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IN THE COURT OF IX ADDITIONAL DISTRICT JUDGE:
WEST GODAVARI AT KOVVUR
Present: Y.V.S.B.G.Pardha Saradhi IX Additional District Judge.
Monday on this the 9th day of April 2018
A.S. No. 118 of 2012
Between:
1. Vandanapu Rukkayya.
2. Vandanapu Rama BrahmamaAppellants
AND
1. Chittibomma Venkatapati (died)
2. Chittibomma Galib(died).
3. Vandanapu Srinivasa Rao.
4. Chittibomma Nageswaramma
5. Chittibomma Srinivasa Rao
6. Chittibomma Siva Rama Krishna.
7. Chitturi Ratna Kumari.
8. Chittibomma Somayya (died)
9. Chittibomma Veeraswamy (died)
10. Chittibomma Krishna Murthy (died)
11. Chittibomma Sattiraju (died)
12. Chittibomma Raju. (died)
13. Morla Malikamma (died)
14. Balina Lakshmi.
15. Chittibomma Rambabu.
16. Chittibomma Bhaskar.
17. Chittibomma Raju.
18. Chittibomma Subba Lakshmi.
19. Morla Nagamani.
20. Chittibomma Lakshmi.
21. Chittibomma Venkateswara Rao.
22. Chittibomma Vujuru.
23. Chittibomma Rambabu.
24. Jenny Satyavathi.
25. Chittibomma Venkata Padmavathi.
26. Chittibomma Vujuru.
27. Chittibomma Nageswara Rao.
28. Chittibomma Poornachandra Rao.
29. Chittibomma Rama Krishna.
30. Chittibomma Ganesh.
31. Morla Kanaka Raju.
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32. Chittibomma Ramadevi.
33. Rajulapati Durga.
34. Siribathula Naga Lakshmi.
35. Chittibomma Anasuya.
36. Veeramalla Padmavathi.
37. Inala Kumari.
38. Chittibomma Prasad.
39. Chittibomma Nagaratnam.
40. Balina Bharathi.
41. Matta Baby Sarojini.
42. Chittibomma Satyanarayana.
43. Midde Padmavathi.
44. Chittibomma Dhanaraju.
45. Chittibomma Baby. Respondents
This is an appeal filed by plaintiffs in the suit against the decree and judgment dt.12031993 passed by Subordinate Judge’s Court, Kovvur in
O.S No. 122 of 1983
Between :
1. Vandanapu Rukkayya.
2. Vandanapu Rama BrahmamaPlaintiffs
AND
1. Chittibomma Venkatapati (died)
2. Chittibomma Galib(died).
3. Vandanapu Srinivasa Rao. Defendants
This appeal coming on 2032018 before this court for final hearing in the presence of Sri.N.Suryanarayana, advocate, counsel for the appellants and Sri.T.N.V.Ramana Murthy, advocate, counsel for contesting respondents (other than 3rd respondent) and the matter having stood over for consideration till this day and to day this court delivered the following
J U D G M E N T
1.Appellants are the plaintiffs in the suit. Respondents 1 to 3 are the defendants in the suit. Defendants 1 and 2 died and the legal representatives came on record from time to time. Plaintiffs filed the suit for recovery of possession of suit schedule property and for mesne profits and costs.
