Sri Tallapragada Mallikarjuna Rao

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IN THE COURT OF THE XV ADDL. DISTRICT & SESSIONS

JUDGE :: KRISHNA DISTRICT AT NUZVID.

PRESENT:- Sri T. MALLIKARJUNA RAO,

XV ADDL. DISTRICT & SESSIONS JUDGE.

Friday, on this the 15th day of July, 2022.

CRIMINAL APPEAL No.84/2020 IN C.C.NO.71/2016 OF

JUDICIAL MAGISTRATE OF FIRST CLASS, TIRUVURU.

Between: - 1).Kongara Bhaskar, S/o.David Raju, aged 22 years. 2).Kongara David Raju, S/o.Yacob, aged 45 years. 3).Kongara Prabhakar, S/o.Charles, aged 18 years.

4).Kongara Samrajyam, W/o.Yacob, aged 75..Appellants/

years.A1 to A4 All are SC-Mala, R/o.Polavaram Village, Chatrai Mandal.

And

The State, Rep. by SHO, Chatrai P.S., through.. Respondent

Additional Public Prosecutor, XV-ADJ Court,

Krishna, Nuzvid.

This Criminal Appeal is coming on 7.7.2022 before me for final hearing in the presence of Sarvasri A. Satyanarayana and J.G. Gandhi, Advocates for Appellants, and of Sri N.A. Khan, Addl.Public Prosecutor for State and upon considering the material papers on record, this Court made the following:

From what court the appeal isJudl. Magistrate of I Class, preferredTiruvuru.

Number of the case in that courtC.C.No.71/2016 2 Description of the Appellants 1).Kongara Bhaskar, S/o.David Raju, aged 22 years. 2).Kongara David Raju, S/o.Yacob, aged 45 years. 3).Kongara Prabhakar, S/o.Charles, aged 18 years. 4).KongaraSamrajyam, W/o.Yacob, aged 75 years. All are SC-Mala, R/o.Polavaram Village, Chatrai Mandal.

Description of RespondentState of A.P., Rep. by SHO, Chatrai P.S., through Additional Public Prosecutor, XV-ADJ Court, Krishna at Nuzvid.

Judgment passed by lower court. Accused Nos.1 to 4 are found guilty for the offences punishable U/s.324 r/w.34 IPC and 509 r/w.34 IPC and accordingly they are convicted U/s.248 (2) Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of TWO YEARS each and to pay fine of Rs.2,000/- each for the offence punishable U/s.324 r/w.34 of IPC, and A1 to A4 are further sentenced to undergo Simple Imprisonment for a period of ONE YEAR each and also to pay fine of Rs.1,000/- each for the offence punishable U/s.509 r/w.34 of IPC, in default of payment of fine to undergo S.I. for a period of 3 months each. Both the sentences shall run concurrently.

3 WhethertheAppealisIn the result, the Criminal Appeal confirmed, reversed or modifiedis allowed and the conviction and by the Appellate Courtsentence awarded against the appellants/accused Nos.1 to 4 in C.C.No.71/2016 dated 23.08.2018 by the learned Judicial Magistrate of First Class, Tiruvuru for the offence punishable under Section 324 r/w.34 IPC is hereby set aside and the appellants/accused Nos.1 to 4 are found not guilty for the offence punishable under Section 324 r/w.34 of IPC and they are acquitted as per the provisions under Section 248(1) of Cr.P.C for the said offence. The fine amount, ifany,paidbythe appellants/Accused Nos.1 to 4 shall be returned to them after expiry of appeal time. The Appellants/A1 to A4 are already acquitted for the offence U/s.509 r/w.34 IPC U/s.320(8) of Cr.P.C. as perCrl.M.P.No.639/2022on 5.7.2022 and the fine amount, if any, paid by the appellants/A1 to A4 for the offence under Sec.509 r/w.34 IPC shall be returned to them after expiry of appeal time.

Date of PresentatioFilingNoticeRespondenHearingJudgment nissuedt ordered by theto appear Court 8.2.20197.10.2020 8.10.2026.11.2020 7.7.2022 15.7.2022

J U D G M E N T

This criminal appeal is preferred against the Judgment

Dt.23.8.2018 in C.C.No.71/2016 passed by the Judicial Magistrate of First Class, Tiruvuru, convicting and sentencing

Appellants/Accused Nos.1 to 4 to undergo Rigorous

Imprisonment for a period of TWO YEARS each and to pay fine of

Rs.2,000/- each, for the offence punishable U/s.324 r/w.34 of IPC, and A1 to A4 are further sentenced to undergo Simple 4 Imprisonment for a period of ONE YEAR each and to pay fine of

Rs.1,000/- each for the offence punishable U/s.509 r/w.34 of IPC, in default of payment of fine, to undergo S.I. for a period of 3 months each.

2. Brief facts of the prosecution case are that:

On 27.12.2015 at 4.00 p.m. some she buffaloes pushed the fencing of the house of defacto complainant, then her husband/Prasad while erecting the fencing of her house, then her cousin brother/A2 picked up quarrel with her abused her and her husband in the meanwhile A1 and A3 together came upon her and her husband and they tried to beat her daughters, then A1 beat her husband with a bamboo stick on his back, A3 beat her husband with a stick, when she interfered, A1 beat her with a stick on her head forcibly, as a result, she sustained bleeding injury, then A3 beat her with a plank, as a result she sustained swelling on right eye, right hand and A4 beat her two daughters with stick and they sustained injuries and they were shifted to

Government Hospital, Chintalapudi for treatment and police came to the hospital and recorded her statement. Basing on the statement of LW.1, LW.8/SI of Police registered a case in

Cr.No.13/2016 U/s.324 and 509 r/w.34 IPC of Chatrai P.S. against all the accused and investigated into. During the course of investigation, SI of Police visited the scene of offence, prepared rough sketch and examined the witnesses and recorded their statements. On 20.1.2016 all the accused came to police station and surrendered before him, then SI of Police served notice

U/s.41-A Cr.P.C. LW.7/the Medical Officer treated the injured and issued wound certificates opining that the injuries sustained by 5 injured are simple in nature. After completion of investigation,

LW.8/SI of Police filed charge sheet against all the accused for the offences punishable U/s.324 and 509 r/w.34 of IPC.

3. Based on the charge sheet and material on record, the learned Judicial Magistrate of First Class, Tiruvuru took cognizance of the case in C.C.No.71/2016 U/s.324 and 509 r/w.34 of IPC against all the Accused and on appearance of accused, they were examined U/s.239 Cr.P.C. and the contents of accusation punishable U/Sec.324 and 509 r/w.34 IPC are read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

4. During course of trial, P.Ws.1 to 7 were examined and

Exs.P1 to P9 were marked on behalf of prosecution. After completion of prosecution evidence, the Accused were examined

U/s.313 Cr.P.C., explaining the incriminating evidence found against them, for which, they denied and reported no evidence on their behalf.

5. Considering the oral and documentary evidence on record, the learned Judicial Magistrate of First Class, Tiruvuru opined that prosecution has proved guilty of Accused for the offences U/s.324 r/w.34 IPC and 509 r/w.34 IPC and convicted them as per the provisions U/Sec.248 (2) Cr.P.C and sentenced them as referred to above.

