Andhra HC (Pre-Telangana)
Pediredla Lakshminarayana Alias ... vs Pediredla Simhachalam And Ors. on 18 January, 2007
Equivalent citations: 2007(3)ALD372
JUDGMENT P.S. Narayana, J.
1. The unsuccessful plaintiff in O.S.No.107 of 1982 on the file of Subordinate Judge, Kakinada, filed the present appeal aggrieved by the decree and judgment made by the learned Judge, dated 29.07.1988, dismissing the suit with costs and directing the plaintiff to pay the court fee on the plaint.
2. The suit was instituted as an indigent person praying for the relief of partition of the plaint schedule properties, delivery of possession, future profits and the other reliefs.
3. The learned Subordinate Judge, Kakinada, on the strength of the respective pleadings of the parties having settled the issues, recorded the evidence of P.Ws.1 to 6, D.Ws.1 to 5, marked Exs.A1 to A7, Exs.B1 to B16 and Ex.C1 and came to the conclusion that the appellant-plaintiff is not entitled to any of the reliefs prayed for and ultimately, dismissed the suit with costs. Aggrieved by the same, the present appeal is preferred.
4. Heard the learned Counsel on record and perused the oral and documentary evidence available on record.
5. Sri Subhash Chandra Bose, learned Counsel representing the appellant- plaintiff, had taken this Court through the respective pleadings of the parties and the evidence available on record and would contend that erroneous findings had been recorded relating to the status of the plaintiff in the context of whether the plaintiff is the son of the deceased father or not. The learned Counsel also placed strong reliance on Ex.A1 and would contend that the findings recorded by the learned Judge in the light of Ex.B16 in this regard, cannot be sustained, especially, in the light of the voluminous oral evidence available on record in relation to the relationship. The learned Counsel also would submit that even the findings recorded by the learned Judge on the question of limitation are vague findings and in the light of the evidence available on record adduced on behalf of the appellant-plaintiff, the learned Judge should have arrived at the conclusion that the suit is within limitation.
6. Per contra, Sri Jithender Rao, learned Counsel representing the contesting respondents-defendants, would maintain that in the light of the clear evidence of D.Ws.1 to 5 and also the voluminous documentary evidence Exs.B1 to B16, it is clear that the very status of the appellant-plaintiff had not been proved. Even otherwise, the learned Counsel would submit that the present suit cannot be said to be within the period of limitation either under Article 60 of the Limitation Act, 1963 (hereinafter for short referred to as "the Act") or under Article 109 of the Act. The counsel also relied on certain decisions. Hence, the learned Counsel would contend that the findings are to be confirmed and the appeal to be dismissed.
7. The parties hereinafter for the purpose of convenience would be referred to as plaintiff and defendants as arrayed in O.S.No.107 of 1982 on the file of Subordinate Judge, Kakinada.
8. The plaintiff filed the suit as an indigent person claiming the relief of partition. It was pleaded in the plaint that the plaintiff is the son of the first defendant, and his father late Suryanarayana was unhealthy and was not worldly-wise man and the first defendant is his wife. The plaintiff was born on 18.09.1955 and his father died in the year 1957. It was also pleaded that the plaint "A" and "B" schedule properties are the ancestral properties of the father of the plaintiff and the plaintiff as well, and thus, the plaintiff is having share in all the plaint "A" and "B" schedule properties. It was further pleaded that the plaint schedule properties are in possession of defendant Nos.2 to 4. The father of the plaintiff became a pawn in the hands of his mother Ammanna, who died on 26.10.1980 and she managed to get some document executed by her son with regard to the family properties and they are benami transactions and never intended to be acted upon. It was also pleaded that Ammanna made her son to execute a settlement deed, dated 20.01.1954, in relation to the plaint "A" schedule properties and again she reconveyed the same in favour of her son on 14-04-1955 by executing another settlement deed. The third defendant died pending disposal of the suit and the legal representatives were brought on record as Defendant Nos.5 to 9 by virtue of an order made on 31.12.1954 in I.A. No. 4090 of 1984.
