Sri T.Vasudevan

O.S. No. 168 of 20151

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IN THE COURT OF THE SENIOR CIVIL JUDGE ,BOBBILI

PRESENT: T. VASUDEVAN,

SENIOR CIVIL JUDGE,

BOBBILI.

Thursday, this the 6 th day of January, 2022

O.S. No. 168 OF 2015

BETWEEN:

Poojari Narayana Rao @ Jagadeeswara Rao s/o Veerabhadra Rao, aged about 53 years, resident of D.No.C-92, Thonam Village,Salur Mandal, Vizianagaram District. --- Plaintif AND

1. Dandi Anantha Kumari, W/o Srinivasa Rao, aged 41 years, resident of D.No.1-80, Thonam Village, Salur Mandal, Vizianagaram District.

2. Varanasi Manmadha Rao, S/o Sri Rama Murthy, aged 53 years, resident of D.No.1-80, Thonam Village, Salur Mandal, Vizianagaram District.

3.Dandi Srinivasa Rao, S/o Ranga Rao,aged 46 years, resident of D.No.1- 80, Thonam Village, Salur Mandal, Vizianagaram District.

4. Polavarapu Babi, S/o late China Jagadeesh @ Chinabuddi, aged 30 years, resident of 1-23, Mungivanivalasa Village, Thonam Panchayat, Salur Mandal. ---Defendants

This suit came before me on 07.12.2021 for final hearing in the presence of Sri P.Manikeswara Sai, Advocate for the Plaintif and Sri

T.Panigrahi Advocate for the Defendants, and upon perusing the material available on record 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 for the relief of (a) declaration that the sale deed

dt. 19.06.2015 stands in the name of 1st defendant as void, (b)

consequential relief of permanent injunction against the defendants and their men to interfere into plaintiff possession of suit property and for costs of the suit.

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2) CASE OF THE PLAINTIFF IN BRIEF IS THAT:

(a)Land covered in Survey No.5-1 of Thonam Village in Salur

Mandal in total extent of 90 Acre 34 cents originally belongs to father of plaintiff Poojari Veerabhadra Rao, during his life time he sold Acre11.25 cents to various persons under registered sale deeds including Thangudu

Krishna Murthy, Seedharapu Latchamma, Seedharapu Papayya, Chinnayya and Chittibommala Amadamma etc., by retaining Acre 8.09 cents. After the demise of plaintiff's father, plaintiff became absolute owner of Acre 8.09 cents, possessing and enjoying it and the Revenue officials also recognized his possession and enjoyment , mutated Revenue records thereby plaintiff availed crop loans in respect of the land. Suit property is in an extent of

Acre3.00 cents out of these Acre 8.09 cents.

While so one of the purchaser of land from father of plaintiff i.e,

Cheedarapu Latchamma who purchased Acre 0.50cents was died and her sons are Seedharapu Chinnayya and Papayya. These Seedharapu

Chinnayya and Papayya purchased an extent of Acre 3.00 cents from plaintiff’s father on 14.05.1976. Hence, after the demise of Seedharapu

Latchamma, her sons Seedharapu Chinnayya and Papayya who holds Acre 3.00 cents also became owners of their mother’s property Acre 0.50 cents in total they became owners of Acre 3.50 cents only. However these

Seedharapu Chinnayya and Papayya with their father Seedharapu Gasayya filed suit O.S.22/1992 on the file of learned Junior Civil Judge, Salur against the plaintiff for the relief of perfection injunction claiming that Seedharapu

Latchamma purchased Acre 2.00 cents but mistakenly the extent was mentioned as Acre 0.50 cents in the sale deed as well as Seedharapu

Papayya and Chinnayya purchased Acre 8.50 cents but their extent also mentioned mistakenly as Acre 2.00 cents thereby these persons claimed total Acre 10.50 cents stating the same was in their possession and enjoyment.

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When the plaintiff contested that suit as defendant by filing written statement projecting his plea that his father was intended and sold only

Acre 3.50 cents i.e., Acre 3.00 cents and Acare 0.50 cents separately to

Seedharapu Papayya and Chinnayya as well as to Seedharapura

Latchamma respectively and he never sold Acre 10.50 cents as claimed as well as the remaining extent i.e., Acre8.09 cents are in still possession of plaintiff, Court accepted the plea of defendant and dismissed the suit hold in that land shown in “B” Schedule of that suit was excessive claim than to the extent purchased.

In the meanwhile, during the pendency of the suit OS.No.22/1992, plaintiffs therein i.e., Seedharapu Chinnayya and Papayya sold suit schedule “B” property to the 2nd defendant herein i.e, Varanasi Manmadha

Rao on 27.01.1995 under registered sale deed though plaintiffs in that suit are not entitled to do so and have no title. Subsequently an appeal against the judgment in O.S.NO.22/1992 was preferred to this court in

A.S.No.33/1999 and that was also dismissed on merits, later on preferred

2nd appeal to the Honourable High Court of Andhra Pradesh and that 2nd appeal in S.A.63/2009 was also dismissed. Hence, litigation all these matters ended with a conclusion that plaintiffs in O.S.22/1992 claimed excessive land by showing “B” schedule property more than to the property purchased.

Defendant No.2 who purchased Acre 3.00 cents shown as “B” schedule in OS 22/1992 purchased the same pending the suit OS 22/1992 thereby this transaction is a lispendence and knowing that the vendors/plaintiffs in OS 22/1992 have no title over the land sold, defendant purchased it thereby he did not get any valid title. However knowing it the 2nd defendant filed OS.100/2006 on the file of learned Junior Civil Judge,

Salur against the plaintiff herein for the relief of permanent injunction with interim application in I.A.99/2006. When the plaintiff contested that I.A. by filing his counter and by disclosing false litigation and its consequences as

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referred above, the 2nd defendant filed application before the learned Junior

Civil Judge, Salur to withdraw the suit with a permission to file fresh suit if

necessary. Accordingly on 13.11.2006 the learned court allowed that application and permitted to withdraw the suit as well as to file fresh suit as prayed. However Defendant No.2 did not choose to file any suit in obedience to the permission obtained. Hence, the remaining extent of Acre 8.09cents in the suit Survey No.5/1 of Thonam Village continued in the possession and enjoyment of plaintiff.

Subsequently in the year 2015 the defendants 1,3 and 4 tried to trespass into suit schedule property with an intention to cut down trees there, when the plaintiff obstructed and questioned the authority of those defendants, the defendants No.1,3 and 4 replied that they purchased the suit property from defendant No.2 under the registered sale deed on 19.06.2015 thereby they became absolute owners to suit property and the plaintiff has no authority to obstruct them. Plaintiff obstructed them with grate risk. Since the defendant No.2 had no title or any right in respect of suit property, his execution of sale deed on 19.06.2015 infavour of defendant No.1,becomes invalid thereby if it is in force, an irreparable loss will be occurred to plaintiff by causing serious injury, therefore plaintiff approached this court with suit praying to pass a decree in his favour declaring that the sale deed dt. 19.06.2015 by defendant No.2 infavour of other defendants is null and void as well as to grant permanent injunction restraining the defendants as consequential relief.

3) PLEA OF THE DEFENDANT IN BRIEF IS THAT:

Defendant No.1 filed written statement and the same was adopted b y

Defendants No.2 to 4. Defendants admitted many facts in their written statement at para No.3. Defendants submitted purchase of Acre3.00 cents by Seedharapu Papayya and Chinnayya in the year 1976 from the father of plaintiff and subsequently filing suit OS 22/1992 and its dismissal by

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learned Junior Civil Judge, Salur, later appeal against it to this court as well

as 2nd appeal to Honorable High Court of Andhra Pradesh and dismissal of

all these appeals. Defendants also admitted filing suit by 2nd defendant in

OS No. 100/2006 on the file of learned Junior Civil Judge, Salur and it’s

withdrawal subsequently with a permission to file fresh suit as well as non filing of fresh suit in terms of permission obtained in OS 100/2006.

Defendants further through defendant No.1 further admitted that during the pendency of suit OS 22/1992, Seedharapu Chinnayya and Papayya sold

Acre 3.00 cents to defendant No.2 and later 2nd defendant sold it to defendant No.1 on 19.06.2015

Defendants through defendant No.1 further pleaded that other allegations in the form of averments in plaint are all false and created and it is undisputed fact that Seedharapu Chinnayya and Papayya purchased land from father of plaintiff on 14.05.1976 and the same was sold to defendant No.2 and the defendant No.2 sold to defendant No.1 thereby plea that defendant No.2 had no valid title to sell the property is false and further pleaded that schedule”B” property in OS 22/1992 is no way connected to this suit and the land shown there as well as herein in the schedule are different, therefore defendants will not loose their title with regard to the extent of Acre3.00 cents purchased, thereby the principal of lispendence does not apply. Defendants further pleaded that as there was no any occasion or circumstance arose challenging the possession and title of defendant No.2 subsequent withdrawal of the suit OS 100/2006, the defendant No.2 not choose to file any fresh suit thereby it alone may not be ground to consider the case of plaintiff since his possession and title was duly recognized by Revenue authorities by mutating Revenue records and by collecting necessary taxes.

Property covered under the sale deed executed by defendant No.2 infavour of defendant No.1 on 19.06.2015 is the property purchased by

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defendant No.2 from his vendors Seedharapu Chinnayya and Papayya on 27.06.1995 and these vendors purchased the same from the father of plaintiff, thereby property transferred by defendant No.2 on 19.06.2015 was a Lawful transaction with a valid title thereby no need to declare the transaction as null and void if so the vendors of defendants No.2

Seedharapu Chinnayya and Papayya are also necessary parties in this suit and the title of plaintiffs father who sold property to the vendors of defendant No.2 will be under challenge thereby this suit without necessary parties and proper relief is not maintainable, hence by considering these circumstances prayed to dismiss this suit.

4) ISSUES:

Upon hearing both sides and on perusal of the pleadings, as well as, documents submitted by both the parties, this court framed the following issues for trial:-

1.Whether the plaint schedule property was

sold to defendant No.2 by father of plaintif?

2.Whether the plaint schedule property is not

the property of subject matter of OS 22/1992

or OS 100/2006.

3.Whether the sale deed executed by defendant

No.2 in favour of defendant No.1 dt.

19.06.2015 is void?

4. Whether the plaintif is entitled for perpectual injunction?

5. To what relief?

5) EVIDENCE:

a)To adjudicate the above issues, both parties adduced oral evidence by producing documentary evidence on their behalf. During the trial on behalf of plaintiff the plaintiff/ Pujari Narayana Raodeposed as

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P.W.1 by examining to more witnesses i.e., Bytipalli Ganapathi and Dalai

Ramu as P.Ws 2 and 3. The defendant No.1 Dandi Anantha Kumari deposed as D.W.1 by denying the claim of the plaintiff and also examined

two more witnesses viz., Dandi Srinivasa Rao/Defendant No.3 and

Varanasi Manmadha Rao/Defendant No.2 as D.Ws 2 and 3. Plaintiff produced documentary evidence under Exs.A1 to A9. Ex.A1 is the 1-B

Register extract issued by Tahsildar, Salur, Ex.A.2 Copy of Adangal

for the Fasli year 1422 issued by Tahsildar, Salur, Ex.A.3 is the

certified copy of Judgment in OS 22/1992 by learned Junior Civil

Judge, Salur, Ex.A.4 is the certified copy of Judgment in 2 nd Appeal

No. 63/2009 by the Honourable High Court of Andhra Pradesh,

Ex.A.5 is the certified copy of petition and orders in I.A.234/2006 in

O.S.100/2006 by the learned Junior Civil Judge, Salur. Ex.A.6 is the

certified copy of Sale deed. Dt. 19.06.2015 obtained from Meeseva.

Ex.A.7 Certified copy of Sale deed. dt. 17.01.1995, Ex.A.8 is the

certified copy of Sale deed dt. 04.04.1975. Ex.A.9 is the certified

copy of Sale deed dt. 03.06.1976. Defendants also produced documents from Ex.B.1 to Ex.B.10. Ex.B.1is the certified copy of Sale deed dt.

14.05.1976. Ex.B.2 Registered Sale Deed dt. 27.01.1995, Ex.B.3 is the

Pattadar Pass Book stood in the name of 2nd defednant. Ex.B.4 is the title book of 2nd defemndant. Ex.B.5 is the copy of 1-B registerr obtained through Meeseva. Ex.B.6 is the copy of Adangal for Fasli 1423 obtained through Meeseva. Ex.B.7 is the copy of Adangal for Fasli 1424 obtained through Meeseva.Ex.B.8 is the copy of Adangal for Fasli 1425 obtained through Meeseva.Ex.B.9 is the Land Revenue receipts(Four in number)

Ex.B.10 is the copy of Adangal for the Fasliyears 1406 and 1407 issued by

Tahsildar, Salur.

6) ARGUMENTS:

Learned counsel for the plaintif filed written arguments and submitted that since the defendants by taking advantage of the boundaries

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mentioned in the documents, are trying knock away the entire extent of the property of plaintiff therefore the plaintiff forced to filed this suit. Learned counsel further submitted that defendant No.2 who filed OS 100/2006 on the file learned Additional Junior Civil Judge, Salur, having undertook to file a comprehensive suit, thereby withdrawn that suit subsequently failed to comply, thereby he lost his right if any in respect of property in dispute and the report of Commissioner discloses boundaries existing on ground are different than to boundaries mentioned in the sale deed of defendant No.2.

Therefore by considering all these circumstances and evidence prayed to declare that the document executed by defendant No.1 infavour of the defendant No.2 as null and void and to cancel the same.

Learned counsel for the defendants filed a written arguments and submitted that from the documents submitted by the defendants it is clearly disclosing that defendant No.2 became absolute owner through Lawful process thereby he is the owner, therefore there is no strength in the plea of plaintiff as well as in the evidence that defendant

No.1 and 2 obtained documents from their vendors to knock away the entire property of the plaintiff. Learned counsel further submitted that though defendant No.2 failed to file a comprehensive suit as under took by hi m while withdrawing O.S. 100/2006, it itself may not be a ground to reject his plea herein and to decree the suit as prayed, therefore prayed to dismiss the suit.

7) POINT :-

Since it is a suit for declaration with regard to registered sale deed dt. 19.06.2015 executed by defendant No.2 infavour of D.1 as void , it is the duty of the plaintiff who approached the court for discretionary relief, to plead and lead evidence in support of his case

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and he should prove his case without depending upon the weakness of defendant's case. Plaintiff in order to discharge his burden as provided under sections 101 to 103 of Indian Evidence Act as to the burden of proof, he himself deposed as PW1 and further examined two more witnesses as P.Ws.2 and 3. He also produced Exs.A1 to A.9 documents as referred above. To contradict it and to prove that the plaintiff is not entitled for declaration as prayed, defendants No.1 to 3 themselves deposed as Dws 1 to 3. Defendants also produced Ex.B1 to

B.10 documents. With this available evidence, issues framed are to be adjudicated.

9.ISSUES No. 1:

1.Whether the plaint schedule property was sold to defendant No.2 by father of plaintif?

Plea of plaintiff and his evidence as PW1 goes to show that suit schedule property is originally belongs to his father Poojari Veerabhadra

Rao and it is the ancestral property of plaintiff's family. This fact appears to be admitted by the defendants in their written statement and not denied the title of plaintiff’s family with regard to property covered under suit

Survey No.5/1 of Thonam Village for entire extent Acre 19.34 cents. P.W.1

Poojari Narayana Rao further pleaded and deposed that his father sold an extent of Acre 3.00 cents to the vendors of the defendant No.2 namely

Seedharapu Chinnayya and Papayya pm 14.05.1976 under a registered sale deed. In support though plaintiff not produced any document, defendants filed Ex.B.1 certified copy of registered sale deed bearing No.924/1976.

Contents in Ex.B.1 copy of registered sale deed is not disputed by the plaintiff except with regard to the extent claimed. The extent mentioned in

Ex.B.1 is Acre 3.00 cents only and the purchasers under Ex.B.1 are

Seedharapu Chinnayya and Papayya but not the defendant No.2 Varanasi

Manmadha Rao. Documents stood in favour of defendant No.2 is the original registered sale deed Ex.B.2 dt. 27.01.1995. Ex.B.2 goes to show

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that it was executed by the purchasers of the property under Ex.B.1 registered sale deed namely Seedharapu Chinnayya and Papayya but not the father of the plaintiff i.e., Poojari Veerabhadra Rao. The document in question upon which the relief sought is Ex.A.1 certified copy of registered sale deed dt. 19.06.2015 executed by defendant No.2 in favour of defendant

No.1 Dandi Anantha Kumari.

10. From and above discussed documentary evidence and the oral evidence of P.W.1, D.Ws. 1 and 3 it is clear that the defendant purchased property under Ex.B.2 registered sale deed dt. 27.01.1995 from one

Seedharapu Chinnayya and Papayya but not from the father of plaintiff i.e.,

Poojari Veerabhadra Rao. The persons who purchased the property as

per Ex.B.1 contents from the father of the plaintif i.e., Poojari

Veerabhadra Rao were Seedharapu Chinnayya and Papayya but not

the defendant No.2 Varanasi Manmadha Rao. Hence, it is clear from the oral evidence adduced and documentary evidence produced that the father of plaintiff namely Poojari Veerabhadra Rao not sold suit schedule property to defendant No.2 Varanasi Manmadha Rao but said Poojari

Veerabhadra Rao as per Ex.B.1 sale deed sold suit property to Seedharapu

Chinnayya and Papayya but plaintiff herein being son of said Poojari

Veerabhadra Rao, disputing the boundaries in Ex.B.1 Sale Deed (copy).

Accordingly this issue is answered.

11. Issue No.2:

2.Whether the plaint schedule property is

not the property of subject matter of OS

22/1992 or OS 100/2006.

Evidence available to adjudicate this issue is the oral evidence of

P.W.1/plaintiff /Poojari Narayana Rao who said to be the defendant in O.S.

No.22/1992 and OS 100/2006 on the file of learned Junior Civil Judge, Salur and the oral evidence of defendant No.2/D.W.3 Varanasi Manmadha Rao

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who admittedly the plaintiff in OS No.100/2006 apart from the documentary evidence available under Ex.A.3 certified copy of Judgment in

OS.22/1992, certified copy of judgment in 2nd Appeal No.63/2009 on the file

of Honourable High Court of Andhra Pradesh and certified copy of petition and docket orders in I.A.No.234/2006 in OS 100/2006 under Ex.A.5. With this evidence now this issue is to be adjudicated.

12.Oral evidence of P.W.1/plaintiff and his plea is that vendors of defendant No.2 namely Seedharapu Chinnayya and Papayya by associating with their father Seedharapu Gasayya filed OS.No. 22/1992 on the file of learned Junior Civil Judge, Salur against the plaintiff herein and that was dismissed on merits as well as defendant No.2/D.W.3 being purchaser of property under Ex.B.2 registered sale deed from Seedharapu Chinnayya and Papayya while this suit OS.No.22/1992 was pending, subsequently dismissal of that suit, defendant No,.2 filed OS.No.100/2006 on the file of learned Junior Civil Judge, Salur and later it was withdrawn with permission by submitting I.A.234/2006 in that suit. All these facts are admitted by defendants. Contents in Ex.A.3, A.4 and A.5 documents are supporting the litigation in O.S.22/1992 and OS.100/2006 disposed by the learned Junior Civil Judge, Salur. It itself may not sufficient to satisfy that the subject matter in those suits was the property of this suit shown as suit schedule. It is to be proved by producing copy of plaint or decree containing schedule pertaining to OS.No.22/1992 and OS.No.100/2006.

There is no such copy of plaint or a copy of decree submitted in this suit to establish that the subject matter in those suits was the suit property herein.

The only material available is the Judgment copy in OS.No.22/1992 under

Ex.A.3 and the evidence of P.W.1 and D.W.3.

13.D.W.3 Varanasi Manmadha Rao/Defendant No.2 in his evidence in chief itself at Para No.2 admitted that he filed OS.No.100/2006 on the file

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of Junior Civil Judge, Salur for injunction with regard to the property purchased by him (Ex.B.2) and later he withdrawn that suit with a permission to file fresh suit if necessary. Property covered under the document in dispute i.e., Ex.A.1 Sale deed is the property covered under

Ex.B.2 thereby the suit property/Ex.A.1 property and the property under

Ex.B.2 based on which OS.No.100/2006 was instituted as admitted by D.W.3 are one and the same hence, it is clear that property in OS.No.100/2006 and the suit property is the one and the same. However, to satisfy whether the property shown in O.S.No.22/1992 was the property herein, there is no material except copy of Judgment Ex.A.3. Though Judgment copy Ex.A.3 discloses that the suit property in that suit was divide into “A” and “B” schedule, those schedules are not available to satisfy that whether the suit property was part and parcel of those”A” and “B” Schedules. However, it is clear as admitted by defendant No.3 in his written statement at Para No.6 that the suit OS.No.22/1992 also connected to the property in dispute.

Hence, this court came to a conclusion with the above discussed evidence that the property shown in O.S.No.100/2006 was the suit schedule property herein. Accordingly this issue is answered.

14. Issue No.3:

3.Whether the sale deed executed by

defendant No.2 in favour of defendant No.1

dt. 19.06.2015 is void?

Plaintiff approached this court specifically pleading that pending the suit in OS 22/1992 on the file of learned Junior civil Judge, Salur, defendant No.2 purchased suit schedule property from the plaintiffs therein I.e Seedarapu Papayya and Seedarapu Chinnayya thereby it was a pendent lit transaction and as that suit was dismissed on merits, de- fendant No.2 received no title or right over the properties shown in the

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schedule and this suit property was “B” schedule mentioned property in that suit, therefore Defendant No.2 not competent to transfer any right or title to defendant No.1 under the registered sale deed dt:

19.06.2015. Therefore, plaintiff claimed to declare that document dt:

19.06.2015/Ex.A8 as void. Defendant No.2 deposed as DW3. His evi- dence goes to show that he admitted the transaction dt: 19.06.2015 that he executed registered sale deed in favour of Defendant No.1 and further deposed that father of plaintiff Pujari Veedarabadrarao sold suit schedule property to his vendors Seedarapu Papayya and Seedarapu

Chinnayya, in turn on 27.01.1995 these two persons I.e. Seedarapu

Papayya and Seedarapu Chinnayya executed registered sale deed in his favour by transferring the same property purchased by them from father of plaintiff, hence, he possessed and enjoyed it till 2015 and in the year 2015 he transferred the same to defendant No.1 by way of registered sale deed under Ex.A6, therefore, there is lawful flow of title from the father of plaintiff to his vendors in the year 1976 and from his vendors to him in the year 1995 and thereafter he transferred the same to defendant No.1 in the year 2015, hence, these transaction are lawful, therfore no need declared it as void. Under these circum- stances with the available evidence on record, this dispute is to be adjudicated.

