Sri V.Sreenivasulu, ASCJ

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In the Court of Addl.Senior Civil Judge, Anantapur,

Present:-Sri V.Sreenivasulu, Addl. Senior Civil Judge,

Anantapur

Saturday, the 24th day of June, 2017

O.S.No.30/2009

Between:-

Karanam Muralikrishna .. Plaintiff

and

Gapala Akila Bhanu..Defendant

This suit coming on 1-6-17 for disposal before me in the presence of Sri N.R.K. Mohan, Advocate for the Plaintiff and of Sri A. Rami Reddy,

Advocate for the Defendant 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.This is a suit filed for recovery of money for sum of

Rs.5,29,672 (Rs.3,12,000/- +Rs.1,01,205/- + Rs.1,16,467/-) made of

A, B and C marked pronotes being the principal and interest and also for costs of the suit and further reliefs.

2.The averments of the plaint in brief is as follows.

The defendant borrowed a sum of Rs.2,60,000/- on 22.3.08, and Rs.85,000/- on 5-4-08 and Rs.1,00,000/- on 14-5-08 and executed

A, B and C suit promissory notes in favour of plaintiff with a view to repay the same with interest at 24% p.a. On repeated demands of the plaintiff, the defendant did not repay the same Hence the suit.

3.The defendant filed a detailed written statement denying the contents and allegations of the plaint in para wise and point wise stating that the suit is not maintainable either in law or on facts. The defendant further submits that, the plaintiff is running unregistered finance 2 company, for higher rate of interest for daily payment. The defendant further submits that she is a tailor and used to borrow amounts from the plaintiff, since 2 years agreeing to repay the same, in daily installment payment with interest @ 5/-p.m on Rs.100/- and towards security the plaintiff took signatures of the defendant on three blank promissory notes, and as agreed by the defendant she had been paying the daily installments to the plaintiff and maintained separate note books.

Whenever the defendant used to pay the installments delay or one or two days, the plaintiff forcibly collected compound interest by harassing her and also forcibly took away valuable articles from her house.

The defendant further submits that, on 12-10-08 the defendant pledged 20 tulas of gold ornaments with the plaintiff as security for the amount borrowed by her under a receipt dated 12-10-08 for security of earlier amount Rs.5,00,000/-. Due to the disputes between the plaintiff and the defendant, a panchayat was conveyed on 5.1.09 in the house of the defendant and the matter was settled and the plantiff agreed to adjust with 20 tulas of gold ornaments already kept with him, and to receive cash of Rs.3,00,000/- from the defendant and hand over the three promissory notes to the defendant to that effect a receipt dated 5-1-09 issued in favour of the defendant by the plaintiff.

But, the plaintiff did not hand over the said three promissory notes, and filed the suit with malafide intention by materially altering the said promissory note. Hence, the suit is not maintainable and it is liable to be dismissed.

4.For trial the following issues have been framed by my learned predecessor:

1.Whether the suit pronotes dt.22-2-06, 5-4-08 and

14-5-08 are correct and supported by consideration?

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2. Whether plaintiff is entitled for recovery of suit amount?

2. To what relief?

5.At the time of trial two witnesses are examined as PW1 and PW2 and Ex.A1 to A3 are marked on behalf of plaintiff. Ex.C1 is also marked.

6.On behalf of the defendants, DWs1 to 3 are examined and

Exs.B1 to B6 are marked.

7.Heard the arguments on both sides and also verified the entire suit record with relevant documents.

8.ISSUE NO.1:- The learned counsel for the plaintiff argued that, the plaintiff clearly proved and established his claim and contention as pleaded in the plaint and the same is supported by PW1 and 2. The evidence of PW1 is established and supported by PW2 and Exs.A1 to A3 and Ex.C1. Whereas, the defendant miserably failed to prove her contention as pleaded in the written statement.

9. The learned counsel for the defendant argued that, the plaintiff is running the unregistered finance company lending money to the third parties for higher rate of interest on daily payment. The defendant is a poor lady and small tailor doing embroidery work by eking her livelihood. She used to borrow the amounts from the plaintiff for the last two years and used to pay daily installments @ interest of

Rs.5/-per month. Then, the plaintiff obtained the signatures of the defendant in three promissory notes, without mentioning the amount agreed by the defendant and she has been paying the daily installments to the plaintiff maintaining a separate notebook.

10.The learned counsel for the defendant argued that on 4 12.10.08 the defendant pledged 20 tulas of gold ornaments with the plaintiff for security of the amount borrowed by her, without taking any valid consideration. Accordingly, the plaintiff issued a receipt to that effect mentioning a sum of Rs.5,00,000/- for security of the amount borrowed by the defendant. Due to some disputes between the plaintiff and the defendant with regard to the payment of installments, the elders conducted panchayat on 5-1-09 in the house of the defendant and the matter was settled in that panchayat and the plaintiff agreed that 20 tulas of gold ornaments already kept with him and to receive a cash of RS.3,00,000/- from the defendant.

11.The learned counsel for the defendant argued that the plaintiff also agreed to hand over the three promissory notes to the defendant in the presence of the elders. To that effect, the plaintiff issued a receipt on 5-1-09. Now, the defendant has no obligation to pay the suit amount, as the gold ornaments hypothecated with the plaintiff is adjusted to the amount payable to plaintiff. The contention of the defendant is clearly established and proved by DW1 and supported by

Exs.B1 to B6 and the suit is liable to be dismissed.

12.PW1 deposed supporting pleadings of the plaint in detail and the same is supported by Exs.A1 to A3. As such the evidence of PW.1 is consistent and corroborative and the same is clearly supported by PW2 and Exs.A1 to A3.

13.PW2 being the handwriting expert supported the version of the plaintiff stating that the disputed signatures in Ex.B6 are not similar with the admitted signatures of the plaintiff and under Ex.C1.

14.According to DW1 the plaintiff is running unregistered finance company and lending money for higher rate of interest on daily payments. The defendant is a poor woman and a small tailor doing 5 embroidery work for eking out of her livelihood. She used to borrow the amounts from the plaintiff for the last two years agreeing to repay the same on the basis of daily installments with interest @ 5%. For the purpose of security the plaintiff took the signatures of the defendant on three promissory notes without mentioning the amount and dates and without filling the blanks of the promissory notes. She has been paying daily installments to the plaintiff and maintained a separate note book.

15. DW1 deposed that the plaintiff has been harassing and humiliating for payment of the installments and forced the defendant for payment of the amount on the basis of daily payments for which the plaintiff pledged 20 tulas of gold ornaments to the plaintiff on 12-10-08 as security to the amount borrowed by her without taking any valid consideration for which the plaintiff also issued a receipt on 12-10-08 under Ex.B2, that DW1 pledged gold ornaments of 20 tulas for the purpose of security of Rs.5,00,000/-. Subsequently, the matter was settled before the elders stating that, to adjust the gold ornaments pledged by the defendant in favour of the plaintiff, for adjustment of the loan amount borrowed by DW1. Now, there is no need to pay any amount to the plaintiff for which the defendant has filed Ex.B1 to B6 to prove her contention.

16.On verification of Exs.B1 to B6 it is observed that, on 12.10.08 the defendant executed a letter under Ex.B1 in favour of one

K.S. Lakshmi w/o K. Muralikrishna/plaintiff. According to Ex.B1, the defendant hypothecated gold ornaments in favour of Smt K.S. Lakshmi w/o K. Muralikrishna/the plaintiff. The defendant put the gold ornaments with the said K.S. Lakshmi for the purpose of security of

Rs.5,00,000/-, because there are some money dealings between Smt

K.S. Lakshmi and the defendant. But, the plaintiff put the signature on 6 the left side of Ex.B1. The defendant put the signature on the right side of the bottom of Ex.B1, but the letter is executed in the name of the wife of the plaintiff by name K.S. Lakshmi. There are some corrections in Ex.B1. The description particulars of gold chains are not clearly mentioned. Its weight is not clearly mentioned, that how much amount the defendant is taken is not mentioned. It is simply mentioned that the defendant hypothecated 20 tulas of gold ornaments for the purpose of security of Rs.5,00,000/-. It is also not clearly mentioned that between whom the money dealings are coming, whether between the plaintiff and defendant or between the wife of the plaintiff by name K.S. Lakshmi and the defendant. As such, Ex.B1 is not supporting the contention of the defendant. The pleadings does not contain the recitals of Ex.B1 in respect of the transaction between K.S. Lakshmi and the defendant.

17.Ex.B2 is two ruled long note books. Some amounts are mentioned in Ex.B2, but there is no clarity to say that for what purpose the amounts are mentioned, and who maintained Ex.B2. Ex.B2 does not contain the particulars of the purpose and do not contain the signatures of the plaintiff or the defendant. In Ex.B2 only the dates and amounts are mentioned without any particulars in supporting the case of the defendant. Ex.B3 is also a white paper long note book. It also contains the dates and some entries without any clarification, whether the entries refers to amounts or any other accounts. It is also not supporting the pleadings of the written statement and the version of the defendant. As discussed above, it is not clarified for which purpose

Exs.B1 to B3 are maintained.

