Andhra HC (Pre-Telangana)
Pala Appanna And Nine Ors. vs Pala Appa Rao And Seven Ors. on 3 August, 2005
JUDGMENT C.Y. Somayajulu, J.
1. Plaintiffs in a suit for partition of the property specified in the schedule appended to the plaint (suit property) into two equal shares and for allotment of one such share to them, preferred this appeal against the decree of the trial Court dismissing their suit.
2. For the sake of convenience parties would hereinafter be referred to as they are arrayed in the trial Court. Second plaintiff and first defendant died during the pendency of the suit in the trial Court. So, their legal representatives were brought on record.
3. The case of the plaintiffs is that in the partition that took place between Thata, their father, and his brother Atchaiah, father of the first defendant, suit property, which was unfit for cultivation, was kept joint but the other properties belonging to the joint family at Thalligaruvu were divided keeping the Well therein joint. Since plaintiffs were not able to advance money for repairs to the said joint Well, first defendant had spent the amount required for repairs and re-construction of the joint Well, after they agreed to the first defendant enjoying the usufruct from the suit property till their share of expenditure of the joint Well is recouped by him from the usufruct therein. Thereafter, Casurina and Cashew trees were planted in the suit property with joint efforts. Even after recouping the amount spent by him for repairs to the joint Well since first defendant prevented them from enjoying their share of the produce in the suit property, they got issued a legal notice seeking partition of the suit property, for which he gave a reply falsely alleging that they sold away the suit property to him. Hence, the suit.
4. First defendant filed his written statement admitting that the suit property, at the time of the partition between his father and the father of the plaintiffs, was kept joint and contending that inasmuch as plaintiffs 1 and 2 and their father could not pay their share of the expenses incurred by him for repairs to the joint Well, they agreed to sell the non-income yielding suit property to him for Rs. 2,600/- towards their share of expenses for repairs to the Well and for discharge of the other amount due to him, and had executed an unregistered sale deed in his favour and kept him in exclusive possession thereof on 05-06-1968 and since he is in exclusive possession thereof from that date in his own right, plaintiffs are not entitled to any relief.
5. Basing on the pleadings the trial Court framed five issues for trial. In support of their case, plaintiffs examined the first plaintiff as P.W.1 and another witness as P.W.2 and marked Exs.A.1 to A.3. In support of their case, defendants examined the 4th defendant as D.W.1 and three other witnesses as D.Ws.2 to 4 and marked Ex.B.1. Having considered the evidence on record, the trial Court held on issues 1 and 2, relating to the questions whether the sale deed dated 05-06-1968, relied on by the first defendant, is true, valid and binding on the plaintiffs and whether the defendants perfected their title to the suit schedule land by adverse possession, in favour of the defendants. On issues 3 and 4 relating to the question whether plaintiffs are entitled to seek partition and are entitled to past profits, held against the plaintiffs and consequently on 5th issue, which relates to the relief, dismissed the suit with costs.
6. The main contention of the learned counsel for the plaintiffs is that the trial Court was in error in upholding the validity and genuineness of Ex.B.1 solely basing on the evidence of D.W.2 who is but the father-in-law of the first defendant, who has no personal knowledge thereof, and when in fact his evidence goes against some of the recitals in Ex.B.1 and when the defendants failed to examine the scribe of Ex.B.1 and when they failed to take steps to send it to an expert for his opinion on the thumb impressions thereon and when the evidence of D.W.3 shows repairs to the joint Well were undertaken in or about 1975 and when the defendants failed to explain why the sale deed was taken on stamp papers worth Rs. 1-50ps only. It is his contention that the trial Court was in error in drawing an inference against the plaintiffs merely because P.W.1 denied the thumb impression on Ex.B.1 and was in error in holding in favour of the defendants on the basis of the contention of the plaintiffs in the plaint that a document containing their thumb marks might have been used for bringing into existence a document in his favour, amounts to admission of their thumb impressions on Ex.B.1. Placing strong reliance on Krishan v. Krishanoo, Sadasivam v. K. Doraisamy, and Roop Singh v. Ram Singh, he contended that the trial Court was in error in holding that defendants perfected their title to the suit property by adverse possession, when it, admittedly, is the joint family property and since ouster is not pleaded or proved.
9. The contention of the learned counsel for the defendants is that since first plaintiff, as P.W.1, admitted during cross-examination that long prior to the filing of the suit there was a dispute before the elders in connection with the suit property and that at that time Ex.B.1 was shown to him and to the mediators, it is clear that the contention of the plaintiffs that Ex.B.1 was brought into existence for the purpose of this case is not and cannot be true and contended that since plaintiffs who are alive to the existence of Ex.B.1, did not dispute its genuineness either in the notice or in the plaint, the finding of the trial Court on the genuineness of Ex.B.1 needs no interference. It is his contention that merely because Ex.B.1 is an unregistered document plaintiffs are not entitled to the relief claimed because first defendant due to his continuous possession thereon, by digging a Well and planting Coconut trees therein, perfected his title thereto by adverse possession.