15. In support of both parties plea, plaintiff himself examined as PW1 and examined PWs.2 and 3 and also produced documentary evidence Exs. A1 to A9. On behalf of defendant, defendant No.1 de- posed as DW1, defendant No.2 deposed as DW3 and defendant No.3 / husband of defendant No.1 deposed as DW2. Defendants also produced

Exds.B1 to B10 documents. Among this, Exs.B1 is the certified copy of registered sale deed executed by the father of plaintiff in favour of de- fendant No.2 vendors viz., Seedarapu Papayy and Chinnayyya. Ex.B2 is

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the original registered sale deed executed by Seedarapu Chinnayya and Papayya in favour of defendant No.2. Ex.A6 is the certified copy

of registered sale deed executed by defendant No.2 in favour of

1 st defendant which is in dispute. It is admitted fact by both side that vendors of defendant No.2 viz., Seedarapu Papayya and Seedarapu

Chinnayya purchased the suit schedule property from the father of plaintiff under Ex.B1 copy of registered sale deed document bearing

No.941/1976 dt: 14.05.1976. However, PW1 being plaintiff disputed the extent of it stating that the property sold under Ex. B1 copy of regis- tered sale deed to the vendors of defendant No.2 is only an extent of

Ac.3.00, whereas these two persons claimed it as Ac.10.00 and odd and filed suit in OS 22/1992 on the file of learned Junior Civil Judge, Salur for grant of permanent injunction against the plaintiff herein claiming an extent of Ac.10.00 under Ex.B1 by showing the property as “B” sched- ule in OS.22/1992, subsequently on contest the court found that the purchasers I.e. vendors of defendant No.2 were not entitled more than what they purchased. Admittedly the suit in OS.No. 22/1992 was not a suit for declaration of title or for any other relief relating to title except praying the court to restrain the plaintiff herein from interfering into the property as shown in the suit schedule claiming that the extents pur- chased more extant of land but the extents shown in Ex.B1 was lesser.

The court on merits by considering the evidence, delivered judgment under Ex.A3 by concluding that vendors of defendant No.2 being plaintiff in suit Os 22/1992 cannot claim relief to the extent more than what they purchased and as per the document Ex.B1 vendors of defen- dant No.2 purchased only Ac.3.00 therefore, they cannot claim injunc- tion to the extent more than Ac.3.00, hence, that suit was dismissed on merits. As discussed above no document including plaint in O.S. 21 of 1992 filed to go through upon it’s schedule , extant claimed and boundaries shown. However, from and out of the contents in the Judgment under

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Ex.A3, it is clear that purchasing Ac.3.00 under Ex.B1 sale deed by vendors of defendant No.2 was recognized by the court through its

Judgment in Os 22/1992.

16. Document under Ex.B2 and the admissions of both parties made it clear that pending the suit in OS 22/1992 plaintiff therein viz., Seedarapu chinnayya and Seedarapu Papayya sold the property cov- ered under Ex.B1 copy of registered sale deed by specifically mention- ing that the property purchased by them from the father of plaintiff under registered document No.924/1976, was sold to defendant No.2 un- der registered sale deed/ Ex.B2 . Ex.B1 registered sale deed copy cou- pled with finding of the learned Junior Civil Judge court, Salur, through its Judgments in OS 22/1992 made it clear that property covered under sale deed defendant no. 2 vendors is only an extent of Ac.3.00 but not more than that. Specifically mentioned in Ex.B2 sale deed of defendant

No.2 also as an extent of Ac.3.00 but not more than that. Hence, extents covered under Ex.B1 copy of registered sale deed of defendants No.2 vendors and the extent covered under Ex.B2 sale deed of defendant No.2 are one and the same. Plaintiff disputed this transaction on the ground that transaction under Ex.B2 was done pending the suit OS

No.22/1992 and not valid. However, plaintiff not choose to challenge this document of Ex.B2 I..e sale deed of defendant No.2 executed by plaintiff therein in OS No. 22/1992. whereas the documents sought to be declared is the document executed by the defendant No.2 herein in favour of defendant No.1 in the year 2015. By that time ie..2015, suit in

OS 22/1992 was dispossed. Under these circumstances, this court is of

the view that the doctrine of lis-pendance as provided under sec-

tion 52 of the Transfer of Property Act though appears to be ap-

plicable to the transaction under Ex.B2 sale deed in favour of de-

fendant No.2, it may not be applicable to transaction under Ex.A6,

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which is in question, since it was occurred in the year 2015 after

disposal of suit OSNo. 22/1992.

17.However, finding by the Hon’ble High Court of Andhra

Pradesh in between V.Rama Rao vs.T.Raghunathan and another re- ported in AIR 2008 AP 902 in para No.5 ( Indian Kanoon - http://indi- ankanoon.org/doc/1236940/ 1V. Rama Rao vs T. Raghunathan And Anr. on 1 September, 2007) that:-

5. It is true that Section 52 of the Act protects the parties to a suit from the ef- fect of transfers made in respect of the property, in question, during the pen- dency of the suit. The prohibition contained in Section 52 of the Act is not ab- solute in nature. It is only to the effect that the transfer shall not affect the rights of any party to the suit. In other words, if a decree is passed in a suit,

the transfer of the property, which is the subject matter of the decree, during

the pendency of the suit, cannot have any Impact on the executability of the

decree. The transfer, as such, made would not become void or illegal and it would be very much binding upon the parties thereto. What Section 52 of the

Act mandates is that the transfer would not have the effect of defeating the

rights of the parties to the suit.

On careful reading of the Judgment section 52 of Transfer of property Act it appears that section 52 of Transfer of Property act is only to the effect that the transfer shall not effect by defeating the rights of parties to the suit but it was subject to the finality of the suit.

Herein the document sought to be cancelled is the sale deed in favour of defendant No.1 under Ex.A6 dated:19.06.2015. As the Judgment under

Ex.A3, was delivered, thereby suit was disposed off on 31.08.1999 itself in OS 22/1992 and that suit was for permanant injunction only and as this transaction under Ex.A.6 being the transaction took place after dis- posal of the suit in OS 22/1992, the transaction covered under Ex.B2 in favour of defendant No.2 on 31.08.1999 came into effect after dis- posal of OS 22/1992 on 31.08.1999 and becomes valid since pending the suit OS 22/1992 will not effect by defeating the rights of parties to the suit as referred above. . Further, court in OS 22/1992 made it clear in

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it’s Judgments that the extent purchased by defendant No.2 ven- dors was only Ac.3.00 under Ex.B1 copy of registered sale deed which purchased from the father of plaintiff, therefore, the vendors of defendant No.2 cannot claim more than extent covered under Ex.B1, thereby the sale under Ex.B1 was recognized to the extent of Ac.3.00 only. Extent transferred by the sale deed under Ex.B2 was also only

Ac.3.00 and the document mentioned in Ex.B2 as link document to the property is nothing but Ex.B1 executed by the father of plaintiff,.

Hence, it is clear from and out of documentary and oral evidence as well as admissions by both parties that the transaction under

Ex.B2 registered sale deed sale deed of defendant No.2 was though a pendent lite transaction since it was occurred pending the suit OS 22/1992 on the file of learned Junior Civil Judge, Salur, that itself does not render the documents Ex.B2 as null and void, but postpones its operation till disposal of that suit. Accordingly, the suit in OS 22/1992 was disposed off in the year 1999 by concluding that the plaintiff in the suit who are vendors of defendant No.2 are entitled under Ex.B1 for only Ac.3.00 of land purchased from the father of plaintiff, thereby the document under Ex.B2 which contains Ac.3.00 only came into effect from the year 1999. Further other documentary evidence pro- duced in support that he enjoyed that property till 2015 are also sup- porting that the document Ex.A2 came into force from the year 1999.

18. Ex.B3 and B4 pattadar pass book and title deed book of defen- dant No.2. Ex.B5 computer generated 1-B register, Ex.B6 to B8 com- puter generated adangal copies and Ex.B9 tax payment receipts,, as well as Ex.B10 No.3 adangal copy duly attested by MRO, Salur, are also disclosing that the defendant No.2 possessed and enjoyed only Ac.3.00 as contended in Ex.B2 registered sale deed but not

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more than that. These Ac.3.00 were admittedly sold by the father of plaintiff to the vendors of defendant No.2 and vendors of defendant

No.2 sold the same to defendant No.2 under Ex.B2 registered sale deed. Under these circumstances, this court is of the view that the defendant No.2 who got the title to property to the extent of Ac.3.00 only appears to be transferred the same under Ex.A1 to defendant

No.1.

19.As discussed above, section 52 of the Transfer of Prop- erty Act is not applicable to Ex.A1 copy of registered sale deed exe- cuted by defendant No.2 in favour of defendant No.1, since it was not executed by the defendant No.2 pending the suit in OS 22/1992 on the file of Junior civil Judge, Salur filed by the vendors of defendant No.2 or the suit OS.No.100/2006 on the file of learned

Junior Civil Judge, Salur instituted by the defendant No.2 herein against the plaintiff. Suit in OS.No. 22/1992 was disposed off in the year 1999 under Ex.A3 Judgment copy and the suit OS.No.100/2006 was withdrawn in the year 2006 by filing IA 234/2006 as contained in

Ex.A5. Suit in OS 22/1992 was not for the relief of declaration of title or for any other relief of title except for grant of permanent injunction restraining the defendant by claiming more than the extent covered under Ex.B1, later failed to prove that more extant than Ac.3.00. There- fore, the court concluded that the plaintiff in that suit are not entitled to seek the relief to extent more than what they purchased under

Ex.B1. Suit in Os100/2006 was also not a suit for declaration of title as contained in the admissions of parties in their pleadings and it was also a suit for permanent injunction and later it was withdrawn. Hence, the transfer under Ex.A6 by the defendant No.2 in favour of defendant

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No.1 may not be a transfer pending the litigation to attract the provi- sions under section 52 of Transfer of Property Act.

20.However, it is to be seen that is there any strength in the plea of the plaintiff that defendant No.2 and defendant No.1 colluded together to grab the property of the plaintiff there by created Ex.A6- copy of sale deed and its existence cause serious injury to the plaintiff and the extent covered under Ex.A6 and B2 is an excessive extent, thereby there was change in the boundaries in these documents.

21.To support his plea and ground to declare that the docu- ment Ex.A6 is void, plaintiff himself deposed as Pw1 and further ex- amined PWs.2 and 3. Though these witnesses in their evidence in chief deposed that boundaries shown in Ex.B2 are not boundaries covered under Ex.B1 registered sale deed by the father of plaintiff in favour of defendant No.2 vendors viz., Seedarapu Chinnayya and

Seedarapu Papayya, it appears that after the transaction under Ex.B1 in the year 1976 on 14.05.1976 there were other transactions subse- quently occurred dealing with the land covered under suit survey num- ber and the father of the plaintiff as well as plaintiff with his other brothers transferred various extents of lands to other third parties in- cluding Chittibommala Ammulu under Ex.A9, Seedarapu Latchamma under Ex.A8 and others as admitted by Pw.1. Because of all these transactions, there might be change in the boundary by the year 1995 when the document under Ex.B2 was executed. It is for the plaintiff who approached the court to prove that the boundaries mentioned in Ex.B2 and Ex.A6 are intentionally shown to knock away more extent covered under Ex.B1 sale deed copy under which the father of plaintiff sold the property to the vendors of defendant

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No.2. For this purpose only available oral evidence is the evidence of

PWs.1 to 3. Though PW1 stated in his evidence in chief that the defen- dants are trying to occupy more extent , he further admitted that he is in exclusive possession and enjoyment of his family retained property as on today I.e. as on the date of his examination in the year 2020 and also on the date of institution of the suit i.e Ac.8.09 cents in sur- vey No.5/1 of Thoram village of Salur. Other witnesses PWs.2 and 3 evidence is not at all disclosing that the extant covered under Ex.B2 and Ex.A6 are more than the extent of Ac.3.00 mentioned in it. Par- ticularly PW3, evidence goes to show that he do not know about the dispute, thereby he stated in his evidence in cross-examination that he do not know the total extent of land covered under Sy.No.5/1 and also boundaries to it, where the defendants land situated and other particulars.

22.However, plaintiff attempted to prove this and to show that the property covered under Ex.A6 through Ex.B2 sale deed of defen- dant No.2 is more than the extent mentioned in it. For this purpose an advocate commissioner was appointed in IA 950/2015 in this suit.

Though the learned advocate commissioner was not examined as a wit- ness on behalf of either party, it is setteled law as ruled by Hon’ble

High Court of Andhra Pradesh in between Shaik Fathima Bibi vs.

Shaik Malle Saheb (died by L.Rs.) reported in 2005(4) ALT 269 that though the advocate commissioner was not examined as witness, his report will be part and parcel of court document. Therefore, court can go through it, under Order 26 Rule 10 (2) of CPC, but it’s not substantive evidence. In due obedience to the Law and Order 26 Rule 10 CPC, though the learned advocate commissioner who appointed in

IA 950/2015 was not examined as witness, his report can be looked

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into, if it assist the court. The learned advocate Commissioner vis- ited the suit property in obedience to the warrant issued to him and accordingly that warrant was executed on 22.06.2019 and he found that all three boundaries covered under Ex.B1, B2 and Ex.A6 are tal- lied on ground except on one side. To the property covered under

Ex.B1 boundary on east side and to property covered under Ex.B2 sale deed in favour of defendant No2 on north not tallied. But the learned advocate commissioner not shown the disputed extant in his plan or in his report. Under such circumstances, it is for the plaintiff to seek the appropriate relief by seeking declaration of his title with regard toproperty possessed and retained by family but not for this relief alone. However Pw.1 admitted extent of Acre 8.09 cents in the suit

Survey No.5/1 of Thonam Village still continued in the possession and en- joyment . Then, how this discrepancy was occurred, was not properly explained with evidence by plaintiff though the document executed by the father of plaintiff under Ex.B1 itself appears to be got some discrepancy. Whereas extent claimed by the defendant No.2 under

Ex.B2 and defendant No.1 under Ex.A6 not more than Ac.3.00 as covered under Ex.B1 sale deed executed by the father of plaintiff.

The Advocate commissioner also found the same that the defendant

No.1 who purchased the property under Ex.A6 from the defendant

No.2 and the defendant No.2 who purchased the same from his ven- dor under Ex.B2 possessed only Ac.3.00. Sketch filed by the learned advocate commissioner along with his report evidencing the same and the sketch was prepared with the assistance of Mandal

Surveyor. From and out of material collected through the learned advocate commissioner who appointed in the year 2015 and who vis- ited the property physically by noting down the physical features, is made it clear that the property possessed by the defendant No.1

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isonly to an extent of Ac.3.00 as contained in the Ex.B1 executed by father of plaintiff but not more than that.

22.Though discrepancy is appearing in the boundaries men- tioned in all documents, since transaction under Ex.A6 sale deed of 1st defendant is in terms of Ex.B2 of defendant No.2 and transac- tion under Ex.B2 was for the property covered under Ex.B1 sale deed of the defendants vendors executed by father of plaintiff and the document under Ex.A6 is not a pendent lite transaction document, this court came to a conclusion that the extent AC.3.00 was lawfully sold by the father of the plaintiff as found by the learned Junior

Civil Judge, Salur in OS 22/1992, and as the transactions are ap-

pears to be not collusive transactions and the extent is only Ac.3.00 but not more than that as apprehended by the plaintiff, if this docu- ment Ex.A6 is left, it may not cause any serious injury to plaintiff as apprehended since he admitted his possession of Ac.8.09 cents as contained in his document and defendant No.1 possessed only

Ac.3.00 of lands in terms of Ex.A16 as found by the learned Advocate commissioner and as submitted in his report. Under these circum- stances, it stregthening the pea of defendants that plaintiff’s relief to cancel the registered sale transaction between the defendant No.2 and defendant No.1 dated: 19.06.2015 only, may not be appropriate re- lief by leaving sale deed of defendant No.2 executed by his vendors and without seeking the relief of declaration his title with regard to land possessed by him . From and out of discussion, this court is of the view that as the transactions under Ex.B1, B2 and Ex.A6 respec- tively are proved to be to the extent of immovable property Ac.3.00 only but not more than that. The apprehension of plaintiff that the document under Ex.A6 is more than the extent mentioned in it and it

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was pendent lite transaction, thereby if it left over it will cause seri- ous injury is not appears to be probable and reliable. Therefore, this court came to conclusion that the plaintiff is not entitled for the relief of declaration as prayed. Accordingly, this issue is answered.

23.ISSUE NO.(4):-

4. Whether the plaintif is entitled for perpetual injunction?

It is the Law settled by Honorable Supreme Court of India in be- tween State Of Punjab & Anr vs Balkaran Singh, dt.. on 18 October, 2006 in Appeal (civil) 5847 of 2005 (Indian Kanoon - http://indiankanoon.org/doc/ 409511 / ) that when the main relief is refused, the consequential reliefs cannot be granted. Their lordship held as follows:

17.Once the prayer for declaration sought for in the suits is found to be

barred by limitation, it has to be noticed that the prayer that follows is

only consequential on the relief of declaration. That prayer is to the ef- fect that the plaintiff is entitled to the pay scale of Rs.1200-1850/- as against the scale of pay of Rs.940-1850/- with effect from 1.1.1978 and entitled for payment of all other service benefits including yearly incre- ments, arrears and interest thereon at the rate of 18 per cent per annum up to the date of payment with effect from 1.1.1978. It must be noticed that there is no independent prayer for recovery of arrears of pay and the prayer is couched in such a manner that it can be understood only as consequential on the grant of the first relief. In other words, it is not an

independent relief that could be granted even if the main prayer is de-

clined. In that view, it has to be held that a consequential relief could

not be granted in view of the fact that the main relief of declaration

sought for has been held to be barred by limitation.

Herein the plaintiff sought the relief of permanent injunction against the defendants as consequential relief. Since the main relief to declare the document as null and void is refused, the plaintiff who sought this relief as consequential relief is also not entitled, since it is apparent from the report of the learned advocate commissioner as well as contents in Ex.B4 to B10 revenue records that the property covered under suit schedule is only Ac.3.00 acres and it possessed

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and enjoyed by defendant No.2 and thereafter it is in the hands of defendant No.1 in terms of sale deed executed by the defendant

No.2 and admittedly the plaintiff is in possession and enjoyment of his extent Ac.8.09 cents as claimed. Hence, this issue is answered by coming to a conclusion that the plaintiff is also not entitled for the consequential relief of permanent injunction as prayed for.

24. I SSUE NO. 5.

5. To what relief?

In the result, the suit for declaration and consequential relief of permanent injunction is hereby dismissed. Under the facts and circumstances of this suit, both parties are directed to bear their own costs.

Dictated to the Personal Assistant, typed, corrected, signed

and pronounced by me in the open court, this the 6thday of January, 2022.

Sd/- T.Vasudevan

Senior Civil Judge,

Bobbili.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:

P.W.1: Poojari Narayana Rao D.W.1: Dandi Anantha Kumari

P.W.2: Bytipilli Ganapathi D.W.2: Dandi Srinivasa Rao

P.W.3: Dalayi Ramu D.W.3: Varanasi Manmadha Rao

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DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1: 1-B Namoona issued by Tahsildar, Salur

Ex.A2: Adangal in Fasali No.1422 for year 2012-2013 issued by Tahsildar, Salur.

Ex.A3: Certified copy of Judgment in OS.22/1992 on the file of Junior

Civil Judge, Salur.

Ex.A.4: Certified copy of Judgment S.A.No.63/2009, dt. 12.03.2009

Ex.A.5: Certified copy of docket order in IA 234/2006 in OS 100/2006 along with the petition on the file of Junior Civil Judge, Salur.

Ex.A.6: Certified copy of sale deed dated 19.06.2015 obtained to Mee- Seva.

Ex.A.7: Certified copy of sale deed dated 27.01.1995

Ex.A.8: Certified copy of sale deed dated 04.04.1975

Ex.A.9: Certified copy of sale deed dated 03.06.1976

FOR DEFENDANT:

Ex.B1: Certified copy of registered sale deed dated 14.05.1976

Ex.B2: Registered Sale Deed dated 27.01.1995

Ex.B3: Pattadar Pass Book infavour of 2nd defendant

Ex.B4: Title Deed in favour of 2nd defendant

Ex.B5: 1-B Namoona (ROR) obtained through Mee-Seva

Ex.B6: Pattadar Adangal/Phani copy for the fasali 1423 obtained through Mee-Seva

Ex.B7: Pattadar Adangal/Phani copy for the fasali 1424 obtained through Mee-Seva

Ex.B8:Pattadar Adangal/Phani copy for the fasali 1425 obtained through Mee-Seva

Ex.B9: is the land Revenue receipts (four in number)

Ex.B10: Certified copy of adangal for Fasalis 1406 and 1407 issued by Mandal Revenue Officer, Salur.

Sd/- T.Vasudevan

Senior Civil Judge

Bobbili

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IN THE COURT OF THE SENIOR CIVIL JUDGE: BOBBILI

Present: Sri T.VASUDEVAN,

Senior Civil judge, Bobbili

Tuesday, this the 2nd day of April, 2024

APPEAL SUIT No. 4 of 2015

Between:

Tentu Adinarayana, S/o late Narisimhulu @ Narasnnaidu, aged 53 years, Cultivation, residing at Mallampeta Village, Bobbili Mandal, Vizianagaram District.

... Appellant/Plaintif

And:

1.Tentu Appalaswamy, S/o late Narisimhulu @ Narasnnaidu, aged 70 years, Cultivation, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

2. Tentu Seetham Naidu, S/o late Narisimhulu @ Narasnnaidu, aged 68 years, retired Gangmen, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

3. Tentu Suridamma, W/o late Raminaidu, aged 60 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

4. Tentu Tirupathi Rao, S/o late Raminaidu, aged 35 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

5. Tentu Narasinga Rao, S/o late Raminaidu, aged 32 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

6. Tentu Gopalam, S/o late Narisimhulu @ Narasnnaidu, aged 60 years, residing at Mallammapeta Village, Bobbili Mandal Vizianagaram District.

7. Karri Srinu, S/o Gopalam, aged 40 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

(R.8 to R.10 are added as per orders in I.A. 698/2015, dt. 21.06.2016)

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8. Tentu Appalanarasamma, W/o late Gopalam, aged 50 years, residing at Mallammapeta Village, Bobbili Mandalam, Vizianagaram District.

9. Tentu Venu, S/o late Gopalam, aged 30 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

10. Tentu Sankara Rao, S/o late Gopalam, aged 25 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

11. Tentu Krishnamma, W/o Appalaswamy, aged 55 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

12. Tentu Venkateswara Rao, S/o late Appalaswamy, aged 55 years, residing at Mallammapeta Village,Bobbili Mandal,Vizianagaram District.