18.Ex.B4 is a certified Xerox copy of secondary school certificate of one Gathala Sonia Begum. There is no recital in respect of

Ex.B4 in the pleadings of the written statement that how Ex.B4 is 7 supporting the case of the defendant, and is not explained. Ex.B5 is the bonafide certificate in respect of G. Sonia Begum, who is the daughter of

G. Fakruddin in respect of the studying of the Sonia Begum. It is also not explained and not referred in the written statement or in the evidence of DW1 that how Ex.B5 is supporting the contention of the defendant.

19.Ex.B6 is a receipt dated 5-1-09 alleged to have been executed by the plaintiff in favor of the defendant in respect of the adjustment of the amount borrowed by the defendant. According to it, the amount borrowed by the defendant was adjusted with 20 tulas of gold ornaments, which were kept with the plaintiff as surety for the amount borrowed by the defendant. It is further mentioned in Ex.B6 that the defendant borrowed a sum of Rs.4,45,000/- in the month of

March, April, May in the year 2008 for which on 12-10-08 the plaintiff has taken 20 tulas of gold as a surety and the elders settled the issue on 5-1-09. Accordingly, the plaintiff has taken Rs.3,00,000/- from the defendant and also adjusted for the remaining amount by taking gold of 20 tulas belongs to the defendant and the plaintiff has to return the suit promissory notes to the defendant. The plaintiff/PW1 totally denied the execution of Ex.B6 and also Ex.B1 to B5.

20.Ex.B6 was sent to the opinion of the handwriting expert and the handwriting expert examined the admitted signatures and disputed signatures of the plaintiff in Ex.B6 and gave his opinion that the signatures of the plaintiff in Ex.B6 compared with the admitted signatures and the disputed signatures of the plaintiff in Ex.B6 are not consistent with his admitted signatures. The handwriting expert scanned all the letters of the disputed signatures of the plaintiff in Ex.B6 and gave his opinion under Ex.C1 that these signatures in Ex.B6 are not 8 belongs to the Muralikrishna who is the plaintiff herein, because the letters in the admitted signatures of the plaintiff are not similar with the disputed signatures of the plaintiff in Ex.B6. Therefore, the disputed signatures shown in Ex.B6 are not similar with the admitted signatures of K. Muralikrishna who is the plaintiff herein. As such, the forensic expert of Andhra Pradesh Forensic Laboratory declared that the disputed signatures in Ex.B6 are not scribed by the said K.Muralikrishna and he clearly explained in Ex.C1 and also in his evidence.

21. On verification of the signatures shown in Ex.B1 and also in

Ex.B6 are different with the admitted signatures shown in the plaint, vakalat, and chief affidavit of the plaintiff/PW1. As discussed above, the opinion of the expert is supporting the version of the plaintiff.

22.The handwriting expert by name Sri N. Krishna Prasad is examined as PW2 on behalf of the plaintiff and he clearly deposed that the disputed signatures in Ex.B6 in respect of the name of K.

Muralikrishna are not similar to his admitted signatures, and the signatures shown in Ex.B6 are not scribed by K. Muralikrishna who is the plaintiff herein. Ex.B1 and B6 are the main material documents to prove the contention of the defendant. But, these documents are contradictory with the pleadings of the plaint and the evidence of DW1 and also on other material aspects and not supporting the contention of

DW1.

23.DW1 denied the contents of the plaint in respect of the borrowing of the money in the month of March, April and May of 2008 and she did not explain that how much amount she borrowed from the plaintiff, but she admitted in written statement that she is having money dealings with the plaintiff and she used to borrow money from the plaintiff, on installment basis and on daily payment system. In Ex.B6 it 9 is clearly mentioned that she has borrowed a sum of Rs.4,45,000/- in the month of March, April and May of 2008, but she clearly denied in her written statement and also in her chief affidavit. As such, the evidence and pleadings of the defendant in the written statement and the recitals in Ex.B6 are not consistent in respect of the borrowing of money in the month of March, April, May of 2008 and also in respect of the dates as shown in Ex.A1 to A3.

24.According to DW2, he conducted panchayat on 5-1-09 in the house of the defendant in the presence of himself, plaintiff, one K.

Venkata Reddy and K. Lokanathachary. Accordingly, the defendant paid a cash of Rs.3,00,000/- to the plaintiff and also 20 tulas of gold which were kept with the plaintiff under Ex.B1 was adjusted to the defendant by paying a sum of Rs.3,00,000/- to the plaintiff. DW2 scribed a document on 5-1-09 under Ex.B3. The said document was attested by

DW3. The evidence of DWs2 and 3 are similar in respect of extention of

Ex.A6. According to DWs2 and 3, there was a panchayat in the police station. Thereafter, they went to the house of DW1 along with the pronotes and they conducted panchayat in the house of the defendant.

DW2 and 3 further deposed that in their cross examination they did not go to police station, they do not know what was happened in the police station in the panchayat conducted by the police. They further deposed that, they cannot say whether the defendant executed blank promissory notes without date under Ex.A1 to A3, because they have not seen

Exs.A1 to A3 at any time. There was no any discussion in the panahayath with regard to Exs.A1 to A3. Ex.B1 is prepared by DW1 and scribed by DW2 and attested by DW3.

25.DW2 and DW3 further admitted that Ex.B1 does not contain their signatures. As discussed above, the evidence of DW2 and 3 are 10 not consistent with their chief and cross and not supported the contention of DW1 in respect of execution of Ex.B1 and B6 and also in respect of execution of Ex.A1 to A3. DW2 and DW3 further admitted that the dates of the suit promissory notes and its particulars are not mentioned clearly in Ex.B1 to B3 and B6 to refer and for discussion in respect of settlement of the issue. In the presence of DW2 and DW3 the defendant/DW1 did not give any cash or gold ornaments to the plaintiff in the presence of DW2 and DW3.

27.As discussed above, the evidence of DWs1 to 3 are not supporting the contention of the defendant and the pleadings of the written statement, Ex.B1 to B6 are also not supporting the version of the defendant.

28.Whereas, the plaintiff clearly proved and established his claim and contention and the same is supported by PW1 and PW2 and under Ex.A1 to A3. PW2 being the handwriting expert also supported the contention of the plaintiff deposing that the admitted signatures of the plaintiff are not similar with the disputed signatures of the plaintiff as shown in Ex.B6.

According to the citation reported in ILR 2001(3) AP 421 and 2001(6) ALT 95 (DB)

“U/s 4, 20 and 42 of N.I Act, a promissory note is

wholly blank or partly blank or written with

complete particulars and signed by the maker or

executants, and handed over the same to the holder

of the document, it can be treated as a genuine

document and its ingredients can be taken into

consideration and blanks of the promissory note

can be filed later.”

30.If the defendant put his signatures in a blank promissory notes without filling the recitals, subsequently, the holder of the promissory note or the plaintiff can fill the blanks and file the suit. Such 11 signatures in the blank promissory notes can be taken into consideration and the holder of the promissory notes or plaintiff can fill the blanks and file the suit.

31.In the present case the defendant has taken a plea, that she put his signatures in a printed blank promissory notes without filling the columns. In that circumstances, and in view of the above citation, such blank promissory notes can be taken into consideration and subsequently that blanks can be filled up, because the defendant has not denied the borrowing of money under Ex.A1 to A3. She clearly admitted in her pleadings and evidence and also in Ex.B1 and B6 that she has borrowed the amount from the plaintiff in the month of March,

April and May of 2008 and she is having money dealings with the plaintiff.

32. In the above said circumstances, in the light of the evidence and in view of the above said citations, I am of the opinion that the plaintiff clearly proved and established his claim and contention. Hence, the suit promissory notes are found to be true, valid and binding on the defendant and supported by consideration. Accordingly, this issue has been settled in favour of the plaintiff.

33.ISSUE NO.2: As discussed in issue no.1 in detail the plaintiff clearly proved and established his claim and contention as pleaded in the plaint and the same is supported by PW1 and PW2 and proved by Ex.A1 to A3 and Ex.C1. Whereas the defendant miserably failed to prove her contention and the evidence of DWs1 to 3 are not supported by Exs.B1 to B6. It is clearly discussed in issue no.1 in supporting with the relevant citations, now there is no need to repeat the same in this issue. Hence, the plaintiff is entitled for recovery of the suit amount. Accordingly, this issue is has been settled in favour of the 12 plaintiff

34.Issue No.3:

In the result, the suit claim is proved and the suit is decreed for sum of Rs.5,29,672 (Rs.3,12,000/- +Rs.1,01,205/- + Rs.1,16,467/-) with costs as prayed, but the subsequent interest shall be paid at the rate of 6% p.a., from the date of the suit till the date of realization only on the principal amount of Rs.4,45,000/-(Rs.2,60,000/- +Rs.85,000/- +

Rs.1,00,000/-) made of A, B and C marked pronotes. Accordingly, the suit is decreed.

