Andhra HC (Pre-Telangana)
Paka Venkaiah vs Taduri Buchi Reddy And Ors. on 23 June, 2004
Equivalent citations: 2004(4)ALD889
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1.These two second appeals arise out of two first appeals, being A.S. Nos. 17 of 1999 and 3 of 2000, which in turn arose out of the decree in O.S. No. 155 of 1991. Hence, they are dealt within a common judgment. The plaintiff is the appellant. For the sake of convenience, the parties shall be referred to as arrayed in the suit.
2. Paka Venkayya, the plaintiff, filed O.S. No. 155 of 1991 in the Court of Junior Civil Judge, Ramannapet against the defendants for the relief of recovery of possession of the suit schedule property comprising of Ac.6.35 guntas in Survey No. 122 of Thupranpet Village, Choutuppal Mandal, Nalgonda District. According to him, the land was held by one Paka Mallamma, as protected tenant, and thereafter ownership rights were conferred upon her in relation to that land. He pleaded that his grandfather Paka Mutyalu and husband of Paka Mallamma, viz. Paka Venkayya are brothers and he became the sole legal heir of Paka Mallamma, after her death in the year 1979. It was also his case that Defendants 1 to 4 were the tenants in respect of the land and they were giving the crop share to him till the year 1984-85. Thereafter, they are alleged to have refused to give the crop share stating that they purchased the suit schedule property from Paka Mallamma through registered sale deeds dated 7.2.1985 and 27.2.1985, marked as Exs.A6 and A8. Defendants 1 to 4 sold the property in favour of Defendants 5 and 6. He contended that the sale deeds are forged, inasmuch as they were brought into existence after the death of Mallamma and no title can be said to have passed on to the defendants.
3. While the Defendants 1 to 4 filed a common written statement, Defendants 5 and 6 filed separate written statements. Their plea was that Defendants 1 to 4 were cultivating the property on crop share basis as tenants of Paka Mallamma till the year 1985, and through Documents No. 205 and 283 of 1985, Mallamma executed sale deeds, alienating the property in favour of Defendants 1 to 4. They also stated that out of the suit schedule property, they sold Ac.2.00 in favour of the fifth defendant, and Ac.4.00 in favour of the sixth defendant through separate sale deeds. It was their uniform case that Defendants 5 and 6 are in possession and enjoyment of the suit schedule property. They denied the claim of the plaintiff as the legal heir of late Paka Mallamma.
4. The Trial Court framed as many as nine issues and one additional issue. The prominent, among them, are Issues 1 to 3 and additional Issue No. 1, which read as under:
"Issue Nos. 1 to 3:
(1) Whether the plaintiff is sole legal heir and successor in interest of one Paka Mallamma alleged grandmother of the plaintiff?
(2) Whether the plaintiff is the exclusive and absolute owner of the suit schedule lands?
(3) Whether the registered sale deeds Documents No. 204/85 and 205/85, dated 7.2.1985 and 483/95 dated 17.2.1985 in favour of the defendants are true, valid and binding?
Additional Issue: Whether the Defendants 5 and 6 are bona fide purchasers for valid consideration in the absence of declaring these sale deeds as void against the plaintiff, the suit is not maintainable?
Rest of them are only formal.
5. The plaintiff examined himself as P.W.1 and examined five more witnesses as P.Ws.2 to 6. He filed Exs.A1 to A16. Important among them are Exs.A6 to A9, which are sale deeds in relation to the property. On behalf of the defendants, D.Ws.1 to 7 were examined and Exs.B1 to B23 were marked. Through its judgment dated 30.1.1999, the Trial Court decreed the suit.
6. Defendants 1 to 4 did not prefer any appeal, obviously because they ceased to be the owners of the land, with the transfer in favour of Defendants 5 and 6. Defendant No. 5 filed A.S.No. 17 of 1999 and Defendant No. 6 filed A.S.No. 3 of 2000 in the Court of Senior Civil Judge, Bhongir. Through a common judgment dated 17.12.2003, the lower appellate Court reversed the judgment and decree of the Trial Court. Hence these two second appeals by the plaintiff.
