AS.20 of 2013 dt. 05.10.2020 1 SCJ/YLM
FAIR
IN THE COURT OF THE SENIOR CIVIL JUDGE :: YELLAMANCHILI
Present: Sri M.Sankar Rao,
Senior Civil Judge,
Wednesday, the 3 rd day of February, 2021
AS.No.20/2013
Between:
1Velaga Nallabbai @ Nagaraju, S/o Kannayya, age 75 years, cultivation, Velagavari Doddi, Chinadoddigalu village and Post, Nakkapalli Mandal, Visakhapatnam. 2Velaga Nageswararao, S/o Nallabbai @ Nagaraju, age 37 years, Cultivation, Velagavari Doddi, Chinadoddigallu village and Post, Nakkapalli Mandal, Visakhapatnam. 3Velaga Babji @ Kannayya, S/o Nallabbai @ Nagaraju, age 33 years, cultivation, Velagavari Doddi, Chinnadoddigallu village and Post, Nakkapalli Mandal, Visakhapatnam.
... Appellants/defendants
And:
1Smt Karri Nagarajamma, W/o late Mathalu, age 67 years, cultivation, Chinadoddigallu village and Post, Nakkapalli Mandal, Visakhapatnam. 2Smt Velaga Ramanamma, W/o Kasulu, age 45 years, cultivation, S.Rayavaram village and Post and Mandal, Visakhapatnam.
... Respondents/Plaintiffs
MEMORANDUM OF APPEAL PRESENTED AGAINST THE DECREE AND
JUDGMENT IN OS.NO.127/2007 DT.11.06.2013 ON THE FILE OF OF THE
PRINCIPAL JUNIOR CIVIL JUDGE AT YELLAMANCHILI.
Between:
1 Smt Karri Nagarajamma, W/o late Mathalu, age 67 years, cultivation, Chinadoddigallu village and Pos, nakkapalli Mandal, Visakhapatnam. 2Smt Velaga Ramanamma, W/o Kasulu, age 45 years, cultivation, Rayavaram village and Post and Mandal, Visakhapatnam.
...Plaintiffs
2
And:
1Velaga Nallabbai @ Nagaraju, S/o Kannayya, age 75 years, cultivatio, Velagavari Doddi, Chinadoddigalu village and Post, Nakkapalli Mandal, Visakhapatnam. 2Velaga Nageswara Rao, S/o Nallabbai @ Nagaraju, age 37 years, Cultivation, Velagavari Doddi, Chinadoddigallu village and Post, Nakkapalli Mandal, Visakhapatnam. 3Velaga Babji @ Kannayya, S/o Nallabbai @ Nagaraju, age 33 years, cultivation, Velagavari Doddi, Chinnadoddigallu village and Post, Nakkapalli Mandal, Visakhapatnam.
... defendants
This Appeal is coming before me for hearing in the presence of Sri Y.Dasu
Babu, Advocate for Appellants/defendants and Sri J.V.N.A.Rao, Advocate for
Respondents/Plaintiffs and upon hearing and considering the material on record this court made the following:
J U D G M E N T
1.This is an appeal preferred by the Appellants/Defendants against the
Judgment and Decree passed in OS.127/2007 dt.11.06.2013 on the file of
Principal Junior Civil Judge’s Court, Yellamanchili and to allow the appeal with
costs throughout.
2. For the sake of convenience the parties are hereinafter referred as arrayed
before the trial court as Appellants/defendants and Respondents/Plaintiffs.
3.Before going to discuss the other aspects it is just and proper to consider the respective contentions of the plaintiffs and defendant as projected before the trial court.
4.The case of the plaintiffs is that the plaint schedule property is absolute
property of the 1st plaintiff and she got the same under registered sale deed
dt. 26.11.1969 since then the 1st plaintiff has been in possession and
enjoyment of the property for more than 38 years. She raised cashew, coconut and mango trees in the plaint schedule property. The 1st plaintiff also dug a well in the plaint schedule property with loan granted by the 3 government. The Government also recognized the possession and enjoyment of the 1st plaintiff and recorded her name in all the revenue records and also issued pattadar passbook and title deed in favour of the 1st plaintiff way back in the year 1985. The 1st plaintiff brought 2nd plaintiff at the age of 5 months and taken care of her as adopted daughter. The 1st plaintiff also performed the marriage of the 2nd plaintiff. Due to love and affection, the 1st plaintiff got executed a registered gift settlement deed dt. 02.11.1988 by keeping he title and possession with the plaintiff starting that the 2nd plaintiff got the schedule property with a limited right and after the death of the 2nd plaintiff, the schedule property will be devolved to her daughters with absolute rights.
