint wall and to encroach the site of the joint wall. On southern side the defendants removed entire joint wall and encroached into the site of the plaintif.

An advocate commissioner was appointed and he visited the suit premises and filed his report. In his report also he specifically stated that the defendants reduced the width of the joint wall from 4.3 inches to 10.5 inches and now bricks are inserted in the joint house wall and plaintif building roof is damaged. The allegation that the 4 O.S.No.936/2010, dated 13.03.2017 defendants removed 50% joint wall with the consent of brothers of the plaintif namely Khadar Basha and Sattar and that no damage was caused to the plaintif's property are false. After filing this suit, the defendants removed the joint common wall and encroached the site of the joint wall and caused damage to the plaintif's house on the eastern side. Hence, this suit to remove the western wall of their building from north to south from ground floor to 2nd floor and to restore joint common wall width about 18 inches by means of mandatory injunction.

4.The averments of the written statement and

additional written statement of the defendant in brief are as

follows: The defendants admitted the respective title of the parties over item No.2 and 3 of suit schedule properties and also existence of joint wall between item No.2 and 3 of suit schedule properties.

The defendants denied remaining allegations and specifically pleaded that this suit is bad for non-joinder of the brothers of the plaintif who are also co-sharers in item No.3 of the suit schedule property. The plaintif and his brothers are having joint possession over item No.3 of suit schedule properties. In the 1st floor of item

No.3 of suit schedule property one Abdul Sattar who is brother of plaintif is residing with his family and elder brother by name Khadar basha is residing by the side of item No.3 of suit schedule property.

After purchasing item No.2 of suit schedule property by the defendants they approached the Khadar Basha and Abdul Sattar and requested them to permit him to separate the joint wall by way of partition taking 50% each in the same wall. Accordingly both of them on their behalf and on behalf of the plaintif permitted the defendants to cut the half portion of joint wall all along from north to 5 O.S.No.936/2010, dated 13.03.2017 south. Then the defendants constructed a separate wall abutting to their half share in the said wall. The defendants constructed a separate wall in the ground floor and 1st floor. Now the walls in between house of the plaintifs, his brothers and the house of the defendants are separated. After that the plaintif and his brothers constructed a separate wall abducting western wall of the defendants which is newly constructed by them. There is no joint wall on the southern side. The defendants have constructed their building when the constructions were in progress neither the plaintif nor his brothers raised any objection for the same. By removal of 50% of joint wall by the defendants with the consent of the plaintif's brother no damage is caused to item No.2 of suit schedule property or for remaining wall. The defendants never occupied any site of the plaintif or his brothers. The defendants even prior to filing this suit had already constructed ground floor and 1st floor of the building.

Therefore, the question of the defendants started constructing the house in item No.2 of suit schedule property after filing the suit and removing a part of joint wall during the pendency of the suit does not arise. The contents of the report of the advocate commissioner cannot be taken as a pleading and the report of the advocate commissioner is not correct. The plaintif herein filed a suit for declaration that JK wall to be joint wall to which ever height it may be raised in the ground floor to 2nd floor when the relief sought by him is such the relief of mandatory injunction for removal of wall of the defendant without withdrawing earlier relief of declaration in the original plaint is against the law and suit become infractuous. This suit is barred by limitation and there is no cause of action to file this suit. Therefore, the defendants prayed for dismissal of the suit with 6 O.S.No.936/2010, dated 13.03.2017 costs.

5.Based on the pleadings of both the parties, initially this court framed the following issues 1)Whether the this suit is bad for non-joinder of necessary parties ?

2)Whether the plaintiff is entitled for declaration that JK wall to be joint wall as prayed for?

3)Whether the plaintiff is entitled for permanent injunction as prayed for?

4) To what relief?

6.After the plaintif got amended the plaint incorporating the relief of mandatory injunction an additional issue was framed as

“W hether the plaintiff is entitled for mandatory injunction as

prayed for”?

7.To prove the case of the plaintif, the plaintif himself examined as PW1 besides examining one Shaik Masthan saheb, the advocate commissioner by name V.Dinesh and the Municipal Town

Planning Officer as PW2 to PW4 respectively. In support of the case of the plaintif, he got marked Ex.A1 to Ex.A9. In the evidence of advocate commissioner Ex.C1 to Ex.C5 are marked. In the evidence of PW4 Ex.X1 to Ex.X3 are marked.

8.To prove the case of the defendants, 1st defendant himself examined as DW1 besides examining his elder brother by name Darsi Venkata Jaya Prakash as DW2. No documents are marked on behalf of the defendants.

9. Both parties filed their written arguments besides submitting oral arguments.

7 O.S.No.936/2010, dated 13.03.2017

10. Perused the record.

11. Issue No.2: The admitted case of both the parties is that originally an extent of 24 ankanams comprising two constructed portions bearing door No.17/297 (new door No.17/538 renumbered

as 17/444) and 17/298 new door No.17/445 belonged to Vemireddy

Sankar Reddy and Vakati Raghava Reddy of Isakapalem village,

Kovur Taluq. The said two persons sold above 24 ankanams which is shown as item No.1 to one Beejanbibi under Ex.A1 registered sale deed on 21.12.1961. Subsequently, said Beejanbibi settled eastern half portion which is shown as item No.2 suit schedule property i.e., 12 ankanams out of 24 ankanams in favour of her son by name

Patan Chan Khan under Ex.A2 registered settlement deed, dated 17.06.1978 and retained western half portion for her use and enjoyment. Thereafter said Beejanbibi sold western half portion retained by her which is shown as item No.3 of suit schedule property to one Gousunnisa begum, who is mother of the plaintif, under a registered sale deed, dated 16.05.1979. It is also admitted that said Ghosunissa begum died intestate leaving behind the plaintif and his three brothers to succeed her estate. One of the brother of the plaintif by name Chan Basha died in the year 2006. It is also admitted that eastern half portion settled in favour of Patan

Chan Khan by Beejanbibi was sold to one Raja Krishnaiah under

Ex.A4 on 19.03.1980. The said Raja Krishnaiah died intestate on 31.08.1996 and his legal heirs sold item No.2 of suit schedule property to the defendants under a registered sale deed, dated 31.07.2007 and delivered the possession of it to them. It is also admitted by both the parties that in all the above referred documents, it is mentioned that the western boundary for the 8 O.S.No.936/2010, dated 13.03.2017 defendants and eastern boundary for the plaintif is shown as joint wall belonged to both the defendants and the plaintif. Therefore, from the admitted case of both the parties, it makes clear that there is no dispute regarding the right and title of both the parties, in respect of their respective properties shown as item No.2 and 3 of suit schedule properties and also existence of joint wall shown as JK in between item No.2 and 3 of plaint schedule properties.

12.It is the case of the defendants that the plaintif has two brothers namely Syed Khadar Basha and Abdul Sattar and they got joint right along with the plaintif over item No.3 of suit schedule property. It is also not in dispute regarding the brothers of the plaintifs having right over item No.3 of suit schedule property and it is not specifically denied by the plaintif. He admitted that his brothers are also co-owners or co-sharers in item No.3 of suit schedule property. Therefore, from the above case it makes clear that the issue between the parties is only in respect of JK joint wall situated in between the item Nos.2 and 3 of suit schedule property.

13.The plaintif sought for declaration that the wall shown as JK in the plaint plan as joint wall to which ever heights it may raised from ground floor to 2nd floor. Admittedly in Ex.A6 sale deed too, standing in the name of defendants, the western boundary for their property is shown as joint wall of the plaintif and the defendants. The defendants are also admitted that in the said joint wall the defendants, the plaintif and his two brothers namely Khadar

Basha and Abdul Sattar got joint right over the same. Therefore, there is no dispute regarding JK wall being the joint wall of the plaintif and the defendants.

14.Regarding the width of joint wall is concerned the 9 O.S.No.936/2010, dated 13.03.2017 plaintif would contend that it is width about 18 inches and length about 45 feet. The defendants pleaded that there are no any kind of evidence disclosing the width of joint wall and its length in any of the documents filed by the plaintif. The evidence of Pws.1 to 3 gives some assistance to gather the width of the joint wall. Pws.1 to 3 in their evidence they categorically stated that the width of the joint wall is about 18 inches and length about 45 feet. Though the defendants disputed the width being the 18 feet, in the cross- examination of PW1 he suggested a question to PW1 for which PW1 stated as “it is true that our wall and the wall of the

defendants is width about 9 inches each in total 18 inches

touching to one another formed as joint wall”. Therefore, from the suggestion put by the advocate for defendants in the cross- examination of PW1 and also existence of joint wall it makes clear that the width of the joint wall is about 18 inches. Therefore, in view of the aforesaid discussions, it makes clear that the wall shown as JK in the plaint plan is a joint wall of both the plaintif and the defendant and it's width is 18 inches and the plaintif is entitled declaration of JK wall as joint wall of the plaintif and the defendants.

Accordingly, this issue is answered in favour of the plaintif against the defendants.

15. Additional Issue: While the matter is coming up for trail the plaintif got amended the plaint and incorporated the relief of the mandatory injunction to remove the newly constructed western house wall of the defendants and to restore the joint old wall width about 18 inches. The plaintif in his pleadings categorically pleaded that the defendants removed 3/4th of joint wall in some place and 92 to 100 percent in the remaining areas in the ground 10 O.S.No.936/2010, dated 13.03.2017 floor and 1st floor of the plaintif's building. During the suit an advocate commissioner was appointed and he noted down the width of the joint wall and it discloses that the defendants removed major part of the joint wall and damaged the plaintif's house. Therefore, he sought for restoring the joint wall to his original condition.,

16. The defendants would contend that with the consent of two brothers of the plaintif namely Abdul Sattar and Khadar

Basha the defendants removed 50% of the joint wall and constructed his building without any damage to the plaintif's property. This suit is not maintainable without impleading the brothers of the plaintif who also claims to be joint owners of the suit property. The brother of the plaintif by name Abdul Sattar, a practicing advocate, is residing in the 1st floor of the suit property and with his consent the defendants cut 50% of the old wall and constructed their building touching to the old wall. Therefore, the defendants prayed for dismissal of the suit with costs.