10. The point for consideration is whether Ex.B.1 is true and valid, and, if so, the plaintiffs are entitled to the reliefs sought?
11. The fact that the suit property was kept joint at the time of partition of the family properties belonging to the plaintiffs and defendants is not denied or disputed. Existence of two Wells i.e. a joint Well at Thalligaruvu i.e. the properties partitioned, and a Well in the suit property, also is admitted by the first plaintiff as P.W.1 though the plaint is silent about the existence of a Well in the suit property, or as to who got it dug. P.W.2 admitted, even in his Chief-examination, that 1st defendant dug a Well in the suit property. The fact that first defendant got repaired the joint Well at Thalligaruvu with his money, with no contribution from plaintiffs side, is admitted even in the plaint. The specific case of the 1st defendant is that since plaintiffs were unable to pay their share of the expenses incurred by him for repair to the joint Well, and since the suit property is not an income yielding property and since they were unable to repay the other amount ! due to him, they and their father sold away their share in the suit property to him under Ex.B.1 and from that date onwards, he has been in enjoyment thereof in his own right and dug a Well and raised Coconut, Cashew and Casurina trees therein. That first defendant has been enjoying the income from Casurina and Cashew trees in the suit property all through is admitted by the plaintiffs themselves even in the notice got issued by them, and in the plaint also.
12. First plaintiff as P.W.1 clearly admitted that first defendant spent Rs. 4,000/- for effecting repairs to the Well at Thalligaruvu i.e. the land that was partitioned and that they did not contribute any amount towards their share of the expenses. When the suit property, admittedly, is not an income yielding property and when the contention of the plaintiffs is that they permitted the 1st defendant to enjoy the usufruct therefrom to recoup the amount due to them, that fact has to be established by them, since first defendant disputed that fact in his written statement. In that regard, except the interested oral evidence of P.W.1 there is no other evidence on record. The evidence of P.W.2 is of no help to decide that question because his evidence is that plaintiffs and 1st defendant raised a hedge around the suit property and planted Casurina therein about 20 years prior to his giving evidence on 15.10.1987. About 20 years prior to 1987 would be around 1967. Ex.B.1 is of the year 1968 and so the evidence of P.W.2 does not help in deciding the contention of plaintiffs that there was an understanding between them and first defendant relating to the first defendant enjoying the usufruct from the suit property for recouping the share of expenses of plaintiffs for repairs to the Well at Thalligaruvu.
13. With regard to Ex.B.1, which is an unregistered sale deed for Rs. 2,600/- in favour of the first defendant, said to have been executed by father of plaintiffs 1 and 2 and plaintiffs 1 and 2 and their younger brother, I find force in the contention of the learned counsel for the plaintiffs that the trial Court was in error in holding against the plaintiffs merely because they did not identify their thumb marks thereon, as it is difficult, if not impossible, to identify thumb marks with naked eyes. Signatures can be identified. Even a well-educated man, by a mere look at a finger print, may not be able to say whether it belongs to him or not. But that itself does not warrant interference on the finding of the trial Court in relation to the genuineness of Ex.B.1, for the following reasons. As stated earlier, the specific case of the first defendant is that plaintiffs 1 and 2 and their father sold their share of the suit property for Rs. 2,600/-, due to their inability to pay their share of expenses and Rs. 600/- due to him. As stated earlier, P.W.1 admitted that 1st defendant spent Rs. 4,000/- towards repairs to the Well at Thalligaruvu. So, plaintiffs share of expenses for digging the Well would come to Rs. 2,000/-. According to first defendant, plaintiffs and their father owed an amount of Rs. 600/- to him.
14. P.W.1 admitted that there was a dispute before the elders with regard to the suit property and that first defendant stated before the mediators that he purchased the suit property from his family, and had shown Ex.B.1 to the elders and that they disputed their executing Ex.B.1, and that from that date of dispute, he and the first defendant are not on cordial terms and that 7 years prior to the dispute before the elders they handed over the Casurina tope to the first defendant for cutting. He admitted about the first defendant getting a Well dug in the suit property and the first defendant planting Coconut trees therein. From the above evidence of P.W.1 it is clear that 1st defendant has been in possession of the suit property exclusively from seven years prior to the dispute before the mediators, which took place before the date of Ex.B.1 i.e. 05-06-1968. So, it is clear that at least from about a decade prior to Ex.B.1 first defendant was enjoying the suit property i! n his own right.
