Andhra Pradesh High Court - Amravati
G.Manohara Reddy vs K.Chandrasekhar Reddy on 20 June, 2025
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
SECOND APPEAL No.1108 OF 2011
JUDGMENT:-
This second appeal under Section 100 of the Code of Civil Procedure ("C.P.C." for short) is filed aggrieved against the Judgment and decree, dated 09.08.2011 in A.S.No.2 of 2010, on the file of the Senior Civil Judge, Gooty ("First Appellate Court" for short) reversing the Judgment and decree, dated 28.10.2009 in O.S.No.225 of 2003, on the file of the Junior Civil, Gooty ("Trial Court" for short).
2. The appellants herein are defendants and the respondents herein are plaintiffs in O.S.No.225 of 2003. During the pendency of the second appeal, 1st respondent died, respondent Nos.3 to 5 are added as legal representatives of deceased 1st respondent.
3. The plaintiffs initiated action in O.S.No.225 of 2003, with a prayer for grant of permanent injunction restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaintiffs of the plaint schedule property.
4. The learned trial Judge dismissed the suit. Felt aggrieved of the same, the unsuccessful plaintiffs in the above said suit filed appeal suit in A.S.No.2 of 2010 before the First Appellate Court. The learned First Appellate Judge allowed the appeal setting aside the decree and judgment passed by the learned trial Judge. Aggrieved thereby, the defendants approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit.
6. The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.225 of 2003, is as follows:
2 VGKRJ s.a.1108 of 2011
(i) The plaintiffs are the owners of the plaint schedule property.
Originally, the plaint schedule property belongs to Gaggalapalli Sunki Reddy and his wife G. Laxmamma. At the time of marriage, they gifted the plaint schedule property in favour of the plaintiffs under a registered gift deed, dated 18.01.1982. The plaintiffs have accepted the gift and ever since the plaintiffs are in possession and enjoyment of the plaint schedule property. Some time, they have also leased out the properties to others. Except the plaintiffs, none others have any right, title or possession to the plaint schedule property. While so, the defendants who have no manner of right or title to the plaint schedule property are trying to obstruct the plaintiffs from the plaint schedule property.
(ii) One Subba Lakshmamma filed suit in O.S.No.24 of 1991 on the file of Senior Civil Judge Court, Gooty against the defendants and father of 1 st defendant with regard to plaint schedule property and other properties and after full trial, the suit was dismissed. In this connection, the defendants are claiming some amount from the plaintiffs on the ground that the father of the 1st defendant have spent huge amount for the litigation. The plaintiffs are nothing to do with the alleged huge amount spent by the father of the 1 st defendant. They have no right to claim any amount from the plaintiffs. They have somehow wanted to grab the plaint schedule property.
7. The 1st defendant filed written statement before the trial Court and the same was adopted by the 2nd defendant denying the material averments made in the plaint. The brief averments in the written statement are as follows:
The 2nd plaintiff is the paternal aunt of 1st defendant and 2nd defendant is his mother. The alleged donors of the plaintiffs are the paternal grandparents of 1st defendant. One G. Sunki Reddy has two sons viz., G. Venkata Reddy (father of 1st defendant) and G. Rami Reddy and all of them constituted coparcenary. G. Lakshamamma, wife of Sunki Reddy had no exclusive right, possession or enjoyment over the plaint schedule property. All the properties 3 VGKRJ s.a.1108 of 2011 owned and possessed by G. Sunki Reddy are his ancestral properties. G. Sunki Reddy has only undivided 1/3rd joint share in all the items of the property and the remaining 2/3rd joint share in all the items belong to his sons. Hence, alleged execution of gift deed without joining the other coparceners makes the gift deed a void one. The alleged gift deed is not to the knowledge of the defendants and it was never acted upon. The defendants reliably learnt that the alleged gift deed is a fabricated and forged document. The common boundaries shown to the plaint schedule is only imaginary. The schedule of the property as mentioned in the alleged gift deed, dated 18.01.1982 does not tally with the existing ground realities. The agreement of sale in favour of Subba Lakshmamma and filing of suit in O.S.No.24 of 1991 before the Senior Civil Judge, Gooty by her were under different context and as the father of 1st defendant and plaintiffs were sailing together, some of the documents filed in the said suit were prepared only for the purpose of defending the suit. The alleged gift deed, dated 18.01.1982 was never intended to be acted upon nor was acted upon at any point of time. The plaintiffs or their donors were never in possession and enjoyment of Sy.Nos.586A or 587B on ground. Since the alleged gift deed is a fabricated document, the original gift deed is not filed in the Court. It is the plaintiffs who filed the unjust suit to take advantage of pleadings in the written statement of father of 1st defendant and his evidence in O.S.No.24 of 1991. The plaintiffs are never in possession of the property covered under alleged registered gift deed, dated 18.01.1982 and hence the suit filed under Section 26(c) of A.P.C.F. and S.V. Act is not maintainable in law.
