1 Fair Judgment in A.S.154/2017,
dated 11.04.2023
IN THE COURT OF JUDGE, FAMILY COURT CUM IX ADDITIONAL DISTRICT AND
SESSIONS JUDGE, EAST GODAVARI AT RAJAMAHENDRAVARAM.
PRESENT: Sri Ch.Raja Gopalarao, Judge, Family Court cum IX Addl. District and Sessions Court, Rajamahendravaram
Tuesday, the 11th day of April, 2023.
:: A.S.No.154 of 2017 ::
Between:-
Maddukuri Venkata Ram Mohanarao, S/o late Satyam, Hindu, 56 years,
Torredu. Rajahmundry JCJC. .. Appellant/Defendant.
And
Polina Chandrika, D/o Polina Prakasarao, Hindu, 31 years, Katavaram, rep.by GPA holder Polina Prakasarao, S/o Ramachandrarao, Hindu,
59 years, Katavaram. Rajahmundry JCJC. .. Respondent/Plaintiff.
On appeal against the Judgment and decree passed by the I
Addl. Senior Civil Judge, Rajamahendravaram,
dt.14.09.2017 in O.S.No.40/2011
:: CROSS APPEAL No.154 of 2017 ::
Between:-
Polina Chandrika, rep.by GPA holder Polina Prakasarao, S/o Ramachandrarao, Hindu, 59 years, Katavaram. Rajamahendravaram JCJC. .. Cross Appellant.
And
Maddukuri Venkata Ram Mohanarao, S/o late Satyam, Hindu, 50 years,
Torredu. Rajamahendravaram JCJC .. Respondent.
O.S.No.40 of 2011.
Between :
Polina Chandrika, rep.by
GPA holder Polina Prakasarao .. Plaintiff.
And
Maddukuri Venkata Ram Mohanarao .. Defendant.
This appeal and cross appeal are coming on 09-03-2023 for final hearing before me in the presence of Sri M.Siva Subbarao,, Advocate for appellant and Sri Ch.Prabhakar Rao, Advocate for respondent and the matter having stood over for consideration till this day, this Court delivered the following:
2 Fair Judgment in A.S.154/2017,
dated 11.04.2023
:: J U D G M E N T ::
1. This is appeal and cross appeal against the decree and judgment in O.S.40/2011, dated 14.09.2017 on the file of I Addl. Senior Civil Judge,
Rajamahendravaram.
2.Shorn of details, the plaint allegations are:- that original owner of the plaint schedule property was defendant's father. The plaintiff maternal grandmother late Dandamudi
Rattamma filed O.S.174/1984 on the file of Senior Civil Judge's Court,
Rajamahendravaram for recovery of amount against the defendant's father late Maddukuri Satyam and the said suit was decreed in favour of Rattamma.
Under colour of decree, she filed E.P.123/1990 for execution of decree.
During the execution proceedings, schedule property was brought to sale as
Item No.2 of the E.P. schedule, the plaintiff's grandmother Rattamma participated in the auction, the sale was made out in her favour, as such, he became highest bidder in the auction conducted on 09.07.1991 and the sale was confirmed on 23.01.1992. Pursuant whereto sale certificate was issued by the competent Court in favour of late Rattamma, as such, she became absolute owner of the plaint schedule property.
3.It is further pleaded, that the D.Rattamma filed E.A.990/1992 for delivery of the possession under colour of sale certificate issued by the Court in respect of the plaint schedule property and the delivery was effected on 30.09.1992 and the same was recorded by the Court on 19.10.1992. Thus, late Rattamma had obtained vacant possession of the plaint schedule property. She was died subsequently. During her lifetime, she executed registered Will dated 11.07.1999 making various bequests.
4.As pleaded in the plaint, that as per bequest made by the testatrix the plaint schedule property was devolved upon the plaintiff being her granddaughter and also legatee under the Will. The plaintiff came into possession of the plaint schedule property as per Will immediately after 3 Fair Judgment in A.S.154/2017,
dated 11.04.2023
death of testatrix. Since then the plaintiff has been peaceful possession and enjoyment of the plaint schedule property as an owner thereof.
5.It has been specifically averred, that the defendant, who is proclaiming that he will dispossess the plaintiff. The plaintiff raised sugarcane crop on the schedule property. If the acts of the defendant are fructified, valuable rights of the plaintiff will be prejudiced. The plaintiff being lady, she is entitled to protect her lawful possession unless permanent injunction granted in her favour. The plaintiff obtained interim injunction. The defendant interfered with her possession and resumed possession of the plaint schedule property unlawfully. The defendant is in unlawful possession of the plaint schedule property and he is liable to be evicted there from.
Hence, the suit for declaration of possession and other reliefs.
6.The defendant filed separate written statement denying the allegations set out in the plaint and pleaded inter alia, that late D.Rattamma do not take any possession over the schedule property, she never enjoyed the same during her lifetime. The defendant and his predecessors are in possession and enjoyment of the property, even now the defendant is in possession of the property and owner to the knowledge of one and all including the Rattamma or her successors. Any record showing that the property was delivered to D.Rattamma in the result of fraudulent representation to the Court. The alleged Will dated 11.07.1999 bequesting the plaint schedule property in favour of the plaintiff is false. The Will is concocted, fabricated and forged document. The plaintiff is not come into possession of the property as much as Rattamma herself was not in possession of the property.
7.It is further pleaded, that it is reliably learnt that the dispute in
O.S.174/1984 for recovery of money was settled amicably before for an
amount of Rs.30,000/- in full and final settlement of the claim. The said decree consequently over and all proceedings for recovery of the debt according to the said decree should cancelled. Therefore, the alleged 4 Fair Judgment in A.S.154/2017,
dated 11.04.2023
execution proceedings and auction purchase of the schedule property by
D.Rattamma is incorrect.
8.As asseverated in the written statement, that the defendant and his predecessors in open, continuous and uninterrupted possession of the schedule property as its owners for the last more than 12 years before filing of the suit to the knowledge of the plaintiff and her predecessors and adverse to their interest ownership or title claimed by the plaintiff is lost to her by law of prescription. Hence, the suit is not maintainable and liable to be dismissed with costs.
9.The defendant filed additional written statement and pleaded, that the plaintiff made a vain attempt to enter into the plaint schedule property under guise of pendency of this suit proceedings. Having failed to achieve such goal, the plaintiff is now falsely pleaded that the pendency of the suit, this defendant unlawfully resumed the possession of the said land, such allegations are false and absurd.