17. To prove the case of the plaintif, the plaintif himself examined as PW1 besides examining one Shaik Masthan Saheb a third party to the suit and an advocate commissioner by name

V.Dinesh as PW2 and 3. In the evidence of PW1 he reiterated what all he pleaded in the plaint. He categorically stated that he was in

Maskat till the year 2000 and returned to India in the year 2000 itself and resided in the suit property for about 8 years and thereafter he resided for some time in Gudur and now he is residing in Hyderabad.

PW2 deposed that elder brother of the plaintif by name Abdul Sattar is residing in the 1st floor of suit property and his another brother is residing in Nellore town itself. Therefore, this makes clear that this 11 O.S.No.936/2010, dated 13.03.2017 suit is filed without impleading the brothers of the plaintif, though they got joint wall over item No.3 of the suit schedule property and also joint wall. Admittedly, the plaintif is not disputing or denying the right of his remaining two brothers over item No.3 of suit schedule property but his claim is that his right over the joint wall is afected as the defendants by removing the joint wall damaged his wall extensively, therefore, he filed this suit. Since the plaintif has not denied the right or share of his brothers over the suit schedule property it is not necessary to implead them as parties to the suit.

Therefore, the contention of the defendants that this suit is bad for non-joinder of brothers of the plaintif is not sustainable.

18. Admittedly, the house of the plaintif is old one.

According, to the sale deed the defendant purchased vacant site and they started constructing a new house on obtaining permission from municipal authorities. During pendency of the suit an advocate commissioner was appointed as per orders in IA.No.1130/2010 and he noted down the physical features of the suit property and filed this suit and he also filed photographs along with negatives.

According to the report filed by the advocate commissioner the house of the plaintif is an old house aged about 100 years and in the ground floor to the eastern side wall racks are damaged and western newly constructed wall of the defendants is clearly visible from inside of the plaintifs house. The width of the racks wall is reduced extensively. Similarly in the 1st floor and also in kitchen and bath room the western wall of the defendants is protruding in to the plaintif house.

19. PW3 in his evidence he categorically stated that the house of the plaintif consists of ground floor, 1st floor and 2nd floor.

12 O.S.No.936/2010, dated 13.03.2017 During his inspection, construction of the ground floor and 1st floor of the defendants building was completed and 2nd floor construction was under progress. There are two almirahs in the ground floor of the house of the plaintif and two racks of the almirah in the 1st floor the brick construction is newly constructed one and it is projected from newly constructed western wall of the defendants. The width of the inner measurement of almirah was reduced from 10.5 inches to 4.5 inches. He also stated that there are cracks on the eastern wall of the plaintifs. He stated that there was damage to the eastern wall of the plaintif house due to the construction on the western wall of the defendant. He further deposed that there is no gap on the western side of defendant house and the defendant raised the wall completely. The photographs filed by the advocate commissioner and the photographs filed by the plaintif marked as Ex.C9 clearly indicate that in the ground floor the defendant raised wall on the water tub of the plaintif and also there is damage to the almirah in which the newly constructed wall on the western side of the defendant is protruding into the plaintif house. There are traces of leakage of rain water on the eastern wall of the plaintifs due to construction raised by the defendant. Therefore, the commissioner report and photographs annexed to the report clearly go to show that the width of the joint wall was reduced to 90 to 100 percent and the projections from western outer wall of the defendants house are protruding into the plaintif's house. Admittedly, the defendants started construction after obtaining approved plan from Municipal

Corporation Nellore.

20. The plaintif got summoned the Town Planning

Officer and examined him as PW4. According to Ex.X2 the approved 13 O.S.No.936/2010, dated 13.03.2017 plan of the defendants house the defendant shall left 0.45 meters space on the western side of their house towards the plaintif house.

On the contrary without leaving any space he constructed a building by removing joint wall. PW4 in his evidence categorically stated that the plaintif filed an application regarding deviations made by the defendant and Municipal authorities noted the deviations and subsequently they regularised the deviations under BPS scheme.

Though the defendant got regularised the deviations through proceedings by Municipal Corporation, Nellore on 07.06.2016 the same cannot absolve his liability to remove structures raised by him removing the joint wall. The defendant went to the extent of filing a suit against a Municipal Corporation, Nellore and obtaining injunction against them for raising construction deviating approved plan.

Therefore, it appears that the defendant with well designed plan filed a suit against the Municipal Corporation, Nellore in

O.S.No.490/2011 on the file of 1st Addl. Senior Civil Judge's court,

Nellore and on obtaining injunction order he completed the construction. Therefore, subsequent regularisation by the Municipal

Corporation, Nellore does not take away the right of the plaintif to get the illegal constructions removed from suit schedule property.

21.The learned counsel for the defendants would contend that since the amendment to incorporate the relief of mandatory injunction is sought after 4 1/2 years after filing the suit, this suit is barred by limitation. Admittedly the advocate commissioner visited the suit property on 11.02.2011 even by that date the construction of defendants building was going on. Subsequently, the plaintif filed an application to amend the pleadings in the year 2014. There is no any specific date given by the defendants when they completed 14 O.S.No.936/2010, dated 13.03.2017 construction of their building. From the report of advocate commissioner, it makes clear that the construction of the building of the defendants was under progress even by the date of his visit.

Therefore, this application filed by the plaintif for amendment of plaint to incorporate the relief of mandatory injunction was filed within the limitation period and the suit is for mandatory injunction is in within limitation.

22. The learned counsel for the defendant No.1 would contend that he Cheslied joint wall with the consent of the brothers of the plaintif. Admittedly no material has been brought on record to prove that the joint wall was removed with the consent of the brothers of the plaintif. Even if it is presumed for moment that the joint wall was removed with the consent of the brothers of the plaintif yet the removing of joint wall and subsequent construction should not cause any damage to the plaintifs' property. On the contrary, the report filed by the advocate commissioner and also the photographs filed in this suit are clearly disclosing that the western outer wall of the defendants is completely protruding into the plaintif house and in the kitchen the wall of the plaintif was completely removed and new wall was constructed by the defendant. Therefore, under these circumstances the contention of the defendants that they removed the joint wall with the consent of the plaintif’s brother is not believable,

23. Further the defendants would contend that by removing the western outer wall of the defendants, entire building of the defendants will be collapsed. Merely because that by removing western outer wall of the defendants, his house would be collapsed does not deserve any kind of sympathies in as much as the right of 15 O.S.No.936/2010, dated 13.03.2017 the plaintif has been curtailed to use his joint wall and by raising western outer wall of the defendants they caused extensive damage to the plaintif’s house. Therefore, the defendants are liable to remove the western outer wall of their house and to restore the old wall. Accordingly this issue is answered in favour of the plaintif against the defendants.

24. Issue No.1: The defendants would contend this suit is bad for non-joinder of brother of the plaintif. As referred to in the preceding issue the plaintif has not denied the right, title and share of his brothers and this suit is only for restoring the joint wall. In this suit the presence of brothers of the plaintif is not necessary, therefore, this suit is not hit by non-joinder of necessary parties.

Accordingly, this issue is answered in favour of the plaintif against the defendants.

25. Issue No.3: Admittedly the defendants constructed a western wall of their house by removing some part of joint wall.

Subsequently, the plaintif got amended the plaint and incorporated the relief of mandatory injunction to restore the joint wall, therefore as the defendants had already raised wall by removing the joint wall this issue became redundant and an injunction cannot be passed as the defendants have already raised western wall of their house.

Accordingly, this issue is answered.

26. Issue No.4 : In view of issues 1, 2 and additional issue are answered in favour of the plaintif, this suit is to be decreed with costs.

27. In the result, this suit is decreed with costs

declaring the JK wall shown in the plaint plan as joint wall of

the plaintiff, his brothers and the defendant and further the

16 O.S.No.936/2010, dated 13.03.2017

defendants are hereby directed by mandatory injunction to

remove the western wall of their house shown in item No.2

of suit schedule property and restore the joint wall width

about 18 inches as shown in the plaint plan within 60 days

from the date of this judgment else the plaintiff is entitled to

get the wall restored through due process of law.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 13th day of March, 2017

III ADDL. JUNIOR CIVIL JUDGE,

Nellore.

Appendix of evidence

Witnesses examined for

Plaintiff:- Defendants:

PW1: Syed Abdul Raheem DW1:D.Hari Krishna PW2: Shaik Masthan Saheb DW2:Darsi Venkata Jaya Prakash PW3: V.Dinesh PW4: V.Sudhakar

Exhibits marked for plaintiff:

Ex.A1:Certified copy of registered sale deed, dated 21.12.1961 Ex.A2:Certified copy of registered settlement deed, dated 17.06.1978 Ex.A3:Certified copy of sale deed, dated 16.05.1979 Ex.A4:Photographs 9 number with CD Ex.A5:Rough sketch Ex.A6:Certified copy of sale deed, dated 30.07.2009 Ex.A7:Certified copy of approved plan dated 30.09.2010 Ex.A8:Endorsement given by Town Plan Inspector, dated 06.10.2015 under Right to Information Act Ex.A9:Photographs 16 in number with C.D.

Exhibits marked for defendants: -NIL-

Exhibits marked through PW3:

Ex.C1:Notice, dated 11.02.2011 Ex.C2:Commissioner report Ex.C3: Rough sketch Ex.C4: Photographs 36 in number and compact disk Ex.C5: Receipt issued by the Madina Digital studios

Exhibits marked through PW4:

17 O.S.No.936/2010, dated 13.03.2017 Ex.X1: Endorsement issued by Town Planning supervisor,

dated 06.10.2015 in Roc.No.8383/2015/G4.

Ex.X2: Municipal plan and proceedings of defendant’s house in BA No.1178/2010/G4, dated 30.09.2010.

