Sri Ziauddin Shaik

IN THE COURT OF THE 1 st ADDITIONAL CIVIL JUDGE (JUNIOR

DIVISION): MACHILIPATNAM.

Present: Ziauddin Shaik,

I-Addl. Civil Judge (Junior Division) ,

Machilipatnam.

Tuesday, this the 2 nd day of April, 2024.

OS.No.497/2021

Between

Kagitha Venkata Swamy, S/o. Late Paidaiah, a/a 48 years, cultivation, R/o.Kakarlamudi village, Pedana Mandal, Krishna District.

…..Plaintiff.

And

1.Kagitha Mangamma, W/o. Late Paidaiah, a/a 67 years, House wife, R/o.Kakarlamaudi village, Pedana Mandal, Krishna District.

2.BathinaVenkateswaramma@Lakshmi, W/o.Lakshmaiah, a/a 50 years, house wife, R/o.Thurayipalem village, Dokiparru Panchayat, Gudlavalleru Mandal, Krishna District.

3.Meka Nagamani, W/o.Narayana Rao, a/a 46 years,Housewife,R/o.D.No.15/323-14, Machavaram, Machilipatnam town, Krishna District.

4.Midde Madhavi, W/o.Raju, a/a 36 years, House wife,R/o.D.No.19-425-6,SarkaruThota, Machilipatnam Town, Machilipatnam, Krishna District.

5. Parasa Venkata Rupavathi, W/o.Lakshman Kumar, a/a 34 years, house wife, R/o.Kakarlamudi village, Pedana Mandal, Krishna District.

6. Kagitha vinay Kumar, s/o.Late Naga Malleswara Rao, a/a 30 years, R/o.Kakarlamudi village, Pedana Mandal, Krishna District.

7. Vuyyuru Subba Rao, S/o.Munaiah, a/a 53 years, ....Defendants.

cultivation, R/o.kakarlamudi village, Pedana mandal, Krishna District.

This suit is presented on 22.03.2024 for final hearing before me in the presence of Sri G.V.Ramana advocate for plaintiff and Sri B.Ashok Kumar, advocate for defendants 1, 4 to 7 and Defendants 2 2 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

and 3 remained exparte and upon perusing the material on record and the matter having stood over for consideration till this day, this Court has delivered the following:

J U D G M E N T

01. This suit has been filed by the plaintiff against the defendants 1 to 7 for the relief of partition of plaint schedule property into five equal shares according to good and bad qualities and for allotment of one such share to the plaintiff together with separate possession.

02.The plaint schedule property is a wet land in an extent of Ac.0.50 cents in Rs.No.118/3A situated at Kakarlamudi village, Pedana Mandal,

Krishna District.

03. The case of the plaintiff in nutshell is that:

The 1st defendant is mother, defendants 2 and 3 are sisters of plaintiff, defendants 4 to 6 are children of one K.Nagamalleswara Rao, who is elder brother of plaintiff, Kagitha Paidaiah is father of the plaintiff.

The father of plaintiff purchased a land to an extent of Ac.0.33 cents in

RS.No.118-3A under registered document and also purchased Ac.0.17 cents from his father and the total extent is Ac.0.50 cents in the above

RS number i.e., plaint schedule property. Since the date of purchase his father was in possession. His father died intestate on 30.04.2016 leaving behind the plaintiff, defendants 1 to 3 and father of defendants 4 to 6. As such the plaint schedule property was devolved on his legal heirs. They have been in joint and constructive possession over the schedule property. The father of the defendants 4 to 6 died intestate on 3 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

29.04.2020 and their mother also died intestate on 07.06.2017 leaving behind the defendants 4 to 6 as their legal heirs. Being elder, the 1st defendant used to maintain the property. Thereafter the defendants are avoiding to give share to the plaintiff in the schedule property and the plaintiff came to know that the defendants are trying to alienate the schedule property in favour of 7th defendant and entered into an agreement of sale. The plaintiff made several requests to the defendants for amicable partition but the defendants are not cooperating the same despite issuance of legal notice to them. Hence, this suit.

04.Defendants 1, 4 to 6 filed their common Written statement.

Defendants 2 and 3 remained exparte. 7th defendant has not filed any

Written statement.

The brief averments of Written statement of 1, 4 to 6 which

are as follows:

They are not disputing about the relationship as mentioned in the plaint. Further the defendants admitted about the death of father of defendants 4 to 6 on 29.04.2020 and their mother on 17.06.2017. They denied the rest of the averments and contended that during lifetime of father of the plaintiff, an oral partition was held among him and his children in the year 1984, in the said partition, the father of the defendants 4 to 6 got Ac.0.50 cents in RS.No.118-3A. Their father also purchased a property to an extent of Ac.0.25 cents in RS.No.157-A situated at kakarlamudi village under registered sale deed. He also 4 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

purchased a land to an extent of Ac.2.18 cents at Kakarlamudi village under registered sale deed, in total their father had Ac.2.93 cents which is in his exclusive possession and enjoyment by paying land revenue.

During lifetime of their father, the defendants 5 and 6, their father, the plaintiff along with his mother who is 1st defendant herein and defendants 2 and 3 executed a relinquishment deed in favour of father of defendants 4 to 6 on 18.04.2017 and all of them relinquished their undivided 4/5th share in favour of their father. The plaintiff also relinquished his 4/5th joint share. But the plaintiff suppressed the same.

The defendants 4 to 6 partitioned their properties after demise of their father on 23.09.2024 under registered document. Since the plaint schedule property is absolute property of father of defendants 4 to 6 as such the plaintiff is not entitled for the relief of partition as prayed for.

Except the oral contention, the plaintiff has not filed any document

before the court and prays to dismiss the suit.

05.Basing on the above pleadings and the material available on record, following issues were settled for trial by this court:

1. Whether the plaintiff had relinquished his share as alleged by the defendants?

2. Whether the plaint schedule property can be divided into 5 equal shares and allot one such

share to the plaintiff as prayed for?

3. To what relief?

06.On behalf of the plaintiff, he himself is examined as P.W.1 and got marked Exs.A.1 to A.5. On behalf defendants, the 1st defendant is 5 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

examined as D.W.1, 4th defendant is examined as D.W.2, 5th defendant is examined as D.W.3, but no document is exhibited through them.

07.Heard both sides.

a) The learned counsel for plaintiff vehemently argued that the evidence of plaintiff i.e., P.W.1 and Exs.A.1 to A.5 clearly proved and established that the plaint schedule property is joint family property as father of the plaintiff purchased the same. Since he died instate, so the plaintiff is also having equal share over the plaint schedule property as such, the plaintiff is entitled for the relief of partition as prayed for.

b) Per Contra, the learned counsel for defendants vehemently argued that the plaintiff failed to prove and establish that the plaint schedule property is joint family property and no document is filed to that effect. Moreover, the plaintiff during his cross examination categorically admitted that there is Ac.0.11 cents of other site which belongs to his father, but he had not shown the said property in this suit, as such this suit is not maintainable as the plaintiff without showing all properties, he has shown only one property and already during lifetime of father of the plaintiff an oral partition was taken place in the year 1984. In the said partition, the father of the defendants 4 to 6 got the schedule property and the plaintiff relinquished his share over the schedule property in favour of father of the defendants 4 to 6 and he approached this court with unclean hands by suppressing the fact, as such this suit cannot be decreed and prays to dismiss the suit.

6 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

In Re : Issue.No.1:

1. Whether the plaintiff had relinquished his share as alleged by the defendants?

Analysis:

08. On consideration of both rival contentions, the admitted facts are that one Kagitha Paidaiah is father of the plaintiff, defendants 2 and 3, and husband of 1st defendant. Further it is an undisputed fact that the defendants 4 to 6 are children of one Kagitha Naga Malleswara Rao, who died intestate and he is also son of Kagitha Paidaiah. It shows that the plaintiff is son of 1st defendant and brother of defendants 2 and 3 and junior paternal uncle of defendants 4 to 6. Since there is no dispute with respect to the relationship between the parties as such it is held that the plaintiff successfully proved and established about the relationship as mentioned in the plaint and the parties herein are interrelated with each other.