Both the plaintiffs carrying on the agricultural operations. Thus the plaintiffs have been in continuous peaceful possession and enjoyment of the plaint schedule property more than 38 years to the knowledge of one and all including the defendants.
5.The defendants are well aware of the possession and enjoyment of the plaintiffs over the plaint schedule property. The plaintiff are being ladies without any support in the village taking the advantage of the same the defendants want to grab he schedule property by dispossessing the plaintiffs high handedly and illegally without any right and on 05.04.2007 the defendants and their men proclaiming in the village that they would dispossess the plaintiffs from the schedule property within short period.
Hence, the suit.
6.The 3rd defendant filed written statement denying the allegations of the plaint and contending that 1st plaintiff never in possession and enjoyment of the plaint schedule property, since 1969. As the 1st plaintiff is a lady, she cultivated it through her lessee and her lessee are also their close men. The in laws house. The 1st plaintiff is Geddapalem and her husband is an employee as such the 1st plaintiff and her husband lived under one roof at
Visakhapatnam and her husband died at about 30 years back, then 1st plaintiff came to their parents house at Chinnadoddigallu and in such 4 circumstances the 1st plaintiff or plaintiffs never in possession and enjoyment of the plaint schedule property since 1969 to till date. The 2nd plaintiff has no valid adoption and she is only a postured daughter and she is not adopted daughters as alleged in the plaint. The 2nd plaintiff in laws house is at
S.Rayavaram and she is residing at S.Rayavaram along with her husband and therefore, though the 1st plaintiff or plaintiffs never in possession of the plaint schedule property.
7.The plaintiffs and the defendants are close relatives and likewise they are all having faith towards each of their families. While so, the plaintiffs out of their need for the purpose of family expenses and for discharging the sundry debts offered to sell the plaint schedule property to the 1st defendant on 09.03.2001 for an amount of Rs.2,55,000/- and the 1st defendant consented for the same and paid advance sale consideration of Rs.1,70,000/- to the plaintiffs on the same date and plaintiffs executed agreement of sale on the same day in favour of the 1st defendant with a condition to register the plaint schedule property as and when demanded by the 1st defendant and further agreed to handover the possession of the plaint schedule property on
Kotha Ammavasya and accordingly the plaintiffs handed over the possession of the plaint schedule property on Kohta Ammavasya in the year 2001. Since, then the defendants are in possession and enjoyment of the plaint schedule property with absolute rights under the guise of the agreement of sale dated 09.03.2001. The plaintiffs and their family members are well aware about the sale transaction. The plaintiffs willfully suppressed the agreement of sale.
Therefore, the present suit is for permanent injunction i.e., equitable relief of injunction is not maintainable under law. There is no cause of action for filing this suit. The question of threat by the defendants and proclamation in the village by the defendants does not arise as the defendants are in possession of the plaint schedule property since 2001.
8.Number 3 adangal filed by the plaintiff is nothing but a created document and the third party affidavit filed by the plaintiffs along with the 5 suit is created for the purpose of the suit. The court fee paid is incorrect. The plaintiffs are never in possession and enjoyment of the plaint schedule property at any point of time. The plaintiffs sue to increase of the rates of the land filed this suit with a view to gain unlawfully. The present suit without asking declaration is not maintainable under law and prayed to dismiss the suit with costs.
9 Basing on the above said pleadings, the following issues are settled for trial.
1.Whether the plaintiff is entitled for grant of permanent injunction restraining the defendants, their men from ever interfering with the peaceful possession and enjoyment of the plaintiffs plaint schedule property or not ?
2.To what relief?