7. Sri A. Anantha Reddy, learned Counsel for the appellant, submits that the Trial Court recorded specific findings that the defendants did not dispute that Paka Mallamma was the original owner of the land and the Trial Court recorded a finding that the plaintiff is the sole legal heir of late Mallamma. He submits that once the ownership of the land is traced and the succession to the original owner is established, there is no alternative except to pass a decree for delivery of possession of the property. It is his specific case that Mallamma died in the year 1979, whereas the sale deeds in favour of defendants were said to have been executed in 1985 and in that view of the matter, the burden squarely fell upon the defendants to establish that the sale deeds Exs.A6 to A9 were true and genuine. He submits that the Trial Court properly placed the burden upon the defendants and recorded a finding, whereas the lower appellate Court committed an error in holding that it was for the plaintiff to prove and establish that the sale deeds were not genuine or legal. Learned Counsel points out that the record speaks for itself and there was no justification for the lower appellate Court in interfering with the decree passed by the Trial Court.
8. Sri H. Venugopal, learned Counsel for Defendants 5 and 6, submits that except the self-serving statement of the plaintiff, hardly there exists any material to establish that he is the legal heir of late Paka Mallamma. He submits that the Trial Court framed an issue touching on the ownership of the suit schedule property, though no relief of declaration of title was sought for. It is his case that the suit for mere recovery of possession, without the relief of declaration was not maintainable. He contends that the Trial Court placed the burden upon the defendants in the matter of genuinty of the sale deeds contrary to law and this material irregularity was corrected by the lower appellate Court. It is his case that the version of the plaintiff as presented during the course of evidence was substantially different from the one pleaded in the plaint. He further contends that any factor, such as, fraud, mis-representation, coercion and threat ought to have been specifically pleaded by the plaintiff and proved through proper evidence to establish the plea that the sale deeds were tainted.
9. The plaintiff claims to be the sole legal representative and heir of late Paka Mallamma. There is no dispute that Paka Mallamma was the original owner of the suit schedule property. The plaintiff did not dispute the fact that Defendants 1 to 4 were tenants of Paka Mallamma. He sought the relief of recovery of possession on the plea that Paka Mallamma died in the year 1979, thereafter he became the absolute owner of the suit schedule land. He pleaded that Defendants 1 to 4 were paying the crop share in respect of the suit land to him till the year 1984-85 and thereafter refused to give the share, by alleging that they purchased the property from Mallamma.
10. Two important questions arise for consideration in the matter viz., whether the plaintiff is the legal heir of late Mallamma and whether the sale deeds Exs.A6 and A8, said to have been executed by late Mallamma, are vitiated in any manner as pleaded by the plaintiff. It is only after this tangle is resolved, that the further aspect of recovery of possession can be considered. Both these aspects were answered by the Trial Court in favour of the plaintiff and the lower appellate Court reversed the same.
11. Coming to the first question, it needs to be observed that the plaintiff is not the direct lineal descendant of late Paka Mallamma. His grandfather Paka Mutyalu, and husband of Mallamma, viz., Venkayya are said to be brothers. He did not obtain any succession certificate from any Court for this purpose. Even where a particular individual establishes that he is the legal heir of a deceased person, a further burden lies upon him to establish that there are no other legal heirs except him. When the gap between the deceased Mallamma and the petitioner in terms of descendancy is so wide, the burden was very heavy upon the plaintiff to explain that there did not exist any other legal heirs or that he is the only person. The discussion undertaken by the Trial Court in this" regard was totally unsatisfactory. The Trial Court framed an issue on this aspect, namely, Issue No. 1. There was no prayer in the plaint in this regard.
