Karnataka High Court
Bhimsha S/O Mallapa Jamadar vs Kallamma W/O Girappa Jamadar And Ors on 20 October, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL NO.7097/2013
BETWEEN:
BHIMSHA S/O MALLAPPA JAMADAR
AGE: 50 YEARS, OCC: AGRICULTURE
& POLICE CONSTABLE
R/O. BAIN-CHINCHOLI
TQ. HUMNABAD, DIST. BIDAR - 585 401
.... APPELLANT
(BY SRI HARSHA, ADVOCATE APPEARING FOR
SRI. AMEET KUMAR DESHPANDE, ADVOCATE)
AND:
1. KALLAMMA W/O GIRAPPA JAMADAR
AGED 65 YEARS, OCC: AGRICULTURE
R/O. BAIN-CHINCHOLI
TQ. HUMNABAD, DIST. BIDAR - 585 401
2. SHARNAPPA S/O MALLAPPA JAMADAR
AGED 59 YEARS, OCC: AGRICULTURE
R/O. BAIN-CHINCHOLI
TQ. HUMNABAD, DIST. BIDAR - 585 401
3. MANIK S/O MALLAPPA JAMADAR
AGED 55 YEARS, OCC: AGRICULTURE
R/O. BAIN-CHINCHOLI
TQ. HUMNABAD, DIST. BIDAR - 585 401
4. SANGAPPA S/O MALLAPPA @ ZAREPPA JAMADAR
AGED 50 YEARS, OCC: AGRICULTURE
R/O. BAIN-CHINCHOLI
TQ. HUMNABAD, DIST. BIDAR - 585 401
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5. RANGAMMA S/O CHANDRAPPA JAMADAR
AGED 55 YEARS, OCC: AGRICULTURE
R/O. BAIN-CHINCHOLI
TQ. HUMNABAD, DIST. BIDAR - 585 401
6. TIPPAWWA D/O NAGAPPA
W/O. ERAPPA METREI
AGE 54 YEARS, OCC: AGRICULTURE
R/O. BAIN-CHINCHOLI
TQ. HUMNABAD, DIST. BIDAR
UNDER THE GUARDIANSHIP OF HER REAL SON
MARUTHI S/O ERAPPA
AGE: 35 YEARS, OCC: AGRICULTURE
R/O. BAIN-CHINCHOLI
TQ. HUMNABAD - 240 012
... RESPONDENTS
(V/O. DATED: 16.06.2017 SERVICE OF NOTICE
TO R1, R4 & R5 IS HELD SUFFICIENT,
R2, R3 & R6 ARE SERVED BUT UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING
TO ALLOW THIS APPEAL AND TO SET ASIDE THE
JUDGMENT AND DECREE DATED: 03.01.2013 PASSED IN
R.A.NO.20/2012 BY THE PRL. SENIOR CIVIL JUDGE,
HUMNABAD, CONFIRMING THE JUDGMENT AND DECREE
DATED: 02.07.2012 PASSED IN O.S.NO.29/2008 BY THE
PRL. CIVIL JUDGE AT HUMNABAD AND PASS ANY OTHER
APPROPRIATE ORDER AS THIS HON'BLE COURT DEEM FIT
IN THE CIRCUMSTANCES OF THE CASE.
THIS REGULAR SECOND APPEAL HAVING BEEN
HEARD, RESERVED FOR JUDGMENT COMING ON
FOR JUDGMENT THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
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JUDGMENT
This appeal lays challenge to the Judgment and decree passed by the First Appellate Court in R.A.No.20/2012 dated 03-01-2013 of Senior Civil Judge Humnabad confirming the Judgment and decree passed by Prl. Civil Judge, at Humanabad in O.S.No.29/2008 dated 02-07-2012.
2. The appellant is the plaintiff before the Trial Court and respondents are the defendants.
3. For the convenience the parties will be referred as plaintiff and defendants as per their respective ranks before the Trial Court.
4. The brief contentions of the parties are as under:
The Plaintiff instituted a suit for declaration. It is his contention that himself and his wife are the absolute 4 owners of the suit property bearing R.S.No.166/2010 measuring 08 acres 18 guntas situated at Binchincholi village. It is contention of the plaintiff that the husband of defendant No.6 namely Erappa with the help of his wife Tippawwa created a nominal and bogus plaint dated 07.06.1990 and by a bogus signature of plaintiff, filed a suit for declaration of title in O.S.No.125/1990 and in the said suit the husband of defendant No.6 filed an advancement petition then filed consenting written statement by putting false signatures and thumb impression of then defendants No.2 to 5 and the suit came to the decreed on 25.06.1999. It is contended that defendant No.6 does not belongs to family of the plaintiff and defendants No.1 to 5. The husband of defendant No.6 created a false suit.