09. The contention of the defendants is that the plaintiff had executed a relinquishment deed and he relinquished his share in respect of father of defendants 4 to 6. Now the burden heavily lies on the defendants to prove and establish that the plaintiff had executed a relinquishment deed with respect to plaint schedule property in favour of the father of the defendants 4 to 6 namely Kagitha Naga Malleswara

Rao. To prove the said fact, the 1st defendant is examined as D.W.1, 6th defendant is examined as D.W.2 and 5th defendant is examined as 7 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

D.W.3. D.Ws.1 to 3 filed their examination in chief, where they had reiterated the averments of their Written statement. Except the oral evidence of D.Ws. 1 to 3, there is no other documentary evidence to prove and establish that the 1st defendant has relinquished his share over the plaint schedule property in favour of father of defendants 4 to

6. During course of cross examination of P.W.1, the learned counsel for defendants posed a suggestion as on 18.04.2017, a relinquishment deed was executed, where defendants 1 to 3 put their signatures, but the plaintiff refused to put his signature. The suggestion given by the learned counsel for defendants shows that the defendants requested the plaintiff to put signature over relinquishment deed dt.18.04.2017.

However, the plea taken by the defendants in the Written statement as the plaintiff relinquished his share over plaint schedule property in favour of father of defendants 4 to 6 and he executed a relinquishment deed to that effect. But the question posed by counsel for defendants to

P.W.1 is totally contrary to the contention of the defendants. Moreover, except the oral evidence of D.Ws.1 to 3 there is no other evidence, to prove and establish that the plaintiff had relinquished his share in favour of father of defendants 4 to 6 and executed a relinquishment deed.

10. As per section 17 of Registration Act, the relinquishment deed is compulsorily registerable document. As per section 91 of Indian

Evidence Act no evidence to be given to prove the terms of contract, grant or other property disposition ig the terms have been reduced to the form of a document.

8 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

11. Admittedly the defendants had not produced the said relinquishment deed before the court. If really the plaintiff had executed a relinquishment deed by relinquishing his share over the plaint schedule property in favour of father of the defendants 4 to 6, the defendants would have produced the same before the court, but no document was exhibited through the defendants. In the absence of the said relinquishment deed an adverse interference to be drawn against the contentions of the defendants as per section 114 (g) of Indian

Evidence Act. Hence, it is held that the defendants took a false plea as the plaintiff executed a relinquishment deed in favour of father of defendants 4 to 6. Hence, it is held that the defendants failed to prove and establish that the plaintiff executed a relinquishment deed in favour of father of defendants 4 to 6 by relinquishing his share over the plaint schedule property. Accordingly issue is answered in favour of the plaintiff and against the defendants.

In Re:: Issue No.2:

2. Whether the plaint schedule property can be divided into 5 equal shares and allot one such

share to the plaintiff as prayed for?

12. Now the plaintiff has to prove and establish that the plaint schedule property is joint family property and his father died intestate leaving behind his wife and children and he has been in joint and constructive possession over the plaint schedule property. The burden heavily lies on the plaintiff.

9 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

13. The case of the plaintiff is that his father purchased Ac.0.33 cents of wet land in RS.118-3A and Ac.0.17 cents from his father in the same RS number and the plaint schedule property was purchased by his father. Now the plaintiff has to prove and establish the same. To discharge his burden, he examined himself as P.W.1. On perusal of evidence of P.W.1, he filed his chief examination affidavit which is replica of plaint, where he had reiterated the averments of the plaint. He was cross examined. During his cross examination he deposed that his father sold away his self acquired property during his lifetime, the father of defendants 4 to 6 namely K.Naga Malleswra Rao had purchased Ac.2.43 cents in RS.No.157/1A of their village with his self earnings. It is true that he did not show the site of his father to an extent of Ac.0.11 cents in this suit. And he occupied Ac.0.02 cents out of the above Ac.0.11 cents and residing therein and tax is being paid in the name of father of defendants 4 to 6. The cross examination of P.W.1 reveals that the father of the plaintiff has a site to an extent of Ac.0.11 cents but the plaintiff had not shown the said Ac.0.11 cents in this suit.

14. Further the plaintiff relied on Exs.A.1 to A.5. As can be seen from

Ex.A.1, which is a legal notice, it discloses that the plaintiff got issued legal notice through his counsel to the defendants 1 to 7 on 02.11.2021.

Ex.A.2 which are postal receipts, it discloses that the plaintiff got issued

Ex.A.1 legal notice through post to the defendants. As can be seen from

Ex.A.3, which is a track consignment, it discloses that the legal notice was served on the defendants. Ex.A.4 is only photograph. Exs.A.1 to A.4 do not prove and establish that the plaint schedule property was 10 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

purchased by father of the plaintiff. As can be seen from Ex.A.5, which is a certified copy of registered sale deed dt.18.08.1941, it discloses that one Kagitha Venkata Swamy purchased Ac.0.33 cents of land from one

Mahalakshmaiah under registered sale deed dt.18.08.1941 for a valuable consideration and the said land is situated in RS.No.118/3 of

Kakarlamudi village, Pedana Mandal.

15. The case of the plaintiff is that his father namely Kagitha

Paidaiah purchased the plaint schedule property under registered sale deed vide Doc.No.1399/1941. However, Ex.A.5 which is a certified copy of registered sale deed dt.18.08.1941, it discloses that one Kagitha

Venkata Swamy purchased Ac.0.33 cents in RS.No.118/3 of Kakarlamudi village under bearing Doc.No.1399/1941 of SRO, Pedana. However,

Ex.A.5 do not prove and establish that the father of the plaintiff purchased the plaint schedule property. Except Exs.A.1 to A.5, there is no other evidence to prove and establish that the father of the plaintiff purchased the plaint schedule property under Ex.A.5.

16. The case of the defendants is that during lifetime of father of the plaintiff in the year 1984 an oral partition was taken place and father of defendants 4 to 6 got the plaint schedule property. To prove the said fact, except the oral evidence of D.Ws.1 to 3 there is no other evidence before the court. No document is being filed by the defendants to prove and establish that the father of the defendants 4 to 6 was in possession and enjoyment over the plaint schedule property. In the absence of any documentary evidence, the oral contention of the 11 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

defendants cannot be accepted. Hence, it is held that the defendants failed to prove and establish that the father of the defendants 4 to 6 got the plaint schedule property in an oral partition in the year 1984.

17. However, this suit has been filed by the plaintiff for the relief of partition. So the burden heavily lies on the plaintiff to prove and establish his own case. Though the defendants failed to prove their versions, the suit cannot be decreed as the plaintiff has to discharge his burden. Except oral evidence of P.W.1 and the documentary evidence

Exs.A.1 to A.5, there is no other material on record to prove and establish that his father purchased the plaint schedule property. The

Hon’ble High Court of Telangana in S.Narasimhareddy died per

L.Rs vs. Smt.G.Viajayamma, 2023 (2) ALT 788(TS) held that “without there being any documentary evidence to prove about the right over the property, the courts cannot pass a decree in a suit for partition”. Herein this suit, the plaintiff has not filed any document or material before the court to prove and establish his right over the plaint schedule property. Moreover, the plaintiff during his cross examination categorically admitted that his father had Ac.0.11 cents of land and he occupied Ac.0.02 cents out of it, he did not show the same in this suit.

It is well settled law that in a suit for partition all joint family properties to be shown which are liable for partition. Otherwise, the suit cannot be maintained. The said legal principle has been laid by Hon’ble High

Court of A.P in between Munipalli Subba Rao died and others

Vs.M.Siva Sankara Vara Prasada rao @ Prasada Rao and others,

2023(5) ALT 166 (AP) at para No.32 held that “it is settled law that 12 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

non impleading the necessary parties, the suit is liable to be dismissed.

In a suit for partition, the thumb rule is that all the necessary parties to be impleaded and all the properties liable for partition are to be included”. The said decision squarely applies to the present suit.

18. Since the plaintiff had not shown the Ac.0.11 cents of site of his father in this suit as such it is held that the plaintiff had not included all properties of his father in this suit and without showing the Ac.0.11 cents, he had shown only plaint schedule property as such this suit is not maintainable and liable to be dismissed. Moreover, there is no material or document before the court to prove the right of the plaintiff over the plaint schedule property as such in view of above decision of

Hon’ble High Court of Telangala, this suit is not maintainable and liable

to be dismissed. Hence it is held that the plaintiff failed to prove and establish that the plaint schedule property is a joint family property and he is having right over it, as such this suit is liable to be dismissed.

According issues No.2 is answered in favour of the defendants and against the plaintiff.

In Re:: Issue No.3

3. To what relief?

19. While answering issue No.1 it is held that the defendants failed to prove and establish that the plaintiff had executed a relinquishment deed in favour of father of the defendants 4 to 6 and while answering issue No.2 it is held that the plaintiff failed to show his right over the 13 I.A.C.Jcourt (J.D) OS.497/2021 Machilipatnam. dt.02.04.2024.

plaint schedule property and not included the other properties of his father in this suit, as such this suit is liable to be dismissed. Accordingly, issue is answered.