9. Defendant Nos.2 to 4 filed written statement denying the allegations and taking a specific stand that the plaintiff is not the son of the said Suryanarayana and the date of birth also had been denied. It was also pleaded as hereunder:
Late Pediredla Suryanarayana was afflicted with virulent leprosy and his wife did not live with him in the year 1954 or 1955 and there was no possibility for 1st defendant to conceive any pregnancy through her husband give birth to any child. Late Suryanarayana was incapable of procreating any children due to disease. The 1st defendant ceased to live with her husband since some years prior to 16-4-1955 as Suryanarayana was afflicted with virulent leprosy. The 1st defendant refused to live with her husband and it was agreed ultimately for the settlement before elders, and in pursuance of that settlement, the 1st defendant executed a release deed in favour of her husband and settlement deed is executed by Suryanarayana in favour of the 1st defendant on 16.04.1955. No children were born to Suryanarayana at any time and the first defendant was living separately and the defendants are not aware the date of death of Suryanarayana, and the plaintiff has no share in the plaint A and B schedule properties. Suryanarayana alienated his properties as sole surviving coparcener. The plaintiff is not an indigent person. The plaintiff has to prove that Pediredla Ammanna, the mother of Suryanarayana died on 26.09.1980. It is false to allege that the mother of Suryanarayana managed to get some documents by Suryanarayana with regard to the family properties. It is false to allege that she got settlement deed dt. 20.01.1955 by her son in respect of the plaint schedule property and again she reconveyed the same property to her son on 14.04.1955 by another document. It is false to allege that the defendants 2 to 4 got some nominal documents to which the petitioner is not aware and that they came into possession of his family properties. Late Pediredla Suryanarayana executed the settlement deed dt: 20.01.1955 for one acre of land in favour of his mother, Ammanna. On 2.1.1961, Pediredla Suryanarayana executed a gift deed to Pediredla Ammanna, ediredla Apparao, Pediredla Simhachalam obtained dated 08.10.1958 from Pediredla Ammanna. Pediredla Suryanarayana executed another sale deed dated 2.1.1956 in favour of Pediredla Manikyam conveying Ac.92/2/3 cents covered by S.No.345 of Samalkot Village. By then, the plaintiff was not born. Pediredla Ammanna executed a sale deed in favour of Pediredla Manikyam of vacant site. So also Pediredla Ammanna sold away her property under the sale deed dated 8.10.1958, to Sannibabu and the 4th defendant. The 2nd defendant is the wife Sannibabu. D-2's husband, defendants 3 and 4 are brothers and sons of Achanna. The plaintiff is not entitled for any partition in the said property. The suit filed by the plaintiff is barred by limitation. The defendant 2 to 4 perfected their title in the plaint schedule property by adverse possession.
10. The legal representatives of the third defendant filed a memo of adoption adopting the written statement filed by defendant Nos.2 to 4 earlier.
11. On the strength of the respective pleadings of the parties, the following issues were settled before the trial Court:
1. Whether the plaintiff is the son of Pediredla Suryanarayana ?
2. Whether the plaintiff is entitled for half share in the plaint A and B schedule properties ?
3. Whether the defendants 2 to 4 perfected their title ?
4. Whether the documents executed by Pediredla Suryanarayana is not binding on the plaintiff ? 5. Whether the suit is barred by time ? 6. To what relief ?
12. On behalf of the plaintiff, P.Ws.1 to 6 were examined and Exs.A1 to A7 were marked. On behalf of the defendants, D.Ws.1 to 5 were examined and Exs.B1 to B16 were marked. Ex.C1 was also marked.
13. The learned Judge on appreciation of the oral and documentary evidence, came to the conclusion that the status of the plaintiff as the son of Suryanarayana had not been established, and also came to the conclusion that the suit is barred by limitation and negatived the reliefs prayed for.
14. In the light of the rival contentions of the counsel on record, the following points arise for consideration in this appeal:
1.Whether negativing the relief of partition to appellant-plaintiff can be said to be justified in the facts and circumstances of the case ?
2. Whether the suit can be said to be within limitation in the facts and circumstances of the case ?
3.If so, to what relief the parties would be entitled to ?
POINT No.1:
15. The plaintiff examined himself as P.W.1, and P.Ws.2 and 3 are the maternal uncles of the plaintiff and P.W.4 is a resident of Samalkot, who deposed about the relationship between the plaintiff, his mother and father Suryanarayana. P.W.5 is the brother-in-law of P.Ws.2 and 3. P.W.6- the first defendant in the suit is none other than the mother of the plaintiff. Ex.A1 is the certified copy of the extract of Birth Register showing the date of birth of the plaintiff as 18.09.1955 and showing the father's name as Pediredla Suryanarayana. Ex.A2 is the registration extract of the settlement deed, dated 21.09.1954, Ex.A3 is the registration extract of the settlement deed, dated 14.04.1955, Ex.A4 is the postal acknowledgment, Ex.A5 is the registration extract of the sale deed, dated 13.06.1962, Ex.A6 is the registration extract of the sale deed, dated 22.02.1964, Ex.A7 is the photo print and negative.