6. Aggrieved by the impugned judgment dt.23.8.2018 passed by the learned JMFC, Tiruvuru, the Appellants/Accused Nos.1 to 4 preferred the present appeal on the following grounds:

That the Judgment of Trial Court is contrary to law, weight of evidence and probabilities of the case. The trial Court ought to 6 have acquitted the appellants as the prosecution has failed to prove the necessary ingredients that are required for the offence

U/s.324 r/w.34 IPC and 509 r/w.34 IPC. The trial Court ought to have disbelieved the interested and related testimony of P.Ws.1 to 4 as they belong to one family. The trial Court ought to have believed the evidence of independent witnesses P.Ws.5 and 6 who are not supporting the evidence of P.Ws.1 to 4, as there is no independent corroboration of the evidence of P.Ws.1 to 4. The trial Court ought to have acquitted the appellants as the prosecution has failed to explain the delay in giving Ex.P1 report and the delay in dispatching Ex.P1 report to the concerned

Magistrate. The trial Court ought to have acquitted the

appellants as the ocular testimony of P.Ws.1 to 4 is not corroborated by the medical evidence, even the wound certificates Exs.P6 to P9 of P.Ws.1 and 2 cannot be taken into consideration, as the Doctor who issued the wound certificates, was not examined by the prosecution and those wound certificates were marked through the Investigating Officer, as such the wound certificates are not legally proved, consequently the conviction for the offence U/s.324 r/w.34 IPC is liable to be set aside. The trial Court ought to have acquitted the appellants as no specific overt acts were attributed against the accused even the alleged overt acts attributed against A4, she beat PW.3 with a stick, is unnatural, as she is aged about 75 years and she is suffering with old age ailments. The examination of appellants

U/s.239 and 313 Cr.P.C. are caused great prejudice to the appellants. The trial Court ought to have acquitted the appellants, as the prosecution failed to produce the alleged 7 weapon, even the prosecution failed to elicit the injuries on the persons of P.Ws.1 to 4 could be caused with the alleged weapon.

The quantum of sentence and fine awarded by the trial Court is highly excessive and harsh, hence it is prayed to acquit the

Appellants/Accused Nos.1 to 4 by setting aside the judgment of conviction and sentence dt.23.8.2018 passed in C.C.No.71/2016 by the Judicial Magistrate of First Class, Tiruvuru.

7.As seen from the judgment of the trial Court, the trial Court convicted Accused Nos.1 to 4 for the offences under Sec.324 r/w.34 IPC and Sec.509 r/w.34 IPC. An application in

Crl.M.P.No.638/2022 under Sec.320(5) Cr.P.C. is filed by the

appellants/accused and victims and they also filed an application under Sec.320(8) Cr.P.C. in Crl.M.P.No.639/2022. As seen from theorderspassedinCrl.M.P.No.638/2022and

Crl.M.P.No.639/2022 P.Ws.1 to 4 and all the appellants present

and they submitted before the Court that they compromised the matter and requested the court to permit to compound the offence and acquit the accused persons. This Court has not permitted to compound the offence under Sec.324 r/w.34 IPC, but permitted to compound the offence under Sec.509 r/w.34 IPC and A1 to A4 are acquitted for the offence under Sec.509 r/w.34

IPC and ordered for return of the fine amount.

8. Heard arguments of the learned counsel for the Appellants and Addl.PP and perused the evidence on record.

9.Now, the points for determination are:

(i) Whether prosecution is able to prove guilty of

Appellants/Accused Nos.1 to 4 for the offence punishable

U/Sec.324 r/w.34 IPC beyond all reasonable doubt?

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(ii) Whether there are any valid grounds to interfere with the conviction and sentence passed by the learned JMFC, Tiruvuru in

C.C.No.71/2016 dt.23.8.2018 against Appellants/Accused Nos.1 to 4?

iii) To what relief?

POINT Nos.1 &2:

10. As already observed it can be seen from the record that

P.Ws.1 to 4 and the appellants/A1 to A4 were present before the court on 5.7.2022 and requested the court to permit to compound the offences. Thus, it is clear that both parties entered into the compromise, but this Court is not inclined to grant permission to compound the offence as the offence under

Sec.324 r/w.34 IPC is not compoundable.

11. From the reading of the evidence adduced on behalf of the prosecution, it can be seen that it is not in dispute PW.1/K. Baby

Kumari is the wife of PW.2/Prasad. PW.3/K.Jeevana Prasanthi and

PW.4/K. Ratna Deepika are the children of P.Ws.1 and 2. The accused persons are also related to P.Ws.1 to 4. According to the evidence of PW.1 on 27.12.2015 at about 4.00 p.m. while PW.2 was erecting fencing to their house A1 to A3 came and altercated with her husband and the neighbours came and pacified the matter. PW.1 also further deposed while her husband was cleaning the area A1 to A3 brought sticks and beat her husband on his back and they also beat with stick on her head and on her right shoulder and dragged her on the floor. Meanwhile her neighbours came and separated them and Ex.P1 is her statement given to the police. From the reading of the evidence of PW.1, it is clear that she has not attributed any overt acts 9 against A4 and she has also not stated about the participation of

A4 in the commission of offence.

12. Coming to the evidence of PW.2, he stated in his evidence that on 27.12.2015 at 4.00 p.m. while he was erecting fencing,

A1 to A4 came and had an altercation with him and A bet him and his wife with a stick on his back and on the head of his wife and his wife fell down and meanwhile their children came there and accused ran away. The reading of the evidence of PW.2 in chief examination itself shows that A2 to A4 had not assaulted either PW.1 or PW.2. However, he deposed about the presence of A4 at the time of alleged commission of offence. Thus, even if the evidence of PW.1 is taken into consideration is true, the evidence of P.Ws.1 and 2 is not consistent with regard to participation of A4 in the commission of offence and also the evidence of PW.1 is not supported by her husband with regard to the alleged assault caused on P.Ws.1 and 2 by the remaining accused i.e. A2 to A4.

13. Coming to the evidence of PW.3, she stated in her evidence that on hearing quarrel, she and her sister/PW.4 came out of their house and saw the quarrel and A1 to A3 beat her father/PW.2 with stick on his back and also beat her mother/PW.1 who went to rescue her father. As already observed PW.2 has not supported the case of the prosecution with regard to the alleged assault made by A2 to A4.

14. Coming to the evidence of PW.4, it is also in the similar lines of the evidence of PW.3 who deposed that A1 to A3 beat her father/PW.2 with stick on his back and also beat her mother/PW.1 and A1 beat her mother with a stick on her head and A4 also 10 came and beat her sister/PW.3 with a stick on her right shoulder.

The said evidence of PW.4 with regard to the alleged assault made by A4 is not supported by the evidence of P.Ws.1 to 3.

15. From the reading of the evidence of P.Ws.1 to 4, it is crystal clear that an effort was made to implicate A4 who is aged about 75 years as on the date of commission of offence though her presence was not spoken by PW.1 in her evidence. Even if it is assumed that the evidence of P.Ws.1 and 2 is accepted, it can be seen that according to them the accused persons assaulted with sticks. P.Ws.1 to 3 have not deposed in their evidence about the nature, measurements and dimensions of the sticks. There is no material collected regarding the said sticks said to be used in the commission of the offence. In the absence of such evidence it is difficult to come to a conclusion that the accused persons used deadly weapons in the commission of offence. As such it can be hold that even if the case of the prosecution is accepted in toto the prosecution failed to establish that the accused persons used deadly weapons in the commission of offence and in such a case the conviction under Sec.324 r/w.34 IPC is not sustainable and at best they can be convicted for the offence under Sec.323 r/w.34

IPC. As already observed, it is clear from the record that both the parties compromised the matter and filed applications before the Court and this Court has not permitted to compound the offence as the trial Court convicted the accused persons for the offence under Sec.324 r/w.34 IPC.

16. The prosecution examined PW.5/Agneswaramma and

PW.6/B.Sarasamma by showing them as material witnesses to prove the commission of offence. They have not supported the 11 case of the prosecution by deposing that they do not know anything about the case and police never examined them.

During the cross examination held by Asst.PP, P.Ws.5 and 6 denied the suggestion that they stated before police as in Exs.P2 and P3/Sec.161 Cr.P.C. statements respectively. Thus, the evidence of P.Ws.1 to 4 is also not supported by the evidence of

P.Ws.5 and 6 who were shown to be material witnesses.

