Andhra Pradesh High Court - Amravati
Paturu Sundaraiah vs Suri Ranganayakamma on 4 March, 2022
HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.220 of 2020
JUDGMENT:-
The unsuccessful defendant filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short „CPC‟), aggrieved by the decree and judgment, dated 28.02.2020 passed in A.S.No.33 of 2017 on the file of learned Senior Civil Judge, Kovur, SPSR Nellore District confirming the decree and judgment, dated 11.09.2017 passed in O.S.No.316 of 2005 on the file of learned Principal Junior Civil Judge, Kovur.
2. For the sake of convenience and brevity, the parties shall be referred to as they are arrayed in the O.S.No.316 of 2005.
3. Plaintiffs, sisters, filed suit O.S.No.316 of 2005 against the defendant for declaration of title and for ejectment of the defendant from land of an extent of Ac.0-90 cents out of total extent of Ac.2-55 cents in survey No.708 with patta No.126 situated in Varini village, Vidavaluru Mandal, Nellore District (hereinafter referred to „schedule property‟).
4. In the plaint, it was contended inter alia that the schedule property originally belonged to N.Venkata Reddy; that the grandfather of the plaintiffs purchased the schedule property and other extent under registered sale deed, dated 11.03.1959; that plaintiff‟s grandfather died leaving behind Suri Ramanaiah, father of the plaintiffs; that said Suri Ramanaiah married one Rajeswaramma alias Audiseshamma; that out of their wedlock they were blessed with the plaintiffs (daughters) and their 2 brother Ranga Rao (son); that mother of plaintiffs executed a Will, dated 06.06.1991 bequeathing an extent of Ac.0-35 cents to the plaintiffs; that in the said Will it was also recited that the schedule property fell to the share of the plaintiffs and other arrangements made in the family; that the plaintiff‟s brother used to cultivate the schedule property till 14.03.2002 as the plaintiffs were away from the village by virtue of first plaintiff‟s marriage; that the defendant, who is resident of Varini village, trespassed into the schedule property and started cultivating the land after the death of their brother; that the plaintiffs got issued legal notice, dated 28.12.2004 (Ex.A3) and filed the suit for aforesaid reliefs.
5. The sole defendant i.e. the appellant herein filed written statement and contended inter alia that the schedule property was devolved upon the plaintiffs‟ brother i.e. Ranga Rao from his ancestors; that said Ranga Rao sold the schedule property to the defendant for a consideration of Rs.39,000/-per acre under agreement of sale, dated 30.05.1995 and possession of the said property was delivered to him; that since then the defendant has been in possession and enjoyment of the schedule property; that the defendant paid advance amount of Rs.31,346/- towards first instalment to the plaintiffs‟ brother and on receiving balance sale consideration of Rs.2,104/- the said Ranga Rao executed agreement of sale; that the Mandal Parishad Office, Vidavalur, vide proceedings RC No.A/452/2003 dated 13.03.2003 (Ex.B3), granted Rs.3,400/- for development of the schedule property; that the defendant has been paying land revenue; that in the 3 year, 1998 Panchayat Raj Department tried to lay road in the schedule property and also in the properties belonging to others resulted in making representation; that an extent of Ac.0-02 cents in survey No.708 which is possessed by the defendant was occupied by Panchayat Raj Department; that Mandal Revenue Officer, Vidavalur addressed a letter on 05.06.1998 for grant of compensation; that legal heirs of Ranga Rao are proper and necessary parties and the suit is liable to be dismissed on the ground of non-joinder of necessary and proper parties; that on receipt of legal notice, the matter was placed before village elders, who in turn advised the plaintiffs to drop further action and eventually prayed to dismiss the suit.
6. During the course of trial, plaintiff No.1 examined herself as PW1 besides examining PW3 one of the attestors to the Will and PW4. Evidence of P.W.2. is eschewed. Exs.A1 to A4 were marked. The sole defendant examined himself as DW1 besides examining DW2 and got marked Exs.B1 to B6 on his behalf.