It is further contended that defendant No.6 is totally deaf and dumb women, she could not have filed a written statement. It is her husband who got appointed 5 advocate. The decree passed in such a suit is not binding and it is null and void. The said judgment and decree is not executed for the last 17 years. Then on 19.02.2008 the plaintiff asked defendants to get cancel the said judgment and decree. Though defendants agreed, but subsequently they refused. So, the plaintiff filed a suit with a prayer, that the plaint, written statement, judgment and decree passed in O.S.No.125/1990 on the file Munsiff Court, Humnabad is declared as null and void and not affecting the right, title and interest of the plaintiff and further deceleration that plaintiff has not filed the suit in O.S.No.125/1990 in Munsiff Court, Humnabad in respect of suit land on 07.06.1990.
5. The Defendants Nos.1 to 4 filed consent written statement. Defendant No.6 appeared and filed written statement denying the plaint averments as all false. She has denied that the said decree was obtained by her husband without her consent. But the said 6 decree is a genuine decree. It is her defense that the suit property belongs to one Nagappa. He died leaving behind first wife Nagamma and second wife Malamma. Defendant No.6 is the daughter of first wife Nagamma and there is one more daughter by name Narsamma. The second wife gave birth to one Ambanna. In the year 1960 the original owner Nagappa transferred entire land bearing Sy.No.166/10 measuring 31 acres 33 guntas in favour of defendant No.6 Tippavva. In this regard there was a suit. A decree was passed in suit O.S.No.268/1990 and defendant No.6 is declared as owner of the entire land. In the revenue records. subsequently, for the year 1968-69 the name of Ambanna, Mallappa, Zarappa and Manikappa have been entered without any basis. The plaintiff as per decree passed in O.S.No.125/1990 has got share to the extent of 20 guntas only in suit property. He cannot claim ownership of entire land and prays to dismiss the suit.
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6. The Trial Court on the basis of the pleadings framed the issues.
7. The plaintiff got examined himself as PW.1 and one witness on his behalf as PW.2 and got marked six documents as Exs.P.1 to P.6. Thereafter P.A. holder of defendant No.6 her husband got examined as DW.1 and got examined two witnesses as DW.2 and DW.3 and got marked six documents as Exs.D.1 to D.6.
8. The Trial Court after hearing both sides dismissed the suit. The First appeal filed by the plaintiff against the said judgment also came to be dismissed by the Appellate Court. Hence, this second appeal on the following grounds:-
a) That the Judgment and decree of the First Appellate Court is against the law.8
b) Both courts committed error in holding that the plaintiff ought to have sought appointment of handwriting expert.
c) The defendant No.6 could not have filed written statement in earlier suit as required under Order 32 Rule 15 of the Code of Civil Procedure (hereinafter for short "of the CPC").
d) The Courts should have exercised jurisdiction under Section 73 of the Indian Evidence Act, by comparing signature of plaintiff.
With these contention the appellant prayed to frame the substantial question of law as stated in his memorandum of appeal and admit the appeal. 9
9. The appellant in his appeal memo stated that the fallowing substantial question of law arise in this case :-
a) Whether a party who is wholly deaf and dumb can be sued without a guardian being appointed to act as a next friend?
b) Whether the Courts below are justified in not exercising the jurisdiction vested in it under Section 73 of the Indian Evidence Act and not looking into the entire evidence in its right perspective?
c) Whether the judgment and decree passed in O.S.No.125/1990 is liable to be declared as null and void in the light of the pleadings and evidence adduced by the appellant/ plaintiff?
10. The learned counsel for the appellant Sri. Ameet Kumar Deshpande, argued much about impleading defendant No.6 Tippawwa as defendant without there being any guardian appointed for her, so that suit itself is not maintainable. The defendant No.6 being admittedly deaf and dumb, the Court ought not to 10 have entertained the written statement of defendant No.6 without there being next friend or a guardian. The learned counsel further argued that provisions of Order 32 Rule 15 of the CPC are applicable to a deaf and dumb person. In support of his contention he has relied upon the decision of the Lahore High Court reported in AIR 1930 Lahore Page 425 in the case of Nanakchand vs. Banasdas at Page No.428 it is held as under:
Relevant Para only.........