8. On the basis of above pleadings, the learned trial Judge framed the following issues for trial:
(1) Whether the suit property originally belonged to Sunki Reddy and his two sons and a division in suit property fell to the share of Sunki Reddy?
4 VGKRJ s.a.1108 of 2011 (2) Whether the gift deed executed by G. Sunki Reddy and his wife, dated 18.01.1982 in favour of plaintiffs with respect to the plaint schedule property is true, valid and binding on the defendants?
(3) Whether the decree and judgment of the Senior Civil Judge‟s Court in O.S.No.24 of 1991 with respect to the plaint schedule property operates res judicata and same is binding on the defendants?
(4) Whether the defendants are the owners of the plaint schedule property and they are in possession of the same on the date of the suit?
(5) To what relief?
9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 to P.W.4 were examined and Exs.A.1 to A.5 were marked. On behalf of the defendants, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.4 were marked.
10. The learned trial Judge after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit. Felt aggrieved thereby, the unsuccessful plaintiffs filed the appeal suit in A.S.No.2 of 2010 wherein, the following points came up for consideration:
(1) Whether the plaintiffs are entitled the relief as sought in the plaint?
(2) Whether the appellants are entitled for setting aside the judgment and decree made in O.S.No.225 of 2003 on the file of the Junior Civil Judge‟s Court, Gooty, dated 28.10.2009?
11. The learned First Appellate Judge after hearing the arguments, answered the points, as above, against the defendants and allowed the appeal setting aside the decree and judgment passed by the learned trial Judge. Felt 5 VGKRJ s.a.1108 of 2011 aggrieved of the same, the unsuccessful defendants in O.S.No.225 of 2003 filed the present second appeal before this Court.
12. On hearing both sides counsel at the time of admission of the appeal, on 23.09.2011, the composite High Court of Andhra Pradesh at Hyderabad framed the following substantial questions of law:
(1) Whether the First Appellate Court was justified in decreeing the suit for bare injunction when P.W.1 (1st plaintiff) admitted that he had no record to show his possession or enjoyment of the suit land from the date of Ex.A.2, gift deed, till the year 2002?
(2) Whether the First Appellate Court was justified in relying upon Ex.A.4, pattadar pass book, obtained subsequent to the filing of the suit, and when an appeal was pending against Ex.A.4?
13. Heard Sri Vivekananda Virupaksha, learned counsel for the appellants and heard Sri Sivalenka Ramahchandra Prasad, learned counsel for the respondents.
14. The law is well settled that under Section 100 of CPC the High Court cannot interfere with the findings of fact arrived at by the First Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.
In a case of Bhagwan Sharma v. Bani Ghosh1, the Apex Court held as follows:
"The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which 1 AIR 1993 SC 398 6 VGKRJ s.a.1108 of 2011 was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature."
In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar2, the Apex Court held as follows:
"The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
15. The undisputed facts are one Gaggalapalli Sunki Reddy had two sons viz., G. Venkata Reddy and G. Rami Reddy and one daughter by name Sarojamma. The 1st plaintiff is husband of 2nd plaintiff, the 1st defendant is son of late Venkata Reddy and the 2nd defendant is wife of Venkata Reddy. Both parties in the suit are inter-related. The case of the plaintiffs is originally the suit schedule property is belongs to Sunki Reddy and his wife by name Laxmamma, they have gifted the suit schedule property under a registered gift settlement deed, dated 18.01.1982 in favour of the plaintiffs and delivered the possession of the suit schedule property to the plaintiffs under the said gift deed. The learned counsel for the appellants/defendants contended that except registration extract of gift settlement deed, no document is filed by the plaintiffs to show their possession and enjoyment in the suit schedule property. The learned counsel for the appellants/defendants would further contend that the said alleged gift deed is a fabricated document. Per contra, the learned counsel for the respondents/plaintiffs would contend that the defendants have not specifically denied the execution of registered gift settlement deed executed by Sunki Reddy and his wife. As seen from the written statement of the defendants, they have pleaded that the alleged execution of gift settlement 2 AIR 1999 SC 471 7 VGKRJ s.a.1108 of 2011 deed without joining other coparceners i.e., sons of late Sunki Reddy viz., Venkata Reddy and Rami Reddy makes the gift deed a void one and the alleged gift deed is not to the knowledge of the defendants, it was never acted upon and it is a forged and fabricated document. The contentions in written statement filed by the defendants goes to show that the execution of registered gift settlement deed by Sunki Reddy and his wife is not at all disputed by the defendants in the written statement, but they pleaded that it is a fabricated and forged document.
