Sri N.Malyadri B.Sc., LL.M.
Spl. Judge For SC And ST, Rajamahendravaram
PDJ Court Complex ,Rajahmundry · East Godavari · Andhra Pradesh
Sri N.Malyadri B.Sc., LL.M., Spl. Judge For SC And ST, Rajamahendravaram, is posted at PDJ Court Complex ,Rajahmundry, East Godavari, Andhra Pradesh, India. 1,187 court orders on record since 2015. 16 judgments with full text available. Primarily handles CRLMP, MVOP, OS cases.
Featured Judgments
1
In The COURT OF The SPECIAL JUDGE For Trial Of Cases Under S.Cs & S.Ts
(POA) ACT – Cum - X Addl. District & Sessions Judge, East Godavari At Rajahmundry
PRESENT: SRI N.MALYADRI
Special Judge, SCs & STs Court – cum -
X Addl. District Judge. Monday, the 13th day of February, 2017
APPEAL SUIT No. 31 OF 2013
Between:
Madda Venkata Rao .. Appellant/Defendant
And
Siddabathula Naga Mani .. Respondent/Plaintiff
On appeal against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S. No.651 of 2007.
between:
Siddabathula Naga Mani .. Plaintiff
And
Madda Venkata Rao .. Defendant
This appeal is coming on 01.09.2015 for final hearing before me in the presence of Sri B.S.Srinivasu, Advocate for Appellant/defendant and Sri S.Kumar, Advocate for Respondent/Plaintiff and the matter having stood over for consideration till this day this court delivered the following:
JUDGMENT
This appeal is filed against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S.
No. 651 of 2007.
2 The suit in O.S. No.651 of 2007 is filed by the plaintiff against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties 2 from the date of suit till the date of handing over of possession and for costs of the suit.
3 The brief and relevant facts pleaded in the plaint presented under
Section 26 and Order VII Rule 1 of Civil Procedure Code are as follows:
a)Plaintiff is the daughter and only issue of Madda Nookayya and his wife
Madda Bodemma and that plaintiff’s father madda Nookayya died intestate in the year 1996 and her mother also died intestate in the year 2001 and that the plaint schedule properties are the absolute properties of the father of plaintiff i.e., Madda Nookayya and Madda
Nookayya had three brothers 1) Madda Surayya, 2) Madda Suibbayya (father of defendant) and 3) Madda Gopayya. Except Subbayya all other brothers died. Madda nookayya got Item Nos. 1,2 and 6 of the plaint schedule properties in oral partition with his brothers and he was also issued Pattadar Pass book and title deed book for item Nos.
1,2 and 6 of plaint schedule properties. The plaintiff is having custody of the title deed book and the defendant is having custody of the pattadar pass book and that the plaintiff is filing the title deed books as Annexures 1 and 2.
b)Item No.3 of the plaint schedule property was given as gift to Madda
Nookayya under a registered gift deed dated 09.02.1987 by Madda
Gangamma wife of Surayya and that the Madda Nookayya accepted the gift and had been in possession and enjoyment of the same till his death and there after plaintiff and her mother were in possession till the death of plaintiff’s mother and thereafter plaintiff is in possession and enjoyment of the same and that the Madda Nookayya was not issued pattadar passbook or title deed for this item and the original gift deed dated 09.02.1987 is filed as Annexure No.III.
3
c)Item No. 4 of the plaint schedule property was purchased by late
Madda nookayya under registered sale deed dated 02.02.1971 and in the said sale deed the extent was shown as Ac 1.00 cents on ground, but it is Ac 1.06 cents and the original sale deed is filed as Annexure
IV. Item No.4 was also shown in Pattadar pass book and title deed i.e., Annexure No.1.
d)Item No.5 of plaint schedule originally belonged to Madda Surayya and brother of Madda Nookayya who purchased it under registered sale deed dated 20.02.1971 and that after his demise, of his wife
Gangamma sold it to plaintiff in the year 1992 for Rs.40,000/- and received consideration and handed over possession of the land and also the original sale deed dated 20.02.1971 in favour of Madda
Suryya and plaintiff has been in possession and enjoyment of the same ever since.
e)The plaintiff due to illiteracy did not obtain registered sale deed from
Madda Gangamma, however, even otherwise the plaintiff has been in continous uninterrupted possession over since 1992 openly to the knowledge of the entire world and perfected her title by presumption.
The said sale deed dated 20.02.1971 in favour of Madda Surayya is filed as Annexure No.IV.
f)The defendant is the son of Subbayya who is the younger brother of
Nookayya and after death of her mother the plaintiff has been in possession and enjoyment of the plaint schedule properties as absolute owner and since no taxes are being collected, no taxes are being paid.
g)The defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 4 2005 and was pretending to be managing the item Nos. 1 and 2 of plaint schedule properties on behalf of the plaintiff.
h)About 4 months ago, when the plaintiff wanted to apply for loan in
S.C. corporation for erecting a bore well the defendant objected for the same and started making a false claim that he is the adopted son of
Madda Nookayya and that all the plaint schedule properties exclusively belong to him, keeping the plaintiff under the belief that he is managing the properties and taking advantage of plaintiff’s illiteracy and innocence and on the pretext that he will get the name of the plaintiff mutated in revenue records he took custody of the pattadar passbooks standing in the name of Madda Nookayya in respect of Item
Nos. 1,2,4 and 6 of plaint schedule properties.
i)The defendant taking advantage of his influence with local revenue authorities has been pressurizing the plaintiff through them to part with Item Nos. 3 to 6 of plaint schedule properties and giving out threats to the plaintiff through them and the defendant has absolutely no right, title or interest in the plaint schedule property and the plaintiff demanded the defendant to hand over possession of Item Nos.
1 and 2 of plaint schedule properties, but he refused to do so on the other hand he has been threatening to interfere with the plaintiff’s possession and enjoyment of the plaint schedule property under the guise of a false claim that he is the adoptive son of late Madda
Nookayya.
j)The plaintiff came to know that the defendant is trying manipulate some documents to buttress his false claim in collusion with the
Revenue Officials and the defendant always remained as son of
Subbayya and in the old voters list and ration card his father’s name mentioned as Subbayya only.
5
k)In the year 1991, the father of the defendant sold his property under registered sale deed dated 10.04.1991 and the defendant signed as a witness where in his father’s name is shown as Subbayya and thus there is a irrefutable documentary evidence to show that the defendant was never adopted by Madda Nookayya. The certified extract of the sale deed dated 10.04.1991 is filed as Annexure No.IV.
l)In view of the litigious stand taken by the defendant the plaintiff is advised to seek for a declaration that she is the absolute owner of the plaint schedule property and for possession of Item Nos. 1 and 2 of plaint schedule properties and for permanent injunction restraining the defendant his men, agents and successors in interest from interfering with the plaintiff’s possession and enjoyment of the Item Nos. 3 to 6 of plaint schedule properties and the plaintiff issued a legal notice dated 22.10.2007 calling upon the defendant to handover vacant possession of Item Nos. 1 and 2 of plaint schedule properties and the defendant having received the legal notice did not comply to reply and the office copy of the legal notice is filed as Annexure No.III and the acknowledgement due is filed as Annexure No. VIII. Items Nos. 1 and 2 will fetch an income of Rs. 15,000/- per acre per annum after expenses and the defendant is bound to pay the same to the plaintiff.
Hence, the plaintiff prays to decree the suit with costs as prayed for.
4. The defendant filed written statement and the brief and relevant facts pleaded in it are as follows:
a)The defendant refuted the plaint allegations by claiming as not true and correct. The plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties.
b)The defendant is the adoptive son of Madda Nookayya i.e., father of the plaintiff and grew up in the house of Madda Nookayya and there is 6 overwhelming documentary evidence i.e., legal heir certificate, voters list, sugar card and election identification card to establish that he has been shown as the son of Madda Nookayya.
c)Madda Nookayya executed his last will and testatement on 01.10.1996 bequeathing an extent of Ac 0.50 cents in Srikrishnapatnam village in
R.S.No. 391/2B and Ac 1.06 cents in Srikrishnapatnam village in R.S.
No. 390 and an extent of Ac 0.43 cents in R.S.No. 2/2J in
G.Yerrampalem Village in favour of the plaintiff herein while giving an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village an extent of Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties which are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned he has no claim over the same.
d) The defendant never interfered in respect of other items of the plaint schedule properties and he has no claim over the same. Hence, the defendant prays that the suit may dismissed in so far as item Nos.
1 and 2 of the plaint schedule properties are concerned with costs.
5. Basing on the above pleadings, the following issues are settled for trial
before the Trial Court:
1.Whether the defendant is the adopted son of Madda Nookayya and whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
7
2.Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule property?
3.Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule?
4.Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule from the defendant?
5.To what relief?
6. During the course of trial, the plaintiff got examined P.Ws. 1 to 4 and got marked Exs.A1 to A9, while the defendant examined D.Ws. 1 to 6 and got marked Exs.B1 to B11 and Ex.X1 to X3.
7. After conducting due trial, the trial court decreed with suit with costs declaring that the plaintiff is the absolute owner of the Item No.1 and 2 of plaint schedule property and for delivery of vacant possession of the same within three months and also granted injunction restraining the defendant to interfere with the peaceful possession and enjoyment of the plaint schedule property of item Nos. 3 to 6. The plaintiff can claim the damages by filing separate petition.
8. As against the said decree and judgment in O.S. No. 651 of 2007, the defendant filed the present appeal and presented memorandum of appeal under Section 98, Order 41 Rule 1 C.P.C. The brief and relevant facts pleaded in the grounds of appeal are as follows:
a)The Decree and Judgment of the trial court is contrary to law, weight of evidence and probabilities.
b)The defendant did not have free and fair trial before trial court for the following reasons
1)That the evidence and written arguments submitted by the defendant are not considered.
8
2)The plaintiff though admitted as P.W.1 in cross as follows:
“It is true, that I have executed a settlement deed in respect of
Item Nos. 1 and 2 in favour of my daughter on 18.10.2007”, but the suit was presented only 20.11.2007 nearly one month after losing title over item Nos. 1 and 2, yet the trial court declared the title over item Nos 1 and 2 in favour of the plaintiff and ordered delivery.
3)The plaintiff P.W.1 proclaimed the result of the suit at least one month prior to the result.
4)The trial court heard arguments on 06.02.2013, but pronounced the Judgment only 14.03.2013 the long delay in pronouncing the judgment always sends wrong signals as to Judgment to the society.
c)The trial court did not follow the principles that in a suit of declaration of title, the plaintiff has to stand or fall on the strength of the case of the plaintiff, but not on the strength or weakness of the case of the defendant so the trial should have decided issue
Nos. 2 to 5 by recording findings on them independently considering the evidence and written arguments of the both sides.
d)The trial court without consideration of the oral and documentary evidence basing on the contention of the plaintiff’s counsel, without any legal basis, adopted it, which clearly establish the total prejudice caused to the defendant.
e)The trial court willfully omitted to decide Issue No.2, though, in the written arguments, there is submission in detailed manner in respect of the same.
f)The trial court ought to have seen that in the suit involving declaration, injunction and recovery of possession, since the plaintiff sought for relief of declaration and for recovery of 9 possession of Item Nos. 1 and 2, the trial court should have recorded finding fact how plaintiff established her title to item Nos.
1 and 2 before granting relief of declaration of title and recovery of possession.
g)The trial court should have seen that P.W.1 admitted that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007 i.e., one month prior to filing of the present suit, thus when plaintiff herself admitted that she had no title to item Nos. 1 and 2 granting of declaration of title and injunction to item Nos. 1 and 2 is contrary to (2009) 4 ALT 727 and hence, the finding of the trial court on issue No. 2 that the plaintiff is entitled to declaration and recovery of item Nos. 1 and 2 are liable to be set aside.
h)The trial court should have seen that the item Nos. 3 to 6 of the plaint schedule property, the plaintiff sought for declaration of title and for injunction. Even for granting such relief of establishing title is mandatory and the plaintiff as P.W.1 admitted as follows:
“We applied for the M.R.O. for issuing legal heir certificate of her mother”. “It is true to suggest that M.R.O. issued legal heir certificate as myself and defendant are the legal heirs of my mother” but the defendant produce Ex.B2 legal heir certificate showing plaintiff and defendant as children of late Bodamma w/o.Nookaiah and that the plaintiff did not dispute Ex.B2 in cross examination by defendant since Ex.B2 was issued by competent statutory authority as per joint application of plaintiff and defendant so the plaintiff could not establish prima facie case, her absolute title to seek declaration.
i)The trial court should have seen that when P.W.1 admitted that herself and defendant jointly applied to M.R.O., for legal heir 10 certificate after Ex.B2 certificate was issued, that the plaintiff is not competent to take different stand before Civil Court or statutory authority etc. Thus, the plaintiff is not prima facie entitled to seek for declaration of her title.
j)The trial court should have seen that the trial court’s finding of fact on issue No.1 is not only merely abuse of process of law but also failure of justice.
i)The plaintiff did not dispute the Will either in the plaint or by filing better pleadings as required under Order 6 Rule 4 of
C.P.C., to the contentions raised in the written statement which will have material value and that in any case, the parties cannot let in evidence beyond pleadings and the plaintiff having not filed better pleadings as required under
Order 6 Rule 4 of C.PL.C. cannot challenge the Will vide (1981) 2 A.P.L.J. 62.
k)The trial court should have seen that defendant examined, D.W.2 and D.W.3 the attestor of the Ex.B3 who spoke to details of “Due execution” and so the defendant proved execution of Ex.B1, particularly in the absence of objection regarding Will raised by the plaintiff thus proved execution of the Will beyond reasonable doubt.
l)The trial court should have seen that P.W.1 has admitted in cross- examination of P.W.1 as follows:
“I am coming to know that the defendant filed will along with written statement. He did not ask my advocate as to defence set up by the defendant in the written statement. I have not filed any rejoinder regarding the will executed by my father disputing the
Will. I know the said will alleged to have executed by my father for the last two years. I did not place the dispute in respect of the said 11
Will before elders after coming to know about the Will”. Thus the plaintiff never attempted to dispute the Will.
m)The trial court should have seen that only a person who is either the beneficiary or aggrieved alone can dispute the documents and since the plaintiff does not answer the description i.e., neither aggrieved party nor beneficiary, so she is not competent to dispute the same.
n)The trial court should have seen that the evidence of P.W.4 and
Ex.X1 to X5 are all neither relvant nor establish any fact in view of following admission of P.W.1 “My father was a thumb marker my mother had no bank accounts. I have documents containing thumb marks of my father such as pass book”.
But, the plaintiff did not send any document containing admitted or proved thumb mark of late Nookaiah for comparison to Expert but
P.W.4 compared the thumb marks on Will Ex.B3 with some documents thumb marks on the documents which are not proved or admitted, so the comparison has no basis so Ex.X1 to X5 are liable to be rejected.
o)The trial court failed to appreciate the evidence of D.W.1 to D.W.6 coupled with 11 years undisputed enjoyment of the properties covered by Will all establish circumstantially the will, so the finding that will is not proved is not correct and such finding is liable to be set aside.
p)The trial court finding on adoption is abuse of process of law for the following reasons.
i)Exs. B1, B4, B2, Ex.B9 to B11 documents categorically establish
Nookaiah as father of the defendant and that the defendant also examined his natural mother and witnesses whose 12 evidence in substance cannot be brushed aside and that the adoption is disputed more 30 years after it occurred so presumption of adoption available
q)Therefore, upon grounds urged above and upon grounds that may be urged at the time of hearing of the appeal, the appellant prays to allow the appeal and set aside the decree and judgment passed in O.S. No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s
Court, Rajahmundry dated 14.03.0213 with costs throughout and to dismiss the with costs.
10. During the course of enquiry in the appeal, on behalf of the
Appellant/defendant, D.W.1 is recalled and examined and Ex.B12 and
Ex.B13, which are Settlement deed dated 18.10.2007 from the respondent in favour of the son of Raja Sekhar, and Settlement deed dated 18.10.2007 from the respondent in favour of her daughter M.Atchayamma respectively are marked. As per the memo filed by the appellant and recorded the appellant given up the paras 3 to 5 in the chief affidavit. On behalf of the respondent / plaintiff, P.W.1, is recalled and P.Ws. 5 and 6 are examined
Exs.A10 to A13 are marked which are, Regd. Gift cancellation Deed dated 07.04.2014, Regd. Gift Cancellation deed dated 07.04.2014, original gift deed dated 18.10.2007 executed by P.W.1 in favour of Siddabathula
Rajasekhar and Original gift deed dated 18.10.2007 executed by P.W.1 in favour of Marre Atchiyamma respectively.
11. a) For the sake of brevity and convenience here in after the parties and evidence will be referred as referred in the judgment in O.S.
No.651/2007 on the file of I Addl. Senior Civil Judge's Court, Rajahmunedry
dated 14.03.2013.
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The 13
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
12. a) The learned counsel for the appellant/defendant submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
(b) The learned counsel for the defendant submits that unless the plaintiff establishes her own title to the property and succeeds, but the plaintiff cannot succeed on the weakness of the defendant’s case.
(c) The learned counsel for the defendant submits that the plaintiff has to establish her superior title to plaint schedule properties.
(d) The learned counsel for the defendant submits that as per Section 34 of Specific Relief Act a person is entitled for Declaration of right or title if that person possesses the same.
(e) The learned counsel for the defendant submits that as admitted by
P.W.1 since plaintiff did not dispute the Will executed by her father and also the adoption by specifically pleading the same or by filing rejoinder after the written statement filed by the defendant, framing of Issue No.1 does not arise and the defendant has proved the Will executed by his father and also adoption of him by his father.
(f) The learned counsel for the defendant submits that as the plaintiff admittedly did not dispute either of the aspects covered by Issue No.1, but the trial court framed the said issue in respect of undisputed facts and as the issue cannot be framed with respect of undisputed facts, the two aspects are liable to be deleted and if the are not deleted also, both the aspects covered by Issue No.1 are not relevant for deciding the plaintiff’s case as the same 14 can be considered only when plaintiff established primafacie case of absolute title to property.
(g) The learned counsel for the defendant submits that the evidence of
D.W.1 coupled with the contents in Exs.B1 and B2 and since M.R.O. as per
Section 4 of Pattadar Passbook Act being statutory authority can issue legal heir certificate after conducting inquiry under Section 5 A of the said Act and plaintiff did not dispute Ex.B2 legal heir certificate by filing appeal and
M.R.O. issued proceedings under Ex.B8 after appeal time is over and plaintiff also as P.W.1 admitted and accepted the receipt of Ex.B8 proceedings and nothing contra is elicited in the cross-examination of D.W1, the defendant has proved that he is adopted by his father who is natural father of P.W.1.
(h) The learned counsel for the defendant submits that as the plaintiff admitted Ex.B2 and did not challenge it by filing any appeal within time, cannot change her stand and say that the defendant is not the legal heir of
Nookaiah as it amounts playing fraud on public authority i.e., Court or operate as estoppel against the plaintiff and thereby the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of
Nookaiah and, as such, the case of the plaintiff that she is the absolute owner of the schedule property as sole heir of Nookaiah is failed.
(i) The learned counsel for the defendant submits that the adjudication by M.R.O. by following the procedure in 5A inquiry cannot be challenged in
Civil Court and, as such, in view of Ex.B2, the plaintiff’s absolute title over item Nos. 1 to 5 of schedule properties stood disproved.
(j) The learned counsel for the defendant submits that the proceedings under Exs.B2 and B8 are in the nature of decree in Specific Relief Act and is binding on the plaintiff or parties to those proceedings.
15
(k) The learned counsel for the defendant submits that the moment
Exs.B2 and adoption are accepted, the plaintiff has no absolute right or title to plaint schedule properties, and the plaintiff and the defendant are co owners and, as such, at the most the plaintiff may be entitled to relief of partition in view of proviso to Section 34 of Specific Relief Act.
(l) The learned counsel for the defendant submits that in view of Ex.B3
Will executed by late Nookaiah the common owner of the plaint schedule properties, so the defendant cannot be disturbed under any circumstances.
(m) The learned counsel for the defendant submits that as the defendant set up oral adoption, generally the burden would be upon the defendant, but, in the present case, since the defendant produced Ex.B2 coupled with the admissions of P.W.1 that both the plaintiff and defendant are jontly applied for legal heir certificate and in view of the fact that nothing contra is elicited in the cross-examination of D.W.1 in respect of the both the aspects covered in the first issue, it is created a special circumstance in favour of the defendant and created a presumption of relationship of father and son in between the defendant and late Nookaiah.
(n) The learned counsel for the defendant submits that in view of the evidence of natural mother of defendant as D.W.4 and the fact of late
Nookaiah’s conduct and joining of the defendant in school as shown in Ex.B1 and the contents of Ex.B3 Will would clearly establish the adoption of defendant.
(o) The learned counsel for the defendant submits that as per Ex.B10 recitals by paternal aunt descrbining the defendant as son of late Nookaiah and Exs.B9 and B4 Government records describing the defendant as son of
Nookaiah, clearly shows that the defendant has been treated by one and all including the deceased Nookaiah as his son vide Ex.B3 would establish adoption beyond reasonable doubt.
16
(p) The learned counsel for the defendant submits that when the legal heir ship of parties through a common ancestor was not disputed before statutory authority then adoption of such legal heir cannot be challenged
before Civil Court and it is matter of public policy to continue same stand
and thus, Ex.B3 legal heir certificate of defendant and plaintiff as heirs of
Nookaiah was accepted both parties as well as M.R.O. concerned, so this aspect of legal heir ship was only consequence of adoption, so the plaintiff cannot challenge the same and that thus, the defendant heir ship to
Nookaiah as his adopted son is not challenged and so the issue of defendant’s adoption has to be decided in favour of the defendant and against the plaintiff.
(q) The learned counsel for the defendant submits that defendant is claiming possession and enjoyment of plaint schedule properties in pursuance of Ex.B3 in his own right from December, 1996 i.e., from the date of death of late Nookaiah and admittedly he is in possession of Item Nos.1 and 2 of plaint schedule properties.
(r) The learned counsel for the defendant submits that the present suit came to be filed after completion of 11 years and during progress of 12 th year since the plaintiff admits possession of defendant over item Nos. 1 and 2 since past 4 to 5 years prior to suit, the defendant is in settled and uninterrupted possession over item Nos. 1 and 2 of plaint schedule properties and, as such, in view of Section 114 (d) of I.E. Act, the defendant is presumed to be in continuous possession from December, 1996 i.e., past 16 years in the plaint schedule property and thus the plaintiff cannot dispute
Will dated 01.10.1996 now i.e., after 11 long years and the plaintiff’s right, if any to challenge Ex.B3 Will be, within in three years from the date of it’s execution i.e., from 01.10.1996 and so the plaintiff cannot challenge the
Ex.B3 Will.
17
(s) The learned counsel for the defendant submits that P.W.1 admitted in her cross-examination catergorically that she came to know about Ex.B3
Will after filing of written statement, but she did not dispute Ex.B3 Will and the same is sufficient that Section 68 of I.E. Act is not required to be complied with.
(t) The learned counsel for the defendant submits that even otherwise the plaintiff is neither aggreieved party nor executant of the Will since the plaintiff is 3rd party, that she cannot challenge Will so the defendant need not examine the attestors, but however, the defendant examined two attestors as D.Ws. 2 and 3.
(u) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will.
(v) The learned counsel for the defendant submits that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support such report and that a part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison.
(w) The learned counsel for the defendant submits that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses.
(x) The learned counsel for the defendant submits that the Expert’s opinion is hearsay evidene and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a definite science and can be relied upon.
(y) The learned counsel for the defendant submits that the rights claimed by defendant in the suit are to be adjudicated in a properly 18 constituted suit and so Issue No.1 has to be deleted and even otherwise, both adoption and Will are proved by oral evidence of D.Ws 1 to 4, circumstantial evidence and by production of Ex.B1 to B11.
(z) The learned counsel for the defendant submits that as the adoption is 50 years back, the principles of ancient adoption have to be applied.
Z a) The learned counsel for the defendant submits that the defendant is the adopted son of Nookaiah and Item Nos 1 to 5 are the exclusive properties of Nookaiah and Item No.6 is a joint family property and defendant has proved by placing the evidence in the trial court and also the
additional evidence in pursuance of allowing of I.A. No. 201 of 2014
permitting to place additional evidence by examining D.W.1 and marking of
Ex.B12 and Ex.B13 that Plaintiff transferred her interest in respect of Item
Nos. 1 & 2 and 4 and 6 of plaint schedule properties.
Z b) The learned counsel for the defendant submits the plaintiff transferred her interest in items No.2 and 6 of plaint schedule properties under settlement deed dt: 18-0-2007 doc.no: 6867/2007 in favour of Raja
Sekhar and that the suit was presented by plaintiff/respondent on 20-11- 2007 i.e., nearly 32 days after transfer and the same is proved through the evidence of P.W.1 and P.Ws.5 to 6 and also additional evidence placed by the appellant in pursuance of the Orders in I.A. No. 583 of 2014 under Exs.
A10 to A13 marked through P.W.1 by placing additional evidence.
Z c) The learned counsel for the defendant submits that as defendant placed evidence proving Exs.B12 and B13 which are gift deeds, they establish that the plaintiff did not possess any right title and interest in the plaint schedule properties as on the date of suit i.e., 20-11-2007.
Z d) The learned counsel for the defendant submits that the plaintiff has to establish her title to get a relief of declaration and relief of declaration cannot be granted on the weakness of defendant’s case and plaintiff has to 19 be non suited” and due to the same, Issue No.2 has to be decided in favour of the defendant.
Z e) The learned counsel for the defendant submits that the parties are governed by the rights which accrue to them on the date of institution of the suit and as such, since the plaintiff is claiming that her title is restored back to her in view of Ex.A12 and Ex.A13 and so she was not having title on the date of institution of suit and, as such, the plaintiff is not entitled for declaration as prayed for and, as such, she is not entitled for recovery of
Item Nos. 1 and 2 of plaint schedule properties and so Issue No.3 may be decided in favour of the defendant.
Z f) The learned counsel for the defendant submits that plaintiff has to establish both title and possession over plaint schedule properties then only the defendant’s contention or case is to be adjudicated.
Z g) The learned counsel for the defendant submits that the plaintiff claimed ownership as heir of deceased Nookaiah, the plaintiff’s case is comprehensively disproved by defendant by producing Ex.B2 legal heir certificate, wherein both plaintiff and defendant were held to be heirs of late
Nookaiah and his wife, so plaintiff’s absolute title theory failed.
Z h) The learned counsel for the defendant submits that the plaintiff did not produce any reliable evidence in proof of her case and the defendant on the contrary produced Ex.B3 Will executed by the deceased Nookaiah and thus prima facie proved his title to the plaint schedule item Nos 1 to 5 and hence, the defendant miserably failed to establish her case and also failed to establish her right to relief of permanent injunction.
Z i) The learned counsel for the defendant submits that the plaintiff has failed to establish her superior title to seek injunction against the defendant, who is either co-owner or owner under Will i.e., Ex.B3 to plaint schedule 20 items and so both on the principles that the plaintiff could not establish her case or plaintiff is not entitled to relief of injunction against co-owner and so the plaintiff did not have primafacie case, balance of convenience or probable injury in the matter and hence, the plaintiff is not entitled to relief of permanent injunction as prayed for.
Z j) The learned counsel for the defendant submits that in view of
additional evidence of D.W.1 coupled with the contents in Ex.B12 and
Ex.B13 issue NO.4 may be answered in favour of the defendant.
Z k) The learned counsel for the defendant submits that out of 6 items of plaint schedule injunction is sought for with respect to items 3 to 6 only.
Point out of such 4 items, items 4 and 6 were already alienated and there was no subsisting interest to plaintiff/respondent herein in those properties and in view sec.4 1 (J) of specific relief Act plaintiff is not entitled to permanent injunction prayed for.
Z l) The learned counsel for the defendant submits that Ex.B-1 to B-11 clearly establish both title possession and relationship and so the burden is upon plaintiff/respondent to establish her absolute title to items NO.3 and 5 of the paint schedule.
Z m) The learned counsel for the defendant submits that merely because,
Issue No.1 is decided in favour of plaintiff, the approach of the trial court that suit should be decreed is not in accordance with the law and the burden is on the plaintiff to establish her case in respect of all issues.
Z n) The learned counsel for the defendant submits that framing of Issue
No.1 relating to defendant’s title is unwarranted and any conclusion arrived at on the basis of finding upon such issue vitiated entire trial and hence,
Issue No.1 is to be deleted.
21
Z o) The learned counsel for the defendant submits that after closure of defendant’s evidence, the plaintiff ingenious by examined PW.3 and PW.4 and that expert petition was also ordered subsequent to closure of defendant’s side evidence.
Z p) The learned counsel for the defendant submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW3 has to be brushed aside.
Z q) The learned counsel for the defendant submits that P.W.4 summoned to produce School Register of M.P.U.P.School of the year 1959, but he did not bring records and though he was not directed to give evidence yet the evidence of PW.4 recorded in chief in the absence of defendant’s counsel etc, so his evidence has no legal sanctity under law.
Z r) The learned counsel for the defendant submits that the evidence of
P.W.1 is not corroborated by any oral or documentary evidence and plaintiff miserably failed to establish title and hence, Issue No.4 may be answered in favour of the defendant.
Z s) The learned counsel for the defendant submits that generally the damages are not part of subject matter of the suit and are to be determined in a separate proceeding after suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. so deciding quantum of profits or damages by original court is contrary to law.
Z t) The learned counsel for the defendant submits that for recovery of item Nos. 1 and 2 by evicting the defendant, since just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her son and daughter, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue 22
Nos. 1 to 5 have to be decided against the plaintiff and in favour of the defendant.
Z u) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed originals of Exs.B12 and B13 and thereby, there is an admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originals of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place evidence about how she is entitled for the suit reliefs, and as such the plaintiff is not entitled for the suit reliefs.
Z v) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items, and that in Para No.2 of the written statement though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
Z w) The learned counsel for the defendant submits that the Issue No.1 is wrongly framed considering the pleadings in the written statement as defence to the claims of the plaintiff and the same has to be amended.
Z x) The learned counsel for the defendant submits that P.W.1 did not say that the thumb impressions in Exs.A1 to A2 are that of her father, but expert gave opinion basing on the thumb impression in Exs.A1 to A2 as as if they are containing admitted thumb impressions and as such, opinion of the expert cannot be relied.
23
Z y) The learned counsel for the defendant submits that even though, no application is allowed for examination of Head Master, and he is ordered only to produce documents but he is wrongly examined as a witness and hence, his evidence cannot be relied upon.
Z z) The learned counsel for the defendant submits that as the defendant proved the adoption and Will through the evidence of D.Ws. 1 to 6 and marking Ex.B1 to Ex.B13 and as the adoption is ancient, the plaintiff is not having right in the item Nos.1 to 2 plaintiff schedule properties by the debts of suit the plaintiff is not entitled for the reliefs granted by the trial court and hence, the appeal may be allowed with costs and the suit in O.S. No. 651 of 2007 may also be dismissed with costs by setting aside the decree passed in
O.S. No. 651 of 2007.
12. a) The learned counsel for the respondent/plaintiff submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
b) The learned counsel for the plaintiff submits that the burden is on the defendant in respect of Issue No.1 and he has to prove that he is the adopted son of Madda Nookayya and that by virtue of the last will and testatement dated 01.10.1996, he became entitled to Item Nos. 1 and 2 of the plaint schedule properties and therefore, the burden is on the defendant to prove these two facts.
c) The learned counsel for the plaintiff submits that admittedly, Item
Nos. 1 and 2 of plaint schedule properties are absolute properties of Madda
Nookayya and the plaintiff is the only daughter of him and the defendant failed to prove the adoption and also execution of Will dated 01.10.1996 by
Madda Nookayya and the plaintiff will be entitled to the reliefs claimed in 24 respect of Item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the plaintiff submits that the evidence of
D.W.2 is that she attended the adopted ceremony of defendant 50 years ago, but the age of the defendant is kept blank in the chief affidavit and as per the plaint, the age of the defendant was shown as 55 years, which is not disputed and so, according to D.W.2, the adoption took place about more than 70 years ago and as such, when the defendant is aged about only 55 years his adoption cannot take place even prior to his birth.
e) The learned counsel for the plaintiff submits that D.W.2 stated that there was document executed in the presence of elders on which the natural father Subbayya put his signature and handed over the same to the father of the plaintiff and therefore, the evidence of witness completely falsifies the claim of the defendant that he was adopted by Madda Nookayya and that
D.W.2 admitted that there are disputes between him and the plaintiff for the past eight years and there are no talking terms between them and the so called document said to have been executed was not produced and according to D.W.1, his adoption was oral and therefore, the evidence of
D.W.2 is not at all trustworthy to believe adoption.
f) The learned counsel for the plaintiff submits that D.W.3 is aged about 45 years stated that he attended the adoption ceremony of D.W.1 took place in about 50 years ago and, as such, her evidence is not believable and that too in the light of fact that she is native of Duppalapudi and her marriage was performed about 30 years ago and prior to her marriage, she has no acquaintance with the parties to the suit and never visited
Bhupalapatnam, which is the village of plaintiff and defendant and she also admitted the same and thus, her evidence does not inspire confidence in respect of the so called adoption.
g) The learned counsel for the plaintiff submits that D.W.4 being 25 natural mother of the defendant is an interested witness and she stated that except executing document nothing took place with regard to the adoption and the so called document executed by D.W.4 and her husband has not seen the light of the day and that she did not speak that they physically handed over the defendant into the hands of the father of the plaintiff, the most important and the only requirement for essential and valid adoption and when the witness does not speak about the same, the adoption does not stand to be proved and therefore, the evidence of D.Ws. 1 to 4 suffer from serious discrepancies and they do not prove that the defendant was given in adoption to the father of the plaintiff.
h) The learned counsel for the plaintiff submits that in view of evidence of P.W.3 Ex.B1 purported to have been given by P.W.3 is not believable and he denied completely all his signatures in Ex.B1 and stated that the stamp in it does not belong to their school and their school did not issue Ex.B1 and that their school was not even established till 1959 and only in the year 1959 the said school was established and this evidence of P.W.3 shows that the defendant fabricated and forged Ex.B1 in order to falsify the claim that he was adopted son of Madda Nookayya and the evidence of P.W.3 completely falsifies the case of the defendant that he was the adopted son of
Madda Nookayya.
i) The learned counsel for the plaintiff submits that Ex.B2 issued by
M.R.O. cannot have any probative value and cannot be taken as basis to hold that the defendant is the son of Madda Nookayya and besides, in Ex.
B2, it is specifically stated that it is only for the purpose of issuing pattadar passbook but it is not useful for the purpose of settling civil disputes or movable property disputes and therefore, this certificate has absolutely no value at all.
k) The learned counsel for the plaintiff submits that Ex.B4 is the “No 26
Due Certificate” issued by P.A.C.S. Bhupalapatnam and this is dated 07.09.2009 which is after filing of the suit and therefore no importance or probative value can be attached to this exhibit.
l) The learned counsel for the plaintiff submits that the defendant paid tax on behalf of Madda Nookayya and when the plaintiff herself is stated that she gave items 1 and 2 for management to the defendant, mere paying of tax does not prove that the defendant is the owner of Item Nos. 1 and 2 or that he is the son of Madda Nookayya.
m) The learned counsel for the plaintiff submits that Ex.B8 is the notice issued by Thasildar, Rajanagaram with regard to the disputes between the plaintiff and the defendant regarding Pattadar passbook and this document also has no evidentiary value.
n) The learned counsel for the plaintiff submits that the evidence of
D.W.5 and the contents in Ex.B4, and Ex.X1 clearly shows that father’s name of defendant is shown as Subbayya in Ex.X1 and therefore the entry in
Ex.B4 cannot have any value in the light of Ex.X1 and the defendant must have created Ex.B4 certificate after filing of the suit and that therefore, there is absolutely no document in support of the case of the defendant that he was the adopted son of Madda Nookayya.
o) The learned counsel for the plaintiff submits that as it is specifically put to D.W.1 that he was never adopted by Madda Nookayya, the argument is that there was no denial about the defendant being adopted by Madda
Nookayya has no force, thus defendant failed to prove that he was adopted by Madda Nookayya and that D.W.1 also stated that there was ration card to show that he and Madda Nookayya lived in one house, however, he failed to produce such ration card, as such, the defendant failed to prove the adoption.
p) The learned counsel for the plaintiff submits that the evidence of 27
P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Ex.A1 and A2 are no identical with the thumb impressions on Ex.B3.
q) The learned counsel for the plaintiff submits that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of
Madda Nookayya and when these exhibits are marked through P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya.
r) The learned counsel for the plaintiff submits that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparsion of finger prints.
s) The learned counsel for the plaintiff submits that the plaintiff has no filed rejoinder, but mere non-filing of rejoinder by the plaintiff does not and cannot be treated as admission of the pleas taken by the defendant in the written statement.
t) The learned counsel for the plaintiff submits that once the evidence of P.W.4 the Handwriting Expert is taken into consideration, then it is clear that the defendant fabricated the Will and pessed into service the said fabricated Will.
u) The learned counsel for the plaintiff submits that if really, Ex.B3 will was executed, there is no reason why the same was not produced before the
Tahasildar and the name of the defendant is not mutated in the revenue records in respect of Item Nos. 1 and 2 of the plaint schedule properties.
v) The learned counsel for the plaintiff submits that the evidence of 28 defendant clearly proves that, he has taken active role in execution of Ex.B3
Will, which in itself is a very suspicious circumstances surrounding the Will and also the attestor and scribe are closely related to defendant and though the Sub-Registrar is at a distance of 10 K.Ms. without any reason or explanation the Will was not registered.
w) The learned counsel for the plaintiff submits that, defendant did not issue reply notice to the notice issued by the plaintiff dated 22.10.2007 as by the date of issuing of notice, Ex.B3 was not brought into existence.
x) The learned counsel for the plaintiff submits that, Ex.B3 Will was not acted upon as D.W.1 admitted that 1st time he filed the same into the
Court and did not file it before any public officer.
y) The learned counsel for the plaintiff submits that the chief affidavit of D.W.1 shows that there is a blank with regard to the date of executing of
Will and in the chief examination and in the cross-examination he stated that
Madda Nookayya executed the Will on the 10th day of the year 1996, but he could not say the month, whereas, Ex.B3 propounded Will is dated 01.10.1996 and such the evidence of D.W.2 does not inspire confidence and on the other hand it raises serious suspicion.
z) The learned counsel for the plaintiff submits that the evidence of
D.W.3 shows that she does not know the date of execution is not believable and does not speak about the Madda Nookayya putting him thumb impression and herself witnessing the same and then she put her signature and Madda Nookayya witnessing the same as required under Section 68 of the Evidence Act and therefore, the evidence of D.Ws. 2 and 3 does not prove the execution of the Will by Madda Nookayya.
A1) The learned counsel for the plaintiff submits that the evidence of
D.W.6 is not at all helpful as he is neither scribe nor attestor of execution of
Ex.B3 Will and he has not stated what documents were prepared by Madda 29
Nookayya.
A2) The learned counsel for the plaintiff submits that the plaintiff failed to discharge his burden of proving Ex.B3 Will.
A3) The learned counsel for the plaintiff submits that as the plaintiff has proved that she is absolute owner of the plaint schedule properties, she is entitled for possession of items 1 and 2 of plaint schedule property and issue No.2 has to be held in favour of plaintiff and also she is entitled directing the defendant to handover vacant possessions of the Item Nos. 1 and 2 of the plaint schedule properties to the plaintiff.
A4) The learned counsel for the plaintiff submit that plaintiff is also entitled for grant of permanent injunction and for recovering damages @ of
Rs. 15,000/- (Rupees Fifteen Thousand only) per annum per acre in respect of Item Nos. 1 and 2 of the plaint schedule properties from the defendant.
A5) The learned counsel for the plaintiff submits that the plaintiff filed the cancellation deed dated 07.04.2014 wherein she contended that, her son and daughter did not accept the gift deeds and she cancelled the gift deeds along with her son and daughter under the cancellation deeds, dated 07.04.2014 and therefore since the gift is not accepted and the same is cancelled, she continues to be the owner of the Item Nos. 1 and 2 of the plaint schedule properties and she can maintain the suit.
A6) The learned counsel for the plaintiff submits that the evidence of
D.W.1 and P.W.1, P.Ws. 5 and 6 coupled with the contents in Exs.B12 and
Ex.B13 and Ex.A10 to Ex.A13, which is the evidence placed in the appeal, clearly proves that P.Ws. 5 and 6 did not accept the gift and the same stood cancelled under registered cancellation deed dated 07.04.2014, and the plaintiff continues to be the owner of the plaint schedule property and she is entitled to maintain the suit and therefore, the appellant cannot maintain this ground to set aside the decree and judgment of the trial court.
30
A7) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of originals of Exs.B12 and B13 gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of originals of Exs.B12 and B13.
A8) The learned counsel for the plaintiff submits that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to the originals of Exs.B12 to B13 and Ex.A10 to A11 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
A9) The learned counsel for the plaintiff submits that as D.W.1 admitted that the Pattadar Passbooks of Nookaiah is in his hands and title deed book is with the plaintiff, the expert opinion basing on the thumb impressions in the title deed books which are with the plaintiff is given basing on the admitted thumb impressions in title deeds and it is in accordance with the law.
A10) The learned counsel for the plaintiff submits that the trial court rightly after consideration of the entire evidence on record decreed the suit and there are no grounds to interfere with the decree and judgment of the trial Court and, hence, the plaintiffs prays to dismissal of the appeal with costs by confirming the decree and judgment of the trial court in O.S.
No.651 of 2007dated 14.03.2013.
13. Basing on the pleadings in the plaint and written statement and the brief and relevant grounds appeal and the contentions of the learned counsel 31 for all parties referred supra and the evidence on record the following points emerge for consideration.
1)Whether the defendant is the adopted son of Madda Nookayya?
2)Whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
3)Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties?
4)Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule
Property?
5)Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule properties from the defendant?
6)Whether there is subsisting interest to plaintiff in items 1 & 2 of plaint schedule properties ?
7)Whether the plaintiff is having absolute title to items 1 to 5 of plaint schedule properties?
8)Whether the judgment and decree of the suit in O.S.651 of 2007 on the file of 1st Addl. Senior Civil Judge’s Court, Rajahmundry required varying or modification or confirmation?
9)To what relief?
14. Points 1 to 8: These points 1 to 8 are interrelated very closely to each other. Hence in order to avoid the repetition of discussion of evidence and for the sake of brevity and convenience they are discussed in common.
15.a) The plaintiff to prove the suit claims examined herself as P.W.1 and purchaser of the land from the husband of plaintiff as P.W.2 and the Teacher in M.P.U.P.School, Bhupalapatnam in respect of Ex.B1 certificate as P.W.3 and the Finger Print Expert as P.W.4 and the son of plaintiff as P.W.5 and the daughter of plaintiff P.W.6. The defendant to disprove the suit claims examined himself as D.W.1 and the attestors of the Will Ex.B1 as D.Ws 2 and 3 and the mother of the defendant as D.W.4 and local Surveyor as 32
D.W.5 and third party scribe D.W.6.. P.W.5 and D.W.1 being the parties to the suit and P.Ws.5 and 6 being the son and daughter of plaintiff and D.W.4 being the natural mother of defendant deposed in their respective chief examinations as per the respective pleadings, claims contentions and cases of the plaintiff and defendant. The plaintiff got marked Exs A1 to A9, which are original title deed book, Original title deed book, Original gift deed
dated 09.02.1987, original sale deed dated 02.02.1971, original sale deed
dated 20.02.1971, certified copy of the sale deed, Office copy of the legal
notice dated 22.10.2007, acknowledgement and receipt dated 24.04.200 respectively and Ex.X1 to X3 which are receipt dated 24.04.2000, 3 photos and letter of Director Finger Print Bureu, Hyderabad dated 02.07.2012 respectively in the trial court and in the appellate court, Exs A10 to A13 which are Gift cancellation deed dated 07.04.2014, Gift cancellation deed dated 07.04.2014, Gift deed executed by R.W.1 in favour of Siddabathula Rajasekhar dated 18.10.2007,
Original Gift deed executed by R.W.1 in favour of Marre Atchiyamma, dated 18.10.2007 respectively.
b) The defendant got marked Exs B1 to B11, which are Certificae issued by
M.P.U.P.School Rajanagaram, Certificae issued by M.R.O. Rajanagaram, Will dated 01.10.1996, Certificate issued by P.A.C.C.S. Bhupalapatnam, Original pattadar passbook, Tax receipt, notice, certificate issued by Power Grid Corporatin limited,
dated 10.08.2007, will dated 28.02.1996 and passbook respectively in the trial
court and Exs B11 to B12 in the appellate court which are Settlement deed from the respondent in favour of her son Rajasekhar, dated 18.10.2007 and Settlement deed dated from the Respondent in favour of her daughter M.Atchiyyamma respectively.
16. The plaintiff filed the suit against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos.1and2of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3to 6 of plaint schedule properties directing the defendant and directing the defendant to pay damages of
Rs.15,000/-p.a per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit and for other reliefs. The defendant denied the claims of the 33 plaintiff by claiming that he is adopted son of Madda Nookayya and late
Madda Nookayya executed his last will dated 01.10.1996 marked as Ex.B3 and he got Item Nos. 1 and 2 of plaint schedule properties to an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village and an extent of
Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties and these items are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by
Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned his has no claim over the same. The defendant is also claiming that he never interfered in respect of other items of plaint schedule properties and he has no claim over the same and he prays for dismissal of the suit only in respect of item Nos. 1 and 2 of plaint schedule properties with costs.
17. a) The learned counsel for the defendant cited a decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational Society Vs.
P.Subhashan and another, in which the Hon’ble High Court of A.P. held at
Para No. 20 as follows:
“[20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief Act, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff
In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by 34 adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim Arif and Anr. v. Rahmatunnisa Begum and Anr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius AIR 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma Nand Puri v. Neki Puri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and Ors. 2004 SAR (Civil) 832, where the Apex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant
Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted…...”
b) The learned counsel for the defendant cited a decision reported in AIR 2014 SUPREME COURT 937 between Union of India and others Vs.
Vasavi Cooperative Housing Society Limited and others, in which the
Hon’ble Supreme Court held at Para No. 15 as follows:
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
c) The learned counsel for the defendant also cited another decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational
Soceity Vs. P.Subhashan and another, in which the Hon’ble High Court of
Judicature, Andhra Pradesh held at Para No. 20 as follows:
35 [20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief A ct, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim A rif and A nr. v. Rahmatunnisa Begum and A nr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius A I R 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma N and P uri v. N eki P uri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and O rs. 2004 SA R (Civil) 832, where the A pex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted. A s P.W.1 asserts that he is the duly elected Secretary of M/s Margadarshini Educational Society by virtue of resolution, dated 14-04-2003, he must prove that he was admitted as member of the society and thereafter he was duly elected as Secretary in accordance with the provisions of the A ct and bye- laws of the society. The burden of proof has two different things. It means sometimes that a party is required to prove the allegation before the judgment is given in his favour. Unless it is shown that he was duly elected as Secretary of the society, he cannot file any suit on behalf of the society. The burden of proof also means that on a contested issue, one of the two contesting parties has to adduce evidence. Since it is denied that Ravi A nantha was the member of the society, the initial burden lies on the plaintiff to show that he was duly inducted as member of the society as per bye- laws.
d) As per the principles laid down in the above decisions and also as countered by the warned counsel for the defendant the that burden of proof of establishing absolute title to plaint schedule item Nos. 1 to 6 is upon the plaintiff and plaintiff must succeed on the strength of her case by placing evidence and she cannot succeed on the weaknesses of the case put forwarded by the defendant.
36
18. a) Exs. B2 and B8 are marked through D.W.1. Even though, in the chief examination, Ex.B2 is described as Death Extract of late Nookaiah, but at the time of marking, it is described as certificate issued by M.R.O.
containing the date of death of Madda Bodemma. On perusal, Ex.B2 shows that it is a No Objection Certificate issued by M.R.O.. In that no objection certificate, the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Further,
Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao. Further, in
Ex.B2 it is mentioned that the same is issued for obtaining Pattadar
Passbooks only and it is not useful for civil disputes and property disputes salvation. But, the defendant has not examined any person connected to
Ex.B2.
b) The learned counsel for the defendant cited the decision reported in 2007 (1) A.L.D. 253 between Mashetty Venkatesham (died) per L.Rs Vs.
Joint Collector, Medak at Sangareddy and others, in which the Hon’ble
High Court of Judicature, Andhra Pradesh at Hyderabad held at Para Nos. 7 to 9 as follows:
7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the 37 notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
8. In Palaniappa Chettiar v. Arunasdam Chettiar 1962 AC 294, Lord Denning speaking for Judicial Committee held as under:
That he made the transfer for a fraudulent purpose, namely, to deceive the public administration into thinking that he only held 99 acres of land and his son 40 acres, whereas in truth he himself meant to hold the whole 139 acres. Once this disclosure was made by the father, the Courts were bound to take notice of it, even though the son had not pleaded it....But where the fraudulent purpose has actually been effected by means of the colourable transfer, there is no room for repentance. The father has used the transfer to achieve his deceitful end and cannot go back on it. He cannot use the process of the Courts to get the best of both worlds - to achieve his fraudulent purpose and also to get his property back. The Courts will say: 'Let the estate lie where it falls'...
9. In Raj Kishan Per shad's case (supra), after referring to Palaniappa Chettiar's case (supra), this Court held as under:
It is, however, necessary to refer to Digambar Adhar Patil v. Devram Girdhar Patil , in which the effect of proceedings under the Land Reforms Legislation and the proceedings under the Tenancy Act was considered by the Supreme Court. In that case the appellant was a tenant claiming rights under Bombay Tenancy and Agricultural Lands Act, 1948. His application under Section 32-G of the said Act before the Tenancy Tribunal praying to determine the price to be paid to the land owners for the purchase of Ac.8-26 guntas was rejected on the ground that the tenant was already holding land in excess of ceiling limit. The order of the Tenancy Tribunal was reversed by the Bombay High Court. Before the Supreme Court, there was a claim on behalf of the minor son of the tenant to an extent of Ac.7-34 guntas and the claim of the tenant's brother in whose favour there was an alleged partition under which the brother was given the same land. Reliance was placed on the statement made by the land owner before the Tenancy Tribunal as well as the documentary evidence in support of partition. The Supreme Court accepted the oral evidence of the land owner before the Tenancy Tribunal as conclusive and held that if the land which fell to the share of the brother of the tenant is excluded, the latter would be within the ceiling area entitled to purchase the land form the land owners as claimed. Accordingly, the judgment of the High Court was confirmed. The facts before the Supreme Court in that case disclose that the statement made by the land owner before the Tenancy Tribunal should be given due weight while determining the rival rights of the owner and the tenant....
....Applying the principle in Digambar Adhar case (supra), it be almost held that the Land Reforms Tribunal while determining the holding of late Hari Kishan Prasad relied on the factum of an extent of Acs. 150- 96 being in possession of the protected tenants and to that extent gave benefit to the declarant. A declarant who makes a statement and gets benefit out of such statement in getting excluded that land from his holding would not be permitted to turn around at a later stage; in 38 this case at the stage of issue of ownership certificate to the protected tenant to resile from the statement made before the Land Reforms Tribunal. The same would amount to fraud on public administration.
c) Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that as the plaintiff applied to Mandal
Revenue Officer, Rajanagaram, for issuing Ex.B2 as admitted by her in her cross-examination and she did not challenge Ex.B2 in appeal within time, she cannot change her stand and say that the defendant is not legal heir of
Nookaiah and it amounts to fraud on the public authority that is Court or operate as Estoppel. The learned counsel for the defendant also submits that the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of Nookaiah and thereby, the case of plaintiff that she is the absolute owner of the plaint schedule properties as sole heir of
Nookayya failed. In this regard, the plaintiff did not accept the adoption of defendant before revenue authorities.
d) There is no evidence placed to show that the plaintiff admitted the adoption of the defendant before the revenue authorities. In Ex.B2 it is mentioned that the same is for the purpose of issuing pattadar passbook, but not useful for the purpose of settling civil disputes or movable property disputes.
e) P.W.1 stated in her cross-examination that that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said will and he objected for the same. She also stated that she received the said notice from the M.R.O., after filing of the suit.
She also stated that she cannot file, the said notice copy since it was misplaced. She also stated that they applied to the M.R.O. for issuing legal heir certificate of her mother. In the cross-examination of her dated 11.03.2015 in the appeal, she has stated that she did not apply to M.R.O. /
Tahasildar for mutation of her name in Revenue Record for plaint schedule 39 property. She also stated that it is not true to suggest that they applied to
M.R.O. for issuance of Legal Heir Certificate after the death of her mother.
She also stated that it is not true to suggest that she admitted in her cross examination before II Addl. Senior Civil Judge, Rajahmundry that they applied to M.R.O. for issuance of legal heir certificate of her mother. She also stated that it is not true to suggest that Ex.B2 was issued by M.R.O.,
Rajanagaram that she and defendant are legal heirs to her mother,
Bodamma. She also stated that it is not true to suggest that when M.R.O.
issue dnotice for production of pattadar pass book and title deed boosk along with title deeds in the name of their father, for issuance of new pattadar and title deed books in their respective names.
f) The above facts clearly show that she denied about Ex.B2. The admission of P.W.1 is in respect of mere applying to M.R.O. for issuing legal heir certificate of her mother, but not for applying jointly to M.R.O.
Rajanagaram to issue Ex.B2. Ex.B2 is marked through D.W.1. Nothing is elicited in respect of Ex.B2 when P.W.1 was cross-examined on 06.08.2009.
Thereby, it can be safely held that the plaintiff did not admit that she applied to M.R.O., Ranagaram for issuing Ex.B2 as contended by the learned counsel for the defendant. In those facts and circumstances, the principles laid down in the decision reported in 2007 (1) A.L.D. 253 referred supra is not applicable to the facts in this suit. Hence, Ex.B2 is not of any use for the defendant to prove his claims.
g) The learned counsel for the defendant cited another decision reported in 2007 (3) A.L.T. 720 between V.Krishnaiah and others Vs.
Joint Collector, Mahabubnagar and others, in which the Hon’ble High
Court of Judicature of Andhra Pradesh at Hyderabad held at Para Nos 15 and 21 as follows:
15. The regularization of an alienation under Section 5-A of the Act, is akin to the relief of specific performance of an agreement of sale, under the 40 provisions of the Specific Relief Act . From the point of view of procedure, various hurdles, which, a plaintiff in a suit for specific performance has to face, have been removed under Section 5-A . The provisions of the Transfer of Property Act and the Registration Act are saved. However, on a close examination of the relevant provisions, it becomes evident that the relief under Section 5-A can be granted only when there is no dispute as to the execution of the document concerned. The emphasis is mostly on, verification of possession over the property, existence of a document, collection of stamp duty, and registration charges and then issuance of a certificate of regularization. This, in turn, would lead to the amendment of corresponding entries in the revenue records. The scope of inquiry is very limited. Sub-section (1) thereof presupposes the existence of an alienation or transfer made or effected otherwise than through a registered document. The focus of the enquiry is mostly to examine the date, on which the alienation has taken place and whether the alienation, or transfer contravenes the provisions of the enactments mentioned in proviso to Sub-section (2). After satisfaction on these two aspects is ensured, the Recording Authority would require the applicant to deposit of the amount, representing the stamp duty and registration fees.
21. The experience shows that, wherever the Legislature had intended to confer the power of a civil Court upon an administrative or quasi-judicial authority, or a different forum, either an independent, procedure is prescribed or the one, that applies to civil Courts is extended to them. To the extent the power of adjudication is conferred on the alternative fora, the jurisdiction of the civil Courts is taken away through specific provisions of law. This becomes necessary because the jurisdiction of a civil Court is comprehensive. Further, the exclusion of jurisdiction of the civil Courts would depend upon the efficacy of the remedy that can be granted by the alternative forum. If the matter is examined on the touchstone of these principles, it emerges that hardly any powers of a Court to adjudicate the disputes are conferred upon the Recording Authority. He cannot record evidence. He is not trained to adjudicate the disputes involving complicated questions, such as capacity to contract, succession, testamentary, or otherwise, limitation etc. Therefore, the irresistible conclusion is that the jurisdiction of the Recording Authority under the Act in relation to the regularization under Section 5-A is confined to cases, where, no dispute exists as to the execution of the document. If there is any dispute as to the execution of the document or any other contentions are raised, the dispute has, invariably to be adjudicated by a civil Court.
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that Ex.B2 cannot be challenged in civil court and the proceedings are binding on the parties and so their rights over the properties are regulated by those proceedings and as such, the plaintiff title over the item Nos. 1 to 5 stood disproved. But, in this regard, as stated earlier, in Ex.B2 it is mentioned that the same is issued for obtaining
Pattadar Passbooks only and it is not useful for civil disputes and property disputes salvation. Further the defendant has not examined any person connected to Ex.B2. Ex.B2 shows it is a no objection certificate issued by
M.R.O., and in it, it is mentioned that the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that 41 the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao.
In the light of the above facts, the defendant cannot claim, in the absence of evidence to prove that plaintiff admitted the adoption of defendant before any Revenue Authorities and that Ex.B2 cannot be challenged in this court and it has to be believed. In those facts and circumstances, the principles laid down in the above decision are not applicable to the facts in this suit.
19) In respect of Ex.B8, in the chief examination, D.W.1 stated that Ex.B8 is the tax receipt. But at the time of marking, in the evidence of D.W.1 in his chief examination it is mentioned as the notice issued by Tahasildar,
Rajanagaram. On perusal of Ex.B8, it shows that it is an urgent notice issued to Sri Siddabathula Bojjayy, Srikrishnapatnam informing him to attend inquiry on 29.10.2007 at 11.00 a.m. in respect of an inquiry as he refused to receive the notice after keeping the title deed of the lands in S.No. 02.1A to an extent of Ac. 0.71 cents and S.No. 391/2c to an extent of Ac.1.19 cents for which, Sri Modda Venkata Rao and his sister are legal heirs of Madda
Nookaiah. Nobody connected to Ex.B8 is examined by defendant. Ex.B8 is only a notice regarding the dispute between Madda Venkata Rao and his sister and even assuming that the said Madda Venkata Raju is the defendant and his sister is plaintiff and an inquiry is conducted in respect of the lands mentioned supra and a notice was issued to Siddabathula Bojjayya, but, basing on that, there is no reason how the defendant can claim that it is helpful to prove his claims in respect of item Nos. 1 and 2 of plaint schedule properties.
42 20 a) P.W.1 in her cross-examination has stated that defendant is in possession of Item Nos. 1 and 2 of plaint schedule properties. But she claimed that he is in forcible possession. She also stated that the possession of the defendant is only for the last four years, but she has no document to prove the same. She admitted and stated that they applied to M.R.O. for issuing legal heir certificate of her mother. She denied these suggestion and stated that it is not true to suggest that M.R.O. issued legal heir certificate as herself and defendant are the legal heirs of her mother. P.W.1 also stated in her cross-examination that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said Will and she objected for the same. She also stated that she received the said notice from the M.R.O. after filing of the suit. She further stated that she cannot file the said notice copy since it was misplaced.
b) The learned counsel for the plaintiff submits that as M.R.O. is being a statutory authority as per Section 4 of Pattadar Passbook Act, can issue legal heir certificate after conducting inquiry under Section 5 (a) of the Act and plaintiff did not dispute Ex.B2 by filing appeal within one year. M.R.O.,
Rajanagaram issued proceedings under Ex.B2.
c) The learned counsel for defendant also further submits that as
P.W.1 admitted that she received notice from M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property in pursuance of the said Will, that plaintiff cannot take a different and new stand before this Court. The learned counsel for the defendant cited another decision reported in 2007 (1) A.L.T. 253 between Mashetty
Venkatesham (died) per L.Rs Vs. Joint Collector, Medak at
Sangareddy and others, in which the Hon’ble High Court of A.P. held at
Para Nos. 7 and 10 as follows:
43 “7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
10. As noticed, the deceased-first petitioner claimed the property to be joint family property and did not demour when l/4th share was computed to his share in land ceiling proceedings. His legal heirs cannot now be permitted to take a different stand before the authorities under RoR Act. The first respondent, therefore, came to the correct conclusions and there is no infirmity or misdirection in placing reliance on the certified copy of the order passed by the LRT.”
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that plaintiff is prevented from changing or taking different stand from the stand already taken before statutory authority or before Judicial Authority and Ex.B2 and Ex.B8 proceedings are statutory in nature and they cannot challenged in Civil court and the same are binding on the plaintiff or parties to the said proceedings.
c) The evidence of P.W.1 does not show that she has accepted the adoption before the Revenue Authorities. If that is so, there is no force in the contention of the learned counsel for the defendant that plaintiff has admitted about adoption in view of Exs. B2 and B8 and so, she cannot challenge the adoption before this Court. Unless and until the defendant proves that the plaintiff admitted the adoption before the Revenue
Autorities, the defendant cannot claim that the plaintiff cannot challenge the 44 adoption of the defendant in this court. In view that basing on the Exs. B2 and B8, the defendant cannot claim that the M.R.O. after conducting due inquiry issued Exs. B2 and B8 and plaintiff has obtained benefits from the
Statutory authority and she is not entitled to take different stand in this court. Hence, there is no force in the contention of the learned counsel for the defendant that because Ex.B2 is not challenged by filing of an appeal within a period of one year, the plaintiff cannot challenge here and say that the defendant is not the legal heir of Nookaiah as there is no evidence placed by the defendant to show that the plaintiff has admitted that the defendant is an adopted son of late Nookaiah, before Revenue Authorities.
21 a) The evidence of P.W.1 and D.W.1 clearly prove that Item Nos. 1 and 2 of plaint schedule properties are the absolute properties of Madda
Nooaiah and the plaintiff is the daughter of Madda Nookaiah It is the defendant, who is claiming that he is adopted son of late Madda Nookaiah and Madda Nookaiah has executed the Will dated 01.10.1996, which is marked as Ex.B3. The defendant is claiming that he was adopted by the
Madda Nookaiah and his wife about 50 years and he is living with Madda
Nookaiah till the date of death of Madda Nookaiah.
b) D.Ws.2 and 3 corroborated the evidence of D.W.1 in their chief examinations regarding adoption of defendant by late Nookaiah. In the cross-examination, D.W.2 stated that that the adoption ceremony was performed in the house of father of plaintiff, in the presence of three elders and the defendant was handed over by his natural father to the father of the plaintiff through his hands. He further stated that Vyshanva Purohit of their caste was called and he chanted mantras. He also stated that no invitation cards were printed for the adoption ceremony of the defendant . He also stated that a document was executed in the presence of elders, on which,
Subbayya put his signature and handed over to the father of the plaintiff. He 45 also stated that he cannot say the year of said adoption, but it was held more than 70 years back. He also stated that he never went to the school to verify records to find out whether the defendant was admitted by the father of the plaintiff. He also stated that he saw the papers pertaining to loan obtained by the defendant and father of plaintiff but he canot say the description of those documents. He further stated that no documents pertaining to partition of property between Nookayya, plaintiff and defendant was scribed by Karanam. He also stated that himself, defendant Issa Koti
Seshamma (D.W.3) and Gummadi Srinu attested the Will of Nookaiah in the year 1996 on the 10th, but he cannot say the month. He further stated that he studied upto 5th call. He also stated that he cannot say date of his marriage. He also stated that as he saw the above incident the year of Will is remained in his memory, therefore, he is unable to recollect the said year.
He also stated that the Will was executed at 10.00 a.m. He further stated that he does not know whether the said Will is registered or not. He also stated that nearly one hour is taken for completion of the Will. He further stated that after the execution of the Will it remained with Nookaiah and he did not see it again. He further stated that Abbulu scribed the Will in their presence. He further stated that he does not know the contents of the said
Will. He further stated that after completion of the scribing of the Will the above referred four persons put their signatures. He further stated that they handed over the Will to Nookaiah. He also stated that that is all taken place in their presence.
c) In the chief affidavit of D.W.2, only the month and year of the Will are mentioned, but not the date of the Will. In the chief affidavit of D.W.1, the age of D.W.1 is not mentioned. D.W.1 was cross-examined on 13.04.2010 before the Court and at that time, he stated that his age is 60 years. But, the defendant’s age is shown as 55 years in the plaint. The alleged adoption according to D.W.2 as stated earlier was taken place about 46 more than 70 years ago. Further, the evidence of D.W.2 that a document was also executed in the presence of elders on which Subbayya, the natural father of defendant put his signature and handed over the same to the father of the plaintiff clearly prove that the claim of the defendant that he was adopted by Madda Nookaiah, is not believable since no document is filed to prove the same and, on the other hand, the adoption claimed by D.W.1 is oral and there is no document executed at the time of adoption. D.W.2 admitted that his house and the house of plaintiff are situated side by side.
He also admitted and stated that it is true that the used water being discharged from the house of plaintiff flows in front of his house. He denied the suggestion and stated that he has no talking terms with the plaintiff for the last 8 years as used water discharged from the house of plaintiff is flowing infront of his house. But, the admission of D.W.2 about flowing of discharge water from the house of plaintiff in front of his house shows that
D.W.2 is interested witness and that is the reason why even though he cannot describe the documents pertaining to the loan obtained by the defendant and father of the plaintiff has stated that he saw the papers.
Further, he stated that he did not verify the school records to find out whether the defendant was admitted by the father of the plaintiff. These facts shows clearly stated earlier that the evidence of D.W.2 is the case of the defendant.
d) D.W.3 stated that her age is 45 years. In the cross-examination, she has stated that her marriage was performed 30 years back. She also stated that prior to her marriage she has no acquaintance with the parties to the suit and she never visited Bhupalapatnam. She also stated in her chief examination that she attended the adoption ceremony of defendant, which took place about 50 years ago as claimed by the defendant. Thereby, it can be safely held in the light of the evidence of D.W.3 that she could not have 47 possibility to attend the alleged adoption ceremony and hence, her evidence is also does not in spire the confidence to the so called adoption.
22 a) D.W.4 is the natural mother of D.W.1. She stated in her cross- examination that the defendant was given in adoption to the father of the plaintiff and he took him in adoption and a document was executed by him and her husband and gave it to the father of the plaintiff. She also stated that by executing a document by her and her husband, they sent the defendant to the house of the father of the plaintiff that was all happened and that is mentioned by adoption. She also stated that the defendant did not join with her husband by selling the property. She also stated that she does not know in which school the defendant studied. She also stated that the defendant brought her to Court. In the light of the above statements of
D.W.4 and as the D.W.4 is the natural mother of the defendant and the documents stated to have been executed is not filed into the court, it can be safely held that the evidence of D.W.4 is not believable.
b) The learned counsel for the plaintiff submits that D.W.4 did not speak about physically handing over of the defendant into the hands of the father of the plaintiff, which is most important and the only requirement for essential and valid adoption. In this regard, D.W.4 stated in her chief affidavit that herself and her husband delivered minor Venkata Rao to
Nookaiah and his wife Bodemma at the time of adoption, ceremony took place and their purohit performed puja and that therafter, we had a feast.
In the light of the said fact there no force in the contention of the learned counsel for the plaintiff that P.W.4 did not speak physical handing over the defendant into the hands of the father of the plaintiff, but as stated earlier, the evidence of D.W.4 is not inspiring the confidence as the documents stated to have been executed by herself and her husband are not filed into 48 the court and further, on the other hand, the claim of the defendant is that it is an oral adoption.
23. a) In respect of Ex.B3 Will dated 01.10.1996 apart from the fact that
D.W.2 attestor is an interested witness and D.W.3 whose marriage was performed about 30 years back has stated that adoption ceremony took place about 60 years ago and thereby, herself attending the alleged adoption is not believable and D.W.4 is interested witness being natural mother of the defendant, the plaintiff has taken steps for sending Ex.B3 will to hand writing expert to compare it with the admitted thumb impression of Madda
Nookayya available on Exs.A1 and A2 which are the title deed books in respect of item Nos. 1 and 4 of plaint schedule properties and 2 and 6 of plaint schedule properties respectively.
b) The hand-writing expert, P.W.4 compared the thumb impressions in Exs.A1 and A2 with the thumb impressions in Ex.A3 and gave his opinion that the thumb impressions of Exs.A1 and A2 are not identical with the thumb impressions in Ex.B3. His opinion is marked as Ex.X2 and covering letter is marked as Ex.X3.
c) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will and that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support the report and that part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison and that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses and that the
Expert’s opinion is hearsay evidence and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a 49 definite science and can be relied upon. The learned counsel for the defendant also submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW4 has to be brushed aside.
d) On the other hand, the learned counsel for the plaintiff submits that the evidence of P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Exs.A1 and
A2 are not identical with the thumb impressions on Ex.B3 and that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of Madda Nookayya and when these exhibits are marked through
P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda
Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya and that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparison of finger prints if any.
e) The learned counsel for the defendant cited a decision reported in 1983 Crl.L.J. 858 between State of Rajasthan Vs. Dr. J.P.Sharma and others, in which the Hon’ble High Court of Rajasthan held at para No.17
17. It is the duty of the prosecution to prove that the specimen writings are of the accused and only then the question can arise as to whether the opinion of the handwriting expert who compared the specimen writings with the writing on the questioned documents that they are of the same person, should be relied upon or not.
As per the principles laid down in the above decision cited by the learned counsel for the defendant and in the light of the rival contentions, the evidence of P.W.4 Hand Writing Expert has to be considered and before that it has to be seen whether thumb impressions on Exs.A1 and A2 are that 50 of Madda Nookayya. As the said thumb impressions are taken as basis for comparison in thumb impressions in Ex.B3 Will. Exs.A1 and A2 are marked through P.W.1. Nothing contra is elicited in the cross-examination of P.W1.
to prove that the thumb impressions on Exs.A1 and A2 are not that of
Madda Nookayya. It is not even suggested to P.W.1 that the thumb impressions on Exs.A1 and A2 are not that of Madda Nookayya. Exs.A1 and
A2 are issued by Mandal Revenue Officer, Rajanagaram to late Madda
Nookayya. No evidence is placed by the defendant to prove that thumb impressions in Exs.A1 and A2 are not that of Madda Nookayya. D.W.1 also not stated that the thumb impressions in Exs.A1 and A2 are not that of
Madda Nookayya. In those facts and circumstances, as Exs.A1 and A2
Pattadar passbooks were issued by Mandal Revenue Officer, Ranagaram in the name of Madda Nookayya, it can be safely held that the thumb impressions in Exs.A1 and A2 are that of late Madda Nookayya. Thereby, there is no force in the contention of learned counsel for the defendant that the thumb impression in Exs.A1 and A2 are not admitted thumb impressions of the Madda Nookayya. In the light of the said fact, the evidence of P.W.4 has to be considered.
d) P.W.4 in his chief examination stated that he has got taken photographs of the disputed and admitted thumb impressions in his presence through the photographer, Finger Print Bureau, Hyderabad. He also stated that he examined the clarity and compared the disputed thumb impression with the admitted thumb impression and found that 1) the admitted thumb impression marked “ is smudged and not clear and wanting in clear ridge characteristic required for he purpose of establishing identity.
Hence, the admitted thumb impression marked A is unfit for comparison. 2)
The disputed thumb impression marked D is not identical with the admitted thumb impression marked Ex.A-1 of Madda Nookayya. He also stated that the opinion C.No.91/U4/F.P.B. C.I.D./2012 along with three photo copies are 51 now marked as Ex.X1. He also stated that the covering letter dated 02.07.2012 of their office is now marked as Ex.A2.
In the cross-examination he stated that they compared disputed thumb impressions with standard thumb impression and they gave their opinion. He also stated that it is true he did not mention about comparison of disputed thumb impression with that of standard impression. He also stated that according to him there is nothing standard thumb impression, so they have not used the word standard impression is his report. He further stated that it is true they have not mentioned size, shape, width. He also state that it is true in circumstances like peeling of skin of the thumb impression due to certain skin diseases (permanent) or other extreme circumstances the chance of obtaining clear impressions is not possible. He also stated that he did not mention in his report about two thumb impressions A and A1 are that one person or not since he found that A1 is unfit for comparison. He also stated that he is unable to say with his experience whether A, A1 belongs to same person or not.
The above facts stated by p.W.4 in his chief and cross-examination clearly prove that though, he has not used the standard thumb impression in his report and not mentioned the shape, width and other measurements of both A,A1 and D Thumb impressions as stated by him, mentioning the same or those particulars for comparison of the thumb impressions or not necessary that the opinion and evidence of expert P.W.4 can be relied upon.
e) The defendant has not placed any evidence to prove that there is any peeling of skin of thumb due to certain skin diseases or other extreme circumstances, due to which, there were no chances of obtaining clear thumb impressions. In those facts and circumstances, it can be safely held that the evidence of P.W.4 is believable, which shows that the thumb impression in Ex.B3 will is not that of the late Madda Nookayya.
52
24. a) The Hon’ble Supreme Court, in the decision cited by he learned counsel for the plaintiff in AIR 1979 Supreme Court 1708 between Jaspal
Singh Vs. State of Punjab and Jindra and another Vs. State of Punjab, in which the Hon’ble Supreme Court held at Para No. 8 as follows:
8. Learned Counsel for the appellants also relied on the evidence of Dr. Mohinder Partap PW. 1, who has stated that the deceased had reached the hospital on 4.8.71 at 2 a.m. Although the injured was speaking same thing his statement could not be recorded. On the other hand, the witness recorded the statement of the mother Tej Kaur who seems to have given a different version and suggested that her son Bhupinder Singh deceased had an injury on his abdomen which was caused by the falling of a bag containing wheat on his stomach. The thumb impression of Tej Kaur was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaur. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr.K.S. Puri clearly demonstrates that the thumb impression on the statement Exh.P B was not that of Tej Kaur but was of some other woman who appears to have falsely represented to the Doctor that she was the mother of the deceased. This is supported not only by the fact that the thumb impression of Tej Kaur on the statement of P.B was forged but also by the categorical statement of PW 6 wherein she denied having made any such statement before the Doctor. The Doctor although examined as a witnessess in court was never made to identify Tej Kaur who was also one of the witnesses, nor was any application given by the accused that the Dr should be called upon to identify Tej Kaur, PW. 6 in order to test the validity of the statement that it was really Tej Kaur who made the statement Exh P.B. before the Doctor. In these circumstances, therefore, the evidence of the Doctor does not appear to be of any assistance to the defence.
Basing on the principles laid down in the above decision, the learned counsel for the plaintiff submits that identifying thumb impression is an exact science and does not admit any mistake or doubt.
b) In this regard, the learned counsel for the defendant cited another decision reported in 2011 (5) A.L.D. P.5, in which the Hon’ble High Court held at para Nos.36 as follows:
36. …… Further the learned trial Court failed to consider the fact that DW- 5, the finger print expert stated in his evidence that the thumb mark of the first Defendant found on first page of Ex.A-1 is only identical with that of his admitted thumb mark but the other thumb marks were not fit for comparison for want of clear cut ridge characteristics. Even the science relating to the comparison of finger prints is not perfect science and in our view the learned trial Court gave undue emphasis to the opinion expressed by DW-5 finger print expert …….