Ex.X3: Inspection report for the houses of the plaintif and the defendant bearing Nos.17/444 and 17/445 respectively issued by CPO, ACP and TPO of Municipal Corporation, Nellore.

III A.J.C.J.,

NLR.

1 O.S.No.118 of 2013

IN THE COURT OF THE PRL. JUNIOR CIVIL JUDGE, NELLORE

Thursday this the 22nd day of March, 2018

Present: - Sri. T. Kesava, Prl. Junior Civil Judge, Nellore

O.S.No.118 of 2013

1. Yerra Srinivasulu Naidu.

2. Yerra Madhavi..... Plaintiffs

Vs

1. The Commissioner, Nellore Municipal Corporation, Nellore.

2. Kilari Janardhan Naidu.… Defendants (Added as per orders in IA No. 324/2013 dated. 6.12.2016)

This suit is coming on 8.2.2018 for final hearing before me in the presence of Sri K. Uma Sankar, Advocate for plaintiffs and Sri.S. Sreeramulu,

Advocate for the defendant No.1 and Sri. SPSR Vijaya Saradhi,Advocate for defendant No.2 and having stood over for consideration till this day, this

Court delivered the following:

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

Initially this suit was filed for grant of permanent injunction restraining the Municipal Corporation Nellore and its officials from interfering with the possession of the plaintiffs over suit schedule property and for cost of the suit. During the suit the defendant No.2 who is third party to the suit was impleaded as party to the suit as per orders in I.A.No.324 of 2013 dated 6-12-2016.

2.The averments of plaint and rejoinder of the plaintiffs in brief are as follows:- The plaintiff No.1 purchased suit schedule property which is a bunk in the year 2005 from defendant No.2 with the funds of plaintiff No.2 and they have been running cigarettes, Killi and

Fancy items in the said bunk. The said bunk is on Municipal site and from the date of purchase the plaintiffs are in possession and enjoyment of it. The plaintiffs obtained electricity facility from neighboring shop. While so, the neighboring shop owner with his men and political power making hectic efforts to dispossess the plaintiffs from suit schedule property and to 2 O.S.No.118 of 2013 demolish the bunk which is on public site. Therefore, the plaintiffs filed this suit for grant of permanent injunction against the defendants. The plaintiffs also filed rejoinder after defendant No.2 was added as party to the suit and they denied all the allegations in the written statement of defendant No.2.

they pleaded that O.S.No.330/2013 was decreed in favour of sons of defendant No.2 and O.S.No.51/2013 on the file of III Addl. Junior Civil Judge’s

Court, Nellore was dismissed as it was not necessary and again against which no appeal is preferred. The plaintiff No.1 and his brother preferred appeal in

A.S.No.79/2016 on the file of III Addl. District Court, Nellore against decree

and Judgment in O.S.No.330/2013. Though no relief is claimed against defendant No.2, the defendant No.2 filed written statement with false allegations. Hence, this suit.

3.The averments of written statement of Defendant

No.1 in brief are as follows:-The defendant No.1 pleaded that he is not aware whether the plaintiff No.1 purchased suit schedule bunk from defendant No.2 in the year 2005. The defendant No.1 admitted that the suit schedule bunk situated on the site of defendant No.1 and the plaintiffs are selling pan, cigarette and fancy item in the said bunk. After obtaining no objection certificate the plaintiffs are paying encroachment fee to the defendant No.1. On enquiry the defendant No.1 came to know that the plaintiffs are running bunk since 8 years without paying any encroachment fee. The defendant No.1 is not trying to remove or demolish the bunk above referred and he has every right to remove the bunk if the public at large demands or it will cause any inconvenience to the public. Therefore, the defendant No.1 prayed for dismissal of the suit with costs.

4.The averments of the written statement of the defendant No.2 in brief are as follows:- The defendant No.2 denied all the allegations in the plaint and specifically pleaded that the defendant No.2 3 O.S.No.118 of 2013 and his parents were running cool drink shop since 45 years at

Jonnalagaddavari Street, near Radha Theater, Nellore. Later on, he purchased said shop room in the name of his sons and has been running cool drink and killi bunk in the site between south of their shop and

Jonnalagaddavari street in road margin. They have been paying encroachment fee regularly. The plaintiff No.1 and his brother joined as workers in the cool drink shop and suit schedule property about 14 years back. As defendant No.2 was busy in his cultivation having belief on the plaintiffs and his brothers entrusted the business of Killi Bunk and cool drink shop to them. Taking advantage of the same, the plaintiff No.1 and his brother misappropriated income derived from cool drink shop and bunk of defendant No.2 and his son as such in the month of November, 2011 when the defendant No.2 questioned them, they gave evasive reply. Then the defendant No.2 removed them from their service in the month of December, 2011 and settled their wages on 31-1-2012. Boring grudge on the defendant

NO.2, the plaintiff No.1 and his brother damaged the bunk of defendant No.2 in the mid night and proclaimed that they would occupy the said bunk, as such the defendant No.2 and his sons filed a suit in O.S.No.51/2013 on the file of III Addl. Junior Civil Judge's Court, Nellore and obtained ad interim injunction. As a counter the plaintiffs filed a criminal case in Cr.No.33/2013 against the defendant No.2 through plaintiff No.2 and the said case on full trail ended in acquittal. When the defendant No.2 was busy in obtaining bail in said criminal case the plaintiffs violated the interim injunction in

I.A.No.84/2013 in O.S.No.51/2013 trespassed into Killi bunk and got it remodeled by changing physical features. The Defendant No.2 used to pay encroachment fee to the Municipal Corporation, Nellore. The sons of defendant No.2 filed a suit in O.S.No.330/2013 for declaration and for mandatory injunction and the said suit was decreed against the plaintiffs herein. The plaintiffs filed this suit with false allegations against Municipal

Corporation, Nellore only to get permanent injunction in respect of Kill bunk 4 O.S.No.118 of 2013 of defendant No.2 without impleading defendant No.2 and his sons as party to the suit. The sons of defendant No.2 also filed E.P in O.S.No.330/2013 to evict the plaintiffs from the bunk and the same is pending. There is no case of action to file this suit and this suit is liable to be dismissed with costs.

5.Based on pleading of both the parties the following issues are framed for trail.

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

2) To what relief ?

6.To prove the case of plaintiffs, the plaintiff No.1 himself examined as PW1 besides examining one Kanwal Juneja and the Advocate

Commissioner as PW2 and PW3 respectively. The plaintiffs got marked Ex.A1 and A2 through PW1 and Ex.C1 to C4 through PW3.

7.To prove the case of defendants, the defendant No.2 himself examined as DW1 and got marked Ex.B1 to B4.

8.Heard both sides perused the record.

9. Issue No.1:- The admitted case of both the parties is that the defendant No.2 purchased a shop room bearing Door No.16/II/572 situated at

Jonnalagaddavari street and Trunk road in the name of his sons namely Kilari

Dilip chowdary and Kilari Dinesh Chowdary from one Sarveypalli Appala

Lakshmi Narasimma under a registered sale deed dated 15-3-1999. Since the date of purchased in the ground floor the defendant No.2 was running cool drink shop under name and style as Sivaji cool drinks and first floor was let out to K. V. Tailors. Subsequently, the ground floor was let out for running

Pipe Traders under name as D.A. Pipe Traders as such the defendant No.2 shifted his cool drink shop to the southern side of his property ie, on to the road margin situated in between Jonnalagaddavari street and his southern 5 O.S.No.118 of 2013 outer wall of his shop. It is also admitted that he also established a bunk on south east corner of his building in the road margin in open site towards

Jonnalagaddavari street. Therefore there is no dispute regarding the defendant No.2 establishing Shivaji Cool Drink shop and road margin abutting to building of his sons and disputed killi bunk on south east corner of the building on road margin in between Jonnalagaddavari street and D.A.Pipe

Traders underneath the projections of the roof of the defendant No.2 building.

Therefore, there is no dispute regarding identity and location of suit property.

10.It is the specific case of the plaintiffs that they purchased

Killi bunk in the year 2005 from defendant No.2 and they have been running cigarettes, Killis and fancy items in the said bunk which was erected on the site of Municipal Corporation. They further pleaded that they have been in possession and enjoyment of it with absolute rights and they also obtained electricity service connection for the said bunk after obtaining no objection certificate from defendant No.1. The plaintiffs have been paying tax to the

Municipal corporation Nellore but the Municipal corporation, Nellore at the influence of neighboring shop owner is trying to evict the plaintiffs from suit property, hence, this suit.

11.The defendant No.1 in his written statement categorically admitted that the plaintiffs are running bunk in the suit schedule property and they issued no objection certificate for obtaining electricity service connection. Further, the defendant pleaded that they are not trying to demolish the bunk but they got right to remove the bunk if public at large demands for removal of the said bunk on the ground of inconvenience.

12.Per contra, the defendant No.2 in his pleadings categorically pleaded that the plaintiff No.1 and his brother by name

Narayana joined as workers in his shop about fourteen years back. As 6 O.S.No.118 of 2013 defendant No.2 engaged in his cultivation and he was busy with his business he entrusted the business in Killi bunk and cool drink shop to the plaintiff

No.1 and his brother but they misappropriated income derived from those two shops as such the defendant No.2 removed them from service in the month of December, 2012 and settled their accounts. When the plaintiffs tried to demolish the bunk the defendant No.2 filed a suit in O.S.No.51/2013 and obtained ad interim injunction. As a counter blast the plaintiff No.1 through his wife got lodged a false complaint in Cr.No.33/2013 against defendant No.2 for offence u/sec 354 and 326 of IPC and the same was ended in acquittal after trail. While the defendant No.2 was busy in obtaining bail in said criminal case the plaintiff No1 and his brother violated orders of Injunction and trespassed into suit schedule property. The suit filed by sons of defendant No.2 in O.S.No.330/2013 for removal of Killi bunk was decreed and in that connection they filed an E.P and the same is pending.

