Smt V. Lakshmi Rajyam

VII ADJC,KNL1AS 41-2022

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE: KURNOOL

PRESENT:- Smt.V.Lakshmi Rajyam,

VII ADDITIONAL DISTRICT JUDGE, KURNOOL,

Thursday, the 07th day of April, 2025.

APPEAL SUIT N0.41/2022.

G.Ram Mohan Reddy, son of G.Somi Reddy, 48 years, residen of Peddapadu Village, Kallur

... Appellant.

Mandal, Kurnool District, Kurnool.

-Versus-

1. M.Srinivasa Reddy, son of Mallu Bhupal Reddy, 49 years, Hindu, business and private employee, resident of H.No.66, New Abbas Nagar, Kurnool City.

2. N.Chinna Krishna Reddy, son of Narapu Narayana Reddy, 64 years, Hindu, Agriculturist, resident of Eerladinne Village, Kothakota Post, C.Belagal Mandal, Kurnool District.

... Respondents.

3. N.V.Ramana Reddy, son of late Venkatarami Reddy, 67 years, Hindu, Agriculturist, resident of Eerladinne Village, Kothakota Post, C.Belagal Mandal, Kurnool District.

4. N.Madhusudhana Reddy, son of late Venkatarami Reddy, 67 years, Hindu, Agriculturist, resident of Eerladinne Village, Kothakota Post, C.Belagal Mandal, Kurnool District.

VII ADJC,KNL2AS 41-2022

An appeal arose against the decree and judgment dated 05-09-2022 passed by the Principal Senior Civil Judge , Kurnool , in O.S.NO.285/2013.

Between:

G.Ram Mohan Reddy. …Plaintiff.

And.

1. M.Srinivasa Reddy.

2. N.Chinna Krishna Reddy.

3. N.V.Ramana Reddy.

4. N.Madhusudhana Reddy. …Defendants.

This appeal suit came up on 12-03-2025 for final hearing before me in the presence of M/s.G.Chalapathi Rao, M.Jaffar Hussain Baig and A.Anil Kumar,

Advocates for the Appellant and of Sri.M.L.Srinivasa Reddy, Advocate for the

Respondents, and after hearing both sides, having stood over for consideration till this day, this Court made the following:

: JUDGMENT :

1.The Appellant/Plaintiff preferred this appeal against the judgment dt.05.09.2022 passed by the Principal Senior Civil Judge, Kurnool wherein the Trial

Court dismissed the suit.

2.The Plaintiff preferred this appeal on the following grounds;

VII ADJC,KNL3AS 41-2022

i) The decree and judgment of the lower Court is against law, weight of evidence and probabilities of the case.

ii) The lower Court ought to have decreed the suit, considering the oral and documentary evidence on behalf of the appellant/plaintiff who successfully proved the execution of Ex.A1 by examining one of the attestors.

iii) The lower Court wrongly dismissed the suit by failing to appreciate the evidence on behalf of the appellant/plaintiff properly.

iv) The lower Court ought to have decreed the suit holding that the land in

Ac.21.44 cents in Sy.No.105 of Polakal Village and other properties fell into the share of Pedda Reddy who is the son of late Rami Reddy of Eerladinne village.

v) The lower Court ought to have held that the Defendants 3 and 4 inherited the land of Ac.21.44 cents in Sy.No.105 and other lands from their father Venkata

Rami Reddy, who died intestate in the year 2006 and that the defendants 3 and 4 are the rightful owners and they are competent to deal with the suit schedule property.

vi) The lower Court ought to have held that the registered sale deed dated 04.02.2005 (Ex.B2) executed in favour of the Defendant No.1 remains unproved as he failed to prove its execution by examining any of the attestors.

vii) The lower Court failed to appreciate that the father of the Defendant No.2 by name Narayana Reddy did not get any land in Sy.No.105 of Polakal Village on the

VII ADJC,KNL4AS 41-2022 death of his father Rami Reddy and as such the execution of Ex.B2/sale deed in favour of the Defendant No.1 is void and it would not convey any title or possession over the plaint schedule land to the Defendant No.1.

viii) The lower Court further erred in observing that “if really Defendants 3 and 4 got the total land of Sy.No.105 from their father, why the Defendant No.4 alone executed Exs.A4 and A5 in the year 2011 in favour of third parties, while the defendants 3 and 4 jointly executed Ex.A1 in favour of the Plaintiff?”.

ix) The lower Court further erred in observing that the plaintiff could not prove the flow of title to the schedule property from the original owner M.Rami Reddy to another and that it cannot be said that the plaintiff acquired ownership right to the schedule property by virtue of Ex.A1/sale deed.

x) The lower Court erred in observing that the entries in the revenue records,

Exs.B3, B5 and B6 are relevant and admissible to the extent of possession of the

Defendant No.1 over the suit schedule property.

xi) The lower Court ought to have held that since the defendants 3 and 4 got land in Sy.No.105, the Defendant No.2 and his brother Ramakrishna Reddy figured as attestors in Exs.A4 and A5.

xii) The lower Court erred in observing that it is not safe to decide the genuineness of the sale deed executed in favour of the Defendant No.1 in this suit.

VII ADJC,KNL5AS 41-2022

Hence, the Appellant/Plaintiff preferred this appeal praying this Court to set aside the decree and judgment dt.05.09.2022 passed by the Principal Senior Civil

Judge, Kurnool in O.S.No.285/2013 and to decree the suit with costs.

3.It is pertinent to note that this appeal was filed before Hon’ble Principal

District Judge’s Court, Kurnool and the same was inturn made over to this Court on

19.10.2022.

4.On receipt of notice, the respondents 2 to 4/defendants 2 to 4 did not choose to contest the appeal and they were set exparte to the proceedings on 01.12.2022. On receipt of notice, the appellant No.1/Respondent No.1 contested the appeal.

5.Before merits of the appeal are considered, it is necessary to extract the pleadings of the parties in O.S.No.285/2013 on the file of Principal Senior Civil

Judge’s Court, Kurnool and so also the evidence on record.

6.As seen from the record of the trial Court, the appellant/plaintiff filed the suit in O.S.No.285/2013 for declaration of his title over the plaint schedule land, for consequential relief of cancellation of the sale deed dated 04.02.2005 bearing

Doc.No.114/2005 of SRO, Gudur with a direction to note the fact of cancellation in the books of SRO, Gudur and for permanent injunction restraining the defendants, their men, or anybody on their behalf from interfering with the plaint schedule land

VII ADJC,KNL6AS 41-2022 and for costs of the suit. The record of the trial court shows that the appellant/plaintiff averred in his plaint that he is the absolute owner of the plaint schedule land admeasuring Ac.6.40 cents in Sy.No.105 of Polakal Village of

C.Belagal Mandal. He averred that he purchased the schedule land from the defendants 3 and 4 by way of registered sale deed dt.11.03.2010 vide document bearing No.472/2010 of SRO, Gudur for a valuable sale consideration and ever since the date of purchase, the appellant/plaintiff has been in possession and enjoyment of the said land. He further averred that the plaint schedule land originally belongs to one Rami Reddy of Eerladinne village, who is having vast landed properties in

Eerladinee and Polakal Villages. He averred that in Polakal Village, the said Rami

Reddy was having lands in Sy.Nos.104 and 105 and that in Sy.No.105 he was having land to an extent of Ac.21.44 cents. He further averred that the said Rami Reddy had 5 sons namely 1) Pedda Reddy, 2) Chinna Nagi Reddy, 3) Pedda Nagi Reddy, 4)

Narayana Reddy and 5) Hanumantha Reddy. He averred that after the death of the said Rami Reddy, his properties devolved upon his sons and accordingly the first son name Pedda Reddy got the land in Sy.No.105 and several other lands to his share and the same was mutated in his name in the Revenue records. He averred that after the death of Pedda Reddy in the year 1982, his properties were devolved upon his only son by name Venkata Rami Reddy and that the said Venkata Rami Reddy died

VII ADJC,KNL7AS 41-2022 intestate in the year 2006 leaving behind him, his two sons i.e., the defendants 3 and 4 in the suit and the said land of Ac.21.44 cents in Sy.No.105 and other lands were inherited by the defendants 3 and 4 and they were in possession and enjoyment of the same. He averred that the defendants 3 and 4 sold away the plaint schedule property i.e., Ac.6.40 cents in Sy.No.105 to him and delivered possession of the same to him and since then he has been in possession and enjoyment of the plaint schedule land.

7.The Appellant/Plaintiff further averred in the suit that the Defendant

NO.1 in collusion with Defendant No.2 filed a suit for permanent injunction in

O.S.No.499/2011 on the file of Principal Junior Civil Judge’s Court, Kurnool against

him by showing the Defendant No.2 herein as the Defendant No.1 and the plaintiff herein as the Defendant No.2 alleging that the Defendant No.1 herein purchased a land admeasuring Ac.6.00 cents in Sy.No.105 of Polakal Village from the Defendant

No.2 by way of registered sale deed dt.04.02.2005 vide document No.114/2005 and that since then the Defendant No.1 herein has been in possession and enjoyment of the said land. He further averred that in the said suit, the Defendant NO.1 herein alleged that the Plaintiff and the Defendant No.2 herein bore grudge against him due to political disputes and in order to pressurize him in selling the said land to them, they started create troubles and that on 10.08.2011 they tried to interfere and enter into the said land of Ac.6.00 cents and that when he resisted, they beat him and

VII ADJC,KNL8AS 41-2022 threatened that they will come again with some more men. He averred that the said suit in O.S.No.499/2011 was pending for disposal. He further averred that the said sale deed dt.04.02.2005 allegedly executed by the Defendant No.2 in favour of the

Defendant No.1 was executed by showing the suit schedule land by partly changing the boundaries. He averred that the Defendant No.2 herein does not have any right in the suit schedule property as the same was inherited by the Defendants 3 and 4 and sold away to the plaintiff in the year 2010.

8.He further averred that the Defendant No.1 in collusion with the

Defendant No.2, created the said registered sale deed dt.4.2.2005 even though the

Defendant NO.2 did not have any land in Polakal Village muchless in Sy.NO.105 of the said village. He averred that the Defendant No.2 is having land in Eerladinne

Village of Kothakota Grama Panchayat. He further averred that after receiving the summons in the said suit, when he questioned the Defendant No.2 about the execution of the said sale deed, the Defendant No.2 herein represented that taking advantage of his drinking habit, the Defendant No.1 induced him in fabricating a false document by making him to affix signatures on some papers before the Sub

Registrar. He further averred that he had secured a copy of the said sale deed and he came to know about the mischief played by the Defendants 1 and 2 by showing wrong boundaries. He further averred that no land exists within the boundaries as

VII ADJC,KNL9AS 41-2022 shown in the said sale deed. He further averred that he made a complaint to the

Tahsildar, C.Belagal to initiate action against the Defendant No.1 who created

Revenue records and tried to interfere with the possession of the plaintiff but as no action was taken, the plaintiff preferred an appeal before the RDO, Kurnool for cancellation of the pattadar pass book and other revenue records issued in the name of the Defendant NO.1 and the same is pending. He further averred that the

Defendants 1 and 2 managed the Revenue Authorites and fabricated Revenue records with the help of a fraudulent sale deed and in the wake of hike in land prices, the defendants 1 and 2 got filed the suit in O.S.NO.499/2011 in order to grab the suit schedule property. He contended that if the said void and fraudulent sale deed dt.04.02.2005 executed in favour of the Defendant No.1 is left outstanding, it will be prejudicial to the right and title of the plaintiff and as such it is necessary to cancel the sale deed by holding that it is void ab-initio and not binding on the Plaintiff. The

Plaintiff averred that as he asked his vendors to clear the dispute about his title and as there was no response from the defendants 3 and 4, the Plaintiff was constrained to file the suit for declaration of his title, consequential relief of cancellation of the sale deed dt.04.02.2005 and for permanent injunction against the defendants 1 and 2 by showing the defendants 3 and 4 as proforma parties. Hence, the suit.

VII ADJC,KNL10AS 41-2022

9.The record of the trial Court shows that even though the Respondents/

Defendants 2 to 4 received summons, they did not choose to contest the suit and they remained exparte.

10.On receipt of summons, the Respondent No.1/ Defendant No.1, made his appearance and he filed his written statement denying all the allegations made in the plaint. He contended that he purchased the suit schedule land to an extent of Ac.6.00 cents from the Defendant No.2 who was the absolute owner for a valuable consideration of Rs.54,000/- on 04.02.2005 and ever since then he has been in possession and enjoyment of the same with absolute right and title without interference by anybody. He contended that he was given pattadar pass book and title deed and that he availed crop loan by pledging the original title deed and that he availed crop loan by pledging the original title deed with Canara Bank, Payalakurthi

Branch. He contended that the sister of the plaintiff was married to the son of the

Defendant No.2 and that due to some political differences between him and the plaintiff and Defendants 2 to 4, they developed grudge against him prior to filing of

O.S.NO.499/2011 and with an intent to pressurize him to sell the suit schedule

property particularly to the plaintiff, they started creating troubles to him by all means and that as a part of it, on 10.08.2011 the Defendant No.2 and the Plaintiff without any manner of right over the suit schedule land, tried to enter into the suit schedule

VII ADJC,KNL11AS 41-2022 land along with their men and that he arrested the same, but the Defendant No.2 and the Plaintiff while leaving the suit schedule land threatened that they will come again with more men and occupy the suit schedule property. He contended that he has filed a suit in O.S.NO.499/2011 on the file of Principal Junior civil Judge’s Court, Kurnool for permanent injunction against them and their men and obtained interim injunction vide I.A.No.1449/2011 dt.16.08.2011 and the same was made absolute on merits by order dt.19.12.2011. He contended that the Defendant No.2 and the plaintiff preferred an appeal against the said order in CMA.No.56/2012 on the file of IV Additional

District Judge’s Court, Kurnool and dragged on the proceedings. He contended that

as on the date of filing of the suit in this case, the injunction orders dt.19.08.2011 in

I.A.No.1449/2011 were in force, but suppressing the said fact, the plaintiff filed this suit seeking injunction also by colluding with the defendants 2 to 4.

11.He further contended that the Defendant No.2 herein filed the written statement in the said suit by sailing with the plaintiff and that the said fact clearly shows that there is collusion between plaintiff and the Defendants 2 to 4 and that inference can be drawn that the plaintiff and the Defendants 2 to 4 must have created the sham and nominal registered document dt.11.03.2010 in favour of the Plaintiff in order to defeat the rights of the Defendant No.1 herein.

VII ADJC,KNL12AS 41-2022

12.He further contended that after the death of N.Rami Reddy, in the oral partition among 5 sons of the N.Rami Reddy, the entire land in Sy.NO.105 was fallen to the shares of N.Narayana Reddy and N.Hanumantha Reddy and that after the death of N.Narayana Reddy, his properties including the land in Sy.No.105 which was fallen to the share of N.Narayana Reddy, devolved upon his two sons by names

Ramakrishna Reddy and N.Chinna Krishna Reddy i.e., Defendant No.2 herein and they got Ac.6.00 cents each in Sy.No.105 in the partition. He contended that the

Defendant No.2 herein got Ac.6.00 cents of land towards his share and he got pattadar pass book and title deed for his land and he was in exclusive possession and enjoyment of the said property, till he executed the sale deed dated 04.02.2005 in favour of the Defendant No.1 and delivered possession of the same to him. He contended that the Defendants 3 and 4 do not have any right and possession over the suit schedule and as such the question of conveying the same to the plaintiff does not arise. He further contended that the plaintiff was not in possession and enjoyment of the suit schedule land at any point of time muchless as on the date of filing of the suit.

He further contended that in the same survey No.105, one Hanumantha Reddy who is the junior paternal uncle of the Defendant NO.2 got certain extent of land towards his share apart from other properties and that the said Hanumantha Reddy sold his land under registered sale deed dt.04.02.1997 in which while giving the boundaries of the

VII ADJC,KNL13AS 41-2022 land, it is mentioned that towards East, the lands of N.Ramakrishna Reddy, who is the brother of the Defendant NO.2 and N.Chinna Krishna Reddy (Defendant No.2 herein) are there. He contended that the said boundaries in the sale deed dated 04.02.1997 clearly show that the suit schedule land fell into the share of the

Defendant No.2. He contended that the sale deed dated 04.02.2005 executed by the

Defendant No.2 in his favour is genuine and not a null and void document and as such it need not be canceled and the plaintiff's title over the suit schedule cannot be declared. He contended that the Court fee paid for seeking the reliefs is also not correct. Hence, he sought for dismissal of the suit with costs.

13.The record in the trial Court shows that basing upon the pleadings of both parties, the following issues have been settled for trial;

1.Whether the registered sale deed document No.472/2010 dt.11.03.2010 for plaint schedule property is true, valid and binding on defendants?

2.Whether the registered sale deed dt.4.2.2005 executed in favour of Defendant No.1 by Defendant No.2 is true, valid and binding on the Plaintiff?

3.Whether the Plaintiff is in possession and enjoyment of the plaint schedule property as on the date of filing of the suit?

4.Whether the Plaintiff is entitled for declaration of his title over suit schedule property?

5.Whether the Plaintiff is entitled for cancellation of registered sale deed No.114/2005 dt.4.2.2005 of SO, Guduru and to direct the SRO to note down said cancellation in official books?

6.Whether the Plaintiff is entitled for perpetual in nature against the Defendants as prayed for ?

VII ADJC,KNL14AS 41-2022

7.To what relief?

14. The record of the trial Court shows that during the course of trial, the appellant/plaintiff-G.Rama Mohan Reddy got examined himself as PW1 and further got examined one Naganna who is the attestor of Ex.A1 as PW2 and got marked

Exs.A1 to A5 in his favour. The record of the trial Court shows that after the closure of the plaintiff’s side evidence, the Defendant No.1 -M.Srinivasa Reddy got examined himself as DW1 and further got examined one Kothi Husenna Gari Polakal as DW2 and got marked Exs.B1 to B7 in his favour.

15. The record of the trial Court shows that basing upon the evidence of both parties and after perusing the record and hearing on both sides, the trial Court dismissed the suit on 05.09.2022 without costs.

16.Aggrieved by the such dismissal, the appellant/plaintiff preferred this appeal. Hence, as the suit in O.S.NO.285/2013 was filed for declaration of title, consequential relief of cancellation/Ex.B2 sale deed and for permanent injunction, this Court has to consider some part of the evidence recorded in the suit in

O.S.NO.285/2013 on the file of Principal Senior Civil Judge’s Court, Kurnool.

VII ADJC,KNL15AS 41-2022

17.Point for consideration:

“ Whether there are any justifiable grounds for entertaining this appeal by setting aside the decree and judgment in O.S.NO.285/2013 dt.05.09.2022 passed by Principal Senior Civil Judge, Kurnool?”

18. To answer the above point, it is necessary to appreciate the evidence of the trial Court. As seen from the record of the trial Court, the plaintiff- G.Ram Mohan

Reddy got examined himself as PW1 and further got examined one Naganna as PW2 and got marked Exs.A1 to A5. PW1-G.Ram Mohan Reddy filed his chief affidavit in lieu of his examination in chief which is nothing, but a reiteration of the contents of his plaint. Hence, this Court is not inclined to again narrate the same. The plaintiff has got examined one Naganna son of Nagabhushi as PW2. PW2-Naganna filed his chief affidavit in lieu of his examination in chief and in such evidence, he deposed that he knows both the Plaintiff and the Defendants in the suit and that on 11.03.2010 the Plaintiff purchased the plaint schedule agricultural land admeasuring Ac.6.40 cents in Sy.No.105 of Polakal Village of C.Belagal Mandal from its rightful owners i.e., N.V.Ramana Reddy and N.Madhusudhan Reddy, who are the defendants 3 and 4 in the above suit for a valuable consideration under a registered sale deed bearing

Doc.No.472/2010 of SRO, Gudur. He deposed that the said vendors who inherited the said land from their father, have delivered possession of the same to the Plaintiff

VII ADJC,KNL16AS 41-2022 by executing the sale deed in his favour. He deposed that he, one K.Beerappa of

Peddapadu village and M.Yesanna of Eerladinne village were present at the time of registration of the said sale deed and they attested the same. He deposed that ever since the said purchase, the plaintiff is in possession and enjoyment of the plaint schedule land. As noted above, through PW1, Exs.A1 to A5 were marked.