10.Basing on the above pleadings, the following issues were framed by the trial Court.
1.Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
2.Whether the defendant has perfected his title by law of prescription?
3.To what relief?
11.On trial taken place, on behalf of plaintiff PW1 to PW3 were examined and got marked Exs.A1 to A7 in support of her case. On the other hand, the defendant examined DW1 and DW2 and got marked Ex.B1.
12.The captioned appeal challenges the impugned decree and judgment dated 14.09.2017 passed by the learned I Addl. Senior Civil Judge,
Rajamahendravaram whereby and whereunder he decreed the suit.
5 Fair Judgment in A.S.154/2017,
dated 11.04.2023
13.Aggrieved by the findings recorded by the learned I Addl. Senior
Civil Judge, Rajamahendravaram, the defendant preferred this appeal as
appellant and put forth various grounds in the memorandum of appeal viz.,
i)that the decree and judgment of the lower court is contrary to law, weight of evidence and probabilities of the case. ii)That the lower court should have dismissed the suit instead of decreeing the suit. iii)That the lower court perversely jumped to conclusions by considering only one or two aspects of the matter, as projected by plaintiff without caring to examine and answer several submissions made on behalf of the defendant regarding different aspects of the matter. iv)That the lower court grossly erred in accepting that Ex.A5 Will was a duly executed Will of Rattamma.
v)That the lower court failed to note that there are several unexplained suspicious circumstances about truth and due execution of Ex.A5 Will by Rattamma and therefore, the Court below should have held that plaintiff had not succeeded to the estate of Rattamma. vi)That the lower court failed to see that there is absolutely no evidence except purported Court records to show transfer of marketable title in plaint schedule property to Rattamma. vii)That the Court below acted perversely in believing that plaint schedule property was delivered to Rattamma and on her death it was taken possession by plaintiff. viii)That the Court below failed to see that there is no evidence at all in respect of possession of the property with plaintiff or her alleged predecessor at any point of time much less within 12 years prior to filing of the suit. ix)That the Court below failed to note that in the teeth of vagueness and ambiguity, atleast about month or year in which plaintiff allegedly lost possession her plea cannot be accepted for granting the decree.
x)That the appeal may be allowed.
14.Be that as it may, records depict, that the Trial Court decreed the suit partly and recorded certain findings in favour of the plaintiff in
O.S.40/2011 and also negatived the mesne profits as such the plaintiff filed
his cross objections under Order 41 Rule 22 CPC. Those objections mentioned hereunder:
i)That the lower court went wrong in refusing to grant future profits in favour of the plaintiff. ii)That the reason given for not granting future profits, by the lower court is absurd and against principles of law. iii)That the lower court ought to have seen that the plaintiff is automatically entitled for future profits/mesne profits once there is a decree for possession in favour of the plaintiff. iv) That the cross appeal may be allowed.
6 Fair Judgment in A.S.154/2017,
dated 11.04.2023
15.It is expedient to refer the parties as they are originally arrayed in the plaint so as to avoid any confusion and for better understanding.
16.Heard arguments. The plaintiff filed written arguments before the trial Court on 04.08.2017, whereas the defendant filed written arguments
before the trial Court on 16.08.2017.
17.A brief preface of the factual backdrop has to be outlined being indispensable disparate pleadings and contrasting assertions have received my due consideration and framed the forensic points herein below:-
1)Whether the impugned decree and judgment dated 14.09.2017 in O.S.40/2011 of the Court below is sustainable either factually or legally? and
2)To what relief?
Power of Appellate Court:
18.It is trite law, that in order to record any finding of facts, the
Appellate Court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties.
19.Furthermore, it is also trite law, that the Appellate Court also has the jurisdiction to appreciate the evidence 'denovo' while hearing the First appeal and either affirm the finding of the Trial Court or reverse it.
20.If the Appellate Court affirm the finding it is called as 'finding of fact affirmed' whereas if the finding is reversed it is called as 'reversing finding'. These expressions are well known in the legal parlance.
21.His Lordship Justice Vivian Bose, a Judge of the Hon'ble High
Court of Nagapur in Rajeshwar Vishwanath Mamidwar and others Vs.
Dashrath Narayan Chilwelkar and others (AIR 1943 Nagapur 117, Para 43) observed as under:
"When any finding of fact is assailed in the First Appeal, the Appellant is entitled to pointed out that it is bad in law because it was recorded de-horse the pleadings or it was based on no evidence or it was based on misleading of material documentary evidence or it was recorded against any provisions of law and lastly the decision is one which no Judge acting judiciously could reasonably have reached".
7 Fair Judgment in A.S.154/2017,
dated 11.04.2023
22.From the above it is obvious, that an appeal is re-hearing, it is the duty of the Court in an appeal from a Judgment and Decree to make up its own mind not disregarding the Judgment appealed from and giving appeal weight to the Judgments where the credibility of the witnesses comes into question but with full liberty to draw its own inferences from the facts proved or admitted and to decide accordingly.
POINT NO.1:-
23.This suit filed by the plaintiff for recovery of possession in respect of the plaint schedule property, she has to succeed on the strength of her own case and it is not obligatory on the part of the defendant to plead and prove possible defect in the plaintiff ownership.
24.Having come forward with the suit for recovery of possession, it is bounden duty of the plaintiff to prove her case, it is not necessary to consider the title of the defendant. If the case of the defendant is not acceptable for one reason or other, even then the plaintiff must fail because she has to prove her exclusive ownership in other words, the plaintiff must succeed on the strength of her own case and that should be done by adducing satisfactory evidence to discharge her onus, which is upon her irrespect of the question whether the defendant has proved his case or not.