Typed to my dictation by the stenographer, corrected and

pronounced by me in open Court on this the 24th day of June, 2017.

Additional Senior Civil Judge

Anantapur Appendix of evidence Witnesses examined for Plaintiff Defendant

PW1: K.MuralikrishnaDW1: Akhila Banu PW2: K. Krishna PrasadDW2:M.N.Kumar DW3:K.Lokanathachary

Exhibits marked for plaintiff

Ex.A1: 'A' marked suit pronote dt.22-3-08 executed by defendant in favour of plaintiff for Rs.2,60,000/-. Ex.A2: 'B' marked suit pronote dt.5-4-08 executed by defendant in favour of plaintiff for Rs.85,000/- Ex.A3: 'C' marked suit pronote dt.14-5-08 executed by defendant in favour of plaintiff for Rs.1,00,000/-

Exhibits marked for Defendant

Ex.B1: Receipt towards gold dt.12-10-08 Ex.B2: Two account note books Ex.B3: Receipt for settlement of the amount dt.5-1-09 Ex.B4: Attested copy of SSC certificate Ex.B5: Attested copy of bonafide certificate Ex.B6: Receipt dt.5-1-09

Exhibits marked through court:

Ex.C1: FSL report dt.23-9-14

ASCJ 13

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In the Court of Additional Senior Civil Judge, Anantapur.

Present:-Sri V.Sreenivasulu, Addl. Senior Civil Judge

Tuesday, the 27th day of June, 2017

O.S. No.444/2008

Between:- 1.Ambati Narayana Reddy(died) by LRs

2. Ambati Thirumala Reddy

3. Ambati Venkata Adinarayana Reddy 4.Atla Umadevi

5. Ambati Ramadevi (2 to 5 added as per orders in IA 123/17

Dt.6-3-17...Plaintiffs

VS 1.M.Hanumantha Reddy 2.M. Sanjeeva Reddy 3.M. Indra Prasad Reddy 4.K.Subhash Chandra Bose 5.Dudekula Hussain Peera

6.M/s New Tyre Tops, by its partners...Defendants

This suit coming on 7-6-17 for disposal before me in the presence of Sri B. Ravi Prasad, Advocate for the Plaintiff and of Sri N.R.K.

Mohan, Advocate for 1st defendant, defendants 2 to 6 remained exparte, and the matter having stood over for consideration till this day this court delivered the following:-

JUDGMENT

1.This is a suit filed for declaration of the right and title of the plaintiffs over the suit schedule property and also for permanent injunction restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and also for suit costs and further reliefs.

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

The deceased 1st plaintiff is the absolute owner of the suit 2 schedule property. He died on 19-12-16 leaving behind the plaintiffs 2 to 5 as his legal heirs. The plaintiffs 2 and 3 are the sons, 4 and 5 are the daughters. The entire assets of the deceased 1st plaintiff are under the possession and enjoyment of the plaintiffs 2 to 5. The 1st defendant is the brother of 2nd defendant and father of 3rd defendant and they are all partners in the 6th defendant firm. The defendants 4 and 5 are also their close associates. The deceased 1st plaintiff is the absolute owner of the suit schedule property situated in S.No.91/1A to an extent of 36cents in Pymash No.7 along with other properties he purchased for a sum of Rs.2500/- from its rightful owners viz., M. Mallappa and Chinna

Venkata Reddy on 18-8-1971. The 1st defendant herein purchased 0.27.26cents from the deceased 1st plaintiff under registered sale deed

dated 26-7-1991 for consideration of Rs.1,98,000/- leaving an extent of

0.08.74cents with the deceased 1st plaintiff. As such, the deceased 1st plaintiff was in possession and enjoyment of the site measuring o.08.74cents.

3.The plaintiffs further submit that, the 1st defendant herein entered into an agreement of sale with the deceased 1st plaintiff to purchase an extent of 0.04cents adjoining to the land of the 1st defendant which was earlier purchased from the deceased 1st plaintiff.

The said agreement was barred by limitation. The 1st defendant committed the breach of the terms of the agreement of the sale and he failed to obtain the sale deed from the deceased 1st plaintiff. Now, the said site 0.04cents remained with the deceased 1st plaintiff. Therefore, the deceased 1st plaintiff and his LRs are in possession of 0.08.74cents.

In the year 1999 the defendant tried to encroach into the remaining site of deceased 1st plaintiff to an extent of 0.04.74cents. After observing the illegal activities of the 1st defendant, the deceased 1st plaintiff issued 3 a legal notice for which the 1st defendant also issued a reply notice with false and untenable allegations. Later, the elders entered into this matter and conducted panchayat and settled the issue. Thereafter, the deceased 1st plaintiff filed a suit for permanent injunction on the file of the Junior Civil Judge, Anantapur in OS 908/02 for which the 1st defendant herein filed a detailed written statement along with reply notice.

4.The plaintiffs further submit that the said suit was filed on 12-11-02 against the 1st defendant for permanent injunction in OS 908/02. The 1st defendant has sold away the said property in favour of 4th defendant on 5-9-01 for a sum of Rs.2,00,000/- under registered sale deed in the capacity of the partners of M/S New Tyre Tops,

Anantapur, but 1st defendant not transferred the property to the 4th defendant, because the said property is under the exclusive possession of the deceased 1st plaintiff. Thereafter, the 4th defendant executed a registered sale deed for the same property in favour of 5th defendant and the 5th defendant has been in possession and enjoyment of the said property. The 5th defendant is not the owner of the suit schedule property. The defendants 1 to 3 being the partners cannot transfer any property to the 4th defendant. The 1st defendant is aware of the sale transaction dated 5-9-01. Due to the high handed action of defendants 1 to 6, the deceased 1st plaintiff happened to file the suit, because the defendants are seriously trying to occupy the suit schedule property.

5.The plaintiffs further submit that the suit schedule property is the valuable property situated within the corporation limits of

Anantapur. The deceased 1st plaintiff and his LRs are enjoying the same.

Now, the defendants are seriously trying to interfere into the suit schedule property with a view to occupy the same. They are having 4 money and men support and proclaiming that they would dispossess the deceased 1st plaintiff and his LRs for the suit schedule property. Hence the suit.

6.The contesting 1st defendant filed a detailed written statement denying the contents and allegations of the plaint in para wise and point wise stating that the suit is not maintainable either in law or on facts. The defendants 2 and 6 remained exparte. The 1st defendant further submits that, the plaintiff has executed an agreement of sale in favor of the 2nd defendant in respect of the remaining property of the sale deed dated 26-7-1991. The deceased 1st plaintiff has received advance amount under agreement of sale dt.10-2-97.

Subsequently, the deceased 1st plaintiff also received the balance of sale consideration on 19-2-97 and agreed that he would execute a registered sale deed in favour of the 2nd defendant. The 2nd defendant is no other than the brother of the 1st defendant. As such, the deceased 1st plaintiff has lost his title over the suit property. There is no cause of action I filing of the suit and the suit is bad for non-joinder of necessary parties and liable to be dismissed.

7.For trial, the following issues have been framed by my predecessor:

1. Whether the plaintiff got right and title over the suit schedule property?

2. Whether the plaintiff is entitled for permanent injunction against the defendant as prayed for?

3.To what relief?

8.At the time of trial, 3 witnesses are examined as Pws1 to 3 on behalf of the plaintiffs and Exs.A1 to A11 are marked. The evidence of PW2 is eschewed.

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9.On behalf of the defendants, DW1 is examined and Exs.B1 and B2 are marked.

10.Heard the arguments on both sides and also verified the entire suit records with relevant documents.

11.ISSUE NO.1 :- The learned counsel for the plaintiff argued that, the plaintiff clearly proved and established his claim and contention as prayed in the plaint and the same is supported by PW1. The evidence of PW1 is established and supported by PW3 and Ex.A1 to A11, whereas the defendants miserably failed to prove their contention as pleaded in the written statement. The counsel for the plaintiff further argued that the deceased 1st plaintiff purchased an extent of 36cents in S.No.91/1A under Ex.A1 on 18-8-1971 from its rightful owner along with some other properties. Thereafter, he sold an extent of 0.27.26cents to the 1st defendant and he kept the remaining 0.08.74 cents with him. Again, the 1st defendant entered into an agreement of sale with the deceased 1st plaintiff to an extent of 0.04cents. The 1st defendant could not pay the amount under sale agreement, so that the agreement of sale was cancelled. Thereafter, defendants 1 to 3 sold the property to 4th defendant in turn, 4th defendant sold the same to D5. Now, 6th defendant tyre company is in possession of Ac.4-63cents. The contention of the deceased 1st plaintiff is clearly proved and supported by Exs.A1 to A11 and established by PW1 and PW3.