16. The alleged donors of the plaintiffs are paternal grandparents of 1st defendant. Venkata Reddy and Rami Reddy are the sons of Sunki Reddy. Venkata Reddy is no more. The 1st defendant is son and 2nd defendant is wife of late Venkata Reddy. The contention of the plaintiffs is that one Subba Laxmamma filed a suit in O.S.No.24 of 1991 on the file of Senior Civil Judge‟s Court, Gooty, against the father of 1st defendant and husband of 2nd defendant, Rami Reddy and the plaintiffs herein in respect of the same suit schedule property and after full pledged trial, the said suit was dismissed. Perused Ex.A.3 certified copy of the judgment in O.S.No.24 of 1991. In the said suit proceedings, the father of 1st defendant and husband of 2nd defendant by name late Venkata Reddy admitted the execution of registered gift settlement deed in favour of the plaintiffs herein by his father. In the written statement in O.S.No.24 of 1991, late Venkata Reddy admitted about the execution of gift deed in favour of the plaintiffs herein. The 1st defendant in O.S.No.24 of 1991 is wife of Sunki Reddy, she pleaded in the written statement itself that herself and her husband Sunki Reddy executed a registered gift settlement deed in favour of the plaintiffs herein at the time of marriage of 2 nd plaintiff with the 1st plaintiff and ever since the date of gift deed in favour of the plaintiffs, they are in possession and enjoyment of the suit schedule property.
17. The contention of the appellants/defendants is that late Sunki Reddy has no exclusive right in total suit schedule property and Sunki Reddy is 8 VGKRJ s.a.1108 of 2011 having 1/3rd share in the suit schedule property and his sons Venkata Reddy and Rami Reddy are having 1/3rd undivided share each in the suit schedule property. As stated supra, the execution of registered gift settlement deed, dated 18.01.1982 in favour of the plaintiffs by Sunki Reddy and his wife is admitted by the son of late Sunki Reddy viz., Venkata Reddy in the earlier suit proceedings in the year 1991. The said gift deed is unchallenged before any Court of law or no steps have been taken by the sons of Sunki Reddy or donors or appellants herein to cancel the earlier gift settlement deed said to have been executed in the year 1982. The specific case of the plaintiffs is that Sunki Reddy and his two sons Venkata Reddy and Rami Reddy orally partitioned the properties and subsequently it was reduced into writing on 21.02.1972 under original of Ex.A.1 and Sunki Reddy got suit schedule property in the present suit proceedings under a partition with his two sons. It is an admitted fact that Sunki Reddy had two sons late Venkata Reddy and Rami Reddy. Venkata Reddy is no other than the father of 1st defendant and husband of 2nd defendant and in O.S.No.24 of 1991 late Venkata Reddy admitted about the execution of registered gift settlement deed in favour of the plaintiffs herein. It is also made it clear that at the time of marking of the copy of the gift settlement deed attested by the Sub-Registrar concerned as Ex.A.2, no objection is raised by the sons of Sunki Reddy i.e., defendants herein during the course of trial. By giving cogent reasons, the learned trial Judge came to a conclusion and gave a specific finding that the suit schedule property was allotted to the share of Sunki Reddy in a family partition with the sons of Sunki Reddy under oral partition with his sons. The said issue was answered in favour of the respondents/plaintiffs. The said finding is unchallenged by the defendants in the First Appeal filed by the plaintiffs by way of cross objections. Therefore, the said finding of partition of the suit schedule property in between Sunki Reddy and his two sons and allotment of suit schedule property herein to the share of Sunki Reddy in the family partition reached its finality. Now the appellants herein cannot agitate in a Second Appeal proceedings without challenging the said finding in the First 9 VGKRJ s.a.1108 of 2011 Appeal proceedings that Sunki Reddy has got only 1/3rd share in the suit schedule property.
18. It is the contention of the appellants/defendants (son and wife of late Venkata Reddy) that late Venkata Reddy never executed a gift settlement deed. But as stated supra, in earlier suit proceedings in O.S.No.24 of 1991, the son of late Sunki Reddy himself admitted about the execution of registered gift settlement deed a way back in the year 1982 in favour of the plaintiffs. Moreover, one of the donors i.e., wife of Sunki Reddy admitted in earlier suit proceedings about the execution of registered gift settlement deed in favour of the plaintiffs and she also admitted about the delivery of possession under the registered gift settlement deed in favour of the plaintiffs. The contention of the appellants herein is that said Venkata Reddy is no more and they got the property by way of succession being a son and wife of late Venkata Reddy. Since late Venkata Reddy himself admitted about the execution of registered gift settlement deed in favour of the plaintiffs, now the legal representatives of late Venkata Reddy are not supposed to contend that the said gift settlement deed is not a genuine document.