25.To prove that the late Rattamma was the owner of the plaint schedule property under Ex.A1 sale certificate vis-a-vis to discharge initial onus of proof, GPA holder of the plaintiff examined as PW1, who categorically deposed about filing of the suit by Rattamma in O.S.174/1984 on the file of
Senior Civil Judge's Court, Rajamahendravaram and also filing of
E.P.123/1990 for execution of decree, how Rattamma became highest bidder
in the auction proceedings conducted on 09.07.1991 and confirmation of sale, issuance of sale certificate under Ex.A1. He further deposed, that pursuant to Ex.A1, deceased Rattamma filed Ex.A3 execution petition for delivery and same was delivered in her favour under Ex.A2 Amine report. It 8 Fair Judgment in A.S.154/2017,
dated 11.04.2023
was his further say, that during lifetime of Rattamma, she executed Ex.A5 registered Will in favour of the plaintiff in a sound and disposing state of mind. Under colour of Ex.A5, the plaintiff became succeeded the estate of the testatrix recognizing the probative possession of the testatrix, the competent authority issued Ex.A6 pattadar passbook in her favour. He specifically swears, that the plaintiff is in possession and enjoyment of the plaint schedule property, subsequently, the defendant highhandedly inroads upon the plaint schedule property and took the possession of the same.
Thereupon the plaintiff converted the suit for injunction into for recovery of possession.
26.Next to abbreviate the statement of PW1 and documentary testimony of Exs.A1 to A3 and Ex.A7.
26.Reliance was sought to be placed by the plaintiff upon Ex.A2
Amine report and Ex.A7 certificate of suit register to prove factum of possession in favour of the Rattamma.
27.A perusal of Amine report under Ex.A2 it is clear as crystal, that the plaints schedule property was delivered in favour of Rattamma on 30.09.1992. The Court Amine delivered the schedule property in favour of auction purchaser pursuant to Ex.A1 sale certificate in the presence of four village elders. Village eggheads scribed their signatures underneath of Ex.A2
Amine report. The elders lucidly mentioned date and signatures thereon.
28.A superficial look at Ex.A1 sale certificate got issued by the learned Subordinate Judge, Rajahmundry in favour of the auction purchaser in E.P.123/1990 in O.S.174/1984 it is clear, that D.Rattamma had been declared as an auction purchaser, who participated in the auction, which was held on 09.07.1991 in respect of the plaint schedule property wherein Seal of the Court and signature of the Court succinctly reflected. The schedule property mentioned in Ex.A1 is akin to the plaint schedule property.
29.Reading the Ex.A1 in juxtaposition with Ex.A2 would overwhelmingly attest, that the Rattamma participated in the public auction, 9 Fair Judgment in A.S.154/2017,
dated 11.04.2023
the sale was knocked down in her favour, thereby she became highest bidder and the sale certificate was issued in her favour in respect of the plaint schedule property and subsequently delivery was effected.
30.Pursuant whereto or in further whereof the auction purchaser (Rattamma) filed Ex.A3 petition in E.A.990/1992 for delivery of possession under Order 21 Rule 95 CPC on 19.09.1992. Learned Subordinate Judge passed docket order that the delivery was effected and the same is recorded, E.P. is terminated. Ex.A2 Amine report coupled with Ex.A3 docket order clinch the issue any pale of doubt, that the delivery was effected and the same was recorded by the Court. Once delivery was made by the Court
Amine under Ex.A2 in favour of the auction purchaser it can be said by no stretch of imagination, that the auction purchaser is owner of the plaint schedule property from the date of delivery. Exs.A1 to A3 are crucial documents filed by the plaintiff to prove that the factum of delivery in favour of Rattamma. Since then she has been in peaceful possession and enjoyment of the same as an owner thereof.
31.On the factual score it appears that the delivery receipt under
Ex.A2 has been conclusively proved, actual delivery in favour of Rattamma.
The initial burden rested upon the plaintiff remains discharged, and the story of the plaintiff impressed with vivacity and truth. Therefore, the defendant has to disprove the contents mentioned in Exs.A1 to A3 by adducing best probable evidence.
32.The primary stand of the defendant is, that the Rattamma never in possession and enjoyment of the plaint schedule property consequently, the possession of the plaintiff appears to be farcical, delivery proceedings are fraudulent and misrepresentation to the Court, as such, its probative value almost Zero.
33.To demolish the probative impact of Exs.A1 to A3, the defendant himself examined as DW1 and got marked Ex.B1.
10 Fair Judgment in A.S.154/2017,
dated 11.04.2023
34.To crown it all, DW1 admits during the course of cross examination, that after death of his father, he came to know that the
Rattamma purchased the schedule property in Court auction. He preferred appeal before the Hon'ble High Court claiming that it was purchased in Court auction by her with low price. He does not possess any documentary proof evidencing that he is in possession of the schedule property by the date of the filing of the present suit. He candid enough to depose during the course of cross examination, that Ex.B1 proceedings relating to S.No.291/9 of
Torredu village of an extent of Ac.1-40 cents whereas the plaint schedule property herein an extent of Ac.1-00 cents in S.No.362/2 of Torredu Village.
35.From the above admitted evidence it is clear as a noonday, that the Ex.B1 is nothing to do with the plaint schedule property. The defendant has got knowledge about property purchased by the Rattamma.
36.Except ipsi dixit evidence of DW1, there has been no other evidence adduced in proof thereof. The evidence of DW1 is self contradictory not corroborated by any probative material. Since DW1 knows very well that the plaint schedule property was purchased by the Rattamma and highhandedly impeached upon the property of the plaintiff. Considering this circumstance, the plaintiff sought to alter the suit from permanent injunction to recovery of possession.
37.De-horse Ex.B1 there has been no other documentary evidence adduced or produced to dent the sterling quality of Exs.A1 to A3 documents.
These documents are issued by the competent Court. Therefore, the probative value of Exs.A1 to A3 indeed would be very high. No evidence much less any surrounding circumstance has been pointed out by the defendant to disprove Ex.A2 delivery receipt. There is not a shred of material placed by the defendant to crush the probative potential of Exs.A1 to A3.
Therefore, the inherent probability story propounded by the plaintiff that the
Rattamma was in possession of the plaint schedule property under Ex.A1 sale certificate and subsequently, delivery was made in her favour under 11 Fair Judgment in A.S.154/2017,
dated 11.04.2023
colour of Ex.A3, she obtained Ex.A6 pattadar passbook from the competent authority and was in possession and enjoyment of the same as an owner thereof can safely be accepted.
38.It has been taken specific plea by the defendant since beginning that the Exs.A1 to A3 were brought into existence by fraudulent representation to the Court. The defendant having been pleaded plea of fraud and misrepresentation under Sections 17 and 18 of the Indian
Contract Act. Therefore, heavy burden lies upon the defendant to prove his forensic plea by placing acceptable material as held by the Hon'ble Supreme
Court in Gayatri Devi Vs. Shashipal Singh AIR 2005 SC 2342 Para 16.