Therefore, there is no cause of action to file this suit and this suit is liable to be dismissed.

13.In view of rival contentions of both the parties, it makes clear that the plaintiffs and the defendants admitted that the defendant No.2 put a bunk in the open space ie., in the road margin situated in between the shop of his sons and Jonnalagaddavari street, Nellore under roof projections of the shop of sons of defendant No.2. Therefore, there is no dispute regarding setting up of bunk by defendant No.2 in the suit schedule property.

The plaintiffs would contend that they purchased the bunk from defendant

No.2 in the year 2005 whereas the defendant No.2 would contend that they occupied the bunk when the defendant No.2 was away from suit schedule property and he was busy in obtaining the bail in connection with complaint lodged by plaintiff no.2. Therefore, under these circumstances, now it is to be seen whether the plaintiffs are trespassers and they are entitled any injunction as prayed for.

7 O.S.No.118 of 2013

14.Admittedly, as per schedule appended to the plaint, suit schedule property is shown as bunk situated to an extent of 1/5 ankansms located on southern side of D.A. Pipe Traders building owned by sons of defendant No.2. Admittedly, the suit schedule property is located on the road margin abutting to the shop of sons of defendant No.2.

15.To prove the case of plaintiffs, the plaintiff No.1 himself examined as PW1 besides examining his neighboring shop owner and

Advocate commissioner as PW2 and PW3. PW1 in his evidence he reiterated what all he pleaded in the plaint. According to the evidence of PW1, he purchased suit schedule property from defendant No.2 in the year 2005 and since then the plaintiffs have been running cigarette and Killi bunk in it. In the cross-examination of PW1, he categorically admitted that the defendant

No.2 after closing shutter door on southern side of his shop towards

Jonnalagaddavari street, established cool drink shop and killi bunk on southern side in road margin. Though the plaintiffs in their evidence they categorically stated that they purchased the bunk from defendant No.2 they did not file any document nor adduced any evidence to show that they purchased the bunk from the defendant No.2 in the year 2005. Even in the evidence of PW1 he did not give any particulars as to the sale price and the date of purchase of bunk from defendant No.2. On the other hand in the cross-examination he admitted that the bunk was put up by defendant No.2.

PW2 who is third party to the suit in his cross-examination categorically deposed that the plaintiffs were working in the shop of defendant No.2 since 1994 but they purchased the kill bunk in the year 2005. Admittedly, PW2 categorically deposed that he was not present at the time of alleged transaction between the plaintiffs and defendant No.2 in connection with purchase of Killi bunk. Further, his evidence goes to show that he is residing in a rented premises and it was purchased by relative of defendant No.2 and 8 O.S.No.118 of 2013 eviction proceedings were issued against him. In that connection the defendant No.2 supported his relatives, therefore, the PW2 is giving evidence against defendant No.2 in view of his support given to his relatives for eviction of PW2 cannot be overruled. Even in the written statement of defendant No.1 they stated that the plaintiffs are in possession of bunk since 8 years but they did not produce any record to show that the plaintiffs have been paying necessary tax to Municipal Corporation, Nellore since 8 years.

16.In the evidence of PW1, PW1 categorically admitted that the defendant No.1 was paying necessary encroachment fee to Municipal

Corporation, Nellore till the year 2013 and from the year 2013 the plaintiffs are paying encroachment fee. Further, according to the evidence of PW1 till the year 2013 I.e, till the date of filing this suit the plaintiffs were having electricity supply from the shop of defendant No.2 whereas in the year 2013 after obtaining no objection certificate from defendant No.1 they obtained service connection to the suit schedule bunk. DW1 in his pleadings as well as in his evidence he is consistent that from the beginning he has been paying encroachment fee and electricity charges to the bunk as it is his bunk and the plaintiffs were working under him in the bunk and cool drink shop.

Therefore, the evidence of PW1 and PW2 and the evidence of DW1 it makes clear that till year 2013 when the disputes arose in between the parties, the plaintiffs have no electricity service connection in their name for suit schedule properly nor they paid any encroachment fee to Municipal

Corporation, Nellore. Therefore, had really the plaintiffs purchased the suit schedule property from the defendant No.2 they would have obtained electricity service connection and paid encroachment fee from the year 2005 itself. Admittedly, the defendant No.2 filed O.S.No.51/2013 for grant of permanent injunction on the file of III Addl Junior Civil Judge Court, Nellore against the plaintiff No.1 and his brother and there after this suit is filed against Municipal corporation alone. After filing O.S.No.51/2013 the wife of 9 O.S.No.118 of 2013 plaintiff No.1 lodged a criminal complaint against the defendant No.2 for the offences under section 354 and 326 of IPC. Therefore, from the evidence of both the parties it makes clear that after filing suit in O.S.No.51/2013 alone the plaintiffs thought of obtaining electricity service connection and payment of encroachment fee for suit property.

17.In the absence of any evidence regarding purchasing of bunk by the plaintiffs and the admissions given by PW1 and PW2 regarding the defendant No.2 establishing bunk in suit schedule property makes it clear that the plaintiffs joined in the bunk as workers of defendant No.2 and when the defendant No.2 questioned regarding misappropriation of income derived from the bunk and cool drink shop and after lodging criminal complaint through the wife of plaintiff No.1 the plaintiffs encroaching suit schedule property in the absence of defendant No.2 cannot be overruled. Therefore, the plaintiffs are encroachers in the bunk put by the defendant No.2

18.Admittedly, the defendant No.2 filed a suit in

O.S.No.51/2013 for grant of permanent injunction the said suit was

dismissed as the plaintiffs herein are in possession of suit schedule property.

The sons of defendant No.2 filed O.S.No.330/2013 on the file of III Addl Junior

Civil Judge Court, Nellore for declaration of their easementary right to open

door way towards Jonnalagaddavari street on southern side and for removal of the bunk in suit schedule property on the ground that they have easementary right to use suit schedule property to have access into their building. Said suit was decreed on merits holding that no person can make any structure by encroaching the Public street nor he can claim possession over property on public street as every one or having right to access to the road from his house or building therefore any person can seek for relief of mandatory injunction for removal of structures in public road. Further, it was held that since the property of sons of defendant no.2 is situated in 10 O.S.No.118 of 2013 commercial locality and they have right to open door way on both sides I.e, into G.N.T. road and Jonnalagaddavari street, therefore, nobody can be permitted to occupy the public road and to claim it as belonged to him.

Therefore, as Killi bunk is on road margin depriving the right of passage of owners of building and other public it has to be removed. Since, the suit schedule bunk is on public road though the Municipal corporation admitted the possession of the plaintiffs over the bunk it is not fit case to grant permanent injunction depriving the right of general public to use the public road including the road margins as they wish.

19.Even the defendant No.2 has no right to use the public road and its road margin for his business. Admittedly this suit is filed after the defendant No.2 filed O.S.no51/2013 and obtained interim injunction. This suit is filed initially against Municipal Corporation, Nellore alone though

Municipal Corporation, Nellore has not attempted to remove the bunk and it was the defendant No.2 according to the plaintiffs who tried to remove the bunk. Therefore, it appears that the plaintiffs intended to obtain permanent injunction behind the Municipal Corporation, Nellore without impleading the person from whom they sensed the threat of dispossession. Therefore, the plaintiffs did not approach the Court with clean hands and as the bunk is on the Public road the plaintiffs are not entitled for permanent injunction against

Municipal corporation, Nellore. Accordingly, this is answered in favour of the defendants against the plaintiffs.

20. Issue No.2:- In view of issue No.1 is answered against the plaintiffs, this suit is liable to be dismissed with costs.

In the result, this suit is dismissed with costs.

Typed my dictation, corrected and pronounced by me in the open court on this the 22nd day of March, 2018.

Prl. Junior Civil Judge, Nellore 11 O.S.No.118 of 2013

Appendix of evidence

Witnesses examined

Plaintiffs: Defendants:

PW1: Y. Srinivasulu Naidu. DW1:K. Janardhana Naidu. PW2: Kanwal Juneja. PW3:Smt. P. Jhansy.

DOCUMENTS MARKED

Plaintiffs: Ex.A1: Tax receipt dt.22-2-2013. Ex.A2: Electricity receipt dt.26-2-2013. Through PW3: Ex.C1: Notice dt.10-5-2013. Ex.C2: Rough sketch prepared by Court commissioner. Ex.C3: Photographs with CD 12 in number. Ex.C4: Report. Defendants: Ex.B1: certified copy of Decree in O.S.No.330/2013 on the file of III AJCJ Court, Nellore. Ex.B2: certified copy of Judgment in O.S.No.330/2013 on the file of III AJCJ Court, Nellore. Ex.B3: certified copy of Judgment in SC.No.197/2013 on the file of Assistant

Sessions Judge Court, Nellore.

Ex.B4: Photographs with CD.

PJCJ, Nellore.

1 C.C.No.34/2016 C.C.No.613/2012

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE,

NELLORE, SPSR NELLORE DISTRICT.

Thursday, this the 29th day of March, 2018

Present : Sri T.Kesava,

Pricipal Junior Civil Judge, Nellore.

CALENDER CASE No.34/2016

( Old Case No.515/2015 on the file of V AJMFC Court, Nellore)

Between: M/s Shriram Transport Finance Company Limited, Rep.by its Branch Manager cum GPA Holder, Sr.Recovery Executive Mr. Thatiboina Kondalarao

Ritwik Enclave, A.K.Nagar, Nellore – 4. ....Complainant

And

M. Vijaya Kumar,S/o Ramanaiah, aged years, R/o D.No.60, South Railway quarters, Nellore,

SPSR Nellore District. ... Accused

This case is coming on 22.03.2018 for arguments before in the presence of Sri P. Sreenivasa Rao, Advocate for the complainant and Sri Mali Reddy. S.,learned counsel for accused and having stood over till this day for consider, this court delivered the following:

::JUDGMENT::

This complaint is filed under section 190 Cr.P.C. for offence punishable under section 138 read with 142 of Negotiable instrument Act (in short NI Act) against the accused.