20. In the result the suit is dismissed with costs.

Dictated to Stenographer (Gr.III), transcribed by her, corrected

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

I.Addl. Civil Judge(Junior Division) Machilipatnam.

Appendix of Evidence

Witness examined

For plaintiff :

PW1 : K.Venkata Swamy.

For defendants:

D.W.1: K.Mangamma. D.W.2: K.Vijay Kumar. D.W.3: P.Rupavathi

Documents marked

For plaintiff:

Ex.A.1: 01.11.2021: office copy of legal notice.

Ex.A.2: 02.11.2021: postal receipts 7 in number.

Ex.A.3: –: track consignment copies 7 in number

Ex.A.4: – : photographs along with CD.

Ex.A.5: 18.08.1941: certified copy of registered sale deed.

For defendants: Nil

I.Addl. Civil Judge(Junior Division), Machilipatnam.

IN THE COURT OF THE 1 st ADDITIONAL CIVIL JUDGE (JUNIOR

DIVISION): MACHILIPATNAM.

Present: Ziauddin Shaik,

I-Addl. Civil Judge (Junior Division) ,

Machilipatnam.

Monday, this the 1 st day of April, 2024.

OS.No.07/2021

Between

Chirivella Satyanarayana, S/o.Somulu, a/a 55 years, R/o. Chirivellapalem village, Bandar mandal.

…..Plaintiff.

And

1.Chirivella Nancharamma, W/o. Naga Malleswara Rao, aged about 60 years, R/o.Chirivellapalem village, Bandar mandal, Krishna District.

2. Tumma Vakalamma @ vani, W/o. Tumma Ramakrishna, a/a 35 years, R/o. Chirivellapalem village, Bandar mandal, Krishna District.

3.Chirivella Balarama Murthy, S/o.Nageswara Rao, a/a 48 years, R/o. Chirivellapalem village, Bandar mandal, Krishna District.

4. Peruboyina Nancharaiah, S/o.Rama swamy, a/a 65 years, R/o. Chirivellapalem village, Bandar mandal, Krishna District.

5. Chirivella Venkateswra Rao, S/o.Raghavaiah, a/a 60 years, R/o. Chirivellapalem village, Bandar mandal, Krishna District.

6. Chirivella Nagaraju, S/o.Yasodha Rao, Hindu, a/a 50 years, R/o. Chirivellapalem village, Bandar mandal, Krishna District.

7.Chirivella Sivasankar, S/o.Siva Sankar, a/a 55 years, R/o. Chirivellapalem village, Bandar mandal, Krishna District.

8. Peruboyina Subrahmanyam, S/o.Krishna Murthy, a/a 68 years, R/o. Chirivellapalem village, Bandar mandal, Krishna District.

9. Chirivella Samrajyam, W/o.Venkataramaiah, a/a 55 years, R/o. Chirivellapalem village, Bandar mandal, Krishna District.

2 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

10.Tumma Rama Krishna, S/o.Manikyala rao, a/a 40 years, R/o. Chirivellapalem village, Bandar mandal, Krishna District.

11. Chirivella Naga Malleswara Rao, S/o.Somulu, a/a 60 years, R/o. Chirivellapalem village, Bandar

mandal, Krishna District. ....Defendants.

This suit is presented on 27.03.2024 for final hearing before me in the presence of Sri L.Balaji, advocate for plaintiff and Sri S.Balaji Rao, advocate for defendants and upon perusing the material on record and the matter having stood over for consideration till this day, this Court has delivered the following:

J U D G M E N T

01.This suit has been filed by the plaintiff against the defendants 1 to 11 for the relief of permanent injunction in favour of the plaintiff and against the defendants by restraining them, their men, coolies, hooligans etc., from ever interfering with the plaintiff’s plaint schedule property in any manner with costs.

02.The plaint schedule property is a vacant site and residential house bearing D.No.2/220 situated in RS.No.82/2 at Manginapudi area,

Chirivellapalem village of Bandar Mandal and the total extent of plaint schedule property is Ac.0.05 cents.

03. The case of the plaintiff in nutshell is that:

He purchased the schedule property under possessory agreement of sale on 09.10.2002 from one Ganjala Chinnamayi, i.e., vacant site, later he constructed a residential house and has been residing therein.

3 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

He has been in peaceful possession and enjoyment by paying taxes. The defendants 1, 2, 10 and 11 have been demanding him to sell away the plaint schedule property for the purpose of formation of lane to their house, but the plaintiff refused as such they developed grudge against him. So he approached the police, but the police had not taken any action against the defendants. The defendants have no right, title or interest and possession over the schedule property. They are having muscle power, political and financially influenced persons. Hence, this suit.

04.The 2nd defendant filed Written statement and the same was adopted by defendants 1, 3 to 11.

The brief averments of the Written statement which are as

follows:

The defendants denied the averments of plaint and contended that this suit itself is not maintainable as the plaintiff allegedly purchased the schedule property under possessory agreement of sale and no right will be accrued to the plaintiff over the schedule property.

There is a vacant site towards west of house of the plaintiff which is being used by all the defendants for ingress and egress to reach

Machilipatnam-Manginapudi road and a proposal was also made by the panchayat to lay a road for the purpose of passage of public and the same was pending. Their back behind the plaintiff obtained ad-interim order. The schedule property is being used for the purpose of passage and except the schedule property there is no other property left for the 4 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

purpose of passage for the defendants and it is easement of necessity and prays to dismiss the suit.

05.Basing on the above pleadings and the material available on record, following issues were settled for trial by this court:

1. Whether the plaintiff is in peaceful and lawful possession over plaint schedule property by the time of institution of suit?

2. Whether the plaintiff is entitled for the relief of permanent injunction against the defendants as prayed for?

3. To what relief?

06.On behalf of the plaintiff, he himself is examined as P.W.1 and two more witnesses are examined as P.Ws.2 and 3 and got marked Exs.A.1 to A.3. On behalf of defendants, the 10th defendant is examined as

D.W.1, a 3rd party is examined as D.W.2, the 11th defendant is examined as D.W.3, but no document was exhibited through the defendants.

07. Heard both sides.

a) The learned counsel for plaintiff vehemently argued that the evidence of P.Ws.1 to 3 coupled with Exs.A.1 to A3 clinchingly proved and established that by the time of filing of the suit, the plaintiff was in peaceful possession and enjoyment over the plaint schedule property as such he is entitled for the relief of permanent injunction and moreover,

D.W.1 categorically admitted about the possession of the plaintiff over the plaint schedule property during his cross examination and prays to decree the suit.

5 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

b) Per contra, the learned counsel for defendants vehemently argued that allegedly the suit schedule property was purchased under an agreement of sale which does not create any right, interest or title over the schedule property and moreover the vacant site situated towards west of house of the plaintiff is being used as passage by the defendants to reach Manginapudi road from their houses and the plaintiff also admitted the same during his cross examination. Further the plaintiff suppressed the material facts and approached this court with unclean hands as such he is not entitled for the relief of permanent injunction as granting relief of permanent injunction is equitable relief and prays to dismiss the suit.

Analysis:

08. In order to avoid repetitions this court feels to answer issues 1 and 2 joint together.

In Re : Issues 1 and 2:

1. Whether the plaintiff is in peaceful and lawful possession over plaint schedule property by the time of institution of suit?

2. Whether the plaintiff is entitled for the relief of permanent injunction against the defendants as prayed for?

09. Since this suit has been filed by the plaintiff against the defendants for the relief of permanent injunction, the initial burden heavily lies on the plaintiff to prove and establish that by the date of filing of the suit he was in peaceful possession and enjoyment over the 6 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

schedule property and the defendants unnecessarily interfering into his possession.

10. To prove the case of the plaintiff he got examined himself as

P.W.1 and two more witnesses were examined as P.Ws.2 and 3. To grant relief of permanent injunction, the plaintiff has to prove and establish that by the time of filing of the suit he was in peaceful possession and enjoyment over the plaint schedule property and the defendants unnecessarily interfered into his possession. P.W.1 filed his chief examination affidavit which is replica of plaint, where he has reiterated the averments of plaint. He was cross examined. During his cross examination he deposed that the defendants made a passage through plaint schedule property from their houses to reach Manginapudi-

Machilipatnam main road and the width of the passage is 1½ square yards. Since then the defendants are using as a passage to reach main road. The categorical admission of P.W.1 clearly shows and establishes that the defendants made a passage through plaint schedule property from their respective houses to reach Manginapudi-Machilipatnam main road and they are using the same. But the plaintiff had not disclosed the same in his plaint. P.Ws.2 and 3 who are said to be witnesses of the plaintiff, they also deposed in the same lines as deposed by P.W.1.