17. According to the evidence of PW.1, she gave Ex.P1 statement on the date of offence itself while she was getting treatment in the hospital. PW.7/S.Parameshwar, who worked as

SI of Police stated in his evidence that he received hospital intimation on 17.1.2016 at 12.00 a.m. and registered the same as case in Cr.No.13/2016 under Sec.324 and 509 r/w.34 IPC and he sent Ex.P4/FIR to the Court and he visited the scene of offence and prepared rough sketch/Ex.P5. From the said evidence of PW.7, it is clear that though the incident in question occurred on 27.12.2015 at 4.00 p.m. the information received at police station only on 17.1.2016 at 12.00 hours. Thus, there is a delay of 20 days in receiving the statement by the concerned police. The prosecution has not explained the delay as to why the delay occurred in forwarding the statement of injured to the police station. As it happened to be medico legal case, this Court is of view that the concerned should have taken care to see that the statement is reached to the concerned police station forthwith to see that there would be no delay in conducting the investigation. Thus only 20 days after the alleged offence the

Investigating Officer has taken up investigation. In such a case it is expected to produce evidence before the court by examining 12 the witness by the Investigating Officer explaining the delay and the reasons causing the delay. But for the reasons known to the

Investigating Officer such steps have not been taken. Even it is assumed that the said delay is occurred due to postal delay, the

Investigating Officer is supposed to keep the postal cover and produce the same before the Court to explain that the delay occurred in receiving the statement through post.

18. Furthermore, it is the case of the accused persons due to difference between A1 to A4 and P.Ws.1 and 2 this case is foisted. The cross examination of P.Ws.1 and 2 is made to establish such differences. In this regard, PW.1 stated that she is working as Asha Worker and A2 is her brother-in-law and her husband erected the pole and the pole was destroyed by the cattle. It is also suggested that due to her negligence one kid died and the District Collector and RDO came to their village and enquired about the health condition of the children and she foisted a false case against the accused as she deposed against her before the Collector. In this regard, PW.2 stated in his cross examination that he does not know whether accused gave complaint to the Collector against them and his wife abused the accused. The evidence of P.Ws.1 and 2 shows that they are residing together and in such case he is supposed to know whether the accused gave complaint to the Collector or not against them. Thus, it is clear that he is not inclined to give true facts before the Court regarding their disputes.

19. The evidence of PW.1 shows that the distance between her house and police station is 6 K.Ms. and she was shifted to hospital by her husband and police. When the police station is 13 situated at a distance of 7 K.Ms. as per Ex.P4 FIR, the delay of 20 days in receiving the information to the police creates a doubt about the genesis of the case of the prosecution. On the other hand, the wound certificates of P.Ws.1 to 4 are marked through the Investigating Officer. It is not born out from the record as to why the medical officer was not examined in this case. Due to non examination of the medical officer the accused have lost their valuable right to cross examine the medical officer on material aspects to elicit as to the nature of injuries and the age of the injuries and the nature of the weapons which could came such injuries. As seen from the record, the medical officer is given up by the Asst.PP. No reasons assigned for giving up the medical officer. In the light of the observations made this court is of view that the non examination of the Medical Officer is also one of the circumstances to be taken against the prosecution.

20. On the other hand the evidence of P.Ws.1 to 4 is not consistent with the injuries shown in the wound certificates.

PW.1 stated in her evidence that she sustained injury on her head and right shoulder, whereas in Ex.P1 she stated that she sustained swelling beside the right eye. Such injury is not noticed by the medical officer who examined PW.1 on the same day of incident. Certainly if the evidence of PW.1 is true with regard to sustaining said injury the medical officer could have noted the said injury. Ex.P6 wound certificate also does not show that she sustained injury on her head as narrated in Ex.P1 and as deposed by her in the Court. According to the evidence of PW.2,

A1 beat him with a stick on his back. According to the evidence of PW.3, A4 beat her with a stick. As already observed in the 14 preceding paras the presence of A4 is not spoken by PW.1 and

PW.2 has also not attributed any overt act against A4. Coming to the evidence of PW.4, she deposed that A4 beat her on right hand. As already observed the presence and participation of A4 in the commission of offence is not established through the evidence of P.Ws.1 and 2. Thus, the attributions mad against A1 to A4 are not established by the evidence of P.Ws.1 to 4.

21. The evidence of P.Ws.1 to 4 is not inspiring confidence and the overt acts attributed against accused are not proved after careful scrutiny of the evidence on record as discussed above, this court is of opinion that the evidence adduced on behalf of the prosecution does not appear to be trustworthy and reliable and this court could not satisfy that the prosecution has proved its case beyond all reasonable doubt. The reading of evidence of

P.Ws.1 to 4 shows that without proper appreciation of the evidence, the trial Court has chosen to convict the accused persons.

22.Upon re-appreciation of the material on record and reading of the Judgment of Trial Court, this Court finds that the trial Court failed to appreciate the evidence on record properly and it has not followed the well settled principle of law and so this Court is inclined to take a different view of evidence than taken by the trial Court and the reading of the evidence on record suggests that the trial Court has not given correct reasoning.

23.It is now well settled that when two views are possible on appreciation of evidence, one favour of the accused needs to be followed because the presumption is in favour of the innocence 15 of the accused, because the prosecution must stand on its own legs.

24.After careful scrutiny of the evidence on record as discussed above, this Court is not satisfied that the prosecution has proved its case beyond all reasonable doubt. This Court is left with suspicion that the case put forward by the prosecution may not be true, in any event the accused is entitled to the benefit of doubt.

25.For the reasons stated above, this Court is of considered view that the finding of the Trial Court convicting the accused is not based on the evidence on record and as such this

Court is of view that the Judgment of the Trial Court warrants interference from this Court.

26.Upon considering the relevant material on record, I find that it is a fit case to extent the benefit of doubt to the accused. In view of my foregoing discussion, I answered this point in favour of accused and against the prosecution.

27.In the said facts of the case, this Court is of opinion that the Trial Court came to a wrong conclusion in convicting the accused for the aforesaid reasons. The reasons assigned by the

Trial Court with regard to conviction of the accused is not found to be tenable and in the circumstances, the conviction of the accused cannot be sustained. Hence, the appellants/A1 to A4 are found not guilty for the offence punishable under Section 324 r/w.34 of IPC. Accordingly the points are answered against the prosecution.

POINT NO.3:- 16

28.In the result, the Criminal Appeal is allowed and the conviction and sentence awarded against the appellants/accused

Nos.1 to 4 in C.C.No.71/2016 dated 23.08.2018 by the learned

Judicial Magistrate of First Class, Tiruvuru for the offence

punishable under Section 324 r/w.34 IPC is hereby set aside and the appellants/accused Nos.1 to 4 are found not guilty for the offence punishable under Section 324 r/w.34 of IPC and they are acquitted as per the provisions under Section 248(1) of Cr.P.C for the said offence. The fine amount, if any, paid by the appellants/Accused Nos.1 to 4 shall be returned to them after expiry of appeal time. The Appellants/A1 to A4 are already acquitted for the offence U/s.509 r/w.34 IPC U/s.320(8) of Cr.P.C.

as per Crl.M.P.No.639/2022 on 5.7.2022 and the fine amount, if any, paid by the appellants/A1 to A4 for the offence under

Sec.509 r/w.34 IPC shall be returned to them after expiry of appeal time.

Partly typed to my dictation directly by the Stenographer, partly dictated to him and transcribed by him, corrected and

pronounced by me, on this the 15th day of July, 2022.

XV ADDL. DISTRICT & SESSIONS JUDGE,

KRISHNA DISTRICT AT NUZVID.

Copy to: The Judicial Magistrate of I Class, Tiruvuru.

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IN THE COURT OF THE XV ADDITIONAL DISTRICT

JUDGE; KRISHNA DISTRICT; NUZVID

PRESENT : Sri T. MALLIKARJUNA RAO,

XV ADDITIONAL DISTRICT JUDGE, NUZVID.

Wednesday on this the 20th day of July, 2022.

A.S.NO.82/2016 .

Between:-

Veeranki Kondamma, W/o.Venkateswara Rao, aged about 50 years, Hindu, R/o.D.No.1-03, Ravicharla Post, Nuzvid Mandal, Krishna District.