19. The learned counsel for the appellants contended that by the date of alleged gift settlement deed, dated 18.01.1982, the marriage of the 1st plaintiff with 2nd plaintiff did not take place and that the gift deed is not a valid document. It was contended by the learned counsel for the appellants that the marriage of 1st plaintiff with 2nd plaintiff is performed on 31.01.1982. The learned counsel for the respondents/plaintiffs drew the attention of this Court by the date of 18.01.1982, the marriage invitation cards are printed. It seems during the talks for celebration of marriage the bridegroom party accepted for marriage and the parents of bridegroom party gifted the suit schedule property to the plaintiffs. The relationship in between the plaintiffs is not at all disputed by the defendants. It was contended by the appellants that none of the attestors are examined to prove the gift settlement deed. Section 68 of the 10 VGKRJ s.a.1108 of 2011 Indian Evidence Act, 1908, defines if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that, it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.
In the case on hand, one of the donors i.e., wife of Sunki Reddy as 1st defendant admitted in earlier suit proceedings about the execution of registered gift settlement deed in favour of the plaintiffs and also delivery of possession to the plaintiffs in the present suit. The son of late Sunki Reddy by name Venkata Reddy admitted about the execution of registered gift settlement deed in the earlier suit proceedings instituted in the year 1991. The appellants have not specifically denied the execution of registered gift settlement deed in the written statement itself but have taken a defence of forgery and fabrication. In the absence of any forgery or fabrication and in the absence of specific denial of execution of registered gift deed in the written statement, the donee was under no obligation to examine one of the attesting witnesses of a gift deed. Moreover, the execution of registered gift deed is admitted by one of the donors i.e., wife of Sunki Reddy in the suit proceedings in O.S.No.24 of 1991 and delivery of possession in the suit schedule property to the plaintiffs herein is also admitted by the wife of late Sunki Reddy. Furthermore, the son of late Sunki Reddy and his wife by name Laxmamma and late Venkata Reddy admitted about the execution of registered gift settlement deed in favour of the plaintiffs in earlier suit proceedings and the plaintiffs herein filed a copy of registered gift settlement deed attested by the Sub-Registrar concerned and the same was exhibited as Ex.A.2 in the present suit. Since execution of registered gift settlement deed under Ex.A.2 is 11 VGKRJ s.a.1108 of 2011 admitted by late Venkata Reddy and their mother in earlier suit proceedings, no credence will be given to the alleged statement of legal representatives of late Venkata Reddy that the alleged gift settlement deed is fabricated and forged and original gift deed is not yet proved.
20. It was contended by the learned counsel for the appellants that the alleged gift settlement deed was never acted upon and the names of the plaintiffs are not mutated in the revenue records. It is well settled that mutation of entries is only for a revenue purpose, existence of registered gift settlement deed is not in dispute, fraud and forgery as pleaded by the appellants in the present case is not at all proved by the appellants. The execution of registered gift settlement deed is admitted by one of the donors by name Lakshmamma i.e., wife of late Sunki Reddy and also admitted by the son of late Sunki Reddy and Lakshmamma by name late Venkata Reddy in earlier suit proceedings which are undisputed by both parties in the present suit. The contention of the appellants is that by way of natural succession after death of Venkata Reddy, they being legal representatives of late Venkata Reddy, are in possession of the plaint schedule property. Since the execution of registered gift settlement deed in favour of plaintiffs by late Sunki Reddy and his wife is admitted by the wife of Sunki Reddy and son of Sunki Reddy by name late Venkata Reddy in earlier suit proceedings, now the legal representatives i.e., late Venkata Reddy are not supposed to take an adverse plea that the said registered gift settlement deed is a fabricated one. The original of Ex.A.2 is a registered gift settlement deed, dated 18.01.1982 is in force, the same is not yet cancelled and the said registered gift settlement deed is executed by Sunki Reddy and his wife in favour of the plaintiffs and the same is in force. The recitals in Ex.A.2 goes to show that on 18.01.1982 under the said alleged registered gift settlement deed, the possession was delivered to the plaintiffs and donees accepted the said gift which was conferred by one of the donors in earlier suit proceedings. There is no evidence on record on which date or in which month or in which year, the plaintiffs were dispossessed from out of the plaint 12 VGKRJ s.a.1108 of 2011 schedule property. On the other hand, no rebuttal evidence is produced by the defendants to show that they paid land revenue to the Government in respect of the plaint schedule property and their names are mutated in revenue records. The registered gift settlement deed, dated 18.01.1982 is not yet cancelled till so far, therefore, the title is with the plaintiffs and the title follows possession. Moreover, the defendants did not adduce any legal evidence to show that they are in possession and enjoyment over the plaint schedule property.