11. The case of the plaintiff is that he purchased the plaint schedule property under a possessory agreement of sale from one Gangala

Chinnamayi on 09.10.2002 and since then he has been in peaceful possession and enjoyment by constructing a house over it. Admittedly, 7 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

the plaint schedule property is consisting with a vacant site and a house. The defendants are not disputing about the possession of the plaintiff over the house. The case of the defendants is that there is an existence of passage towards west of the plaint schedule property, but the plaintiff has shown it as plaint schedule property.

12.Since there is a vacant site in plaint schedule property, the plaintiff has to prove his incidental title over the plaint schedule property, though this suit is injunction simplicitor. It is well settled law that the possession follows title with respect to vacant site. The said principle has been laid down by the Hon’ble apex court in Anathula

Sudhakar vs P.Buchi Reddy (Dead) By Lrs & Ors 1 at Para

14. But what if the property is a vacant site, which is not

physically possessed, used or enjoyed? In such cases the

principle is that possession follows title. If two persons

claim to be in possession of a vacant site, one who is able

to establish title thereto will be considered to be in

possession, as against the person who is not able to

establish title. This means that even though a suit relating

to a vacant site is for a mere injunction and the issue is

one of possession, it will be necessary to examine and

determine the title as a prelude for deciding the de jure

possession. In such a situation, where the title is clear and

simple, the court may venture a decision on the issue of

1AIR 2008 SC 2033 8 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

title, so as to decide the question of de jure possession

even though the suit is for a mere injunction.

(Emphasis added).

13. In view of above decision though the plaintiff filed the present suit for permanent injunction this court has to look into the title of the plaintiff over the vacant site. The plea of the plaintiff is that he purchased the plaint schedule property under Ex.A.1 patta from one

Ganjala Chinnammayi on 09.10.2002, to prove his incidental title he relied on Exs.A.1 to A.3. As can be seen from Ex.A.1, which is a patta which discloses that one Ganjala Chinnammayi was granted patta by the then Tahsildar with respect to a site to an extent of Ac.0.05 cents in

RS.No.82/2 of Chirivellapalem Village.

14. The case of the plaintiff is that he purchased the plaint schedule property from the said Ganjala Chinnammayi under the possessory agreement of sale. It is well settled law that an agreement of sale will not create any title or interest over the property. The said principle has been laid down by Hon’ble High Court of AP in between

M.Venkateswara Rao vs. K.Koteswara Rao 2 , where at para 32 it is held that “the agreement of sale did not create any title or interest to it”. So in view of the said legal principle, though the plaintiff purchased the schedule property under a possessory agreement of sale, it does not create any right or interest over the schedule property to the plaintiff. Further the plaintiff relied on Exs.A.2 and A.3.

22021(4) ALT 479 9 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

As can be seen from Ex.A.2, which is house tax receipts. Those house tax receipts pertaining to the house situated over the plaint schedule property. Ex.A.3 are only photographs. Hence, it is held that Exs.A.1 to

A.3 do not prove the interest, right and incidental title of the plaintiff over the vacant site of schedule property.

15. Moreover there is no information on record for how much extent the house is constructed and what is extent of the remaining vacant site of the schedule property?. In view of the above discussions, since the plaintiff failed to prove his incidental title over the vacant site of schedule property, as such it is held that the plaintiff failed to prove his possession over the vacant site of schedule property. Moreover, the plaintiff himself categorically admitted during his cross examination that the defendants are using the said vacant site as a passage to reach

Machilipatnam to Manginapudi road from their respective houses.

16. The contention of the defendants is that they have been using the said vacant site as passage to reach Machilipatnam to Manginapudi main road and the proposal was made by the grampanchayat of

Sirivellapalem to lay a panchayat road over the said passage. To prove the said fact, the 10th defendant is examined as D.W.1 and a 3rd party is examined as D.W.2 and 11th defendant is examined as D.W.3. Except their oral testimony, no panchayat official is examined to prove and establish that Government made a proposal to lay a road over the passage. However, the plaintiff himself categorically admitted that the defendants have been using the vacant site as a passage to reach main 10 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

road, it bolsters the version of the defendants. The learned counsel for plaintiff vehemently argued that D.W.1 during his cross examination he categorically admitted that the plaintiff was in possession and enjoyment over the plaint schedule property. However, it is well settled law that an admission is not conclusive piece of evidence. Moreover, the admission should be categorical, should be conscious and deliberate act of the parties making it. The said principle has been laid down by

Hon’ble apex court in between Bhagwat Sharan Vs. Purushottam 3

at para no.22 which is as follows:

22. Nagubai Ammal v. B. Shama Rao [Nagubai Ammal v. B.

Shama Rao, 1956 SCR 451 : AIR 1956 SC 593], where it is held at para No.18 is that“An admission is not conclusive as to the truth of

the matters stated therein. It is only a piece of evidence, the weight

to be attached to which must depend on the circumstances under

which it is made. It can be shown to be erroneous or untrue, so long

as the person to whom it was made has not acted upon it to his

detriment, when it might become conclusive by way of estoppel.”

[ This view has been consistently followed by this Court in a large

number of cases including Bharat Singh v. Bhagirathi, (1966) 1 SCR

606 : AIR 1966 SC 405; Uttam Singh Duggal & Co. Ltd. v. United Bank

of India, (2000) 7 SCC 120; Himani Alloys Ltd. v. Tata Steel Ltd.,

(2011) 15 SCC 273 : (2014) 2 SCC (Civ) 376.]

It would be pertinent to mention that in Himani Alloys Ltd. v. Tata

Steel Ltd. [Himani Alloys Ltd. v. Tata Steel Ltd., (2011) 15 SCC 273 :

(2014) 2 SCC (Civ) 376] , it was also held that the admission should

be categorical, should be conscious and deliberate act of the party

3(2020) 6 SCC 387 11 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

making it. As far as the present case is concerned, we do not find any

clear-cut admission with regard to the existence of an HUF. At best,

from the recitals in the mortgage deed and averments in the written

statement, all that can be said is that at the relevant period of time

the property was treated to be a joint property.” (Emphasis added)

17. Moreover there is no specific admission of D.W.1, whether the possession of the plaintiff relating to his house or vacant site. In view of above decision, though D.W.1 admitted as the plaintiff is in possession over the plaint schedule property, it cannot be held that it is a conclusive proof of possession of the plaintiff over the schedule property. Hence, it is held that the plaintiff failed to prove and establish his possession over the plaint schedule property. Moreover, the learned counsel for defendants vehemently argued that the plaintiff approached this court by suppressing the material fact. Admittedly, P.W.1 has not disclosed in his plaint about making the vacant site of plaint schedule as a passage and using the same by the defendants to reach main road, which is a material fact. It shows that the plaintiff suppressed the material fact and approached this court with unclean hands. The learned counsel for defendants relied on decision of Hon’ble High Court of AP in between Chapa Lakshmi vs. Sri Pentakota Paradesi Naidu 4 , where the Hon’ble High Court at para 8 held that a person who approached the court seeking equitable relief of injunction must place all relevant and material facts. In view of the above decision, since the plaintiff suppressed the material fact, as such he is not entitled for equitable 42014 (4) ALT 174 12 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

relief of permanent injunction as sought for. Hence, it is held that the plaintiff failed to prove his possession over the vacant site of the plaint schedule property by the time of filing of the suit, as such he is not entitled for the relief of permanent injunction as sought for. Accordingly issues 1 and 2 are answered in favour of the defendants and against the plaintiff.

I S S U E No.3

To What relief?

18. While answering issue no.1 and 2 it is held that the plaintiff failed to prove and establish his possession over vacant site of plaint schedule property and he suppressed the material facts and approached this court with unclean hands as such he is not entitled for the equitable relief of permanent injunction. Accordingly this issue is answered.

19. In the result, the suit is dismissed with costs.

Typed to dictation by the Personal Assistant on computer; corrected and pronounced by me in Open Court, on this the 1st day of April, 2024.

I.Addl. Civil Judge(Junior Division) Machilipatnam.

Appendix of Evidence

Witness examined

For plaintiff :

P.W.1: Ch.Satyanarayana

P.W.2: Ch.Someswara Rao.

13 I.A.C.J court (J.D) OS.07/2021 Machilipatnam. dt.01.04.2024.

P.W.3: Ch.Padma.

For defendants:

D.W.1: T.Rama Krishna.

D.W.2: M.Sivanagaraju.

D.W.3: S.N.Malleswara Rao,.

Documents marked

For plaintiff:

Ex.A.1: 21.11.1995: Original House site patta.

Ex.A.2: – : House tax demand notice

Ex.A.3: – : photographs along with C.D.