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that the opinion of the expert is 53 secondary evidence and it will not supersede the primary evidence of direct witnesses.
c) The learned counsel for the defendant also submits that the Hon’ble
Supreme Court in the decision reported in AIR 1971 S.C. 1708 referred supra has not laid any principle that expert is opinion on thumb mark is distinct science and can be relied upon. But, it has recorded the contention of the appellant’s counsel in Para No.8 of the said judgment, but on careful consideration of the decision reported in AIR 1979 S.C. 1708, referred supra it can be safely held that the said principle is not the contention of the learned counsel for the appellants in that decision, but it is the observation or principle held by the Hon’ble Supreme court that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. In those facts and circumstances, as per the principles laid down in the decision reported in AIR 1979 S.C. 1708, referred supra and also as even the evidence of D.Ws. 2 to 4 out of which, the defendant is claiming that defendants 2 and 3 are eyewitnesses being attestors is also not believable, it can be safely held even by consideration of the principles laid down in the above decision reported in 2011 (5) A.L.D. page 4 supra, that the defendant miserably failed to prove that the thumb impression in Ex.B3 is that of the late Madda Nookayya. On the other hand, the plaintiff through the evidence of expert as P.W.4 coupled with the contents in Exs.X1 and X2 and the evidence of D.Ws. 2 to 3 proved that thumb impression in Ex.B3 is not that of Madda Nookayya. Further, as contended by the learned counsel for the plaintiff, if really, Ex.B3 will was executed by late Madda Nookayya, there was nothing preventing the defendant from mutating his name in respect of item Nos. 1 and 2 of plaint schedule properties in the revenue records.
54
d) D.W.1 in the cross-examination stated that Pattadar Passbooks of
Madda Nookayya is in his hands and title deed book is with the plaintiff. He also stated that as per the Will, Ex.B3 Nookaiah bequeathed item Nos. 1 and 2 of schedule property in his favour. He also stated that as he was cultivating item Nos. 1 and 2 of schedule property he did not apply for mutation of his name in respect of item Nos. 1 and 2 in the revenue records immediately after death of Nookaiah. He also stated that after the death of his wife of Nookaiah in the year 2004 he applied in the year 2005 for mutation. He also stated that for the first time he filed Ex.B3 will in the
Court and prior to that he did not file the will before any public Officer as there were no disputes. He also stated that when he asked the plaintiff to give the revenue title deed book for mutation, though she agreed to give the said book but she postponed the matter and later got issued a notice. He also stated that Ex.A8 acknowledgement contains his signature.
The above facts stated by D.W.1 clearly prove that he never produced the Will before the Tahasildar at the time of requesting mutation of his name, in respect of item Nos. 1 and 2 of plaint schedule properties.
e) D.w.1 has stated in his cross-examination that he was present at the time of execution of the Will Ex.B3 without seeing the document. He also stated that the said Will was executed two months prior to the death of
Nookaiah at the house of Nookaiah. He also stated that the at the time of execution of the said Will Nookaiah was moving around. He also stated that
Rajanagaram is nearly 10 k.m.from Bhoopalapatnam. He further stated that there is a sub-registrar office at Rajanagaram. He also stated that
Registration of documents with regard to alienation or purchase of properties of Bhoopalapatnam are made at the sub-registrar Office at Rajanagaram. He also stated that the plaintiff herein and her mother Boddemma were also present at the time of execution of the Ex.B3 Will. He further stated that out 55 of trust between himself and Nookaiah, he did not get the Will Ex.B3 registered. He further stated that K.Abbulu scribe of Ex.B3 Will is not a document writer. He also stated that all the three attestors are resident of
Bhoopalapatnam. He also stated that the Will Ex.B3 was executed at 10.00 a.m. He further stated that he brought all the three attestors for the purpose of attesting the Will. He also stated that he went and brought the scribe
Abbulu for scribing Ex.B3 Will. He further stated that all the documents including pattadar passbook and title deed book were available with
Nookaiah by the date of execution of Ex.B3 Will. He further stated that passbook and documents were referred for scribing Ex.B3. He also stated that four days after execution of the Will Nookaiah handed over the will
Ex.B3 and pass book and title deed pertaining to Yerrampalem property and similarly the pass book and title deed pertaining to Srikrishnapatnam, Tuni.
He also stated that Yesubabu is his natural younger brother. He also stated that Vissakoti Seshamma is the mother-in-law of son of Yesubabu. He also stated Gummadi Srinu is his nephew i.e., son of his natural younger sister.
He also stated that Beera Subba Rao is he husband of Bodemma’s sister. He also stated that K.Abbulu is the younger brother of his wife.
f) The above facts stated by D.W.1 clearly prove that the defendant has taken active role personally in securing the attestors and scribe for execution of Ex.A1 and all of them are closely related to him as Yesubabu is his natural younger brother, Vissakoti Seshamma is the mother-in-law of son of Yesubabu, Gummadi Srinu is his nephew i.e., son of his natural younger sister and Beera Subbarao is the husband of Boddemma’s sister and thereby all the three attestors are closely related to him and further scribe
K.Abbulu is the younger brother of his wife. These facts in the light of the fact that defendant did not choose to give any reply notice when the plaintiff got issued legal notice dated 22.10.2007 under Ex.A7, after receipt of the same under Ex.A8 and also admittedly he did not file Ex.B3 before 56 any Public Officers clearly prove that Ex.B3 is surrounded by suspicious circumstances and as held by the trial court, the defendant miserably failed to prove the execution of Ex.B3 will by late Madda Nookaiah bequeathing item Nos. 1 and 2 suit schedule properties to defendant.
g) In the decision reported in 2012 (4) A.L.D. 618 between
T.Bheem Reddy and another Vs. P.Laxmi Bai and others, in which the
Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision, in the present case , merely basing on the fact that the plaintiff has not filed rejoinder disputing the adoption or Will claimed by the defendant, it does not and cannot be treated as an admission of plea taken by the defendant in the written statement. In view of that, even though, the plaintiff has not filed rejoinder disputing the adoption or Will propounded by the defendant, the defendant failed to prove execution of Ex.B3 Will and adoption propounded by him.
25. a) D.W.1 stated in his cross-examination that he does not remember the year in which he was given in adoption to the Nookaiah. He further stated that he is having a ration card to show that himself and Nookaiah living in one house. He also stated that he studied up to 3rd call in
Bhoopalapatnam. He further stated that he discontinued his studies after 3rd 57 class. He further stated that Ex.B1 study certificate is obtained subsequent to the filing of the suit.
b) In respect of Ex.B1, it is purported to have been given by P.W.3.
P.W.3 categorically stated in his chief examination that “ I am working as teacher, in M.P.U.P. School, Bhupalatnam. I received summons from the
Court, in which no direction was given to us to bring any register. Our school was established on 06.05.1959. Ex.B1 is the date of Birth and tudy certificate and it does not contain his signature and the desgination stamp on Ex.B1. Ex.B1 does not belong to their school. The handwriting in ex.B1 is not my handwriding. Since last three years I am working as Head Master in the above School. Prior to that he worked as teacher in the above school for about 5 years. Total since last 8 years I am working in that school. Ex.B1 certificate is not issued by their school, since their school was established in the year 1959 the registers from 1955 to 1959 does not exist”. In the cross-examination, he has stated that presently he is working in M.P.
Elementary School, at Kovvur. He further stated that he did not bring the school record today. He further stated that he does not know the contents of the court summons served on him, but when he came to Court, to know for what purpose he was summoned by the court, his evidence is recorded by the court. He further stated at the relevant time the school was not in existence. He further stated that his name is K.Ugandhar Varma and he volunteers and stated that he did not issue Ex.B1. He further stated that the writing and signature in Ex.B1 does not belong to him. He also stated that there is no record in their school to show that when the school was established. He further stated that he did not produce any record relating to the school.
c) The above evidence of P.W.3 clearly shows that Ex.B1 was not issued by P.W.3 or his school. If really, Ex.B1 was issued by P.W.3 or 58
M.P.U.P School, Bhoopalapatnam, in which P.W.3 was working as teacher, defendant should have placed evidence in proof of the same. But, the defendant did not place any evidence to prove that Ex.B1 was issued by the
M.P.U.P. School, Bhupalapatam.
d) The learned counsel for the defendant submits that P.W.3 though summoned to produce School Register of M.P.U.P.School of the year 1959, the witness did not bring records and not directed to give evidence yet the evidence of PW.3 recorded in chief in the absence of defendants/Appellants counsel etc, so his evidence has no legal sanctity under law. In respect of this contention of the learned counsel for the defendant, even assuming that
P.W.3 was summoned only to produce documents, but not for giving evidence, but since his evidence is recorded, though the learned counsel for the defendant submits that the chief examination of P.W.3 was recorded in his absence since the defendant’s counsel conducted the cross-examination of P.W.3 merely because he was not summoned to give evidence, the defendant on whom the burden is there to prove that the contents in Ex.B1 though it is marked in the absence of evidence placed by him, cannot claim that Ex.B1 is proved. As such, in the absence of evidence of P.W.3 also, since the defendant has not placed any evidence to prove Ex.B1, it can be safely held that the defendant failed to prove Ex.B1.
26. a) D.W.1 stated that he has ration to show that himself and Nookaiah were living in one house, but no ration card is marked by the defendant.
D.W.1 got marked Ex.B4 which is the No Due Certificate issued by P.A.C.S.
Gopalapatnam, it is dated 07.09.2009. Ex.B4 is given subsequent to the filing of the suit. It does not show that defendant has any concern with the suit properties or he had taken loan from P.A.C.S., Gopalapuram in respect of Item Nos. 1 and 2 of the plaint schedule properties.
b) In respect of Ex.B4, the Executive Officer, P.A.C.S., Bhupalapatnam 59 is examined as D.W.5 and he stated in his chief examination that Ex.B4 was issued by him and the contents of the same are correct. He stated in the cross-examination that the father of the name of the defendant is shown as
Subbayya the receipt dated 24.04.2000 pertaining to the same loan transaction and the said receipt is marked as Ex.X1. He admitted in the
Cross-examination that he brought the receipt book pertaining to the year 2000 as it is also relating to the loan of the defendant though he did not bring the loan register to the Court. He stated that he did not bring loan register due to the lack of knowledge. He also stated that Ex.X1 receipt does not contain the signature of the defendant. He further stated that if the party is available they used to obtain his signature on the receipt. He further stated that every year they used to get their account and receipts audited with local fund audit. He also stated that the audit party used to put ‘√’ in the receipt book. He further stated that there is an audit report every year and it contains what are the books and receipts audited during that year. In the re-cross examination, he stated that as he was asked to bring the entire records pertaining to the loan, he brought the receipt books also.
c) The above evidence of D.W.5 shows not only the name of the defendant’s father is shown as Subbayya in Ex.X1 though the same is in the handwriting of the D.W.5 and also in Ex.X1 there is no signature of the defendant and there is no ‘√’ marks in it. Merely because ‘√’ is not there in Ex.X1, it cannot be held that Ex.X1 is created. Ex.X1 shows that Ex.B4 “No Due Certificate” which is issued after filing of the suit cannot have any importance or probative value.
27. The evidence of D.W.6 since he admitted that his license as document writer cancelled and he took treatment in Karri Rama Reddy Mental Hospital till the year 1990 and he did not scribe or attest the will of defendant, is of no use for defendant to prove his case.
60 28 D.W.1 got marked Ex.B7, which is the tax receipt dated 25.04.2010.
The payment of Sisthu is also made after the filing of the receipt. Further
Item Nos. 1 and 2 schedule properties are under the management of the defendant. Mere paying of the tax or sisth under Ex.B7, itself cannot show that the said payment is made by the defendant under the capacity of the title holder of the property.
29. a) The learned counsel for the defendant cited a decision reported in
AIR 1969 S.C. 1359 between Jaspal Singh Vs. State of Punjab, in which the
Hon’ble Supreme Court held at para No. 8 as follows:
[3] Mr. M. C. Chagla argued that in May 1904 Seshamma had not attained the age of discretion and was not competent to make the adoption. He relied on the following passage in Mulla's Principles of Hindu law, 13th Ed., Art. 465, page 491: "A minor widow may adopt in the same circumstances as an adult widow, provided she has attained the age of discretion and is able to form an independent judgment in selecting the boy to be adopted. According to Bengal writers the age of discretion is reached at the beginning of the sixteenth year; according to Benaras waters, at the end of the sixteenth year. The former view was taken in a recent Madras case." [4] Now there is no clear evidence on the question of Seshmnma's age in May 1904. The plant said that she was then 10 years of age. One of the written statements said that she was about 15 years old. Exhibit A-2 an extract from the register of deaths suggests that she was then aged about 14 years. In Ex. A-7 dated March 25, 1907, Ex. B-5 dated May 2, 1907 Ex. B- 110 dated April 25, 1909 , Ex. B-7, dated November 1, 1911, Ex. B-22 dated November 15, 1911, Exs. A-11 and A-12 dated November 17, 1911, she was described as a minor. But Ex. B-138 dated August 9, 1910 described her as a major. The evidence of DW 2 suggests that she was about 15 years old at the time of adoption. The evidence of DW 3 fixes her age at about 17 years in or about 1903. Evidence was adduced to show that she married in 1898 when she was 11 or 12 years old. The appellant made no attempt to produce the certified copy of the register of births which would have shown her exact age. The adoption was made in May 1904. It was challenged in 1953 after a lapse about 50 years. The long delay in filling the suit is not satisfactorily explained. A declaratory suit challenging the adoption could have been filed soon after the adoption. Rajeswararao died in 1950, Seshamma died on October 2, 1952. During his lifetime Rajeswararao was recognised by every member of the family as the adopted son of Bhaskara Rao. He was registered as karnam and acted as such till his death. Under Ex. B-12 dated November 19, 1937 the plaintiffs mother Kamappa purchased a property from Rajeswararao wherein he was described as the adopted son of Bhaskara Rao. Having regard to the long lapse of time and the recognition of Rajeswararao as the adopted son of Bhaskara Rao, the strongest presumption arises in favour of the validity of the adoption. The law on this point is correctly stated in Mullda's Hindu Law, 13th Ed., art. 512 page 519:- "But when there is a lapse of 55 years between the adoption and its be questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained. stands to reason that after a very long term of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act the burden must rest heavily upon him who 61 challenges its validity," see also Venkataseetarama Chandra Row v. Kanchu Marthi Raju, AIR 1925 PC 201, 202. The presumption in this case is very heavy considering that all the parties to the adoption and all those who could have given evidence in favour of its validity have passed away. The appellant has not rebutted this presumption and has not shown that Seshamma did not attain the age of discretion in May 1904 and was not competent to make the adoption. The courts below rightly found infavour of the factum and validity of the adoption. There is no merit in this appeal.
b)The learned counsel for the defendant basing on the principles laid down in the above decision submits that in case of ancient adoption treatment by the family has to be taken in to consideration and the defendant has proved from the evidence of D.W.4, who is mother of defendant and also P.Ws. 1 to 3 that the defendant was always treated as adopted son of Madda Nookaiah. The principles laid down in the above decision is that once the adoption is admitted and the persons who were present at the time of adoption are not alive, there is presumption that the adoption was valid and burden is heavy on the person who has contended that the widow was a minor to prove the said fact. But, in the present case, there is no adoption of defendant. On the other hand, it is denied. The facts in the above decision are different from the facts in this suit since in that decision, adoption is admitted and contention of the opposite party is that the widow who adopted was minor by the date of adoption and in that case, the burden is heavy on the person who contended that the widow was a minor to prove said fact. But, in the present case, not only adoption is not admitted but on the other hand it is denied and defendant also failed to prove the adoption and also execution of Ex.B3 will in favour of him.
30. a) The learned counsel for the defendant cited the decision reported in 1995 (3) A.L.T. P. 372 between Narsingh Singh Vs. Smt Urmila Bai, in which the Hon’ble High Court of Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
17. It is true that the determination of lease would be in one of the modes enumerated under Section 111 sub-clauses (a) to (h) of the Transfer of Property Act . In the present case that has been done under sub-clause (h) 62 of Section 111 of the Act. In fact that has been done by the plaintiff by issuing a quit notice popularly known as 'quit notice' under Section 106 of the Transfer of Property Act as per Ex.A-1 which is replied by defendant under Ex.A-2. Since that was not challenged, there was no issue for the purpose of determination. It is significant to note that the lease or tenancy would become determinable by forfeiture under Section 111 sub-clause (g) item 2 where the lessee renounces his character as such for setting up a title in third person or by claiming title in himself. If the Court finds that the defendant or the adversary is a tenant or a lessee in law and vacates on setting up title even without a quit notice, he would be forfeiting his tenancy when he will be evicted as a matter of penalty under the said provision. Therefore, it was necessary for the learned trial Judge to first of all give a finding on the relevant issues 1 and 2 whether defendant is the tenant on the suit premises and on that even accepting that he would set up a title, that would become redundant and on that count alone he would have been evicted. Thereby defendant would be taking a serious risk if the tenancy of the lessee was established. In other words, it was totally unnecessary for the Court to find out whether defendant was in possession of the property in his own right. Merely on giving a finding that he was a tenant and the tenancy had been determined in any one of the modes permissible under law as above, there could have been a decree for the plaintiff in a case like this. The matter has not stood at this stage.
18….. Now to sum up in a suit for possession by a landlord the issue relating to defendant's title would be totally alien and unwarranted. The learned trial
Judge has adverted to it unnecessarily, has gone into such a question beyond
the scope of the suit and has gone to the extent of recording a finding against the defendant rightly or wrongly. Here it may be emphasised that by doing so, Courts would deprive the parties of their legitimate reliefs in a properly framed suit when an occasion arises. The rule of res judicata is one of such operating situations on the parties regarding their respective rights. If the plaintiff had filed a suit for declaration of title or possession based on title, etc. etc. etc., he was expected to prove only that in the absence of defendant not being a tenant and when the defendant would have resisted it with his own theory that he is the owner or that he has perfected his title by adverse possession, etc. etc. etc. By giving a finding on issue No. 4 in a suit where parties were not directed to concentrate or lead evidence on such matters fully and effectively, it would be a travesty justice and violation of principles of natural justice. In other words, by framing issue No. 4 and by dealing with the same and giving a finding, the judgment of the trial Judge becomes vitiated. Under the circumstances, this Court has a duty to delete such an issue in the light of the observations made above.
b) The learned counsel for the defendant cited the decision reported in 2013 (4) A.L.D. P. 85 (S.C.) between Narinder Singh Rao Vs.
A.V.M.Mahinder Singh Rao and others, in which the Hon’ble High Court of
Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
15. On behalf of the appellant, the submissions were made to the effect that the suit property in fact belonged to Sumitra Devi though it was in the name of Rao Gajraj Singh. The provisions of Benami Transfer (Prohibition) Act , 1988 had been referred to by the learned counsel appearing for the appellant. The question whether the suit property in fact belongs to an individual i.e. whether he is a beneficial owner or is a benami, is a question of fact. There was no averment made in the plaint with regard to the aforestated allegation. No issue to the said fact had been raised before the trial court. The said issue had been raised for the first time before the appellate court 63 and in our opinion, the issue with regard to the fact could not have been raised before the appellate court for the first time and therefore, all submissions made in relation to the provisions of Benami Transfer (Prohibition) Act , 1988 and with regard to real ownership of the suit property cannot be looked into at this stage.
c) Basing on the principles laid down in the above decisions, the learned counsel for the defendant submits that no issue regarding defendnat’s title can be framed or adjudicated merely in the absence of dispute of the title of the defendant from the plaintiff and there is travesty of justice and violation of principles of natural justice in framing he Issues. In this suit, the plaintiff is seeking for declaration that she is the absolute owner of the plaint schedule property. In order to grant or refuse the said relief, it is necessary to go into the issue of whether the defendant is the adopted son of Madda Nookaiah and the Will propounded by him is true, valid and binding in respect of item Nos. 1 and 2 of plaint schedule property.
If that is so, the defendant cannot claim that in framing the Issue Nos. 1 and 2, there is any travesty of justice and violation of natural principles of justice. These issue Nos. 1 and 2 are framed basing on the pleadings of both the parties and they are required to be considered and answered, in order to decide the disputes between the parties. Hence, basing on the principles laid down in the above decisions, the defendant cannot claim that the issue Nos. 1 and 2 are framed are wrongly framed and need not required to be framed and issue No.1 is required to be deleted.
31 a) The plaintiff has not pleaded in the plaint about plaintiff gifting the property just prior to filing of the suit on 18.10.2007 in favour of her daughter and son in respect of Item Nos. 1 to 2 of plaint schedule properties. During the course of the appeal, the evidence is placed in respect of execution of Ex.B12 and Ex.B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13.
64
b) After recalling of defendant as D.W.1, Exs.B12 and B13 are marked on. Thereafter, P.Ws. 5 and 6 are recalled and examined and through them,
Exs.A10 to A13 are marked.
c) P.W.1 stated in her cross-examination that Appellant (D.W.1) is her junior paternal uncle’s son. She further stated that she is older than him.
She further stated that prior to filing of O.S. No.651 of 2007, there were no disputes between him and D.W.1. She further stated that about 10 years back, her mother had passed away. She further stated that she did not apply to M.R.O./Tahasildar for mutation of her name in Revenue Record for plaint schedule property.
d) P.W.5 stated in his cross-examination that he knows the facts in his chief examination affidavit. He further stated that he knows facts in Ex.A10.
He further stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled.
e) P.W.6 stated in her cross-examination that she knows the facts in her chief examination affidavit. She also stated she was not delivered possession of plaint schedule property by P.W.1. She also stated that she is aware of recitals in Ex.A11. She further stated that she and her mother voluntarily and conscious of contents therein had entered into execution of
Ex.A11. She also stated that it is true in Ex.A11, it was recited that since terms and conditions in the Gift deed were not implemented, the gift deed was mutually cancelled. She further stated that the defendant (appellant) is her junior material grandfather’s son. She also stated that she does not know if legal heir certificate was issued by M.R.O. showing as P.W.1 and defendant as L.Rs of deceased Bodamma.
f) The evidence of P.W.1 and P.Ws. 5 and 6 is that the gift deeds under Exs.A10 and A11 are not acted upon and they were subsequently 65 cancelled under Ex.A12 and A13, but the defendant is claiming that in view of execution of Ex.A11 and A12, the plaintiff is not having any title in respect of item Nos. 1 to 2 of schedule properties covered under Ex.A11 and A12 and the subsequent cancellation under Exs.A12 and A13 is not much use for the plaintiff to prove that she has got any right in respect of items Nos. 1 and 2 of plaint schedule property and she had no cause of action by the date of filing of the suit in respect of those properties, which are in possession and enjoyment of the defendant.
32 a) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of
Exs.B12 and B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of Exs.B12 and B13 and that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to Exs.A10 to A13 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
b) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed the original of Exs.B12 and B13 and thereby, there is admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originally of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place 66 evidence about how she is entitled for the suit reliefs, and hence the plaintiff is not entitled for the suit reliefs.
c) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the defendant submits that Exs.B.12 and
B.13 shows that the possession is delivered and title is conveyed to P.Ws.5 and 6 and due to that section 91 and 92 of The Indian Evidence Act, 1872 comes into play and no oral evidence contrary to the same shall be admitted though the defendant is not a party to the same, since the plaintiff is claiming the reliefs based on those documents without pleading about them.
e) The learned counsel for the defendant submits that the plaintiff is claiming the relief for recovery of item Nos. 1 and 2 by evicting the defendant, but just prior to filing of the suit on 20.10.2007 the plaintiff gifted the property in favour of her daughter and son on 18.10.2017 , so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue No.5 has to be decided against the plaintiff and in favour of the defendant.
33 a) The learned counsel for the plaintiff cited the decision reported in
Bondar Singh and Others Vs. Nihal Singh and others, reported in (2003) 4 Supreme Court Cases 161, in which the Hon’ble Supreme
Court held at para No.7 as follows:
67
7. As regards the plea of sub tenancy (shikmi) argued on behalf of the defendants by their learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub tenancy (shikmi) the defendants cannot be allowed to build up a case of sub tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point.
b) The learned counsel for the plaintiff also cited another decision reported in 2012 (4) A.L.D. 618 between T.Bheem Reddy and another
Vs. P.Laxmi Bai and others, in which the Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision there is no need to file rejoinder in the present suit. The defendant has not pleaded in the written statement about the execution of Exs.B12 and 13 Gift deeds by plaintiff and also subsequently cancellation of the said gift deeds under
Exs.A1 and A13. But, the defendant has placed evidence in respect of execution of Exs.B12 and B13. The plaintiff has not filed any rejoinder after filing of the written statement by the defendant. As stated earlier there is no need to file rejoinder. But, the plaintiff is claiming that in view of the evidence of P.Ws. 5 and 6 that they did not accept the gift deeds under originals of Exs. B12 and B13 by the plaintiff and same are stood cancelled in view of execution of Exs.A10 and A11. The plaintiff is claiming that the terms and conditions in the gift deeds under originals of Exs.B12 and B13 were not implemented. Whether they were implemented or not, the plaintiff 68 has not pleaded about execution of originals Exs.B12 and B13 which are
Exs.A12 to A13 and subsequent cancellation of them under Exs. A10 and 11 by her children P.Ws. 5 and 6. In this regard, P.W.1 in her cross- examination on 06.08.2009 only stated that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. At first she stated that she has not executed any documents pertaining to item
Nos 1 and 2 of plaint schedule properties, but later she stated about the execution of settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. Thereby, there was no pleading in the plaint nor any evidence is let in by the plaintiff in the trial court regarding Exs.A10 to
A13. It is only after defendant got marked Exs.B12 and B13 gift deeds in the appeal stage through D.W.1, the plaintiff has taken steps and got examined herself and also P.Ws. 5 and 6 and placed evidence in respect of
Exs.A10 and A13. The plaintiff has to prove her independent title over the schedule property including item Nos. 1 and 2 of plaint schedule properties by the date of suit. Unless she proves the title of item Nos. 1 and 2 of plaint schedule properties by the date of suit, she cannot claim recovery of possession of the said properties irrespective of defendant’s failure of proving the execution of the Will under Ex.B3 in his favour and also the adoption claimed by him. Admittedly, the defendant is in possession of the item Nos.1 and 2 of plaint schedule properties. That is the reason why the plaintiff filed the suit for the relief against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and also damages of Rs. 15,000/- per month per acre for item Nos. 1 and 2 of plaint schedule properties . The plaintiff is claiming that the defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 2005 and was pretending to be 69 managing the item Nos. 1 and 2 on behalf of the plaintiff. Basing on the said pleading, the plaintiff is claiming recovery of possession of the item
Nos. 1 and 2 of the plaint schedule properties.
d) Though, the defendant has pleaded about Ex.B3 Will, but failed to prove. He also pleaded that while refuting the plaint allegations by claiming as are not true and correct, the plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties. He also pleaded that so far as the other items are concerned he has no claim over the suit.
D.W.1 in the cross-examination stated that except item Nos. 1 and 2 of plaint schedule properties, he has no claim against the rest of the suit schedule properties. He also stated except item Nos. 1 and 2 of schedule properties he is not denying the title of the plaintiff over the remaining Items in the plaint schedule property.
e) In those facts and circumstances, there is no force in the contention of the learned counsel for the defendant that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
f) The suit is filed on 20.11.2007. Thereby, it can be safely held that the plaintiff just prior to filing of the suit on 20.11.2007 executed Exs.A12 and A13 on 18.10.2007. As per Exs.A12 and A13, the plaintiff gifted the properties and according to the plaintiff in favour of P.Ws. 5 and 6. But, this fact of gifting the properties is not pleaded by the plaintiff in the plaint without giving any valid reason. Further, the cancellation of Exs.A12 and
A13 by P.Ws. 5 and 6 who are the son and daughter of P.W.1 by executing 70
Exs.A10 and A11 is also not pleaded in the plaint in the plaint. Exs.A10 and
A11 are dated 07.04.2014. P.Ws. 1,5 and 6 admitted that the properties gifted which are item Nos. 1 and 2 of plaint schedule properties are in possession of defendant and there was no delivery of possession of those properties by P.W.1 to P.Ws. 5 and 6. P.W.1 admitted in her cross- examination that she took the plea in the plaint that the plaint schedule property was in her possession by the date of suit. She also stated that she has not filed documents showing her possession and enjoyment of the plaint schedule properties. Admittedly, P.Ws. 5 and 6 are not parties to the suit.
P.W.5 stated that plaint schedule property is not in her possession and enjoyment. P.W.6 also admitted that possession of the plaint schedule property was not delivered by P.W.1. P.W.6 stated that she is aware of the recitals in Ex.A11. She also stated that she and her mother voluntarily and conscious of contents therein had entered into execution of Ex.A11. she also stated that it is true in Ex.A11 it was recited that since terms and conditions in the gift were not implemented, the gift deed was mutually cancelled.
P.W.5 stated in his cross-examination that he knows the facts in Ex.A10. He also stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled. In
Exs. A10 and A11 also, it is mentioned that as Exs.A12 and A13 could not be implemented and also P.Ws. 5 and 6 are not interested and due to some unavoidable circumstances, the said documents are executed in view of agreeing of P.W.1 for taking back the property gifted to P.Ws. 5 and 6 on the request of P.Ws. 5 and 6. It is also mentioned that the said documents are executed after both parties agreed for the terms. It is also mentioned that the rights of P.Ws. 5 and 6 got under Exs.A12 and A13 stood cancelled.
But, P.Ws. 1,5 and 6 have not stated about what are the unavoidable circumstances, which are the reasons for cancellation of Exs.A12 and A13 by 71
P.Ws. 5 and 6. In those facts and circumstances, even though, the defendant has not pleaded about execution of Exs.A12 and A13 by plaintiff in the written statement, the plaintiff at the time of filing plaint, since fully aware of execution of Exs.A12 and A13 by her should have pleaded about the execution of the said documents in the plaint. If really, due to any unavoidable circumstances, Exs.A12 and A13 are not acted upon and they are cancelled by P.Ws. 5 and 6 unilaterally, without accepting by P.W.1, the said fact also should have been pleaded, but in the present case, as per the terms of Exs.A10 and A11 and evidence of P.Ws.1,5 and 6 after agreement of terms of Exs.A10 and A11 only all the parties executed them. Thereby,
P.W.1 is also aware about execution of Exs.A10 and A11 by P.Ws. 5 and 6, but the said fact is also not pleaded in the plaint. The execution of Exs.A10 to A13 by P.Ws. 1,5 and 6 is within full knowledge of plaintiff exclusively, but not within the knowledge of defendant, though they are registered documents. Having failed to plead all these facts by the plaintiff, the plaintiff cannot claim now that they need not be pleaded, because the defendant has not pleaded about the execution of Exs.A12 and A13 in the written statement.
g) The defendant is not a party to Exs.A.10 to A.13. But plaintiff has not added P.Ws.5 and 6 as parties in this suit and also not pleaded about the same. In those facts and circumstances, as per the principles laid down the above decisions and also as no evidence can be let in without pleading, the plaintiff is not entitled to place evidence in respect of Exs.A.10 to A.13 in order to prove her title on item Nos.1 and 2 of the plaint schedule properties.
h) The defendant without pleading about Exs.A12 and A13 placed evidence in respect of Exs.B12 and B13, but when the plaintiff has not pleaded about Exs.A10 to A13, the defendant even without pleading about 72
Exs.B12 and B13 which are the certified copies of Exs.A12 and A13 can place evidence in proof of acts of plaintiff about not having title in respect of item
Nos. 1 and 2 of plaint schedule properties by the date of suit as the plaintiff is claiming title in respect all the suit schedule properties by pleading in the plaint that she is the daughter of Madda Nookayya and Bodemma and as they died intestate, she got all the plaint schedule properties and she is claiming declaration of title that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit. Whereas, the defendant in the written statement pleaded that the plaintiff is not entitled for the relief of declaration that she is the absolute owner of the plaint schedule properties. He also further pleaded that he got the properties in Item Nos. 1 and 2 of plaint schedule properties, in view of the Will under Ex.B3 and he is in possession and enjoyment of the same and he is the absolute owner of the same. But, he failed to prove
Ex.B13, but it does not mean that he is not entitled to place to disprove the title of the plaintiff in respect of item Nos. 1 and 2 of plaint schedule properties, as always the defendant can plead alternative reliefs and entitled to place evidence to disprove the plaintiff’s right. In respect of events happening after institution of the suit, the basic principle is that the rights of the parties should be determined on the basis of the date of filing of the suit.
Thus where the plaintiff has no cause of action n the date of the filing of the suit, he will not ordinarily be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Similarly, no relief will be refused to the plaintiff by reason of any subsequent event if at the date of 73 the institution of the suit, he has a substantive right. As per the principles laid down in the decisions reported in AIR 1987 Supreme Court 741 between
Amarjit Singh Vs. Khatoon Quamarian and also in another decision reported in AIR 1975 SC 1409 between Pasupuleti Venkateswarlu Vs. Motor & General
Traders, and AIR 1974 SC 199 between Mahalinga Vs. Arulnandi. The right to relief must be judged to exist as on the date of suit or institute the legal proceedings. But at the same time in order to achieve substantial justice, the subsequent events in the absence of other disentitling factors or just circumstances have to be taken into consideration to meet the ends of justice. But in the present case plaintiff has not pleaded any fact relating to
Exs.A.10 to A.13 in the plaint and also the evidence in respect of these is placed by plaintiff by examining herself by recalling and also her children as
P.Ws.5 and 6 subsequent to defendant placing evidence in respect of
Exs.B.12 and 13 without any bonafide reasons for not pleading about
Exs.B.12 and B.13 even though they were executed just before filing of the suit.
34 Order 7 Rule 1 (e) of C.P.C. reads as follows:
e) The facts constituting the cause of action and when it arose;
As per the said provision, the facts constitute the cause of action and when it arose must have pleaded in the plaint. Every suit presupposes the existence of a cause of action against the defendant because if there is no cause of action the plaint will have to be rejected. Even though he expression “cause of action” has not been defined in the code, it may be described as “a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed” or “which give the plaintiff right to relief against the defendant”. Thus, “cause of action” means every fact, which it is necessary to establish to uupport a right or obtain judgment. To put it differently, cause of action gives occasion for and forms the foundation of the suit.
b) Thereby, in the present suit, unless, plaintiff proves that she has cause of action in respect of item Nos. 1 and 2 of plaint schedule properties by the date of suit and she pleaded the same in the plaint and also when the said cause of action arose, she is not entitled to claim the reliefs sought for.
74
c) The plaintiff has to prove that even though Exs.A12 and A13 are executed, the property is not divested by her and it continuous to be with her. If really, it is continued to be with her, irrespective of execution of
Exs.A12 and A13, there is no need for execution of Exs.A10 and A11. The very execution of Ex.A10 and A11 much longer to the dates of execution of
Ex.A12 and A13 since, Exs.A10 and A11 are dated 07.04.2014 and subsequently after 7 years, it clearly shows that that she has divested with the properties in item Nos. 1 and 2 which are in possession and enjoyment of 2nd defendant. So, it can be safely presumed and held that in view of that reason only Exs.A10 and A11 were executed. Further as per the principles laid down in the decisions reported in Margadarshini Educational Soceity
Vs. P.Subhashan and another, Union of India and others Vs. Vasavi
Cooperative Housing Society Limited and others (supra) in the present suit also, the burden is on the plaintiff to establish her absolute title of the plaint schedule properties, including Items Nos 1 and 2 and she must succeed on the strength of her case without depending upon the weaknesses in the case of the defendant.
d) In respect of the decision reported in 2009 (4) A.L.T. 727, (referred supra) the learned counsel for the plaintiff submits that the so called gift deeds under Exs.A12 and A13 are not acted upon due to which, the plaintiff remained the absolute owner of the plaint schedule properties.
But, the plaintiff is not able to place evidence to prove that the gift deeds are not acted upon and further, even if any evidence is placed, the same is also not useful for the plaintiff without any pleading for the same.
37 The Hon’ble High court of Madras in the decision reported in AIR 1954
Madras 84, between A.Rakkiyana Gounder Vs. Chinnu Govardan held that no evidence can be let in contra to the terms of the deed and the bar is absolute. Hence, in the present suit also, the plaintiff is not entitled to let in 75 evidence contra to Exs. A12 to A13 unless plaintiff pleads contra to Exs.A12 to A13 and then proves the same 38 In view of that, the defendant failed to prove Ex.B3 Will and title to the Item Nos.1 and 2 of plaint schedule properties, but he is admittedly in possession of the said properties. The plaintiff failed to prove that there was cause of action by the date of filing of the suit, in respect of item Nos. 1 and 2, and she is not entitled for any relief in respect of said properties, more so, declaration of title and recovery of possession and permanent injunction in respect of Item Nos. 1 and 2 of plaint schedule properties which are discretionary reliefs and can be granted only if plaintiff proves that she is bonafide though she is entitled for the reliefs prayed in the suit for other properties in view of evidence placed by plaintiff, and also as the defendant also pleaded in the written statement, as stated earlier that, so far as the other items are concerned, the defendant has no claim over the same and he never interfered in respect of other items of the plaint schedule properties and he has no claim over the said properties.
38 a) The defendant is claiming that generally the damages are not part of subject matter of the suit and are to be determined if suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. and so deciding quantum of profits or damages by original court is contrary to law and that in respect of plea for recovery of item Nos. 1 and 2 by evicting the defendant. Just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her daughter and son, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages.
b) The trial court held that the plaintiff can claim damages by filing separate petition while answering issue No.5. The plaintiff has not paid court fee for the relief of damages. The trial court observed that plaintiff has not 76 led any evidence in respect of the damages and so it cannot be granted in the suit.
c) The plaintiff claimed damages at Rs.15,000/- per annum per acre for item Nos. 1 and 2 of plaint schedule properties till the date of handing over of the possession. But, as stated earlier, the plaintiff is not entitled for any reliefs in respect of Item Nos. 1 and 2 which are not in exclusive possession and enjoyment of plaintiff. As such, the question of granting of damages or deciding the quantum of damages does not arise.
39 Plaintiff has proved that the defendant is not the son of Madda
Nookaiah and that the Will propounded by the 1st defendant said to have been executed by Madda Nookayya on 01.10.1996 is not true, valid and binding in respect of the item Nos. 1 and 2 of the plain schedule properties and that the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties except item Nos. 1 and 2 of plaint schedule properties. The plaintiff is not entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule properties. The plaintiff is also not entitled for recovery of damages at the rate of Rs.15,000/- per month per acre in respect of item Nos. 1and 2 of the plaint schedule properties from the defendant. The plaintiff proved that the plaintiff is having subsisting interest in all the plaint schedule properties except item Nos. 1 and 2 and that the plaintiff is having title to item Nos. 3 and 5 of plaint schedule properties. Hence, the judgment and decree in O.S.
No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s Court,
Rajahmundry has to be modified as plaintiff failed to prove the reliefs claimed by her in respect of item Nos. 1 and 2 of schedule properties, but the trial court granted the same as per it’s judgment. Accordingly, point
Nos. 1 to 8 are answered. Basing on the answers to Point Nos. 1 to 8, Point
No.9 is answered.
77 39 Point No.9: In the result, the appeal in A.S. No. 31 of 2013 is partly allowed. The Judgment and decree of the trial court in O.S. No. 651 of 2007
dated 14.03.2013 on the file of I Addl. Senior Civil Judge's Court,
Rajahmundry, is partly set aside in respect of the reliefs granted of declaration of the plaintiff as absolute owner of item Nos. 1 to 2 of plaint schedule properties and deliver of vacant possession of the same within three months, and also the plaintiff is entited for claiming damages by filing separate petitions. For all other reliefs the Appeal is dismissed.
Dictated to the Stenographer (Grade-II), transcribed by him, corrected
and pronounced by me in Open Court, this the 13th day of February, 2017
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For appellant
D.W.1: Madda Venkata Rao
For Respondent:
P.W.1 : Siddabathula Nagamani P.W.5 : Siddabathula Rajasekhar P.W.6 : Marre Atchiyyamma
DOCUMENTS MARKED
For Appellant:
Ex.B12/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her son P.W.5 Ex.B13/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her daughter P.W.6
For Respondent:
Ex.A10/07.04.2014 : Original of Registered cancellation of gift deed Ex.A11/07.04.2014 : Original of Registered cancellation of gift deed Ex.A12/18.10.2007 : Original of Gift deed executed by P.W.1 in favour Of P.W.5. Ex.A13/18.10.2007 : Original of gift deed executed by p.W.1 in favour Of P.W.6.
78
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
79
Add the following in Page 12 after para 11 (a) as (b)
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
1
In The COURT OF The SPECIAL JUDGE For Trial Of Cases Under S.Cs & S.Ts
(POA) ACT – Cum - X Addl. District & Sessions Judge, East Godavari At Rajahmundry
PRESENT: SRI N.MALYADRI
Special Judge, SCs & STs Court – cum -
X Addl. District Judge. Monday, the 13th day of February, 2017
APPEAL SUIT No. 31 OF 2013
Between:
Madda Venkata Rao .. Appellant/Defendant
And
Siddabathula Naga Mani .. Respondent/Plaintiff
On appeal against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S. No.651 of 2007.
between:
Siddabathula Naga Mani .. Plaintiff
And
Madda Venkata Rao .. Defendant
This appeal is coming on 01.09.2015 for final hearing before me in the presence of Sri B.S.Srinivasu, Advocate for Appellant/defendant and Sri S.Kumar, Advocate for Respondent/Plaintiff and the matter having stood over for consideration till this day this court delivered the following:
JUDGMENT
This appeal is filed against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S.
No. 651 of 2007.
2 The suit in O.S. No.651 of 2007 is filed by the plaintiff against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties 2 from the date of suit till the date of handing over of possession and for costs of the suit.
3 The brief and relevant facts pleaded in the plaint presented under
Section 26 and Order VII Rule 1 of Civil Procedure Code are as follows:
a)Plaintiff is the daughter and only issue of Madda Nookayya and his wife
Madda Bodemma and that plaintiff’s father madda Nookayya died intestate in the year 1996 and her mother also died intestate in the year 2001 and that the plaint schedule properties are the absolute properties of the father of plaintiff i.e., Madda Nookayya and Madda
Nookayya had three brothers 1) Madda Surayya, 2) Madda Suibbayya (father of defendant) and 3) Madda Gopayya. Except Subbayya all other brothers died. Madda nookayya got Item Nos. 1,2 and 6 of the plaint schedule properties in oral partition with his brothers and he was also issued Pattadar Pass book and title deed book for item Nos.
1,2 and 6 of plaint schedule properties. The plaintiff is having custody of the title deed book and the defendant is having custody of the pattadar pass book and that the plaintiff is filing the title deed books as Annexures 1 and 2.
b)Item No.3 of the plaint schedule property was given as gift to Madda
Nookayya under a registered gift deed dated 09.02.1987 by Madda
Gangamma wife of Surayya and that the Madda Nookayya accepted the gift and had been in possession and enjoyment of the same till his death and there after plaintiff and her mother were in possession till the death of plaintiff’s mother and thereafter plaintiff is in possession and enjoyment of the same and that the Madda Nookayya was not issued pattadar passbook or title deed for this item and the original gift deed dated 09.02.1987 is filed as Annexure No.III.
3
c)Item No. 4 of the plaint schedule property was purchased by late
Madda nookayya under registered sale deed dated 02.02.1971 and in the said sale deed the extent was shown as Ac 1.00 cents on ground, but it is Ac 1.06 cents and the original sale deed is filed as Annexure
IV. Item No.4 was also shown in Pattadar pass book and title deed i.e., Annexure No.1.
d)Item No.5 of plaint schedule originally belonged to Madda Surayya and brother of Madda Nookayya who purchased it under registered sale deed dated 20.02.1971 and that after his demise, of his wife
Gangamma sold it to plaintiff in the year 1992 for Rs.40,000/- and received consideration and handed over possession of the land and also the original sale deed dated 20.02.1971 in favour of Madda
Suryya and plaintiff has been in possession and enjoyment of the same ever since.
e)The plaintiff due to illiteracy did not obtain registered sale deed from
Madda Gangamma, however, even otherwise the plaintiff has been in continous uninterrupted possession over since 1992 openly to the knowledge of the entire world and perfected her title by presumption.
The said sale deed dated 20.02.1971 in favour of Madda Surayya is filed as Annexure No.IV.
f)The defendant is the son of Subbayya who is the younger brother of
Nookayya and after death of her mother the plaintiff has been in possession and enjoyment of the plaint schedule properties as absolute owner and since no taxes are being collected, no taxes are being paid.
g)The defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 4 2005 and was pretending to be managing the item Nos. 1 and 2 of plaint schedule properties on behalf of the plaintiff.
h)About 4 months ago, when the plaintiff wanted to apply for loan in
S.C. corporation for erecting a bore well the defendant objected for the same and started making a false claim that he is the adopted son of
Madda Nookayya and that all the plaint schedule properties exclusively belong to him, keeping the plaintiff under the belief that he is managing the properties and taking advantage of plaintiff’s illiteracy and innocence and on the pretext that he will get the name of the plaintiff mutated in revenue records he took custody of the pattadar passbooks standing in the name of Madda Nookayya in respect of Item
Nos. 1,2,4 and 6 of plaint schedule properties.
i)The defendant taking advantage of his influence with local revenue authorities has been pressurizing the plaintiff through them to part with Item Nos. 3 to 6 of plaint schedule properties and giving out threats to the plaintiff through them and the defendant has absolutely no right, title or interest in the plaint schedule property and the plaintiff demanded the defendant to hand over possession of Item Nos.
1 and 2 of plaint schedule properties, but he refused to do so on the other hand he has been threatening to interfere with the plaintiff’s possession and enjoyment of the plaint schedule property under the guise of a false claim that he is the adoptive son of late Madda
Nookayya.
j)The plaintiff came to know that the defendant is trying manipulate some documents to buttress his false claim in collusion with the
Revenue Officials and the defendant always remained as son of
Subbayya and in the old voters list and ration card his father’s name mentioned as Subbayya only.
5
k)In the year 1991, the father of the defendant sold his property under registered sale deed dated 10.04.1991 and the defendant signed as a witness where in his father’s name is shown as Subbayya and thus there is a irrefutable documentary evidence to show that the defendant was never adopted by Madda Nookayya. The certified extract of the sale deed dated 10.04.1991 is filed as Annexure No.IV.
l)In view of the litigious stand taken by the defendant the plaintiff is advised to seek for a declaration that she is the absolute owner of the plaint schedule property and for possession of Item Nos. 1 and 2 of plaint schedule properties and for permanent injunction restraining the defendant his men, agents and successors in interest from interfering with the plaintiff’s possession and enjoyment of the Item Nos. 3 to 6 of plaint schedule properties and the plaintiff issued a legal notice dated 22.10.2007 calling upon the defendant to handover vacant possession of Item Nos. 1 and 2 of plaint schedule properties and the defendant having received the legal notice did not comply to reply and the office copy of the legal notice is filed as Annexure No.III and the acknowledgement due is filed as Annexure No. VIII. Items Nos. 1 and 2 will fetch an income of Rs. 15,000/- per acre per annum after expenses and the defendant is bound to pay the same to the plaintiff.
Hence, the plaintiff prays to decree the suit with costs as prayed for.
4. The defendant filed written statement and the brief and relevant facts pleaded in it are as follows:
a)The defendant refuted the plaint allegations by claiming as not true and correct. The plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties.
b)The defendant is the adoptive son of Madda Nookayya i.e., father of the plaintiff and grew up in the house of Madda Nookayya and there is 6 overwhelming documentary evidence i.e., legal heir certificate, voters list, sugar card and election identification card to establish that he has been shown as the son of Madda Nookayya.
c)Madda Nookayya executed his last will and testatement on 01.10.1996 bequeathing an extent of Ac 0.50 cents in Srikrishnapatnam village in
R.S.No. 391/2B and Ac 1.06 cents in Srikrishnapatnam village in R.S.
No. 390 and an extent of Ac 0.43 cents in R.S.No. 2/2J in
G.Yerrampalem Village in favour of the plaintiff herein while giving an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village an extent of Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties which are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned he has no claim over the same.
d) The defendant never interfered in respect of other items of the plaint schedule properties and he has no claim over the same. Hence, the defendant prays that the suit may dismissed in so far as item Nos.
1 and 2 of the plaint schedule properties are concerned with costs.
5. Basing on the above pleadings, the following issues are settled for trial
before the Trial Court:
1.Whether the defendant is the adopted son of Madda Nookayya and whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
7
2.Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule property?
3.Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule?
4.Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule from the defendant?
5.To what relief?
6. During the course of trial, the plaintiff got examined P.Ws. 1 to 4 and got marked Exs.A1 to A9, while the defendant examined D.Ws. 1 to 6 and got marked Exs.B1 to B11 and Ex.X1 to X3.
7. After conducting due trial, the trial court decreed with suit with costs declaring that the plaintiff is the absolute owner of the Item No.1 and 2 of plaint schedule property and for delivery of vacant possession of the same within three months and also granted injunction restraining the defendant to interfere with the peaceful possession and enjoyment of the plaint schedule property of item Nos. 3 to 6. The plaintiff can claim the damages by filing separate petition.
8. As against the said decree and judgment in O.S. No. 651 of 2007, the defendant filed the present appeal and presented memorandum of appeal under Section 98, Order 41 Rule 1 C.P.C. The brief and relevant facts pleaded in the grounds of appeal are as follows:
a)The Decree and Judgment of the trial court is contrary to law, weight of evidence and probabilities.
b)The defendant did not have free and fair trial before trial court for the following reasons
1)That the evidence and written arguments submitted by the defendant are not considered.
8
2)The plaintiff though admitted as P.W.1 in cross as follows:
“It is true, that I have executed a settlement deed in respect of
Item Nos. 1 and 2 in favour of my daughter on 18.10.2007”, but the suit was presented only 20.11.2007 nearly one month after losing title over item Nos. 1 and 2, yet the trial court declared the title over item Nos 1 and 2 in favour of the plaintiff and ordered delivery.
3)The plaintiff P.W.1 proclaimed the result of the suit at least one month prior to the result.
4)The trial court heard arguments on 06.02.2013, but pronounced the Judgment only 14.03.2013 the long delay in pronouncing the judgment always sends wrong signals as to Judgment to the society.
c)The trial court did not follow the principles that in a suit of declaration of title, the plaintiff has to stand or fall on the strength of the case of the plaintiff, but not on the strength or weakness of the case of the defendant so the trial should have decided issue
Nos. 2 to 5 by recording findings on them independently considering the evidence and written arguments of the both sides.
d)The trial court without consideration of the oral and documentary evidence basing on the contention of the plaintiff’s counsel, without any legal basis, adopted it, which clearly establish the total prejudice caused to the defendant.
e)The trial court willfully omitted to decide Issue No.2, though, in the written arguments, there is submission in detailed manner in respect of the same.
f)The trial court ought to have seen that in the suit involving declaration, injunction and recovery of possession, since the plaintiff sought for relief of declaration and for recovery of 9 possession of Item Nos. 1 and 2, the trial court should have recorded finding fact how plaintiff established her title to item Nos.
1 and 2 before granting relief of declaration of title and recovery of possession.
g)The trial court should have seen that P.W.1 admitted that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007 i.e., one month prior to filing of the present suit, thus when plaintiff herself admitted that she had no title to item Nos. 1 and 2 granting of declaration of title and injunction to item Nos. 1 and 2 is contrary to (2009) 4 ALT 727 and hence, the finding of the trial court on issue No. 2 that the plaintiff is entitled to declaration and recovery of item Nos. 1 and 2 are liable to be set aside.
h)The trial court should have seen that the item Nos. 3 to 6 of the plaint schedule property, the plaintiff sought for declaration of title and for injunction. Even for granting such relief of establishing title is mandatory and the plaintiff as P.W.1 admitted as follows:
“We applied for the M.R.O. for issuing legal heir certificate of her mother”. “It is true to suggest that M.R.O. issued legal heir certificate as myself and defendant are the legal heirs of my mother” but the defendant produce Ex.B2 legal heir certificate showing plaintiff and defendant as children of late Bodamma w/o.Nookaiah and that the plaintiff did not dispute Ex.B2 in cross examination by defendant since Ex.B2 was issued by competent statutory authority as per joint application of plaintiff and defendant so the plaintiff could not establish prima facie case, her absolute title to seek declaration.
i)The trial court should have seen that when P.W.1 admitted that herself and defendant jointly applied to M.R.O., for legal heir 10 certificate after Ex.B2 certificate was issued, that the plaintiff is not competent to take different stand before Civil Court or statutory authority etc. Thus, the plaintiff is not prima facie entitled to seek for declaration of her title.
j)The trial court should have seen that the trial court’s finding of fact on issue No.1 is not only merely abuse of process of law but also failure of justice.
i)The plaintiff did not dispute the Will either in the plaint or by filing better pleadings as required under Order 6 Rule 4 of
C.P.C., to the contentions raised in the written statement which will have material value and that in any case, the parties cannot let in evidence beyond pleadings and the plaintiff having not filed better pleadings as required under
Order 6 Rule 4 of C.PL.C. cannot challenge the Will vide (1981) 2 A.P.L.J. 62.
k)The trial court should have seen that defendant examined, D.W.2 and D.W.3 the attestor of the Ex.B3 who spoke to details of “Due execution” and so the defendant proved execution of Ex.B1, particularly in the absence of objection regarding Will raised by the plaintiff thus proved execution of the Will beyond reasonable doubt.
l)The trial court should have seen that P.W.1 has admitted in cross- examination of P.W.1 as follows:
“I am coming to know that the defendant filed will along with written statement. He did not ask my advocate as to defence set up by the defendant in the written statement. I have not filed any rejoinder regarding the will executed by my father disputing the
Will. I know the said will alleged to have executed by my father for the last two years. I did not place the dispute in respect of the said 11
Will before elders after coming to know about the Will”. Thus the plaintiff never attempted to dispute the Will.
m)The trial court should have seen that only a person who is either the beneficiary or aggrieved alone can dispute the documents and since the plaintiff does not answer the description i.e., neither aggrieved party nor beneficiary, so she is not competent to dispute the same.
n)The trial court should have seen that the evidence of P.W.4 and
Ex.X1 to X5 are all neither relvant nor establish any fact in view of following admission of P.W.1 “My father was a thumb marker my mother had no bank accounts. I have documents containing thumb marks of my father such as pass book”.
But, the plaintiff did not send any document containing admitted or proved thumb mark of late Nookaiah for comparison to Expert but
P.W.4 compared the thumb marks on Will Ex.B3 with some documents thumb marks on the documents which are not proved or admitted, so the comparison has no basis so Ex.X1 to X5 are liable to be rejected.
o)The trial court failed to appreciate the evidence of D.W.1 to D.W.6 coupled with 11 years undisputed enjoyment of the properties covered by Will all establish circumstantially the will, so the finding that will is not proved is not correct and such finding is liable to be set aside.
p)The trial court finding on adoption is abuse of process of law for the following reasons.
i)Exs. B1, B4, B2, Ex.B9 to B11 documents categorically establish
Nookaiah as father of the defendant and that the defendant also examined his natural mother and witnesses whose 12 evidence in substance cannot be brushed aside and that the adoption is disputed more 30 years after it occurred so presumption of adoption available
q)Therefore, upon grounds urged above and upon grounds that may be urged at the time of hearing of the appeal, the appellant prays to allow the appeal and set aside the decree and judgment passed in O.S. No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s
Court, Rajahmundry dated 14.03.0213 with costs throughout and to dismiss the with costs.
10. During the course of enquiry in the appeal, on behalf of the
Appellant/defendant, D.W.1 is recalled and examined and Ex.B12 and
Ex.B13, which are Settlement deed dated 18.10.2007 from the respondent in favour of the son of Raja Sekhar, and Settlement deed dated 18.10.2007 from the respondent in favour of her daughter M.Atchayamma respectively are marked. As per the memo filed by the appellant and recorded the appellant given up the paras 3 to 5 in the chief affidavit. On behalf of the respondent / plaintiff, P.W.1, is recalled and P.Ws. 5 and 6 are examined
Exs.A10 to A13 are marked which are, Regd. Gift cancellation Deed dated 07.04.2014, Regd. Gift Cancellation deed dated 07.04.2014, original gift deed dated 18.10.2007 executed by P.W.1 in favour of Siddabathula
Rajasekhar and Original gift deed dated 18.10.2007 executed by P.W.1 in favour of Marre Atchiyamma respectively.
11. a) For the sake of brevity and convenience here in after the parties and evidence will be referred as referred in the judgment in O.S.
No.651/2007 on the file of I Addl. Senior Civil Judge's Court, Rajahmunedry
dated 14.03.2013.
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The 13
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
12. a) The learned counsel for the appellant/defendant submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
(b) The learned counsel for the defendant submits that unless the plaintiff establishes her own title to the property and succeeds, but the plaintiff cannot succeed on the weakness of the defendant’s case.
(c) The learned counsel for the defendant submits that the plaintiff has to establish her superior title to plaint schedule properties.
(d) The learned counsel for the defendant submits that as per Section 34 of Specific Relief Act a person is entitled for Declaration of right or title if that person possesses the same.
(e) The learned counsel for the defendant submits that as admitted by
P.W.1 since plaintiff did not dispute the Will executed by her father and also the adoption by specifically pleading the same or by filing rejoinder after the written statement filed by the defendant, framing of Issue No.1 does not arise and the defendant has proved the Will executed by his father and also adoption of him by his father.
(f) The learned counsel for the defendant submits that as the plaintiff admittedly did not dispute either of the aspects covered by Issue No.1, but the trial court framed the said issue in respect of undisputed facts and as the issue cannot be framed with respect of undisputed facts, the two aspects are liable to be deleted and if the are not deleted also, both the aspects covered by Issue No.1 are not relevant for deciding the plaintiff’s case as the same 14 can be considered only when plaintiff established primafacie case of absolute title to property.
(g) The learned counsel for the defendant submits that the evidence of
D.W.1 coupled with the contents in Exs.B1 and B2 and since M.R.O. as per
Section 4 of Pattadar Passbook Act being statutory authority can issue legal heir certificate after conducting inquiry under Section 5 A of the said Act and plaintiff did not dispute Ex.B2 legal heir certificate by filing appeal and
M.R.O. issued proceedings under Ex.B8 after appeal time is over and plaintiff also as P.W.1 admitted and accepted the receipt of Ex.B8 proceedings and nothing contra is elicited in the cross-examination of D.W1, the defendant has proved that he is adopted by his father who is natural father of P.W.1.
(h) The learned counsel for the defendant submits that as the plaintiff admitted Ex.B2 and did not challenge it by filing any appeal within time, cannot change her stand and say that the defendant is not the legal heir of
Nookaiah as it amounts playing fraud on public authority i.e., Court or operate as estoppel against the plaintiff and thereby the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of
Nookaiah and, as such, the case of the plaintiff that she is the absolute owner of the schedule property as sole heir of Nookaiah is failed.
(i) The learned counsel for the defendant submits that the adjudication by M.R.O. by following the procedure in 5A inquiry cannot be challenged in
Civil Court and, as such, in view of Ex.B2, the plaintiff’s absolute title over item Nos. 1 to 5 of schedule properties stood disproved.
(j) The learned counsel for the defendant submits that the proceedings under Exs.B2 and B8 are in the nature of decree in Specific Relief Act and is binding on the plaintiff or parties to those proceedings.
15
(k) The learned counsel for the defendant submits that the moment
Exs.B2 and adoption are accepted, the plaintiff has no absolute right or title to plaint schedule properties, and the plaintiff and the defendant are co owners and, as such, at the most the plaintiff may be entitled to relief of partition in view of proviso to Section 34 of Specific Relief Act.
(l) The learned counsel for the defendant submits that in view of Ex.B3
Will executed by late Nookaiah the common owner of the plaint schedule properties, so the defendant cannot be disturbed under any circumstances.
(m) The learned counsel for the defendant submits that as the defendant set up oral adoption, generally the burden would be upon the defendant, but, in the present case, since the defendant produced Ex.B2 coupled with the admissions of P.W.1 that both the plaintiff and defendant are jontly applied for legal heir certificate and in view of the fact that nothing contra is elicited in the cross-examination of D.W.1 in respect of the both the aspects covered in the first issue, it is created a special circumstance in favour of the defendant and created a presumption of relationship of father and son in between the defendant and late Nookaiah.
(n) The learned counsel for the defendant submits that in view of the evidence of natural mother of defendant as D.W.4 and the fact of late
Nookaiah’s conduct and joining of the defendant in school as shown in Ex.B1 and the contents of Ex.B3 Will would clearly establish the adoption of defendant.
(o) The learned counsel for the defendant submits that as per Ex.B10 recitals by paternal aunt descrbining the defendant as son of late Nookaiah and Exs.B9 and B4 Government records describing the defendant as son of
Nookaiah, clearly shows that the defendant has been treated by one and all including the deceased Nookaiah as his son vide Ex.B3 would establish adoption beyond reasonable doubt.
16
(p) The learned counsel for the defendant submits that when the legal heir ship of parties through a common ancestor was not disputed before statutory authority then adoption of such legal heir cannot be challenged
before Civil Court and it is matter of public policy to continue same stand
and thus, Ex.B3 legal heir certificate of defendant and plaintiff as heirs of
Nookaiah was accepted both parties as well as M.R.O. concerned, so this aspect of legal heir ship was only consequence of adoption, so the plaintiff cannot challenge the same and that thus, the defendant heir ship to
Nookaiah as his adopted son is not challenged and so the issue of defendant’s adoption has to be decided in favour of the defendant and against the plaintiff.
(q) The learned counsel for the defendant submits that defendant is claiming possession and enjoyment of plaint schedule properties in pursuance of Ex.B3 in his own right from December, 1996 i.e., from the date of death of late Nookaiah and admittedly he is in possession of Item Nos.1 and 2 of plaint schedule properties.
(r) The learned counsel for the defendant submits that the present suit came to be filed after completion of 11 years and during progress of 12 th year since the plaintiff admits possession of defendant over item Nos. 1 and 2 since past 4 to 5 years prior to suit, the defendant is in settled and uninterrupted possession over item Nos. 1 and 2 of plaint schedule properties and, as such, in view of Section 114 (d) of I.E. Act, the defendant is presumed to be in continuous possession from December, 1996 i.e., past 16 years in the plaint schedule property and thus the plaintiff cannot dispute
Will dated 01.10.1996 now i.e., after 11 long years and the plaintiff’s right, if any to challenge Ex.B3 Will be, within in three years from the date of it’s execution i.e., from 01.10.1996 and so the plaintiff cannot challenge the
Ex.B3 Will.
17
(s) The learned counsel for the defendant submits that P.W.1 admitted in her cross-examination catergorically that she came to know about Ex.B3
Will after filing of written statement, but she did not dispute Ex.B3 Will and the same is sufficient that Section 68 of I.E. Act is not required to be complied with.
(t) The learned counsel for the defendant submits that even otherwise the plaintiff is neither aggreieved party nor executant of the Will since the plaintiff is 3rd party, that she cannot challenge Will so the defendant need not examine the attestors, but however, the defendant examined two attestors as D.Ws. 2 and 3.
(u) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will.
(v) The learned counsel for the defendant submits that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support such report and that a part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison.
(w) The learned counsel for the defendant submits that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses.
(x) The learned counsel for the defendant submits that the Expert’s opinion is hearsay evidene and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a definite science and can be relied upon.
(y) The learned counsel for the defendant submits that the rights claimed by defendant in the suit are to be adjudicated in a properly 18 constituted suit and so Issue No.1 has to be deleted and even otherwise, both adoption and Will are proved by oral evidence of D.Ws 1 to 4, circumstantial evidence and by production of Ex.B1 to B11.
(z) The learned counsel for the defendant submits that as the adoption is 50 years back, the principles of ancient adoption have to be applied.
Z a) The learned counsel for the defendant submits that the defendant is the adopted son of Nookaiah and Item Nos 1 to 5 are the exclusive properties of Nookaiah and Item No.6 is a joint family property and defendant has proved by placing the evidence in the trial court and also the
additional evidence in pursuance of allowing of I.A. No. 201 of 2014
permitting to place additional evidence by examining D.W.1 and marking of
Ex.B12 and Ex.B13 that Plaintiff transferred her interest in respect of Item
Nos. 1 & 2 and 4 and 6 of plaint schedule properties.
Z b) The learned counsel for the defendant submits the plaintiff transferred her interest in items No.2 and 6 of plaint schedule properties under settlement deed dt: 18-0-2007 doc.no: 6867/2007 in favour of Raja
Sekhar and that the suit was presented by plaintiff/respondent on 20-11- 2007 i.e., nearly 32 days after transfer and the same is proved through the evidence of P.W.1 and P.Ws.5 to 6 and also additional evidence placed by the appellant in pursuance of the Orders in I.A. No. 583 of 2014 under Exs.
A10 to A13 marked through P.W.1 by placing additional evidence.
Z c) The learned counsel for the defendant submits that as defendant placed evidence proving Exs.B12 and B13 which are gift deeds, they establish that the plaintiff did not possess any right title and interest in the plaint schedule properties as on the date of suit i.e., 20-11-2007.
Z d) The learned counsel for the defendant submits that the plaintiff has to establish her title to get a relief of declaration and relief of declaration cannot be granted on the weakness of defendant’s case and plaintiff has to 19 be non suited” and due to the same, Issue No.2 has to be decided in favour of the defendant.
Z e) The learned counsel for the defendant submits that the parties are governed by the rights which accrue to them on the date of institution of the suit and as such, since the plaintiff is claiming that her title is restored back to her in view of Ex.A12 and Ex.A13 and so she was not having title on the date of institution of suit and, as such, the plaintiff is not entitled for declaration as prayed for and, as such, she is not entitled for recovery of
Item Nos. 1 and 2 of plaint schedule properties and so Issue No.3 may be decided in favour of the defendant.
Z f) The learned counsel for the defendant submits that plaintiff has to establish both title and possession over plaint schedule properties then only the defendant’s contention or case is to be adjudicated.
Z g) The learned counsel for the defendant submits that the plaintiff claimed ownership as heir of deceased Nookaiah, the plaintiff’s case is comprehensively disproved by defendant by producing Ex.B2 legal heir certificate, wherein both plaintiff and defendant were held to be heirs of late
Nookaiah and his wife, so plaintiff’s absolute title theory failed.
Z h) The learned counsel for the defendant submits that the plaintiff did not produce any reliable evidence in proof of her case and the defendant on the contrary produced Ex.B3 Will executed by the deceased Nookaiah and thus prima facie proved his title to the plaint schedule item Nos 1 to 5 and hence, the defendant miserably failed to establish her case and also failed to establish her right to relief of permanent injunction.
Z i) The learned counsel for the defendant submits that the plaintiff has failed to establish her superior title to seek injunction against the defendant, who is either co-owner or owner under Will i.e., Ex.B3 to plaint schedule 20 items and so both on the principles that the plaintiff could not establish her case or plaintiff is not entitled to relief of injunction against co-owner and so the plaintiff did not have primafacie case, balance of convenience or probable injury in the matter and hence, the plaintiff is not entitled to relief of permanent injunction as prayed for.
Z j) The learned counsel for the defendant submits that in view of
additional evidence of D.W.1 coupled with the contents in Ex.B12 and
Ex.B13 issue NO.4 may be answered in favour of the defendant.
Z k) The learned counsel for the defendant submits that out of 6 items of plaint schedule injunction is sought for with respect to items 3 to 6 only.
Point out of such 4 items, items 4 and 6 were already alienated and there was no subsisting interest to plaintiff/respondent herein in those properties and in view sec.4 1 (J) of specific relief Act plaintiff is not entitled to permanent injunction prayed for.
Z l) The learned counsel for the defendant submits that Ex.B-1 to B-11 clearly establish both title possession and relationship and so the burden is upon plaintiff/respondent to establish her absolute title to items NO.3 and 5 of the paint schedule.
Z m) The learned counsel for the defendant submits that merely because,
Issue No.1 is decided in favour of plaintiff, the approach of the trial court that suit should be decreed is not in accordance with the law and the burden is on the plaintiff to establish her case in respect of all issues.
Z n) The learned counsel for the defendant submits that framing of Issue
No.1 relating to defendant’s title is unwarranted and any conclusion arrived at on the basis of finding upon such issue vitiated entire trial and hence,
Issue No.1 is to be deleted.
21
Z o) The learned counsel for the defendant submits that after closure of defendant’s evidence, the plaintiff ingenious by examined PW.3 and PW.4 and that expert petition was also ordered subsequent to closure of defendant’s side evidence.
Z p) The learned counsel for the defendant submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW3 has to be brushed aside.
Z q) The learned counsel for the defendant submits that P.W.4 summoned to produce School Register of M.P.U.P.School of the year 1959, but he did not bring records and though he was not directed to give evidence yet the evidence of PW.4 recorded in chief in the absence of defendant’s counsel etc, so his evidence has no legal sanctity under law.
Z r) The learned counsel for the defendant submits that the evidence of
P.W.1 is not corroborated by any oral or documentary evidence and plaintiff miserably failed to establish title and hence, Issue No.4 may be answered in favour of the defendant.
Z s) The learned counsel for the defendant submits that generally the damages are not part of subject matter of the suit and are to be determined in a separate proceeding after suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. so deciding quantum of profits or damages by original court is contrary to law.
Z t) The learned counsel for the defendant submits that for recovery of item Nos. 1 and 2 by evicting the defendant, since just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her son and daughter, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue 22
Nos. 1 to 5 have to be decided against the plaintiff and in favour of the defendant.
Z u) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed originals of Exs.B12 and B13 and thereby, there is an admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originals of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place evidence about how she is entitled for the suit reliefs, and as such the plaintiff is not entitled for the suit reliefs.
Z v) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items, and that in Para No.2 of the written statement though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
Z w) The learned counsel for the defendant submits that the Issue No.1 is wrongly framed considering the pleadings in the written statement as defence to the claims of the plaintiff and the same has to be amended.
Z x) The learned counsel for the defendant submits that P.W.1 did not say that the thumb impressions in Exs.A1 to A2 are that of her father, but expert gave opinion basing on the thumb impression in Exs.A1 to A2 as as if they are containing admitted thumb impressions and as such, opinion of the expert cannot be relied.
23
Z y) The learned counsel for the defendant submits that even though, no application is allowed for examination of Head Master, and he is ordered only to produce documents but he is wrongly examined as a witness and hence, his evidence cannot be relied upon.
Z z) The learned counsel for the defendant submits that as the defendant proved the adoption and Will through the evidence of D.Ws. 1 to 6 and marking Ex.B1 to Ex.B13 and as the adoption is ancient, the plaintiff is not having right in the item Nos.1 to 2 plaintiff schedule properties by the debts of suit the plaintiff is not entitled for the reliefs granted by the trial court and hence, the appeal may be allowed with costs and the suit in O.S. No. 651 of 2007 may also be dismissed with costs by setting aside the decree passed in
O.S. No. 651 of 2007.
12. a) The learned counsel for the respondent/plaintiff submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
b) The learned counsel for the plaintiff submits that the burden is on the defendant in respect of Issue No.1 and he has to prove that he is the adopted son of Madda Nookayya and that by virtue of the last will and testatement dated 01.10.1996, he became entitled to Item Nos. 1 and 2 of the plaint schedule properties and therefore, the burden is on the defendant to prove these two facts.
c) The learned counsel for the plaintiff submits that admittedly, Item
Nos. 1 and 2 of plaint schedule properties are absolute properties of Madda
Nookayya and the plaintiff is the only daughter of him and the defendant failed to prove the adoption and also execution of Will dated 01.10.1996 by
Madda Nookayya and the plaintiff will be entitled to the reliefs claimed in 24 respect of Item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the plaintiff submits that the evidence of
D.W.2 is that she attended the adopted ceremony of defendant 50 years ago, but the age of the defendant is kept blank in the chief affidavit and as per the plaint, the age of the defendant was shown as 55 years, which is not disputed and so, according to D.W.2, the adoption took place about more than 70 years ago and as such, when the defendant is aged about only 55 years his adoption cannot take place even prior to his birth.
e) The learned counsel for the plaintiff submits that D.W.2 stated that there was document executed in the presence of elders on which the natural father Subbayya put his signature and handed over the same to the father of the plaintiff and therefore, the evidence of witness completely falsifies the claim of the defendant that he was adopted by Madda Nookayya and that
D.W.2 admitted that there are disputes between him and the plaintiff for the past eight years and there are no talking terms between them and the so called document said to have been executed was not produced and according to D.W.1, his adoption was oral and therefore, the evidence of
D.W.2 is not at all trustworthy to believe adoption.
f) The learned counsel for the plaintiff submits that D.W.3 is aged about 45 years stated that he attended the adoption ceremony of D.W.1 took place in about 50 years ago and, as such, her evidence is not believable and that too in the light of fact that she is native of Duppalapudi and her marriage was performed about 30 years ago and prior to her marriage, she has no acquaintance with the parties to the suit and never visited
Bhupalapatnam, which is the village of plaintiff and defendant and she also admitted the same and thus, her evidence does not inspire confidence in respect of the so called adoption.
g) The learned counsel for the plaintiff submits that D.W.4 being 25 natural mother of the defendant is an interested witness and she stated that except executing document nothing took place with regard to the adoption and the so called document executed by D.W.4 and her husband has not seen the light of the day and that she did not speak that they physically handed over the defendant into the hands of the father of the plaintiff, the most important and the only requirement for essential and valid adoption and when the witness does not speak about the same, the adoption does not stand to be proved and therefore, the evidence of D.Ws. 1 to 4 suffer from serious discrepancies and they do not prove that the defendant was given in adoption to the father of the plaintiff.
h) The learned counsel for the plaintiff submits that in view of evidence of P.W.3 Ex.B1 purported to have been given by P.W.3 is not believable and he denied completely all his signatures in Ex.B1 and stated that the stamp in it does not belong to their school and their school did not issue Ex.B1 and that their school was not even established till 1959 and only in the year 1959 the said school was established and this evidence of P.W.3 shows that the defendant fabricated and forged Ex.B1 in order to falsify the claim that he was adopted son of Madda Nookayya and the evidence of P.W.3 completely falsifies the case of the defendant that he was the adopted son of
Madda Nookayya.
i) The learned counsel for the plaintiff submits that Ex.B2 issued by
M.R.O. cannot have any probative value and cannot be taken as basis to hold that the defendant is the son of Madda Nookayya and besides, in Ex.