10. During the course of trial, PW1 to PW3 are examined and Ex.A1 to
Ex.A.10 are marked, on behalf of the plaintiff. On the other hand DWs1 to
DW5 are examined Ex.B.1 & B.2 are marked, on behalf of the defendants.
11.After hearing both sides considering the evidence on record the trail court has decreed the suit in O.S.No127/2007.
12.The Plaintiffs feel aggrieved by the decree and judgment of the trial court preferred the appeal following and among other grounds:-
a) The Decree and Judgment of the lower court dt. 11.06.2013 in
O.S.No.127/2007 on the file of the Hon’ble court of the Principal Junior Civil
Judge’s Court, Yellamanchili is contrary to law, weight of evidence and
probabilities arising in the case.
13. The present suit is filed by the respondents against the appellants for grant of permanent injunction and the pleadings of the appellants are very clear that the III party affidavits filed by the respondents in support of their case and to prove possession over the plaint schedule property along with
Temporary injunction petition and the appellants hotly contested the same that the said persons are not signed in the II party affidavits and the same are created for the purpose of filing this suit and by time of giving evidence, 6 one of the III party affidavit holder died and another person was not examined and the same proves his contest that the III party affidavits filed by the respondents are created documents and therefore, the lower ignored the above fact in entirety on the grounds of the respondents not come other court with clean hands and on the other hand when the available oral evidence is with the respondents but not examined them shows that the witnesses are not support their case and the lower court instead of taking adverse inference for non examine the said witnesses but lower court in entirety ignored the same and erred in finding the same. On the other hand the appellant as contested that the names of two III party affidavits filed by the respondents are not the said names and the appellant on the other hands summon the said witnesses for the purpose of service of witness summons to understand the honourable court that there are such person or not but the lower to the misfortune of the appellants dismissed the said petition and even then the appellants preferred revision on the petition and the same is also dismissed but the lower court ignored the said fact in entirety with regard to non examination witness cited by the respondents themselves and therefore, the lower court erred in finding the same.
14.The lower court unfortunately found that the agreement of sale was not sent to the expert for examination for getting the law in force, in this case, the appellants examined attestor of the agreement of sale and proved the agreement of sale and in such case, the lower court erred in found that the said document is not sent for to the expert by the appellants and in fact, the burden shift to the respondents to disprove the above fact and therefore, to disprove the same the respondents out to have sent the same to the expert but lower court erred in finding the same and therefore, the lower court finding with regard to same is incorrect and on the other hands the lower court though appellants prove the agreement sale as per law erred in finding the same and the lower court also erred in commenting about the signatures with regard to attestors who come forward give evidence is contrary to law 7 and therefore, the lower court erred in finding the same.
15.The certified copy of documents when once filed by the appellant and truth of the document can be disproved by filing documents by the respondents but the lower court erred in finding that the certified copy of the document filed by the appellant is incorrect and therefore, the lower court erred in finding the same. The agreement of sale coupled with adangal establish that the appellants are in possession and enjoyment of the plaint schedule property under the guise of agreement of sale and in such case, when the appellants are disturbed from possession of the plaint schedule property and therefore, the lower court erred in finding the same. The lower court commented upon southern erroneously, when it is purchased under agreement of sale what nature it can b called and therefore, the lower court erred in finding the same.
16.The lower court found that the adangal filed at later point of time found that they are not looked into evidence the respondents are plaintiffs in the suit and burden heavily rests on the respondents and the same is not discharged by the respondents an therefore, the lower court erred in finding the same in the present circumstances of the case, the burden of proving the possession is not discharged without any doubt and therefore, the lower court erred in finding the same. The evidence adduced by the appellants establish and proves possession over the plaint schedule property along with agreement of sale but the lower court erred in finding the same. The present suit filed by the respondents for permanent injunction but lower court while granting equitable relief, whether the respondents appellants came to the court with clean hands or not is ignored and no finding on the above fact and therefore, the lower court erred in decreeing the suit instead of dismissing the same. The lower court erred in finding about the purchase of property by the appellants without title t the property and erred in finding the same. The evidence of PW2 is beyond pleadings of the respondents and it supports the case of the appellant but the lower court ignored the same and erred in 8 finding the same. The evidence and documents filed by the respondents do not establish possession of the plant schedule property with the respondents but the lower court ignored the same and erred in the finding the same. The evidence and documents filed by the respondents do not establish possession of the plant schedule property with the respective but the lower court erred in finding the same and decree the suit instead of dismissing the same and prayed to allow the appeal.
