Andhra HC (Pre-Telangana)
Muddasani Sarojana vs Muddasani Venkat Narsaiah And Ors. on 12 July, 2006
Equivalent citations: AIR2007AP50, 2006(6)ALD436, AIR 2007 ANDHRA PRADESH 50, (2007) 50 ALLINDCAS 813 (AP)
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Third defendant in O.S. No. 81 of 1981 on the file of the learned Subordinate Judge, Karimnagar, filed this second appeal, aggrieved by the judgment and decree, dated 30-12-1993, passed by the learned I Additional District Judge, Karimnagar, in A.S.No. 13 of 1990.
2. The first respondent (who is since dead and represented by his successors) filed the suit, for recovery of possession of the suit schedule property and mesne profits thereof. The case of the first respondent is as under:
His father late Veeraiah and one Sri Balaiah were the sons of one Sri Rajaiah, Yashoda is the wife of Balaiah. They did not have any issues, and Balaiah died in the year 1950 or so. Yashoda was given the suit schedule property in a family settlement, with life interest in her. She died some time in the year 1981. The limited share of Yashoda enlarged into absolute estate, by operation of Section 14 of the Hindu Succession Act (for short 'the Act') and since she did not have any Class-I heirs, the property devolved upon the sister of her husband, by name Buchamma. He purchased the suit schedule property from Buchamma, through the sale deed, dated 25-4-1981, marked as Ex.A.1 and possession of the property was delivered to him. The appellant, her father-in-law and her husband, who are impleaded as defendants 1 and 2 respectively, have dispossessed him from the land on 12-6-1981. He urged that the appellant and other defendants in the suit have no right, interest or enforceable claim vis-a-vis the suit schedule property.
3. The suit was mainly contested by the appellant herein. She pleaded that the partition between Balaiah, husband of Yashoda, on the one hand, and Veraiah, father of the first respondent, on the other, took place, during their life time and that the property held by Balaiah devolved upon his wife-Yashoda, on his death. She contended that after the death of Balaiah, Yashoda had fostered her, by performing the necessary ceremonies. It was her case that she was treated, as if she is the natural daughter, and that her marriage was also performed by Yashoda. She ultimately contended that the suit schedule property was settled upon her by Yashoda. It was her case that the sale deed-Ex.A.1 was a fictitious and sham document.
4. The trial Court dismissed the suit, through its judgment, dated 21-5-1990. Aggrieved thereby, the first respondent filed A.S.No. 13 of 1990 in the Court of I Additional District Judge, at Karimnagar, and the same was allowed.
5. Sri I. Aga Reddy, the learned Counsel for the appellant submits that the first respondent failed to prove that the suit schedule property devolved upon Buchamma and that she had executed Ex.A.1 in his favour. He submits that when there is serious dispute as to the entitlement of the first respondent, a suit for recovery of possession, without claiming the relief of declaration of title, was not maintainable. The learned Counsel points out that the failure or refusal on the part of the first respondent, either to implead Buchamma or to examine her as a witness, would lead to an inference that no rights have either accrued to or have flown from Buchamma, vis-a-vis the suit schedule property. He contends that even during the life time of Yashoda, the title of the land passed on to the appellant and the same is evidenced by various records, such as Ryotwari Pass Book, marked as Ex.B.1.
6. Sri P.V. Narayana Rao, the learned Counsel for the contesting respondents on the other hand, submits that Buchamma became the owner of the suit schedule property, by operation of Section 14 and Schedule to the Act and since the first respondent purchased the property from the said Buchamma, there was no necessity for claiming the relief of declaration of title. He submits that being a third party to the sale deed, the appellant cannot be permitted to urge any grounds, as to the validity or otherwise of the same. The learned Counsel further submits that even otherwise, Ex.A.1 was proved, through oral evidence of P.Ws.1 and 2, and that no interference is called for with the well considered judgment of the lower appellate Court.