For defendants: NIL

I.Addl. Civil Judge(Junior Division) Machilipatnam.

1

IN THE COURT OF THE II Addl. JUDICIAL MAGISTRATE OF I

CLASS –CUM – II ADDITIONAL JUNIOR CIVIL JUDGE,

MACHILIPATNAM.

Present: Ziauddin Shaik, 

I Addl. Judl. Magistrate of I Class–cum– I Addl. Junior Civil Judge, FAC: II Addl.Judl Magistrate of I Class, Machilipatnam.

Thursday, this the 3 rd day of August, 2023

C.C.No. 234/2015

Between: Kollipara Srinivas, S/o.late Rammohan Rao, Hindu, aged about 38 years, Business, resident of Englishpalem, Machilipatnam.

 …... Complainant.

And

Simhadri Ramana Kumar, S/o.Kanakarao, Hindu, aged about 32 years, Business, resident of D.No.2­8/1, Srinivasanagar, Machilipatnam, Krishna District.

... Accused.

This case is presented before this court on 27.07.2023 for final hearing and upon perusing the entire material available on record and upon hearing the arguments of Sri.P.Suresh Babu, learned counsel for complainant and Sri.Y.Kiran, learned counsel for accused and having stood over for consideration till this day, this Court delivered the following: 

// J U D G M E N T //

1.The Complainant filed the present complaint against the accused for the offence punishable U/S.138 of Negotiable Instrument

Act (hereinafter called as NI Act) and prays to punish the accused and award compensation.

2

2.The Brief facts of the complaint as follows:

On 15.08.2013 the accused borrowed an amount of

Rs.1,75,000/­ from the complainant for the purpose of his family expenses and to discharge sundry debts, he executed a promissory note in favour of complainant agreeing to repay the same with interest @ 24% per annum, subsequently on demands, the accused issued a cheque bearing No.028579 dt.10.11.2014 for sum of

Rs.1,50,000/­ drawn on Axis bank limited, Jagannadhapuam,

Machilipatnam towards part payment of debt due under the promissory note. The complainant presented the same for collection into his bank i.e., KDCC Bank Limited, Machilipatnam, it was returned unpaid on 12.11.2014 on the ground of “Account closed”, he got issued legal notice through his counsel to the accused on 08.12.2014 demanding for repayment of the said amount, the same was received by the accused and he kept quite and did not choose to repay the cheque amount. Hence, this complaint.

3. Basing on the allegations of the complaint and on perusal of other material available on record, this case is taken cognizance for the offence punishable U/s.138 of N.I. Act against the accused.

3

Compliance U/S 207 and 251 of Cr.P.C

4. On appearance of the accused before the court, the relevant copies of documents were furnished to the accused as contemplated U/s.207 Cr.P.C.

5. The accused was examined u/s.251 Cr.P.C for the offence punishable u/s.138 of Negotiable Instruments Act and the substance leveled against him is read over and explained to him in Telugu, for which the accused pleaded not guilty and claimed to be tried.

6. On behalf of the complainant, he himself examined as

PW.1 and got exhibited Exs.P1 to P4.

Compliance U/S 313 of Cr.P.C

7. After closer of prosecution evidence, accused was called upon to explain incriminating circumstances appearing against him from the prosecution evidence as contemplated under section 313 of

Code of Criminal Procedure and accused denied the same and reported having defense evidence but, no defense evidence was adduced.

8.Now the point that would arise for determination is –

“Whether the complainant is able to prove the guilt of the

accused for the offence punishable u/s.138 of N.I. Act beyond

reasonable doubt?”

9.Heard both sides.

4

POINT:

Submissions:

10. It is the case of complainant that, the accused borrowed an amount of Rs.1,75,000/­ on 15.08.2013 and executed

Ex.P4/promissory note and the accused agreed to repay the same with interest and later, on repeated demands made by the PW.1, the accused issued Ex.P1/cheque for consideration of Rs.1,50,000/­ on 10.11.2014 and thereafter PW.1 presented the same in his bank but it was returned due to account closed by way of Ex.P3/cheque return memo on 12.11.2014, then PW.1 got issued Ex.P2 legal notice on 08.12.2014 to the accused by demanding to repay the amount within 15 days, but the accused received the said notice and he kept quite and did not repay the amount.

11. The case of the accused is that, he borrowed some petty amounts from the complainant, then he obtained blank signed promissory notes and cheques from the accused towards security and the complainant failed to prove and establish that he received

Ex.P2/legal notice as such this complaint is not maintainable as the complainant did not follow the procedure and prays to dismiss the complaint.

5

12.Now to prove the offense under section 138 of

Negotiable Instruments Act, the Complainant must prove that:

1) The accused has drawn the cheque from the account

maintained by him with a banker and issued the cheque to the

complainant for the discharge in whole or in part of any debt

or other liability and the said cheque was presented by the

complainant within three months from the date on which it is

drawn,

2) The said cheque was returned by the bank unpaid on the ground of “account closed”, and

3) The Complainant issued lawyer notice within 30 days from

the date of receipt of information about return of cheque

unpaid to the accused and the accused failed to pay the cheque

amount within 15 days from the date of receipt of the notice,

and

4) The Complainant filed the complaint within one month

against the accused from the date of completion of 15 days on

which the accused failed to pay the cheque amount after

receipt of notice.

Analysis:

13.To prove the contention of the complainant, the complainant himself examined as P.W.1 and relied on Exs.P.1 to P.4.

To substantiate his version he relied on Ex.P.4. As can be seen from 6

Ex.P.4/promissory note it discloses that, the accused borrowed an amount of Rs.1,75,000/­ on 15.08.2013 from the complainant for the purpose of family expenses and to discharge sundry debts and the agreed rate of interest is 24% per annum. Further it discloses that one Masthan Sharif is an attestor and one K.Mohan is scribe of it. 

14. To prove his contentions the complainant examined himself as P.W.1, he filed his chief examination affidavit which is replica of complaint, where he had reiterated the averments of the complaint and relied on Ex.P.1 to P.4. On perusal of the evidence of

PW1, it shows that the accused borrowed an amount of

Rs.1,75,000/­ from the complainant on 15.08.2013 for the purpose of his family expenses and to discharge sundry debts and agreed rate of interest is 24% per annum and the same was executed by him.

Moreover, on perusal of Ex.P.1 which is a original cheque dt.10.11.2014, it shows that the accused issued Ex.P.1 cheque to the complainant for consideration of Rs.1,50,000/­ on 10.11.2014. It is not the case of the accused as the signature over Ex.P.1 cheque is not belong to him.

7

15. The contention of the accused is that, he never borrowed any amount from the complainant and never issued Ex.P.1 cheque in his favour and the complainant obtained blank signed promissory note and cheques from him when he borrowed some petty amounts from him towards security. But it is not the case of the accused as

Ex.P.1 cheque is not belong to him and not drawn on his bank account. Accused did not deny his signature over Ex.P.1 cheque, it shows that, the complainant initially proved his case and discharged his initial burden in view of Sections 118 and 139 of Negotiable

Instruments Act. Now the onus is on the accused to disprove the case of complainant. 

16. When the accused did not deny his signature over Ex.P.1 cheque the presumption shall be drawn in favour of complainant under Sections 139 and 118 of Negotiable Instrument Act and to rebut the presumptions under Sections 139 and 118 of Negotiable

Instrument Act, the onus is on the accused and he has to rebut those presumptions as those presumptions are rebuttable presumptions. 

17.  It has been admitted by the accused that the cheque in question was drawn by him upon the bank account maintained in his name and having signed the same. Once these foundational facts 8 are admitted and a factual base is established, presumption of cheque having been issued in discharge of legally recoverable debt and drawn for lawful consideration and on the date arises by virtue of Section 118 and Section 139 of Negotiable Instrument Act.

18. Once the foundational facts that the cheque in question bears the signature of the accused and the same has been drawn on account maintained by him are established, a factual base is established to invoke the presumption of cheque having being issued in discharge of a legally recoverable debt and drawn for good consideration and date arises by virtue of Section 118(a),(b) R/W

Section 139 of NI Act. It is a mandatory presumption though the accused is entitled to rebut the said presumption. 

19.The Honorable apex court inBasalingappa Vs.

Mudibasappa 1 , came down to the following conclusion at para

25:

"25. We having noticed the ratio laid down by this Court in the

above cases on Section 118(a) and 139, we now summarise the

principles enumerated by this Court in the following manner:

25.1. Once the execution of cheque is admitted Section 139 of

the Act mandates a presumption that the cheque was for the

discharge of any debt or other liability.