... Appellant/Plaintiff.

And

Musunuru Gopala Rao, S/o.Koteswara Rao, Hindu, aged about 61 years, R/o.D.No.1/120, Agiripalli Village & Mandal, Krishna District.

... Respondent/Defendant.

O.S.NO.47 OF 2010.

Between:-

Veeranki Kondamma. ... Plaintiff

And

Musunuru Gopala Rao. ... Defendant.

The appeal suit is coming up before me on 5.7.2022 for final hearing in the presence of Sarvasri J.D.Gandhi and V.Lakshminarayana, Counsel for Appellant and of Sri B. Chandrasekhara Rao, Counsel for Respondent, and upon perusing the material papers on record and upon hearing both sides, and having stood over for consideration till this day the Court made the following:-

J U D G M E N T

This appeal suit is preferred against the Judgment and

Decree Dt.18.11.2016 passed in O.S.No.47/2010 by the Prl. Junior

Civil Judge, Tiruvuru. The Appellant herein is plaintiff and

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respondent herein is Defendant in the original suit for permanent injunction and the parties hereinafter are referred to as they arrayed before the trial Court for sake of better understanding.

2. Brief averments of the plaint are as follows:

The plaintiff purchased the plaint schedule properties

Ac.8.15 cents under three Regd. Sale Deeds vide

Doc.Nos.354/2010, 494/2010 and 559/2010 of SRO,

Vissannapeta from the divided brothers of defendant viz.

Musunuru Venkata Butchaiah @ Butchi Babu and his children and

Musunuru Sobhanachalapathi Rao and his children. The private pathway on the north-west corner of the plaint schedule property is for the exclusive use of the plaintiff for ingress and egress into the plaint schedule properties from Kondaparva Village Donka

Road. Originally the plaint schedule property is a part was jointly purchased by defendant, himself and his mother/Musunuru

Venkata Ratnamma, her brothers viz. Musunuru Butchaiah and

Musunuru Sobhanachalapathi Rao under a Regd. Sale Deed vide

Doc.No.582/1966 of SRO, Nuzvid. Thereafter, Musunuru Venkata

Ratnamma during her life time executed a Will dt.8.9.1975 bequathed her share in the above mentioned joint property to her three sons with equal rights. Subsequently Musunuru

Venkata Ratnamma died on 10.10.1975 and after her death the said Will was came to force and Musunuru Gopala Rao, Musunuru

Butchaiah and Musunuru Sobhanachalapathi Rao became joint and absolute owners of entire property and enjoyed the property with their father Musunuru Koteswara Rao. Subsequently

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Musunuru Koteswara Rao and his son viz. Gopala Rao (defendant), Butchaiah and Sobhanachalapathi Rao have orally partitioned their joint family properties and executed a partition list on 9.8.1984. As per the said partition list, Item Nos.1 and 2 fell to the share of Musunuru Butchaiah; Item No.17 in C- schedule of partition list and Item No.3 of plaint schedule property fell to the share of Musunuru Sobhanachalapathi Rao as

Item No.14 in D-schedule of partition list. Subsequently the plaintiff purchased the said properties from Musunuru Butchaiah and Musunuru Sobhanachalapathi Rao and their children and since then, the plaintiff has been in continuous possession and enjoyment of the same. The plaintiff erected iron wire fencing to the southern boundary in the schedule property. On 13.3.2010 the defendant came with his henchmen to plaint schedule property and made illegal attempts to remove the iron wire fencing on southern boundary and tried to encroach the schedule property with the help of their men, hence the plaintiff is constrained to file the suit for permanent injunction and for costs.

3.The defendant after his appearance filed his written statement by denying the material allegations made in the plaint including cause of action in the plaint, except those that are specially admitted herein by defendant. It is true the plaintiff purchased the plaint schedule property from the joint family members of defendant. It is further submitted that the defendant and his brothers viz. Musunuru Butchibabu and

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Musunuru Sobhanachalapathi Rao and their father partitioned their joint family properties as per the partition list dt.9.8.1984 and they are in possession and enjoyment as per the partition deed. As per the partition list, the defendant has got Ac.5.00 cents of mango garden in R.S.No.109 and Ac.1.67 cents of mango garden in R.S.No.472/3 of Kondaparva village of

Vissannapeta Mandal and he is in possession and enjoyment of the properties since 1984 along with other properties, which are fell to his share and his brother also got equal share in the above said properties of Kondaparva village.

It is further submitted that in R.S.No.109, first item of plaint schedule property is the joint passage of defendant and plaintiff’s vendors is present on north-west corner with length of 150 yards and width of 6 yards. Since 1984 the defendant is using the joint passage for ingress and egress of men, tractors, lorries and cattle to the lands of defendant situated on southern side of Item No.1 of plaint schedule land and from where he entering into other hand of Ac.1.67 cents situated in

R.S.No.472/3 of Kondaparva prior to that defendant’s joint family used the said joint passage. The mango trees are aged about 45 years in R.S.Nos.109 and 472/3 and the said trees are planted by the father of defendant. The said passage was kept vacant without planting mango trees. The plaintiff and her vendors has got equal rights to use as joint passage along with the defendant as per the partition deed dt.9.8.1984 and the parties has got right to enter from one share to another share through the

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passage. It is further submitted that the plaintiff filed this suit with false allegations and prevent the defendant for using the joint passage situated on north-west corner in Item No.1 of plaint schedule land and there is no cause of action to file the suit and prays to dismiss the suit with costs.

4.Based on the pleadings of both sides, the trial court settled the following issues for trial:-

i) Whether the plaintiff is entitled for permanent injunction in respect of suit schedule property as prayed for, against the defendant?

ii) To what relief?

5. During course of trial, the plaintiff got examined herself as PW.1 and got marked Exs.A1 to A4 on her behalf. On the other hand, D.Ws.1 and 2 were examined and got marked Exs.B1 to 17 on behalf of defendant.

6.After evaluating both oral and documentary evidence on record, the learned Prl. Junior Civil Judge, Tiruvuru dismissed the suit without costs.

7.Aggrieved by the said Judgment and Decree, the

Appellant/Plaintiff preferred the present appeal on the following grounds:

That the Judgment and Decree of the trail Court is contrary to law, weight of evidence and probabilities of the case. The trial

Court has not properly appreciated the oral and documentary evidence on record and consequently the entire judgment is vitiated with illegalities on fact and law. The trial Court has not

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given cogent reasons, much less valid reasons for dismissing the suit. The trial Court failed to appreciate the evidence of PW.1 coupled with Exs.A1 to A4 and failed to consider the facts of the case. The trial Court has simply reiterated the facts as stated in the plaint and written statement and depositions in its judgment, without any comments or reasonable discussion about the same.

There are no valid reasons in the judgment to dismiss the suit, except stating that plaintiff is not entitled for decree, hence it is prayed to allow the appeal by setting aside the judgment and decree dt.18.11.2016 passed in O.S.No.47/2017 by the Prl. Junior

Civil Judge, Tiruvuru.

8.Heard the learned counsel for Appellant/Plaintiff and

Respondent/Defendant and perused the material on record.

9. Now the points for consideration are:

i) Whether there are any valid grounds to interfere with the

Judgment and Decree Dt.18.11.2016 in O.S.No.47/2010 on the file of the Prl. Junior Civil Judge, Tiruvuru?

ii) To what relief?

POINT No.1:

10.As seen from the material on record, the following facts either undisputed or admitted.