Order 32, R.1 Civil P.C., provides that "every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor."
Rule 15 provides that "the provisions of R.1-14 so far as they are applicable shall extend to persons who are found by the Court on enquiry by reasons of unsoundness of mind or mental infirmity to be incapable of protecting their interests when suing or being sued."
It is to be noted that Dina Nath is absolutely deaf and dumb. We had occasion to watch 11 him during the hearing of the appeal as he was present almost throughout its bearing which lasted for several days and though it cannot be stated that he is mentally deficient, it is at the same time very difficult, in fact almost impossible, to communicate with him or to follow any reply given by him. It is only by means of signs that one can communicate with him and his replies can be given only by means of signs, and it further appears that only a few persons who know him intimately are capable of making him understand by signs what they desire to convey to him or to follow his replies given in a similar manner. Under the circumstances I should say that it is almost impossible for any person not intimately acquainted with him either to reach his mind or to interpret it.
No definition of the expression "mental infirmity" is to be found in any of the books on the subject dealing with mentally defective persons, nor did the counsel on either side refer to any authorities on the subject; the case, therefore, is one of first impression and after giving the matter my careful consideration. I am of opinion that R. 15, O. 32, is intended to cover the case of persons like Dina Nath who are absolutely deaf and dumb and on that account are incapable of receiving any communications or of communicating their wishes or thoughts to others. The case would be different with those who are not absolutely deaf and dumb but partially so and are able to communicate with others though with some difficulty."12
11. He has relied upon another decision reported in AIR 1954 Madras Page 810 in reference to Pariaaswami Goundan wherein at Para No.2, 4 an 6 it is held as under:-
2. The facts are : O. S. No. 586 of 1950 has been filed by one Karuppa Goundan against Umal Malaya Goundan and three others. This Umai Malaya Goundan is a deaf-mute. The plaintiff filed an application for the appointment of a guardian-ad-litem under Order 32, Rule 15 C. P. C. It was resisted on the ground that Umai Malaya Goundan has been leading a family life with a wife and child and that he is eking out his livelihood by grazing cattle and doing farm work and that he is quite capable of managing his family affairs and that therefore a guardian-ad-
litem need not be appointed.
On the other hand, the elaborate enquiry held by the learned District Munsif revealed two sets of facts. In regard to the properties of this Umai Malaya Goundan several documents have been executed on his behalf by a guardian or his wife has been associated with the conveyances along with him. Ex. A 1 dated 25-2-1924 is a registration copy of maintenance deed by Angammal as guardian of Umai Malaya Goundan to Varusaiyammal. Ex. A. 2 dated 25-2-1924 is registration copy of a release deed by Vanjiyammal to Angammal. as guardian of Umai Malaya Goundan. Ex. A. 3 dated 20-6-1930 is registration copy of a usufructuary mortgage deed by Malaya Goundan and his wife Nanjakkal to Marappa Goundan and another for Rs. 1000. Ex. A. 4 dated 2-9-1930 is registration copy of a sale deed by Nanjakkal on her behalf and as 13 guardian of her husband Umai Malaya Goundan to Chellappa Goundan for Rs. 2000. Ex. A. 5 dated 21-8-1942 is registration copy of a sale deed by Nanjakkal on her behalf and as guardian of Umai Malaya Goundan to Kaliappa Goundan. Ex. E. 3 dated 19-3-1951 is a registration sale deed by Umai Malaya Goundan and his wife to Palani-sami Gounder for Rs. 1500.
The only document which has been executed by Umai Malaya Goundan without a guardian or being associated with his wife is Ex. B. 1 dated 25-2-1927 which is registration copy of a lease deed between Umai Malaya Goundan and Malaya Goundan and another for five years. So, between 1924 and 1951 whenever a document is executed in regard to the properties of this deaf- mute it is by some one purporting to act as his guardian or being associated with him like his wife. Secondly the evidence of the three witnesses, P. Ws. 1 to 3 establishes that this Umai Malaya Goundan is a deaf-mute who is mentally infirm and whom no one else excepting his wife could understand.
The learned District Munsif has carefully marshalled all these facts in paragraph 2 of his order which need not be repeated. He came to the conclusion that the evidence of those three people showed that he cannot be understood by ordinary persons who are not acquainted with him and that he is not capable of understanding such persons. Therefore, he ordered the appointment of a guardian-ad-litem and inasmuch as this deaf-mute's wife was unwilling to act as his guardian he directed the appointment of a court guardian.
