Andhra Pradesh High Court - Amravati
Yedla Rama Murthy, vs Baratam Venkata Changalva Murthy Since ... on 30 December, 2020
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
APPEAL SUIT No.883 of 2011
JUDGMENT :
This appeal under Section 96 and Order-41, Rule-1 CPC is directed against the judgment and decree of the Court of the learned Principal Senior Civil Judge, Srikakulam dated 16.09.2011 in O.S.No. 99 of 2003.
2. The appellants are the defendants. The respondents are the plaintiffs.
3. The respondents laid the suit against the appellants for the following reliefs:
"(a) For declaration of title that the plaintiffs are the joint owners of the plaint schedule wet lands;
(b) For recovery of possession of the plaint schedule wet lands from the defendants after ejecting the defendants from and thereby put the plaintiffs in possession of the plaint schedule wet lands;
(c) For future damages at the rate of Rs.20,000-00 (Rupees twenty thousand only) per annum for unlawful occupation and cultivation of the plaint schedule lands by the defendants;
(d) For costs of the suit"
4. The property in dispute is described in the plaint schedule as under:
"An extent of Ac.0-32 cents wet land covered by S.No.236/2, an extent of Ac.0-52 cents wet land covered by S.No.231/2 and also an extent of Ac.2-32 cents wt land covered by S.No.238/1, altogether Ac.03-16 cents wet lands locally called as "CHERUKU POLAM" situate at Patrunivalasa village, Srikakulam Rural mandalam, Srikakuma District."
5. It shall be called hereinafter as 'the suit land', for convenience.
6. The 1st respondent (since deceased) and the 5th respondent are the parents of respondents 2 to 4 and 6.
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7. The respondents 1 to 4 constituted a joint Hindu family. They owned about 8 to 10 acres of land in Patrunivalasa village including the suit land. They are predominantly traders. The 1st respondent was the manager of this joint Hindu family during his life time and he died on 23.10.2009.
8. The 1st respondent during his lifetime along with one Sri Avitaiah was running a rice mill at patrunivalasa and they were also purchasing paddy as a part of their business. However, the material on record is that in the year 2000 the 1st respondent had sold away this rice mill.
9. The appellants are brothers. They are also residents of Patrunivalasa village. They are predominantly agriculturists. They also constitute a joint Hindu family.
10. In order to appreciate this dispute in proper perspective, it is desirable to consider the case set up by both these parties in their respective pleadings before considering the evidence and other material on record.
11. The case of the respondents in brief is that they have been the owners and title holders to the suit land which they were in possession and enjoyment getting cultivated through share-cropping and that in recognition thereof the revenue authorities also issued pattadar passbooks and title deed under Record of Rights Act in the name of the 1st respondent for the suit land as well as other lands of the family. It is further case of the respondents in the plaint that the appellants being powerful, intended to grab the suit land and in that process, both of them highhandedly obtained signatures of the 1st respondent and 3rd respondent on a stamped paper in June, 1997, putting them under fear of MVR,J A.S.No.883 of 2011 3 death with a view to use this stamp paper as an agreement for sale and that at the same time they trespassed into the suit land in order to cause monetary loss and hardship to them. It is the further case of the respondents in the plaint that mediation by the village elders in this process did not yield any result and the 1st respondent had to issue a legal notice dated 16.04.2003 through his Advocate demanding the appellants to vacate the suit land, handing them over its possession. They further claimed that on account of the illegal occupation of this land, the appellants are also liable to pay damages at the rate of Rs.20,000/- per annum.
12. It is further pleaded in the plaint that a belated reply dated 06.05.2003 was issued with false and frivolous allegations stating that the 1st respondent had executed an agreement for sale on 09.07.1992 agreeing to sell the suit land at the rate of Rs.75,000/- per acre and that the suit land was also delivered in possession under receipt dated 05.10.1992 upon receiving Rs.2,27,000/-. The respondents further pleaded that the afore stated agreement for sale as well as the receipt are forged and fabricated documents created by the appellants with a mala fide intention to grab the suit land. In those circumstances, according to the pleaded case of the respondents they were constrained to institute the suit for the reliefs stated above.