39.A “fraud” is an act of deliberate deception with design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage, vide 1) AIR 2005 Supreme Court
Page 3110 in State of Andhra Pradesh Vs.T.Suryachandra Rao Paras 8 and 9 (2) AIR 1941 Privy Council, page 93 in Narayana
Chettiyar Vs. Official Assignee, Rangoon.
40.It is worthwhile to note, that in cases of fraud, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong language in which they are couched, bold and general allegations cannot lead to an issue, not being a plea of fraud, material particulars such as when, how, who, in what manner and for what purpose, fraud practiced and who colluded with whom, in what manner, with what object must be averred.
41.It is settled law, that the law requires proof of a fact by adducing intrinsic oral and documentary evidence, assertions and 12 Fair Judgment in A.S.154/2017,
dated 11.04.2023
acclamations will not produce a strong case, proof positive is required either direct or circumstantial evidence.
42.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act of falsehood. It is a fraud in law if a party makes representation which he knows to be false.
42.Applying the above “ratio” to the present facts of the case now I shall evaluate and analyze the evidence of D.W.1 and D.W.2 how far and what extent the defendant discharged his initial onus of proof beyond reasonable doubt?
43.To discharge "onus probandi" upon the defendant, the defendant himself examined as DW1. He categorically deposed that the Exs.A1 to A3 obtained by Rattamma by playing fraud before the Court, therefore, its probative value rendered Zero. There is no evidence adduced by the defendant that the Exs.A1 to A3 having been obtained by Rattamma by playing fraud and misrepresentation.
44.To recapitulate the seminal facts it is noted that the controversy clustered around the three documents viz., sale certificate, Amine report, delivery petition under Exs.A1 to A3 and pattadar passbook under Ex.A6 which have been obtained by late Rattamma from the competent authority.
45.On cross examination, DW1 asseverated that he came to know that the Rattamma purchased plaint schedule property after death of his father. This infallible proof beyond cavil of doubt, that the DW1 having knowledge about purchase of the plaint schedule property by late
Rattamma. He knows ins and outs of the plaint schedule property on whose favour it was stands. He specifically swears, during the course of cross examination, that he does not possess any documentary proof in respect of the plaint schedule property. The admitted evidence emanating from the cross examination of DW1 clinch the issue any spec of doubt, that the defendant is nothing to do with the plaint schedule property without there 13 Fair Judgment in A.S.154/2017,
dated 11.04.2023
being any scrap of paper he projected plea of fraud and misrepresentation and also doctrine of adverse possession. No material whatsoever has been placed by the defendant that the Rattamma obtained Exs.A1 to A3 documents by playing fraud.
46.The confident glibness made by the PW1 during the course of cross examination it is clear as a cloudless sky, that the Rattamma participated in the auction and the same was knocked down in her favour, the sale was confirmed and sale certificate was issued pursuant to Ex.A1, she filed Ex.A3 execution petition under Order 21 Rule 95 CPC and Amine was went to the plaint schedule property for handing over the physical possession of the same in favour of the auction purchaser, the delivery was effected under Ex.A2 in the presence of village elders, who scribed their signatures on it. Under colour of Exs.A1 to A3, Rattamma obtained Ex.A6 pattadar passbook evidencing her probative possession and ownership over the plaint schedule property. The admitted evidence eloquently evident from the cross examination of PW1 cut the root of the case of the defendant and taken away substratum of its case. Therefore, the inherent weakness theory propounded by the defendant that Rattamma obtained these proceedings by playing fraud and misrepresentation merits no consideration.
47.At this juncture, I may note with profit, whether the sale certificate issued by the competent Court is a document of title or not came up for consideration before the Privy Council way back in 1922. The Judicial
Committee in Ramabadra Naidu Vs. Khadiriyasami AIR 1922 (PC) 252 observed this:- "Certificates of sale are documents of title which ought not to be lightly regarded or loosely construed".
48.To the same effect is the judgment of the Hon'ble Supreme
Court of India in Anand Prasad Agarwalla Vs. Tarkeshwar Prasad AIR 2001 SC 2367, wherein their Lordships observed at Para 6 that:- 14 Fair Judgment in A.S.154/2017,
dated 11.04.2023
“Unless sale certificate is set aside or declared to be nullity, the same has legally valid and force it cannot be said that no right could be derived from such certificate.”
49.To similar effect is to the judgment of the Hon'ble High Court of
Andhra Pradesh in P.Udayani Devi Vs. V.V.Rajeshwara Prasad 1995 (2) APLJ 5 para 7. In the contextual situation, it is relevant to refer to the decision of the
Apex Court reported in Ratanbabu Patil Vs. Dodhu AIR 2005 SC 1500 wherein their Lordships observed, that the title of the Court auction purchaser becomes complete on the confirmation of the sale under Order 21 Rule 92 of
CPC and by virtue of the thrust of Section 65 of CPC, the property vests in the purchaser from the date of sale, issuance of sale certificate is only evidence of title which can always be supplud later on to satisfy her requirements of Order 21 Rule 95 CPC.
50.From the above jurimetrical jurisprudence it is perspicuous, that the sale certificate issued by the competent Court evidencing title after satisfying requirements envisaged under Order 21 Rule 95 CPC. In the instant case, auction purchaser filed petition under Order 21 Rule 95 CPC for delivery of the schedule property and the same was effected, statement of
PW1 vouching for factum of possession delivered in favour of Rattamma, prior to delivery no notice is required under law as held by the Hon'ble High
Court in Kondepati Tejo Anantha Lakshmi Vs. Kondepati Manikyam 2013 (6)
ALD 402.
51.The probability story propounded by the plaintiff is, that late
Rattamma is owner of the plaint schedule property, she enjoyed the property. During her lifetime, she executed Ex.A5 registered Will in her favour whereunder the plaint schedule property was bequeathed after her death Ex.A4 the Will came into operation and the property bequeathed thereunder devolved upon her, since then she has been in peaceful possession and enjoyment of the plaint schedule property without there being any hindrance and obstruction from anybody from any corner 15 Fair Judgment in A.S.154/2017,
dated 11.04.2023
whatsoever while she was in possession of the schedule property, the defendant condignly trespassed into the plaint schedule property and resumed possession, thereupon, she altered the suit for recovery of possession.