4. Order 32 Rule 15 C. P. C. corresponds to Section 463 of the Civil P. C. 1882, with some additions and alterations. The old section is 14 reproduced below to observe the changes introduced by the present rule:
"The provisions contained in Sections 440 to 462 (both inclusive) shall 'mutatis mutandis' apply in the case of persons of unsound mind adjudged to be so under Act No. 35 of 1858, or under any other law for the time being in force."
It would appear on a comparison that the words "and to persons who though not so adjudged are found by the court on enquiry by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued" have been added. The additions seem to have adopted the principles laid down in
- 'Venkatramana Rambhat v. Timappa Devappa', 16 Bom 132 (A)', 'Kadala Reddi v. Narisi', 24 Mad 504 (B), and - 'Rasiklal Datta v. Bidhumji Dasi', 33 Cal 1094 (C), and to set at rest the conflicting rulings, all of which have been discussed in the above Calcutta case. The above amendment has overridden - Subbay v. Buthayya', 6 Mad 380 (D), and - 'Tukaram Anant Joshi v. Vithal Joshi', 13 Bom 656 (E). By the addition of the words "or mental infirmity" the scope of the present rule has been enlarged. The old section was applicable to persons of "unsound mind" only, but the present rule applies to persons of unsound mind as well as to persons who are suffering from any mental infirmity in consequence of which he is incapable of protecting his own interests. The Select Committee have extended this rule so as to cover the case of a person incapacitated from protecting his interests by reasons of his mental 'weakness or of his being a deaf-mute.'
6. The procedure adopted by the learned District Munsif is correct and merits no interference in revision and this petition is dismissed. 15
12. The learned counsel further argued that the signature of the plaintiff ought to have been compared by the Court in view of the Section 73 of the Indian Evidence Act. So, the learned counsel argued that when there is a fraud alleged it vitiates entire proceedings and prays to admit the appeal.
13. I have carefully considered the said decisions relied by the learned counsel and records of the case.
14. The Trial Court in fact has raised an additional issue on this point and held that there is no rule that deaf and dumb person cannot contract. The Trial Court further held that the defendant No.6 herself has admitted that she has signed the written statement. So the trial court negotiated that continuation. Be that as it may.
15. Both Trial Court and First Appellate Court have clearly held that plaintiff has failed to prove that signature appearing on the plaint in O.S.No.125/1990 is not his signature.
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16. When a person denied his signature on the particular document, the burden on him to prove that the signature appearing on the said document is not his signature. As observed by the Trial Court, Ex.P.2 the plaint clearly indicates the signature of the plaintiff. So, except giving his self serving oral evidence, he has not adduced any evidence to show that he has not engaged any advocate nor filed any suit. He has not produced any documents to show that he never signs in Kannada language. No admitted documents are produced to show nature or style of his signature. Both the Courts have held that though the decree is passed on 21.06.1990, but it is not challenged. It is very pertinent to know that Ex.D.2. is a certified copy of judgment in O.S.No.8/2005 on the file of Addl. Civil Judge (Jr. Dn) Humnabad. The said certified copy clearly indicate that the said suit is instituted on 11.01.2005 as per Page No.3 of the said judgment. The said suit is filed by the present plaintiff and his wife seeking declaration of their ownership and 17 relief of injunction and rectification of records of right in very same Sy.No.166/10 to the extent of 07 acres out of total 08 acres 18 guntas situated at Chincholli. It is clearly mentioned in the said suit which is evident at Para No.4 of the judgment that in the year 1970 the name of defendant No.4 is wrongly entered in the revenue records. Then there was a settlement, in that defendant No.4 was given land to the extent of 01 acre 18 guntas after Ugadi in the year 2002. In the Page No.6 of the judgment it is mentioned as under:-
"It is further pleaded that, some where in the year 1990 one family arrangement was took place between the plaintiff No.2 and defendant No.1 to 3 and the respective husband of defendant No.7 and 8 orally. In that family arrangement 20 guntas of land was allotted to the plaintiff No.2 as the defendant No.1 Sharnappa and one deceased Girappa had taken some amount from the defendant No.4 as hand loan and as a security of the same. As she was shown as having been allotted 4 acres 9 guntas of land in the suit land. Subsequently a decree came to be recorded in O.S.No.125/90 on the file of Munsiff court Humnabad between the plaintiff No.2 and the defendant No.1, 3 and 4 and husband of 18 defendant No.7 and 8 as a security for payment of the amount to the defendant No.4, she was shown as having been allotted the land measuring 4 acres 9 guntas by the plaintiff No.2 at the say of defendants. Subsequently the defendant No.1 and the husband of defendant No.8 namely Girappa repaid the amount in the year 1998 or so. Thereafterwards there has taken place family settlement and partition amount the parties. In view of memorandum of partition the plaintiff No.1 filed the application before the Tahsildar Humanabad to mutate their name in the revenue records. The defendant No.4 with dishonest intention filed the objections before the village accountant and Nad Tahsildar not to enter the name of the plaintiffs in the revenue records. The case is still pending before the Revenue authorities. So the plaintiff filed this suit."