2. The case of the complainant in brief is as follows:

a). The complainant is carrying on business in the state of

Andhra Pradesh having it's branch of office at Nellore. The complainant company is providing financial support to the public under Hypothecation for purchasing vehicles. In that process the accused entered into an agreement with a complainant for purchase of vehicle bearing No. AP 26 AK 0497 and executed an agreement on 13.10.2011 for total value of Rs4,20,397/-. The said total amount includes Rs.2,51,585/- advance amount and a sum of Rs.1,68,812/- 2 C.C.No.34/2016 C.C.No.613/2012 towards finance amount. The total amount was payable in 48 monthly installments. 1st installment is at Rs.10,186/- and remaining installments i.e., installment No.2 to 47 are Rs.8,728/- and last installment at the rate of Rs.8,723/- commencing from 20.11.2011 and ends on 20.10.2015.

b) In spite of repeated demands made by the complainant, the accused was not paying installments regularly. The accused paid a sum of Rs.26,400/- only up to 30-3-2012. He did not pay any amount thereafter. Therefore, the complainant took the vehicle from the custody of the accused and on the said day the vehicle was not in road worthy condition due to poor maintenance. The vehicle was sold for best available market price of Rs.1, 65,000/- on 15-11-2012.

c) Thereafter, on the demand made by the complainant to pay the balance amount the accused issued a cheque for a sum of

Rs.,2,49,000/- drawn on Axis Bank Limited, Nellore on 14.02.2015.

Accordingly, the complainant presented the cheque for collection on 18.02.2015 through its bank i.e., ICICI Bank, Nellore but the same was returned unpaid with a memo “Account closed”. Then the complainant got issued a notice to the accused on 26.02.2015 calling upon the accused to pay the money due under above cheque within 15 days from the date of receipt of the notice. The notice was served on the accused but he failed to pay any amount due under above cheque nor issued any reply. Therefore, the accused having fully aware that the above cheque would not be

honoured, issued cheque to the complainant and therefore, he

3 C.C.No.34/2016 C.C.No.613/2012 committed offence u/s 138 r/w 142 of NI Act. Hence, this complaint.

3. Originally this case was taken on file by the learned V

Addl. Judicial Magistrate of I Class, Nellore for the offence under section 138 read with 142 of N.I.Act and number it as

C.C.No.515/2013. Later on, it was transferred to this court as per the proceedings of the Hon'ble Prl.District Judge, Nellore in Dis.No.

4106/15, dated 29.09.2015 and the same was renumbered as

C.C.No.34/2016.

4. On appearance of the accused the copies of case documents as contemplated under Section 207 Cr.P.C. were furnished to him.

5. The accused was examined under section 251 Cr.P.C.

explaining substance of accusation for the offence 138 read with 142 of N.IAct, for which he pleaded no guilty and claimed to be tried.

6. To prove the case of the complainant, the General Power of attorney of complainant Ulava Lakshman Naidu is examined as

PW1 and got marked Ex.P1 to Ex.P6.

7. After closure of the evidence of complainant witnesses, the accused was examined under section 313 Cr.P.C by explaining incriminating material appeared in the evidence of complainant witnesses for which he stated that he has no complicity with the crime and reported that he has no defence evidence.

8. Heard both sides. Perused the record.

9. Now the point for consideration is 4 C.C.No.34/2016 C.C.No.613/2012

“Whether the complainant has established guilt of the

accused beyond all reasonable doubts for offence

u/s.138 read with 142 of N.I.Act”?

10. POINT:-It is the specific case of the complainant that the accused entered into Hypothecation agreement with the complainant company on 13.10.2011 for purchase of vehicle bearing Nos. AP 26 AK 0497 under Agreement dt. 13.10.2011 the accused availed loan of Rs.2,51,585/- with total liability of

Rs.4,20,397/- payable in 48 monthly installments. The accused was irregular in payment of installments and he paid only Rs.26,400/- only under above agreement towards discharge of loan amount.

The vehicle was repossessed by the complainant and it was sold in auction. The vehicle bearing No. AP 26 AK 0497 was sold at best available market price of Rs.1,65,000 on 15.11.2012 and for payment of remaining balance amount of Rs.2,49,000/- the accused issued Ex.P1 drawn on Axis Bank Limited, Nellore on 14.02.2015.

Subsequently, on 18.02.2015 it was presented for collection but it was returned unpaid with endorsement as account closed. Then the complainant got issued legal notice on 26.02.2015 but the accused having received the notice neither issued replay nor paid any amount due under Ex.P1. Therefore, the accused committed the offence u/s 138 of NI Act and he is liable for punishment.

11. Per contra, the learned counsel for the accused would contend that the PW 1 is not competent to depose on behalf of the complainant and he is not having valid authorization to prosecute the case. Further, at the time of entering into the agreement the complainant obtained signed blank cheque without any date from the accused. The complainant filled up those blanks in the cheque 5 C.C.No.34/2016 C.C.No.613/2012 and filed this complaint. Further, the complainant did not file alleged agreements, statement of account and proceedings regarding conducting of the sale of the vehicle to arrive a just conclusion as to the liability of the accused as on the date of filing of this complaint. Therefore, the accused would contend that he has not committed any offence and the complainant by using blank signed cheque filed this complaint to get wrongful gain and he has not given any cheque on the alleged date.

12. Before adverting to discussion on the case of both parties it is germane to mention necessary requirements to constitute for an offence under section 138 of NI Act. In a case of Jagadeesh

Sangal Vs., Samsheer Singh Gogi reported in ( 2009) 14 SCC

683. TheHon'ble Supreme Court of India noted the following ingredients which are required to be fulfilled.

i). The accused must have drawn a cheque on account maintained by him in the bank for payment of certain amount of money to another person from and out of that account.

ii). The cheque should have been issued for discharge of in whole or in part of any debt or other liability.

iii). That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity which ever is earlier.

iv). That the cheque is returned by the bank either because of amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arrange to be paid from that account by an agreement may with the bank.

v). The payee or holder in due course of the cheque 6 C.C.No.34/2016 C.C.No.613/2012 makes a demand for payment of the said amount of money by giving notice in writing to the drawer of the cheque within one month from the date of receipt of information by him from the bank regarding return of the cheque unpaid.

vi). The drawer of such cheque fails to make payment of the said amount of money to the payee or holder in due course of the cheque within 15 days of receipt of said notice.

13. Being cumulative it is only when all the above ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed the offence under section 138 of

Negotiable Instrument Act.

14. Be that as it may, the accused admitted his signature on Ex.P1. However, it is his plea that Ex.P1 was a blank signed cheque without any date given at the time of availing loan as security to the complainant and the complainant fabricated the same and filed this complaint. In this regard Hon'ble Supreme Court in a case of K.Bhaskaran Vs., Sankaran Vidya Balan reported in (1999) 7 SCC 510 held thatas the signature in cheque is admitted be that of the accused the presumptions envisaged under section 118 of N.I Act can legally be inferred that cheque was drawn for consideration on the date the cheque bears. Section 139 of N.I Act empowers the court to presume that holder of the cheque received it for discharge of any debt or liability. Therefore, since the accused herein admitted his signature in Ex.P1 the presumption under section 118 and 139 of N.IAct can be inferred that Ex.P1 was issued for consideration and for discharge of legally enforceable debt.

7 C.C.No.34/2016 C.C.No.613/2012

15. Further the Hon'ble Supreme Court in a case of

Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441 held that when once the accused admits his signature on the cheque the presumptions under section 118 and 139 of N.I Act come to play and it shall be presumed that the cheque was issued for discharge of legally enforceable debt. Therefore, as stated supra as the accused admitted his signature on Ex.P1 the presumptions above existence of legally enforceable deb shall be drawn in favour of the complainant and the burden of proof is on the accused to rebut those presumptions.

16. It is further relevant to mention here that the presumptions under section 118 and 139 of N.I Act are rebuttable presumptions and the accused can rebut those presumptions by making probable defence which creates doubt on existence of legally enforceable debt. The accused can also rely on material placed by the complainant in order to raise such defence and to discharge his presumptions he need not examining himself as a witness. The standard of proof for rebutting the presumptions under section 139 and 118 of N.I Act is that of preponderance of probabilities but not beyond all reasonable doubt. Therefore, now it is to be seen whether the accused has rebutted those presumptions drawn in favour of the complainant.

17. The admitted case of the both the parties is that the accused entered an agreement with the complainant on 13.10.2011 for purchase of vehicle bearing No. AP 26 AK 0497 for total agreement value of Rs.4,20,397/- payable in 48 monthly 8 C.C.No.34/2016 C.C.No.613/2012 installments. Therefore, there is no dispute regarding existence of agreement between the complainant and the accused for the purchase of vehicle bearing No. AP 26 AK 0497 under above

Hypothecation agreement.

18. It is the specific case of the complainant that the accused paid a sum of Rs.26,400/- only up to 30.03.2012 for discharge of above loan and he was irregular in paying the installments. Admittedly, the complainant has not filed the

Hypothecation agreement referred to supra before this court to arrive a conclusion regarding terms of the agreement. According to the complaint the accused paid a sum of Rs.26,400/- up to 30.03.2012 for the above vehicle.. Admittedly, the complainant did not file statement of account and counter foils of the receipts showing the payments made by the accused towards discharge of loan amount. The statement of account filed by the complainant which is marked as Ex.P5 is not the statement of account reflecting all the transactions and all the payments made by the accused in connection with hypothication agreement and it appears that it is not generated and maintained regularly during the course of business by the complainant company as such Ex.P5 cannot be treated as statement of account giving full details of the transaction and subsequent payments. The statement of account clearly would indicate the amount of money paid by the accused in each installment with dates. It appears that the complainant purposefully did not file the said statement of account,

Hypothecation agreement and counter foils of the receipts showing the payments made by the accused. Therefore, non filing of 9 C.C.No.34/2016 C.C.No.613/2012 Hypothecation of agreement, statement of account and counter foils of receipts would go to root of the case as the documents filed by the complainant are not helpful to arrive exact liability of the accused on alleged date of issuance of Ex.A1.