17. Heard.
18. Perused the entire record more especially Judgment of the court below and evidence available on the record and Exhibits marked and written
Arguments.
19.Now the point for consideration is:
Whether the Impugned Judgment and Decree dt.11.06.2013 made in O.S.No. 127/2007 suffers from any infirmities and if so whether the interference of this court is warranted ?
20. POINT: The case of the plaintiff is that he is the absolute owner the plaint schedule property and she is cultivating the same. Here, the ownership of the plaintiff over the plaint schedule property and her possession which fact is not in dispute. The plaintiff who deposed that she got the property under Ex.A.1 sale deed dt.26.11.1969 and she was in possession and enjoyment of the same and the 2nd plaintiff is her foster daughter and she gifted the schedule property under Ex.A.5 registered gift deed dt. 09.03.2001.
21 Further the plaintiff case is that they have limited rights over the plaint schedule property and plaintiff have only right to enjoy the usufructs from the plaint schedule property and the plaintiff have no alienable right on plaint schedule property as under Ex.A.5 plaintiff settled property in favour of plaintiff No.2 & her children. DW1, DW2 in cross examination stated I know the Ex.A.5 Gift settlement deed dt.09.03.2001 after demise of plaintiff the property of plaintiffs will devolved with absolute right on children of plaintiff- 9
2. DW3 also depose that one gift settlement deed is executed by PW1 in favour of PW2 and her children. which clearly shows the defendant having notice of the same. Hence there is no dispute with regard to execution of
Ex.A.5 Gift settlement deed dt. 09.03.2001 in favour of plaintiff No-2 & her children.
22The case of the defendant is that he purchased the property under
Ex.B.1 agreement of sale from the plaintiff and possession was handed over on Kotha amavasya and since then he is in possession and enjoyment. Here the burden on the plaintiff to prove their case.
23The plaintiff to prove her possession over the plaint schedule property examined herself as PW1 who reiterated the averments of her pleadings and also examined PW2 who is third party and who categorically deposed that since 6 years cultivating the schedule property as farm servant under the plaintiffs and 1st plaintiff has been paying Rs.3,500/- towards my salary and suit schedule property is in possession and enjoyment of the plaintiffs and the defendants have no possession and enjoyment of plaint schedule property. The plaintiff in support of her evidence got marked Ex.A1 registered sale deed dated 26.11.1969 and Ex.A.2 pattadar passbook of 1st plaintiff
Ex.A.3 is title deed of 1st plaintiff, Ex.A.4 adangal for fasili 1413 corresponding year 2003-2004 issued by the Tahsildar and Ex.A.6 and A.7 Photographs and
CD and Exs.A.8 to A.10 true copy of No.3 adangal issued by the VRO for fasili 1416, 1419, 1421 corresponding years 2006, 2009 & 2011. Exs.A.8 to A.10 are marked subject to objection and those are not issued by the competent authority.
24The learned counsel for the appellant contended that Ex.A.4 do not prove the plaintiffs in possession of the plaint schedule property as on the date of filing of suit and Ex.A.8 to A.10 issued by VRO is not a competent authority and relied on a decision reported in 2006(4) ALD 785 between
M.Ramaswamy Vs. Golla Rangamma.
10 25 In the above case sale deed is said to have been executed by the petitioner in favour of his brother Mr. Chandramouli despite the sale, the petitioner was issued a title deed by the concerned revenue authorities and the plea of the petitioner that subsequent to the sale dated 09.12.1988 the property was acquired by him and the respondent interfering with the possession of suit land. The respondent case is the brother of the petitioner intern gifted the land to the daughter of the respondent. In para 6 “ even assuming that the Panchaythi secretary was not competent to issue phahanies the evidential value of those documents can be ignored, if only the respondents came forward with any better and more reliable documents on her part the respondent filed phahanies upto the year 1996 – 1997”.