1(2019) 5 SCC 418 9

25.2. The presumption under Section 139 is a rebuttable

presumption and the onus is on the accused to raise probable

defence. The standard of proof for rebutting the presumption is

that of preponderance of probabilities.

25.3. To rebut the presumption, it is open for the accused to

rely on evidence led by him or the accused can also rely on the

materials submitted by the complainant in order to raise a

probable defence. Inference of preponderance of probabilities

can be drawn not only from the materials brought on record by

the parties but also by reference to the circumstances upon

which they rely.

25.4. That it is not necessary for the accused to come in the

witness box in support of his defence. Section 139 imposed an

evidentiary burden and not a persuasive burden.

25.5. It is not necessary for the accused to come in the witness

box to support his defence." {Emphasis added}

20. By relying on the above decision, once the accused admitted his signature over Ex P1 cheque, then the onus shifts on him to rebut the presumptions under Sections 118 and 139 of

Negotiable instrument Act. The contention of the accused is that he never borrowed any amount from the complainant and never issued

Ex.P.1 cheque in his favour and the complainant obtained blank signed promissory note and cheques from him when he borrowed 10 some petty amounts from him towards security. But, the accused did not adduce any evidence to prove his contention. In view of above decision (basalingappa), it is not necessary to the accused to rebut the presumptions under Sections 139 and 118 of Negotiable

Instrument Act to come into witness box and adduce evidence and he can rely on the evidence adduced by the complainant and documents relied by the complainant to rebut the presumptions under Sections 139 and 118 of Negotiable Instrument Act and moreover the standard of proof for accused is that preponderance of probabilities.

21. To rebut the presumptions, the learned counsel for the accused cross examined P.W.1. However, P.W.1 did not admit the case of the accused. Further the accused did not lead any evidence to prove and establish his contention. Now the accused has to prove and establish that, a false case was foisted against him. To prove his contention he did not adduce any oral or documentary evidence to that effect. 

22. In view of above discussions, it is held that the accused failed to prove and establish that he never borrowed any amount from the complainant and never issued Ex.P.1 cheque in his favour and the complainant obtained blank signed promissory note and 11 cheques from him when he borrowed some petty amounts from him towards security. In the absence of any evidence the contention of accused is not believable. Hence, it is held that the accused failed to rebut the presumptions under Sections 139 and 118 of Negotiable

Instruments Act and still they stands in favour of the complainant.

23. Further, Ex P.1 cheque was issued on 10.11.2014 and it was presented in the bank of the complainant on the same day. So, it shows that Ex P.1 cheque was presented by PW1 within the period of its validity. Ex P.3 cheque return memo shows that Ex P.1 cheque was returned unpaid for account closed. On perusal of Ex.P3, no date is mentioned to show that on which date Ex.P3 return memo was issued by the concerned bank officials. However Ex P.2 office copy of legal notice shows that the complainant got issued legal notice to the accused on 08.12.2014 demanding him to pay the cheque amount within 15 days from the date of receipt of the notice, which is within 30 days from the date of presentation of Ex.P1 cheque as well as receipt of information about the dishonour of Ex

P.1 cheque.

24. The contention of the complainant is that the accused received the same and kept quite. To prove the same, the complainant did not produce any document or no acknowledgment 12 was exhibited on his behalf. On perusal of record, there is an acknowledgement to show that the complainant issued Ex.P2 legal notice to the accused and the said notice was received by the accused under the said acknowledgement. On perusal of complaint and evidence of Pw1, he did not mention the date when Ex P2 legal notice was received by the accused. In this case the complainant has not intentionally exhibited the postal acknowledgement pertaining to

Ex.P2 legal notice. The document has got its own significance. As seen from the acknowledgement by the court, there is a date which was printed by postal authorities as 17.12.2014. Further it is found that underneath the signature of accused over acknowledgement a date was mentioned as 15.12.2014 but it doesn’t show as the accused received Ex.P2 legal notice on 15.12.2014. The printed date over the acknowledgment by postal authorities is 17.12.2014. This complaint is filed before the court on 31.12.2014. However as per proviso (c) of Section 138 of Negotiable Instrument Act, the complainant has to wait for a period of 15 days and after completion of 15 days from the date of receipt of Ex.P2 legal notice to the accused, he has to file complaint. But this complaint is filed on 31.12.2014 and it shows that the complainant is not waited the grace period and filed the present complaint. It goes to show that 13 without waiting for grace period of 15 days from the date of receipt of

Ex.P2 legal notice, the complainant has filed the present complaint.

25.In other words, without giving the statutory time of full 15 days, the complainant has launched prosecution. Thus the complaint is immature one. This immaturity has a crucial role in this case. This goes to the roots of the case of the complaint. Hence fatal.

Finding a premature date of acknowledgement, the counsel for complainant has not brought the same on record by marking the same. However the court can very well perused the record and take note of its and in such probe, the above fallacy is noted. Since the complainant failed to wait for a period of 15 days as such this complaint is pre­matured complaint and liable to be dismissed. 

26.Since the complainant failed to follow the mandatory procedure prescribed under Section 138 of Negotiable Instrument Act and this complaint is pre matured one as such this compliant is not maintainable and liable to be dismissed. The accused is entitled for acquittal. Accordingly point is answered.

27. In the result, the accused is found not guilty for the

offence punishable under Section 138 of Negotiable Instruments

14

Act and he is acquitted under Section 255(1) of Code of Criminal

Procedure for the said offence.

Typed to my dictation on my personal computer by my personal assistant, corrected and pronounced by me in open court, this the 3rd day of August, 2023.  Sd/­ ZIAUDDIN SHAIK

I Addl.Judl.Magistrate of I Class,

Machilipatnam FAC: II Addl.Judl.Magistrate of I Class, Machilipatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: PW.1: K.Srinivas 

DEFENCE: None.

DOCUMENTS MARKED FOR PROSECUTION

Ex.P.1: 10.11.2014 : Original Cheque bearing no.028579 of Axis bank ltd., Jagannadhapuram, Machilipatnam issued by the accused in favour of the complainant. Ex.P.2: 08.12.2014 : Office copy of registered notice got issued by the complainant’s advocate to the accused Ex P.3: 12.11.2014: Original cheque returned memo Ex P.4: 15.08.2013: Promissory note.

DOCUMENTS MARKED FOR DEFENCE

Nil.

MATERIAL OBJECTS

 ­Ni –

Sd/­ ZIAUDDIN SHAIK

 IJFCM, MTM

FAC: IIJFCM, MTM .

1 I.A.J.F.C.M.Court, CC.No.385/2019 Machilipatnam. dt.16.04.2024

IN THE COURT OF I ADDL. JUDL. FIRST CLASS MAGISTRATE-CUM-I.ADDL.

CIVIL JUDGE(JUNIOR DIVISION), MACHILIPATNAM .

Present:Ziauddin Shaik,

I Addl. Judl. First Class Magistrate,

Machilipatnam

Tuesday, this the 16th day of April, 2024.

C.C.No. 385/2019

Between:

The Sub Inspector of Police,Robertsonpet Police Station, Krishna District. …Complainant.

And

Shanigarapu Babu, S/o.Yellaiah, 26 years, D.No.2-42/1, Akaram village, Dubbak Mandal of Siddipeta District.

…Accused

This case is presented on 12.04.2023 before me for final hearing in the presence of Assistant Public Prosecutor for the complainant and of Sri Ch.Rajesh Kumar, learned counsel for accused and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The accused is arrayed before this court for the offence punishable U/s.188 and 171(H) of Indian Penal Code, in Cr.No.68/2019 of

Robertsonpet Police Station.

2) The brief facts of the prosecution which are as follows:

LW.1 namely N.Lakshmi Narayana(herein after called as complainant) was appointed as Flying squad of team -4 vide order RC.A.95/2019 dated 16.03.2019 in connection with General elections and LWs.2 to 5 namely

K.Paul, K.Srinivas, M.Krishna and Abdul Kalam are his team members. On 04.04.2019 the complainant was making vehicle checking along with his 2 I.A.J.F.C.M.Court, CC.No.385/2019 Machilipatnam. dt.16.04.2024 team at three pillar center, at that time he found the accused who is driver of

Mahindra Bolero van bearing No.TS09UC4162 was coming from Hyderabad side with big speakers, mikes and large LED TV tying with flexies of

Telugudesam party for canvasing and the accused has no permission and violated model code of conduct and the same was witnessed by L.Ws. 2 to 5 and then he presented the report, basing on which a case in Cr.No.68/2019 for the offences punishable under section 188 and 171(H) of IPC was registered and investigated into it. Later, the Investigation Officer visited the scene of offence and examined the witnesses and prepared rough sketch and recorded the statements of witnesses and seized the Mahindra Bolero vehicle. Later, he served notice under section 41-A Cr.P.C to the accused and after completion of investigation he filed charge sheet in this case.