17. So, it is evident that plaintiff in this suit knew very well about the family arrangement in the year 1990 and he himself stated that a decree came to be recorded in O.S.No.125/1990 on the file of Munsiff Court Humnabad between plaintiff No.2 and defendants No.1, 2, 3 and husband of defendants No.7 and 8 as a security for repayment of amount to defendant No.4. She was shown as having been allotted the land 19 measuring 04 acres 09 guntas by plaintiff No.2 at the say of defendants. So, this clearly indicates that the plaintiff himself filed that suit and there was a compromise decree and this defendant No.6 was allotted the share in that suit.
18. Now, without mentioning anything about this suit O.S.No.8/2005 wherein the plaintiffs are declared as owners only in respect of 04 acres 09 guntas as evident from Page No.10 of the said judgment. Again suit is filed by plaintiff. There was an issue No.3 in that suit wherein the Court observed that the plaintiffs themselves admitted that defendant No.4 is the owners to the extent of 04 acres 09 guntas on the basis of decree passed in O.S.No.268/1990. Therefore, it is crystal clear that the plaintiff knew about suit in O.S.No.125/1990 when it is filed by him, he himself stated that there was a settlement and decree came to be passed. He himself admitted that the defendant No.4 has become owner to the extent of 04 acres 09 guntas 20 and defendant No.4 in this suit who is defendant No.6 in that suit. This suit is in O.S.No.29/2008 was instituted on 25.01.2008. But the plaintiff has taken the contention regarding the suit O.S.No.125/1990 when he instituted as suit in O.S.No.8/2005 on 11.01.2005. Again after more than 05 years he filed this suit without disclosing anything about the contention taken by him in a suit O.S.No.8/2005. Again seeking relief in respect of the same land Sy.No.166/2010 measuring 08 acres 18 guntas. This itself indicates that the plaintiff has not approached the Courts with clean hands. He is guilty of suppressing true facts. This itself disentitle him the discretionary relief of declaration.
19. The vakalat of one D.S. Prabha Advocate is appearing in O.S.No.125/1990. The plaintiff has not examined that Advocate to show that he has not engaged her. He has not got appointed any hand writing experts to show that the signature appear on the vakalat and in the plaint are not his signatures by 21 producing his admitted signature. On the other hand he admits clearly about filing of the suit and settlement in O.S.No.125/1990 and allotting share to Tippawwa to the extent of 04 acres 09 guntas in O.S.No.8/2005. Therefore, both the Courts have rightly held that this suit is again for the similar relief without disclosing the earlier suit and declaration is not maintainable and the suit is not filed within period of limitation. In view of averment made about filing of O.S.No.125/1990 in O.S.No.8/2005. So, the plaintiff suit and appeal are dismissed firstly on the grounds that he has failed to prove that he has not filed a suit in O.S.No.125/1990. Secondly, he has referred in O.S.No.8/2005 regarding compromising suit in O.S.No.125/1990, but did not challenged the same, so the same has become barred by law of limitation. Thirdly, suppressing the filing of O.S.No.8/2005 and the judgment and decree passed in the said suit in respect of the very suit land disentitle the plaintiff any relief.
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20. It is crystal clear that the plaintiff has failed to prove his contention that he has not filed O.S.No.125/1990. On the other hand he has not adduced any legally admissible evidence to prove the same. On the other hand he has admitted about filing of such suit in O.S.No.8/2005. Therefore, question of the Courts themselves performing the duty of hand writing expert and comparing his signature under Section 73 of the Indian Evidence Act, does not arise at all.