26It is clear from the above decision that evidentially value of those documents i.e., Phahanies issued by the Panchaythi secretary can be ignored if only the defendants came forwards with any better and more reliable documents.
27 Here in case on hand the plaintiff contending that in view of Exs.A.1 to
Ex.A10 they are in possession and enjoyment of the plaint schedule property.
On perusal of Exs.A.1 to A.5 those documents clearly shows the right, title and possession over the plaint schedule property which fact is not in dispute.
The only contention of the defendant is Ex.A4 adangal for fasili 1413 do not show the plaintiff is in possession and enjoyment of the same as on the date of filing of suit and Ex.A.8 to A.10 adangals for the year 2006, 2009 & 2011 are not issued by the competent authority. Further the learned for the defendant also relied on a decision reported 2006(4) ALD 788 between
D.V.Muralikrishna Rao Vs. Ch.Gopalarao. In the above said decision an application was filed to receive certified copy of letter marked another suit and the same was rejected by the Trial court as the same was not mentioned in written statement and that its admissibility and relevancy is yet to be tested. It is held any aspect to the suit which constitute of evidence is not suppose to the stated in pleadings order 6 Rule 2 prohibits any reference to 11 evidence by which the material facts are to be proved and court cannot reject the certified copy of document marked in another suit on ground i.e., admissibility and relevancy is yet to be tested. The facts and circumstances in the above cited decision are different to the case on hand. Hence, not squarely applied.
28The counsel for the appellant contended that under Ex.B.1 possession of the plaint schedule property was handed over the Kotha Ammavasya and since then he is in possession and enjoyment of the same and marked Ex.B.2 adangal for fasili 1410 corresponding year 2000 and presumption under
Sec.79 of Evidence Act to be raised in favour of Ex.B.2 and relied on a decision reported in 2002(1) ALT Criminal 572 (A.P) between Md Akbar and another Vs. State of AP. In the above cited decision prosecution filed petition seeking permission of the court to receive certified copy of an order of injunction, certified copy of phahanies and certified copy of FIR in
Cr.No.84/1997 the petitioners who are accused opposed the said application contending the documents are not genuine and those are created during investigation and the prosecution not entitled to fill up of the gap in its case, after 313 Cr.P.C examination,. Wherein it is held that “the documents produced by the petitioner are certified copies of order of civil court phahanies and F.I.R which are all public documents within the meaning of
Sec.74 Evidence Act. As per Sec.76 of Evidence Act the certified copy of public documents can be issued to anybody and as per Sec.77 of Evidence of
Act certified copy of public documents can be produced in proof thereof. If documents which are not public documents are sought to relied on the by the prosecution only the question of proof of documents and signatures therein would arise. In this case since three documents produced by the prosecution are public document within the meanings of Sec.74 of Evidence of act strictly speaking no formal proof thereof is necessary show they can be admitted evidence by virtue of Sec.77 of Evidence Act. The learned counsel for the plaintiff contended that public documents need not be proved unless the 12 genuiness is dispute. Further submitted that Ex.B.2 is not a certified copy and it is a true copy and disputed the genuineness of ExB.2 as the Tahsildar stamp was mentioned in Tahlsidar and no revenue authorizes obtained such stamp with wrong spelling as observed by court below on perusal of Ex.B.2 find the spelling of “Tahsildar” stamp as “Tahlsidar” instead “Tahsildar” the appellant contended that the stamp Tahsildar on Tahlsidar and preparing of stamp depend on knowledge of stamp vendor which contention is not tenable as Government stamp and seal were get prepared with strict precision and entrusted to experience stamp vendor. Further to prove his genuiness defendants not taken any steps of calling revenue people and examined them. Hence the above circumstances also raises a doubt as to
Ex.B.2.