13. The appellants resisted the claim of the respondents denying the entire case set up by them in the plaint. They admitted that they got issued a reply notice through their Advocate when the 1st respondent got issued a legal notice. They pleaded in the written statement that they are not the trespassers nor fabricated the agreement as well as the receipt in MVR,J A.S.No.883 of 2011 4 question, that they are held in high esteem in the village as respectable agriculturists and that they have been in possession and enjoyment of the suit land by virtue of sale of the same under an agreement for sale dated 09.07.1992.
14. It is also pleaded by the appellants that under the afore stated agreement for sale the 1st respondent had agreed to sell the suit land at Rs.75,000/- per acre and that he had received Rs.10,000/- as advance sale consideration. They further pleaded that subsequently, on 05.10.1992, the 1st respondent received Rs.2,27,000/- from the 2nd appellant towards balance sale consideration under the afore stated agreement for sale well before the date agreed for payment of such balance sale consideration viz., within three months from the date of the agreement. They further pleaded that upon receipt of balance sale consideration the 1st respondent issued a receipt in favour of the 2nd appellant and that the suit land was delivered in possession by the 1st respondent to them on the same day.
15. The appellants further pleaded that when the appellants insisted for executing a regular registered sale deed, immediately the 1st respondent took them to confidence on the ground that he was indebted to several farmers in and around their village on account of the loss sustained in business and if the appellants insisted for registration of sale deed, it would be made known to all the farmers who would insist for repayment of their amounts while offering to execute a regular registered sale deed leisurely. They further pleaded that the 1st respondent also told them that he had already delivered the suit land to them and hence they need not worry on account of the non-registration of the lands.
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16. Thus, the appellants contended that they have been cultivating the suit land continuously paying the land revenue and thus, have been in possession and enjoyment of the same with absolute right and as owners including to the knowledge of the respondents and public at large. They further pleaded that these facts are suppressed by the respondents and that their possession, occupation and enjoyment of the suit land are protected in the eye of law wherefrom they cannot be evicted at the instance of the respondents.
17. Basing on the above pleadings the trial Court settled the following issues for trial:
"1. Whether the plaintiffs are joint owners of the suit property?
2. Whether the defendants trespassed into the suit property in June, 1997 or 1st plaintiff delivered possession on 05.10.1992 to the defendants?
3. Whether the 1st plaintiff executed agreement of sale dated 09.07.1992?
4. Whether the plaintiffs are entitled to recover possession of the suit property?
5. Whether the plaintiffs are entitled to damages, if so, at what rate?
6. To what relief?"
18. At the trial, the 1st respondent examined himself as P.W.1, P.W.2 being the alleged tenant farmer of the suit land on their behalf and P.W.3 being the Panchayat Secretary of Poosarlapadu village, who worked earlier as VRO of Patrunivalasa. The respondents also relied on the evidence of P.W.4 who was then Deputy Works Manager, Indian Security Press, Nasik. Ex.A1 to Ex.A18 were relied on by the respondents.
19. The appellants examined themselves as D.W.1 and D.W.2 respectively. They also examined D.W.3 to D.W.6 to support their contention, while relying on Ex.B1 to Ex.B5. The evidence of D.W.3 and MVR,J A.S.No.883 of 2011 6 D.W.4 was eschewed in the course of trial, since they did not turn up for cross-examination, by appropriate orders of the trial Court.
20. On the pleadings, evidence and the material, upon consideration of the contention of the parties, the learned trial Judge decreed the suit as prayed directing the appellants to deliver peaceful possession of the suit land within three months from the date of the decree and judgment.