52.The quintessence of the contrasting contentions next needs to be outlined, that the testatrix Rattamma bequeathed the property under
Ex.A5 in favour of the plaintiff and admittedly died on 18.07.1999 and after death of testatrix Will automatically comes into operation and her legatee to be enjoyed the bequest. At that juncture, the question that arises for determination is as to, what is the probative value of Ex.A5 and whether the plaintiff is able to prove its due execution and attestation as required under
Law?
53.It is indeed true, that the case of the plaintiff revolves round
Ex.A5 Will dated 11.07.1999, obviously the “onus probandi” lies upon a party propounded the Will and she may satisfy the consciousness of the Court that the instrument so propounded is the last Will of a free and capable testatrix. The propounder has to satisfy, that the paper (Will) propounded does express the true Will of the testatrix. The second warns the
Judge, that the evidence of the witness who drew the Will must be received
with caution. The burden of proving may be discharged. The true meaning of the rule is, that the Court is finally satisfied, that its initial suspicious were unfounded the burden of proof remains discharged and the presumption must prevail vide AIR 1946 Privy Council P.156 in Harmes Vs.
Hinkson (Five Member Board). (2) AIR 1945 Lahore P.3 in PT.Parshotam
Ram Vs L.Keshodas (F.B.) (3) AIR 1949 Privy Council P.272 in MT.Gomtibai
Vs. Kanchhedilal and others.
54.Before adverting to the merits of the case it will be useful to briefly notice the legal position regarding acceptance and proof of a Will.
Section 63 of Indian Succession Act deals with execution of unprivileged wills. It lays down, that the testatrix shall sign or shall affix his mark to the 16 Fair Judgment in A.S.154/2017,
dated 11.04.2023
Will or it shall be signed by some other persons in his presence and by his directions. It further lays down, that the will/shall be tested by two or more witnesses each of whom has been the testator signing of affixing his mark to the Will or has seen some other person sign the Will in the presence and by the directions of the testator and each of the witness shall sign the Will in the presence of the testator. Section 68 of the Indian Evidence
Act mandates examination of one attesting witness in proof of a Will whether registered or not. The law relating to the manner and onus of proof and also the duty caste upon the Court while dealing with a case based upon a Will has been examined in considerable details in several decisions viz., (AIR 1959 Supreme Court P.443 in H.Venkatachala Iyangar Vs.
B.N.Thimarjamma (2) AIR 1964 Supreme Court page 529 in
Seshakumar Benarji Vs. Subohadkumar Benarji (Constitution Bench).
55.Having regard to the aforesaid legal exposition and factually expose the legal provisions of the Act to be scanned:
“Section 63 of the Indian Succession Act deals with execution of unprivileged Wills. It lays down, that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down, that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and on the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 68 of the Evidence Act mandates examination of one attesting witness in proof of a Will, whether registered or not.
To say Will has been duly executed the requirement mentioned in clauses (a) (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the Will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person singing at his direction, has to appear at a place from which it could appear, that by that mark or signature the document is intended to have effect as a Will; (c) the most important point with which we are presently concerned in this appeal, is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sigh the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator.” 17 Fair Judgment in A.S.154/2017,
dated 11.04.2023
56.At this stage, it is seemly to note, that the execution of the
Will may be surrounded by the following suspicious circumstances:
(a) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature
(b) The condition of the testator’s mind may be very feeble and debilitated
(c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons
(d)the dispositions may not appear to be the result of the testator’s free will and mind
(e)the propounder takes a prominent part in the execution of the Will conferring substantial benefit on him
(f) the testator used to sign blank papers
(g) the Will did not see the light of the day for long
(h) incorrect recitals of essential facts
(i)the unregistered Will challenged as forged comes from the custody of major beneficiary (2007 (3) ALT 75 in Pinnaka Hanumantha Rao (died) per LRs Garlapati Dhanalakshmi @ Andallu.).
57.The postulatious judicially adumbrated vis-à-vis Section 63 and Section 68 of the Act as can be gleaned from the above referred decisions verily convey the quintessence of the content and statutory requirement.
58.In the light of the settled position of law, I have to examine as to whether the Will under consideration had been duly executed and the propounder of the Will had dispelled the suspicious circumstances surrounding the Will?
59.The factual score as depicted is, that the Will in question has been written by one Allamraju Venkateswararao (PW2), the Will stands attested by PW3 (Alluri Satyanarayana) and Chitturi Subbayamma. Two signatures said to have been subscribed by the above named two persons and the same appears in the body of the Will as attestors. The testatrix 18 Fair Judgment in A.S.154/2017,
dated 11.04.2023
affixed her thumb impression above the signatures of the attestors, underneath the scribe appended his signature.
60.To prove the due execution and attestation of the
Will, dt.11.07.1999, the Plaintiff sought to rely upon the oral testimony of P.W.2, who is scribe and PW3, who is one of the attestors. PW2, who claims to be a writer of the alleged Will stated in clear terms, that on 11.07.1999 Dandamudi Rattamma executed a Will in his presence. As per instructions, he prepared draft Will at first instance and read over its contents, after having been confirmed the contents as true and correct, he got typed and again read over its contents, after hearing contents, she confirmed correctness in the contents of the Will and scribed her thumb impression in the said Will. PW3 and one Chitturi Subbayamma scribed their signatures as an attestors.
61.The first sentence of cross examination of PW2 would make it clear, that he has no relation with Rattamma. This piece of evidence conclusively establishes that he is an independent witness in whose presence testatrix put her thumb impression upon Ex.A5. During the course of cross examination dated 03.07.2013 PW2 candidly deposed, that the contents of the Will are the instructions of Rattamma. Rattamma only gave instructions regarding the allotment of properties only at the time she did not refer any documents or paper. Rattamma again instructed him to bring pattadar passbook, title deed and partition deed from her daughter, on bringing those documents, she made allotment of her properties. He further deposed in his cross examination that after Rattamma signed on the Will, he asked for persons to attest the Will. The contents are read over, he requested both persons to scribe their signatures, accordingly, they put their signatures.
62. From the above conscious, consistent admissions culled out from the cross examination of PW2 it is clear as a prismatic, that the statutory requirements under Section 63 of Indian Succession Act 19 Fair Judgment in A.S.154/2017,
dated 11.04.2023
substantially complied with by the propounder through the cross examination of PW2. Therefore, I find ring of reliability in his testimony.