B2, it is specifically stated that it is only for the purpose of issuing pattadar passbook but it is not useful for the purpose of settling civil disputes or movable property disputes and therefore, this certificate has absolutely no value at all.
k) The learned counsel for the plaintiff submits that Ex.B4 is the “No 26
Due Certificate” issued by P.A.C.S. Bhupalapatnam and this is dated 07.09.2009 which is after filing of the suit and therefore no importance or probative value can be attached to this exhibit.
l) The learned counsel for the plaintiff submits that the defendant paid tax on behalf of Madda Nookayya and when the plaintiff herself is stated that she gave items 1 and 2 for management to the defendant, mere paying of tax does not prove that the defendant is the owner of Item Nos. 1 and 2 or that he is the son of Madda Nookayya.
m) The learned counsel for the plaintiff submits that Ex.B8 is the notice issued by Thasildar, Rajanagaram with regard to the disputes between the plaintiff and the defendant regarding Pattadar passbook and this document also has no evidentiary value.
n) The learned counsel for the plaintiff submits that the evidence of
D.W.5 and the contents in Ex.B4, and Ex.X1 clearly shows that father’s name of defendant is shown as Subbayya in Ex.X1 and therefore the entry in
Ex.B4 cannot have any value in the light of Ex.X1 and the defendant must have created Ex.B4 certificate after filing of the suit and that therefore, there is absolutely no document in support of the case of the defendant that he was the adopted son of Madda Nookayya.
o) The learned counsel for the plaintiff submits that as it is specifically put to D.W.1 that he was never adopted by Madda Nookayya, the argument is that there was no denial about the defendant being adopted by Madda
Nookayya has no force, thus defendant failed to prove that he was adopted by Madda Nookayya and that D.W.1 also stated that there was ration card to show that he and Madda Nookayya lived in one house, however, he failed to produce such ration card, as such, the defendant failed to prove the adoption.
p) The learned counsel for the plaintiff submits that the evidence of 27
P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Ex.A1 and A2 are no identical with the thumb impressions on Ex.B3.
q) The learned counsel for the plaintiff submits that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of
Madda Nookayya and when these exhibits are marked through P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya.
r) The learned counsel for the plaintiff submits that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparsion of finger prints.
s) The learned counsel for the plaintiff submits that the plaintiff has no filed rejoinder, but mere non-filing of rejoinder by the plaintiff does not and cannot be treated as admission of the pleas taken by the defendant in the written statement.
t) The learned counsel for the plaintiff submits that once the evidence of P.W.4 the Handwriting Expert is taken into consideration, then it is clear that the defendant fabricated the Will and pessed into service the said fabricated Will.
u) The learned counsel for the plaintiff submits that if really, Ex.B3 will was executed, there is no reason why the same was not produced before the
Tahasildar and the name of the defendant is not mutated in the revenue records in respect of Item Nos. 1 and 2 of the plaint schedule properties.
v) The learned counsel for the plaintiff submits that the evidence of 28 defendant clearly proves that, he has taken active role in execution of Ex.B3
Will, which in itself is a very suspicious circumstances surrounding the Will and also the attestor and scribe are closely related to defendant and though the Sub-Registrar is at a distance of 10 K.Ms. without any reason or explanation the Will was not registered.
w) The learned counsel for the plaintiff submits that, defendant did not issue reply notice to the notice issued by the plaintiff dated 22.10.2007 as by the date of issuing of notice, Ex.B3 was not brought into existence.
x) The learned counsel for the plaintiff submits that, Ex.B3 Will was not acted upon as D.W.1 admitted that 1st time he filed the same into the
Court and did not file it before any public officer.
y) The learned counsel for the plaintiff submits that the chief affidavit of D.W.1 shows that there is a blank with regard to the date of executing of
Will and in the chief examination and in the cross-examination he stated that
Madda Nookayya executed the Will on the 10th day of the year 1996, but he could not say the month, whereas, Ex.B3 propounded Will is dated 01.10.1996 and such the evidence of D.W.2 does not inspire confidence and on the other hand it raises serious suspicion.
z) The learned counsel for the plaintiff submits that the evidence of
D.W.3 shows that she does not know the date of execution is not believable and does not speak about the Madda Nookayya putting him thumb impression and herself witnessing the same and then she put her signature and Madda Nookayya witnessing the same as required under Section 68 of the Evidence Act and therefore, the evidence of D.Ws. 2 and 3 does not prove the execution of the Will by Madda Nookayya.
A1) The learned counsel for the plaintiff submits that the evidence of
D.W.6 is not at all helpful as he is neither scribe nor attestor of execution of
Ex.B3 Will and he has not stated what documents were prepared by Madda 29
Nookayya.
A2) The learned counsel for the plaintiff submits that the plaintiff failed to discharge his burden of proving Ex.B3 Will.
A3) The learned counsel for the plaintiff submits that as the plaintiff has proved that she is absolute owner of the plaint schedule properties, she is entitled for possession of items 1 and 2 of plaint schedule property and issue No.2 has to be held in favour of plaintiff and also she is entitled directing the defendant to handover vacant possessions of the Item Nos. 1 and 2 of the plaint schedule properties to the plaintiff.
A4) The learned counsel for the plaintiff submit that plaintiff is also entitled for grant of permanent injunction and for recovering damages @ of
Rs. 15,000/- (Rupees Fifteen Thousand only) per annum per acre in respect of Item Nos. 1 and 2 of the plaint schedule properties from the defendant.
A5) The learned counsel for the plaintiff submits that the plaintiff filed the cancellation deed dated 07.04.2014 wherein she contended that, her son and daughter did not accept the gift deeds and she cancelled the gift deeds along with her son and daughter under the cancellation deeds, dated 07.04.2014 and therefore since the gift is not accepted and the same is cancelled, she continues to be the owner of the Item Nos. 1 and 2 of the plaint schedule properties and she can maintain the suit.
A6) The learned counsel for the plaintiff submits that the evidence of
D.W.1 and P.W.1, P.Ws. 5 and 6 coupled with the contents in Exs.B12 and
Ex.B13 and Ex.A10 to Ex.A13, which is the evidence placed in the appeal, clearly proves that P.Ws. 5 and 6 did not accept the gift and the same stood cancelled under registered cancellation deed dated 07.04.2014, and the plaintiff continues to be the owner of the plaint schedule property and she is entitled to maintain the suit and therefore, the appellant cannot maintain this ground to set aside the decree and judgment of the trial court.
30
A7) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of originals of Exs.B12 and B13 gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of originals of Exs.B12 and B13.
A8) The learned counsel for the plaintiff submits that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to the originals of Exs.B12 to B13 and Ex.A10 to A11 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
A9) The learned counsel for the plaintiff submits that as D.W.1 admitted that the Pattadar Passbooks of Nookaiah is in his hands and title deed book is with the plaintiff, the expert opinion basing on the thumb impressions in the title deed books which are with the plaintiff is given basing on the admitted thumb impressions in title deeds and it is in accordance with the law.
A10) The learned counsel for the plaintiff submits that the trial court rightly after consideration of the entire evidence on record decreed the suit and there are no grounds to interfere with the decree and judgment of the trial Court and, hence, the plaintiffs prays to dismissal of the appeal with costs by confirming the decree and judgment of the trial court in O.S.
No.651 of 2007dated 14.03.2013.
13. Basing on the pleadings in the plaint and written statement and the brief and relevant grounds appeal and the contentions of the learned counsel 31 for all parties referred supra and the evidence on record the following points emerge for consideration.
1)Whether the defendant is the adopted son of Madda Nookayya?
2)Whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
3)Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties?
4)Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule
Property?
5)Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule properties from the defendant?
6)Whether there is subsisting interest to plaintiff in items 1 & 2 of plaint schedule properties ?
7)Whether the plaintiff is having absolute title to items 1 to 5 of plaint schedule properties?
8)Whether the judgment and decree of the suit in O.S.651 of 2007 on the file of 1st Addl. Senior Civil Judge’s Court, Rajahmundry required varying or modification or confirmation?
9)To what relief?
14. Points 1 to 8: These points 1 to 8 are interrelated very closely to each other. Hence in order to avoid the repetition of discussion of evidence and for the sake of brevity and convenience they are discussed in common.
15.a) The plaintiff to prove the suit claims examined herself as P.W.1 and purchaser of the land from the husband of plaintiff as P.W.2 and the Teacher in M.P.U.P.School, Bhupalapatnam in respect of Ex.B1 certificate as P.W.3 and the Finger Print Expert as P.W.4 and the son of plaintiff as P.W.5 and the daughter of plaintiff P.W.6. The defendant to disprove the suit claims examined himself as D.W.1 and the attestors of the Will Ex.B1 as D.Ws 2 and 3 and the mother of the defendant as D.W.4 and local Surveyor as 32
D.W.5 and third party scribe D.W.6.. P.W.5 and D.W.1 being the parties to the suit and P.Ws.5 and 6 being the son and daughter of plaintiff and D.W.4 being the natural mother of defendant deposed in their respective chief examinations as per the respective pleadings, claims contentions and cases of the plaintiff and defendant. The plaintiff got marked Exs A1 to A9, which are original title deed book, Original title deed book, Original gift deed
dated 09.02.1987, original sale deed dated 02.02.1971, original sale deed
dated 20.02.1971, certified copy of the sale deed, Office copy of the legal
notice dated 22.10.2007, acknowledgement and receipt dated 24.04.200 respectively and Ex.X1 to X3 which are receipt dated 24.04.2000, 3 photos and letter of Director Finger Print Bureu, Hyderabad dated 02.07.2012 respectively in the trial court and in the appellate court, Exs A10 to A13 which are Gift cancellation deed dated 07.04.2014, Gift cancellation deed dated 07.04.2014, Gift deed executed by R.W.1 in favour of Siddabathula Rajasekhar dated 18.10.2007,
Original Gift deed executed by R.W.1 in favour of Marre Atchiyamma, dated 18.10.2007 respectively.
b) The defendant got marked Exs B1 to B11, which are Certificae issued by
M.P.U.P.School Rajanagaram, Certificae issued by M.R.O. Rajanagaram, Will dated 01.10.1996, Certificate issued by P.A.C.C.S. Bhupalapatnam, Original pattadar passbook, Tax receipt, notice, certificate issued by Power Grid Corporatin limited,
dated 10.08.2007, will dated 28.02.1996 and passbook respectively in the trial
court and Exs B11 to B12 in the appellate court which are Settlement deed from the respondent in favour of her son Rajasekhar, dated 18.10.2007 and Settlement deed dated from the Respondent in favour of her daughter M.Atchiyyamma respectively.
16. The plaintiff filed the suit against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos.1and2of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3to 6 of plaint schedule properties directing the defendant and directing the defendant to pay damages of
Rs.15,000/-p.a per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit and for other reliefs. The defendant denied the claims of the 33 plaintiff by claiming that he is adopted son of Madda Nookayya and late
Madda Nookayya executed his last will dated 01.10.1996 marked as Ex.B3 and he got Item Nos. 1 and 2 of plaint schedule properties to an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village and an extent of
Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties and these items are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by
Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned his has no claim over the same. The defendant is also claiming that he never interfered in respect of other items of plaint schedule properties and he has no claim over the same and he prays for dismissal of the suit only in respect of item Nos. 1 and 2 of plaint schedule properties with costs.
17. a) The learned counsel for the defendant cited a decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational Society Vs.
P.Subhashan and another, in which the Hon’ble High Court of A.P. held at
Para No. 20 as follows:
“[20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief Act, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff
In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by 34 adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim Arif and Anr. v. Rahmatunnisa Begum and Anr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius AIR 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma Nand Puri v. Neki Puri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and Ors. 2004 SAR (Civil) 832, where the Apex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant
Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted…...”
b) The learned counsel for the defendant cited a decision reported in AIR 2014 SUPREME COURT 937 between Union of India and others Vs.
Vasavi Cooperative Housing Society Limited and others, in which the
Hon’ble Supreme Court held at Para No. 15 as follows:
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
c) The learned counsel for the defendant also cited another decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational
Soceity Vs. P.Subhashan and another, in which the Hon’ble High Court of
Judicature, Andhra Pradesh held at Para No. 20 as follows:
35 [20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief A ct, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim A rif and A nr. v. Rahmatunnisa Begum and A nr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius A I R 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma N and P uri v. N eki P uri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and O rs. 2004 SA R (Civil) 832, where the A pex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted. A s P.W.1 asserts that he is the duly elected Secretary of M/s Margadarshini Educational Society by virtue of resolution, dated 14-04-2003, he must prove that he was admitted as member of the society and thereafter he was duly elected as Secretary in accordance with the provisions of the A ct and bye- laws of the society. The burden of proof has two different things. It means sometimes that a party is required to prove the allegation before the judgment is given in his favour. Unless it is shown that he was duly elected as Secretary of the society, he cannot file any suit on behalf of the society. The burden of proof also means that on a contested issue, one of the two contesting parties has to adduce evidence. Since it is denied that Ravi A nantha was the member of the society, the initial burden lies on the plaintiff to show that he was duly inducted as member of the society as per bye- laws.
d) As per the principles laid down in the above decisions and also as countered by the warned counsel for the defendant the that burden of proof of establishing absolute title to plaint schedule item Nos. 1 to 6 is upon the plaintiff and plaintiff must succeed on the strength of her case by placing evidence and she cannot succeed on the weaknesses of the case put forwarded by the defendant.
36
18. a) Exs. B2 and B8 are marked through D.W.1. Even though, in the chief examination, Ex.B2 is described as Death Extract of late Nookaiah, but at the time of marking, it is described as certificate issued by M.R.O.
containing the date of death of Madda Bodemma. On perusal, Ex.B2 shows that it is a No Objection Certificate issued by M.R.O.. In that no objection certificate, the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Further,
Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao. Further, in
Ex.B2 it is mentioned that the same is issued for obtaining Pattadar
Passbooks only and it is not useful for civil disputes and property disputes salvation. But, the defendant has not examined any person connected to
Ex.B2.
b) The learned counsel for the defendant cited the decision reported in 2007 (1) A.L.D. 253 between Mashetty Venkatesham (died) per L.Rs Vs.
Joint Collector, Medak at Sangareddy and others, in which the Hon’ble
High Court of Judicature, Andhra Pradesh at Hyderabad held at Para Nos. 7 to 9 as follows:
7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the 37 notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
8. In Palaniappa Chettiar v. Arunasdam Chettiar 1962 AC 294, Lord Denning speaking for Judicial Committee held as under:
That he made the transfer for a fraudulent purpose, namely, to deceive the public administration into thinking that he only held 99 acres of land and his son 40 acres, whereas in truth he himself meant to hold the whole 139 acres. Once this disclosure was made by the father, the Courts were bound to take notice of it, even though the son had not pleaded it....But where the fraudulent purpose has actually been effected by means of the colourable transfer, there is no room for repentance. The father has used the transfer to achieve his deceitful end and cannot go back on it. He cannot use the process of the Courts to get the best of both worlds - to achieve his fraudulent purpose and also to get his property back. The Courts will say: 'Let the estate lie where it falls'...
9. In Raj Kishan Per shad's case (supra), after referring to Palaniappa Chettiar's case (supra), this Court held as under:
It is, however, necessary to refer to Digambar Adhar Patil v. Devram Girdhar Patil , in which the effect of proceedings under the Land Reforms Legislation and the proceedings under the Tenancy Act was considered by the Supreme Court. In that case the appellant was a tenant claiming rights under Bombay Tenancy and Agricultural Lands Act, 1948. His application under Section 32-G of the said Act before the Tenancy Tribunal praying to determine the price to be paid to the land owners for the purchase of Ac.8-26 guntas was rejected on the ground that the tenant was already holding land in excess of ceiling limit. The order of the Tenancy Tribunal was reversed by the Bombay High Court. Before the Supreme Court, there was a claim on behalf of the minor son of the tenant to an extent of Ac.7-34 guntas and the claim of the tenant's brother in whose favour there was an alleged partition under which the brother was given the same land. Reliance was placed on the statement made by the land owner before the Tenancy Tribunal as well as the documentary evidence in support of partition. The Supreme Court accepted the oral evidence of the land owner before the Tenancy Tribunal as conclusive and held that if the land which fell to the share of the brother of the tenant is excluded, the latter would be within the ceiling area entitled to purchase the land form the land owners as claimed. Accordingly, the judgment of the High Court was confirmed. The facts before the Supreme Court in that case disclose that the statement made by the land owner before the Tenancy Tribunal should be given due weight while determining the rival rights of the owner and the tenant....
....Applying the principle in Digambar Adhar case (supra), it be almost held that the Land Reforms Tribunal while determining the holding of late Hari Kishan Prasad relied on the factum of an extent of Acs. 150- 96 being in possession of the protected tenants and to that extent gave benefit to the declarant. A declarant who makes a statement and gets benefit out of such statement in getting excluded that land from his holding would not be permitted to turn around at a later stage; in 38 this case at the stage of issue of ownership certificate to the protected tenant to resile from the statement made before the Land Reforms Tribunal. The same would amount to fraud on public administration.
c) Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that as the plaintiff applied to Mandal
Revenue Officer, Rajanagaram, for issuing Ex.B2 as admitted by her in her cross-examination and she did not challenge Ex.B2 in appeal within time, she cannot change her stand and say that the defendant is not legal heir of
Nookaiah and it amounts to fraud on the public authority that is Court or operate as Estoppel. The learned counsel for the defendant also submits that the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of Nookaiah and thereby, the case of plaintiff that she is the absolute owner of the plaint schedule properties as sole heir of
Nookayya failed. In this regard, the plaintiff did not accept the adoption of defendant before revenue authorities.
d) There is no evidence placed to show that the plaintiff admitted the adoption of the defendant before the revenue authorities. In Ex.B2 it is mentioned that the same is for the purpose of issuing pattadar passbook, but not useful for the purpose of settling civil disputes or movable property disputes.
e) P.W.1 stated in her cross-examination that that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said will and he objected for the same. She also stated that she received the said notice from the M.R.O., after filing of the suit.
She also stated that she cannot file, the said notice copy since it was misplaced. She also stated that they applied to the M.R.O. for issuing legal heir certificate of her mother. In the cross-examination of her dated 11.03.2015 in the appeal, she has stated that she did not apply to M.R.O. /
Tahasildar for mutation of her name in Revenue Record for plaint schedule 39 property. She also stated that it is not true to suggest that they applied to
M.R.O. for issuance of Legal Heir Certificate after the death of her mother.
She also stated that it is not true to suggest that she admitted in her cross examination before II Addl. Senior Civil Judge, Rajahmundry that they applied to M.R.O. for issuance of legal heir certificate of her mother. She also stated that it is not true to suggest that Ex.B2 was issued by M.R.O.,
Rajanagaram that she and defendant are legal heirs to her mother,
Bodamma. She also stated that it is not true to suggest that when M.R.O.
issue dnotice for production of pattadar pass book and title deed boosk along with title deeds in the name of their father, for issuance of new pattadar and title deed books in their respective names.
f) The above facts clearly show that she denied about Ex.B2. The admission of P.W.1 is in respect of mere applying to M.R.O. for issuing legal heir certificate of her mother, but not for applying jointly to M.R.O.
Rajanagaram to issue Ex.B2. Ex.B2 is marked through D.W.1. Nothing is elicited in respect of Ex.B2 when P.W.1 was cross-examined on 06.08.2009.
Thereby, it can be safely held that the plaintiff did not admit that she applied to M.R.O., Ranagaram for issuing Ex.B2 as contended by the learned counsel for the defendant. In those facts and circumstances, the principles laid down in the decision reported in 2007 (1) A.L.D. 253 referred supra is not applicable to the facts in this suit. Hence, Ex.B2 is not of any use for the defendant to prove his claims.
g) The learned counsel for the defendant cited another decision reported in 2007 (3) A.L.T. 720 between V.Krishnaiah and others Vs.
Joint Collector, Mahabubnagar and others, in which the Hon’ble High
Court of Judicature of Andhra Pradesh at Hyderabad held at Para Nos 15 and 21 as follows:
15. The regularization of an alienation under Section 5-A of the Act, is akin to the relief of specific performance of an agreement of sale, under the 40 provisions of the Specific Relief Act . From the point of view of procedure, various hurdles, which, a plaintiff in a suit for specific performance has to face, have been removed under Section 5-A . The provisions of the Transfer of Property Act and the Registration Act are saved. However, on a close examination of the relevant provisions, it becomes evident that the relief under Section 5-A can be granted only when there is no dispute as to the execution of the document concerned. The emphasis is mostly on, verification of possession over the property, existence of a document, collection of stamp duty, and registration charges and then issuance of a certificate of regularization. This, in turn, would lead to the amendment of corresponding entries in the revenue records. The scope of inquiry is very limited. Sub-section (1) thereof presupposes the existence of an alienation or transfer made or effected otherwise than through a registered document. The focus of the enquiry is mostly to examine the date, on which the alienation has taken place and whether the alienation, or transfer contravenes the provisions of the enactments mentioned in proviso to Sub-section (2). After satisfaction on these two aspects is ensured, the Recording Authority would require the applicant to deposit of the amount, representing the stamp duty and registration fees.
21. The experience shows that, wherever the Legislature had intended to confer the power of a civil Court upon an administrative or quasi-judicial authority, or a different forum, either an independent, procedure is prescribed or the one, that applies to civil Courts is extended to them. To the extent the power of adjudication is conferred on the alternative fora, the jurisdiction of the civil Courts is taken away through specific provisions of law. This becomes necessary because the jurisdiction of a civil Court is comprehensive. Further, the exclusion of jurisdiction of the civil Courts would depend upon the efficacy of the remedy that can be granted by the alternative forum. If the matter is examined on the touchstone of these principles, it emerges that hardly any powers of a Court to adjudicate the disputes are conferred upon the Recording Authority. He cannot record evidence. He is not trained to adjudicate the disputes involving complicated questions, such as capacity to contract, succession, testamentary, or otherwise, limitation etc. Therefore, the irresistible conclusion is that the jurisdiction of the Recording Authority under the Act in relation to the regularization under Section 5-A is confined to cases, where, no dispute exists as to the execution of the document. If there is any dispute as to the execution of the document or any other contentions are raised, the dispute has, invariably to be adjudicated by a civil Court.
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that Ex.B2 cannot be challenged in civil court and the proceedings are binding on the parties and so their rights over the properties are regulated by those proceedings and as such, the plaintiff title over the item Nos. 1 to 5 stood disproved. But, in this regard, as stated earlier, in Ex.B2 it is mentioned that the same is issued for obtaining
Pattadar Passbooks only and it is not useful for civil disputes and property disputes salvation. Further the defendant has not examined any person connected to Ex.B2. Ex.B2 shows it is a no objection certificate issued by
M.R.O., and in it, it is mentioned that the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that 41 the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao.
In the light of the above facts, the defendant cannot claim, in the absence of evidence to prove that plaintiff admitted the adoption of defendant before any Revenue Authorities and that Ex.B2 cannot be challenged in this court and it has to be believed. In those facts and circumstances, the principles laid down in the above decision are not applicable to the facts in this suit.
19) In respect of Ex.B8, in the chief examination, D.W.1 stated that Ex.B8 is the tax receipt. But at the time of marking, in the evidence of D.W.1 in his chief examination it is mentioned as the notice issued by Tahasildar,
Rajanagaram. On perusal of Ex.B8, it shows that it is an urgent notice issued to Sri Siddabathula Bojjayy, Srikrishnapatnam informing him to attend inquiry on 29.10.2007 at 11.00 a.m. in respect of an inquiry as he refused to receive the notice after keeping the title deed of the lands in S.No. 02.1A to an extent of Ac. 0.71 cents and S.No. 391/2c to an extent of Ac.1.19 cents for which, Sri Modda Venkata Rao and his sister are legal heirs of Madda
Nookaiah. Nobody connected to Ex.B8 is examined by defendant. Ex.B8 is only a notice regarding the dispute between Madda Venkata Rao and his sister and even assuming that the said Madda Venkata Raju is the defendant and his sister is plaintiff and an inquiry is conducted in respect of the lands mentioned supra and a notice was issued to Siddabathula Bojjayya, but, basing on that, there is no reason how the defendant can claim that it is helpful to prove his claims in respect of item Nos. 1 and 2 of plaint schedule properties.
42 20 a) P.W.1 in her cross-examination has stated that defendant is in possession of Item Nos. 1 and 2 of plaint schedule properties. But she claimed that he is in forcible possession. She also stated that the possession of the defendant is only for the last four years, but she has no document to prove the same. She admitted and stated that they applied to M.R.O. for issuing legal heir certificate of her mother. She denied these suggestion and stated that it is not true to suggest that M.R.O. issued legal heir certificate as herself and defendant are the legal heirs of her mother. P.W.1 also stated in her cross-examination that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said Will and she objected for the same. She also stated that she received the said notice from the M.R.O. after filing of the suit. She further stated that she cannot file the said notice copy since it was misplaced.
b) The learned counsel for the plaintiff submits that as M.R.O. is being a statutory authority as per Section 4 of Pattadar Passbook Act, can issue legal heir certificate after conducting inquiry under Section 5 (a) of the Act and plaintiff did not dispute Ex.B2 by filing appeal within one year. M.R.O.,
Rajanagaram issued proceedings under Ex.B2.
c) The learned counsel for defendant also further submits that as
P.W.1 admitted that she received notice from M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property in pursuance of the said Will, that plaintiff cannot take a different and new stand before this Court. The learned counsel for the defendant cited another decision reported in 2007 (1) A.L.T. 253 between Mashetty
Venkatesham (died) per L.Rs Vs. Joint Collector, Medak at
Sangareddy and others, in which the Hon’ble High Court of A.P. held at
Para Nos. 7 and 10 as follows:
43 “7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
10. As noticed, the deceased-first petitioner claimed the property to be joint family property and did not demour when l/4th share was computed to his share in land ceiling proceedings. His legal heirs cannot now be permitted to take a different stand before the authorities under RoR Act. The first respondent, therefore, came to the correct conclusions and there is no infirmity or misdirection in placing reliance on the certified copy of the order passed by the LRT.”
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that plaintiff is prevented from changing or taking different stand from the stand already taken before statutory authority or before Judicial Authority and Ex.B2 and Ex.B8 proceedings are statutory in nature and they cannot challenged in Civil court and the same are binding on the plaintiff or parties to the said proceedings.
c) The evidence of P.W.1 does not show that she has accepted the adoption before the Revenue Authorities. If that is so, there is no force in the contention of the learned counsel for the defendant that plaintiff has admitted about adoption in view of Exs. B2 and B8 and so, she cannot challenge the adoption before this Court. Unless and until the defendant proves that the plaintiff admitted the adoption before the Revenue
Autorities, the defendant cannot claim that the plaintiff cannot challenge the 44 adoption of the defendant in this court. In view that basing on the Exs. B2 and B8, the defendant cannot claim that the M.R.O. after conducting due inquiry issued Exs. B2 and B8 and plaintiff has obtained benefits from the
Statutory authority and she is not entitled to take different stand in this court. Hence, there is no force in the contention of the learned counsel for the defendant that because Ex.B2 is not challenged by filing of an appeal within a period of one year, the plaintiff cannot challenge here and say that the defendant is not the legal heir of Nookaiah as there is no evidence placed by the defendant to show that the plaintiff has admitted that the defendant is an adopted son of late Nookaiah, before Revenue Authorities.
21 a) The evidence of P.W.1 and D.W.1 clearly prove that Item Nos. 1 and 2 of plaint schedule properties are the absolute properties of Madda
Nooaiah and the plaintiff is the daughter of Madda Nookaiah It is the defendant, who is claiming that he is adopted son of late Madda Nookaiah and Madda Nookaiah has executed the Will dated 01.10.1996, which is marked as Ex.B3. The defendant is claiming that he was adopted by the
Madda Nookaiah and his wife about 50 years and he is living with Madda
Nookaiah till the date of death of Madda Nookaiah.
b) D.Ws.2 and 3 corroborated the evidence of D.W.1 in their chief examinations regarding adoption of defendant by late Nookaiah. In the cross-examination, D.W.2 stated that that the adoption ceremony was performed in the house of father of plaintiff, in the presence of three elders and the defendant was handed over by his natural father to the father of the plaintiff through his hands. He further stated that Vyshanva Purohit of their caste was called and he chanted mantras. He also stated that no invitation cards were printed for the adoption ceremony of the defendant . He also stated that a document was executed in the presence of elders, on which,
Subbayya put his signature and handed over to the father of the plaintiff. He 45 also stated that he cannot say the year of said adoption, but it was held more than 70 years back. He also stated that he never went to the school to verify records to find out whether the defendant was admitted by the father of the plaintiff. He also stated that he saw the papers pertaining to loan obtained by the defendant and father of plaintiff but he canot say the description of those documents. He further stated that no documents pertaining to partition of property between Nookayya, plaintiff and defendant was scribed by Karanam. He also stated that himself, defendant Issa Koti
Seshamma (D.W.3) and Gummadi Srinu attested the Will of Nookaiah in the year 1996 on the 10th, but he cannot say the month. He further stated that he studied upto 5th call. He also stated that he cannot say date of his marriage. He also stated that as he saw the above incident the year of Will is remained in his memory, therefore, he is unable to recollect the said year.
He also stated that the Will was executed at 10.00 a.m. He further stated that he does not know whether the said Will is registered or not. He also stated that nearly one hour is taken for completion of the Will. He further stated that after the execution of the Will it remained with Nookaiah and he did not see it again. He further stated that Abbulu scribed the Will in their presence. He further stated that he does not know the contents of the said
Will. He further stated that after completion of the scribing of the Will the above referred four persons put their signatures. He further stated that they handed over the Will to Nookaiah. He also stated that that is all taken place in their presence.
c) In the chief affidavit of D.W.2, only the month and year of the Will are mentioned, but not the date of the Will. In the chief affidavit of D.W.1, the age of D.W.1 is not mentioned. D.W.1 was cross-examined on 13.04.2010 before the Court and at that time, he stated that his age is 60 years. But, the defendant’s age is shown as 55 years in the plaint. The alleged adoption according to D.W.2 as stated earlier was taken place about 46 more than 70 years ago. Further, the evidence of D.W.2 that a document was also executed in the presence of elders on which Subbayya, the natural father of defendant put his signature and handed over the same to the father of the plaintiff clearly prove that the claim of the defendant that he was adopted by Madda Nookaiah, is not believable since no document is filed to prove the same and, on the other hand, the adoption claimed by D.W.1 is oral and there is no document executed at the time of adoption. D.W.2 admitted that his house and the house of plaintiff are situated side by side.
He also admitted and stated that it is true that the used water being discharged from the house of plaintiff flows in front of his house. He denied the suggestion and stated that he has no talking terms with the plaintiff for the last 8 years as used water discharged from the house of plaintiff is flowing infront of his house. But, the admission of D.W.2 about flowing of discharge water from the house of plaintiff in front of his house shows that
D.W.2 is interested witness and that is the reason why even though he cannot describe the documents pertaining to the loan obtained by the defendant and father of the plaintiff has stated that he saw the papers.
Further, he stated that he did not verify the school records to find out whether the defendant was admitted by the father of the plaintiff. These facts shows clearly stated earlier that the evidence of D.W.2 is the case of the defendant.
d) D.W.3 stated that her age is 45 years. In the cross-examination, she has stated that her marriage was performed 30 years back. She also stated that prior to her marriage she has no acquaintance with the parties to the suit and she never visited Bhupalapatnam. She also stated in her chief examination that she attended the adoption ceremony of defendant, which took place about 50 years ago as claimed by the defendant. Thereby, it can be safely held in the light of the evidence of D.W.3 that she could not have 47 possibility to attend the alleged adoption ceremony and hence, her evidence is also does not in spire the confidence to the so called adoption.
22 a) D.W.4 is the natural mother of D.W.1. She stated in her cross- examination that the defendant was given in adoption to the father of the plaintiff and he took him in adoption and a document was executed by him and her husband and gave it to the father of the plaintiff. She also stated that by executing a document by her and her husband, they sent the defendant to the house of the father of the plaintiff that was all happened and that is mentioned by adoption. She also stated that the defendant did not join with her husband by selling the property. She also stated that she does not know in which school the defendant studied. She also stated that the defendant brought her to Court. In the light of the above statements of
D.W.4 and as the D.W.4 is the natural mother of the defendant and the documents stated to have been executed is not filed into the court, it can be safely held that the evidence of D.W.4 is not believable.
b) The learned counsel for the plaintiff submits that D.W.4 did not speak about physically handing over of the defendant into the hands of the father of the plaintiff, which is most important and the only requirement for essential and valid adoption. In this regard, D.W.4 stated in her chief affidavit that herself and her husband delivered minor Venkata Rao to
Nookaiah and his wife Bodemma at the time of adoption, ceremony took place and their purohit performed puja and that therafter, we had a feast.
In the light of the said fact there no force in the contention of the learned counsel for the plaintiff that P.W.4 did not speak physical handing over the defendant into the hands of the father of the plaintiff, but as stated earlier, the evidence of D.W.4 is not inspiring the confidence as the documents stated to have been executed by herself and her husband are not filed into 48 the court and further, on the other hand, the claim of the defendant is that it is an oral adoption.
23. a) In respect of Ex.B3 Will dated 01.10.1996 apart from the fact that
D.W.2 attestor is an interested witness and D.W.3 whose marriage was performed about 30 years back has stated that adoption ceremony took place about 60 years ago and thereby, herself attending the alleged adoption is not believable and D.W.4 is interested witness being natural mother of the defendant, the plaintiff has taken steps for sending Ex.B3 will to hand writing expert to compare it with the admitted thumb impression of Madda
Nookayya available on Exs.A1 and A2 which are the title deed books in respect of item Nos. 1 and 4 of plaint schedule properties and 2 and 6 of plaint schedule properties respectively.
b) The hand-writing expert, P.W.4 compared the thumb impressions in Exs.A1 and A2 with the thumb impressions in Ex.A3 and gave his opinion that the thumb impressions of Exs.A1 and A2 are not identical with the thumb impressions in Ex.B3. His opinion is marked as Ex.X2 and covering letter is marked as Ex.X3.
c) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will and that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support the report and that part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison and that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses and that the
Expert’s opinion is hearsay evidence and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a 49 definite science and can be relied upon. The learned counsel for the defendant also submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW4 has to be brushed aside.
d) On the other hand, the learned counsel for the plaintiff submits that the evidence of P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Exs.A1 and
A2 are not identical with the thumb impressions on Ex.B3 and that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of Madda Nookayya and when these exhibits are marked through
P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda
Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya and that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparison of finger prints if any.
e) The learned counsel for the defendant cited a decision reported in 1983 Crl.L.J. 858 between State of Rajasthan Vs. Dr. J.P.Sharma and others, in which the Hon’ble High Court of Rajasthan held at para No.17
17. It is the duty of the prosecution to prove that the specimen writings are of the accused and only then the question can arise as to whether the opinion of the handwriting expert who compared the specimen writings with the writing on the questioned documents that they are of the same person, should be relied upon or not.
As per the principles laid down in the above decision cited by the learned counsel for the defendant and in the light of the rival contentions, the evidence of P.W.4 Hand Writing Expert has to be considered and before that it has to be seen whether thumb impressions on Exs.A1 and A2 are that 50 of Madda Nookayya. As the said thumb impressions are taken as basis for comparison in thumb impressions in Ex.B3 Will. Exs.A1 and A2 are marked through P.W.1. Nothing contra is elicited in the cross-examination of P.W1.
to prove that the thumb impressions on Exs.A1 and A2 are not that of
Madda Nookayya. It is not even suggested to P.W.1 that the thumb impressions on Exs.A1 and A2 are not that of Madda Nookayya. Exs.A1 and
A2 are issued by Mandal Revenue Officer, Rajanagaram to late Madda
Nookayya. No evidence is placed by the defendant to prove that thumb impressions in Exs.A1 and A2 are not that of Madda Nookayya. D.W.1 also not stated that the thumb impressions in Exs.A1 and A2 are not that of
Madda Nookayya. In those facts and circumstances, as Exs.A1 and A2
Pattadar passbooks were issued by Mandal Revenue Officer, Ranagaram in the name of Madda Nookayya, it can be safely held that the thumb impressions in Exs.A1 and A2 are that of late Madda Nookayya. Thereby, there is no force in the contention of learned counsel for the defendant that the thumb impression in Exs.A1 and A2 are not admitted thumb impressions of the Madda Nookayya. In the light of the said fact, the evidence of P.W.4 has to be considered.
d) P.W.4 in his chief examination stated that he has got taken photographs of the disputed and admitted thumb impressions in his presence through the photographer, Finger Print Bureau, Hyderabad. He also stated that he examined the clarity and compared the disputed thumb impression with the admitted thumb impression and found that 1) the admitted thumb impression marked “ is smudged and not clear and wanting in clear ridge characteristic required for he purpose of establishing identity.
Hence, the admitted thumb impression marked A is unfit for comparison. 2)
The disputed thumb impression marked D is not identical with the admitted thumb impression marked Ex.A-1 of Madda Nookayya. He also stated that the opinion C.No.91/U4/F.P.B. C.I.D./2012 along with three photo copies are 51 now marked as Ex.X1. He also stated that the covering letter dated 02.07.2012 of their office is now marked as Ex.A2.
In the cross-examination he stated that they compared disputed thumb impressions with standard thumb impression and they gave their opinion. He also stated that it is true he did not mention about comparison of disputed thumb impression with that of standard impression. He also stated that according to him there is nothing standard thumb impression, so they have not used the word standard impression is his report. He further stated that it is true they have not mentioned size, shape, width. He also state that it is true in circumstances like peeling of skin of the thumb impression due to certain skin diseases (permanent) or other extreme circumstances the chance of obtaining clear impressions is not possible. He also stated that he did not mention in his report about two thumb impressions A and A1 are that one person or not since he found that A1 is unfit for comparison. He also stated that he is unable to say with his experience whether A, A1 belongs to same person or not.
The above facts stated by p.W.4 in his chief and cross-examination clearly prove that though, he has not used the standard thumb impression in his report and not mentioned the shape, width and other measurements of both A,A1 and D Thumb impressions as stated by him, mentioning the same or those particulars for comparison of the thumb impressions or not necessary that the opinion and evidence of expert P.W.4 can be relied upon.
e) The defendant has not placed any evidence to prove that there is any peeling of skin of thumb due to certain skin diseases or other extreme circumstances, due to which, there were no chances of obtaining clear thumb impressions. In those facts and circumstances, it can be safely held that the evidence of P.W.4 is believable, which shows that the thumb impression in Ex.B3 will is not that of the late Madda Nookayya.
52
24. a) The Hon’ble Supreme Court, in the decision cited by he learned counsel for the plaintiff in AIR 1979 Supreme Court 1708 between Jaspal
Singh Vs. State of Punjab and Jindra and another Vs. State of Punjab, in which the Hon’ble Supreme Court held at Para No. 8 as follows:
8. Learned Counsel for the appellants also relied on the evidence of Dr. Mohinder Partap PW. 1, who has stated that the deceased had reached the hospital on 4.8.71 at 2 a.m. Although the injured was speaking same thing his statement could not be recorded. On the other hand, the witness recorded the statement of the mother Tej Kaur who seems to have given a different version and suggested that her son Bhupinder Singh deceased had an injury on his abdomen which was caused by the falling of a bag containing wheat on his stomach. The thumb impression of Tej Kaur was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaur. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr.K.S. Puri clearly demonstrates that the thumb impression on the statement Exh.P B was not that of Tej Kaur but was of some other woman who appears to have falsely represented to the Doctor that she was the mother of the deceased. This is supported not only by the fact that the thumb impression of Tej Kaur on the statement of P.B was forged but also by the categorical statement of PW 6 wherein she denied having made any such statement before the Doctor. The Doctor although examined as a witnessess in court was never made to identify Tej Kaur who was also one of the witnesses, nor was any application given by the accused that the Dr should be called upon to identify Tej Kaur, PW. 6 in order to test the validity of the statement that it was really Tej Kaur who made the statement Exh P.B. before the Doctor. In these circumstances, therefore, the evidence of the Doctor does not appear to be of any assistance to the defence.
Basing on the principles laid down in the above decision, the learned counsel for the plaintiff submits that identifying thumb impression is an exact science and does not admit any mistake or doubt.
b) In this regard, the learned counsel for the defendant cited another decision reported in 2011 (5) A.L.D. P.5, in which the Hon’ble High Court held at para Nos.36 as follows:
36. …… Further the learned trial Court failed to consider the fact that DW- 5, the finger print expert stated in his evidence that the thumb mark of the first Defendant found on first page of Ex.A-1 is only identical with that of his admitted thumb mark but the other thumb marks were not fit for comparison for want of clear cut ridge characteristics. Even the science relating to the comparison of finger prints is not perfect science and in our view the learned trial Court gave undue emphasis to the opinion expressed by DW-5 finger print expert …….
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that the opinion of the expert is 53 secondary evidence and it will not supersede the primary evidence of direct witnesses.
c) The learned counsel for the defendant also submits that the Hon’ble
Supreme Court in the decision reported in AIR 1971 S.C. 1708 referred supra has not laid any principle that expert is opinion on thumb mark is distinct science and can be relied upon. But, it has recorded the contention of the appellant’s counsel in Para No.8 of the said judgment, but on careful consideration of the decision reported in AIR 1979 S.C. 1708, referred supra it can be safely held that the said principle is not the contention of the learned counsel for the appellants in that decision, but it is the observation or principle held by the Hon’ble Supreme court that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. In those facts and circumstances, as per the principles laid down in the decision reported in AIR 1979 S.C. 1708, referred supra and also as even the evidence of D.Ws. 2 to 4 out of which, the defendant is claiming that defendants 2 and 3 are eyewitnesses being attestors is also not believable, it can be safely held even by consideration of the principles laid down in the above decision reported in 2011 (5) A.L.D. page 4 supra, that the defendant miserably failed to prove that the thumb impression in Ex.B3 is that of the late Madda Nookayya. On the other hand, the plaintiff through the evidence of expert as P.W.4 coupled with the contents in Exs.X1 and X2 and the evidence of D.Ws. 2 to 3 proved that thumb impression in Ex.B3 is not that of Madda Nookayya. Further, as contended by the learned counsel for the plaintiff, if really, Ex.B3 will was executed by late Madda Nookayya, there was nothing preventing the defendant from mutating his name in respect of item Nos. 1 and 2 of plaint schedule properties in the revenue records.
54
d) D.W.1 in the cross-examination stated that Pattadar Passbooks of
Madda Nookayya is in his hands and title deed book is with the plaintiff. He also stated that as per the Will, Ex.B3 Nookaiah bequeathed item Nos. 1 and 2 of schedule property in his favour. He also stated that as he was cultivating item Nos. 1 and 2 of schedule property he did not apply for mutation of his name in respect of item Nos. 1 and 2 in the revenue records immediately after death of Nookaiah. He also stated that after the death of his wife of Nookaiah in the year 2004 he applied in the year 2005 for mutation. He also stated that for the first time he filed Ex.B3 will in the
Court and prior to that he did not file the will before any public Officer as there were no disputes. He also stated that when he asked the plaintiff to give the revenue title deed book for mutation, though she agreed to give the said book but she postponed the matter and later got issued a notice. He also stated that Ex.A8 acknowledgement contains his signature.
The above facts stated by D.W.1 clearly prove that he never produced the Will before the Tahasildar at the time of requesting mutation of his name, in respect of item Nos. 1 and 2 of plaint schedule properties.
e) D.w.1 has stated in his cross-examination that he was present at the time of execution of the Will Ex.B3 without seeing the document. He also stated that the said Will was executed two months prior to the death of
Nookaiah at the house of Nookaiah. He also stated that the at the time of execution of the said Will Nookaiah was moving around. He also stated that
Rajanagaram is nearly 10 k.m.from Bhoopalapatnam. He further stated that there is a sub-registrar office at Rajanagaram. He also stated that
Registration of documents with regard to alienation or purchase of properties of Bhoopalapatnam are made at the sub-registrar Office at Rajanagaram. He also stated that the plaintiff herein and her mother Boddemma were also present at the time of execution of the Ex.B3 Will. He further stated that out 55 of trust between himself and Nookaiah, he did not get the Will Ex.B3 registered. He further stated that K.Abbulu scribe of Ex.B3 Will is not a document writer. He also stated that all the three attestors are resident of
Bhoopalapatnam. He also stated that the Will Ex.B3 was executed at 10.00 a.m. He further stated that he brought all the three attestors for the purpose of attesting the Will. He also stated that he went and brought the scribe
Abbulu for scribing Ex.B3 Will. He further stated that all the documents including pattadar passbook and title deed book were available with
Nookaiah by the date of execution of Ex.B3 Will. He further stated that passbook and documents were referred for scribing Ex.B3. He also stated that four days after execution of the Will Nookaiah handed over the will
Ex.B3 and pass book and title deed pertaining to Yerrampalem property and similarly the pass book and title deed pertaining to Srikrishnapatnam, Tuni.
He also stated that Yesubabu is his natural younger brother. He also stated that Vissakoti Seshamma is the mother-in-law of son of Yesubabu. He also stated Gummadi Srinu is his nephew i.e., son of his natural younger sister.
He also stated that Beera Subba Rao is he husband of Bodemma’s sister. He also stated that K.Abbulu is the younger brother of his wife.
f) The above facts stated by D.W.1 clearly prove that the defendant has taken active role personally in securing the attestors and scribe for execution of Ex.A1 and all of them are closely related to him as Yesubabu is his natural younger brother, Vissakoti Seshamma is the mother-in-law of son of Yesubabu, Gummadi Srinu is his nephew i.e., son of his natural younger sister and Beera Subbarao is the husband of Boddemma’s sister and thereby all the three attestors are closely related to him and further scribe
K.Abbulu is the younger brother of his wife. These facts in the light of the fact that defendant did not choose to give any reply notice when the plaintiff got issued legal notice dated 22.10.2007 under Ex.A7, after receipt of the same under Ex.A8 and also admittedly he did not file Ex.B3 before 56 any Public Officers clearly prove that Ex.B3 is surrounded by suspicious circumstances and as held by the trial court, the defendant miserably failed to prove the execution of Ex.B3 will by late Madda Nookaiah bequeathing item Nos. 1 and 2 suit schedule properties to defendant.
g) In the decision reported in 2012 (4) A.L.D. 618 between
T.Bheem Reddy and another Vs. P.Laxmi Bai and others, in which the
Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision, in the present case , merely basing on the fact that the plaintiff has not filed rejoinder disputing the adoption or Will claimed by the defendant, it does not and cannot be treated as an admission of plea taken by the defendant in the written statement. In view of that, even though, the plaintiff has not filed rejoinder disputing the adoption or Will propounded by the defendant, the defendant failed to prove execution of Ex.B3 Will and adoption propounded by him.
25. a) D.W.1 stated in his cross-examination that he does not remember the year in which he was given in adoption to the Nookaiah. He further stated that he is having a ration card to show that himself and Nookaiah living in one house. He also stated that he studied up to 3rd call in
Bhoopalapatnam. He further stated that he discontinued his studies after 3rd 57 class. He further stated that Ex.B1 study certificate is obtained subsequent to the filing of the suit.
b) In respect of Ex.B1, it is purported to have been given by P.W.3.
P.W.3 categorically stated in his chief examination that “ I am working as teacher, in M.P.U.P. School, Bhupalatnam. I received summons from the
Court, in which no direction was given to us to bring any register. Our school was established on 06.05.1959. Ex.B1 is the date of Birth and tudy certificate and it does not contain his signature and the desgination stamp on Ex.B1. Ex.B1 does not belong to their school. The handwriting in ex.B1 is not my handwriding. Since last three years I am working as Head Master in the above School. Prior to that he worked as teacher in the above school for about 5 years. Total since last 8 years I am working in that school. Ex.B1 certificate is not issued by their school, since their school was established in the year 1959 the registers from 1955 to 1959 does not exist”. In the cross-examination, he has stated that presently he is working in M.P.
Elementary School, at Kovvur. He further stated that he did not bring the school record today. He further stated that he does not know the contents of the court summons served on him, but when he came to Court, to know for what purpose he was summoned by the court, his evidence is recorded by the court. He further stated at the relevant time the school was not in existence. He further stated that his name is K.Ugandhar Varma and he volunteers and stated that he did not issue Ex.B1. He further stated that the writing and signature in Ex.B1 does not belong to him. He also stated that there is no record in their school to show that when the school was established. He further stated that he did not produce any record relating to the school.
c) The above evidence of P.W.3 clearly shows that Ex.B1 was not issued by P.W.3 or his school. If really, Ex.B1 was issued by P.W.3 or 58
M.P.U.P School, Bhoopalapatnam, in which P.W.3 was working as teacher, defendant should have placed evidence in proof of the same. But, the defendant did not place any evidence to prove that Ex.B1 was issued by the
M.P.U.P. School, Bhupalapatam.
d) The learned counsel for the defendant submits that P.W.3 though summoned to produce School Register of M.P.U.P.School of the year 1959, the witness did not bring records and not directed to give evidence yet the evidence of PW.3 recorded in chief in the absence of defendants/Appellants counsel etc, so his evidence has no legal sanctity under law. In respect of this contention of the learned counsel for the defendant, even assuming that
P.W.3 was summoned only to produce documents, but not for giving evidence, but since his evidence is recorded, though the learned counsel for the defendant submits that the chief examination of P.W.3 was recorded in his absence since the defendant’s counsel conducted the cross-examination of P.W.3 merely because he was not summoned to give evidence, the defendant on whom the burden is there to prove that the contents in Ex.B1 though it is marked in the absence of evidence placed by him, cannot claim that Ex.B1 is proved. As such, in the absence of evidence of P.W.3 also, since the defendant has not placed any evidence to prove Ex.B1, it can be safely held that the defendant failed to prove Ex.B1.
26. a) D.W.1 stated that he has ration to show that himself and Nookaiah were living in one house, but no ration card is marked by the defendant.
D.W.1 got marked Ex.B4 which is the No Due Certificate issued by P.A.C.S.
Gopalapatnam, it is dated 07.09.2009. Ex.B4 is given subsequent to the filing of the suit. It does not show that defendant has any concern with the suit properties or he had taken loan from P.A.C.S., Gopalapuram in respect of Item Nos. 1 and 2 of the plaint schedule properties.
b) In respect of Ex.B4, the Executive Officer, P.A.C.S., Bhupalapatnam 59 is examined as D.W.5 and he stated in his chief examination that Ex.B4 was issued by him and the contents of the same are correct. He stated in the cross-examination that the father of the name of the defendant is shown as
Subbayya the receipt dated 24.04.2000 pertaining to the same loan transaction and the said receipt is marked as Ex.X1. He admitted in the
Cross-examination that he brought the receipt book pertaining to the year 2000 as it is also relating to the loan of the defendant though he did not bring the loan register to the Court. He stated that he did not bring loan register due to the lack of knowledge. He also stated that Ex.X1 receipt does not contain the signature of the defendant. He further stated that if the party is available they used to obtain his signature on the receipt. He further stated that every year they used to get their account and receipts audited with local fund audit. He also stated that the audit party used to put ‘√’ in the receipt book. He further stated that there is an audit report every year and it contains what are the books and receipts audited during that year. In the re-cross examination, he stated that as he was asked to bring the entire records pertaining to the loan, he brought the receipt books also.
c) The above evidence of D.W.5 shows not only the name of the defendant’s father is shown as Subbayya in Ex.X1 though the same is in the handwriting of the D.W.5 and also in Ex.X1 there is no signature of the defendant and there is no ‘√’ marks in it. Merely because ‘√’ is not there in Ex.X1, it cannot be held that Ex.X1 is created. Ex.X1 shows that Ex.B4 “No Due Certificate” which is issued after filing of the suit cannot have any importance or probative value.
27. The evidence of D.W.6 since he admitted that his license as document writer cancelled and he took treatment in Karri Rama Reddy Mental Hospital till the year 1990 and he did not scribe or attest the will of defendant, is of no use for defendant to prove his case.
60 28 D.W.1 got marked Ex.B7, which is the tax receipt dated 25.04.2010.
The payment of Sisthu is also made after the filing of the receipt. Further
Item Nos. 1 and 2 schedule properties are under the management of the defendant. Mere paying of the tax or sisth under Ex.B7, itself cannot show that the said payment is made by the defendant under the capacity of the title holder of the property.
29. a) The learned counsel for the defendant cited a decision reported in
AIR 1969 S.C. 1359 between Jaspal Singh Vs. State of Punjab, in which the
Hon’ble Supreme Court held at para No. 8 as follows:
[3] Mr. M. C. Chagla argued that in May 1904 Seshamma had not attained the age of discretion and was not competent to make the adoption. He relied on the following passage in Mulla's Principles of Hindu law, 13th Ed., Art. 465, page 491: "A minor widow may adopt in the same circumstances as an adult widow, provided she has attained the age of discretion and is able to form an independent judgment in selecting the boy to be adopted. According to Bengal writers the age of discretion is reached at the beginning of the sixteenth year; according to Benaras waters, at the end of the sixteenth year. The former view was taken in a recent Madras case." [4] Now there is no clear evidence on the question of Seshmnma's age in May 1904. The plant said that she was then 10 years of age. One of the written statements said that she was about 15 years old. Exhibit A-2 an extract from the register of deaths suggests that she was then aged about 14 years. In Ex. A-7 dated March 25, 1907, Ex. B-5 dated May 2, 1907 Ex. B- 110 dated April 25, 1909 , Ex. B-7, dated November 1, 1911, Ex. B-22 dated November 15, 1911, Exs. A-11 and A-12 dated November 17, 1911, she was described as a minor. But Ex. B-138 dated August 9, 1910 described her as a major. The evidence of DW 2 suggests that she was about 15 years old at the time of adoption. The evidence of DW 3 fixes her age at about 17 years in or about 1903. Evidence was adduced to show that she married in 1898 when she was 11 or 12 years old. The appellant made no attempt to produce the certified copy of the register of births which would have shown her exact age. The adoption was made in May 1904. It was challenged in 1953 after a lapse about 50 years. The long delay in filling the suit is not satisfactorily explained. A declaratory suit challenging the adoption could have been filed soon after the adoption. Rajeswararao died in 1950, Seshamma died on October 2, 1952. During his lifetime Rajeswararao was recognised by every member of the family as the adopted son of Bhaskara Rao. He was registered as karnam and acted as such till his death. Under Ex. B-12 dated November 19, 1937 the plaintiffs mother Kamappa purchased a property from Rajeswararao wherein he was described as the adopted son of Bhaskara Rao. Having regard to the long lapse of time and the recognition of Rajeswararao as the adopted son of Bhaskara Rao, the strongest presumption arises in favour of the validity of the adoption. The law on this point is correctly stated in Mullda's Hindu Law, 13th Ed., art. 512 page 519:- "But when there is a lapse of 55 years between the adoption and its be questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained. stands to reason that after a very long term of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act the burden must rest heavily upon him who 61 challenges its validity," see also Venkataseetarama Chandra Row v. Kanchu Marthi Raju, AIR 1925 PC 201, 202. The presumption in this case is very heavy considering that all the parties to the adoption and all those who could have given evidence in favour of its validity have passed away. The appellant has not rebutted this presumption and has not shown that Seshamma did not attain the age of discretion in May 1904 and was not competent to make the adoption. The courts below rightly found infavour of the factum and validity of the adoption. There is no merit in this appeal.
b)The learned counsel for the defendant basing on the principles laid down in the above decision submits that in case of ancient adoption treatment by the family has to be taken in to consideration and the defendant has proved from the evidence of D.W.4, who is mother of defendant and also P.Ws. 1 to 3 that the defendant was always treated as adopted son of Madda Nookaiah. The principles laid down in the above decision is that once the adoption is admitted and the persons who were present at the time of adoption are not alive, there is presumption that the adoption was valid and burden is heavy on the person who has contended that the widow was a minor to prove the said fact. But, in the present case, there is no adoption of defendant. On the other hand, it is denied. The facts in the above decision are different from the facts in this suit since in that decision, adoption is admitted and contention of the opposite party is that the widow who adopted was minor by the date of adoption and in that case, the burden is heavy on the person who contended that the widow was a minor to prove said fact. But, in the present case, not only adoption is not admitted but on the other hand it is denied and defendant also failed to prove the adoption and also execution of Ex.B3 will in favour of him.
30. a) The learned counsel for the defendant cited the decision reported in 1995 (3) A.L.T. P. 372 between Narsingh Singh Vs. Smt Urmila Bai, in which the Hon’ble High Court of Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
17. It is true that the determination of lease would be in one of the modes enumerated under Section 111 sub-clauses (a) to (h) of the Transfer of Property Act . In the present case that has been done under sub-clause (h) 62 of Section 111 of the Act. In fact that has been done by the plaintiff by issuing a quit notice popularly known as 'quit notice' under Section 106 of the Transfer of Property Act as per Ex.A-1 which is replied by defendant under Ex.A-2. Since that was not challenged, there was no issue for the purpose of determination. It is significant to note that the lease or tenancy would become determinable by forfeiture under Section 111 sub-clause (g) item 2 where the lessee renounces his character as such for setting up a title in third person or by claiming title in himself. If the Court finds that the defendant or the adversary is a tenant or a lessee in law and vacates on setting up title even without a quit notice, he would be forfeiting his tenancy when he will be evicted as a matter of penalty under the said provision. Therefore, it was necessary for the learned trial Judge to first of all give a finding on the relevant issues 1 and 2 whether defendant is the tenant on the suit premises and on that even accepting that he would set up a title, that would become redundant and on that count alone he would have been evicted. Thereby defendant would be taking a serious risk if the tenancy of the lessee was established. In other words, it was totally unnecessary for the Court to find out whether defendant was in possession of the property in his own right. Merely on giving a finding that he was a tenant and the tenancy had been determined in any one of the modes permissible under law as above, there could have been a decree for the plaintiff in a case like this. The matter has not stood at this stage.
18….. Now to sum up in a suit for possession by a landlord the issue relating to defendant's title would be totally alien and unwarranted. The learned trial
Judge has adverted to it unnecessarily, has gone into such a question beyond
the scope of the suit and has gone to the extent of recording a finding against the defendant rightly or wrongly. Here it may be emphasised that by doing so, Courts would deprive the parties of their legitimate reliefs in a properly framed suit when an occasion arises. The rule of res judicata is one of such operating situations on the parties regarding their respective rights. If the plaintiff had filed a suit for declaration of title or possession based on title, etc. etc. etc., he was expected to prove only that in the absence of defendant not being a tenant and when the defendant would have resisted it with his own theory that he is the owner or that he has perfected his title by adverse possession, etc. etc. etc. By giving a finding on issue No. 4 in a suit where parties were not directed to concentrate or lead evidence on such matters fully and effectively, it would be a travesty justice and violation of principles of natural justice. In other words, by framing issue No. 4 and by dealing with the same and giving a finding, the judgment of the trial Judge becomes vitiated. Under the circumstances, this Court has a duty to delete such an issue in the light of the observations made above.
b) The learned counsel for the defendant cited the decision reported in 2013 (4) A.L.D. P. 85 (S.C.) between Narinder Singh Rao Vs.
A.V.M.Mahinder Singh Rao and others, in which the Hon’ble High Court of
Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
15. On behalf of the appellant, the submissions were made to the effect that the suit property in fact belonged to Sumitra Devi though it was in the name of Rao Gajraj Singh. The provisions of Benami Transfer (Prohibition) Act , 1988 had been referred to by the learned counsel appearing for the appellant. The question whether the suit property in fact belongs to an individual i.e. whether he is a beneficial owner or is a benami, is a question of fact. There was no averment made in the plaint with regard to the aforestated allegation. No issue to the said fact had been raised before the trial court. The said issue had been raised for the first time before the appellate court 63 and in our opinion, the issue with regard to the fact could not have been raised before the appellate court for the first time and therefore, all submissions made in relation to the provisions of Benami Transfer (Prohibition) Act , 1988 and with regard to real ownership of the suit property cannot be looked into at this stage.
c) Basing on the principles laid down in the above decisions, the learned counsel for the defendant submits that no issue regarding defendnat’s title can be framed or adjudicated merely in the absence of dispute of the title of the defendant from the plaintiff and there is travesty of justice and violation of principles of natural justice in framing he Issues. In this suit, the plaintiff is seeking for declaration that she is the absolute owner of the plaint schedule property. In order to grant or refuse the said relief, it is necessary to go into the issue of whether the defendant is the adopted son of Madda Nookaiah and the Will propounded by him is true, valid and binding in respect of item Nos. 1 and 2 of plaint schedule property.
If that is so, the defendant cannot claim that in framing the Issue Nos. 1 and 2, there is any travesty of justice and violation of natural principles of justice. These issue Nos. 1 and 2 are framed basing on the pleadings of both the parties and they are required to be considered and answered, in order to decide the disputes between the parties. Hence, basing on the principles laid down in the above decisions, the defendant cannot claim that the issue Nos. 1 and 2 are framed are wrongly framed and need not required to be framed and issue No.1 is required to be deleted.
31 a) The plaintiff has not pleaded in the plaint about plaintiff gifting the property just prior to filing of the suit on 18.10.2007 in favour of her daughter and son in respect of Item Nos. 1 to 2 of plaint schedule properties. During the course of the appeal, the evidence is placed in respect of execution of Ex.B12 and Ex.B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13.
64
b) After recalling of defendant as D.W.1, Exs.B12 and B13 are marked on. Thereafter, P.Ws. 5 and 6 are recalled and examined and through them,
Exs.A10 to A13 are marked.
c) P.W.1 stated in her cross-examination that Appellant (D.W.1) is her junior paternal uncle’s son. She further stated that she is older than him.
She further stated that prior to filing of O.S. No.651 of 2007, there were no disputes between him and D.W.1. She further stated that about 10 years back, her mother had passed away. She further stated that she did not apply to M.R.O./Tahasildar for mutation of her name in Revenue Record for plaint schedule property.
d) P.W.5 stated in his cross-examination that he knows the facts in his chief examination affidavit. He further stated that he knows facts in Ex.A10.
He further stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled.
e) P.W.6 stated in her cross-examination that she knows the facts in her chief examination affidavit. She also stated she was not delivered possession of plaint schedule property by P.W.1. She also stated that she is aware of recitals in Ex.A11. She further stated that she and her mother voluntarily and conscious of contents therein had entered into execution of
Ex.A11. She also stated that it is true in Ex.A11, it was recited that since terms and conditions in the Gift deed were not implemented, the gift deed was mutually cancelled. She further stated that the defendant (appellant) is her junior material grandfather’s son. She also stated that she does not know if legal heir certificate was issued by M.R.O. showing as P.W.1 and defendant as L.Rs of deceased Bodamma.
f) The evidence of P.W.1 and P.Ws. 5 and 6 is that the gift deeds under Exs.A10 and A11 are not acted upon and they were subsequently 65 cancelled under Ex.A12 and A13, but the defendant is claiming that in view of execution of Ex.A11 and A12, the plaintiff is not having any title in respect of item Nos. 1 to 2 of schedule properties covered under Ex.A11 and A12 and the subsequent cancellation under Exs.A12 and A13 is not much use for the plaintiff to prove that she has got any right in respect of items Nos. 1 and 2 of plaint schedule property and she had no cause of action by the date of filing of the suit in respect of those properties, which are in possession and enjoyment of the defendant.
32 a) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of
Exs.B12 and B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of Exs.B12 and B13 and that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to Exs.A10 to A13 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
b) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed the original of Exs.B12 and B13 and thereby, there is admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originally of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place 66 evidence about how she is entitled for the suit reliefs, and hence the plaintiff is not entitled for the suit reliefs.
c) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the defendant submits that Exs.B.12 and
B.13 shows that the possession is delivered and title is conveyed to P.Ws.5 and 6 and due to that section 91 and 92 of The Indian Evidence Act, 1872 comes into play and no oral evidence contrary to the same shall be admitted though the defendant is not a party to the same, since the plaintiff is claiming the reliefs based on those documents without pleading about them.
e) The learned counsel for the defendant submits that the plaintiff is claiming the relief for recovery of item Nos. 1 and 2 by evicting the defendant, but just prior to filing of the suit on 20.10.2007 the plaintiff gifted the property in favour of her daughter and son on 18.10.2017 , so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue No.5 has to be decided against the plaintiff and in favour of the defendant.
33 a) The learned counsel for the plaintiff cited the decision reported in
Bondar Singh and Others Vs. Nihal Singh and others, reported in (2003) 4 Supreme Court Cases 161, in which the Hon’ble Supreme
Court held at para No.7 as follows:
67
7. As regards the plea of sub tenancy (shikmi) argued on behalf of the defendants by their learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub tenancy (shikmi) the defendants cannot be allowed to build up a case of sub tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point.
b) The learned counsel for the plaintiff also cited another decision reported in 2012 (4) A.L.D. 618 between T.Bheem Reddy and another
Vs. P.Laxmi Bai and others, in which the Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision there is no need to file rejoinder in the present suit. The defendant has not pleaded in the written statement about the execution of Exs.B12 and 13 Gift deeds by plaintiff and also subsequently cancellation of the said gift deeds under
Exs.A1 and A13. But, the defendant has placed evidence in respect of execution of Exs.B12 and B13. The plaintiff has not filed any rejoinder after filing of the written statement by the defendant. As stated earlier there is no need to file rejoinder. But, the plaintiff is claiming that in view of the evidence of P.Ws. 5 and 6 that they did not accept the gift deeds under originals of Exs. B12 and B13 by the plaintiff and same are stood cancelled in view of execution of Exs.A10 and A11. The plaintiff is claiming that the terms and conditions in the gift deeds under originals of Exs.B12 and B13 were not implemented. Whether they were implemented or not, the plaintiff 68 has not pleaded about execution of originals Exs.B12 and B13 which are
Exs.A12 to A13 and subsequent cancellation of them under Exs. A10 and 11 by her children P.Ws. 5 and 6. In this regard, P.W.1 in her cross- examination on 06.08.2009 only stated that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. At first she stated that she has not executed any documents pertaining to item
Nos 1 and 2 of plaint schedule properties, but later she stated about the execution of settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. Thereby, there was no pleading in the plaint nor any evidence is let in by the plaintiff in the trial court regarding Exs.A10 to
A13. It is only after defendant got marked Exs.B12 and B13 gift deeds in the appeal stage through D.W.1, the plaintiff has taken steps and got examined herself and also P.Ws. 5 and 6 and placed evidence in respect of
Exs.A10 and A13. The plaintiff has to prove her independent title over the schedule property including item Nos. 1 and 2 of plaint schedule properties by the date of suit. Unless she proves the title of item Nos. 1 and 2 of plaint schedule properties by the date of suit, she cannot claim recovery of possession of the said properties irrespective of defendant’s failure of proving the execution of the Will under Ex.B3 in his favour and also the adoption claimed by him. Admittedly, the defendant is in possession of the item Nos.1 and 2 of plaint schedule properties. That is the reason why the plaintiff filed the suit for the relief against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and also damages of Rs. 15,000/- per month per acre for item Nos. 1 and 2 of plaint schedule properties . The plaintiff is claiming that the defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 2005 and was pretending to be 69 managing the item Nos. 1 and 2 on behalf of the plaintiff. Basing on the said pleading, the plaintiff is claiming recovery of possession of the item
Nos. 1 and 2 of the plaint schedule properties.
d) Though, the defendant has pleaded about Ex.B3 Will, but failed to prove. He also pleaded that while refuting the plaint allegations by claiming as are not true and correct, the plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties. He also pleaded that so far as the other items are concerned he has no claim over the suit.
D.W.1 in the cross-examination stated that except item Nos. 1 and 2 of plaint schedule properties, he has no claim against the rest of the suit schedule properties. He also stated except item Nos. 1 and 2 of schedule properties he is not denying the title of the plaintiff over the remaining Items in the plaint schedule property.
e) In those facts and circumstances, there is no force in the contention of the learned counsel for the defendant that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
f) The suit is filed on 20.11.2007. Thereby, it can be safely held that the plaintiff just prior to filing of the suit on 20.11.2007 executed Exs.A12 and A13 on 18.10.2007. As per Exs.A12 and A13, the plaintiff gifted the properties and according to the plaintiff in favour of P.Ws. 5 and 6. But, this fact of gifting the properties is not pleaded by the plaintiff in the plaint without giving any valid reason. Further, the cancellation of Exs.A12 and
A13 by P.Ws. 5 and 6 who are the son and daughter of P.W.1 by executing 70
Exs.A10 and A11 is also not pleaded in the plaint in the plaint. Exs.A10 and
A11 are dated 07.04.2014. P.Ws. 1,5 and 6 admitted that the properties gifted which are item Nos. 1 and 2 of plaint schedule properties are in possession of defendant and there was no delivery of possession of those properties by P.W.1 to P.Ws. 5 and 6. P.W.1 admitted in her cross- examination that she took the plea in the plaint that the plaint schedule property was in her possession by the date of suit. She also stated that she has not filed documents showing her possession and enjoyment of the plaint schedule properties. Admittedly, P.Ws. 5 and 6 are not parties to the suit.
P.W.5 stated that plaint schedule property is not in her possession and enjoyment. P.W.6 also admitted that possession of the plaint schedule property was not delivered by P.W.1. P.W.6 stated that she is aware of the recitals in Ex.A11. She also stated that she and her mother voluntarily and conscious of contents therein had entered into execution of Ex.A11. she also stated that it is true in Ex.A11 it was recited that since terms and conditions in the gift were not implemented, the gift deed was mutually cancelled.
P.W.5 stated in his cross-examination that he knows the facts in Ex.A10. He also stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled. In
Exs. A10 and A11 also, it is mentioned that as Exs.A12 and A13 could not be implemented and also P.Ws. 5 and 6 are not interested and due to some unavoidable circumstances, the said documents are executed in view of agreeing of P.W.1 for taking back the property gifted to P.Ws. 5 and 6 on the request of P.Ws. 5 and 6. It is also mentioned that the said documents are executed after both parties agreed for the terms. It is also mentioned that the rights of P.Ws. 5 and 6 got under Exs.A12 and A13 stood cancelled.
But, P.Ws. 1,5 and 6 have not stated about what are the unavoidable circumstances, which are the reasons for cancellation of Exs.A12 and A13 by 71
P.Ws. 5 and 6. In those facts and circumstances, even though, the defendant has not pleaded about execution of Exs.A12 and A13 by plaintiff in the written statement, the plaintiff at the time of filing plaint, since fully aware of execution of Exs.A12 and A13 by her should have pleaded about the execution of the said documents in the plaint. If really, due to any unavoidable circumstances, Exs.A12 and A13 are not acted upon and they are cancelled by P.Ws. 5 and 6 unilaterally, without accepting by P.W.1, the said fact also should have been pleaded, but in the present case, as per the terms of Exs.A10 and A11 and evidence of P.Ws.1,5 and 6 after agreement of terms of Exs.A10 and A11 only all the parties executed them. Thereby,
P.W.1 is also aware about execution of Exs.A10 and A11 by P.Ws. 5 and 6, but the said fact is also not pleaded in the plaint. The execution of Exs.A10 to A13 by P.Ws. 1,5 and 6 is within full knowledge of plaintiff exclusively, but not within the knowledge of defendant, though they are registered documents. Having failed to plead all these facts by the plaintiff, the plaintiff cannot claim now that they need not be pleaded, because the defendant has not pleaded about the execution of Exs.A12 and A13 in the written statement.
g) The defendant is not a party to Exs.A.10 to A.13. But plaintiff has not added P.Ws.5 and 6 as parties in this suit and also not pleaded about the same. In those facts and circumstances, as per the principles laid down the above decisions and also as no evidence can be let in without pleading, the plaintiff is not entitled to place evidence in respect of Exs.A.10 to A.13 in order to prove her title on item Nos.1 and 2 of the plaint schedule properties.
h) The defendant without pleading about Exs.A12 and A13 placed evidence in respect of Exs.B12 and B13, but when the plaintiff has not pleaded about Exs.A10 to A13, the defendant even without pleading about 72
Exs.B12 and B13 which are the certified copies of Exs.A12 and A13 can place evidence in proof of acts of plaintiff about not having title in respect of item
Nos. 1 and 2 of plaint schedule properties by the date of suit as the plaintiff is claiming title in respect all the suit schedule properties by pleading in the plaint that she is the daughter of Madda Nookayya and Bodemma and as they died intestate, she got all the plaint schedule properties and she is claiming declaration of title that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit. Whereas, the defendant in the written statement pleaded that the plaintiff is not entitled for the relief of declaration that she is the absolute owner of the plaint schedule properties. He also further pleaded that he got the properties in Item Nos. 1 and 2 of plaint schedule properties, in view of the Will under Ex.B3 and he is in possession and enjoyment of the same and he is the absolute owner of the same. But, he failed to prove
Ex.B13, but it does not mean that he is not entitled to place to disprove the title of the plaintiff in respect of item Nos. 1 and 2 of plaint schedule properties, as always the defendant can plead alternative reliefs and entitled to place evidence to disprove the plaintiff’s right. In respect of events happening after institution of the suit, the basic principle is that the rights of the parties should be determined on the basis of the date of filing of the suit.
Thus where the plaintiff has no cause of action n the date of the filing of the suit, he will not ordinarily be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Similarly, no relief will be refused to the plaintiff by reason of any subsequent event if at the date of 73 the institution of the suit, he has a substantive right. As per the principles laid down in the decisions reported in AIR 1987 Supreme Court 741 between
Amarjit Singh Vs. Khatoon Quamarian and also in another decision reported in AIR 1975 SC 1409 between Pasupuleti Venkateswarlu Vs. Motor & General
Traders, and AIR 1974 SC 199 between Mahalinga Vs. Arulnandi. The right to relief must be judged to exist as on the date of suit or institute the legal proceedings. But at the same time in order to achieve substantial justice, the subsequent events in the absence of other disentitling factors or just circumstances have to be taken into consideration to meet the ends of justice. But in the present case plaintiff has not pleaded any fact relating to
Exs.A.10 to A.13 in the plaint and also the evidence in respect of these is placed by plaintiff by examining herself by recalling and also her children as
P.Ws.5 and 6 subsequent to defendant placing evidence in respect of
Exs.B.12 and 13 without any bonafide reasons for not pleading about
Exs.B.12 and B.13 even though they were executed just before filing of the suit.
34 Order 7 Rule 1 (e) of C.P.C. reads as follows:
e) The facts constituting the cause of action and when it arose;
As per the said provision, the facts constitute the cause of action and when it arose must have pleaded in the plaint. Every suit presupposes the existence of a cause of action against the defendant because if there is no cause of action the plaint will have to be rejected. Even though he expression “cause of action” has not been defined in the code, it may be described as “a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed” or “which give the plaintiff right to relief against the defendant”. Thus, “cause of action” means every fact, which it is necessary to establish to uupport a right or obtain judgment. To put it differently, cause of action gives occasion for and forms the foundation of the suit.
b) Thereby, in the present suit, unless, plaintiff proves that she has cause of action in respect of item Nos. 1 and 2 of plaint schedule properties by the date of suit and she pleaded the same in the plaint and also when the said cause of action arose, she is not entitled to claim the reliefs sought for.
74
c) The plaintiff has to prove that even though Exs.A12 and A13 are executed, the property is not divested by her and it continuous to be with her. If really, it is continued to be with her, irrespective of execution of
Exs.A12 and A13, there is no need for execution of Exs.A10 and A11. The very execution of Ex.A10 and A11 much longer to the dates of execution of
Ex.A12 and A13 since, Exs.A10 and A11 are dated 07.04.2014 and subsequently after 7 years, it clearly shows that that she has divested with the properties in item Nos. 1 and 2 which are in possession and enjoyment of 2nd defendant. So, it can be safely presumed and held that in view of that reason only Exs.A10 and A11 were executed. Further as per the principles laid down in the decisions reported in Margadarshini Educational Soceity
Vs. P.Subhashan and another, Union of India and others Vs. Vasavi
Cooperative Housing Society Limited and others (supra) in the present suit also, the burden is on the plaintiff to establish her absolute title of the plaint schedule properties, including Items Nos 1 and 2 and she must succeed on the strength of her case without depending upon the weaknesses in the case of the defendant.
d) In respect of the decision reported in 2009 (4) A.L.T. 727, (referred supra) the learned counsel for the plaintiff submits that the so called gift deeds under Exs.A12 and A13 are not acted upon due to which, the plaintiff remained the absolute owner of the plaint schedule properties.
But, the plaintiff is not able to place evidence to prove that the gift deeds are not acted upon and further, even if any evidence is placed, the same is also not useful for the plaintiff without any pleading for the same.