21. The learned trial Judge observed that the respondents have been the owners of the suit land which belonged to their joint Hindu family while the 1st respondent being the kartha of this family. The learned trial Judge also held that the proof adduced by the appellants in respect of the agreement for sale dated 09.07.1992 is not proper and basing on the testimony of the witnesses examined by the appellants, it is not proved. In that process the receipt dated 05.10.1992, was considered with reference to its true and valid nature though no specific issue was settled in respect thereof while discussing issue No.2. Rejecting the contention of the appellants with reference to protection of their possession and enjoyment of the suit land upon application of Section 53-A of the Transfer of Property Act, in view of observations as to right, title and interest held by the respondents to the suit property, the suit was decreed as stated above. However, the claim of the respondents for damages was refused while observing that this question relating to future damages can be ascertained in a future enquiry.
22. Sri Vedula Srinivas, learned Counsel for Sri Tarlada Rajasekhar Rao, learned counsel, and Sri P.Veera Reddy, learned senior Counsel for MVR,J A.S.No.883 of 2011 7 Sri K. Murali Krishna, learned counsel, addressed arguments on behalf of the appellants and the respondents respectively.
23. Now, the following points arise for determination in this appeal:
1. Whether possession and enjoyment of the suit land stood protected under Section 53-A of the Transfer of Property Act in favour of the appellants and against the respondents?
2. Whether the decree and judgment of the trial Court confirming right, title and interest to the suit land in favour of the respondents and directing consequential eviction of the appellants therefrom is proper and justified?
3. To what relief?
POINT No.1:
24. The suit land admittedly belonged to joint Hindu family constituted then by the deceased 1st respondent and his sons viz., the respondents 2 to 4. The deceased 1st respondent was the manager of this family.
25. It is the contention of the appellants that the deceased 1st respondent as manager of the joint Hindu family agreed to sell the suit land under Ex.B1 agreement for sale at the rate of Rs.75,000/- per acre, on 09.07.1992 and had received Rs.10,000/- towards advance sale consideration. Their contention further is that within three months therefrom the balance sale consideration was agreed to be paid and obtain a regular registered sale deed from him.
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26. The contents of Ex.B1 agreement for sale are to that effect. Its contents reflect the purported signature of the deceased 1st respondent in all sheets, which are stamped papers worth Rs.40/-, Rs.30/- and Rs.30/- respectively. These stamp papers were purchased on 07.07.1992 at Srikakulam in the name of the 2nd appellant. Sri K.Rambabu (D.W.5), Sri G.Appa Rao (D.W.6) and Sri Banala Donkaiah (D.W.3) signed in it as attestors and it was scribed by one Sri Dabbiru Malleswara Rao, then Karanam of the village. 09.07.1992 is the date appearing under the signature of the scribe in the agreement for sale.
27. The respondents denied Ex.B1 agreement for sale and the 1st respondent during his lifetime not only denied its execution but also called it a forged and fabricated document. Another contention of the respondents is that in or about June, 1997 the first respondent and third respondent were forced upon, to sign on a stamped paper putting them under fear of death, in order to make use of, as an agreement for sale and that the appellant had also trespassed into the suit land in June,1997, who have been in its illegal and unlawful possession eversince.
28. In order to prove Ex.B1 agreement for sale, the appellants not only relied on their testimony as D.W.1 and D.W.2 respectively but also the evidence of D.W.5 and D.W.6. Though they tried to examine D.W.3 and D.W.4, who are the attestors to Ex.B1 agreement for sale, since both of them did not turn up to face cross-examination of the respondents, the trial Court had chosen to eschew their evidence.
29. D.W.1 and D.W.2 in their testimony supported their version as pleaded in written statement asserting that Ex.B1 agreement for sale was executed by the deceased 1st respondent. Even in cross-examination of MVR,J A.S.No.883 of 2011 9 D.W.1 on behalf of the respondents no material was elicited from him to discredit his testimony. Similar is the version of D.W.2 in cross- examination with reference to execution of Ex.B1 agreement for sale.