19. It is the specific case of the complainant that as the accused was not regular in payment of installments, he repossessed the vehicle and sold it at best market price. The complainant filed statement of account marked as Ex.P5 which is self made document by the complainant company and not maintained in regular course of business making entries regarding payments made by the accused. Ex.P5 discloses that the complainant charged expenses, insurance paid by the company, belated payment charges. On these aspects no document is filed by the complainant indicating the amount of money paid by the complainant company towards insurance, expenses incurred and for belated payment charges. Except Ex.P5 a self made document there is no material on record to shown that the vehicle was sold at best selling price and it was not in road worthy condition on the date of sale. PW 1 did not depose that the vehicle was tested by

M.V.I Inspector to ascertain whether the vehicle was not in road worthy condition. The above discussion clearly throws a doubt on the case of complainant regarding they sold the vehicle for the price as referred to in Ex.A5.

20.PW1 in his cross-examination he deposed that they issued prior notice to the accused before conducting the auction of the vehicle on 15-11-2012 and also after conducting the auction.

10 C.C.No.34/2016 C.C.No.613/2012 He further deposed that the vehicle was sold at price of

Rs.1,65,000/- on 15-11-2012. He categorically deposed that he did not file any notice allegedly issued to the accused either before conducting the sale or immediately after completion of the sale.

Admittedly the complainant did not file any receipt or proceedings showing delivery of vehicle to the alleged purchaser on paying

Rs.1,65,000/-. Therefore, in the absence of any documentary proof the self made account statement of the complainant marked as

Ex.P5 cannot be taken into consideration to show that vehicle was sold at best selling price of Rs.1,65,000/-. Therefore, under these circumstances, Ex.P5 cannot be believed and the evidence of PW1 on this aspect is not trustworthy. Thus, non-filing of sale proceedings of vehicle, notices and delivery receipt, renders the case of complainant unbelievable.

21. It is specific case of the accused that PW1 is not competent to give evidence as he is not having any valid authority from the complainant company. In the cross examination of Pw1 he admitted that he got GPA for Branch-I and this transaction relating to Branch II of complainant company wherein one Kondala Rao got

GPA for Branch II. He stated that he was working in complainant company on the date of loan transaction and he had no authorization on the said date to appear and enter the transaction on behalf of the complainant company. It is not the evidence of

PW1 that he has personal knowledge about the loan transaction referred to supra. Therefore, though Ex.P6 relates to Branch II of complainant company, in which the transaction referred above took place and Pw1 has no personal knowledge on the loan transaction 11 C.C.No.34/2016 C.C.No.613/2012 he is not competent to give evidence on the aspects which are not within his personal knowledge. In A.C.Narayana Vs State of

Maharastra, Hon'ble Supreme Court, categorically held that the

General Power of Attorney must have witnessed the transaction as an agent of payee/holder or possess due knowledge regarding said transaction. Therefore, as Pw1 has no personal knowledge about the loan transaction, his evidence can not be taken in to consideration.

22. It is further case of the accused that the complainant company obtained blank signed cheques from the accused at the time of entering into Hypothecation agreement and taking advantage of those cheques the complainant company filled up the same and filed this complaint. To strengthen the case of accused got an admission from Pw1, wherein Pw 1 admitted that the name of payee and the amount in words in Ex.P1 are in different hand writing and ink. It is not the case of the complainant that the accused issued completely filled cheque or the accused filled the amount column and delivered Ex.P1 to them. If really the accused issued filled cheque to the complainant on 14-2-2015 it would have been with hand writing of one person and it must also be with one ink. On the other hand, every part of cheque appears to be in different hand writing and ink. Thus, it appears that Ex.P1 cheque was not issued on 14-2-2015. It is the specific case of the accused that the complainant company obtained blank signed cheque from him at the time of availing loan and taking advantage of said cheque they filled up the blanks and filled this complaint. The complainant admittedly did not file the Hypothication agreement to 12 C.C.No.34/2016 C.C.No.613/2012 ascertain whether his company had obtained any blank signed cheques from the accused or not. They simply filed Ex.P1 cheque and self made statement of account depriving this Court to ascertain actual liability of the accused under Hypothication agreement. Therefore, under these circumstances of the case, it makes clear that the complainant company used blank signed cheque of the accused given at the time of entering into the loan transaction as a security and filed this complaint. Therefore, under this circumstances, it makes clear that Ex.P1 is not the cheque issued by the accused on 14.02.2015 but it was blank signed cheque given at the time of entering into the Hypothecation of agreement between the accused and the complainant and that the complainant subsequently filled up the blanks and filed this complaint.

23. Though, Ex.P1 is drawn the account maintained by the accused in Axis Bank Limited, Nellore the complainant failed to prove the exact amount of liability of the accused as on 14.02.2015.

Further, non filing of loan agreement, statement of account, counter foils of receipts and sale proceedings of the vehicle, would render the case of complainant not believable. Therefore, the complainant fails to establish regarding existence of legally enforcible debt with the accused for a sum of Rs.2.49,000/- and the accused could rebut the presumption under Section 139 of NI Act.

24. In view of the above said discussions, the complainant failed to prove that the accused issued ExP1 on 14.02.2015 for a sum of Rs.2,49,000/-, therefore, the accused is 13 C.C.No.34/2016 C.C.No.613/2012 entitled for acquittal. Accordingly, this point is answered against the complainant in favour of the accused.

25.In the result, the accused is found not guilty

for the offence under section 138 of N.I Act and accordingly

he is acquitted under section 255(1) Cr.P.C. for the offence

under section 138 of N.I Act. The bail bonds of the accused

shall stand cancelled. The accused is directed to execute a

bond under Section 437(A) Cr.P.C.

Typed to my dictation, corrected and pronounced by me in open court, this the 29th day of March, 2018.

PRINCIPAL JUNIOR CIVIL JUDGE,

NELLORE.

APPENDIX OF EVIDENCE

Witnesses examined

FOR COMPLAINANT :FOR ACCUSED:

PW1: Ulava Lakshman Naidu -None-

DOCUMENTS MARKED

FOR COMPLAINANT :

Ex.P1 is the Cheque baring No.058407 dt. 14.02.2015 drawn on Axis Bank, Nellore. . Ex.P2 is the Bank return memo dt. 18.02.2015 Ex.P3 is the office copy of legal notice dt. 26.02.2015. Ex.P4 is the served acknowledgment. Ex.P5 is the statement of account. Ex.P6 is the certified copy of Power of attorney dt. 03.06.2013.

FOR ACCUSED : NIL.

PJCJ, Nellore.

1

IN THE COURT OF THE PRL. JUNIOR CIVIL JUDGE, NELLORE

Wednesday this the 28th day of March, 2018

Present: - Sri. T. Kesava, Prl. Junior Civil Judge, Nellore

O.S.No.466 of 2014

1. Sk. Johni.

2. Kandikatla Jeevan..... Plaintiffs

Vs

1. Podili Dorasanamma.

2. Yandluru Khadaramma.

3. Dammai Sujatha.Defendants

This suit is coming on 21.03.2018 for final hearing before me in the presence of Sri Ch.Naveen, Advocate for plaintiffs and Sri.N. Nagaraju Yadav, Advocate for the defendants and having stood over for consideration till this day, this Court delivered the following:

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

This suit is filed for grant of permanent injuction restraining the defendants, their men and agents from interfering with possession of the plaintiffs over suit schedule property and for cost of the suit.

02.The averments of plaint in brief are as follows:-One

Dammai Venkata Swamy is absolute owner of suit schedule property who had four daughters. He performed their marriages long back by giving financial help at the time of their marriage. Said Venkata Swamy and his wife Masthanamma settled the suit schedule property in the name of plaintiff

No.1 who is their grand son and their elder daughter by name Masthanamma under a registered settlement deed dated 27-3-2014. Since then plaintiffs have been in possession and enjoyment of it with absolute rights. Said

Venkata Swamy has been residing in suit schedule property and he is bed ridden due to ill-health. Dammai Masthanamma died on 8-10-2014 due to ill-health and her estate was succeeded by plaintiff No.2 who is her son. The grand mother of plaintiff No.2 died on 24-10-2014 due to ill-health and the plaintiffs performed all her death ceremonies. Since two years said Venkata 2

Swamy is suffering from paralysis and bed ridden, therefore, the plaintiffs are attending his daily needs and discharging their duties. While so, the defendant No.1 who is working as home guard in the office of D.S.P. Rural

Nellore, high handedly trying to interfere with the possession of the plaintiffs over suit schedule property. The defendants have no manner of right and title over suit schedule property. About two days back, the defendant No.1 and her followers tried to dispossess the plaintiffs from suit property but the plaintiffs resisted her attempts. The defendant No.1 is working in police

Department as such the plaintiffs are not in a position to resist the high handed acts of defendants. Hence, this suit.

03.The defendant No.1 filed her written statement and the same was adopted by defendant No.2 and 3.

04.The averments of written statement of defendant

No.1 in brief are as follows:- The defendant No.1 denied all the allegations in the plaint and specifically pleaded that Dammai Venkata

Swamy and Dammai Masthanamma had five daughters namely D.

Masthanamma, D. Venkata Ramanamma, D. Dhorasanamma, D.

Khaderamma and D. Sujathamma. Suit schedule property is ancestral property of Venkata Swamy and his daughters as such all of them are in joint possession and enjoyment of the same. The defendant No.1 and her family members have been looking after Venkata Swamy and Masthanamma.