16. The first defendant though remained exparte, she was examined as a witness who had supported the version of the plaintiff. The respective pleadings of the parties already had been referred to supra. On behalf of the defendants, the fourth defendant was examined as D.W.1 and D.Ws.2 to 4, the residents of Samalkot had deposed about the virulent form of leprosy with which Pediredla Suryanarayana had been suffering from his childhood. Most probably, this evidence was let in to establish the improbability of the said person getting a child at all, in other words, to deny the status of the plaintiff. Ex.B1 is the notice dated 02.06.1980, Ex.B2 is the office copy of the reply notice dated 18.06.1980, Ex.B3 is the original of Ex.A2, Ex.B4 is the registered settlement deed dated 02.01.1956, Ex.B5 is the registered sale deed dated 10.10.1985, Exs.B6 and B7 are the registered relinquishment deed and the registered sale deed dated 16.04.1955 and 02.01.1956 respectively. Exs.B8 and B10 are the discharge promissory notes dated 12.06.1952 and 25.03.1954 and Ex.B9 is the endorsement on Ex.B8, Ex.B11 is the endorsement on Ex.B10, Ex.B12 is the registered sale deed dated 08.10.1958, Ex.B13 is the discharge pronote dated 10.08.1957, Ex.B14 is the endorsement on Ex.B13, Ex.B15 is the challan for obtaining the Birth Certificate copy from Samalkot Municipality and Ex.B16 is the endorsement given by Commissioner, Samalkot Municipality. Ex.C1 is the endorsement of M.R.O. Samalkot on witness summons dated 08.09.1987.
17. Apart from recording clear findings relating to the oral evidence available on record, Ex.A1 and Ex.B16 had been considered at length and in the light of Ex.B16, Ex.A1 was disbelieved. Thus, findings in detail had been recorded to the effect that the plaintiff was unsuccessful in establishing his status as the son of P.Suryanarayana to claim partition in the family properties in question. It is no doubt true that voluminous oral evidence had been placed on record. The first defendant- the mother of the plaintiff had supported the version of the plaintiff. But as against this evidence, in one voice, D.W.1 well supported by D.Ws.2 to 5 had stated the manner in which the said Suryanarayana was suffering from leprosy and the improbability of begetting children. The other documentary evidence apart from the oral evidence also had been discussed at length.
18. In the light of the endorsement given by the Commissioner under Ex.B16, the findings recorded in relation to Ex.A1 and incidentally relating to the status of the plaintiff, cannot be found fault. Hence, in view of the same, the other voluminous oral evidence available on record need not be dealt with at length and accordingly, the said findings recorded by the trial Court in this regard are hereby confirmed. POINT NO.2:
19. On the question of limitation, no doubt, the learned Judge had not recorded proper findings. Reliance was placed in the case of Om Prakash v. Divisional Superintendent, Northern Rly . The learned Counsel also would place strong reliance in the case of Ganapati Sankaram Bhosale and Anr. v. Ramachandra Subbarao Kulkarni and Ors. .
Article 60 of the Limitation Act, 1963 reads as hereunder:
Description of Suit Period of Limitation Time from which period
begins to run
To set aside a transfer of property (a) by the ward who has Three years
made by the guardian of a ward. attained majority.
(b) by the ward's legal Three years
representative.
(i) When the ward dies Three years
within three years from
the date of attaining
majority.
(ii) When the ward dies
before attaining majority.
When the ward attains majority. When the ward attains When the ward dies.
majority.
Likewise, Article 109 of the Limitation Act, 1963 reads as hereunder:
Description of Suit Period of Limitation Time from which period
begins to run
By a Hindu governed by Mitakshara Twelve years When the alienee takes
law to set aside his father's possession of the prope-
alienation of ancestral property rty.
20. Even if the case of the plaintiff to be taken into consideration, as on the date of the institution of the suit, the plaintiff was aged 24 years. In view of the same, it is needless to say that Article 60 of the Act is not applicable. Even if it is to be taken that within twelve years, a suit can be brought in by the plaintiff, if the dates of alienations are taken into consideration, the suit had been instituted far beyond the period of limitation of twelve years. Though the findings recorded by the learned Judge on the question of limitation are not happily worded, in the light of clear legal position, this Court is of the opinion that the suit is barred by limitation as well.
POINT NO.3:
21. In the light of the findings recorded above, the findings of the trial Court need not be found fault in any way and accordingly, the appeal shall stand dismissed, and in the peculiar facts and circumstances of the case, the parties to bear their own costs.