37 The Hon’ble High court of Madras in the decision reported in AIR 1954
Madras 84, between A.Rakkiyana Gounder Vs. Chinnu Govardan held that no evidence can be let in contra to the terms of the deed and the bar is absolute. Hence, in the present suit also, the plaintiff is not entitled to let in 75 evidence contra to Exs. A12 to A13 unless plaintiff pleads contra to Exs.A12 to A13 and then proves the same 38 In view of that, the defendant failed to prove Ex.B3 Will and title to the Item Nos.1 and 2 of plaint schedule properties, but he is admittedly in possession of the said properties. The plaintiff failed to prove that there was cause of action by the date of filing of the suit, in respect of item Nos. 1 and 2, and she is not entitled for any relief in respect of said properties, more so, declaration of title and recovery of possession and permanent injunction in respect of Item Nos. 1 and 2 of plaint schedule properties which are discretionary reliefs and can be granted only if plaintiff proves that she is bonafide though she is entitled for the reliefs prayed in the suit for other properties in view of evidence placed by plaintiff, and also as the defendant also pleaded in the written statement, as stated earlier that, so far as the other items are concerned, the defendant has no claim over the same and he never interfered in respect of other items of the plaint schedule properties and he has no claim over the said properties.
38 a) The defendant is claiming that generally the damages are not part of subject matter of the suit and are to be determined if suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. and so deciding quantum of profits or damages by original court is contrary to law and that in respect of plea for recovery of item Nos. 1 and 2 by evicting the defendant. Just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her daughter and son, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages.
b) The trial court held that the plaintiff can claim damages by filing separate petition while answering issue No.5. The plaintiff has not paid court fee for the relief of damages. The trial court observed that plaintiff has not 76 led any evidence in respect of the damages and so it cannot be granted in the suit.
c) The plaintiff claimed damages at Rs.15,000/- per annum per acre for item Nos. 1 and 2 of plaint schedule properties till the date of handing over of the possession. But, as stated earlier, the plaintiff is not entitled for any reliefs in respect of Item Nos. 1 and 2 which are not in exclusive possession and enjoyment of plaintiff. As such, the question of granting of damages or deciding the quantum of damages does not arise.
39 Plaintiff has proved that the defendant is not the son of Madda
Nookaiah and that the Will propounded by the 1st defendant said to have been executed by Madda Nookayya on 01.10.1996 is not true, valid and binding in respect of the item Nos. 1 and 2 of the plain schedule properties and that the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties except item Nos. 1 and 2 of plaint schedule properties. The plaintiff is not entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule properties. The plaintiff is also not entitled for recovery of damages at the rate of Rs.15,000/- per month per acre in respect of item Nos. 1and 2 of the plaint schedule properties from the defendant. The plaintiff proved that the plaintiff is having subsisting interest in all the plaint schedule properties except item Nos. 1 and 2 and that the plaintiff is having title to item Nos. 3 and 5 of plaint schedule properties. Hence, the judgment and decree in O.S.
No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s Court,
Rajahmundry has to be modified as plaintiff failed to prove the reliefs claimed by her in respect of item Nos. 1 and 2 of schedule properties, but the trial court granted the same as per it’s judgment. Accordingly, point
Nos. 1 to 8 are answered. Basing on the answers to Point Nos. 1 to 8, Point
No.9 is answered.
77 39 Point No.9: In the result, the appeal in A.S. No. 31 of 2013 is partly allowed. The Judgment and decree of the trial court in O.S. No. 651 of 2007
dated 14.03.2013 on the file of I Addl. Senior Civil Judge's Court,
Rajahmundry, is partly set aside in respect of the reliefs granted of declaration of the plaintiff as absolute owner of item Nos. 1 to 2 of plaint schedule properties and deliver of vacant possession of the same within three months, and also the plaintiff is entited for claiming damages by filing separate petitions. For all other reliefs the Appeal is dismissed.
Dictated to the Stenographer (Grade-II), transcribed by him, corrected
and pronounced by me in Open Court, this the 13th day of February, 2017
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For appellant
D.W.1: Madda Venkata Rao
For Respondent:
P.W.1 : Siddabathula Nagamani P.W.5 : Siddabathula Rajasekhar P.W.6 : Marre Atchiyyamma
DOCUMENTS MARKED
For Appellant:
Ex.B12/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her son P.W.5 Ex.B13/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her daughter P.W.6
For Respondent:
Ex.A10/07.04.2014 : Original of Registered cancellation of gift deed Ex.A11/07.04.2014 : Original of Registered cancellation of gift deed Ex.A12/18.10.2007 : Original of Gift deed executed by P.W.1 in favour Of P.W.5. Ex.A13/18.10.2007 : Original of gift deed executed by p.W.1 in favour Of P.W.6.
78
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
79
Add the following in Page 12 after para 11 (a) as (b)
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
1
In The COURT OF The SPECIAL JUDGE For Trial Of Cases Under S.Cs & S.Ts
(POA) ACT – Cum - X Addl. District & Sessions Judge, East Godavari At Rajahmundry
PRESENT: SRI N.MALYADRI
Special Judge, SCs & STs Court – cum -
X Addl. District Judge. Monday, the 13th day of February, 2017
APPEAL SUIT No. 31 OF 2013
Between:
Madda Venkata Rao .. Appellant/Defendant
And
Siddabathula Naga Mani .. Respondent/Plaintiff
On appeal against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S. No.651 of 2007.
between:
Siddabathula Naga Mani .. Plaintiff
And
Madda Venkata Rao .. Defendant
This appeal is coming on 01.09.2015 for final hearing before me in the presence of Sri B.S.Srinivasu, Advocate for Appellant/defendant and Sri S.Kumar, Advocate for Respondent/Plaintiff and the matter having stood over for consideration till this day this court delivered the following:
JUDGMENT
This appeal is filed against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S.
No. 651 of 2007.
2 The suit in O.S. No.651 of 2007 is filed by the plaintiff against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties 2 from the date of suit till the date of handing over of possession and for costs of the suit.
3 The brief and relevant facts pleaded in the plaint presented under
Section 26 and Order VII Rule 1 of Civil Procedure Code are as follows:
a)Plaintiff is the daughter and only issue of Madda Nookayya and his wife
Madda Bodemma and that plaintiff’s father madda Nookayya died intestate in the year 1996 and her mother also died intestate in the year 2001 and that the plaint schedule properties are the absolute properties of the father of plaintiff i.e., Madda Nookayya and Madda
Nookayya had three brothers 1) Madda Surayya, 2) Madda Suibbayya (father of defendant) and 3) Madda Gopayya. Except Subbayya all other brothers died. Madda nookayya got Item Nos. 1,2 and 6 of the plaint schedule properties in oral partition with his brothers and he was also issued Pattadar Pass book and title deed book for item Nos.
1,2 and 6 of plaint schedule properties. The plaintiff is having custody of the title deed book and the defendant is having custody of the pattadar pass book and that the plaintiff is filing the title deed books as Annexures 1 and 2.
b)Item No.3 of the plaint schedule property was given as gift to Madda
Nookayya under a registered gift deed dated 09.02.1987 by Madda
Gangamma wife of Surayya and that the Madda Nookayya accepted the gift and had been in possession and enjoyment of the same till his death and there after plaintiff and her mother were in possession till the death of plaintiff’s mother and thereafter plaintiff is in possession and enjoyment of the same and that the Madda Nookayya was not issued pattadar passbook or title deed for this item and the original gift deed dated 09.02.1987 is filed as Annexure No.III.
3
c)Item No. 4 of the plaint schedule property was purchased by late
Madda nookayya under registered sale deed dated 02.02.1971 and in the said sale deed the extent was shown as Ac 1.00 cents on ground, but it is Ac 1.06 cents and the original sale deed is filed as Annexure
IV. Item No.4 was also shown in Pattadar pass book and title deed i.e., Annexure No.1.
d)Item No.5 of plaint schedule originally belonged to Madda Surayya and brother of Madda Nookayya who purchased it under registered sale deed dated 20.02.1971 and that after his demise, of his wife
Gangamma sold it to plaintiff in the year 1992 for Rs.40,000/- and received consideration and handed over possession of the land and also the original sale deed dated 20.02.1971 in favour of Madda
Suryya and plaintiff has been in possession and enjoyment of the same ever since.
e)The plaintiff due to illiteracy did not obtain registered sale deed from
Madda Gangamma, however, even otherwise the plaintiff has been in continous uninterrupted possession over since 1992 openly to the knowledge of the entire world and perfected her title by presumption.
The said sale deed dated 20.02.1971 in favour of Madda Surayya is filed as Annexure No.IV.
f)The defendant is the son of Subbayya who is the younger brother of
Nookayya and after death of her mother the plaintiff has been in possession and enjoyment of the plaint schedule properties as absolute owner and since no taxes are being collected, no taxes are being paid.
g)The defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 4 2005 and was pretending to be managing the item Nos. 1 and 2 of plaint schedule properties on behalf of the plaintiff.
h)About 4 months ago, when the plaintiff wanted to apply for loan in
S.C. corporation for erecting a bore well the defendant objected for the same and started making a false claim that he is the adopted son of
Madda Nookayya and that all the plaint schedule properties exclusively belong to him, keeping the plaintiff under the belief that he is managing the properties and taking advantage of plaintiff’s illiteracy and innocence and on the pretext that he will get the name of the plaintiff mutated in revenue records he took custody of the pattadar passbooks standing in the name of Madda Nookayya in respect of Item
Nos. 1,2,4 and 6 of plaint schedule properties.
i)The defendant taking advantage of his influence with local revenue authorities has been pressurizing the plaintiff through them to part with Item Nos. 3 to 6 of plaint schedule properties and giving out threats to the plaintiff through them and the defendant has absolutely no right, title or interest in the plaint schedule property and the plaintiff demanded the defendant to hand over possession of Item Nos.
1 and 2 of plaint schedule properties, but he refused to do so on the other hand he has been threatening to interfere with the plaintiff’s possession and enjoyment of the plaint schedule property under the guise of a false claim that he is the adoptive son of late Madda
Nookayya.
j)The plaintiff came to know that the defendant is trying manipulate some documents to buttress his false claim in collusion with the
Revenue Officials and the defendant always remained as son of
Subbayya and in the old voters list and ration card his father’s name mentioned as Subbayya only.
5
k)In the year 1991, the father of the defendant sold his property under registered sale deed dated 10.04.1991 and the defendant signed as a witness where in his father’s name is shown as Subbayya and thus there is a irrefutable documentary evidence to show that the defendant was never adopted by Madda Nookayya. The certified extract of the sale deed dated 10.04.1991 is filed as Annexure No.IV.
l)In view of the litigious stand taken by the defendant the plaintiff is advised to seek for a declaration that she is the absolute owner of the plaint schedule property and for possession of Item Nos. 1 and 2 of plaint schedule properties and for permanent injunction restraining the defendant his men, agents and successors in interest from interfering with the plaintiff’s possession and enjoyment of the Item Nos. 3 to 6 of plaint schedule properties and the plaintiff issued a legal notice dated 22.10.2007 calling upon the defendant to handover vacant possession of Item Nos. 1 and 2 of plaint schedule properties and the defendant having received the legal notice did not comply to reply and the office copy of the legal notice is filed as Annexure No.III and the acknowledgement due is filed as Annexure No. VIII. Items Nos. 1 and 2 will fetch an income of Rs. 15,000/- per acre per annum after expenses and the defendant is bound to pay the same to the plaintiff.
Hence, the plaintiff prays to decree the suit with costs as prayed for.
4. The defendant filed written statement and the brief and relevant facts pleaded in it are as follows:
a)The defendant refuted the plaint allegations by claiming as not true and correct. The plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties.
b)The defendant is the adoptive son of Madda Nookayya i.e., father of the plaintiff and grew up in the house of Madda Nookayya and there is 6 overwhelming documentary evidence i.e., legal heir certificate, voters list, sugar card and election identification card to establish that he has been shown as the son of Madda Nookayya.
c)Madda Nookayya executed his last will and testatement on 01.10.1996 bequeathing an extent of Ac 0.50 cents in Srikrishnapatnam village in
R.S.No. 391/2B and Ac 1.06 cents in Srikrishnapatnam village in R.S.
No. 390 and an extent of Ac 0.43 cents in R.S.No. 2/2J in
G.Yerrampalem Village in favour of the plaintiff herein while giving an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village an extent of Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties which are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned he has no claim over the same.
d) The defendant never interfered in respect of other items of the plaint schedule properties and he has no claim over the same. Hence, the defendant prays that the suit may dismissed in so far as item Nos.
1 and 2 of the plaint schedule properties are concerned with costs.
5. Basing on the above pleadings, the following issues are settled for trial
before the Trial Court:
1.Whether the defendant is the adopted son of Madda Nookayya and whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
7
2.Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule property?
3.Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule?
4.Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule from the defendant?
5.To what relief?
6. During the course of trial, the plaintiff got examined P.Ws. 1 to 4 and got marked Exs.A1 to A9, while the defendant examined D.Ws. 1 to 6 and got marked Exs.B1 to B11 and Ex.X1 to X3.
7. After conducting due trial, the trial court decreed with suit with costs declaring that the plaintiff is the absolute owner of the Item No.1 and 2 of plaint schedule property and for delivery of vacant possession of the same within three months and also granted injunction restraining the defendant to interfere with the peaceful possession and enjoyment of the plaint schedule property of item Nos. 3 to 6. The plaintiff can claim the damages by filing separate petition.
8. As against the said decree and judgment in O.S. No. 651 of 2007, the defendant filed the present appeal and presented memorandum of appeal under Section 98, Order 41 Rule 1 C.P.C. The brief and relevant facts pleaded in the grounds of appeal are as follows:
a)The Decree and Judgment of the trial court is contrary to law, weight of evidence and probabilities.
b)The defendant did not have free and fair trial before trial court for the following reasons
1)That the evidence and written arguments submitted by the defendant are not considered.
8
2)The plaintiff though admitted as P.W.1 in cross as follows:
“It is true, that I have executed a settlement deed in respect of
Item Nos. 1 and 2 in favour of my daughter on 18.10.2007”, but the suit was presented only 20.11.2007 nearly one month after losing title over item Nos. 1 and 2, yet the trial court declared the title over item Nos 1 and 2 in favour of the plaintiff and ordered delivery.
3)The plaintiff P.W.1 proclaimed the result of the suit at least one month prior to the result.
4)The trial court heard arguments on 06.02.2013, but pronounced the Judgment only 14.03.2013 the long delay in pronouncing the judgment always sends wrong signals as to Judgment to the society.
c)The trial court did not follow the principles that in a suit of declaration of title, the plaintiff has to stand or fall on the strength of the case of the plaintiff, but not on the strength or weakness of the case of the defendant so the trial should have decided issue
Nos. 2 to 5 by recording findings on them independently considering the evidence and written arguments of the both sides.
d)The trial court without consideration of the oral and documentary evidence basing on the contention of the plaintiff’s counsel, without any legal basis, adopted it, which clearly establish the total prejudice caused to the defendant.
e)The trial court willfully omitted to decide Issue No.2, though, in the written arguments, there is submission in detailed manner in respect of the same.
f)The trial court ought to have seen that in the suit involving declaration, injunction and recovery of possession, since the plaintiff sought for relief of declaration and for recovery of 9 possession of Item Nos. 1 and 2, the trial court should have recorded finding fact how plaintiff established her title to item Nos.
1 and 2 before granting relief of declaration of title and recovery of possession.
g)The trial court should have seen that P.W.1 admitted that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007 i.e., one month prior to filing of the present suit, thus when plaintiff herself admitted that she had no title to item Nos. 1 and 2 granting of declaration of title and injunction to item Nos. 1 and 2 is contrary to (2009) 4 ALT 727 and hence, the finding of the trial court on issue No. 2 that the plaintiff is entitled to declaration and recovery of item Nos. 1 and 2 are liable to be set aside.
h)The trial court should have seen that the item Nos. 3 to 6 of the plaint schedule property, the plaintiff sought for declaration of title and for injunction. Even for granting such relief of establishing title is mandatory and the plaintiff as P.W.1 admitted as follows:
“We applied for the M.R.O. for issuing legal heir certificate of her mother”. “It is true to suggest that M.R.O. issued legal heir certificate as myself and defendant are the legal heirs of my mother” but the defendant produce Ex.B2 legal heir certificate showing plaintiff and defendant as children of late Bodamma w/o.Nookaiah and that the plaintiff did not dispute Ex.B2 in cross examination by defendant since Ex.B2 was issued by competent statutory authority as per joint application of plaintiff and defendant so the plaintiff could not establish prima facie case, her absolute title to seek declaration.
i)The trial court should have seen that when P.W.1 admitted that herself and defendant jointly applied to M.R.O., for legal heir 10 certificate after Ex.B2 certificate was issued, that the plaintiff is not competent to take different stand before Civil Court or statutory authority etc. Thus, the plaintiff is not prima facie entitled to seek for declaration of her title.
j)The trial court should have seen that the trial court’s finding of fact on issue No.1 is not only merely abuse of process of law but also failure of justice.
i)The plaintiff did not dispute the Will either in the plaint or by filing better pleadings as required under Order 6 Rule 4 of
C.P.C., to the contentions raised in the written statement which will have material value and that in any case, the parties cannot let in evidence beyond pleadings and the plaintiff having not filed better pleadings as required under
Order 6 Rule 4 of C.PL.C. cannot challenge the Will vide (1981) 2 A.P.L.J. 62.
k)The trial court should have seen that defendant examined, D.W.2 and D.W.3 the attestor of the Ex.B3 who spoke to details of “Due execution” and so the defendant proved execution of Ex.B1, particularly in the absence of objection regarding Will raised by the plaintiff thus proved execution of the Will beyond reasonable doubt.
l)The trial court should have seen that P.W.1 has admitted in cross- examination of P.W.1 as follows:
“I am coming to know that the defendant filed will along with written statement. He did not ask my advocate as to defence set up by the defendant in the written statement. I have not filed any rejoinder regarding the will executed by my father disputing the
Will. I know the said will alleged to have executed by my father for the last two years. I did not place the dispute in respect of the said 11
Will before elders after coming to know about the Will”. Thus the plaintiff never attempted to dispute the Will.
m)The trial court should have seen that only a person who is either the beneficiary or aggrieved alone can dispute the documents and since the plaintiff does not answer the description i.e., neither aggrieved party nor beneficiary, so she is not competent to dispute the same.
n)The trial court should have seen that the evidence of P.W.4 and
Ex.X1 to X5 are all neither relvant nor establish any fact in view of following admission of P.W.1 “My father was a thumb marker my mother had no bank accounts. I have documents containing thumb marks of my father such as pass book”.
But, the plaintiff did not send any document containing admitted or proved thumb mark of late Nookaiah for comparison to Expert but
P.W.4 compared the thumb marks on Will Ex.B3 with some documents thumb marks on the documents which are not proved or admitted, so the comparison has no basis so Ex.X1 to X5 are liable to be rejected.
o)The trial court failed to appreciate the evidence of D.W.1 to D.W.6 coupled with 11 years undisputed enjoyment of the properties covered by Will all establish circumstantially the will, so the finding that will is not proved is not correct and such finding is liable to be set aside.
p)The trial court finding on adoption is abuse of process of law for the following reasons.
i)Exs. B1, B4, B2, Ex.B9 to B11 documents categorically establish
Nookaiah as father of the defendant and that the defendant also examined his natural mother and witnesses whose 12 evidence in substance cannot be brushed aside and that the adoption is disputed more 30 years after it occurred so presumption of adoption available
q)Therefore, upon grounds urged above and upon grounds that may be urged at the time of hearing of the appeal, the appellant prays to allow the appeal and set aside the decree and judgment passed in O.S. No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s
Court, Rajahmundry dated 14.03.0213 with costs throughout and to dismiss the with costs.
10. During the course of enquiry in the appeal, on behalf of the
Appellant/defendant, D.W.1 is recalled and examined and Ex.B12 and
Ex.B13, which are Settlement deed dated 18.10.2007 from the respondent in favour of the son of Raja Sekhar, and Settlement deed dated 18.10.2007 from the respondent in favour of her daughter M.Atchayamma respectively are marked. As per the memo filed by the appellant and recorded the appellant given up the paras 3 to 5 in the chief affidavit. On behalf of the respondent / plaintiff, P.W.1, is recalled and P.Ws. 5 and 6 are examined
Exs.A10 to A13 are marked which are, Regd. Gift cancellation Deed dated 07.04.2014, Regd. Gift Cancellation deed dated 07.04.2014, original gift deed dated 18.10.2007 executed by P.W.1 in favour of Siddabathula
Rajasekhar and Original gift deed dated 18.10.2007 executed by P.W.1 in favour of Marre Atchiyamma respectively.
11. a) For the sake of brevity and convenience here in after the parties and evidence will be referred as referred in the judgment in O.S.
No.651/2007 on the file of I Addl. Senior Civil Judge's Court, Rajahmunedry
dated 14.03.2013.
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The 13
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
12. a) The learned counsel for the appellant/defendant submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
(b) The learned counsel for the defendant submits that unless the plaintiff establishes her own title to the property and succeeds, but the plaintiff cannot succeed on the weakness of the defendant’s case.
(c) The learned counsel for the defendant submits that the plaintiff has to establish her superior title to plaint schedule properties.
(d) The learned counsel for the defendant submits that as per Section 34 of Specific Relief Act a person is entitled for Declaration of right or title if that person possesses the same.
(e) The learned counsel for the defendant submits that as admitted by
P.W.1 since plaintiff did not dispute the Will executed by her father and also the adoption by specifically pleading the same or by filing rejoinder after the written statement filed by the defendant, framing of Issue No.1 does not arise and the defendant has proved the Will executed by his father and also adoption of him by his father.
(f) The learned counsel for the defendant submits that as the plaintiff admittedly did not dispute either of the aspects covered by Issue No.1, but the trial court framed the said issue in respect of undisputed facts and as the issue cannot be framed with respect of undisputed facts, the two aspects are liable to be deleted and if the are not deleted also, both the aspects covered by Issue No.1 are not relevant for deciding the plaintiff’s case as the same 14 can be considered only when plaintiff established primafacie case of absolute title to property.
(g) The learned counsel for the defendant submits that the evidence of
D.W.1 coupled with the contents in Exs.B1 and B2 and since M.R.O. as per
Section 4 of Pattadar Passbook Act being statutory authority can issue legal heir certificate after conducting inquiry under Section 5 A of the said Act and plaintiff did not dispute Ex.B2 legal heir certificate by filing appeal and
M.R.O. issued proceedings under Ex.B8 after appeal time is over and plaintiff also as P.W.1 admitted and accepted the receipt of Ex.B8 proceedings and nothing contra is elicited in the cross-examination of D.W1, the defendant has proved that he is adopted by his father who is natural father of P.W.1.
(h) The learned counsel for the defendant submits that as the plaintiff admitted Ex.B2 and did not challenge it by filing any appeal within time, cannot change her stand and say that the defendant is not the legal heir of
Nookaiah as it amounts playing fraud on public authority i.e., Court or operate as estoppel against the plaintiff and thereby the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of
Nookaiah and, as such, the case of the plaintiff that she is the absolute owner of the schedule property as sole heir of Nookaiah is failed.
(i) The learned counsel for the defendant submits that the adjudication by M.R.O. by following the procedure in 5A inquiry cannot be challenged in
Civil Court and, as such, in view of Ex.B2, the plaintiff’s absolute title over item Nos. 1 to 5 of schedule properties stood disproved.
(j) The learned counsel for the defendant submits that the proceedings under Exs.B2 and B8 are in the nature of decree in Specific Relief Act and is binding on the plaintiff or parties to those proceedings.
15
(k) The learned counsel for the defendant submits that the moment
Exs.B2 and adoption are accepted, the plaintiff has no absolute right or title to plaint schedule properties, and the plaintiff and the defendant are co owners and, as such, at the most the plaintiff may be entitled to relief of partition in view of proviso to Section 34 of Specific Relief Act.
(l) The learned counsel for the defendant submits that in view of Ex.B3
Will executed by late Nookaiah the common owner of the plaint schedule properties, so the defendant cannot be disturbed under any circumstances.
(m) The learned counsel for the defendant submits that as the defendant set up oral adoption, generally the burden would be upon the defendant, but, in the present case, since the defendant produced Ex.B2 coupled with the admissions of P.W.1 that both the plaintiff and defendant are jontly applied for legal heir certificate and in view of the fact that nothing contra is elicited in the cross-examination of D.W.1 in respect of the both the aspects covered in the first issue, it is created a special circumstance in favour of the defendant and created a presumption of relationship of father and son in between the defendant and late Nookaiah.
(n) The learned counsel for the defendant submits that in view of the evidence of natural mother of defendant as D.W.4 and the fact of late
Nookaiah’s conduct and joining of the defendant in school as shown in Ex.B1 and the contents of Ex.B3 Will would clearly establish the adoption of defendant.
(o) The learned counsel for the defendant submits that as per Ex.B10 recitals by paternal aunt descrbining the defendant as son of late Nookaiah and Exs.B9 and B4 Government records describing the defendant as son of
Nookaiah, clearly shows that the defendant has been treated by one and all including the deceased Nookaiah as his son vide Ex.B3 would establish adoption beyond reasonable doubt.
16
(p) The learned counsel for the defendant submits that when the legal heir ship of parties through a common ancestor was not disputed before statutory authority then adoption of such legal heir cannot be challenged
before Civil Court and it is matter of public policy to continue same stand
and thus, Ex.B3 legal heir certificate of defendant and plaintiff as heirs of
Nookaiah was accepted both parties as well as M.R.O. concerned, so this aspect of legal heir ship was only consequence of adoption, so the plaintiff cannot challenge the same and that thus, the defendant heir ship to
Nookaiah as his adopted son is not challenged and so the issue of defendant’s adoption has to be decided in favour of the defendant and against the plaintiff.
(q) The learned counsel for the defendant submits that defendant is claiming possession and enjoyment of plaint schedule properties in pursuance of Ex.B3 in his own right from December, 1996 i.e., from the date of death of late Nookaiah and admittedly he is in possession of Item Nos.1 and 2 of plaint schedule properties.
(r) The learned counsel for the defendant submits that the present suit came to be filed after completion of 11 years and during progress of 12 th year since the plaintiff admits possession of defendant over item Nos. 1 and 2 since past 4 to 5 years prior to suit, the defendant is in settled and uninterrupted possession over item Nos. 1 and 2 of plaint schedule properties and, as such, in view of Section 114 (d) of I.E. Act, the defendant is presumed to be in continuous possession from December, 1996 i.e., past 16 years in the plaint schedule property and thus the plaintiff cannot dispute
Will dated 01.10.1996 now i.e., after 11 long years and the plaintiff’s right, if any to challenge Ex.B3 Will be, within in three years from the date of it’s execution i.e., from 01.10.1996 and so the plaintiff cannot challenge the
Ex.B3 Will.
17
(s) The learned counsel for the defendant submits that P.W.1 admitted in her cross-examination catergorically that she came to know about Ex.B3
Will after filing of written statement, but she did not dispute Ex.B3 Will and the same is sufficient that Section 68 of I.E. Act is not required to be complied with.
(t) The learned counsel for the defendant submits that even otherwise the plaintiff is neither aggreieved party nor executant of the Will since the plaintiff is 3rd party, that she cannot challenge Will so the defendant need not examine the attestors, but however, the defendant examined two attestors as D.Ws. 2 and 3.
(u) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will.
(v) The learned counsel for the defendant submits that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support such report and that a part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison.
(w) The learned counsel for the defendant submits that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses.
(x) The learned counsel for the defendant submits that the Expert’s opinion is hearsay evidene and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a definite science and can be relied upon.
(y) The learned counsel for the defendant submits that the rights claimed by defendant in the suit are to be adjudicated in a properly 18 constituted suit and so Issue No.1 has to be deleted and even otherwise, both adoption and Will are proved by oral evidence of D.Ws 1 to 4, circumstantial evidence and by production of Ex.B1 to B11.
(z) The learned counsel for the defendant submits that as the adoption is 50 years back, the principles of ancient adoption have to be applied.
Z a) The learned counsel for the defendant submits that the defendant is the adopted son of Nookaiah and Item Nos 1 to 5 are the exclusive properties of Nookaiah and Item No.6 is a joint family property and defendant has proved by placing the evidence in the trial court and also the
additional evidence in pursuance of allowing of I.A. No. 201 of 2014
permitting to place additional evidence by examining D.W.1 and marking of
Ex.B12 and Ex.B13 that Plaintiff transferred her interest in respect of Item
Nos. 1 & 2 and 4 and 6 of plaint schedule properties.
Z b) The learned counsel for the defendant submits the plaintiff transferred her interest in items No.2 and 6 of plaint schedule properties under settlement deed dt: 18-0-2007 doc.no: 6867/2007 in favour of Raja
Sekhar and that the suit was presented by plaintiff/respondent on 20-11- 2007 i.e., nearly 32 days after transfer and the same is proved through the evidence of P.W.1 and P.Ws.5 to 6 and also additional evidence placed by the appellant in pursuance of the Orders in I.A. No. 583 of 2014 under Exs.
A10 to A13 marked through P.W.1 by placing additional evidence.
Z c) The learned counsel for the defendant submits that as defendant placed evidence proving Exs.B12 and B13 which are gift deeds, they establish that the plaintiff did not possess any right title and interest in the plaint schedule properties as on the date of suit i.e., 20-11-2007.
Z d) The learned counsel for the defendant submits that the plaintiff has to establish her title to get a relief of declaration and relief of declaration cannot be granted on the weakness of defendant’s case and plaintiff has to 19 be non suited” and due to the same, Issue No.2 has to be decided in favour of the defendant.
Z e) The learned counsel for the defendant submits that the parties are governed by the rights which accrue to them on the date of institution of the suit and as such, since the plaintiff is claiming that her title is restored back to her in view of Ex.A12 and Ex.A13 and so she was not having title on the date of institution of suit and, as such, the plaintiff is not entitled for declaration as prayed for and, as such, she is not entitled for recovery of
Item Nos. 1 and 2 of plaint schedule properties and so Issue No.3 may be decided in favour of the defendant.
Z f) The learned counsel for the defendant submits that plaintiff has to establish both title and possession over plaint schedule properties then only the defendant’s contention or case is to be adjudicated.
Z g) The learned counsel for the defendant submits that the plaintiff claimed ownership as heir of deceased Nookaiah, the plaintiff’s case is comprehensively disproved by defendant by producing Ex.B2 legal heir certificate, wherein both plaintiff and defendant were held to be heirs of late
Nookaiah and his wife, so plaintiff’s absolute title theory failed.
Z h) The learned counsel for the defendant submits that the plaintiff did not produce any reliable evidence in proof of her case and the defendant on the contrary produced Ex.B3 Will executed by the deceased Nookaiah and thus prima facie proved his title to the plaint schedule item Nos 1 to 5 and hence, the defendant miserably failed to establish her case and also failed to establish her right to relief of permanent injunction.
Z i) The learned counsel for the defendant submits that the plaintiff has failed to establish her superior title to seek injunction against the defendant, who is either co-owner or owner under Will i.e., Ex.B3 to plaint schedule 20 items and so both on the principles that the plaintiff could not establish her case or plaintiff is not entitled to relief of injunction against co-owner and so the plaintiff did not have primafacie case, balance of convenience or probable injury in the matter and hence, the plaintiff is not entitled to relief of permanent injunction as prayed for.
Z j) The learned counsel for the defendant submits that in view of
additional evidence of D.W.1 coupled with the contents in Ex.B12 and
Ex.B13 issue NO.4 may be answered in favour of the defendant.
Z k) The learned counsel for the defendant submits that out of 6 items of plaint schedule injunction is sought for with respect to items 3 to 6 only.
Point out of such 4 items, items 4 and 6 were already alienated and there was no subsisting interest to plaintiff/respondent herein in those properties and in view sec.4 1 (J) of specific relief Act plaintiff is not entitled to permanent injunction prayed for.
Z l) The learned counsel for the defendant submits that Ex.B-1 to B-11 clearly establish both title possession and relationship and so the burden is upon plaintiff/respondent to establish her absolute title to items NO.3 and 5 of the paint schedule.
Z m) The learned counsel for the defendant submits that merely because,
Issue No.1 is decided in favour of plaintiff, the approach of the trial court that suit should be decreed is not in accordance with the law and the burden is on the plaintiff to establish her case in respect of all issues.
Z n) The learned counsel for the defendant submits that framing of Issue
No.1 relating to defendant’s title is unwarranted and any conclusion arrived at on the basis of finding upon such issue vitiated entire trial and hence,
Issue No.1 is to be deleted.
21
Z o) The learned counsel for the defendant submits that after closure of defendant’s evidence, the plaintiff ingenious by examined PW.3 and PW.4 and that expert petition was also ordered subsequent to closure of defendant’s side evidence.
Z p) The learned counsel for the defendant submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW3 has to be brushed aside.
Z q) The learned counsel for the defendant submits that P.W.4 summoned to produce School Register of M.P.U.P.School of the year 1959, but he did not bring records and though he was not directed to give evidence yet the evidence of PW.4 recorded in chief in the absence of defendant’s counsel etc, so his evidence has no legal sanctity under law.
Z r) The learned counsel for the defendant submits that the evidence of
P.W.1 is not corroborated by any oral or documentary evidence and plaintiff miserably failed to establish title and hence, Issue No.4 may be answered in favour of the defendant.
Z s) The learned counsel for the defendant submits that generally the damages are not part of subject matter of the suit and are to be determined in a separate proceeding after suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. so deciding quantum of profits or damages by original court is contrary to law.
Z t) The learned counsel for the defendant submits that for recovery of item Nos. 1 and 2 by evicting the defendant, since just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her son and daughter, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue 22
Nos. 1 to 5 have to be decided against the plaintiff and in favour of the defendant.
Z u) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed originals of Exs.B12 and B13 and thereby, there is an admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originals of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place evidence about how she is entitled for the suit reliefs, and as such the plaintiff is not entitled for the suit reliefs.
Z v) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items, and that in Para No.2 of the written statement though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
Z w) The learned counsel for the defendant submits that the Issue No.1 is wrongly framed considering the pleadings in the written statement as defence to the claims of the plaintiff and the same has to be amended.
Z x) The learned counsel for the defendant submits that P.W.1 did not say that the thumb impressions in Exs.A1 to A2 are that of her father, but expert gave opinion basing on the thumb impression in Exs.A1 to A2 as as if they are containing admitted thumb impressions and as such, opinion of the expert cannot be relied.
23
Z y) The learned counsel for the defendant submits that even though, no application is allowed for examination of Head Master, and he is ordered only to produce documents but he is wrongly examined as a witness and hence, his evidence cannot be relied upon.
Z z) The learned counsel for the defendant submits that as the defendant proved the adoption and Will through the evidence of D.Ws. 1 to 6 and marking Ex.B1 to Ex.B13 and as the adoption is ancient, the plaintiff is not having right in the item Nos.1 to 2 plaintiff schedule properties by the debts of suit the plaintiff is not entitled for the reliefs granted by the trial court and hence, the appeal may be allowed with costs and the suit in O.S. No. 651 of 2007 may also be dismissed with costs by setting aside the decree passed in
O.S. No. 651 of 2007.
12. a) The learned counsel for the respondent/plaintiff submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
b) The learned counsel for the plaintiff submits that the burden is on the defendant in respect of Issue No.1 and he has to prove that he is the adopted son of Madda Nookayya and that by virtue of the last will and testatement dated 01.10.1996, he became entitled to Item Nos. 1 and 2 of the plaint schedule properties and therefore, the burden is on the defendant to prove these two facts.
c) The learned counsel for the plaintiff submits that admittedly, Item
Nos. 1 and 2 of plaint schedule properties are absolute properties of Madda
Nookayya and the plaintiff is the only daughter of him and the defendant failed to prove the adoption and also execution of Will dated 01.10.1996 by
Madda Nookayya and the plaintiff will be entitled to the reliefs claimed in 24 respect of Item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the plaintiff submits that the evidence of
D.W.2 is that she attended the adopted ceremony of defendant 50 years ago, but the age of the defendant is kept blank in the chief affidavit and as per the plaint, the age of the defendant was shown as 55 years, which is not disputed and so, according to D.W.2, the adoption took place about more than 70 years ago and as such, when the defendant is aged about only 55 years his adoption cannot take place even prior to his birth.
e) The learned counsel for the plaintiff submits that D.W.2 stated that there was document executed in the presence of elders on which the natural father Subbayya put his signature and handed over the same to the father of the plaintiff and therefore, the evidence of witness completely falsifies the claim of the defendant that he was adopted by Madda Nookayya and that
D.W.2 admitted that there are disputes between him and the plaintiff for the past eight years and there are no talking terms between them and the so called document said to have been executed was not produced and according to D.W.1, his adoption was oral and therefore, the evidence of
D.W.2 is not at all trustworthy to believe adoption.
f) The learned counsel for the plaintiff submits that D.W.3 is aged about 45 years stated that he attended the adoption ceremony of D.W.1 took place in about 50 years ago and, as such, her evidence is not believable and that too in the light of fact that she is native of Duppalapudi and her marriage was performed about 30 years ago and prior to her marriage, she has no acquaintance with the parties to the suit and never visited
Bhupalapatnam, which is the village of plaintiff and defendant and she also admitted the same and thus, her evidence does not inspire confidence in respect of the so called adoption.
g) The learned counsel for the plaintiff submits that D.W.4 being 25 natural mother of the defendant is an interested witness and she stated that except executing document nothing took place with regard to the adoption and the so called document executed by D.W.4 and her husband has not seen the light of the day and that she did not speak that they physically handed over the defendant into the hands of the father of the plaintiff, the most important and the only requirement for essential and valid adoption and when the witness does not speak about the same, the adoption does not stand to be proved and therefore, the evidence of D.Ws. 1 to 4 suffer from serious discrepancies and they do not prove that the defendant was given in adoption to the father of the plaintiff.
h) The learned counsel for the plaintiff submits that in view of evidence of P.W.3 Ex.B1 purported to have been given by P.W.3 is not believable and he denied completely all his signatures in Ex.B1 and stated that the stamp in it does not belong to their school and their school did not issue Ex.B1 and that their school was not even established till 1959 and only in the year 1959 the said school was established and this evidence of P.W.3 shows that the defendant fabricated and forged Ex.B1 in order to falsify the claim that he was adopted son of Madda Nookayya and the evidence of P.W.3 completely falsifies the case of the defendant that he was the adopted son of
Madda Nookayya.
i) The learned counsel for the plaintiff submits that Ex.B2 issued by
M.R.O. cannot have any probative value and cannot be taken as basis to hold that the defendant is the son of Madda Nookayya and besides, in Ex.
B2, it is specifically stated that it is only for the purpose of issuing pattadar passbook but it is not useful for the purpose of settling civil disputes or movable property disputes and therefore, this certificate has absolutely no value at all.
k) The learned counsel for the plaintiff submits that Ex.B4 is the “No 26
Due Certificate” issued by P.A.C.S. Bhupalapatnam and this is dated 07.09.2009 which is after filing of the suit and therefore no importance or probative value can be attached to this exhibit.
l) The learned counsel for the plaintiff submits that the defendant paid tax on behalf of Madda Nookayya and when the plaintiff herself is stated that she gave items 1 and 2 for management to the defendant, mere paying of tax does not prove that the defendant is the owner of Item Nos. 1 and 2 or that he is the son of Madda Nookayya.
m) The learned counsel for the plaintiff submits that Ex.B8 is the notice issued by Thasildar, Rajanagaram with regard to the disputes between the plaintiff and the defendant regarding Pattadar passbook and this document also has no evidentiary value.
n) The learned counsel for the plaintiff submits that the evidence of
D.W.5 and the contents in Ex.B4, and Ex.X1 clearly shows that father’s name of defendant is shown as Subbayya in Ex.X1 and therefore the entry in
Ex.B4 cannot have any value in the light of Ex.X1 and the defendant must have created Ex.B4 certificate after filing of the suit and that therefore, there is absolutely no document in support of the case of the defendant that he was the adopted son of Madda Nookayya.
o) The learned counsel for the plaintiff submits that as it is specifically put to D.W.1 that he was never adopted by Madda Nookayya, the argument is that there was no denial about the defendant being adopted by Madda
Nookayya has no force, thus defendant failed to prove that he was adopted by Madda Nookayya and that D.W.1 also stated that there was ration card to show that he and Madda Nookayya lived in one house, however, he failed to produce such ration card, as such, the defendant failed to prove the adoption.
p) The learned counsel for the plaintiff submits that the evidence of 27
P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Ex.A1 and A2 are no identical with the thumb impressions on Ex.B3.
q) The learned counsel for the plaintiff submits that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of
Madda Nookayya and when these exhibits are marked through P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya.
r) The learned counsel for the plaintiff submits that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparsion of finger prints.
s) The learned counsel for the plaintiff submits that the plaintiff has no filed rejoinder, but mere non-filing of rejoinder by the plaintiff does not and cannot be treated as admission of the pleas taken by the defendant in the written statement.
t) The learned counsel for the plaintiff submits that once the evidence of P.W.4 the Handwriting Expert is taken into consideration, then it is clear that the defendant fabricated the Will and pessed into service the said fabricated Will.
u) The learned counsel for the plaintiff submits that if really, Ex.B3 will was executed, there is no reason why the same was not produced before the
Tahasildar and the name of the defendant is not mutated in the revenue records in respect of Item Nos. 1 and 2 of the plaint schedule properties.
v) The learned counsel for the plaintiff submits that the evidence of 28 defendant clearly proves that, he has taken active role in execution of Ex.B3
Will, which in itself is a very suspicious circumstances surrounding the Will and also the attestor and scribe are closely related to defendant and though the Sub-Registrar is at a distance of 10 K.Ms. without any reason or explanation the Will was not registered.
w) The learned counsel for the plaintiff submits that, defendant did not issue reply notice to the notice issued by the plaintiff dated 22.10.2007 as by the date of issuing of notice, Ex.B3 was not brought into existence.
x) The learned counsel for the plaintiff submits that, Ex.B3 Will was not acted upon as D.W.1 admitted that 1st time he filed the same into the
Court and did not file it before any public officer.
y) The learned counsel for the plaintiff submits that the chief affidavit of D.W.1 shows that there is a blank with regard to the date of executing of
Will and in the chief examination and in the cross-examination he stated that
Madda Nookayya executed the Will on the 10th day of the year 1996, but he could not say the month, whereas, Ex.B3 propounded Will is dated 01.10.1996 and such the evidence of D.W.2 does not inspire confidence and on the other hand it raises serious suspicion.
z) The learned counsel for the plaintiff submits that the evidence of
D.W.3 shows that she does not know the date of execution is not believable and does not speak about the Madda Nookayya putting him thumb impression and herself witnessing the same and then she put her signature and Madda Nookayya witnessing the same as required under Section 68 of the Evidence Act and therefore, the evidence of D.Ws. 2 and 3 does not prove the execution of the Will by Madda Nookayya.
A1) The learned counsel for the plaintiff submits that the evidence of
D.W.6 is not at all helpful as he is neither scribe nor attestor of execution of
Ex.B3 Will and he has not stated what documents were prepared by Madda 29
Nookayya.
A2) The learned counsel for the plaintiff submits that the plaintiff failed to discharge his burden of proving Ex.B3 Will.
A3) The learned counsel for the plaintiff submits that as the plaintiff has proved that she is absolute owner of the plaint schedule properties, she is entitled for possession of items 1 and 2 of plaint schedule property and issue No.2 has to be held in favour of plaintiff and also she is entitled directing the defendant to handover vacant possessions of the Item Nos. 1 and 2 of the plaint schedule properties to the plaintiff.
A4) The learned counsel for the plaintiff submit that plaintiff is also entitled for grant of permanent injunction and for recovering damages @ of
Rs. 15,000/- (Rupees Fifteen Thousand only) per annum per acre in respect of Item Nos. 1 and 2 of the plaint schedule properties from the defendant.
A5) The learned counsel for the plaintiff submits that the plaintiff filed the cancellation deed dated 07.04.2014 wherein she contended that, her son and daughter did not accept the gift deeds and she cancelled the gift deeds along with her son and daughter under the cancellation deeds, dated 07.04.2014 and therefore since the gift is not accepted and the same is cancelled, she continues to be the owner of the Item Nos. 1 and 2 of the plaint schedule properties and she can maintain the suit.
A6) The learned counsel for the plaintiff submits that the evidence of
D.W.1 and P.W.1, P.Ws. 5 and 6 coupled with the contents in Exs.B12 and
Ex.B13 and Ex.A10 to Ex.A13, which is the evidence placed in the appeal, clearly proves that P.Ws. 5 and 6 did not accept the gift and the same stood cancelled under registered cancellation deed dated 07.04.2014, and the plaintiff continues to be the owner of the plaint schedule property and she is entitled to maintain the suit and therefore, the appellant cannot maintain this ground to set aside the decree and judgment of the trial court.
30
A7) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of originals of Exs.B12 and B13 gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of originals of Exs.B12 and B13.
A8) The learned counsel for the plaintiff submits that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to the originals of Exs.B12 to B13 and Ex.A10 to A11 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
A9) The learned counsel for the plaintiff submits that as D.W.1 admitted that the Pattadar Passbooks of Nookaiah is in his hands and title deed book is with the plaintiff, the expert opinion basing on the thumb impressions in the title deed books which are with the plaintiff is given basing on the admitted thumb impressions in title deeds and it is in accordance with the law.
A10) The learned counsel for the plaintiff submits that the trial court rightly after consideration of the entire evidence on record decreed the suit and there are no grounds to interfere with the decree and judgment of the trial Court and, hence, the plaintiffs prays to dismissal of the appeal with costs by confirming the decree and judgment of the trial court in O.S.
No.651 of 2007dated 14.03.2013.
13. Basing on the pleadings in the plaint and written statement and the brief and relevant grounds appeal and the contentions of the learned counsel 31 for all parties referred supra and the evidence on record the following points emerge for consideration.
1)Whether the defendant is the adopted son of Madda Nookayya?
2)Whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
3)Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties?
4)Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule
Property?
5)Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule properties from the defendant?
6)Whether there is subsisting interest to plaintiff in items 1 & 2 of plaint schedule properties ?
7)Whether the plaintiff is having absolute title to items 1 to 5 of plaint schedule properties?
8)Whether the judgment and decree of the suit in O.S.651 of 2007 on the file of 1st Addl. Senior Civil Judge’s Court, Rajahmundry required varying or modification or confirmation?
9)To what relief?
14. Points 1 to 8: These points 1 to 8 are interrelated very closely to each other. Hence in order to avoid the repetition of discussion of evidence and for the sake of brevity and convenience they are discussed in common.
15.a) The plaintiff to prove the suit claims examined herself as P.W.1 and purchaser of the land from the husband of plaintiff as P.W.2 and the Teacher in M.P.U.P.School, Bhupalapatnam in respect of Ex.B1 certificate as P.W.3 and the Finger Print Expert as P.W.4 and the son of plaintiff as P.W.5 and the daughter of plaintiff P.W.6. The defendant to disprove the suit claims examined himself as D.W.1 and the attestors of the Will Ex.B1 as D.Ws 2 and 3 and the mother of the defendant as D.W.4 and local Surveyor as 32
D.W.5 and third party scribe D.W.6.. P.W.5 and D.W.1 being the parties to the suit and P.Ws.5 and 6 being the son and daughter of plaintiff and D.W.4 being the natural mother of defendant deposed in their respective chief examinations as per the respective pleadings, claims contentions and cases of the plaintiff and defendant. The plaintiff got marked Exs A1 to A9, which are original title deed book, Original title deed book, Original gift deed
dated 09.02.1987, original sale deed dated 02.02.1971, original sale deed
dated 20.02.1971, certified copy of the sale deed, Office copy of the legal
notice dated 22.10.2007, acknowledgement and receipt dated 24.04.200 respectively and Ex.X1 to X3 which are receipt dated 24.04.2000, 3 photos and letter of Director Finger Print Bureu, Hyderabad dated 02.07.2012 respectively in the trial court and in the appellate court, Exs A10 to A13 which are Gift cancellation deed dated 07.04.2014, Gift cancellation deed dated 07.04.2014, Gift deed executed by R.W.1 in favour of Siddabathula Rajasekhar dated 18.10.2007,
Original Gift deed executed by R.W.1 in favour of Marre Atchiyamma, dated 18.10.2007 respectively.
b) The defendant got marked Exs B1 to B11, which are Certificae issued by
M.P.U.P.School Rajanagaram, Certificae issued by M.R.O. Rajanagaram, Will dated 01.10.1996, Certificate issued by P.A.C.C.S. Bhupalapatnam, Original pattadar passbook, Tax receipt, notice, certificate issued by Power Grid Corporatin limited,
dated 10.08.2007, will dated 28.02.1996 and passbook respectively in the trial
court and Exs B11 to B12 in the appellate court which are Settlement deed from the respondent in favour of her son Rajasekhar, dated 18.10.2007 and Settlement deed dated from the Respondent in favour of her daughter M.Atchiyyamma respectively.
16. The plaintiff filed the suit against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos.1and2of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3to 6 of plaint schedule properties directing the defendant and directing the defendant to pay damages of
Rs.15,000/-p.a per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit and for other reliefs. The defendant denied the claims of the 33 plaintiff by claiming that he is adopted son of Madda Nookayya and late
Madda Nookayya executed his last will dated 01.10.1996 marked as Ex.B3 and he got Item Nos. 1 and 2 of plaint schedule properties to an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village and an extent of
Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties and these items are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by
Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned his has no claim over the same. The defendant is also claiming that he never interfered in respect of other items of plaint schedule properties and he has no claim over the same and he prays for dismissal of the suit only in respect of item Nos. 1 and 2 of plaint schedule properties with costs.
17. a) The learned counsel for the defendant cited a decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational Society Vs.
P.Subhashan and another, in which the Hon’ble High Court of A.P. held at
Para No. 20 as follows:
“[20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief Act, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff
In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by 34 adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim Arif and Anr. v. Rahmatunnisa Begum and Anr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius AIR 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma Nand Puri v. Neki Puri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and Ors. 2004 SAR (Civil) 832, where the Apex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant
Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted…...”
b) The learned counsel for the defendant cited a decision reported in AIR 2014 SUPREME COURT 937 between Union of India and others Vs.
Vasavi Cooperative Housing Society Limited and others, in which the
Hon’ble Supreme Court held at Para No. 15 as follows:
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
c) The learned counsel for the defendant also cited another decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational
Soceity Vs. P.Subhashan and another, in which the Hon’ble High Court of
Judicature, Andhra Pradesh held at Para No. 20 as follows:
35 [20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief A ct, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim A rif and A nr. v. Rahmatunnisa Begum and A nr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius A I R 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma N and P uri v. N eki P uri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and O rs. 2004 SA R (Civil) 832, where the A pex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted. A s P.W.1 asserts that he is the duly elected Secretary of M/s Margadarshini Educational Society by virtue of resolution, dated 14-04-2003, he must prove that he was admitted as member of the society and thereafter he was duly elected as Secretary in accordance with the provisions of the A ct and bye- laws of the society. The burden of proof has two different things. It means sometimes that a party is required to prove the allegation before the judgment is given in his favour. Unless it is shown that he was duly elected as Secretary of the society, he cannot file any suit on behalf of the society. The burden of proof also means that on a contested issue, one of the two contesting parties has to adduce evidence. Since it is denied that Ravi A nantha was the member of the society, the initial burden lies on the plaintiff to show that he was duly inducted as member of the society as per bye- laws.
d) As per the principles laid down in the above decisions and also as countered by the warned counsel for the defendant the that burden of proof of establishing absolute title to plaint schedule item Nos. 1 to 6 is upon the plaintiff and plaintiff must succeed on the strength of her case by placing evidence and she cannot succeed on the weaknesses of the case put forwarded by the defendant.
36
18. a) Exs. B2 and B8 are marked through D.W.1. Even though, in the chief examination, Ex.B2 is described as Death Extract of late Nookaiah, but at the time of marking, it is described as certificate issued by M.R.O.
containing the date of death of Madda Bodemma. On perusal, Ex.B2 shows that it is a No Objection Certificate issued by M.R.O.. In that no objection certificate, the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Further,
Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao. Further, in
Ex.B2 it is mentioned that the same is issued for obtaining Pattadar
Passbooks only and it is not useful for civil disputes and property disputes salvation. But, the defendant has not examined any person connected to
Ex.B2.
b) The learned counsel for the defendant cited the decision reported in 2007 (1) A.L.D. 253 between Mashetty Venkatesham (died) per L.Rs Vs.
Joint Collector, Medak at Sangareddy and others, in which the Hon’ble
High Court of Judicature, Andhra Pradesh at Hyderabad held at Para Nos. 7 to 9 as follows:
7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the 37 notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
8. In Palaniappa Chettiar v. Arunasdam Chettiar 1962 AC 294, Lord Denning speaking for Judicial Committee held as under:
That he made the transfer for a fraudulent purpose, namely, to deceive the public administration into thinking that he only held 99 acres of land and his son 40 acres, whereas in truth he himself meant to hold the whole 139 acres. Once this disclosure was made by the father, the Courts were bound to take notice of it, even though the son had not pleaded it....But where the fraudulent purpose has actually been effected by means of the colourable transfer, there is no room for repentance. The father has used the transfer to achieve his deceitful end and cannot go back on it. He cannot use the process of the Courts to get the best of both worlds - to achieve his fraudulent purpose and also to get his property back. The Courts will say: 'Let the estate lie where it falls'...
9. In Raj Kishan Per shad's case (supra), after referring to Palaniappa Chettiar's case (supra), this Court held as under:
It is, however, necessary to refer to Digambar Adhar Patil v. Devram Girdhar Patil , in which the effect of proceedings under the Land Reforms Legislation and the proceedings under the Tenancy Act was considered by the Supreme Court. In that case the appellant was a tenant claiming rights under Bombay Tenancy and Agricultural Lands Act, 1948. His application under Section 32-G of the said Act before the Tenancy Tribunal praying to determine the price to be paid to the land owners for the purchase of Ac.8-26 guntas was rejected on the ground that the tenant was already holding land in excess of ceiling limit. The order of the Tenancy Tribunal was reversed by the Bombay High Court. Before the Supreme Court, there was a claim on behalf of the minor son of the tenant to an extent of Ac.7-34 guntas and the claim of the tenant's brother in whose favour there was an alleged partition under which the brother was given the same land. Reliance was placed on the statement made by the land owner before the Tenancy Tribunal as well as the documentary evidence in support of partition. The Supreme Court accepted the oral evidence of the land owner before the Tenancy Tribunal as conclusive and held that if the land which fell to the share of the brother of the tenant is excluded, the latter would be within the ceiling area entitled to purchase the land form the land owners as claimed. Accordingly, the judgment of the High Court was confirmed. The facts before the Supreme Court in that case disclose that the statement made by the land owner before the Tenancy Tribunal should be given due weight while determining the rival rights of the owner and the tenant....
....Applying the principle in Digambar Adhar case (supra), it be almost held that the Land Reforms Tribunal while determining the holding of late Hari Kishan Prasad relied on the factum of an extent of Acs. 150- 96 being in possession of the protected tenants and to that extent gave benefit to the declarant. A declarant who makes a statement and gets benefit out of such statement in getting excluded that land from his holding would not be permitted to turn around at a later stage; in 38 this case at the stage of issue of ownership certificate to the protected tenant to resile from the statement made before the Land Reforms Tribunal. The same would amount to fraud on public administration.
c) Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that as the plaintiff applied to Mandal
Revenue Officer, Rajanagaram, for issuing Ex.B2 as admitted by her in her cross-examination and she did not challenge Ex.B2 in appeal within time, she cannot change her stand and say that the defendant is not legal heir of
Nookaiah and it amounts to fraud on the public authority that is Court or operate as Estoppel. The learned counsel for the defendant also submits that the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of Nookaiah and thereby, the case of plaintiff that she is the absolute owner of the plaint schedule properties as sole heir of
Nookayya failed. In this regard, the plaintiff did not accept the adoption of defendant before revenue authorities.
d) There is no evidence placed to show that the plaintiff admitted the adoption of the defendant before the revenue authorities. In Ex.B2 it is mentioned that the same is for the purpose of issuing pattadar passbook, but not useful for the purpose of settling civil disputes or movable property disputes.
e) P.W.1 stated in her cross-examination that that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said will and he objected for the same. She also stated that she received the said notice from the M.R.O., after filing of the suit.
She also stated that she cannot file, the said notice copy since it was misplaced. She also stated that they applied to the M.R.O. for issuing legal heir certificate of her mother. In the cross-examination of her dated 11.03.2015 in the appeal, she has stated that she did not apply to M.R.O. /
Tahasildar for mutation of her name in Revenue Record for plaint schedule 39 property. She also stated that it is not true to suggest that they applied to
M.R.O. for issuance of Legal Heir Certificate after the death of her mother.
She also stated that it is not true to suggest that she admitted in her cross examination before II Addl. Senior Civil Judge, Rajahmundry that they applied to M.R.O. for issuance of legal heir certificate of her mother. She also stated that it is not true to suggest that Ex.B2 was issued by M.R.O.,
Rajanagaram that she and defendant are legal heirs to her mother,
Bodamma. She also stated that it is not true to suggest that when M.R.O.
issue dnotice for production of pattadar pass book and title deed boosk along with title deeds in the name of their father, for issuance of new pattadar and title deed books in their respective names.
f) The above facts clearly show that she denied about Ex.B2. The admission of P.W.1 is in respect of mere applying to M.R.O. for issuing legal heir certificate of her mother, but not for applying jointly to M.R.O.
Rajanagaram to issue Ex.B2. Ex.B2 is marked through D.W.1. Nothing is elicited in respect of Ex.B2 when P.W.1 was cross-examined on 06.08.2009.
Thereby, it can be safely held that the plaintiff did not admit that she applied to M.R.O., Ranagaram for issuing Ex.B2 as contended by the learned counsel for the defendant. In those facts and circumstances, the principles laid down in the decision reported in 2007 (1) A.L.D. 253 referred supra is not applicable to the facts in this suit. Hence, Ex.B2 is not of any use for the defendant to prove his claims.
g) The learned counsel for the defendant cited another decision reported in 2007 (3) A.L.T. 720 between V.Krishnaiah and others Vs.
Joint Collector, Mahabubnagar and others, in which the Hon’ble High
Court of Judicature of Andhra Pradesh at Hyderabad held at Para Nos 15 and 21 as follows:
15. The regularization of an alienation under Section 5-A of the Act, is akin to the relief of specific performance of an agreement of sale, under the 40 provisions of the Specific Relief Act . From the point of view of procedure, various hurdles, which, a plaintiff in a suit for specific performance has to face, have been removed under Section 5-A . The provisions of the Transfer of Property Act and the Registration Act are saved. However, on a close examination of the relevant provisions, it becomes evident that the relief under Section 5-A can be granted only when there is no dispute as to the execution of the document concerned. The emphasis is mostly on, verification of possession over the property, existence of a document, collection of stamp duty, and registration charges and then issuance of a certificate of regularization. This, in turn, would lead to the amendment of corresponding entries in the revenue records. The scope of inquiry is very limited. Sub-section (1) thereof presupposes the existence of an alienation or transfer made or effected otherwise than through a registered document. The focus of the enquiry is mostly to examine the date, on which the alienation has taken place and whether the alienation, or transfer contravenes the provisions of the enactments mentioned in proviso to Sub-section (2). After satisfaction on these two aspects is ensured, the Recording Authority would require the applicant to deposit of the amount, representing the stamp duty and registration fees.
21. The experience shows that, wherever the Legislature had intended to confer the power of a civil Court upon an administrative or quasi-judicial authority, or a different forum, either an independent, procedure is prescribed or the one, that applies to civil Courts is extended to them. To the extent the power of adjudication is conferred on the alternative fora, the jurisdiction of the civil Courts is taken away through specific provisions of law. This becomes necessary because the jurisdiction of a civil Court is comprehensive. Further, the exclusion of jurisdiction of the civil Courts would depend upon the efficacy of the remedy that can be granted by the alternative forum. If the matter is examined on the touchstone of these principles, it emerges that hardly any powers of a Court to adjudicate the disputes are conferred upon the Recording Authority. He cannot record evidence. He is not trained to adjudicate the disputes involving complicated questions, such as capacity to contract, succession, testamentary, or otherwise, limitation etc. Therefore, the irresistible conclusion is that the jurisdiction of the Recording Authority under the Act in relation to the regularization under Section 5-A is confined to cases, where, no dispute exists as to the execution of the document. If there is any dispute as to the execution of the document or any other contentions are raised, the dispute has, invariably to be adjudicated by a civil Court.
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that Ex.B2 cannot be challenged in civil court and the proceedings are binding on the parties and so their rights over the properties are regulated by those proceedings and as such, the plaintiff title over the item Nos. 1 to 5 stood disproved. But, in this regard, as stated earlier, in Ex.B2 it is mentioned that the same is issued for obtaining
Pattadar Passbooks only and it is not useful for civil disputes and property disputes salvation. Further the defendant has not examined any person connected to Ex.B2. Ex.B2 shows it is a no objection certificate issued by
M.R.O., and in it, it is mentioned that the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that 41 the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao.
In the light of the above facts, the defendant cannot claim, in the absence of evidence to prove that plaintiff admitted the adoption of defendant before any Revenue Authorities and that Ex.B2 cannot be challenged in this court and it has to be believed. In those facts and circumstances, the principles laid down in the above decision are not applicable to the facts in this suit.
19) In respect of Ex.B8, in the chief examination, D.W.1 stated that Ex.B8 is the tax receipt. But at the time of marking, in the evidence of D.W.1 in his chief examination it is mentioned as the notice issued by Tahasildar,
Rajanagaram. On perusal of Ex.B8, it shows that it is an urgent notice issued to Sri Siddabathula Bojjayy, Srikrishnapatnam informing him to attend inquiry on 29.10.2007 at 11.00 a.m. in respect of an inquiry as he refused to receive the notice after keeping the title deed of the lands in S.No. 02.1A to an extent of Ac. 0.71 cents and S.No. 391/2c to an extent of Ac.1.19 cents for which, Sri Modda Venkata Rao and his sister are legal heirs of Madda
Nookaiah. Nobody connected to Ex.B8 is examined by defendant. Ex.B8 is only a notice regarding the dispute between Madda Venkata Rao and his sister and even assuming that the said Madda Venkata Raju is the defendant and his sister is plaintiff and an inquiry is conducted in respect of the lands mentioned supra and a notice was issued to Siddabathula Bojjayya, but, basing on that, there is no reason how the defendant can claim that it is helpful to prove his claims in respect of item Nos. 1 and 2 of plaint schedule properties.
42 20 a) P.W.1 in her cross-examination has stated that defendant is in possession of Item Nos. 1 and 2 of plaint schedule properties. But she claimed that he is in forcible possession. She also stated that the possession of the defendant is only for the last four years, but she has no document to prove the same. She admitted and stated that they applied to M.R.O. for issuing legal heir certificate of her mother. She denied these suggestion and stated that it is not true to suggest that M.R.O. issued legal heir certificate as herself and defendant are the legal heirs of her mother. P.W.1 also stated in her cross-examination that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said Will and she objected for the same. She also stated that she received the said notice from the M.R.O. after filing of the suit. She further stated that she cannot file the said notice copy since it was misplaced.
b) The learned counsel for the plaintiff submits that as M.R.O. is being a statutory authority as per Section 4 of Pattadar Passbook Act, can issue legal heir certificate after conducting inquiry under Section 5 (a) of the Act and plaintiff did not dispute Ex.B2 by filing appeal within one year. M.R.O.,
Rajanagaram issued proceedings under Ex.B2.
c) The learned counsel for defendant also further submits that as
P.W.1 admitted that she received notice from M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property in pursuance of the said Will, that plaintiff cannot take a different and new stand before this Court. The learned counsel for the defendant cited another decision reported in 2007 (1) A.L.T. 253 between Mashetty
Venkatesham (died) per L.Rs Vs. Joint Collector, Medak at
Sangareddy and others, in which the Hon’ble High Court of A.P. held at
Para Nos. 7 and 10 as follows:
43 “7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
10. As noticed, the deceased-first petitioner claimed the property to be joint family property and did not demour when l/4th share was computed to his share in land ceiling proceedings. His legal heirs cannot now be permitted to take a different stand before the authorities under RoR Act. The first respondent, therefore, came to the correct conclusions and there is no infirmity or misdirection in placing reliance on the certified copy of the order passed by the LRT.”
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that plaintiff is prevented from changing or taking different stand from the stand already taken before statutory authority or before Judicial Authority and Ex.B2 and Ex.B8 proceedings are statutory in nature and they cannot challenged in Civil court and the same are binding on the plaintiff or parties to the said proceedings.
c) The evidence of P.W.1 does not show that she has accepted the adoption before the Revenue Authorities. If that is so, there is no force in the contention of the learned counsel for the defendant that plaintiff has admitted about adoption in view of Exs. B2 and B8 and so, she cannot challenge the adoption before this Court. Unless and until the defendant proves that the plaintiff admitted the adoption before the Revenue
Autorities, the defendant cannot claim that the plaintiff cannot challenge the 44 adoption of the defendant in this court. In view that basing on the Exs. B2 and B8, the defendant cannot claim that the M.R.O. after conducting due inquiry issued Exs. B2 and B8 and plaintiff has obtained benefits from the
Statutory authority and she is not entitled to take different stand in this court. Hence, there is no force in the contention of the learned counsel for the defendant that because Ex.B2 is not challenged by filing of an appeal within a period of one year, the plaintiff cannot challenge here and say that the defendant is not the legal heir of Nookaiah as there is no evidence placed by the defendant to show that the plaintiff has admitted that the defendant is an adopted son of late Nookaiah, before Revenue Authorities.
21 a) The evidence of P.W.1 and D.W.1 clearly prove that Item Nos. 1 and 2 of plaint schedule properties are the absolute properties of Madda
Nooaiah and the plaintiff is the daughter of Madda Nookaiah It is the defendant, who is claiming that he is adopted son of late Madda Nookaiah and Madda Nookaiah has executed the Will dated 01.10.1996, which is marked as Ex.B3. The defendant is claiming that he was adopted by the
Madda Nookaiah and his wife about 50 years and he is living with Madda
Nookaiah till the date of death of Madda Nookaiah.
b) D.Ws.2 and 3 corroborated the evidence of D.W.1 in their chief examinations regarding adoption of defendant by late Nookaiah. In the cross-examination, D.W.2 stated that that the adoption ceremony was performed in the house of father of plaintiff, in the presence of three elders and the defendant was handed over by his natural father to the father of the plaintiff through his hands. He further stated that Vyshanva Purohit of their caste was called and he chanted mantras. He also stated that no invitation cards were printed for the adoption ceremony of the defendant . He also stated that a document was executed in the presence of elders, on which,
Subbayya put his signature and handed over to the father of the plaintiff. He 45 also stated that he cannot say the year of said adoption, but it was held more than 70 years back. He also stated that he never went to the school to verify records to find out whether the defendant was admitted by the father of the plaintiff. He also stated that he saw the papers pertaining to loan obtained by the defendant and father of plaintiff but he canot say the description of those documents. He further stated that no documents pertaining to partition of property between Nookayya, plaintiff and defendant was scribed by Karanam. He also stated that himself, defendant Issa Koti
Seshamma (D.W.3) and Gummadi Srinu attested the Will of Nookaiah in the year 1996 on the 10th, but he cannot say the month. He further stated that he studied upto 5th call. He also stated that he cannot say date of his marriage. He also stated that as he saw the above incident the year of Will is remained in his memory, therefore, he is unable to recollect the said year.
He also stated that the Will was executed at 10.00 a.m. He further stated that he does not know whether the said Will is registered or not. He also stated that nearly one hour is taken for completion of the Will. He further stated that after the execution of the Will it remained with Nookaiah and he did not see it again. He further stated that Abbulu scribed the Will in their presence. He further stated that he does not know the contents of the said
Will. He further stated that after completion of the scribing of the Will the above referred four persons put their signatures. He further stated that they handed over the Will to Nookaiah. He also stated that that is all taken place in their presence.
c) In the chief affidavit of D.W.2, only the month and year of the Will are mentioned, but not the date of the Will. In the chief affidavit of D.W.1, the age of D.W.1 is not mentioned. D.W.1 was cross-examined on 13.04.2010 before the Court and at that time, he stated that his age is 60 years. But, the defendant’s age is shown as 55 years in the plaint. The alleged adoption according to D.W.2 as stated earlier was taken place about 46 more than 70 years ago. Further, the evidence of D.W.2 that a document was also executed in the presence of elders on which Subbayya, the natural father of defendant put his signature and handed over the same to the father of the plaintiff clearly prove that the claim of the defendant that he was adopted by Madda Nookaiah, is not believable since no document is filed to prove the same and, on the other hand, the adoption claimed by D.W.1 is oral and there is no document executed at the time of adoption. D.W.2 admitted that his house and the house of plaintiff are situated side by side.
He also admitted and stated that it is true that the used water being discharged from the house of plaintiff flows in front of his house. He denied the suggestion and stated that he has no talking terms with the plaintiff for the last 8 years as used water discharged from the house of plaintiff is flowing infront of his house. But, the admission of D.W.2 about flowing of discharge water from the house of plaintiff in front of his house shows that
D.W.2 is interested witness and that is the reason why even though he cannot describe the documents pertaining to the loan obtained by the defendant and father of the plaintiff has stated that he saw the papers.
Further, he stated that he did not verify the school records to find out whether the defendant was admitted by the father of the plaintiff. These facts shows clearly stated earlier that the evidence of D.W.2 is the case of the defendant.
d) D.W.3 stated that her age is 45 years. In the cross-examination, she has stated that her marriage was performed 30 years back. She also stated that prior to her marriage she has no acquaintance with the parties to the suit and she never visited Bhupalapatnam. She also stated in her chief examination that she attended the adoption ceremony of defendant, which took place about 50 years ago as claimed by the defendant. Thereby, it can be safely held in the light of the evidence of D.W.3 that she could not have 47 possibility to attend the alleged adoption ceremony and hence, her evidence is also does not in spire the confidence to the so called adoption.
22 a) D.W.4 is the natural mother of D.W.1. She stated in her cross- examination that the defendant was given in adoption to the father of the plaintiff and he took him in adoption and a document was executed by him and her husband and gave it to the father of the plaintiff. She also stated that by executing a document by her and her husband, they sent the defendant to the house of the father of the plaintiff that was all happened and that is mentioned by adoption. She also stated that the defendant did not join with her husband by selling the property. She also stated that she does not know in which school the defendant studied. She also stated that the defendant brought her to Court. In the light of the above statements of
D.W.4 and as the D.W.4 is the natural mother of the defendant and the documents stated to have been executed is not filed into the court, it can be safely held that the evidence of D.W.4 is not believable.
b) The learned counsel for the plaintiff submits that D.W.4 did not speak about physically handing over of the defendant into the hands of the father of the plaintiff, which is most important and the only requirement for essential and valid adoption. In this regard, D.W.4 stated in her chief affidavit that herself and her husband delivered minor Venkata Rao to
Nookaiah and his wife Bodemma at the time of adoption, ceremony took place and their purohit performed puja and that therafter, we had a feast.
In the light of the said fact there no force in the contention of the learned counsel for the plaintiff that P.W.4 did not speak physical handing over the defendant into the hands of the father of the plaintiff, but as stated earlier, the evidence of D.W.4 is not inspiring the confidence as the documents stated to have been executed by herself and her husband are not filed into 48 the court and further, on the other hand, the claim of the defendant is that it is an oral adoption.
23. a) In respect of Ex.B3 Will dated 01.10.1996 apart from the fact that
D.W.2 attestor is an interested witness and D.W.3 whose marriage was performed about 30 years back has stated that adoption ceremony took place about 60 years ago and thereby, herself attending the alleged adoption is not believable and D.W.4 is interested witness being natural mother of the defendant, the plaintiff has taken steps for sending Ex.B3 will to hand writing expert to compare it with the admitted thumb impression of Madda
Nookayya available on Exs.A1 and A2 which are the title deed books in respect of item Nos. 1 and 4 of plaint schedule properties and 2 and 6 of plaint schedule properties respectively.
b) The hand-writing expert, P.W.4 compared the thumb impressions in Exs.A1 and A2 with the thumb impressions in Ex.A3 and gave his opinion that the thumb impressions of Exs.A1 and A2 are not identical with the thumb impressions in Ex.B3. His opinion is marked as Ex.X2 and covering letter is marked as Ex.X3.
c) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will and that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support the report and that part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison and that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses and that the
Expert’s opinion is hearsay evidence and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a 49 definite science and can be relied upon. The learned counsel for the defendant also submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW4 has to be brushed aside.
d) On the other hand, the learned counsel for the plaintiff submits that the evidence of P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Exs.A1 and
A2 are not identical with the thumb impressions on Ex.B3 and that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of Madda Nookayya and when these exhibits are marked through
P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda
Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya and that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparison of finger prints if any.
e) The learned counsel for the defendant cited a decision reported in 1983 Crl.L.J. 858 between State of Rajasthan Vs. Dr. J.P.Sharma and others, in which the Hon’ble High Court of Rajasthan held at para No.17
17. It is the duty of the prosecution to prove that the specimen writings are of the accused and only then the question can arise as to whether the opinion of the handwriting expert who compared the specimen writings with the writing on the questioned documents that they are of the same person, should be relied upon or not.
As per the principles laid down in the above decision cited by the learned counsel for the defendant and in the light of the rival contentions, the evidence of P.W.4 Hand Writing Expert has to be considered and before that it has to be seen whether thumb impressions on Exs.A1 and A2 are that 50 of Madda Nookayya. As the said thumb impressions are taken as basis for comparison in thumb impressions in Ex.B3 Will. Exs.A1 and A2 are marked through P.W.1. Nothing contra is elicited in the cross-examination of P.W1.
to prove that the thumb impressions on Exs.A1 and A2 are not that of
Madda Nookayya. It is not even suggested to P.W.1 that the thumb impressions on Exs.A1 and A2 are not that of Madda Nookayya. Exs.A1 and
A2 are issued by Mandal Revenue Officer, Rajanagaram to late Madda
Nookayya. No evidence is placed by the defendant to prove that thumb impressions in Exs.A1 and A2 are not that of Madda Nookayya. D.W.1 also not stated that the thumb impressions in Exs.A1 and A2 are not that of
Madda Nookayya. In those facts and circumstances, as Exs.A1 and A2
Pattadar passbooks were issued by Mandal Revenue Officer, Ranagaram in the name of Madda Nookayya, it can be safely held that the thumb impressions in Exs.A1 and A2 are that of late Madda Nookayya. Thereby, there is no force in the contention of learned counsel for the defendant that the thumb impression in Exs.A1 and A2 are not admitted thumb impressions of the Madda Nookayya. In the light of the said fact, the evidence of P.W.4 has to be considered.
d) P.W.4 in his chief examination stated that he has got taken photographs of the disputed and admitted thumb impressions in his presence through the photographer, Finger Print Bureau, Hyderabad. He also stated that he examined the clarity and compared the disputed thumb impression with the admitted thumb impression and found that 1) the admitted thumb impression marked “ is smudged and not clear and wanting in clear ridge characteristic required for he purpose of establishing identity.