Originally the schedule property is a part was jointly purchased by the defendant himself and his mother Musunuru

Venkataratnamma and his brothers Musunuru Venkata Butchaiah @ Butchi Babu and Musunuru Sobhanachalapathi Rao under registered sale deed bearing Doc.No.582/1966 before SRO,

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Nuzvid. The said document is marked as Ex.A4. Smt.Musunuru

Venkataratnamma during her lifetime executed a Will dt.8.9.1975 bequeathing her share in the above mentioned joint property to her three sons with equal rights and subsequently the said

Musunuru Venkataratnamma died on 10.10.1975. Though it can be seen from the record that the parties to the proceedings have not chosen to dispute the said document. However, they have not taken steps to get mark the said document. It is also not in dispute that by virtue of the said Will executed by Musunuru

Venkataratnamma, Musunuru Gopala Rao, Musunuru Butchi

Babu, Musunuru Sobhanachalapathi Rao are became joint and absolute owners of entire property. It is also evident from the record that Musunuru Koteswara Rao and his sons, Musunuru

Gopala Rao, the defendant, Musunuru Butchi Babu, Musunuru

Sobhanachalapathi Rao orally partitioned their joint family properties and executed a partition list on 9.8.1984. It is also evident from the record that the defendant and his brothers

Musunuru Butchi Babu, Musunuru Sobhanachalapathi Rao and their father partitioned their joint family properties.

11.In this regard, the plaintiff, who examined as pW.1 stated in her cross examination that there are three items in the plaint schedule property. She further deposed that the first item is an extent of Ac.5-09 cents. She denied the suggestion that her vendor got right of an extent of Ac.5.00 cents but not Ac.5.09 cents. She also admitted that the defendant got land towards south of the plaint schedule property and towards further south

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of the land of defendant his brother Sobhanachalapathi Rao got his land and the Item Nos.2 and 3 of plaint schedule properties are situated towards east of the plaint schedule property. The plaintiff has relied on Exs.A1 to A3 documents to show that she purchased the plaint schedule properties from her vendor. As rightly observed by the trial Court the defendant has not disputed the purchase of the property covered under Exs.A1 to

A3 by the plaintiff. The defendant also placed Ex.B1 pattadar pass book and Ex.B2 letter issued by the Tahsildar and Exs.B3 to

B16 are the No.3 Adangals and Ex.B17 certificate issued by the

Manager, Andhra Bank. The trial Court has rightly observed in its judgment that none of the parties disputing the documents placed by them and existence of the land on ground. The dispute is only with regard to extent of Ac.0-09 cents of land which is situated in Item No.1 of the property and towards west of Item No.1 of plaint schedule property.

12. As seen from the record, it is the contest of the defendant that it is a joint passage and it is an extent of Ac.0-09 cents and plaintiff’s vendor has no right to execute sale deed for an extent of Ac.5-09 cents of land as he got right only to an extent of Ac.5- 00 cents. The reading of the evidence adduced on behalf of both sides shows that the main dispute between the parties is that the said passage which is situated towards west of Item

No.1 of the property is a joint passage or exclusive passage of the plaintiff. As already observed in the preceding paras and also according to the admission of PW.1 in cross examination and

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the documents filed by both parties show that the land of defendant in R.S.No.109 of an extent of Ac.5-00 cents is situated towards south of Item No.1 of the plaint schedule property. It is the contention of the defendant that the passage in dispute is the passage intended to proceed to his land.

13. A careful reading of the judgment of trial Court shows that it is mainly relied on the contents of the partition deed dt.9.8.1984. It is no longer in dispute that the plaintiff’s vendor and his brothers partitioned the properties by virtue of partition list dt.9.8.1984. For the reasons best known to both parties they have not got marked the said partition deed in support of their case. However the copy of the partition deed is made available in the record. The trial Court referred the contents of the partition deed and observed that the language of the above partition deed itself obvious that defendant and his brothers has to go to their respective shares of the land through the land of another brother and for their convenience they kept the joint passage towards north-west side of item No.1 of the plaint schedule property. The trial court also observed in its judgment that in R.S.No.109 the vendor of the plaintiff’s share was fallen to an extent of Ac.5.00 cents only but not Ac.5.09 cents. Basing on the recitals in the partition deed the trial Court observed that the plaintiff’s vendor got only Ac.5-00 cents of land but not Ac.5.09 cents of land. This court is of view that when the parties to the proceedings have not chosen to get marked the partition deed the trial Court is not supposed to have placed reliance on the

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contents of the partition deed. The reading of the judgment does not show that whether parties to the proceedings initiated any steps for production of the partition deed or as to why they failed to take steps to produce the said document in the Court. In view of the same this court is of view that the matter is supposed to be disposed of by the trial court without referring to the contents of the partition list, though it is admitted by both parties only for the reason that it is not marked.

14. As the plaintiff approached the court by filing a suit for permanent injunction, the burden lies on such party to adduce satisfactory evidence to prove her title and possession. She has to succeed only on the strength of her case but not on the weakness of the case set up by the defendant. Since it is the case of the plaintiff that she purchased an extent of Ac.5.09 cents of property from her vendor and when the defendant contends that her vendor, who is no other the brother of the defendant got only an extent of Ac.5.00 cents the burden is on the plaintiff to establish her vendor’s right by examining her vendor or producing the title deeds under which her vendor got right over the property. There is nothing on the record to suggest that the plaintiff has taken any steps in the trial Court to get production of the link document or partition deed of her vendor to establish the right of her vendor to an extent of

Ac.5.09 cents. The plaintiff has filed the suit for an extent of

Ac.8.15 cents showing in three items, as seen from the contention of the defendant that there is dispute with regard to

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an extent of Ac.0.09 cents in Item No.1 of the property. It is not the case of the plaintiff that the defendant interfered that her rights over the property covered under Exs.A1 to A3 documents except claiming joint passage right over Ac.0.09 cents of property which is situated towards west of Item No.1 of the property. In such a case no explanation is forth coming why she had filed the suit for entire extent of the property under Exs.A1 to A3 documents instead of filing the suit only in respect of

Ac.0.09 cents which is situated towards west of item No. of the schedule property. As already observed as per the recitals of the judgment of the trial Court in the partition list there is a clear recital that the plaintiff’s vendor got only Ac.5.09 cents. Thus it can be inferred that the marking of the said document does not in any way cause prejudice to the case of the defendant and further it supports and strengthens the case of the defendant.

15. On the other hand as already observed the burden is on the plaintiff to place all material documents before the Court. The plaintiff has not offered any reason for her failure to produce the said document. This Court is of view that if a party who is expected to produce the best evidence which would throw light in controversy the Court can draw an adverse inference against the party. This court is also of view that when the plaintiff claims that the said Ac.0.09 cents of property is her exclusive passage and whereas the defendant claims that it is a joint passage, as the plaintiff filed the suit his court is of view that the plaintiff has to place documents in support of her case. It is not in dispute

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that the plaintiff’s vendor and defendant and their brothers partitioned the properties. The own admission of PW.1 goes to show that the defendant has got landed property towards southern side of item No.1 of the schedule property. It is the case of the defendant that he has to proceed through the joint passage which is situated towards west of the schedule property.

In such a case the plaintiff has to establish by producing documentary evidence to show that the defendant has no right to pass through the passage as claimed by him. Certainly if the defendant is excluded to proceed through the passage in dispute, certainly it could be expected a recital in the partition deed to that effect. This Court is of view that an easement is only necessary for enjoyment of the property got in partition as was being enjoyed when partition took effect, then such an easement should be apparent and continuous. Except placing of

Exs.A1 to A3 documents, the plaintiff has not adduced any documentary evidence to show the right of the plaintiff’s vendor nor adduce oral evidence.

16. On the other hand, the defendant who examined as DW.1 has categorically stated in his evidence that as per the partition list dt.9.8.184 an extent of Ac.5.00 cents of mango garden in

R.S.No.109 and an extent of Ac.1.67 cents of mango garden in

R.S.No.472/3 was allotted to his share and the said case of DW.1 is also not disputed by the plaintiff. He also further deposed in his evidence that the vendor of the plaintiff has no right to sell the extent of Ac.5.09 cents out of total extent of Ac.15.00 cents

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in R.S.No.109. The vendor of the plaintiff is no other than the brother of the defendant. He also deposed that the partition list dt.9.8.1984 discloses that at the end of schedules the parties have got right to enter from one share to another through the passage in existence and he is using the joint passage entered from Kondaparva Donka on north-west corner of Item No.1 of plaint schedule property and it continued on the west of Item

No.1 of the plaint schedule land for ingress and egress of men, tractors, lorries and cattle into the land of the defendant. It is also the evidence of DW.1 that after obtaining the injunction orders plaintiff prevented him to enter into the joint passage to reach his lands situated in R.S.No.109 and R.S.No.472/3 and he got easement rights in the joint passage along with the plaintiff and her vendors. The plaintiff for the reasons best known to her, she has not at all chosen to cross examine the witness and the evidence of DW.1 is remained unchallenged.