19.The record of the trial Court shows that after the closure of the plaintiff’s side evidence, the Defendant No.1/M.Srinivasa Reddy got examined himself as DW1 and he filed chief affidavit in lieu of his examination in chief which is nothing, but a reiteration of the contents of his written statement. Hence, this Court is not inclined to again narrate the same.

20.The Defendant No.1 has further got examined one Kothi Husenna Gari

Polakal as DW2. DW2 filed his chief affidavit in lieu of his examination in chief and in such evidence, he deposed that he is native and resident of Polakal village. He deposed that the suit schedule land in Sy.NO.105 in Polakal Grama Panchayat limits is situated nearer to his land in Sy.No.110/2A and 110/1C3 of Polakal Grama

Panchayat limited. He deposed that about 16 years ago, the Defendant No.1 herein purchased the suit schedule land from the Defendant No.2 for a valuable consideration under a registered sale deed and since then he has been in possession and enjoyment of the suit schedule property with absolute rights without any

VII ADJC,KNL17AS 41-2022 interference by anybody on lease from the plaintiff, defendants 3 and 4. He deposed that considering the right, title and possession of the Defendant No.1, he was given pattadar pass book and title deed books for the suit schedule property by the Revenue

Authorities and the Defendant No.1 also has availed crop loan from Canara Bank,

Pyalakurthi for the suit schedule land basing on his pattadar pass book and title deed.

He deposed that N.Chinna Krishna Reddy (D2) got the suit schedule land towards his share in the oral partition which took place prior to 2005 and as such the Defendant

No.2 alone had right and title over the suit schedule land and he alone was in possession and enjoyment of the same, till he sold the same to the Defendant No.1 and that the Defendants 3 and 4 have nothing to do with the suit schedule land and they have no right to execute any sale deed in favour of anybody and if they do so, it is in valid. He deposed that the Plaintiff herein has nothing to do with the suit schedule property and he was not in possession and enjoyment of the same at any point of time till today. He deposed that even till today, the Defendant No.1 is in possession and enjoyment of the plaint schedule propriety having absolute right and title. Through DW1, Exs.B1 to B7 were marked.

21.Considering the above evidence of both parties, a perusal of the record of the trial Court shows that the appellant/plaintiff filed the suit in O.S.NO.285/2013 for declaration of his title and consequential relief of cancellation of the Ex.B2/sale

VII ADJC,KNL18AS 41-2022 deed executed by the Defendant No.2 in favour of the Defendant No.1 and for permanent injunction restraining the Respondents/ Defendants, their men, etc from ever interfering with the plaint schedule land. While the contention of the appellant/plaintiff is that he purchased the plaint schedule land from the Respondents/

Defendants 3 and 4 by way of Ex.A1 sale deed and that Defendants 3 and 4 inherited the same from their ancestors, the contention of the Respondent No.1/ Defendant

No.1 is that he purchased Ac.6.00 cents in Sy.No.105 of Polakal Village from the

Defendant No.2 by way of Ex.B2/sale deed. The plaintiff had contended in his plaint that one Rami Reddy of Eerladinne Village was having vast lands in Eerladinne and

Polakal Villages and that in Sy.No.105 of Polakal Village, he was having land to an extent of Ac.21.44 cents and that after his death, his sons inherited the said properties in Sy.Nos.104 and 105 and other properties and that his son Pedda Reddy got the land in Sy.No.105 and other land and after his death, in the year 1982, his properties were devolved upon his only son Venkatarami Reddy and inturn, after the intestate death of Venkatarami Reddy in the year 2006, the said land of Ac.21.44 cents in Sy.No.105 and other lands were inherited by his two sons i.e., Defendants 3 and 4 and that they were in possession and enjoyment of the same until they sold Ac.6.40 cents i.e., suit schedule property to the plaintiff herein. The Plaintiff has filed the sale deed dated 11.03.2010 executed by Defendants 3 and 4 in his favour as Ex.A1. Though the

VII ADJC,KNL19AS 41-2022

Plaintiff contended that the said Rami Reddy was the original owner of Ac.21.44 cents in Sy.No.105 and that after his death, Pedda Reddy got the entire property in

Sy.No.105 to his share and that none of his brothers got any share in the said survey number, Ex.A1 shows the contrary. If at all, the version of PW1 that Pedda Reddy got the entire extent of Ac.21.44 cents in Sy.No.105 towards his share from his father is believed, the nature of acquisition in Ex.A1 must be shown as “inherited”.

However, a perusal of Ex.A1 i.e., the sale deed dt.11.03.2010 executed by

Defendants 3 and 4 in favour of the plaintiff shows that the nature of acquisition as “self acquired property of Pedda Reddy”. Hence, the nature of acquisition shown in

Ex.A1 is contrary to the pleadings of the Plaintiff. Further more if really except

Pedda Reddy, none of his brothers got any property in Sy.No.105 towards their share, how Ex.B7 i.e., the sale deed dt.04.02.1997 was executed by N.Hanumantha Reddy who is one of the brothers of Pedda Reddy. Pws.1 and 2 admitted that Ex.B7 sale deed was executed by N.Hanumantha Reddy i.e., the last brother of Pedda Reddy on 04.02.1997 by selling some land in Sy.No.105 to Y.Narayana Reddy and 3 others.

PW1 voluntarily deposed that the said documents bearing Doc.No.126/1997 was cancelled subsequently. PW1 further denied the suggestion of the Defendant No.1 that the said sale deed was not cancelled and that it was executed by Hanumantha

Reddy having right and interest over the properties shown therein. He deposed that

VII ADJC,KNL20AS 41-2022 he does not know as to the date of cancellation of the said sale deed. When PW1 was shown the certified copy of the document bearing No.126/1997 (Ex.B7) and asked about the Eastern boundary, he answered that it may be true that the Eastern boundary is shown as N.Rama Krishna Reddy and Chinna Krishna Reddy’s lands.

The said N.Rama Krishna Reddy and Chinna Krishna Reddy’s, whose lands are shown in Ex.B7 towards Eastern side boundary, are none other that Defendant No.2 and his brother. Hence, if at all in the year 1997 itself, N.Hanumantha Reddy who is the brother of Pedda Reddy sold away some part of Sy.No.105 and in the Eastern side boundary, the names of Defendant No.2 and his brother Rama Krishna Reddy were mentioned, the plea of the plaintiff that the said Pedda Reddy inherited the entire extent of Ac.21.44 cents in Sy.No.105 and that none of his brothers got any share in the said survey numbers, seems to be in correct. Further while PW1 voluntarily deposed that Ex.B7 was subsequently cancelled, he did not file any document to prove the same. PW1 further deposed that one Venkatarami Reddy has challenged

Ex.B7. However, PW1 did not file any document to show that Ex.B7 was challenged by the said Venkatarami Reddy.

22.Another point to be considered is that while the plaintiff could not prove that

Ex.B7 was challenged by any person, a perusal of the recitals of Ex.B7 shows that the

Defendant No,.3-N.Venkata Ramana Reddy son of Venkatarami Reddy acted as 3rd

VII ADJC,KNL21AS 41-2022 attestor and signed on it. Admittedly, the Plaintiff is claiming ownership over the plaint schedule property through the Defendants 3 and 4 only. Hence, if the entire extent of Sy.No.105 of Polakal Village really fell into the share of Pedda Reddy, how his brother Hanumantha Reddy sold away Ac.8.00 cents out of Ac.21.44 cents in

Sy.No.105 of Polakal Village and why the Defendant No.3 acted as attestor to it is not explained anywhere.

23.Furthermore PW1 has examined one Naganna, who is the attestor of Ex.A1, as

PW2. The evidence of PW2 shows that he has supported the version of the defendants, instead of the Plaintiff. Though PW2 in his examination in chief deposed that he along with K.Beerappa and N.Yesanna attested Ex.A1 sale deed and that ever since the date of purchase, the Plaintiff is in possession and enjoyment of the plaint schedule land, during his cross examination, he categorically admitted that he does not know the contents of the registered sale deed dated 11.03.2010 executed by the

Defendants 3 and 4 in favour of the Plaintiff and that he along with Beerappa and

Yesanna signed on Ex.A1 at the request of the Plaintiff without knowing its contents.

He admitted that in the year 2005, the Defendant No.2 sold away his share in

Sy.No.105 to the Defendant No.1. PW2 further admitted that on 04.02.1997

Hanumantha Reddy sold away some portion of land in Sy.No.105 of Polakal Village to one Y.Narayana Reddy and 3 others and that in the said sale deed, it is mentioned

VII ADJC,KNL22AS 41-2022 that to the East of the said land, there is land of N.Rama Krishna Reddy and Chinna

Krishna Reddy. The deposed that he does not know who got shares in Sy.No.105 among the said 5 brothers of Pedda Reddy. He further deposed that he does not know that the entire land in Sy.No.105 fell into the share of N.Narayana Reddy and

N.Hanumantha Reddy alone. Hence, the evidence of PW2 does not support the evidence of PW1 and Ex.A1.

24.In order to prove his right and title over the plaint schedule property, the plaintiff filed Exs.A1 to A5. Ex.A1 is the sale deed dt.11.03.2010 allegedly executed by Defendants 3 and 4 in favour of the Plaintiff. A perusal of Ex.A2 i.e., certified copy of the plaint in O.S.NO.499/2011 on the file of Principal Junior Civil Judge’s

Court, Kurnool filed by the Defendant No.1 against the Defendant No.2 and the

Plaintiff shows that the Defendant No.1 is claiming that he purchased Ac.6.00 cents in Sy.No.105 through Defendant No.2 by way of Ex.B2/sale deed. The Defendant

No.1 has filed the certified copy of the I.A.No.1449/2011 in O.S.No.499/2011 dated 19.12.2011 wherein the injunction order dt.16.08.2011 was made absolute till the disposal of the suit. The said order dt.19.12.2011 shows in the counter, the

Respondent No.2 therein i.e., the Plaintiff herein, contended that one Pedda Reddy was the real owner of the petition schedule property and that the revenue records are standing in the name of the said Pedda Reddy as pattadar. Though in Ex.B1 as well

VII ADJC,KNL23AS 41-2022 as in Ex.A1, it is contended by the plaintiff that the said Pedda Reddy is the real owner of the property in Sy.No.105, the pleadings of the Plaintiff in the instant case shows the contrary. Further more that the Plaintiff has filed the certified copy of the record of holdings as Ex.A3, the same is not useful for his contentions. The Plaintiff has filed Ex.A4 and Ex.A5 sale deeds dt.13.07.2011 and 14.03.2011 respectively executed by Defendant No.4 in favour of K.Krishna Reddy and P.Venkateswara

Reddy. A perusal of Exs.A4 and A5 show that the Defendant No.4 had sold away

Ac.2.40 cents and Ac.1.00 cents respectively in Sy.No.105 of Polakal Village to the said vendees. The contention of the Plaintiff is that in Exs.A4 and A5, the Defendant

NO.2 and his brother N.Rama Krishna Reddy signed as attestors respectively. He contended that if at all, Defendants 3 and 4 did not inherit the property in Sy.No.105 of Polakal Village, why the Defendant No.2 and his brother Rama Krishna Reddy signed as attestors in Exs.A4 and A5. A perusal of Exs.A4 and A5 show that

Defendant No.2 and his brother Ramakrishna Reddy signed on them as attestors respectively. Though Defendant No.2 and his brother signed as attestor in Exs.A4 and A5, the said fact itself will not confer any right to the Plaintiff to any property as

Exs.A4 and A5 were executed subsequent to Ex.A1. As of now, except Ex.A1/sale deed, the Plaintiff has not filed any other document to prove that Defendants 3 and 4 executed sale deed in favour of the Plaintiff in respect of the plaint schedule property.

VII ADJC,KNL24AS 41-2022

Further more as noted above, the line/chain of acquisition of title from the original owner Rami Reddy to the Defendants 3 and 4 is not proved by the Plaintiff as the nature of acquisition shown in Ex.A1 and Ex.B1 is contrary to the pleadings of the

Plaintiff. Hence, this Court feels that the Plaintiff could not prove the right of his vendors over the plaint schedule property. Hence, when the vendors of the plaintiff do not have any right to execute sale deed in respect of the plaint schedule property, the Plaintiff will not get any title/right over the same.

25.On the other hand, the Defendant NO.1 has filed the sale deed dated 04.02.2005 executed by the Defendant No.2 in his favour and also examined DW2 to prove his contention. As noted above, though the Plaintiff is challenging Ex.B2/ sale deed, during his cross examination, he categorically deposed that he does not know whether the Defendant No.1 purchased the plaint schedule land from the Defendant

No.2. PW2 admitted that the Defendant No.2 sold away his share in Sy.No.105 to the Defendant NO.1 in the year 2005. Hence, while the Defendant No.1 could prove the execution of Ex.B2 in his favour, the Plaintiff could not prove the execution of

Ex.A1 as well as his right to the plaint schedule property.

26.The learned trial Court discussed above said issues and in Para-12 of the judgment the learned trial Judge held that “Though it is contended by the

Plaintiff/PW1 in pleadings as well as in evidence that his vendors/D3 and D4

VII ADJC,KNL25AS 41-2022 inherited the suit schedule property from their father N.Venkata Rami Reddy and enjoyed the same, no supporting material is filed by him to prove it”. The learned

Trial Court further held that according to the Plaintiff after the demise of N.Pedda

Reddy in the year 1982, all his properties including the suit schedule property was devolved upon his only son Venkatarami Reddy, who is the father of the Defendants 3 and 4, but there is no evidence to believe it, except the oral testimony of PW1.

Further it is not established by the Plaintiff that the grand-father of Defendants 3 and 4 by name N.Pedda Reddy derived the suit schedule property from his father N.Rami

Reddy. If really the Defendants 3 and 4 have got the total land in suit Sy.No.105 from their father, why the Defendant No.4 alone executed Exs.A4 and A5 sale deeds in the year 2011 in favour of the third parties for some extent of land in that survey number and why they jointly executed Ex.A1 in favour of the Plaintiff for the suit schedule property. Moreever, except the registered sale deed/Ex.A1, no other supporting material is placed by the plaintiff to prove that he acquired ownership right to the suit schedule property. Ex.A3/record of holdings for Sy.No.105 stands in the name of deceased Rami Reddy and it does not disclose anything about the right, title and possession of the Plaintiff or his vendors over the disputed property.

27.The learned trial Court further analyzed the evidence of PW2 and held that in view of the inconsistencies in the evidence of PW2, it can be safely concluded

VII ADJC,KNL26AS 41-2022 that the evidence of PW2 is no way helpful to the plaintiff. It further held that merely because the registered sale deed/Ex.A1 stands in the name of the Plaintiff, he would not be treated as absolute owner of the suit schedule property by virtue of it. It held that the title of immovable property can be ascertained by perusing relevant documents and it is pertaining to such property and that it does not mean that each of every person who possessed a registered document would be treated as absolute owner of the property. It further held that the ownership of the property is required to be complete, fair and free from any doubt risk and interest. It further held that “in the instant case, the Plaintiff failed to establish the title of his vendors over the suit schedule property as on the date of transaction under Ex.A1. The flow of title to the suit schedule property from one person to another, right from the original owner

M.Rami Reddy is also not established. Therefore, it cannot be said that the Plaintiff acquired ownership right to the suit schedule property by virtue of the registered sale deed/Ex.A1”. The learned Trial Court further held that in 16th parathat“On the other hand, the contesting first defendant/DW1 averred in pleadings as well as in evidence that the entire land in suit Survey No.105 was fell to the share of N.Narayana Reddya nd N.Hanumantha Reddy in oral partition took place among the five sons of deceased

N.Rami Reddy and after the demise of N.Narayna Reddy, his two sons namely

Ramarkrishna Reddy and Chinna Krishna Reddy/D2 inherited all his properties

VII ADJC,KNL27AS 41-2022 including an extent of Ac.6.00 cents each in suit Survey No.105. In turn, the second defendant sold away his Ac.6.00 cents land in suit Survey No.105 to him under the registered sale deed dated 04.02.2005 and since then he has been enjoying the same absolutely”.

28.The learned trial Court further held that “it is a trite law that in a suit for declaration of title, the burden always lies on the Plaintiff to make out and establish a clear case for granting such declaration of title and he cannot place any reliance on the loopholes in the case of the Defendant.” It further held that considering the facts and circumstances, it can be safely concluded that the registered sale deed dt.11.03.2010 vide Doc.No.472/2010 (Ex.A1) is not true, valid and binding on the defendants and that the Plaintiff failed to establish his right and title over the plaint schedule property. Accordingly, it answered issues 1 and 4 against the Plaintiff and in favour of the Defendants.

29.The learned trial Court further held in its judgment dated 05.09.2022 that with regard to the possession of the Plaintiff over the suit schedule property, though the entries in Revenue records and Exs.B3, B5 and B6 do not create or extinguish title to the disputed property, they are relevant and admissible to the extent of possession of the Defendant No.1 over the schedule property. It held that a conjoint perusal of all these facts goes to reveal that the Defendant No.1 was in possession and

VII ADJC,KNL28AS 41-2022 enjoyment of the plaint schedule land as on the date of filing of the suit. Holding the same, the learned trial Court answered the issues 3 and 6 against the Plaintiff and in favour of the Defendants.

30. Regarding issues 2 and 5, the learned trial Court held that as the Plaintiff failed to establish his right, title and possession over the suit schedule property, he has no right to question the Ex.B2 sale deed dated 04.02.2005 executed by the Defendant

No.2 in favour of the Defendant No.1 and that the genuineness of Ex.B2 sale deed cannot be decided in this suit and that the Plaintiff has no right to ask for cancellation of the same as he is not a party to the document. Holding the same, the learned Trial

Court answered all the issues against the Plaintiff and in favour of the Defendants and ultimately dismissed the suit without costs.

31.Considering the facts and circumstances of the case and the aforesaid discussion, it is clear that the reasons given by the learned Trial Court for arriving at the judgment are made on reasonable grounds and sound principles of law. As noted above, the Plaintiff, except filing a sale deed in his favour, could not prove the right and title of his vendors over the plaint schedule property and further as there are discrepancies between Exs.A1, Ex.B1 and the pleadings of the Plaintiff regarding the nature of acquisition of the property in Sy.No.105 by N.Pedda Reddy and as PW2 did

VII ADJC,KNL29AS 41-2022 not support the case of the Plaintiff, this Court feels that the Plaintiff could not prove any of his contentions regarding his right and title.

32.Further regarding the possession of the Plaintiff over the plaint schedule property, while PW1 deposed that since the date of execution of Ex.A1, he is in possession and enjoyment of the suit schedule property, PW2 during his cross examination admitted that in the year 2005, the Defendant No.2 sold out his share in

Sy.No.105 to the Defendant No.1 and ever since the same, the Defendant No.1 has been in possession and enjoyment of the same. He deposed that the land referred by him in his chief affidavit i.e., Ac.6.42 cents is kept as barren land and nobody is enjoying the same. PW2 went to the extent of admitting that the averments made in his chief affidavit that the Plaintiff is in possession and enjoyment of the above said land, is false. He deposed that he does not know as to what crop was raised for this year in the above said land. Hence, it is clear from the evidence of PW2 that he has supported the version of the Defendant No.1 with respect to the possession of the suit schedule property, instead of the Plaintiff. Hence, when the Plaintiff’s own witness deposes that the Defendant No.1 is in possession and enjoyment of the suit schedule property and that the Plaintiff is not in possession and enjoyment of the plaint schedule property, it is clear that the Plaintiff could not prove his possession over the plaint schedule property. Hence, when the Plaintiff could not prove his possession

VII ADJC,KNL30AS 41-2022 over the plaint schedule property and when Exs.B3 to B6/ prima-facie prove that the suit schedule property is in possession and enjoyment of the Defendant No.1, the

Plaintiff is not entitled for grant of permanent injunction. Hence, in view of the aforesaid discussion, as the Plaintiff could not prove that he is having right, title and possession over the suit schedule property by virtue of Ex.A1 and that his vendors i.e., Defendants 3 and 4 were having valid right to execute Ex.A1 in his favour, the

Plaintiff is not entitled for any of the reliefs claimed. Hence, this Court feels that the reasons given by the learned trial Court for dismissal of the suit is based upon reasonable grounds and that it does not need any interference. Hence, the appeal is dismissed, but without costs.