3)This case is taken cognizance for the offences punishable under

Sections U/s.188 and 171(H) of IPC by the court of II.Addl.Judical

Magistrate, Machilipatnam. On appearance of accused, copies of case

document were furnished as required Under Section 207 of Cr.P.C and he was examined U/sec.251 of Cr.P.C and the accusation for the offences punishable under Sec.188 and 171(H) of IPC have been read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. Later this case was transferred from the II Addl Judicial Magistrate of

First Class, Machilipatnam to this court as per the orders of Honourable

Prl.District Court, Krishna, Machilipatnam vide in Dis.No.7524 dated 07.11.2019.

3 I.A.J.F.C.M.Court, CC.No.385/2019 Machilipatnam. dt.16.04.2024

4)During pendency of trial LW1/ Defacto Complainant died and learned

APP filed death certificate as such, his evidence was closed on 19.03.2024.

The evidence of LWs.3 and 4 were given up by the learned APP and evidence of L.Ws.6 and 7 was closed as they died. On behalf of prosecution,

PWs.1 to 3 were examined and Exs.P1 to P4 and MO.1 were marked.

5)After completion of prosecution evidence, the matter posted for S.313

Cr.P.C. examination, where all the incriminating material against him is read over and explained in Telugu and he did not offer any explanation for the incriminating material and he denied the incriminating material and reported no defence evidence.

6)The point that falls for determination is.

Whether the prosecution has proved the guilt of Accused for the offences punishable U/s.188 and 171(H) of IPC, beyond all reasonable doubts?

7)Heard both the sides.

8) POINT:

a)Now the prosecution has to prove and establish that, that

LW.1/N.Lakshmi Narayana was appointed as Flying Squad on 04.04.2019, he visited for checking vehicles and at that time he found accused who drove

Mahindra Bolero with big speakers, mikes and large LED TV tying flexies of

Telugudesam party for canvasing without any permission.

4 I.A.J.F.C.M.Court, CC.No.385/2019 Machilipatnam. dt.16.04.2024

b) The case of the accused is that he did not commit any offence and a false case was foisted against him due to political pressure and he was falsely implicated in this case. It is settled law that, the prosecution has to prove the guilt of the accused beyond all reasonable doubt, if any doubt exists in the mind of the Court the benefit of the doubt should be extended to the accused.

9) To discharge the burden, the prosecution examined PWs.1 to 3 and relied on Exs.P1 to P4. Admittedly, the defacto complainant is no more and during the trial, police filed a memo along with death certificate and the same is recorded as such his evidence was closed on 19.03.2024.

10)PW.1, who is said to be one of the team member and Head Constable of Machilipatnam Police Station, he deposed that on 04.04.2019 at mid night at about 12.30 A.M., while they were checking vehicles at 3 pillar center,

Machilipatnam, they found that the accused drove the vehicle bearing registration NO.TS 09 UC 4162 with loud speakers, flexies of TDP party and

LED screens, and when they asked for permission, he showed permission letter which was given for 3 wheeler, but not for 4 wheeler and the accused has no permission to arrange LED TV to the said vehicle and then they presented a report against the accused.

5 I.A.J.F.C.M.Court, CC.No.385/2019 Machilipatnam. dt.16.04.2024

11) PW.2 who is said to be a Videographer, he deposed that he was called by office of the RDO, Machilipatnam to take videos on 04.04.2019 during elections, the complainant received an information, basing on which they proceeded to three pillar center at Vijayawada road of Machilipatnam.

Where they noticed that the accused drove the Bolero vehicle which contains LED TVs and sound boxes and he was proceeding from

Vijayawada to Machilipatnam and the complainant intercepted his vehicle and asked permission, then he showed permission which was granted to three wheeler, but not for four wheeler and then he took the vehicle and accused to the R.Peta police station and presented a report. As per his instructions, he took videographs and submitted the same to office of RDO,

Machilipatnam.

12) P.W.3 is only an investigating officer. His evidence proves and establishes that he conducted investigation in this case and filed charge sheet.

13) The contention of the prosecution is that, LW.1 is flying squad member and PW.1 is the member of the said team. However the prosecution did not file any documentary proof before this court, to prove and establish that the complainant and Pws.1, 2 and LWs.3 and 4 are the team members of the flying squad. The prosecution relied on Exs.P1 to P4. On perusal of Ex

P1 which is a report given by deceased complainant, Ex P2 is First information Report, Ex P3 is only a mediators report and Ex P4 is rough 6 I.A.J.F.C.M.Court, CC.No.385/2019 Machilipatnam. dt.16.04.2024 sketch. Except Exs.P1 to P4, no document is filed by prosecution to prove and establish that, Lw1/N.Lakshmi Narayana is appointed as a in charge of

Flying Squad and Pws 1, 2 and Lws.3 and 4 are the members of it. In the absence of any orders, it is held that the prosecution failed to prove and establish that a flying squad was formed where the complainant was appointed as flying squad and the remaining Pws.1, 2 and Lws.3 and 4 are its members.

14) Admittedly, PW.1 is working as a Head Constable, Machilipatnam

Police Station. It shows that, he is a police official and his evidence is interested one. As such since PW.1 is a police official, his evidence cannot be believable. More over there is no independent eye witness to support the allegations of the prosecution and to support the evidence of Prosecution.

However, PW.2 deposed that, he took video of the entire incident. But on perusal of the record, no positive evidence was put forth by the prosecution to prove the same and video is filed before the court. In the absence of any video, evidence of Pw2 is also not believable. Pw3 is only an investigation

Officer, his evidence shows that, upon receiving Ex.P1 report, he registered

Ex.P2 first information report, seized the crime vehicle under Ex.P.3 mediators report and prepared Ex.P4 rough sketch.

15) On consideration of the entire oral and documentary evidence of the prosecution there is no iota of evidence before the court to prove the guilt of the accused for the said offences. Further, it is held that the prosecution miserably failed to prove and establish that the accused drove the vehicle 7 I.A.J.F.C.M.Court, CC.No.385/2019 Machilipatnam. dt.16.04.2024 without any permission issued by returning officer at the scene of offence on the date of alleged offence. Upon considering the entire evidence, it is held that the prosecution miserably failed to bring home to guilt of the accused for the offences U/S 188 and 171(H) of IPC.

16)The evidence produced by the prosecution is insufficient to hold that accused person has committed the offences as alleged in the charge sheet.

Accordingly, the point is answered in negative. In view of the findings on point, this Court is of the considered view that prosecution has failed to establish the guilt of the accused person for the offences alleged against him beyond all reasonable doubt. Hence, accused is entitled for acquittal.

17) In the result, the accused is found not guilty for the offences

punishable U/S.188 and 171(H) IPC, and accordingly, he is acquitted

for the same U/Sec.255(1) Cr.P.C. The bail bonds of accused shall

stand cancelled after appeal time is over as per section 437-A of Cr.P.C.

Mo.1 which was given to interim custody and its order holds good after

appeal period is over.

Typed by personal assistant on dictation in laptop, corrected and

pronounced by me in the open court, on this the 16th day of April, 2024.

Sd/-Ziauddin Shaik,

I Addl. Judl. I Class Magistrate, Machilipatnam.

8 I.A.J.F.C.M.Court, CC.No.385/2019 Machilipatnam. dt.16.04.2024

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Prosecution: Defence

PW.1: K.Paul -None –

PW.2: Abdul Kalam

PW.3: Ch.Kanaka Durga Prasad.

EXHIBITS MARKED

For Prosecution:

Ex.P.1: Report, dt.04.04.2022.

Ex.P.2: First Information Report,04.04.2019

Ex.P.3: Mediators report, dt.04.04.2019

Ex.P.4: Rough sketch, dt.0.04.04.2019.

For Defence:

Nil.

MATERIAL OBJECTS

M.O.1: Mahindra Bolero van bearing No.TS 09 4163.

Sd/-Ziauddin Shaik

I Addl. Judl. I Class Magistrate, Machilipatnam.

//True copy//

I.A.J.F.C.M.,

Machilipatnam.

9 I.A.J.F.C.M.Court, CC.No.385/2019 Machilipatnam. dt.16.04.2024

IN THE COURT OF THE 1 st ADDITIONAL CIVIL JUDGE (JUNIOR

DIVISION): MACHILIPATNAM.

Present: Ziauddin Shaik,

I-Addl. Civil Judge (Junior Division) ,

Machilipatnam.