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2.Brief facts of the case as per pleadings of both parties are as follows
A) Case of plaintiffs:
Plaintiffs and 3rd defendant are brothers and as 3rd defendant is studying at Jaipur he was added as 3rd defendant but the suit is for on his behalf also; 1st defendant is son of 2nd defendant; Originally one Vandanapu Rama Brahmam was the absolute owner of property to an extent of Ac.2245 cents in
R.S.no.436 of Lakkavaram; he settled the said property in the name of his daughter Maturi Jagga Rao; when Maturi Jagga Rao prepared to sell the said Ac.2245 cents of land, 1st defendant agreed to purchase the same and entered into agreement with said Jagga Rao on 2541977 but the said transaction was not fructified and the said Jaggarao continued in possession; said Jagga Rao executed an agreement to sell in favour of Sammisetti Venkateswara Rao to an extent of Ac.1082 cents and executed an agreement dt.771979 in the names of Vandanapu Pullayya, Kesava Rao and Dharmaraju to extent of Ac.1162 cents; in pursuance of the said agreement dt.77 1979, plaintiffs and 3rd defendant as sons of Kesava Rao obtained sale deed dt.1971979 to the property to an extent of Ac.251 cents in R.S.No.436 of Lakkavaram and delivered the possession of the same and it is the plaint schedule property; 1st defendant trying to disturb the peaceful possession of plaintiffs and 3rd defendant and therefore, they filed suit O.S.706 of 1979 for permanent injunction against present 1st defendant; present 1st defendant filed his statement in the said suit and set up title to his father i.e the present 2nd defendant in relation to schedule property and therefore, the plaintiffs not pressed the said suit and court dismissed the same on 29101982 to enable him to file suit for possession; to harass them, 1st defendant set up title in the name of his father the 2nd defendant; 1st defendant and his father i.e 2nd 4 defendant by force entered into possession of property on or about 1111982 after the dismissal of suit O.S.706 of 1979; from the date of trespass, defendants 1 and 2 have been cultivating the land and therefore, they are liable to pay the past profits for a period of three years at Rs.361656 ps and future profits till the handing over of possession of property to them and therefore, filed the present suit.
B) Case of defendants 1 and 2:
1st defendant filed written statement and 2nd defendant filed memo adopting the defence taken by 1st defendant in his statement. In his statement, 1st defendant stated that ; plaintiffs are not having title or possession over schedule property and it is the property of the defendants 1 and 2; 1st defendant has got Ac.1600 cents of land and it would appear that the plaintiffs want to lay claim in the property of defendants 1 and 2; plaintiffs filed the suit
O.S.706 of 1979 with same allegations to obtain the possession of
property and the defendants have been in possession of property for more than statutory period and perfected title to it by adverse possession as well; the sale deed in the name of plaintiffs said to have executed on 1971979 in pursuance of agreement dt.77 1979 is concocted document for the purpose of claiming title over plaint schedule property; plaintiffs and their predecessors in interest never had possession of plaint schedule property; the claim for mesne profits and past profits is highly exaggerated cause of action pleaded in the plaint and court fee paid is not correct and ultimately, requested the court to dismiss the suit with costs.
3.Basing on the above pleadings, following issues were settled for trial
1.Whether the sale deed dt.1971979 executed by Maturi Jaggarao in favour of plaintiffs and 3rd defendant regarding plaint schedule land is a concocted document ?
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2.Whether the plaintiffs and third defendant have got title to the plaint schedule property within the statutory period ?
3.Whether the defendants 1 and 2 acquired title to plaint schedule property by adverse possession ?
4.Whether the suit valuation and court fee paid are correct
5.To what relief ?
4. To prove their case, 1st plaintiff examined himself as PW1 and marked Exs.A1 to A23. In support of the case of plaintiff, he examined
PWs 2 and 3. On behalf of the defendants 1 and 2, 1st defendant examined himself as DW1 and marked Exs.B1 to B18. In support of their case, defendants 1 and 2 examined DW2. After hearing both sides, trial court dismissed the suit with costs. As against the said decree and judgment, plaintiffs filed the appeal on the file District
Court, West Godavari at Eluru as A.S.75 of 1993 and made over to II
Additional District Court, Eluru for disposal as per procedure and the
said appeal was allowed on 1842000. In the said appeal, on behalf of appellants Exs.A24 which is 10(1) account copy and Ex.A25 No.2 adangal were marked as additional evidence. As against the judgment of II Additional District Judge, Eluru, defendants filed the second appeal as S.A.525 of 2000 on the file of Hon'ble High Court of Andhra
Pradesh and the Hon'ble High Court by its judgment dt.2112011, set aside the judgment of II Additional District Judge, Eluru and remanded the matter to 1st appellate court to decide it afresh by giving opportunities to both parties to adduce further evidence if any .
After establishment of Additional District Court at Kovvur, in view of territorial jurisdiction over schedule property, this appeal was made over to this court for disposal. Therefore, the appeal A.S.75 of 1993 was renumbered as A.S.118 of 2012. As the Hon'ble High Court given liberty to both parties to adduce evidence further, PW1 examined 6 himself further and marked Exs.A24 to A27. Plaintiffs examined PWs 4 and 5. At the request of counsel for plaintiffs/appellants commission was appointed and examined the advocate commissioner as CW1 and marked Exs.C1 and C1A and Surveyor was examined as CW2 and marked Ex.X1. After hearing both sides, trial court dismissed the suit of plaintiffs. As against the said decree and judgment, plaintiffs filed the present appeal.