63.Admittedly, he is not interested on either side and he is not related to the testatrix, he scribed the Will in the presence of testatrix and also in the presence attestors. The testatrix given instructions for preparation of Will, he read over and explained contents mentioned therein, after having been understood the same as true and correct, the testatrix put her thumb impression. PW2 is an independent witness whose evidence appears to be more reliable and credible, there is no reason to disbelieve his testimony.
64.On a concatenation of the stream of facts deposed by the PW2 during the course of his cross examination tilt the balance in favour of the forensic plea projected by the plaintiff.
65.It is worth saying, that the PW3, who is one of the attestors testified that he used to visit Emergency Hospital, Rajamahendravaram. He was present at the time of execution of Will at the hospital. He himself along with Chitturi Subbayamma scribed their signatures on Ex.A5 as an attestors,
PW2 scribed the Will. During the course of cross examination he deposed, that he was called by PW2 and the contents explained to the Rattamma. On the request of Rattamma, PW2 was acted as a scribe and he himself acted as an attestor.
66.As is evincible, that the PW3 was cross examined at length and nothing tangible had been brought out to discredit his testimony. The glib answers given by PW3 during the course of cross examination substantially proved the plea projected by the plaintiff and there is no inconsistency between his examination in chief and cross examination. The statement of
P.W.3 produced on record shows, that he along with PW2, Chitturi
Subbayyama and the testatrix had signed the Will. In the cross examination he stated, that he had signed the Will had not been disputed or the testatrix or the other attesting witness was not present. P.W.3 had 20 Fair Judgment in A.S.154/2017,
dated 11.04.2023
proven himself as indispensable teller of the facts and the due execution and attestation of the Will. Therefore, there is no reason as to why the evidence of this witness shall not be trusted since this witness deposed only with reference to Ex.A5 Will, his evidence can safely be trusted without any hesitation.
67.In accordance with the requirements of Section 63 of Indian
Evidence Act by examination of one attestor of the Will, in my view said evidence was sufficient to prove the Will. Once the Will, dt.11.07.1999 is held proved in accordance with law, the Plaintiff becomes entitled to recover the schedule property from the defendant as she is the owner of the property and the same was bequeathed to her by the testatrix as specified in the Will.
68.Doubtless, the learned counsel for the defendant pointed out suspicious circumstances viz.,
1) Rattamma was in intensive care unit (ICU);
2) The evidence of PW2 and PW3 disclose that only one person was permitted to enter into ICU that too by wearing mask;
3) Rattamma was incoherent and virtually in coma;
4) Ex.A5 is a typed one;
5) Testatrix was not in a sound and disposing state of mind.
69.To dispel above suspicious circumstance pointed out by the learned defendant's counsel, the propounder sought to rely upon the evidence eloquently emerged out from the cross examination of PW2 and
PW3.
70.It would be apt to say, that the PW1 was cross examined. During the course of cross examination he unambiguously deposed, that he was not present at the time of preparation and execution of Ex.A5. This forensic probability clearly shows that the PW1 was conspicuously absent at the time of execution of Will. He further deposed during the course of cross examination that one week prior to her death Rattamma able to attend her 21 Fair Judgment in A.S.154/2017,
dated 11.04.2023
work and was conscious. This part of evidence emerged out from the cross examination of PW1 conclusively establishes that prior to admitting in the hospital, Rattamma was able to attend her work and was conscious. The consciousness of the testatrix was proved by the propounder through the cross examination of PW1. Therefore, the contentions canvassed by the defendant's counsel that the testatrix had no testamentary capacity, she was unconscious and admitted in ICU is obviously an argument of desperation.
71.A relook in the evidence of PW2 it is apparent, that he explained to the Rattamma about the properties owned by her and asked about allotment of such properties. On her request all went to ICU, there are beds very near to the bed of Rattamma in ICU. He staunchly denied that he never drafted Ex.A5 and no instructions given by the testatrix. PW3 is one of the attestors stated in clear terms during the course of cross examination, that
Rattamma was admitted in hospital due to severe diabetes. On the request of Rattamma, he was signed as an attestor. Rattamma was in hospital for 10 days. He denied no Will was executed or registered by Rattamma in his presence, she was not disposing state of mind by then. PW3 faced grilled cross examination at length but nothing came out from his statement which may be enable me to draw an adverse inference against the plaintiff case.
The above probability factors do not render it unworthy of credence.
72.Turning to the evidence emanating from the cross examination of PW1 to PW3 it is starkly evident, that the Ex.A5 was not surrounded by any suspicious circumstances. The above suspicious circumstances pointed out by the learned counsel for the defendant in his written arguments very well controverted by the witnesses from their glib answers in their cross examination. Therefore, Ex.A5 deserves probative credit in this context. No prima facie evidence of unimpeachable character has been adduced by the defendant to destroy the probative potential of Ex.A5. There is no cross examination to PW3 on the mandatory requirement of the Will, therefore
PW1 proved the due execution of Ex.A5, testamentary capacity of 22 Fair Judgment in A.S.154/2017,
dated 11.04.2023
testatrix and non presence of plaintiff. Hence, in my opinion there was reliable evidence vouch safe for the truth of the Ex.A5.
73.The mandatory legal edict under Section 63 of the Act proved by the plaintiff by adducing best probable evidence. The factum of
Will, dated 11.07.1999 having been duly proved as the same was a last Will.
The initial onus on the propounder to prove the due execution and attestation under Section 63 of Indian Succession Act stands discharged.
74.On the above overwhelming and unambiguous verbal testimony of PW1 to PW3 as well as sequence of the circumstances on the issue involved, I am unhesitant opinion, that the PW1 proved due execution, attestation and testamentary capacity of the testatrix. Therefore, the inherent probability story propounded by the plaintiff can safely be accepted.
75.The tenuous stand taken by the defendant in his written statement dated 27.09.2005 at para 10, is that the defendant and his predecessors are in open, continuous and uninterrupted possession of the schedule property as its owners for the last more than 12 years before filing of the suit to the knowledge of the plaintiff and her predecessors and adverse to their interest, ownership or title claimed by the plaintiff is lost to her by Law of prescription.
76.From the above foundational facts it is discrenable, that the defendant pleaded doctrine of adverse possession vis-a-vis prescription under Section 27 of Limitation Act. It is worthwhile to note that the defendant did not whisper any single syllable on what date he came into possession, what was his nature of possession, how long his possession had continued over the schedule property. There is nothing forthcoming either in the shape of documentary evidence or oral evidence except the defendant self-serving statement which is self contradictory evidence.