Hence, the admitted thumb impression marked A is unfit for comparison. 2)
The disputed thumb impression marked D is not identical with the admitted thumb impression marked Ex.A-1 of Madda Nookayya. He also stated that the opinion C.No.91/U4/F.P.B. C.I.D./2012 along with three photo copies are 51 now marked as Ex.X1. He also stated that the covering letter dated 02.07.2012 of their office is now marked as Ex.A2.
In the cross-examination he stated that they compared disputed thumb impressions with standard thumb impression and they gave their opinion. He also stated that it is true he did not mention about comparison of disputed thumb impression with that of standard impression. He also stated that according to him there is nothing standard thumb impression, so they have not used the word standard impression is his report. He further stated that it is true they have not mentioned size, shape, width. He also state that it is true in circumstances like peeling of skin of the thumb impression due to certain skin diseases (permanent) or other extreme circumstances the chance of obtaining clear impressions is not possible. He also stated that he did not mention in his report about two thumb impressions A and A1 are that one person or not since he found that A1 is unfit for comparison. He also stated that he is unable to say with his experience whether A, A1 belongs to same person or not.
The above facts stated by p.W.4 in his chief and cross-examination clearly prove that though, he has not used the standard thumb impression in his report and not mentioned the shape, width and other measurements of both A,A1 and D Thumb impressions as stated by him, mentioning the same or those particulars for comparison of the thumb impressions or not necessary that the opinion and evidence of expert P.W.4 can be relied upon.
e) The defendant has not placed any evidence to prove that there is any peeling of skin of thumb due to certain skin diseases or other extreme circumstances, due to which, there were no chances of obtaining clear thumb impressions. In those facts and circumstances, it can be safely held that the evidence of P.W.4 is believable, which shows that the thumb impression in Ex.B3 will is not that of the late Madda Nookayya.
52
24. a) The Hon’ble Supreme Court, in the decision cited by he learned counsel for the plaintiff in AIR 1979 Supreme Court 1708 between Jaspal
Singh Vs. State of Punjab and Jindra and another Vs. State of Punjab, in which the Hon’ble Supreme Court held at Para No. 8 as follows:
8. Learned Counsel for the appellants also relied on the evidence of Dr. Mohinder Partap PW. 1, who has stated that the deceased had reached the hospital on 4.8.71 at 2 a.m. Although the injured was speaking same thing his statement could not be recorded. On the other hand, the witness recorded the statement of the mother Tej Kaur who seems to have given a different version and suggested that her son Bhupinder Singh deceased had an injury on his abdomen which was caused by the falling of a bag containing wheat on his stomach. The thumb impression of Tej Kaur was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaur. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr.K.S. Puri clearly demonstrates that the thumb impression on the statement Exh.P B was not that of Tej Kaur but was of some other woman who appears to have falsely represented to the Doctor that she was the mother of the deceased. This is supported not only by the fact that the thumb impression of Tej Kaur on the statement of P.B was forged but also by the categorical statement of PW 6 wherein she denied having made any such statement before the Doctor. The Doctor although examined as a witnessess in court was never made to identify Tej Kaur who was also one of the witnesses, nor was any application given by the accused that the Dr should be called upon to identify Tej Kaur, PW. 6 in order to test the validity of the statement that it was really Tej Kaur who made the statement Exh P.B. before the Doctor. In these circumstances, therefore, the evidence of the Doctor does not appear to be of any assistance to the defence.
Basing on the principles laid down in the above decision, the learned counsel for the plaintiff submits that identifying thumb impression is an exact science and does not admit any mistake or doubt.
b) In this regard, the learned counsel for the defendant cited another decision reported in 2011 (5) A.L.D. P.5, in which the Hon’ble High Court held at para Nos.36 as follows:
36. …… Further the learned trial Court failed to consider the fact that DW- 5, the finger print expert stated in his evidence that the thumb mark of the first Defendant found on first page of Ex.A-1 is only identical with that of his admitted thumb mark but the other thumb marks were not fit for comparison for want of clear cut ridge characteristics. Even the science relating to the comparison of finger prints is not perfect science and in our view the learned trial Court gave undue emphasis to the opinion expressed by DW-5 finger print expert …….
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that the opinion of the expert is 53 secondary evidence and it will not supersede the primary evidence of direct witnesses.
c) The learned counsel for the defendant also submits that the Hon’ble
Supreme Court in the decision reported in AIR 1971 S.C. 1708 referred supra has not laid any principle that expert is opinion on thumb mark is distinct science and can be relied upon. But, it has recorded the contention of the appellant’s counsel in Para No.8 of the said judgment, but on careful consideration of the decision reported in AIR 1979 S.C. 1708, referred supra it can be safely held that the said principle is not the contention of the learned counsel for the appellants in that decision, but it is the observation or principle held by the Hon’ble Supreme court that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. In those facts and circumstances, as per the principles laid down in the decision reported in AIR 1979 S.C. 1708, referred supra and also as even the evidence of D.Ws. 2 to 4 out of which, the defendant is claiming that defendants 2 and 3 are eyewitnesses being attestors is also not believable, it can be safely held even by consideration of the principles laid down in the above decision reported in 2011 (5) A.L.D. page 4 supra, that the defendant miserably failed to prove that the thumb impression in Ex.B3 is that of the late Madda Nookayya. On the other hand, the plaintiff through the evidence of expert as P.W.4 coupled with the contents in Exs.X1 and X2 and the evidence of D.Ws. 2 to 3 proved that thumb impression in Ex.B3 is not that of Madda Nookayya. Further, as contended by the learned counsel for the plaintiff, if really, Ex.B3 will was executed by late Madda Nookayya, there was nothing preventing the defendant from mutating his name in respect of item Nos. 1 and 2 of plaint schedule properties in the revenue records.
54
d) D.W.1 in the cross-examination stated that Pattadar Passbooks of
Madda Nookayya is in his hands and title deed book is with the plaintiff. He also stated that as per the Will, Ex.B3 Nookaiah bequeathed item Nos. 1 and 2 of schedule property in his favour. He also stated that as he was cultivating item Nos. 1 and 2 of schedule property he did not apply for mutation of his name in respect of item Nos. 1 and 2 in the revenue records immediately after death of Nookaiah. He also stated that after the death of his wife of Nookaiah in the year 2004 he applied in the year 2005 for mutation. He also stated that for the first time he filed Ex.B3 will in the
Court and prior to that he did not file the will before any public Officer as there were no disputes. He also stated that when he asked the plaintiff to give the revenue title deed book for mutation, though she agreed to give the said book but she postponed the matter and later got issued a notice. He also stated that Ex.A8 acknowledgement contains his signature.
The above facts stated by D.W.1 clearly prove that he never produced the Will before the Tahasildar at the time of requesting mutation of his name, in respect of item Nos. 1 and 2 of plaint schedule properties.
e) D.w.1 has stated in his cross-examination that he was present at the time of execution of the Will Ex.B3 without seeing the document. He also stated that the said Will was executed two months prior to the death of
Nookaiah at the house of Nookaiah. He also stated that the at the time of execution of the said Will Nookaiah was moving around. He also stated that
Rajanagaram is nearly 10 k.m.from Bhoopalapatnam. He further stated that there is a sub-registrar office at Rajanagaram. He also stated that
Registration of documents with regard to alienation or purchase of properties of Bhoopalapatnam are made at the sub-registrar Office at Rajanagaram. He also stated that the plaintiff herein and her mother Boddemma were also present at the time of execution of the Ex.B3 Will. He further stated that out 55 of trust between himself and Nookaiah, he did not get the Will Ex.B3 registered. He further stated that K.Abbulu scribe of Ex.B3 Will is not a document writer. He also stated that all the three attestors are resident of
Bhoopalapatnam. He also stated that the Will Ex.B3 was executed at 10.00 a.m. He further stated that he brought all the three attestors for the purpose of attesting the Will. He also stated that he went and brought the scribe
Abbulu for scribing Ex.B3 Will. He further stated that all the documents including pattadar passbook and title deed book were available with
Nookaiah by the date of execution of Ex.B3 Will. He further stated that passbook and documents were referred for scribing Ex.B3. He also stated that four days after execution of the Will Nookaiah handed over the will
Ex.B3 and pass book and title deed pertaining to Yerrampalem property and similarly the pass book and title deed pertaining to Srikrishnapatnam, Tuni.
He also stated that Yesubabu is his natural younger brother. He also stated that Vissakoti Seshamma is the mother-in-law of son of Yesubabu. He also stated Gummadi Srinu is his nephew i.e., son of his natural younger sister.
He also stated that Beera Subba Rao is he husband of Bodemma’s sister. He also stated that K.Abbulu is the younger brother of his wife.
f) The above facts stated by D.W.1 clearly prove that the defendant has taken active role personally in securing the attestors and scribe for execution of Ex.A1 and all of them are closely related to him as Yesubabu is his natural younger brother, Vissakoti Seshamma is the mother-in-law of son of Yesubabu, Gummadi Srinu is his nephew i.e., son of his natural younger sister and Beera Subbarao is the husband of Boddemma’s sister and thereby all the three attestors are closely related to him and further scribe
K.Abbulu is the younger brother of his wife. These facts in the light of the fact that defendant did not choose to give any reply notice when the plaintiff got issued legal notice dated 22.10.2007 under Ex.A7, after receipt of the same under Ex.A8 and also admittedly he did not file Ex.B3 before 56 any Public Officers clearly prove that Ex.B3 is surrounded by suspicious circumstances and as held by the trial court, the defendant miserably failed to prove the execution of Ex.B3 will by late Madda Nookaiah bequeathing item Nos. 1 and 2 suit schedule properties to defendant.
g) In the decision reported in 2012 (4) A.L.D. 618 between
T.Bheem Reddy and another Vs. P.Laxmi Bai and others, in which the
Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision, in the present case , merely basing on the fact that the plaintiff has not filed rejoinder disputing the adoption or Will claimed by the defendant, it does not and cannot be treated as an admission of plea taken by the defendant in the written statement. In view of that, even though, the plaintiff has not filed rejoinder disputing the adoption or Will propounded by the defendant, the defendant failed to prove execution of Ex.B3 Will and adoption propounded by him.
25. a) D.W.1 stated in his cross-examination that he does not remember the year in which he was given in adoption to the Nookaiah. He further stated that he is having a ration card to show that himself and Nookaiah living in one house. He also stated that he studied up to 3rd call in
Bhoopalapatnam. He further stated that he discontinued his studies after 3rd 57 class. He further stated that Ex.B1 study certificate is obtained subsequent to the filing of the suit.
b) In respect of Ex.B1, it is purported to have been given by P.W.3.
P.W.3 categorically stated in his chief examination that “ I am working as teacher, in M.P.U.P. School, Bhupalatnam. I received summons from the
Court, in which no direction was given to us to bring any register. Our school was established on 06.05.1959. Ex.B1 is the date of Birth and tudy certificate and it does not contain his signature and the desgination stamp on Ex.B1. Ex.B1 does not belong to their school. The handwriting in ex.B1 is not my handwriding. Since last three years I am working as Head Master in the above School. Prior to that he worked as teacher in the above school for about 5 years. Total since last 8 years I am working in that school. Ex.B1 certificate is not issued by their school, since their school was established in the year 1959 the registers from 1955 to 1959 does not exist”. In the cross-examination, he has stated that presently he is working in M.P.
Elementary School, at Kovvur. He further stated that he did not bring the school record today. He further stated that he does not know the contents of the court summons served on him, but when he came to Court, to know for what purpose he was summoned by the court, his evidence is recorded by the court. He further stated at the relevant time the school was not in existence. He further stated that his name is K.Ugandhar Varma and he volunteers and stated that he did not issue Ex.B1. He further stated that the writing and signature in Ex.B1 does not belong to him. He also stated that there is no record in their school to show that when the school was established. He further stated that he did not produce any record relating to the school.
c) The above evidence of P.W.3 clearly shows that Ex.B1 was not issued by P.W.3 or his school. If really, Ex.B1 was issued by P.W.3 or 58
M.P.U.P School, Bhoopalapatnam, in which P.W.3 was working as teacher, defendant should have placed evidence in proof of the same. But, the defendant did not place any evidence to prove that Ex.B1 was issued by the
M.P.U.P. School, Bhupalapatam.
d) The learned counsel for the defendant submits that P.W.3 though summoned to produce School Register of M.P.U.P.School of the year 1959, the witness did not bring records and not directed to give evidence yet the evidence of PW.3 recorded in chief in the absence of defendants/Appellants counsel etc, so his evidence has no legal sanctity under law. In respect of this contention of the learned counsel for the defendant, even assuming that
P.W.3 was summoned only to produce documents, but not for giving evidence, but since his evidence is recorded, though the learned counsel for the defendant submits that the chief examination of P.W.3 was recorded in his absence since the defendant’s counsel conducted the cross-examination of P.W.3 merely because he was not summoned to give evidence, the defendant on whom the burden is there to prove that the contents in Ex.B1 though it is marked in the absence of evidence placed by him, cannot claim that Ex.B1 is proved. As such, in the absence of evidence of P.W.3 also, since the defendant has not placed any evidence to prove Ex.B1, it can be safely held that the defendant failed to prove Ex.B1.
26. a) D.W.1 stated that he has ration to show that himself and Nookaiah were living in one house, but no ration card is marked by the defendant.
D.W.1 got marked Ex.B4 which is the No Due Certificate issued by P.A.C.S.
Gopalapatnam, it is dated 07.09.2009. Ex.B4 is given subsequent to the filing of the suit. It does not show that defendant has any concern with the suit properties or he had taken loan from P.A.C.S., Gopalapuram in respect of Item Nos. 1 and 2 of the plaint schedule properties.
b) In respect of Ex.B4, the Executive Officer, P.A.C.S., Bhupalapatnam 59 is examined as D.W.5 and he stated in his chief examination that Ex.B4 was issued by him and the contents of the same are correct. He stated in the cross-examination that the father of the name of the defendant is shown as
Subbayya the receipt dated 24.04.2000 pertaining to the same loan transaction and the said receipt is marked as Ex.X1. He admitted in the
Cross-examination that he brought the receipt book pertaining to the year 2000 as it is also relating to the loan of the defendant though he did not bring the loan register to the Court. He stated that he did not bring loan register due to the lack of knowledge. He also stated that Ex.X1 receipt does not contain the signature of the defendant. He further stated that if the party is available they used to obtain his signature on the receipt. He further stated that every year they used to get their account and receipts audited with local fund audit. He also stated that the audit party used to put ‘√’ in the receipt book. He further stated that there is an audit report every year and it contains what are the books and receipts audited during that year. In the re-cross examination, he stated that as he was asked to bring the entire records pertaining to the loan, he brought the receipt books also.
c) The above evidence of D.W.5 shows not only the name of the defendant’s father is shown as Subbayya in Ex.X1 though the same is in the handwriting of the D.W.5 and also in Ex.X1 there is no signature of the defendant and there is no ‘√’ marks in it. Merely because ‘√’ is not there in Ex.X1, it cannot be held that Ex.X1 is created. Ex.X1 shows that Ex.B4 “No Due Certificate” which is issued after filing of the suit cannot have any importance or probative value.
27. The evidence of D.W.6 since he admitted that his license as document writer cancelled and he took treatment in Karri Rama Reddy Mental Hospital till the year 1990 and he did not scribe or attest the will of defendant, is of no use for defendant to prove his case.
60 28 D.W.1 got marked Ex.B7, which is the tax receipt dated 25.04.2010.
The payment of Sisthu is also made after the filing of the receipt. Further
Item Nos. 1 and 2 schedule properties are under the management of the defendant. Mere paying of the tax or sisth under Ex.B7, itself cannot show that the said payment is made by the defendant under the capacity of the title holder of the property.
29. a) The learned counsel for the defendant cited a decision reported in
AIR 1969 S.C. 1359 between Jaspal Singh Vs. State of Punjab, in which the
Hon’ble Supreme Court held at para No. 8 as follows:
[3] Mr. M. C. Chagla argued that in May 1904 Seshamma had not attained the age of discretion and was not competent to make the adoption. He relied on the following passage in Mulla's Principles of Hindu law, 13th Ed., Art. 465, page 491: "A minor widow may adopt in the same circumstances as an adult widow, provided she has attained the age of discretion and is able to form an independent judgment in selecting the boy to be adopted. According to Bengal writers the age of discretion is reached at the beginning of the sixteenth year; according to Benaras waters, at the end of the sixteenth year. The former view was taken in a recent Madras case." [4] Now there is no clear evidence on the question of Seshmnma's age in May 1904. The plant said that she was then 10 years of age. One of the written statements said that she was about 15 years old. Exhibit A-2 an extract from the register of deaths suggests that she was then aged about 14 years. In Ex. A-7 dated March 25, 1907, Ex. B-5 dated May 2, 1907 Ex. B- 110 dated April 25, 1909 , Ex. B-7, dated November 1, 1911, Ex. B-22 dated November 15, 1911, Exs. A-11 and A-12 dated November 17, 1911, she was described as a minor. But Ex. B-138 dated August 9, 1910 described her as a major. The evidence of DW 2 suggests that she was about 15 years old at the time of adoption. The evidence of DW 3 fixes her age at about 17 years in or about 1903. Evidence was adduced to show that she married in 1898 when she was 11 or 12 years old. The appellant made no attempt to produce the certified copy of the register of births which would have shown her exact age. The adoption was made in May 1904. It was challenged in 1953 after a lapse about 50 years. The long delay in filling the suit is not satisfactorily explained. A declaratory suit challenging the adoption could have been filed soon after the adoption. Rajeswararao died in 1950, Seshamma died on October 2, 1952. During his lifetime Rajeswararao was recognised by every member of the family as the adopted son of Bhaskara Rao. He was registered as karnam and acted as such till his death. Under Ex. B-12 dated November 19, 1937 the plaintiffs mother Kamappa purchased a property from Rajeswararao wherein he was described as the adopted son of Bhaskara Rao. Having regard to the long lapse of time and the recognition of Rajeswararao as the adopted son of Bhaskara Rao, the strongest presumption arises in favour of the validity of the adoption. The law on this point is correctly stated in Mullda's Hindu Law, 13th Ed., art. 512 page 519:- "But when there is a lapse of 55 years between the adoption and its be questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained. stands to reason that after a very long term of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act the burden must rest heavily upon him who 61 challenges its validity," see also Venkataseetarama Chandra Row v. Kanchu Marthi Raju, AIR 1925 PC 201, 202. The presumption in this case is very heavy considering that all the parties to the adoption and all those who could have given evidence in favour of its validity have passed away. The appellant has not rebutted this presumption and has not shown that Seshamma did not attain the age of discretion in May 1904 and was not competent to make the adoption. The courts below rightly found infavour of the factum and validity of the adoption. There is no merit in this appeal.
b)The learned counsel for the defendant basing on the principles laid down in the above decision submits that in case of ancient adoption treatment by the family has to be taken in to consideration and the defendant has proved from the evidence of D.W.4, who is mother of defendant and also P.Ws. 1 to 3 that the defendant was always treated as adopted son of Madda Nookaiah. The principles laid down in the above decision is that once the adoption is admitted and the persons who were present at the time of adoption are not alive, there is presumption that the adoption was valid and burden is heavy on the person who has contended that the widow was a minor to prove the said fact. But, in the present case, there is no adoption of defendant. On the other hand, it is denied. The facts in the above decision are different from the facts in this suit since in that decision, adoption is admitted and contention of the opposite party is that the widow who adopted was minor by the date of adoption and in that case, the burden is heavy on the person who contended that the widow was a minor to prove said fact. But, in the present case, not only adoption is not admitted but on the other hand it is denied and defendant also failed to prove the adoption and also execution of Ex.B3 will in favour of him.
30. a) The learned counsel for the defendant cited the decision reported in 1995 (3) A.L.T. P. 372 between Narsingh Singh Vs. Smt Urmila Bai, in which the Hon’ble High Court of Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
17. It is true that the determination of lease would be in one of the modes enumerated under Section 111 sub-clauses (a) to (h) of the Transfer of Property Act . In the present case that has been done under sub-clause (h) 62 of Section 111 of the Act. In fact that has been done by the plaintiff by issuing a quit notice popularly known as 'quit notice' under Section 106 of the Transfer of Property Act as per Ex.A-1 which is replied by defendant under Ex.A-2. Since that was not challenged, there was no issue for the purpose of determination. It is significant to note that the lease or tenancy would become determinable by forfeiture under Section 111 sub-clause (g) item 2 where the lessee renounces his character as such for setting up a title in third person or by claiming title in himself. If the Court finds that the defendant or the adversary is a tenant or a lessee in law and vacates on setting up title even without a quit notice, he would be forfeiting his tenancy when he will be evicted as a matter of penalty under the said provision. Therefore, it was necessary for the learned trial Judge to first of all give a finding on the relevant issues 1 and 2 whether defendant is the tenant on the suit premises and on that even accepting that he would set up a title, that would become redundant and on that count alone he would have been evicted. Thereby defendant would be taking a serious risk if the tenancy of the lessee was established. In other words, it was totally unnecessary for the Court to find out whether defendant was in possession of the property in his own right. Merely on giving a finding that he was a tenant and the tenancy had been determined in any one of the modes permissible under law as above, there could have been a decree for the plaintiff in a case like this. The matter has not stood at this stage.
18….. Now to sum up in a suit for possession by a landlord the issue relating to defendant's title would be totally alien and unwarranted. The learned trial
Judge has adverted to it unnecessarily, has gone into such a question beyond
the scope of the suit and has gone to the extent of recording a finding against the defendant rightly or wrongly. Here it may be emphasised that by doing so, Courts would deprive the parties of their legitimate reliefs in a properly framed suit when an occasion arises. The rule of res judicata is one of such operating situations on the parties regarding their respective rights. If the plaintiff had filed a suit for declaration of title or possession based on title, etc. etc. etc., he was expected to prove only that in the absence of defendant not being a tenant and when the defendant would have resisted it with his own theory that he is the owner or that he has perfected his title by adverse possession, etc. etc. etc. By giving a finding on issue No. 4 in a suit where parties were not directed to concentrate or lead evidence on such matters fully and effectively, it would be a travesty justice and violation of principles of natural justice. In other words, by framing issue No. 4 and by dealing with the same and giving a finding, the judgment of the trial Judge becomes vitiated. Under the circumstances, this Court has a duty to delete such an issue in the light of the observations made above.
b) The learned counsel for the defendant cited the decision reported in 2013 (4) A.L.D. P. 85 (S.C.) between Narinder Singh Rao Vs.
A.V.M.Mahinder Singh Rao and others, in which the Hon’ble High Court of
Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
15. On behalf of the appellant, the submissions were made to the effect that the suit property in fact belonged to Sumitra Devi though it was in the name of Rao Gajraj Singh. The provisions of Benami Transfer (Prohibition) Act , 1988 had been referred to by the learned counsel appearing for the appellant. The question whether the suit property in fact belongs to an individual i.e. whether he is a beneficial owner or is a benami, is a question of fact. There was no averment made in the plaint with regard to the aforestated allegation. No issue to the said fact had been raised before the trial court. The said issue had been raised for the first time before the appellate court 63 and in our opinion, the issue with regard to the fact could not have been raised before the appellate court for the first time and therefore, all submissions made in relation to the provisions of Benami Transfer (Prohibition) Act , 1988 and with regard to real ownership of the suit property cannot be looked into at this stage.
c) Basing on the principles laid down in the above decisions, the learned counsel for the defendant submits that no issue regarding defendnat’s title can be framed or adjudicated merely in the absence of dispute of the title of the defendant from the plaintiff and there is travesty of justice and violation of principles of natural justice in framing he Issues. In this suit, the plaintiff is seeking for declaration that she is the absolute owner of the plaint schedule property. In order to grant or refuse the said relief, it is necessary to go into the issue of whether the defendant is the adopted son of Madda Nookaiah and the Will propounded by him is true, valid and binding in respect of item Nos. 1 and 2 of plaint schedule property.
If that is so, the defendant cannot claim that in framing the Issue Nos. 1 and 2, there is any travesty of justice and violation of natural principles of justice. These issue Nos. 1 and 2 are framed basing on the pleadings of both the parties and they are required to be considered and answered, in order to decide the disputes between the parties. Hence, basing on the principles laid down in the above decisions, the defendant cannot claim that the issue Nos. 1 and 2 are framed are wrongly framed and need not required to be framed and issue No.1 is required to be deleted.
31 a) The plaintiff has not pleaded in the plaint about plaintiff gifting the property just prior to filing of the suit on 18.10.2007 in favour of her daughter and son in respect of Item Nos. 1 to 2 of plaint schedule properties. During the course of the appeal, the evidence is placed in respect of execution of Ex.B12 and Ex.B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13.
64
b) After recalling of defendant as D.W.1, Exs.B12 and B13 are marked on. Thereafter, P.Ws. 5 and 6 are recalled and examined and through them,
Exs.A10 to A13 are marked.
c) P.W.1 stated in her cross-examination that Appellant (D.W.1) is her junior paternal uncle’s son. She further stated that she is older than him.
She further stated that prior to filing of O.S. No.651 of 2007, there were no disputes between him and D.W.1. She further stated that about 10 years back, her mother had passed away. She further stated that she did not apply to M.R.O./Tahasildar for mutation of her name in Revenue Record for plaint schedule property.
d) P.W.5 stated in his cross-examination that he knows the facts in his chief examination affidavit. He further stated that he knows facts in Ex.A10.
He further stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled.
e) P.W.6 stated in her cross-examination that she knows the facts in her chief examination affidavit. She also stated she was not delivered possession of plaint schedule property by P.W.1. She also stated that she is aware of recitals in Ex.A11. She further stated that she and her mother voluntarily and conscious of contents therein had entered into execution of
Ex.A11. She also stated that it is true in Ex.A11, it was recited that since terms and conditions in the Gift deed were not implemented, the gift deed was mutually cancelled. She further stated that the defendant (appellant) is her junior material grandfather’s son. She also stated that she does not know if legal heir certificate was issued by M.R.O. showing as P.W.1 and defendant as L.Rs of deceased Bodamma.
f) The evidence of P.W.1 and P.Ws. 5 and 6 is that the gift deeds under Exs.A10 and A11 are not acted upon and they were subsequently 65 cancelled under Ex.A12 and A13, but the defendant is claiming that in view of execution of Ex.A11 and A12, the plaintiff is not having any title in respect of item Nos. 1 to 2 of schedule properties covered under Ex.A11 and A12 and the subsequent cancellation under Exs.A12 and A13 is not much use for the plaintiff to prove that she has got any right in respect of items Nos. 1 and 2 of plaint schedule property and she had no cause of action by the date of filing of the suit in respect of those properties, which are in possession and enjoyment of the defendant.
32 a) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of
Exs.B12 and B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of Exs.B12 and B13 and that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to Exs.A10 to A13 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
b) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed the original of Exs.B12 and B13 and thereby, there is admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originally of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place 66 evidence about how she is entitled for the suit reliefs, and hence the plaintiff is not entitled for the suit reliefs.
c) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the defendant submits that Exs.B.12 and
B.13 shows that the possession is delivered and title is conveyed to P.Ws.5 and 6 and due to that section 91 and 92 of The Indian Evidence Act, 1872 comes into play and no oral evidence contrary to the same shall be admitted though the defendant is not a party to the same, since the plaintiff is claiming the reliefs based on those documents without pleading about them.
e) The learned counsel for the defendant submits that the plaintiff is claiming the relief for recovery of item Nos. 1 and 2 by evicting the defendant, but just prior to filing of the suit on 20.10.2007 the plaintiff gifted the property in favour of her daughter and son on 18.10.2017 , so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue No.5 has to be decided against the plaintiff and in favour of the defendant.
33 a) The learned counsel for the plaintiff cited the decision reported in
Bondar Singh and Others Vs. Nihal Singh and others, reported in (2003) 4 Supreme Court Cases 161, in which the Hon’ble Supreme
Court held at para No.7 as follows:
67
7. As regards the plea of sub tenancy (shikmi) argued on behalf of the defendants by their learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub tenancy (shikmi) the defendants cannot be allowed to build up a case of sub tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point.
b) The learned counsel for the plaintiff also cited another decision reported in 2012 (4) A.L.D. 618 between T.Bheem Reddy and another
Vs. P.Laxmi Bai and others, in which the Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision there is no need to file rejoinder in the present suit. The defendant has not pleaded in the written statement about the execution of Exs.B12 and 13 Gift deeds by plaintiff and also subsequently cancellation of the said gift deeds under
Exs.A1 and A13. But, the defendant has placed evidence in respect of execution of Exs.B12 and B13. The plaintiff has not filed any rejoinder after filing of the written statement by the defendant. As stated earlier there is no need to file rejoinder. But, the plaintiff is claiming that in view of the evidence of P.Ws. 5 and 6 that they did not accept the gift deeds under originals of Exs. B12 and B13 by the plaintiff and same are stood cancelled in view of execution of Exs.A10 and A11. The plaintiff is claiming that the terms and conditions in the gift deeds under originals of Exs.B12 and B13 were not implemented. Whether they were implemented or not, the plaintiff 68 has not pleaded about execution of originals Exs.B12 and B13 which are
Exs.A12 to A13 and subsequent cancellation of them under Exs. A10 and 11 by her children P.Ws. 5 and 6. In this regard, P.W.1 in her cross- examination on 06.08.2009 only stated that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. At first she stated that she has not executed any documents pertaining to item
Nos 1 and 2 of plaint schedule properties, but later she stated about the execution of settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. Thereby, there was no pleading in the plaint nor any evidence is let in by the plaintiff in the trial court regarding Exs.A10 to
A13. It is only after defendant got marked Exs.B12 and B13 gift deeds in the appeal stage through D.W.1, the plaintiff has taken steps and got examined herself and also P.Ws. 5 and 6 and placed evidence in respect of
Exs.A10 and A13. The plaintiff has to prove her independent title over the schedule property including item Nos. 1 and 2 of plaint schedule properties by the date of suit. Unless she proves the title of item Nos. 1 and 2 of plaint schedule properties by the date of suit, she cannot claim recovery of possession of the said properties irrespective of defendant’s failure of proving the execution of the Will under Ex.B3 in his favour and also the adoption claimed by him. Admittedly, the defendant is in possession of the item Nos.1 and 2 of plaint schedule properties. That is the reason why the plaintiff filed the suit for the relief against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and also damages of Rs. 15,000/- per month per acre for item Nos. 1 and 2 of plaint schedule properties . The plaintiff is claiming that the defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 2005 and was pretending to be 69 managing the item Nos. 1 and 2 on behalf of the plaintiff. Basing on the said pleading, the plaintiff is claiming recovery of possession of the item
Nos. 1 and 2 of the plaint schedule properties.
d) Though, the defendant has pleaded about Ex.B3 Will, but failed to prove. He also pleaded that while refuting the plaint allegations by claiming as are not true and correct, the plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties. He also pleaded that so far as the other items are concerned he has no claim over the suit.
D.W.1 in the cross-examination stated that except item Nos. 1 and 2 of plaint schedule properties, he has no claim against the rest of the suit schedule properties. He also stated except item Nos. 1 and 2 of schedule properties he is not denying the title of the plaintiff over the remaining Items in the plaint schedule property.
e) In those facts and circumstances, there is no force in the contention of the learned counsel for the defendant that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
f) The suit is filed on 20.11.2007. Thereby, it can be safely held that the plaintiff just prior to filing of the suit on 20.11.2007 executed Exs.A12 and A13 on 18.10.2007. As per Exs.A12 and A13, the plaintiff gifted the properties and according to the plaintiff in favour of P.Ws. 5 and 6. But, this fact of gifting the properties is not pleaded by the plaintiff in the plaint without giving any valid reason. Further, the cancellation of Exs.A12 and
A13 by P.Ws. 5 and 6 who are the son and daughter of P.W.1 by executing 70
Exs.A10 and A11 is also not pleaded in the plaint in the plaint. Exs.A10 and
A11 are dated 07.04.2014. P.Ws. 1,5 and 6 admitted that the properties gifted which are item Nos. 1 and 2 of plaint schedule properties are in possession of defendant and there was no delivery of possession of those properties by P.W.1 to P.Ws. 5 and 6. P.W.1 admitted in her cross- examination that she took the plea in the plaint that the plaint schedule property was in her possession by the date of suit. She also stated that she has not filed documents showing her possession and enjoyment of the plaint schedule properties. Admittedly, P.Ws. 5 and 6 are not parties to the suit.
P.W.5 stated that plaint schedule property is not in her possession and enjoyment. P.W.6 also admitted that possession of the plaint schedule property was not delivered by P.W.1. P.W.6 stated that she is aware of the recitals in Ex.A11. She also stated that she and her mother voluntarily and conscious of contents therein had entered into execution of Ex.A11. she also stated that it is true in Ex.A11 it was recited that since terms and conditions in the gift were not implemented, the gift deed was mutually cancelled.
P.W.5 stated in his cross-examination that he knows the facts in Ex.A10. He also stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled. In
Exs. A10 and A11 also, it is mentioned that as Exs.A12 and A13 could not be implemented and also P.Ws. 5 and 6 are not interested and due to some unavoidable circumstances, the said documents are executed in view of agreeing of P.W.1 for taking back the property gifted to P.Ws. 5 and 6 on the request of P.Ws. 5 and 6. It is also mentioned that the said documents are executed after both parties agreed for the terms. It is also mentioned that the rights of P.Ws. 5 and 6 got under Exs.A12 and A13 stood cancelled.
But, P.Ws. 1,5 and 6 have not stated about what are the unavoidable circumstances, which are the reasons for cancellation of Exs.A12 and A13 by 71
P.Ws. 5 and 6. In those facts and circumstances, even though, the defendant has not pleaded about execution of Exs.A12 and A13 by plaintiff in the written statement, the plaintiff at the time of filing plaint, since fully aware of execution of Exs.A12 and A13 by her should have pleaded about the execution of the said documents in the plaint. If really, due to any unavoidable circumstances, Exs.A12 and A13 are not acted upon and they are cancelled by P.Ws. 5 and 6 unilaterally, without accepting by P.W.1, the said fact also should have been pleaded, but in the present case, as per the terms of Exs.A10 and A11 and evidence of P.Ws.1,5 and 6 after agreement of terms of Exs.A10 and A11 only all the parties executed them. Thereby,
P.W.1 is also aware about execution of Exs.A10 and A11 by P.Ws. 5 and 6, but the said fact is also not pleaded in the plaint. The execution of Exs.A10 to A13 by P.Ws. 1,5 and 6 is within full knowledge of plaintiff exclusively, but not within the knowledge of defendant, though they are registered documents. Having failed to plead all these facts by the plaintiff, the plaintiff cannot claim now that they need not be pleaded, because the defendant has not pleaded about the execution of Exs.A12 and A13 in the written statement.
g) The defendant is not a party to Exs.A.10 to A.13. But plaintiff has not added P.Ws.5 and 6 as parties in this suit and also not pleaded about the same. In those facts and circumstances, as per the principles laid down the above decisions and also as no evidence can be let in without pleading, the plaintiff is not entitled to place evidence in respect of Exs.A.10 to A.13 in order to prove her title on item Nos.1 and 2 of the plaint schedule properties.
h) The defendant without pleading about Exs.A12 and A13 placed evidence in respect of Exs.B12 and B13, but when the plaintiff has not pleaded about Exs.A10 to A13, the defendant even without pleading about 72
Exs.B12 and B13 which are the certified copies of Exs.A12 and A13 can place evidence in proof of acts of plaintiff about not having title in respect of item
Nos. 1 and 2 of plaint schedule properties by the date of suit as the plaintiff is claiming title in respect all the suit schedule properties by pleading in the plaint that she is the daughter of Madda Nookayya and Bodemma and as they died intestate, she got all the plaint schedule properties and she is claiming declaration of title that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit. Whereas, the defendant in the written statement pleaded that the plaintiff is not entitled for the relief of declaration that she is the absolute owner of the plaint schedule properties. He also further pleaded that he got the properties in Item Nos. 1 and 2 of plaint schedule properties, in view of the Will under Ex.B3 and he is in possession and enjoyment of the same and he is the absolute owner of the same. But, he failed to prove
Ex.B13, but it does not mean that he is not entitled to place to disprove the title of the plaintiff in respect of item Nos. 1 and 2 of plaint schedule properties, as always the defendant can plead alternative reliefs and entitled to place evidence to disprove the plaintiff’s right. In respect of events happening after institution of the suit, the basic principle is that the rights of the parties should be determined on the basis of the date of filing of the suit.
Thus where the plaintiff has no cause of action n the date of the filing of the suit, he will not ordinarily be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Similarly, no relief will be refused to the plaintiff by reason of any subsequent event if at the date of 73 the institution of the suit, he has a substantive right. As per the principles laid down in the decisions reported in AIR 1987 Supreme Court 741 between
Amarjit Singh Vs. Khatoon Quamarian and also in another decision reported in AIR 1975 SC 1409 between Pasupuleti Venkateswarlu Vs. Motor & General
Traders, and AIR 1974 SC 199 between Mahalinga Vs. Arulnandi. The right to relief must be judged to exist as on the date of suit or institute the legal proceedings. But at the same time in order to achieve substantial justice, the subsequent events in the absence of other disentitling factors or just circumstances have to be taken into consideration to meet the ends of justice. But in the present case plaintiff has not pleaded any fact relating to
Exs.A.10 to A.13 in the plaint and also the evidence in respect of these is placed by plaintiff by examining herself by recalling and also her children as
P.Ws.5 and 6 subsequent to defendant placing evidence in respect of
Exs.B.12 and 13 without any bonafide reasons for not pleading about
Exs.B.12 and B.13 even though they were executed just before filing of the suit.
34 Order 7 Rule 1 (e) of C.P.C. reads as follows:
e) The facts constituting the cause of action and when it arose;
As per the said provision, the facts constitute the cause of action and when it arose must have pleaded in the plaint. Every suit presupposes the existence of a cause of action against the defendant because if there is no cause of action the plaint will have to be rejected. Even though he expression “cause of action” has not been defined in the code, it may be described as “a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed” or “which give the plaintiff right to relief against the defendant”. Thus, “cause of action” means every fact, which it is necessary to establish to uupport a right or obtain judgment. To put it differently, cause of action gives occasion for and forms the foundation of the suit.
b) Thereby, in the present suit, unless, plaintiff proves that she has cause of action in respect of item Nos. 1 and 2 of plaint schedule properties by the date of suit and she pleaded the same in the plaint and also when the said cause of action arose, she is not entitled to claim the reliefs sought for.
74
c) The plaintiff has to prove that even though Exs.A12 and A13 are executed, the property is not divested by her and it continuous to be with her. If really, it is continued to be with her, irrespective of execution of
Exs.A12 and A13, there is no need for execution of Exs.A10 and A11. The very execution of Ex.A10 and A11 much longer to the dates of execution of
Ex.A12 and A13 since, Exs.A10 and A11 are dated 07.04.2014 and subsequently after 7 years, it clearly shows that that she has divested with the properties in item Nos. 1 and 2 which are in possession and enjoyment of 2nd defendant. So, it can be safely presumed and held that in view of that reason only Exs.A10 and A11 were executed. Further as per the principles laid down in the decisions reported in Margadarshini Educational Soceity
Vs. P.Subhashan and another, Union of India and others Vs. Vasavi
Cooperative Housing Society Limited and others (supra) in the present suit also, the burden is on the plaintiff to establish her absolute title of the plaint schedule properties, including Items Nos 1 and 2 and she must succeed on the strength of her case without depending upon the weaknesses in the case of the defendant.
d) In respect of the decision reported in 2009 (4) A.L.T. 727, (referred supra) the learned counsel for the plaintiff submits that the so called gift deeds under Exs.A12 and A13 are not acted upon due to which, the plaintiff remained the absolute owner of the plaint schedule properties.
But, the plaintiff is not able to place evidence to prove that the gift deeds are not acted upon and further, even if any evidence is placed, the same is also not useful for the plaintiff without any pleading for the same.
37 The Hon’ble High court of Madras in the decision reported in AIR 1954
Madras 84, between A.Rakkiyana Gounder Vs. Chinnu Govardan held that no evidence can be let in contra to the terms of the deed and the bar is absolute. Hence, in the present suit also, the plaintiff is not entitled to let in 75 evidence contra to Exs. A12 to A13 unless plaintiff pleads contra to Exs.A12 to A13 and then proves the same 38 In view of that, the defendant failed to prove Ex.B3 Will and title to the Item Nos.1 and 2 of plaint schedule properties, but he is admittedly in possession of the said properties. The plaintiff failed to prove that there was cause of action by the date of filing of the suit, in respect of item Nos. 1 and 2, and she is not entitled for any relief in respect of said properties, more so, declaration of title and recovery of possession and permanent injunction in respect of Item Nos. 1 and 2 of plaint schedule properties which are discretionary reliefs and can be granted only if plaintiff proves that she is bonafide though she is entitled for the reliefs prayed in the suit for other properties in view of evidence placed by plaintiff, and also as the defendant also pleaded in the written statement, as stated earlier that, so far as the other items are concerned, the defendant has no claim over the same and he never interfered in respect of other items of the plaint schedule properties and he has no claim over the said properties.
38 a) The defendant is claiming that generally the damages are not part of subject matter of the suit and are to be determined if suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. and so deciding quantum of profits or damages by original court is contrary to law and that in respect of plea for recovery of item Nos. 1 and 2 by evicting the defendant. Just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her daughter and son, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages.
b) The trial court held that the plaintiff can claim damages by filing separate petition while answering issue No.5. The plaintiff has not paid court fee for the relief of damages. The trial court observed that plaintiff has not 76 led any evidence in respect of the damages and so it cannot be granted in the suit.
c) The plaintiff claimed damages at Rs.15,000/- per annum per acre for item Nos. 1 and 2 of plaint schedule properties till the date of handing over of the possession. But, as stated earlier, the plaintiff is not entitled for any reliefs in respect of Item Nos. 1 and 2 which are not in exclusive possession and enjoyment of plaintiff. As such, the question of granting of damages or deciding the quantum of damages does not arise.
39 Plaintiff has proved that the defendant is not the son of Madda
Nookaiah and that the Will propounded by the 1st defendant said to have been executed by Madda Nookayya on 01.10.1996 is not true, valid and binding in respect of the item Nos. 1 and 2 of the plain schedule properties and that the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties except item Nos. 1 and 2 of plaint schedule properties. The plaintiff is not entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule properties. The plaintiff is also not entitled for recovery of damages at the rate of Rs.15,000/- per month per acre in respect of item Nos. 1and 2 of the plaint schedule properties from the defendant. The plaintiff proved that the plaintiff is having subsisting interest in all the plaint schedule properties except item Nos. 1 and 2 and that the plaintiff is having title to item Nos. 3 and 5 of plaint schedule properties. Hence, the judgment and decree in O.S.
No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s Court,
Rajahmundry has to be modified as plaintiff failed to prove the reliefs claimed by her in respect of item Nos. 1 and 2 of schedule properties, but the trial court granted the same as per it’s judgment. Accordingly, point
Nos. 1 to 8 are answered. Basing on the answers to Point Nos. 1 to 8, Point
No.9 is answered.
77 39 Point No.9: In the result, the appeal in A.S. No. 31 of 2013 is partly allowed. The Judgment and decree of the trial court in O.S. No. 651 of 2007
dated 14.03.2013 on the file of I Addl. Senior Civil Judge's Court,
Rajahmundry, is partly set aside in respect of the reliefs granted of declaration of the plaintiff as absolute owner of item Nos. 1 to 2 of plaint schedule properties and deliver of vacant possession of the same within three months, and also the plaintiff is entited for claiming damages by filing separate petitions. For all other reliefs the Appeal is dismissed.
Dictated to the Stenographer (Grade-II), transcribed by him, corrected
and pronounced by me in Open Court, this the 13th day of February, 2017
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For appellant
D.W.1: Madda Venkata Rao
For Respondent:
P.W.1 : Siddabathula Nagamani P.W.5 : Siddabathula Rajasekhar P.W.6 : Marre Atchiyyamma
DOCUMENTS MARKED
For Appellant:
Ex.B12/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her son P.W.5 Ex.B13/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her daughter P.W.6
For Respondent:
Ex.A10/07.04.2014 : Original of Registered cancellation of gift deed Ex.A11/07.04.2014 : Original of Registered cancellation of gift deed Ex.A12/18.10.2007 : Original of Gift deed executed by P.W.1 in favour Of P.W.5. Ex.A13/18.10.2007 : Original of gift deed executed by p.W.1 in favour Of P.W.6.
78
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
79
Add the following in Page 12 after para 11 (a) as (b)
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
1
In The COURT OF The SPECIAL JUDGE For Trial Of Cases Under S.Cs & S.Ts
(POA) ACT – Cum - X Addl. District & Sessions Judge, East Godavari At Rajahmundry
PRESENT: SRI N.MALYADRI
Special Judge, SCs & STs Court – cum -
X Addl. District Judge. Monday, the 13th day of February, 2017
APPEAL SUIT No. 31 OF 2013
Between:
Madda Venkata Rao .. Appellant/Defendant
And
Siddabathula Naga Mani .. Respondent/Plaintiff
On appeal against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S. No.651 of 2007.
between:
Siddabathula Naga Mani .. Plaintiff
And
Madda Venkata Rao .. Defendant
This appeal is coming on 01.09.2015 for final hearing before me in the presence of Sri B.S.Srinivasu, Advocate for Appellant/defendant and Sri S.Kumar, Advocate for Respondent/Plaintiff and the matter having stood over for consideration till this day this court delivered the following:
JUDGMENT
This appeal is filed against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S.
No. 651 of 2007.
2 The suit in O.S. No.651 of 2007 is filed by the plaintiff against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties 2 from the date of suit till the date of handing over of possession and for costs of the suit.
3 The brief and relevant facts pleaded in the plaint presented under
Section 26 and Order VII Rule 1 of Civil Procedure Code are as follows:
a)Plaintiff is the daughter and only issue of Madda Nookayya and his wife
Madda Bodemma and that plaintiff’s father madda Nookayya died intestate in the year 1996 and her mother also died intestate in the year 2001 and that the plaint schedule properties are the absolute properties of the father of plaintiff i.e., Madda Nookayya and Madda
Nookayya had three brothers 1) Madda Surayya, 2) Madda Suibbayya (father of defendant) and 3) Madda Gopayya. Except Subbayya all other brothers died. Madda nookayya got Item Nos. 1,2 and 6 of the plaint schedule properties in oral partition with his brothers and he was also issued Pattadar Pass book and title deed book for item Nos.
1,2 and 6 of plaint schedule properties. The plaintiff is having custody of the title deed book and the defendant is having custody of the pattadar pass book and that the plaintiff is filing the title deed books as Annexures 1 and 2.
b)Item No.3 of the plaint schedule property was given as gift to Madda
Nookayya under a registered gift deed dated 09.02.1987 by Madda
Gangamma wife of Surayya and that the Madda Nookayya accepted the gift and had been in possession and enjoyment of the same till his death and there after plaintiff and her mother were in possession till the death of plaintiff’s mother and thereafter plaintiff is in possession and enjoyment of the same and that the Madda Nookayya was not issued pattadar passbook or title deed for this item and the original gift deed dated 09.02.1987 is filed as Annexure No.III.
3
c)Item No. 4 of the plaint schedule property was purchased by late
Madda nookayya under registered sale deed dated 02.02.1971 and in the said sale deed the extent was shown as Ac 1.00 cents on ground, but it is Ac 1.06 cents and the original sale deed is filed as Annexure
IV. Item No.4 was also shown in Pattadar pass book and title deed i.e., Annexure No.1.
d)Item No.5 of plaint schedule originally belonged to Madda Surayya and brother of Madda Nookayya who purchased it under registered sale deed dated 20.02.1971 and that after his demise, of his wife
Gangamma sold it to plaintiff in the year 1992 for Rs.40,000/- and received consideration and handed over possession of the land and also the original sale deed dated 20.02.1971 in favour of Madda
Suryya and plaintiff has been in possession and enjoyment of the same ever since.
e)The plaintiff due to illiteracy did not obtain registered sale deed from
Madda Gangamma, however, even otherwise the plaintiff has been in continous uninterrupted possession over since 1992 openly to the knowledge of the entire world and perfected her title by presumption.
The said sale deed dated 20.02.1971 in favour of Madda Surayya is filed as Annexure No.IV.
f)The defendant is the son of Subbayya who is the younger brother of
Nookayya and after death of her mother the plaintiff has been in possession and enjoyment of the plaint schedule properties as absolute owner and since no taxes are being collected, no taxes are being paid.
g)The defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 4 2005 and was pretending to be managing the item Nos. 1 and 2 of plaint schedule properties on behalf of the plaintiff.
h)About 4 months ago, when the plaintiff wanted to apply for loan in
S.C. corporation for erecting a bore well the defendant objected for the same and started making a false claim that he is the adopted son of
Madda Nookayya and that all the plaint schedule properties exclusively belong to him, keeping the plaintiff under the belief that he is managing the properties and taking advantage of plaintiff’s illiteracy and innocence and on the pretext that he will get the name of the plaintiff mutated in revenue records he took custody of the pattadar passbooks standing in the name of Madda Nookayya in respect of Item
Nos. 1,2,4 and 6 of plaint schedule properties.
i)The defendant taking advantage of his influence with local revenue authorities has been pressurizing the plaintiff through them to part with Item Nos. 3 to 6 of plaint schedule properties and giving out threats to the plaintiff through them and the defendant has absolutely no right, title or interest in the plaint schedule property and the plaintiff demanded the defendant to hand over possession of Item Nos.
1 and 2 of plaint schedule properties, but he refused to do so on the other hand he has been threatening to interfere with the plaintiff’s possession and enjoyment of the plaint schedule property under the guise of a false claim that he is the adoptive son of late Madda
Nookayya.
j)The plaintiff came to know that the defendant is trying manipulate some documents to buttress his false claim in collusion with the
Revenue Officials and the defendant always remained as son of
Subbayya and in the old voters list and ration card his father’s name mentioned as Subbayya only.
5
k)In the year 1991, the father of the defendant sold his property under registered sale deed dated 10.04.1991 and the defendant signed as a witness where in his father’s name is shown as Subbayya and thus there is a irrefutable documentary evidence to show that the defendant was never adopted by Madda Nookayya. The certified extract of the sale deed dated 10.04.1991 is filed as Annexure No.IV.
l)In view of the litigious stand taken by the defendant the plaintiff is advised to seek for a declaration that she is the absolute owner of the plaint schedule property and for possession of Item Nos. 1 and 2 of plaint schedule properties and for permanent injunction restraining the defendant his men, agents and successors in interest from interfering with the plaintiff’s possession and enjoyment of the Item Nos. 3 to 6 of plaint schedule properties and the plaintiff issued a legal notice dated 22.10.2007 calling upon the defendant to handover vacant possession of Item Nos. 1 and 2 of plaint schedule properties and the defendant having received the legal notice did not comply to reply and the office copy of the legal notice is filed as Annexure No.III and the acknowledgement due is filed as Annexure No. VIII. Items Nos. 1 and 2 will fetch an income of Rs. 15,000/- per acre per annum after expenses and the defendant is bound to pay the same to the plaintiff.
Hence, the plaintiff prays to decree the suit with costs as prayed for.
4. The defendant filed written statement and the brief and relevant facts pleaded in it are as follows:
a)The defendant refuted the plaint allegations by claiming as not true and correct. The plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties.
b)The defendant is the adoptive son of Madda Nookayya i.e., father of the plaintiff and grew up in the house of Madda Nookayya and there is 6 overwhelming documentary evidence i.e., legal heir certificate, voters list, sugar card and election identification card to establish that he has been shown as the son of Madda Nookayya.
c)Madda Nookayya executed his last will and testatement on 01.10.1996 bequeathing an extent of Ac 0.50 cents in Srikrishnapatnam village in
R.S.No. 391/2B and Ac 1.06 cents in Srikrishnapatnam village in R.S.
No. 390 and an extent of Ac 0.43 cents in R.S.No. 2/2J in
G.Yerrampalem Village in favour of the plaintiff herein while giving an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village an extent of Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties which are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned he has no claim over the same.
d) The defendant never interfered in respect of other items of the plaint schedule properties and he has no claim over the same. Hence, the defendant prays that the suit may dismissed in so far as item Nos.
1 and 2 of the plaint schedule properties are concerned with costs.
5. Basing on the above pleadings, the following issues are settled for trial
before the Trial Court:
1.Whether the defendant is the adopted son of Madda Nookayya and whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
7
2.Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule property?
3.Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule?
4.Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule from the defendant?
5.To what relief?
6. During the course of trial, the plaintiff got examined P.Ws. 1 to 4 and got marked Exs.A1 to A9, while the defendant examined D.Ws. 1 to 6 and got marked Exs.B1 to B11 and Ex.X1 to X3.
7. After conducting due trial, the trial court decreed with suit with costs declaring that the plaintiff is the absolute owner of the Item No.1 and 2 of plaint schedule property and for delivery of vacant possession of the same within three months and also granted injunction restraining the defendant to interfere with the peaceful possession and enjoyment of the plaint schedule property of item Nos. 3 to 6. The plaintiff can claim the damages by filing separate petition.
8. As against the said decree and judgment in O.S. No. 651 of 2007, the defendant filed the present appeal and presented memorandum of appeal under Section 98, Order 41 Rule 1 C.P.C. The brief and relevant facts pleaded in the grounds of appeal are as follows:
a)The Decree and Judgment of the trial court is contrary to law, weight of evidence and probabilities.
b)The defendant did not have free and fair trial before trial court for the following reasons
1)That the evidence and written arguments submitted by the defendant are not considered.
8
2)The plaintiff though admitted as P.W.1 in cross as follows:
“It is true, that I have executed a settlement deed in respect of
Item Nos. 1 and 2 in favour of my daughter on 18.10.2007”, but the suit was presented only 20.11.2007 nearly one month after losing title over item Nos. 1 and 2, yet the trial court declared the title over item Nos 1 and 2 in favour of the plaintiff and ordered delivery.
3)The plaintiff P.W.1 proclaimed the result of the suit at least one month prior to the result.
4)The trial court heard arguments on 06.02.2013, but pronounced the Judgment only 14.03.2013 the long delay in pronouncing the judgment always sends wrong signals as to Judgment to the society.
c)The trial court did not follow the principles that in a suit of declaration of title, the plaintiff has to stand or fall on the strength of the case of the plaintiff, but not on the strength or weakness of the case of the defendant so the trial should have decided issue
Nos. 2 to 5 by recording findings on them independently considering the evidence and written arguments of the both sides.
d)The trial court without consideration of the oral and documentary evidence basing on the contention of the plaintiff’s counsel, without any legal basis, adopted it, which clearly establish the total prejudice caused to the defendant.
e)The trial court willfully omitted to decide Issue No.2, though, in the written arguments, there is submission in detailed manner in respect of the same.
f)The trial court ought to have seen that in the suit involving declaration, injunction and recovery of possession, since the plaintiff sought for relief of declaration and for recovery of 9 possession of Item Nos. 1 and 2, the trial court should have recorded finding fact how plaintiff established her title to item Nos.
1 and 2 before granting relief of declaration of title and recovery of possession.
g)The trial court should have seen that P.W.1 admitted that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007 i.e., one month prior to filing of the present suit, thus when plaintiff herself admitted that she had no title to item Nos. 1 and 2 granting of declaration of title and injunction to item Nos. 1 and 2 is contrary to (2009) 4 ALT 727 and hence, the finding of the trial court on issue No. 2 that the plaintiff is entitled to declaration and recovery of item Nos. 1 and 2 are liable to be set aside.
h)The trial court should have seen that the item Nos. 3 to 6 of the plaint schedule property, the plaintiff sought for declaration of title and for injunction. Even for granting such relief of establishing title is mandatory and the plaintiff as P.W.1 admitted as follows:
“We applied for the M.R.O. for issuing legal heir certificate of her mother”. “It is true to suggest that M.R.O. issued legal heir certificate as myself and defendant are the legal heirs of my mother” but the defendant produce Ex.B2 legal heir certificate showing plaintiff and defendant as children of late Bodamma w/o.Nookaiah and that the plaintiff did not dispute Ex.B2 in cross examination by defendant since Ex.B2 was issued by competent statutory authority as per joint application of plaintiff and defendant so the plaintiff could not establish prima facie case, her absolute title to seek declaration.
i)The trial court should have seen that when P.W.1 admitted that herself and defendant jointly applied to M.R.O., for legal heir 10 certificate after Ex.B2 certificate was issued, that the plaintiff is not competent to take different stand before Civil Court or statutory authority etc. Thus, the plaintiff is not prima facie entitled to seek for declaration of her title.
j)The trial court should have seen that the trial court’s finding of fact on issue No.1 is not only merely abuse of process of law but also failure of justice.
i)The plaintiff did not dispute the Will either in the plaint or by filing better pleadings as required under Order 6 Rule 4 of
C.P.C., to the contentions raised in the written statement which will have material value and that in any case, the parties cannot let in evidence beyond pleadings and the plaintiff having not filed better pleadings as required under
Order 6 Rule 4 of C.PL.C. cannot challenge the Will vide (1981) 2 A.P.L.J. 62.
k)The trial court should have seen that defendant examined, D.W.2 and D.W.3 the attestor of the Ex.B3 who spoke to details of “Due execution” and so the defendant proved execution of Ex.B1, particularly in the absence of objection regarding Will raised by the plaintiff thus proved execution of the Will beyond reasonable doubt.
l)The trial court should have seen that P.W.1 has admitted in cross- examination of P.W.1 as follows:
“I am coming to know that the defendant filed will along with written statement. He did not ask my advocate as to defence set up by the defendant in the written statement. I have not filed any rejoinder regarding the will executed by my father disputing the
Will. I know the said will alleged to have executed by my father for the last two years. I did not place the dispute in respect of the said 11
Will before elders after coming to know about the Will”. Thus the plaintiff never attempted to dispute the Will.
m)The trial court should have seen that only a person who is either the beneficiary or aggrieved alone can dispute the documents and since the plaintiff does not answer the description i.e., neither aggrieved party nor beneficiary, so she is not competent to dispute the same.
n)The trial court should have seen that the evidence of P.W.4 and
Ex.X1 to X5 are all neither relvant nor establish any fact in view of following admission of P.W.1 “My father was a thumb marker my mother had no bank accounts. I have documents containing thumb marks of my father such as pass book”.
But, the plaintiff did not send any document containing admitted or proved thumb mark of late Nookaiah for comparison to Expert but
P.W.4 compared the thumb marks on Will Ex.B3 with some documents thumb marks on the documents which are not proved or admitted, so the comparison has no basis so Ex.X1 to X5 are liable to be rejected.
o)The trial court failed to appreciate the evidence of D.W.1 to D.W.6 coupled with 11 years undisputed enjoyment of the properties covered by Will all establish circumstantially the will, so the finding that will is not proved is not correct and such finding is liable to be set aside.
p)The trial court finding on adoption is abuse of process of law for the following reasons.
i)Exs. B1, B4, B2, Ex.B9 to B11 documents categorically establish
Nookaiah as father of the defendant and that the defendant also examined his natural mother and witnesses whose 12 evidence in substance cannot be brushed aside and that the adoption is disputed more 30 years after it occurred so presumption of adoption available
q)Therefore, upon grounds urged above and upon grounds that may be urged at the time of hearing of the appeal, the appellant prays to allow the appeal and set aside the decree and judgment passed in O.S. No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s
Court, Rajahmundry dated 14.03.0213 with costs throughout and to dismiss the with costs.
10. During the course of enquiry in the appeal, on behalf of the
Appellant/defendant, D.W.1 is recalled and examined and Ex.B12 and
Ex.B13, which are Settlement deed dated 18.10.2007 from the respondent in favour of the son of Raja Sekhar, and Settlement deed dated 18.10.2007 from the respondent in favour of her daughter M.Atchayamma respectively are marked. As per the memo filed by the appellant and recorded the appellant given up the paras 3 to 5 in the chief affidavit. On behalf of the respondent / plaintiff, P.W.1, is recalled and P.Ws. 5 and 6 are examined
Exs.A10 to A13 are marked which are, Regd. Gift cancellation Deed dated 07.04.2014, Regd. Gift Cancellation deed dated 07.04.2014, original gift deed dated 18.10.2007 executed by P.W.1 in favour of Siddabathula
Rajasekhar and Original gift deed dated 18.10.2007 executed by P.W.1 in favour of Marre Atchiyamma respectively.
11. a) For the sake of brevity and convenience here in after the parties and evidence will be referred as referred in the judgment in O.S.
No.651/2007 on the file of I Addl. Senior Civil Judge's Court, Rajahmunedry
dated 14.03.2013.
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The 13
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
12. a) The learned counsel for the appellant/defendant submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
(b) The learned counsel for the defendant submits that unless the plaintiff establishes her own title to the property and succeeds, but the plaintiff cannot succeed on the weakness of the defendant’s case.
(c) The learned counsel for the defendant submits that the plaintiff has to establish her superior title to plaint schedule properties.
(d) The learned counsel for the defendant submits that as per Section 34 of Specific Relief Act a person is entitled for Declaration of right or title if that person possesses the same.
(e) The learned counsel for the defendant submits that as admitted by
P.W.1 since plaintiff did not dispute the Will executed by her father and also the adoption by specifically pleading the same or by filing rejoinder after the written statement filed by the defendant, framing of Issue No.1 does not arise and the defendant has proved the Will executed by his father and also adoption of him by his father.
(f) The learned counsel for the defendant submits that as the plaintiff admittedly did not dispute either of the aspects covered by Issue No.1, but the trial court framed the said issue in respect of undisputed facts and as the issue cannot be framed with respect of undisputed facts, the two aspects are liable to be deleted and if the are not deleted also, both the aspects covered by Issue No.1 are not relevant for deciding the plaintiff’s case as the same 14 can be considered only when plaintiff established primafacie case of absolute title to property.
(g) The learned counsel for the defendant submits that the evidence of
D.W.1 coupled with the contents in Exs.B1 and B2 and since M.R.O. as per
Section 4 of Pattadar Passbook Act being statutory authority can issue legal heir certificate after conducting inquiry under Section 5 A of the said Act and plaintiff did not dispute Ex.B2 legal heir certificate by filing appeal and
M.R.O. issued proceedings under Ex.B8 after appeal time is over and plaintiff also as P.W.1 admitted and accepted the receipt of Ex.B8 proceedings and nothing contra is elicited in the cross-examination of D.W1, the defendant has proved that he is adopted by his father who is natural father of P.W.1.
(h) The learned counsel for the defendant submits that as the plaintiff admitted Ex.B2 and did not challenge it by filing any appeal within time, cannot change her stand and say that the defendant is not the legal heir of
Nookaiah as it amounts playing fraud on public authority i.e., Court or operate as estoppel against the plaintiff and thereby the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of
Nookaiah and, as such, the case of the plaintiff that she is the absolute owner of the schedule property as sole heir of Nookaiah is failed.
(i) The learned counsel for the defendant submits that the adjudication by M.R.O. by following the procedure in 5A inquiry cannot be challenged in
Civil Court and, as such, in view of Ex.B2, the plaintiff’s absolute title over item Nos. 1 to 5 of schedule properties stood disproved.
(j) The learned counsel for the defendant submits that the proceedings under Exs.B2 and B8 are in the nature of decree in Specific Relief Act and is binding on the plaintiff or parties to those proceedings.
15
(k) The learned counsel for the defendant submits that the moment
Exs.B2 and adoption are accepted, the plaintiff has no absolute right or title to plaint schedule properties, and the plaintiff and the defendant are co owners and, as such, at the most the plaintiff may be entitled to relief of partition in view of proviso to Section 34 of Specific Relief Act.
(l) The learned counsel for the defendant submits that in view of Ex.B3
Will executed by late Nookaiah the common owner of the plaint schedule properties, so the defendant cannot be disturbed under any circumstances.
(m) The learned counsel for the defendant submits that as the defendant set up oral adoption, generally the burden would be upon the defendant, but, in the present case, since the defendant produced Ex.B2 coupled with the admissions of P.W.1 that both the plaintiff and defendant are jontly applied for legal heir certificate and in view of the fact that nothing contra is elicited in the cross-examination of D.W.1 in respect of the both the aspects covered in the first issue, it is created a special circumstance in favour of the defendant and created a presumption of relationship of father and son in between the defendant and late Nookaiah.
(n) The learned counsel for the defendant submits that in view of the evidence of natural mother of defendant as D.W.4 and the fact of late
Nookaiah’s conduct and joining of the defendant in school as shown in Ex.B1 and the contents of Ex.B3 Will would clearly establish the adoption of defendant.
(o) The learned counsel for the defendant submits that as per Ex.B10 recitals by paternal aunt descrbining the defendant as son of late Nookaiah and Exs.B9 and B4 Government records describing the defendant as son of
Nookaiah, clearly shows that the defendant has been treated by one and all including the deceased Nookaiah as his son vide Ex.B3 would establish adoption beyond reasonable doubt.
16
(p) The learned counsel for the defendant submits that when the legal heir ship of parties through a common ancestor was not disputed before statutory authority then adoption of such legal heir cannot be challenged
before Civil Court and it is matter of public policy to continue same stand
and thus, Ex.B3 legal heir certificate of defendant and plaintiff as heirs of
Nookaiah was accepted both parties as well as M.R.O. concerned, so this aspect of legal heir ship was only consequence of adoption, so the plaintiff cannot challenge the same and that thus, the defendant heir ship to
Nookaiah as his adopted son is not challenged and so the issue of defendant’s adoption has to be decided in favour of the defendant and against the plaintiff.
(q) The learned counsel for the defendant submits that defendant is claiming possession and enjoyment of plaint schedule properties in pursuance of Ex.B3 in his own right from December, 1996 i.e., from the date of death of late Nookaiah and admittedly he is in possession of Item Nos.1 and 2 of plaint schedule properties.
(r) The learned counsel for the defendant submits that the present suit came to be filed after completion of 11 years and during progress of 12 th year since the plaintiff admits possession of defendant over item Nos. 1 and 2 since past 4 to 5 years prior to suit, the defendant is in settled and uninterrupted possession over item Nos. 1 and 2 of plaint schedule properties and, as such, in view of Section 114 (d) of I.E. Act, the defendant is presumed to be in continuous possession from December, 1996 i.e., past 16 years in the plaint schedule property and thus the plaintiff cannot dispute
Will dated 01.10.1996 now i.e., after 11 long years and the plaintiff’s right, if any to challenge Ex.B3 Will be, within in three years from the date of it’s execution i.e., from 01.10.1996 and so the plaintiff cannot challenge the
Ex.B3 Will.
17
(s) The learned counsel for the defendant submits that P.W.1 admitted in her cross-examination catergorically that she came to know about Ex.B3
Will after filing of written statement, but she did not dispute Ex.B3 Will and the same is sufficient that Section 68 of I.E. Act is not required to be complied with.
(t) The learned counsel for the defendant submits that even otherwise the plaintiff is neither aggreieved party nor executant of the Will since the plaintiff is 3rd party, that she cannot challenge Will so the defendant need not examine the attestors, but however, the defendant examined two attestors as D.Ws. 2 and 3.
(u) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will.
(v) The learned counsel for the defendant submits that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support such report and that a part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison.
(w) The learned counsel for the defendant submits that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses.
(x) The learned counsel for the defendant submits that the Expert’s opinion is hearsay evidene and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a definite science and can be relied upon.
(y) The learned counsel for the defendant submits that the rights claimed by defendant in the suit are to be adjudicated in a properly 18 constituted suit and so Issue No.1 has to be deleted and even otherwise, both adoption and Will are proved by oral evidence of D.Ws 1 to 4, circumstantial evidence and by production of Ex.B1 to B11.
(z) The learned counsel for the defendant submits that as the adoption is 50 years back, the principles of ancient adoption have to be applied.
Z a) The learned counsel for the defendant submits that the defendant is the adopted son of Nookaiah and Item Nos 1 to 5 are the exclusive properties of Nookaiah and Item No.6 is a joint family property and defendant has proved by placing the evidence in the trial court and also the
additional evidence in pursuance of allowing of I.A. No. 201 of 2014
permitting to place additional evidence by examining D.W.1 and marking of
Ex.B12 and Ex.B13 that Plaintiff transferred her interest in respect of Item
Nos. 1 & 2 and 4 and 6 of plaint schedule properties.
Z b) The learned counsel for the defendant submits the plaintiff transferred her interest in items No.2 and 6 of plaint schedule properties under settlement deed dt: 18-0-2007 doc.no: 6867/2007 in favour of Raja
Sekhar and that the suit was presented by plaintiff/respondent on 20-11- 2007 i.e., nearly 32 days after transfer and the same is proved through the evidence of P.W.1 and P.Ws.5 to 6 and also additional evidence placed by the appellant in pursuance of the Orders in I.A. No. 583 of 2014 under Exs.
A10 to A13 marked through P.W.1 by placing additional evidence.
Z c) The learned counsel for the defendant submits that as defendant placed evidence proving Exs.B12 and B13 which are gift deeds, they establish that the plaintiff did not possess any right title and interest in the plaint schedule properties as on the date of suit i.e., 20-11-2007.
Z d) The learned counsel for the defendant submits that the plaintiff has to establish her title to get a relief of declaration and relief of declaration cannot be granted on the weakness of defendant’s case and plaintiff has to 19 be non suited” and due to the same, Issue No.2 has to be decided in favour of the defendant.
Z e) The learned counsel for the defendant submits that the parties are governed by the rights which accrue to them on the date of institution of the suit and as such, since the plaintiff is claiming that her title is restored back to her in view of Ex.A12 and Ex.A13 and so she was not having title on the date of institution of suit and, as such, the plaintiff is not entitled for declaration as prayed for and, as such, she is not entitled for recovery of
Item Nos. 1 and 2 of plaint schedule properties and so Issue No.3 may be decided in favour of the defendant.
Z f) The learned counsel for the defendant submits that plaintiff has to establish both title and possession over plaint schedule properties then only the defendant’s contention or case is to be adjudicated.
Z g) The learned counsel for the defendant submits that the plaintiff claimed ownership as heir of deceased Nookaiah, the plaintiff’s case is comprehensively disproved by defendant by producing Ex.B2 legal heir certificate, wherein both plaintiff and defendant were held to be heirs of late
Nookaiah and his wife, so plaintiff’s absolute title theory failed.
Z h) The learned counsel for the defendant submits that the plaintiff did not produce any reliable evidence in proof of her case and the defendant on the contrary produced Ex.B3 Will executed by the deceased Nookaiah and thus prima facie proved his title to the plaint schedule item Nos 1 to 5 and hence, the defendant miserably failed to establish her case and also failed to establish her right to relief of permanent injunction.
Z i) The learned counsel for the defendant submits that the plaintiff has failed to establish her superior title to seek injunction against the defendant, who is either co-owner or owner under Will i.e., Ex.B3 to plaint schedule 20 items and so both on the principles that the plaintiff could not establish her case or plaintiff is not entitled to relief of injunction against co-owner and so the plaintiff did not have primafacie case, balance of convenience or probable injury in the matter and hence, the plaintiff is not entitled to relief of permanent injunction as prayed for.
Z j) The learned counsel for the defendant submits that in view of
additional evidence of D.W.1 coupled with the contents in Ex.B12 and
Ex.B13 issue NO.4 may be answered in favour of the defendant.
Z k) The learned counsel for the defendant submits that out of 6 items of plaint schedule injunction is sought for with respect to items 3 to 6 only.
Point out of such 4 items, items 4 and 6 were already alienated and there was no subsisting interest to plaintiff/respondent herein in those properties and in view sec.4 1 (J) of specific relief Act plaintiff is not entitled to permanent injunction prayed for.
Z l) The learned counsel for the defendant submits that Ex.B-1 to B-11 clearly establish both title possession and relationship and so the burden is upon plaintiff/respondent to establish her absolute title to items NO.3 and 5 of the paint schedule.
Z m) The learned counsel for the defendant submits that merely because,
Issue No.1 is decided in favour of plaintiff, the approach of the trial court that suit should be decreed is not in accordance with the law and the burden is on the plaintiff to establish her case in respect of all issues.
Z n) The learned counsel for the defendant submits that framing of Issue
No.1 relating to defendant’s title is unwarranted and any conclusion arrived at on the basis of finding upon such issue vitiated entire trial and hence,
Issue No.1 is to be deleted.
21
Z o) The learned counsel for the defendant submits that after closure of defendant’s evidence, the plaintiff ingenious by examined PW.3 and PW.4 and that expert petition was also ordered subsequent to closure of defendant’s side evidence.
Z p) The learned counsel for the defendant submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW3 has to be brushed aside.
Z q) The learned counsel for the defendant submits that P.W.4 summoned to produce School Register of M.P.U.P.School of the year 1959, but he did not bring records and though he was not directed to give evidence yet the evidence of PW.4 recorded in chief in the absence of defendant’s counsel etc, so his evidence has no legal sanctity under law.
Z r) The learned counsel for the defendant submits that the evidence of
P.W.1 is not corroborated by any oral or documentary evidence and plaintiff miserably failed to establish title and hence, Issue No.4 may be answered in favour of the defendant.
Z s) The learned counsel for the defendant submits that generally the damages are not part of subject matter of the suit and are to be determined in a separate proceeding after suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. so deciding quantum of profits or damages by original court is contrary to law.
Z t) The learned counsel for the defendant submits that for recovery of item Nos. 1 and 2 by evicting the defendant, since just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her son and daughter, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue 22
Nos. 1 to 5 have to be decided against the plaintiff and in favour of the defendant.
Z u) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed originals of Exs.B12 and B13 and thereby, there is an admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originals of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place evidence about how she is entitled for the suit reliefs, and as such the plaintiff is not entitled for the suit reliefs.
Z v) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items, and that in Para No.2 of the written statement though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
Z w) The learned counsel for the defendant submits that the Issue No.1 is wrongly framed considering the pleadings in the written statement as defence to the claims of the plaintiff and the same has to be amended.
Z x) The learned counsel for the defendant submits that P.W.1 did not say that the thumb impressions in Exs.A1 to A2 are that of her father, but expert gave opinion basing on the thumb impression in Exs.A1 to A2 as as if they are containing admitted thumb impressions and as such, opinion of the expert cannot be relied.
23
Z y) The learned counsel for the defendant submits that even though, no application is allowed for examination of Head Master, and he is ordered only to produce documents but he is wrongly examined as a witness and hence, his evidence cannot be relied upon.
Z z) The learned counsel for the defendant submits that as the defendant proved the adoption and Will through the evidence of D.Ws. 1 to 6 and marking Ex.B1 to Ex.B13 and as the adoption is ancient, the plaintiff is not having right in the item Nos.1 to 2 plaintiff schedule properties by the debts of suit the plaintiff is not entitled for the reliefs granted by the trial court and hence, the appeal may be allowed with costs and the suit in O.S. No. 651 of 2007 may also be dismissed with costs by setting aside the decree passed in
O.S. No. 651 of 2007.