21. The contention of the learned counsel for the appellant regarding non-compliance of Order 32 Rule 15 of the CPC by the plaintiff himself has no application to case on hand. Because, he himself filed O.S.No.125/1990 making Tippawwa as a defendant No.6. He being a plaintiff he has not filed any application stating that defendant No.6 was deaf and dumb person and she could not defend herself. On the other hand, he has admitted in O.S.No.8/2005 about 23 compromise and settlement that took place in O.S.No.125/1990. Simply, because he failed to prove his case and also the suit failed on ground of limitation now he has taken the contention regarding proper representation of defendant No.6 in that earlier suit. It is to be stated here that plaintiff himself filed suit against and now stating that she is not represented properly due to his mistake are contradictory and inconsistent with each other. It is like blowing hot and cold at the same time. The plaintiff cannot be permitted to contend that such decree is not proper as one of the defendant is not properly represented. It is none of business of the plaintiff. If at all there is any decree against a person who is not properly represented, then it is that person who can challenge the judgment and decree stating that she/he was not represented properly. It is the defendant who is a aggrieved, if there is any judgment and decree against him or her. If she is not represented properly or person representing him 24 acted adverse to her interest or against his or her interest. The plaintiff cannot come to the Court whenever he feels or decree is not favourable to him, to challenge the judgment and decree stating that the defendant is not properly represented as required under Order 32 Rule 15 of the Code of Civil Procedure. If any person is a minor or unsound mind or any person concerned under Order 32 Rule 15 of the CPC, he/she can institute a suit challenging any decree against them, if they are not properly represented or if a person represented them acted adverse to their interest, after attaining age of majority or a person unsound mind become a sound mind. As referred in the above decision that those who are not absolutely deaf and dumb, but partially no need not have recourse under Order 32 Rule 15 of the CPC. Simply, because a person is deaf and dumb that does not mean that they are incapable of any communications or communicating their wishes or thoughts to others. It is pertinent to note that it is the 25 plaintiff himself having filed the said suit in O.S.No.125/1990 again mentioning about the same suit in O.S.No.8/2005 and showing her as Defendant No.4 and that suit is filed by very same plaintiff Bhimshya along with his wife. There is also a description of defendant No.4 in her individual capacity, but not mentioning anything about the said deaf and dumb person and not filing any application to represent her by any guardian and only in this suit he has shown her as represented by her son. Therefore, the plaintiff cannot take disadvantage of his alleged own wrong and contend that the earlier suit, judgment and decree null and void for not making the defendant represented by her next friend as guardian. On the other hand, it is open only to the such defendant to take any such contentions but not to the plaintiff.
22. It is also very pertinent note that in this suit when the husband of defendant No.4 Erappa has given 26 evidence in the cross-examination by this plaintiff in the very first line it is suggested that as this Erappa her husband has assaulted her, she became dumb, but he has denied it. So, even while conducting this suit, according to plaintiff this defendant No.4 was not dumb earlier, only when her husband assaulted her she become dumb. In fact, she is married and she has got a son also who in fact represented her earlier in this suit by name Maruti. So, the appellant has taken false contention regarding the earlier suit filed by him. As there are no other grounds the appellants somehow tried to make out case which is not there for him and tried to take a shelter under Order 32 Rule 15 of the CPC which he is not entitled.
23. In view of the above discussion, it is evident that:-
a) The plaintiff has failed to prove that he has not filed O.S.No.125/1990.27
b) That plaintiff has admitted about filing of suit in O.S.No.125/1990 in his subsequent suit filed in respect of the very same suit property in O.S.No.8/2005.
c) The plaintiff suppressing the filing of O.S.No.8/2005 in respect of the suit property again filed the suit, which indicates that plaintiff has not come to the Court with clean hands.
d) The suit itself is hopelessly barred by time.
e) Plaintiff cannot take disadvantage of his own wrong.
24. Therefore, in view of the concurrent finding of the Trial Court and the First Appellate Court which are based on appreciation of evidence and proper reasons they does not call for any interference. There is no question of law much less substantial question of 28 law arise for consideration to admit this appeal. Therefore, the appeal is liable to be dismissed. In the result I pass the following..
ORDER The Regular Second Appeal is dismissed. The judgment and decree passed by the Senior Civil Judge, Humnabad in R.A.No.20/2012 dated 03.01.2013 and the judgment and decree passed by the Principal Civil Judge, Humnabad in O.S.No.29/2008 dated 02.07.2012 are hereby confirmed.
In view of the peculiar facts and circumstances of the case, parties to bear their own costs.
Send back the secured records to the concerned Courts.
Sd/-
JUDGE MNS CT/VK