33.In the result, the appeal is dismissed, but without costs.

Dictated to the Stenographer Gr.1, transcribed by him, corrected and

pronounced by me in open Court, this the 07 th day of April, 2025.

VII ADDITIONAL DISTRICT JUDGE,

KURNOOL

-

APKU160004582025

IN THE COURT OF THE VII ADDITIONAL SESSIONS JUDGE,

KURNOOL.

PRESENT: Smt V.Lakshmi Rajyam, VII Additional Sessions Judge, Kurnool.

Wednesday, the 22nd day of April, 2026.

CRIMINAL APPEAL NO.51 of 2023

From what Court Judicial Magistrate of First Class, Dhone. the appeal is preferred Number of the Case inCalendar Case No.143 of 2014. that Court Description of theS.Noorjahan, Wife of Munaf, aged about 60 appellantyears, Muslim, Resident of House No.25-120- 13-1, Near CPI Office Lane, Dhone Town and Mandal, Nandyal District.

Description of theB.Eswaraiah, Son of B.Yangaiah, Hindu, RespondentResidentofHouseNo.26-58-2, Chigurumanupeta, Dhone Town and Mandal, Nandyal District. The Judgment In the result, the accused is found guilty for the passed by the Loweroffence punishable under Section 138 r/w 142 Court to the of The Negotiable Instruments Act, 1881 and appellantaccordingly, she is convicted under Section 255 (2) of Cr.P.C. and sentenced to suffer imprisonment for a period of six months and also liable to pay a fine of Rs.1,00,000/- and the fine amount shall be converted into compensation under Section 357 of Cr.P.C. which is Ex.P1 cheque amount and in default of payment of compensation, the accused shall undergo simple imprisonment for a period of three months.

2

Whether the appealCONFIRMED. confirmed, reversed or In the result, the Criminal Appeal No.51/2023 is modifiedbythe dismissed, confirming the Judgment dated Appellate Court 27.02.2023 passed in Calendar Case No.143/2014 by the learned Judicial Magistrate of First Class, Dhone and as such, Appellant/Accused/S.Noorjahan shall undergo the sentence imposed by the Trial Court. Date of Presentati FilingNoticeRespon- HearingJudgment onissued bydent the Courtordered to appear 09.03.202309.03.2014.03.202310.05.202308.04.2021.04.20 232626

This appeal came up on 08.04.2026 for hearing before me in the presence of Sri N.Siva Prasad Gupta, Advocate for the appellant and of

Sri G.Nagaseshaiah, Advocate for the respondent; having heard on both sides; upon perusal of the record and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The Appellant/S.Noorjahan was the accused in C.C.No.143/2014, while the respondent/B.Eswaraiah was the complainant in

C.C.No.143/2014 on the file of Judicial Magistrate of First Class, Dhone.

2.The Judicial Magistrate of First Class, Dhone vide its Judgment

dated 27.02.2023 found the accused/S.Noorjahan guilty for the offence

punishable under Section 138 of The Negotiable Instruments Act, 1881 (hereinafter called as, the Act) and it convicted the Accused and sentenced her to undergo simple imprisonment for six months and to pay fine of Rs.1,00,000/- and that the said fine amount shall be converted into compensation under Section 357 of Cr.P.C. and in 3 default of payment of said compensation, the accused is sentenced to undergo simple imprisonment for three months. Aggrieved by such

Judgment dated 27.02.2023, the Appellant/Accused/S.Noorjahan filed this appeal before the Hon'ble Principal District & Sessions Judge,

Kurnool, who inturn made over the same to VI Additional Sessions

Judge, Kurnool. It is pertinent to note that, when the matter was posted

for arguments, this case was transferred from the said Court to this

Court vide proceedings of the Hon'ble Principal District Judge, Kurnool in Dis.No.1256/OP-Cell/2025, dated 05.03.2025.

3.Before the appeal is considered, it is necessary to consider the case of the parties in C.C.No.143/2014.

4.Brief Facts of the Case of the Complainant:

The brief reference to the facts of the case would be sufficient for determination of the appeal:-

The complainant/B.Eswaraiah filed the complaint under

Section 138 of the Act against the accused/S.Noorjahan alleging that, the accused borrowed an amount of Rs.1,00,000/- from him on 01.06.2013 and issued a cheque bearing No.026734 drawn in favour of the complainant on State Bank of India, Dhone to discharge the hand loan obtained from him on 01.06.2013 and the accused requested him to present the same after ten days. The complainant averred that, on 12.06.2013, he presented the said cheque bearing No.026734 dated 01.06.2013 for Rs.1,00,000/- in Syndicate Bank, Dhone for collection but the said cheque was dishonoured on 17.06.2013 for the reason “funds insufficient”. The complainant averred that he got issued legal notice to the accused on 01.07.2013 and that the said notice was served to the accused on 05.07.2013 but the accused issued reply 4 notice with false allegations only for evading the payment. He averred that, as the accused did not pay the cheque amount within thirty days from the date of receipt of information about the dishonour of cheque, he has filed the complaint on 05.08.2013 under Section 138 r/w 141 and 142 of the Act.

5.Cognizance of the Court:-

As seen from the record, the Judicial Magistrate of First Class,

Dhone took cognizance of the case for the offence under Section 138 of the Act. After the accused/S.Noorjahan made appearance before the

Trial Court, the Trail Court examined her under Section 251 of Cr.P.C.

and substance of accusation for the offence under Section 138 r/w 142 of the Act was put to her. The accused denied the commission of offence, pleaded not guilty and claimed to be tried.

6.As seen from the record, during the course of trail, the complainant/B.Eswaraiah examined himself as P.W.1 and got marked

Ex.P1 to Ex.P6.

Description of the Exhibits:

Ex.P1: Original Cheque bearing No.026734, dated 01.06.2013 for

Rs.1,00,000/-.

Ex.P2: Presented voucher, dated 12.06.2013.

Ex.P3: Cheque return memo, dated 17.06.2013.

Ex.P4: Office copy of legal notice, dated 01.07.2013.

Ex.P5: Served postal acknowledgment card.

Ex.P6: Reply notice given by the accused, dated 09.07.2013.

7.After closure of the evidence of the complainant, the accused was examined under Section 313 of Cr.P.C. and the incriminating evidence 5 appearing against her was put to her. She denied the same and reported that she has defence evidence.

8.During the defence evidence, the accused/S.Noorjahan got examined herself as D.W.1 and further got summoned and examined

Mahesh Kumar Yadav, Deputy Branch Manager, State Bank of India,

Dhone as D.W.2, but no documents were marked on her behalf.

9.Findings/Judgment of Trail Court:-

After considering the evidence of P.W.1, D.W.1, D.W.2 as well as

Ex.P1 to Ex.P6 and the scope of Sections 138 and 139 of the Act, the

Trial Court found the accused/S.Noorjahan guilty for the offence under

Section 138 r/w 142 of the Act and convicted her under Section 255 (2) of Cr.P.C. for the offence under Section 138 of The Negotiable

Instruments Act, 1881.

10.Grounds of Appeal:- The accused/S.Noorjahan filed the present appeal questioning the above Judgment dated 27.02.2023 both on facts and law. As seen from the record, the accused/S.Noorjahan has questioned the legality of the Judgment on several grounds inter-alia; i.That, the sentence and conviction on the accused is neither maintainable under law nor on facts of the case and the same is contrary to the evidence on record.

ii.That, the Trial Court failed to appreciate the evidence on record placed before the Court and passed Judgment in a routine manner without appreciating the evidence.

iii.That, the Trial Court failed to see that in all criminal cases, the burden of proof is on the complainant/prosecution and 6 when the complainant failed to do so beyond reasonable doubt, the accused shall be discharged and benefit of doubt has to be given to the accused.

iv.That, the Trail court failed to see that lending huge amount of Rs.1,00,000/- without any supporting document creates serious doubt.

v.That, the Trial court failed to see that Ex.P1/Cheque in question was lost in Gooty while the accused was travelling and she gave complaint to the Station House Officer, Gooty but they failed to register her complaint.

vi.That, the Trail Court failed to see that the complainant failed to establish the lending of amount of Rs.1,00,000/- to the accused and so, the Trial Court ought to have dismissed the complaint.

vii.That, the Trail Court failed to see that the complainant failed to prove that Ex.P1/Cheque was issued in discharge of the legally enforceable debt and that, the Trial Court ought to have dismissed the complaint.

viii.That, the Trail Court miserably failed to frame correct point for consideration and gave weightage to the evidence of complainant instead of the accused.

Hence, the Appellant/Accused prayed this Court to set aside the sentence and conviction order passed by the

Judicial Magistrate of First Class, Dhone in

C.C.No.143/2014, dated 27.02.2023 by allowing the appeal.

7

11.Arguments:-

The learned counsel for the Appellant/Accused has filed memorandum of oral arguments in lieu of his oral arguments and in such arguments, he has reiterated the contents of his memorandum of appeal grounds. The respondent/complainant did not choose to put forth his arguments in spite of several adjournments and as such, on 08.04.2026, the respondent side arguments were treated as nil.

12.Point (s) for C onsideration:-

Considering the contentions of complainant, the evidence on record, both oral and documentary in nature, the Judgment dated 27.02.2023 of the Trial Court, the grounds of appeal and the submissions of the learned counsel for the appellant/accused, this Court has to examine,

“Whether there are any justifiable grounds to set aside or

modify the Judgment dated 27.02.2023 passed by the Judicial

Magistrate of First Class, Dhone in C.C.No.143/2014?”

or to put it otherwise,

“Whether the complainant/B.Eswaraiah made out a case

under Section 138 of the Act against the accused which warranted

conviction?”

13.In order to examine the above aspect, this Court has to examine the entire evidence, if required, let-in by the parties before the Trial

Court and the legal aspects of Section 138 of the Act.

8

Section 138 of the Act

Section 138 of the Act reads as follows:-

“138. Dishonour of cheque for insufficiency, etc., of funds in

the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless —

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque (within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the 9 holder in due course of the cheque, within fifteen days of receipt of the said notice.

Explanation - For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.

14.In a case under Section 138 of Negotiable Instruments Act, the complainant has to lead prima-facie evidence suggesting that the ac- cused/S.Noorjahan issued the cheque in discharge of legally enforce- able debt. Once the complainant discharges the initial burden, the presumption under Section 139 of Negotiable Instruments Act would come into play and the accused/S.Noorjahan has to rebut it in the manner known to law. The accused/S.Noorjahan need not rebut it be- yond reasonable doubt but it would be suffice if she can lead evidence to show that the Cheque was never issued by her and that too, in dis- charge of any legally enforceable debt. The degree of proof required to substantiate the plea of the accused/S.Noorjahan is like the degree of proof required in Civil Cases i.e., preponderance of probabilities but it is not the proof beyond reasonable doubt.

15.In a case under Section 138 of The Negotiable Instruments Act, 1881, the complainant/B.Eswaraiah has to prove the following:

1. Existence of legally enforceable debt

2. Accused issuing the cheque in discharge of such legally en- forceable debt.

3. Presentation of cheque for collection within its period of valid- ity.

4. Dishonor of cheque on one of the grounds which invite an offence under Sec.138 of Negotiable Instruments Act.

5. Issuance of legal notice under Section 138 of Negotiable In- struments Act.

10

6. Filing of complaint before the jurisdictional Court within the time stipulated by law.

16.Presentation of Cheque, its dishonour, issuance of legal notice under section 138 of N.I.Act and its service:

At first, above aspects should be examined. As noted above, it is the case of the complainant/B.Eswaraiah that the accused/S.Noorjahan borrowed an amount of Rs.1,00,000/- from the complainant on 01.06.2013 as the complainant and the husband of accused are family friends and that the accused issued a cheque bearing No.026734 under

Ex.P1 in favour of the complainant drawn on State Bank of India, Dhone

Branch in discharge of the hand loan on the same day and asked the complainant to present the same after ten days. He averred that, he presented the said cheque in Syndicate Bank, Dhone for collection on 12.06.2013 as found in Ex.P2/Counterfoil, but the said cheque was dishonoured and returned on 17.06.2013 vide Ex.P3/cheque return memo due to the reason, ‘funds insufficient’. It is his case that he got issued legal notice/Ex.P4 to the accused on 01.07.2013 and that the said notice was served to the accused on 05.07.2013 as found in

Ex.P5/Postal acknowledgment and that the accused issued reply notice (Ex.P6) on 09.07.2013 with false allegations in order to evade payment.

During the course of trial, P.W.1/B.Eswaraiah gave evidence on the above aspect. The accused is disputing her signature on Ex.P1/Cheque as well as issuance of Ex.P1/Cheque but she is not disputing the issuance of Ex.P4/legal notice and its service. As seen from the complaint, the complainant/B.Eswaraiah filed the complaint on 05.08.2013. Thus, it is evident that the complainant has presented the complaint before the proper Court, under Section 138 of the Act. All the above aspects stood proved.

11

17.Existence of legally enforceable debt and issuance of cheque in respect of such legally enforceable debt:-

As noted above, it is the case of complainant/B.Eswaraiah that the accused/S.Noorjahan borrowed an amount of Rs.1,00,000/- on 01.06.2013 executing Ex.P1/Cheque bearing No.026734, dated 01.06.2013 for Rs.1,00,000/-. During the course of trail, P.W.1 gave evidence about the said aspects. Upon considering the entire evidence, it can be said that complainant/B.Eswaraiah has discharged his initial burden cast upon him under Section 118 of the Act. The accused/

S.Noorjahan denied her signature appearing on Ex.P1/Cheque. Hence, when P.W.1 has given evidence and also filed the original cheque said to have been issued by the accused before the Trial Court, a presumption under Section 139 of the Act would get attracted.

18. In a decision reported in A.I.R 2010 S.C. 1898 in the case of

Rangappa vs Mohan, the Hon'ble Apex Court while dealing with

Secs.138 & 139 of N.I. Act had incidentally referred itself to Sec.118(a) of N.I. Act. In such decision the Hon'ble Supreme Court held that the presumption drawn u/sec.118(a) of N.I Act cannot be discharged by merely making some baseless suggestions. It referred itself to the decisions reported in A.I.R.2008 S.C 2898 in the case of Mallavarapu

Kasi Visweswararao vs Thadikonda Ramulu Firm and other wherein it was observed “under section 118 (a) of the Negotiable Instruments

Act, the Court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such 12 facts and circumstances which would lead the court to believe the non- existence of consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal”.

19. In the above said judgment, the Supreme Court had referred itself to a decision reported in A.I.R.1999 S.C.1008 in the case of Bharath

Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal

wherein it was observed that 'upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted the presumption u/sec.118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of Negotiable Instrument. The burden upon the defendant of proving the non-existence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. ...........the bare denial of the passing of consideration apparently does not appear to be a defence......”

20.The ratio of the above decisions squarely apply to cheques also.

Once prima-facie the complainant/B.Eswaraiah had established the existence of legally enforceable debt and that the accused/ S.Noorjahan had issued the cheque in discharge of such legally enforceable debt, 13 the accused has two options in rebutting the presumptions under

Section 139 of the Act. The first option is that the accused can rebut presumption by leading positive evidence or she can fall back upon the cross-examination of the complainant and his witnesses. In the instant case, the accused has cross-examined P.W.1 and also lead positive evidence by examining herself as D.W.1 and also examined Deputy

Branch Manager, State Bank of India, Dhone as D.W.2. Thus the Court has to consider whether the evidence of P.W.1, D.W.1 and D.W.2 has made the accused to rebut the presumption under Section 139 of the

Act. As seen from the Trial Court record, P.W.1/B.Eswaraiah filed his chief-affidavit in lieu of his examination-in-chief and in such evidence, he has reiterated the contents of his sworn affidavit.

During his cross-examination, he deposed that, one Ranga

Swamy and Moulali were present at the time of lending Rs.1,00,000/- to the accused. He admitted that he is deposing the same for the first time

before this Court. He deposed that, according to him, the accused can

write but cannot read. He deposed that, by the time he gave the amount to the accused, her husband was no more but she has two sons. He deposed that, the accused asked Rs.1,00,000/- as her son was not feeling well. He admitted that, in the complaint, Ex.P4 and his chief- examination, the reason for receiving Rs.1,00,000/- by the accused is not mentioned. He denied the suggestion of the accused that as he did not lend any amount to the accused, the reason for lending the same is not mentioned in the above said documents. He further admitted that he has not mentioned anywhere about the source of said Rs.1,00,000/-.

He admitted that, in his complaint, Ex.P4 and chief-affidavit, there is no mention about particulars like where and at what time, he had given the hand loan of Rs.1,00,000/- to the accused. He deposed that, from the year 2014, he had filed three cases under Section 138 of N.I. Act and 14 got filed three civil cases on the basis of promissory notes before the

Civil Courts but he did not obtain any attachment order from any Civil

Court. He admitted that, on 01.06.2013, there was no amount in the account of accused. He denied the suggestion of the accused that the accused issued Ex.P6/ reply notice by saying that her cheque was lost and that, if it was found, she requested to give back the same. He further denied the suggestion of accused that lending of Rs.1,00,000/- to the accused is false and that the signature appearing on Ex.P1 is not that of the accused and that, she is noway connected with the averments made in Ex.P1.

He further denied the suggestion of accused that he had lodged false complaint in order to get wrongful gain from the accused and that he is not having capacity to lend Rs.1,00,000/- and the accused has no necessity to borrow the same. He deposed that, he is the complainant in a case registered under Section 307 of IPC and one Eswaraiah was the accused in the said case. He deposed that, he is the accused in one call money criminal case and appearing before the Court. He deposed that the accused attempted to kill him with regard to plot issue.

21.The accused/S.Noorjahan got examined herself as D.W.1 and she filed chief-affidavit in lieu of her examination-in-chief in which she deposed that the complainant is a professional money lender and he filed number of suits as well as private complaints at Dhone and

Kurnool and he is also an accused in call money case which is pending for trial before the Trial Court. She deposed that, she is the wife of retired railway employee and one of her sons died due to ill health and another son is working in railways under compensatory grounds of her husband. She deposed that, the complainant filed a suit and got attached the death benefits of her husband and also filed a suit at 15

Kurnool and got attached the salary of her son. She deposed that, she used to keep some cheques by signing and some unfilled cheques along with her passbook which is usually carried by her son. She deposed that, while her son went to Gooty, he lost the cheques along with bank passbook for which she lodged a report before Station House

Officer, Gooty but the police did not register any case but they entered the same in G.D. and assured that the police will handover the same to her if it is traced. She deposed that, subsequently to her astonishment, after receiving the notice from the complainant stating that she issued cheque in his favour for discharge of the loan amount, on which she issued proper reply (Ex.P6) requesting him to return the cheque as it was misplaced. She deposed that, inspite of his request, the complainant filed the complaint taking advantage of the said cheque.

She deposed that, she is an illiterate and does not know reading and writing except cheque leaf. She deposed that, the signature on the cheque does not belong to her and that the columns in the cheque were also not filled by her. She deposed that, the cheque is not a valid one and it ought to have been returned by the banker as the signature is not that of her but the banker did not compare her signature and did not verify the instrument, the name of the payee is incomplete and the handwriting on the instrument is different for each column but the complainant managed the bank authorities and got return memo as the instrument was returned due to funds insufficient in her account to

honour the cheque. She deposed that, the complainant is a powerful

person and that, she cannot match him as she is leading miserable life as she surrendered major part of her pension to railways in order to discharge the debt incurred for the ill health of her son.