21. It is another contention of the learned counsel for the appellants that the suit is filed on 01.09.2003, the pattadar passbook filed by the plaintiffs is said to have been issued on 10.10.2003 during the pendency of the suit and that no sanctity can be given to the said pattadar passbook. The learned counsel for the plaintiffs drew the attention of this Court that prior to filing of the suit itself, the plaintiffs applied for pattadar passbook and usually revenue department will not issue pattadar passbook after applying the same and after completion of proper procedure and after conducting detailed enquiry, the revenue authorities will issue pattadar passbook. He drew the attention of this Court that the application was submitted to the revenue authorities for issuance of pattadar passbook prior to issuance of pattadar passbook itself. The learned counsel for the appellants would contend that an appeal is filed before the Revenue Divisional Officer against issuance of pattadar passbook by the Tahsildar. No evidence is produced by the appellants to show that an appeal is filed against the said issuance of pattadar passbook by Tahsildar before District Collector. It is not yet the case of the appellants that the pattadar passbook issued in favour of the plaintiffs is canceled by the appellate authority and pattadar passbook was issued in favour of appellants. The present suit is an injunction simplicitor. Ex.A.2 is certified copy of registered gift settlement deed, which is sufficient to prove the symbolic title of the plaintiffs. As stated supra, execution of registered gift settlement deed in favour of the plaintiffs is proved by way of producing registration extract of gift 13 VGKRJ s.a.1108 of 2011 settlement deed. It is not the case of the defendants that late Venkata Reddy (father of 1st defendant and husband of 2nd defendant) acquired title in the plaint schedule property. As noticed supra, execution of registered gift settlement deed is admitted by late Venkata Reddy and one of the donors Lakshamamma in earlier suit proceedings by that date another donor is not alive, the wife of another donor i.e., Lakshmamma admitted the execution of gift settlement deed and also delivery of possession to the plaintiffs under the said registered gift settlement deed. Ex.A.2 shows the possession was delivered under a registered gift settlement deed. No legal evidence is produced by the appellants to show when the plaintiffs lost their possession in the plaint schedule property. As stated supra, the recitals in the registered gift settlement deed go to show that in the year 1982 itself the possession was delivered to the plaintiffs and the registered gift settlement deed is accepted by the donees i.e., plaintiffs which is supported by one of the donors, Lakshmamma and also son of the donors in the registered gift settlement deed.
22. The learned counsel for the appellants placed a reliance of Nagubai Ammal and others vs. B. Shama Rao and others3, wherein the Apex Court held as follows:
"An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, SO long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel."
As seen from Ex.A.3, there was a clear admission by late Venkata Reddy in earlier suit proceedings, now the legal representatives of late Venkata Reddy i.e., the defendants are not supposed to take a different plea in the present suit proceedings that the said registered gift settlement deed is a 3 AIR 1956 SC 593 14 VGKRJ s.a.1108 of 2011 fabricated document. Moreover, one of the donors i.e., wife of late Sunki Reddy i.e., mother of late Venkata Reddy and Rami Reddy admitted about the execution of original registered gift settlement deed and the donors also admitted that the possession was delivered to the plaintiffs under original of Ex.A.2 gift settlement deed. Furthermore, late Venkata Reddy himself admitted about the execution of registered gift settlement deed by his parents, now the legal representatives of late Venkata Reddy are not supposed to take a different plea which was taken by late Venkata Reddy.
23. The learned counsel for the appellants placed another reliance of J. Yashoda vs. K. Shobhan Rani4, wherein the Apex Court held as follows:
"The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section."
As noticed supra, the plaintiffs produced the certified copy of registered gift settlement deed attested by the Sub-Registrar and the same is marked as Ex.A.2. At the time of marking of document, the defendants have not raised 4 AIR 2007 SC 1721 15 VGKRJ s.a.1108 of 2011 any objection. Moreover, the existence of registered gift settlement deed is not at all disputed by the defendants in the written statement itself and they have taken a plea of alleged forgery and fabrication, but the same is not at all proved by the appellants.
24. The learned counsel for the appellants placed another reliance of S. Sravan Kumar vs. The District Collector and others5, wherein the Division Bench of this Court held as follows:
"All the documents that are now produced by the petitioner in the Tribunal as well as in this Court by way of additional material papers i.e., S.S.C. Certificate, Family Member Certificate and Voter registration card, are all obtained subsequent to the date of the death of the deceased Subba Rao on 20.09.2011. Undoubtedly, they are obtained on the basis of the said registered adoption deed, dated 25.09.2009 that was brought into existence in the year 2009. As all these documents are subsequent to the death of the deceased in the year 2011 and as by that time, a claim for compassionate appointment was already made, undoubtedly all these documents which are now produced by the petitioner, are hit by the principle of post litem motam documents. As per the said principle of law, the documents which came into existence after dispute commenced will not have any evidentiary value".
In the case on hand, the registration of gift settlement deed is happened in the year 1982, earlier suit proceedings are instituted in the year 1991, the present suit proceedings are instituted in the year 2003 much later than the execution of registered gift settlement deed.