29Here, the fasili year commences from July to June of every year. The alleged Ex.B.1 agreement of sale is dated 09.03.2001 and in Ex.B.2 adangal column No 15 there is mention as Swantham when Ex.B.1 an alleged agreement of sale under it no recital of delivery of possession as on the alleged date of Ex.B.1. here, the learned counsel for the plaintiff contended that mere agreement of sale do not created any right or interest over the property and relied on a decision reported 2008 (2) ALT 468 between
Gajbinkar Arjun and another Vs. Siddipet Municipality, rep., by its
commissioner, Siddipet, Medak District and others. In the above case the petitioners claim to have entered into an agreement of sale with
G.Badrayya and G.Sankarayya who are the sons of Dattupali Nagayya the original owner of the land extentof 29 gundras 40 sq yards in S.No 1825 of
Siddipeta Town on 20.10.1990. The vendors of the petitioner filed writ 3164 / 1991 for mandamus to direct the respondents to initiate the land acquisition proceedings for payment of compensation amount and that as already executed the agreement of sale and colluded with Municipality they are taking interest in the said litigation, a reference resolution passed the municipality in the year 1953 and case No.91/1953 is made to show that the 13 land was private property belongs the vendors of the petitioner under alleged agreement of sale on 30.12.1996 the municipality passed resolution to construct the commercial complex and that the same is constructed the third party right will creep in. Wherein it is held agreement holder cannot have better title or right than his vendor under agreement of sale. The facts and circumstances are different to the case on hand. Here in the case when there was no transfer of title from alleged plaintiff to D.1, how Ex.B.2 was issued by the alleged Tahsildar in favour of D1 my mentioning column-15 as Swantham.
Further the learned counsel for the plaintiff relied upon a decision 2008(1)
ALT 101 wherein it is held that mutation in the name in the revenue record can be made in cases of absolute right title by registered sale deed or in consequence of a decree of in civil case due to succession not based in mere agreement of sale.
30.As contended mutation of names in revenue records only be made in case of absolute transfer of title by registered sale deed not based on mere un registered agreement of sale, which also clearly raises a doubt on Ex.B.2.
Hence in the circumstances stated presumption cannot be raised with regard to Ex.B.2 as contended by the defendants.
31 The defendants contended that he purchased the plaint schedule property under agreement of sale dt.09.03.2001 from the plaintiff and possession also delivered to him on Kotham Amavasya since then he is in possession and enjoyment of the same. The plaintiff contended that he never executed alleged Ex.B.1 in favour of D1 and denied the signature on it. In this aspect the lower court observed that the burden on the defendant to prove the execution of Ex.B.1 and the defendant failed to take steps to send Ex.B1 to hand writing expert to discharge his burden. The learned counsel for the appellant argued that lower has wrongly placed burden on defendant and it is plaintiff who has prove the alleged signature of plaintiff on Ex.B.1 that it do not belongs to him, which contentions is not tenable as per Sec.101 of
Evidence Act a person who assert has to prove, herein the case the 14 defendant is relying on Ex.B.1 agreement of sale stating that the plaintiff executed same in favour of defendant but the plaintiff denied the same in such circumstances the initial burden on the defendant to discharge the same as he is relying on the said document and if he is able to discharge the same then it shifts to plaintiff. Here, the defendant examined DW4 attestor of
Ex.B.1 who during the cross examination stated the signature in his chief affidavit and his alleged signature on Ex.B.1 are varied. Further he categorically sated he used put his signature as in his chief affidavit. DW3 also stated that there is difference of alleged signature of DW4 on EX.B1 and his evidence affidavit. Further the defendants depose that a suit for specific performance filed against the plaintiff and is pending before court and in that suit the defendant i.e., the plaintiff in the suit sending the document to expert, so the burden on the plaintiff it may be true when the initial burden on the plaintiff in that suit is discharged. But here in the case the initial burden as stated above is on the defendants. Further no such court proceedings filed into the court to know under what circumstances the plaintiff i.e, defendant in that suit sending the document to the expert, except his oral say. Hence in those circumstances to prove his contention the defendant have to send Ex.B.1 to the expert. But he did not taken any steps as rightly observed by lower court. Hence, fails to discharge his burden of prima facie the execution of Ex.B.1.