13. Tentu Janardhana Ramakrishna Rao, S/o late Appalaswamy, aged 49 years, residing at Near RTC Complex, Parvathipuram.

14. Chandana Jayalaxmi, W/o Srinivasa Rao, aged 45 years, residing at College Road, Bobbili.

(R.11 to R.14 are added as per orders in I.A. 311/2019, dt. 12.11.2020)

15. Tentu Srinivasa Rao, S/o late Seetamnaidu, aged 55 years, Employee, Mechanic, Railway Department, Visakhapatnam.

16. Tentu Tavitinaidu, S/o late Seetamnaidu, aged 50 years,Employee, Sakshi Paper, Chodavaram, Anakapalli, Visakhapatnam District

17. Maradana Uma, W/o Ramakrishna, aged 45 years, Railway Department, Puri, Orissa State.

(R.15 and R.17 are added as per orders in I.A. 281/2022, dt. 14.07.2022)Legal heirs of Respondent No.2

...... Respondents/Defendants

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ON APPEAL AGAINST THE DECREE AND JUDGMENT IN

O.S. 231 of 2009 DATED 25.03.2015 ON THE FILE OF THE

PRINCIPAL JUNIOR CIVIL JUDGE’S COURT, BOBBILI

Between:

Tentu Adinarayana, S/o late Narisimhulu @ Narasnnaidu, aged 53 years, Cultivation, residing at Mallampeta Village, Bobbili Mandal, Vizianagaram District.

... Plaintif

And:

1.Tentu Appalaswamy, S/o late Narisimhulu @ Narasnnaidu, aged 70 years, Cultivation, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

2. Tentu Seetham Naidu, S/o late Narisimhulu @ Narasnnaidu, aged 68 years, retired Gangmen, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

3. Tentu Suridamma, W/o late Raminaidu, aged 60 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

4. Tentu Tirupathi Rao, S/o late Raminaidu, aged 35 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

5. Tentu Narasinga Rao, S/o late Raminaidu, aged 32 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

6. Tentu Gopalam, S/o late Narisimhulu @ Narasnnaidu, aged 60 years, residing at Mallammapeta Village, Bobbili Mandal Vizianagaram District.

7. Karri Srinu, S/o Gopalam, aged 40 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

(R.8 to R.10 are added as per orders in I.A. 698/2015, dt. 21.06.2016)

8. Tentu Appalanarasamma, W/o late Gopalam, aged 50 years, residing at Mallammapeta Village, Bobbili Mandalam, Vizianagaram District.

9. Tentu Venu, S/o late Gopalam, aged 30 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

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10. Tentu Sankara Rao, S/o late Gopalam, aged 25 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

11. Tentu Krishnamma, W/o Appalaswamy, aged 55 years, residing at Mallammapeta Village, Bobbili Mandal, Vizianagaram District.

12. Tentu Venkateswara Rao, S/o late Appalaswamy, aged 55 years, residing at Mallammapeta Village,Bobbili Mandal,Vizianagaram District.

13. Tentu Janardhana Ramakrishna Rao, S/o late Appalaswamy, aged 49 years, residing at Near RTC Complex, Parvathipuram.

14. Chandana Jayalaxmi, W/o Srinivasa Rao, aged 45 years, residing at College Road, Bobbili.

(R.11 to R.14 are added as per orders in I.A. 311/2019, dt. 12.11.2020)

15. Tentu Srinivasa Rao, S/o late Seetamnaidu, aged 55 years, Employee, Mechanic, Railway Department, Visakhapatnam.

16. Tentu Tavitinaidu, S/o late Seetamnaidu, aged 50 years,Employee, Sakshi Paper, Chodavaram, Anakapalli, Visakhapatnam District

17. Maradana Uma, W/o Ramakrishna, aged 45 years, Railway Department, Puri, Orissa State.

(R.15 and R.17 are added as per orders in I.A. 281/2022, dt. 14.07.2022)Legal heirs of Respondent No.2

...... Defendants

This appeal coming on 20.02.2024 for final hearing before me in the presence of Sri K. Prasada Rao, Advocate for the Appellant and of Sri C.

Suryanarayana, Advocate for the Respondent No.7 and all others Re- spondents No.1 to 6, 8 to 17 remained exparte and having stood over for consideration to this date (Reserved), this Court passed the following:

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J U D G M E N T

1. This appeal is directed against the decree and judgment dated 25.03.2015 in OS 231 of 2009 on the file of the learned Principal Junior

Civil Judge’s Court, Bobbili whereby and where-under, the learned Prin-

cipal Junior CivilJudge, Bobbili, dismissed the suit against the plaintiff re- fusing to divide the suit properties for partition and separate possession.

2. Aggrieved by the dismissal the suit, the unsuccessful Ap- pellant/plaintiff approached this court by way of filing of this appeal. For the sake of convenience, and brevity, hereinafter, the parties will be re- ferred as per their array in the suit before the learned trial Court. third son of late Narassamnaidu viz., Raminaidu died at about 5 years back to the suit thereby, his legal representatives / heirs i.e., wife and children had been added as defendant No. 3 to5 in this suit.

3. CASE OF THE PLAINTIFF IN BRIEF IS THAT :-

(a) Suit schedule properties consists 10 (ten) item of properties in various Survey numbers situated in Mallampeta Village of Bobbili Mandal and all are Wet and Dry lands with different extents and these are origi- nally belongs to the ancestors of one Tentu Narasimhulu @ Narasima

Naidu S/o Gopi Naidu of Mallampeta Village. Said Tentu Narasimhulu got five sons viz., Tentu Appalaswamy/ defendant No.1, Tentu Seetam Naidu /

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defendant No.2, late Tentu Raminaidu/husband of defendant No.3, Tentu

Gopalam / defendant No.6 and TentuAdinarayana / plaintiff and all these father and sons being undivided joint family kept suit properties as joint family properties under joint cultivation by keeping in the hands of Tentu

Narasimhulu and after his demise who died about 20 years back to this suit, the plaintiff and defendants together got possession of these lands and enjoying with joint possession.

(b) Plaintiff further stated that defendant No.2 Tentu Seetamnaidu used to manage all these suit properties by acting as Kartha by sharing the agricultural products and income from and out of the suit properties among the sharers but for the past one year to this suit this defendant

No.2 started to act prejudicial to the interest of the plaintiff, therefore, plaintiff by coming to a conclusion that it may not be just to keep the prop- erties jointly in the management of defendant No.2, requested and de- manded the other sharers i.e., defendants to divide the suit properties into equal shares and to allot the share of plaintiff with metes and bounds by delivering its possession. Defendants having admitted the obligation, failed to make division of properties and further plaintiff came to knew that defendants 1 to 6 also mortgaged item No.1 of suit property to defen- dant No.7,therefore, plaintiff added defendant No.7 in this suit and got filed this suit praying the Court to divide the suit property into five (5) equal shares and to allot one (1) of those shares to him with metes and bounds.

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4. PLEA OF THE DEFENDANTS IS THAT :-

(a) Defendant No. 2 filed his written statement by admitting the a relationship between the parties as stated by the plaintiff as well as the status of defendant No.7 as purchaser of item No.1 of suit schedule prop- erty but denied other averments. This defendant further pleaded that around 30 years back to this suit while their father Tentu Narasimhulu was alive, their father Tentu Narasimhulu and his children including the plain- tiff got divided the suit properties with metes and bounds by considering the fertility of land and in that oral partition item No.2,3,7 and 8 of suit properties herein were given to defendant No.2 whereas the item No.1, 5, 6 and 9 had been allotted to late Tentu Raminaidu who is representing by defendant No. 3 to 5 herein, thereby, the defendants could able to sell away item No.1 of suit property to one Karri Srinu S/o Gopala Rao / defen- dant No. 7 and item No.4 of suit property had been allotted to defendant

No.6 later, he sold away the same to one Tentu Taviti Naidu an employee in A.P. Residential School, at Bobbili and that Taviti Naidu raised Neelagiri

Plantation within his land purchased and those plants are raised about 5 years as on the date of this suit as well as item No.10 of suit property was allotted to defendant No.1 apart from giving Acre 0.15 cents of Wet land and Acre 1.25 cents of Dry land in Gollapalli Revenue village in total

Acre1.40 cents of land towards the share of plaintiff herein, therefore, all the sharers /heir of late Tentu Narasimhulu got divided the suit properties around 30 years back to this suit and plaintiff also got Acre 1.40 cents of land in that partition, received it possession and enjoying it independently

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and separately.

(b)This defendant further pleaded that revenue authorities recog- nized the continuous and long possession of respective shares of land by plaintiffs and defendants as well as their oral partition and allotment of lands item No.1 to 10 shown in the schedule thereby, mutated all revenue records by entering the details of share of properties got by parties to this suit and issued pattadar passbooks separately, hence, there is no jointness of property as pleaded by plaintiff as on the date of instituting this suit, since these properties were got divided as partition around 30 years back to this suit and the plaintiff having received his share of property Acre 1.40 cents of land, knowing that he is not entitled more than that extent, by suppressing these facts, which are material in nature got filed this suit to gain wrongfully and to harass the defendants and further plaintiff also sold some e4.xtent of land fell to his share to one Tentu Taviti Naidu / an employee as referred above and that Tentu Taviti Naidu is the man behind this litigation, therefore, prayed to these circumstances and sought to dis- miss the suit.

(c)Defendant No.7 Karri Srinu filed his written statement stating that he purchased item No.1 of suit schedule property from the husband of defendant No.3 at about 5 years back for lawful cash consideration, ob- tained unregistered sale deed but that deed was lost at about 5 years back. This defendant further pleaded that from the date of purchase, this defendant No. 7 is in possession and enjoyment of land in Survey Number

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of 269/12 an extent of Acre0.13 cents i.e, item No.1 of suit property and this sale was done by the husband of10defendant No.3 after partition of his ancestral property with his brother and as it was fell to the share of the husband of defendant No.3 Raminaidu, therefore,plaintiff cannot seek divi- sion of this item No.1 of suit property, therefore, prayed to consider these circumstances to dismiss the suit in respect of item No.1 of suit property.

5. ISSUES:-

Basing on the plea of parties in plaint and written statement as well as upon hearing and on verification of documents, the learned trial court framed following issues for trial and adjudication :-

1. Whether the plaint schedule property is an ancestral property?

2. Whether the Plaintif and defendants have

been enjoying plaint schedule property as joint

family property?

3. Whether the plaint schedule properties shall be partitioned into five (5) equal shares?

4. Whether the plaintif is entitled for one (1) of

those shares of plaint schedule property and

for its allotment with metes and bounds?

5. Whether the plaintif is entitled for any mesne profits?

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6. Whether the Court Fee paid by the plaintif is correct?

7. To what relief?

6. EVIDENCE:

During the trial, before the learned trial court, in order to discharge his initial burden and to prove that he is entitled for the relief of partition of suit properties as prayed, the plaintiff Tentu Adinarayana himself de- posed as P.W.1 by exhibiting Ex.A.1 document i.e., Basic Valuation Slip of suit properties. Plaintiff further examined one Pola Simhachalam as PW2 apart from summoning and examining the representative Tahsildar, Bobbili i.e., K. Brahmanandachari as PW3 and this witness No.3 produced Ex.X.1

Certified Copy of Fair Copy of Adangal duly attested by the Tahsildar, Bob- bili as Ex.X.1. Defendants to substantiate their plea, defendant No.2 Tentu

Seetam Naidu deposed as DW1 and further examined one Nidiganti Ban- dayya as DW3 by producing Ex.B.1 to Ex.B.14 documents. These defen- dants though filed evidence in chief of one Pola Srinivas Rao as DW2, sub- sequently his evidence in chief was withdrawn, thereby eschewed.

7. FINDING OF TRIAL COURT:

After hearing both sides and on considering the entire evidence as referred above, the learned Principal Junior Civil Judge, Bobbili DIS-

MISSED THE SUIT WITH NO COSTS against the plaintiff by coming to a conclusion that the case of plaintiff not appears to be probable and reli-

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able than the plea of defendants.

8. GROUNDS OF APPEAL:

Aggrieved by the dismissal of suit, the unsuccessful plaintiff / Appel- lant here in, preferred this appeal with the following grounds:

1. The Trial Court ought to have decree the suit instead of dismissal and erroneously came to a conclusion that the plaintiff failed in establishing his case.

2. The Trail Court ought to have consider entries in Ex.B.1 to

Ex.B.3 and Ex.B.10 to Ex.B.14 which does not contain the name of appellant in order to satisfy that there was partition but erroneously dismissed the suit.

3. The Trail Court failed in considering the evidence of PW1 in total but based on admission of plaintiff as PW1 about his possession of ancestral property to the extent of Acre 1.70 cents or Acre 2.00 cents, came to an erroneous conclusion.

4. The Trail Court failed in considering the admissions of DW1 and DW2 in their cross examination which favours the plaintiff/ appellant but dismissed the suit wrongly.

5. The Trail Court failed to consider the oral evidence and documentary evidence produced by defendants in a proper manner.

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6. The Trail Court wrongly considered entries in Ex.B.1 to Ex.B.14 documents though it does not discloses property received by partition but relied and erroneously dismissed the suit.

09. ADDITIONAL EVIDENCE:

No additional evidence produced by both parties except advanc- ing arguments. Considered the arguments.

10. ARGUMENT IN APPEAL:

(a) Learned counsel for the appellant/ plaintiff submitted that in spite of the best evidence placed by plaintiff to substantiate his plea, the learned trail court erroneously decided the issues framed, thereby, the suit was dismissed and it is evident from the admissions of DW1 and the en- tries made in the documents Ex.X.1 coupled with the admissions of PW3 representative of revenue department made it clear that there is no parti- tion of properties with metes and bounds in writing equally among the members of joint family by dividing their ancestral property / suit property, therefore, prayed to consider the circumstances and to decree the suit by setting aside the decree and Judgment of trial Court.

(b) Learned counsel for the respondents/defendants submitted that by considering oral evidence adduced and documentary evidence pro- duced,the learned trial court arrived to a just conclusion in accordance

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with the Law and Principles of evidence, thereby, dismissed the suit. Un- der these circumstances, requires no interference into the trail court judg- ment , since the Judgment of trial court is well supported with good rea- sons for arriving conclusion in favour of against the appellants, therefore, prayed to dismiss the appeal.

11. POINTS FOR CONSIDERATION:

In view of the specific contentions raised by both the parties, the following simple points arises for consideration are:

1. Whether the defendants could able to satisfy

upon the earlier oral partition and whether it is

binding the plaintif ? If, so

2. Whether the plaintif / appellant accepted the share of property allotted to him? If, so

3. Whether the plaintif is entitled to seek divi- sion of properties again as prayed? If, so

4. Whether the Judgment of the Trial Court is not sustainable under Law as argued? If, so

5. Whether the plaintif / appellant is entitled for

division of properties into five (5) equal shares

and for allotment of one (1) of such shares to

him as prayed?

12) POINTS NO.1 TO 5 :-

It is the Law settled that in all suits for partition, the burden

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is upon the plaintiffs who approached the court to prove that they are in joint possession of suit properties and the suit properties are either joint family properties or ancestral properties as ruled by the

Hon'ble High Court of Andra Pradesh in between RAYADURGAM SUB-

RAMANYAM (DIED) REP, LRS VS. RAYADURGAM GANGAIAH

(DIED) REP, LRS reported in 2020 (6) ALT 141 (A.P) = 2020 SCC On-

Line TS 3395. Their Lordship ruled in para no. 20 of its Judgment as fol- lows:-

20. The initial burden to prove that the plaint sched-

ule properties are the joint family properties is on the

plaintifs. It does not in any manner get altered or

shifted to the defendants. At the same time, there is

presumption in favour of joint nature of the properties

held by a Hindu joint family

Herein, it appears from the evidence let in before the learned

Principal Junior Civil Judge, Bobbili, it appears that the plaintiff Tentu

Adinarayana in support of his claim for one (1) share out of five (5) equal shares of suit property deposed himself as PW1 by examining two more witnesses as PW2 and PW3 and produced Ex.X.1 through PW3. To obstruct the claim of plaintiff, the defendant number 2 and 7 who contested the suit through defendant No.2 Tentu Seetam Naidu produced Ex.B.1 to Ex.B.14 documents by examining a 3rd party Nidaganti Bandayya. It is the plea of plaintiff and evidence of PW1 Tentu Adinarayana that all the suit

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properties i.e., item No.1 to 10 are the ancestral properties of his father and during the life of his father Tentu Narasimhulu, his father enjoyed with absolute rights and after his demise all items No.1 to 10 properties came in to the hands of his children including the plaintiff, defendant No.1 and 2, 6 as well as the husband of defendant No.3 and all these are jointly enjoying these properties item No.1 to 10 without any partition even by the date of suit O.S. 231/2009. In obedience to the judgment as referred above, it is the duty of plaintiff to place prima facie evidence that all these item No.1 to 10 of suit properties are ancestral properties of his family thereby, capable of partition. It appears that plaintiff produced no evidence before the learned trial court except himself deposing as PW1 by producing Ex.A.1.

13.Ex.A.1 is nothing but valuation certificate of suit properties filed for the purpose of ascertaining / determining the Court fee need to be paid for the suit O.S. 231/2009, hence , it is not a supporting evidence to the claim of plaintiff as found by the learned trial court. Though plaintiff summoned and examined the then Deputy Tahsildar of Bobbili Mandal viz.,

Kanchumoji Brahmanandachari as PW3, his evidence goes to show that the fair copy of adangal / Ex.X.1 contents are true and correct. Contents in

Ex.X-1 Fair Copy of Adangal /FCO discloses only six items of properties entered in the name of Tentu Gopi Naidu S/o Narasimhulu who is not at all a son of late Tentu Narasamnaidu as contained in the plaint. As per evidence of plaintiff as PW1 and his plea in his plaint late Tentu

Narasimhulu @ Narasamnaidu had only five sons, Tentu Appalaswamy /

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defendant No.1, Tentu Seetamnaidu / defendant No.2, Tentu Rami Naidu / husband of defendant No.3, Telutu Gopal / defendant No.5 and the plaintiff

Tentu Adinarayana. Hence, it is clear that entries contained in Ex.X-1 FCO

Copy produced by PW3 to support the plaintiff does not reflect that the plaintiff is entitled for 1/5th share in the suit properties as it contains the name of pattadar as Tentu Gopi Naidu S/o Narasimhulu but not any of the above named children of Tentu Narasimhulu @ Narasamnaidu. Hence it

is clear that oral evidence adduced and the documentary evidence

produced by the plaintif does not discloses that all the suit

properties item No.1 to 10 are the ancestral properties of his father

and those are still under joint possession of plaintif and

defendants. However, it appears that defendant No.2, the brother of plaintiff admitted certain facts.

14.Defendant No.2 Tentu Seetamnaidu as DW1 not denied the fact that item No.1 to 10 of suit properties belongs to his ancestors, further he admitted in his cross examination by the plaintiff that all the suit schedule properties are ancestral properties inherited from his father.

From and out of these admissions of defendant No.2 as DW1 as well as the contents contained in the documents produced by him under Ex.B.1 to

Ex.B.14 including the revenue records supporting the plaintiff by establishing that all the items No.1 to 10 of suit schedule properties belongs to ancestors of PW1 thereby, these are all available on ground as ancestral properties of plaintiff family. Now it is for the plaintiff to place

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evidence that these properties are still undivided and are in joint possession of plaintiff and defendants. Unless this joint possession is proved, he is not entitled to seek partition. For this evidence brought

before the learned trial court is the oral evidence of PW1 and 2 apart from

cross examining defendant No.2 who deposed as DW1. It is clear that the defendant No.2 Tentu Seetamnaidu denied the suggestion of plaintiff that all the suit properties are still in joint possession as undivided thereby, plaintiff is entitled for a share in it. In view of the denial of the joint status of suit properties by defendant No.2, the primary burden of proof is upon the plaintiff. It appears that plaintiff failed in discharging his burden of proof.

15.Since, plaintiff specifically pleaded and as PW1 deposed that all the suit properties item No.1 to 10 are undivided and are under the management of defendant No.2 Tentu Seetamnaidu as Kartha of joint family since, the father of plaintiff died long back by leaving defendant 1,2, 6 and the plaintiff with the husband of defendant No.3. To prove it plaintiff produced nothing in the form of documentary evidence except Ex.A.1 and

Ex.X.1. As discussed above, Ex.A.1 is nothing but a valuation slip for payment of court fee and Ex.X.1 does not contain the name of defendant

No.2 Tentu Seetamnaidu as possessor / owner of properties mentioned in

Ex.X-1 FCO Copy. Hence, as found by the learned trial court, these documents Ex.A.1 and Ex.X.1 are no way helpful to plaintiff to prove the fact of that the suit properties item No.1 to 10 are still undivided and

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under the management of defendant No.2 . In view of the specific plea of defendant No.2 that all the suit properties i.e., item No.1 to 10 had been divided long back around 30 years to this suit and there is no jointness of property as the sharers i.e., plaintiff, defendant No.1, 2, 6 and the husband of defendant No.3 received their respective share, possessed and possessing respectively by mutating revenue records, it is for the plaintiff to place evidence that all these properties are still under the management of defendant No.2 as Kartha of joint family. There is no such evidence as found by the learned trail court to consider the prayer of the plaintiff. The other hand evidence let in in this suit by both parties before the learned trial court, discloses that the plea of defendants / respondents appears to be more probable and reliable under the facts and circumstances of the suit OS. 231/2009 than to the plea of plaintiff.

16.Plea of defendants / respondents herein, particularly the respondent No.2 and his evidence as DW1 is that around 30 years back to this suit there was a oral partition between the children of late Sri Tentu

Narasimhulu @ Narasamnaidu by considering the fertility and value of land and in that oral partition item No.2, 3, 7 and 8 had been allotted to the defendant No.2 Tentu Seetamnaidu, item No.1, 5, 6 and 9 of suit properties had been given towards the share of their brother late Tentu

Raminaidu/ husband of defendant No.3 and father to defendant No.4 and 5 as well as item No. 10 of suit property was allotted and given to defendant

No. 1 Tentu Appalaswamy and item No. 4 of suit schedule property was

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allotted to defendant No. 6 Tentu Gopalam apart from allotting Acre 1.40 cents of ancestral property / land to the plaintiff Tentu Adinarayana towards his share, thereafter all these shares who got their respective share of properties obtained possession of their individual extents, cultivating their lands separately for the past 30 years to this suit and it was recognized by revenue authorities thereby, they got issued pattadar passbooks by mutating revenue in respect of the separate share properties of children of late Tentu Narasimhulu as well as the husband of defendant NO.3 viz., Rami Naidu out of his share of properties, he sold some extent of land i.e., item No.1 of property to defendant No. 7 Karri

Srinu. Since, defendant No.2 objected the relief of partition specifically with these facts, to prove these assertions, he produced Ex.B.1 to Ex.B.14 documents in addition to cross examining the plaintiff Tentu Adinarayana who deposed as PW1.