25. The learned counsel for the appellants placed another reliance of Gutta Venkatramana and others vs. Gutta Suiddappa Naidu and others 6, wherein this Court held as follows:
52023: APHC:11568 = MANU/AP/0638/2023 6 2022:APHC:23840 = MANU/AP/1285/2022 16 VGKRJ s.a.1108 of 2011 "It is pertinent to mention here that lower appellate Court considered Exs.B5 to B12 and held that they are post-litem documents. These post litem documents were pressed into service by defendant to show that he is in possession of the plaint schedule property. However, while considering post-litem documents, they must be considered very cautiously. In fact, trail court observed the discrepancies in Ex B5, B6 etc. However, defendant did not explain those discrepancies. Apart from that Ex B5 to B12, which are post litem motam cannot have any evidentiary value. They were emanated after filing of the suit. They cannot decide the possession of the parties on the date of filing of the suit".
In the case on hand, no legal evidence is produced by the appellants/ defendants to show that they are having prima facie title and possession in the plaint schedule property.
26. The learned counsel for the appellants placed another reliance of Balappa Tippanna vs. Asangappa Mallappa and others 7 , wherein the Karnataka High Court held as follows:
It should be noted that under the Transfer of Property Act, the deed of gift can only be valid if it is executed and duly attested by at least two witnesses and is registered. Due execution, attestation and registration are therefore the very foundations on which the validity of a deed of gift depends. The plaintiff will have to prove the same before he can get a decree thereon. All that the proviso states is that it will not be necessary, (if the execution of the document is not specifically denied) to prove the due execution and attestation thereof by calling an attesting witness.
The proviso cannot be construed as meaning that the document will in such a case prove by itself. The next effect of S. 68, in my opinion, is that if the execution of a document of this nature is specifically denied, then an attesting witness to prove the same. But the document all the same 7 AIR 1960 Kant 234 17 VGKRJ s.a.1108 of 2011 will have to be proved. This is also the view which was taken by their Lordships of the Rangoon High Court in the case reported in R.M.A.R.M. Chettyar Firm v. U. Htaw, ILR 11 Rang 26 : (AIR 1933 Rang 6). Chief Justice Sir Arthur Page in his judgment held on this point that in His Lordship's opinion:
"the meaning and effect of S. 68 is that in the case of a mortgage within S. 59 of the Transfer of Property Act it is incumbent upon the party relying upon it to prove the due execution of the mortgage by adducing the evidence of at least one attesting witness in that behalf as laid down in S. 68 of the Evidence Act, provided that unless its due execution, that is to say, its signature by the mortgagor in the presence of two attesting witnesses is specifically denied, the execution of the mortgage deed in the form required by law may be proved 'aliunde' by adducing other evidence in that behalf."
His Lordship further held as follows:
"the proviso to S. 68 only removes the necessity of calling an attesting witness to prove the execution of the documents therein referred to and does not purport to relieve the party of the necessity of proving a mortgage in the form prescribed under S. 59 of the Transfer of Property Act."
It would be seen that the view which I am taking in this case was also the view taken in the said Rangoon case.
In a case of Govindbhai Chhhotabhai Patel and others vs. Patel Ramanbhai Mathurbhai8, the Apex Court held as follows:
In Kannan Nambiar v. Narayani Amma and others, 1984 SCC OnLineKer.174 = 1984 KLT 855, the Division Bench of the Kerala High Court was considering a suit filed by daughter of a donee claiming share in the property. The gift deed was admitted in evidence without any objection. The Court held that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. The Court held as under:
"14. Ab initio we have to examine whether there is any specific denial of the execution of the document, in the pleadings. Before considering whether there 8 2019(6) ALD 59 (SC) 18 VGKRJ s.a.1108 of 2011 is specific denial we have to consider what is the exact requirement demanded when the proviso enjoins a specific denial. „Specific‟ means with exactness, precision in a definite manner (See Webster's 3rd New International Dictionary). It is clear, that something more is required to connote specific denial in juxtaposition to general denial. (See Dashrath Prasad v. Lallosing, AIR 1951 Nag. 343).
15. We think that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution. What has to be specifically denied is the execution of the document. Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executant cannot be gathered, for the denial contemplated in the proviso.
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18. The question which elicited the above answer gives a clear understanding of the case of the defendants as they understood their case. Defendants have no case that no document was executed by Anandan Nambiar. Their case is that the document is not valid because it had been executed under circumstances which would render the document invalid. There is no specific denial of the execution of the document. The respondents can seek the aid of the proviso to S. 68 of the Evidence Act. No defect in not calling an attesting witness to prove the document. We do not think that we can ignore Ext. A1 gift deed on the ground that no attesting witness has been called for, for proving the gift deed."
In the aforesaid case law, the Apex Court further held as follows:
"The facts of the present case are akin to the facts which were before the Kerala High Court in Kannan Nambiar‟s case (supra). The appellants have not denied the execution of the document but alleged forgery and fabrication. In the absence of any evidence of any forgery or fabrication and in the absence of specific denial of the execution of the gift deed in the manner held in Kannan Nambiar‟s case (supra), the Donee was under no obligation to examine one of the attesting witnesses of the gift deed".