17. The defendant also got examined DW.2 who also deposed in the same lies of the evidence of DW.1. The plaintiff has also not chosen to cross examine the witness. Thus, the evidence of

D.Ws.1 and 2 remains unchallenged that the said passage which is situated on the western side of plaint schedule property is joint passage. The defendant has taken a specific stand that himself and his brothers Butchi Babu, who is vendor of plaintiff and

Sochanachalapathi Rao holds possession and enjoyment of the land covered in R.S.No.109 is Ac.4.77 cents, Ac.4.76 cents and

Ac.4.76 cents respectively only, though mentioned Ac.5.00 cents

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each in R.S.No.109 in the partition list and it came to light in fact the total extent covered in R.S.No.109 is only Ac.14.29 cents and the extent covered in R.S.No.109 is Ac.15.00 cents is not correct.

So the vendor of the plaintiff has no right to execute registered sale deed in respect of Ac.5.09 cents and as per the village accounts the vendor by name Musunuru Butchi Babu holds possession and enjoyment over an extent of Ac.4.76 cents land in R.S.No.109 only. The said evidence of DW.1 is supported by

Exs.B3 to B.16 village accounts number. The said documents filed by the defendant go to show that even though the defendant admitted that the plaintiff’s vendor got Ac.5.00 cents of land but the said documents go to show that he has got only

Ac.4.76 cents land. Thus the revenue records placed by the defendant also clearly establishes that the plaintiff’s vendor has no right over Ac.5.09 cents as claimed by the plaintiff. But, however the defendant admits that the plaintiff’s vendor had been in possession of Ac.5.00 cents and the defendant has also not disputed the possession and enjoyment of Ac.5.00 cents of land of her vendor. Thus the plaintiff has not placed any evidence before the court to show that the passage which is situated towards west of her Ac.5.00 cents of land is her exclusive passage and for the reasons best known to her she has not disputed the version of D.Ws.1 and 2 goes to show that the said Ac.0.09 cents of passage is not being used as exclusive passage of the plaintiff and this court has no reason to doubt the veracity of D.Ws.1 and 2 which is undisputed by the plaintiff. As

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seen from the record the dispute is only with regard to the said passage and the plaintiff has not placed any oral or documentary evidence to establish her case and this court is of opinion that the trial Court has come to a right conclusion by holding that the plaintiff is not entitled to claim that the said passage is her exclusive passage.

18. Upon appreciation of the evidence on regard, this court is of view that the trial court has come to a correct conclusion and the appellant is miserably failed to establish her case pleaded in the plaint and this point is answered in favour of defendant and against the plaintiff.

POINT NO.2:

19.Having thus analyzed the oral and documentary evidence, this Court finds that the view taken by the learned trial court does not call for any inference and the findings and observations of the trial Court are in accordance with the evidence on record and there are no grounds to interfere with the findings of the trial court and this appeal therefore fails and it is hereby dismissed and the impugned judgment passed by the trial court is uphold.

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20. In the result, this appeal suit is dismissed without costs by confirming the Judgment and Decree dt.18.11.2016 passed in

O.S.No.47/2010 on the file of Prl. Junior Civil Judge, Tiruvuru.

Partly typed to my dictation by the Stenographer, and partly dictated to him, transcribed by him and corrected and

pronounced by me in the open Court on this the 20th day of July,

2022.

XV ADDL. DISTRICT JUDGE,

KRISHNA DISTRICT AT NUZVID.

Copy to:

The Prl. Junior Civil Judge, Tiruvuru.

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IN THE COURT OF THE XV ADDITIONAL DISTRICT

JUDGE :: KRISHNA DISTRICT AT NUZVID

PRESENT : Sri T. MALLIKARJUNA RAO,

XV ADDITIONAL DISTRICT JUDGE, NUZVID.

Thursday on this the 28th day of July, 2022.

A.S.NO.68/2016 .

Between:-

Nekkalapu Surya Chandra Rao @ Suri Chandra Rao @ Suri Babu, S/o.Late Subbaiah, Hindu, aged 60 years, Cultivation, R/o.1st Ward, Kammaturu Bazar, Vissannapeta Village & Mandal, Krishna District.

... Appellant/Defendant.

And

Maridi Krishna Rao, S/o.Subba Rao, Hindu, aged 48 years, Agriculture and Business, R/o.1st Ward, Kammaturu Bazaar, Vissannapeta Village & Mandal, Krishna District.

... Respondent/Plaintiff.

O.S.NO.147 OF 2011.

Between:-

Maridi Krishna Rao. ... Plaintiff

And

Nekkalapu Surya Chandra Rao. ... Defendant.

The appeal suit is coming up before me on 19.7.2022 for final hearing in the presence of Sri M. Ramesh, Counsel for Appellant and of Sri N. Madhava Rao, Counsel for Respondent, and upon perusing the material papers on record and upon hearing both sides, and having stood over for consideration till this day the Court made the following:-

J U D G M E N T

This appeal suit is preferred against the Judgment and

Decree Dt.15.9.2016 passed in O.S.No.147/2011 by the Prl. Junior

2

Civil Judge, Tiruvuru. The Appellant herein is defendant and

respondent herein is plaintiff in the original suit for permanent injunction and the parties hereinafter are referred to as they arrayed before the trial Court for sake of better understanding.

2. Brief averments of the plaint are as follows:

The plaintiff is the absolute owner of plaint A, B and C schedule property and he acquired the same under a Regd. Gift

Deed dt.25.1.2006 from his maternal grandmother

Smt.NekkalapuSavitri,W/o.ate.Subbaiahbearing

Doc.No.204/2006 of SRO, Tiruvuru and since the date of gift, the plaintiff has been in possession and enjoyment of the same. On south of plaint A-schedule property, plaint C-schedule 12 feet width of joint passage is situated and the same is shown in plaint plan. On west of plaint A-schedule property, plaint B-schedule property is situated and he constructed toilets in plaint B- schedule property and throwing dung heap in the said site. It is further submitted that the plaintiff, his men, carts and tractors have been passing to the plaint B-schedule from the plaint C- schedule joint passage from the road situated on East of plaint A and C-schedule properties. The plaintiff has joint right in the plaint C-schedule joint passage along with defendant. It is further submitted that on the south of plaint C-schedule joint passage, the defendant has his house and house site and he has got only joint right to use the plaint C-schedule property as passage and the defendant has no absolute right and he is making hectic efforts to merge the plaint C-schedule property in

3

his house site since April, 2011. On 1.8.2011 the defendant and his men made attempts to close the plaint C-schedule passage, and defendant and his men threaten the plaintiff that he would not allow him to enjoy the plaint C-schedule property, hence the plaintiff is constrained to file the suit for permanent injunction and for costs.