5.Heard both the counsel for appellants and respondents. Perused the pleadings, evidence on record and grounds of appeal. Now the points pending consideration before this court are
1.Whether there is dispute about the identity of plaint schedule property on ground ?
2.Whether the plaintiffs and 3rd defendant are having title over suit schedule property ?
3.Whether the defendants acquired title by way of adverse possession ? If not
4.Whether the plaintiffs and 3rd defendant are entitled for recovery of possession of suit schedule property ?
5.Whether plaintiffs are entitled for mesne profits as prayed for ?
6.Whether there are grounds to interfere with findings of trial court ?
7.What is the result ?
7.For convenient purpose, this Court referring the status of parties in this judgment as referred before trial Court.
8. POINT Nos.1 and 2:
i)In the 2nd appeal filed before Hon'ble High Court of
Andhra Pradesh, the present defendants argued that suit schedule property was not identified on ground and the plaintiffs are claiming 7 their property and thereby, after considering the entire evidence on record, Hon'ble High Court set aside the judgment of this court i.e 1st appellate court and remanded the matter to 1st appellate court by giving liberty to both parties to adduce further evidence. After remand, at the request of plaintiffs, this court appointed an advocate commission to localise the suit schedule property on ground. Said
Commissioner executed the warrant with the help of surveyor.
Advocate commissioner submitted his report. Advocate commissioner was examined as CW1 and his report was marked as Ex.C1 and sketch was marked as Ex.C1A. Surveyor was examined as CW2. During cross examination, advocate commissioner as CW1 deposed that at the time of execution of warrant he did not prepare spot notes and not noted the measurements, surveyor prepared spot notes at the time of conducting survey and noted the actual measurements taken by him and surveyor not given the spot notes prepared by him on the day of execution of warrant and on the date of giving the plan to him.
Ex.C1A is the rough sketch given to commissioner by Surveyor. In that sketch, measurements were mentioned. CW1 deposed that as surveyor would give survey plan, he did not mention the boundaries in Ex.C1A. Commissioner deposed that he can't say whether there were boundaries stones available on ground at the time of execution of warrant. CW2 is the surveyor. In his chief examination, he deposed that he localised the property covered by S.No.436 on ground and the commissioner showed the property in which crop was raised and requested him to identify the same on ground in which survey number that property is there and that property is in R.S.436 and he prepared the sketch basing on FMB. CW2 in the cross examination deposed that he did not prepare rough notes at the time of survey and at the time of the survey, commissioner not furnished the boundaries of property in writing. CW1 deposed that surveyor given the sketch under Ex.C1 on 2382014 and surveyor as CW2 deposed that on the 8 same day evening, he gave the sketch to CW1. CW2 deposed that he did not note the measurements and surveyor noted the measurements. Surveyor deposed that commissioner noted the measurements. In the further chief examination, CW2 produced a rough sketch marked as Ex.X1. In Ex.X1, commissioner not signed and so also, the parties and their counsels.
ii)After considering the evidence on record, it is clear that advocate commissioner not measured the properties of both parties on ground to localise their properties on ground with their respective documents of title. Further commissioner not noted the measurements taken by surveyor and not prepared spot notes. Further, commissioner deposed that surveyor given plan subsequently. Surveyor deposed that on the same day he had given the plan. As per evidence of surveyor, he did not prepare rough notes. Commissioner and surveyor not prepared the spot notes. CW2 identified the disputed property on ground as the commissioner had shown the same and not by measuring the properties as per record and documents of title.
Therefore, in this case, evidence of CWs 1 and 2 and Exs. C1, CIA and
X1 are not reliable to decide the dispute involved in this case and also not useful to decide core dispute involved in this case.
ii)As per pleadings of defendants 1 and 2 they have Ac.1600 of land and the plaintiffs wanted to lay claim over their property and further stated that they have been in possession of plaint property more than the statutory period and perfected their title by way of adverse possession. They further stated that the plaintiffs and their predecessors were never in possession of suit schedule property. In the written statement, 1st defendant not denied the identity of plaint schedule property on ground but stated that they are having Ac.1600 cents of property and the plaintiffs wanted to lay hand over that property.