12. Inter-related to this question is, the issue as to whether the plaintiff is the owner of the suit schedule property. Even where there does not exist any doubt that an individual is the legal heir of a deceased person, devolution of ownership to the property held or possessed by the deceased, needs to be established separately. While succession takes place by operation of law, devolution of ownership to a property left by a deceased, would depend on several factors. Likes and dislikes, or acts and omissions of the deceased would hardly play any role in identifying an individual as his successor. Law of succession virtually holds the field in such matters. However, devolution of ownership to a property, held by a deceased, would depend on several factors, such as, nature of the property, the manner in which it accrued to him, the nature of rights if any he has created in favour of 3rd parties, eligibility of the legal heir, to acquire rights in it, etc. If the devolution is recognized in law, in one form or the other, the necessity for the successor to seek a declaration of his rights, in relation to the property, may be obviated. However, where the assertion of rights is not preceded by such recognition and the denial of the right is vehement, it almost becomes inevitable to seek a declaration from a Court of law. Issue No. 2 framed by the Trial Court touches this aspect.
13. It needs to be noticed that the basis for framing an issue is the assertion of a fact or state of affairs by one party, and denial of the same by the other, i.e., contents of pleadings. Rule 2 of Order VI C.P.C. mandates that the plaint shall contain material facts on which the plaintiff relies for his claim". Assertions in pleadings, particularly in the plaint are required to be focused on the relief claimed. The Trial Court shall not be under obligation to frame an issue in relation to an assertion in a plaint, unless the corresponding relief claimed. Conversely where the plaintiff does not choose to claim the relief, which is the natural corollary of such an assertion, the necessity to frame an issue simply on such assertion does not arise. In fact, the pleading itself becomes untenable.
14. While framing of issues is in the realm of procedural law, adjudication of a right, which is the subject-matter of a suit, is governed by substantive law. Each right claimed in a suit is governed by the corresponding substantive law. To establish a right, a bundle of facts, as required by such law, are to be pleaded and proved. Questions of limitation, payment of Court fee, nature of cause of action, need to be verified with reference to such rights. The occasion to undertake such an exercise would arise, when the correspondent right is claimed and relief is sought. For instance, if the intention of the plaintiff is to get a pronouncement on his title to an immovable property, he has to plead necessary facts, pay proper Court fee and seek specific relief. In such an event, it would be verified with reference to Section 34 of the Specific Relief Act, Law of Court Fee, Limitation, Succession etcetera. This, in turn, would necessitate framing of issues. Where the relief itself is not claimed, it would be rather impermissible to undertake adjudication upon such matters.
15. It is true that a Court can pronounce upon an aspect even though an issue is not framed upon it, subject to certain conditions, such as, the parties adducing evidence on it, the affected parties not raising any objection. However, such a facility cannot be extended, so far as to enable the Court to pronounce upon substantive rights, provided for under specific enactments and governed by different provisions relating to limitation, Court fee. If such a course is permitted, a plaintiff may, with impunity, press for an adjudication upon a right, which he was not otherwise entitled to, and upon which, he has not even paid the Court fee. The relevant substantive and procedural enactments governing such rights would be rendered nugatory. In such an event, the process of framing issues, which is only one of the steps in the adjudication, would dominate and overshadow the other requirements, such as, contents of pleadings, payment of Court fee, law of Limitation etcetera. Therefore, framing of an issue on an aspect, which does not find place in the pleadings is impermissible. Any adjudication on issues so framed is equally untenable.
16. The second, but more important aspect is the one touching on the genuinty of the title deeds in favour of Defendants 1 to 4. Issue No. 3 was framed upon it. The plaintiff did not seek any relief, in relation to these documents. The discussion undertaken in the preceding paragraphs applies to this also. An additional aspect, is about the burden of proof.
17. The Trial Court placed the burden upon Defendants 1 to 4 to establish that the documents Exs.A6 and A8 are genuine. The same is evident from the observation of the Trial Court in para 9 of the judgment, which reads as under:
"It is an admitted fact that D1 to D4 are claiming the title over the plaint schedule property by virtue of those documents. But the plaintiff is contending that those documents are forged and Paka Mallamma, his grand mother never executed any document in their favour. Under these circumstances, it is the burden of the defendants to produce those documents before the Court."