3.The defendant after his appearance filed his written statement by denying the material allegations made in the plaint and submitted that the house and site which is shown as plaint

A-schedule property is belonged to joint family and the same was allotted to the share of his father in oral partition taken place, prior to the year 1985 and his younger brother Ranga Rao used to live with his parents in A-schedule property and the father of the defendant died in or about the year 2002. Even after the death of his father, his family continued in living A-schedule property along with his mother. It is further submitted that in the year 2005, the plaintiff joined in the house of father of this defendant i.e. A-schedule, along with his family that the mother of the defendant viz. Savithri, who is maternal grandmother of plaintiff is alone residing in the said house in her old age and continuing in the said house. While it was so, the mother of the defendant died in the year 2009. After the death of Savithri, the defendant asked the plaintiff to vacate the A-schedule house as it has to be partitioned among his brothers and sisters, but the plaintiff sought time that he is going to purchase the house. It is further submitted that the plaintiff with a malafide intention

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entered into A-schedule property in collusion with the brothers of the defendant and created a false Regd.Gift Deed by forging the signature of the defendant and claiming that the mother of the defendant gifted the property to the plaintiff. The gift deed have to be executed by mother of the defendant is null and void and not binding the defendant, as the mother of defendant has no absolute right over the said property. The C-schedule property and its western portion up to the property of Nadella

Vnekateswara Rao about parallel to C-schedule described in the rough plan is allotted to the defendant along with northern portion in the joint tiled house in oral partition prior to the year 1985. As such the entire C-schedule and its parallel western vacant site including lavatory and bath room are absolute properties of the defendant and the plaintiff has no right over the

C-schedule property. The plaintiff filed the suit with false, fabricated and forged documents and there is no cause of action for the suit and prays to dismiss the suit with exemplary costs.

4.Based on the pleadings of both sides, the trial court settled the following issues for trial:-

i) Whether the plaintiff is in possession and enjoyment of suit schedule property as on the date of filing suit?

ii) Whether the plaintiff is entitled for permanent injunction against defendant as prayed for?

iii) To what relief?

5. During course of trial, P.Ws.1 and 2 were examined and got marked Exs.A1 to A5 on his behalf. On the other hand,

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the defendant himself examined as DW.1 and no documents got marked on behalf of defendant.

6.After evaluating both oral and documentary evidence on record, the learned Prl. Junior Civil Judge, Tiruvuru decreed the suit in favour of plaintiff, restraining the defendant, his men and agents from ever interfering with his peaceful enjoyment of plaint C-schedule joint passage shown in yellow colour in the plaint plan in any manner what so ever and in view of relationship of parties, no costs awarded.

7.Aggrieved by the said Judgment and Decree, the

Appellant/defendant preferred the present appeal on the following grounds:

That the Judgment and Decree of the trail Court is contrary to law, weight of evidence and probabilities of the case. The

Judgment and Decree of trial Court is perverse and not in accordance with settled principles of law. The trial Court failed to appreciate the fact that the plaintiff did not furnish any documentary evidence to prove that C-schedule property is existing and that it is a joint passage in which he has right and erroneously decreed the suit. The trial Court ought to have seen that executants of Ex.A1 gift deed is not the absolute owner of the properties conveyed by her in favour of the plaintiff under the said deed and therefore the said gift deed is a void document and ought to have held that the plaintiff basing on the said void document is not entitled for the reliefs sought for. The finding of the trial court that the defendant failed to place any

6

documentary proof to say that he has exclusive right over plaint

C-schedule property is not correct and unsustainable as the burden is on the plaintiff to prove that he has right over the plaint C-schedule property and as the plaintiff is claiming right over plaint C-schedule property basing on a void document the trial Court ought not to have decreed the suit granting reliefs in favour of plaintiff. The trial court ought to have seen that the issues cast burden on the plaintiff to prove that he is entitled for the reliefs sought for in the plaint and as the plaintiff miserably failed to prove the case set up by him in the plaint. The trial

Court ought to have seen that the question of proving that the plaintiff has no right over the plaint C-schedule property would arise only in the event of shifting the burden to the defendant by the plaintiff by proving his case and the plaintiff failed to shift the burden to defendant. The trial Court ought to have seen that the suit for injunction is not maintainable without seeking the relief of declaration when the plaintiff has not filed any valid document to prove right or title over plaint C-schedule property, hence it is prayed to allow the appeal by setting aside the judgment and decree dt.15.9.2016 passed in O.S.No.147/2011 by the Prl. Junior

Civil Judge, Tiruvuru.

8.Heard the learned counsel for Appellant/defendant and Respondent/plaintiff and perused the material on record.

9. Now the points for consideration are:

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i) Whether there are any valid grounds to interfere with the

Judgment and Decree Dt.15.9.2016 in O.S.No.147/2011 on the file of the Prl. Junior Civil Judge, Tiruvuru?

ii) To what relief?

POINT No.1:

10.As seen from the pleadings and the evidence adduced on behalf of both sides, it can be seen that the relationship between the plaintiff and the defendant as claimed is not in dispute. It is the evidence of plaintiff, who examined as

PW.1/M.Krishna Rao that one Nekkalapu Savitri is no other than his maternal grandmother and one Nekkalapu Subbaiah is the husband of said Savitri and Subbaiah and Savitri were blessed with five sons and two daughters. In this regard, DW.1 also stated in cross examination that they are five brothers viz.

Nekkalapu Nageswara Rao, Nekkalapu Chalapathi Rao,

Nekkalapu Rama Rao, Nekkalapu Ranga Rao and himself and they have two elder sisters viz. Maridi Papamma and Ravi

Prameela and the plaintiff herein is the son of his elder sister

Maridi Papamma. Thus, the defendant is no other than the maternal uncle of plaintiff.

11. The plaintiff got examined PW.2/N. Chalapati Rao, brother of the defendant in support of his contention. The evidence of PW.2 which is not in dispute shows that the defendant filed an injunction suit vide O.S.No.28/2012 against

PW.2 and his brother and the said suit is pending.

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12. DW.1 admitted in his evidence that by the time of their partition, the suit schedule properties herein fell to the share of his father. He also admitted that till the death of his father the suit schedule property was in possession and enjoyment of their father. He also admitted that the house in part of the schedule property was constructed by his father after partition. It is the case of the plaintiff that the defendant’s mother Savitri got the schedule property through her husband. In this regard, PW.1 stated that there is no document executed by Subbaiah in favour of Savitri by conveying A-schedule property. In this regard, there is an admission of DW.1 regarding the enjoyment of the schedule property by her mother. DW.1 stated in cross examination that his father passed away about 15 years back and mother passed away about 5 to 6 years back. After the death of his father, his mother had been residing in the schedule property.

13. DW.1 stated that after the death of his father, his share of property to an extent of Ac.2.11 cents was not partitioned among their brothers. It seems that the dispute arose among the brothers of defendant regarding said Ac.2.11 cents of property which is not the subject matter of the present suit. Even according to DW.1, after the death of his father, the plaintiff came to reside along with mother of the defendant. The evidence of DW.1 goes to show the mother of the plaintiff passed away before to her father and the plaintiff is the only son to his parents and no other issues. It is the case of the plaintiff that he

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acquired the plaint A, B and C-schedule properties under a registered Gift Deed/Ex.A1 dt.25.1.2006 from her maternal grandmother Smt.N. Savitri and he accepted the gift of the schedule property and the gifted property was delivered to him even prior to the date of gift deed and his maternal uncles’ were heirs of gift of the plaint schedule property in his favour and all of them signed as attestors on Ex.A1 document. The said evidence of PW.1 is supported by the evidence of PW.2 who is one of the brothers of the defendant. PW.2 also deposed that his mother gifted the schedule property to the plaintiff under a registered gift deed and all of his brothers including himself attested the said document and they were present at the time of execution of the gift deed. Ex.A1 document supports the version of the plaintiff, whereas it is the stand of the defendant that he did not witness the execution of the gift deed and the signature shown at

S.No.4 as witness on the said gift deed is not that of him and it is forged one. He denied the signature on Ex.A1 is not that of him.

The plaintiff has clearly mentioned about the execution of the gift deed by his maternal grandmother and the said document is filed along with the plaint and the copy of the document was also served to the defendant. Though the defendant has taken a plea and contested that Ex.A1 does not contain his signature as witness. There is nothing on the regard to suggest that he had initiated any action either civil or criminal against the plaintiff by alleging that the signature found on Ex.A1 is not that of his signature. If really the plaintiff resorted the act of forgery the

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defendant would not have remained calm without initiating any action. Even otherwise the plaintiff has no reason to forge the signature of the defendant and his brothers. It appears that the defendant and his brothers have not disputed the right of their mother to execute gift deed in respect of the schedule properties in favour of the plaintiff. Having attested the document it is not open to the defendant or his brothers to question the right of their mother to execute the gift deed.