30. Both of them deposed that this agreement for sale was executed at their house at Patrunivalasa village. D.W.2 went to the extent of stating that it was executed at 11.00 a.m. by the deceased 1st respondent. D.W.6, who is the son-in-law of the 1st appellant and who belonged to the same village, confirmed this fact. Their testimony is further to the effect that it was executed in the presence of D.W.3, D.W.5 and D.W.6 and scribed by one Sri Dabbiru Malleswara Rao then Karanam of their village. Sri Malleswara Rao is no more and he was not available for examination at the trial.
31. The 1st respondent as P.W.1 also stated that there is no enmity between him and the appellants except this dispute. It was the statement elicited from him in the cross-examination on behalf of the appellants.
32. Sri Vedula Srinivas, learned counsel for the appellants strenuously contended that the manner in which the respondents chose to question Ex.B1 agreement reflected that the deceased 1st respondent admitted his signature appearing thereon and in as much as a case of coercion is set up by the respondents against the appellants, it is their burden to prove the circumstances under which they executed Ex.B1. Referring to Order-VI, Rule-4 CPC, which requires better particulars to be furnished when the foundation to question the transaction is based on such special circumstances such as fraud, coercion and undue influence etc., the learned counsel relied on Shanti Budhiya Vesta Patel and MVR,J A.S.No.883 of 2011 10 others vs. Nirmala Jayprakash Tiwari and others1. In Paras 32 and 33 of this ruling, it is observed thus:
"32. It is a plain and basic rule of pleadings that in order to make out a case of fraud or coercion there must be a) an express allegation of coercion or fraud and b) all the material facts in support of such allegations must be laid out in full and with a high degree of precision. In other words, if coercion or fraud is alleged, it must be set out with full particulars.
33. In Bishundeo Narain v. Seogeni Rai reported in 1951 SCR 548 it was held thus:
24. We turn next to the questions of undue influence and coercion.
Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded.
25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. (See Order 6 Rule 4 of the Civil Procedure Code.)"
33. This contention in the given circumstances of the case as rightly contended by Sri P.Veera Reddy, learned senior counsel for the respondents, is difficult to accept. The categorical version of the respondents is clear denial of execution of Ex.B1 agreement for sale and the entire transaction covered by it. The nature of resistance offered by the respondents to Ex.B1 agreement for sale, is not in the nature of an admission, including the signatures appearing in Ex.B1 agreement. When Ex.B1 agreement is specifically questioned by the respondents, the predominant burden is on the appellants to prove and establish not only its due execution but also the entire transaction surrounding it. It reflects a contract in between the appellants and the respondents allegedly in 1 . (2010)5 Supreme Court Cases 104 MVR,J A.S.No.883 of 2011 11 respect of sale of the suit land, recording certain terms and conditions of mutual performance. Therefore, as rightly observed in the impugned judgment and contended for the respondents, the burden did not rest on the respondents to prove the circumstances under which Ex.B1 agreement came into being.
34. It is true that in a suit for declaration of right, title and interest and possession of immovable property, it is settled law that burden is always on the plaintiffs. It is also settled law that the plaintiffs in such circumstances cannot rely on the weakness in the case set up by the defendants. However, having regard to the nature of dispute in this case, when the right, title and interest to the suit land admittedly stood vested in the respondents and their family, the above principle of law cannot be made applicable now.
35. The appellants have been attempting to derive their right and interest to the suit land in terms of Ex.B1 agreement for sale against the respondents. When there is serious denial of such transaction, by the respondents, the burden is on the appellants to establish and prove this fact.