9 iii)For better appreciation of fact and evidence on record, it is better to refer the boundaries of plaint schedule property as per plaint
before going to decide the point basing on other evidence. As per
plaint schedule, the boundaries of disputed property are
East :Land of Chittiboina Galib.
South:Palmyrah Kattava of plaintiffs and 3rd defendant.
West :Land of Gadde Dorayya and others.
North:Land of Chittiboina Galib and others.
iii)According to plaintiffs, in the year 1977, 1st defendant agreed to purchase the entire Ac.2254 cents of property covered by
R.S.No.436 under an agreement to sell from Maturi Jagga Rao i.e their vendor and the plaintiffs marked the said agreement as Ex.A4.
As per Ex.A4, the boundaries of entire Ac.2245 cents in R.S.N.436 are
East :Land of Vejju Nagaratnam and others.
South:Land of Sattisetti Appala Swamy and Chandra Rao
West :Land of Gadde Rama Chandra Rao, Subbanna & ors
North:Land of Gaddae Veeraswamy and Chittibomma Galib i.e 2nd defendant and others.
iv)DW1 i.e 1st defendant in his cross examination deposed that the land covered by Ex.A4 is on the south of his property of
Ac.1800 covered under Ex.B1 which was purchased in the year 1947.
In Ex.A4, northern boundary of property of Moturi Jagga Rao agreed to purchase by 1st defendant is on north was shown as property of 2nd defendant Chittibomma Galib. Therefore, Ac.1800 of property of defendants 1 and 2 claimed under Ex.B1 and also their ancestral property of Ac.200 is different from the property of Moturi Jagga Rao covered by Ex.A4. DW1 in his chief examination itself deposed that he is not in possession of property covered by Ex.A4. He also admitted 10 that there is a Palmyrah Kattava aged about 70 to 80 years in between his property and Moturi Jagga Rao. DW1 further deposed that recitals in Ex.A4 are correct and the said land was given by Ramabrahmam to his daughter Moturi Jagga Rao.
v)Ex.A5 is the agreement dt.771979 executed by Moturi
Jagga Rao in the names of Vandanapu Pullayya, Kesava Rao i.e father of plaintiffs and 3rd defendant and Dharma Raju. According to plaintiffs, in pursuance of Ex.A5 sale agreement, they purchased plaint schedule property to an extent of Ac.251 cents on 1971979 under Ex.A3 i.e within 12 days from agreement under Ex.A5. As per plaint averments, out of Ac.1162 of property covered by Ex.A5, plaintiffs and 3rd defendant purchased the schedule property. In his further cross examination, after remand, PW1 deposed that his paternal uncles Pullayya and Dharma Raju purchased the remaining property of the agreement covered by Ex.A5. As per Ex.A5 agreement, only on the north of the property covered by Ex.A5, the property of 2nd defendant is there. As per the sale deed under Ex.A3 in the name of plaintiffs and 3rd defendant, on the east and north of land of plaintiffs, land of 2nd defendant is there. As per Ex.A5, A15, the eastern boundary is property of Vijju people and 2nd defendant is not having property. As per evidence of DW1, they are not in possession of property of Moture Jagga Rao agreed to purchase. Under Ex.A3, plaintiffs and 3rd defendant are claiming the property in the north corner of entire Ac.2245 cents. In such a case, with in 12 how the 2nd defendant got his property on the east also. Plaintiffs have to explain how the eastern boundary was changed from property of Vijju
Nagaratnam to 2nd defendant. There is no documentary evidence on this aspect. After remanding the matter by Hon'ble High Court also, plaintiffs could not take steps to get plaint schedule property on ground through advocate commissioner did not identify the plaint 11 schedule property on ground with boundaries as mentioned in the sale deed covered by Ex.A3. He made attempt to localise plaint schedule property is in R.S 436 or not. Plaintiffs not explained how they got the property with a boundary of property of 2nd defendant on north and east when the property of 2nd defendant is only on north as per the other documents filed by them. Unfortunately, commissioner also not noted the boundaries in the plan submitted by him along with report covered under Ex.C1. It appears that the property covered by Ex.A3 is not part of the property covered by
Exs.A5, A6 and A15.