77.As the factual narration further unfolds, that the defendant has taken a specific plea that he required prescriptive title over the plaint 23 Fair Judgment in A.S.154/2017,
dated 11.04.2023
schedule property by operation of law. When plea of prescription of title is raised, it is basically first of all admission of the antecedent title of the plaintiff, then thereafter destruction of the same through adverse possession.
78.It is settled law, that the proof of ownership by prescription is not an easy matter in Civil Suit. The defendant has to prove the same by adducing prima facie evidence of unimpeachable character.
79.Law thus seems to be well settled, that the Article 65 of
Limitation Act, suit for possession of immovable property or any interest therein can be instituted within a period of 12 years calculated from the day when the possession of the defendant became adverse to the plaintiff. By virtue of Section 27 of Limitation Act at the determination of the period limited by the Act to any person for institution of a suit for possession of any property is right to such property stand extinguished. The process of acquisition of title by adverse possession springs into action essential by default or inaction of the owner. A person though having no right to enter into possession of the property of someone else, does so and continues in possession set up title in himself and adversely to the title of the owner commences prescription title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own, but, on account of default or inaction on the part of the real owner which stareched over a period of 12 years results into extinguishing of later title.
80.It equally well settled Law, that the burden lies on the party claiming adverse possession to prove that his possession became adverse to the real owner. Possession per se is not sufficient to prescribe title by extinguishment of the title of the real owner unless accompanied by assertion of hostile title. The claim of the plaintiff over the plaint schedule property cannot be non-suited merely because she was not able to prove her possession within 12 years, the plaintiff need not prove possession as held 24 Fair Judgment in A.S.154/2017,
dated 11.04.2023
by the Hon'ble High Court in Hussain Begum VS. Madu Rangarao 2000 (1)
ALT 568.
81.In M.Maremma Vs. D.Krishnavenamma 2009 (2) ALT 89 (AP) wherein it was held, that the suit for recovery of possession of immovable property be filed within 12 years from the date when the defendant asserted hostile title to the property of the plaintiff, the plaintiff need not prove his possession within 12 years prior to the suit (Para 22.b). It is for the defendant to establish that the plaintiff is not in possession of suit land within 12 years.
(1996 (1) APLJ 470 (D.B.) in Mohd. Ibrahim Vs. Secretary to the Government of India, Ministry of Defence, New Delhi, (Para.11)
82.In view of the law laid down by the Hon'ble High Court of combined State of Andhra Pradesh, the plaintiff need not prove the possession of the property for 12 years prior to filing of the suit.
84.In order to acquire ownership by prescription the defendant has to prove the following ingredients under Section 27 of the Limitation Act and
Article 65 of Limitation Act:-
1. The right must not be uncertain.
2. The right must be enjoyed.
(i) peaceably, (ii) openly, (iii) as of right, (iv) without interruption (v) for 20 years in the case of private property of private persons; or for 30 years against government property;
3. The right must be enjoyed independently of any agreement as the owner or occupier of the land over which the right is claimed.
85.Doubtless, the onus of preponderance heavily lies upon the defendant to prove classical requirements nec vi, nec calm, nec precario to establish plea of adverse possession, the defendant should show by cogent evidence that he had been in possession of the suit property for more than statutory period of 12 years. The possession for perse is not sufficient to prescriptive title by extinguishment of the title of the real owner. The possession required must be advocate in continuity, in publicity and in 25 Fair Judgment in A.S.154/2017,
dated 11.04.2023
extent to so that his possession is adverse to the true owner. It must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Therefore, a person who claims adverse possession should show (a) on what date he came into possession; (b) what was nature of the possession; (c) whether factum of possession was known to other party; (d) how long his possession has continued and (e) his possession was open, and undisturbed. A person pleaded adverse possession has no equities in his favour since he is trying to defeat rights of the true owner. it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
86.In the matter of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai
Harijan and others, AIR 2009 SC 103. The Supreme Court emphasized the need for fresh look regarding Law of adverse possession at Para 34, their
Lordships further propounded that there is an urgent need of fresh look regarding the law on adverse possession and recommended Union of India to seriously consider and make suitable changes in the law of adverse possession.
86.In the matter of State of Haryana Vs. Mukesh Kumar AIR 2012 SC 559, wherein their Lordships held, that a serious re-look to the law of adverse possession is absolutely imperative in the larger interest of the people.
87.The legal and lucid distinction between the doctrines of 'adverse possession' and 'prescription' appears to be well established "Adverse possession' means:
The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion or colour of right on the part of the possessor.
The statute of limitation is the source of title by adverse possession… 26 Fair Judgment in A.S.154/2017,
dated 11.04.2023
The adverse possession must be actual, continued, visible, notorious, distinct and hostile.
(Pages 152 and 153 of Bouvier's Law Dictionary vol.I,3rd
Revision 1914) "Adverse Possession' is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title.
Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title viz., trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession'. (Pages 50 and 51 of T.M.Mukherjee's Law Lexicon Vol.I, 1971 Edn.) 'Prescription'
Prescription may be defined as the effect of lapse of time in creating and destroying rights: it is the operation of time as a vestitive fact. It is of two kinds viz., (1) positive or acquisitive prescription and (2) negative or extinctive prescription. The former is the creation of a right, the latter is the destruction of one, by the lapse of time. An example of the former is the acquisition of a right of way by the de facto use of it for twenty years. Lapse of time therefore, has two opposite effects. In positive prescription it is a title of right, but in negative prescription it is a divestitive fact. Whether it shall operate in the one way or in the other depends on whether it is or is not accompanied by possession. Positive prescription is the investitive operation of lapse of time with possession, while negative prescription is the divestitive operation of lapse of time without possession. Long possession creates rights, and long want of possession destroys them. If a person possesses an easement got twenty years without owning it, he begins at the end of that period of own as well as to possess it. Conversely, if a person owns land for twelve years without possessing it, he ceases on the termination of that period either to own or to possess it. In both forms of prescription, fact and right, possession and ownership, tend to coincidence. Ex facto oritur jus. If the root of fact is destroyed, the right growing out of it withers and dies in course of time. If the fact is present, the right in the fullness of time proceed form it “(Emphasis added.). (Page 435 of Salmond on jurisprudence 12th Edn., by P.J.Fitzeraid).