17.Before going to consider these oral evidence and documentary evidence it may be just in the interest of justice to refer the Law explaining the modes of partition. It is the Law settled that a partition of undivided joint or ancestral properties can be done either orally or by an instrument of partition. If an instrument is reduced into writing evidencing the partition, it shall be upon sufficiently stamped paper and it should be duly registered. If it is an oral partition, such partition is to be established by adducing oral evidence with supporting documentary evidence if any.

Hence, Law is settled that a partition of properties can be done even by

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orally and it is valid under the Law. Honourable High Court of Madras in between PEDDU REDDIAR VS KOTHANDA REDDI reported in AIR 1966 MADRAS 419 ruled as follows:

(9) The question of law, however, remains, whether the arrangement, by which items 1 to 4 of A schedule and one fourth share in the well in item 6 were allotted specifically to Ellappa, is valid in law. Ellappa and Peddu Reddi were co-owners. An oral partition between co-owners is valid in

law. Sec. 9 of the Transfer of Property Act says that a transfer of

property may be made without writing in every case in which a writ-

ing is not expressly required by law. A partition between co-owners it

may perhaps be said to involve a transfer of property because in the

specific properties allotted to a particular co-owner the interest

which the other co-owners had previous to the partition is given up

and to that extent it may be said to be a transfer of property. But the

Transfer of Property Act itself does not expressly require such a par-

tition to be in writing, and there is no other provision of law requiring

such a partition to be evidenced by writing. The only Section in the Transfer of Property Act which can possibly be held to apply is Sec. 118 dealing with exchange. That runs thus: "When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "ex- change". A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale".

Similarly, Honourable Supreme Court of India, in its recent pronouncement in between H. VASANTHI VS A. SANTHA (DEAD)

THROUGH LRS. AND OTHERS reported in 2023 SCC OnLine SC 998 while dealing with the validity of oral partition and its evidential value, ruled as follows:

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15. We are alive to the principle that there is no prohibition to effect a

partition otherwise than through an instrument in writing by duly

complying with the requirement of law. In other words, the division

may also be effected under a settlement or oral understanding. The circumstances and manner of recognizing Defendants 1 and 2 as exclu- sive owners are not disclosed by the plaintiff or Defendants 1 and 2.

18.On plain and careful reading of above referred judgments, it is clear that a partition can be took place between the co-sharers orally also and all partitions always need not be compulsorily reduced into writing and should be registered. Herein, the plea of defendant No.2 is that long back around 30 years back of this suit there was a oral partition between the children of late Tentu Narasimulu @ Narasamnaidu in where the sharers including the plaintiff got their respective share of properties and enjoying it for the past 30 years thereby, there is no jointness of properties enabling the Court to divide again and entitling the plaintiff to claim share again. In support of it defendants produced Ex.B.1 to Ex.B.14 documents apart from examining the appellant herein, who is the plaintiff in O.S.

231/2009.

19. Tentu Adinarayana / appellant herein, as PW1 in OS 231/2009 though denied the earlier partition pleaded by defendant No.2, in the cross examination of PW1, he specifically admitted that “he is

living by cultivation and he is cultivating around Acre 1.70 cents or

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Acre 2.00 cents of land which is an ancestral property devolved to

him through his family”. This admission of PW1 / plaintiff who is appellant herein, is not a stray admission but on careful and combined reading of his entire evidence coupled with the entries in Ex.B.1 to

Ex.B.14 documents suggests and supports the plea of defendants as probable and reliable than to the plea of plaintiff as well as establishing that there is no wrong committed by the trial court in considering this admission for arriving to a conclusion. PW1 being brother of defendant

No.2 and having knowledge about the plea of defendants as to the earlier oral partition and allotment of Acre 1.40 cents of land to plaintiff towards his share of property in the ancestral property of his family and having shown item No.1 to 10 properties of in the schedule, admitting that he is in possession of Acre 1.70 cents or Acre 2.00 cents of ancestral land and he cultivating these land and by living upon cultivation of this land. This man PW1 is aged about 56 years as on the date of his examination. Since, plaintiff himself admitted that he is in possession of Acre 1.70 cents of ancestral land belongs to his family, it is for him to prove further that what are those lands and where these lands are existing. There is no such specification either by PW1 or by his subsequent witnesses that whether said Acre 1.70 cents of land belongs to the ancestors of plaintiff which is under his cultivation or the lands shown item No. 1 to 10 herein, or the lands other than item No.1 to 10 suit properties.

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20.If the land possessed by plaintiff as admitted by him which is ancestral property of his family is considered as the land other than item

No.1 to 10 of suit properties herein, it is clear that plaintiff not shown those lands in the schedule seeking partition of these lands also thereby, plaintiff intentionally suppressed lands of his ancestors which are capable of partition, hence, this suit OS 231/2009 amounts to a suit for partial partition for non inclusion of all ancestral properties capable of partition.

On this ground alone the plaintiff is not entitled for the relief. If, the land possessed by plaintiff is considered as item No.1 to 10 of suit property herein, he is not entitled to seek partition again out of his admittedly possessed extent of land i.e., Acre 1.70 cents of ancestral property as found by the learned trail court. Considering in any way, the plaintiff is not entitled for share of properties again in item No.1 to 10 suit schedule properties because the total extent of suit property in item No.1 to 10 is only Acre 1.90 cents and the suit is bad for non inclusion of ancestral properties admittedly possessed by plaintiff and liable to be dismissed, since, a suit for partial partition is not maintainable as ruled by

Honourable High Court of Andhra Pradesh in between N. JANGI REDDY

AND OTHERS VS YELLARAM NARASIMHA REDDY AND OTHERS

reported in 2008 (4) ALT 567. Further, contents in Ex.B.1 to B.14 documents supporting the plea of defendant No.2 by making it as probable and reliable.

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21.Defendant No.2 Tentu Seetamnaidu in his written statement as well as in his evidence in chief as DW1 deposed that 30 years back to this suit by considering the fertility of land and its value, plaintiff defendant

No.1 and 2, husband of defendant No.3 and defendant No.6 being children of late Tentu Narasamnaidu @ Narasimhulu got divided item No.1 to 10 of suit schedule properties and other lands as they being their ancestral properties and in that partition item No.2, 3, 7 and 8 had been allotted to the defendant No.2 Tentu Seetamnaidu, item No.1, 5, 6 and 9 of suit properties had been given towards the share of their brother late Tentu

Raminaidu/ husband of defendant No.3 and father to defendant No.4 and 5 as well as item No. 10 of suit property was allotted and given to defendant

No. 1 Tentu Appalaswamy and item No. 4 of suit schedule property was allotted to defendant No. 6 Tentu Gopalam apart from allotting Acre 1.40 cents of ancestral property / land to the plaintiff Tentu Adinarayana towards his share, thereafter all these shares who got their respective share of properties obtained possession of their individual extents, cultivating their lands separately for the past 30 years to this suit and it was recognized by revenue authorities thereby, they got issued pattadar passbooks by mutating revenue in respect of the separate share properties of children of late Tentu Narasimhulu as well as the husband of defendant NO.3 viz., Rami Naidu out of his share of properties, he sold some extent of land i.e., item No.1 of property to defendant No. 7 Karri

Srinu. Since, defendant No.2 objected the relief of partition specifically with these facts, to prove these assertions, he produced Ex.B.1 to Ex.B.14 documents in addition to cross examining the plaintiff Tentu Adinarayana

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who deposed as PW1. Entries in Ex.B.1 Original Pattadar Passbook defendant No.2 Tentu Seetam Naidu disclosing that he owned and possessed only item No.2, 3, 7 and 8 properties shown in schedule but not all item No.1 to 10. It is the plea and evidence of PW1 that defendant No.2

Tentu Seetamnaidu is managing all the suit properties as Kartha of joint family right from the demise of their father Tentu Narasimhulu by keeping the suit properties as joint family properties. If it is true, item No.1 to 10 of suit properties should be entered in the name of defendant No.2 Tentu

Seetamnaidu only but not item No. 2,3,7 and 8 alone. Further, entries available in other revenue records produced under Ex.B.2 / 1-B Account copy under Ex.B.3/ No.3 Adangal copy under Ex.B.4 to Ex.B.9/ Property tax receipts under Ex.B.10 to Ex.B.13 No.3 Adangal copies and Ex.B.14 copy of FAO Fair Adangal which are all duly signed by Tahsildar, Bobbili and the Revenue Inspectors evidencing that item No.2, 3, 7 and 8 of suit properties are in continuous possession and enjoyment of defendant No.2

Tentu Seetamnaidu right from the year 1999 even by the date of instituting this suit, therefore, only these items 2,3, 7 and 8 alone entered in the name of defendant No.2 but not all item No.1 to 10.

22.As the plaintiff / appellant specifically pleaded that item No.1 to 10 are in the possession of defendant No.2 as Kartha of joint family, in view of the evidence of defendant No.2 as DW1 and the entries contained in Ex.B.1 to Ex.B.14 documents, it is for the plaintiff to establish and prove that among plaintiff, defendant No.2, 6 and husband of defendant No.3, who possessed / possessing the other item of properties shown in the

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schedule i.e., item No. 1, 4 to 6, 9 and 10. There is no such evidence on the other hand entries contained in Ex.B.1 to Ex.B.14 documents supporting the plea of defendant No.2 that item No.1, 5, 6 and 9 of suit schedule were allotted to the share of the husband of defendant No.3 / brother of plaintiff viz., late Tentu Raminaidu and item No. 4 had been allotted to the share of defendant NO.6 Tentu Gopalam, item NO. 10 was allotted to the share of defendant No.1 Tentu Appalaswamy and these are all enjoying these properties thereby, their names had been mutated in revenue records more particularly No.3 adangals under Ex.B.3, Ex.10 to

Ex.B.13. These entries available in Ex.B.10 to Ex.B.13 probablizing the plea of defendant No. 2 that there was oral partition between the children of late Tentu Narasimhulu by considering the fertility of suit schedule properties and in that oral partition item No.2, 3, 7 and 8 had been allotted to the defendant No.2 Tentu Seetamnaidu, item No.1, 5, 6 and 9 of suit properties had been given towards the share of their brother late

Tentu Raminaidu/ husband of defendant No.3 and father to defendant No.4 and 5 as well as item No. 10 of suit property was allotted and given to defendant No. 1 Tentu Appalaswamy and item No. 4 of suit schedule property was allotted to defendant No. 6 Tentu Gopalam apart from allotting Acre 1.40 cents of ancestral property / land to the plaintiff Tentu

Adinarayana towards his share, thereafter all these shares who got their respective share of properties obtained possession of their individual extents, cultivating their lands separately for the past 30 years to this suit and it was recognized by revenue authorities thereby, they got issued pattadar passbooks by mutating revenue in respect of the separate share

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properties of children of late Tentu Narasimhulu. Hence, it is clear that the oral partition between the children of Tentu Narasimhulu @ Narasam

Naidu had been proved and it was acted upon by all the sharers, obeying to it without disputing for the past 30 years, enjoying their respective share of land including the plaintiff by receiving and cultivating around

Acre 1.70 cents or Acare 2.00 cents of ancestral property of his family as admitted by him, therefore, seeking division of properties again without disclosing his share of property establishing that the plaintiff not approached the learned trail Court with bonafide intention, suppressed material facts, thereby, failed to establish his plea by leading evidence during the trial, therefore, it leads to the just finding given by the learned trial court by dismissing the suit.

23.In view of above facts and Law discussed, this Court came to a conclusion that the learned trial Court by considering the evidence brought on record and by following the principles of Law of evidence, properly appreciated the evidence and gave finding with in the settled principles of Law, and the learned trail court considered Ex.B.1 to Ex.B.3,

Ex.B.10 to Ex.B.14 properly by considering the admissions of appellant herein as PW1 in the suit in appropriate manner and the learned trial court justified in dismissing the suit under the facts and circumstances of this suit since, the plea of defendant No.2 is appears to be more probable and reliable than to the plea of plaintiff / appellant. Therefore,, the finding given by the learned trial court in O.S. 231/2009 is not erroneous as submitted by the appellant herein, hence, no need to interfere into the

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finding and judgment of learned Principal Junior Civil Judge, Bobbili in

O.S. 231/2009 thereby, this appeal against that decree and judgment in

that suit is liable to be dismissed.

24. RESULT:

In the result, this APPEAL IS DISMISSED by confirming the decree and judgment passed by the learned Principal Junior Civil

Judge, Bobbili in O.S. 231 of 2009, dt. 25.03.2015. In the facts and cir-

cumstances of the suit, NO COSTS.

Dictated to the Typist, typed, corrected, signed and

pronounced by me in the open court, this the 2 nd day of April, 2024.

Sd/- T. Vasudevan

Senior Civil Judge,

Bobbili.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

DOCUMENTS MARKED

No oral or documentary evidence adduced by either party in this appeal.

Sd/- T. Vasudevan

Senior Civil Judge,

Bobbili.

1

IN THE COURT OF SESSIONS: SESSIONS DIVISION: VIZIANAGARAM

BEFORE THE ASSISTANT SESSIONS JUDGE: AT BOBBILI.

Present: T. VASUDEVAN, Assistant Sessions Judge, Bobbili.

Wednesday this the 5 th day of January, 2022

Sessions Case No 118 OF 2015

PRC No: 8/2015 of Judl. I Class Magistrate, Salur

Between :

State represented by the Inspector of Police, Salur Circle, Salur

...Complainant

And:

1.Gandipalli Srinivasa Rao, s/o Chinna Rao, 31 years, Telukali by caste, Karri veedhi, R.B.Puram village and Mandal.

2.Karri Ramesh s/o Venkata Rao, 22 years, K.Velama by caste, Gorle Veedhi, owner of RameshCell care Centre, R.B.Puram village and Mandal.

… Accused No.1 and 2

This case came before me on 21.12.2021 for final hearing in the presence of Sri M.Jagannadha Rao, Additional Public Prosecutor for the

State and of Sri K.Prasada Rao, Advocate for accused No.1 and Sri

T.Panigrahi, advocate for the Accused No.2, and having stood over for consideration to this date, this Court delivered the following:-

J U D G M E N T

1.This sessions case arose out of the police report by the Sub

Inspector of Police, Ramabhadrapuram Police station who filed charge sheet against the accused No.1 and 2 for the offences punishable under section 417, 420, 354-C, 497 of IPC and sec 306 r/w 511 of IPC and section 67(A) Information Technology Act 2000 in Crime. No.13/2015.

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2. THE CASE OF PROSECUTION IN BRIEF IS THAT :-

(a)Mamidi Somulamma/PW1 and Mamidi Srinivasa Rao/PW2 are the wife and husband, their marriage took place about 17 years back.

Accused No.1 is close friend of PW2/ Mamidi Srinivasarao, who used to visit the house of PW2 frequently. PW1/Mamidi Somulamma developed friendship with Accused No.1 and moved closely.

While so, about 3 months back to this crime, on one day at 11.00a.m. Mamidi Somulamma/PW1 visited the pan shop of Accused No.1, had sexual intercourse with Accused No.1, at that time Accused No.1 took video graphs of intercourse with mobile phone, without the knowledge of

PW1/Mamidi Somulamma and after coming to know PW1 taken the cell and memory card and later after four days she handed over it to Accused

No.1, at the request of Accused No.1 for downloading songs into another memory card. Subsequently, on 29.01.2015 PW1/Mamidi Somulamma came to know that the video of sexual intercourse flashed in

Ramabhadrapuram through cell phones, which was down loaded by

Accused No.2 and Juvenile-in-conflict with law by using computer technology. When PW1./Somulamma questioned the accused No.1, he threatened her to do anything and instigated her to commit suicide. Since the victim felt ashamed, on 30.01.2015 at 8.30a.m. due to fear,

PW1/Mamidi Somulamma attempted to commit suicide by consuming pesticide at her house. On coming to know Mamidi

Sakunthala/LW2/daughter of PWs1 and 2, informed the same to

PW2/Mamidi Srinivasa Rao, shifted PW1/Mamidi to Community Health

Centre, Badangi for treatment.

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(e)Police, Ramabhadrapuram upon intimation rushed to hospital and recorded statement of P.W.1 through S.Santhosh Kumar/L.W.16 the then Sub

Inspector of Police and basing on the statement given by Mamidi

Somulamma/PW1, a case in Crime.No.13/2015 of Ramabhadrapuram P.S.

was registered by S.Santosh Kumar/Sub Inspector of Police/PW13, on 30.01.2015 at 14.00hours, investigated into, examined the witnesses and recorded their statements, visited the scene of offence, drawn rough sketch and scene observation report later G.Ramakrishna/Inspector of Police/PW14 took up investigation in this case, arrested the accused No.1 on 02.02.2015 in the presence of mediators ( Thumula Gopala Krishna and

Thumula Simhachalam/PWs.9 and 10, seized the cell pone with memo card basing on the confession of Accused No.1, and submitted for judicial custody. On 08.02.2015 at 11. a.m. caught hold the Accused No.2 and juvenile in conflict with law, who confessed about down loading of sexual intercourse to computer disc from cell phone, in the presence of mediators ( Thumula Gopala Krishna and Thumula Simhachalam/PWs.9 and 10, seized the CPU under the cover of mediators report, served 41(1)(a)

Cr.P.C. Notice on Accused No.2 and juvenile. Dr. L.Umameswari/PW11 treated the injured and issued medical certificate. PW14/Inspector of

Police, laid charge sheet after completion of investigation for the above referred punishable sections.

3. COGNIZANCE:

The learned Junior Civil Judge-Judicial Magistrate of First Class,

Salur took cognizance of the case for the offences under sections 417, 420, 354-C, 497 of IPC and sec 306 r/w 511 of IPC and section 67(A) Information

Technology Act 2000 in PRC 8/2015. After appearance of the accused, copies under section 207, Cr.PC were furnished. As the offence under section 306 IPC is exclusively triable by Court of Session, the learned Judicial 4

Magistrate of First Class has committed the case to Honourable Principal

District and Sessions Judge, Vizianagaram who took cognizance of the case for the offence sections 417, 420, 354-C, 497 of IPC and sec 306 r/w 511 of

IPC and section 67(A) Information Technology Act 2000 and made over the case to this Court for disposal as per law.

4. CHARGE:

On receipt of the record and on hearing both sides this Court framed charge for the offences punishable under sections 417, 420, 354 -C, 497 of IPC and sec 306 r/w 511 of IPC and section 67(A) Information

Technology Act 2000 against the accused No.1 and section 67(A) Information

Technology Act 2000 against the accused No.2 separately, read over and explained in Telugu, for which they denied the charge and claimed to be tried. Accordingly trial schedule was fixed.

5. EVIDENCE:

During the trial, the prosecution examined P.Ws.1 to 14 and exhibited

Exs.P.1 to P.23 as well as produced Mos.1 to 5. MO.1 is poison bottle (Sumitox). MO2 is the memo card. MO3 is the Samsung company Duos model mobile phone. MO.4 is Frontek company CPU and MO.5 is Samsung company monitor.

a).The victim/ PW1 Mamidi Somulamma deposed in her evidence that she got acquaintance with Accused No.1 through her husband, who used to run wine shop opposite to her house. Further deposed that around 4 ro 5 years back at about 10.00 a.m. Accused No.1 requested her to come to his house as his wife is suffering illness, she went to his house and accused No.1 had sexual intercourse with her, but she could not recollect what had happened later on. After she returned to her house, she received phone call from Accused No.1 stating that he has taken video regarding sexual intercourse, so saying he sent a video through his cell, 5 due to the act of Accused No.1 she consumed pesticide. Her daughter who was at home, called the neighbours and her husband and she was taken to

Hospital Badangi ,later she was shifted to Government Hospital,

Vizianagaram. She identified the poison bottle(sumitox) which was the pesticide consumed as MO1.She further deposed that

Ramabadrapuram Police visited the Hospital, Vizianagaram while PW1 under treatment,obtained her signature,but they have not recorded her statement and she could not recollect whether she was examined by the police or not. She identified her signature/Ex.A1 on the report dt:

30.01.2015, but stated that she did not know the contents thereon.

PW1/Victim in her Cross Examination deposed that she cannot say from which cell number she received phone call threatening. She has no any personal cell phone by the time and as she was under threat that she would receive video of absence pictures, she consumed the poison before hand. She further deposed that she is not aware the contents mentioned in the report by the police. She stated before the Judge while recording her statement as per the narration made by the police who accompanied her to the court. She further deposed that out of willingness herself and Accused

No.1 had cohabitation. She further deposed that she has not witnessed any video with obscene pictures.

PW2Mamidi Srinivasa Rao husband of PW1 deposed in his evidence that he received a phone call from P. Chinnarao(LW4) while he was present in his fields informing that PW1 suffering from ill-health, immediately he came and found PW1 in unconscious state as she consumed pesticide, shifted her to Govt. Hospital, Badangi, later to Government

Hospital, Vizianagaram. Hence, he do not know the reason behind for consuming pesticide by PW1 and he was not examined by the police.

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PW3/Ponduru Chinnarao,PW4/Mamidi Kumar,PW5/Mamidi Lakshmana,

PW6/Challa Suryaparakash, PW7/Pola Sreenu, PW8/Majji Ramu deposed in their evidence that they do not know anything about this case.

PW9/Thumula Gopala Krishna and PW10/Thumula Simhachalam,, mediators, deposed in his evidence that at the request of police about five years back he along with one Simhachalam signed on some papers on 30.01.2015, 02.02.2015 and 08.02.2015 respectively at the police station, but he do not know the contents therein. PW11/Dr. L.Uma

Maheswari, the then Civil Asst. Surgeon, Badangi Primary Health Centre deposed in her evidence that on 30.01.2015 she examined

MamidiSomulamma/PW1 as she consumed poisonous substance and was conscious, she given first aid, referred the patient to Maharaja

Government. Head Quarters Hospital, Vizianagaram on the same day, that she issued wound certificate under Ex.P17. Other witnesses deposed are

PW13/S.Santosh Kumar, the then Sub Inspector of Police and PW14/

G.Rama Krishna the then Inspector of Police. These witnesses deposed about the investigation in to the offence, collecting evidence by visiting the scene of offence as well as I examining the witnesses and also explaining the circumstances which they arrested accused 1 and 2 and seized the material objects MOs1 to 5.

6. EXAMINATION AFTER TRAIL:

After closure of prosecution evidence, this court examined the accused under section 313 Cr.P.C by explaining the incriminating material available in the evidence of prosecution witnesses, for which they denied the evidence as false and stated no defence evidence.

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7. ARGUMENTS :

Learned Additional Public Prosecutor submitted that evidence of

P.W.1, supported by P.W.2, P.W.15 to 17 who includes husband and

Investigating officers is to be consider to satisfy upon the requirements for the offences punishable under sections 417, 420, 354-C, 497 of IPC and sec 306 r/w 511 of IPC and section 67(A) Information Technology Act 2000as charged against the accused No.1 and 2 separately, therefore, prayed to consider these evidence to proceed against the accused.