14. As seen from the evidence on record, after the death of his mother, the plaintiff used to reside along with his grandmother and the said fact is also not disputed by the defendant. It is also elicited in the cross examination of PW.1 that they joined with their grandmother at the plaint schedule property as she is only residing there and in view of her old age with a view to assist her. Had the defendant not agreed for execution of the gift deed by his mother in respect of the plaint schedule properties, the defendant is expected to have filed a suit questioning the right of his mother executing the gift deed in respect of the schedule property. It is not the case of the defendant that he initiated any civil suit claiming right over the schedule property.

15. As seen from the pleadings of both parties the dispute between the parties is only with regard to plaint C-schedule property. The plaintiff claims that it is the joint passage, whereas the defendant claims that it is his exclusive passage. To establish his joint passage right over C-schedule property the plaintiff has

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relied on a boundary recitals of the schedule given in Ex.A1 document. It clearly established that there is a joint passage in between the house of plaintiff and the house of defendant. It is not the case of the defendant that there is any other passage to

B-schedule property except the plaint schedule property to reach road which is situate towards eastern side of plaintiff’s house property and defendant’s house property. The evidence of PW.1 is supported by the evidence of PW.2. In absence of execution of gift deed by his mother, PW.2 will also get equal right over the property along with defendant and his brothers. This court is of view that PW.2 has no reason to give evidence against his interest. As the evidence of P.Ws.1 and 2 discloses that the defendant also attested the gift deed and the defendant has not adduced any evidence to show that the signature found to be onEx.A1 is not that of his signature and as such this court is of view that the evidence of P.Ws.1 and 2 which is consistent regarding the attestation of the defendant on Ex.A1 document can be accepted. When once this court is of view that Ex.A1 document contains the signature of defendant, it is for him to establish that he subscribed his signature on the document without knowing the contents of gift deed. As already observed the defendant as DW.1 admitted in his evidence that after the death of his mother the plaintiff has been in possession and enjoyment of the schedule property. The plaintiff is able to establish his case by relying on Ex.A1 document that he is in possession and enjoyment of the plaint schedule property,

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wherein he has got joint right over the passage which is situated in between plaintiff’s house property and defendant’s house property which is shown to be C-schedule property in the plaint schedule. The material placed before the court supports the case of the plaintiff with regard to existence of C-schedule property, though its existence is disputed by the defendant. As rightly pointed out by the trial court Ex.A1 gift deed itself speaks that the southern boundary of the A-schedule property and eastern boundary of B-schedule property is shown as joint passage mentioned in Ex.A1 and it is established that it is shown as joint passage by the parties and their predecessors of Ex.A1.

16. The main objection of the learned counsel for the defendant is that without seeking the relief of declaration of right over C-schedule property, the plaintiff is not entitled for permanent injunction against the defendant. In this regard, the trial court has come to a correct conclusion by observing that the defendant has not disputed the right of his mother over C- schedule property. The contest taken by the defendant and the evidence adduced on behalf of the defendant clearly shows that the defendant is disputing the right of the plaintiff over the C- schedule property which is shown to be joint passage. The case of the plaintiff that the defendant is trying to close the way to the plaintiff to approach to his B-schedule property is not disputed.

Thus, the plaintiff is able to establish his joint right over the C- schedule property and the inference from the defendant. On the other hand the defendant has not placed any evidence to

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establish that the C-schedule property is his exclusive property and he has got absolute right over the said property. Upon appreciation of the material on record, the trial court has come to a conclusion that the plaintiff is using the joint passage as shown in the plaint schedule property in rough plan and he is entitled for the relief.

17. Upon appreciation of the evidence on regard, this court is of view that the trial court has come to a correct conclusion and the appellant is miserably failed to establish his case pleaded in the written statement and this point is answered against the appellant/defendant.

POINT NO.2:

18.Having thus analyzed the oral and documentary evidence, this Court finds that the view taken by the learned trial court does not call for any inference and the findings and observations of the trial Court are in accordance with the evidence on record and based on well settled principles and there are no grounds to interfere with the findings of the trial court and this appeal therefore fails and it is hereby dismissed and the impugned judgment passed by the trial court is uphold.

19. In the result, this appeal suit is dismissed without costs by confirming the Judgment and Decree dt.15.9.2016 passed in O.S.No.147/2011 on the file of Prl. Junior Civil Judge,

Tiruvuru.

Partly typed to my dictation by the Stenographer, and partly dictated to him, transcribed by him and corrected and

14

pronounced by me in the open Court on this the 28th day of July,

2022.

XV ADDL. DISTRICT JUDGE,

KRISHNA DISTRICT AT NUZVID.

Copy to:

The Prl. Junior Civil Judge, Tiruvuru.

IN THE COURT OF THE XV ADDITIONAL DISTRICT JUDGE, KRISHNA

DISTRICT AT NUZVID

PRESENT: Sri T. MALLIKARJUNA RAO,

XV ADDL.DISTRICT JUDGE, NUZVID

Wednesday, on this the 13th day of July, 2022

O.S.NO.5/2022.

Between:

Smt.Gade Venkata Satyavathi. ..Plaintiff.

And

1).Smt.Purama Sithamahalakshmi. 2).Purama Srinivasa Rao. 3).Smt.Purama Anuradha. 4).Purama Rajeswari. 5).Purama Ankamma Raju. 6).Purama Siva Parvathi. ..Defendans.

This Suit coming on this day before me for hearing in the presence of Sri V. Raja Kumar, Advocate for plaintiff, and the defendants remained exparte, and the matter having stood over for consideration till this day, and upon hearing, this court made the following:

JUDGMENT

The plaintiff filed the suit for partition of plaint schedule properties into five equal shares and allot 1/5th share to plaintiff by metes and as per good and bad qualities and for mesne profits and for costs.

2.D2 called absent. No representation. Despite conditional order, D2 has not shown interest. D2 is set exparte. Heard plaintiff counsel on memo dt.30.6.2022. Memo is recorded.

3.In the result, suit is dismissed as not pressed without costs.

Pronounced by me, in the open court, on this 13th day of

July, 2022.

XV ADDITIONAL DISTRICT JUDGE,

KRISHNA AT NUZVID.

APPENDIX OF EVIDENCE.

-NIL-

XV ADJ, NZD.

IN THE COURT OF THE XV ADDITIONAL DISTRICT JUDGE, KRISHNA

DISTRICT AT NUZVID

PRESENT: Sri T. MALLIKARJUNA RAO,

XV ADDL.DISTRICT JUDGE, NUZVID

Wednesday, on this the 13th day of July, 2022

A.S.NO.17/2017.

Between:

Tadi Veera Raghava Reddy. ..Appellant.

And

1).Koduru Bhanumati. 2).Cheerala Mani Kumar.

3).Cheerala Kalpana. ..Respondents.

This Appeal Suit is coming on this day before me for hearing in the presence of Sri K. J. Dixon, Advocate for appellant, and for 1st respondent condition to attend the court, and the respondents 2 and 3 remained exparte, and the matter having stood over for consideration till this day, and upon hearing, this court made the following:

JUDGMENT

The appellant filed the appeal suit against the order and decretal order dt.27.2.2017 passed in E.A.No.178/2016 in

E.P.No.17/2015 in O.S.No.23/2012 on the file of Prl. Junior Civil

Judge, Tiruvuru and for costs.

2.Memo filed on behalf of appellant submitting that appeal became infructuous. Notice given. Heard both sides. Memo is recorded. Appeal is dismissed as not pressed with costs in terms of memo.

Pronounced by me, in the open court, on this 13th day of

July, 2022.

XV ADDITIONAL DISTRICT JUDGE,

KRISHNA AT NUZVID.

To The Prl. Junior Civil Judge, Tiruvuru.