36. There are certain circumstances pointed out for the respondents from the testimony of D.W.1 and D.W.2 as to the period when this transaction was entered into and inability of D.W.1 viz., the 1st appellant to identity the signature of the deceased 1st respondent. He could not state the reasons for selling away the suit land by the deceased 1st respondent though in the plaint as well as in his examination-in-chief his version was to meet the expenses relating to their rice milling business and investment in paddy business. However, in cross-examination itself, it MVR,J A.S.No.883 of 2011 12 was elicited that the deceased 1st respondent executed Ex.B1 agreement to discharge their debts, which is not mentioned in Ex.B1.
37. In fact, it was suggested to D.W.1 on behalf of the respondents that in June, 1997, the appellants requested the respondents 1 and 3 to sell the suit land and when both of them refused, taking advantage of dominance they have by virtue of their community in the village, threatened and obtained their signatures on stamp and white papers and trespassed into the suit land, on which the respondents also complained to the village elders. D.W.1 denied this suggestion. A careful examination of this situation reflects that it was not the case set up by the respondents in the plaint and also in examination-in-chief of P.W.1. While the case so set up in the plaint and examination-in-chief of P.W.1 is with reference to obtaining signatures from him and the 3rd respondent on Rs.50/- blank stamp paper, the suggested version to D.W.1 is different as if signatures were obtained in June,1997 on several stamp papers and whitepapers. Similar suggestion was put to D.W.2 on behalf of the respondents to the effect that the appellants forcibly obtained signatures of the 1st respondent and 3rd respondent on some stamp papers and white papers.
38. The testimony of D.W.6 though closely related to the appellants offers corroboration and support in respect of due execution of Ex.B1 agreement for sale.
39. One of the reasons that prevailed on the learned trial Judge to reject this case of the appellants is want of testimony of D.W.3 and D.W.4, who attested Ex.B1 agreement. They are treated as independent witnesses. A comment is also made in the judgment under appeal that the MVR,J A.S.No.883 of 2011 13 appellants did not take any coercive steps to examine these two witnesses at the trial.
40. The manner by which the respondents questioned the transaction covered by Ex.B1 sale agreement, did not fit-in with the circumstances otherwise positively projected by evidence on behalf of the appellants. Their version, particularly as seen from the evidence of P.W.1, who is none other than the deceased 1st respondent, reflected that signatures of himself and the 3rd respondent were obtained by applying force, calling them to their house by the appellants and such transaction went on at about 11.00 a.m. in the presence of family members of the appellants. P.W.1 further stated that it was a blank stamp paper of Rs.50/- denomination, on which their signatures were obtained, in April, 1997. Though there is slight departure from their case in the plaint that such transaction went on in June,1997, it cannot have significant effect.
41. Obviously, the so called stamp paper was not put to use in bringing out the alleged agreement for sale. Ex.B1 agreement stands differently, the description of which referred to above, defies the case so set up by the respondents.
42. Having regard to the circumstances discussed above, when the reason by which the respondents have questioned Ex.B1 agreement for sale, is not satisfactory nor appearing consistent, mere non-examination of these two witnesses did not make any difference. For reasons best known both of them did not come forward to face cross-examination. It cannot be a circumstance by itself to reject the testimony of D.W.1, D.W.2 and D.W.6 on the ground that they are all interested witnesses. Inconsistent version offered by the respondents in this context by means MVR,J A.S.No.883 of 2011 14 of suggestions referred to supra is another factor to consider. Sri P.Veera Reddy, learned senior counsel tried to explain the situation that taking advantage of the signatures so obtained from the 1st and 3rd respondents, Ex.B1 was fabricated. As rightly contended for the appellants it was never the case of the respondents in the plaint or during trial.
43. Admittedly, there was exchange of notices in Ex.A1 and Ex.A2 (Ex.B4 and Ex.B5 are their copies) prior to the institution of the suit. In Ex.A1 legal notice it was not the case of the respondents that taking advantage of the signatures allegedly obtained in the circumstances stated therein from them, the sale agreement in the nature of Ex.B1 was fabricated. Version in Ex.A1 is similar to what is pleaded in the plaint and appeared in examination-in-chief of P.W.1. A specific reference to Ex.B1 agreement is made in Ex.A2 legal notice, reflecting the case of the appellants set out in the written statement and as deposed on their behalf during trial.