Learned counsel for the accused No.1 and 2 together submitted that in absence of supporting evidence to the oral evidence of P.W.1 and evidence of P.Ws. 13 and 14 with regard to obscene content if any, their un- supported evidence alone not sufficient to proceed against the accused. They further submitted that in absence of evidence disclosing the acts did by the accused by instigating PW1 to make an attempt to commit suicide, it may not be possible to come to a conclusion that the accused abetted to attempt for suicide by P.W.1, therefore prayed to acquit the accused.

8. POINT FOR DETERMINATION IS:

1. Whether the prosecution proved the guilt of accused No.1 beyond reasonable doubt for the offences publishable under sections 417, 420, 354- C, 497 of IPC and sec 306 r/w 511 of IPC as charged?

2. Whether the prosecution proved the guilt of accused No.1 and 2 beyond reasonable doubt for the offences publishable under section 67(A) Information Technology Act 2000 as charged?

9. POINT:

Prosecution in order to establish that the accused No.1 committed offences punishable under sections 417, 420, 354-C, 497 of

IPC as well as Section 306 r/w 511 of IPC, apart from the offence punishable under section 67-A of Information Technology Act 2000, 8 examined PWs.1 to 14 by exhibiting documentary evidence under

Exs.P1 to P.23 apart from producing material objects/MOs1 to 5. with this available oral, documentary evidence and material objects exhibited, the guilt of Accused No.1 and 2 is to be decided and it is to be proved by the prosecution beyond reasonable doubt.

10. POINT NO.1:

As discussed above, the allegations made against the accused in the statement of victim/PW1 Mamidi Somulamma based on which

Ex.P20 FIR was registered, are pertaining to the offences punishable under sections 417, 420, 354-C, 497 of IPC as well as Section 306 r/w 511 of

IPC. Apart from the offence punishable under section 67-A of

Information Technology Act 2000. Accordingly, charge framed against

Accused No.1 and 2 separately and respectively. To prove these charge, prosecution examined PWs.1 to 14 by producing documentary evidence as well as material evidence as referred above. Before going to consider the evidence on record, it is just and necessary to refer the law dealing with the offences punishable under sections 417, 420, 354-C, 497 of IPC as well as Section 306 r/w 511 of IPC.

Section 417 of IPC is the punishment section for the offence of cheating defined under section 415 of IPC. It reads as follows:

415. Cheating.—Whoever,by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

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Section 420 of IPC deals with the punishment for cheating and dishonesty inducement for delivery of property and it reads as follows:

420. Cheating and dishonestly inducing delivery of property.—Whoevercheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Section 354-C of IPC deals with the offence of voyeurism and it reads as follows:

Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

Explanations F For the purpose of this section, “private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public. WWhere the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.

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Section 497 of IPC deals with offence of adultery and it reads as follows:

497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Section 306 of IPC dealing with offence of abetment of suicide reads as follows:

306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 511 of IPC deals with requirement of offence to do an offence and it reads as follows:

511. Punishment for attempting to commit offences

punishable with imprisonment for life or other

imprisonment.—Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both. Illustrations 11

11.To establish these ingredients as required to found the accused as guilty as required under the law, prosecution examined the victim/PW1. PW1 Mamidi Somulamma evidence goes to show that she knew the accused No.1 since he being friend to her husband/PW2 Mamidi

Srinivasarao, thereby she got acquaintance with him, about 4 or 5 years back to her examination at about 10 a.m. accused No.1 requested her to come to his house, since his wife suffering from ill- health, accordingly, she voluntarily associated with Accused No.1, and there she had sexual intercourse with Accused No.1 and later she could not recollect what happened. Her evidence further goes to shows that after returning to home, she received a phone call from the accused No.1 stating that he obtained a video graph of their sexual intercourse and he sent that video to her through the mobile of Accused No.1. On seeing the same, she consumed pesticide, thereby she had been shifted to Hospital with the help of her daughter LW2/Mamidi Sakuntala and later ,police approached her at Govt. Hospital, Vizianagaram, there police recorded her statement. The victim/PW1 also identified the pesticide consumed by her, as pesticide liquid in a bottle (sumitox) as MO1.

12. This much of evidence of PW1/victim though disclosing about the sexual intercourse with her by Accused No.1 at the house of Accused

No.1, it does not establish that the accused induced her for such sexual intercourse thereby cheated her as well as he committed the offence of voyeurism and also he induced the victim/PW1 to go for attempt to commit suicide. PW1/victim herself deposed in her evidence in the chief itself that police Ramabadrapuram visited her at Govt. Hospital in

Vizianagaram while she was undergoing treatment and obtained her signature only on a written paper and they did not record her statement.

Though she identified her signature in the statement dated: 30.01.2015 as 12

Ex.P.1, she denied it contents stating that police not read over those contents of paper containing her signature as Ex.P.1. Her evidence in chief further goes to shows that she had been produced before the learned

Addl. Judl.I Class Magistrate, Bobbili for recording her statement during the investigation. Though she identified her signature in the statement recorded by the learned Addl. Judl.I Class Magistrate, Bobbili as Ex.P2,

PW1 further stated that she could not recollect the facts stated by her to the learned judge. All these circumstances under which PW1 deposed as her evidence in chief goes to show that none of the ingredients required for the offences punishable under sections 417, 420, 354-C, 497 of IPC as well as 306 r/w 511, IPC are available to proceed further. Her evidence in cross-examination elicited by the accused renders the evidence of P.W.1 as a suspicious one.

13. PW1/victim further deposed in her cross-examination that she cannot say from which mobile phone she received obscene video from the accused No.1. She further stated that she received information/threat call that she will receive a video containing obscene picture. If so, it is for the prosecution to establish that so and so mobile numbers connection belongs to the accused by that time and he called P.W.1 through that mobile number, and that call reached victim/PW1 through her mobile number to her mobile phone, thereby she felt ashame and tried to commit suicide.

14.Whereas the prosecution did nothing like so. More so, PW1 herself admitted in the cross-examination that by that time, she have no any personal mobile phone. If so, how she expected to receive an obscene video from accused No.1 is not explained by the prosecution to the satisfaction of the court. More so, PW1 herself admitted in her cross- 13 examination that she had not witnessed any video of her with obscene pictures, but she attempted to commit suicide even before to receiving such obscene picture. PW1 further admitted that out of her willingness she voluntarily associated with Accused No.1 for cohabitation, thereby she had sexual intercourse on that day. All these admissions of PW1 in her cross-examination coupled with evidence in chief goes to show that PW1 being victim and informant failed to support the prosecution except stating that she had sexual intercourse with the accused No.1 and

Accused No.1 threatened her that her video will be sent to her, thereby in advance, she attempted to commit suicide by consuming pesticide containing in the MO1 bottle. None of these facts appears from the evidence of PW1 establishing the essential requirements of inducement or deceiving which requires for the offence of cheating. Since PW1 herself not witnessed any video said to have been video graphed by

Accused No.1 having sexual intercourse with the victim and same was not exhibited or confronted to victim/PW1 during her examination to identify whether that video contains her. Hence, the ingredients for the offence punishable under section 354-C of IPC are not at all established by the prosecution. At the best as admitted by PW1 in her evidence in chief that she had sexual intercourse with Accused No.1 voluntarily and she being wife of PW2 as well as Accused No.1 knew the same, thereby accused No.1 might have committed the offence of adultery punishable under section 497 of IPC. But to support sole evidence of P.W.1 in her evidence in chief, there is no evidence available on record to strengthen it.

15.However, the Hon’ble Supreme Court in between Joseph

Shine v. Union of India, reported in 2018 SCC online SC 1676struck down Section 497 of IPC with regard to the offence adultery in the year 2018 by opining that the though it may be a marital offence, and be a 14 ground for divorce, but it is not a penal/punishable offence. It is settled law as ruled by Hon’ble High Court of Andhra Pradesh in between

V.Rajamma Vs A.Ramireddy and others 2011 (1) ALD 600 with regard to change of law during the pendency of litigation. There Lordship ruled that if any changes brought into the law existing pending the litigation on such law, that can be considered to proceed further in pending litigation also. Pending this case for trial, this change of law with regard to the offence punishable under section 497 of IPC was came in to force in the year 2018, therefore, the offence appears from the sole evidence of PW..1 punishable under section 497 of IPC may not be punishable offence at present. However, the offence allegedly was occurred in the year 2015, whereas, the changed law came in to force in the year 2018. Even if it is considered that the Judgment of Hon’ble Supreme Court may not have effect upon this case, sole evidence of PW1, amounts to a self serving statement and it is to be supported by the evidence brought on record by the prosecution to proceed against the accused.

16.Prosecution to support oral evidence of PW1/victim Mamidi

Somulamma, examined PWs.2 to PW4 who includes the husband of victim, as PW2. Whereas the evidence of witness/PW2 Mamidi Srinivasa Rao goes to show that he stated nothing to police during the investigation as well as deposed nothing in his evidence in chief. Evidence of PW2 being husband whose consent was not obtained as alleged for sexual intercourse is that, he knew the accused No.1 as his friend, for the past 15 or 20 years. On the date of offence as he received a telephonic information from one P. Chinnarao/LW4 about the ill-health of PW1, he rushed to house and found PW1 in unconscious state as she consumed pesticide, thereby he shifted the victim/PW1 to Hospital, Badangi and from there to 15

Govt. Hospital, Vizianagaram for better treatment. Except this, he deposed nothing in his evidence attracting the offence punishable under section 497 of IPC. He further admitted in his evidence in chief itself that he do not know the reason for consuming pesticide by PW1 and police not recorded his statement. When the learned Addl. Public Prosecutor cross- examined PW2 with the permission of the court, in the cross-examination also PW2 stated that he did not made any enquiry when PW1 was unconscious as to why she consumed pesticide. He also not made any enquiry with PW1 when she gained conscious as to why she consumed poison. These admissions of PW2, are itself disclosing that he did not supported the evidence of PW1/victim with regard to adulterous life of

Accused No.1 with PW1. Though prosecution examined other witnesses

PWs.3 to 12 viz., P.Chinnarao/PW3, PW4/ M.Lakshamamma/PW5,

Ch.Suryaprakash/PW6, Kola Srinu/PW7, Majji Ramu/PW8, Tumala Gopala

Krishna and Tumula Simhachalam/PWs.9 and10 who are mediators to the scene of offence and also PW12/Ravupalli Ganesh, all these witnesses categorically stated in their evidence in chief itself that they do not know anything about this case facts as well as police never examined them and not recorded their statements. Though the learned Addl. Public

Prosecutor with the permission of the court cross examined them that they gave contra to their previous statements Exs.P4 to P7 and P18, these witnesses denied these suggestions put by the learned Public Prosecutor.

Though sole evidence of victim is sufficient to convict an accused as submitted by learned Addl. Public prosecutor, it is settled law that the sole testimony of such witness should inspire confidence and be trustworthy and reliable thereby free from suspicion. Herein, P.W.1/victim on one hand stated that she had sexual intercourse with accused No.1 and he video graphed the same on the other hand she deposed that she never gone through with that video. Though her statement was recorded by the then S.I/P.W.13 she stated 16 that she do not know contents of her statement since those were not read over to her. Her statement before the learned Addl.Judicial Magistrate,

Bobbili is available disclosing the offence alleged, she denied it contents except admitting her signature as Ex.P.2. All these circumstances goes to show that there is no trustworthiness in her evidence with regard to the adulterous life of accused No.1 with her and her evidence is not inspiring confidence, since not supported by any other witnesses including her husband/P.W.2. Hence, sole testimony of P.W.1 alone may not be sufficient under these circumstances to proceed against the accused as submitted learned Addl. Public Prosecutor.

17.From and out of above discussion, by considering the oral evidence adduced and documentary evidence produced by the prosecution, including the material objects, it is clear that prosecution though alleged and prosecuted the accused for the offences punishable under sections 417, 420, 354-C, 497 and 306 r/w 511 of IPC, failed to substantiate the charge by leading evidence as required under the law to prove the guilt of accused No.1 beyond reasonable doubt . Only evidence available against the accused No.1 is the uncorroborated self serving statement of

PW1/victim with regard to offence punishable under section 497 of

IPC./adultery. As discussed above there is no supporting oral evidence to support the evidence of PW1/victim with regard to the adulterous life of accused No.1 with her and in view of the Judgment of Hon’ble Supreme

Court as referred above in where the Hon’ble Supreme Court struck down section 497 of IPC as unconstitutional, this court came to a conclusion that prosecution failed in establishing the guilt of accused beyond reasonable doubt for the offences punishable under sections 417, 17 420, 354-C, 497 and 306 r/w 511 of IPC. Accordingly, this point is answered against the prosecution.

18. POINT NO.2:

Charge framed against the Accused No.1 and 2 is that accused

No.1 and 2 being possessors of obscene video graph of PW1 when she had sexual intercourse with accused No.1 at his house, they downloaded it from a memory card/MO2 and transmitted the same through electronic media thereby it flashed in and around the mobile holders at Ramabhadrapuram, thereby PW1 being victim felt ashamed and accordingly, accused No.1 and 2 committed the offence punishable under section 67-A of Information

Technology Act 2000 as charged.

19. Before going to consider the evidence available on record, it may be just to refer the law as contained in section 67-A of Information

Technology Act. Section 67-A of Information Technology Act 2000 reads as follows:

67A Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form. -Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. ] 18

Prosecution to establish these essential requirements for the offence punishable under section 67-A of Information Technology Act that the accused No.1 being possessor of obscene video graph of PW1 and

Accused No.2 downloaded it into computers and transmitted the same, examined PWs.1 to 14 as referred above. As discussed above, with regard to point No.1, all these witnesses including husband of PW1 who deposed as

PW2 i.e. Mamidi Srinivasa Rao turned hostile and they failed to support prosecution, except PW1/victim, PW11 doctor who treated PW1,PWs.13 and 14 Investigating Officers.

20.Case of prosecution is that Accused No.1 who video graphed sexual intercourse of him with PW1/victim, handed over that video footage to accused No.2 and the Accused No.2 by using that video graph containing the MO.2 memory card, with the help of MO.4/CPU,

MO.5/Monitor transmitted that video graph to the people of

Ramabadrapuram village, thereby that video was flashed in the mobile holders in and around Ramabhadrapuram village. None of the villagers or nearby residents of Ramabhadrapuram who received such obscene video graph of PW1, deposed before the court that they received such obscene video and they watched it. Further PW1/victim herself admitted that she never watched that video said to have been video graphed by the accused

No.1. In her evidence in the cross-examination she categorically admitted that by that time she had no mobile phone and she had not witnessed any video with her obscene picture. If so, how Accused No.1 expected to handing over of that video to Accused No.2 who said to have committed the offence with Accused No.1 by transmitting that obscene video with the help of MO.2 memo card, MO.4/CPU and MO.5/monitor is not properly 19 established by leading evidence. Though prosecution by examining PW14

Inspector of Police G.Rama Krishna to establish the content in the MO.2

Memory card as well as the seizure of MO.s3 to 5, it appears that his evidence is not supported by the evidence of any other witnesses examined and further contradicting with the evidence of another police officer/P.W.13 S.I.

21.Evidence of PW14 the then Inspector of Salur circle

G.Ramakrishna is that during the investigation, he received credible information about the presence of Accused No.1 at “Sagar Daba” near

High way in between Ramabhadrapuram and Salur and immediately he by associating with PWs.9 and 10 P.Gopala Krishna and P.Simhachalam rushed there and arrested accused No.1, later on the same day at about 5.30 p.m.

upon the information of accused No.1, they reached the house of accused

No.1, there accused No.1 brought a Samsung company duos mobile /MO.3 with one memory card/MO.2, and handed over those two items admitting that MO.2 /memory card contains the sexual intercourse video of Accused

No.1 with PW.1 and that video was video graphed with the help of MO.3

Samsung company Duos mobile phone. Though the confession said to be given by the accused No.1 to PW14 Inspector during investigation, it is not admissible in evidence since it is prohibited under law. However, evidence with regard to seizure of MO.s2 and 5 can be considered to proceed further. Now it is for the prosecution to prove that MO.2 memory card contains sexual video graph disclosing obscene video disclosing sexual intercourse in between the victim/PW1 and the accused No1. Whereas, the prosecution not confronted the contents of MO.2/Memory card to PW1 or 20 to her husband/ PW.2 to identify the persons appearing in that video are whether the victim/PW1 and the accused No.1. In the absence of such, confrontation and confirmation with PW.1 or with her husband with regard to identity of persons involved in that video graph, coming to conclusion that the video contained in MO.2 memory card belongs to PW1 and accused No.1, may not be just and proper. Further there is no certificate produced either before or during the trial by the prosecution that the contents contained in MO.2/Memory card and MO.4/CPU are the original video graph or a copy of original and it contents were not tampered thereby genuine. This certification is necessary as required under Section 67- A of

Indian Evidence Act to relay upon digital evidence. In absence of such certification is required under the law, relaying upon contents in MO.2 /Memory card and MO.4/CPU containing Hard Disk may not just and proper for non compliance of statutory requirements. More so, witnesses in whose presence MO.2/Memory card was said to be seized by PW.14 Inspector, not supported that seizure. Further, evidence of PW.13 the then Sub Inspector of police, is contradicting with the evidence of PW.14 with regard to seizure of MO.2/memory card.

22.PW.14 Investigating officer G.Rama Krishna stated that he seized

MO.2/ memory card from the custody of accused No.1 at his house upon information given by accused No.1 while his arrest, by associating with

PWs.9 and 10 P. Gopala Krishna and P.Simhachalam as they went to the house of accused No.1. Whereas PW.13 another Investigation Officer/

S.Santosh Kumar, the then Sub Inspector of Police, evidence is that during investigation he also secured other witnesses including

M.Srinivasarao/PW.2,P.Chinnarao/PW.3 and Mamidi Sakuntala/LW.2, recorded 21 their statements. By that time PW.2 M.Srinivasarao/husband of PW1/victim handed over a memory card containing video footage which discloses the obscene content consisting video of PW1. Therefore, P.W.13/ S.I came to conclusion that the information Technology Act also apply, hence, he handed over investigation to his Inspector/PW.14 G.RamaKrishna. If so, why P.W.14/ Inspector seized M.O.2/Memory card again at the house of accused as deposed is not properly explained the prosecution by leading evidence. Evidence of PWs. 13 and 14 who are the Investigating Officers goes to show contradictory by contradicting each other with regard to the seizure of MO.2/Memory card which stated to contain the sexual intercourse video of Accused No.1 and PW.1. If P.W.13/S.I. already seized

MO.2/Memory Card from P.W.2 husband of P.W.1, how the Inspector of

Police/P.W.14 again seized the same from the house of accused when he produced it voluntarily, is also not properly explained by the prosecution with evidence. More so, PW.1 deposed that she never witnessed that video. PW.2 husband of P.W.1 also stated that he do not know as to why PW.1 attempted to commit suicide by consuming pesticide. PW.13 Sub Inspector deposed that when he examined PW.2/ husband of PW.1, PW2 produced

MO2/Memory card,thereby he collected and handed over to PW14

Inspector/G.Rama Krishna and PW.14 Inspector deposed that he by associating with Accused No.1 after his arrest, seized MO.2 memory card from the house of accused No.1 when he voluntarily disclosed it. All these discrepancies with regard to seizure of MO.2/memory card, which contains obscene video, creates a reasonable doubt upon the seizure of

M.O.2/Memory card and content in it, that it belongs to PW.1 and Accused

No.1 as well as it was video graphed by the accused No.1 as alleged and the same was handed over to Accused No.2 and accused No.2 down loaded that copy, thereby transmitted it to the villagers of 22

Ramabhadrapuram area and accordingly committed the offence punishable

Under Section 67-A of Information Technology Act 2000.

23.From and out of the discussion based on evidence on record and the circumstances of this crime alleged, this court came to a conclusion that the prosecution though prosecuted accused No.1 and accused No.2 for the charge framed, the prosecution failed in establishing the guilt of accused

No.1 beyond reasonable doubt for the offences punishable under Sections 417, 420, 354-C, 497 of IPC and section 306 r/w 511 IPC. Prosecution also failed in proving the guilt of accused No.1 and accused No.2 beyond reasonable doubt that they committed the offence punishable under section 67-A of Information Technology Act 2000. Hence, this court came to a conclusion that the accused are entitled to be a acquitted since prosecution failed in proving their guilt. Accordingly these points answered.

24. In the result, this court found that accused No.1 is not guilty for the offences punishable under Sections 417, 420, 354-C, 497 of

IPC and section 306 r/w 511 IPC and also found that Accused No.1 and 2 are not guilty for the offence under section 67-A of Information Technology

Act 2000 as charged, accordingly, acquitted them under section 235(1) of

Cr.P.C. Accused No.1 and 2 are directed to execute bond for Rs.10,000/- (Rupees Ten thousand only) each as required under Section 437-A Cr.P.C., to secure their presence before the appellate Court, in the event of preferring appeal against this judgment directed the learned Judicial Magistrate of First

Class, Salur that MO.s1 and 2 i.e., Silver Poison bottle and Memory Card shall be destroyed and as the Accused No.2 not claimed Mos.3 and 4 i.e.,

Samsung company Duos Model Mobile Phone and Frontek Company CPU and accused No.1 not claimed MO.5/Samsung company monitor as suggested to 23

Investigating Officer/PW14. MOs.3 to 5/ Samsung Company Duos Model

Mobile phone, Frontek Company CPU and Samsung Company Monitor shall be sold in public auction by formatting the hard disk in M.O.4/CPU by an expert after expiry of appeal period and the sale proceeds are to be confiscated to state.

Typed to my dictation to the typist ,corrected and pronounced by me in open Court on this the 5 th day of January, 2021.

Sd/- T.Vasudevan

Assistant Sessions Judge, Bobbili.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: NIL

PW-1: M.Somulamma

P.W.2: M.Srinivasarao

P.W.3: P. Chinnarao

P.W.4: M.Kumar

P.W.5: M.Lakshamana

P.W.6: Ch.Suryaprakas

P.W.7: Pola Sreenu

P.W.8: M.Ramu

P.W.9: T.Gopala Krishna

P.W.10:T.Simhachalam

P.W.11: Dr.L.Umamaheswari

P.W.12: Marupalli Ganesh

P.W.13: S.Santosh Kumar

P.W.14: G.Ramakrishna

For Prosecution: For Defence: NIL

Ex.P.1: Signature of P.W.1 in the statement dt: 30.01.2015

Ex.P.2: Portion of 161(3) Cr.P.C., statement of PW.1

Ex.P.3: Portion of 161(3) Cr.P.C., statement of PW.2

Ex.P.4: Portion of 161(3) Cr.P.C., statement of PW.3

Ex.P.5: Portion of 161(3) Cr.P.C., statement of PW.4 24

Ex.P.6: Portion of 161(3) Cr.P.C., statement of PW.6

Ex.P.7: Portion of 161(3) Cr.P.C., statement of PW.7

Ex.P.8: Portion of 161(3) Cr.P.C., statement of PW.8

Ex.P.9: scene observation report dated: 30.01.2015.