vi)In the cross examination, PW1 deposed that to the east of plaint schedule property, defendants 1 and 2 are having Ac.800 cents of property and at some other place, they are having Ac.1300 cents of property and to the north and west also defendants 1 and 2 are having Ac.250 cents each on either side. Plaintiffs not taken steps to get the plaint schedule property identified on ground with boundaries. Plaintiffs not produced documents in the name of 2nd defendant to prove that he is having landed property to the east of plaint schedule property as well. If the 2nd defendant was already having property on the east of entire Ac.2245 cents, the eastern boundary must be the property of 2nd defendant in the agreements entered in the years 1977 and 1979. But not mentioned the name of 2nd defendant as boundary holder. Unless the property purchased by plaintiffs and third defendant under Ex.A3 protruded towards north in the property of 2nd defendant, the boundaries like the boundaries mentioned in Ex.A3 are not possible. But that is not the case of plaintiffs and the recitals in the agreements executed by Moturi
Jaggagga Rao in the years 1977 and 1979 are not suggesting such boundaries.
vii)Plaintiff Exs.A1 and A2 are the documents of title of 12
Maturi Jagga Rao. There is no dispute about original title of Maturi
Jagga Rao over property to an extent of Ac.2245 cents. Plaintiffs have to prove that plaint schedule property is part of that total Ac.2245 cents of property. That was not done. Exs.A6 to A13 are land revenue receipts. These documents not established the identity of plaint schedule property on ground. As per Ex.A14 sale deed executed by wife of junior paternal uncle of plaintiffs and 3rd defendant by name
Dharma Raju, it appears that to the north and south of that property, property of 1st plaintiff is there. As per this document, eastern boundary holder is Kusampudi Surya Prabhavathi and not Vijju
Nukaratnam and her family members. Therefore, it appears that the property covered by Ex.A14 is not part of the property covered by the agreements of the year 1977 and 1979. In Exs.A24 to A26 there is no reference that the land of plaintiffs now under in dispute is boundary of the property sold and to the east of plaint schedule property the land of 2nd defendant is there. In Ex.A24, only S.No.436 was mentioned as boundary name of the owner was not mentioned.To prove Exs.A24 to A27, plaintiffs examined PWs 4 and 5. They deposed about their purchase of properties under Exs.A25 and A26 and the visit of advocate commissioner to the suit schedule property etc facts.
The evidence of PWs 4 and 5 is not having much value n the light of documents covered by Exs.A24 to A27. Documents are not supporting the case of plaintiffs.
viii) Exs.A16 to A18 are payment endorsements made on
Ex.A15 agreement. These documents are not useful to identify the suit schedule property on ground. Exs.A19 and A20 are the land tax payment receipts. They are also not useful to identify the suit schedule property on ground. Exs.A21 to A23 are documents of title of predecessor of Moturu Jagga Rao. There is no dispute about the original title of Moturu Jagga Rao over her property. There is no 13 evidence that property covered by Ex.A3 is part of that property.
Therefore, these documents are not useful to decide the dispute involved in this case.
ix)In the further cross examination, after remand, PW1 in his cross examination deposed that at the time of purchase of property under Ex.A3, measurements were not taken and he tried to explain that as the plaint schedule property is separate bit there is no need for separate measurements. It may be true that the plaint schedule property is separate bit but to identify the property on ground taking of measurements is required. As there was no survey at the time of execution of Ex.A3 sale deed, the discrepancy with regard to eastern side boundary might have occurred.
x)According to plaintiffs, 1st defendant made an attempt to interfere with their possession and enjoyment of suit schedule property, they filed the suit O.S.706 of 1979 and as the present 1st defendant contending that property is in the name of his father, they withdrew the suit O.S.706 of 1979 and three days thereafter, defendants encroached plaint schedule property high handedly on 1 111982. In the earlier cross examination, PW1 deposed that he did not add the present 2nd defendant as party to the suit O.S.706 of 1979 because 1st defendant was cultivating the land by that time. As seen from this evidence of PW1, it is clear that the dispossession of plaintiffs and 3rd defendant by defendants 1 and 2 on 1111982 is false. By the time of filing of suit O.S.706 of 1979, plaintiffs and 3rd defendant were not in possession of suit schedule property. In such a case, when the defendants 1 and 2 dispossessed the plaintiffs and 3rd defendant. After considering the entire evidence on record, this evidence given by PW1 can be discarded as stray sentence. It is a true fact came out during cross examination. After considering the entire evidence on record, it appears that for want of identity of property 14 covered by Ex.A3 on ground, plaintiffs and defendants could not secure physical possession of property on ground and therefore, filed the suit for permanent injunction and thereafter filed the present suit basing on title by creating a different cause of action of dispossession on 111982.