Monday, this the 1 st day of April, 2024.

OS.No.37/2022

Between

KatikalaHemanthaSubbaRao, S/o.Ramalakshmaiah, Hindu, aged 48 years, business, R/o.Pothepalli, Bandar Mandal, Krishna

District. …..Plaintiff.

And

Kowthavarapu Gnaneswramma, W/o.Mallikharjuna Rao, Hindu, aged about 60 years, properties, R/o.D.No.17-735-6, Metla Jogannadha Rao colony,

Pedana, Krishna District. ....Defendant.

This suit is presented on 25.03.2024 for final hearing before me in the presence of Sri Suresh Babu Perni, advocate for plaintiff and Sri J.M.Prasad, advocate for defendant and upon perusing the material on record and the matter having stood over for consideration till this day, this Court has delivered the following:

J U D G M E N T

1. This is a suit filed by Plaintiff against defendant for recovery of

Rs.8,07,667/- with subsequent interest and costs, basing on a promissory note.

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

The Defendant borrowed an amount of Rs.5,00,000/- (Rupees five lakhs only) on 24.06.2019 from the Plaintiff for the purpose of her family expenses, for discharging sundry debts and executed a demand promissory note on the same day, agreeing to repay the said amount with interest at 24% per annum. Thereafter, the plaintiff demanded the 2 I Addl.Civil Judge (Junior Division), OS No.37/2022 Machilipatnam. Dt.01.04.2024.

defendant to repay the amount but the defendant did not repay the said debt and postponing the same on some pretext to other in spite issuing legal notice. Hence this suit.

3.Defendant filed her written statement by denying the material averments made in the plaint and contended that, the promissory note is rank forgery and the plaintiff has no capacity to lend such huge amount and on different dates the plaintiff got issued legal notices in another name, so she could not give reply to the legal notice.

There were disputes between one Madivada Harisankar and the defendant family and the son of defendant used to take cash of Rs.400/- and 500/- from the above said Hari sankar and no pronotes were executed by her son and prays to dismiss the suit.

4.Basing on the above pleadings and the material available on record, following issues were settled for trial by this court:

1. Whether the suit promissory note dt.24.06.2019 is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for recovery of the suit amount from the defendant as prayed for?

3. To what relief?

5.On behalf of the plaintiff P.Ws.1 and 2 were examined and got exhibited Exs.A.1 to A.3. On behalf of the defendant, she herself is examined as D.W.1, no document was exhibited.

6.Heard both sides.

3 I Addl.Civil Judge (Junior Division), OS No.37/2022 Machilipatnam. Dt.01.04.2024.

7. In order to avoid repetitions and conflict of opinions, this court feels to answer issues 1 and 2 joint together.

In Re : Issues 1 and 2:

1. Whether the suit promissory note dt.24.06.2019 is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for recovery of the suit amount from the defendant as prayed for?

8. Since this suit has been filed by the plaintiff against the defendant, the burden is on the plaintiff, he has to prove and establish that the defendant borrowed an amount of Rs.5,00,000/- on 24.06.2019 and executed Ex.A.1 suit promissory note in his favour and thereafter he failed to discharge the debt in spite issuance of Ex.A.2 legal notice to her.

9. To discharge his burden the plaintiff examined himself as P.W.1, he field his chief examination, where he had reiterated the averments of the plaint. The attestor of Ex.A.1 is examined as P.W.2 and he filed his chief examination, where he deposed that the defendant borrowed an amount of Rs.5,00,000/- from the plaintiff on 24.06.2019 for the purpose of family expenses and executed promissory note in his favour on the same day and the agreed rate of interest is 24% per annum and he put his signature as 1st attestor in Ex.A.1 suit promissory note. P.Ws.1 and 2 were cross examined broadly but nothing material was elicited from their mouth.

4 I Addl.Civil Judge (Junior Division), OS No.37/2022 Machilipatnam. Dt.01.04.2024.

10. Further on perusal of documents relied by the plaintiff i.e., Exs.A.1 to A.3, Ex.A.1 shows that the defendant borrowed an amount of

Rs.5,00,000/- from the plaintiff on 24.06.2019 and P.W.2 is one of the attestor of it and further it discloses that the defendant borrowed the said amount for the purpose of her family expenses and P.W.2 and one

Ch.Gangadhar Rao are the attestors of suit promissory note and one

P.Neelakotaiah, is scribe of suit promissory note. As can be seen from

Ex.A.2 which is a legal notice, it discloses that the plaintiff had sent the legal notice to the defendant on 08.09.2021 through his counsel by demanding to discharge the debt due under Ex.A.1 suit promissory note.

Ex.A.3 which is postal acknowledgement, it discloses that the defendant received Ex.A.2 legal notice.

11. On consideration of oral and documentary evidence of the plaintiff i.e., P.Ws. 1 and 2 and Exs.A.1 to A.3, it is held that the plaintiff proved and established that the defendant borrowed an amount of

Rs.5,00,000/- on 24.06.2019 from the plaintiff and executed Ex.A.1 suit promissory note on the same day in favour of the plaintiff and P.W.2 is one of the attestor of Ex.A.1 promissory note, later the plaintiff got issued a legal notice under Ex.A.2 to the defendant by demanding to discharge the debt and the same was received by the defendant under

Ex.A.3, but did not discharge the debt. Hence, it is held that the plaintiff proved and established his case and discharged his burden and now the onus shifts on the defendant to prove and establish her case.

5 I Addl.Civil Judge (Junior Division), OS No.37/2022 Machilipatnam. Dt.01.04.2024.

12. The contention of the defendant is that she never executed any promissory note and no consideration was passed under it and the defendant has no financial capacity to borrow such huge amount. There are disputes between one Harisankar and their family as such, Ex.A.1 suit promissory note was created by forgoing her signature and in order to get wrongful gain from her, the above suit has been filed.

13. To prove and establish his case the defendant examined herself as D.W.1 and filed her examination in chief which is replica of Written statement of the defendant, where she had reiterated the averments of the Written statement. The main contention of the defendant is that, the plaintiff forged her signature and filed the present suit. On perusal of record and the evidence of the defendant, the defendant did not take any steps to prove her plea of forgery by way of filing an application to send it to the handwriting expert to prove her plea of forgery. Further the reasons best known to the defendant for non filing the above said petition. Moreover, the contention of the defendant is that, due to disputes between one Harisankar and their family, Ex.A.1 suit promissory note was created by forging her signature. But the defendant has not taken any steps to prove the said like summoning him to examine him before the court.

14. Further P.Ws.1 and 2 were cross examined broadly, but did not admit the case of the defendant. Moreover, what are the compelled reasons to P.Ws.1 and 2 to depose falsely against the defendant by forging her signatures and the defendant failed to explain properly the 6 I Addl.Civil Judge (Junior Division), OS No.37/2022 Machilipatnam. Dt.01.04.2024.

reasons for giving evidence by P.Ws. 1 and 2 against her. Moreover, the standard of proof in civil suits is preponderance of probabilities, the case of the plaintiff is more probable than the case of the defendant. In the said circumstances it is held that the plaintiff proved and established his version and the defendant failed to discharge his onus, as such it is held that Ex.A.1 suit promissory note is true, valid and binding on the defendant and the consideration was passed under it and the plaintiff is entitled for the recovery of suit amount from the defendant as prayed for. Accordingly issues 1 and 2 are answered in favour of the plaintiff and against the defendant.

I S S U E No.3

To What relief?

15. In the result, the suit is decreed with costs in favour

of the Plaintiff and against the Defendant, directing the

defendant, do pay to the plaintiff the suit amount of

Rs.8,07,667/- (Rupees eight lakhs seven thousand six hundred

and sixty seven only) together with subsequent interest at 6%

p.a., from the date of suit till the date of realization on the

principal amount of Rs.5,00,000/-(Rupees five lakhs only).

Dictated to Stenographer (Gr.III), transcribed by her, corrected

and pronounced by me in the open court, on this 1st day of April, 2024.

I.Addl. Civil Judge (Junior Division),

Machilipatnam.

7 I Addl.Civil Judge (Junior Division), OS No.37/2022 Machilipatnam. Dt.01.04.2024.

Appendix of Evidence

Witness examined

For plaintiff :

PW1 :K.H.Subba Rao

P.W.2: D.Venkateswara Rao

For defendant :

D.W.1: K.Gnaneswramma

Documents marked

For plaintiff:

Ex.A.1: 24.06.2019: Original Promissory note.

Ex.A.2: 08.09.2021: Office of legal notice.

Ex.A.3: – : Acknowledgement.

For defendant: Nil

I.Addl. Civil Judge (Junior Division), Machilipatnam.