32.Further the counsel for the respondent/plaintiff contended that alleged
Ex.B.1 was written on two stamp papers having purchased on different dates and one year prior the alleged transaction and created Ex.B.1 to grab the plaint schedule property in collusion with attestors and scribe. Usually the stamp papers would be purchased on the same day or a day prior to the transaction, but in this case the alleged stamp papers of Ex.B.1 are purchased on different dates of previous years which gives raise a doubt on its authenticity. The learned counsel for the appellant argued that the plaintiff executed Ex.B.1 in favour of D1 in the presence of attestors and scribe and 15 he received advance sale consideration of Rs.1,70,000/- for total consideration of Rs.2,55,000/- and agreed to handed over the scheduled property on Kotha amavasya, after completion of term of lease and executed
Ex.B.1 on stamp papers purchased on two different dates of previous years prior to the date of Ex.B.1 cannot doubt, the genuinity of the documents. In this aspect the learned counsel for the defendant relied upon a decision
Thirvenkata Pillai Vs. Navaneetha Ammal and another 19.02.2008. The fact of that case are plaintiff agreed to sell the property to defendant No.1 under agreement of sale dt. 05.03.1998 for Rs.3,000/- and received
Rs.2,000/- as advance with agreed to executed reg. Sale deed on receiving balance consideration of Rs.1,000 within three months and possession was also delivered to him. Later on issuing notice D1 denied the agreement and he executed nominal sale in regard to property to D2. Respondents No.1 contented that it is concoted and forged document and respondent No.2 contended he is bona fide purchaser. In that case the Hon’ble apex court observed – agreement of sale execution two stamps papers of different dates. The Indian Stamps Act 1899 nowhere prescribe any expiry date for the use of a stamp papers. Sec.54 a person Possess a stamp papers for which he has no immediate use (which is not spoiled and rendered unfit or useless) can seek refund of the value thereof by surrendering such stamps papers to the collector provided it was purchased with a period of six months, next preceding the date on which it was surrendered. Sec.54 does not require the person who purchased a stamp papers to use it within six months. Therefore there is no impediment for stamp papers purchased more than six months prior to proposed date of execution being used for document. No other rule was brought to our notice in absence of any rule requiring consequentially number of stamp papers purchased on the same day being used for instrument which is not intended to be registered. A document cannot be termed as in valid merely because it is written on two stamp papers purchased by the same person on different date even assuming that use of 16 such stamp papers is an irregularity the court can only being the document to be not properly stamped but cant only on that ground hold the document in valid. Here in the case on hand, Ex.B.1 is executed on two stamps one stamp was purchased on 05.03.1998 in the name of Velaga Nagarajamma (plaintiff) and the 2nd stamp paper purchased on 06.09.1999 from one stamp vendor of Upmaka village, the alleged transaction under Ex.B.1 was on 09.03.2001, in view of above observation of the Hon’ble Apex court in the decision there is no impediment for stamp papers purchased more than six months prior to proposed date of execution being used for a document in absence of any rule and in such circumstances the document can’t termed in valid. In view of the discussion above here the burden on the defendant to prove the genuineness of Ex.B.1 transaction as pointed out the defendant failed to prima facie to prove the execution of Ex.B.1 document. Here it is not case whether the defendant proves his case or not. It is the plaintiff who has to proves his case on her own strength as discussed above the plaintiff examined herself as PW1 and examining farm servant as PW2 and marking
Ex.A.1 to A7 to prove her possession over the schedule property. Here the defendant failed to place better evidence than that of plaintiff. Hence in the circumstances Exs.A.8 to A.10 also carries weight in favour of the case of the plaintiff.
33Further the contention of the defendant is plaintiff filed the third affidavit and obtained temporary injunction and those persons names are not correct and their signatures not present in the affidavits and also those person not examined. So, adverse inference to be drawn. Further PW1 examined PW2 but the same is not stated in his pleading that she got cultivated the plaint schedule property through PW2 and any amount of evidence without pleadings not be considerel and plaintiff not came to the court with clearn hands and relied on a decision reported in ALT 1998 (6)
758 between Namuduri Atchyutaramaiah Vs. Osuri Gangadharam
(died) and others. In the above case, the plaintiff/respondent is owner of 17 the suit property and he leased out to the defendants under agreement dt.