In the case on hand, certified copy of registered gift settlement deed is produced and marked as Ex.A.2 as a secondary evidence of a public document, such certified copy is issued by the Registering Officer. The certified copy issued by Sub-Registrar Office will amply proves about the registration of gift deed which was duly proved through P.W.4, Sub-Registrar.
19 VGKRJ s.a.1108 of 2011 As per the evidence of P.W.4, he is working as Sub-Registrar, Gooty since 12.02.2007 and he brought the thumb impression register for the year 1982 as summoned by the Court. As per serial No.69, dated 18.01.1982 the thumb impression of Gajjala Sunki Reddy and Lakshmamma were obtained as executants, Ex.A.2 was registered in their office vide document No.69/1982, dated 18.01.1982.
27. Primary and secondary evidence stands explained by a Constitutional Bench of the Apex Court in Cement Corporation of India Limited vs. Purya9, (5-Judges Bench) as the former being evidence that the law requires to be given first, the latter being evidence that may be given in the absence of that original evidence when a proper explanation of its absence has been given. The terms "primary and secondary" evidence apply to the kinds of proof that may be given to the contents of the document, irrespective of the purpose in which contents, when proved, may be received. It is also well settled that when the copies are produced in the absence of original document, they become good secondary evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original. As stated supra, Ex.A.2 is certified by the Sub-Registrar concerned on thorough verification of the concerned register in the Sub-Registrar Office which was proved and registration of Ex.A.2 is proved through P.W.4.
28. The present suit is filed for seeking relief of prohibitory injunction which is an injunction simplicitor. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration or possession with injunction as a consequential relief are well settled by the Apex Court where a plaintiff is in a lawful or peaceful possession of the property and such possession is interfered or threatened by a defendant a suit for injunction simplicitor will lie. A person as a right to protect his possession against any person, who does not prove better title by seeking 9 (2004) 8 SCC 270 20 VGKRJ s.a.1108 of 2011 prohibitory injunction. But, a person in wrongful possession is not entitled to an injunction against the original owner. In the case on hand, by virtue of a registered gift settlement deed which was executed in the year 1982, the possession and title was transferred to the plaintiffs, the said gift settlement deed is unchallenged by the donors or the children of donors or the grand- children of donors till so far. No legal evidence is produced by the appellants to show that they acquired prima facie title in the plaint schedule property and they are in lawful possession and enjoyment over the plaint schedule property.
29. The learned counsel for the appellants placed a reliance of Kerala High Court in Kurian Chacko vs. Varkey Ouseph10. The ratio laid down in the said case is applicable to the declaration of title and recovery of possession of immovable property, but not an injunction simplicitor.
30. The learned counsel for the appellants placed another reliance of the Full Bench of the Apex Court in Santosh Hazari v. Purushottam Tiwari (dead) by LRs.11.
In the case on hand, no legal evidence is produced by the defendants to prove they are having prima facie title or possession over the plaint schedule property. They did not choose to adduce any evidence to prove the plea of alleged adverse possession as pleaded by the defendants in the written statement.
31. The learned counsel for the appellants would contend that the 1st plaintiff did not show the suit schedule property in the schedule annexure to the I.P.No.24 of 2006 filed by the 1st plaintiff and the 1st plaintiff is not in possession of the suit schedule property. The suppression of assets in an insolvency proceedings is a subject matter of Insolvency Petition and it is for 10 AIR 1969 Ker 316 11 2001 (2) ALD 40 (SC) 21 VGKRJ s.a.1108 of 2011 the Insolvency Court to look into that aspect which is a ground for dismissal of the Insolvency Petition.
32. The learned counsel for the appellants contended that the First Appellate Court granted a relief of injunction without proof of possession and placed a reliance of Hero Vinoth vs. Seshammal12. But, in the case on hand, as stated supra, the possession of the plaint schedule property was delivered to the plaintiffs a way back in the year 1982 itself under a registered gift settlement deed which was unchallenged till so far. The execution of gift settlement deed is admitted by the donors in the earlier suit proceedings and also admitted by the son of the donors by name late Venkata Reddy in earlier suit proceedings, therefore, now the legal representatives of one of the sons of the donors cannot canvass that the said alleged gift settlement deed is a fabricated document. Furthermore, no rebuttal evidence is produced by the appellants to show that when the plaintiffs were dispossessed from out of the suit schedule property.