12.The learned counsel for the contesting 1st defendant argued that, the 1st defendant never borrowed an extent of 0.27.26cents from deceased 1st plaintiff on 2-6-1991 and he never entered in the agreement to purchase remaining 0.04 cents out of 0.08.74 cents. The boundaries of the suit schedule and the extent are not supported by any material document. It is the principle of law that the plaintiff has to 6 prove the boundaries, S.No., and extent of the suit schedule and also the averments of the plaint. The pleadings of the plaint and the evidence of PW1 and the particulars of the suit schedule property are different. The plaintiff has not filed the sale deed under which document he purchased. Ex.A1 is not supporting the contention of the deceased 1st plaintiff or the other plaintiffs and the plaintiffs have not filed any registered sale deed to say that the 1st defendant purchased an extent of 0.27.26cents on 26-7-1991. The suit schedule property is not shown in the recitals of Ex.A1 and there is no any documentary proof to say that the deceased 1st plaintiff sold an extent of 0.26.27cents to the 1st defendant and there is no evidence to say that the deceased 1st plaintiff purchased an extent of 0.36cents along with other properties under

Ex.A1.

13.The learned counsel for the 1st defendant further argued that

Ex.A1 does not disclose the land to an extent of 0.36cents. As such, the plaintiffs miserably failed to say that the deceased 1st plaintiff sold 0.27.26cents to the 1st defendant on 26-7-1991 and the deceased 1st plaintiff never entered into agreement of sale to the 1st defendant to an extent of 0.04 cents out of the remaining 0.08.74cents. There is no material before the court to prove the contention of the plaintiff. As such, the plaintiffs miserably failed to prove their right and title, and possession and enjoyment over the suit schedule property and prayed to dismissed the suit.

14.PW1 deposed supporting the pleadings of the plaint. PW3 is third party witness. He also supported the version of the plaintiff/PW1.

PW3 clearly admitted in his cross examination that, he is not the scribe or attestor of any one of the documents filed by the plaintiff/PW1, but he deposed supporting the version of PW1. The evidence of PWs1 and 2 7 is not supported by any one of the documents filed by them under Ex.A1 to A11 to prove the right and title, possession and enjoyment of the plaintiffs over the suit schedule property. The boundaries, extent and

S.No., are not supported and proved by any material documents. Ex.A1 to A11 are not supporting the contention of the plaintiff.

15.At the request of the counsel for the plaintiff, the evidence of the PW2 is eschewed as he did not turn up for cross examination due to his personal inconvenience. Therefore, on a memo filed by the counsel for the plaintiffs, the evidence of PW2 is eschewed.

16.On verification of the Exs.A1 to A11 filed on behalf of the plaintiffs it is observed that Ex.A1 is certified copy of registered sale deed stands in the name deceased 1st plaintiff. But, it does not contain extent of 0.36cents in supporting the contention of the plaintiffs, because the contention of the plaintiffs is that the deceased 1st plaintiff purchased an extent of 0.36cents and subsequently he sold an extent of 0.27.26cnets to the 1st defendant on 26-7-1991. As such, Ex.A1 is not supporting the version of the plaintiffs to prove their right and title over the suit schedule property.

17. Ex.A2 is a legal notice dated 3-12-99. According to it, deceased 1st plaintiff got issued legal notice claiming he is the owner of the suit schedule property. The notice was issued to 1st defendant.

Ex.A2 is not supported by any material. Ex.A3 is reply notice issued denying the contents and allegations of Ex.A2. Ex.A4 is the plaint,

Ex.A5 is the written statement in OS 908/02. Under Ex.A4 the suit filed by the deceased 1st plaintiff for the same suit schedule property for permanent injunction was dismissed as he failed to prove his possession and enjoyment, right and title over the suit schedule property. Ex.A5 is not supporting the contention of the plaintiffs. Ex.A6 is the certified 8 copy of IA 2439/02 in OS 908/02 for temporary injunction. Ex.A7 is the issues in OS 908/02. Ex.A8 is certified copy of sale deed dated 5-9-01 executed by 6th defendant herein in respect of 0.26.27cents out 0.36cents in S.No.91/1A in favour of 4th defendant herein. But, it is not supported by Exs.A1 to A7 to say that the plaintiffs are the absolute owners of the suit schedule property. Ex.A9 is certified copy of sale deed dated 21-7-05 executed by 4th defendant in favour of 5th defendant to an extent of 0.08.127 paiki 0.04.063cents with specific boundaries.

18.As per the contention of the plaintiffs the deceased 1st plaintiff sold 0.26.27.cents to the 1st defendant, but there is no any material to that effect before the court. But, the 6th defendant sold 0.26.27cents to 4th defendant under Ex.A8. Out of it, he sold 0.08.127cents. But, the pleadings of the plaintiffs are different from

Exs.A8 and A9.

19.Ex.A10 is the certified copy of sale deed dated 7.11.05 executed by 4th defendant herein in favour of one T. Narayanaswamy on 7-11-2005 in respect of 0.08.127cents. Ex.A11 is the encumbrance certificate. It does not disclose that the suit schedule property belongs to the deceased 1st plaintiff or he sold an extent of 0.26.27cents to the 1st defendant or any other defendants. The parties shown in Ex.A11 are different. They are not parties in the suit. The suit schedule property is not clarified in Ex.A11.

20.As discussed above, in detail, Exs.A1 to A11 are not supporting the contention of the plaintiffs as pleaded in the plaint to prove their right and title, possession and enjoyment over the suit schedule property.

21.DW1 clearly deposed supporting the contents of the written statement denying the contents and allegations of the plaint in para 9 wise and point wise. The documents filed under Ex.B1 and B2 are different from the suit property. The parties are also different. The executants are also different. They are not parties to the suit. Under

Ex.B1 the property is different, boundaries are different and schedule is different, but the extent is shown as 0.27 ½ cents compared with suit schedule property. The executant is one Gollapalli Seetharamaiah and purchaser’s name is one Shaik Jainabee wife of Dasthagiri sab. Ex.B2 is also a certified copy of registered sale deed. According to it, the executants is Shaik Jainabee wife of Dasthagiri sab purchaser’s name is one Mochi Mallappa s/o Lingappa. The property shown under Ex.B1 was sold to one Mochi Mallappa by Jainabee under Ex.B2 for consideration.

As such, the boundaries, extent and S.No., of the property shown under

Ex.B1 and B2 are different from Ex.A8 to A11 and A1.

22.Therefore, the version of the defendants is clearly proved and supported by DW1. It is principle of law that the plaintiff should not depend upon the weakness of the case of the defendant. He shall prove his right, title, possession and enjoyment of the suit property to perfect his title and to declare his right and title and to get consequential permanent injunction. In the present case, the plaintiffs are not able to prove their right, title, possession and enjoyment over the suit schedule property.

23.In the above said circumstances and in the light of the evidence, I am of the opinion that the plaintiffs failed to prove their right, title, possession and enjoyment over the suit property. Therefore, they are not entitled for declaration of right, title, possession and enjoyment over the suit property. Hence, this issue is not settled in favour of the plaintiffs.

24.ISSUE NO.2: As discussed in issue no.1 in detail, the 10 plaintiffs failed to prove their claim and contention in respect of their right, title, possession and enjoyment over the suit property. Now there is no need to repeat the same in this issue, because it is already discussed in issue no.1 in detail. In the circumstances, the plaintiffs are not entitled for consequential permanent injunction as prayed for.

Hence this issue is not settled in favour of the plaintiffs.

24.ISSUE NO.3: In the result, suit is liable to be dismissed.

Accordingly, the suit is dismissed. No costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open Court on this the 27th day of June, 2017.

Additional Senior Civil Judge,

Anantapur

Appendix of evidence Witnesses examined for

Plaintiffs Defendants

PW1: A. Narayana ReddyDW1:M. Hanumantha Reddy PW2: A. Thirumala Reddy (Eschewed) PW3: V. Adinarayana

Exhibits marked for plaintiffs

Ex.A1: Certified copy of registered sale dt.18-8-1971 Ex.A2: Legal notice dated 3-12-99 Ex.A3: Reply notice dt.11-12-99 Ex.A4: CC of Plaint in OS 908/02 Ex.A5: CC of written statement in OS 908/02 Ex.A6: CC of IA 439/02 in OS 908/02 Ex.A7: CC of issues in OS 908/02 Ex.A8: CC of sale deed dt.5-9-01 Ex.A9: CC of sale deed dt.21-7-05 Ex.A10: CC of sale deed dt.7-11-05 Ex.A1: Encumbrance certificate

Exhibits marked for Defendants

Ex.B1: Certified copy of registered sale deed in favour of Jainabbi dt.8-2-1962 Ex.B2: Certified copy of sale deed in favour of Malkappa and other dt.23-9-1966

ASCJ 11

1

In the Court of Additional Senior Civil Judge, Anantapur.