12. a) The learned counsel for the respondent/plaintiff submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
b) The learned counsel for the plaintiff submits that the burden is on the defendant in respect of Issue No.1 and he has to prove that he is the adopted son of Madda Nookayya and that by virtue of the last will and testatement dated 01.10.1996, he became entitled to Item Nos. 1 and 2 of the plaint schedule properties and therefore, the burden is on the defendant to prove these two facts.
c) The learned counsel for the plaintiff submits that admittedly, Item
Nos. 1 and 2 of plaint schedule properties are absolute properties of Madda
Nookayya and the plaintiff is the only daughter of him and the defendant failed to prove the adoption and also execution of Will dated 01.10.1996 by
Madda Nookayya and the plaintiff will be entitled to the reliefs claimed in 24 respect of Item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the plaintiff submits that the evidence of
D.W.2 is that she attended the adopted ceremony of defendant 50 years ago, but the age of the defendant is kept blank in the chief affidavit and as per the plaint, the age of the defendant was shown as 55 years, which is not disputed and so, according to D.W.2, the adoption took place about more than 70 years ago and as such, when the defendant is aged about only 55 years his adoption cannot take place even prior to his birth.
e) The learned counsel for the plaintiff submits that D.W.2 stated that there was document executed in the presence of elders on which the natural father Subbayya put his signature and handed over the same to the father of the plaintiff and therefore, the evidence of witness completely falsifies the claim of the defendant that he was adopted by Madda Nookayya and that
D.W.2 admitted that there are disputes between him and the plaintiff for the past eight years and there are no talking terms between them and the so called document said to have been executed was not produced and according to D.W.1, his adoption was oral and therefore, the evidence of
D.W.2 is not at all trustworthy to believe adoption.
f) The learned counsel for the plaintiff submits that D.W.3 is aged about 45 years stated that he attended the adoption ceremony of D.W.1 took place in about 50 years ago and, as such, her evidence is not believable and that too in the light of fact that she is native of Duppalapudi and her marriage was performed about 30 years ago and prior to her marriage, she has no acquaintance with the parties to the suit and never visited
Bhupalapatnam, which is the village of plaintiff and defendant and she also admitted the same and thus, her evidence does not inspire confidence in respect of the so called adoption.
g) The learned counsel for the plaintiff submits that D.W.4 being 25 natural mother of the defendant is an interested witness and she stated that except executing document nothing took place with regard to the adoption and the so called document executed by D.W.4 and her husband has not seen the light of the day and that she did not speak that they physically handed over the defendant into the hands of the father of the plaintiff, the most important and the only requirement for essential and valid adoption and when the witness does not speak about the same, the adoption does not stand to be proved and therefore, the evidence of D.Ws. 1 to 4 suffer from serious discrepancies and they do not prove that the defendant was given in adoption to the father of the plaintiff.
h) The learned counsel for the plaintiff submits that in view of evidence of P.W.3 Ex.B1 purported to have been given by P.W.3 is not believable and he denied completely all his signatures in Ex.B1 and stated that the stamp in it does not belong to their school and their school did not issue Ex.B1 and that their school was not even established till 1959 and only in the year 1959 the said school was established and this evidence of P.W.3 shows that the defendant fabricated and forged Ex.B1 in order to falsify the claim that he was adopted son of Madda Nookayya and the evidence of P.W.3 completely falsifies the case of the defendant that he was the adopted son of
Madda Nookayya.
i) The learned counsel for the plaintiff submits that Ex.B2 issued by
M.R.O. cannot have any probative value and cannot be taken as basis to hold that the defendant is the son of Madda Nookayya and besides, in Ex.
B2, it is specifically stated that it is only for the purpose of issuing pattadar passbook but it is not useful for the purpose of settling civil disputes or movable property disputes and therefore, this certificate has absolutely no value at all.
k) The learned counsel for the plaintiff submits that Ex.B4 is the “No 26
Due Certificate” issued by P.A.C.S. Bhupalapatnam and this is dated 07.09.2009 which is after filing of the suit and therefore no importance or probative value can be attached to this exhibit.
l) The learned counsel for the plaintiff submits that the defendant paid tax on behalf of Madda Nookayya and when the plaintiff herself is stated that she gave items 1 and 2 for management to the defendant, mere paying of tax does not prove that the defendant is the owner of Item Nos. 1 and 2 or that he is the son of Madda Nookayya.
m) The learned counsel for the plaintiff submits that Ex.B8 is the notice issued by Thasildar, Rajanagaram with regard to the disputes between the plaintiff and the defendant regarding Pattadar passbook and this document also has no evidentiary value.
n) The learned counsel for the plaintiff submits that the evidence of
D.W.5 and the contents in Ex.B4, and Ex.X1 clearly shows that father’s name of defendant is shown as Subbayya in Ex.X1 and therefore the entry in
Ex.B4 cannot have any value in the light of Ex.X1 and the defendant must have created Ex.B4 certificate after filing of the suit and that therefore, there is absolutely no document in support of the case of the defendant that he was the adopted son of Madda Nookayya.
o) The learned counsel for the plaintiff submits that as it is specifically put to D.W.1 that he was never adopted by Madda Nookayya, the argument is that there was no denial about the defendant being adopted by Madda
Nookayya has no force, thus defendant failed to prove that he was adopted by Madda Nookayya and that D.W.1 also stated that there was ration card to show that he and Madda Nookayya lived in one house, however, he failed to produce such ration card, as such, the defendant failed to prove the adoption.
p) The learned counsel for the plaintiff submits that the evidence of 27
P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Ex.A1 and A2 are no identical with the thumb impressions on Ex.B3.
q) The learned counsel for the plaintiff submits that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of
Madda Nookayya and when these exhibits are marked through P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya.
r) The learned counsel for the plaintiff submits that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparsion of finger prints.
s) The learned counsel for the plaintiff submits that the plaintiff has no filed rejoinder, but mere non-filing of rejoinder by the plaintiff does not and cannot be treated as admission of the pleas taken by the defendant in the written statement.
t) The learned counsel for the plaintiff submits that once the evidence of P.W.4 the Handwriting Expert is taken into consideration, then it is clear that the defendant fabricated the Will and pessed into service the said fabricated Will.
u) The learned counsel for the plaintiff submits that if really, Ex.B3 will was executed, there is no reason why the same was not produced before the
Tahasildar and the name of the defendant is not mutated in the revenue records in respect of Item Nos. 1 and 2 of the plaint schedule properties.
v) The learned counsel for the plaintiff submits that the evidence of 28 defendant clearly proves that, he has taken active role in execution of Ex.B3
Will, which in itself is a very suspicious circumstances surrounding the Will and also the attestor and scribe are closely related to defendant and though the Sub-Registrar is at a distance of 10 K.Ms. without any reason or explanation the Will was not registered.
w) The learned counsel for the plaintiff submits that, defendant did not issue reply notice to the notice issued by the plaintiff dated 22.10.2007 as by the date of issuing of notice, Ex.B3 was not brought into existence.
x) The learned counsel for the plaintiff submits that, Ex.B3 Will was not acted upon as D.W.1 admitted that 1st time he filed the same into the
Court and did not file it before any public officer.
y) The learned counsel for the plaintiff submits that the chief affidavit of D.W.1 shows that there is a blank with regard to the date of executing of
Will and in the chief examination and in the cross-examination he stated that
Madda Nookayya executed the Will on the 10th day of the year 1996, but he could not say the month, whereas, Ex.B3 propounded Will is dated 01.10.1996 and such the evidence of D.W.2 does not inspire confidence and on the other hand it raises serious suspicion.
z) The learned counsel for the plaintiff submits that the evidence of
D.W.3 shows that she does not know the date of execution is not believable and does not speak about the Madda Nookayya putting him thumb impression and herself witnessing the same and then she put her signature and Madda Nookayya witnessing the same as required under Section 68 of the Evidence Act and therefore, the evidence of D.Ws. 2 and 3 does not prove the execution of the Will by Madda Nookayya.
A1) The learned counsel for the plaintiff submits that the evidence of
D.W.6 is not at all helpful as he is neither scribe nor attestor of execution of
Ex.B3 Will and he has not stated what documents were prepared by Madda 29
Nookayya.
A2) The learned counsel for the plaintiff submits that the plaintiff failed to discharge his burden of proving Ex.B3 Will.
A3) The learned counsel for the plaintiff submits that as the plaintiff has proved that she is absolute owner of the plaint schedule properties, she is entitled for possession of items 1 and 2 of plaint schedule property and issue No.2 has to be held in favour of plaintiff and also she is entitled directing the defendant to handover vacant possessions of the Item Nos. 1 and 2 of the plaint schedule properties to the plaintiff.
A4) The learned counsel for the plaintiff submit that plaintiff is also entitled for grant of permanent injunction and for recovering damages @ of
Rs. 15,000/- (Rupees Fifteen Thousand only) per annum per acre in respect of Item Nos. 1 and 2 of the plaint schedule properties from the defendant.
A5) The learned counsel for the plaintiff submits that the plaintiff filed the cancellation deed dated 07.04.2014 wherein she contended that, her son and daughter did not accept the gift deeds and she cancelled the gift deeds along with her son and daughter under the cancellation deeds, dated 07.04.2014 and therefore since the gift is not accepted and the same is cancelled, she continues to be the owner of the Item Nos. 1 and 2 of the plaint schedule properties and she can maintain the suit.
A6) The learned counsel for the plaintiff submits that the evidence of
D.W.1 and P.W.1, P.Ws. 5 and 6 coupled with the contents in Exs.B12 and
Ex.B13 and Ex.A10 to Ex.A13, which is the evidence placed in the appeal, clearly proves that P.Ws. 5 and 6 did not accept the gift and the same stood cancelled under registered cancellation deed dated 07.04.2014, and the plaintiff continues to be the owner of the plaint schedule property and she is entitled to maintain the suit and therefore, the appellant cannot maintain this ground to set aside the decree and judgment of the trial court.
30
A7) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of originals of Exs.B12 and B13 gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of originals of Exs.B12 and B13.
A8) The learned counsel for the plaintiff submits that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to the originals of Exs.B12 to B13 and Ex.A10 to A11 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
A9) The learned counsel for the plaintiff submits that as D.W.1 admitted that the Pattadar Passbooks of Nookaiah is in his hands and title deed book is with the plaintiff, the expert opinion basing on the thumb impressions in the title deed books which are with the plaintiff is given basing on the admitted thumb impressions in title deeds and it is in accordance with the law.
A10) The learned counsel for the plaintiff submits that the trial court rightly after consideration of the entire evidence on record decreed the suit and there are no grounds to interfere with the decree and judgment of the trial Court and, hence, the plaintiffs prays to dismissal of the appeal with costs by confirming the decree and judgment of the trial court in O.S.
No.651 of 2007dated 14.03.2013.
13. Basing on the pleadings in the plaint and written statement and the brief and relevant grounds appeal and the contentions of the learned counsel 31 for all parties referred supra and the evidence on record the following points emerge for consideration.
1)Whether the defendant is the adopted son of Madda Nookayya?
2)Whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
3)Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties?
4)Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule
Property?
5)Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule properties from the defendant?
6)Whether there is subsisting interest to plaintiff in items 1 & 2 of plaint schedule properties ?
7)Whether the plaintiff is having absolute title to items 1 to 5 of plaint schedule properties?
8)Whether the judgment and decree of the suit in O.S.651 of 2007 on the file of 1st Addl. Senior Civil Judge’s Court, Rajahmundry required varying or modification or confirmation?
9)To what relief?
14. Points 1 to 8: These points 1 to 8 are interrelated very closely to each other. Hence in order to avoid the repetition of discussion of evidence and for the sake of brevity and convenience they are discussed in common.
15.a) The plaintiff to prove the suit claims examined herself as P.W.1 and purchaser of the land from the husband of plaintiff as P.W.2 and the Teacher in M.P.U.P.School, Bhupalapatnam in respect of Ex.B1 certificate as P.W.3 and the Finger Print Expert as P.W.4 and the son of plaintiff as P.W.5 and the daughter of plaintiff P.W.6. The defendant to disprove the suit claims examined himself as D.W.1 and the attestors of the Will Ex.B1 as D.Ws 2 and 3 and the mother of the defendant as D.W.4 and local Surveyor as 32
D.W.5 and third party scribe D.W.6.. P.W.5 and D.W.1 being the parties to the suit and P.Ws.5 and 6 being the son and daughter of plaintiff and D.W.4 being the natural mother of defendant deposed in their respective chief examinations as per the respective pleadings, claims contentions and cases of the plaintiff and defendant. The plaintiff got marked Exs A1 to A9, which are original title deed book, Original title deed book, Original gift deed
dated 09.02.1987, original sale deed dated 02.02.1971, original sale deed
dated 20.02.1971, certified copy of the sale deed, Office copy of the legal
notice dated 22.10.2007, acknowledgement and receipt dated 24.04.200 respectively and Ex.X1 to X3 which are receipt dated 24.04.2000, 3 photos and letter of Director Finger Print Bureu, Hyderabad dated 02.07.2012 respectively in the trial court and in the appellate court, Exs A10 to A13 which are Gift cancellation deed dated 07.04.2014, Gift cancellation deed dated 07.04.2014, Gift deed executed by R.W.1 in favour of Siddabathula Rajasekhar dated 18.10.2007,
Original Gift deed executed by R.W.1 in favour of Marre Atchiyamma, dated 18.10.2007 respectively.
b) The defendant got marked Exs B1 to B11, which are Certificae issued by
M.P.U.P.School Rajanagaram, Certificae issued by M.R.O. Rajanagaram, Will dated 01.10.1996, Certificate issued by P.A.C.C.S. Bhupalapatnam, Original pattadar passbook, Tax receipt, notice, certificate issued by Power Grid Corporatin limited,
dated 10.08.2007, will dated 28.02.1996 and passbook respectively in the trial
court and Exs B11 to B12 in the appellate court which are Settlement deed from the respondent in favour of her son Rajasekhar, dated 18.10.2007 and Settlement deed dated from the Respondent in favour of her daughter M.Atchiyyamma respectively.
16. The plaintiff filed the suit against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos.1and2of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3to 6 of plaint schedule properties directing the defendant and directing the defendant to pay damages of
Rs.15,000/-p.a per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit and for other reliefs. The defendant denied the claims of the 33 plaintiff by claiming that he is adopted son of Madda Nookayya and late
Madda Nookayya executed his last will dated 01.10.1996 marked as Ex.B3 and he got Item Nos. 1 and 2 of plaint schedule properties to an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village and an extent of
Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties and these items are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by
Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned his has no claim over the same. The defendant is also claiming that he never interfered in respect of other items of plaint schedule properties and he has no claim over the same and he prays for dismissal of the suit only in respect of item Nos. 1 and 2 of plaint schedule properties with costs.
17. a) The learned counsel for the defendant cited a decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational Society Vs.
P.Subhashan and another, in which the Hon’ble High Court of A.P. held at
Para No. 20 as follows:
“[20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief Act, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff
In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by 34 adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim Arif and Anr. v. Rahmatunnisa Begum and Anr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius AIR 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma Nand Puri v. Neki Puri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and Ors. 2004 SAR (Civil) 832, where the Apex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant
Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted…...”
b) The learned counsel for the defendant cited a decision reported in AIR 2014 SUPREME COURT 937 between Union of India and others Vs.
Vasavi Cooperative Housing Society Limited and others, in which the
Hon’ble Supreme Court held at Para No. 15 as follows:
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
c) The learned counsel for the defendant also cited another decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational
Soceity Vs. P.Subhashan and another, in which the Hon’ble High Court of
Judicature, Andhra Pradesh held at Para No. 20 as follows:
35 [20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief A ct, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim A rif and A nr. v. Rahmatunnisa Begum and A nr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius A I R 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma N and P uri v. N eki P uri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and O rs. 2004 SA R (Civil) 832, where the A pex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted. A s P.W.1 asserts that he is the duly elected Secretary of M/s Margadarshini Educational Society by virtue of resolution, dated 14-04-2003, he must prove that he was admitted as member of the society and thereafter he was duly elected as Secretary in accordance with the provisions of the A ct and bye- laws of the society. The burden of proof has two different things. It means sometimes that a party is required to prove the allegation before the judgment is given in his favour. Unless it is shown that he was duly elected as Secretary of the society, he cannot file any suit on behalf of the society. The burden of proof also means that on a contested issue, one of the two contesting parties has to adduce evidence. Since it is denied that Ravi A nantha was the member of the society, the initial burden lies on the plaintiff to show that he was duly inducted as member of the society as per bye- laws.
d) As per the principles laid down in the above decisions and also as countered by the warned counsel for the defendant the that burden of proof of establishing absolute title to plaint schedule item Nos. 1 to 6 is upon the plaintiff and plaintiff must succeed on the strength of her case by placing evidence and she cannot succeed on the weaknesses of the case put forwarded by the defendant.
36
18. a) Exs. B2 and B8 are marked through D.W.1. Even though, in the chief examination, Ex.B2 is described as Death Extract of late Nookaiah, but at the time of marking, it is described as certificate issued by M.R.O.
containing the date of death of Madda Bodemma. On perusal, Ex.B2 shows that it is a No Objection Certificate issued by M.R.O.. In that no objection certificate, the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Further,
Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao. Further, in
Ex.B2 it is mentioned that the same is issued for obtaining Pattadar
Passbooks only and it is not useful for civil disputes and property disputes salvation. But, the defendant has not examined any person connected to
Ex.B2.
b) The learned counsel for the defendant cited the decision reported in 2007 (1) A.L.D. 253 between Mashetty Venkatesham (died) per L.Rs Vs.
Joint Collector, Medak at Sangareddy and others, in which the Hon’ble
High Court of Judicature, Andhra Pradesh at Hyderabad held at Para Nos. 7 to 9 as follows:
7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the 37 notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
8. In Palaniappa Chettiar v. Arunasdam Chettiar 1962 AC 294, Lord Denning speaking for Judicial Committee held as under:
That he made the transfer for a fraudulent purpose, namely, to deceive the public administration into thinking that he only held 99 acres of land and his son 40 acres, whereas in truth he himself meant to hold the whole 139 acres. Once this disclosure was made by the father, the Courts were bound to take notice of it, even though the son had not pleaded it....But where the fraudulent purpose has actually been effected by means of the colourable transfer, there is no room for repentance. The father has used the transfer to achieve his deceitful end and cannot go back on it. He cannot use the process of the Courts to get the best of both worlds - to achieve his fraudulent purpose and also to get his property back. The Courts will say: 'Let the estate lie where it falls'...
9. In Raj Kishan Per shad's case (supra), after referring to Palaniappa Chettiar's case (supra), this Court held as under:
It is, however, necessary to refer to Digambar Adhar Patil v. Devram Girdhar Patil , in which the effect of proceedings under the Land Reforms Legislation and the proceedings under the Tenancy Act was considered by the Supreme Court. In that case the appellant was a tenant claiming rights under Bombay Tenancy and Agricultural Lands Act, 1948. His application under Section 32-G of the said Act before the Tenancy Tribunal praying to determine the price to be paid to the land owners for the purchase of Ac.8-26 guntas was rejected on the ground that the tenant was already holding land in excess of ceiling limit. The order of the Tenancy Tribunal was reversed by the Bombay High Court. Before the Supreme Court, there was a claim on behalf of the minor son of the tenant to an extent of Ac.7-34 guntas and the claim of the tenant's brother in whose favour there was an alleged partition under which the brother was given the same land. Reliance was placed on the statement made by the land owner before the Tenancy Tribunal as well as the documentary evidence in support of partition. The Supreme Court accepted the oral evidence of the land owner before the Tenancy Tribunal as conclusive and held that if the land which fell to the share of the brother of the tenant is excluded, the latter would be within the ceiling area entitled to purchase the land form the land owners as claimed. Accordingly, the judgment of the High Court was confirmed. The facts before the Supreme Court in that case disclose that the statement made by the land owner before the Tenancy Tribunal should be given due weight while determining the rival rights of the owner and the tenant....
....Applying the principle in Digambar Adhar case (supra), it be almost held that the Land Reforms Tribunal while determining the holding of late Hari Kishan Prasad relied on the factum of an extent of Acs. 150- 96 being in possession of the protected tenants and to that extent gave benefit to the declarant. A declarant who makes a statement and gets benefit out of such statement in getting excluded that land from his holding would not be permitted to turn around at a later stage; in 38 this case at the stage of issue of ownership certificate to the protected tenant to resile from the statement made before the Land Reforms Tribunal. The same would amount to fraud on public administration.
c) Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that as the plaintiff applied to Mandal
Revenue Officer, Rajanagaram, for issuing Ex.B2 as admitted by her in her cross-examination and she did not challenge Ex.B2 in appeal within time, she cannot change her stand and say that the defendant is not legal heir of
Nookaiah and it amounts to fraud on the public authority that is Court or operate as Estoppel. The learned counsel for the defendant also submits that the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of Nookaiah and thereby, the case of plaintiff that she is the absolute owner of the plaint schedule properties as sole heir of
Nookayya failed. In this regard, the plaintiff did not accept the adoption of defendant before revenue authorities.
d) There is no evidence placed to show that the plaintiff admitted the adoption of the defendant before the revenue authorities. In Ex.B2 it is mentioned that the same is for the purpose of issuing pattadar passbook, but not useful for the purpose of settling civil disputes or movable property disputes.
e) P.W.1 stated in her cross-examination that that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said will and he objected for the same. She also stated that she received the said notice from the M.R.O., after filing of the suit.
She also stated that she cannot file, the said notice copy since it was misplaced. She also stated that they applied to the M.R.O. for issuing legal heir certificate of her mother. In the cross-examination of her dated 11.03.2015 in the appeal, she has stated that she did not apply to M.R.O. /
Tahasildar for mutation of her name in Revenue Record for plaint schedule 39 property. She also stated that it is not true to suggest that they applied to
M.R.O. for issuance of Legal Heir Certificate after the death of her mother.
She also stated that it is not true to suggest that she admitted in her cross examination before II Addl. Senior Civil Judge, Rajahmundry that they applied to M.R.O. for issuance of legal heir certificate of her mother. She also stated that it is not true to suggest that Ex.B2 was issued by M.R.O.,
Rajanagaram that she and defendant are legal heirs to her mother,
Bodamma. She also stated that it is not true to suggest that when M.R.O.
issue dnotice for production of pattadar pass book and title deed boosk along with title deeds in the name of their father, for issuance of new pattadar and title deed books in their respective names.
f) The above facts clearly show that she denied about Ex.B2. The admission of P.W.1 is in respect of mere applying to M.R.O. for issuing legal heir certificate of her mother, but not for applying jointly to M.R.O.
Rajanagaram to issue Ex.B2. Ex.B2 is marked through D.W.1. Nothing is elicited in respect of Ex.B2 when P.W.1 was cross-examined on 06.08.2009.
Thereby, it can be safely held that the plaintiff did not admit that she applied to M.R.O., Ranagaram for issuing Ex.B2 as contended by the learned counsel for the defendant. In those facts and circumstances, the principles laid down in the decision reported in 2007 (1) A.L.D. 253 referred supra is not applicable to the facts in this suit. Hence, Ex.B2 is not of any use for the defendant to prove his claims.
g) The learned counsel for the defendant cited another decision reported in 2007 (3) A.L.T. 720 between V.Krishnaiah and others Vs.
Joint Collector, Mahabubnagar and others, in which the Hon’ble High
Court of Judicature of Andhra Pradesh at Hyderabad held at Para Nos 15 and 21 as follows:
15. The regularization of an alienation under Section 5-A of the Act, is akin to the relief of specific performance of an agreement of sale, under the 40 provisions of the Specific Relief Act . From the point of view of procedure, various hurdles, which, a plaintiff in a suit for specific performance has to face, have been removed under Section 5-A . The provisions of the Transfer of Property Act and the Registration Act are saved. However, on a close examination of the relevant provisions, it becomes evident that the relief under Section 5-A can be granted only when there is no dispute as to the execution of the document concerned. The emphasis is mostly on, verification of possession over the property, existence of a document, collection of stamp duty, and registration charges and then issuance of a certificate of regularization. This, in turn, would lead to the amendment of corresponding entries in the revenue records. The scope of inquiry is very limited. Sub-section (1) thereof presupposes the existence of an alienation or transfer made or effected otherwise than through a registered document. The focus of the enquiry is mostly to examine the date, on which the alienation has taken place and whether the alienation, or transfer contravenes the provisions of the enactments mentioned in proviso to Sub-section (2). After satisfaction on these two aspects is ensured, the Recording Authority would require the applicant to deposit of the amount, representing the stamp duty and registration fees.
21. The experience shows that, wherever the Legislature had intended to confer the power of a civil Court upon an administrative or quasi-judicial authority, or a different forum, either an independent, procedure is prescribed or the one, that applies to civil Courts is extended to them. To the extent the power of adjudication is conferred on the alternative fora, the jurisdiction of the civil Courts is taken away through specific provisions of law. This becomes necessary because the jurisdiction of a civil Court is comprehensive. Further, the exclusion of jurisdiction of the civil Courts would depend upon the efficacy of the remedy that can be granted by the alternative forum. If the matter is examined on the touchstone of these principles, it emerges that hardly any powers of a Court to adjudicate the disputes are conferred upon the Recording Authority. He cannot record evidence. He is not trained to adjudicate the disputes involving complicated questions, such as capacity to contract, succession, testamentary, or otherwise, limitation etc. Therefore, the irresistible conclusion is that the jurisdiction of the Recording Authority under the Act in relation to the regularization under Section 5-A is confined to cases, where, no dispute exists as to the execution of the document. If there is any dispute as to the execution of the document or any other contentions are raised, the dispute has, invariably to be adjudicated by a civil Court.
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that Ex.B2 cannot be challenged in civil court and the proceedings are binding on the parties and so their rights over the properties are regulated by those proceedings and as such, the plaintiff title over the item Nos. 1 to 5 stood disproved. But, in this regard, as stated earlier, in Ex.B2 it is mentioned that the same is issued for obtaining
Pattadar Passbooks only and it is not useful for civil disputes and property disputes salvation. Further the defendant has not examined any person connected to Ex.B2. Ex.B2 shows it is a no objection certificate issued by
M.R.O., and in it, it is mentioned that the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that 41 the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao.
In the light of the above facts, the defendant cannot claim, in the absence of evidence to prove that plaintiff admitted the adoption of defendant before any Revenue Authorities and that Ex.B2 cannot be challenged in this court and it has to be believed. In those facts and circumstances, the principles laid down in the above decision are not applicable to the facts in this suit.
19) In respect of Ex.B8, in the chief examination, D.W.1 stated that Ex.B8 is the tax receipt. But at the time of marking, in the evidence of D.W.1 in his chief examination it is mentioned as the notice issued by Tahasildar,
Rajanagaram. On perusal of Ex.B8, it shows that it is an urgent notice issued to Sri Siddabathula Bojjayy, Srikrishnapatnam informing him to attend inquiry on 29.10.2007 at 11.00 a.m. in respect of an inquiry as he refused to receive the notice after keeping the title deed of the lands in S.No. 02.1A to an extent of Ac. 0.71 cents and S.No. 391/2c to an extent of Ac.1.19 cents for which, Sri Modda Venkata Rao and his sister are legal heirs of Madda
Nookaiah. Nobody connected to Ex.B8 is examined by defendant. Ex.B8 is only a notice regarding the dispute between Madda Venkata Rao and his sister and even assuming that the said Madda Venkata Raju is the defendant and his sister is plaintiff and an inquiry is conducted in respect of the lands mentioned supra and a notice was issued to Siddabathula Bojjayya, but, basing on that, there is no reason how the defendant can claim that it is helpful to prove his claims in respect of item Nos. 1 and 2 of plaint schedule properties.
42 20 a) P.W.1 in her cross-examination has stated that defendant is in possession of Item Nos. 1 and 2 of plaint schedule properties. But she claimed that he is in forcible possession. She also stated that the possession of the defendant is only for the last four years, but she has no document to prove the same. She admitted and stated that they applied to M.R.O. for issuing legal heir certificate of her mother. She denied these suggestion and stated that it is not true to suggest that M.R.O. issued legal heir certificate as herself and defendant are the legal heirs of her mother. P.W.1 also stated in her cross-examination that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said Will and she objected for the same. She also stated that she received the said notice from the M.R.O. after filing of the suit. She further stated that she cannot file the said notice copy since it was misplaced.
b) The learned counsel for the plaintiff submits that as M.R.O. is being a statutory authority as per Section 4 of Pattadar Passbook Act, can issue legal heir certificate after conducting inquiry under Section 5 (a) of the Act and plaintiff did not dispute Ex.B2 by filing appeal within one year. M.R.O.,
Rajanagaram issued proceedings under Ex.B2.
c) The learned counsel for defendant also further submits that as
P.W.1 admitted that she received notice from M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property in pursuance of the said Will, that plaintiff cannot take a different and new stand before this Court. The learned counsel for the defendant cited another decision reported in 2007 (1) A.L.T. 253 between Mashetty
Venkatesham (died) per L.Rs Vs. Joint Collector, Medak at
Sangareddy and others, in which the Hon’ble High Court of A.P. held at
Para Nos. 7 and 10 as follows:
43 “7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
10. As noticed, the deceased-first petitioner claimed the property to be joint family property and did not demour when l/4th share was computed to his share in land ceiling proceedings. His legal heirs cannot now be permitted to take a different stand before the authorities under RoR Act. The first respondent, therefore, came to the correct conclusions and there is no infirmity or misdirection in placing reliance on the certified copy of the order passed by the LRT.”
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that plaintiff is prevented from changing or taking different stand from the stand already taken before statutory authority or before Judicial Authority and Ex.B2 and Ex.B8 proceedings are statutory in nature and they cannot challenged in Civil court and the same are binding on the plaintiff or parties to the said proceedings.
c) The evidence of P.W.1 does not show that she has accepted the adoption before the Revenue Authorities. If that is so, there is no force in the contention of the learned counsel for the defendant that plaintiff has admitted about adoption in view of Exs. B2 and B8 and so, she cannot challenge the adoption before this Court. Unless and until the defendant proves that the plaintiff admitted the adoption before the Revenue
Autorities, the defendant cannot claim that the plaintiff cannot challenge the 44 adoption of the defendant in this court. In view that basing on the Exs. B2 and B8, the defendant cannot claim that the M.R.O. after conducting due inquiry issued Exs. B2 and B8 and plaintiff has obtained benefits from the
Statutory authority and she is not entitled to take different stand in this court. Hence, there is no force in the contention of the learned counsel for the defendant that because Ex.B2 is not challenged by filing of an appeal within a period of one year, the plaintiff cannot challenge here and say that the defendant is not the legal heir of Nookaiah as there is no evidence placed by the defendant to show that the plaintiff has admitted that the defendant is an adopted son of late Nookaiah, before Revenue Authorities.
21 a) The evidence of P.W.1 and D.W.1 clearly prove that Item Nos. 1 and 2 of plaint schedule properties are the absolute properties of Madda
Nooaiah and the plaintiff is the daughter of Madda Nookaiah It is the defendant, who is claiming that he is adopted son of late Madda Nookaiah and Madda Nookaiah has executed the Will dated 01.10.1996, which is marked as Ex.B3. The defendant is claiming that he was adopted by the
Madda Nookaiah and his wife about 50 years and he is living with Madda
Nookaiah till the date of death of Madda Nookaiah.
b) D.Ws.2 and 3 corroborated the evidence of D.W.1 in their chief examinations regarding adoption of defendant by late Nookaiah. In the cross-examination, D.W.2 stated that that the adoption ceremony was performed in the house of father of plaintiff, in the presence of three elders and the defendant was handed over by his natural father to the father of the plaintiff through his hands. He further stated that Vyshanva Purohit of their caste was called and he chanted mantras. He also stated that no invitation cards were printed for the adoption ceremony of the defendant . He also stated that a document was executed in the presence of elders, on which,
Subbayya put his signature and handed over to the father of the plaintiff. He 45 also stated that he cannot say the year of said adoption, but it was held more than 70 years back. He also stated that he never went to the school to verify records to find out whether the defendant was admitted by the father of the plaintiff. He also stated that he saw the papers pertaining to loan obtained by the defendant and father of plaintiff but he canot say the description of those documents. He further stated that no documents pertaining to partition of property between Nookayya, plaintiff and defendant was scribed by Karanam. He also stated that himself, defendant Issa Koti
Seshamma (D.W.3) and Gummadi Srinu attested the Will of Nookaiah in the year 1996 on the 10th, but he cannot say the month. He further stated that he studied upto 5th call. He also stated that he cannot say date of his marriage. He also stated that as he saw the above incident the year of Will is remained in his memory, therefore, he is unable to recollect the said year.
He also stated that the Will was executed at 10.00 a.m. He further stated that he does not know whether the said Will is registered or not. He also stated that nearly one hour is taken for completion of the Will. He further stated that after the execution of the Will it remained with Nookaiah and he did not see it again. He further stated that Abbulu scribed the Will in their presence. He further stated that he does not know the contents of the said
Will. He further stated that after completion of the scribing of the Will the above referred four persons put their signatures. He further stated that they handed over the Will to Nookaiah. He also stated that that is all taken place in their presence.
c) In the chief affidavit of D.W.2, only the month and year of the Will are mentioned, but not the date of the Will. In the chief affidavit of D.W.1, the age of D.W.1 is not mentioned. D.W.1 was cross-examined on 13.04.2010 before the Court and at that time, he stated that his age is 60 years. But, the defendant’s age is shown as 55 years in the plaint. The alleged adoption according to D.W.2 as stated earlier was taken place about 46 more than 70 years ago. Further, the evidence of D.W.2 that a document was also executed in the presence of elders on which Subbayya, the natural father of defendant put his signature and handed over the same to the father of the plaintiff clearly prove that the claim of the defendant that he was adopted by Madda Nookaiah, is not believable since no document is filed to prove the same and, on the other hand, the adoption claimed by D.W.1 is oral and there is no document executed at the time of adoption. D.W.2 admitted that his house and the house of plaintiff are situated side by side.
He also admitted and stated that it is true that the used water being discharged from the house of plaintiff flows in front of his house. He denied the suggestion and stated that he has no talking terms with the plaintiff for the last 8 years as used water discharged from the house of plaintiff is flowing infront of his house. But, the admission of D.W.2 about flowing of discharge water from the house of plaintiff in front of his house shows that
D.W.2 is interested witness and that is the reason why even though he cannot describe the documents pertaining to the loan obtained by the defendant and father of the plaintiff has stated that he saw the papers.
Further, he stated that he did not verify the school records to find out whether the defendant was admitted by the father of the plaintiff. These facts shows clearly stated earlier that the evidence of D.W.2 is the case of the defendant.
d) D.W.3 stated that her age is 45 years. In the cross-examination, she has stated that her marriage was performed 30 years back. She also stated that prior to her marriage she has no acquaintance with the parties to the suit and she never visited Bhupalapatnam. She also stated in her chief examination that she attended the adoption ceremony of defendant, which took place about 50 years ago as claimed by the defendant. Thereby, it can be safely held in the light of the evidence of D.W.3 that she could not have 47 possibility to attend the alleged adoption ceremony and hence, her evidence is also does not in spire the confidence to the so called adoption.
22 a) D.W.4 is the natural mother of D.W.1. She stated in her cross- examination that the defendant was given in adoption to the father of the plaintiff and he took him in adoption and a document was executed by him and her husband and gave it to the father of the plaintiff. She also stated that by executing a document by her and her husband, they sent the defendant to the house of the father of the plaintiff that was all happened and that is mentioned by adoption. She also stated that the defendant did not join with her husband by selling the property. She also stated that she does not know in which school the defendant studied. She also stated that the defendant brought her to Court. In the light of the above statements of
D.W.4 and as the D.W.4 is the natural mother of the defendant and the documents stated to have been executed is not filed into the court, it can be safely held that the evidence of D.W.4 is not believable.
b) The learned counsel for the plaintiff submits that D.W.4 did not speak about physically handing over of the defendant into the hands of the father of the plaintiff, which is most important and the only requirement for essential and valid adoption. In this regard, D.W.4 stated in her chief affidavit that herself and her husband delivered minor Venkata Rao to
Nookaiah and his wife Bodemma at the time of adoption, ceremony took place and their purohit performed puja and that therafter, we had a feast.
In the light of the said fact there no force in the contention of the learned counsel for the plaintiff that P.W.4 did not speak physical handing over the defendant into the hands of the father of the plaintiff, but as stated earlier, the evidence of D.W.4 is not inspiring the confidence as the documents stated to have been executed by herself and her husband are not filed into 48 the court and further, on the other hand, the claim of the defendant is that it is an oral adoption.
23. a) In respect of Ex.B3 Will dated 01.10.1996 apart from the fact that
D.W.2 attestor is an interested witness and D.W.3 whose marriage was performed about 30 years back has stated that adoption ceremony took place about 60 years ago and thereby, herself attending the alleged adoption is not believable and D.W.4 is interested witness being natural mother of the defendant, the plaintiff has taken steps for sending Ex.B3 will to hand writing expert to compare it with the admitted thumb impression of Madda
Nookayya available on Exs.A1 and A2 which are the title deed books in respect of item Nos. 1 and 4 of plaint schedule properties and 2 and 6 of plaint schedule properties respectively.
b) The hand-writing expert, P.W.4 compared the thumb impressions in Exs.A1 and A2 with the thumb impressions in Ex.A3 and gave his opinion that the thumb impressions of Exs.A1 and A2 are not identical with the thumb impressions in Ex.B3. His opinion is marked as Ex.X2 and covering letter is marked as Ex.X3.
c) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will and that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support the report and that part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison and that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses and that the
Expert’s opinion is hearsay evidence and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a 49 definite science and can be relied upon. The learned counsel for the defendant also submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW4 has to be brushed aside.
d) On the other hand, the learned counsel for the plaintiff submits that the evidence of P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Exs.A1 and
A2 are not identical with the thumb impressions on Ex.B3 and that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of Madda Nookayya and when these exhibits are marked through
P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda
Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya and that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparison of finger prints if any.
e) The learned counsel for the defendant cited a decision reported in 1983 Crl.L.J. 858 between State of Rajasthan Vs. Dr. J.P.Sharma and others, in which the Hon’ble High Court of Rajasthan held at para No.17
17. It is the duty of the prosecution to prove that the specimen writings are of the accused and only then the question can arise as to whether the opinion of the handwriting expert who compared the specimen writings with the writing on the questioned documents that they are of the same person, should be relied upon or not.
As per the principles laid down in the above decision cited by the learned counsel for the defendant and in the light of the rival contentions, the evidence of P.W.4 Hand Writing Expert has to be considered and before that it has to be seen whether thumb impressions on Exs.A1 and A2 are that 50 of Madda Nookayya. As the said thumb impressions are taken as basis for comparison in thumb impressions in Ex.B3 Will. Exs.A1 and A2 are marked through P.W.1. Nothing contra is elicited in the cross-examination of P.W1.
to prove that the thumb impressions on Exs.A1 and A2 are not that of
Madda Nookayya. It is not even suggested to P.W.1 that the thumb impressions on Exs.A1 and A2 are not that of Madda Nookayya. Exs.A1 and
A2 are issued by Mandal Revenue Officer, Rajanagaram to late Madda
Nookayya. No evidence is placed by the defendant to prove that thumb impressions in Exs.A1 and A2 are not that of Madda Nookayya. D.W.1 also not stated that the thumb impressions in Exs.A1 and A2 are not that of
Madda Nookayya. In those facts and circumstances, as Exs.A1 and A2
Pattadar passbooks were issued by Mandal Revenue Officer, Ranagaram in the name of Madda Nookayya, it can be safely held that the thumb impressions in Exs.A1 and A2 are that of late Madda Nookayya. Thereby, there is no force in the contention of learned counsel for the defendant that the thumb impression in Exs.A1 and A2 are not admitted thumb impressions of the Madda Nookayya. In the light of the said fact, the evidence of P.W.4 has to be considered.
d) P.W.4 in his chief examination stated that he has got taken photographs of the disputed and admitted thumb impressions in his presence through the photographer, Finger Print Bureau, Hyderabad. He also stated that he examined the clarity and compared the disputed thumb impression with the admitted thumb impression and found that 1) the admitted thumb impression marked “ is smudged and not clear and wanting in clear ridge characteristic required for he purpose of establishing identity.
Hence, the admitted thumb impression marked A is unfit for comparison. 2)
The disputed thumb impression marked D is not identical with the admitted thumb impression marked Ex.A-1 of Madda Nookayya. He also stated that the opinion C.No.91/U4/F.P.B. C.I.D./2012 along with three photo copies are 51 now marked as Ex.X1. He also stated that the covering letter dated 02.07.2012 of their office is now marked as Ex.A2.
In the cross-examination he stated that they compared disputed thumb impressions with standard thumb impression and they gave their opinion. He also stated that it is true he did not mention about comparison of disputed thumb impression with that of standard impression. He also stated that according to him there is nothing standard thumb impression, so they have not used the word standard impression is his report. He further stated that it is true they have not mentioned size, shape, width. He also state that it is true in circumstances like peeling of skin of the thumb impression due to certain skin diseases (permanent) or other extreme circumstances the chance of obtaining clear impressions is not possible. He also stated that he did not mention in his report about two thumb impressions A and A1 are that one person or not since he found that A1 is unfit for comparison. He also stated that he is unable to say with his experience whether A, A1 belongs to same person or not.
The above facts stated by p.W.4 in his chief and cross-examination clearly prove that though, he has not used the standard thumb impression in his report and not mentioned the shape, width and other measurements of both A,A1 and D Thumb impressions as stated by him, mentioning the same or those particulars for comparison of the thumb impressions or not necessary that the opinion and evidence of expert P.W.4 can be relied upon.
e) The defendant has not placed any evidence to prove that there is any peeling of skin of thumb due to certain skin diseases or other extreme circumstances, due to which, there were no chances of obtaining clear thumb impressions. In those facts and circumstances, it can be safely held that the evidence of P.W.4 is believable, which shows that the thumb impression in Ex.B3 will is not that of the late Madda Nookayya.
52
24. a) The Hon’ble Supreme Court, in the decision cited by he learned counsel for the plaintiff in AIR 1979 Supreme Court 1708 between Jaspal
Singh Vs. State of Punjab and Jindra and another Vs. State of Punjab, in which the Hon’ble Supreme Court held at Para No. 8 as follows:
8. Learned Counsel for the appellants also relied on the evidence of Dr. Mohinder Partap PW. 1, who has stated that the deceased had reached the hospital on 4.8.71 at 2 a.m. Although the injured was speaking same thing his statement could not be recorded. On the other hand, the witness recorded the statement of the mother Tej Kaur who seems to have given a different version and suggested that her son Bhupinder Singh deceased had an injury on his abdomen which was caused by the falling of a bag containing wheat on his stomach. The thumb impression of Tej Kaur was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaur. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr.K.S. Puri clearly demonstrates that the thumb impression on the statement Exh.P B was not that of Tej Kaur but was of some other woman who appears to have falsely represented to the Doctor that she was the mother of the deceased. This is supported not only by the fact that the thumb impression of Tej Kaur on the statement of P.B was forged but also by the categorical statement of PW 6 wherein she denied having made any such statement before the Doctor. The Doctor although examined as a witnessess in court was never made to identify Tej Kaur who was also one of the witnesses, nor was any application given by the accused that the Dr should be called upon to identify Tej Kaur, PW. 6 in order to test the validity of the statement that it was really Tej Kaur who made the statement Exh P.B. before the Doctor. In these circumstances, therefore, the evidence of the Doctor does not appear to be of any assistance to the defence.
Basing on the principles laid down in the above decision, the learned counsel for the plaintiff submits that identifying thumb impression is an exact science and does not admit any mistake or doubt.
b) In this regard, the learned counsel for the defendant cited another decision reported in 2011 (5) A.L.D. P.5, in which the Hon’ble High Court held at para Nos.36 as follows:
36. …… Further the learned trial Court failed to consider the fact that DW- 5, the finger print expert stated in his evidence that the thumb mark of the first Defendant found on first page of Ex.A-1 is only identical with that of his admitted thumb mark but the other thumb marks were not fit for comparison for want of clear cut ridge characteristics. Even the science relating to the comparison of finger prints is not perfect science and in our view the learned trial Court gave undue emphasis to the opinion expressed by DW-5 finger print expert …….
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that the opinion of the expert is 53 secondary evidence and it will not supersede the primary evidence of direct witnesses.
c) The learned counsel for the defendant also submits that the Hon’ble
Supreme Court in the decision reported in AIR 1971 S.C. 1708 referred supra has not laid any principle that expert is opinion on thumb mark is distinct science and can be relied upon. But, it has recorded the contention of the appellant’s counsel in Para No.8 of the said judgment, but on careful consideration of the decision reported in AIR 1979 S.C. 1708, referred supra it can be safely held that the said principle is not the contention of the learned counsel for the appellants in that decision, but it is the observation or principle held by the Hon’ble Supreme court that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. In those facts and circumstances, as per the principles laid down in the decision reported in AIR 1979 S.C. 1708, referred supra and also as even the evidence of D.Ws. 2 to 4 out of which, the defendant is claiming that defendants 2 and 3 are eyewitnesses being attestors is also not believable, it can be safely held even by consideration of the principles laid down in the above decision reported in 2011 (5) A.L.D. page 4 supra, that the defendant miserably failed to prove that the thumb impression in Ex.B3 is that of the late Madda Nookayya. On the other hand, the plaintiff through the evidence of expert as P.W.4 coupled with the contents in Exs.X1 and X2 and the evidence of D.Ws. 2 to 3 proved that thumb impression in Ex.B3 is not that of Madda Nookayya. Further, as contended by the learned counsel for the plaintiff, if really, Ex.B3 will was executed by late Madda Nookayya, there was nothing preventing the defendant from mutating his name in respect of item Nos. 1 and 2 of plaint schedule properties in the revenue records.
54
d) D.W.1 in the cross-examination stated that Pattadar Passbooks of
Madda Nookayya is in his hands and title deed book is with the plaintiff. He also stated that as per the Will, Ex.B3 Nookaiah bequeathed item Nos. 1 and 2 of schedule property in his favour. He also stated that as he was cultivating item Nos. 1 and 2 of schedule property he did not apply for mutation of his name in respect of item Nos. 1 and 2 in the revenue records immediately after death of Nookaiah. He also stated that after the death of his wife of Nookaiah in the year 2004 he applied in the year 2005 for mutation. He also stated that for the first time he filed Ex.B3 will in the
Court and prior to that he did not file the will before any public Officer as there were no disputes. He also stated that when he asked the plaintiff to give the revenue title deed book for mutation, though she agreed to give the said book but she postponed the matter and later got issued a notice. He also stated that Ex.A8 acknowledgement contains his signature.
The above facts stated by D.W.1 clearly prove that he never produced the Will before the Tahasildar at the time of requesting mutation of his name, in respect of item Nos. 1 and 2 of plaint schedule properties.
e) D.w.1 has stated in his cross-examination that he was present at the time of execution of the Will Ex.B3 without seeing the document. He also stated that the said Will was executed two months prior to the death of
Nookaiah at the house of Nookaiah. He also stated that the at the time of execution of the said Will Nookaiah was moving around. He also stated that
Rajanagaram is nearly 10 k.m.from Bhoopalapatnam. He further stated that there is a sub-registrar office at Rajanagaram. He also stated that
Registration of documents with regard to alienation or purchase of properties of Bhoopalapatnam are made at the sub-registrar Office at Rajanagaram. He also stated that the plaintiff herein and her mother Boddemma were also present at the time of execution of the Ex.B3 Will. He further stated that out 55 of trust between himself and Nookaiah, he did not get the Will Ex.B3 registered. He further stated that K.Abbulu scribe of Ex.B3 Will is not a document writer. He also stated that all the three attestors are resident of
Bhoopalapatnam. He also stated that the Will Ex.B3 was executed at 10.00 a.m. He further stated that he brought all the three attestors for the purpose of attesting the Will. He also stated that he went and brought the scribe
Abbulu for scribing Ex.B3 Will. He further stated that all the documents including pattadar passbook and title deed book were available with
Nookaiah by the date of execution of Ex.B3 Will. He further stated that passbook and documents were referred for scribing Ex.B3. He also stated that four days after execution of the Will Nookaiah handed over the will
Ex.B3 and pass book and title deed pertaining to Yerrampalem property and similarly the pass book and title deed pertaining to Srikrishnapatnam, Tuni.
He also stated that Yesubabu is his natural younger brother. He also stated that Vissakoti Seshamma is the mother-in-law of son of Yesubabu. He also stated Gummadi Srinu is his nephew i.e., son of his natural younger sister.
He also stated that Beera Subba Rao is he husband of Bodemma’s sister. He also stated that K.Abbulu is the younger brother of his wife.
f) The above facts stated by D.W.1 clearly prove that the defendant has taken active role personally in securing the attestors and scribe for execution of Ex.A1 and all of them are closely related to him as Yesubabu is his natural younger brother, Vissakoti Seshamma is the mother-in-law of son of Yesubabu, Gummadi Srinu is his nephew i.e., son of his natural younger sister and Beera Subbarao is the husband of Boddemma’s sister and thereby all the three attestors are closely related to him and further scribe
K.Abbulu is the younger brother of his wife. These facts in the light of the fact that defendant did not choose to give any reply notice when the plaintiff got issued legal notice dated 22.10.2007 under Ex.A7, after receipt of the same under Ex.A8 and also admittedly he did not file Ex.B3 before 56 any Public Officers clearly prove that Ex.B3 is surrounded by suspicious circumstances and as held by the trial court, the defendant miserably failed to prove the execution of Ex.B3 will by late Madda Nookaiah bequeathing item Nos. 1 and 2 suit schedule properties to defendant.
g) In the decision reported in 2012 (4) A.L.D. 618 between
T.Bheem Reddy and another Vs. P.Laxmi Bai and others, in which the
Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision, in the present case , merely basing on the fact that the plaintiff has not filed rejoinder disputing the adoption or Will claimed by the defendant, it does not and cannot be treated as an admission of plea taken by the defendant in the written statement. In view of that, even though, the plaintiff has not filed rejoinder disputing the adoption or Will propounded by the defendant, the defendant failed to prove execution of Ex.B3 Will and adoption propounded by him.
25. a) D.W.1 stated in his cross-examination that he does not remember the year in which he was given in adoption to the Nookaiah. He further stated that he is having a ration card to show that himself and Nookaiah living in one house. He also stated that he studied up to 3rd call in
Bhoopalapatnam. He further stated that he discontinued his studies after 3rd 57 class. He further stated that Ex.B1 study certificate is obtained subsequent to the filing of the suit.
b) In respect of Ex.B1, it is purported to have been given by P.W.3.
P.W.3 categorically stated in his chief examination that “ I am working as teacher, in M.P.U.P. School, Bhupalatnam. I received summons from the
Court, in which no direction was given to us to bring any register. Our school was established on 06.05.1959. Ex.B1 is the date of Birth and tudy certificate and it does not contain his signature and the desgination stamp on Ex.B1. Ex.B1 does not belong to their school. The handwriting in ex.B1 is not my handwriding. Since last three years I am working as Head Master in the above School. Prior to that he worked as teacher in the above school for about 5 years. Total since last 8 years I am working in that school. Ex.B1 certificate is not issued by their school, since their school was established in the year 1959 the registers from 1955 to 1959 does not exist”. In the cross-examination, he has stated that presently he is working in M.P.
Elementary School, at Kovvur. He further stated that he did not bring the school record today. He further stated that he does not know the contents of the court summons served on him, but when he came to Court, to know for what purpose he was summoned by the court, his evidence is recorded by the court. He further stated at the relevant time the school was not in existence. He further stated that his name is K.Ugandhar Varma and he volunteers and stated that he did not issue Ex.B1. He further stated that the writing and signature in Ex.B1 does not belong to him. He also stated that there is no record in their school to show that when the school was established. He further stated that he did not produce any record relating to the school.
c) The above evidence of P.W.3 clearly shows that Ex.B1 was not issued by P.W.3 or his school. If really, Ex.B1 was issued by P.W.3 or 58
M.P.U.P School, Bhoopalapatnam, in which P.W.3 was working as teacher, defendant should have placed evidence in proof of the same. But, the defendant did not place any evidence to prove that Ex.B1 was issued by the
M.P.U.P. School, Bhupalapatam.
d) The learned counsel for the defendant submits that P.W.3 though summoned to produce School Register of M.P.U.P.School of the year 1959, the witness did not bring records and not directed to give evidence yet the evidence of PW.3 recorded in chief in the absence of defendants/Appellants counsel etc, so his evidence has no legal sanctity under law. In respect of this contention of the learned counsel for the defendant, even assuming that
P.W.3 was summoned only to produce documents, but not for giving evidence, but since his evidence is recorded, though the learned counsel for the defendant submits that the chief examination of P.W.3 was recorded in his absence since the defendant’s counsel conducted the cross-examination of P.W.3 merely because he was not summoned to give evidence, the defendant on whom the burden is there to prove that the contents in Ex.B1 though it is marked in the absence of evidence placed by him, cannot claim that Ex.B1 is proved. As such, in the absence of evidence of P.W.3 also, since the defendant has not placed any evidence to prove Ex.B1, it can be safely held that the defendant failed to prove Ex.B1.
26. a) D.W.1 stated that he has ration to show that himself and Nookaiah were living in one house, but no ration card is marked by the defendant.
D.W.1 got marked Ex.B4 which is the No Due Certificate issued by P.A.C.S.
Gopalapatnam, it is dated 07.09.2009. Ex.B4 is given subsequent to the filing of the suit. It does not show that defendant has any concern with the suit properties or he had taken loan from P.A.C.S., Gopalapuram in respect of Item Nos. 1 and 2 of the plaint schedule properties.
b) In respect of Ex.B4, the Executive Officer, P.A.C.S., Bhupalapatnam 59 is examined as D.W.5 and he stated in his chief examination that Ex.B4 was issued by him and the contents of the same are correct. He stated in the cross-examination that the father of the name of the defendant is shown as
Subbayya the receipt dated 24.04.2000 pertaining to the same loan transaction and the said receipt is marked as Ex.X1. He admitted in the
Cross-examination that he brought the receipt book pertaining to the year 2000 as it is also relating to the loan of the defendant though he did not bring the loan register to the Court. He stated that he did not bring loan register due to the lack of knowledge. He also stated that Ex.X1 receipt does not contain the signature of the defendant. He further stated that if the party is available they used to obtain his signature on the receipt. He further stated that every year they used to get their account and receipts audited with local fund audit. He also stated that the audit party used to put ‘√’ in the receipt book. He further stated that there is an audit report every year and it contains what are the books and receipts audited during that year. In the re-cross examination, he stated that as he was asked to bring the entire records pertaining to the loan, he brought the receipt books also.
c) The above evidence of D.W.5 shows not only the name of the defendant’s father is shown as Subbayya in Ex.X1 though the same is in the handwriting of the D.W.5 and also in Ex.X1 there is no signature of the defendant and there is no ‘√’ marks in it. Merely because ‘√’ is not there in Ex.X1, it cannot be held that Ex.X1 is created. Ex.X1 shows that Ex.B4 “No Due Certificate” which is issued after filing of the suit cannot have any importance or probative value.
27. The evidence of D.W.6 since he admitted that his license as document writer cancelled and he took treatment in Karri Rama Reddy Mental Hospital till the year 1990 and he did not scribe or attest the will of defendant, is of no use for defendant to prove his case.
60 28 D.W.1 got marked Ex.B7, which is the tax receipt dated 25.04.2010.
The payment of Sisthu is also made after the filing of the receipt. Further
Item Nos. 1 and 2 schedule properties are under the management of the defendant. Mere paying of the tax or sisth under Ex.B7, itself cannot show that the said payment is made by the defendant under the capacity of the title holder of the property.
29. a) The learned counsel for the defendant cited a decision reported in
AIR 1969 S.C. 1359 between Jaspal Singh Vs. State of Punjab, in which the
Hon’ble Supreme Court held at para No. 8 as follows:
[3] Mr. M. C. Chagla argued that in May 1904 Seshamma had not attained the age of discretion and was not competent to make the adoption. He relied on the following passage in Mulla's Principles of Hindu law, 13th Ed., Art. 465, page 491: "A minor widow may adopt in the same circumstances as an adult widow, provided she has attained the age of discretion and is able to form an independent judgment in selecting the boy to be adopted. According to Bengal writers the age of discretion is reached at the beginning of the sixteenth year; according to Benaras waters, at the end of the sixteenth year. The former view was taken in a recent Madras case." [4] Now there is no clear evidence on the question of Seshmnma's age in May 1904. The plant said that she was then 10 years of age. One of the written statements said that she was about 15 years old. Exhibit A-2 an extract from the register of deaths suggests that she was then aged about 14 years. In Ex. A-7 dated March 25, 1907, Ex. B-5 dated May 2, 1907 Ex. B- 110 dated April 25, 1909 , Ex. B-7, dated November 1, 1911, Ex. B-22 dated November 15, 1911, Exs. A-11 and A-12 dated November 17, 1911, she was described as a minor. But Ex. B-138 dated August 9, 1910 described her as a major. The evidence of DW 2 suggests that she was about 15 years old at the time of adoption. The evidence of DW 3 fixes her age at about 17 years in or about 1903. Evidence was adduced to show that she married in 1898 when she was 11 or 12 years old. The appellant made no attempt to produce the certified copy of the register of births which would have shown her exact age. The adoption was made in May 1904. It was challenged in 1953 after a lapse about 50 years. The long delay in filling the suit is not satisfactorily explained. A declaratory suit challenging the adoption could have been filed soon after the adoption. Rajeswararao died in 1950, Seshamma died on October 2, 1952. During his lifetime Rajeswararao was recognised by every member of the family as the adopted son of Bhaskara Rao. He was registered as karnam and acted as such till his death. Under Ex. B-12 dated November 19, 1937 the plaintiffs mother Kamappa purchased a property from Rajeswararao wherein he was described as the adopted son of Bhaskara Rao. Having regard to the long lapse of time and the recognition of Rajeswararao as the adopted son of Bhaskara Rao, the strongest presumption arises in favour of the validity of the adoption. The law on this point is correctly stated in Mullda's Hindu Law, 13th Ed., art. 512 page 519:- "But when there is a lapse of 55 years between the adoption and its be questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained. stands to reason that after a very long term of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act the burden must rest heavily upon him who 61 challenges its validity," see also Venkataseetarama Chandra Row v. Kanchu Marthi Raju, AIR 1925 PC 201, 202. The presumption in this case is very heavy considering that all the parties to the adoption and all those who could have given evidence in favour of its validity have passed away. The appellant has not rebutted this presumption and has not shown that Seshamma did not attain the age of discretion in May 1904 and was not competent to make the adoption. The courts below rightly found infavour of the factum and validity of the adoption. There is no merit in this appeal.
b)The learned counsel for the defendant basing on the principles laid down in the above decision submits that in case of ancient adoption treatment by the family has to be taken in to consideration and the defendant has proved from the evidence of D.W.4, who is mother of defendant and also P.Ws. 1 to 3 that the defendant was always treated as adopted son of Madda Nookaiah. The principles laid down in the above decision is that once the adoption is admitted and the persons who were present at the time of adoption are not alive, there is presumption that the adoption was valid and burden is heavy on the person who has contended that the widow was a minor to prove the said fact. But, in the present case, there is no adoption of defendant. On the other hand, it is denied. The facts in the above decision are different from the facts in this suit since in that decision, adoption is admitted and contention of the opposite party is that the widow who adopted was minor by the date of adoption and in that case, the burden is heavy on the person who contended that the widow was a minor to prove said fact. But, in the present case, not only adoption is not admitted but on the other hand it is denied and defendant also failed to prove the adoption and also execution of Ex.B3 will in favour of him.
30. a) The learned counsel for the defendant cited the decision reported in 1995 (3) A.L.T. P. 372 between Narsingh Singh Vs. Smt Urmila Bai, in which the Hon’ble High Court of Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
17. It is true that the determination of lease would be in one of the modes enumerated under Section 111 sub-clauses (a) to (h) of the Transfer of Property Act . In the present case that has been done under sub-clause (h) 62 of Section 111 of the Act. In fact that has been done by the plaintiff by issuing a quit notice popularly known as 'quit notice' under Section 106 of the Transfer of Property Act as per Ex.A-1 which is replied by defendant under Ex.A-2. Since that was not challenged, there was no issue for the purpose of determination. It is significant to note that the lease or tenancy would become determinable by forfeiture under Section 111 sub-clause (g) item 2 where the lessee renounces his character as such for setting up a title in third person or by claiming title in himself. If the Court finds that the defendant or the adversary is a tenant or a lessee in law and vacates on setting up title even without a quit notice, he would be forfeiting his tenancy when he will be evicted as a matter of penalty under the said provision. Therefore, it was necessary for the learned trial Judge to first of all give a finding on the relevant issues 1 and 2 whether defendant is the tenant on the suit premises and on that even accepting that he would set up a title, that would become redundant and on that count alone he would have been evicted. Thereby defendant would be taking a serious risk if the tenancy of the lessee was established. In other words, it was totally unnecessary for the Court to find out whether defendant was in possession of the property in his own right. Merely on giving a finding that he was a tenant and the tenancy had been determined in any one of the modes permissible under law as above, there could have been a decree for the plaintiff in a case like this. The matter has not stood at this stage.
18….. Now to sum up in a suit for possession by a landlord the issue relating to defendant's title would be totally alien and unwarranted. The learned trial
Judge has adverted to it unnecessarily, has gone into such a question beyond
the scope of the suit and has gone to the extent of recording a finding against the defendant rightly or wrongly. Here it may be emphasised that by doing so, Courts would deprive the parties of their legitimate reliefs in a properly framed suit when an occasion arises. The rule of res judicata is one of such operating situations on the parties regarding their respective rights. If the plaintiff had filed a suit for declaration of title or possession based on title, etc. etc. etc., he was expected to prove only that in the absence of defendant not being a tenant and when the defendant would have resisted it with his own theory that he is the owner or that he has perfected his title by adverse possession, etc. etc. etc. By giving a finding on issue No. 4 in a suit where parties were not directed to concentrate or lead evidence on such matters fully and effectively, it would be a travesty justice and violation of principles of natural justice. In other words, by framing issue No. 4 and by dealing with the same and giving a finding, the judgment of the trial Judge becomes vitiated. Under the circumstances, this Court has a duty to delete such an issue in the light of the observations made above.
b) The learned counsel for the defendant cited the decision reported in 2013 (4) A.L.D. P. 85 (S.C.) between Narinder Singh Rao Vs.
A.V.M.Mahinder Singh Rao and others, in which the Hon’ble High Court of
Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
15. On behalf of the appellant, the submissions were made to the effect that the suit property in fact belonged to Sumitra Devi though it was in the name of Rao Gajraj Singh. The provisions of Benami Transfer (Prohibition) Act , 1988 had been referred to by the learned counsel appearing for the appellant. The question whether the suit property in fact belongs to an individual i.e. whether he is a beneficial owner or is a benami, is a question of fact. There was no averment made in the plaint with regard to the aforestated allegation. No issue to the said fact had been raised before the trial court. The said issue had been raised for the first time before the appellate court 63 and in our opinion, the issue with regard to the fact could not have been raised before the appellate court for the first time and therefore, all submissions made in relation to the provisions of Benami Transfer (Prohibition) Act , 1988 and with regard to real ownership of the suit property cannot be looked into at this stage.
c) Basing on the principles laid down in the above decisions, the learned counsel for the defendant submits that no issue regarding defendnat’s title can be framed or adjudicated merely in the absence of dispute of the title of the defendant from the plaintiff and there is travesty of justice and violation of principles of natural justice in framing he Issues. In this suit, the plaintiff is seeking for declaration that she is the absolute owner of the plaint schedule property. In order to grant or refuse the said relief, it is necessary to go into the issue of whether the defendant is the adopted son of Madda Nookaiah and the Will propounded by him is true, valid and binding in respect of item Nos. 1 and 2 of plaint schedule property.
If that is so, the defendant cannot claim that in framing the Issue Nos. 1 and 2, there is any travesty of justice and violation of natural principles of justice. These issue Nos. 1 and 2 are framed basing on the pleadings of both the parties and they are required to be considered and answered, in order to decide the disputes between the parties. Hence, basing on the principles laid down in the above decisions, the defendant cannot claim that the issue Nos. 1 and 2 are framed are wrongly framed and need not required to be framed and issue No.1 is required to be deleted.
31 a) The plaintiff has not pleaded in the plaint about plaintiff gifting the property just prior to filing of the suit on 18.10.2007 in favour of her daughter and son in respect of Item Nos. 1 to 2 of plaint schedule properties. During the course of the appeal, the evidence is placed in respect of execution of Ex.B12 and Ex.B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13.
64
b) After recalling of defendant as D.W.1, Exs.B12 and B13 are marked on. Thereafter, P.Ws. 5 and 6 are recalled and examined and through them,
Exs.A10 to A13 are marked.
c) P.W.1 stated in her cross-examination that Appellant (D.W.1) is her junior paternal uncle’s son. She further stated that she is older than him.
She further stated that prior to filing of O.S. No.651 of 2007, there were no disputes between him and D.W.1. She further stated that about 10 years back, her mother had passed away. She further stated that she did not apply to M.R.O./Tahasildar for mutation of her name in Revenue Record for plaint schedule property.
d) P.W.5 stated in his cross-examination that he knows the facts in his chief examination affidavit. He further stated that he knows facts in Ex.A10.
He further stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled.
e) P.W.6 stated in her cross-examination that she knows the facts in her chief examination affidavit. She also stated she was not delivered possession of plaint schedule property by P.W.1. She also stated that she is aware of recitals in Ex.A11. She further stated that she and her mother voluntarily and conscious of contents therein had entered into execution of
Ex.A11. She also stated that it is true in Ex.A11, it was recited that since terms and conditions in the Gift deed were not implemented, the gift deed was mutually cancelled. She further stated that the defendant (appellant) is her junior material grandfather’s son. She also stated that she does not know if legal heir certificate was issued by M.R.O. showing as P.W.1 and defendant as L.Rs of deceased Bodamma.
f) The evidence of P.W.1 and P.Ws. 5 and 6 is that the gift deeds under Exs.A10 and A11 are not acted upon and they were subsequently 65 cancelled under Ex.A12 and A13, but the defendant is claiming that in view of execution of Ex.A11 and A12, the plaintiff is not having any title in respect of item Nos. 1 to 2 of schedule properties covered under Ex.A11 and A12 and the subsequent cancellation under Exs.A12 and A13 is not much use for the plaintiff to prove that she has got any right in respect of items Nos. 1 and 2 of plaint schedule property and she had no cause of action by the date of filing of the suit in respect of those properties, which are in possession and enjoyment of the defendant.
32 a) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of
Exs.B12 and B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of Exs.B12 and B13 and that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to Exs.A10 to A13 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
b) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed the original of Exs.B12 and B13 and thereby, there is admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originally of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place 66 evidence about how she is entitled for the suit reliefs, and hence the plaintiff is not entitled for the suit reliefs.
c) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the defendant submits that Exs.B.12 and
B.13 shows that the possession is delivered and title is conveyed to P.Ws.5 and 6 and due to that section 91 and 92 of The Indian Evidence Act, 1872 comes into play and no oral evidence contrary to the same shall be admitted though the defendant is not a party to the same, since the plaintiff is claiming the reliefs based on those documents without pleading about them.
e) The learned counsel for the defendant submits that the plaintiff is claiming the relief for recovery of item Nos. 1 and 2 by evicting the defendant, but just prior to filing of the suit on 20.10.2007 the plaintiff gifted the property in favour of her daughter and son on 18.10.2017 , so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue No.5 has to be decided against the plaintiff and in favour of the defendant.
33 a) The learned counsel for the plaintiff cited the decision reported in
Bondar Singh and Others Vs. Nihal Singh and others, reported in (2003) 4 Supreme Court Cases 161, in which the Hon’ble Supreme
Court held at para No.7 as follows:
67
7. As regards the plea of sub tenancy (shikmi) argued on behalf of the defendants by their learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub tenancy (shikmi) the defendants cannot be allowed to build up a case of sub tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point.
b) The learned counsel for the plaintiff also cited another decision reported in 2012 (4) A.L.D. 618 between T.Bheem Reddy and another
Vs. P.Laxmi Bai and others, in which the Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision there is no need to file rejoinder in the present suit. The defendant has not pleaded in the written statement about the execution of Exs.B12 and 13 Gift deeds by plaintiff and also subsequently cancellation of the said gift deeds under
Exs.A1 and A13. But, the defendant has placed evidence in respect of execution of Exs.B12 and B13. The plaintiff has not filed any rejoinder after filing of the written statement by the defendant. As stated earlier there is no need to file rejoinder. But, the plaintiff is claiming that in view of the evidence of P.Ws. 5 and 6 that they did not accept the gift deeds under originals of Exs. B12 and B13 by the plaintiff and same are stood cancelled in view of execution of Exs.A10 and A11. The plaintiff is claiming that the terms and conditions in the gift deeds under originals of Exs.B12 and B13 were not implemented. Whether they were implemented or not, the plaintiff 68 has not pleaded about execution of originals Exs.B12 and B13 which are
Exs.A12 to A13 and subsequent cancellation of them under Exs. A10 and 11 by her children P.Ws. 5 and 6. In this regard, P.W.1 in her cross- examination on 06.08.2009 only stated that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. At first she stated that she has not executed any documents pertaining to item
Nos 1 and 2 of plaint schedule properties, but later she stated about the execution of settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. Thereby, there was no pleading in the plaint nor any evidence is let in by the plaintiff in the trial court regarding Exs.A10 to
A13. It is only after defendant got marked Exs.B12 and B13 gift deeds in the appeal stage through D.W.1, the plaintiff has taken steps and got examined herself and also P.Ws. 5 and 6 and placed evidence in respect of
Exs.A10 and A13. The plaintiff has to prove her independent title over the schedule property including item Nos. 1 and 2 of plaint schedule properties by the date of suit. Unless she proves the title of item Nos. 1 and 2 of plaint schedule properties by the date of suit, she cannot claim recovery of possession of the said properties irrespective of defendant’s failure of proving the execution of the Will under Ex.B3 in his favour and also the adoption claimed by him. Admittedly, the defendant is in possession of the item Nos.1 and 2 of plaint schedule properties. That is the reason why the plaintiff filed the suit for the relief against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and also damages of Rs. 15,000/- per month per acre for item Nos. 1 and 2 of plaint schedule properties . The plaintiff is claiming that the defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 2005 and was pretending to be 69 managing the item Nos. 1 and 2 on behalf of the plaintiff. Basing on the said pleading, the plaintiff is claiming recovery of possession of the item
Nos. 1 and 2 of the plaint schedule properties.
d) Though, the defendant has pleaded about Ex.B3 Will, but failed to prove. He also pleaded that while refuting the plaint allegations by claiming as are not true and correct, the plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties. He also pleaded that so far as the other items are concerned he has no claim over the suit.
D.W.1 in the cross-examination stated that except item Nos. 1 and 2 of plaint schedule properties, he has no claim against the rest of the suit schedule properties. He also stated except item Nos. 1 and 2 of schedule properties he is not denying the title of the plaintiff over the remaining Items in the plaint schedule property.
e) In those facts and circumstances, there is no force in the contention of the learned counsel for the defendant that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
f) The suit is filed on 20.11.2007. Thereby, it can be safely held that the plaintiff just prior to filing of the suit on 20.11.2007 executed Exs.A12 and A13 on 18.10.2007. As per Exs.A12 and A13, the plaintiff gifted the properties and according to the plaintiff in favour of P.Ws. 5 and 6. But, this fact of gifting the properties is not pleaded by the plaintiff in the plaint without giving any valid reason. Further, the cancellation of Exs.A12 and
A13 by P.Ws. 5 and 6 who are the son and daughter of P.W.1 by executing 70
Exs.A10 and A11 is also not pleaded in the plaint in the plaint. Exs.A10 and
A11 are dated 07.04.2014. P.Ws. 1,5 and 6 admitted that the properties gifted which are item Nos. 1 and 2 of plaint schedule properties are in possession of defendant and there was no delivery of possession of those properties by P.W.1 to P.Ws. 5 and 6. P.W.1 admitted in her cross- examination that she took the plea in the plaint that the plaint schedule property was in her possession by the date of suit. She also stated that she has not filed documents showing her possession and enjoyment of the plaint schedule properties. Admittedly, P.Ws. 5 and 6 are not parties to the suit.
P.W.5 stated that plaint schedule property is not in her possession and enjoyment. P.W.6 also admitted that possession of the plaint schedule property was not delivered by P.W.1. P.W.6 stated that she is aware of the recitals in Ex.A11. She also stated that she and her mother voluntarily and conscious of contents therein had entered into execution of Ex.A11. she also stated that it is true in Ex.A11 it was recited that since terms and conditions in the gift were not implemented, the gift deed was mutually cancelled.
P.W.5 stated in his cross-examination that he knows the facts in Ex.A10. He also stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled. In
Exs. A10 and A11 also, it is mentioned that as Exs.A12 and A13 could not be implemented and also P.Ws. 5 and 6 are not interested and due to some unavoidable circumstances, the said documents are executed in view of agreeing of P.W.1 for taking back the property gifted to P.Ws. 5 and 6 on the request of P.Ws. 5 and 6. It is also mentioned that the said documents are executed after both parties agreed for the terms. It is also mentioned that the rights of P.Ws. 5 and 6 got under Exs.A12 and A13 stood cancelled.
But, P.Ws. 1,5 and 6 have not stated about what are the unavoidable circumstances, which are the reasons for cancellation of Exs.A12 and A13 by 71
P.Ws. 5 and 6. In those facts and circumstances, even though, the defendant has not pleaded about execution of Exs.A12 and A13 by plaintiff in the written statement, the plaintiff at the time of filing plaint, since fully aware of execution of Exs.A12 and A13 by her should have pleaded about the execution of the said documents in the plaint. If really, due to any unavoidable circumstances, Exs.A12 and A13 are not acted upon and they are cancelled by P.Ws. 5 and 6 unilaterally, without accepting by P.W.1, the said fact also should have been pleaded, but in the present case, as per the terms of Exs.A10 and A11 and evidence of P.Ws.1,5 and 6 after agreement of terms of Exs.A10 and A11 only all the parties executed them. Thereby,
P.W.1 is also aware about execution of Exs.A10 and A11 by P.Ws. 5 and 6, but the said fact is also not pleaded in the plaint. The execution of Exs.A10 to A13 by P.Ws. 1,5 and 6 is within full knowledge of plaintiff exclusively, but not within the knowledge of defendant, though they are registered documents. Having failed to plead all these facts by the plaintiff, the plaintiff cannot claim now that they need not be pleaded, because the defendant has not pleaded about the execution of Exs.A12 and A13 in the written statement.
g) The defendant is not a party to Exs.A.10 to A.13. But plaintiff has not added P.Ws.5 and 6 as parties in this suit and also not pleaded about the same. In those facts and circumstances, as per the principles laid down the above decisions and also as no evidence can be let in without pleading, the plaintiff is not entitled to place evidence in respect of Exs.A.10 to A.13 in order to prove her title on item Nos.1 and 2 of the plaint schedule properties.
h) The defendant without pleading about Exs.A12 and A13 placed evidence in respect of Exs.B12 and B13, but when the plaintiff has not pleaded about Exs.A10 to A13, the defendant even without pleading about 72
Exs.B12 and B13 which are the certified copies of Exs.A12 and A13 can place evidence in proof of acts of plaintiff about not having title in respect of item
Nos. 1 and 2 of plaint schedule properties by the date of suit as the plaintiff is claiming title in respect all the suit schedule properties by pleading in the plaint that she is the daughter of Madda Nookayya and Bodemma and as they died intestate, she got all the plaint schedule properties and she is claiming declaration of title that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit. Whereas, the defendant in the written statement pleaded that the plaintiff is not entitled for the relief of declaration that she is the absolute owner of the plaint schedule properties. He also further pleaded that he got the properties in Item Nos. 1 and 2 of plaint schedule properties, in view of the Will under Ex.B3 and he is in possession and enjoyment of the same and he is the absolute owner of the same. But, he failed to prove
Ex.B13, but it does not mean that he is not entitled to place to disprove the title of the plaintiff in respect of item Nos. 1 and 2 of plaint schedule properties, as always the defendant can plead alternative reliefs and entitled to place evidence to disprove the plaintiff’s right. In respect of events happening after institution of the suit, the basic principle is that the rights of the parties should be determined on the basis of the date of filing of the suit.