44. Another circumstance relied on by Sri Vedula Srinivas, learned counsel for the appellants, is failure to pursue the orders in I.A.No.524 of 2004 to subject Ex.B1 agreement and Ex.B3 receipt for examination by handwriting expert by the respondents. At the request of the respondents in the above petition, the trial Court agreed to forward these two documents to a handwriting expert for comparison of signatures therein by its order dated 15.06.2006. The trial Court has recorded this fact in its judgment and also that though the above petition was allowed, the respondents did not take further steps. If such examination was undertaken, according to Sri Vedula Srinivas, learned senior counsel, the truth would have come out to establish that the signatures of the MVR,J A.S.No.883 of 2011 15 executant appearing on Ex.B1 and Ex.B2 are that of the deceased 1st respondent.
45. The learned trial Judge tried to explain this situation as rather laxity or lapse on the part of the respondents to pursue this course, for the reason that in I.A.No.813 of 2006, Ex.B2 receipt was subjected to examination by an expert from Indian Security Press, Nasik (P.W.4) and therefore want of such effort by the respondents did not have any effect.
46. Having had obtained necessary relief from the trial Court, failure to pursue the matter in consequence thereof upon subjecting these documents for examination by a handwriting expert is a serious lapse on the part of the respondents. They invited an order from the Court and the reasons by which they remained silent without further pursuing it, is unexplained. The appellants are entitled to urge this factor, to draw an adverse inference against the respondents. In this respect reliance is also placed for the respondents upon Sharda vs. Dharmpal2 and Chirag Enterprises vs. Star Traders3.
47. Thus, basing on the evidence of the appellants so let in to establish Ex.B1 and the circumstances discussed supra while considering the factors surrounding its execution, having regard to the stand of the respondents in this context, the inference to draw is that Ex.B1 agreement for sale was executed by the deceased 1st respondent voluntarily, conscious of its nature as manager of their Hindu undivided joint family on 09.07.1992 agreeing to sell the suit land to the appellants in terms 2 . (2003) 4 SCC 493 3 . ILR 2012(4) Kerala 266 MVR,J A.S.No.883 of 2011 16 thereof. Thus, the reasons assigned by the learned trial Judge in this context should necessary be differed and they are not acceptable.
48. There are no recitals in Ex.B1 agreement for sale of delivery of possession of the suit land to the appellants in terms of the contract thereunder. Nor it is the case of the appellants. They specifically contended that the 1st respondent received balance sale consideration of Rs.2,27,000/- from the 2nd appellant on 05.10.1992 and in the presence of D.W.6-Sri Appa Rao and D.W.4-Sri K.Suraiah, Ex.B2 stamped receipt was executed, whereunder the suit land was delivered in possession to him. The contents of Ex.B2 receipt are to that effect. Sri B.Rama Krishna is scribe of this receipt and his signature also bears the date 05.10.1992. The signatures attributed to the 1st respondent appear on two revenue stamps of Rs.1/- denomination pasted to it. Sri G. Apparao and Sri K.Suraiah attested this receipt.
49. Recitals in Ex.B2 are that the 1st respondent agreed to execute a regular registered sale deed in favour of the 2nd appellant, whenever demanded and a reason is stated therein for postponing its execution as well as registration. This reason is that the 1st respondent suffered loss in the paddy business where he fell due to many farmers and in the event of the 1st respondent executing and registering a regular registered sale deed, these farmers would bring pressure on him to clear their debts.
50. The case of the appellant is in tune with the contents of Ex.B2 receipt and they have assigned the same reason in the written statement as well as in the depositions of D.W.1 and D.W.2.