The defendant No.2 and 3 used to visit their parents in suit schedule property. The plaintiff No.1 is son of Venkata Ramanamma who is sister of defendant No.1. The plaintiff No.2 is son of Masthanamma who is elder sister of defendant No.1. The plaintiff No.1 is residing at Sujathanagar colony, Nellore whereas the plaintiff No.2 is residing at H.K. Babu Nagar,

Nellore city. During temporary absence of defendant No.1 the plaintiffs and mother of the plaintiff No.2 forced the parents of defendants and obtained 3 alleged settlement deed dated 27-3-2014 without knowledge and consent of the defendants. The defendants, their sisters and their parents are equally entitled to plaint schedule property as it is ancestral property. The parents of defendants have not voluntarily executed the alleged settlement deed and the plaintiffs never in possession of suit property till today. The plaintiffs have stolen away house tax receipts, electricity bills and old age pension card of deceased Venkata Swamy and filed the same into the Court. The defendants performed obsequies of their mother Masthanamma who died on 24-10-2014. The defendants are entitled 1/6 th share each. The alleged settlement deed is not valid and binding on the defendants. The plaintiffs did not approach the court with clean hands and this suit is not maintainable with seeking relief of declaration. There is no cause of action to file this suit and it is liable to be dismissed with costs.

05.Based on the pleadings of both parties the following issues are framed for trail.

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

2) To what relief ?

06.To prove the case of plaintiffs, the plaintiff No.1 himself examined as PW1 besides examining one Vangapudi Lakshmi Narayana as

PW2. The plaintiffs got marked Ex.A1 to A7 in support of their case.

07.To prove the case of defendants, the defendant No.1 herself examined as DW1 and no documents are marked on her behalf.

08.Heard the plaintiffs. Though sufficient opportunity was given to the defendants to submit their arguments, they did not turn up 4 therefore the arguments on behalf of defendants treated as nil and the matter is posted to this day for Judgment. Perused the record.

09. Issue No.1:- The admitted case of both the parties is that

Dammai Venkata Swamy and Dammai Masthanamma are husband and wife and they have five daughters namely D. Masthanamma, D. Venkata

Ramanamma, D. Dhorasanamma, D. Khaderamma and D. Sujathamma. The plaintiff No.1 is son of Venkata Ramanamma who had inter religion marriage with one Shaik Jilani Basha. The plaintiff No.2 is son of elder daughter of

Venkata Swamy by name Masthanamma as such both the plaintiffs are related to Dammai Venkta Swamy and Dammai Masthanamma as their grand children. The defendant No.1 to 3 are the daughters of Venkata Swamy.

Therefore this suit is filed by grand children of Dammai Venkta Swamy and

Dammai Masthanamma i,e., sons of Venkta Ramanamma and Masthanamma against the other three daughters of Venkata swamy. Therefore, there is no dispute regarding relationship between the parties as referred to in the plaint and written statement.

10.It is the specific case of the plaintiffs that suit schedule property is absolute property of Dammai Venkta Swamy and he settled the same in favour of plaintiff No.1 and mother of plaintiff No.2 by name

Masthanamma under Ex.A1 settlement deed since then the plaintiffs are in possession and enjoyment of it with absolute rights. Dammai Venkta

Swamy is residing in suit schedule property under care and protection of plaintiffs as he is bed ridden due to paralysis. Their grand mother by name

Dammai Masthanamma died on 24-10-2014 due to ill-health. The defendants who have no manner of right are trying to interfere with possession of the plaintiffs over suit schedule property. Hence, this suit.

5

11.Per contra, the defendant No1 in her written statement categorically pleaded that suit schedule property is joint family property of the defendant No.1, her sisters and her parents as such Dammai Venkta

Swamy and Dammai Masthanamma have no right to execute Ex.A1 settlement deed in favour of plaintiff No.1 and mother of plaintiff No.2. The defendant No.1 is in possession and enjoyment of suit schedule property along with her parents. The alleged settlement deed dated 27-3-2014 is not binding on the defendants and the defendants are entitled 1/6th share each as suit property being their ancestral property. There is no cause of action to file this suit, therefore, the defendants prayed for dismissal of the suit with costs.

12.In view of rival contentions of both the parties, it makes clear that the defendants denied right, title and possession of the plaintiffs over suit schedule property besides questioning the authority of Dammai

Venkta Swamy and Dammai Masthanamma in executing Ex.A1 in favour of plaintiffs No.1 and mother of plaintiff No.2. Therefore, under these circumstances, burden is on the plaintiffs to prove that Dammai Venkta

Swamy and Dammai Masthanamma have valid right to execute Ex.A1 and the plaintiffs are in possession of suit schedule property.

13.Upon perusal of schedule appended to the plaint, it makes clear that the plaintiffs sought for permanent injunction in respect of 55.45 ankanams of vacant site which consists of 4 ½ ankanams of ACC roofed house, 3 ankanams of RCC building and 2 ankanams of Madras tailed house in Sy.No.498-C of Papireddypalem village, T.P.Gudur Bit -2, T.P.Gudur mandal,

Nellore District with specific boundaries as shown in the plaint schedule.

Both the parties are claiming the suit schedule property under Dammai

Venkta Swamy and Dammai Masthanamma as such there is no dispute regarding identity and location of suit schedule property.

6

14.It is the specific case of the defendant No.1 that Dammai

Venkta Swamy and Dammai Masthanamma have no right to settle the suit property in favour of the plaintiffs. On the other hand in the evidence of plaintiffs and defendants, it came on record that suit schedule property is absolute property of Dammai Masthanamma given to her by her parents. In the evidence of PW1, it was suggested to PW1 that suit schedule property was given to Dammai Masthanamma by her parents. In the cross- examination of PW2 it was suggested to him that the parents of Dammai

Masthanamma gave suit schedule property to her. In the cross-examination of DW1, DW1 categorically stated that the suit schedule property was given to her mother ie,. Dammai Masthanamma by her parents to convey it to her children. She further deposed that there is no document to show that suit schedule property was given to her mother to convey the same to her children. She deposed that her grand parents died around the year 1978 and the property was given by them to Dammai Masthanamma. Therefore, in view of admission given by DW1 in her cross-examination makes it clear that suit schedule property was absolute property of Dammai Masthanamma as such she got absolute rights to dispose of the said property according to her wish.

15.It is the specific case of the defendants that the suit schedule property is ancestral property of Dammai Venkta Swamy and

Dammai Masthanamma as such they got 1/6 th share in it. In support of their case they have drawn the attention of this Court to the recitals in Ex.A1 in which it is shown that the suit schedule property was ancestral property

Masthanamma and Venkata Swamy. In view of admission given by DW1 in her evidence, it makes clear that suit schedule property belonged to Dammai

Masthanamma which was given to her by her parents. In view of section 14 of Hindu Succession Act any property given to a female it shall be her absolute property except the circumstances referred in section 14 (2) of 7

Hindu Succession Act. Coming to the case on hand, as admittedly the suit schedule property being absolute property of Dammai Masthanamma she has absolute rights to dispose of her property according to her wish.

Therefore, the contention of defendants that suit schedule property is ancestral property is devoid of merits.

16.The defendants pleaded that Ex.A1 is not valid and it is not binding on them and it was obtained by way of force and coercion.

According to Ex.A1 Dammai Masthanamma and Venkata Swamy together executed a settlement deed in favour of their elder daughter by name

Masthanamma and their grand son by name Shaik Jani Basha settling the suit schedule property in their favour. Further, after execution of settlement deed the mother of defendant No.1 by name Dammai Masthanamma died on 24-10-2014 whereas the mother of plaintiff No.2 died on 8-10-2014.

Therefore, there is no dispute regarding death of Masthanamma and his daughter as shown in Ex.A2 and A3. In the evidence of DW1, DW1 admitted that Dammai Venkta Swamy died in the month of May, 2017 during pendency of the suit and during his life time he lodged a complaint against defendant No.1 alleging that she harassed him physically and the same was published in daily News paper. Therefore, the evidence of DW1 suggest that as the daughters of Dammai Venkataswamy and Masthanamma were not looking after them they executed Ex.A1 in favour of plaintiff No.1 and mother of plaintiff No.2 as they were looking after their welfare. Further, the property tax receipts and electricity bills goes to show that they are in the name of Dammai Venkta Swamy and Dammai Masthanamma for suit schedule property. Except the oral evidence of defendant No.1 there is no material on record to prove that Ex.A1 was obtained by force and coirsion.

Therefore, Ex.A1 is binding on the defendants.

8

17.To prove the possession of the plaintiffs over suit property, the plaintiffs filed property tax receipts, electricity demand notices and pension card of Dammai Venkata swamy which go to show that as on the date of filing of suit Dammai Venkataswamy is residing in suit schedule property under care and custody of plaintiffs. Admittedly, Dammai Venkata swamy was bed ridden due to paralysis and Ex.A7 photograph is clearly indicate that the plaintiffs are looking after the welfare of said Venkata

Swamy. Therefore, after executing Ex.A1 it appears that the plaintiffs have taken the possession of suit schedule property and they are in possession and enjoyment of it. Further, in view of evidence of DW1 it makes clear that the defendants are claiming suit schedule property as if it is their ancestral property but the evidence of DW1 makes it clear that suit schedule property is absolute property of Dammai Masthanamma as such she got right to dispose of property according to her wish. Further the evidence of plaintiffs proved that there is imminent threat of dispossession in the hands of defendants as such they are entitled for permanent injunction. Accordingly, this issue is answered in favour of the plaintiffs against the defendants.

18. Issue No.2:- In view of issue No.1 is answered in favour of the plaintiffs, this suit is to be decreed with costs.

In the result, this suit is decreed with costs, restraining

the defendants, their men and agents from interfering with

possession and enjoyment of the plaintiffs over suit schedule

property by means of permanent injunction.

Typed my dictation, corrected and pronounced by me in the open court on this the 28th day of March, 2018.

Prl. Junior Civil Judge,

Nellore 9

Appendix of evidence

Witnesses examined

Plaintiff: Defendants:

PW1: Shaik Jani. DW1:P. Dorasanamma.

PW2: V. Lakshmi Narayana.