33. The learned counsel for the respondents/plaintiffs drew attention of this Court that none of the questions of law are not much substantial questions of law, those are factual aspects, therefore, there are no merits in the second appeal and placed a reliance of Satyender and others v. Saroj and others13, wherein the full bench of Apex Court held as follows:
"Be that as it may, though the requirement of formulation of a substantial question of law was not necessary, yet Section 41 of the Punjab Courts Act, requires that only such decisions are to be considered in second appeal which are contrary to law or to some custom or usage having the force of law or the court below have failed to determine some material issue of law or custom or usage having the force of law. Therefore, what is important is still a "question of law". In other words, second appeal is not a forum where court has to re-examine or re-appreciate questions of 12 AIR 2006 SC 2234 13 2022 (5) ALD 82 (SC) 22 VGKRJ s.a.1108 of 2011 fact settled by the Trial Court and the Appellate Court. The plaintiffs had claimed right over certain agricultural land and their case was that they have the right to be declared the owner of this property and the possession be handed over to the them, for the reasons that on this particular property defendants and their predecessors-in-interest were the tenants of the plaintiffs. Their case was that defendant No. 2 was their tenant who had sub-let the property in favour of his son, that is defendant No. 1 and therefore, the property should be reverted back to the plaintiffs and they should be declared the owner and should be given the possession of the property as well. Both the Trial Court as well as the First Appellate Court had held after evaluating the evidence placed by the plaintiffs that the defendant No. 2 and his brothers (who were not even made a party by the plaintiffs) were the tenants on the property and defendant No.2 had not sub-let the property in favour of his son that is defendant No. 1 and the revenue entries being made in this regard in the year 1978 are wrong and without any basis as there was no order of any revenue authority for making such an entry. In short, the plaintiffs had failed to prove their case as owner of the land in dispute. Hence their case of declaration and possession was dismissed. The Second Appellate Court however, quite erroneously, and without any justification, gave an entirely new finding regarding two Killa Nos. 21//3/2 and 7//13 on which the plaintiffs claimed relief of declaration and possession, on the same grounds as raised by them for the other Killa Nos. The pleadings also show that the defendants had made a general denial of the plaintiffs‟ claim for all the plots. Yet, the High Court held that since the defendants had not made any claim for plot nos. 21//3/2 and 7//13 and therefore by logic a decree of declaration of possession ought to have been given to the plaintiffs for these plots! This reasoning of the second Appellate Court is erroneous for the simple reason that the burden of proof was on the plaintiffs to prove their case, which they had failed. They have not been able to prove to the satisfaction of the Trial Court as well as the First Appellate Court about their claim of any kind over this property. Merely because the defendant did not raise a counter claim on this 23 VGKRJ s.a.1108 of 2011 property it would not ipso facto mean that a decree ought to have been granted in favour of the plaintiffs. Plaintiffs have to prove their case on the strength of their evidence. For this reason, the reasoning given by the Second Appellate Court for decreeing the claim of the plaintiff for plot nos. 21//3/2 and 7//13 is incorrect and to that extent is liable to be set aside".
In Santosh Hazari's case (9 supra), the Apex Court held as follows:
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis".
In the case on hand, the execution of registered gift settlement deed is happened a way back in the year 1982, the same is undisputed by the donors and son of donors by name late Venkata Reddy in earlier suit proceedings. The donees under the registered gift settlement deed are no other than the daughter and son-in-law of the donors. As seen from the recitals of the gift settlement deed, the possession was delivered to the donees i.e., plaintiffs and the gift is accepted by them, no rebuttal evidence is placed by the appellants to show on which date or in which month or in which year the plaintiffs are 24 VGKRJ s.a.1108 of 2011 dispossessed from out of the plaint schedule property. Furthermore, no rebuttal evidence is adduced by the defendants to show that they paid land revenue to the government and their names are mutated in the revenue records. The registered gift settlement deed, dated 18.01.1982 which is more than 40 years document is not yet canceled till so far. Therefore, the title is with the plaintiffs and the title follows possession. Moreover, the defendants did not adduce any legal evidence to show they are in possession and enjoyment over the plaint schedule property.
34. In the case on hand, oral and documentary evidence is produced by both the parties before the trial Court, the First Appellate Court analyzed the evidence carefully and in effect found that the trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies which were not material. There was no infirmity in the reasoning of First Appellate Court which called for interference. Right of appeal is not an automatic. Right of appeal is conferred by statue. When a statue confers a limited right of appeal restricted only to cases which involves substantial questions of law, it is not open to this Court to sit an appeal over the factual findings arrived by the First Appellate Court. Furthermore, the questions raised in a second appeal did not meet the mandatory requirements as laid down by the Apex Court for holding that the questions are substantial questions of law. Therefore, I held that there was no question of law, let alone any substantial question of law, involved in the second appeal.
35. For the aforesaid reasons, the second appeal is liable to be dismissed.
36. In the result, the Second Appeal is dismissed. Considering the facts and circumstances of the case, each party do bear their own costs in the second appeal.
25 VGKRJ s.a.1108 of 2011 As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.
________________________________________ V.GOPALA KRISHNA RAO, J Date: 20.06.2025 PGR 26 VGKRJ s.a.1108 of 2011 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO Second Appeal No.1108 OF 2011 Date: 20.06.2025 PGR