Present:-Sri V.Sreenivasulu, Addl. Senior Civil Judge

Tuesday, the 27th day of June, 2017

O.S. No.188/2008

Between:-

Dr. Koppalakonda Kavitha...Plaintiff

VS

1. Koppalakonda Varaprasad 2.N. Parthasarathi

3.Konapuram Anjaneyulu...Defendants

This suit coming on 13-6-17 for disposal before me in the presence of Sri P. Krishnaswamy Kumar, Advocate for the Plaintiff and of Sri N.R.K. Mohan, Advocate for 1st defendant, defendants 2 and 3 remained exparte, and the matter having stood over for consideration till this day this court delivered the following:-

JUDGMENT

1.This is a suit filed for declaration of the right and title of the plaintiff over the suit schedule property and also for permanent injunction restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and also for suit costs and further reliefs.

2.The averments of the plaint in brief is as follows:

The plaintiff obtained the plaint schedule property under registered gift deed executed by her father by name Kappalakonda Bala

Venkataswamy. The said Bala Venkataswamy got the suit schedule property in their family settlement along with his brothers. Since then, said Venktaswamy was in exclusive possession and enjoyment of the same. The father of the 1st defendant and others by name Pedda

2

Venktaswamy and Chinna Venktaswamy have alienated their properties fallen to their respective shares. Neither the 1st defendant, nor the other brothers of the said Bala Venktaswamy have any manner of right or interest over the suit schedule property. The gift deed executed by the said Bala Venktaswamy on 20-4-1999 was registered and accepted the same, and property was delivered to the donee. Since then, the property has been under the possession and enjoyment of the plaintiff.

3.The plaintiff further submits that, as per the family settlement dated 11-5-1970 the father of the plaintiff was allotted the suit property in their family partition. The plaintiff’s father was working in various places. The plaintiff was married, and settled at Kurnool along with her husband. Taking due advantage of absence of plaintiff, the 1st defendant in collusion with defendants 2 and 3 attempted to create nominal documents with an intention to grab the property belongs to the plaintiff. Immediately after knowing the illegal activities of the defendants, the plaintiff got issued a legal notice. The defendants have no manner of right over the suit schedule property and causing troubles and creating problems to the plaintiff and seriously trying to occupy the suit schedule property, because the plaintiff is residing in

Kurnool along with her husband and the property situated within the municipal corporation limits of Anantapur. Hence the suit.

4.The contesting 1st defendant filed a detailed written statement denying the contents and allegations of the plaint in para wise and point wise stating that the suit is not maintainable either in law or on facts. The defendants 2 and 3 remained exparte. The 1st defendant further submits that, the suit schedule property does not belong to the plaintiff, it belongs to the 1st defendant. The gift deed executed in favour of the plaintiff is voidable document. It will not

3

create any right in favour of the plaintiff. The plaintiff has not given any reply to the 1st defendant and he has not sent any suitable reply to the plaintiff. She defendants 2 and 3 are already in possession and enjoyment of the suit property. The 1st defendant sold 5 cents of land to the 3rd defendant under a sale deed dated 11-8-04 and an extent of 5.05cents sold in favor of the 2nd defendant under a sale deed dated 22.7.04. As such, D2 and D3 are in possession and enjoyment of the suit property, as they have purchased the same from the 1st defendant.

The defendants never threatened the plaintiff and they are not supported by rowdy elements. The defendants never tried to trespass into the suit schedule property. The plaintiff has no any manner of right over the suit schedule property, now defendants 2 and 3 are in possession and enjoyment of the same and they are enjoying the same and the suit is liable to be dismissed.

5.For trial, the following issues have been framed by my predecessor:

1. Whether the plaintiff is entitled for declaration

of title over the suit schedule property?

2. Whether the plaintiff is entitled for consequential permanent over the suit schedule property?

3.To what relief?

6.At the time of trial, 2 witnesses are examined as Pws1 and 2 on behalf of the plaintiff and Exs.A1 to A9 are marked.

7.On behalf of the defendants, DW1 is examined and no documents are marked.

8.Heard the arguments on both sides and also verified the entire suit records with relevant documents.

9.ISSUE NO.1 :- The learned counsel for the plaintiff argued

4

that, the plaintiff clearly proved and established her claim and contention as prayed in the plaint and the same is supported by PW1.

The evidence of PW1 is established and supported by PW2 and Ex.A1 to

A8 and whereas, the defendants miserably failed to prove their contention as pleaded in the written statement. No documents are marked and no other independent witnesses are examined to prove the contention of the defendants to say that the 1st defendant is the absolute owner of the suit schedule property and he is having right and title over the suit schedule property and he sold the same to D2 and D3.

To that effect, the defendants miserably failed to prove their contention.

10.The learned counsel for the 1st defendant argued that, the 1st defendant is the absolute owner of the suit schedule property and he is having right and title over the suit schedule, so that he sold the suit schedule property to D2 and D3 for consideration under registered sale deed. The plaintiff or her father have no any right and title, possession and enjoyment over the suit schedule property. The suit schedule property was allotted to the share of father of D1. Accordingly, D1 became absolute owner of the suit schedule property.

11.On verification of the Exs.A1 to A9 it is observed that Ex.A1 is a registered gift deed executed in favour of the plaintiff by her father

Dr. K. Bala Venkataswamy in respect of the suit schedule property on 20-4-1999. The gift was accepted by the plaintiff. Ex.A2 is the office copy of the legal notice and A3 to A5 are the postal acknowledgments in respect of the service of legal notice to the defendants. Ex.A6 is the certified copy of registered sale deed dated 14-9-1981. Accordingly, the father of the plaintiff by name K. Bala Venkataswamy sold some property to one V. Lakshmidevi and Ashok Kumar, Anantapur in respect of S.No.478 and 452 to an extent of Ac.3-60cents out of Ac.10-14cents.

5

This property is not disputed and it is not the subject matter of the suit schedule property. Ex.A7 is the certified copy of registered sale deed.

Accordingly, the father of the plaintiff by name K. Venkataswamy sold the property to one K. Lakshmikanthamm, Anantapur in respect of the property in D.No.28/18 and 28/19. It is also not disputed and it is not the suit schedule property. Ex.A8 is the registered partition agreement/list executed among the father of the plaintiff K. Bala

Venkataswamy and his brothers. According to it, they have partitioned their properties it is situated with the name of landmark. According to it, the share of the father of the plaintiff by name Bala Venkataswamy was allotted and the property situated behind the government hospital,

Anantapur in respect of 10 plots and the property situated on the eastern side of the Banglore road and some other properties allotted to his brothers expressing the location of the property and name of the location.

12.On this aspect, the learned counsel for the defendants argued that, as per the partition list, the property is not clearly explained with specific boundaries and measurements and extents and

S.Nos. It is simply stated that the property situated behind the government hospital, Anantapur and the property situated on the eastern side of the Banglore road which is allotted to the share of the father of the plaintiff by name Bala Venkataswamy. This objection has to be taken by the other co-sharers. All the brothers of the said K. Bala

Venkataswamy, who is the father of the plaintiff have put their signatures and they have accepted the shares as mentioned in Ex.A8.

13.The contention of the plaintiff is that the suit schedule property is allotted to the share of father of the plaintiff in their family partition under Ex.A8. According to it, 10 plots behind the government

6

hospital, Anantpaur were allotted to the father of the plaintiff Bala

Venkataswamy and he sold the same to the 3rd parties under Ex.A6 and

A7 and he gifted the suit schedule property under Ex.A1 from his share allotted to him. The allotment of shares in the partition list among the brothers of the father of the plaintiff are accepted and they put their signatures and they did not raise any objection.

14.The learned counsel for the plaintiff further argued that the 1st defendant being the son of the last brother of the plaintiff’s father, highhandedly causing disturbance and creating problems to the plaintiff, with a view to occupy the same as the plaintiff is residing in Kurnool along with her husband and the property is situated in Anantapur town, under the municipal corporation limits. Taking into advantage of the non-residence of the plaintiff in Anantapur, he is seriously trying to occupy the suit schedule property and creating problems to the plaintiff.

The 1st defendant has no any manner of right over the suit schedule property and he is not having any right over the suit schedule property.

Not only the 1st defendant, his father Obaiah is also not having any right over the suit schedule property, because it was allotted to the share of the plaintiff under Ex.A8. The brothers of the plaintiff’s father are all accepted the partition and put their signatures in Ex.A8.

15.Ex.A9 is the certified copy of registered sale deed dated 13- 11-1981. According to it, the father of the 1st defendant by name K.

