CRLP/1124/2009 of Vasupappi Danayya, Vs The State of A.P., on 31 December 2010

ORDER:

This criminal petition is filed under Section 482 Cr.P.C for quashing the proceedings in Crime No.45 of2009 of Bheemunipatnam Police Station, Visakhapatnam District.

According to the petitioner, he is the accused in Crime No.45 of 2009 of Bheemunipatnam Police Station forthe alleged offence under Sections 447, 427, 353, 506 read with 34 IPC. According to him, himself, his wife and his family members are residents of Kapuluppada village, K. Nagarapalem Panchayat, Bheemunipatnam Mandal,Visakhapatnam district and they are the absolute owners of the land of an extent Ac.0.93 cents out of Ac.1.04cents covered by Survey No.294/2, Patta No.421 situated at Kapuluppada village and the said land is anancestral property of the petitioner’s father which was acquired by his grand father. According to him an extent ofAc.0.11 cents out of Ac.1.04 cents acquired by the Government for the purpose of road widening and theremaining extent is only Ac.0.95 cents of the above said land is in peaceful possession and enjoyment of thepetitioner and his family members. The 2[nd] respondent and his henchman are putting troubles to the petitioner forillegally to occupy the said land and hence the petitioner has filed a suit in O.S.No.382 of 2007 on the file ofJunior Civil Judge, Bheemunipatnam and obtained an injunction orders in I.A.No.906 of 2007 against the 2[nd]respondent and the 2[nd] respondent has filed two suits in O.S.Nos.382 of 2008 and 383 of 2008 before the IAdditional Senior Civil Judge, Visakhapatnam for permanent injunction in respect of the suit schedule propertywith a malafide intention to grab the suit schedule property of the petitioner.

According to the petitioner, he was in possession and enjoyment of the property after demise of his father andhis name was mutated in the revenue records and the petitioner’s name was also incorporated in the revenuerecords and the concerned Mandal Revenue Officer, Bheemunipatnam issued No.3 Adangal dated 6.2.2007 in thename of the petitioner. The 2[nd] respondent has also filed an IA No.299 of 2008 in O.S.No.385 of 2008 andI.A.No.300 of 2008 in O.S.No.388 of 2008 on the file of the I Additional Senior Civil Judge Court, Visakhapatnamagainst the petitioner in respect of the suit schedule property and the said I.A.No.299 of 2008 in O.S.No.385 of2008 and I.A.No.300 of 2008 in O.S.No.388 of 2008 were dismissed by the said court. Suppressing all these facts,the 2[nd] respondent lodged a complaint before the Bheemunipatnam Police Station and converted the civil disputeinto criminal case which is not permissible under the Act. Hence the petitioner filed this petition to quash theproceedings in Crime No.45 of 2009.

The 2[nd] respondent has filed a counter denying the allegations made in the petition and according to him the

petitioner and his sons Rama Rao, Danesu, Narasinga Rao along with Vasupalli Yellamma, wife of Ramulu, herson Vasupalli Durga Rao together sold Ac.1.04 cents in the year 1981 in favour of Datla Chiranjeevi SubrahmanyaRaju and others and the said purchasers again sold the said property in favour of Paladugu Ramesh Chandra andtwo others on 6.3.1992. Originally the property in dispute is situated in S.No.292/4 in an extent of Ac.1.04 centsand out of which Ac.0.11 cents was acquired for widening the road, which is leading from Visakhapatnam toBheemunipatnam beach. The remaining extent is only Ac.0.93 cents. On 22.4.1994 Smt Dandu Jayasree, wife ofRamakrishna Raju and Poosapati Jayaprada together purchased an extent of Ac.0.35 cents under registered saledeed. Similarly Kakkera Krishna Sanjeevi and his brother together purchased an extent of Ac.0.35 cents of landon the same day. The owners of both the sale deeds jointly constructed a compound wall all around the site anderected a gate. There is a shed constructed and a bore well dug in the compound and a watchman was put in. When the land was acquired for road widening the address was given by the land Acquisition Officer as VasupalliDurgayya @ Durgappa, Madhuranagar, Visakhapatnam and it is dated 7.12.1991 and by the date of acquisitionthe property was already sold. Smt Dandu Jayasree, Kakkera Krishna Sanjeevi and his brother are presently inState and they are holding the status of NRI’s. The petitioner Vasupali Danayya field a suit in O.S.No.382 of 2007on the file of Junior Civil Judge court, Bhjeemunipatnam against Pinnamaraju Srinivas, Kakkera Krishna Sanjeevi,Smt Dandu Jayamma and Smt Poosapati Jayaprada by giving insufficient and wrong address and after filing ofthe said suit obtained exparte order alleging that the defendants are strangers. The purchasers Krishna Sanjeeviand his brother, Smt Jayaprada and Jayasree are not aware of the suit filed against them and therefore, on theinformation furnished by their watchman, the power of attorney of Smt Jayasree Dr. P.S.N. Raju contacted Dr. K.Venkata Rao who is residing at Vijayawada and after consulting their advocate, they filed two separate suits inO.S.No.385 of 2008 and 388 of 2008 on the file of I Additional Senior Civil Judge’s court, Visakhapatnam forinjunction.

The petitioners and others even though have sold the property they are trying to interfere with the possessionof the purchasers and trying to change the physical features by demolishing the compound wall and the said 2[nd]respondent was compelled to file the complaint. Therefore, the allegations made in the complaint clearlyestablishes that they have committed the offence on the alleged date and they do not relate to the civil dispute andas such the FIR is not liable to be quashed and the petition is liable to be dismissed.

Now the point that arises for consideration is whether the petitioner is entitled for quashing the FIR in CrimeNo.45 of 2009 of Bheemunipatnam Police Station as prayed for.