88.Applying above ratio to the facts of the present case, now I shall evaluate and analyze the evidence of the defendant how far and what extent he discharged his onus of proof with reference to the probabilities and surrounding circumstances?
89.To prove law of adverse possession vis-à-vis prescription under
Section 27 of Limitation Act, the defendant himself examined as DW1. He 27 Fair Judgment in A.S.154/2017,
dated 11.04.2023
stated in clear terms, that he and his predecessors are in open, continuous and uninterrupted possession of the schedule property as its owner for the last more than 12 years before filing of the suit to the knowledge of the plaintiff and her predecessors and adverse to their interest, ownership or title claimed by the plaintiff is lost to her by Law of prescription.
90.To crown it all, he admits during the course of cross examination, that he is enjoying the plaint schedule property claiming title his himself, but, not that of Rattamma or her legal heirs. He further admitted that after his father death, he came to know that the Rattamma purchased the plaint schedule property in Court auction. It was his further admission during the course of cross examination that he did not obtain any pattadar passbook in his name. Except the oral testimony of DW1, there has been no other documentary evidence adduced or produced that he is in possession and enjoyment of the plaint schedule property for a period of 12 years to the knowledge of the real owner.
91.The crucial question that crops up for determination at that juncture is as to, when the possession of the defendant becomes adverse to the plaintiff. It may be mentioned here, that there has been no whisper in the entire evidence of the DW1 when he comes into possession of the plaint schedule property. I therefore see no other piece of evidence is available on record to show validly that on a particular date that the DW1 asserted the hostile element.
91.In that view of the matter and also considering admissions culled out from the cross examination of DW1, the basic ingredient of adverse possession ripening into title is absent.
92.It is settled Law, that the possession for any lengthy period belongs to one person by another person would not itself constitute any adverse possession. It is also settled Law, that the possession of one person consisting reconcible with title of another cannot be adverse to the real owner.
28 Fair Judgment in A.S.154/2017,
dated 11.04.2023
93.It is seemly to note, that the defendant did not file any incontrovertible material to show when his possession became adverse to the real owner. It is no need for the plaintiff to prove possession within 12 years as held by the Unified Hon’ble High Court of A.P. in Kalal Thimmanna
Vs. Sri Krishna Reddy AIR 2004 AP 390, possession, which possession is adverse to real owner for the statutory period.
94.As regards, in this case when look into evidence and stand in respect of the plea of adverse possession set up by the defendant in his written statement, he implicitly admitted that the plaint schedule property belongs to the plaintiff and however, he had perfected the title over the same by adverse possession. The defendant has to prove his plea beyond all reasonable doubt. In the instant case, I do not find any reliable and acceptable evidence on the side of the defendant that he had perfected title over the suit property by adverse possession even DW1 has not spoken about adverse possession in his evidence though he set up in the written statement. The required contemplated under the Law of Limitation or settled principle in respect of adverse possession laid by the Hon’ble High Court of
A.P. and Hon’ble Supreme Court, as I have pointed out above there is no piece of evidence on the side of the defendant particularly from the DW1.
Hence, the plea set up by the defendant cannot be looked into as of no probative value.
96.Thus perceived it can be stated with certitude, that the Court below recorded positive findings, I have no hesitation in holding the findings of the facts recorded by the Trial Court. I do not agree that any error had been committed by the learned Trial Judge in his approach. He recorded the definite finding and the findings are fully supported by the evidence on record.
97.A priori, I am of the view, that the judgment under Appeal is well considered decision of the Court below, there is no ground to interfere with 29 Fair Judgment in A.S.154/2017,
dated 11.04.2023
impugned judgment passed by the trial Court and the appeal filed by the appellant is san’s substance, stands dismissed.
POINT NO.2:-
98.Exconsequenti, the appeal is dismissed with costs. The impugned decree and judgment dated 14.09.2017 in O.S.40/2011 passed by the learned I Addl. Senior Civil Judge, Rajamahendravaram, stands confirmed.
CROSS APPEAL:-
100.It is indeed necessary however to note, that the plaintiff filed cross appeal under Order 41 Rule 22 CPC questioning the legal acceptability of the judgment dated 14.09.2017 regard being had to the disallowing mesne profits. The judgment of the Court below clearly shows that he has analyzed entire oral and documentary evidence and decreed the suit.
Unfortunately, mesne profits claimed by the plaintiff is negatived. Once the decree for possession is granted in favour of the plaintiff, mesne profits automatically followed. Since prayer for mesne profits are not allowed, the plaintiff filed Cross Appeal by questioning pregnanability of the judgment of the Court below.
101.The plaintiff raised Cross objections by raising various points how the Court below failed to disallow mesne profits and findings recorded therein are questioned by filing cross objections. Since the trial Court already answered main suit in favour of the plaintiff by granting decree of recovery of possession, the plaintiff automatically entitled mense profits. No special circumstance adumbrated in the impugned judgment to disallow the mesne profits. Hence, the Cross Appeal filed by the plaintiff is hereby allowed.
102.The Cross Appeal allowed and the plaintiff/appellant is directed to file separate application to ascertain mesne profits and the same shall be determined by the Court if the plaintiff makes an application under Order 20
Rule 12 CPC and on such application, the trail Court shall afford an opportunity to both the sides to lead evidence and shall determine the future profits. Accordingly, decree and judgment is modified to the extent stated 30 Fair Judgment in A.S.154/2017,
dated 11.04.2023
above. Awarding of profits is the rule while denial is an expedition as held by the Hon’ble High Court of Andhra Pradesh in Sri Venkateswara Oil Company,
Tirupathi, rep.by its Partners Vs. Guduru Jalaja Reddy 1997 (1) ALT Page
No.1.
Dictated to the Stenographer Gr-II, transcribed by him, corrected and
pronounced by me in open Court, this the 11th day of April, 2023.
Sd/- Ch.Raja Gopalarao
JUDGE,
Family Court cum IX Addl. District and Sessions Court, Rajamahendravaram.
Appendix of Evidence
No additional oral or documentary evidence adduced on either side.
Sd/- Ch.Raja Gopalarao
JUDGE,
Family Court cum IX Addl. District and Sessions Court, Rajamahendravaram.
Copy to the I Addl. Senior Civil Judge, Rajamahendravaram.