21.12.1967 for 5 years towards rent defendants had to delivery 35,000/- coconuts for year in three installments i., month of April, August and
December in default to pay the value of coconut at prevailing market rate on due date, with interest and the plaintiff filed ATP case 21/1973 before tenancy tribunal for eviction on ground defendants committed default in payment of rents and after enquiry eviction of defendants was ordered and against the said order defendant/Tenant prefer an appeal TA No.2 of 1974
before the Appellant authority i.e., Sub-Collector, Meanwhile plaintiff filed EP
1 of 1972 in ATT 21 of 1974 and obtained possession of suit property.
Subsequently the appeal before the Sub-Collector allowed by setting aside order of eviction passed by Tahsildar, and remand petition for fresh disposal and further order possession of land should be restored to the tenant.
Defendant tenant filed petition 3 of 1976 for redelivery of land and Tahsildar ordered revenue inspector to take possession and handed over the same to tenant. Plaintiff filed writ 3288 of 1976 challenging the order in I.A. 3 of 1976 in ATT 21 of 1973, before Tahsildar and also filed another writ 3881 of 1976 challenging order passed by the Sub-Collector allowing the appeal TA No. 2 of 1974 and remand the petition for fresh disposal and order possession of land to be restored to the tenant and the both writs are dismissed by the Hon’ble court. Subsequently plaintiff filed present suit in O.S. 84 of 1977 for permanent injunction against the defendant/tenant and the trial court decreed the suit and defendant/ tenant prefer an appeal before lower appellant court which confirming the finding of the trial court and dismissed the appeal and defendants/tenants filed 2nd appeal before the Hon’ble court.
Wherein the Hon’ble court observed that the plaintiff filed suit only after dismissal of the writ petitions and on coming to know of the observation of the Hon’ble court in the writ order quoted that the Tahsildar is bound to re- delivery the suit property to the tenant. Thus, the plaintiff filed suit and sought for permanent injunction to circumvent the orders of the lawful 18 authority i.e., Sub-Collector Rajahmundry as confirmed by the Hon’ble court in the writ petition. Further the plaintiff has taken law into his hands as per the report of Tahsildar and thereafter, tried to obtain the equitable relief of injunction from the court and plaintiff not come to the court with clean hands.
The above facts and circumstances in that case are different to the case on hand. Hence, not squarely applied.
34.Here the plaintiff contended that one person by name Baburao was died and another person Srinivas was residing elsewhere, hence he fail to examine them. Further it is not the case that plaintiff leased out her land when that is so non mentioning of the name of PW.2 in pleading do not affect the case of plaintiff. Here the plaintiff as liberty to examine any person as witness in support of his case and non examination of third party cannot be give raise to an adverse inference as contended by the defendants. Here, the defendants did not file any record into the court to establish the same. PW1 examined her farms servant as PW2 to prove her title, possession over the schedule property. PW2 also categorically deposed that he is working as farms servant of plaintiff since six years and in the property there are coconut and cashew nut trees and plaintiff marked Exs.A6 & A7 seven photographs showing the tope and Well. Dw5 depose that Pw2 house situated towards east of schedule property and stated PW2 present in Ex.A7 photo. DW1 to DW3 also depose that coconut mango cashew nut topes are there in disputed property. DW3also stated that the person present in photo is PW2 and the property therein is disputed property. The presence of coconut tree cashew nut trees and well in the schedule property is not in dispute. DW1 during cross examination categorically deposed that the usufructs have receiving by the plaintiff and he do not know who is taking usufructs of coconut and cashew nut trees from the plaint schedule property till today which clearly strengthen the case of the plaintiff that she in possession and enjoyment of the schedule property.
19 35.In view of above discussion that the appellant/defendant failed to establish prima facie execution of Ex.B.1 and possession over the plaint schedule property and the lower court rightly came to conclusion that the plaintiff/respondent establish their possession and enjoyment of the schedule property. Hence, the Judgment and decree dt. 11.06.2013 in
O.S.127/2007 on the file of Prl. Junior Civil Judge’s Court, Yellamanchili
warrants no interference holds good.
36.In the result, this appeal is dismissed, no costs.
Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court on this the 3rd day of February, 2021.
Sd/- M.Sankar Rao
Senior Civil Judge
Yellamanchilli
APPENDIX OF EVIDENCE
NIL
Sd/- M.Sankar Rao
Senior Civil Judge
Yellamanchilli