15. The evidence of P.W.2 that plaintiffs 1 and 2 and their father, Thata, raised a palmyrah hedge around the suit property and Casurina and Cashew plants in some places therein, about 20 years prior to his evidence, and that the Well at Thalligaruvu was got dug by Thata (father of plaintiffs 1 and 2) and Atchaiah (father of 1st defendant) is contrary to the allegation in the plaint reading- "the defendant took upon himself the construction of the joint well (Nand) for the cultivation of the lands, partitioned during his father's life time. It is further that it is only the defendant, that spent the entire cost as the plaintiffs could not raise any sum. It is further that the defendant represented and made the plaintiffs to agree, for the enjoyment of the produce entirely by himself for few years, so as to meet even the plaintiffs' share of the costs of construction of the well and the evidence of first plaintiff as P.W.1 reading-
"About 12 years ago well was dug in Thalligaruvu land. By that time my father also died. The first defendant advanced money for digging the well, our share of money was agreed to be met from the sale of casurina tope of her share from the suit schedule land."
So, it is clear that P.W.2 has no personal knowledge of the affairs between plaintiffs and defendants. P.W.2 during cross-examination admitted that the suit property was kept fallow and was being used for grazing cattle and that first defendant planted Coconut trees therein and requested him to look after the Casurina and Cashew topes in the suit property. Thus, the evidence of P.W.2 establishes that the suit property was fit only for grazing cattle, and does not yield any income. Therefore, the contention of plaintiffs that they wanted the 1st defendant to recoup the amount spent by him for digging the Well at Thalligaruvu, from the income derived from the suit property, is not and cannot be true.
16. The evidence of the first plaintiff as P.W.1 shows that he left for Cuttack when he was aged 23 years, and was visiting his native village once an year. In the plaint, 1st plaintiff described himself as a person aged 45 years. Therefore, it is clear that first plaintiff was not having any interest in the village from more than two decades prior to the filing of the suit. Since plaintiffs 1 and 2 are aware of the existence of Ex.B.1 even prior to the filing of the suit and since 1st defendant in Ex.A.3 reply asserted that he has a sale deed in his favour, if plaintiffs wanted to deny its genuineness, they ought to have specifically denied its execution in the plaint. They did not do so, but had alleged that first defendant might have used stamp papers containing their thumb marks for bringing into existence the sale deed relied on by him. They did not state that they have no younger brother by name Soma Raju and that their father did not execute any sale deed in favour of the first defendant, in spite of the fact that in Ex.A.2 notice, got issued by them to the 1st defendant, it is stated -
There is no reference to the father of plaintiffs 1 and 2 affixing his thumb marks on any document for himself and on behalf of his minor third son. When plaintiffs 1 and 2 are aware of Ex.B.1 by the date of Ex.A.2 notice, they should have denied it, if they really did not execute it.
17. Since 1st defendant died before the case was posted for defendants' evidence, there can be no scope for the first defendant giving evidence with regard to Ex.B.1. Since plaintiffs have to succeed on the strength of their case, D.Ws.1 to 3 not having personal knowledge about Ex.B.1 may not be of consequence in deciding the genuineness of Ex.B.1. So also the fact of defendants not examining the scribe of Ex.B.1 and their not taking steps for sending Ex.B.1 to an expert, is also of consequence, because plaintiffs, who are very much aware of the existence of Ex.B.1, and the reliance of 1st defendant thereon, did not deny its execution either in Ex.A.2 or in the plaint. In view thereof, question of first defendant proving Ex.B.1 by examining the scribe or by sending it to an expert with regard to the thumb impression thereon does not arise. If the party having knowledge of the document denies its genuineness only, would be question of the other party proving it arises. If a party to a suit, having knowledge of the existence of a document which has a bearing on his right in the suit claim, does not speak about it or deny its execution, the party relying on it cannot be found fault with if he does not examine the persons connected therein. Therefore, the finding of the trial Court that Ex.B.1 is true and valid needs no interference. Therefore, I confirm the finding of the trial Court that Ex.B.1 is true and genuine.
18. When Ex.B.1 is held to be true and genuine, the fact that it is engrossed on stamps worth Rs.1-50ps only and is not registered may not be of consequence, and plaintiffs are not entitled to any relief on that ground, because first defendant has been in possession and enjoyment of the property in his own right for more than 12 years prior to the filing of the suit in 1982. Therefore, the finding of the trial Court that plaintiffs lost their title to the suit property, if any, by adverse possession needs no interference in view of the ratio in Bondar Singh v. Nihal Singh, . The two decisions relied on by the learned counsel for the plaintiffs have no application to the facts of the case because they relate to joint family properties and since plaintiffs 1 and 2 and their father by executing Ex.B.1 gave up their right in the suit property and put the 1st defendant in possession thereof as full owner and so plaintiffs are not entitled to any relief. The point is answered accordingly.
19. In view of my finding on the point for consideration, I find no merits in the appeal and hence the appeal is dismissed. No costs.