7. The trial Court on careful perusal of oral and documentary evidence, decreed the suit with costs vide judgment, dated 11.09.2017. Aggrieved by the same, the defendant preferred appeal A.S.No.33 of 2017 on the file of learned Senior Civil Judge, Kovur. The lower Appellate Court being the final fact finding Court, on careful scrutiny of oral and documentary evidence dismissed the appeal by judgment, dated 28.02.2020. Aggrieved by the same, the present second appeal is filed. 4
8. Heard Sri Marri Venkata Ramana, learned counsel for the appellant.
9. Learned counsel for the appellant contended that the judgments of the Courts below are vitiated for the following grounds:
The plaintiffs took different versions with regard to the title of schedule property; that the plaintiffs brother is cultivating the schedule property since long time as owner, but not as a tenant and that the plaintiffs cannot rely upon the latches or weaknesses on the part of the appellant/defendant in a suit for declaration and recovery of possession and plaintiffs have to succeed on the strength of their own case.
10. It is settled law that in a suit for declaration and recovery of possession, burden always lies on the plaintiff to make out and establish clear case for grant of relief. Weakness, if any, on the part of defendant would not be a ground to grant relief in favour of the plaintiff.
11. In Moran Mar Basselios Catholicos vs. The Most Rev. Mar Poulose Athanasius and Others1 the Hon‟ble Apex Court observed that in a suit for declaration if the plaintiffs are to succeed they must do so on the strength of their own title.
12. In Nagar Palika, Jind vs. Jagat Singh, Advocate2, the Hon‟ble Apex Court held that onus to prove title to the property in question was on the plaintiff and in a suit for ejection, based 1 AIR (1959) SC 31 2 (1995) SCC 3 426 5 on the title, it was the incumbent on the part of the Court of Appeal, first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The Court is bound to enquire or investigate that question first, before going into any other question that may arise in a suit.
13. The same legal position was reiterated in Union of India v. Vasavi Cooperation Housing Society Limited3.
14. Thus, from the law laid down by the Hon‟ble Apex court, the legal position is very clear that in a suit for declaration of title and possession, the plaintiff could succeed only on the strength of his/her own title and that could be done only by adducing proper and cogent evidence.
15. One of the contentions raised by learned counsel for the defendant is that the plaintiffs failed to establish their title over the schedule property and infact different versions were put forth by them in the pleadings.
16. In Udhav Singh Vs Madhav Rao4 the Hon‟ble Apex Court held that a pleading has to be read as a whole to ascertain its true import and it is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. It has also been held that although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of 3 AIR 2014 SC 937 4 AIR 1976 SC 744 6 the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.
17. In Saleem Bhai & others Vs State of Maharashtra and others5 the Hon‟ble Apex Court held that a plaint must be read as a whole to find out if it discloses cause of action. What is a cause of action, is a question of fact, which has to be decided on the basis of averments made in the plaint in its entirety.
18. A perusal of the averments in the plaint, evidence let in by the plaintiffs as well as documents adduced, i.e. Exs. A1 sale deed and A2 Will, is consistent with the pleading that the schedule property was purchased by the grand father of plaintiffs and after his death it devolved upon father of plaintiffs and later schedule property was in possession of plaintiffs till the year 2002 and the same was cultivated by the brother of plaintiffs. In this regard the plaintiffs filed Ex.A1, registered sale, dated 11.03.1959 under which the grandfather of the plaintiffs purchased the property to a total extent of Ac.2-55 cents in survey No.708. The specific case of the plaintiffs is that the schedule property fell to their share and an extent of Ac.1-10 cents fell to the share of their brother Ranga Rao and in proof of the same, they filed Ex.A2. Though no partition deed was exhibited before the Court, Ex.A2, unregistered Will deed, dated 06.06.1991 contains recital with regard to partition and other arrangements that were made among the family members. Courts below on a proper appreciation of evidence recorded a 5 (2003) 1 SCC 557 7 finding that plaintiffs proved their title to the property and nothing contra was elicited during the cross examination of P.W.1.
19. Recital in the Will indicates bequeathing of an extent of Ac.0-35 cents by mother to the plaintiffs. It further recites about the earlier arrangement wherein plaint schedule property fell to the share of plaintiffs and other extent of Ac.1-10 cents fell to the share of late Ranga Rao, brother of the plaintiffs. The pleading that plaintiffs‟ got the property under Ex A-2 Will is to be construed in such a way that the recital in the Will indicated the arrangement and allotment of plaint schedule property in favour of plaintiffs, but not bequeathed under Ex A-2. As indicated under Ex A-2 another Ac.0-35 cents of property was bequeathed to plaintiffs.