DOCUMENTS MARKED

Plaintiff:

Ex.A1: Regd. Settlement deed dt.27-3-2014 executed by D.Venkata Swamy and his Wife Masthanamma in favour of PW1 and mother of second plaintiff.

Ex.A2: Death certificate of second plaintiff mother Masthanamma.

Ex.A3: Death certificate of grandmother of plaintiffs by name Masthanamma.

Ex.A4: Old age pension card of D.Venkata Swamy.

Ex.A5: House tax receipts 5 in nos.

Ex.A6: bunch of electricity bills.

Ex.A7: Photo graphs two in number with CD.

Defendants: Nil

PJCJ, Nellore.

1 O.S.No.344 of 2017

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, NELLORE

Wednesday, this the 11th day of April 2018

Present: - Sri. T. Kesava, Prl. Junior Civil Judge, Nellore

O.S.No.344 of 2017

Vallepalli Murali Mohan...... Plaintiff

Vs

Komara Madhavaiah.…Defendant

This suit is coming on 09.4.2018 for final hearing before me in the presence of Sri. K. Raghunadha Reddy, Advocate for plaintiff and Sri. G. V.

Chowdary, Advocate for the defendant and having stood over for consideration till this day, this Court delivered the following:

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

This suit is filed for recovery of sum of Rs.1,18,740/- based on a promissory note date 19.07.2014 executed by the defendant in favour of the plaintiff and for costs of this suit.

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

On 19.07.2014 the defendant borrowed a sum of Rs.68,400/- from the plaintiff for his necessities and executed a promissory note agreeing to repay said amount together with interest at the rate of 24% per annum either to the plaintiff or on his demand. Later on, in spite of repeated demands including issuance of legal notice dated 11-7-2017 the defendant did not pay any amount, hence, this suit.

3. The averments in the written statement of the defendant in brief are as follows:- The defendant denied all the allegations mentioned in the plaint and specifically pleaded that he approached the plaintiff for loan of Rs.25,000/- but the plaintiff insisted to sign on two blank promissory notes. As the defendant was in need of money he signed on two promissory notes on 22-5-2013 though he received a sum of Rs.25,000/- only. The defendant paid entire amount to 2 O.S.No.344 of 2017 the plaintiff and asked him to return the promissory notes. The plaintiff without returning those promissory notes replied that those were misplaced and they would be returned whenever they are traced out. In view of dealings and acquaintance with the plaintiff, the defendant went away. The plaintiff fabricated the suit promissory note and filed this suit.

No notice was served on him. The suit promissory note dated 19-7-2014 is fabricated and materially altered to save the limitation. The date 7-1-2014 in promissory note was materially altered to 19-7-2014 only to save the limitation, therefore, this suit is barred by limitation. Since suit document is materially altered it is not binding on the defendant. Therefore, there is no cause of action to file this suit and this suit is liable to be dismissed with costs.

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

1. Whether the suit promissory note is true, valid and binding on the defendant ?

2. Whether the plaintiff is entitled for suit claim as prayed for?

3. To what relief ?

5. To prove the case of the plaintiff, the plaintiff himself examined as PW1 besides examining the attestor and scribe namely

Koneti Sreenivasulu and CH. Venkata Ramanaiah as PW2 and PW3 respectively. The plaintiff got marked Ex.A1 to A3 in support of his case.

6. To prove the case of the defendant, the defendant himself examined as DW1 and no documents are marked on his behalf.

7. Heard both sides and perused the record.

8. ISSUE NO.1:- It is the specific case of the plaintiff that the defendant borrowed a sum of Rs.68,400/- from him under Ex.A1 on 19.07.2014 agreeing to repay the same with interest at the rate of 24% 3 O.S.No.344 of 2017 per annum either to the plaintiff or to his order on demand. Thereafter, the defendant did not pay any amount, hence he filed the suit.

9. Per contra, the defendant in his written statement categorically pleaded that he borrowed a sum of Rs.25,000/- only from the plaintiff on 22-5-2013 and at that time the plaintiff obtained two signed blank promissory notes from the defendant. After discharging the debts the plaintiff returned one promissory note only and when the defendant demanded for return of another promissory note he stated that it was misplaced and he would return the same whenever it is traced out. Date in Suit promissory note ie., 7-1-2014 was materially altered to 19-7-2014 as such suit document is void document and this suit is barred by limitation. Therefore, the defendant sought for dismissal of suit with costs.

10. In view of the rival pleadings of both the parties it makes clear that the defendant denied the execution of Ex.A1 and borrowing of money under Ex.A1 from the plaintiff. He specifically pleaded that the plaintiff obtained blank promissory note from him and subsequently materially altered it and filed this suit. Therefore, initial burden is on the plaintiff to prove its execution of Ex.A1 by the defendant. If the plaintiff is able to discharge the burden placed on him, the presumption u/sec 118 of

N.I.Act would draw a presumption that Ex.A1 was executed by the defendant and it is supported by consideration. Then evidential burden shifts on to the defendant to prove that Ex.A1 is fabricated and it is brought into existence in the circumstances referred to in his written statement. Therefore, now it is to be seen whether the plaintiff is able to discharge the burden placed on him as referred supra.

11. To prove the case of the plaintiff, the plaintiff himself examined as PW1 and his chief examination he reiterated that on 19.7.2014 the defendant borrowed a sum of Rs.68,400/- from him and 4 O.S.No.344 of 2017 executed Ex.A1. In cross-examination of PW1, PW1 categorically deposed that he got acquaintance with the defendant as the defendant visits his shop. PW1 further deposed that the transaction took place on 19-7-2014 and at the time of transaction PW2 and PW3 were present. Though the learned Advocate for defendant has cross-examined the PW1 at length nothing has been extracted to discredit his evidence.

12. Further to prove the case of plaintiff, K. Sreenivasulu and one Ch. Venkata Ramanaiah who are attestor and scribe of Ex.A1 are examined as PW2 and PW3 and they deposed that the defendant borrowed a sum of Rs.68,400/- from the plaintiff on 19-7-2014 for his necessities and executed Ex.A1. In their presence suit transaction took place and PW2 signed as attestor in Ex.A1. The learned Advocate for defendant has cross-examined PW2, in the cross-examination of PW2, Pw2 categorically deposed that the defendant borrowed a sum of Rs.68,400/- from the plaintiff in his presence and the transaction took place at

Mothala village in the presence of himself, plaintiff, the defendant and another attestor and scribe Venkata Ramanaiah also present at the time of execution of Ex.A1.

13.The evidence of PW1 to PW3 makes it clear that the defendant on borrowing a sum of Rs.68,400/- from the plaintiff on 19-7- 2014 executed Ex.A1. It is the specific case of the defendant that the suit promissory note is materially altered by changing the date of promissory note from 7-1-2014 to 19-7-2014 to save limitation. The learned Advocate for defendant has cross-examined the PW1 to PW3 at length and PW1 to

PW3 are consistent that there is no material alteration regarding the date in the suit promissory note but it is over writing only. It is not the case of defendant that he borrowed money from the plaintiff on 7-1-2014 and gave blank promissory note. It is his case that he borrowed money from the plaintiff on 22-5-2013. PW3 who is scribe of Ex.A1 in his chief 5 O.S.No.344 of 2017 examination he categorically deposed that the correction in date column is not a material alteration but it is over writing. Admittedly, to the naked eye it appears that there is a correction in Ex.A1 in the date column but in the suit promissory note there is endorsement made by PW3 stating that there is correction in line No.1 and line No.10 in Ex.A1. There is no cross- examination on this aspect by the learned Advocate for defendant. It appears that on the date of Ex.A1 itself as said correction was carried out in the presence of defendant and the attestors. Therefore, merely because there is over writing in Ex.A1 in the date column it cannot be said that suit promissory note is materially altered. The evidence of PW2 and

PW3 is consistent that the said correction was made in the presence of defendant at the time of execution of Ex.A1. Therefore, the contention of the defendant is that Ex.A1 is materially altered is devoid of merit.

Further, the defendant in spite of receiving notice did not issue any reply, therefore it is one of the strong circumstance to show that the defendant executed Ex.A1 on the given date.

14.Thus, in view of aforesaid discussion, it makes clear that the evidence of PW1 to PW3 proved that the defendant on borrowing a sum of Rs.68,400/- on 19-7-2014 executed suit promissory note in favour of the plaintiff as such Ex.A1 is true, valid and binding on the defendant.

Accordingly, this issue is answered in favour of the plaintiff against the defendant.

15. ISSUE NO.2:- Admittedly, the defendant has not discharged any debt due under Ex.A1. In the preceding issue it has been held that Ex.A1 is true, valid and binding on the defendant. Therefore, as the defendant did not pay any amount due under Ex.A1 the plaintiff is entitled for suit claim as prayed for. Accordingly, this issue is answered in favour of the plaintiff against the defendant.

6 O.S.No.344 of 2017

16. ISSUE NO.3:- In view of issue No.1 and 2 are answered in favour of the plaintiff, this suit is to be decreed with costs as prayed for.

In the result, the suit is decreed with costs directing the

defendant to pay a sum of Rs.1,18,740/- to the plaintiff with

subsequent interest at the rate of 12% p.a from the date of suit

till the date of decree and with future interest at 6% p.a from the

date of decree till realization on principal sum of Rs.68,400/-

Typed my dictation, corrected and pronounced by me in the open court on this the 11th day of April, 2018.

Prl. Junior Civil Judge,

Nellore

Appendix of evidence

Witnesses examined

For Plaintiff: For Defendant:

P.W.1: V. Murali Mohan.DW1: K. Madhavaiah. P.W.2: K. Sreenivasulu.

PW3: Ch. Venkata Ramanaiah.

Exhibits marked

on plaintiff side: Ex.A1 : Promissory note dt.19.7.2014 executed by the defendant in favour of the plaintiff.

Ex.A2: Office copy of legal notice dated 11-7-2017 got issued by the plaintiff' to the defendant with postal receipt. Ex,.A3: is net tracking report.

on defendant's side: Nil

PJCJ,Nellore