Ex.P.10: Mediators report dt: 02.02.2015.

Ex.P.11: Signature ofPW1 on confession report dated: 2.2.2015

Ex.P.12: signature of Pw9 on confession report dt: 8.2.2015

Ex.P.13: Signature of PW10 on scene observation report

Ex.P.14: signature of PW10 on mediators report dt: 2.2.2015

Ex.P.15: signature of PW10 on confession statement dt: 2.2.2015.

Ex.P.16: Signature of PW10on confession statement dt: 8.2.2015

Ex.P17: Wound certificate of PW1

Ex.P18: 161(3) Cr.P.C statement of PW12

Ex.P19: Medication Intimation

Ex.P20: FIR in Cr.No.13/2015 of Ramabhadrapuram P.S.

Ex.P.21: Arrest repot of accused No.1 dt: 02.02.2015

Ex.P.22: Seizure report dt: 02.02.2015.

Ex.P23: Seizure report dt: 08.02.2015.

MATERIAL OBJECTS MARKED

M.O.1: Silver Poison Bottle M.O.2 : Memory card. M.O.3 : Samsung company Duos Model mobile phone M.O.4: Frontek company CPU M.O.5: Samsung Company Monitor.

Sd/- T.Vasudevan

Assistant Sessions Judge, Bobbili.

Copy to : The Hon’ble High Court of Andhra Pradesh, Amaravathi (through C.D) Copy to : The Honourable Principal District and Sessions Judge, Vizianagaram.

Copies to :

1.The Judicial First Class Magistrate, Salur

2.The Additional Public Prosecutor, Bobbili.

3.The Superintendent of Police, Vizianagaram.

4.The District Collector, Vizianagaram.

5. The Director of Prosecutions, Door No.24-19-12/A, Durgapuram, Vijayawada.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE: BOBBILI

Present: Sri T.VASUDEVAN,

Senior Civil judge, Bobbili

Wednesday, this the 3 rd day of April, 2024

APPEAL SUIT No. 1 of 2017

Between:

Vandrasi Prasada Rao , S/o late Appala Swamy, aged 45 years, Business, residing at Patha Bobbili, Bobbili Municipality, Vizianagaram District.

... Appellant/Plaintif

A n d:

Vandrasi Appa Rao , S/o Kasi, aged 39 years, Employee in Navya Jute Mills, residing at Patha Bobbili, Bobbili Municipality, Vizianagaram District.

…... Respondent/Defendant

ON APPEAL AGAINST THE DECREE AND JUDGMENT IN

O.S. 75 of 2008 DATED 31.03.2015 ON THE FILE OF THE

PRINCIPAL JUNIOR CIVIL JUDGE’S COURT, BOBBILI

Between:

Vandrasi Prasada Rao , S/o late Appala Swamy, aged 45 years, Business, residing at Patha Bobbili, Bobbili Municipality, Vizianagaram District.

... Plaintif

A n d:

Vandrasi Appa Rao , S/o Kasi, aged 39 years, Employee in Navya Jute Mills, residing at Patha Bobbili, Bobbili Municipality, Vizianagaram District.

…... Defendant

2

This appeal coming on 26.03.2024 for final hearing before me in the presence of Sri B. Ravi, Advocate for the Appellant/ Plaintiff and of

Sri M. Simhachalam, Advocate for the Respondent/ Defendant and having stood over for consideration to this date ( Reserved), this Court passed the following:

J U D G M E N T

1.This appeal is directed against the decree and judgment dated 31.03.2015 in O.S. 75 of 2008 on the file of the learned Principal

Junior Civil Judge’s Court, Bobbili whereby and where-under, the learned Principal Junior Civil Judge, Bobbili, dismissed the suit against plaintiff / appellant for the relief of recovery of amount on the

foot of promissory note, for costs and other ancillary reliefs.

2.Aggrieved by the dismissal of the suit, the un-successful

Appellant/plaintiff approached this court by way of filing of this appeal.

For the sake of convenience, and brevity, hereinafter, the parties will be referred as per their array in the suit before the learned trial Court.

3. CASE OF THE PLAINTIFF IN BRIEF IS THAT :-

The defendant Vandrasi Appa Rao is well known to plaintiff, therefore, the defendant for his family expenses and necessities, availed loan of Rs. 30,000/- on 17.04.2005 by executing the suit promissory note in favour of plaintiff in the presence of witnesses, with an undertaking to 3 repay that debt with interest @ 24% p.a., as and when demanded by the plaintiff. But the defendant in spite of repeated demands by the plaintiff, did not repay the debt. Under these circumstances, having no other option to recover the debt due under the promissory note, the plaintiff got issued a legal notice to defendant on 08.02.2006 to discharge the debt or else the plaintiff will approach the Court for recovery, but the defendant having received said notice neither issued reply nor discharged the debt, hence, plaintiff approached the learned trial court to recover the debt due under the promissory note with future interest.

4. PLEA OF THE DEFENDANT IS THAT :-

The defendant never approached the plaintiff not availed any loan, therefore, signature contained in the suit promissory note had been forged by the plaintiff with the assistance of his witnesses. This defendant further pleaded that there are family disputes between the families of plaintiff and defendant, therefore, in order to harass the defendants and his family plaintiff to gain illegally got fabricated the suit promissory note with forged signatures of defendants therefore, he is not liable to pay any amount, hence, prayed to dismiss the suit.

5. ISSUES:-

Basing on the plea of parties in plaint and written statement as well as upon hearing and on verification of documents, the learned trial court framed following issues for trial and adjudication:- 4

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

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

3. To what relief ?

6. EVIDENCE:

During the trial, before the learned trial court, the plaintiff /

Vandrasi Prasada Rao in order to discharge his initial burden and to prove the execution of promissory note, himself deposed as P.W.1 by examining the attester of suit promissory note Rekha Thowdu as PW- 2, andalso produced and relied upon Original promissory note, dt.

17.04.2005 as Ex.A.1, Ex.A.2 Ofice Copy of Legal notice and its

acknowledgement as Ex.A.3. Subsequently, plaintiff filed evidence in chief of one Sondi Venkata Rao the scribe of suit promissory note as PW3, but later, his evidence in chief was withdrawn thereby, eschewed. To substantiate the plea of defendant, the defendant Vandrasi Appa Rao himself deposed as D.W.1 and further examined the Scientific expert N.

Krishna Prasad as DW2 by producing Ex. X-1 / expert opinion through

DW2.

7. FINDING OF TRIAL COURT:

5

After hearing both sides and on considering the entire evidence as referred above, the learned Principal Junior Civil Judge,

Bobbili dismissed the suit against the plaintiff by coming to a conclusion that the case of plaintiff is not appears to be probable and reliable than the plea of defendant.

8. GROUNDS OF APPEAL:

Aggrieved by the dismissal of the suit, the unsuccessful plaintiff / Appellant herein, preferred this appeal with the following grounds:

1.The Trial Court ought to have reject the evidence of

DW2 / expert since his evidence is only an opinion evidence.

2. The Trail Court failed to consider the presumptions available under Section 118 of N.I. Act infavour plaintiff / appellant since, he has succeeded in proving the execution of

Ex.A.1 promissory note but the trial court arrived to a wrong conclusion and dismissed the suit.

3. The Trail Court consider the evidence of DW2/ expert opinion erroneously without considering evidence of DW2 in his cross examination and concluded that the suit promissory note had been a forged document thereby, the suit was wrongly dismissed.

4. The Trail Court failed to consider the oral evidence and the documentary evidence produced in proper manner.

5. The Trail Court findings are not supported by the evidence on record and contrary to the principles of Law.

6

09. ADDITIONAL EVIDENCE:

No additional evidence produced by both parties except advancing arguments. Considered the arguments.

10. ARGUMENT IN APPEAL:

(a) Learned counsel for the appellant/plaintif submitted in spite of adducing sufficient evidence by cross-examining the expert /

DW2 and the defendant / DW1 challenging the opinion of expert under

Ex.X.1, the learned trial court came to an erroneous conclusion and dismissed the suit in spite of best evidence placed before it including the oral evidence of PW1 and PW2. Learned counsel further submitted that oral / direct evidence of plaintiff and his witness coupled with the contents in Ex.A.1 and Ex.A.2 documents supporting and probablizing the plea of plaintiff. Under these circumstances, he prayed to consider the evidence as submitted above and prayed to allow the appeal by setting aside the decree and Judgment of learned trial

Court and to decree the suit O.S.75/2008.

(b)Learned counsel for the respondent/defendant submitted that by considering oral evidence adduce and documentary evidence produced, the learned trial court arrived to a just conclusion in accordance with the Law and Principles of evidence by dismissing the suit O.S. 75/2008. The circumstances stated in the 7 appeal as grounds of appeal requires no interference, since the

Judgment of trial court is well supported with good reasons for arriving conclusion in favour of plaintiff/appellant, therefore, prayed to dismiss the appeal.

11. POINTS FOR CONSIDERATION:

In view of the specific contentions raised by both the parties, the following simple points arises for consideration are:

1. Whether the suit Promissory Note dt: 17.04.2005 /Ex.A1 is true, valid and supported by consideration , thereby

binding on the defendant ?

2. Whether the suit promissory note is a

not a forged and fabricated document ?

3. Whether the opinion of Government expert / DW2 have any efect upon the oral evidence adduced by plaintif through him and his witnesses as PW1 and PW2?

4. Whether the Judgment of the Trial Court is not sustainable under Law as argued?

12. POINTS NO.1 TO 3 :

In a suit for recovery of money based on promissory note/Negotiable instrument, the Law governed is the Negotiable Instruments Act 1881 and the standard of proof required is preponderance of probabilities. It 8 is settled principle of law as contained U/s 118 and 139 of of N.I. Act that

“prima facie burden is upon the plaintif to show that the

promissory note had been duly executed in the presence of

witnesses and then only the presumptions will be available as provided

U/s 118 and 139 of Negotiable Instruments Act to assist the plaintiff”.

13.Herein, as seen from the evidence recorded by learned trial court, it appears that appellant/plaintiff to prove the execution of

Ex.A1 promissory note , the plaintiff Vandrasi Prasada Rao himself deposed as P.W.1, apart from examining PW.2 who witnessed the transaction. Contents in Ex.A1 Original promissory note/Negotiable instrument and the evidence of PW.1 and PW2 discloses that a signature available as Vandrasi Appa Rao in Telugu, and it was signed by the person in the presence of one witness and a scribe on 17.04.2005 for the debt of Rs.30,000/- and executed the same in favour of Vandrasi Prasada

Rao/P.W.1 who is the plaintiff here in.To support these contents, plaintiff

Vandrasi Prasada Rao being holder of Negotiable instrument/Ex.A1 deposed as P.W.1. His evidence also appears to be in conformity with the contents in Ex.A1 promissory note that it was executed for Rs.30,000/- by Vandrasi Appa Rao and his evidence further disclosing that this

Vandrasi Appa Rao is nothing but Vandrasi Appa Rao / defendant herein.

Plaintiff also examined P.W.2 / Rekha Thowdu, who said to be present and witnessed the transaction under Ex.A1 .

9

14.Evidence of P.W.2 / Rekha Thowdu as recorded by the learned trial court in his evidence in chief is that “the defendant borrowed

Rs.30,000/- from the plaintiff on 17.04.2005 and executed a promissory note for the said amount in his presence on the same day in Bobbili agreeing to repay the same with interest @ 24 % per annum and the defendant borrowed that amount for his family expenses therefore, he attested the promissory note as the defendant received Rs.30,000/- in his presence and affixed his signature as borrower”. Evidence of this attester in Ex.A.1 promissory note had been tested by the defendant by cross examination. In the cross examination of PW2 / Rekha Thowdu deposed that “ he knew PW1 and defendant and the defendants belongs to

Patha Bobbili and his age is about 36 years as well as Ex.A.1 is a

Printed Promissory note, one revenue stamp had been afixed to it

and Ex.A.1 was scribed by one L. Venkata Rao in his presence and

the defendant ( Vandrasi Apparao / V. Apparao as signed in his

presence in Telugu”.On careful perusal of the contents in Ex.A1 promissory note, it also disclosing the same as deposed by

PW2/attesting witness. Defendant disputed evidence of PW2 that he assisted PW1 in fabricating Ex.A.1 Promissory Note and in forging the signatures because of the family disputes in between plaintiff and defendant. These suggestions by defendant to PW2 / attester denied by the witness as false.

10

15.Plaintiff Vandrasi Prasada Rao as PW1 in his cross examination deposed that “ defendant is cousin by courtesy to him and both

working in Jute Factory as employees and the plaintif got no other

money transactions with the defendant earlier and he had no any

family disputes with the defendant. Further, it was elicited from

PW1 by the defendant that Ex.A.1 was executed at Rama Talkies

Pan Shop at about 12:00 noon and it was scribed by Venkata Rao on

17.04.2005 by afixing one revenue stamp at the promissory note

and the defendant signed in Telugu”. On combined and careful reading of oral evidence of PW1 Vandrasi Prasada Rao, the holder of negotiable instrument / Ex.A.1 and the oral evidence of PW2 Rekha

Thowdu the person who attested the money transaction under Ex.A.1 coupled with the contents in Ex.A.1 promissory note and Ex.A.2 Office copy of legal notice, it is clear that the plaintiff as possessor of promissory note / Ex.A.1 / Negotiable Instrument by adducing oral evidence of PW2 a witness to the money transaction recorded under Ex.A.1 and by producing the original of Ex.A.1 / Negotiable Instrument from his lawful custody, could able to discharge his initial burden in establishing that the suit promissory note Ex.A.1 was executed for Rs.30,000/- on 17.04.2005 as recorded in it and the person who received that money signed in the presence of PW2 as Vandrasi Appa Rao in Telugu and this Vandrasi Appa

Rao who signed in Telugu in Ex.A.1 is nothing but Vandrasi Appa Rao / defendant herein, since PW2 an attesting witness witnessed the defendant herein while signing in Ex.A.1 as Vandrasi Appa Rao in telugu by receiving cash of Rs.30,000/- under Ex.A.1 promissory note. In similar 11 circumstances, in where to prove the execution of promissory note, plaintiff examined himself and an attester who signed in the promissory note as witness as well as who produced the original promissory note,

Hon’ble High Court of Judicature at Hyderabad in its Division Bench

Judgment in Between Duggineni Seshagirirao VS Kothapalli

Venkateswararao reported in 2001 Law suit (848) = 2001(6) ALT 95 their lordships ruled that “In a promissory note in where the plaintif

by deposing himself examined the attestor in the promissory note

who witnessed the transaction, it can be concluded that the

execution of such promissory note is proved and it is for the

defendant who took the plea of forgery to establish the same”. Their

Lordship in Para No.8 of it’s Judgment Ruled as follows :

We have also found that the execution was proved

through the evidence of plaintiff and the marginal

witness. The defendant had continuously stated that P.W.

1 as well as P.W. 2 were strangers to him and he had disputed the signature on the pronote. P.W. 2 stated in his statement that defendant was his relative and he was the elder brother of the husband of his niece. On this assertion no question was put to the witness by the defendant's

Counsel. Therefore, we feel that the plaintiff had been able to prove the execution of the document. On the other

hand, if the document was disputed or doubted, the

onus was on the defendant to show that the document

was a forgery because a presumption is in favour of

plaintiff under Section 118 of the Negotiable

Instruments Act.

12

16.Herein as discussed above, the plaintiff could able to establish his case by making his plea as probable and reliable and produced the original Negotiable Instrument / Ex.A.1 as lawful custodian and by examining the attester in Ex.A.1 as PW2, as found by the learned trial

judge, therefore, the plaintiff / PW1 is entitled for presumptions as

provided under Section 118 of Negotiable Instrument Act. In obedience to above ruling and Sec.118 and 139 of Negotiable Instrument Act which provides presumptions, it can safely be concluded that the plaintiff being holder of Negotiable instrument/Ex.A1 promissory note in due course, holds the same for lawful consideration and it had been executed at the time and place mentioned in Ex.A1 and also the person who affixed his signature in it as Vandrasi Appa Rao in Telugu is the Vandrasi Appa

Rao / defendant herein. It appears from the Judgment of learned

Principal Junior Civil Judge, Bobbili that the learned trial judge

considered all these aspects and came to a right conclusion

that the plaintif discharged his initial burden through the oral

evidence of PW.s 1 and 2 and by producing Ex.A1 and A2

documents in proving the execution of Ex.A1 to avail the

presumptions available under Section 118 and 139 of N.I. Act.

However, it appears that the learned trial court came to a conclusion that these presumptions had been rebutted by the defendant with the evidence brought on record. Now it is to be seen whether the finding of learned trial court is erroneous as pleaded in the appeal grounds.

13

17. Plea of the defendant is that he got disputes with the plaintiff and by keeping those disputes in mind, to gain wrongfully plaintiff with the help of his men i.e., attester / PW2 and scribe by name Venkata Rao fabricated Ex.A.1 promissory note by forging his signatures as Vandrasi

Appa Rao in telugu, in fact he always used to sign in telugu as V. Appa Rao but not as Vandrasi Appa Rao as contained in Ex.A.1 promissory note. In support of it he himself deposed as DW1 by obtaining an expert opinion under Ex.X.1 and by examining that expert / Scientific Officer as DW2. By considering the opinion expressed by the Scientific Officer / DW2 N.

Krishna Prasad and the oral evidence of defendant as DW1, the learned trial court came to a conclusion that defendant could able to rebut the presumptions available to plaintiff under Section 118 and 139 of

Negotiable Instrument Act, thereby, the learned trial court dismissed the suit by its Judgment dt. 31.03.2015. Now it is to be seen that

whether the finding of learned trial court is with in the settle the

principles of Law.

18.It is settled Law as ruled by Hon’ble High Court of Judicature at Hyderabad in Between Manapragada Krishna prasad VS Savani transport Pvt., Ltd., reported in 2005 Lawsuit (A.P) 817 = 2006(1)

ALT 243 that “Under the provisions of Indian Evidence Act, the

person who asserts shall prove a particular fact, thereby, burden is

upon the person who asserted it. Mere taking a plea of forgery and

denial of consideration under a promissory note may not be a valid

14

defence, unless supporting material in the form of oral or

documentary placed before the court”. In obedience to this

Judgment and in view of the evidence of PW1 and PW2 as well as the contents in Ex.A.1 to Ex.A.3 documents , the onus of proof is upon the defendant/ respondent to substantiate his plea that because of the disputes prevailing in between plaintiff and defendant, the plaitniff had been prompted to create Ex.A.1 promissory note with the forged signatures to gain wrongfully . As seen from the record, it appears from the suggestions put to the plaintiff /appellant while deposing as PW1 that the alleged misunderstandings and disputes between plaintiff and defendant had been denied by PW1 as false. Further, it is admitted by PW1 in his cross examination by defendant that defendant is nothing but cousin by courtesy and both are working in a Jute Mill in Bobbili as on the date of disputed money transaction and he had no disputes with the defendant. In view of this evidence elicited by the defendant himself from PW1 it is clear that there is no evidence in support of defendants plea that there are serious disputes or misunderstandings as on the date of this suit OS 75/2018 between plaintiff and defendant which made the plaintiff to go up to the extent of fabricating a promissory note / Ex.A.1 for Rs.30,000/- only by forging the signature of defendant. Evidence of PW2 / attester falsifying this plea of defendant as he specifically both in evidence in chief and cross examination deposed that the defendant herein having received amount signed in Ex.A.1 in his presence. Hence, the attempt of defendant to

bring some evidence from PW1 to show that defendant got serious

disputes or disputes which prompted the plaintif to fabricate

15

Ex.A.1 is failed. Therefore, in order to substantiate his plea, defendant himself examined as DW1 by getting an expert opinion under Ex.X.1.

19. It appears from the evidence of DW1 that he is working in

Navya Jute Mill for the past 15 years by the date of his evidence and the plaintiff Vandrasi Prasada Rao is brother to him. DW1 / respondent herein, further deposed that he got family disputes with PW1 but there are no notices or reports or cases reported or pending by DW1 against PW1 or his family members. If the rivalry / disputes in between PW1 and DW1 got such magnitude to influence the plaintiff for fabrication of Ex.A.1 promissory note, there should be some material brought on record by the defendant to establish it. Herein, except the defendant as DW1 he did not choose to examine any other witnesses including his family members to show that there are serious disputes which made the plaintiff to go such an extent of fabricating Ex.A.1 promissory note. On the other hand defendant himself admitted that there are exchange of legal notices, criminal cases or reports by or against PW1 and DW1. Hence, it is clear that the oral evidence of DW1 / defendant became a self serving statement without any supporting material. Further evidence of defendant goes to show that he received the legal notice under Ex.A.2, dt. 08.03.2006 had been received by him but he did not reply to it as well as not attempted to file any case against PW1 that he has fabricated Ex.A.1 promissory note with his forged signatures. These admissions of DW1 strengthening and supporting the evidence of PW1 that defendant knew about the existence of promissory note even on receiving legal notice under Ex.A.2 and as 16 there are no disputes as alleged and as it was not a fabricated document, no action had been took by the defendant and as the transaction being true, no reply was given to Ex.A.2 notice by the defendant.

20. Further, defendant as DW1 before the learned trial court admitted that he have no disputes with the attester and scribe of Ex.A.1 promissory note. Where as his plea is that the attester and scribe in Ex.A.1 promissory note assisted the plaintiff in fabricating the suit promissory note. Since, the defendant pleaded the assistance of PW2 and the scribe in

Ex.A.1 to PW1, in fabrication of Ex.A.1, it is for the defendant to place some evidence that why these attester / PW2 and scribe in Ex.A.1 without having any disputes or misunderstandings with the defendant assisted the plaintiff for alleged fabrication. In absence of such evidence it may not be possible to rely upon the sole interested evidence of DW1 to discard the evidence of eye witness / attesting witness / PW2. Further, DW1 admitted in his cross-examination is that there are no witnesses and no petitions filed to prove that there are disputes in between himself and PW1. All these circumstances and evidence of DW1 elicited in his cross examination goes to show that he has no positive evidence with him thereby, failed to place the same before the learned trial court evidencing that he got disputes or misunderstandings with PW1 which made him to fabricate

Ex.A.1 as pleaded but only to avoid his obligation to discharge the debt due under Ex.A.1 he might have took that plea as suggested to him.

Hence, the findings of learned trial court in its judgment dt.

31.03.2015 that because of the oral evidence of DW1, he could able

17

to establish that he got disputes with PW1 therefore, PW1

fabricated Ex.A.1 thereby, the defendant could able to rebut the

presumptions is not appears to be supported by the evidence

available on record as discussed above.

21.It appears from the evidence brought on record before the learned trial court , that the respondent herein being the defendant in suit obtained opinion of expert under Ex.X-1 from the Scientific Officer of A.P.

Forensic Science Laboratory, Hyderabad and this handwriting expert under Ex.X-1 examined signatures of defendant herein contained in his shift worker register pages, written statement, suit notices and vakalat in

O.S. 75/2008 as standard signatures and compared the same with the

disputed signature in Ex.A.1 promissory note as questioned signature.