The learned counsel for the petitioner has pleaded that the dispute is with regard to the land inS.No.294/2002 for an extent of Ac.0.93 cents in Kapuluppada village is pending before the Civil Courts and thecivil cases were filed by the petitioner himself and obtained interim injunction against the 2[nd] respondent andothers and the same is subsisting and the suit filed by the 2[nd] respondent and others against the same propertyand the petitions filed for granting of interim injunction was dismissed by the I Additional Senior Civil Judge,Visakhapatnam and having failed in their attempts in obtaining interim injunction against the petitioner, they havelodged a false complaint by converting the civil dispute into the criminal case.

The learned counsel for the petitioner, on the other hand, has pleaded that the civil disputes are nothing todo with the criminal complaint lodged by them and according to them, the disputed property was purchased bySmt Dandu Jayasree, Kakkera Krishna Sanjeevi and his brother under registered sale deed dated 22.4.1994 andthey are in possession and enjoyment of the said property and the petitioner under the guise of interim injunctionobtained by him tried to trespass into the suit schedule property on 12.2.2009 at 9.00 a.m and threatened thewatchman and demolished the shed abutting the compound wall and when the 2[nd] respondent on the other handquestioned him, he threatened with dire consequences. Therefore, for the offence committed by the petitioner andothers on 12.2.2009 is to be investigated by the police and the petitioner will have an opportunity to establish hisinnocence before the police during the course of investigation and therefore, there is no need to quash theproceedings at this stage.

From the above respective contentions of both the petitioners and the respondent No.2, it is evident that the

disputed land is in S.No.292/2 to an extent of Ac.0.93 cents and according to the petitioner he is in possession andenjoyment of the suit schedule property and whereas the 2[nd] respondent has pleaded that the said property waspurchased by Smt Dandu Jayasree, Kakkera Krishna Sanjeevi and others by a registered sale deed and they arein possession of the said property and the petitioner tried to trespass into the said property with an intention tochange the physical features of the said property. Admittedly, the petitioner has filed the suit in O.S.No.382 of2007 on the file of the Junior Civil Judge, Bheemunipatnam and obtained interim injunction order in I.A.No.906 of2007 in the said suit. Subsequently, the 2[nd] respondent and others have filed O.S.Nos.385 of 2008 and 388 of 2008 against the petitioner and others and their attempts to obtained injunction orders in I.A.Nos.299 of 2008 and300 of 2008 were failed and the said petitions were dismissed after due enquiry by the said court, holding that theyare not in possession of the said property. The correctness of the said findings given by the civil court cannot bequestioned in Criminal proceedings. Therefore, as per the above said findings given by the civil court, thepetitioner is in possession of the said property. Even as per the averments made in IA No.299 of 2008 inO.S.No.385 of 2008 filed by the 2[nd] respondent on behalf of Smt Dandu Jayasree, Kakkera Krishna Sanjeevi, it isalleged that taking advantage of the temporary absence of the plaintiffs at the plaint schedule property, therespondents therein who is the petitioner herein is trying to encroach into the suit schedule property by using forceand damaging the compound wall in the month of February, 2008 and the watchman engaged by the plaintiffresisted the acts and stated that the property belongs to the plaintiff and informed the same by phone to theplaintiffs immediately to the husband of the 1[st] plaintiff and in turn they gave a police complaint against thedefendants but the defendants managed the police and again on 8.3.2008, the defendant along with his henchmancame to the suit schedule property and tried to encroach the suit schedule property. So the plaintiff has filed thesuit for injunction along with this petitioner. Therefore, according to the 2[nd] respondent, the petitioner has made anattempt in the month of February, 2008 and again on 8.3.2008 to enter into the suit schedule property and causedamage to the compound wall and therefore, he has filed the suit on behalf of the plaintiff.

Conclusion

Even in the present complaint, it is alleged that the petitioner had tried to encroach into the said property on12.2.2009 along with his henchman and on receipt of the information from the watchman, 2[nd] respondent haslodged the complaint and by that time he came to the spot, the shed abutting the compound wall was demolished. Therefore, from the above, it is evident that there is a dispute between the petitioner and the 2[nd] respondent since2007 and according to the 2[nd] respondent earlier also the petitioner has made an attempt to encroach into the suitschedule property and demolished the compound wall and he has filed a suit for injunction but he could notsucceed in getting the injunction order. As already observed above, the I Additional Senor Civil Judge hadobserved while dismissing of the said petitions filed by the 2[nd] respondent for injunction holding that the petitionerstherein i.e., Smt Dandu Jayasree, Kakkera Krishna Sanjeevi who are being represented by 2[nd] respondent hereinare not in possession of the said property as on the date of filing of the said suit. Therefore, the 2[nd] respondent wasnot in possession of the suit schedule property since the year 2008 itself, the question of petitioner trying totrespass into the said land does not arise. Therefore, it is evident that the 2[nd] respondent is trying to convert thecivil dispute pending between the 2[nd] respondent and others into a criminal case only to harass the petitionerwhich is not permissible under law. Therefore, in view of the above facts and circumstances of the case, thepetitioner is entitled for quashing of the proceedings in Crime No.45 of 2009 of Bheemunipatnam Police Station,Visakhapatnam District.

In the result, the criminal petition is allowed and proceedings in Crime No.45 of 2007 of BheemunipatnamPolice Station, Visakhapatnam District are hereby quashed.

December 31[st] , 2010GK.

THE HON'BLE SRI JUSTICE P. DURGA PRASAD

______________________

P. DURGA PRASAD,J

Gk.

CRIMINAL PETITION No.1124 of 2009

Date:24.12.2010