xi)After considering the above observations, this court is of considered opinion that plaintiffs and 3rd defendant failed to prove the identity of their property covered by Ex.A3 on ground. The other documents filed by plaintiff themselves proved that the property claimed by plaintiffs under Ex.A3 is not available on ground.
Therefore, plaintiffs and 3rd defendant failed to prove the identity of schedule property on ground. Under Ex.A3 sale deed, plaintiffs are having title over the property covered there in but they have failed to prove the existence of the said property on ground and that property is in possession of defendants 1 and 2.
xii)To get decree, the initial burden is on plaintiffs to get their property identified on ground. In view of that fact, they are not entitled for decree. As the plaintiffs failed to prove their case, in this judgment, this court not discussing the oral evidence of defendants and documents produced by them in this judgment.
9. POINT Nos.3 to 5:
Plaintiffs and 3rd defendant failed to prove the identity of their property on ground purchased under Ex.A3 sale deed. When identity of property on ground is not established, it is not proper to decide whether the defendants acquired title by way of adverse possession and it is also very difficult to give correct finding on that aspect. If the plaintiffs able to establish the identity of plaint schedule property on ground, then the court can decide who is in possession of that property and since how long that party is in 15 possession of property and whether the possession of that person culminates into title by adverse possession or not etc. During course of arguments, counsel for plaintiffs submitted case law on the aspect of adverse possession. As the plaintiffs and 3rd defendant failed to prove the identity of property on ground, there is no need to decide the said aspect. Hence, not deciding the same. As this court not deciding the said aspect, there is no need to discuss the case law submitted by counsel for plaintiffs on the aspect of adverse possession. As plaintiffs are not entitled for recovery of possession of suit schedule property, they are not entitled for mesne profits and other reliefs.
10. POINT No.6:
Findings and observations of trial court are in accordance with evidence on record and well settled legal principles. Therefore, there are no grounds to interfere with findings of trial court. Hence, not interfering with findings of trial court.
11. POINT No.5:
In the result, appeal is dismissed. Confirmed the decree and judgment of trial court. In view of facts and circumstances of the case, both parties are directed to bear their own costs of this appeal.
Typed by me and pronounced in open court on this 9th day of April 2018
IX Additional District Judge
West Godavari at Kovvur
APPENDIX
WITNESSES EXAMINED
On behalf of Appellants: PW1 Vandanapu Rukkayya (Plaintiff/ further examined himself after remand ) 16
PW4 A.Veerachandra Rao(Husband of purchaser of property covered by Ex.A24)
PW5 Sattisetti Surya Rao(Purchaser under Ex.A26)
On behalf of respondents:
None On behalf of Court
CW1 U.Krishna Rao(Advocate Commissioner)
CW2 N.Vijaya Raju(Surveyor)
DOCUMENTS MARKED
On behalf of Appellants : Ex.A24 Registration extract of sale deed dt.792000 executed by Gaddae Dorayya in favour of Madicherla Baby Naga Kumari.
Ex.A25 Registration extract of sale deed dt.1452001 executed by Medicherla Baby Naga Kumari in favour of Anisetti Sesha Kumari.
Ex.A26 Registration extract of sale deed dt.641981 executed by Vandanapu Rama Lakshmi in favour of Sattisetti Venkateswara Rao.
Ex.A27 Registration extract of sale deed dt.1971979 executed by Maturi Jagga Rao in the name of Vandanapu Rama Lakshmi.
On behalf of respondents :
No documents were marked
On behalf of court witnesses:
Ex.C1 Report submitted by Advocate Commissioner.
Ex.C1ARough sketch prepared by Commissioner.
Ex.X1 Sketch prepared by CW2 at the time of execution of warrant by CW1.
IX Additional District Judge
West Godavari at Kovvur
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