Thus where the plaintiff has no cause of action n the date of the filing of the suit, he will not ordinarily be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Similarly, no relief will be refused to the plaintiff by reason of any subsequent event if at the date of 73 the institution of the suit, he has a substantive right. As per the principles laid down in the decisions reported in AIR 1987 Supreme Court 741 between
Amarjit Singh Vs. Khatoon Quamarian and also in another decision reported in AIR 1975 SC 1409 between Pasupuleti Venkateswarlu Vs. Motor & General
Traders, and AIR 1974 SC 199 between Mahalinga Vs. Arulnandi. The right to relief must be judged to exist as on the date of suit or institute the legal proceedings. But at the same time in order to achieve substantial justice, the subsequent events in the absence of other disentitling factors or just circumstances have to be taken into consideration to meet the ends of justice. But in the present case plaintiff has not pleaded any fact relating to
Exs.A.10 to A.13 in the plaint and also the evidence in respect of these is placed by plaintiff by examining herself by recalling and also her children as
P.Ws.5 and 6 subsequent to defendant placing evidence in respect of
Exs.B.12 and 13 without any bonafide reasons for not pleading about
Exs.B.12 and B.13 even though they were executed just before filing of the suit.
34 Order 7 Rule 1 (e) of C.P.C. reads as follows:
e) The facts constituting the cause of action and when it arose;
As per the said provision, the facts constitute the cause of action and when it arose must have pleaded in the plaint. Every suit presupposes the existence of a cause of action against the defendant because if there is no cause of action the plaint will have to be rejected. Even though he expression “cause of action” has not been defined in the code, it may be described as “a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed” or “which give the plaintiff right to relief against the defendant”. Thus, “cause of action” means every fact, which it is necessary to establish to uupport a right or obtain judgment. To put it differently, cause of action gives occasion for and forms the foundation of the suit.
b) Thereby, in the present suit, unless, plaintiff proves that she has cause of action in respect of item Nos. 1 and 2 of plaint schedule properties by the date of suit and she pleaded the same in the plaint and also when the said cause of action arose, she is not entitled to claim the reliefs sought for.
74
c) The plaintiff has to prove that even though Exs.A12 and A13 are executed, the property is not divested by her and it continuous to be with her. If really, it is continued to be with her, irrespective of execution of
Exs.A12 and A13, there is no need for execution of Exs.A10 and A11. The very execution of Ex.A10 and A11 much longer to the dates of execution of
Ex.A12 and A13 since, Exs.A10 and A11 are dated 07.04.2014 and subsequently after 7 years, it clearly shows that that she has divested with the properties in item Nos. 1 and 2 which are in possession and enjoyment of 2nd defendant. So, it can be safely presumed and held that in view of that reason only Exs.A10 and A11 were executed. Further as per the principles laid down in the decisions reported in Margadarshini Educational Soceity
Vs. P.Subhashan and another, Union of India and others Vs. Vasavi
Cooperative Housing Society Limited and others (supra) in the present suit also, the burden is on the plaintiff to establish her absolute title of the plaint schedule properties, including Items Nos 1 and 2 and she must succeed on the strength of her case without depending upon the weaknesses in the case of the defendant.
d) In respect of the decision reported in 2009 (4) A.L.T. 727, (referred supra) the learned counsel for the plaintiff submits that the so called gift deeds under Exs.A12 and A13 are not acted upon due to which, the plaintiff remained the absolute owner of the plaint schedule properties.
But, the plaintiff is not able to place evidence to prove that the gift deeds are not acted upon and further, even if any evidence is placed, the same is also not useful for the plaintiff without any pleading for the same.
37 The Hon’ble High court of Madras in the decision reported in AIR 1954
Madras 84, between A.Rakkiyana Gounder Vs. Chinnu Govardan held that no evidence can be let in contra to the terms of the deed and the bar is absolute. Hence, in the present suit also, the plaintiff is not entitled to let in 75 evidence contra to Exs. A12 to A13 unless plaintiff pleads contra to Exs.A12 to A13 and then proves the same 38 In view of that, the defendant failed to prove Ex.B3 Will and title to the Item Nos.1 and 2 of plaint schedule properties, but he is admittedly in possession of the said properties. The plaintiff failed to prove that there was cause of action by the date of filing of the suit, in respect of item Nos. 1 and 2, and she is not entitled for any relief in respect of said properties, more so, declaration of title and recovery of possession and permanent injunction in respect of Item Nos. 1 and 2 of plaint schedule properties which are discretionary reliefs and can be granted only if plaintiff proves that she is bonafide though she is entitled for the reliefs prayed in the suit for other properties in view of evidence placed by plaintiff, and also as the defendant also pleaded in the written statement, as stated earlier that, so far as the other items are concerned, the defendant has no claim over the same and he never interfered in respect of other items of the plaint schedule properties and he has no claim over the said properties.
38 a) The defendant is claiming that generally the damages are not part of subject matter of the suit and are to be determined if suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. and so deciding quantum of profits or damages by original court is contrary to law and that in respect of plea for recovery of item Nos. 1 and 2 by evicting the defendant. Just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her daughter and son, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages.
b) The trial court held that the plaintiff can claim damages by filing separate petition while answering issue No.5. The plaintiff has not paid court fee for the relief of damages. The trial court observed that plaintiff has not 76 led any evidence in respect of the damages and so it cannot be granted in the suit.
c) The plaintiff claimed damages at Rs.15,000/- per annum per acre for item Nos. 1 and 2 of plaint schedule properties till the date of handing over of the possession. But, as stated earlier, the plaintiff is not entitled for any reliefs in respect of Item Nos. 1 and 2 which are not in exclusive possession and enjoyment of plaintiff. As such, the question of granting of damages or deciding the quantum of damages does not arise.
39 Plaintiff has proved that the defendant is not the son of Madda
Nookaiah and that the Will propounded by the 1st defendant said to have been executed by Madda Nookayya on 01.10.1996 is not true, valid and binding in respect of the item Nos. 1 and 2 of the plain schedule properties and that the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties except item Nos. 1 and 2 of plaint schedule properties. The plaintiff is not entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule properties. The plaintiff is also not entitled for recovery of damages at the rate of Rs.15,000/- per month per acre in respect of item Nos. 1and 2 of the plaint schedule properties from the defendant. The plaintiff proved that the plaintiff is having subsisting interest in all the plaint schedule properties except item Nos. 1 and 2 and that the plaintiff is having title to item Nos. 3 and 5 of plaint schedule properties. Hence, the judgment and decree in O.S.
No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s Court,
Rajahmundry has to be modified as plaintiff failed to prove the reliefs claimed by her in respect of item Nos. 1 and 2 of schedule properties, but the trial court granted the same as per it’s judgment. Accordingly, point
Nos. 1 to 8 are answered. Basing on the answers to Point Nos. 1 to 8, Point
No.9 is answered.
77 39 Point No.9: In the result, the appeal in A.S. No. 31 of 2013 is partly allowed. The Judgment and decree of the trial court in O.S. No. 651 of 2007
dated 14.03.2013 on the file of I Addl. Senior Civil Judge's Court,
Rajahmundry, is partly set aside in respect of the reliefs granted of declaration of the plaintiff as absolute owner of item Nos. 1 to 2 of plaint schedule properties and deliver of vacant possession of the same within three months, and also the plaintiff is entited for claiming damages by filing separate petitions. For all other reliefs the Appeal is dismissed.
Dictated to the Stenographer (Grade-II), transcribed by him, corrected
and pronounced by me in Open Court, this the 13th day of February, 2017
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For appellant
D.W.1: Madda Venkata Rao
For Respondent:
P.W.1 : Siddabathula Nagamani P.W.5 : Siddabathula Rajasekhar P.W.6 : Marre Atchiyyamma
DOCUMENTS MARKED
For Appellant:
Ex.B12/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her son P.W.5 Ex.B13/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her daughter P.W.6
For Respondent:
Ex.A10/07.04.2014 : Original of Registered cancellation of gift deed Ex.A11/07.04.2014 : Original of Registered cancellation of gift deed Ex.A12/18.10.2007 : Original of Gift deed executed by P.W.1 in favour Of P.W.5. Ex.A13/18.10.2007 : Original of gift deed executed by p.W.1 in favour Of P.W.6.
78
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
79
Add the following in Page 12 after para 11 (a) as (b)
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
1
In The COURT OF The SPECIAL JUDGE For Trial Of Cases Under S.Cs & S.Ts
(POA) ACT – Cum - X Addl. District & Sessions Judge, East Godavari At Rajahmundry
PRESENT: SRI N.MALYADRI
Special Judge, SCs & STs Court – cum -
X Addl. District Judge. Monday, the 13th day of February, 2017
APPEAL SUIT No. 31 OF 2013
Between:
Madda Venkata Rao .. Appellant/Defendant
And
Siddabathula Naga Mani .. Respondent/Plaintiff
On appeal against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S. No.651 of 2007.
between:
Siddabathula Naga Mani .. Plaintiff
And
Madda Venkata Rao .. Defendant
This appeal is coming on 01.09.2015 for final hearing before me in the presence of Sri B.S.Srinivasu, Advocate for Appellant/defendant and Sri S.Kumar, Advocate for Respondent/Plaintiff and the matter having stood over for consideration till this day this court delivered the following:
JUDGMENT
This appeal is filed against the decree and Judgment dated 14.03.2013 passed by the Court of the I Addl. Senior Civil Judge, Rajahmundry in O.S.
No. 651 of 2007.
2 The suit in O.S. No.651 of 2007 is filed by the plaintiff against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties 2 from the date of suit till the date of handing over of possession and for costs of the suit.
3 The brief and relevant facts pleaded in the plaint presented under
Section 26 and Order VII Rule 1 of Civil Procedure Code are as follows:
a)Plaintiff is the daughter and only issue of Madda Nookayya and his wife
Madda Bodemma and that plaintiff’s father madda Nookayya died intestate in the year 1996 and her mother also died intestate in the year 2001 and that the plaint schedule properties are the absolute properties of the father of plaintiff i.e., Madda Nookayya and Madda
Nookayya had three brothers 1) Madda Surayya, 2) Madda Suibbayya (father of defendant) and 3) Madda Gopayya. Except Subbayya all other brothers died. Madda nookayya got Item Nos. 1,2 and 6 of the plaint schedule properties in oral partition with his brothers and he was also issued Pattadar Pass book and title deed book for item Nos.
1,2 and 6 of plaint schedule properties. The plaintiff is having custody of the title deed book and the defendant is having custody of the pattadar pass book and that the plaintiff is filing the title deed books as Annexures 1 and 2.
b)Item No.3 of the plaint schedule property was given as gift to Madda
Nookayya under a registered gift deed dated 09.02.1987 by Madda
Gangamma wife of Surayya and that the Madda Nookayya accepted the gift and had been in possession and enjoyment of the same till his death and there after plaintiff and her mother were in possession till the death of plaintiff’s mother and thereafter plaintiff is in possession and enjoyment of the same and that the Madda Nookayya was not issued pattadar passbook or title deed for this item and the original gift deed dated 09.02.1987 is filed as Annexure No.III.
3
c)Item No. 4 of the plaint schedule property was purchased by late
Madda nookayya under registered sale deed dated 02.02.1971 and in the said sale deed the extent was shown as Ac 1.00 cents on ground, but it is Ac 1.06 cents and the original sale deed is filed as Annexure
IV. Item No.4 was also shown in Pattadar pass book and title deed i.e., Annexure No.1.
d)Item No.5 of plaint schedule originally belonged to Madda Surayya and brother of Madda Nookayya who purchased it under registered sale deed dated 20.02.1971 and that after his demise, of his wife
Gangamma sold it to plaintiff in the year 1992 for Rs.40,000/- and received consideration and handed over possession of the land and also the original sale deed dated 20.02.1971 in favour of Madda
Suryya and plaintiff has been in possession and enjoyment of the same ever since.
e)The plaintiff due to illiteracy did not obtain registered sale deed from
Madda Gangamma, however, even otherwise the plaintiff has been in continous uninterrupted possession over since 1992 openly to the knowledge of the entire world and perfected her title by presumption.
The said sale deed dated 20.02.1971 in favour of Madda Surayya is filed as Annexure No.IV.
f)The defendant is the son of Subbayya who is the younger brother of
Nookayya and after death of her mother the plaintiff has been in possession and enjoyment of the plaint schedule properties as absolute owner and since no taxes are being collected, no taxes are being paid.
g)The defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 4 2005 and was pretending to be managing the item Nos. 1 and 2 of plaint schedule properties on behalf of the plaintiff.
h)About 4 months ago, when the plaintiff wanted to apply for loan in
S.C. corporation for erecting a bore well the defendant objected for the same and started making a false claim that he is the adopted son of
Madda Nookayya and that all the plaint schedule properties exclusively belong to him, keeping the plaintiff under the belief that he is managing the properties and taking advantage of plaintiff’s illiteracy and innocence and on the pretext that he will get the name of the plaintiff mutated in revenue records he took custody of the pattadar passbooks standing in the name of Madda Nookayya in respect of Item
Nos. 1,2,4 and 6 of plaint schedule properties.
i)The defendant taking advantage of his influence with local revenue authorities has been pressurizing the plaintiff through them to part with Item Nos. 3 to 6 of plaint schedule properties and giving out threats to the plaintiff through them and the defendant has absolutely no right, title or interest in the plaint schedule property and the plaintiff demanded the defendant to hand over possession of Item Nos.
1 and 2 of plaint schedule properties, but he refused to do so on the other hand he has been threatening to interfere with the plaintiff’s possession and enjoyment of the plaint schedule property under the guise of a false claim that he is the adoptive son of late Madda
Nookayya.
j)The plaintiff came to know that the defendant is trying manipulate some documents to buttress his false claim in collusion with the
Revenue Officials and the defendant always remained as son of
Subbayya and in the old voters list and ration card his father’s name mentioned as Subbayya only.
5
k)In the year 1991, the father of the defendant sold his property under registered sale deed dated 10.04.1991 and the defendant signed as a witness where in his father’s name is shown as Subbayya and thus there is a irrefutable documentary evidence to show that the defendant was never adopted by Madda Nookayya. The certified extract of the sale deed dated 10.04.1991 is filed as Annexure No.IV.
l)In view of the litigious stand taken by the defendant the plaintiff is advised to seek for a declaration that she is the absolute owner of the plaint schedule property and for possession of Item Nos. 1 and 2 of plaint schedule properties and for permanent injunction restraining the defendant his men, agents and successors in interest from interfering with the plaintiff’s possession and enjoyment of the Item Nos. 3 to 6 of plaint schedule properties and the plaintiff issued a legal notice dated 22.10.2007 calling upon the defendant to handover vacant possession of Item Nos. 1 and 2 of plaint schedule properties and the defendant having received the legal notice did not comply to reply and the office copy of the legal notice is filed as Annexure No.III and the acknowledgement due is filed as Annexure No. VIII. Items Nos. 1 and 2 will fetch an income of Rs. 15,000/- per acre per annum after expenses and the defendant is bound to pay the same to the plaintiff.
Hence, the plaintiff prays to decree the suit with costs as prayed for.
4. The defendant filed written statement and the brief and relevant facts pleaded in it are as follows:
a)The defendant refuted the plaint allegations by claiming as not true and correct. The plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties.
b)The defendant is the adoptive son of Madda Nookayya i.e., father of the plaintiff and grew up in the house of Madda Nookayya and there is 6 overwhelming documentary evidence i.e., legal heir certificate, voters list, sugar card and election identification card to establish that he has been shown as the son of Madda Nookayya.
c)Madda Nookayya executed his last will and testatement on 01.10.1996 bequeathing an extent of Ac 0.50 cents in Srikrishnapatnam village in
R.S.No. 391/2B and Ac 1.06 cents in Srikrishnapatnam village in R.S.
No. 390 and an extent of Ac 0.43 cents in R.S.No. 2/2J in
G.Yerrampalem Village in favour of the plaintiff herein while giving an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village an extent of Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties which are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned he has no claim over the same.
d) The defendant never interfered in respect of other items of the plaint schedule properties and he has no claim over the same. Hence, the defendant prays that the suit may dismissed in so far as item Nos.
1 and 2 of the plaint schedule properties are concerned with costs.
5. Basing on the above pleadings, the following issues are settled for trial
before the Trial Court:
1.Whether the defendant is the adopted son of Madda Nookayya and whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
7
2.Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule property?
3.Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule?
4.Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule from the defendant?
5.To what relief?
6. During the course of trial, the plaintiff got examined P.Ws. 1 to 4 and got marked Exs.A1 to A9, while the defendant examined D.Ws. 1 to 6 and got marked Exs.B1 to B11 and Ex.X1 to X3.
7. After conducting due trial, the trial court decreed with suit with costs declaring that the plaintiff is the absolute owner of the Item No.1 and 2 of plaint schedule property and for delivery of vacant possession of the same within three months and also granted injunction restraining the defendant to interfere with the peaceful possession and enjoyment of the plaint schedule property of item Nos. 3 to 6. The plaintiff can claim the damages by filing separate petition.
8. As against the said decree and judgment in O.S. No. 651 of 2007, the defendant filed the present appeal and presented memorandum of appeal under Section 98, Order 41 Rule 1 C.P.C. The brief and relevant facts pleaded in the grounds of appeal are as follows:
a)The Decree and Judgment of the trial court is contrary to law, weight of evidence and probabilities.
b)The defendant did not have free and fair trial before trial court for the following reasons
1)That the evidence and written arguments submitted by the defendant are not considered.
8
2)The plaintiff though admitted as P.W.1 in cross as follows:
“It is true, that I have executed a settlement deed in respect of
Item Nos. 1 and 2 in favour of my daughter on 18.10.2007”, but the suit was presented only 20.11.2007 nearly one month after losing title over item Nos. 1 and 2, yet the trial court declared the title over item Nos 1 and 2 in favour of the plaintiff and ordered delivery.
3)The plaintiff P.W.1 proclaimed the result of the suit at least one month prior to the result.
4)The trial court heard arguments on 06.02.2013, but pronounced the Judgment only 14.03.2013 the long delay in pronouncing the judgment always sends wrong signals as to Judgment to the society.
c)The trial court did not follow the principles that in a suit of declaration of title, the plaintiff has to stand or fall on the strength of the case of the plaintiff, but not on the strength or weakness of the case of the defendant so the trial should have decided issue
Nos. 2 to 5 by recording findings on them independently considering the evidence and written arguments of the both sides.
d)The trial court without consideration of the oral and documentary evidence basing on the contention of the plaintiff’s counsel, without any legal basis, adopted it, which clearly establish the total prejudice caused to the defendant.
e)The trial court willfully omitted to decide Issue No.2, though, in the written arguments, there is submission in detailed manner in respect of the same.
f)The trial court ought to have seen that in the suit involving declaration, injunction and recovery of possession, since the plaintiff sought for relief of declaration and for recovery of 9 possession of Item Nos. 1 and 2, the trial court should have recorded finding fact how plaintiff established her title to item Nos.
1 and 2 before granting relief of declaration of title and recovery of possession.
g)The trial court should have seen that P.W.1 admitted that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007 i.e., one month prior to filing of the present suit, thus when plaintiff herself admitted that she had no title to item Nos. 1 and 2 granting of declaration of title and injunction to item Nos. 1 and 2 is contrary to (2009) 4 ALT 727 and hence, the finding of the trial court on issue No. 2 that the plaintiff is entitled to declaration and recovery of item Nos. 1 and 2 are liable to be set aside.
h)The trial court should have seen that the item Nos. 3 to 6 of the plaint schedule property, the plaintiff sought for declaration of title and for injunction. Even for granting such relief of establishing title is mandatory and the plaintiff as P.W.1 admitted as follows:
“We applied for the M.R.O. for issuing legal heir certificate of her mother”. “It is true to suggest that M.R.O. issued legal heir certificate as myself and defendant are the legal heirs of my mother” but the defendant produce Ex.B2 legal heir certificate showing plaintiff and defendant as children of late Bodamma w/o.Nookaiah and that the plaintiff did not dispute Ex.B2 in cross examination by defendant since Ex.B2 was issued by competent statutory authority as per joint application of plaintiff and defendant so the plaintiff could not establish prima facie case, her absolute title to seek declaration.
i)The trial court should have seen that when P.W.1 admitted that herself and defendant jointly applied to M.R.O., for legal heir 10 certificate after Ex.B2 certificate was issued, that the plaintiff is not competent to take different stand before Civil Court or statutory authority etc. Thus, the plaintiff is not prima facie entitled to seek for declaration of her title.
j)The trial court should have seen that the trial court’s finding of fact on issue No.1 is not only merely abuse of process of law but also failure of justice.
i)The plaintiff did not dispute the Will either in the plaint or by filing better pleadings as required under Order 6 Rule 4 of
C.P.C., to the contentions raised in the written statement which will have material value and that in any case, the parties cannot let in evidence beyond pleadings and the plaintiff having not filed better pleadings as required under
Order 6 Rule 4 of C.PL.C. cannot challenge the Will vide (1981) 2 A.P.L.J. 62.
k)The trial court should have seen that defendant examined, D.W.2 and D.W.3 the attestor of the Ex.B3 who spoke to details of “Due execution” and so the defendant proved execution of Ex.B1, particularly in the absence of objection regarding Will raised by the plaintiff thus proved execution of the Will beyond reasonable doubt.
l)The trial court should have seen that P.W.1 has admitted in cross- examination of P.W.1 as follows:
“I am coming to know that the defendant filed will along with written statement. He did not ask my advocate as to defence set up by the defendant in the written statement. I have not filed any rejoinder regarding the will executed by my father disputing the
Will. I know the said will alleged to have executed by my father for the last two years. I did not place the dispute in respect of the said 11
Will before elders after coming to know about the Will”. Thus the plaintiff never attempted to dispute the Will.
m)The trial court should have seen that only a person who is either the beneficiary or aggrieved alone can dispute the documents and since the plaintiff does not answer the description i.e., neither aggrieved party nor beneficiary, so she is not competent to dispute the same.
n)The trial court should have seen that the evidence of P.W.4 and
Ex.X1 to X5 are all neither relvant nor establish any fact in view of following admission of P.W.1 “My father was a thumb marker my mother had no bank accounts. I have documents containing thumb marks of my father such as pass book”.
But, the plaintiff did not send any document containing admitted or proved thumb mark of late Nookaiah for comparison to Expert but
P.W.4 compared the thumb marks on Will Ex.B3 with some documents thumb marks on the documents which are not proved or admitted, so the comparison has no basis so Ex.X1 to X5 are liable to be rejected.
o)The trial court failed to appreciate the evidence of D.W.1 to D.W.6 coupled with 11 years undisputed enjoyment of the properties covered by Will all establish circumstantially the will, so the finding that will is not proved is not correct and such finding is liable to be set aside.
p)The trial court finding on adoption is abuse of process of law for the following reasons.
i)Exs. B1, B4, B2, Ex.B9 to B11 documents categorically establish
Nookaiah as father of the defendant and that the defendant also examined his natural mother and witnesses whose 12 evidence in substance cannot be brushed aside and that the adoption is disputed more 30 years after it occurred so presumption of adoption available
q)Therefore, upon grounds urged above and upon grounds that may be urged at the time of hearing of the appeal, the appellant prays to allow the appeal and set aside the decree and judgment passed in O.S. No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s
Court, Rajahmundry dated 14.03.0213 with costs throughout and to dismiss the with costs.
10. During the course of enquiry in the appeal, on behalf of the
Appellant/defendant, D.W.1 is recalled and examined and Ex.B12 and
Ex.B13, which are Settlement deed dated 18.10.2007 from the respondent in favour of the son of Raja Sekhar, and Settlement deed dated 18.10.2007 from the respondent in favour of her daughter M.Atchayamma respectively are marked. As per the memo filed by the appellant and recorded the appellant given up the paras 3 to 5 in the chief affidavit. On behalf of the respondent / plaintiff, P.W.1, is recalled and P.Ws. 5 and 6 are examined
Exs.A10 to A13 are marked which are, Regd. Gift cancellation Deed dated 07.04.2014, Regd. Gift Cancellation deed dated 07.04.2014, original gift deed dated 18.10.2007 executed by P.W.1 in favour of Siddabathula
Rajasekhar and Original gift deed dated 18.10.2007 executed by P.W.1 in favour of Marre Atchiyamma respectively.
11. a) For the sake of brevity and convenience here in after the parties and evidence will be referred as referred in the judgment in O.S.
No.651/2007 on the file of I Addl. Senior Civil Judge's Court, Rajahmunedry
dated 14.03.2013.
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The 13
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
12. a) The learned counsel for the appellant/defendant submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
(b) The learned counsel for the defendant submits that unless the plaintiff establishes her own title to the property and succeeds, but the plaintiff cannot succeed on the weakness of the defendant’s case.
(c) The learned counsel for the defendant submits that the plaintiff has to establish her superior title to plaint schedule properties.
(d) The learned counsel for the defendant submits that as per Section 34 of Specific Relief Act a person is entitled for Declaration of right or title if that person possesses the same.
(e) The learned counsel for the defendant submits that as admitted by
P.W.1 since plaintiff did not dispute the Will executed by her father and also the adoption by specifically pleading the same or by filing rejoinder after the written statement filed by the defendant, framing of Issue No.1 does not arise and the defendant has proved the Will executed by his father and also adoption of him by his father.
(f) The learned counsel for the defendant submits that as the plaintiff admittedly did not dispute either of the aspects covered by Issue No.1, but the trial court framed the said issue in respect of undisputed facts and as the issue cannot be framed with respect of undisputed facts, the two aspects are liable to be deleted and if the are not deleted also, both the aspects covered by Issue No.1 are not relevant for deciding the plaintiff’s case as the same 14 can be considered only when plaintiff established primafacie case of absolute title to property.
(g) The learned counsel for the defendant submits that the evidence of
D.W.1 coupled with the contents in Exs.B1 and B2 and since M.R.O. as per
Section 4 of Pattadar Passbook Act being statutory authority can issue legal heir certificate after conducting inquiry under Section 5 A of the said Act and plaintiff did not dispute Ex.B2 legal heir certificate by filing appeal and
M.R.O. issued proceedings under Ex.B8 after appeal time is over and plaintiff also as P.W.1 admitted and accepted the receipt of Ex.B8 proceedings and nothing contra is elicited in the cross-examination of D.W1, the defendant has proved that he is adopted by his father who is natural father of P.W.1.
(h) The learned counsel for the defendant submits that as the plaintiff admitted Ex.B2 and did not challenge it by filing any appeal within time, cannot change her stand and say that the defendant is not the legal heir of
Nookaiah as it amounts playing fraud on public authority i.e., Court or operate as estoppel against the plaintiff and thereby the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of
Nookaiah and, as such, the case of the plaintiff that she is the absolute owner of the schedule property as sole heir of Nookaiah is failed.
(i) The learned counsel for the defendant submits that the adjudication by M.R.O. by following the procedure in 5A inquiry cannot be challenged in
Civil Court and, as such, in view of Ex.B2, the plaintiff’s absolute title over item Nos. 1 to 5 of schedule properties stood disproved.
(j) The learned counsel for the defendant submits that the proceedings under Exs.B2 and B8 are in the nature of decree in Specific Relief Act and is binding on the plaintiff or parties to those proceedings.
15
(k) The learned counsel for the defendant submits that the moment
Exs.B2 and adoption are accepted, the plaintiff has no absolute right or title to plaint schedule properties, and the plaintiff and the defendant are co owners and, as such, at the most the plaintiff may be entitled to relief of partition in view of proviso to Section 34 of Specific Relief Act.
(l) The learned counsel for the defendant submits that in view of Ex.B3
Will executed by late Nookaiah the common owner of the plaint schedule properties, so the defendant cannot be disturbed under any circumstances.
(m) The learned counsel for the defendant submits that as the defendant set up oral adoption, generally the burden would be upon the defendant, but, in the present case, since the defendant produced Ex.B2 coupled with the admissions of P.W.1 that both the plaintiff and defendant are jontly applied for legal heir certificate and in view of the fact that nothing contra is elicited in the cross-examination of D.W.1 in respect of the both the aspects covered in the first issue, it is created a special circumstance in favour of the defendant and created a presumption of relationship of father and son in between the defendant and late Nookaiah.
(n) The learned counsel for the defendant submits that in view of the evidence of natural mother of defendant as D.W.4 and the fact of late
Nookaiah’s conduct and joining of the defendant in school as shown in Ex.B1 and the contents of Ex.B3 Will would clearly establish the adoption of defendant.
(o) The learned counsel for the defendant submits that as per Ex.B10 recitals by paternal aunt descrbining the defendant as son of late Nookaiah and Exs.B9 and B4 Government records describing the defendant as son of
Nookaiah, clearly shows that the defendant has been treated by one and all including the deceased Nookaiah as his son vide Ex.B3 would establish adoption beyond reasonable doubt.
16
(p) The learned counsel for the defendant submits that when the legal heir ship of parties through a common ancestor was not disputed before statutory authority then adoption of such legal heir cannot be challenged
before Civil Court and it is matter of public policy to continue same stand
and thus, Ex.B3 legal heir certificate of defendant and plaintiff as heirs of
Nookaiah was accepted both parties as well as M.R.O. concerned, so this aspect of legal heir ship was only consequence of adoption, so the plaintiff cannot challenge the same and that thus, the defendant heir ship to
Nookaiah as his adopted son is not challenged and so the issue of defendant’s adoption has to be decided in favour of the defendant and against the plaintiff.
(q) The learned counsel for the defendant submits that defendant is claiming possession and enjoyment of plaint schedule properties in pursuance of Ex.B3 in his own right from December, 1996 i.e., from the date of death of late Nookaiah and admittedly he is in possession of Item Nos.1 and 2 of plaint schedule properties.
(r) The learned counsel for the defendant submits that the present suit came to be filed after completion of 11 years and during progress of 12 th year since the plaintiff admits possession of defendant over item Nos. 1 and 2 since past 4 to 5 years prior to suit, the defendant is in settled and uninterrupted possession over item Nos. 1 and 2 of plaint schedule properties and, as such, in view of Section 114 (d) of I.E. Act, the defendant is presumed to be in continuous possession from December, 1996 i.e., past 16 years in the plaint schedule property and thus the plaintiff cannot dispute
Will dated 01.10.1996 now i.e., after 11 long years and the plaintiff’s right, if any to challenge Ex.B3 Will be, within in three years from the date of it’s execution i.e., from 01.10.1996 and so the plaintiff cannot challenge the
Ex.B3 Will.
17
(s) The learned counsel for the defendant submits that P.W.1 admitted in her cross-examination catergorically that she came to know about Ex.B3
Will after filing of written statement, but she did not dispute Ex.B3 Will and the same is sufficient that Section 68 of I.E. Act is not required to be complied with.
(t) The learned counsel for the defendant submits that even otherwise the plaintiff is neither aggreieved party nor executant of the Will since the plaintiff is 3rd party, that she cannot challenge Will so the defendant need not examine the attestors, but however, the defendant examined two attestors as D.Ws. 2 and 3.
(u) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will.
(v) The learned counsel for the defendant submits that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support such report and that a part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison.
(w) The learned counsel for the defendant submits that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses.
(x) The learned counsel for the defendant submits that the Expert’s opinion is hearsay evidene and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a definite science and can be relied upon.
(y) The learned counsel for the defendant submits that the rights claimed by defendant in the suit are to be adjudicated in a properly 18 constituted suit and so Issue No.1 has to be deleted and even otherwise, both adoption and Will are proved by oral evidence of D.Ws 1 to 4, circumstantial evidence and by production of Ex.B1 to B11.
(z) The learned counsel for the defendant submits that as the adoption is 50 years back, the principles of ancient adoption have to be applied.
Z a) The learned counsel for the defendant submits that the defendant is the adopted son of Nookaiah and Item Nos 1 to 5 are the exclusive properties of Nookaiah and Item No.6 is a joint family property and defendant has proved by placing the evidence in the trial court and also the
additional evidence in pursuance of allowing of I.A. No. 201 of 2014
permitting to place additional evidence by examining D.W.1 and marking of
Ex.B12 and Ex.B13 that Plaintiff transferred her interest in respect of Item
Nos. 1 & 2 and 4 and 6 of plaint schedule properties.
Z b) The learned counsel for the defendant submits the plaintiff transferred her interest in items No.2 and 6 of plaint schedule properties under settlement deed dt: 18-0-2007 doc.no: 6867/2007 in favour of Raja
Sekhar and that the suit was presented by plaintiff/respondent on 20-11- 2007 i.e., nearly 32 days after transfer and the same is proved through the evidence of P.W.1 and P.Ws.5 to 6 and also additional evidence placed by the appellant in pursuance of the Orders in I.A. No. 583 of 2014 under Exs.
A10 to A13 marked through P.W.1 by placing additional evidence.
Z c) The learned counsel for the defendant submits that as defendant placed evidence proving Exs.B12 and B13 which are gift deeds, they establish that the plaintiff did not possess any right title and interest in the plaint schedule properties as on the date of suit i.e., 20-11-2007.
Z d) The learned counsel for the defendant submits that the plaintiff has to establish her title to get a relief of declaration and relief of declaration cannot be granted on the weakness of defendant’s case and plaintiff has to 19 be non suited” and due to the same, Issue No.2 has to be decided in favour of the defendant.
Z e) The learned counsel for the defendant submits that the parties are governed by the rights which accrue to them on the date of institution of the suit and as such, since the plaintiff is claiming that her title is restored back to her in view of Ex.A12 and Ex.A13 and so she was not having title on the date of institution of suit and, as such, the plaintiff is not entitled for declaration as prayed for and, as such, she is not entitled for recovery of
Item Nos. 1 and 2 of plaint schedule properties and so Issue No.3 may be decided in favour of the defendant.
Z f) The learned counsel for the defendant submits that plaintiff has to establish both title and possession over plaint schedule properties then only the defendant’s contention or case is to be adjudicated.
Z g) The learned counsel for the defendant submits that the plaintiff claimed ownership as heir of deceased Nookaiah, the plaintiff’s case is comprehensively disproved by defendant by producing Ex.B2 legal heir certificate, wherein both plaintiff and defendant were held to be heirs of late
Nookaiah and his wife, so plaintiff’s absolute title theory failed.
Z h) The learned counsel for the defendant submits that the plaintiff did not produce any reliable evidence in proof of her case and the defendant on the contrary produced Ex.B3 Will executed by the deceased Nookaiah and thus prima facie proved his title to the plaint schedule item Nos 1 to 5 and hence, the defendant miserably failed to establish her case and also failed to establish her right to relief of permanent injunction.
Z i) The learned counsel for the defendant submits that the plaintiff has failed to establish her superior title to seek injunction against the defendant, who is either co-owner or owner under Will i.e., Ex.B3 to plaint schedule 20 items and so both on the principles that the plaintiff could not establish her case or plaintiff is not entitled to relief of injunction against co-owner and so the plaintiff did not have primafacie case, balance of convenience or probable injury in the matter and hence, the plaintiff is not entitled to relief of permanent injunction as prayed for.
Z j) The learned counsel for the defendant submits that in view of
additional evidence of D.W.1 coupled with the contents in Ex.B12 and
Ex.B13 issue NO.4 may be answered in favour of the defendant.
Z k) The learned counsel for the defendant submits that out of 6 items of plaint schedule injunction is sought for with respect to items 3 to 6 only.
Point out of such 4 items, items 4 and 6 were already alienated and there was no subsisting interest to plaintiff/respondent herein in those properties and in view sec.4 1 (J) of specific relief Act plaintiff is not entitled to permanent injunction prayed for.
Z l) The learned counsel for the defendant submits that Ex.B-1 to B-11 clearly establish both title possession and relationship and so the burden is upon plaintiff/respondent to establish her absolute title to items NO.3 and 5 of the paint schedule.
Z m) The learned counsel for the defendant submits that merely because,
Issue No.1 is decided in favour of plaintiff, the approach of the trial court that suit should be decreed is not in accordance with the law and the burden is on the plaintiff to establish her case in respect of all issues.
Z n) The learned counsel for the defendant submits that framing of Issue
No.1 relating to defendant’s title is unwarranted and any conclusion arrived at on the basis of finding upon such issue vitiated entire trial and hence,
Issue No.1 is to be deleted.
21
Z o) The learned counsel for the defendant submits that after closure of defendant’s evidence, the plaintiff ingenious by examined PW.3 and PW.4 and that expert petition was also ordered subsequent to closure of defendant’s side evidence.
Z p) The learned counsel for the defendant submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW3 has to be brushed aside.
Z q) The learned counsel for the defendant submits that P.W.4 summoned to produce School Register of M.P.U.P.School of the year 1959, but he did not bring records and though he was not directed to give evidence yet the evidence of PW.4 recorded in chief in the absence of defendant’s counsel etc, so his evidence has no legal sanctity under law.
Z r) The learned counsel for the defendant submits that the evidence of
P.W.1 is not corroborated by any oral or documentary evidence and plaintiff miserably failed to establish title and hence, Issue No.4 may be answered in favour of the defendant.
Z s) The learned counsel for the defendant submits that generally the damages are not part of subject matter of the suit and are to be determined in a separate proceeding after suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. so deciding quantum of profits or damages by original court is contrary to law.
Z t) The learned counsel for the defendant submits that for recovery of item Nos. 1 and 2 by evicting the defendant, since just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her son and daughter, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue 22
Nos. 1 to 5 have to be decided against the plaintiff and in favour of the defendant.
Z u) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed originals of Exs.B12 and B13 and thereby, there is an admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originals of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place evidence about how she is entitled for the suit reliefs, and as such the plaintiff is not entitled for the suit reliefs.
Z v) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items, and that in Para No.2 of the written statement though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
Z w) The learned counsel for the defendant submits that the Issue No.1 is wrongly framed considering the pleadings in the written statement as defence to the claims of the plaintiff and the same has to be amended.
Z x) The learned counsel for the defendant submits that P.W.1 did not say that the thumb impressions in Exs.A1 to A2 are that of her father, but expert gave opinion basing on the thumb impression in Exs.A1 to A2 as as if they are containing admitted thumb impressions and as such, opinion of the expert cannot be relied.
23
Z y) The learned counsel for the defendant submits that even though, no application is allowed for examination of Head Master, and he is ordered only to produce documents but he is wrongly examined as a witness and hence, his evidence cannot be relied upon.
Z z) The learned counsel for the defendant submits that as the defendant proved the adoption and Will through the evidence of D.Ws. 1 to 6 and marking Ex.B1 to Ex.B13 and as the adoption is ancient, the plaintiff is not having right in the item Nos.1 to 2 plaintiff schedule properties by the debts of suit the plaintiff is not entitled for the reliefs granted by the trial court and hence, the appeal may be allowed with costs and the suit in O.S. No. 651 of 2007 may also be dismissed with costs by setting aside the decree passed in
O.S. No. 651 of 2007.
12. a) The learned counsel for the respondent/plaintiff submitted the oral and written arguments and thus submits the brief and relevant facts pleaded in the plaint and written statement and brief and relevant grounds of appeal referred supra.
b) The learned counsel for the plaintiff submits that the burden is on the defendant in respect of Issue No.1 and he has to prove that he is the adopted son of Madda Nookayya and that by virtue of the last will and testatement dated 01.10.1996, he became entitled to Item Nos. 1 and 2 of the plaint schedule properties and therefore, the burden is on the defendant to prove these two facts.
c) The learned counsel for the plaintiff submits that admittedly, Item
Nos. 1 and 2 of plaint schedule properties are absolute properties of Madda
Nookayya and the plaintiff is the only daughter of him and the defendant failed to prove the adoption and also execution of Will dated 01.10.1996 by
Madda Nookayya and the plaintiff will be entitled to the reliefs claimed in 24 respect of Item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the plaintiff submits that the evidence of
D.W.2 is that she attended the adopted ceremony of defendant 50 years ago, but the age of the defendant is kept blank in the chief affidavit and as per the plaint, the age of the defendant was shown as 55 years, which is not disputed and so, according to D.W.2, the adoption took place about more than 70 years ago and as such, when the defendant is aged about only 55 years his adoption cannot take place even prior to his birth.
e) The learned counsel for the plaintiff submits that D.W.2 stated that there was document executed in the presence of elders on which the natural father Subbayya put his signature and handed over the same to the father of the plaintiff and therefore, the evidence of witness completely falsifies the claim of the defendant that he was adopted by Madda Nookayya and that
D.W.2 admitted that there are disputes between him and the plaintiff for the past eight years and there are no talking terms between them and the so called document said to have been executed was not produced and according to D.W.1, his adoption was oral and therefore, the evidence of
D.W.2 is not at all trustworthy to believe adoption.
f) The learned counsel for the plaintiff submits that D.W.3 is aged about 45 years stated that he attended the adoption ceremony of D.W.1 took place in about 50 years ago and, as such, her evidence is not believable and that too in the light of fact that she is native of Duppalapudi and her marriage was performed about 30 years ago and prior to her marriage, she has no acquaintance with the parties to the suit and never visited
Bhupalapatnam, which is the village of plaintiff and defendant and she also admitted the same and thus, her evidence does not inspire confidence in respect of the so called adoption.
g) The learned counsel for the plaintiff submits that D.W.4 being 25 natural mother of the defendant is an interested witness and she stated that except executing document nothing took place with regard to the adoption and the so called document executed by D.W.4 and her husband has not seen the light of the day and that she did not speak that they physically handed over the defendant into the hands of the father of the plaintiff, the most important and the only requirement for essential and valid adoption and when the witness does not speak about the same, the adoption does not stand to be proved and therefore, the evidence of D.Ws. 1 to 4 suffer from serious discrepancies and they do not prove that the defendant was given in adoption to the father of the plaintiff.
h) The learned counsel for the plaintiff submits that in view of evidence of P.W.3 Ex.B1 purported to have been given by P.W.3 is not believable and he denied completely all his signatures in Ex.B1 and stated that the stamp in it does not belong to their school and their school did not issue Ex.B1 and that their school was not even established till 1959 and only in the year 1959 the said school was established and this evidence of P.W.3 shows that the defendant fabricated and forged Ex.B1 in order to falsify the claim that he was adopted son of Madda Nookayya and the evidence of P.W.3 completely falsifies the case of the defendant that he was the adopted son of
Madda Nookayya.
i) The learned counsel for the plaintiff submits that Ex.B2 issued by
M.R.O. cannot have any probative value and cannot be taken as basis to hold that the defendant is the son of Madda Nookayya and besides, in Ex.
B2, it is specifically stated that it is only for the purpose of issuing pattadar passbook but it is not useful for the purpose of settling civil disputes or movable property disputes and therefore, this certificate has absolutely no value at all.
k) The learned counsel for the plaintiff submits that Ex.B4 is the “No 26
Due Certificate” issued by P.A.C.S. Bhupalapatnam and this is dated 07.09.2009 which is after filing of the suit and therefore no importance or probative value can be attached to this exhibit.
l) The learned counsel for the plaintiff submits that the defendant paid tax on behalf of Madda Nookayya and when the plaintiff herself is stated that she gave items 1 and 2 for management to the defendant, mere paying of tax does not prove that the defendant is the owner of Item Nos. 1 and 2 or that he is the son of Madda Nookayya.
m) The learned counsel for the plaintiff submits that Ex.B8 is the notice issued by Thasildar, Rajanagaram with regard to the disputes between the plaintiff and the defendant regarding Pattadar passbook and this document also has no evidentiary value.
n) The learned counsel for the plaintiff submits that the evidence of
D.W.5 and the contents in Ex.B4, and Ex.X1 clearly shows that father’s name of defendant is shown as Subbayya in Ex.X1 and therefore the entry in
Ex.B4 cannot have any value in the light of Ex.X1 and the defendant must have created Ex.B4 certificate after filing of the suit and that therefore, there is absolutely no document in support of the case of the defendant that he was the adopted son of Madda Nookayya.
o) The learned counsel for the plaintiff submits that as it is specifically put to D.W.1 that he was never adopted by Madda Nookayya, the argument is that there was no denial about the defendant being adopted by Madda
Nookayya has no force, thus defendant failed to prove that he was adopted by Madda Nookayya and that D.W.1 also stated that there was ration card to show that he and Madda Nookayya lived in one house, however, he failed to produce such ration card, as such, the defendant failed to prove the adoption.
p) The learned counsel for the plaintiff submits that the evidence of 27
P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Ex.A1 and A2 are no identical with the thumb impressions on Ex.B3.
q) The learned counsel for the plaintiff submits that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of
Madda Nookayya and when these exhibits are marked through P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya.
r) The learned counsel for the plaintiff submits that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparsion of finger prints.
s) The learned counsel for the plaintiff submits that the plaintiff has no filed rejoinder, but mere non-filing of rejoinder by the plaintiff does not and cannot be treated as admission of the pleas taken by the defendant in the written statement.
t) The learned counsel for the plaintiff submits that once the evidence of P.W.4 the Handwriting Expert is taken into consideration, then it is clear that the defendant fabricated the Will and pessed into service the said fabricated Will.
u) The learned counsel for the plaintiff submits that if really, Ex.B3 will was executed, there is no reason why the same was not produced before the
Tahasildar and the name of the defendant is not mutated in the revenue records in respect of Item Nos. 1 and 2 of the plaint schedule properties.
v) The learned counsel for the plaintiff submits that the evidence of 28 defendant clearly proves that, he has taken active role in execution of Ex.B3
Will, which in itself is a very suspicious circumstances surrounding the Will and also the attestor and scribe are closely related to defendant and though the Sub-Registrar is at a distance of 10 K.Ms. without any reason or explanation the Will was not registered.
w) The learned counsel for the plaintiff submits that, defendant did not issue reply notice to the notice issued by the plaintiff dated 22.10.2007 as by the date of issuing of notice, Ex.B3 was not brought into existence.
x) The learned counsel for the plaintiff submits that, Ex.B3 Will was not acted upon as D.W.1 admitted that 1st time he filed the same into the
Court and did not file it before any public officer.
y) The learned counsel for the plaintiff submits that the chief affidavit of D.W.1 shows that there is a blank with regard to the date of executing of
Will and in the chief examination and in the cross-examination he stated that
Madda Nookayya executed the Will on the 10th day of the year 1996, but he could not say the month, whereas, Ex.B3 propounded Will is dated 01.10.1996 and such the evidence of D.W.2 does not inspire confidence and on the other hand it raises serious suspicion.
z) The learned counsel for the plaintiff submits that the evidence of
D.W.3 shows that she does not know the date of execution is not believable and does not speak about the Madda Nookayya putting him thumb impression and herself witnessing the same and then she put her signature and Madda Nookayya witnessing the same as required under Section 68 of the Evidence Act and therefore, the evidence of D.Ws. 2 and 3 does not prove the execution of the Will by Madda Nookayya.
A1) The learned counsel for the plaintiff submits that the evidence of
D.W.6 is not at all helpful as he is neither scribe nor attestor of execution of
Ex.B3 Will and he has not stated what documents were prepared by Madda 29
Nookayya.
A2) The learned counsel for the plaintiff submits that the plaintiff failed to discharge his burden of proving Ex.B3 Will.
A3) The learned counsel for the plaintiff submits that as the plaintiff has proved that she is absolute owner of the plaint schedule properties, she is entitled for possession of items 1 and 2 of plaint schedule property and issue No.2 has to be held in favour of plaintiff and also she is entitled directing the defendant to handover vacant possessions of the Item Nos. 1 and 2 of the plaint schedule properties to the plaintiff.
A4) The learned counsel for the plaintiff submit that plaintiff is also entitled for grant of permanent injunction and for recovering damages @ of
Rs. 15,000/- (Rupees Fifteen Thousand only) per annum per acre in respect of Item Nos. 1 and 2 of the plaint schedule properties from the defendant.
A5) The learned counsel for the plaintiff submits that the plaintiff filed the cancellation deed dated 07.04.2014 wherein she contended that, her son and daughter did not accept the gift deeds and she cancelled the gift deeds along with her son and daughter under the cancellation deeds, dated 07.04.2014 and therefore since the gift is not accepted and the same is cancelled, she continues to be the owner of the Item Nos. 1 and 2 of the plaint schedule properties and she can maintain the suit.
A6) The learned counsel for the plaintiff submits that the evidence of
D.W.1 and P.W.1, P.Ws. 5 and 6 coupled with the contents in Exs.B12 and
Ex.B13 and Ex.A10 to Ex.A13, which is the evidence placed in the appeal, clearly proves that P.Ws. 5 and 6 did not accept the gift and the same stood cancelled under registered cancellation deed dated 07.04.2014, and the plaintiff continues to be the owner of the plaint schedule property and she is entitled to maintain the suit and therefore, the appellant cannot maintain this ground to set aside the decree and judgment of the trial court.
30
A7) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of originals of Exs.B12 and B13 gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of originals of Exs.B12 and B13.
A8) The learned counsel for the plaintiff submits that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to the originals of Exs.B12 to B13 and Ex.A10 to A11 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
A9) The learned counsel for the plaintiff submits that as D.W.1 admitted that the Pattadar Passbooks of Nookaiah is in his hands and title deed book is with the plaintiff, the expert opinion basing on the thumb impressions in the title deed books which are with the plaintiff is given basing on the admitted thumb impressions in title deeds and it is in accordance with the law.
A10) The learned counsel for the plaintiff submits that the trial court rightly after consideration of the entire evidence on record decreed the suit and there are no grounds to interfere with the decree and judgment of the trial Court and, hence, the plaintiffs prays to dismissal of the appeal with costs by confirming the decree and judgment of the trial court in O.S.
No.651 of 2007dated 14.03.2013.
13. Basing on the pleadings in the plaint and written statement and the brief and relevant grounds appeal and the contentions of the learned counsel 31 for all parties referred supra and the evidence on record the following points emerge for consideration.
1)Whether the defendant is the adopted son of Madda Nookayya?
2)Whether the Will propounded by the 1st defendant and said to have been executed by Madda Nookayya on 01.10.1996 is true, valid and binding in respect of Item Nos. 1 and 2 of the plaint schedule?
3)Whether the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties?
4)Whether the plaintiff is entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule
Property?
5)Whether the plaintiff is entitled to recover damages at the rate of
Rs.15,000/- per annum per acre in respect of Item Nos 1 and 2 of the plaint schedule properties from the defendant?
6)Whether there is subsisting interest to plaintiff in items 1 & 2 of plaint schedule properties ?
7)Whether the plaintiff is having absolute title to items 1 to 5 of plaint schedule properties?
8)Whether the judgment and decree of the suit in O.S.651 of 2007 on the file of 1st Addl. Senior Civil Judge’s Court, Rajahmundry required varying or modification or confirmation?
9)To what relief?
14. Points 1 to 8: These points 1 to 8 are interrelated very closely to each other. Hence in order to avoid the repetition of discussion of evidence and for the sake of brevity and convenience they are discussed in common.
15.a) The plaintiff to prove the suit claims examined herself as P.W.1 and purchaser of the land from the husband of plaintiff as P.W.2 and the Teacher in M.P.U.P.School, Bhupalapatnam in respect of Ex.B1 certificate as P.W.3 and the Finger Print Expert as P.W.4 and the son of plaintiff as P.W.5 and the daughter of plaintiff P.W.6. The defendant to disprove the suit claims examined himself as D.W.1 and the attestors of the Will Ex.B1 as D.Ws 2 and 3 and the mother of the defendant as D.W.4 and local Surveyor as 32
D.W.5 and third party scribe D.W.6.. P.W.5 and D.W.1 being the parties to the suit and P.Ws.5 and 6 being the son and daughter of plaintiff and D.W.4 being the natural mother of defendant deposed in their respective chief examinations as per the respective pleadings, claims contentions and cases of the plaintiff and defendant. The plaintiff got marked Exs A1 to A9, which are original title deed book, Original title deed book, Original gift deed
dated 09.02.1987, original sale deed dated 02.02.1971, original sale deed
dated 20.02.1971, certified copy of the sale deed, Office copy of the legal
notice dated 22.10.2007, acknowledgement and receipt dated 24.04.200 respectively and Ex.X1 to X3 which are receipt dated 24.04.2000, 3 photos and letter of Director Finger Print Bureu, Hyderabad dated 02.07.2012 respectively in the trial court and in the appellate court, Exs A10 to A13 which are Gift cancellation deed dated 07.04.2014, Gift cancellation deed dated 07.04.2014, Gift deed executed by R.W.1 in favour of Siddabathula Rajasekhar dated 18.10.2007,
Original Gift deed executed by R.W.1 in favour of Marre Atchiyamma, dated 18.10.2007 respectively.
b) The defendant got marked Exs B1 to B11, which are Certificae issued by
M.P.U.P.School Rajanagaram, Certificae issued by M.R.O. Rajanagaram, Will dated 01.10.1996, Certificate issued by P.A.C.C.S. Bhupalapatnam, Original pattadar passbook, Tax receipt, notice, certificate issued by Power Grid Corporatin limited,
dated 10.08.2007, will dated 28.02.1996 and passbook respectively in the trial
court and Exs B11 to B12 in the appellate court which are Settlement deed from the respondent in favour of her son Rajasekhar, dated 18.10.2007 and Settlement deed dated from the Respondent in favour of her daughter M.Atchiyyamma respectively.
16. The plaintiff filed the suit against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos.1and2of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3to 6 of plaint schedule properties directing the defendant and directing the defendant to pay damages of
Rs.15,000/-p.a per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit and for other reliefs. The defendant denied the claims of the 33 plaintiff by claiming that he is adopted son of Madda Nookayya and late
Madda Nookayya executed his last will dated 01.10.1996 marked as Ex.B3 and he got Item Nos. 1 and 2 of plaint schedule properties to an extent of Ac 01.19 cents in R.S. No. 391/2C in Srikrishnapatnam village and an extent of
Ac. 0.71 cents in R.S. No. 2-1/A G.Yerrampalem village in favour of him which are shown as Item Nos. 1 and 2 of the plaint schedule properties and these items are in possession and enjoyment of him and he is the absolute owner of these items by virtue of the last will and testatement executed by
Late Madda Nookayya in a sound and disposing state of mind and so far as the other items are concerned his has no claim over the same. The defendant is also claiming that he never interfered in respect of other items of plaint schedule properties and he has no claim over the same and he prays for dismissal of the suit only in respect of item Nos. 1 and 2 of plaint schedule properties with costs.
17. a) The learned counsel for the defendant cited a decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational Society Vs.
P.Subhashan and another, in which the Hon’ble High Court of A.P. held at
Para No. 20 as follows:
“[20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief Act, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff
In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by 34 adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim Arif and Anr. v. Rahmatunnisa Begum and Anr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius AIR 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma Nand Puri v. Neki Puri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and Ors. 2004 SAR (Civil) 832, where the Apex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant
Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted…...”
b) The learned counsel for the defendant cited a decision reported in AIR 2014 SUPREME COURT 937 between Union of India and others Vs.
Vasavi Cooperative Housing Society Limited and others, in which the
Hon’ble Supreme Court held at Para No. 15 as follows:
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
c) The learned counsel for the defendant also cited another decision reported in 2009 (4) A.L.T. 727 between Margadarshini Educational
Soceity Vs. P.Subhashan and another, in which the Hon’ble High Court of
Judicature, Andhra Pradesh held at Para No. 20 as follows:
35 [20] Permanent injunction or perpetual injunction is explained in Section 37(2) of the Specific Relief A ct, 1963, which reads thus:
37. Temporary and perpetual injunctions:
1) ...
2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff In order to get a permanent injunction, the plaintiff has to establish that he was in possession and enjoyment of the suit properties by the date of the suit and that balance of convenience or irreparable injury in his favour and that he has got prima facie case in which he sought for permanent injunction. It is equally well settled that the plaintiff must succeed on the strength of his case by adducing sufficient evidence and that the plaintiff cannot succeed on the weaknesses of the case put forward by the defendant in view of the decision relied upon by the learned Counsel appearing for the respondents reported in Syed Fahim A rif and A nr. v. Rahmatunnisa Begum and A nr. , wherein it was held thus:
In M.M.B. Catholicos v. M.P. Athanasius A I R 1954 SC 526, it was held that the plaintiff in ejectment suit must succeed on the strength of his own title and this can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his onus or not and a mere destruction of the respondents/defendants title in the absence of establishment of his own title carries the plaintiff nowhere. In Brahma N and P uri v. N eki P uri, it was held that in a suit for ejectment, the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the suit must fail notwithstanding that the defendant in possession has no title to the property. Strong relience also was placed on S.M.M. Kunhi Koya Thangal v. B.J.P. Dharas Committee and O rs. 2004 SA R (Civil) 832, where the A pex Court held that the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title is that the plaintiff can succeed only on establishing his title to the suit property and the plaintiff cannot succeed on the weakness of the case put forward by the defendant Therefore, the burden is on the plaintiff to show that he has got prima facie case, balance of convenience and the irreparable injury if injunction was not granted. A s P.W.1 asserts that he is the duly elected Secretary of M/s Margadarshini Educational Society by virtue of resolution, dated 14-04-2003, he must prove that he was admitted as member of the society and thereafter he was duly elected as Secretary in accordance with the provisions of the A ct and bye- laws of the society. The burden of proof has two different things. It means sometimes that a party is required to prove the allegation before the judgment is given in his favour. Unless it is shown that he was duly elected as Secretary of the society, he cannot file any suit on behalf of the society. The burden of proof also means that on a contested issue, one of the two contesting parties has to adduce evidence. Since it is denied that Ravi A nantha was the member of the society, the initial burden lies on the plaintiff to show that he was duly inducted as member of the society as per bye- laws.
d) As per the principles laid down in the above decisions and also as countered by the warned counsel for the defendant the that burden of proof of establishing absolute title to plaint schedule item Nos. 1 to 6 is upon the plaintiff and plaintiff must succeed on the strength of her case by placing evidence and she cannot succeed on the weaknesses of the case put forwarded by the defendant.
36
18. a) Exs. B2 and B8 are marked through D.W.1. Even though, in the chief examination, Ex.B2 is described as Death Extract of late Nookaiah, but at the time of marking, it is described as certificate issued by M.R.O.
containing the date of death of Madda Bodemma. On perusal, Ex.B2 shows that it is a No Objection Certificate issued by M.R.O.. In that no objection certificate, the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Further,
Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao. Further, in
Ex.B2 it is mentioned that the same is issued for obtaining Pattadar
Passbooks only and it is not useful for civil disputes and property disputes salvation. But, the defendant has not examined any person connected to
Ex.B2.
b) The learned counsel for the defendant cited the decision reported in 2007 (1) A.L.D. 253 between Mashetty Venkatesham (died) per L.Rs Vs.
Joint Collector, Medak at Sangareddy and others, in which the Hon’ble
High Court of Judicature, Andhra Pradesh at Hyderabad held at Para Nos. 7 to 9 as follows:
7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the 37 notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
8. In Palaniappa Chettiar v. Arunasdam Chettiar 1962 AC 294, Lord Denning speaking for Judicial Committee held as under:
That he made the transfer for a fraudulent purpose, namely, to deceive the public administration into thinking that he only held 99 acres of land and his son 40 acres, whereas in truth he himself meant to hold the whole 139 acres. Once this disclosure was made by the father, the Courts were bound to take notice of it, even though the son had not pleaded it....But where the fraudulent purpose has actually been effected by means of the colourable transfer, there is no room for repentance. The father has used the transfer to achieve his deceitful end and cannot go back on it. He cannot use the process of the Courts to get the best of both worlds - to achieve his fraudulent purpose and also to get his property back. The Courts will say: 'Let the estate lie where it falls'...
9. In Raj Kishan Per shad's case (supra), after referring to Palaniappa Chettiar's case (supra), this Court held as under:
It is, however, necessary to refer to Digambar Adhar Patil v. Devram Girdhar Patil , in which the effect of proceedings under the Land Reforms Legislation and the proceedings under the Tenancy Act was considered by the Supreme Court. In that case the appellant was a tenant claiming rights under Bombay Tenancy and Agricultural Lands Act, 1948. His application under Section 32-G of the said Act before the Tenancy Tribunal praying to determine the price to be paid to the land owners for the purchase of Ac.8-26 guntas was rejected on the ground that the tenant was already holding land in excess of ceiling limit. The order of the Tenancy Tribunal was reversed by the Bombay High Court. Before the Supreme Court, there was a claim on behalf of the minor son of the tenant to an extent of Ac.7-34 guntas and the claim of the tenant's brother in whose favour there was an alleged partition under which the brother was given the same land. Reliance was placed on the statement made by the land owner before the Tenancy Tribunal as well as the documentary evidence in support of partition. The Supreme Court accepted the oral evidence of the land owner before the Tenancy Tribunal as conclusive and held that if the land which fell to the share of the brother of the tenant is excluded, the latter would be within the ceiling area entitled to purchase the land form the land owners as claimed. Accordingly, the judgment of the High Court was confirmed. The facts before the Supreme Court in that case disclose that the statement made by the land owner before the Tenancy Tribunal should be given due weight while determining the rival rights of the owner and the tenant....
....Applying the principle in Digambar Adhar case (supra), it be almost held that the Land Reforms Tribunal while determining the holding of late Hari Kishan Prasad relied on the factum of an extent of Acs. 150- 96 being in possession of the protected tenants and to that extent gave benefit to the declarant. A declarant who makes a statement and gets benefit out of such statement in getting excluded that land from his holding would not be permitted to turn around at a later stage; in 38 this case at the stage of issue of ownership certificate to the protected tenant to resile from the statement made before the Land Reforms Tribunal. The same would amount to fraud on public administration.
c) Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that as the plaintiff applied to Mandal
Revenue Officer, Rajanagaram, for issuing Ex.B2 as admitted by her in her cross-examination and she did not challenge Ex.B2 in appeal within time, she cannot change her stand and say that the defendant is not legal heir of
Nookaiah and it amounts to fraud on the public authority that is Court or operate as Estoppel. The learned counsel for the defendant also submits that the plaintiff is prevented from contending in the teeth of Ex.B2 that defendant is not heir of Nookaiah and thereby, the case of plaintiff that she is the absolute owner of the plaint schedule properties as sole heir of
Nookayya failed. In this regard, the plaintiff did not accept the adoption of defendant before revenue authorities.
d) There is no evidence placed to show that the plaintiff admitted the adoption of the defendant before the revenue authorities. In Ex.B2 it is mentioned that the same is for the purpose of issuing pattadar passbook, but not useful for the purpose of settling civil disputes or movable property disputes.
e) P.W.1 stated in her cross-examination that that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said will and he objected for the same. She also stated that she received the said notice from the M.R.O., after filing of the suit.
She also stated that she cannot file, the said notice copy since it was misplaced. She also stated that they applied to the M.R.O. for issuing legal heir certificate of her mother. In the cross-examination of her dated 11.03.2015 in the appeal, she has stated that she did not apply to M.R.O. /
Tahasildar for mutation of her name in Revenue Record for plaint schedule 39 property. She also stated that it is not true to suggest that they applied to
M.R.O. for issuance of Legal Heir Certificate after the death of her mother.
She also stated that it is not true to suggest that she admitted in her cross examination before II Addl. Senior Civil Judge, Rajahmundry that they applied to M.R.O. for issuance of legal heir certificate of her mother. She also stated that it is not true to suggest that Ex.B2 was issued by M.R.O.,
Rajanagaram that she and defendant are legal heirs to her mother,
Bodamma. She also stated that it is not true to suggest that when M.R.O.
issue dnotice for production of pattadar pass book and title deed boosk along with title deeds in the name of their father, for issuance of new pattadar and title deed books in their respective names.
f) The above facts clearly show that she denied about Ex.B2. The admission of P.W.1 is in respect of mere applying to M.R.O. for issuing legal heir certificate of her mother, but not for applying jointly to M.R.O.
Rajanagaram to issue Ex.B2. Ex.B2 is marked through D.W.1. Nothing is elicited in respect of Ex.B2 when P.W.1 was cross-examined on 06.08.2009.
Thereby, it can be safely held that the plaintiff did not admit that she applied to M.R.O., Ranagaram for issuing Ex.B2 as contended by the learned counsel for the defendant. In those facts and circumstances, the principles laid down in the decision reported in 2007 (1) A.L.D. 253 referred supra is not applicable to the facts in this suit. Hence, Ex.B2 is not of any use for the defendant to prove his claims.
g) The learned counsel for the defendant cited another decision reported in 2007 (3) A.L.T. 720 between V.Krishnaiah and others Vs.
Joint Collector, Mahabubnagar and others, in which the Hon’ble High
Court of Judicature of Andhra Pradesh at Hyderabad held at Para Nos 15 and 21 as follows:
15. The regularization of an alienation under Section 5-A of the Act, is akin to the relief of specific performance of an agreement of sale, under the 40 provisions of the Specific Relief Act . From the point of view of procedure, various hurdles, which, a plaintiff in a suit for specific performance has to face, have been removed under Section 5-A . The provisions of the Transfer of Property Act and the Registration Act are saved. However, on a close examination of the relevant provisions, it becomes evident that the relief under Section 5-A can be granted only when there is no dispute as to the execution of the document concerned. The emphasis is mostly on, verification of possession over the property, existence of a document, collection of stamp duty, and registration charges and then issuance of a certificate of regularization. This, in turn, would lead to the amendment of corresponding entries in the revenue records. The scope of inquiry is very limited. Sub-section (1) thereof presupposes the existence of an alienation or transfer made or effected otherwise than through a registered document. The focus of the enquiry is mostly to examine the date, on which the alienation has taken place and whether the alienation, or transfer contravenes the provisions of the enactments mentioned in proviso to Sub-section (2). After satisfaction on these two aspects is ensured, the Recording Authority would require the applicant to deposit of the amount, representing the stamp duty and registration fees.
21. The experience shows that, wherever the Legislature had intended to confer the power of a civil Court upon an administrative or quasi-judicial authority, or a different forum, either an independent, procedure is prescribed or the one, that applies to civil Courts is extended to them. To the extent the power of adjudication is conferred on the alternative fora, the jurisdiction of the civil Courts is taken away through specific provisions of law. This becomes necessary because the jurisdiction of a civil Court is comprehensive. Further, the exclusion of jurisdiction of the civil Courts would depend upon the efficacy of the remedy that can be granted by the alternative forum. If the matter is examined on the touchstone of these principles, it emerges that hardly any powers of a Court to adjudicate the disputes are conferred upon the Recording Authority. He cannot record evidence. He is not trained to adjudicate the disputes involving complicated questions, such as capacity to contract, succession, testamentary, or otherwise, limitation etc. Therefore, the irresistible conclusion is that the jurisdiction of the Recording Authority under the Act in relation to the regularization under Section 5-A is confined to cases, where, no dispute exists as to the execution of the document. If there is any dispute as to the execution of the document or any other contentions are raised, the dispute has, invariably to be adjudicated by a civil Court.
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that Ex.B2 cannot be challenged in civil court and the proceedings are binding on the parties and so their rights over the properties are regulated by those proceedings and as such, the plaintiff title over the item Nos. 1 to 5 stood disproved. But, in this regard, as stated earlier, in Ex.B2 it is mentioned that the same is issued for obtaining
Pattadar Passbooks only and it is not useful for civil disputes and property disputes salvation. Further the defendant has not examined any person connected to Ex.B2. Ex.B2 shows it is a no objection certificate issued by
M.R.O., and in it, it is mentioned that the date of death of Madda Boddemma w/o. late Nookaiah is mentioned as 08.01.2004. It is also mentioned that 41 the plaintiff is the daughter of Madda Bodemma and plaintiff is aged about 45 years. Madda Venkata Raju is mentioned as son of Madda Bodemma, aged about 50 years. The name of the defendant is Madda Venkata Rao.
In the light of the above facts, the defendant cannot claim, in the absence of evidence to prove that plaintiff admitted the adoption of defendant before any Revenue Authorities and that Ex.B2 cannot be challenged in this court and it has to be believed. In those facts and circumstances, the principles laid down in the above decision are not applicable to the facts in this suit.
19) In respect of Ex.B8, in the chief examination, D.W.1 stated that Ex.B8 is the tax receipt. But at the time of marking, in the evidence of D.W.1 in his chief examination it is mentioned as the notice issued by Tahasildar,
Rajanagaram. On perusal of Ex.B8, it shows that it is an urgent notice issued to Sri Siddabathula Bojjayy, Srikrishnapatnam informing him to attend inquiry on 29.10.2007 at 11.00 a.m. in respect of an inquiry as he refused to receive the notice after keeping the title deed of the lands in S.No. 02.1A to an extent of Ac. 0.71 cents and S.No. 391/2c to an extent of Ac.1.19 cents for which, Sri Modda Venkata Rao and his sister are legal heirs of Madda
Nookaiah. Nobody connected to Ex.B8 is examined by defendant. Ex.B8 is only a notice regarding the dispute between Madda Venkata Rao and his sister and even assuming that the said Madda Venkata Raju is the defendant and his sister is plaintiff and an inquiry is conducted in respect of the lands mentioned supra and a notice was issued to Siddabathula Bojjayya, but, basing on that, there is no reason how the defendant can claim that it is helpful to prove his claims in respect of item Nos. 1 and 2 of plaint schedule properties.
42 20 a) P.W.1 in her cross-examination has stated that defendant is in possession of Item Nos. 1 and 2 of plaint schedule properties. But she claimed that he is in forcible possession. She also stated that the possession of the defendant is only for the last four years, but she has no document to prove the same. She admitted and stated that they applied to M.R.O. for issuing legal heir certificate of her mother. She denied these suggestion and stated that it is not true to suggest that M.R.O. issued legal heir certificate as herself and defendant are the legal heirs of her mother. P.W.1 also stated in her cross-examination that it is true that she received a notice from the M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property, pursuance of the said Will and she objected for the same. She also stated that she received the said notice from the M.R.O. after filing of the suit. She further stated that she cannot file the said notice copy since it was misplaced.
b) The learned counsel for the plaintiff submits that as M.R.O. is being a statutory authority as per Section 4 of Pattadar Passbook Act, can issue legal heir certificate after conducting inquiry under Section 5 (a) of the Act and plaintiff did not dispute Ex.B2 by filing appeal within one year. M.R.O.,
Rajanagaram issued proceedings under Ex.B2.
c) The learned counsel for defendant also further submits that as
P.W.1 admitted that she received notice from M.R.O. on the application submitted by the defendant for issuing pattadar passbook for the schedule property in pursuance of the said Will, that plaintiff cannot take a different and new stand before this Court. The learned counsel for the defendant cited another decision reported in 2007 (1) A.L.T. 253 between Mashetty
Venkatesham (died) per L.Rs Vs. Joint Collector, Medak at
Sangareddy and others, in which the Hon’ble High Court of A.P. held at
Para Nos. 7 and 10 as follows:
43 “7. In Pratapani Salaiah's case (supra), the father of the plaintiff (petitioner in civil revision petition) by name, Janardhan, filed a declaration before the LRT claiming that he had adopted the plaintiff and, therefore, he is entitled to 2 Standard Holdings (SHs). The same was accepted by. the LRT. In the plaintiffs application for injunction, the second defendant who is natural son of Janardhan disputed adoption inter alia on the ground that plaintiffs adoption was only for the purpose of ULC Act . This Court rejected the plea observing as under:
In my opinion, prima facie the parties cannot be permitted to plead one legal relationship before the land ceiling authorities and another relationship when the matter comes to the civil Court. The fact that defendants 1 and 2 were not parties to the land ceiling proceedings does not make any difference inasmuch as they are claiming through late Janardhan as his legal heirs. Further, they had the benefit of the said plea taken before the land ceiling authorities. If indeed they can be permitted to blow hot and cold, it will become necessary for the Court to consider whether the matter should not be brought to the notice of the District Collector or the concerned land ceiling authorities for resumption of the land in excess of one standard holding. / am, therefore, in disagreement with both the Courts on this question and I hold that as a matter of public policy, the parties cannot be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the land ceiling authorities. On that basis, the defendants cannot be permitted to reopen the question of the plaintiffs adoption at this juncture. I, therefore, hold that the plaintiff has made out a prima facie case with regard to his title as an adoptive son of late Janardhan.
10. As noticed, the deceased-first petitioner claimed the property to be joint family property and did not demour when l/4th share was computed to his share in land ceiling proceedings. His legal heirs cannot now be permitted to take a different stand before the authorities under RoR Act. The first respondent, therefore, came to the correct conclusions and there is no infirmity or misdirection in placing reliance on the certified copy of the order passed by the LRT.”
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that plaintiff is prevented from changing or taking different stand from the stand already taken before statutory authority or before Judicial Authority and Ex.B2 and Ex.B8 proceedings are statutory in nature and they cannot challenged in Civil court and the same are binding on the plaintiff or parties to the said proceedings.
c) The evidence of P.W.1 does not show that she has accepted the adoption before the Revenue Authorities. If that is so, there is no force in the contention of the learned counsel for the defendant that plaintiff has admitted about adoption in view of Exs. B2 and B8 and so, she cannot challenge the adoption before this Court. Unless and until the defendant proves that the plaintiff admitted the adoption before the Revenue
Autorities, the defendant cannot claim that the plaintiff cannot challenge the 44 adoption of the defendant in this court. In view that basing on the Exs. B2 and B8, the defendant cannot claim that the M.R.O. after conducting due inquiry issued Exs. B2 and B8 and plaintiff has obtained benefits from the
Statutory authority and she is not entitled to take different stand in this court. Hence, there is no force in the contention of the learned counsel for the defendant that because Ex.B2 is not challenged by filing of an appeal within a period of one year, the plaintiff cannot challenge here and say that the defendant is not the legal heir of Nookaiah as there is no evidence placed by the defendant to show that the plaintiff has admitted that the defendant is an adopted son of late Nookaiah, before Revenue Authorities.
21 a) The evidence of P.W.1 and D.W.1 clearly prove that Item Nos. 1 and 2 of plaint schedule properties are the absolute properties of Madda
Nooaiah and the plaintiff is the daughter of Madda Nookaiah It is the defendant, who is claiming that he is adopted son of late Madda Nookaiah and Madda Nookaiah has executed the Will dated 01.10.1996, which is marked as Ex.B3. The defendant is claiming that he was adopted by the
Madda Nookaiah and his wife about 50 years and he is living with Madda
Nookaiah till the date of death of Madda Nookaiah.
b) D.Ws.2 and 3 corroborated the evidence of D.W.1 in their chief examinations regarding adoption of defendant by late Nookaiah. In the cross-examination, D.W.2 stated that that the adoption ceremony was performed in the house of father of plaintiff, in the presence of three elders and the defendant was handed over by his natural father to the father of the plaintiff through his hands. He further stated that Vyshanva Purohit of their caste was called and he chanted mantras. He also stated that no invitation cards were printed for the adoption ceremony of the defendant . He also stated that a document was executed in the presence of elders, on which,
Subbayya put his signature and handed over to the father of the plaintiff. He 45 also stated that he cannot say the year of said adoption, but it was held more than 70 years back. He also stated that he never went to the school to verify records to find out whether the defendant was admitted by the father of the plaintiff. He also stated that he saw the papers pertaining to loan obtained by the defendant and father of plaintiff but he canot say the description of those documents. He further stated that no documents pertaining to partition of property between Nookayya, plaintiff and defendant was scribed by Karanam. He also stated that himself, defendant Issa Koti
Seshamma (D.W.3) and Gummadi Srinu attested the Will of Nookaiah in the year 1996 on the 10th, but he cannot say the month. He further stated that he studied upto 5th call. He also stated that he cannot say date of his marriage. He also stated that as he saw the above incident the year of Will is remained in his memory, therefore, he is unable to recollect the said year.