During her cross-examination, she deposed that, she is the second wife of her husband and that, her husband used to work as 16 cooking master in railway department. She deposed that, according to her, she has taken loans from Bhaskar, Maddamma and Gurramma and repaid the same. She deposed that, she does not know whether the complainant got filed the suit and got attached the death benefits of her husband. She deposed that, she obtained cheque book but she did not issue any cheque in favour of anyone. She deposed that, the signature shown to her on Ex.P1 does not belong to her and that, she does not know the cheque leaf number which was lost. She deposed that, they were in train when the cheque leaves were missed and that they gave report in Gooty Railway Station. She admitted that she did not mention the exact cheque leaf numbers which were lost. She deposed that, she did not give any report in Dhone Police Station and did not file any FIR copy to show that she gave report in Gooty Railway Station. She admitted that the account number on Ex.P1 belongs to her. She further deposed that, she never complained to higher officials for not giving the

FIR copy by Gooty Railway Police Station. She denied the suggestion of complainant that she has borrowed amount from the complainant and issued Ex.P1/Cheque and that, she is deposing falsehood only in order to evade payment and that, her cheque leaves were never missed.

22.The accused/S.Noorjahan has got summoned and examined one

Mahesh Kumar Yadav as D.W.2. D.W.2 deposed that he has been working as Deputy Branch Manager in State Bank of India, Dhone

Branch for the past six months and that, he has been summoned by

Court to give evidence vide Orders in Crl.M.P.No.1744/2022. He deposed that, their customer is esteemed for them and that, bank always protects the rights of customers against the third person. He deposed that, he has knowledge of all the branch work. He deposed that, Rs.1,00,000/- is not a small amount. He further deposed that, there 17 are changes in honouring and dishonouring the cheques in 2013 and at present and that the bank can reject the cheque if there is no signature of drawer of cheque; if the signature of the drawer of cheque and specimen signature with the bank is not tallied; if the name of the payee is not mentioned on the cheque and also overwriting on the cheque and the signature of the drawer of the cheque or if the cheque is presented after lapse of so many years. He admitted that, each column in

Ex.P1/Cheque is written with different ink and different style. He deposed that, the name of payee in Ex.P1/Cheque is incomplete. He further deposed that, there is overwriting in the signature of drawer on

Ex.P1/Cheque, so Ex.P1/Cheque is directly liable to be rejected. He further deposed that, after going through the signature of the drawer, payee and other formalities and if found them to be correct, they will check the account of the drawer even if the cheque is presented directly or through other bank. He deposed that, he was not the Deputy Branch

Manager in the year 2013 in Dhone. He deposed that, he cannot say that the complainant got managed the then Branch Authorities and made them to issue Ex.P3/return memo.

23.Considering the above evidence of P.W.1, D.W.1 and D.W.2, as seen from the cross-examination of P.W.1 and the evidence of D.W.1, it was suggested to P.W.1 that Ex.P1/Cheque was not issued by the accused in favour of the complainant and that the signature appearing on Ex.P1 does not belong to the accused. It is the specific contention of the accused that when she along with her son were going in train, some cheque leafs belonging to her was lost along with passbook and that though they have given report to railway authorities in Gooty Railway

Station, they did not take any action. The said suggestions were denied by P.W.1. Hence, the accused is taking two pleas, one that 18

Ex.P1/Cheque does not contain her signature and second, that she lost cheque leaves in train and that the complainant had managed to take one of those misplaced cheque leaves and filed the complaint basing on it. Regarding the signature of accused on Ex.P1 is concerned, eventhough it was contended by D.W.1 that the signature appearing on

Ex.P1 does not belong to her, the accused has not made any effort to send the disputed signature on Ex.P1 with her admitted signatures to the handwriting Expert for eliciting the truth. On the other hand, it is pertinent to note that D.W.1 in her chief-examination affidavit, categorically deposed as follows:- “Generally, I used to keep some cheques by signing and some unfilled cheques along with my passbook, which is usually carried by my son. While he went to

Gooty, he lost the cheques along with bank passbook, for which I lodged a report before S.H.O. of Gooty, inturn they did not register any case but entered the same in their G.D. and assured me the police will handover to me, if it is traced”.

24.Admittedly, though D.W.1 deposed as above, she has not filed any document to show that she has given report to the police in Gooty about missing of cheque leaves or that they have entered the same in their G.D. The above statement given by D.W.1 in her examination-in- chief clearly shows that she has signed on some cheque leaves and kept the same with her. Further, though according to D.W.1, her son has lost those cheque leaves, during her cross-examination, she deposed as if she was also present in the train when the cheque leaves were misplaced. She deposed that, she gave report in Gooty Railway

Station. She deposed that, she has not filed any FIR copy to show that 19 she gave report in Gooty Railway Station. If at all D.W.1 is confident enough that Ex.P1/Cheque is not containing her signature and that, her cheque leaves were misplaced in train, she ought to have informed her bank authorities about the missed cheque leaves but she did not do so.

Further, though it was suggested to P.W.1 that P.W.1 does not have any capacity to lend Rs.1,00,000/- to the accused and that the accused has no necessity to borrow any amount from any one, the evidence of

D.W.1 herself shows that she is leading a miserable life as she surrendered major part of her pension to railways to discharge the debt incurred for the ill health of her son. Hence, it is clear from the evidence of D.W.1 that she has necessity to borrow amount for the ill health of her son and that she has borrowed amount from many persons. The complainant also deposed that D.W.1 borrowed amount from him for the purpose of her son’s ill health. Hence, it is clear that the complainant could prove the borrowing of amount by the accused from him.

Furthermore, eventhough the accused has examined

D.W.2 and eventhough D.W.2 admitted that there is overwriting in the signature of drawer of Ex.P1/Cheque and that, Ex.P1/Cheque is directly liable to be rejected, during his cross-examination, he deposed that, if there are any writings or overwritings on cheque, they will return the cheque but they will not honour the cheque. He deposed that, there are no strikings on Ex.P1/Cheque. He further deposed that, the name of the payee is without any correction on Ex.P1/Cheque. He further deposed that, in the year 2013, he was not the Deputy Branch Manager in Dhone. Considering the above evidence of D.W.2, it is clear that there are no overwritings or strikings due to which it was dishonoured and that it was returned for reason of funds insufficient but not due to any other reason. Hence, as the complainant has proved all the essential ingredients required for the offence under Section 138 of the 20

Act, it is clear that the complainant could prove that the accused has issued Ex.P1/Cheque without having sufficient funds and that, inspite of issuing Ex.P4/legal notice, she did not pay the cheque amount due to which, the complainant was constrained to file the complaint.

Furthermore, it was suggested to P.W.1 which P.W.1 admitted as follows:- “It is true that on 01.06.2013, there were no amount in the account of accused”.

Hence, when by the date of issuance of cheque there was no amount in the account of accused, issuing a cheque without sufficient funds is an offence which attracts Section 138 of the Act and as such, the accused is liable for its consequences.

25.The learned counsel for the Appellant/Accused filed memorandum of written arguments in lieu of his oral arguments by reiterating the grounds of his appeal. He argued that as per the contention of the complainant, the respondent/complainant sent notice on 01.07.2013, but there is no evidence as to when the said legal notice was posted and that the original postal receipt was not filed by the respondent. He argued that in the acknowledgment card, there is no postal seal specifying the dates as to when the complainant posted and when the accused received and further, there is no seal. He argued that there is no document to show that the appellant borrowed the amount from the complainant and that the complainant has not filed the document or any receipt to prove that the appellant borrowed the amount and the same was admitted by the complainant. He argued that the respondent/complainant did not examine any independent witness for supporting the transactions between the complainant and the accused and that the names of Ranga Swamy and Moulali before whom 21 the amount was allegedly lent to the accused, were mentioned by

P.W.1 for the first time in his cross-examination. He argued that, as per the evidence of P.W.1, he is having fair shop ration card and he is drawing benefits from the Government as he is under below poverty line and as such, when the complainant is a poor person, his financial capacity to lend Rs.1,00,000/- to the accused is doubtful. He further argued that, as per Ex.P1/Cheque, the name of the complainant is incomplete and not visible and further, there is spelling mistake in the name column and rupee column, the complainant’s name is mentioned black in colour, the accused signature is in blue colour and there is overwriting of payee’s name and all the said facts were admitted by

P.W.1 and D.W.2 and as such, the said cheque is liable to be rejected.

He further argued that, P.W.1 during his cross-examination admitted that, he is an accused in call money case and that, SC/ST Cases are also pending against him and as such, it is clear that the respondent/complainant is a habitual litigant who files cases against the innocent persons for extracting money from them illegally. He further argued that the respondent/ complainant stated that he is doing slab business for the past 20 years but he did not choose to file any proof of his business and he did not file any income-tax statement regarding the amount allegedly given to the accused and as such, there is no valid proof of consideration. He argued that, the signature in the deposition of P.W.1 and on the cheque, the name is mentioned differently and that the said cheque was not issued in favour of the complainant. He argued that the learned Trial Court has not verified the evidence on hand and only determined the version of the complainant and passed

Judgment. He argued that, the appellant is an aged person and that the respondent is harassing her in the name of payment for cheque amount.

22

26.Considering the above arguments of the learned counsel for the appellant, though the learned counsel for the appellant argued that there is no mention about the date on which the legal notice was posted and that the original postal receipt was not filed by the respondent/ complainant before the Trial Court and in the acknowledgment card, there is no postal seal specifying the date on which the complainant posted and the date on which the accused received the same, the said contentions are not tenable, as because, admittedly, the accused has received Ex.P4 notice and issued Ex.P6/reply notice on 09.07.2013 which show that the accused has received Ex.P4 notice within time.

Further, eventhough the learned counsel for the accused has argued about the financial capacity of the complainant and non-filing of the documents relating to the complainant to show his source of income, the said contention is also not tenable as P.W.1 is admittedly doing slab business and as such, it can be presumed that he is having source of income. Another contention of the Appellant/Accused is that the details of the cheque are having many mistakes and overwritings, the said contention is also not tenable as the evidence of D.W.2 shows that the said cheque when presented for collection, was dishonoured for the reason “insufficient funds” but not due to any other reason. Regarding the cases filed against the respondent/complainant are concerned, it may be true that there are many cases filed against the complainant, but that itself will not exonerate the Appellant/Accused from discharging the debt due under Ex.P1 when once the complainant proves the issuance of Ex.P1/Cheque in order to discharge the legally enforceable debt. The above discussion clearly shows that the Appellant/Accused could not discharge the burden drawn against her under Section 139 of the Act and that the respondent/complainant could prima-facie prove the execution of Ex.P1/Cheque in favour of the respondent.

23

This Court has considered the entire Judgment of the Trial Court i.e., C.C.No.143/2014, dated 27.02.2023 wherein the learned Trial

Court has discussed all the above said aspects and held that the accused herself admitted that some of the cheques were signed and could not state the cheque leaf numbers which were lost/misplaced, an ordinary prudent person will lodge complaint and can state the cheque leaf numbers which were lost but the accused could not do so and that the version of accused that some of her cheques were misplaced and that the complainant took advantage of the same and got filed the complaint basing on Ex.P1/Cheque is not tenable. The learned Trial

Court held that, after perusal of the entire material available on record, held that the contention of the accused that Ex.P1/Cheque is a forged one cannot be considered as nothing prevented the accused to send

Ex.P1/Cheque to the Expert for opinion and further held that the differences in columns of Ex.P1/Cheque concerning handwriting and the ink of the pen used also cannot be considered by it in view of

Section 20 of the Act. It held that the other plea of accused that the signature of the drawer is overwritten, is not tenable due to the evidence of D.W.2 who in his chief-examination deposed that there is overwriting in the signature of drawer of Ex.P1/Cheque and that, Ex.P1/Cheque is directly liable to be rejected but during his cross-examination, he admitted that there is no instrument to recognize the signature of the customer and the name of the payee is without any correction and they will not be influenced by any customers including the complainant after checking out the funds in the account of the accused and then only, the officials got issued Ex.P3/cheque return memo. It held that, D.W.2 admitted that if there are any strikings or overwritings on cheque, they will return and will not honour the cheque and that there are no strikings on Ex.P1/Cheque. It held that, in view of such material contradictions 24 in the evidence of D.W.2, it is not inclined to consider the plea taken by the accused by simply relying upon the evidence of D.W.2. Ultimately it held that the accused failed to place any cogent or reliable evidence to show that she did not issue Ex.P1/Cheque to the complainant to discharge her liability and that, she could not rebut the presumption drawn against her. Holding the same, the learned Trial Court convicted the accused.

The Judgment of learned Trial Court is found to be correct, both on facts and law. Considering the above said aspects, this Court does not find any grounds to set aside the Judgment of Trial Court. The accused/S.Noorjahan is liable to face the consequences of Section 138 of the Act. Thus, the appeal would fail. Accordingly, the point framed for consideration is answered in favour of respondent/ complainant and against the Appellant/Accused.

27.In the result, the Criminal Appeal No.51/2023 is dismissed, confirming the Judgment dated 27.02.2023 passed in Calendar Case

No.143/2014 by the learned Judicial Magistrate of First Class, Dhone and as such, Appellant/Accused/S.Noorjahan shall undergo the sentence imposed by the Trial Court.

Dictated to the Stenographer Grade-I, transcribed by her,

corrected and pronounced by me in the open Court, this the 22 nd day of

April, 2026.

Sd/- Smt V.Lakshmi Rajyam

VII ADDITIONAL SESSIONS JUDGE,

KURNOOL.

Copy to:

The Judicial Magistrate of First Class, Dhone.

VII ADJC,KNL1AS 67/2023

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE: KURNOOL

PRESENT:- Smt.V.Lakshmi Rajyam,

VII ADDITIONAL DISTRICT JUDGE, KURNOOL,

Thursday, the 08th day of May, 2025.

APPEAL SUIT N0.67/2023.

S.Mukthiar Ahmed, son of late Noor Ahmed, 64 years, Muslim, resident of H.No.43/223-A,

... Appellant/defendant No.1.

Upstairs, N.R.Peta, Opp. Naidu Apartment, Kurnool City, Mandal & District.

-Versus-

1. S.Mahaboob Subhani, son of late Noor Ahmed, 57 years, Muslim, resident of

.....Respondent No.1/ plaintiff

H.No.43/223-A, N.R.Peta, Opp. Naidu No.1 Apartment, Kurnool City.

2. P.Dilshad, wife of Yousuf Khan, 45 years, Muslim, resident of H.No.43/223-A,

... Respondent No.2/plaintiff

Upstairs, N.R.Peta, Opp. Naidu Apartment, No.2 Kurnool City, Mandal & District.

3. Sk.Nisar Bee, wife of Razack Miah, 66 years, Muslim, resident of H.No.43/226-A, N.R.Peta, Opp. Naidu Apartment, Kurnool Respondent No.3 /defendant City, Mandal & District. No. 2

4. Sk.Khairun Bee, wife of Dastagir Saheb, 46 years, Muslim, resident of H.No.1/42, Alamkonda Village, Kattarikonda Post, Respondent No.4 /defendant Krishnagiri Mandal, Kurnool District. No.3

An appeal arose against the decree and judgment dated 12-09-2023 passed by the Principal Senior Civil Judge , Kurnool , in O.S.NO.493/2016.

VII ADJC,KNL2AS 67/2023

Between:

1. S.Mahaboob Subhani.

2. P.Dilshad. …plaintiffs.

And.

1. S.Mukthiar Ahmed.

2. Sk.Nisar Bee.

3. Sk.Khairun Bee. …defendants.

This appeal suit came up on 25-03-2025 for final hearing before me in the presence of S.Md.Haneef, Sri.S.Shafi, Advocates for the Appellant and of

Sri.K.Uma Hanumantha Rao, Advocate for the Respondents, and after hearing both sides, having stood over for consideration till this day, this Court made the following:

: JUDGMENT :

1.The Appellant/defendant No.1 preferred this appeal against the decree and judgment in O.S.No.493/2016 dated 12.09.2023 passed by the Principal Senior

Civil Judge, Kurnool wherein the Trial decreed the suit with costs.

2.The Appellant/defendant No.1 preferred this appeal on the following grounds;

(a)The decree and judgment of the trial Court is against the established principles of law, weight of evidence and probabilities of the case.

(b)The trial Court erred in decreeing the suit without dismissing the same.

(c)The trial Court failed to consider the evidence of Dws.1 and 2 and it ought to have rejected the evidence of PW1 who gave false evidence before the Court.

VII ADJC,KNL3AS 67/2023

(d)The trial Court failed to appreciate the pleadings of the Appellant/ defendant

No.1 that the plaint schedule property was already partitioned orally i.e., by way of oral understanding between the plaintiffs and the defendants.

(e)The trial Court ought not to have appreciated the evidence of PW1 that

Noorjahan had constructed 2nd floor by spending Rs.75,000/- as he did not produce any evidence before the trial Court regarding the same.

(f)The trial Court ought not to have believed the evidence of PW1 that there was an oral understanding to pay some amount to the plaintiff No.2, defendants 2 and 3 towards their shares, as the Appellant and PW1 are residing in the plaint schedule property.

(g)The trial Court ought to have believed the evidence of Appellant that the plaint schedule property is a small extent and that the Municipal Corporation of

Kurnool sanctioned permission for construction of house.

(h)The trial Court ought to have believed the evidence of appellant that he spent

Rs.10,00,000/- towards the constructions of the 1st and 2nd floors over the ground floor of the plaint schedule building on the oral permissions of PW1 and other respondents/defendants 2 and 3.

(i)The trial Court ought to have appreciated the evidence of the appellant that the plaint schedule property was already partitioned in between the Appellant and

PW1 and that the other family members i.e., plaintiff No.2, defendants 2 and 3 gave consent that they do not have any interest in taking share in the plaint schedule property as it is a small extent and that they relinquished their rights over the plaint schedule property.

(j)The trial Court ought to have directed the respondents to pay a sum of

Rs.10,00,000/- to the appellants as he spent the said amount for further constructions of the plaint schedule building with permission of PW1 and other respondents.

VII ADJC,KNL4AS 67/2023

Hence, the Appellant/ defendant No.1 preferred this appeal praying this Court to set aside the impugned judgment and decree dated 12.09.2023 passed in

O.S.NO.493/2016 on the file of Principal Senior Civil Judge’s Court, Kurnool.

3.At this juncture, it is pertinent to note that this appeal was filed before the Hon’ble Principal District Judge’s Court, Kurnool on 16.10.2023 and the same was inturn made over to this Court on 01.11.2023 for disposal according to law.

4.Before merits of the appeal are considered, it is necessary to extract the pleadings of the parties to the suit in O.S.No.493/2016 on the file of Principal

Senior Civil Judge’s Court, Kurnool and so also the evidence on record. For the

sake of convenience, the appellant and respondents are referred with the same names as mentioned in the suit.

5.As seen from the record of the trial Court, the Respondents 1 and 2/ plaintiffs filed the suit in O.S.No.493/2016 for partition of the suit schedule property into 7 equal shares and for allotting 2 such shares i.e., 2/7th share or residuary to the plaintiff No.1 and 1/7th share or residuary in the plaint schedule property to the plaintiff No.2 by metes and bounds, for separate possession and for costs of the suit. The Respondents 1 and 2/plaintiffs 1 and 2 contended in their plaint that the plaintiffs are the own brother and sisters of the defendants and they all are the children of late S.Noorjahan, wife of Noor Ahemmad and that Noorjahan acquired the plaint schedule property by way of gift settlement deed executed by late

Badibee vide document No.2903/1970 dated 11.11.1970 and that the said

Noorjahan accepted the gift settlement deed and took possession of the plaint schedule property and she enjoyed the same with absolute rights. They averred that during the life time of Noorjahan, she has constructed a house with ground floor and first floor and that she has laid down an iron sheeted shed (2 in number)

VII ADJC,KNL5AS 67/2023 in the 2nd floor by spending an amount of Rs.75,000/-. They contended that the said

Noorjahan died, leaving behind her children i.e., plaintiffs and defendants.