Obaiah executed a registered sale deed in favour of one N. Harinath and

Smt N. Nagamani situated in S.No.478 and 452 to an extent of Ac.2- 40cents and Ac.2-10cents from the property allotted to the father of

DW1. The same is clearly admitted by DW1 in his cross examination stating that his father sold the property to 3rd parties under Ex.A9 and further admitted that PW2, who is the senior paternal uncle of PW1 also

7

sold his share of land in the same S.No., under Ex.A6.

16.DW1 further admitted that he has not executed any sale deeds in respect of suit property in favour of D2 and D3. The evidence of DW1 is not consistent with his chief and cross and also with the contents of the written statement. Because, DW1 clearly stated in his pleadings of the written statement and also in his chief affidavit stating that the suit schedule property belongs to their father and he acquired the same and he sold the suit schedule property to D2 and D3. In cross examination he clearly admitted that he did not sold the property to D2 and D3.

17.As per the pleadings of the written statement and chief affidavit of DW1, he is claiming right and title and possession and enjoyment of the suit schedule property. In that circumstances, the burden equally lies on the defendant/DW1 to say that he is having right and title, possession and enjoyment over the suit schedule property. To prove the contention of DW1 no document are marked in supporting of his case to prove his right and title and possession and enjoyment.

Except 1st defendant, no other witnesses are examined to prove his possession and enjoyment over the suit schedule property. As discussed above, when the 1st defendant is claiming his right and title, possession and enjoyment over the suit schedule property the burden equally lies on the contesting defendant to prove his right and title not only on the plaintiff U/s 101 and 102 of the Indian Evidence Act. The clear admissions of DW1 need not be proved u/s 58 of the Indian Evidence

Act.

18.As discussed above, the evidence and pleadings of the contesting defendant/DW1 is not consistent and not supported by any material document. Whereas the plaintiff/PW1 clearly proved and

8

explained her claim and contention under Ex.A1 to A9. The same is supported by PW2, who is the father of PW1. DW1 clearly admitted that there is no documentary proof to say that the suit schedule property allotted to the share of his father Obaiah. In that circumstances, it is very clear that there is no material to prove the contention of DW1 in respect of his right and title, possession and enjoyment over the suit schedule property.

19.PW2 clearly deposed that the suit schedule property along with some other properties were allotted to his share in their family partition and he sold some other properties to 3rd parties and executed gift deed in favour of the plaintiff under Ex.A1. The evidence of PW2 is supported by Exs.A1 to A9 without any ambiguity in respect of the execution of registered gift deed regarding the suit schedule property in favour of PW1 under Ex.A1 and also in respect of the acquiring of the suit schedule property by PW2 in their family partition under Ex.A8.

Even though there is no specific boundaries and S.Nos., the landmark is mentioned, the place of location is mentioned in Ex.A8. It is clearly admitted by other share holders who are the brothers of PW2. DW1 is the son of the last brother of PW1 by name K. Oabaiah. PW2 and all other brothers have also divided their properties as per the landmark and location without any specific S.Nos., and boundaries. It was accepted by PW2 and his brothers. In that circumstances, no objection are raised by anybody or the brothers of PW2.

20.As discussed above, the contention of the plaintiff is proved and established by PW1 and 2 and supported by EXs.A1 to A9 whereas the version of D1/DW1 is not proved and established by any material evidence. There is no presumption of law u/s 114 of the Indian

9

evidence Act to believe the version of DW1, because the contention of

DW1 is not supported by any material evidence. In cross examination he clearly admitted that, there is no any material documents before the court to say that the suit schedule property was allotted to the share of his father in their family partition and also further admitted that he did not sell the suit schedule property to D2 and D3. As such, the evidence of PW1 is not consistent with his chief and cross and pleadings of the written statement.

21.In the above said circumstances and in the light of the evidence, I am of the opinion that the right and title, possession and enjoyment of the plaintiff over the suit schedule property is clearly proved and established by PWs1 and 2 and the same is supported by

Exs.A1 to A9. Hence, this issue is settled in favour of the plaintiff.

22.ISSUE NO.2: As discussed in issue no.1 in detail the right and title, possession and enjoyment of the plaintiff over the suit schedule property is clearly proved and established, and the same is supported by PW2 and proved by EX.A1 to A9. Now, there is no need to repeat the same in this issue, whereas the contesting 1st defendant who is examined as DW1 is miserably failed to prove his claim and contention in respect of his right and title, possession and enjoyment over the suit schedule property, because the contention of DW1 is not supported by any material evidence. In the circumstances, PW1 is entitled for consequential permanent injunction over the suit schedule property. Hence, this issue is settled in favour of the plaintiff.

23.In the result, suit is decreed with costs as prayed for and the right and title and possession and enjoyment of the plaintiff over the

10

suit schedule property is declared and permanent injunction is granted restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open Court on this the 27th day of June, 2017.

Additional Senior Civil Judge,

Anantapur

Appendix of evidence Witnesses examined for

Plaintiff Defendant

PW1: K. Kavitha DW1:K. Varaprasad PW2: Bala Venkataswamy

Exhibits marked for plaintiff

Ex.A1: Registered gift deed dt.20-4-99 Ex.A2: Office copy of legal notice Ex.A3: Postal receipts 5 in No. Ex.A4: Acknowledgment cards 4 in No. Ex.A5: Returned postal cover from D2 Ex.A6: Copy of registered sale deed executed by Bala Venaktaswamy in favour of K. Laxmidevamma and V.R. Kumar Ex.A7: Copy of registered sale deed executed by Bala Venaktaswamy in favour of K. Laxmikanthamma Ex.A8: Unregistered partition agreement dt.11-5-1970 Ex.A9: C.C of registered sale deed dt.13-11-1981

Exhibits marked for Defendant

NIL

ASCJ

11

12

13

1

In the Court of Additional Senior Civil Judge, Anantapur.

Present:-Sri V.Sreenivasulu, Addl. Senior Civil Judge

Wednesday, the 21st day of June, 2017

O.S. No.366/2011

Between:-

M. Mohammad Rafi ...Plaintiff

VS

Gram Panchayat, Narpala, rep. by

its Executive Officer....Defendant

This suit coming on 19-6-2017 for disposal before me in the presence of Sri N.R.K. Mohan, Advocate for the Plaintiff and of

Government Pleader, Advocate for defendant and the matter having stood over for consideration till this day this court delivered the following:-

JUDGMENT

1.This is a suit filed for declaration of the right and title of the plaintiff over the suit schedule property and also for mandatory injunction to direct the defendant to deliver the possession of the property by removing the structures, failing which, the structures will be removed through the process of law and also for suit costs and further reliefs.

2.The averments of the plaint in brief is as follows:

The plaint schedule property is a part of the property purchased by the grandfather of plaintiff viz., M. Chinna Imam Sab under registered sale deed dated 13-2-1959 and after his death the suit property devolved on his son Mynuddin. After the death of Mynuddin the property was devolved on his son by name M. Mohammad Rafi plaintiff herein. Except the plaintiff nobody is having right and title, 2 possession and enjoyment over the suit schedule property. The Gram panchayat has constructed a room in the plaint schedule property and now the said panchayat extended the roads; while doing so 5feet of the property belonged to the plaintiff is to be demolished for the purpose of widening the roads for which the plaintiff accepted to forego the said 5feet of site on free of cost.

3.The plaintiff further submits that while taking measurements to demolish the house, it is found that the rooms constructed by the

Gram panchayat are in the property belonging to the plaintiff. The plaintiff is not aware of the same till now, and when he verified the sale deed under which his grandfather had purchased the property, it came into the light that the building of the Gram panchayat is located in the portion of the property purchased by the grandfather of the plaintiff.

The Gram panahcyaat has no right to make construction in the property belongs to the plaintiff. The structures raised by the Gram panchayat liable to be removed and the property has to be handed over to the plaintiff. Later, the plaintiff got issued a legal notice to the defendant gram panchayat, Narpala to remove the structures and to hand over the possession of the property, but the Gram Panchayat, Narpala has not removed the structures and not handed over the property to the plaintiff. Hence the suit.

4.The defendant/gram panchayat filed a detailed written statement denying the contents and allegations of the plaint in para wise and point wise stating that, the suit is not maintainable either in law or on facts. The defendant further submits that, the suit schedule property belongs to the Gram Panchayat, Narpala. The defendant/

Gram Panchayat, has constructed rooms in the suit property long back.

3

Nobody has objected when this defendant was constructing rooms in the suit schedule property including the plaintiff. Except the plaintiff, all other villagers agreed to forego some part of their properties while widening the roads. Even though the plaint schedule property belongs to the plaintiff, he has lost his title over the suit schedule property by adverse possession of the defendant. Hence, the suit is not maintainable either in law or on facts as the plaintiff is not the absolute owner of the suit schedule property, the defendant gram panchayat is claiming right and title, possession and enjoyment by way of adverse possession. Hence, the suit is liable to be dismissed.