51. The respondents have seriously questioned and disputed Ex.B2 as a rank forgery. Their contention that the suit land was highhandedly MVR,J A.S.No.883 of 2011 17 occupied by the appellants in June, 1997 is another factor to consider the effect of Ex.B2 receipt.
52. In Ex.A2 reply notice, the appellants have referred to Ex.B2 receipt asserting that they have been in possession and enjoyment of this land right from its date. At that stage, the respondents did not choose to issue any rejoinder questioning Ex.B1 and Ex.B2. Though they claimed that Ex.A2 reply was belated, it did not have any consequence since it reflected the case of the appellants. Thereafter, the respondents have chosen to institute the suit on 10.07.2003.
53. At the trial, the respondents examined P.W.2 claiming that he was their tenant, cultivating their land on share-cropping basis. He claimed that about 8 years prior to the date he deposed in the Court (his evidence in examination-in-chief was sworn on 02.03.2006) when he had raised paddy nursery in an extent of Ac.0-60 cents in the suit land, the appellants trespassed, ploughed and then they unauthorisedly began to cultivate the same and in that process they also made use of this paddy nursery. P.W.2 deposed to that effect.
54. In the cross-examination for the appellants P.W.2 stated that prior to filing this suit there were no disputes between the respondents and the appellants about the suit land. The learned counsel for the appellants strenuously contended basing on this statement of P.W.2 as a circumstance of significance and to affect the credibility of the version of the respondents. Thus, the learned counsel pointed out that not only the testimony of P.W.1 but also the version of P.W.2 demonstrated that both the parties never had any differences or disputes and therefore, the version presented by the appellants needs credence.
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55. It is also the contention of the respondents that soon after the alleged occupation of the suit land by the appellants in June, 1997, there was a panchayat at their instance, where elders were sought to advice the appellants to desist from its occupation and in an attempt to get back this land for themselves. P.W.2 is stated to be one of the elders who took part in that mediation, as seen from the deposition of P.W.1. However, Ex.A1 legal notice issued by the respondents and the plaint are silent in this respect and they did not refer to participation of P.W.2 in the alleged mediation. Thus, for the first time, he was pressed into service as one of the mediators along with one Sri Suraiah.
56. P.W.2 referred to their mediatory effort to pacify this dispute. In cross-examination for the appellants he stated that he is not an elder in their village. When Ex.A1 legal notice and plaint averments are silent in respect of the role of P.W.2 which he was made to assume during trial as a mediator, it cannot as such be looked into. Any amount of evidence without there being pleading cannot be considered, is the settled proposition of law. It affects this attempt of the respondents to introduce P.W.2 as an alleged mediator. When he is not an elder in the village who went to the extent of stating that there were no disputes between these parties in respect of the suit land before filing the suit, the claim of the respondents in this regard is certainly questionable. Thus, P.W.2 was never a mediator who attempted to pacify this dispute as can be culled out from the material on record and a false circumstance was sought to be introduced at the trial by them.
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57. The attempt of the respondents to rely on the testimony of P.W.2 to support their contention that the appellants highhandedly encroached upon the suit land is, thus not acceptable.
58. The appellants relied on not only their testimony as D.W.1 and D.W.2 but also that of D.W.4-K.Suraiah. Though D.W.6 appeared as one of the attestors to Ex.B2, for the reasons best known he did not depose in respect of Ex.B2 or any transaction concerned to it.
59. The testimony of D.W.1 and D.W.2 stands in consonance with the contents of Ex.B2 receipt. Both of them asserted that, upon receiving the balance sale consideration, the first respondent delivered them the suit land and thus, physical possession of the same was handed over to them. They further claimed that the balance sale consideration was paid within the stipulated time of three months under Ex.B1 agreement for sale.