6.The Respondents 1 and 2/plaintiffs further averred in their plaint that with an oral understanding among the plaintiffs and the defendants, the plaintiff

No.1 was allowed to reside in the ground floor and the defendant No.1 has been residing in the first floor, apart from that using the 2nd floor with the said sheets with understanding to pay some amount to the plaintiff No.2 and defendants 2 and 3 towards their share. They further averred that as per the market value certificate, the plaint schedule property consisting of ground floor, first floor and 2nd floor is valued at Rs.16,17,000/-. They further contended that the defendant No.1 never spent any amount towards the construction of any room in the plaint schedule property and he did not obtain any approval of layout for the alleged construction of second room in the first floor and two rooms in the 2nd floor about 6 years ago by spending Rs.10,00,000/- as mentioned in his legal notice dated 12.10.2016 issued to the plaintiffs and defendants 2 and 3. They contended that there is no change in the amount of paying the house tax from 2008 till date. They further contended that the plaintiff No.1 issued a reply notice dated 24.10.2016 to the defendant No.1 informing the same to the 2nd plaintiff and defendants 2 and 3. They further contended that the said two iron sheeted sheds were already in existence since long time, even during the lifetime of the said Noorjahan and as such the question of spending Rs.10,00,000/- by the defendant No.1 for the construction of one room in the 1st floor and two rooms in the 2nd floor about 6 years ago does not arise. They further contended that the defendant No.1 has not obtained any approval of layout for the alleged construction of one room in the 1st floor and two rooms in the 2nd floor and there is no variation of tax amount from 2008 to till now. They further contended that after the death of Noorjahan, the plaintiffs and the defendants are having shares or residuary in each and every inch of the plaint schedule property.

They further contended that being female members, the plaintiff No.2 and the

VII ADJC,KNL6AS 67/2023 defendants 2 and 3 are having 1/7th share each in the form of residuary i.e., to say 3/7th share in the plaint schedule property, whereas the plaintiff No.1 and the defendant No.1 have got 2/7th share each as residuary in the plaint schedule property. They further contended that the plaintiff No.2 along with the defendants 2 and 3 asked the defendant No.1 for partition of the plaint schedule property, but the defendant No.1 issued legal notice to them with false averments. They further contended that the defendant No.1 did not incur any expenditure or rendered account for the alleged expenditure of Rs.10,00,000/- to the plaintiffs and the defendants 2 and 3. They contended that the plaintiffs and defendants are in joint and constructive possession of the plaint schedule property and the plaintiffs and the defendants 2 and 3 demanded the defendant No.1 for partition of property, but the defendant No.1 is not cooperating at all. They further contended that the defendants 2 and 3 are not cooperating to file the present suit and as such the plaintiffs were constrained to file the suit in O.S.No.493/2016 for partition of the suit schedule properties into 7 equal shares and to allot two such shares i.e., 2/7th share or residuary to the plaintiff No.1, 1/7th share or residuary to the plaintiff No.2 in the plaint schedule property by metes and bounds. Hence, the suit.

7.The record of the trial Court shows that on receipt of summons, the defendants 1 to 3 made their appearance and Sri.S.Md.Haneef, Advocate filed vakalatnama on behalf of the defendant No.1, while Sri.J.P.Basava Raju, Advocate filed vakalat for defendants 2 and 3.

8.The defendant No.1 filed his written statement, while the defendants 2 and 3 filed their written statement separately. In such written statement, the defendant No.1 denied all the allegations made in the plaint. However, he admitted his relationship with the plaintiffs and the other defendants and admitted that the plaintiffs 1 and 2 and the defendants 2 and 3 are his brothers and sisters and they

VII ADJC,KNL7AS 67/2023 are the children of Noorjahan. He further admitted that Noorjahan was the absolute owner of the plaint schedule property and that she succeeded the same by way of gift settlement deed from her mother Badibee on 11.11.1970. He admitted that his mother Noorjahan died leaving behind her, the plaintiffs and the defendants and after her death, all the legal heirs succeeded to the suit schedule house. However, he denied the pleading of the plaintiffs that Noorjahan constructed a house in ground floor and first floor. He contended that by the time of death of Noorjahan, only two small rooms in ground floor and one room on the terrace of two rooms i.e., first floor were present. He contended that the schedule house is a small extent and that taking permission or approval from the Municipality is not necessary as it is expensive near about the cost of the building and that he has paid fine amount to the Municipal Corporation, Kurnool and made constructions by spending

Rs.10,00,000/-. He contended that he was the eldest male person in the joint family and he worked as a Driver in St. Joseph Educational Institution since his childhood and he used to spend all his earnings to the joint family. He contended that his mother was a housewife. He further contended that with his hard earnings, his mother used to maintain the family and except him, no other person was earning in their family. He contended that by the date of death of his mother Noorjahan, the structure of the plaint schedule house was consisting of two rooms in ground floor and one room in the first floor and that after her death, the plaintiffs 1 and 2 and the defendants sat together and decided that the plaintiff No.1 would stay in the ground floor in the plaint schedule house, the defendant No.1 would stay in the first floor of the plaint schedule house i.e., one room and that the plaintiff No.2, the defendants 2 and 3 refused to take share from the plaint schedule house as their families were well versed comparing to the families of plaintiff No.1 and defendant No.1. He contended that the said phenomenon continued for sometime. He further contended that while so, as the room in the first floor became congested for the family of the defendant No.1, he has requested the plaintiffs and the defendants 2

VII ADJC,KNL8AS 67/2023 and 3 and after obtaining permission from them, he made construction of another room on the first floor and two rooms on the second floor by spending more than

Rs.10,00,000/- and after that he and his family used to reside in the said portions.

He contended that while the things stood thus, the plaintiffs 1 and 2 and the defendants 2 and 3 developed eyesore from the constructions by the defendant

No.1 and as such they colluded with each other and hatched up a plan to cause wrongful loss to him. He contended that on the instigation made by the plaintiff

No.1, the plaintiff No.2 and the defendants 2 and 3 demanded him to partition the suit schedule house. He contended that he is ready and willing to give shares to the plaintiffs 1 and 2 and the defendants 2 and 3 provided they repay the construction cost to him. He further contended that he had developed the suit schedule house by spending Rs.10,00,000/- and the same is known to everyone in the locality. He contended that market value of the property is an exaggerated one and that with regard to the house tax, he and plaintiffs are paying house tax in their respective portions. Hence, he sought for directing the plaintiffs 1 and 2 and the defendants 2 and 3 to pay the costs of the constructions of one room in the first floor and two rooms in the 2nd floor and also iron shed costs and on payment of such amount, he will get ready for partition as prayed by the plaintiffs.

9.The Respondents/defendants 2 and 3 filed their written statement separately by admitting the pleadings of the plaintiffs. They contended that the defendant No.1 never spent any amount towards the construction of any portion in the plaint schedule property, for construction of second room in the first floor and two rooms in the second floor about 6 years ago by spending Rs.10,00,000/- and that the said two iron sheeted sheds were already in existence since long time even during the lifetime of their mother. They further contended that they have no objection to partition the suit schedule property as prayed for by the plaintiffs.

VII ADJC,KNL9AS 67/2023

10.The record of the trial Court shows that basing on the above pleadings of both parties, the learned trial Court settled the following issues;

1)“Whether the plaintiffs are entitled for partition and separate possession of 2/7th share share to plaintiff No.1 and 1/7th share to plaintiff No.2, as prayed for?

2)Whether the defendant No.1 himself got constructed a room in first floor and two iron sheet rooms in second floor, with his own funds, with permission of plaintiffs and defendant Nos.2 and 3, as pleaded by defendant No.1?

3)To what relief ?”

11.The record of the trial Court shows that during the course of the trial, the Respondent No.1/plaintiff No.1 got examined himself as PW1 and got marked

Exs.A1 to A10. After the closure of the plaintiffs side evidence, the defendant No.1

Mukthiar Ahmed got examined himself as DW1 and further he got examined his son S.Munwar Basha as DW2. Further the defendant No.3-Sk.Khairun Bee examined herself as D.W.3, but no documents were marked in favour of the defendants. The record of the trial Court shows that, after the completion of trial, hearing on both sides, basing upon the evidence of both parties and perusal of the entire record, the trial Court decreed the suit on 12.09.2023 in favour of the plaintiffs and against the defendants by passing preliminary decree for partition of the plaint schedule property into 7 equal shares and by allotting 2/7th share to the plaintiff No.1 and 1/7th share to the plaintiff No.2 in the plaint schedule property and similarly by allotting 2/7th share to the defendant No.1 and 1/7th share each to the defendants 2 and 3 in the plaint schedule property.

12.Aggrieved by the such decree and judgment, the appellant/defendant

No.1 preferred this appeal.

VII ADJC,KNL10AS 67/2023

13.Point for consideration:

“ Whether there are any justifiable grounds for entertaining this

appeal by setting aside the decree and judgment in O.S.No.493/2016

dt.12.09.2023 passed by Principal Senior Civil Judge, Kurnool?”

14.In order to answer the above point, this Court has to re-appreciate the evidence led in the trial Court. In order to consider whether the judgment of the trial

Court was passed upon reasonable grounds or whether it needs any interference, this Court has to appreciate the evidence of witnesses.

15.As seen from the record of the trial Court, the plaintiff No.1-

M.Mahaboob Subhani examined himself as PW1 and he filed chief affidavit in lieu of his examination in chief, which is nothing but a reiteration of the contents of his plaint. Hence, this Court is not inclined to again narrate the same, except as noted hereinafter. Through PW1, Exs.A1 to A10 (i.e.,Ex.A1 is the office copy of legal notice dt.12.10.2016, Ex.A2 is Market value certificate, Ex.A3 is certified copy of gift settlement deed dated 11.11.1970 bearing Doc.No.2903/1970, Ex.A4 is property tax receipt dt.12.06.2015, Ex.A5 is property tax receipt dt.07.01.2016, Ex.A6 is property tax demand bill for 2016-2017 dt.24.04.2016, Ex.A7 is property tax demand receipt dt.12.07.2016, Ex.A8 is office copy of reply notice dt.24.10.2016,

Ex.A9 is postal receipt dt.24.10.2016 and Ex.A10 is served postal acknowledgment) were marked.

16. After the closure of the plaintiffs’ side evidence, the defendant No.1-S.Mukthiar

Ahmed examined himself as DW1 and he filed chief affidavit in lieu of his examination in chief, which is nothing but a reiteration of the contents of his written statement. Hence, this Court is not inclined to again narrate the same. The defendant No.1 has got examined his son/Shaik Munwar Ahamed as DW2.

VII ADJC,KNL11AS 67/2023

D.W.2/Shaik Munwar Ahamed filed chief affidavit in lieu of his examination in chief and in such evidence, he deposed that he is the son of DW1. He deposed that one

Noorjahan wife of Noor Ahmed is the absolute owner of the plaint schedule property and that she has two sons and three daughters and that his father was the eldest son of Noorjahan Bee. He deposed that during his childhood, his paternal grand father Noor Ahmed lost his breath. He deposed that after the death of

Noorjahan, the entire burden fell on the shoulders of his father, being the eldest son of his grandparents. He deposed that his father worked as a driver in St.Joseph

Institution and contributed all his earnings to the joint family. He deposed that while his father worked as a driver, his paternal uncle-M.Mahaboob Subhani (PW1) was a cleaner and his income was meager. He deposed that his father got performed the marriages of Sk.Khairun Bee (defendant No.3) and P.Dilshad (plaintiff No.2).

He deposed that his paternal aunts were in well versed position and in the year 2004, there were talks in between his father and paternal uncle with regard to partition of the plaint schedule property. He deposed that his father permitted his paternal uncle to take the ground floor of the plaint schedule property and his paternal uncle suggested him to take portion of the plaint schedule property by giving the ground floor to him. He deposed that the said talks took place in the presence of their paternal aunts. He deposed that his paternal aunts did not want to take any share in the plaint schedule property and it was an oral partition. He deposed that according to the will and pressure of his paternal uncle, his father permitted his paternal uncle to take ground floor of the plaint schedule property and his father took first floor of the plaint schedule property. He deposed that he is having 3 brothers and one sister and as such the first floor became congested for living as it was having only one room and on that, his father explained his difficulty to his paternal uncle and his junior paternal uncle (the plaintiff No.1 herein) informed his father to construct rooms as per their accommodation. He deposed that apart from that, his junior paternal uncle informed his father that he has no

VII ADJC,KNL12AS 67/2023 objection with the extra constructions on the first floor and second floor. He deposed that he and his brothers are working in different fields and earning amounts and accordingly on the advice of his junior paternal uncle, they constructed another room in the first floor and two rooms on the second floor by spending Rs.10,00,000/- and they are residing in the said portions. He deposed that there were petty quarrels between the women folk of their family and the family of their junior paternal uncle. He deposed that the plaintiff No.2 got performed her daughter’s marriage with the son of the plaintiff No.1 and due to that, they became very close. He further deposed that due to petty quarrels, his junior paternal uncle became hurt and he instigated his paternal aunts to seek share in the schedule property, due to which the disputes started. He deposed that already there was a partition between father and his junior paternal uncle and at that time, his paternal aunts refused to take share in the suit schedule property and accordingly they spent Rs.10,00,000/- for the development of first and second floors, but now his junior paternal uncle and paternal aunts bore grudge against them and disputing the oral partition.

17.The record of the trial Court shows that the defendant No.3-Sk.Khairun

Bee got examined herself as DW3 and she filed chief affidavit in lieu of her examination in chief, which is nothing but a reiteration of contents of her written statement. D.W.3 ultimately supported the version of PW1 and deposed that she and the defendant No.2 are not having any objection to partition the suit schedule property into 7 equal shares as prayed for in the plaint.

18. The record of the trial Court shows that basing upon the above evidence of

PW1, Dws.1 to 3 and Exs.A1 to A10, the suit was decreed with costs. Considering the above, it is an undisputed fact that the suit schedule property was acquired by the mother of the plaintiffs and the defendants by name Smt.Noorjahan by way of

VII ADJC,KNL13AS 67/2023

Ex.A3/registered settlement deed dated 11.11.1970 from her mother in law–Badi bee and that she accepted the said gift and took possession of the suit schedule property. In fact the plaintiff No.1 has filed the certified copy of registered gift settlement deed dated 11.11.1970 executed in favour of Smt.Noorjahan as Ex.A3.

Further Exs.A4 to A7 show that the property tax is being issued in the name of

Noorjahan even till the date of filing of the suit. The pleadings of both parties show that while the plaintiffs contend that as per understanding, after the demise of their mother Noorjahan, the plaintiff No.1 agreed to reside in the ground floor of the suit schedule property and the defendant No.1 agreed to reside in the first floor of the suit schedule property and the defendant No.1 agreed to use the second floor iron sheet shed by giving amount to the plaintiff No.2 and defendants 2 and 3 as per market value, the defendant No.1 is denying the same. According to him, by the date of demise of his mother, there was only one room in the first floor and that as it became congested for living along with his family, he constructed the second room in the 1st floor and also constructed 2 iron sheeted sheds in the 2nd floor of the suit schedule property with his own earnings. The plaintiffs are denying the same. It is the specific contention of the plaintiffs that the two rooms in the first floor and the 2 rooms in the 2nd floor along with the ground floor was in existence even during the lifetime of their mother Noorjahan. The defendant No.1 is not having any objection for partition of the suit schedule property but his only grievance/demand is that he has constructed one room in the first floor and two rooms in the second floor with his own income by spending Rs.10,00,000/- in the year 2006 and if the costs of such construction is given by the plaintiff and the defendants 2 and 3 to him, he has no objection for partition of the suit schedule property as prayed for by the plaintiffs.

However, he further contended that an oral partition took place between himself and the plaintiff No.1 wherein the 2nd plaintiff and the defendants 2 and 3 refused to take share in the plaint schedule house and that the question of re-partition does not arise.

VII ADJC,KNL14AS 67/2023

19.Considering the above, even though in the plaint, it was mentioned by the plaintiffs that there was an oral understanding between the plaintiffs 1 and 2 and defendant No.1 for residing in the ground floor and first floor by the plaintiff No.1 and the defendant No.1 respectively, with an understanding to pay some amount to the plaintiff No.2 and defendants 2 and 3 towards their share, admittedly, the said partition was an oral partition only and considering the pleadings of defendants 2 and 3 and the evidence of DW3, no such amount was given by the defendant No.1 to the plaintiff No.2 and defendants 2 and 3. Furthermore, the evidence of DW1 clearly shows that he is admitting the fact that the plaintiff and the defendants are having share in the suit schedule property. He further admitted that in Ex.A1/legal notice, he did not mention that the plaintiff No.2 and other defendants have refused to take share in the plaint schedule property and that he and his brother have orally partitioned the suit schedule property after the death of his mother. A perusal of

Ex.A1/legal notice dated 12.10.2016 got issued by the defendant No.1 to the plaintiffs and the defendants 2 and 3 shows that there was no such oral partition between PW1 and DW1. Hence, when the defendant No.1 himself admitted that the plaintiffs and the defendants are having share in the plaint schedule property and that they are entitled for claiming partition provided they pay the costs of construction made by him in the first floor and second floor, it must be assumed by this Court that the plaint schedule property is entitled to be partitioned.

20. Though the defendant No.1 contended that he has made construction of one room in the first floor and two rooms in the second floor in the year 2006 as the first floor has become very congested for his family and that before doing so, he has taken the permission of his brother and sisters, the defendant No.1 did not file any document to show that he has spent Rs.10,00,000/- for construction of first floor of the suit schedule building. DW1 deposed that he has not filed any document to show that he spent Rs.10,00,000/- for construction of first floor in the suit schedule

VII ADJC,KNL15AS 67/2023 building. Further more DW1 deposed that he did not obtain any permission from the Municipality for construction of first floor and second floor in the suit schedule property and that no document is filed by him for the proof of subsequent constructions in the suit schedule property. Hence, considering the above evidence of DW1, admittedly the defendant No.1 has not filed any document to show that he has spent Rs.10,00,000/- for construction of one room in the first floor and two rooms in the second floor by obtaining any permission from the Municipality. DW2 deposed that he has no proof to show that his father spent Rs.10,00,000/- for construction of first floor and second floor. He deposed that the area of the second floor is 15x18 feet and that the first floor also covers with the same area as covered by the second floor. DW3 deposed that the defendant No.1 did not spent any amount for construction of the suit schedule house. She admitted that the plaintiff

No.1 has been paying property tax for the suit schedule house. As noted above,

DW3 deposed that the plaintiff No.1 is paying the taxes for the suit schedule house.

Exs.A4 to A7 are in the name of Noorjahan only and till the date of filing of the suit.

According to the DW1, he is paying tax of Rs.2000/- to Rs.3000/- for 6 months to the suit schedule house and earlier they paid tax of Rs.1500/- upto the year 2015.

He deposed that the plaintiff No.1 had paid tax to the suit schedule property. He admitted that from the year 2008 to 2016, the plaintiff No.1 paid tax of Rs.505/- only for 6 months under Exs.A4 to A7. Hence, if at all DW1 made any subsequent constructions in the first floor and second floor of the suit schedule property as alleged by him, the property tax would have varied, but the evidence of DW1 and

Exs.A4 to A7 shows that from the year 2008 to 2016, the property tax was paid for the same amount. Hence, the defendant No.1 could not prove his contention that he made constructions of one room in the first floor and two rooms i.e.,iron shed rooms in the second floor in the year 2006 and that too with the permission of the plaintiffs and the defendants 2 and 3.