5.For trial, the following issues have been framed:

1. Whether the plaintiff is entitled for declaration of his right and title over the suit property ?

2. Whether the plaintiff is entitled for mandatory injunction as sought for?

3. Whether the court fee paid for mandatory injunction is correct?

4. Whether the plaintiff is entitled for delivery of possession of suit schedule property?

5. To what relief?

6.At the time of trial, 3 witnesses are examined as Pws1 to 3 on behalf of the plaintiff and Exs.A1 and A2 are marked.

7.On behalf of the defendant, no witnesses are examined and no documents are marked.

8.Heard the arguments on both sides and also verified the entire suit records with relevant documents.

9.ISSUE NO.1: The learned counsel for the plaintiff argued that, the plaintiff clearly proved and established his claim and contention as prayed in the plaint and the same is supported by PW1. The evidence of PW1 is established and supported by PW2 and 3 and Ex.A1 and A2.

4

Whereas the defendants miserably failed to prove their contention as pleaded in the written statement.

10.Further argued that the defendant has taken a plea of adverse possession, but he failed to prove his contention because, the defendant is the Gram panchayat of Narpala, high handedly they have constructed a room in the suit schedule property, but the plaintiff being illiterate could not take any action against the Gram panchayat. When the roads in Narpala mandal are being widened, then survey conducted, in that survey it was declared that the suit schedule property is the part and parcel of the property of the plaintiff as per the records. Then the plaintiff got issued a legal notice against the defendant/Gram panchayat, then the defendant/ Gram panchayat threatened the plaintiff in the year 2010.

11.The learned counsel for the plaintiff further argued that the plaintiff clearly proved his contention and the same is supported by

PWs1 to 3 and proved under Exs.A1 and A2. It is not the Gram panchayat site, it is a private patta land of the plaintiff. The defendant miserably failed to prove to say that the suit schedule property is the

Gram panchayat land. To that effect, no records have been filed by the defendant.

10.The learned Government Pleader for the defendant argued that, the suit schedule property is the Gram panchayat property, hence

Gram panchayat raised shopping complex in the suit schedule and the suit schedule property has been in possession and enjoyment of the defendant. Hence, the defendant is under adverse possession of the suit schedule property. The plaintiff has no any manner of right and title over the suit schedule property and the suit is liable to be dismissed.

11.According to PW1, the suit schedule property is the part and 5 parcel of the property purchased by his grandfather by name N. Chinna

Imamsab under a registered sale deed dated 13-2-1959 which is marked under Ex.A1. Now, his father is no more. The property is devolved on him being the sole legal heir. The defendant/Gram

Panchayat has constructed a room in the plaint schedule property.

Several times the plaintiff requested the defendant/Gram Panchayat not to raise constructions, but they have not accepted the request of PW1.

When the defendant/Gram Panchayat is extending the roads in Narpala town they measured the roads and neighboring sites. Then, the facts came out and 5 feet of site belongs to the plaintiff as per the registered sale deed Ex.A1 occupied by the defendant/Gram Panchayat. The plaintiff accepted to forego another 5 feet of site freely, because the town is going to be developed if the roads are widened.

12.PW1 further deposed that, at the time of measurements it is clearly observed that defendant/Gram Panchayat occupied the site of the plaintiff and the constructed rooms. Till today, the defendant/Gram

Panchayat not coming forward to handover the site of the plaintiff. The plaintiff also issued a legal notice, but the defendant not issued any reply and not clarified the issue. It seems that the defendant/Gram

Panchayat has accepted the right and title of the plaintiff over the suit schedule property.

13.The evidence of PW1 is consistent with his chief and cross and the same is supported and proved by Exs.A1 and A2. No witnesses are examined and no documents are marked to prove the contention of the defendant/Gram Panchayat. Without any basic records and without passing any resolution in the Gram Panchayat and without declaring the suit schedule property as the Gram Panchayat property, the defendant has constructed rooms by occupying the suit schedule property 6 highhandedly and the defendant has not allowed the plaintiff to enter into the suit schedule property to demolish the constructions raised by the defendant/Gram Panchayat.

14.PW2 and PW3 being the independent witnesses of the same village clearly deposed the version of PW1 and supported the pleadings of the plaint stating that the suit schedule property is the ancestral property of the plaintiff. After the death of the father of the plaintiff the property devolved on him. The suit schedule property is the prt of the property shown under Ex.A1, because, the grandfather of the plaintiff by name M. Chinna Imamsab purchased the suit schedule property under registered sale deed for consideration under Ex.A1.

15.PW2 and PW3 further deposed that while the roads are widening in the Narpala town, and the survey was identified at the time of measurements, the facts came out that the suit schedule property is in the S.No., of Ex.A1. The street S.No., and land S.Nos., are also tallied and declared that the suit schedule property belongs to the plaintiff.

The defendant/ Gram Panchayat high handedly constructed the rooms in the suit schedule property violating the request and objections made by the plaintiff. As such, the contention of the plaintiff is clearly proved and established by PWs1 to 3. The evidence of PWs1 to 3 is consistent without any ambiguity and shaking.

16.To prove the contention of the defendant/ Gram Panchayat no witnesses are examined and no documents are marked. There is no presumption of law u/s 114 of Indian Evidence Act to believe the version of defendant/ Gram Panchayat in the absence of the material evidence and no adverse inference can be drawn, because even the defendant/

Gram Panchayat is not examined to prove the pleadings of the written statement. According to the citation reported in AIR 1999 SC 1441.

7 “U/s 114 of the Indian Evidence Act adverse

inference can be drawn, if the party of the suit is

not entering into the witness box and not giving

the evidence to prove the contention of the defendant or the plaintiff, the adverse inference can be drawn against the party who is not entered into the box and

to give his evidence and to prove his contention.”

17.In the present case the defendant/Gram Panchayat has not entered into the witness box to prove their contention. The above said citation is properly applicable to the present case on hand.

18.According to the citation reported in AIR 2012 SC 559, “Article 64 and 65 of Limitation Act adverse possession shall be proved. The claiming of adverse

possession and acquisition of land by the state

authorities by way of adverse possession is not

proper. Such bad faith of adverse possession should

be abolished. Urgent suitable changes in law of

adverse possession is recommended”

19.In the present case, the defendant has taken adverse possession, but miserably failed to prove their contention in respect of their right over the suit property.

20.In the above said circumstances and in the light of the evidence, and in view of the above said citation, I am of the opinion that the plaintiff clearly proved and established his right and title and possession and enjoyment over the suit schedule property. Hence, this issue is settled in favour of the plaintiff.

21.ISSUE NO.2: As discussed in issue no.1 in detail the plaintiff clearly proved and established his right and title and possession and enjoyment over the suit schedule property, and the same is proved by PWs2 and 3 and Exs.A1 and A2, whereas the defendant miserably failed ti prove his legal right and title and possession and enjoyment over the suit schedule property. Now, there is no need to repeat the same in this issue. In the circumstances, the structures raised in the suit schedule property shall be demolished and removed by way of 8 mandatory injunction and the original site shall be handed over to the plaintiff. Accordingly, this issue is settled in favour of the plaintiff.

22.ISSUE NO.3: On verification of the plaint, the plaintiff paid a sum of Rs.1000/- for mandatory injunction to demolish the structures raised by the defendant. The burden is on the defendant to prove his contention to say that the court fee paid by the plaintiff is not proper, but the defendant miserably failed to prove his contention in respect of the court fee paid by the plaintiff, whereas the plaintiff paid the required court fee in respect of the mandatory injunction. Therefore, this issue is settled in favour of the plaintiff.

23.ISSUE NO.4: As discussed in issues 1 to 3 in detail, the plaintiff clearly proved his legal right and title over the suit schedule property and the same is established by PWs1 to 3 and supported by

Ex.A1 and A2. Therefore, the plaintiff is entitled for delivery of possession of suit schedule property after demolishing the structures raised n the suit schedule by the defendant. Hence this issue is settled in favour of the plaintiff.

24.ISSUE NO.5: In the result, the suit claim is proved and the suit is decreed with costs as prayed for and the right and title of the plaintiff is declared over the suit schedule property, and the defendant/gram panchayat is directed to demolish the structures raised in the suit schedule, and to deliver the possession to the plaintiff within two months from the date of the judgment. Accordingly, mandatory injunction is granted to demolish the structures, failing which the plaintiff is at liberty to demolish the structures raised by the defendant/gram panchayat, and to take delivery of possession through the process of law.

Typed to my dictation by the Stenographer, corrected and 9

pronounced by me in open Court on this the 21st day of June, 2017.