Later, he had been examined as DW2. Evidence of DW2 N. Krishna Prasad,

Scientific Officer is that he compared the signature of Vandrasi Appa Rao available in Ex.A.1 promissory note with the signatures available in the

Shiift worker register pages, written statement, suit notices and vakalat in

O.S. 75/2008 as standard signatures and he opined that the questioned

signature available in Ex.A.1 promissory note differs to the standard signature available in the Shift worker register pages, written statement, suit notices and vakalat in O.S. 75/2008, thereby, concluded under Ex.X-1 that the signature in Ex.A.1 promissory note is not in conformity with the standard signatures of V. Appa Rao thereby, the signature in Ex.A.1 does not belongs to V. Appa Rao. Based on it, the learned trial court came to a conclusion that the defendant could able to discharge his onus of proof 18 and rebutted the presumptions infavour of plaintiff available under Section 118 and 139 of N.I. Act and proved that the signature of defendant in

Ex.A.1 promissory note is a forged one and not supported by consideration, thereby, the suit O.S.No. 75/2008 had been dismissed.

22. On careful reading of the Judgment in O.S. No. 75/2008 dt.

31.02.2015 by the learned Principal Junior Civil Judge, Bobbili, it appears that the finding of trial Court to dismiss the suit is only based on the opinion of expert under Ex.X-1 who deposed as DW3. On careful consideration of the oral evidence of PW1 and PW2 i.e., the holder of

Negotiable Instrument in due course, attester / witness to the money transaction under Ex.A.1 in between PW1 and DW1 as well as the failure of defendant in establishing his plea that he got disputes or misunderstandings with PW1 to such an extent which made the plaintiff to go for fabrication of a promissory note coupled with the Law and pronouncement of Judgments in respect of the opinion expressed by an expert more particularly a handwriting expert, it appears that the learned trial court failed to consider the relevant and appropriate position of Law with regard to the evidential value of a handwriting expert opinion like the opinion of DW2 herein and erroneously came to a conclusion to dismiss the suit.

23.On careful perusal of the evidence DW2 / Scientific Officer N.

Krishna Prasad it appears that through the learned trail court he received original promissory note dt. 17.04.2005 / Ex.A.1 as questioned document 19 with S.1 to S.10 marked documents as standard signatures on 18.11.2013 and in obedience to the orders of learned trial court he examined the disputed signature “Q” in Ex.A.1 promissory note with the standard signatures by comparing and examining by magnification stereo micro scope and video spectral comparator and came to a conclusion under

Ex.X.1 that the questioned signatures in Ex.A.1 promissory note defers from the standard signatures S.1 to S.10 thereby he opined that the person who signed in S.1 to S.10 does not signed in Ex.A.1 as Vandrasi

Appa Rao. The signatures sent for comparison as standard signatures to

DW2 who opined under Ex.A.1 are nothing but specimen signatures of defendant obtained in open court by the learned trial court in the year 2013, signatures of defendant in suit summon, vakalat filed by defendant in this suit and the signatures of defendant in his written statement herein coupled with a three page work shift register containing three signatures of defendant as V. Appa Rao. By comparing these signatures as

S.1 to S.10 the expert under Ex.X.1 opined that the signatures available as V. Appa Rao in the above referred defendants vakalat, written statement, suit summon and signatures obtained in open court in this suit is not the defendant who signed in Ex.A.1 promissory note. Hence, it is clear from the evidence of DW2 / expert that all the standard signatures except three signatures available in a work shift register, are all the signatures of defendant subsequent to the institution of this suit but not contemporaneous signatures. Honourable High Court of Andhra Pradesh in similar circumstances in where the opinion of an expert sought by comparing signature in promissory note with the vakalat, suit summons 20 and written statement as well as the signatures obtained in public court, ruled that opinion of an expert may not possible and may not accurate if the disputed signature is compared with the subsequent to the suit signatures of defendant. Their Lordship in between M. NARSIREDDY Vs

V. RAGHURAMNAIDU AND ANOTHER reported in 2015 (2) ALT 529

ruled that “it is not safe to get opinion upon disputed signature by

comparing with the signature available on vakalath, written

statement, summon in absence of contemporaneous period

admitted signatures of the defendant.” Hence, it is clear from and out of the judgments that what required to compare the disputed signatures is the admitted contemporaneous period admitted signatures of defendant but not the signatures obtained in public court of the signatures of defendant subsequent to the institution of suit since, the defendant might have an opportunity to change his signature only for the purpose of the suit.

24. Further it is the Law settled that the opinion of expert is only an opinion evidence but not substantive evidence and the opinion evidence requires corroboration. Honourable Supreme Court in between

SASHIKUMAR BENARJI Vs SUBODHKUMAR BENARJI reported in

AIR 1964 SC 529 in similar circumstances ruled that opinion of handwriting expert is only an opinion but not substantive evidence and

before acting upon an expert opinion usually we should see that there

should be corroborated evidence either by oral or circumstantial evidence.

Further, Honourable High Court of Andhra Pradesh in between 21

NALLABOTHU KURMAYYA Vs GARRE MALLIKARJUNA RAO (Died)

represented by Lrs reported in AIR 2003 AP 201 = 2013 (1) ALT

260 ruled that the opinion expressed by a handwriting expert is only an opinion evidence and it cannot falsify and outweigh the direct evidence.

Oral evidence of identifying witness/ attester prevails over the opinion of an expert with regard to the handwriting and signature because evidence of an expert is only an opinion and not a conclusive proof. Further, their

Lordship by relying the above referred Judgment of Honourable Supreme

Court in Sashikumar Benarji case as well as above referred Judgment in

NALLABOTHU KURMAYYA Vs GARRE MALLIKARJUNA RAO (Died) case in between SALLEPALLI NARASIMHA REDDY Vs YEARRAM PEDA

SUBBAREDDY reported in 2014 (1) ALT 608 ruled that expert opinion of a handwriting expert is an advise only and it cannot falsify the convincing direct evidence available on record. Their Lordship in this

Judgment ruled as follows:-

The trial court dismissed the suit on the premise that the court can place reliance on uncorroborated opinion of the expert by discarding the direct evidence. The trial court has not given a specific finding that the testimony of P.Ws.1 to 4 is not trustworthy for consideration. On the other hand, the first appellate court in para­14 of its judgment, made an observation that there are no discrepancies in the testimony of P.Ws.1 to 4 with regard to date, time and place of execution of Ex.A1 promissory note and their evidence was not at all shaken during their cross­examination. Having regard to the facts and circumstances of the case, I have no hesitation to hold that the 22 testimony of P.Ws.1 to 4 inspires confidence of the court so far as

Ex.A1 transaction is concerned. The first appellate court has rightly applied the principles enunciated in Brij Basi case (5 supra) and Shashi Kumar Banerjee case (6 supra) and held that opinion of expert cannot outweigh the direct evidence,

if the direct evidence available on record is convincing.

Therefore, I am unable to agree with the findings recorded by the trial court as the same are not based on sound principles of law.

25. From and out of above Judgments referred, it is clear that the opinion of an expert in handwriting is only a suggestive / advise but not a conclusive evidence and in order to rely upon the opinion of such handwriting expert, there should be some corroborative evidence available on record to proceed further and this expert opinion shall not over take or over right direct evidence of witnesses who witnessed the transaction and who attested such document. Herein, as discussed above it is clear that defendant though took a plea that because of family disputes plaintiff had been prompted to fabricate suit promissory note / Ex.A.1, for that the attesting witness/ PW2 assisted, during the trial it is evident from the evidence of PW1, PW2 and DW1 that the defendant failed in probablizing his plea and there is no evidence to support the expert opinion under

Ex.A.1 that because of the disputes between PW1 and DW1, PW1 and PW2 fabricated Ex.A.1 promissory note. Further, oral evidence of PW2 attesting witness whose evidence is testified by cross examination made it clear that 23 defendant herein, is the man who signed as Vandrasi Appa Rao in Ex.A.1 by receiving cash of Rs.30,000/- as entered and recorded in Ex.A.1 promissory note. Contents in Ex.A.1 supporting the same. Further, appellant being plaintiff having lawful custody of Ex.A.1 promissory note / a negotiable instrument produced the same before the Court and to support it contents examined himself as PW1 and also the attester as PW2.

These direct evidence including the evidence of attester / witness made it clear that defendant herein is the man who signed as Vandrasi Appa Rao in telugu. Though defendant could able to produce work shift register copy for comparison which contains the signature as V. Appa Rao instead of

Vandrasi Appa Rao, it itself alone may not be a ground to reject the evidence of PW1 and PW2 as the defendant himself admitted that he has no disputes with PW2.

26.Further, it appears from the evidence of DW2 / Scientific

Officer under Ex.X-1 he opined that in questioned document Ex.A.1 promissory note contains the outward angular finish in the letter “ అ " , whereas in the standard signatures the letter “ అ " is in inner finish thereby, he opined that the person who wrote standard writings does not wrote a questioned writings. On verification of the signatures compared by the expert it disclosing that many of the standard signatures also contains outward angular finish in the letter “ అ ". The expert compared the questioned document with signatures obtained in open court in this suit as well as the signature of defendant in vakalath, written statement and suit summon. It appears that the signatures in serial number 2, 3, 9 of 24 defendant obtained in open court on 23.07.2010 as standard signatures 7 as well as signature No.2, 7 and 9 in the standard signatures No.9 are all got outward angular finish in the letter “ అ " in the signature as “ అపపరవ". Further, oral evidence of PW1 and PW2 the attesting witness who specifically deposed that he witnessed defendant while affixing his signature in the promissory note coupled with the contents in Ex.A.1 promissory note and above referred signatures of defendant considered as standard signatures by the expert are all made it clear that signature of defendant in Ex.A.1 promissory note and his standard signatures as referred above are appears to be similar and one and the same. Since, there is no corroborative evidence brought on record by the defendant as to the serious disputes between him and plaintiff prompting the plaintiff to fabricate the suit promissory note, the opinion of expert under Ex.X-1 that the person who wrote the standard signatures i.e., defendant does not wrote a questioned signasture in Ex.A.1 is not supported by the evidence available on record.

27.Further, the Expert / DW2 himself admitted in his cross examination that the questioned signature is in the good line quality but the standard signatures are in perfect line quality as well as the writings of a person will be changed in sitting position than to the writings while in standing position as well as due to afflux of time. These admissions of DW2 / expert made it clear that both the signatures in the questioned and standard are in good line quality, he opined that the standard signatures 25 are in superior line quality whereas the questioned in Ex.A.1 promissory note is in good line quality thereby he opined that the signature in Ex.A.1 is not scribed by the defendant. His own admission in his cross examination that the signature will differs / changed if the signatory signs in sitting position than his standing position or in standing position than his sititing position as well as afflux of time. There is no evidence that whether defendant signed in Ex.A.1 while in sititing or in standing position. The expert opinion suggest this position of signatory at the time of signature differs his signature hence, It itself discloses that the signature in Ex.A.1 might have been differs with the standard signature as the both may not be signatures signed while standing or by sitting thereby, the difference as found by the expert with regard to outward angular finish in the letter “ అ " in the signature as “ అపపరవ" might have been occurred. Hence, relying upon the evidence of DW2 / Expert alone by discarding oral evidence of PW1 and PW2 may not be just and proper under the facts and circumstances of this suit and the evidence of

DW2.On the other hand oral evidence and documentary evidence of plaintiff disclosing that the signature in Ex.A.1 is the signature of defendant herein. Since, the opinion of handwriting expert is a only opinion and suggestive to form an opinion by the Court and it is the evidence that was brought on record need to be consider for adjudication, this Court is of the view that the view expressed by the expert under Ex.X- 1 is not supported by the evidence brought on record during the trial

before the learned trial court whereas the direct evidence in the form of

oral and documentary evidence as discussed above supporting and 26 strengthening the case of plaintiff that the defendant herein, is the man who signed in Ex.A.1 promissory note as Vandrasi Apparao. Under these facts, circumstances, Law quoted and Judgments referred this Court is of the view the learned trial Court is erred to coming to a conclusion that the presumptions available under Section 118 and 139 of N.I. Act infavour of plaintiff had been rebutted is not appears to be good. Therefore, this Court came to a conclusion that the opinion of expert under Ex.X.1 and his evidence as DW2 have no effect upon the direct and oral evidence of PW1 and PW2 i.e., the possessor of negotiable instrument / Ex.A.1 and the attesting witness . Accordingly all these three points answered infavour of the appellant / plaintiff and against the respondent/ defendant.

28. POINT NO: 4

4. Whether the Judgment of the Trial Court is not sustainable under Law as argued?

From and out of above discussion, this Court came to a conclusion that the facts considered, Law applied and the conclusion arrived by the trial Court is not in accordance with the principles of Law as submitted by the appellant thereby, the decree and judgment of learned Junior Civil Judge Court, Bobbili in dismissing the suit O.S.

75/2008 is to be set aside and the suit O.S.No. 75/2008 is to be decreed as prayed for with costs.

27

28. RESULT:

In the result, this appeal preferred against the decree and judgment of learned Principal Junior Civil Judge, Bobbili in O.S.No.

75/2008 IS HEREBY ALLOWED. The Decree and Judgment of learned

Principal Junior Civil Judge,Bobbili in O.S.No. 75/2008 is set aside as a

result, the suit in O.S.No. 75/2008 is DECREED WITH COSTS.

Ordered the defendant/ respondent to pay a sum of Rs.51,600/- (Rupees

Fifty one thousand and six hundred only) to the appellant / plaintiff with interest @ 12 % per annum from the date of suit to till the date of this

Judgment and thereafter @ 6% per annum upon the Principal amount of

Rs.30,000/-.

Dictated to the Typist, typed, corrected, signed and

pronounced by me in the open court, this the 3 rd day of April, 2024.

Sd/- T. Vasudevan

Senior Civil Judge,

Bobbili.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

DOCUMENTS MARKED

No oral or documentary evidence adduced by either party in this appeal.

Sd/- T. Vasudevan

Senior Civil Judge,

Bobbili.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE: BOBBILI

Present: Sri T.VASUDEVAN,

Senior Civil judge, Bobbili

Monday, this the 1 st day of April, 2024

APPEAL SUIT No. 21 of 2017

Between:

1. P. B. Srinivas, S/o late R. J. Sanyasiraju, aged 56 years, resident of Door No. 1-4-30, Makkuva Road, Salur, Vizianagaram District.

... Appellant/Plaintiff No.2

A n d:

1. Meesala Gowri Devi, D/o not known to the appellant, aged 51 years, resident of Kota Street, Near Old Oriya School, Salur, Vizianagaram District.

… Respondent / Defendant

2. Vikrama Chandra Sanyasiraju, S/o late L.N. Sanyasi Raju, aged 60 years, resident of Kota Street, Salur, Vizianagaram District.

…... Respondent/ Plaintiff No.1

ON APPEAL AGAINST THE DECREE AND JUDGMENT IN

O.S. 55 of 2011 DATED 24.11.2017 ON THE FILE OF THE

JUNIOR CIVIL JUDGE’S COURT, SALUR

Between:

1. Vikrama Chandra Sanyasiraju, S/o late L.N. Sanyasi Raju, aged 60 years, resident of Kota Street, Salur, Vizianagaram District.

2. P. B. Srinivas, S/o late R. J. Sanyasiraju, aged 56 years, resident of Door No. 1-4-30, Makkuva Road, Salur, Vizianagaram District.

... Plaintiffs

2

A n d:

Meesala Gowri Devi, D/o not known to the appellant, aged 51 years, resident of Kota Street, Near Old Oriya School, Salur, Vizianagaram District.

…… Defendant

This appeal coming on 22.03.2024 for final hearing before me in the presence of Sri P. Manikeswara Sai, Advocate for the Appellant and of Sri B. Ravi, Advocate for the Respondent No.1 and Sri T. Panigrahi,

Advocate for respondent No.2 and having stood over for consideration to this date (Reserved), this Court passed the following:

J U D G M E N T

1.This appeal is directed against the decree and judgment dated 24.11.2017 in O.S.55 of 2011 on the file of the learned Junior Civil

Judge’s Court, Salur whereby and where-under, the learned Junior Civil

Judge, Salur, dismissed the suit against the plaintiffs refusing to grant

permanent injunction restraining the defendants. Plaintiff No.2 in this suit alone preferred this appeal against the sole defendant as respondent No.1 and by showing the plaintiff No.1 as formal party / respondent No.2.

2.Aggrieved by the dismissal of the suit, the unsuccessful

Appellant/plaintiff No.2 approached this court by way of filing of this appeal. For the sake of convenience, and brevity, hereinafter, the parties will be referred as per their array in the suit before the learned trial Court.

3

3. CASE OF THE PLAINTIFF IN BRIEF IS THAT :-

(a) The Plaintiffs Vikrama Chandra Sanyasi Raju is the son and descendant of the then Zamindar of Salur by name L.N. Sanyasi Raju and the suit property is the land an extent of Acre 19.50 cents situated in different sub divided survey numbers of 216 and 217 of Gumadam Village of Salur Mandal. Plaintiff No.2 P.B. Srinivas is the son of one R. J. Sanyasi

Raju and this R.J. Sanyasi Raju is the manager of properties of Zamindar of Salur during the period of L.N. Sanyasi Raju and after his demise his son P.B. Srinivas / plaintiff No.1 continuing the same with the permission and consent of plaintiff No.2 / son of L.N. Sanyasi Raju.

(b) Plaintiffs further pleaded that the suit schedule property originally consists Acre 29.33 cents, during the life of the father of plaintiff No.2 by name L. N. Sanyasi Raju, he possessed and enjoyed it and as it belongs to his ancestors and Acre 10.00 cents had been received from the mother of said L.N. Sanyasi Raju viz., Seetayamma Maha Devi under a re -conveyance agreement dt. 10.04.1941. Subsequently, said L.N.

Sanyasi Raju disposed off an extent of Acre 4.50 cents to third parties and an extent of Acre 5.00 cents by handing over to Government as acquisition for construction of Police quarters, Panchayat office and a colony for weaker section etc., thereby, they left over remained land is only Acre 19.50 cents in those survey numbers, therefore, after the demise of said

L.N. Sanyasi Raju, these properties had been devolved to the plaintiff

No.1.

4

(c) Plaintiffs further pleaded that during the life of L.N. Sanyasi

Raju, one R.J. Sanyasi Raju the father of 2nd plaintiff P.B. Srinivas used to look after the management and affairs of the estate of Salur Zamindar i.e., the family of L.N. Sanyasi Raju and he is the uncle to plaintiff No.1 herein.

Subsequently, the Government abolished estates, even though said R.J.

Sanyasi Raju used to continue his management of properties, hence, father of plaintiff No.1 herein, viz., L.N. Sanyasi Raju permitted said R.J.

Sanyasi Raju, the father of 2nd plaintiff by executing a conditional WILL dt.

26.08.1997 as “Sthirasthi Savatha Hakku Anubhava Patram” thereby, the possession of suit properties by plaintiff No.2 as on the date of instituting this suit was permissive physical possession and the possession of plaintiff

No.1 is constructive possession since, plaintiff No.2 got these properties and cultivating these lands after the demise of his father / R. J. Sanyasi

Raju.

(d) Plaintiffs further pleaded that Revenue authorities recognized lawful title to plaintiff No.1 and permissive possession of plaintiff No.2 in respect of suit properties, mutated revenue records and issued pattadar pass books and title deeds also in favour of the plaintiffs. Defendant is no way concerned to the suit properties but proclaiming in and around locality that she will trespass into suit property thereby, threat ending and to attempting to trespass with the help of local people and social workers only with an intention to grab the suit property. Earlier, when one Niroda

Kumari Devi of Salur attempted to trespass into suit property, plaintiffs 5 filed suit O.S. 184/2009 and obtained injunction orders also against said woman. Defendant herein, having knowledge of all these facts attempting to trespass into suit property and creating a threat of dispossession, therefore, plaintiffs approached the Court and instituted the suit praying the Court to grant relief of permanent injunction to restrain the defendant from ever interfering into their possession of suit property.

4. PLEA OF THE DEFENDANT IS THAT :-

(a) Defendant filed her written statement by denying the many of averments in the plaint and further pleaded that the then

Zamindar of Salur L.N. Sanyasi Raju got three sons viz., Vikrama Chandra

Sanyasi Raju ( Plaintiff No.1), Vinod Chandra Sanyasi Raju ( husband of defendant in O.S. 184/2009) and Viswambara Chandra Sanyasi Raju (husband of defendant herein) and all these father and sons constituted a

Hindu joint family possessing all ancestral properties together under the management of L.N. Sanyasi Raju and continuing as joint ancestral properties as on the date of instituting this suit also.

(b)Defendant further pleaded that said Viswambara

Chandra Sanyasi Raju / son of L.N. Sanaysi Raju and brother of plaintiff

No.1 lawfully married defendant herein on 13.03.1986 at Sri

Venugopalaswamy Devasthanam, Salur later, they lived happy marital life in the estate of Salur till the demise of her husband on 23.10.1999 and her husband died by leaving her as his sole legal heir. When she came to knew 6 cases against her husband, after his demise she had been joined as legal heir of her husband claiming properties of the estate in several matters pending before several Courts including in O.S. 68/1993, O.S. 69/2003 and in O.S. 184/2009 etc., as well as the wife of Vinod Chandra Sanyasi Raju viz., Niroda Kumari Devi also joined in those suits. Hence, first plaintiff herein alone have no exclusive and absolute right, title and possession in respect of suit properties herein and as the defendant being wife of the brother of plaintiff No.1 and as the suit properties are still in joint status, she also co-owner cum co-sharer in the suit properties therefore, this suit claiming permanent injunction against co-owner / defendant is not maintainable.

(c)Defendant further pleaded that plaintiffs fabricated Revenue records with the forged signatures, with the help of those fabricated records filed this suit only to gain wrongfully and the 2nd plaintiff also filed a suit against one R. Maheswara Rao and G. Prakasa Rao on the file of this

Court i.e., Senior Civil Judge’s Court, Bobbili in O.S. 22/2005 seeking the relief of permanent injunction by using this fabricated document and the document “Sthirasthi Savatha Hakku Anubhava Patram” was never executed by L.N. Sanyasi Raju and it was also a fabricated document.

Plaintiffs having disputes with defendant including criminal case reported by defendant herein, against plaintiffs and others for the offences of fabrication, forgery and cheating pending on the file of learned Judicial 7

Magistrate of I Class, Salur, only to grab the suit property got filed this

suit by suppressing material facts, therefore, prayed to dismiss the suit.