VII ADJC,KNL16AS 67/2023

21.The judgment of the trial Court shows that the learned trial Court discussed all the above facts and held that as elicited in the cross-examination of DW1, if really there was oral partition of the plaint schedule property between the plaintiff

No.1 and the defendant No.1, the said fact ought to have been mentioned by the defendant No.1 in Ex.A1/legal notice, but as admitted by DW1, the alleged fact of oral partition of the plaint schedule property between himself and the plaintiff No.1 was not mentioned in Ex.A1-Legal notice. On the other hand, the defendant No.1 in his written statement categorically stated that as per oral understanding between himself and plaintiff No.1, the plaintiff No.1 is residing in the ground floor and he is residing in the first floor of the plaint schedule property. Further if there is any alleged oral partition between plaintiff No.1 and the defendant No.1, there must be separate door numbers and separate property tax receipts in the name of the plaintiff No.1 and defendant No.1 for the plaint schedule property, but Exs.A4 to

A7/property tax demand receipts show that even as on today, the plaint schedule property stands in the name of Noorjahan, who is the mother of the plaintiff No.1 and defendant No.1. As pleaded by defendant No.1, if there was any oral partition of the plaint schedule property between himself and the plaintiff No.1, why the property tax receipts for the plaint schedule property stand in the name of their mother is unexplained. Therefore, the contention of the defendant No.1 that there was oral partition of the plaint schedule property between himself and plaintiff No.1 about 30 years ago is un-established.

22.The learned trial Court further held in its judgment that spending an amount of Rs.10,00,000/- by the defendant No.1 for construction of two iron sheets sheds in the second floor is highly improbable and far away from truth and that further, if DW1 had constructed a room in the first floor and two rooms in the second floor, he has to obtain permission from the Municipality for making the said construction, but as admitted by DW1, he did not obtain any permission from

VII ADJC,KNL17AS 67/2023

Municipality and as such the alleged construction of first floor and 2nd floor in the suit schedule property by the defendant No.1, is not established. The learned Trial

Court further held that though in the cross-examination of PW1, it is elicited that there was an understanding between the plaintiffs and the defendants that the plaintiff No.2 and the defendants 3 and 3 should not claim their right over the plaint schedule property, the said understanding will not take away the right of the plaintiff

No.2 and the defendants 2 and 3 over the plaint schedule property under law since the plaint schedule property is the self acquired property of their mother and the plaintiffs and the defendants being the legal heirs of their mother Noorjahan are entitled for their shares in the plaint schedule property. The learned trial Court further held that it is proved by the discussion that the defendant No.1 did not construct room in the first floor and two rooms in the second floor with his funds with the permission of plaintiffs and defendants 2 and 3. Holding the same, the learned trial Court answered the issues 1 and 2 in favour of the plaintiffs and against the defendant No.1 and ultimately decreed the suit.

23. Considering the above findings of the learned trial Court, as rightly held by the learned Trial Court, the plaintiff No.2 and the defendants 2 and 3 being the daughters of Noorjahan, are also having legal right in the suit schedule property and the same cannot be taken away by the plaintiff No.1 and the defendants.

Further as the defendant No.1 has admitted that the plaintiffs and the defendants are having legal share in the suit schedule property, this Court feels that the findings of the trial Court regarding the issues 1 and 2 are reasonable and made on the established principles of law.

24.Coming to the legal aspects for the allotment of shares between the parties to the suit, Muslim law recognizes two types of heirs i.e., Sharers and Residuaries.

Sharers are the ones who are entitled to a certain share in the deceased’s property

VII ADJC,KNL18AS 67/2023 and Residuaries would take up the share in the property that is left over after the sharers have taken their part.

 Sharers: The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son's son or son's son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8)

Grandmother on the male line, (9) Full sister (10) Consanguine sister (11)

Uterine sister, and (12) Uterine brother. The share taken by each sharer will vary in certain conditions. For instance, a wife takes 1/4th of share in a case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife's estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds. If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.

25.Considering the above legal provision, the plaintiff No.2 and the defendants 2 and 3 become residuary as they are having brothers i.e., plaintiff No.1 and defendant No.1 and as such the plaintiff No.1 and defendant No.1 will get double the share of their sisters. The pleadings of the plaintiff show that the plaint schedule property was formally divided into 7 shares and as such, 2 shares i.e., 2/7th share each has to be given to the plaintiff No.1 and defendant No.1, being the sons of Noorjahan, whereas the plaintiff No.2 and the defendants 2 and 3 will take 1/7th share each i.e., half of the share of the plaintiff No.1 and defendant No.1, as daughters of Noorjahan as residuary. Hence, the partition of the plaint schedule

VII ADJC,KNL19AS 67/2023 property into 7 equal shares and allotting 2/7th share each to the plaintiff No.1 and defendant No.1 and 1/7th share each to the plaintiff No.2, defendant No.2 and defendant No.3, is correct. Hence, seen in any way, the findings given by the learned trial Court are reasonable and well found on the established principles of law and as such, I feel that there is no need for any interference in the judgment passed by the learned trial Court. Hence, in view of the aforesaid discussion, the appeal is dismissed.

26.In the result, the appeal is dismissed, but without costs by confirming the judgment and decree dt.12.09.2023 in O.S.No.493/2016 passed by Principal

Senior Civil Judge, Kurnool.

Dictated to the Stenographer Gr.1, transcribed by him, corrected and

pronounced by me in open Court, this the 08 th day of May, 2025.

VII ADDITIONAL DISTRICT JUDGE,

KURNOOL

VII ADJC,KNL1AS 41-2023

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE:

KURNOOL

PRESENT:- Smt.V.Lakshmi Rajyam,

VII Additional District Judge, Kurnool,

This the 15th day of April, 2025.

APPEAL SUIT N0.41/2023.

S.Annapurnamma.... appellant/defendant

-Versus-

Madhavagandla Hemalatha.... respondent/plaintiff.

An appeal arose against the decree and judgment dated 13-06-2023 passed by the Principal Senior Civil Judge , Kurnool , in O.S.NO.43/2015.

Between:

Madhavagandla Hemalatha, wife of M.Prabhakar, 54 years, Hindu, Employee,

... Plaintiff.

resident of H.No.50/746-5E1, Endowments Colony, Kurnool City.

-And-

S.Annapurnamma, wife of S.V.Veeranna, 65 years, Hindu, Housewife, resident of

... appellant/defendant.

H.No.49-50-A-878-16, Sriram Nagar, Kurnool City.

VII ADJC,KNL2AS 41-2023

This appeal suit came up on 03-04-2025 for final hearing before me in the presence of Sri.M.D.V.Jogaiah Sarma, Sri.S.Srinivasa Rao, Advocates for the

Appellant/ and of Sri.B.Murali Manohar, Advocate for the Respondent, and after hearing both sides, having stood over for consideration till this day, this

Court made the following:

: JUDGMENT :

1.The appellant/defendant preferred this appeal against the judgment dt.13.06.2023 passed by the Principal Senior Civil Judge, Kurnool wherein the

Trial Court decreed the suit with costs.

The appellant/defendant filed this appeal on the following grounds:

2.

i) That the Judgment and decree of the lower Court passed in O.S.No.43/2015 is against law, weight of evidence and probabilities of the case.

ii) The lower Court’s appreciation of the oral and documentary evidence let in by both sides was thoroughly one sided.

iii) The lower Court did not appreciate the defence taken by the appellant/defendant in her written statement.

iv) The lower Court went wrong in not appreciating the clear recitals of

Ex.A1/Will dt.15.04.1994 wherein the testator’s intention was clearly

VII ADJC,KNL3AS 41-2023 mentioned that two portions of the entire property were shown in two separate schedules in the Will and the Eastern portion was bequeathed to the respondent/plaintiff and Western portion was allotted to the appellant/defendant. If at all the testator really wanted to give equal shares to each of the parties, he would have mentioned the same and given equal shares.

v)The lower Court went wrong in observing that in view of the categorical admissions of PW1 and DW1 coupled with Ex.A1, the respondent/plaintiff and the appellant/defendant are entitled for half share each.

vi) The lower Court went wrong in giving to a conclusion that the respondent/plaintiff is entitled for half share on the ground that no specific measurements were shown in the Will.

Hence, the appellant/defendant preferred this appeal, praying this Court to set aside the decree and judgment dt.13.06.2023 passed by the Principal Senior

Civil Judge, Kurnool in O.S.NO.43/2015 and to dismiss the suit holding that in

view of the clear cut mentioning of separate schedule for the portions bequeathed to the respondent/plaintiff and the appellant/defendant in

VII ADJC,KNL4AS 41-2023

Ex.A1/Will, there was no necessity for partition of half share in the plaint schedule property to the respondent/plaintiff. Hence the appeal.

3.The record show that this Appeal was filed before the Hon’ble Principal

District Judge, Kurnool and the same was made over to this Court on

07.08.2023.

4.On receipt of notice, the respondent/plaintiff made her appearance and she contested the Appeal.

5. Before merits of the appeal are considered, it is necessary to extract the pleadings of the parties in O.S.NO.43/2015 on the file of Principal Senior Civil

Judge’s Court, Kurnool and so also the evidence on record.

6.As seen from the record of the trial Court, the respondent/plaintiff filed the suit in O.S.NO.43/2015 on the file of Principal Senior Civil Judge’s

Court, Kurnool for partition and separate possession of her half share in the plaint schedule property by metes and bounds, for grant of mesne profits and for costs of the suit.

7.She averred in her plaint that she is the younger sister of the appellant/defendant and that they are the daughters of late R.C.Narasimhulu.

VII ADJC,KNL5AS 41-2023

She averred that the plaint schedule property is a residential house situated in 49th Ward of Sriram Nagar, Kurnool City consisting of ground floor measuring

East-West 40 feet and North-South 30 feet and its upstairs constructed in the year 1996/1997 in the Western side of the house measuring North-South 30 feet and East-West 12 feet. She averred that her father worked as a Government

Press employee and during his lifetime, in the year 1985, he purchased the house sites/plots bearing Nos.79 and 80 in Sriram Nagar in Sy.No.781/A1 and he got it registered in his name and thereafter he constructed the plaint schedule house in the year 1987 after due Municipal formalities. She averred that the plaint schedule house is in the name of her father Narasimhulu and it is his self acquired property. She further averred that her father executed a registered Will

dated 15.04.1994 in favour of his wife Saraswathamma with limited rights and

after her lifetime, to his both daughters i.e., the respondent/plaintiff and the appellant/defendant herein to enjoy the same with absolute rights including their legal heirs. She averred that her father kept the said Will as a secret and

before his death, he handed over the same to his wife and as such nobody

knows about the said Will. She further averred that the appellant/defendant

VII ADJC,KNL6AS 41-2023 being the eldest daughter, was given to marriage to one Veeranna of Adoni and she resided at Adoni till 2006, whereas the respondent/plaintiff was married to one M.Prabhakar, resident of Kadapa in the year 1978 and he worked as an employee in Irrigation Department.

8.She further averred that after her marriage, she joined her husband at

Kadapa and resided happily and due to her wedlock, she gave birth to two sons.

She averred that in the year 1992, her husband died due to heart ailment and as such, she was given the job of Junior Assistant in the Irrigation Department at

Kadapa on compassionate grounds and in the year 1983, she was transferred to

Kurnool. She averred that by that time, her father was still in service and residing at Government Quarters and as such the plaint schedule house was given to some other person for rent. She averred that due to her transfer, she joined her parents along with her children and all of them resided in the

Government Quarters till the retirement of her father and after that they resided in their own house by vacating the Government Quarters. The respondent/plaintiff further averred in her plaint that she used to maintain her family and her aged parents as she was the earning person and that in the year

VII ADJC,KNL7AS 41-2023 1996-1997 she constructed the upstairs i.e., first floor on the Western side of half of the house. She contended that the said portion was meant for only one family and it was built by her own fund with the assistant of her father. She averred that in the year 2001, her father died and after his death, she, her two sons and her mother Saraswathamma resided in the said house without any hindrance. She contended that in the year 2006, her younger brother Ravi

Prakash took their mother Saraswathamma to his house and kept with him. She averred that her brother Ravi Prakash was having an evil eye over the plaint schedule house and he used to harass his mother and quarreled with the respondent/plaintiff herein.

9.She further averred that the Appellant/ appellant/defendant and her family also came back to Kurnool from Adoni, due to her family problems and after return, the respondent/plaintiff’s mother, brother Ravi Prakash and the appellant/defendant managed her mother and all of them tried to dispose of the plaint schedule property but in vain and as such they picked up quarrels with the respondent/plaintiff unnecessarily by torturing her and ultimately in the year 2007, all of them forcibly necked out her from the plaint schedule house. She

VII ADJC,KNL8AS 41-2023 averred that even by that date, she was not aware of the registered will of her father. She contended that thereafter she has been residing in a rented house and subsequently the mother of the respondent/plaintiff, the appellant/defendant and her family joined in the house and resided there. She contended that on 11.09.2011, the mother of the respondent/plaintiff died and just before her death, the mother of the respondent/plaintiff called the respondent/plaintiff and handed over the registered Will dt.15.04.1994 executed by the father of the respondent/plaintiff, to the appellant/defendant in the presence of the respondent/plaintiff.

10.The respondent/plaintiff further averred in her plaint that after the death of her mother, the appellant/defendant left a small portion on its Eastern side and occupied the remaining entire house, including upstairs and called the respondent/plaintiff and handed over the said small portion on Eastern side to her. She contended that when she questioned the appellant/defendant for equal share in the house as per the terms of the Will i.e., item No.1 Western side to the appellant/defendant and item No.2 Eastern side to the respondent/plaintiff and demanded for equal share in the plaint schedule house including upstairs on

VII ADJC,KNL9AS 41-2023 its Northern side, because the entire upstairs portion was built by the respondent/plaintiff with her own funds after the date of execution of the will, the appellant/defendant postponed the same on some pretext or other stating that she wanted to raise a panchayat through elders and that she is not willing for equal partition. She contended that only a small portion is in her possession and that as the appellant/defendant gave the house on rent in four portions such as upstairs two portions i.e., one for Rs.1000/- per month to one Naveen and another portion to one Sudhakar for Rs.2000/- per month and in the ground floor front side two rooms were given on rent i.e, Western side front room to one Fakruddin for Rs.1000/- per month and Eastern side room was given to one

Hussain Basha for Rs.1000/- per month and all the above said rent were collected by the appellant/defendant from the year 2011 till this day and that the appellant/defendant enjoyed the same without giving anything to the respondent/plaintiff. The respondent/plaintiff further averred that inspite of repeated demands made by her for equal partition and mesne profits, the appellant/defendant postponed the same and as such on 15.11.2014, the respondent/plaintiff demanded the appellant/defendant in the presence of elders

VII ADJC,KNL10AS 41-2023 like K.Yellaiah and another, but the appellant/defendant bluntly refused to do so and as such the respondent/plaintiff got issued legal notice to the appellant/defendant on 02.12.2014, demanding her for partition of her share in the ground floor and half share in the upstairs. She contended that the appellant/defendant though residing in the same house, refused to receive the said notice and also for partition and as such the respondent/plaintiff was compelled to approach the Court seeking the relief for partition of her half share in the ground floor and half share in the upstairs. Hence, the suit.

11.The record of the trial Court shows that on receipt of summons, the appellant/defendant made her appearance and she filed her written statement denying all the allegations made in the plaint. However she admitted her relationship with the respondent/plaintiff and also admitted that her father

R.C.Narasimhulu acquired the suit schedule property with his own income. She contended that her father died on 02.02.2001, whereas her mother died on 11.09.2011. She contended that the registered Will dated 15.04.1994 vide document No.54/1994 clearly shows that the Eastern portion of the house was vested to the respondent/plaintiff and the Western portion of the house with

VII ADJC,KNL11AS 41-2023

Southern side entry was vested to her, but the respondent/plaintiff suppressed all the facts and claiming the ownership of the rooms constructed by the appellant/defendant on the roof of Western side portion with her expenditure.

She contended that the steps to the upstairs were behind the existing Southern side entrance of the appellant/defendant, but not at all related to the respondent/plaintiff’s portion in any way and so the construction of rooms by the respondent/plaintiff does not arise as she was not having any ingress or egress to the rooms of upstair portion. She further contended that the property was divided between her and the respondent/plaintiff and she got the Western side portion with Southern entrance and as such the construction of upstairs room by the respondent/plaintiff with her expenditure on the Western side is not possible and it is made only for harassing her. She contended that the respondent/plaintiff was given all the share of her property at the time of her marriage, but the respondent/plaintiff, who is an employee having influence with officials and public, had her eye on the schedule portion of the appellant/defendant and she started with quarreling with her without having any affection towards her own sister. She contended that their father divided the

VII ADJC,KNL12AS 41-2023 house between his two daughters with his free will and consent, but the respondent/plaintiff is playing fraud on her highhandedly. She further contended that prior to the filing of this suit, the respondent/plaintiff had issued a legal notice dt.30.06.2014 demanding her not to interfere with the respondent/plaintiff’s portions claiming highhandedly that she is the owner of the room which is a part of the appellant/defendant’s house and that it is in her possession and enjoyment from the period of her father and that the respondent/plaintiff mentioned in the legal notice that she has leased the same to others as proprietor, but the said averment is false. She further contended that the respondent/plaintiff changed her counsel and again sent another notice dt.02.12.2014 demanding partition of the schedule house into two equal shares and for Eastern side full portion. She contended that the respondent/plaintiff is not having any right to question or change the will of her deceased father and to seek a fresh partition according to her whims and fancies.

12.She contended that plaint plan submitted by the respondent/plaintiff is not correct and that the allegations of the respondent/plaintiff that she has

VII ADJC,KNL13AS 41-2023 constructed the rooms in the upstair i.e., first floor of the said house is incorrect.

Hence, she sought for dismissal of the suit with costs.

13.The record of the trial Court shows that basing on the pleadings of both parties, the following issues were settled for trial:-

1)Whether the plaintiff got constructed the upstair portion as pleaded by her with her expenditure?

2)Whether the plaintiff is entitled for partition and half share in plaint schedule property as prayed for?

3)Whether the plaintiff is entitled for mesne profits?

4)To what relief?

14.The record of the Trial Court shows that during the course of trial, the respondent/plaintiff got examined herself as PW1 and further got examined one

D.Haridasu as PW2 and got marked Exs.A1 to Ex.A5. The record of the trial

Court further shows that after closure of the respondent/plaintiff side evidence, the appellant/defendant got examined herself as DW1 and through her, Exs.B1 to Ex.B5 were marked. The record of the trial Court shows that basing on the evidence of both parties and after perusing the record as well as the exhibits on

VII ADJC,KNL14AS 41-2023 hand, the trial Court decreed the suit with costs for partition and separate possession of respondent/plaintiffs half share in the plaint schedule property on 13.06.2023.

15. Aggrieved by the said decree and judgment dt.13.06.2023 passed by the

Principal Senior Civil Judge’s Court, Kurnool, the instant appeal was preferred

by the appellant/defendant. Hence, while considering this appeal, this Court has to consider some part of the evidence recorded in the suit in

O.S.No.43/2015.

16.Point for consideration:

“Whether there are any justifiable grounds for entertaining this appeal by setting aside the decree and judgment in O.S.NO.43/2015 dt.13.06.2023 passed by Principal Senior Civil Judge, Kurnool?”

17.To answer the above point, it is necessary to appreciate the evidence adduced in the trial Court. As seen from the record of the trial Court, the respondent/plaintiff/Madhavagandla Hemalatha got examined herself as

PW1 and further got examined one D.Haridasu as PW2. PW1/ Hemalatha filed her chief affidavit in lieu of her examination in chief and in such evidence, she

VII ADJC,KNL15AS 41-2023 reiterated the contents of her plaint. Hence, this court is not inclined to narrate the same. However, she deposed that the appellant/defendant filed her written statement with false allegations with an intention to grab away the entire house including upstairs, which was constructed by her, but illegally claiming as if it was built by the appellant/defendant and as if the house is in two separate portions and one house was allotted to her. She deposed that she has issued an earlier notice to the appellant/defendant, demanding her not to interfere with her possession over the eastern side portion as on that date, the appellant/defendant was willing to make the house in two equal portions, but in the presence of elders but it does not mean that he has waived her right of equal share in the house. She deposed that subsequently when the appellant/defendant refused to make equal shares, she filed the suit for partition and separate possession.