20. While considering the pleadings in muffasil Courts in the context of Order VIII Rule 5 CPC, the Hon‟ble Apex Court in Badat and Company, Bombay Vs. East India Trading Company6 observed as follows: "in mofussil courts in India, where pleadings were not precisely drawn, it was found in practice that if they were strictly construed in terms of said provisions, grave injustice would be done to parties with genuine claims." Further observed that "the discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of parties, the standard of drafting obtaining in locality and the 6 AIR 1964 SC 538 8 traditions and conventions of a Court wherein such pleadings are filed."
21. It is clear from a perusal of the record that the source of title is Ex.A1, sale deed, dated 11.03.1959, under which the grandfather of the plaintiffs purchased the property. After the death of plaintiffs‟ grandfather, the property devolved upon the plaintiffs‟ father. After the death of plaintiffs‟ father the arrangement mentioned in Ex A2 was affected and the same was acted upon. Further plaintiffs‟ brother, Ranga Rao along with his mother sold his share of Ac.1-10 cents under Ex.B4 to one M. Venkateswarlu. In fact plaintiffs‟ brother used to cultivate the land on behalf of the plaintiffs since they are away from the village by virtue of marriage of 1st plaintiff.
22. To prove the Will, plaintiffs examined one of the attestors of the Will as PW3 and thus, the requirement under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 were complied with. It is also pertinent to mention here that the plaintiffs are not claiming the property bequeathed them in Ex A2, but they are relying on the recital made in the Will Ex.A2 qua the schedule property. Thus, plaintiffs proved the title to the property and findings of facts recorded by Courts below on appreciation of oral and documentary evidence does not warrant interference under Section 100 of CPC by this Court.
23. This Court cannot rely upon the weaknesses or latches on the part of the defendant. However, since the evidence is 9 available on record, this Court also ventured to deal with evidence basing on the principle that burden of proof pales into insignificance when both sides adduced evidence, as held by the Hon‟ble Apex Court in Rabti Devi Vs Ram Dutt7.
24. The defendant is claiming schedule property under Ex.B1, agreement of sale, dated 30.05.1995. For the reasons best known, no suit was filed by the defendant either against Ranga Rao during Ranga Rao‟s life time or against his legal heirs after the death of Ranga Rao, seeking the relief of specific performance. Further Courts below on a careful examination of Ex B1, agreement of sale, observed that Ex.B1 does not contain date and corrections. The name of Ranga Rao‟s father was not properly mentioned.
25. Ex.B3 filed by the defendant, to substantiate his contention that Mandal Parishad Office, Vidavalur, has granted him amount to develop the schedule property, does not indicate as to in respect of which property the amount was granted. Further, DW1, during his examination deposed about his lending of an amount of Rs.15,000/- to Ranga Rao in the year 1992. The defendant marked Exs.B5 and B6 to establish his possession over the schedule property. It is to be noted that as per Ex.B5-adangal, issued for fasali 1412, Ac.0-90 cents in survey No.708 stands in the name of the defendant and pattedar‟s name is shown as N.L.Devamma and both Exs.B5 and B6 adangals, pertain to fasali 1412 and 1424, which were 7 AIR 1998 SC 310 10 issued after demise of Ranga Rao. The defendant has not offered any explanation as to why he could not get his name mutated immediately after execution of Ex.B1 in the year, 1995 and could get his name mutated in the adangals only after the demise of Ranga Rao in the year, 2002 basing on agreement of sale.
26. Apart from the above, the Courts below pointed out that Ex.B5-adangal issued by Deputy Tahsildar does not contain date. Further the defendant obtained Ex.B6 adangal pending the suit and pressed the same into service.
27. The findings of fact recorded by both the Courts below are basing on oral and documentary evidence. This Court finds no question of law much less substantial questions of law involved in the present second appeal, which warrants interference of this Court as per Section 100 CPC. Hence the appeal fails and is liable to dismissed, however, without costs.
28. Accordingly, this second appeal is dismissed, however, without costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_______________________________ JUSTICE SUBBA REDDY SATTI Date : 04.03.2022 IKN 11 HON'BLE SRI JUSTICE SUBBA REDDY SATTI SECOND APPEAL No.220 of 2020 04.03.2022 IKN