5. ISSUES:-

Basing on the plea of parties in plaint and written statement as well as upon hearing and on verification of documents, the learned trial court framed following issues for trial and adjudication:-

1. Whether the plaintiffs are entitled to the relief of perpetual injunction as prayed for ?

2. To what relief ?

6. EVIDENCE:

During the trial, before the learned trial court, the plaintiff No.2 /

P.B. Srinivas in order to discharge their initial burden and to prove that they are entitled for the reliefs as prayed, himself deposed as P.W.1 by producing Ex.A.1 to Ex.A.9 documents. On behalf of the defendant, to substantiate her plea, the defendant Raja Gowri Devi herself deposed as

DW1 and produced Ex.B.1. Among these documents Ex.A.1 is the Certified

Copy of Rytwari Pattadar Passbook, Ex.A.4 Attested Copy of 1-B Register and Ex.B.1 Copy of Sale Deed dt. 05.10.1996 are the important documents.

8

7. FINDING OF TRIAL COURT:

After hearing both sides and on considering the entire evidence as referred above, the learned Junior Civil Judge, Salur dismissed the suit with costs by coming to a conclusion that the case of plaintiffs not appears to be probable and reliable than the plea of defendant.

8. GROUNDS OF APPEAL:

Aggrieved by the dismissal of suit, the unsuccessful plaintiffs /

Appellant herein, preferred this appeal with the following grounds:

1.The Trial Court ought to have decree the suit instead of dismissal and erroneously came to a conclusion that the plaintiffs failed in establishing their case.

2. The Trail Court failed to consider Ex.A.1 to Ex.A.8 documents in order to satisfy the possession of suit property by plaintiffs as lawful and the plaintiffs got legal right to possess the suit property.

3. The Trail Court erroneously came to a conclusion that “Hakku Anubhava Patram” is the document need to be filed by 9 the plaintiffs in order to get the reliefs thereby, erroneously came to a conclusion that plaintiffs failed to show prima facie title thereby, the learned trail court failed in considering the other supporting documents Ex.A.1 to Ex.A.8.

4. The Trail Court erroneously considered the status of defendant though the documents produced disclosing that the defendant have / had no connection with the family of plaintiff

No.1.

5. The Trail Court failed to consider that the plaintiff No.1 is the only surviving legal descendant of L.N. Sanyasi Raju thereby, lawful owner of suit property, entitled to restrain the defendant.

09. ADDITIONAL EVIDENCE:

No additional evidence produced by both parties except advancing arguments. Considered the arguments.

10. ARGUMENT IN APPEAL:

(a) Learned counsel for the appellant/ plaintiff No.2 submitted that in spite of the best evidence placed by plaintiffs to substantiate their plea, the learned trail court erroneously decided the issues framed, thereby, the suit was dismissed and it is evident from the admissions of DW1, that the suit property is the ancestral property of plaintiff No.1 and his ancestors. Though Revenue records and other 10 documents produced under Ex.A.1 to Ex.A.8 by the plaintiffs to support their claim, learned trial court failed in considering these evidence in proper way and dismissed the suit, though it is evident that plaintiffs are in possession of suit property just prior to instituting the suit. Hence, prayed to consider the circumstances and to decree the suit by setting aside the decree and Judgment of trial Court.

(b)Learned counsel for the respondent No.1 /defendant submitted that by considering oral evidence adduced and documentary evidence produced, the learned trial court arrived to a just conclusion in accordance with the Law and principles of evidence, thereby, dismissed the suit. Under these circumstances, requires no interference into the trail court judgment , since the judgment of trial

Court is well supported with good reasons for arriving conclusion against the appellant, therefore, prayed to dismiss the appeal.

11. POINTS FOR CONSIDERATION:

In view of the specific contentions raised by both the parties, the following points arose for consideration :

1. Whether the plaintiffs / appellant could able to produce sufficient evidence as to their possession of suit property as on the date of instituting the suit

O.S.55/2011? If, so

2. Whether the Judgment of the Trial Court is not sustainable under Law as argued?

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3. Whether the plaintiffs / appellant is entitled for the relief of permanent injunction to restrain the defendant / respondent No.1 as prayed?

12. POINT:

In a suit for perpetual/permanent injunction/ mere injunction, it is the Law settled that the possession and enjoyment of suit property by the plaintiff as on the date of instituting the suit is the only consideration apart from verifying that whether the possession and enjoyment of plaintiff is lawful. Unless these requirements are satisfied, plaintiff is not entitled for a decree to restrain the defendants as ruled by Hon'ble High Court of Judicature, at

Hyderabad for the State of Andhra Pradesh in between Madala

Kotaiah vs. Hamsa Miners and Exports, Prakasam District and

another reported in 2011 SCC online AP 325= 2011 (6) ALT 19 at para

No.7 ruled as follows:

In a suit for injunction, what becomes relevant is

the factum of possession over the suit schedule

property as on the date of filing of the suit.

Except as a semblance legal right to remain in

possession, the law does not insist on existence of

title in favour of the plaintiff in a suit of that

nature. Reference to title will be only to ensure

that the possession claimed by the plaintiff is

not of an outright trespasser or encroacher, but is

by a person having a semblance of right. Anyone who wants pronouncement upon the title in his favour, must file a suit for declaration of title.

12

In obedience to the above referred Judgment, now it is to be seen that whether the plaintiffs before the learned trial Court satisfied these requirements to get the relief as prayed.For this purpose, evidence brought on record before the learned trial Court is the oral evidence of PW1 and DW1 as well as the documents under Ex.A.1 to

Ex.A.9 and Ex.B.1. With these evidence, points framed as noted above are to be adjudicated.

13. Further, Section 102 and 103 of Indian Evidence Act which deals with burden of proof of a fact and onus of proof reads as follows:

102. On whom burden of proof lies :-- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

103. Burden of proof as to particular fact :-- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

In view of above Judgment referred and Law quoted, it is clear that since, the suit O.S.No. 55/2011 being a suit for the relief of permanent injunction / perpetual injunction to restrain the defendant in any way interfering the suit property, it is the burden of the plaintiff / appellant who approached the trial court to prove his case by 13 probablizing their plea. Defendant / respondent can resist the relief with the best evidence possessed by her. Herein, it appears from the judgment of the learned trial court that in order to discharge the burden of plaintiffs and to substantiate their case, plaintiffs/ appellant placed sufficient evidence through the oral evidence of PW1 and by producing the documentary evidence under Ex.A1 to Ex.A.9 documents but the learned trail court failed in considering the same in proper way with in the ambit of the relief prayed herein.

14. POINTS NO.1 AND 2 :

1. Whether the plaintiffs / appellant could able to produce sufficient evidence as to their possession of suit property as on the date of instituting the suit

O.S.55/2011? If, so

2. Whether the Judgment of the Trial Court is not sustainable under Law as argued?

On careful consideration of the oral evidence of PW1 and DW1 recorded by the learned trial Court in the suit OS 55/2011 as well as the admitted facts by both witnesses/ parties to the suit and also the contents in Ex.A.1 Certified Copy Rytwari Pattadar Passbook, Ex.A.6 Sale Deed dt.

13.02.2006 by the mother of first plaintiff, written statement of defendant herein and contents in Ex.B.1 Copy of Sale Deed dt. 05.10.1996, it is clear 14 that both parties agreed that the suit properties are all the properties of the family of L.N. Sanyasi Raju the then Zamindar of Salur and it is the estate of the family of L.N. Sanyasi Raju consisting plaintiff No.1 Vikrama

Chandra Sanyasi Raju with his two brothers viz., Vinod Chandra Sanyasi

Raju and one Viswambara Chandra Sanyasi Raju as two sons of late L.N.

Sanyasi Raju. Hence, the nature of property and its availability on ground with in the description provided in the suit schedule is appears to be not disputed by the defendant.

15.It is the evidence of PW1/ plaintiff No.2 that the suit property being part of estate of the Zamindar of Salur represented by plaintiff No.1 herein, both the plaintiff No.1 as lawful owner and the plaintiff No.2 permissive possessor possessing and enjoying the suit property with in the knowledge of everyone thereby, the revenue authorities recognized their possession as lawful and mutated revenue records also. In support of it plaintiffs produced Ex.A.1 to Ex.A.9 documents. Among these documents

Ex.A.1 Certified copy of Rytwari Pattadar Passbook, Ex.A.4 Duly attested

Copy of 1-B Register attested by the then Tahsildar of Salur, Ex.A.3

Certified Copy of Judgment in O.S. 22/2005, dt. 18.07.2011 by this Court (Senior Civil Judge Court, Bobbili) are the important documents. On plain and careful reading of these evidence, it appears that the learned trial

Court failed to consider these evidence in proper way.

15

16.Since, the defendant also admitted as DW1 before the trial

Court that the suit properties are belongs to late Sri L.N. Sanyasi Raju and the same fell to his sons Vikrama Chandra Sanyasi Raju / plaintiff No.1 herein, and his two brothers, it is clear that plaintiff No.1 Vikrama

Chandra Sanyasi Raju is the lawful owner of suit property since, the admission by the defendant as to the ownership of property is the best evidence need to be consider since, it is supported by the entries contained in Ex.A.1 and Ex.A.4 documents. Whether there was division of properties between the brothers of plaintiff No.1 is not the primary consideration herein in this suit since, the plaintiff No.1 disputing the status of defendant herein as legally wedded wife of his brother

Viswambara Chandra Sanyasi Raju and as there is no such evidence placed before the learned trial court in this suit as to the status of the defendant and further the death certificate under Ex.A.5 disclosing that the priest who said to have been solemnized marriage in between the defendant and said Viswambara Chandra Sanyasi Raju was no more as on the date of defendants marriage with Viswambara Chandra Sanyasi Raju as claimed. Further, in view of the disputes between the plaintiff No.1 and defendant as to her marriage and as the plaintiff No.1 being brother of

Viswambara Chandra Sanyasi Raju filed Ex.A.6 Copy of Sale Deed executed by their mother stating that as on the date of the demise of

Viswambara Chandra Sanyasi Raju was bachelor and never married anyone, the status of defendant appears to be in serious dispute which need to be decided by appropriate Court having jurisdiction to do so.

Hence, it is clear from these circumstances that as there is no supporting 16 and conclusive evidence that the defendant is legally wedded wife of late

Viswambara Chandra Sanyasi Raju, there is no evidence that she became co-owner / co-sharer of suit property as claimed.

17.Further, the suit O.S. 55/2011 being a suit for mere in mention what is to be considered in that suit is the legal status of plaintiffs but not the defendants to satisfy that whether the plaintiffs possession was a lawful possession. Hence, the reference of title in a suit for permanent injunction is very limited as it is settled Law and herein from the admission of defendant as DW1 and from the contents in Ex.A.4 and

Ex.A.1 documents it is evident that the name of plaintiff No.1 Vikrama

Chandra Sanyasi Raju who is respondent No.2 herein had been entered as owner of suit property as he got the same from his ancestors and further the name of plaintiff No.2 P.B. Srinivas is also entered in Ex.A.1 as possessor of suit property as he got the same with the permission granted by plaintiff No.1 to maintain his property as manager. As discussed above, by referring the judgment of the Honourable High Court of Andhra

Pradesh, in a suit mere injunction what is to be looked into the only factum of possession rather than the title and the reference to title is only for limited purpose to satisfy that the plaintiffs are not trespassers. Herein, to satisfy upon the prima facie title of plaintiff No.1, the learned trial Court failed in considering the admission of defendant both in her written statement and in her evidence as DW1 that all the suit properties are the ancestral properties of plaintiff and his brothers. Further, entries in Ex.A.4 17

Copy of 1-B Register duly attested by Tahsildar, Salur supporting the claim of plaintiffs that the plaintiff No.1 is the lawful owner of suit property.

18. The claim of defendant is that all the suit properties and other ancestral properties are still in joint status and no allotment of properties by way of partition between the sons of L.N. Sanyasi Raju i.e., the plaintiff and his brothers. However, it is evident from the contents in Ex.A.6 Sale

Deed executed by the mother of 1st plaintiff on 13.02.2006 and the contents in Ex.B.1 Sale Deed dt. 05.10.1996 executed by Viswambara

Chandra Sanyasi Raju the brother of plaintiff No.1 as well as the admissions of defendant as DW1 that as on the date of Ex.B.1 and Ex.A.6 there was a partition between the brothers of plaintiff No.1. Defendant as

DW1 admitted the same in her cross examination that “it was mentioned in Ex.B.1 Sale Deed by Viswambara Chandra Sanyasi Raju that the properties covered under Ex.B.1 were fell to the share of the executant /

Viswambara Chandra Sanyasi Raju in the partition between 1st plaintiff herein, his father and the children of L.N. Sanyasi Raju”. These admission of DW1 / defendant coupled with the contents in Ex.A.1 pattadar pass book copy and Ex.A.4 1-B Register Copy, it is clear that there is sufficient evidence to the prima facie satisfaction of the Court that the plaintiff No.1 herein, got the suit property in the partition between his brothers and father and later he delivered the same to plaintiff No.2 / PW1 to cultivate it as manager on behalf of plaintiff No.1. The learned trail court failed to consider these evidence in a proper prospective.

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19. It is the evidence of PW1 before the learned trial court that plaintiff No.1 permitted him to cultivate the land as a manager, therefore, plaintiff No.2 possessing and cultivating the suit lands on behalf of plaintiff

No.1 thereby, the revenue authorities recognized his possession and enjoyment and got issued Pattadar Passbook and other records in his favour by making entries. In support of it, apart from his oral evidence, plaintiff No.2 as PW1 produced Ex.A.1, Ex.A.4 and the Copy of Judgment of this Court as of Ex.A.3. It is evident from the contents in Ex.A.1 copy of pattadar passbook and Ex.A.4 copy of 1-B Register that these were duly signed by the Tahsildar, Salur and the original of these documents had been filed in O.S.184/2009 before the learned Junior Civil Judge Court,

Salur, therefore, certified copies of these documents produced herein.

Entries contained in Ex.A.1 Certified copy of Rytwari Pattadar Passbook goes to show that it was issued on 12.06.1998 infavour of P. B. Srinivas/ plaintiff No.2 herein in respect of suit properties consisting in Survey

Number 216 with different sub divisions as possessor of the land entered therein as well as contents in Ex.A.4 1-B Register duly attested by the

Tahsildar, Salur disclosing that the plaintiff No.1 herein being owner permitted P.B. Srinivas / plaintiff No.2 to cultivate these lands thereby, both the names of plaintiff No.1 and 2 entered at the column of possessor of properties shown in the suit schedule. Hence, it is clear that sufficient evidence in the form of oral and documentary placed before the learned trial court as to the possession of suit property by plaintiffs 1 and 2 having constructive possession by plaintiff No.1 and physical possession by 19 plaintiff No.2 with regard to the suit property but the learned trial court appears to be not considered the same, since, the entries made in Revenue records are until contra is proved, presumed to be true and correct and best evidence of possession property as well as the persons named are the persons liable to pay the land revenue for the land possessed by them as ruled by the Honourable High Court of Andhra Pradesh in between

CHANUMOLU NIRMALA and OTHERS Vs CHANUMOLU INDIRA

DEVI reported in 1994 (1) ALT 673 (DB). Their Lordship in this judgment that how and to what extent the entries made in Revenue records are to be considered by Courts, ruled as follows:- 12……………………………………………………………………… ……………………………………………………………….Under Section 6 of the Andhra Pradesh Record of Rights in Land Act, 1971, every entry in the Record of Rights shall be presumed to be true until the contrary is proved or until it is otherwise amended in accordance with the provisions of the said Act. Ex. A.16, the Ryot pass book, contains the signatures of the Revenue Inspector and the Village Officer. Its authenticity, therefore, cannot be doubted. In fact, before the that court, this was not in issue at all; no suggestion was made when the same was produced by P.W. 1, the plaintiff, that the same was devoid of legal validity. The documentary evidence Exs. A.7, A.16, A.69, A.76 and A.77 clearly establishes that there was partition as far back as 1969 between Bhaskar Rao and the second defendant, Rajeev.

20.Further, it appears from the contents in Ex.A.3 Certified Copy of Judgment in O.S. 22/2005, dt. 18.07.2011 by this Court (Senior Civil

Judge Court, Bobbili) as well as the admission of defendant as DW1 and in

20 her written statement that when some 3rd parties viz., Gumpa Prakasa

Rao, Regu Maheswara Rao and others tried to trespass and to disturb the plaintiffs possession of suit properties herein, the plaintiff No.1 herein,

Vikrama Chandra Sanyasi Raju filed O.S.22/2005, in that suit also produced copies of Ex.A.1 and Ex.A.4 herein, apart from producing other documents and leading oral evidence. This Court in that suit O.S.22/2005 in respect of the same subject matter herein, considered Ex.A.1 and Ex.A.4 herein as well as the oral evidence and decreed that suit under Ex.A.3 on 18.07.2011 by coming to a conclusion that the plaintiff No.1 herein placed prima facie evidence upon the title of plaintiff No.1 in respect of suit property and his right to possess the suit property as lawful owner, thereby, granted the relief as permanent injunction against the 3rd parties.

It appears that this copy of judgment already filed in this suit but the learned trial court not considered the same in proper way to came to a conclusion. From and out of above facts considered, evidence placed and the judgments referred, this Court is of the view that the appellant herein, being plaintiff No.2 in this suit O.S.55/2011 by deposing himself as PW1 and by producing Ex.A.1 to Ex.A.9 documents could able to probablize his plea that plaintiff is the lawful owner of suit property as on the date of the suit O.S.55/2011 and both the plaintiffs possessed the suit property lawfully thereby, entitled to restrain 3rd parties to disturb their possession.

However, the learned trial Court failed to consider these evidence and dismissed the suit holding that plaintiffs not produced “Sthirasthi Savatha

Hakku Anubhava Patram” so as to satisfy prima facie title to plaintiffs in respect of suit property and the documents Ex.A.1 and Ex.A.4 are not the 21 documents relating to the year of instituting the suit, therefore, there is no evidence as to the possession of suit property by plaintiffs to claim the relief.

21.It is the Law settled as ruled by Honourable High Court of

Andhra Pradesh in various judgments including in betweenG.

TRINADHA SWAMY VS GANDHAM SATYANARAYANA AND OTHERS

2006 (4) ALT 627 AND IN BETWEEN NANDHYALA KOTIREDDY VS

BHEEMAVARAPU RAMA KRISHNA REDDY AND OTHERS 2014 (4)

ALT 45 as to the entries in revenue record and presumption with regard to those entries as follows:-

10. Law provides for drawing of presumption forward and backward, particularly in the context of possession. If the plaintiff is in a position to point out that backed by his title, he is in possession of the property, up to a particular point of time, the same state of affairs deserves to be presumed in a forward direction. Such presumption must however stop, if it meets a road block, in the form of a more assertive and evident proof or probability of the defendant being in possession of the same property. Another important aspect is that though the weakness of a defendant in a suit cannot be treated as the strength of the plaintiff, in the course of relative assessment of claims, such a weakness, if exists, would have its own role to play.

The reason is that cases cannot be expected to exist in a set or moulded pattern. The Court has to weigh the probabilities, than to require the plaintiff to prove his case beyond any reasonable doubt.

Such a course is adopted only in criminal cases. If as between the versions put forward by the plaintiff on the one hand, and the 22 defendant on the other hand, the probability is more towards the plaintiff being in possession, Court should not hesitate to grant the relief, and reject it, if it is otherwise.

It is clear from above referred judgments that Law provides a presumption as to entries in revenue records and this presumption can be taken into backward or forward in the context of possession of property. If the plaintiff could able to show his possession property up to a particular point of time / period and if it is supported by title to that property, presumption of his possession of that property can be drawn in forward direction / further also. Here in, it is clear that the plaintiff by producing

Ex.A.1 and Ex.A.4 revenue records could able to show before the learned trial court that the plaintiffs possessed suit properties by the date of issuing Original of Ex.A.1 Pattadar Passbook i.e., 12.06.1998 and it is supported by lawful title to plaintiff No.1 through his ancestors, therefore, the possession of suit properties entered infavour of plaintiffs herein in

Ex.A.1 and Ex.A.4 can be taken forward even to the date of instituting the suit O.S.No. 55/2011, thereby, this Court considered entries in Ex.A.1 and

Ex.A.4 in the year 2011 also when, this Court decreed the suit O.S.

22/2005 infavour of plaintiff No.1 herein on 18.04.2011 as contained in

Ex.A.3.

22.Under these circumstances, this Court on considering the oral evidence of PW1 and DW1 adduced before the learned trial court as well as the contents in Ex.A.1 to Ex.A.9 and Ex.B.1 documents, is of the view that the plea of plaintiffs appears to be more probable and reliable than 23 plea of the defendant and the plaintiffs placed sufficient evidence to satisfy upon the prima facie title and lawful right to possess the suit property as on the date of instituting the suit O.S.No. 55/2011 but the learned trial court failed in considering these evidence and erroneously dismissed the suit instead of decreeing the same. Accordingly, these points of answered infavour of the plaintiffs / appellant.

23. POINT NO: 3

3. Whether the plaintiffs / appellant is entitled for the relief of permanent injunction to restrain the defendant / respondent No.1 as prayed?

As discussed above, in obedience to the law referred and Section 38 of Specific Relief Act, it is clear that what is to be consider in a suit for injunction simplicitor is nothing but factum of possession only rather than the title. The reference to title is only for a limited purpose to satisfy that the plaintiff are not the trespassers into suit property because the Law is that a trespasser is not entitled for the discretionary relief of injunction.

Herein, as discussed above, plaintiffs could able to place sufficient evidence prima facie that the plaintiff No.1 got title in respect of suit property and both the plaintiff No.1 and 2 possessed the suit property as constructive and physical possession respectively, thereby, they are not a trespasser into suit property, therefore, they are entitled to protect their possession against the defendant whose status in dispute. Hence, the plaintiffs who are in actual and lawful possession are entitled to protect their possession and to restrain the defendants as prayed. Accordingly this 24 point is answered by coming to a conclusion that the decree and judgment in O.S.No. 55/2011 is liable to be set aside and the Suit O.S.No. 55/2011 is to be decreed by granting permanent injunction in favour of plaintiffs / appellant against the respondent No.1 / defendant to restrain her as prayed. Accordingly this point is answered infavour appellant.

24. RESULT:

In the result, this appeal preferred against the decree and judgment of learned Junior Civil Judge, Salur in O.S.No.55/2011 IS

HEREBY ALLOWED. The Decree and Judgment of learned Junior Civil

Judge, Salur in O.S.No.55/2011 is set aside as a result, the suit in

O.S.No.55/2011 is DECREED WITH COSTS by granting PERMANENT

INJUNCTION against the defendant / respondent No.1 herein, i.e.,

Meesala Gowri Devi in any way interfering with the plaintiffs possession and enjoyment of suit properties in any way as prayed.

Dictated to the Typist, typed, corrected, signed and

pronounced by me in the open court, this the 1 st day of April, 2024.

Sd/- T. Vasudevan

Senior Civil Judge,

Bobbili.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

DOCUMENTS MARKED

No oral or documentary evidence adduced by either party in this appeal.

Sd/- T. Vasudevan

Senior Civil Judge,

Bobbili.