18. The respondent/plaintiff has examined one D.Haridasu, who is one of the alleged elders for the panchayat between both parties as PW2. PW2

D.Haridasu filed his chief affidavit in lieu of his examination in chief and in such evidence, he deposed that he knows both the respondent/plaintiff and the appellant/defendant for the last 15 years and that his wife Smt.Kasturi Vijaya

VII ADJC,KNL16AS 41-2023

Kumari is also working as an employee in the Irrigation Department and is a colleague of the respondent/plaintiff. He deposed that after the death of the mother of the respondent/plaintiff, they came to know that the Will was executed by her father and that as per the testament, the Eastern side shall be parted to the respondent/plaintiff and Western side to the appellant/defendant.

19.He further deposed that by the date of death of their mother, the appellant/defendant was in occupation of the suit schedule property. He deposed that earlier while the father of the respondent/plaintiff was alive, the respondent/plaintiff and her both parents were residing in the suit schedule house and by that time, the respondent/plaintiff constructed a portion in the upstairs with her own funds in the year 1996-1997 for the education of her children. He deposed that subsequently the father of the respondent/plaintiff and the appellant/defendant died and even by that date also, both the parties were not having knowledge about the Will dated 15.04.1994. He deposed that after the death of the father of the respondent/plaintiff in the year 2007, the appellant/defendant who came down to Kurnool from Adoni with her family due to financial problems, she sketched a plan with her brother and mother and

VII ADJC,KNL17AS 41-2023 all of them colluded and necked out the respondent/plaintiff from the house by force. He deposed that as no other alternative was there, respondent/plaintiff took a house on rent and started residing separately, but in the year 2011 the mother of the respondent/plaintiff died and just before her death, she informed both the sisters and handed over the Will executed by their father, to the appellant/defendant and since then there is a dispute between both the parties in sharing the suit schedule property because already the appellant/defendant has occupied and started residing in the suit schedule property.

20.PW2 further deposed that when the respondent/plaintiff demanded the appellant/defendant for her equal share in the plaint schedule property for partition and separate possession of her share, the appellant/defendant allotted a small room towards Eastern side to the respondent/plaintiff and stated that it is the only room given towards the share of the respondent/plaintiff because the recitals in the Will dated 15.04.1994 shows that the Eastern side portion was granted to the respondent/plaintiff and that there is no such equal portion and that only existing building towards Eastern side one room was allotted to the respondent/plaintiff is illegal and hardship to the respondent/plaintiff. He

VII ADJC,KNL18AS 41-2023 deposed that a number of panchayats were held and that he has acted as one of the elders in those panchayats and he advised the appellant/defendant and her husband to give equal portion to the respondent/plaintiff, but the appellant/defendant bluntly refused. He deposed that as there was no other alternative, the respondent/plaintiff was constrained to file this suit for her equal share in the suit schedule property including the upstairs though the respondent/plaintiff herself constructed the same with her own funds, as per the testament of the Will.

21.Through PW1, Exs.A1 to A5 are marked. The record of the Trial Court shows that after closure of the respondent/plaintiff’s side evidence, the appellant/defendant – S.Annapurnamma examined herself as DW1 and she filed her chief affidavit in lieu of her examination in chief, which is nothing but a reiteration of the contents of her written statement and as such this Court is not inclined to narrate the same. Through DW1, Exs.B1 to B5 were marked.

22.The record of the trial Court shows that considering the evidence of both parties as well as pleadings and upon hearing both sides, the learned trial Court

VII ADJC,KNL19AS 41-2023 decreed the suit on 13.06.2023 with costs for partition and separate possession of the respondent/plaintiff’s half share in the plaint schedule property.

23.The trial Court held in its judgment that “as per the admission made by

DW1, it is evident that as per Ex.A1-registered Will, Eastern side house portion was not given to the Plaintiff and only the existed hall on the Eastern side portion was given to the Plaintiff and the remaining portion including first floor is occupied by the appellant/defendant”. It held that “as per Ex.A1-Registered

Will, the Plaintiff is entitled for Eastern portion of Ex.A1 property and therefore

Plaintiff is entitled for half share in Ex.A1 property i.e., Eastern portion of

Ex.A1 property”. Considering the above judgment of the trial Court, and the facts on hand, it is an undisputed fact that the father of the appellant and the respondent executed a registered will dated 15.04.1994 (Ex.A1). A perusal of

Ex.A1/Will shows that the testator executed the same by bequeathing his two portions house in favour of his wife with limited rights and after her life time, the Western side portion is to be enjoyed by the appellant/defendant and the

Eastern side portion is to be enjoyed by the respondent/plaintiff. There is no dispute that as per Ex.A1, the Eastern side portion of the property of their father

VII ADJC,KNL20AS 41-2023 was bequeathed in favour of the respondent/plaintiff. PW1 during her cross- examination admitted that as per the Will dated 15.04.1994, her father bequeathed one portion to her and another portion to the appellant/defendant in the suit property. She admitted that in Ex.A1, there is clear recital that Eastern portion was bequeathed to her and the Western portion was bequeathed to the appellant/defendant. She deposed that the entry for the said house is from the

Southern side. She admitted that there are two shops in the plaint schedule property and those are on Southern side. She further admitted that on the first floor of the appellant/defendant’s portion, there is another portion. She further admitted that the stair cases leading to the first floor portion is from Southern side. He deposed that her father died in the year 2001 and her mother died in the year 2011. She deposed that she has not got her name mutated in the

Municipal records for Eastern portion, but it is the appellant/defendant who got mutated both names in Municipal Records and now she is getting property tax, demand notice on her name for Eastern portion. She further deposed that ever since during the lifetime of her mother, the electrical bills are generated separately for both Eastern and Western portion in the name of herself and the

VII ADJC,KNL21AS 41-2023 appellant/defendant respectively. Even though PW1 denied the suggestion of the appellant/defendant that as per the Will, she and the appellant/defendant are enjoying their respective portion and that she is not entitled for partition as pleaded in the plaint, the above evidence of PW1 clearly shows that as per

Ex.A1/Will, the Eastern portion was bequeathed to her and Western portion was bequeathed to the appellant/defendant and that the appellant/defendant has got mutated both names in the Municipal Records and she is getting property tax, demand notice on her name for Eastern portion and further electrical bills are also generated separately for both Eastern and Western portion in the names of herself and the appellant/defendant respectively. Hence, when the evidence of PW1’s itself shows that the names of the respondent/plaintiff and the appellant/defendant were mutated in the Municipal records and separate property tax demand notices and electrical bills are being generated in the name of the respondent/plaintiff and the appellant/defendant for the Eastern and

Western portion respectively, this Court feels that the Respondent/ respondent/plaintiff is not entitled for again claiming partition of the suit schedule property as Ex.A1-Will already partitioned the properties between the

VII ADJC,KNL22AS 41-2023 respondent/plaintiff and the appellant/defendant. Probably that might be the reason that Ex.B3/legal notice dated 30.06.2014 was issued by the respondent/plaintiff to the appellant/defendant seeking eviction of the appellant/defendant from the Eastern side front room which was allegedly occupied by the appellant/defendant herein. However, PW1 during her cross- examination pleaded ignorance about the issuance of legal notice dated 30.06.2014 to the appellant/defendant and issuance of reply notice dated 03.07.2014 vide Ex.B4. The appellant/defendant has filed the said legal notice

dated 30.06.2014 and the reply notice dated 03.07.2014 as Exs.B3 and B4

respectively which clearly show that the respondent/plaintiff initially issued notice to the appellant/defendant for eviction, but not for partition. However, the respondent/plaintiff again issued legal notice on 02.12.2014 seeking partition of the suit schedule property by allotting equal share to her. A perusal of Ex.A1-Will dated 15.04.1994 executed by the father of the appellant/defendant clearly shows that the father of the respondent/plaintiff and the appellant/defendant by name R.C.Narasimhulu purchased the suit schedule site by way of Ex.A2/sale deed i.e., house plots in Plot Nos.79 and 80 in

VII ADJC,KNL23AS 41-2023

Sy.No.781/A1 on 13.09.1985 and thereafter he has constructed houses in two portions with D.No.49/50-A-87-F16. As per the recitals of Ex.A1, the Eastern side portion was bequeathed to the respondent/plaintiff with limited rights to their mother, while the Western portion was bequeathed to the appellant/defendant with limited rights to their mother. Hence, when the recitals of Ex.A1 are clear enough to show that the father of the respondent/plaintiff and the appellant/defendant has already constructed house in two portions in the suit schedule property and allotted the Eastern portion to the respondent/plaintiff and Western portion to the appellant/defendant, the respondent/plaintiff cannot claim equal share in the suit schedule property.

24.The contention of the respondent/plaintiff is that DW1 had admitted during her cross-examination that she has occupied the entire house by throwing her away from her house and as such the appellant/defendant is liable to give half share in the suit schedule property to the respondent/plaintiff.

Furthermore, it is the other contention of the respondent/plaintiff that she has constructed the first floor on the upstairs of Western side of the half of the house in the year 1996-1997 with her own funds with the assistance of their

VII ADJC,KNL24AS 41-2023 father. It is the specific contention of the respondent/plaintiff that the appellant/defendant has given the portions in the first floor for rent and enjoying the rents.

25.Considering the above evidence, though PW1 contended and deposed that she had made constructions in the first floor of the Western side of the suit schedule property, admittedly she has not filed any document to prove the same.

Admittedly, the said constructions in the first floor were made during the lifetime of their father and at that time, neither the respondent/plaintiff nor the appellant/defendant were having any right over the suit schedule property as the father of the suit schedule property purchased the same and it is his self acquired property. The learned trial Court rightly held in its judgment that from the recitals of Ex.A1, it is clear that as on the date of execution of Will, there is no first floor in Ex.A1 property. It held that if at all the Plaintiff had constructed the first floor on the Western side portion of Ex.A1 property in the year 1996- 1997 she would have placed documentary evidence to prove the same, but the

Plaintiff did not file any scrap of paper to show that the construction of the first floor on Western side portion of Ex.A1 property was made by her. It held that

VII ADJC,KNL25AS 41-2023 in the absence of any evidence on record merely basing upon the oral evidence of Pws.1 and 2, this Court cannot come to a conclusion that the Plaintiff got constructed first floor on the Western portion of Ex.A1 property and it cannot be said that the Plaintiff got constructed the same. Considering the above, the learned trial Court rightly held that there is no document to show that the first floor on the Western side of the suit schedule property was constructed by the

Respondent/ respondent/plaintiff. As of now, as by the date of such alleged construction of the first floor as both the parties to the suit were not having any right over the said first floor as their father was alive by then, I feel that even if the respondent/plaintiff could prove that she constructed the first floor, she is not entitled for claiming any share in it.

26. Another point to be considered is that while the respondent/plaintiff filed the suit in O.S.NO.43/2015 claiming partition of the suit schedule property into two equal shares basing upon Ex.A1-Will, the respondent/plaintiff has not choose to prove the said Will by examining one of the attestors of Ex.A1-Will.

The respondent/plaintiff has examined PW2, who is the husband of PW1 and admittedly he is not an attestor for Ex.A1-Will. As per Sec.63 of Indian

VII ADJC,KNL26AS 41-2023

Succession Act and Sec.68 of Indian Evidence Act, the Will has to be proved by examining at least one attesting witness. Hence, before considering the other aspects, I feel that as the attestors of Ex.A1 were not examined, the

Ex.A1-Will remains unproved.

27.The evidence of DW1 shows that she admitted that no specific measurements are shown in the Will and it is referred in the Will that the

Western portion be given to her and Eastern portion be given to the respondent/plaintiff. She admitted that the entire suit schedule house including upstairs is occupied by her. She deposed that as per Will, half share was not given to the respondent/plaintiff, so she gave only existed hall on the Eastern side to the respondent/plaintiff and handed over the same to her and the remaining portion including first floor is with her. She admitted that the room located on South-East corner in the suit schedule property is in her possession.

She further admitted that since she has been staying in the suit house, she had got mutated her name and has been paying property tax. She further admitted that after the death of her mother, she has got transferred the Service

Connection in her name.

VII ADJC,KNL27AS 41-2023

28.Hence, the above evidence of DW1 though shows that the entire suit schedule house including upstairs is in the possession and enjoyment of the appellant/defendant and that as per Will, half share was not given to the respondent/plaintiff, considering the recitals of Ex.A1-Will and the discussion made above, I feel that as in the Ex.A1, there is clear mention about construction of two portions of house and allotment of Western portion to the appellant/defendant and Eastern portion to the respondent/plaintiff, the respondent/plaintiff is not entitled for partition of the suit schedule property in two equal shares. If at all the respondent/plaintiff is aggrieved by the acts of appellant/defendant, she can a file a suit for eviction, recovery of possession of her Eastern side portion by showing the exact measurements, blueprints of the suit schedule property. It is an admitted fact that the father of the respondent/plaintiff has constructed the house by obtaining permission from the

Municipal Authorities. Hence, when the father of the respondent/plaintiff constructed the plaint schedule house in the year 1987, after due Municipal formalities, certainly there would be a blueprint for the construction of the said house with measurements. Admittedly, the said blueprint was not filed in this

VII ADJC,KNL28AS 41-2023 case. Hence, as of now as the recitals of Ex.A1 show that there was construction of two portions and the Western side portion was allotted to the appellant/defendant herein and the Eastern side portion was allotted to the respondent/plaintiff herein, the respondent/plaintiff is not entitled for claiming partition of the plaint schedule property into two equal shares. The learned trial

Court ultimately decreed the suit with costs for partition and separate possession of the respondent/plaintiff’s half share in the plaint schedule property even without considering the fact that as per Ex.A1, the respondent/plaintiff is entitled for the Eastern portion only. In the judgment, the learned trial Court has not even mentioned that the suit is decreed by holding that the respondent/plaintiff is entitled for half share in the Eastern side portion of the plaint schedule property. Hence, I feel that the judgment of the trial

Court is not based upon reasonable grounds. Hence, I feel that seen in any way the judgment of the trial Court is not based upon the settled principles of law and it should be set aside.

29.In the result, the appeal is allowed setting aside the decree and judgment

dated 13.06.2023 passed by the learned trial Court i.e., Principal Senior Civil

VII ADJC,KNL29AS 41-2023

Judge’s Court, Kurnool in O.S.No.43/2015 and the suit is dismissed without

costs.

Dictated to the Stenographer Gr.1, transcribed by him, corrected and

pronounced by me in open Court, this the 15 th day of April, 2025.

VII Additional District Judge, Kurnool

APKU160004552025

IN THE COURT OF THE VII ADDITIONAL SESSIONS JUDGE,

KURNOOL.

PRESENT: Smt V.Lakshmi Rajyam, VII Additional Sessions Judge, Kurnool.

Friday, the 15th day of May, 2026.

CRIMINAL APPEAL NO.127 of 2022

From what Court Principal Junior Civil Judge, Dhone. the appeal is preferred Number of the Case inCalendar Case No.387 of 2019. that Court Description of theB.Ram Mohan Reddy, Son of Dasaratha Rami appellantReddy, Aged about 45 years, Agriculturist-cum- Business, Resident of House No.40/802/1A, Upstairs, Nehru Nagar, Kurnool.

Description of theV.Srinivasulu, Son of V.Subbarayudu, aged Respondentabout 45 years, Business, Resident of House No.6-20, Kothapeta, Bethamcherla Village and Mandal, Kurnool District.

The Judgment In the result, the accused is found guilty for the passed by the Loweroffence punishable under Section 138 of The Court to the Negotiable Instruments Act, 1881 and appellantaccordingly, he is convicted under Section 255 (2) of Cr.P.C. and sentenced to suffer simple imprisonment for a period of one year and also to pay a fine of Rs.10,10,000/- and out of the fine amount, an amount of Rs.10,00,000/- to be paid to complainant towards compensation and in default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.

2

Whether the appealCONFIRMED. confirmed, reversed or In the result, the Criminal Appeal No.127/2022 modifiedbythe is dismissed, confirming the Judgment dated Appellate Court 28.10.2022 passed in Calendar Case No.387/2019 by the Principal Junior Civil Judge, Dhone and as such, the Appellant/Accused/ B.Ram Mohan Reddy shall undergo the sentence imposed by the Trial Court.

Date of Presentati FilingNoticeRespon- HearingJudgment onissued bydent the Courtordered to appear 21.11.202224.11.2024.11.202227.12.202223.04.2015.05.20 222626

This appeal came up on 23.04.2026 for hearing before me in the presence of Sri P.Harinath Choudary, Sri Sri V.Puli Raju and

Ms.A.Deepika,Advocates for the appellant and of Sri K.Ravi Kumar,

Advocate for the respondent; having heard on both sides; upon perusal of the record and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The Appellant/B.Ram Mohan Reddy was the accused in

C.C.No.387/2019, while the respondent/V.Srinivasulu was the complainant in C.C.No.387/2019.

2.The Principal Junior Civil Judge, Dhone vide its Judgment dated 28.10.2022 found the Appellant/Accused/B.Ram Mohan Reddy guilty for the offence punishable under Section 138 of The Negotiable

Instruments Act, 1881 (hereinafter called as, the Act) and it convicted the Accused under Section 255 (2) of Cr.P.C. on 28.10.2022 and 3 directed him to undergo simple imprisonment for a period of one year and to pay fine of Rs.10,10,000/- and out of the said fine amount, an amount of Rs.10,00,000/- is to be paid to the respondent/complainant towards compensation and in default of payment of such fine, the

Appellant/Accused shall undergo simple imprisonment for a period of three months. Aggrieved by such Judgment dated 28.10.2022, the

Appellant/Accused/B.Ram Mohan Reddy preferred this appeal.

3.Before the appeal is considered, it is necessary to consider the case of the parties in C.C.No.387/2019.

4.Brief Facts of the Case of the Complainant:

The brief reference of the facts of the Trial Court record would be sufficient for determining this appeal:-

The respondent/complainant/V.Srinivasulu filed the complaint under Sections 138 and 142 of the Act against the

Appellant/Accused/B.Ram Mohan Reddy alleging that, the complainant and accused are well acquainted with each other by maintaining good business relationship and that, on 05.12.2018, the Appellant/Accused borrowed a hand loan of Rs.10,00,000/- from the respondent/ complainant in cash for his necessities, agreeing to repay the same within one month and that, after a month, when the respondent/ complainant orally asked the Appellant/Accused about the amount, the accused did not pay the said amount but on 01.01.2019, he issued a cheque bearing No.205743 for Rs.10,00,000/- in favour of the respondent/complainant for discharge of the said loan amount in the presence of V.Nagendrudu and G.Mahesh and the said cheque was drawn on State Bank of India, Kurnool Branch. He further averred that when the said cheque was presented before Axis Bank, Bethamcherla 4 on 13.03.2019 for collection, the said cheque was returned dishonoured for the reason, ‘funds insufficient’ on 14.03.2019 and that, on 02.04.2019, the respondent/complainant issued a legal notice to the

Appellant/Accused calling upon him to pay the cheque amount and that the said notice was served on 08.04.2019 with the endorsement intimation served and on 12.04.2019, the said notice was returned as unclaimed. He averred that, the Appellant/Accused did not pay the cheque amount in spite of receiving the said notice and as such, the respondent/complainant was constrained to file the complaint under

Section 138 and 142 of the Act.

5.Cognizance of the Court:-

As seen from the record of the Trial Court, the complainant in

C.C.No.387/2019 was filed before Judicial Magistrate of First Class,

Dhone but the said case, at the stage of issuing of summons to the accused, was transferred to the Principal Junior Civil Judge, Dhone vide proceedings of the Hon'ble Principal District and Sessions Judge,

Kurnool in Dis.No.5579/OP-Cell, dated 04.12.2019. The record of Trial

Court shows that after receipt of summons, the Trail Court examined him under Section 251 of Cr.P.C. and the accused denied the commission of offence under Section 138 of the Act, pleaded not guilty and claimed to be tried.