7. On the basis of the pleadings before it, the trial Court framed the following issues:
1. Whether late Balaiah got the suit properties in partition with his father Rajaiah and thus became absolute owner of the same and whether after his death his widow Yashoda became absolute owner of the suit property or whether late Yashoda was given the suit properties under a settlement with the plaintiff as limited estate to be enjoyment by her during her life time and the remainder to vest in the plaintiff after her death ?
2. Whether late Yashoda after the death of her husband Balaiah and under the authority given by her late husband adopted the defendant No. 3 as daughter on 18-2-1959 and whether the Defendant No. 3 became owner of the suit properties after the death of Yashoda ?
3. Whether after the death of Yashoda, Gandla Buchamma the surviving sister of Yashoda's husband late Balaiah became the heir and owner of the suit properties and whether the plaintiff got title to the suit properties under the registered sale-deed dated 25-4-1981 executed by the said Gandla Buchamma,
8. On behalf of the first respondent, P.Ws.1 to 3 were examined and Exs.A.1 to A.8 were marked. On behalf of the appellant, D.Ws.1 to 3 were examined and Exs.B.1 to B.18 were marked.
9. The trial Court held against the first respondent, in all the three issues, and dismissed the suit. The lower appellate Court reversed the findings of the trial Court, allowed the appeal and decreed the suit.
10. In view of the submissions made by the learned Counsel for the parties, the following questions arise for consideration, in this second appeal:
(a) Whether in the facts and circumstances of the case, a mere suit for recover of possession was maintainable without any relief as to the declaration of title ?
(b) Whether the first respondent has proved the devolution of the suit schedule property upon Buchamma, and execution of Ex.A. 1 by her ?
11. The suit was filed for the relief of recovery of possession of the suit schedule property and mesne profits thereof. Obviously, it is based upon the title. Such a suit can be maintained, when there is no dispute as to the title in the plaint. The admission of title in respect of the suit schedule property need not be vis-a-vis the plaintiff alone. If the plaintiff is able to disclose the title, beyond any pale of doubt, even in respect of his predecessors, or transferors, then he does not have the necessity to pray for the relief of declaration of title. Where, however, there is serious dispute as to the existence of title in the plaintiff and the same doubt exists as to the title of the predecessors and transferors, the necessity to seek declaration of title exists.
12. In the instant case, the appellant flatly denied the title of the first respondent. The latter, in turn, traced his title through one Buchamma. The present suit could have been maintained, had there been no dispute as to the existence of title in Buchamma. The pleadings or evidence do not bring about such a situation. There is nothing on record to disclose that Buchamma had, at any point of time, claimed title or exercised rights of ownership vis-a-vis the suit schedule property. The sale deed Ex.A.1 is said to have been executed by her, hardly within two months from the date of death of Yashoda. The plaint is silent as to the manner, in which the said Buchamma acquired title to the land. For the reasons best known to him, the first respondent did not examine her as a witness.
13. It was not as if Buchamma was Class-I heir of late Yashoda. She could have succeeded to the properties of late Yashoda, if only there did not exist any other claimants or if the succession was to flow without any obstructions. The appellant herein not only put forward her claim as an exclusive owner but also was in possession of the suit schedule property. Even during the lifetime of Yashoda, the pattadar pass book was issued in favour of the appellant and the entries in revenue records vouched for her possession. The rights, so accrued, to the appellant, could have been wiped out, paving the way for Buchamma, to succeed or to assume possession, only through an exercise in law.
14. Even assuming that Buchamma was the only person entitled to succeed to the said property, an explanation is needed as to how she got the property, P.W.2, who is said to have arranged the transaction of sale between Buchamma and the first respondent, has stated that after the death of Yashoda, Buchamma came to him to get the land to her. The evidence, thereafter, shifts to the transaction of sale, without mentioning as to the developments that have taken place resulting in acquisition of the property or possession thereof, by Buchamma. Reference to this is being made in the limited context of maintainability of a suit for recovery of possession, without any relief as to declaration of title. When so much of uncertainty persisted as to the succession of property by Buchamma and when there existed voluminous evidence, as regards the rights of the appellant vis-a-vis the suit schedule property, the first respondent was under obligation to seek a declaration of title, in case he wanted to recover the possession of the suit schedule property.