He also stated that the Will was executed at 10.00 a.m. He further stated that he does not know whether the said Will is registered or not. He also stated that nearly one hour is taken for completion of the Will. He further stated that after the execution of the Will it remained with Nookaiah and he did not see it again. He further stated that Abbulu scribed the Will in their presence. He further stated that he does not know the contents of the said
Will. He further stated that after completion of the scribing of the Will the above referred four persons put their signatures. He further stated that they handed over the Will to Nookaiah. He also stated that that is all taken place in their presence.
c) In the chief affidavit of D.W.2, only the month and year of the Will are mentioned, but not the date of the Will. In the chief affidavit of D.W.1, the age of D.W.1 is not mentioned. D.W.1 was cross-examined on 13.04.2010 before the Court and at that time, he stated that his age is 60 years. But, the defendant’s age is shown as 55 years in the plaint. The alleged adoption according to D.W.2 as stated earlier was taken place about 46 more than 70 years ago. Further, the evidence of D.W.2 that a document was also executed in the presence of elders on which Subbayya, the natural father of defendant put his signature and handed over the same to the father of the plaintiff clearly prove that the claim of the defendant that he was adopted by Madda Nookaiah, is not believable since no document is filed to prove the same and, on the other hand, the adoption claimed by D.W.1 is oral and there is no document executed at the time of adoption. D.W.2 admitted that his house and the house of plaintiff are situated side by side.
He also admitted and stated that it is true that the used water being discharged from the house of plaintiff flows in front of his house. He denied the suggestion and stated that he has no talking terms with the plaintiff for the last 8 years as used water discharged from the house of plaintiff is flowing infront of his house. But, the admission of D.W.2 about flowing of discharge water from the house of plaintiff in front of his house shows that
D.W.2 is interested witness and that is the reason why even though he cannot describe the documents pertaining to the loan obtained by the defendant and father of the plaintiff has stated that he saw the papers.
Further, he stated that he did not verify the school records to find out whether the defendant was admitted by the father of the plaintiff. These facts shows clearly stated earlier that the evidence of D.W.2 is the case of the defendant.
d) D.W.3 stated that her age is 45 years. In the cross-examination, she has stated that her marriage was performed 30 years back. She also stated that prior to her marriage she has no acquaintance with the parties to the suit and she never visited Bhupalapatnam. She also stated in her chief examination that she attended the adoption ceremony of defendant, which took place about 50 years ago as claimed by the defendant. Thereby, it can be safely held in the light of the evidence of D.W.3 that she could not have 47 possibility to attend the alleged adoption ceremony and hence, her evidence is also does not in spire the confidence to the so called adoption.
22 a) D.W.4 is the natural mother of D.W.1. She stated in her cross- examination that the defendant was given in adoption to the father of the plaintiff and he took him in adoption and a document was executed by him and her husband and gave it to the father of the plaintiff. She also stated that by executing a document by her and her husband, they sent the defendant to the house of the father of the plaintiff that was all happened and that is mentioned by adoption. She also stated that the defendant did not join with her husband by selling the property. She also stated that she does not know in which school the defendant studied. She also stated that the defendant brought her to Court. In the light of the above statements of
D.W.4 and as the D.W.4 is the natural mother of the defendant and the documents stated to have been executed is not filed into the court, it can be safely held that the evidence of D.W.4 is not believable.
b) The learned counsel for the plaintiff submits that D.W.4 did not speak about physically handing over of the defendant into the hands of the father of the plaintiff, which is most important and the only requirement for essential and valid adoption. In this regard, D.W.4 stated in her chief affidavit that herself and her husband delivered minor Venkata Rao to
Nookaiah and his wife Bodemma at the time of adoption, ceremony took place and their purohit performed puja and that therafter, we had a feast.
In the light of the said fact there no force in the contention of the learned counsel for the plaintiff that P.W.4 did not speak physical handing over the defendant into the hands of the father of the plaintiff, but as stated earlier, the evidence of D.W.4 is not inspiring the confidence as the documents stated to have been executed by herself and her husband are not filed into 48 the court and further, on the other hand, the claim of the defendant is that it is an oral adoption.
23. a) In respect of Ex.B3 Will dated 01.10.1996 apart from the fact that
D.W.2 attestor is an interested witness and D.W.3 whose marriage was performed about 30 years back has stated that adoption ceremony took place about 60 years ago and thereby, herself attending the alleged adoption is not believable and D.W.4 is interested witness being natural mother of the defendant, the plaintiff has taken steps for sending Ex.B3 will to hand writing expert to compare it with the admitted thumb impression of Madda
Nookayya available on Exs.A1 and A2 which are the title deed books in respect of item Nos. 1 and 4 of plaint schedule properties and 2 and 6 of plaint schedule properties respectively.
b) The hand-writing expert, P.W.4 compared the thumb impressions in Exs.A1 and A2 with the thumb impressions in Ex.A3 and gave his opinion that the thumb impressions of Exs.A1 and A2 are not identical with the thumb impressions in Ex.B3. His opinion is marked as Ex.X2 and covering letter is marked as Ex.X3.
c) The learned counsel for the defendant submits that the evidence of
D.Ws. 2 and 3 is in compliance with Section 68 of I.E. Act and thus the defendant has proved Ex.B3 Will and that the plaintiff obtained Expert opinion which is only an opinion evidence and circumstances do not support the report and that part P.W.1 herself did not prove the thumb impressions of late Nookayya on the alleged title deed pass books referred to for comparison and that the opinion of the Expert is secondary evidence and it does not supersede the primary evidence of direct witnesses and that the
Expert’s opinion is hearsay evidence and cannot be relied upon for any purpose and there is no principle that the expert opinion on thumb mark is a 49 definite science and can be relied upon. The learned counsel for the defendant also submits that the documents sent for comparison of thumb impression with the disputed, was not proved to be that of late Nookaiah, unless it is proved expert opinion has no bearing and so PW.3 evidence and report have no real value. So the evidence PW4 has to be brushed aside.
d) On the other hand, the learned counsel for the plaintiff submits that the evidence of P.Ws. 2 to 3 in respect of Ex.B3 Will, in the light of evidence of P.W.4, expert to give to give opinion that opinion in Ex.X2 covering letter Ex.X3 clearly prove that the thumb impression on Exs.A1 and
A2 are not identical with the thumb impressions on Ex.B3 and that it is argued that there is no proof that thumb impressions on Exs.A1 and A2 are that of Madda Nookayya and when these exhibits are marked through
P.W.1, no cross-examination was done on this aspect suggesting it to P.W.1 that the thumb impressions of Ex.A1 and A2 do not belong to Madda
Nookayya and therefore, it is now futile to argue that there are no admitted thumb impressions of Madda Nookayya and that science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt and hence, the evidence of Finger Print Expert P.W.4 is a perfect science relating to the comparison of finger prints if any.
e) The learned counsel for the defendant cited a decision reported in 1983 Crl.L.J. 858 between State of Rajasthan Vs. Dr. J.P.Sharma and others, in which the Hon’ble High Court of Rajasthan held at para No.17
17. It is the duty of the prosecution to prove that the specimen writings are of the accused and only then the question can arise as to whether the opinion of the handwriting expert who compared the specimen writings with the writing on the questioned documents that they are of the same person, should be relied upon or not.
As per the principles laid down in the above decision cited by the learned counsel for the defendant and in the light of the rival contentions, the evidence of P.W.4 Hand Writing Expert has to be considered and before that it has to be seen whether thumb impressions on Exs.A1 and A2 are that 50 of Madda Nookayya. As the said thumb impressions are taken as basis for comparison in thumb impressions in Ex.B3 Will. Exs.A1 and A2 are marked through P.W.1. Nothing contra is elicited in the cross-examination of P.W1.
to prove that the thumb impressions on Exs.A1 and A2 are not that of
Madda Nookayya. It is not even suggested to P.W.1 that the thumb impressions on Exs.A1 and A2 are not that of Madda Nookayya. Exs.A1 and
A2 are issued by Mandal Revenue Officer, Rajanagaram to late Madda
Nookayya. No evidence is placed by the defendant to prove that thumb impressions in Exs.A1 and A2 are not that of Madda Nookayya. D.W.1 also not stated that the thumb impressions in Exs.A1 and A2 are not that of
Madda Nookayya. In those facts and circumstances, as Exs.A1 and A2
Pattadar passbooks were issued by Mandal Revenue Officer, Ranagaram in the name of Madda Nookayya, it can be safely held that the thumb impressions in Exs.A1 and A2 are that of late Madda Nookayya. Thereby, there is no force in the contention of learned counsel for the defendant that the thumb impression in Exs.A1 and A2 are not admitted thumb impressions of the Madda Nookayya. In the light of the said fact, the evidence of P.W.4 has to be considered.
d) P.W.4 in his chief examination stated that he has got taken photographs of the disputed and admitted thumb impressions in his presence through the photographer, Finger Print Bureau, Hyderabad. He also stated that he examined the clarity and compared the disputed thumb impression with the admitted thumb impression and found that 1) the admitted thumb impression marked “ is smudged and not clear and wanting in clear ridge characteristic required for he purpose of establishing identity.
Hence, the admitted thumb impression marked A is unfit for comparison. 2)
The disputed thumb impression marked D is not identical with the admitted thumb impression marked Ex.A-1 of Madda Nookayya. He also stated that the opinion C.No.91/U4/F.P.B. C.I.D./2012 along with three photo copies are 51 now marked as Ex.X1. He also stated that the covering letter dated 02.07.2012 of their office is now marked as Ex.A2.
In the cross-examination he stated that they compared disputed thumb impressions with standard thumb impression and they gave their opinion. He also stated that it is true he did not mention about comparison of disputed thumb impression with that of standard impression. He also stated that according to him there is nothing standard thumb impression, so they have not used the word standard impression is his report. He further stated that it is true they have not mentioned size, shape, width. He also state that it is true in circumstances like peeling of skin of the thumb impression due to certain skin diseases (permanent) or other extreme circumstances the chance of obtaining clear impressions is not possible. He also stated that he did not mention in his report about two thumb impressions A and A1 are that one person or not since he found that A1 is unfit for comparison. He also stated that he is unable to say with his experience whether A, A1 belongs to same person or not.
The above facts stated by p.W.4 in his chief and cross-examination clearly prove that though, he has not used the standard thumb impression in his report and not mentioned the shape, width and other measurements of both A,A1 and D Thumb impressions as stated by him, mentioning the same or those particulars for comparison of the thumb impressions or not necessary that the opinion and evidence of expert P.W.4 can be relied upon.
e) The defendant has not placed any evidence to prove that there is any peeling of skin of thumb due to certain skin diseases or other extreme circumstances, due to which, there were no chances of obtaining clear thumb impressions. In those facts and circumstances, it can be safely held that the evidence of P.W.4 is believable, which shows that the thumb impression in Ex.B3 will is not that of the late Madda Nookayya.
52
24. a) The Hon’ble Supreme Court, in the decision cited by he learned counsel for the plaintiff in AIR 1979 Supreme Court 1708 between Jaspal
Singh Vs. State of Punjab and Jindra and another Vs. State of Punjab, in which the Hon’ble Supreme Court held at Para No. 8 as follows:
8. Learned Counsel for the appellants also relied on the evidence of Dr. Mohinder Partap PW. 1, who has stated that the deceased had reached the hospital on 4.8.71 at 2 a.m. Although the injured was speaking same thing his statement could not be recorded. On the other hand, the witness recorded the statement of the mother Tej Kaur who seems to have given a different version and suggested that her son Bhupinder Singh deceased had an injury on his abdomen which was caused by the falling of a bag containing wheat on his stomach. The thumb impression of Tej Kaur was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaur. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr.K.S. Puri clearly demonstrates that the thumb impression on the statement Exh.P B was not that of Tej Kaur but was of some other woman who appears to have falsely represented to the Doctor that she was the mother of the deceased. This is supported not only by the fact that the thumb impression of Tej Kaur on the statement of P.B was forged but also by the categorical statement of PW 6 wherein she denied having made any such statement before the Doctor. The Doctor although examined as a witnessess in court was never made to identify Tej Kaur who was also one of the witnesses, nor was any application given by the accused that the Dr should be called upon to identify Tej Kaur, PW. 6 in order to test the validity of the statement that it was really Tej Kaur who made the statement Exh P.B. before the Doctor. In these circumstances, therefore, the evidence of the Doctor does not appear to be of any assistance to the defence.
Basing on the principles laid down in the above decision, the learned counsel for the plaintiff submits that identifying thumb impression is an exact science and does not admit any mistake or doubt.
b) In this regard, the learned counsel for the defendant cited another decision reported in 2011 (5) A.L.D. P.5, in which the Hon’ble High Court held at para Nos.36 as follows:
36. …… Further the learned trial Court failed to consider the fact that DW- 5, the finger print expert stated in his evidence that the thumb mark of the first Defendant found on first page of Ex.A-1 is only identical with that of his admitted thumb mark but the other thumb marks were not fit for comparison for want of clear cut ridge characteristics. Even the science relating to the comparison of finger prints is not perfect science and in our view the learned trial Court gave undue emphasis to the opinion expressed by DW-5 finger print expert …….
Basing on the principles laid down in the above decision, the learned counsel for the defendant submits that the opinion of the expert is 53 secondary evidence and it will not supersede the primary evidence of direct witnesses.
c) The learned counsel for the defendant also submits that the Hon’ble
Supreme Court in the decision reported in AIR 1971 S.C. 1708 referred supra has not laid any principle that expert is opinion on thumb mark is distinct science and can be relied upon. But, it has recorded the contention of the appellant’s counsel in Para No.8 of the said judgment, but on careful consideration of the decision reported in AIR 1979 S.C. 1708, referred supra it can be safely held that the said principle is not the contention of the learned counsel for the appellants in that decision, but it is the observation or principle held by the Hon’ble Supreme court that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. In those facts and circumstances, as per the principles laid down in the decision reported in AIR 1979 S.C. 1708, referred supra and also as even the evidence of D.Ws. 2 to 4 out of which, the defendant is claiming that defendants 2 and 3 are eyewitnesses being attestors is also not believable, it can be safely held even by consideration of the principles laid down in the above decision reported in 2011 (5) A.L.D. page 4 supra, that the defendant miserably failed to prove that the thumb impression in Ex.B3 is that of the late Madda Nookayya. On the other hand, the plaintiff through the evidence of expert as P.W.4 coupled with the contents in Exs.X1 and X2 and the evidence of D.Ws. 2 to 3 proved that thumb impression in Ex.B3 is not that of Madda Nookayya. Further, as contended by the learned counsel for the plaintiff, if really, Ex.B3 will was executed by late Madda Nookayya, there was nothing preventing the defendant from mutating his name in respect of item Nos. 1 and 2 of plaint schedule properties in the revenue records.
54
d) D.W.1 in the cross-examination stated that Pattadar Passbooks of
Madda Nookayya is in his hands and title deed book is with the plaintiff. He also stated that as per the Will, Ex.B3 Nookaiah bequeathed item Nos. 1 and 2 of schedule property in his favour. He also stated that as he was cultivating item Nos. 1 and 2 of schedule property he did not apply for mutation of his name in respect of item Nos. 1 and 2 in the revenue records immediately after death of Nookaiah. He also stated that after the death of his wife of Nookaiah in the year 2004 he applied in the year 2005 for mutation. He also stated that for the first time he filed Ex.B3 will in the
Court and prior to that he did not file the will before any public Officer as there were no disputes. He also stated that when he asked the plaintiff to give the revenue title deed book for mutation, though she agreed to give the said book but she postponed the matter and later got issued a notice. He also stated that Ex.A8 acknowledgement contains his signature.
The above facts stated by D.W.1 clearly prove that he never produced the Will before the Tahasildar at the time of requesting mutation of his name, in respect of item Nos. 1 and 2 of plaint schedule properties.
e) D.w.1 has stated in his cross-examination that he was present at the time of execution of the Will Ex.B3 without seeing the document. He also stated that the said Will was executed two months prior to the death of
Nookaiah at the house of Nookaiah. He also stated that the at the time of execution of the said Will Nookaiah was moving around. He also stated that
Rajanagaram is nearly 10 k.m.from Bhoopalapatnam. He further stated that there is a sub-registrar office at Rajanagaram. He also stated that
Registration of documents with regard to alienation or purchase of properties of Bhoopalapatnam are made at the sub-registrar Office at Rajanagaram. He also stated that the plaintiff herein and her mother Boddemma were also present at the time of execution of the Ex.B3 Will. He further stated that out 55 of trust between himself and Nookaiah, he did not get the Will Ex.B3 registered. He further stated that K.Abbulu scribe of Ex.B3 Will is not a document writer. He also stated that all the three attestors are resident of
Bhoopalapatnam. He also stated that the Will Ex.B3 was executed at 10.00 a.m. He further stated that he brought all the three attestors for the purpose of attesting the Will. He also stated that he went and brought the scribe
Abbulu for scribing Ex.B3 Will. He further stated that all the documents including pattadar passbook and title deed book were available with
Nookaiah by the date of execution of Ex.B3 Will. He further stated that passbook and documents were referred for scribing Ex.B3. He also stated that four days after execution of the Will Nookaiah handed over the will
Ex.B3 and pass book and title deed pertaining to Yerrampalem property and similarly the pass book and title deed pertaining to Srikrishnapatnam, Tuni.
He also stated that Yesubabu is his natural younger brother. He also stated that Vissakoti Seshamma is the mother-in-law of son of Yesubabu. He also stated Gummadi Srinu is his nephew i.e., son of his natural younger sister.
He also stated that Beera Subba Rao is he husband of Bodemma’s sister. He also stated that K.Abbulu is the younger brother of his wife.
f) The above facts stated by D.W.1 clearly prove that the defendant has taken active role personally in securing the attestors and scribe for execution of Ex.A1 and all of them are closely related to him as Yesubabu is his natural younger brother, Vissakoti Seshamma is the mother-in-law of son of Yesubabu, Gummadi Srinu is his nephew i.e., son of his natural younger sister and Beera Subbarao is the husband of Boddemma’s sister and thereby all the three attestors are closely related to him and further scribe
K.Abbulu is the younger brother of his wife. These facts in the light of the fact that defendant did not choose to give any reply notice when the plaintiff got issued legal notice dated 22.10.2007 under Ex.A7, after receipt of the same under Ex.A8 and also admittedly he did not file Ex.B3 before 56 any Public Officers clearly prove that Ex.B3 is surrounded by suspicious circumstances and as held by the trial court, the defendant miserably failed to prove the execution of Ex.B3 will by late Madda Nookaiah bequeathing item Nos. 1 and 2 suit schedule properties to defendant.
g) In the decision reported in 2012 (4) A.L.D. 618 between
T.Bheem Reddy and another Vs. P.Laxmi Bai and others, in which the
Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision, in the present case , merely basing on the fact that the plaintiff has not filed rejoinder disputing the adoption or Will claimed by the defendant, it does not and cannot be treated as an admission of plea taken by the defendant in the written statement. In view of that, even though, the plaintiff has not filed rejoinder disputing the adoption or Will propounded by the defendant, the defendant failed to prove execution of Ex.B3 Will and adoption propounded by him.
25. a) D.W.1 stated in his cross-examination that he does not remember the year in which he was given in adoption to the Nookaiah. He further stated that he is having a ration card to show that himself and Nookaiah living in one house. He also stated that he studied up to 3rd call in
Bhoopalapatnam. He further stated that he discontinued his studies after 3rd 57 class. He further stated that Ex.B1 study certificate is obtained subsequent to the filing of the suit.
b) In respect of Ex.B1, it is purported to have been given by P.W.3.
P.W.3 categorically stated in his chief examination that “ I am working as teacher, in M.P.U.P. School, Bhupalatnam. I received summons from the
Court, in which no direction was given to us to bring any register. Our school was established on 06.05.1959. Ex.B1 is the date of Birth and tudy certificate and it does not contain his signature and the desgination stamp on Ex.B1. Ex.B1 does not belong to their school. The handwriting in ex.B1 is not my handwriding. Since last three years I am working as Head Master in the above School. Prior to that he worked as teacher in the above school for about 5 years. Total since last 8 years I am working in that school. Ex.B1 certificate is not issued by their school, since their school was established in the year 1959 the registers from 1955 to 1959 does not exist”. In the cross-examination, he has stated that presently he is working in M.P.
Elementary School, at Kovvur. He further stated that he did not bring the school record today. He further stated that he does not know the contents of the court summons served on him, but when he came to Court, to know for what purpose he was summoned by the court, his evidence is recorded by the court. He further stated at the relevant time the school was not in existence. He further stated that his name is K.Ugandhar Varma and he volunteers and stated that he did not issue Ex.B1. He further stated that the writing and signature in Ex.B1 does not belong to him. He also stated that there is no record in their school to show that when the school was established. He further stated that he did not produce any record relating to the school.
c) The above evidence of P.W.3 clearly shows that Ex.B1 was not issued by P.W.3 or his school. If really, Ex.B1 was issued by P.W.3 or 58
M.P.U.P School, Bhoopalapatnam, in which P.W.3 was working as teacher, defendant should have placed evidence in proof of the same. But, the defendant did not place any evidence to prove that Ex.B1 was issued by the
M.P.U.P. School, Bhupalapatam.
d) The learned counsel for the defendant submits that P.W.3 though summoned to produce School Register of M.P.U.P.School of the year 1959, the witness did not bring records and not directed to give evidence yet the evidence of PW.3 recorded in chief in the absence of defendants/Appellants counsel etc, so his evidence has no legal sanctity under law. In respect of this contention of the learned counsel for the defendant, even assuming that
P.W.3 was summoned only to produce documents, but not for giving evidence, but since his evidence is recorded, though the learned counsel for the defendant submits that the chief examination of P.W.3 was recorded in his absence since the defendant’s counsel conducted the cross-examination of P.W.3 merely because he was not summoned to give evidence, the defendant on whom the burden is there to prove that the contents in Ex.B1 though it is marked in the absence of evidence placed by him, cannot claim that Ex.B1 is proved. As such, in the absence of evidence of P.W.3 also, since the defendant has not placed any evidence to prove Ex.B1, it can be safely held that the defendant failed to prove Ex.B1.
26. a) D.W.1 stated that he has ration to show that himself and Nookaiah were living in one house, but no ration card is marked by the defendant.
D.W.1 got marked Ex.B4 which is the No Due Certificate issued by P.A.C.S.
Gopalapatnam, it is dated 07.09.2009. Ex.B4 is given subsequent to the filing of the suit. It does not show that defendant has any concern with the suit properties or he had taken loan from P.A.C.S., Gopalapuram in respect of Item Nos. 1 and 2 of the plaint schedule properties.
b) In respect of Ex.B4, the Executive Officer, P.A.C.S., Bhupalapatnam 59 is examined as D.W.5 and he stated in his chief examination that Ex.B4 was issued by him and the contents of the same are correct. He stated in the cross-examination that the father of the name of the defendant is shown as
Subbayya the receipt dated 24.04.2000 pertaining to the same loan transaction and the said receipt is marked as Ex.X1. He admitted in the
Cross-examination that he brought the receipt book pertaining to the year 2000 as it is also relating to the loan of the defendant though he did not bring the loan register to the Court. He stated that he did not bring loan register due to the lack of knowledge. He also stated that Ex.X1 receipt does not contain the signature of the defendant. He further stated that if the party is available they used to obtain his signature on the receipt. He further stated that every year they used to get their account and receipts audited with local fund audit. He also stated that the audit party used to put ‘√’ in the receipt book. He further stated that there is an audit report every year and it contains what are the books and receipts audited during that year. In the re-cross examination, he stated that as he was asked to bring the entire records pertaining to the loan, he brought the receipt books also.
c) The above evidence of D.W.5 shows not only the name of the defendant’s father is shown as Subbayya in Ex.X1 though the same is in the handwriting of the D.W.5 and also in Ex.X1 there is no signature of the defendant and there is no ‘√’ marks in it. Merely because ‘√’ is not there in Ex.X1, it cannot be held that Ex.X1 is created. Ex.X1 shows that Ex.B4 “No Due Certificate” which is issued after filing of the suit cannot have any importance or probative value.
27. The evidence of D.W.6 since he admitted that his license as document writer cancelled and he took treatment in Karri Rama Reddy Mental Hospital till the year 1990 and he did not scribe or attest the will of defendant, is of no use for defendant to prove his case.
60 28 D.W.1 got marked Ex.B7, which is the tax receipt dated 25.04.2010.
The payment of Sisthu is also made after the filing of the receipt. Further
Item Nos. 1 and 2 schedule properties are under the management of the defendant. Mere paying of the tax or sisth under Ex.B7, itself cannot show that the said payment is made by the defendant under the capacity of the title holder of the property.
29. a) The learned counsel for the defendant cited a decision reported in
AIR 1969 S.C. 1359 between Jaspal Singh Vs. State of Punjab, in which the
Hon’ble Supreme Court held at para No. 8 as follows:
[3] Mr. M. C. Chagla argued that in May 1904 Seshamma had not attained the age of discretion and was not competent to make the adoption. He relied on the following passage in Mulla's Principles of Hindu law, 13th Ed., Art. 465, page 491: "A minor widow may adopt in the same circumstances as an adult widow, provided she has attained the age of discretion and is able to form an independent judgment in selecting the boy to be adopted. According to Bengal writers the age of discretion is reached at the beginning of the sixteenth year; according to Benaras waters, at the end of the sixteenth year. The former view was taken in a recent Madras case." [4] Now there is no clear evidence on the question of Seshmnma's age in May 1904. The plant said that she was then 10 years of age. One of the written statements said that she was about 15 years old. Exhibit A-2 an extract from the register of deaths suggests that she was then aged about 14 years. In Ex. A-7 dated March 25, 1907, Ex. B-5 dated May 2, 1907 Ex. B- 110 dated April 25, 1909 , Ex. B-7, dated November 1, 1911, Ex. B-22 dated November 15, 1911, Exs. A-11 and A-12 dated November 17, 1911, she was described as a minor. But Ex. B-138 dated August 9, 1910 described her as a major. The evidence of DW 2 suggests that she was about 15 years old at the time of adoption. The evidence of DW 3 fixes her age at about 17 years in or about 1903. Evidence was adduced to show that she married in 1898 when she was 11 or 12 years old. The appellant made no attempt to produce the certified copy of the register of births which would have shown her exact age. The adoption was made in May 1904. It was challenged in 1953 after a lapse about 50 years. The long delay in filling the suit is not satisfactorily explained. A declaratory suit challenging the adoption could have been filed soon after the adoption. Rajeswararao died in 1950, Seshamma died on October 2, 1952. During his lifetime Rajeswararao was recognised by every member of the family as the adopted son of Bhaskara Rao. He was registered as karnam and acted as such till his death. Under Ex. B-12 dated November 19, 1937 the plaintiffs mother Kamappa purchased a property from Rajeswararao wherein he was described as the adopted son of Bhaskara Rao. Having regard to the long lapse of time and the recognition of Rajeswararao as the adopted son of Bhaskara Rao, the strongest presumption arises in favour of the validity of the adoption. The law on this point is correctly stated in Mullda's Hindu Law, 13th Ed., art. 512 page 519:- "But when there is a lapse of 55 years between the adoption and its be questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained. stands to reason that after a very long term of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act the burden must rest heavily upon him who 61 challenges its validity," see also Venkataseetarama Chandra Row v. Kanchu Marthi Raju, AIR 1925 PC 201, 202. The presumption in this case is very heavy considering that all the parties to the adoption and all those who could have given evidence in favour of its validity have passed away. The appellant has not rebutted this presumption and has not shown that Seshamma did not attain the age of discretion in May 1904 and was not competent to make the adoption. The courts below rightly found infavour of the factum and validity of the adoption. There is no merit in this appeal.
b)The learned counsel for the defendant basing on the principles laid down in the above decision submits that in case of ancient adoption treatment by the family has to be taken in to consideration and the defendant has proved from the evidence of D.W.4, who is mother of defendant and also P.Ws. 1 to 3 that the defendant was always treated as adopted son of Madda Nookaiah. The principles laid down in the above decision is that once the adoption is admitted and the persons who were present at the time of adoption are not alive, there is presumption that the adoption was valid and burden is heavy on the person who has contended that the widow was a minor to prove the said fact. But, in the present case, there is no adoption of defendant. On the other hand, it is denied. The facts in the above decision are different from the facts in this suit since in that decision, adoption is admitted and contention of the opposite party is that the widow who adopted was minor by the date of adoption and in that case, the burden is heavy on the person who contended that the widow was a minor to prove said fact. But, in the present case, not only adoption is not admitted but on the other hand it is denied and defendant also failed to prove the adoption and also execution of Ex.B3 will in favour of him.
30. a) The learned counsel for the defendant cited the decision reported in 1995 (3) A.L.T. P. 372 between Narsingh Singh Vs. Smt Urmila Bai, in which the Hon’ble High Court of Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
17. It is true that the determination of lease would be in one of the modes enumerated under Section 111 sub-clauses (a) to (h) of the Transfer of Property Act . In the present case that has been done under sub-clause (h) 62 of Section 111 of the Act. In fact that has been done by the plaintiff by issuing a quit notice popularly known as 'quit notice' under Section 106 of the Transfer of Property Act as per Ex.A-1 which is replied by defendant under Ex.A-2. Since that was not challenged, there was no issue for the purpose of determination. It is significant to note that the lease or tenancy would become determinable by forfeiture under Section 111 sub-clause (g) item 2 where the lessee renounces his character as such for setting up a title in third person or by claiming title in himself. If the Court finds that the defendant or the adversary is a tenant or a lessee in law and vacates on setting up title even without a quit notice, he would be forfeiting his tenancy when he will be evicted as a matter of penalty under the said provision. Therefore, it was necessary for the learned trial Judge to first of all give a finding on the relevant issues 1 and 2 whether defendant is the tenant on the suit premises and on that even accepting that he would set up a title, that would become redundant and on that count alone he would have been evicted. Thereby defendant would be taking a serious risk if the tenancy of the lessee was established. In other words, it was totally unnecessary for the Court to find out whether defendant was in possession of the property in his own right. Merely on giving a finding that he was a tenant and the tenancy had been determined in any one of the modes permissible under law as above, there could have been a decree for the plaintiff in a case like this. The matter has not stood at this stage.
18….. Now to sum up in a suit for possession by a landlord the issue relating to defendant's title would be totally alien and unwarranted. The learned trial
Judge has adverted to it unnecessarily, has gone into such a question beyond
the scope of the suit and has gone to the extent of recording a finding against the defendant rightly or wrongly. Here it may be emphasised that by doing so, Courts would deprive the parties of their legitimate reliefs in a properly framed suit when an occasion arises. The rule of res judicata is one of such operating situations on the parties regarding their respective rights. If the plaintiff had filed a suit for declaration of title or possession based on title, etc. etc. etc., he was expected to prove only that in the absence of defendant not being a tenant and when the defendant would have resisted it with his own theory that he is the owner or that he has perfected his title by adverse possession, etc. etc. etc. By giving a finding on issue No. 4 in a suit where parties were not directed to concentrate or lead evidence on such matters fully and effectively, it would be a travesty justice and violation of principles of natural justice. In other words, by framing issue No. 4 and by dealing with the same and giving a finding, the judgment of the trial Judge becomes vitiated. Under the circumstances, this Court has a duty to delete such an issue in the light of the observations made above.
b) The learned counsel for the defendant cited the decision reported in 2013 (4) A.L.D. P. 85 (S.C.) between Narinder Singh Rao Vs.
A.V.M.Mahinder Singh Rao and others, in which the Hon’ble High Court of
Judicature, Andhra Pradesh at Hyderabad held at para Nos. 17 and 18 as follows:
15. On behalf of the appellant, the submissions were made to the effect that the suit property in fact belonged to Sumitra Devi though it was in the name of Rao Gajraj Singh. The provisions of Benami Transfer (Prohibition) Act , 1988 had been referred to by the learned counsel appearing for the appellant. The question whether the suit property in fact belongs to an individual i.e. whether he is a beneficial owner or is a benami, is a question of fact. There was no averment made in the plaint with regard to the aforestated allegation. No issue to the said fact had been raised before the trial court. The said issue had been raised for the first time before the appellate court 63 and in our opinion, the issue with regard to the fact could not have been raised before the appellate court for the first time and therefore, all submissions made in relation to the provisions of Benami Transfer (Prohibition) Act , 1988 and with regard to real ownership of the suit property cannot be looked into at this stage.
c) Basing on the principles laid down in the above decisions, the learned counsel for the defendant submits that no issue regarding defendnat’s title can be framed or adjudicated merely in the absence of dispute of the title of the defendant from the plaintiff and there is travesty of justice and violation of principles of natural justice in framing he Issues. In this suit, the plaintiff is seeking for declaration that she is the absolute owner of the plaint schedule property. In order to grant or refuse the said relief, it is necessary to go into the issue of whether the defendant is the adopted son of Madda Nookaiah and the Will propounded by him is true, valid and binding in respect of item Nos. 1 and 2 of plaint schedule property.
If that is so, the defendant cannot claim that in framing the Issue Nos. 1 and 2, there is any travesty of justice and violation of natural principles of justice. These issue Nos. 1 and 2 are framed basing on the pleadings of both the parties and they are required to be considered and answered, in order to decide the disputes between the parties. Hence, basing on the principles laid down in the above decisions, the defendant cannot claim that the issue Nos. 1 and 2 are framed are wrongly framed and need not required to be framed and issue No.1 is required to be deleted.
31 a) The plaintiff has not pleaded in the plaint about plaintiff gifting the property just prior to filing of the suit on 18.10.2007 in favour of her daughter and son in respect of Item Nos. 1 to 2 of plaint schedule properties. During the course of the appeal, the evidence is placed in respect of execution of Ex.B12 and Ex.B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13.
64
b) After recalling of defendant as D.W.1, Exs.B12 and B13 are marked on. Thereafter, P.Ws. 5 and 6 are recalled and examined and through them,
Exs.A10 to A13 are marked.
c) P.W.1 stated in her cross-examination that Appellant (D.W.1) is her junior paternal uncle’s son. She further stated that she is older than him.
She further stated that prior to filing of O.S. No.651 of 2007, there were no disputes between him and D.W.1. She further stated that about 10 years back, her mother had passed away. She further stated that she did not apply to M.R.O./Tahasildar for mutation of her name in Revenue Record for plaint schedule property.
d) P.W.5 stated in his cross-examination that he knows the facts in his chief examination affidavit. He further stated that he knows facts in Ex.A10.
He further stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled.
e) P.W.6 stated in her cross-examination that she knows the facts in her chief examination affidavit. She also stated she was not delivered possession of plaint schedule property by P.W.1. She also stated that she is aware of recitals in Ex.A11. She further stated that she and her mother voluntarily and conscious of contents therein had entered into execution of
Ex.A11. She also stated that it is true in Ex.A11, it was recited that since terms and conditions in the Gift deed were not implemented, the gift deed was mutually cancelled. She further stated that the defendant (appellant) is her junior material grandfather’s son. She also stated that she does not know if legal heir certificate was issued by M.R.O. showing as P.W.1 and defendant as L.Rs of deceased Bodamma.
f) The evidence of P.W.1 and P.Ws. 5 and 6 is that the gift deeds under Exs.A10 and A11 are not acted upon and they were subsequently 65 cancelled under Ex.A12 and A13, but the defendant is claiming that in view of execution of Ex.A11 and A12, the plaintiff is not having any title in respect of item Nos. 1 to 2 of schedule properties covered under Ex.A11 and A12 and the subsequent cancellation under Exs.A12 and A13 is not much use for the plaintiff to prove that she has got any right in respect of items Nos. 1 and 2 of plaint schedule property and she had no cause of action by the date of filing of the suit in respect of those properties, which are in possession and enjoyment of the defendant.
32 a) The learned counsel for the plaintiff submits that the defendant without any pleading and issue placed evidence in respect of execution of
Exs.B12 and B13 Gift deeds though already those gift deeds were cancelled under Exs.A12 and A13 and thereby, the defendant miserably failed to prove that the plaintiff is divested of title because of execution of Exs.B12 and B13 and that there is no power to place evidence under section 92 of E.Act, in respect of the facts not contained in the documents as the defendant is not a party to Exs.A10 to A13 and is a third party and stranger and since there is no mention in Exs.B12 and B13 that the donee accepted the gift deeds, the plaintiff has proved the suit claims and there was cause of action by the date of filing of the suit.
b) The learned counsel for the defendant submits that the defendant pleaded specifically in the written statement that plaintiff has no title to the
Item Nos. 1 and 2 of schedule properties and P.W.1 admitted that she executed the original of Exs.B12 and B13 and thereby, there is admission execution of gift deeds under originals of Exs. B12 and B13 and the suit is filed after one month of the execution of originally of Ex.B12 and Ex.B13 and thereby as on the date of the suit, there is no cause of action for filing the suit and plaintiff has not pleaded about Exs.A10 and A13 in the plaint and that in view of Order 7 Rules 5 and 6, the plaintiff has to plead and place 66 evidence about how she is entitled for the suit reliefs, and hence the plaintiff is not entitled for the suit reliefs.
c) The learned counsel for the defendant submits that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item
Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
d) The learned counsel for the defendant submits that Exs.B.12 and
B.13 shows that the possession is delivered and title is conveyed to P.Ws.5 and 6 and due to that section 91 and 92 of The Indian Evidence Act, 1872 comes into play and no oral evidence contrary to the same shall be admitted though the defendant is not a party to the same, since the plaintiff is claiming the reliefs based on those documents without pleading about them.
e) The learned counsel for the defendant submits that the plaintiff is claiming the relief for recovery of item Nos. 1 and 2 by evicting the defendant, but just prior to filing of the suit on 20.10.2007 the plaintiff gifted the property in favour of her daughter and son on 18.10.2017 , so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages and so the Issue No.5 has to be decided against the plaintiff and in favour of the defendant.
33 a) The learned counsel for the plaintiff cited the decision reported in
Bondar Singh and Others Vs. Nihal Singh and others, reported in (2003) 4 Supreme Court Cases 161, in which the Hon’ble Supreme
Court held at para No.7 as follows:
67
7. As regards the plea of sub tenancy (shikmi) argued on behalf of the defendants by their learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub tenancy (shikmi) the defendants cannot be allowed to build up a case of sub tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point.
b) The learned counsel for the plaintiff also cited another decision reported in 2012 (4) A.L.D. 618 between T.Bheem Reddy and another
Vs. P.Laxmi Bai and others, in which the Hon’ble High court of A.P. held at Para No.23 as follows:
“The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if no specifically denied they are deemed to have been admitted under Order VIII Rule 5 C.P.C. But, that is applicable only to the plaint averments, but there is no such provision under C.P.C. by which the plaintiff is obliged to deny the averments made by the defendant in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in Rule 9 C.P.C., no pleading subsequent o the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the court”.
As per the principles laid down in the above decision there is no need to file rejoinder in the present suit. The defendant has not pleaded in the written statement about the execution of Exs.B12 and 13 Gift deeds by plaintiff and also subsequently cancellation of the said gift deeds under
Exs.A1 and A13. But, the defendant has placed evidence in respect of execution of Exs.B12 and B13. The plaintiff has not filed any rejoinder after filing of the written statement by the defendant. As stated earlier there is no need to file rejoinder. But, the plaintiff is claiming that in view of the evidence of P.Ws. 5 and 6 that they did not accept the gift deeds under originals of Exs. B12 and B13 by the plaintiff and same are stood cancelled in view of execution of Exs.A10 and A11. The plaintiff is claiming that the terms and conditions in the gift deeds under originals of Exs.B12 and B13 were not implemented. Whether they were implemented or not, the plaintiff 68 has not pleaded about execution of originals Exs.B12 and B13 which are
Exs.A12 to A13 and subsequent cancellation of them under Exs. A10 and 11 by her children P.Ws. 5 and 6. In this regard, P.W.1 in her cross- examination on 06.08.2009 only stated that she executed settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. At first she stated that she has not executed any documents pertaining to item
Nos 1 and 2 of plaint schedule properties, but later she stated about the execution of settlement deed in respect of item Nos. 1 and 2 in favour of her daughter on 18.10.2007. Thereby, there was no pleading in the plaint nor any evidence is let in by the plaintiff in the trial court regarding Exs.A10 to
A13. It is only after defendant got marked Exs.B12 and B13 gift deeds in the appeal stage through D.W.1, the plaintiff has taken steps and got examined herself and also P.Ws. 5 and 6 and placed evidence in respect of
Exs.A10 and A13. The plaintiff has to prove her independent title over the schedule property including item Nos. 1 and 2 of plaint schedule properties by the date of suit. Unless she proves the title of item Nos. 1 and 2 of plaint schedule properties by the date of suit, she cannot claim recovery of possession of the said properties irrespective of defendant’s failure of proving the execution of the Will under Ex.B3 in his favour and also the adoption claimed by him. Admittedly, the defendant is in possession of the item Nos.1 and 2 of plaint schedule properties. That is the reason why the plaintiff filed the suit for the relief against the defendant for declaration that that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and also damages of Rs. 15,000/- per month per acre for item Nos. 1 and 2 of plaint schedule properties . The plaintiff is claiming that the defendant on the promise of helping the plaintiff in management of the plaint schedule properties played confidence trick on the plaintiff on the pretext of helping the plaintiff came into possession in the year 2005 and was pretending to be 69 managing the item Nos. 1 and 2 on behalf of the plaintiff. Basing on the said pleading, the plaintiff is claiming recovery of possession of the item
Nos. 1 and 2 of the plaint schedule properties.
d) Though, the defendant has pleaded about Ex.B3 Will, but failed to prove. He also pleaded that while refuting the plaint allegations by claiming as are not true and correct, the plaintiff is not entitled for a declaration that she is the absolute owner of the plaint schedule properties. He also pleaded that so far as the other items are concerned he has no claim over the suit.
D.W.1 in the cross-examination stated that except item Nos. 1 and 2 of plaint schedule properties, he has no claim against the rest of the suit schedule properties. He also stated except item Nos. 1 and 2 of schedule properties he is not denying the title of the plaintiff over the remaining Items in the plaint schedule property.
e) In those facts and circumstances, there is no force in the contention of the learned counsel for the defendant that the defendant is claiming the reliefs in respect of all the items and in Para No.2 of the written statement, though, the description of the properties are correctly mentioned, by mistake in stead of Item Nos. 1 to 5, it is mentioned as item Nos. 1 and 2, but in view of the clear description of the properties, the defendant is claiming the relief in respect of all the properties, but not merely in respect of only item Nos. 1 and 2 of the plaint schedule properties.
f) The suit is filed on 20.11.2007. Thereby, it can be safely held that the plaintiff just prior to filing of the suit on 20.11.2007 executed Exs.A12 and A13 on 18.10.2007. As per Exs.A12 and A13, the plaintiff gifted the properties and according to the plaintiff in favour of P.Ws. 5 and 6. But, this fact of gifting the properties is not pleaded by the plaintiff in the plaint without giving any valid reason. Further, the cancellation of Exs.A12 and
A13 by P.Ws. 5 and 6 who are the son and daughter of P.W.1 by executing 70
Exs.A10 and A11 is also not pleaded in the plaint in the plaint. Exs.A10 and
A11 are dated 07.04.2014. P.Ws. 1,5 and 6 admitted that the properties gifted which are item Nos. 1 and 2 of plaint schedule properties are in possession of defendant and there was no delivery of possession of those properties by P.W.1 to P.Ws. 5 and 6. P.W.1 admitted in her cross- examination that she took the plea in the plaint that the plaint schedule property was in her possession by the date of suit. She also stated that she has not filed documents showing her possession and enjoyment of the plaint schedule properties. Admittedly, P.Ws. 5 and 6 are not parties to the suit.
P.W.5 stated that plaint schedule property is not in her possession and enjoyment. P.W.6 also admitted that possession of the plaint schedule property was not delivered by P.W.1. P.W.6 stated that she is aware of the recitals in Ex.A11. She also stated that she and her mother voluntarily and conscious of contents therein had entered into execution of Ex.A11. she also stated that it is true in Ex.A11 it was recited that since terms and conditions in the gift were not implemented, the gift deed was mutually cancelled.
P.W.5 stated in his cross-examination that he knows the facts in Ex.A10. He also stated that the contents of Ex.A10 are true and correct. He also stated that it is true in Ex.A10 it was recited that since terms and conditions in the gift deed were not implemented, the gift deed was mutually cancelled. In
Exs. A10 and A11 also, it is mentioned that as Exs.A12 and A13 could not be implemented and also P.Ws. 5 and 6 are not interested and due to some unavoidable circumstances, the said documents are executed in view of agreeing of P.W.1 for taking back the property gifted to P.Ws. 5 and 6 on the request of P.Ws. 5 and 6. It is also mentioned that the said documents are executed after both parties agreed for the terms. It is also mentioned that the rights of P.Ws. 5 and 6 got under Exs.A12 and A13 stood cancelled.
But, P.Ws. 1,5 and 6 have not stated about what are the unavoidable circumstances, which are the reasons for cancellation of Exs.A12 and A13 by 71
P.Ws. 5 and 6. In those facts and circumstances, even though, the defendant has not pleaded about execution of Exs.A12 and A13 by plaintiff in the written statement, the plaintiff at the time of filing plaint, since fully aware of execution of Exs.A12 and A13 by her should have pleaded about the execution of the said documents in the plaint. If really, due to any unavoidable circumstances, Exs.A12 and A13 are not acted upon and they are cancelled by P.Ws. 5 and 6 unilaterally, without accepting by P.W.1, the said fact also should have been pleaded, but in the present case, as per the terms of Exs.A10 and A11 and evidence of P.Ws.1,5 and 6 after agreement of terms of Exs.A10 and A11 only all the parties executed them. Thereby,
P.W.1 is also aware about execution of Exs.A10 and A11 by P.Ws. 5 and 6, but the said fact is also not pleaded in the plaint. The execution of Exs.A10 to A13 by P.Ws. 1,5 and 6 is within full knowledge of plaintiff exclusively, but not within the knowledge of defendant, though they are registered documents. Having failed to plead all these facts by the plaintiff, the plaintiff cannot claim now that they need not be pleaded, because the defendant has not pleaded about the execution of Exs.A12 and A13 in the written statement.
g) The defendant is not a party to Exs.A.10 to A.13. But plaintiff has not added P.Ws.5 and 6 as parties in this suit and also not pleaded about the same. In those facts and circumstances, as per the principles laid down the above decisions and also as no evidence can be let in without pleading, the plaintiff is not entitled to place evidence in respect of Exs.A.10 to A.13 in order to prove her title on item Nos.1 and 2 of the plaint schedule properties.
h) The defendant without pleading about Exs.A12 and A13 placed evidence in respect of Exs.B12 and B13, but when the plaintiff has not pleaded about Exs.A10 to A13, the defendant even without pleading about 72
Exs.B12 and B13 which are the certified copies of Exs.A12 and A13 can place evidence in proof of acts of plaintiff about not having title in respect of item
Nos. 1 and 2 of plaint schedule properties by the date of suit as the plaintiff is claiming title in respect all the suit schedule properties by pleading in the plaint that she is the daughter of Madda Nookayya and Bodemma and as they died intestate, she got all the plaint schedule properties and she is claiming declaration of title that the plaintiff is the absolute owner of the plaint schedule properties and for possession of Item Nos. 1 and 2 of plaint schedule properties and permanent injunction restraining the defendant from interfering with the possession and enjoyment of Item Nos. 3 to 6 of plaint schedule properties and directing the defendant to pay damages of Rs.
15,000/- per annum per acre for items 1 and 2 of plaint schedule properties from the date of suit till the date of handing over of possession and for costs of the suit. Whereas, the defendant in the written statement pleaded that the plaintiff is not entitled for the relief of declaration that she is the absolute owner of the plaint schedule properties. He also further pleaded that he got the properties in Item Nos. 1 and 2 of plaint schedule properties, in view of the Will under Ex.B3 and he is in possession and enjoyment of the same and he is the absolute owner of the same. But, he failed to prove
Ex.B13, but it does not mean that he is not entitled to place to disprove the title of the plaintiff in respect of item Nos. 1 and 2 of plaint schedule properties, as always the defendant can plead alternative reliefs and entitled to place evidence to disprove the plaintiff’s right. In respect of events happening after institution of the suit, the basic principle is that the rights of the parties should be determined on the basis of the date of filing of the suit.
Thus where the plaintiff has no cause of action n the date of the filing of the suit, he will not ordinarily be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Similarly, no relief will be refused to the plaintiff by reason of any subsequent event if at the date of 73 the institution of the suit, he has a substantive right. As per the principles laid down in the decisions reported in AIR 1987 Supreme Court 741 between
Amarjit Singh Vs. Khatoon Quamarian and also in another decision reported in AIR 1975 SC 1409 between Pasupuleti Venkateswarlu Vs. Motor & General
Traders, and AIR 1974 SC 199 between Mahalinga Vs. Arulnandi. The right to relief must be judged to exist as on the date of suit or institute the legal proceedings. But at the same time in order to achieve substantial justice, the subsequent events in the absence of other disentitling factors or just circumstances have to be taken into consideration to meet the ends of justice. But in the present case plaintiff has not pleaded any fact relating to
Exs.A.10 to A.13 in the plaint and also the evidence in respect of these is placed by plaintiff by examining herself by recalling and also her children as
P.Ws.5 and 6 subsequent to defendant placing evidence in respect of
Exs.B.12 and 13 without any bonafide reasons for not pleading about
Exs.B.12 and B.13 even though they were executed just before filing of the suit.
34 Order 7 Rule 1 (e) of C.P.C. reads as follows:
e) The facts constituting the cause of action and when it arose;
As per the said provision, the facts constitute the cause of action and when it arose must have pleaded in the plaint. Every suit presupposes the existence of a cause of action against the defendant because if there is no cause of action the plaint will have to be rejected. Even though he expression “cause of action” has not been defined in the code, it may be described as “a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed” or “which give the plaintiff right to relief against the defendant”. Thus, “cause of action” means every fact, which it is necessary to establish to uupport a right or obtain judgment. To put it differently, cause of action gives occasion for and forms the foundation of the suit.
b) Thereby, in the present suit, unless, plaintiff proves that she has cause of action in respect of item Nos. 1 and 2 of plaint schedule properties by the date of suit and she pleaded the same in the plaint and also when the said cause of action arose, she is not entitled to claim the reliefs sought for.
74
c) The plaintiff has to prove that even though Exs.A12 and A13 are executed, the property is not divested by her and it continuous to be with her. If really, it is continued to be with her, irrespective of execution of
Exs.A12 and A13, there is no need for execution of Exs.A10 and A11. The very execution of Ex.A10 and A11 much longer to the dates of execution of
Ex.A12 and A13 since, Exs.A10 and A11 are dated 07.04.2014 and subsequently after 7 years, it clearly shows that that she has divested with the properties in item Nos. 1 and 2 which are in possession and enjoyment of 2nd defendant. So, it can be safely presumed and held that in view of that reason only Exs.A10 and A11 were executed. Further as per the principles laid down in the decisions reported in Margadarshini Educational Soceity
Vs. P.Subhashan and another, Union of India and others Vs. Vasavi
Cooperative Housing Society Limited and others (supra) in the present suit also, the burden is on the plaintiff to establish her absolute title of the plaint schedule properties, including Items Nos 1 and 2 and she must succeed on the strength of her case without depending upon the weaknesses in the case of the defendant.
d) In respect of the decision reported in 2009 (4) A.L.T. 727, (referred supra) the learned counsel for the plaintiff submits that the so called gift deeds under Exs.A12 and A13 are not acted upon due to which, the plaintiff remained the absolute owner of the plaint schedule properties.
But, the plaintiff is not able to place evidence to prove that the gift deeds are not acted upon and further, even if any evidence is placed, the same is also not useful for the plaintiff without any pleading for the same.
37 The Hon’ble High court of Madras in the decision reported in AIR 1954
Madras 84, between A.Rakkiyana Gounder Vs. Chinnu Govardan held that no evidence can be let in contra to the terms of the deed and the bar is absolute. Hence, in the present suit also, the plaintiff is not entitled to let in 75 evidence contra to Exs. A12 to A13 unless plaintiff pleads contra to Exs.A12 to A13 and then proves the same 38 In view of that, the defendant failed to prove Ex.B3 Will and title to the Item Nos.1 and 2 of plaint schedule properties, but he is admittedly in possession of the said properties. The plaintiff failed to prove that there was cause of action by the date of filing of the suit, in respect of item Nos. 1 and 2, and she is not entitled for any relief in respect of said properties, more so, declaration of title and recovery of possession and permanent injunction in respect of Item Nos. 1 and 2 of plaint schedule properties which are discretionary reliefs and can be granted only if plaintiff proves that she is bonafide though she is entitled for the reliefs prayed in the suit for other properties in view of evidence placed by plaintiff, and also as the defendant also pleaded in the written statement, as stated earlier that, so far as the other items are concerned, the defendant has no claim over the same and he never interfered in respect of other items of the plaint schedule properties and he has no claim over the said properties.
38 a) The defendant is claiming that generally the damages are not part of subject matter of the suit and are to be determined if suit for eviction is decreed under separate proceedings under Order 20 Rule 12 C.P.C. and so deciding quantum of profits or damages by original court is contrary to law and that in respect of plea for recovery of item Nos. 1 and 2 by evicting the defendant. Just prior to filing of the suit on 18.10.2007 the plaintiff gifted the property in favour of her daughter and son, so the plaintiff cannot maintain suit recovery of items Nos. 1 and 2 of the plaint schedule property or claim damages.
b) The trial court held that the plaintiff can claim damages by filing separate petition while answering issue No.5. The plaintiff has not paid court fee for the relief of damages. The trial court observed that plaintiff has not 76 led any evidence in respect of the damages and so it cannot be granted in the suit.
c) The plaintiff claimed damages at Rs.15,000/- per annum per acre for item Nos. 1 and 2 of plaint schedule properties till the date of handing over of the possession. But, as stated earlier, the plaintiff is not entitled for any reliefs in respect of Item Nos. 1 and 2 which are not in exclusive possession and enjoyment of plaintiff. As such, the question of granting of damages or deciding the quantum of damages does not arise.
39 Plaintiff has proved that the defendant is not the son of Madda
Nookaiah and that the Will propounded by the 1st defendant said to have been executed by Madda Nookayya on 01.10.1996 is not true, valid and binding in respect of the item Nos. 1 and 2 of the plain schedule properties and that the plaintiff is entitled for declaration that she is the absolute owner of the plaint schedule properties except item Nos. 1 and 2 of plaint schedule properties. The plaintiff is not entitled for direction to the defendant to hand over vacant possession of item Nos. 1 and 2 of the plaint schedule properties. The plaintiff is also not entitled for recovery of damages at the rate of Rs.15,000/- per month per acre in respect of item Nos. 1and 2 of the plaint schedule properties from the defendant. The plaintiff proved that the plaintiff is having subsisting interest in all the plaint schedule properties except item Nos. 1 and 2 and that the plaintiff is having title to item Nos. 3 and 5 of plaint schedule properties. Hence, the judgment and decree in O.S.
No. 651 of 2007 on the file of I Addl. Senior Civil Judge’s Court,
Rajahmundry has to be modified as plaintiff failed to prove the reliefs claimed by her in respect of item Nos. 1 and 2 of schedule properties, but the trial court granted the same as per it’s judgment. Accordingly, point
Nos. 1 to 8 are answered. Basing on the answers to Point Nos. 1 to 8, Point
No.9 is answered.
77 39 Point No.9: In the result, the appeal in A.S. No. 31 of 2013 is partly allowed. The Judgment and decree of the trial court in O.S. No. 651 of 2007
dated 14.03.2013 on the file of I Addl. Senior Civil Judge's Court,
Rajahmundry, is partly set aside in respect of the reliefs granted of declaration of the plaintiff as absolute owner of item Nos. 1 to 2 of plaint schedule properties and deliver of vacant possession of the same within three months, and also the plaintiff is entited for claiming damages by filing separate petitions. For all other reliefs the Appeal is dismissed.
Dictated to the Stenographer (Grade-II), transcribed by him, corrected
and pronounced by me in Open Court, this the 13th day of February, 2017
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For appellant
D.W.1: Madda Venkata Rao
For Respondent:
P.W.1 : Siddabathula Nagamani P.W.5 : Siddabathula Rajasekhar P.W.6 : Marre Atchiyyamma
DOCUMENTS MARKED
For Appellant:
Ex.B12/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her son P.W.5 Ex.B13/18.10.2007 : Certified copy of the settlement deed executed by the respondent in favour of her daughter P.W.6
For Respondent:
Ex.A10/07.04.2014 : Original of Registered cancellation of gift deed Ex.A11/07.04.2014 : Original of Registered cancellation of gift deed Ex.A12/18.10.2007 : Original of Gift deed executed by P.W.1 in favour Of P.W.5. Ex.A13/18.10.2007 : Original of gift deed executed by p.W.1 in favour Of P.W.6.
78
Chairman, Permanent Lok Adalat (FAC) Special Judge, SCs & STs Court-cum-10th Addl.
District Judge, Rajahmundry.
79
Add the following in Page 12 after para 11 (a) as (b)
b) For the sake of brevity and convenience The Code of Civil Procedure
Code, 1908, Indian Evidence Act, 1872, Transfer for Property Act, 1882, The
Hindu Marriages Act, 1955, Indian Succession Act, 1925, Specific Relief Act, 1963 and A.P.Pattadar Passbook Act, 1971 herein after will be referred as “C.P.C”, “E.Act”, “T.P.Act”, “H.M. Act” “I.S.Act” “S.Act” and “P.B. Act”.
Order Record 1,068 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| MVOP/436/2013 | Shaik Subhanu alias Babji vs Puppala Viswanadham | 14 Feb 2017 | Judgment | — |
| MVOP/539/2015 | Duddipudi Srinivasa Rao alias Srinu vs V Koteswara Rao | 14 Feb 2017 | Other | — |
| CRLMP.BAIL/200240/2017 | Guttula Bhargava vs State S.H.O., III Town P.S. Rajamahendravaram | 14 Feb 2017 | Order | — |
| AS/31/2013 | madda Venkata Rao vs Sidhabatula Naga mani | 13 Feb 2017 | Judgment | — |
| MVOP/535/2015 | Degala Ammulu vs Kandasamy Nallusamy | 13 Feb 2017 | Order | — |
| MVOP/535/2015 | Degala Ammulu vs Kandasamy Nallusamy | 13 Feb 2017 | Judgment | — |
| OS/200119/2010 | Y.Sailatha vs Gudugunta Ananthalakshmi | 13 Feb 2017 | Judgment | — |
| CRLMP.BAIL/200409/2017 | Sheik Amin Saheb vs State S.H.O., Prathipadu | 13 Feb 2017 | Order | — |
| MVOP/8/2015 | Shaik Mahaboob Uneesa Begum vs Palle Rajayya | 11 Feb 2017 | Order | — |
| MVOP/8/2015 | Shaik Mahaboob Uneesa Begum vs Palle Rajayya | 11 Feb 2017 | Other | — |
| MVOP/62/2016 | Papana alias Papani Anitha vs Kancheyaraj Pradhan | 11 Feb 2017 | Other | — |
| MVOP/71/2015 | Kelam Venkata Lakshmana Babu vs Mylapalli Eswara Rao | 11 Feb 2017 | Other | — |
| MVOP/186/2016 | Bobbili Rani vs B.Srinivasa Rao | 11 Feb 2017 | Other | — |
| MVOP/187/2016 | Nakka Mangayamma vs Vanguru Gandayya | 11 Feb 2017 | Other | — |
| MVOP/257/2016 | Ambujalapu Dandamma vs K. Mutyalayya Naidu | 11 Feb 2017 | Other | — |
| MVOP/264/2016 | Bandula Lakshmi vs Tiruveedula Tatarao | 11 Feb 2017 | Other | — |
| MVOP/266/2015 | Chinnam Kalavathi vs Chirra Veerraju | 11 Feb 2017 | Other | — |
| MVOP/293/2016 | Konthala Subba Lakshmi vs G.Rambabu | 11 Feb 2017 | Order | — |
| MVOP/301/2016 | Nargana Malleswari vs Tirumalanadhuni Sathi Babu | 11 Feb 2017 | Other | — |
| MVOP/382/2015 | Vasabathula Venkata Rao vs Batharaju Venkatesh | 11 Feb 2017 | Other | — |
| MVOP/439/2016 | Korumilli Suryanarayana vs Vemagiri Mallibabu | 11 Feb 2017 | Other | — |
| MVOP/475/2015 | Katta Raja Kumar vs A Venkata Ramana | 11 Feb 2017 | Other | — |
| MVOP/545/2016 | Manyam Veerayamma vs A.Venkateswara Rao | 11 Feb 2017 | Other | — |
| MVOP/555/2016 | Gurubilli Chandra Rao Reddy vs Ayanavilli Venkata Rao | 11 Feb 2017 | Other | — |
| MVOP/598/2016 | Akula Suryanarayana vs Yedukondalu B. | 11 Feb 2017 | Other | — |
| MVOP/653/2016 | Koyya Nikhil vs Thota Jakkarayya | 11 Feb 2017 | Other | — |
| MVOP/655/2015 | Mannari Srinivaa Rao alias Srinu vs Raju Yadav, | 11 Feb 2017 | Other | — |
| MVOP/724/2015 | Jutta Posiyya vs Velamuri Anilreddi alias Anil Kumar Reddi | 11 Feb 2017 | Other | — |
| MVOP/761/2014 | Seelam Srinivasa Rao alais Srinu vs Amrutharaj Barnad | 11 Feb 2017 | Other | — |
| OS/77/2016 | Shaik Mastan vs Balusu Nageswara Rao | 11 Feb 2017 | Other | — |
| CRLA/447/2015 | Buguru Durga Rao vs State S.H.O., Angara P.S. | 11 Feb 2017 | Other | — |
| AS/50/2014 | Margani Veerababu alias Veera Venkta Rao vs Giduthuri Apparao | 10 Feb 2017 | Judgment | — |
| CRL.MP/200492/2017 | Yerramsetti Tatayya Naidu vs State S.H.O., Nagaram P.S. | 10 Feb 2017 | Order | — |
| AS/156/2015 | Tadepalli Bobby alias Babi vs Tadepalli Brahmanandam | 09 Feb 2017 | Judgment | — |
| CRLRP/217/2016 | Allam Saritha vs Allam Praveen Kumar | 09 Feb 2017 | Order | — |
| CRLMP.BAIL/200410/2017 | Athili Suvarnaraju alias Bobby vs State S.H.O., Allavaram P.S. | 09 Feb 2017 | Order | — |
| AS/123/2015 | Adhyatmbahatta Sridevi vs Adhyatmbatta Alwar | 08 Feb 2017 | Judgment | — |
| MVOP/319/2015 | Vuyyuri Naga Lakshmi vs Poleti Tata Rao | 03 Feb 2017 | Order | — |
| OS/200104/2010 | Vegunta Srihari Nataraja Hanuma Vithal Prasad babu vs Koganti Tulasi Lakshmi | 03 Feb 2017 | Judgment | — |
| MVOP/319/2015 | Vuyyuri Naga Lakshmi vs Poleti Tata Rao | 02 Feb 2017 | Order | — |
| CRLMP.BAIL/200317/2017 | Meka Yesu vs State S.H.O., Peddapuram P.S. | 02 Feb 2017 | Order | — |
| CRLMP.BAIL/200318/2017 | Akkireddy Pedda alias Maridayya vs State S.H.O., Peddapuram | 02 Feb 2017 | Order | — |
| MVOP/514/2013 | Veeravalli Raja Ramesh vs Jakala Suribabu | 31 Jan 2017 | Judgment | — |
| MVOP/729/2014 | Kollu Ganga Raju vs Madda Pentayya alias Prasad | 31 Jan 2017 | Judgment | — |
| CRLMP.BAIL/88/2017 | Buddiga Devudu vs State S.H.O., Prohibition and Excise Station North | 31 Jan 2017 | Order | — |
| MVOP/170/2014 | Gella Nirmalakumari vs M.Krishna | 30 Jan 2017 | Order | — |
| MVOP/231/2014 | Ch.Srinivasa Reddy vs Gundu Ramesh | 30 Jan 2017 | Judgment | — |
| MVOP/446/2015 | Potabattula Lakshmi vs Tambabatula Vasu | 30 Jan 2017 | Judgment | — |
| MVOP/1000049/2016 | Kodamanchili Sitha Devi vs Thambathula Vasu | 30 Jan 2017 | Judgment | — |
| CRLA/181/2015 | Ravela Anjaneyulu So Ranga Rao vs Tadala Raju | 30 Jan 2017 | Order | — |
| CRLA/576/2015 | Asapu Nagaraju vs Vasa Siva Satya Kumari | 30 Jan 2017 | Order | — |
| SC/200025/2014 | SDPO, Peddapuram vs Gollapalli Narasimhamurthy alias Bujji | 30 Jan 2017 | Judgment | — |
| SC/200025/2015 | State Represented by the SDPO, Central Zone, Rajahmundry Urban vs Kethineedi Padmavathi | 30 Jan 2017 | Judgment | — |
| MVOP/566/2015 | Madagala Govindha vs Puli Srinivasa Reddy | 27 Jan 2017 | Judgment | — |
| AS/32/2015 | Kanuri Veera Venkata Satyanarayana vs AP Eastern Power Distribution Corporation LTD. | 24 Jan 2017 | Judgment | — |
| OS/189/2014 | Bylapudi Venkatesh vs Dera Koteswara Rao | 23 Jan 2017 | Judgment | — |
| CRLMP.BAIL/200143/2017 | K.Chandrasekhar vs State S.H.O., Bommuru P.S. | 23 Jan 2017 | Order | — |
| SC/200028/2015 | State Sub Divisional Police Officer, Amalapuram vs Varanasi Suresh | 20 Jan 2017 | Judgment | — |
| CRLMP.BAIL/47/2017 | Guttula Raghava vs State S.H.O., Devipatnam P.S. | 20 Jan 2017 | Order | — |
| CRLMP.BAIL/1609/2016 | Guddati Varalakshmi vs State S.H.O., Dowlaiswaram P.S. | 20 Jan 2017 | Order | — |
| MVOP/52/2015 | Nandyala Seethaveni vs Koneru Srilakshmi alias Pinnamneni Srilakshmi | 19 Jan 2017 | Order | — |
| MVOP/53/2015 | Nandyala Seethaveni vs Koneru Srilakshmi alias Pinnamneni Srilakshmi | 19 Jan 2017 | Order | — |
| CRLRP/102/2015 | Gondesi Simhachalam alias Sirapu Simhachalam vs Gondesi Aruna | 19 Jan 2017 | Judgment | — |
| CRLRP/198/2016 | Sodapindi Mangaraju vs Sodapindi Durgadevi | 12 Jan 2017 | Order | — |
| CRLMP.BAIL/200037/2017 | Mekala Yesu vs State S.H.O., Peddapuram P.S. | 12 Jan 2017 | Order | — |
| CRLMP.BAIL/204140/2016 | Akkireddi Pedda alias Maridayya vs State S.H.O., Peddapuram | 12 Jan 2017 | Order | — |
| MVOP/361/2015 | Bandi Krupa vs Palangi Lakshmi Nataraju | 11 Jan 2017 | Order | — |
| MVOP/361/2015 | Bandi Krupa vs Palangi Lakshmi Nataraju | 11 Jan 2017 | Other | — |
| CRLMP.BAIL/200064/2017 | Saviti Govindaraju vs State S.H.O., Pithapuram Town P.S. | 11 Jan 2017 | Order | — |
| CRLA/401/2015 | Alla Sanyasi Rao vs Pitta Venkata Narayana Rao | 10 Jan 2017 | Judgment | — |
| SC/200110/2014 | Sub Divisional Police Officer Peddapuram vs Pulapa Subbalakshmi | 10 Jan 2017 | Judgment | — |
| CRLMP.BAIL/204052/2016 | Tarapatla Nagaraju vs State S.H.O., Ambajipeta P.S. | 10 Jan 2017 | Order | — |
| CRLMP.BAIL/204124/2016 | Pilli Mangayamma alias Manga vs State S.H.O., Pamarru P.S. | 10 Jan 2017 | Order | — |
| CRLMP.BAIL/204139/2016 | Tummalapudi Vegula Murthi alias Bujji alias Venu vs State S.H.O., Pedapudi Police Station | 10 Jan 2017 | Order | — |
| MVOP/289/2016 | Bandaru Lova Kumari vs Syed Nazeer | 09 Jan 2017 | Other | — |
| CRLMP.BAIL/200018/2017 | Vanaparthi Sreenivasarao alias Srinu vs State S.H.O., Tuni Rural P.S. | 09 Jan 2017 | Order | — |
| MVOP/626/2015 | Dharnakoti Srinivasa Rao vs Anasuri Subrahmanyam | 07 Jan 2017 | Other | — |
| OS/49/2015 | Ramapatruni Lakshmi Veera Venkata Dayananda Reddy vs Surisetty Nageswara Rao | 04 Jan 2017 | Judgment | — |
| CRLMP.BAIL/204123/2016 | Shaik Lal Saheb alias Lal vs State S.H.O., Mandapeta Town P.S. | 04 Jan 2017 | Order | — |
| CRLMP.BAIL/203957/2016 | Sayyed Rabbani vs State S.H.O., Sarpavaram P.S. | 03 Jan 2017 | Order | — |
| CRLMP.BAIL/204081/2016 | Besetti Appaji vs State S.H.O., Maredumilli P.S. | 03 Jan 2017 | Order | — |
| MVOP/617/2015 | Kopparthi Naga Ramesh Alias Ramesh vs Poviral Mallesh | 28 Dec 2016 | Other | — |
| MVOP/618/2015 | Kopparthi Rakshitha alias Ratna Rakshitha vs Poviral Mallesh | 28 Dec 2016 | Other | — |
| CRLA/234/2015 | Pitla Srinivasa Reddy vs State inspector of police, Rajahmundry Rural Circle. | 28 Dec 2016 | Judgment | — |
| CRLA/321/2016 | Kommuoju Apalacharyulu vs Gannavarapu Sree Nagesh | 28 Dec 2016 | Judgment | — |
| CRLMP.BAIL/1591/2016 | Palli Sathish Babu alias Sathibabu vs State S.H.O., Kadiyam P.S. | 28 Dec 2016 | Order | — |
| CRLMP.BAIL/204082/2016 | Addala Veera Venkata Satyanarayana vs State S.H.O. Korukonda | 28 Dec 2016 | Order | — |
| MVOP/179/2015 | Putta Latha vs Shaik Abdul Rahiman | 27 Dec 2016 | Judgment | — |
| CRLA/229/2016 | Padala Chanti Babu vs State S.HO. Ramachandrapuram P.S. | 27 Dec 2016 | Judgment | — |
| CRLA/561/2015 | Kovvuri Venkata Rama Reddy vs Kovvuri Venkata Reddy | 27 Dec 2016 | Judgment | — |
| CRLMP.BAIL/1617/2016 | Nayudu Venkata Satya Naga Rama Mohan vs State S.H.O., Alamuru P.S. | 27 Dec 2016 | Order | — |
| MVOP/204/2014 | Bonthu Ratna Kumari vs Shaik Noor | 23 Dec 2016 | Judgment | — |
| MVOP/555/2014 | Muppidi Rambabu vs Shankar Tandi | 23 Dec 2016 | Order | — |
| MVOP/555/2014 | Muppidi Rambabu vs Shankar Tandi | 23 Dec 2016 | Judgment | — |
| CRLA/175/2015 | Ramisetti Nagu vs State SHO II Town L and O PS Rajahmundry. | 23 Dec 2016 | Order On Exgibit | — |
| CRLA/180/2015 | Mortha Venkatesh alias Venkat vs State represented by SHO, II Town PS, Rajahmundry. | 23 Dec 2016 | Order On Exgibit | — |
| OS/85/2015 | Sathi Venkata Satyanarayana Reddy vs Singamsetti Chenchu Lakshmi | 22 Dec 2016 | Judgment | — |
| MVOP/85/2015 | Sali Ramalakshmi vs Mummidisetti Suri Babu | 21 Dec 2016 | Judgment | — |
| CRLMP.BAIL/3925/2016 | Akkireddy Pedda alias Maridayya vs State S.H.O., Peddapuram | 21 Dec 2016 | Order | — |
| CRLMP.BAIL/203989/2016 | Mekala Yesu vs State S.H.O., Peddapuram P.S. | 21 Dec 2016 | Order | — |
Monthly Orders (Last 12 Months)
| Feb 2017 | 61 | |
| Jan 2017 | 43 | |
| Dec 2016 | 43 | |
| Nov 2016 | 46 | |
| Oct 2016 | 81 | |
| Sep 2016 | 58 | |
| Aug 2016 | 41 | |
| Jul 2016 | 83 | |
| Jun 2016 | 76 | |
| May 2016 | 18 | |
| Apr 2016 | 48 | |
| Mar 2016 | 73 |
Log in for full trend data.
Frequently Asked Questions
How many cases has Sri N.Malyadri B.Sc., LL.M. handled?
Sri N.Malyadri B.Sc., LL.M. has handled 1187 court orders since 2015 at PDJ Court Complex ,Rajahmundry. The average disposal rate is 57 orders per month.
What types of cases does Sri N.Malyadri B.Sc., LL.M. hear?
Based on available records, Sri N.Malyadri B.Sc., LL.M. primarily handles Motor Accident matters (Motor Accident Claims) and Criminal matters (Criminal Appeals, Sessions Cases) and Civil matters (Original Suits, Appeal Suits) at PDJ Court Complex ,Rajahmundry.
Where is Sri N.Malyadri B.Sc., LL.M. currently posted?
Sri N.Malyadri B.Sc., LL.M. is posted as Spl. Judge For SC And ST, Rajamahendravaram at PDJ Court Complex ,Rajahmundry, East Godavari, Andhra Pradesh.
Are judgments by Sri N.Malyadri B.Sc., LL.M. available online?
Yes. 16 judgments by Sri N.Malyadri B.Sc., LL.M. are available on Legistro with full text, outcome, and sections cited.
How fast does Sri N.Malyadri B.Sc., LL.M. dispose cases?
Sri N.Malyadri B.Sc., LL.M. disposes approximately 57 cases per month, based on 1187 orders handled over their tenure at PDJ Court Complex ,Rajahmundry.
Since when is Sri N.Malyadri B.Sc., LL.M. serving?
Sri N.Malyadri B.Sc., LL.M. has been serving at PDJ Court Complex ,Rajahmundry since 2015.
Case Types
Posting History
-
Apr 2016 — Feb 2017Spl. Judge For SC And ST, Rajamahendravaram · 586 orders
-
May 2015 — May 2015I Addl.District and Sessions Judge, Rajamahendravaram · 28 orders
-
May 2015 — Apr 2016Spl. Judge For SC And ST, Rajamahendravaram · 573 orders
Outcomes on Record
Other Judges at this Court