6.As seen from the Trial Court record, the respondent/ complainant examined himself as P.W.1 and further got examined one G.Mahesh as

P.W.2 and got marked Ex.P1 to Ex.P4.

Description of the Exhibits:

Ex.P1: Original Cheque bearing No.205743, dated 01.01.2019 for

Rs.10,00,000/-.

Ex.P2: Cheque return memo, dated 14.03.2019.

5

Ex.P3: Office copy of legal notice, dated 02.04.2019.

Ex.P4: Unserved postal cover with acknowledgment card.

7.The record of Trial Court further shows that, after closure of the complainant’s side evidence, the Appellant/Accused was examined under Section 313 of Cr.P.C. and the incriminating evidence appearing against him was put to him. He denied the same and reported that he has got defence evidence. However, on 11.08.2022, the accused reported that he has no defence evidence and on that, it was treated as closed.

8.Findings/Judgment of Trail Court:-

After considering the evidence of P.W.1, P.W.2 and Ex.P1 to

Ex.P4 as well as the scope of Sections 138 and 139 of the Act, the Trial

Court i.e., Principal Junior Civil Judge, Dhone found the

Accused/B.Ram Mohan Reddy guilty for the offence under Section 138 of the Act and convicted him under Section 255 (2) of Cr.P.C. for the offence under Section 138 of the Act.

9.Grounds of Appeal:- Aggrieved by such Judgment, the Appellant/Accused filed the present appeal questioning the above Judgment dated 28.10.2022 both on facts and law. As seen from the record, the Appellant/B.Ram Mohan

Reddy has questioned the legality of the Judgment on several grounds inter-alia; i.The Judgment of the Trial Court is neither just nor maintainable under law.

6 ii.The Trial Court has not observed the case material submitted by the Appellant regarding the non- maintainability of the complaint before the Trial Court and it has not considered all the Judgments which were submitted by the Appellant.

iii.The Trial Court has not observed the fillings in Ex.P1. As per the allegations of the Appellant, the Appellant has issued the cheque to the respondent on 01.01.2019 but it is false as per the evidence, the respondent himself has admitted in evidence that he himself filled up the blanks in the cheque and that, the handwriting of the cheque is also belonging to the complainant and as such, the question of issuing cheque does not arise.

iv.The complaint is not maintainable as per the allegations as the respondent did not issue proper legal notice to the appellant and that while the appellant is residing at

Bethamcherla, the respondent got issued legal notice to a wrong address i.e., Kurnool address and as such, the mandatory notice contemplated under Section 138 of the

Act is not issued.

v.The Trial Court has failed to observe the evidence given by the respondent/complainant and that, as per the evidence of P.W.1, one V.Suresh was present at the time of issuance of cheque on 01.01.2019 but the said V.Suresh was not examined and that, only one G.Mahesh was examined as

P.W.2 but the said G.Mahesh who is the close relative of the complainant, categorically deposed that he does not 7 know anything about the issuance of cheque. The lower

Court yet believed the evidence of P.W.2 and as such, it is against the law.

vi.The Appellant has never borrowed any amount from the respondent or issued any cheque for Rs.10,00,000/- in favour of the respondent. The respondent is a commission agent under the appellant and other lorry owners and both are maintaining one office at Bethamcherla and all the lorry transport papers and his personal documents including cheque book were kept in his table drawer and the respondent has taken the lorry transport papers along with empty cheques in the absence of appellant and that the appellant does not know about the misplacement of his papers along with cheque.

vii.The appellant after receipt of Court notice, questioned the respondent and held panchayat before elders and in that panchayat, the respondent had promised to withdraw the case but he did not listen to the words of elders and further, he admitted that the entire writing of the cheque belongs to him but the Trial Court has not observed the handwriting of the respondent.

viii.The Trial Court had believed the evidence of P.W.1 and

P.W.2 but did not give opportunity to the appellant to adduce his evidence or atleast listen to the request of the appellant.

ix.The respondent has created the signature of appellant and that the appellant is a contractor to NSL Transport 8

Company at Bethamcherla and that the respondent has taken sub-contract from the appellant with the label of NSL

Transport Company where number of transactions were made between the appellant and the respondent and the entire records were kept with him and he forged the signature on Ex.P1 and filed the complaint with a malafide intention as there are some disputes between the appellant and the respondent. The appellant averred that there was no consideration passed under Ex.P1/Cheque and that it was a created one and that the said fact was well known to all the public in Bethamcherla but the appellant did not get a chance to adduce evidence before the Court.

x.The appellant further averred that the cheque belongs to a firm and the account also is in the name of the firm but the complainant has failed to add the firm’s name in the said complaint as accused No.1 or 2 and as such, the complaint is not maintainable. He further averred that the Trial Court has not observed the capacity of the respondent that he is doing lorry commission business and that he has no capacity to provide finance to the appellant and that, except his oral evidence, there is no pronote to show that the amount of Rs.10,00,000/- was given to the appellant and that the said amount was not shown in the bank account or income-tax returns and as such, it is a forged document.

Hence, he prayed this Court to set aside the Calendar and

Judgment passed by the Principal Junior Civil Judge,

Dhone in C.C.No.387/2019, dated 28.10.2022 and to allow the appeal.

9

10.Arguments:-

The learned counsel for the Appellant/Accused has filed written arguments in lieu of his oral arguments in which, he has reiterated the contents of his grounds of appeal and as such, there is no necessity to reiterate the same.

11.Heard arguments of both sides and perused the record.

12.Point (s) for C onsideration:-

Considering the contents of complaint, the evidence on record, both oral and documentary in nature, the Judgment dated 28.10.2022 passed by the Trial Court, the grounds of appeal and the submissions of the learned counsels for the appellant and the respondent, this Court has to examine,

“Whether there are any justifiable grounds to set aside or

modify the Judgment dated 28.10.2022 of the Principal Junior Civil

Judge, Dhone in C.C.No.387/2019?”

or to put it otherwise,

“Whether the complainant/V.Srinivasulu made out a case

under Section 138 of the Act against the accused which warranted

conviction?”

13.In order to examine the above aspect, this Court has to examine whether the complainant could prove the ingredients required under

Section 138 of the Act.

10

Section 138 of the Act

Section 138 of the Act reads as follows:-

“138. Dishonour of cheque for insufficiency, etc., of funds in

the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless —

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque (within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the 11 holder in due course of the cheque, within fifteen days of receipt of the said notice.

Explanation - For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.

14.In a case under Section 138 of Negotiable Instruments Act, the complainant has to lead prima-facie evidence suggesting that the

Appellant/Accused/B.Ram Mohan Reddy issued the cheque in discharge of the legally enforceable debt. Once the complainant discharges the initial burden, the presumption under Section 139 of

Negotiable Instruments Act would come into play and the accused has to rebut it in the manner known to law. The Accused need not rebut it beyond reasonable doubt but it would be suffice if he leads evidence to show that the Cheque was never issued in discharge of any legally enforceable debt. The degree of proof required to substantiate the plea of the Accused is like the degree of proof required in civil cases i.e., preponderance of probabilities but it is not the proof beyond reasonable doubt.

15.In a case under Section 138 of The Negotiable Instruments Act, 1881, the complainant/V.Srinivasulu has to prove the following:

1. Existence of legally enforceable debt.

2. Accused issuing the cheque in discharge of such legally enforceable debt.

3. Presentation of cheque for collection within its period of validity.

4. Dishonor of cheque on one of the grounds which invite an offence under Section 138 of Negotiable Instruments Act.

12

5. Issuance of legal notice under Section 138 of Negotiable

Instruments Act.

6. Filing of complaint before the jurisdictional Court within the time stipulated by law.

16.Presentation of Cheque, its dishonour, issuance of legal notice under section 138 of N.I.Act and its service:

At first, the above aspects should be considered. As noted above, it is the case of the complainant/V.Srinivasulu that the Accused/B.Ram

Mohan Reddy borrowed an amount of Rs.10,00,000/- as hand loan on 05.12.2018 for his necessities agreeing to repay the same within one month and that, after a month, when the complainant/P.W.1 orally asked the accused to repay the said amount, on 01.01.2019, the accused issued Ex.P1/Cheque bearing No.205743 for Rs.10,00,000/- drawn on State Bank of India, Kurnool Branch in the presence of

V.Nagendrudu and G.Mahesh (P.W.2) to discharge the said hand loan amount. P.W.1 deposed that it was his case that when he presented the said cheque for collection before Axis Bank, Bethamcherla Branch on 13.03.2019, it was returned as dishonoured with an endorsement, ‘funds insufficient’ vide Ex.P2/cheque return memo and the same was intimated to the complainant by his banker on 14.03.2019. He deposed that, subsequently on 02.04.2019, he had got issued registered legal notice (Ex.P3) to the accused calling upon him to pay the cheque amount and that the said notice was returned with two endorsements i.e., intimation served on 08.04.2009 and unclaimed on 12.04.2009 as found in Ex.P4/returned postal cover. He deposed that, the accused even after refusing the said notice, did not pay any cheque amount and as such, he was compelled to file the complaint.

13

17.The complainant has got examined himself as P.W.1 and deposed the above said facts and further, he had got examined one

G.Mahesh as P.W.2. P.W.2/G.Mahesh filed his chief-affidavit in lieu of his examination-in-chief and in such evidence, he deposed that, on 05.12.2018, the accused borrowed an amount of Rs.10,00,000/- from the complainant and on 01.01.2019, when he was present at the complainant’s office at Bethamcherla Town, the accused came to the complainant’s office and issued a cheque bearing No.205743 to discharge the due amount. He deposed that, at that time, he along with

V.Suresh, Son of Subbarayudu were present. As seen from the record, the complainant/V.Srinivasulu filed the complaint on 29.04.2019 and as such, it is evident that the complainant has presented the cheque before proper Court complying the provisions under Section 138 of the Act. So all the above aspects stood proved.

18.Existence of legally enforceable debt and issuance of cheque in respect of such legally enforceable debt:-

As noted above, it is the case of complainant/V.Srinivasulu that the Accused/B.Ram Mohan Reddy borrowed an amount of

Rs.10,00,000/- as hand loan on 05.12.2018 for his necessities and agreed to repay the said amount within one month and after one month, he finally issued Ex.P1/Cheque bearing No.205743 for Rs.10,00,000/- drawn on State Bank of India, Kurnool Branch for discharge of the said hand loan amount in the presence of V.Nagendrudu and G.Mahesh.

During the trail, P.W.1/V.Srinivasulu gave evidence on the above said aspects. Upon considering the above evidence, it can be said that complainant has initially discharged his burden cast upon him under

Section 118 of the Act. The complainant also examined P.W.2 who is one of the witnesses for issuance of Ex.P1/Cheque by the accused in 14 favour of P.W.1. Though in the grounds of appeal, the learned counsel

for appellant has taken several pleas that the signature appearing on

Ex.P1 does not belong to the accused and that the appellant and respondent used to do work as commission agents with the appellant and other lorry owners and they both maintained one office at

Bethamcherla wherein all the lorry transport papers and personal documents of the appellant including cheque book were kept in his table drawer and that the respondent has taken the lorry transport papers and empty cheques belonging to the appellant in his business and that the signature on Ex.P1 was forged, categorically when P.W.1 was cross- examined, a suggestion was made to P.W.1 that the accused issued blank cheque to P.W.1 without mentioning the name and amount.

P.W.1 denied the said suggestion. Hence, it is clear that the accused/B.Ram Mohan Reddy admitted his signature appearing on

Ex.P1/Cheque. Therefore, when once his signature is admitted, the presumption under Section 139 of the Act would come into picture.

19. It should be held that the Court is bound to draw mandatory presumption under Section 139 of the Act until rebutted. The presumption that the Negotiable Instrument is supported by consideration should mandatorily be drawn when the execution of

Negotiable Instrument is either admitted or it is proved or it is not denied. This can be understood with reference to the following cases viz.,

In a decision reported in A.I.R 2010 S.C. 1898 in the case of

Rangappa vs Mohan, the Hon'ble Apex Court while dealing with

Secs.138 & 139 of N.I. Act had incidentally referred itself to Sec.118(a) of N.I. Act. In such decision the Hon'ble Supreme Court held that the presumption drawn under Section 118 (a) of the Act cannot be discharged by merely making some baseless suggestions. It referred 15 itself to the decisions reported in A.I.R. 2008 S.C. 2898 in the case of

Mallavarapu Kasi Visweswararao Vs. Thadikonda Ramulu Firm and

Other wherein it was observed “under section 118 (a) of the Negotiable

Instruments Act, the Court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non- existence of consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal”.

In the above said judgment, the Supreme Court had referred itself to a decision reported in A.I.R.1999 S.C.1008 in the case of Bharath

Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal

wherein it was observed that 'upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted the presumption u/sec.118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of Negotiable Instrument. The burden upon the defendant of proving the non-existence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he 16 relies. ...........the bare denial of the passing of consideration apparently does not appear to be a defence......”

In these case, the Hon'ble Apex Court has reiterated the legal position relating to presumption arising under Sections 118 and 139 of

Negotiable Instruments Act.

20.Once the complainant/V.Srinivasulu had established the existence of legally enforceable debt and that the accused/B.Ram

Mohan Reddy has issued the cheque in discharge of such legally enforceable debt, the accused has two options in rebutting the presumption under Section 139 of the Act. The first option is that the accused can rebut presumption by leading positive evidence and the second option is that the accused can rely upon the cross-examination of the complainant and his witnesses in rebutting the presumptions. In the instant case, as noted above, though the accused reported that he has got positive evidence, on 11.08.2022, he reported that he does not want to lead positive evidence. So the Court has to consider whether the evidence of complainant and other material on record, the accused could rebut the presumption drawn under Section 139 of the Act. As noted above, even though the learned counsel for the accused in his memorandum of written arguments denied the signature of accused on

Ex.P1/Cheque, categorically during cross-examination of P.W.1, it was suggested to P.W.1 that the accused issued blank cheque to P.W.1 without mentioning the name and amount. P.W.1 denied the said suggestion. He deposed that, the accused issued Ex.P1 to him. He deposed that, he himself filled the contents of cheque under Ex.P1. He admitted that he filled the cheque contents and presented the cheque.

He voluntarily deposed that he filled cheque contents in the presence of 17 accused. He admitted that he did not specify as to from where he secured Rs.10,00,000/- which was given to the accused. He denied the suggestion of the accused that he did not give amount of Rs.10,00,000/- to the accused. He further admitted that he runs Veeranjaneya Lorry

Transport. However, he denied the suggestion of the accused that the accused is indebted Rs.2,00,000/- to him towards commission through

Veeranjaneya Lorry Transport and after payment, he used to return the cheque. He further denied the suggestion of accused that the accused sent information to him through elders that he is due of Rs.2,00,000/- only after filing of the complaint and that, by using the blank cheque issued by him, he has foisted this false case to take revenge and that, for wrongful gain, he filled up Ex.P1 for Rs.10,00,000/-. He deposed that, he is not willing to receive Rs.2,00,000/- from the accused towards the actual debt. He further denied the suggestion of accused that in the lorry transport business, the accused used to issue cheque to him and after payment, he used to return the cheque. Considering the above suggestions made to P.W.1, eventhough the accused is admitting that he has issued a cheque in favour of P.W.1, he, on one hand contends that he issued blank cheque and on another hand, he contends that he is indebted to pay Rs.2,00,000/- to P.W.1 for lorry transport business and that the complainant has filled up the cheque for Rs.10,00,000/- on the blank cheque given by the accused. Eventhough the accused has contended as above, he has not proved the same by adducing any evidence or examining any witnesses in his favour. Even if for a moment it is presumed that the accused has given blank cheque only and that the complainant has filled up the said cheque, it itself will not be fatal to the case of complainant as per Section 20 of Negotiable

Instruments Act.

18

As per Section 20 of Negotiable Instruments Act, 1881 — Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. Hence, as per Section 20 of the said Act, if a person gives a blank cheque to another person permitting him to fill up the contents of the said cheque, it is a valid cheque called as inchoate instrument and the person who signs on such cheque is liable for paying the amount reflected in the said Negotiable Instrument.

21.In the instant case, admittedly, as per the evidence of P.W.1, he has filled the contents of the cheque under Ex.P1. It is not the case of accused that he had filled up the amount as Rs.2,00,000/- only and that, later on it was changed into Rs.10,00,000/-. Hence, even if for a moment it is presumed that the accused merely signed on

Ex.P1/Cheque and the details of Ex.P1 were filled up by P.W.1, it will be a valid cheque and the liability under Ex.P1 can be fastened on the accused. Admittedly, the accused has neither paid Rs.10,00,000/- or

Rs.2,00,000/- as per his own version and as such, it is for him to prove as to why he did not pay any amount under Ex.P1 though he signed on it. Hence, considering the above cross-examination of P.W.1 it may be 19 noted that the evidence of P.W.1 and P.W.2 have fortified the existence of legally enforceable debt under Ex.P1/Cheque.

22.Now, this Court would consider the nature of evidence that the accused has to tender in order to rebut the presumption under Section 139 of Negotiable Instruments Act, 1881. At this juncture, it would be apposite to refer to the case of Uttam Ram Vs Devinder Singh Sudan & Another, where the Honble Apex Court referred to the case of Rohit

Bai Jivanlal Patel Vs State of Gujarath and Another AIR 2019 SC 1876 for the purpose of understanding the nature of burden that the accused has to undertake in rebutting the presumptions. In para 20 it was held that,

Para.20: On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that consideration did not exist. This

Court has, time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfill the requirements of rebuttal as envisaged under Sec.118 and

Sec.139 of Negotiable Instruments Act, 1881.

Further, the Apex Court considering the facts held that even though the Trial Court and High Court proceeded as if the appellant is to prove a debt before Civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of amount due. It held that a dishonor of 20

Cheque carries a statutory presumption of consideration. The holder of a Cheque in due course is required to prove that the

Cheque was issued by the accused and that when the same was presented, it was not honoured. Since, there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the Cheque was issued not for any debt or liability.

23.Hence, considering the above evidence of P.W.1 and P.W.2 though the accused had taken several baseless pleas, he could not substantiate any one of them. Further, the pleas found in the cross- examination of P.W.1 are different from the pleas of the accused as found in his grounds of appeal and as such, it is clear that the accused has tried to take several pleas for exonerating himself from liability under Ex.P1/Cheque but he could not substantiate any one of them. So, considering the above Judgment, it is certain that the burden is on the accused only to state that he should not be prosecuted for the offence under Section 138 of the Act when the evidence of P.W.1 and P.W.2 and Ex.P1 to Ex.P4 and the suggestions putforth to P.W.1 clearly prove that the accused took several stands for proving his case but he could not rebut the presumption drawn under Section 138 of the Act. Hence, the Accused/B.Ram Mohan Reddy is liable for the consequences of

Section 138 of the Act.

This Court has considered the entire Judgment of the Trial Court in C.C.No.387/2019 passed by the Principal Junior Civil Judge, Dhone on 28.10.2022. The Judgment of the Trial Court is found to be correct, both on facts and on law. Considering all the above aspects, this Court could not find any grounds to set aside the Judgment of the Trial Court.

The accused is liable to face the consequences under Section 138 of 21 the Act. Thus, the appeal would fail. Accordingly, the point framed for consideration is answered in favour of respondent/complainant and against the Appellant/Accused.

24.In the result, the Criminal Appeal No.127/2022 is dismissed, confirming the Judgment dated 28.10.2022 passed in Calendar Case

No.387/2019 by the Principal Junior Civil Judge, Dhone and as such, the Appellant/Accused/B.Ram Mohan Reddy shall undergo the sentence imposed by the Trial Court.

Dictated to the Stenographer Grade-I, transcribed by her,

corrected and pronounced by me in the open Court, this the 15 th day of

May, 2026.

Sd/- Smt V.Lakshmi Rajyam

VII ADDITIONAL SESSIONS JUDGE,

KURNOOL.

Copy to:

The Principal Junior Civil Judge, Dhone.