15. Coming to the second question, it needs to be discussed in two facets. The first is, as to whether Ex.A.1 was proved and the second is, whether the uncertainty about the delivery of possession had any bearing upon it. Taking the second facet first, it needs to be noted that there is some uncertainty as to whether the possession of the suit schedule property was delivered to the first respondent, on the date of sale itself. It is true that there can be a sale, in accordance with Section 54 of the Transfer of Property Act, even if the possession of the property is not delivered. The judgments of Allahabad High Court in Beni Madho v. A.U. John AIR (34) 1973 All. 110, and of this Court in Shaik Osman v. Union of India 1980 (1) An. WR. 105, are clear, on this aspect. It can safely be held that there can be a valid sale, even in the absence of actual delivery of possession. However, if there is a recital in the sale deed to the effect that possession was delivered, the purchaser cannot take shelter under the said principle, if he is not able to substantiate the factum of the delivery of possession, at the time of the sale.
16. There is a recital in Ex.A.1 to the effect that the possession was delivered on the same day, and that the first respondent was dispossessed by the appellant, about two months thereafter. The revenue records, particularly in the form of Exs.B.13 to B.15, disclose the continuous possession of the appellant over the land. It is not shown as to when the vendor of the first respondent had assumed possession from the appellant.
17. As for the first aspect, Section 67 of the Indian Evidence Act mandates that the signature and handwriting of a person on a written document can be proved, only by examining the person concerned. The said Act provides for contingencies, where the concerned person is not available or alive. In such cases, the persons, who figured as witnesses, or those, who are acquainted with the hand writing or signature of the concerned person, can throw light upon it. When the person is very much available and alive, attempt to prove his signature or hand writing, by examining a third person as a witness, would have its own draw back. An inference, as provided for under Clause (g) of Section 14 of the Indian Evidence Act would come into play. Ex. A. 1 was said to have been executed by Buchamma. She was very much alive and available by the time the suit came to be filed. The easiest thing for the first respondent to prove Ex.A.1, would have been to examine Buchamma as a witness. Failure to examine her as a witness would give rise to several inferences.
18. The evidence of Buchamma is important from two aspects. Firstly, it would have been possible for the parties to the suit, to elicit through her, as to whether she made any claim to the properties left by late Yashoda, and if so, the manner, in which she acquired the title or rights vis-a-vis the suit schedule property. It would have also been possible for them to make her to state, whether she had executed Ex.A.1 at all. In fact, the deposition of the said Buchamma, would have covered the area of declaration of title also, albeit, not prayed for, in the suit. Omission to examine such a material witness cannot be without its affect, particularly when the plaintiff has no other basis to fall back.
19. Evidence of PW.2, in this regard, is as uncertain, as it could be. On the one hand, he claimed close proximity to the family of Yashoda and on the other, he stated that he does not even know when and where she died, or who performed her obsequies. He further deposed that soon after the death of Yashoda, Buchamma came to him and requested to get the property to her. He did not speak about the steps taken either by her or by him, to acquire title or to get succession operated in favour of Buchamma, particularly when there was a serious contender, like the appellant herein. He is silent as to the date and place of execution of Ex.A.2. He gave conflicting versions as to the consideration. While the first respondent, as P.W.I, stated that a higher amount was paid as consideration and the valuation in the document was shown somewhat less, the evidence of P.W.2 is in the opposite direction. He stated that the document was written on the stamp papers of worth Rs. 12,000/-, but a sum of Rs. 4,000/- was paid as consideration. He admitted that he is an agnate of the first respondent. Under these circumstances, it cannot be said that Ex.A.1 was proved by the first respondent. Consequently, the first respondent cannot be extended the relief of delivery of possession.
20. Accordingly, the second appeal is allowed and the judgment and decree of the lower appellate Court is set aside. It is, however, made clear that if the legal representatives of the first respondent are so advised, it shall be open to them to seek the relief of declaration of title, duly impleading all the parties concerned. There shall be no order as to costs.