18. On the ground that Defendants 1 to 4 did not produce the originals, the Trial Court drew an adverse inference against them. The approach of the Trial Court in placing burden upon the defendants to prove that the Sale deeds, through which they have purchased the property, are genuine, cannot be said to be proper. The fundamental principles of evidence in relation to burden of proof are contained in Chapter VIII of Part III of the Evidence Act, 1872 (for short 'the Act'). Section 101 of the Act clearly mandate that it is he, who desires the Court to give a judgment, as to any legal right or liability dependant on the existence of facts which he asserts, that must prove that those facts exist. The burden of proof lies on such person. Section 102 of the Act further elaborates this principle by supplementing that the burden to prove a fact in a suit or proceeding lies on that person who would fail, if no evidence at all were given on the either side. It is relevant to extract both the sections.
"Section 101- Burden of proof: Whoever desires any Court to give judgment, as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Section 102- On whom burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
19. It is the plaintiff, who has come to the Court claiming a legal right to recover the possession of the property. Left to themselves, the defendants did not feel the necessity to seek any declaration as to their title over the suit property or their obligation towards anyone. If the principle underlying Sections 101 and 102 of the Act is applied, it is evident that it was the plaintiff alone on whom the burden of proof rested in relation to establishing the validity or otherwise of Exs.A6 and A8 and not on the defendants.
20. It is also settled principle of law that where an individual asserts that any transaction is vitiated by factors like fraud, misrepresentation, coercion and undue influence etcetera, the burden squarely rests upon such person to plead and establish those factors. It is apt to extract Rule 4 of Order VI C.P.C., which is directly on the point:
"Rule 4: Particulars to be given where necessary :--In all cases in which the party pleading relies on any mis-representation, fraud, breach of trust, wilful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
This being the requirement in law, the Trial Court has mis-directed itself in the matter and proceeded as though it was for the defendants to establish that ExsA6 and A8 were executed by late Mallamma and that they are genuine. The lower appellate Court had set right this illegality and set aside the findings after undertaking extensive discussion and pointing out the lapses and inconsistencies on the part of the plaintiff in this regard.
21. In the normal course of things, the matter could have been put at rest, with the dismissal of the second appeals. However, it is evident that the Trial of the suit proceeded in a wrong direction, on account of improper framing of issues on status of the plaintiff, and his title and improper placement of burden upon the defendants on Issue No. 3. Had the Trial Court placed burden upon the plaintiff, he would have been provided with an opportunity to discharge it. It would be in the realm of speculation to imagine as to whether he would have been in a position to procure any further evidence, or would have explained the matter on the basis of evidence on record itself. However, the plaintiff cannot be penalized on account of the illegality committed by the Trial Court. He should not reel under an impression that he was denied of an opportunity to put forward his case in accordance with law. For this reason, the matter needs to be remanded. Though this Court is in full agreement with the findings recorded by the lower appellate Court, the necessity to remand is felt on account of the mis-placement of burden on the defendants and mistake in framing of issues.
22. Hence, the judgments of the lower appellate Court as well as the Trial Court are set aside and the matter is remanded to the Trial Court for fresh consideration.
23. Issue Nos. 1 and 2 framed by the Trial Court shall stand deleted. The Trial Court can frame such issues if only the plaintiff files an appropriate application seeking amendment of his pleadings. As and when such an application is made, the same shall be dealt with in accordance with law, after due opportunity to the defendants. The validity of the sale deeds Exs.A6 and A8, shall be considered, if only the plaintiff pleads necessary facts by way of amendment to the plaint, and in such an event, the burden shall squarely rests upon him to prove that. Unless the fresh issues are framed touching on the status of the plaintiff, as legal heir of late Paka Mallamma, and his title to the suit schedule property, the Trial Court shall proceed to decide only on the issue as to whether the plaintiff is entitled to recover the suit schedule property, namely, Issue No. 3.