Additional Senior Civil Judge,

Anantapur

Appendix of evidence Witnesses examined for

Plaintiff Defendant

PW1: M. Mohammad Rafi None PW2: T. Hussain Peera PW3: P. Venkataramudu

Exhibits marked for plaintiff

Ex.A1: C.C of sale deed dt.13-2-1959 Ex.A2: Office copy of legal notice dt.27-12-10

Exhibits marked for Defendant

NIL

ASCJ 10

1

In the Court of Senior Civil Judge, Anantapur,

Present:-Sri V.Sreenivasulu, Addl. Senior Civil Judge,

Anantapur

Tuesday, the 27th day of June, 2017

O.S.No.460/2012

Between:-

M/s Margadarsi Chit Fund Pvt., Ltd., rep., by its Manager, Foreman

Ananthapur.. Plaintiff

and

1.U. Venkataprasad

2...Defendants

This suit coming on 13-6-17 for disposal before me in the presence of Sri B. Rajasekhar, Advocate for the Plaintiff and of Sri J.

Gangadhar Reddy, Advocate for the 1st defendant, Sri C. Raghuram

Reddy, advocate for the defendants 2 to 8, 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.This is a suit filed for recovery of a sum of Rs.5,46,624/- being the unpaid installments of chit and also for costs of the suit and further reliefs.

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

On 11-10-08 the plaintiff’s company started chit for a sum of

Rs.25,00,000/- . The subscription is Rs.50,000/- for 50 months. The 1st defendant joined as subscriber of the chit. On 25-4-10 the 1st defendant participated in the bid and became a successful bidder and agreed to forego Rs.9,40,000/- out of Rs.25,00,000/- after deducting commission from the amount of foregone. The 1st defendant paid a sum of

Rs.10,50,000/- till the date of payment of the price amount and future 2 liability is Rs.14,50,000/-. He furnished the guarantee of agreement along with defendants 2 to 8. As such, 2nd defendant to D8 are guarantors of 1st defendant. The 1st defendant committed default in payment of the installment from 15-12-11 viz., 41st installment. Now, the defendants have to pay a sum of Rs.5,46,624/- including interest, because the defendant committed default at Rs.5,00,000/- and he has to pay remaining installments. Hence the suit.

3.The 1st defendant filed a detailed written statement denying the contents and allegations of the plaint in para wise and point wise stating that the suit is not maintainable either in law or on facts. D2 to

D8 adopted the written statement of 1st defendant by filing a memo.

The defendants further submit that, the suit as described in the short cause title and long cause title represented by its manager/Foreman is not maintainable as it is not specified whether the manager is represented or whether the foreman is representing the plaintiff’s company. The manager of foreman is not competent to verify and sign the pleadings and he is not the principal officer of the plaintiff. The guarantors viz., defendants 2 to 8 who executed an agreement of guarantee on 18-5-10 jointly in favor of the plaintiff’s company on behalf of 1st defendant for a sum of Rs.14,50,000/- with future interest of Rs.12%p.a., are frivolous. The plaintiff’s company never demanded the defendants to pay Rs.5,00,000/-. The plaintiff’s company is obliged to file the suit for balance amount are also frivolous. The defendants further submit that the 1st defendant is entitled to the dividend for the 41st installment to 50th installment also and the plaintiff is entitled to claim interest at the rates prevailing in the bank transactions. The defendant even now is ready and willing to pay the actual amount due to the plaintiff’s company. The plaintiff's company has been demanding 3 excess amount with excess interest with a view to make unfair gain.

Hence, the suit is not maintainable and it is liable to be dismissed.

4.At the time of trial the following issues have been framed:

1. Whether the account extract is correct?

2. Whether plaintiff is entitled for the suit amount?

3. To what relief?

The following additional issue has been framed on 25-4-16

Whether this court has no jurisdiction to entertain the suit?

5.At the time of trial, only two witnesses are examined as

PWs.1 and 2 and Ex.A1 to A19 are marked on behalf of the plaintiff's company.

6.On behalf of the defendants, no witnesses are examined and no documents are marked.

7.Heard the arguments and also verified the entire suit record with relevant documents.

8.POINT: The learned counsel for the plaintiff bank argued that, the plaintiff bank clearly proved and established its claim and contention as pleaded in the plaint and the same is supported by PW.1.

The evidence of PW.1 is established and supported by Ex.A1 to A6.

Where as the defendants miserably failed to prove their contention as pleaded in the written statement. The learned counsel for the plaintiff bank further argued that the 2nd defendant is that, he does not know about the sanctioning of the loan in the name of the 1st defendant, he never stood as guarantor of the loan amount sanctioned in the name of the 1st defendant, he did not execute the promissory note or agreement of guarantee or any revival letter on behalf of the 1st defendant to the plaintiff’s bank, but 2nd defendant/DW1 miserably failed to prove his 4 contention. Ex.A1 to A6 reveals that DW1 stood as guarantor of 1st defendant for the loan sanctioned by the plaintiff’s bank in favour the 1st defendant.

9.The learned counsel for the 2nd defendant/DW1 argued that,

DW1 is a retired teacher, he is senior citizen, he has no any source of income t discharge the debts on behalf of 1st defendant as 1st defendant is set exprarte, he is not contesting the suit, DW1 does not know about the sanctioning of the loan in the name of 1st defendant and he did not put his signature in the agreement of guarantee and revival letters or any papers in the plaintiff’s bank.

10.PW1 deposed supporting pleadings of the plaint in detail and the same is supported by Ex.A1 to A6. The contention of the plaintiff's bank is proved and established by PW.1, and the same is supported by

Ex.A1 to A6. The signatures of 2nd defendant/DW1 shown in Ex.A1 to A6 are similar with the signatures shown in vakalat, written statement and court summons. But, DW1 simply denied stating that he does not know about the loan sanctioned by the plaintiff’s bank in favour of 1st and he never executed any agreement of guarantee in favour of the plaintiff’s bank on behalf of D1, but the signatures of 1st defendant shown in the written statement, vakalat and court summons are found to be similar with his signatures under Ex.A1 to A6. It is very clear that the 2nd defendant/DW1 stood as guarantor of 1st defendant on behalf of the plaintiff’s bank. D1/DW1 is having responsibility and obligation to discharge the loan amount on behalf of 1st defendant as DW1 has executed an agreement of guarantee to the plaintiff’s bank on behalf of 1st defendant as a co-obligant DW1 is having responsibility to discharge the debts on behalf of the 1st defendant.

11.DW1 miserably failed to prove his contention as pleaded in 5 the written statement. The admitted signatures of DW1 in his vakalat, written statement and court summons are found to be similar with his signatures in the agreement of guarantee and revival letters and suit promissory note as shown in Ex.A1 to A5. DW1 has not taken any steps to prove his contention and he did not send his admitted signatures to the opinion of expert to compare with his disputed signatures shown in

Exs.A1 to A5.

12.According to the citations reported in 2000(4) ALD 85 page 8 and 2003(1) APLJ 36 (SN) “u/s 45 and 70 of Indian Evidence Act in the absence of the opinion of the expert court can compare the signatures and handwritings of the parties with the disputed signatures and admitted signatures and the court can give its opinion.”

As discussed above the admitted signatures of D1 and D2 are similar with the disputed signatures shown in Ex.A1 to A5.

13.There is no any presumption of law to believe the version of

DW1 in view of the proviso u/s 114 of the Indian Evidence Act, or u/s 118 of the Negotiable Instruments Act.

14.In the above circumstances, and in the light of the evidence and in view of the above said citation, I am of the opinion that the plaintiff’s bank clearly proved and established its claim and contention where as the defendants miserably failed to prove the same. Hence, the plaintiff’s bank is entitled for recovery of the suit amount as prayed for and it is also proved that the 2nd defendant executed an agreement of guarantee under Ex.A2. Hence, the plaintiff’s bank is entitled for recovery of the suit amount with costs as prayed for. Accordingly, this issue is settled in favour of the plaintiff’s bank.

15.Issue No.2: In the result, the suit claim is proved and the suit is decreed for sum of Rs.4,13,805/- with costs as prayed for but the 6 subsequent interest shall be paid at the rate of 6% p.a., from the date of the suit till the date of realization only on the balance of principal amount of Rs.1,77,000/-. Accordingly, the suit is decreed.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open Court this the 27th day of March, 2017.

Additional Senior Civil Judge

Anantapur

Appendix of evidence Witnesses examined for Plaintiff. Defendants P.W.1. G. Bala Ganesh DW1: K.N. Giri

Exhibits marked for plaintiff

Ex.A1: Original X-press credit agreement dt.28-9-04 Ex.A2: Original deed of guarantee dt.28-9-04 Ex.A3: Arrangement letter executed by the 2nd defendant dt.28-9-04 Ex.A4: Revival letter dt.4-9-07 Ex.A5: Revival letter dt.17-8-10 Ex.A6: Statement of accounts

Exhibits marked for Defendants. Nil

A.S.C.J.