60. One of the main contentions of the respondents to question Ex.B2 receipt and the transaction covered by it is, want of an endorsement on Ex.B1 of payment of balance sale consideration of Rs.2,27,000/- as well as handing over possession of the suit land pursuant to it. The 1st respondent as D.W.1 in cross-examination admitted this fact. He further stated in cross-examination that the 1st respondent did not issue any receipt for balance sale consideration of Rs.2,27,000/- and three days after such payment, when he demanded the 1st respondent to execute a sale deed, he told him that there were no ryot passbooks.
61. D.W.2 also stated in cross-examination that Ex.B2 receipt was given upon payment of Rs.2,27,000/- being the balance of sale price by MVR,J A.S.No.883 of 2011 20 the 1st respondent. He also stated in cross-examination that a non-judicial stamp was used to prepare Ex.B2.
62. A number of inconsistent versions are pointed out by Sri P.Veera Redy, learned senior counsel for the respondents, with reference to the year, when either Ex.B1 or Ex.B2 are referred to by D.W.2 and contending that this witness went to the extent of stating that he did not know the contents of his written statement or his affidavit in lieu of examination-in-chief.
63. Any amount of emphasis is laid by Sri P.Veera Reddy, learned senior counsel, on the statements of D.W.1 and D.W.2 with reference to their version of executing Ex.B2 receipt. It is the contention of the learned senior counsel that the stand of the appellants either in Ex.A2 reply notice or in the written statement, is not consistently pursued at the trial and that there is any amount of variance of their case in this regard at the trial.
64. D.W.1 stated in examination-in-chief that when they demanded the 1st respondent to execute a regular sale deed upon receiving balance sale consideration of Rs.2,27,000/- and delivered physical possession of the suit land, he postponed on the same pretext reflected in Ex.B2 receipt referred to supra. He added that the 1st respondent took them to confidence on the premise that possession of the land was already delivered to them, who continued to cultivate.
65. It is the version of D.W.1 in his examination-in-chief that when they insisted the 1st respondent to give a receipt for payment of balance sale consideration, five years later the 1st respondent issued Ex.B2 receipt in favour of the 2nd appellant, with original date of payment.
MVR,J A.S.No.883 of 2011 21 Similar is the version of D.W.2 in his examination-in-chief. Thus, the version presented by these two witnesses at the trial was that though Ex.B2 bears the date 05.10.1992, in fact, it was issued to them by the 1st respondent 5 years later viz., in or about October,1997, mentioning the same date 05.10.1992. Thus, they gave completely different version in respect of issuance of Ex.B2 receipt at the trial.
66. As rightly contended for the respondents, there is nothing to indicate in Ex.B2 receipt that the version so presented by these two witnesses is correct nor any other material is placed at the trial in support of such version. It was clearly suggested to D.W.1 in cross-examination on behalf of the respondents to the effect that they changed their version on account of the opinion of P.W.4, an expert examined from Indian Security Press, Nasik, which he denied.
67. D.W.4 though deposed in respect of Ex.B2 transaction of payment of balance sale consideration of Rs.2,27,000/- in his presence and that of D.W.6 and that the suit lands were delivered in possession, a disturbing feature in his evidence is that Ex.B2 was not got identified through this witness specifically. No effort was made in examination-in- chief to get Ex.B2 identified through this witness. In cross-examination this witness admitted that the 2nd appellant is his brother-in-law. He went to the extent of stating that no consideration was paid to the respondents under the document which he attested. He further stated in cross- examination that when he along with D.W.6 as well as both the appellants demanded the 1st respondent to execute a sale deed since the property was sold long ago, he executed the above document acknowledging sale of the suit land and delivery of possession. Thus the statements elicited in MVR,J A.S.No.883 of 2011 22 cross-examination of this witness gave a different dimension and thus differing from the version of D.W.1 and D.W.2 as well as contents of Ex.B2.
68. Thus, as rightly contended by Sri Veera Reddy, learned senior counsel, there is any amount of inconsistency in the evidence adduced by the appellants in proof of Ex.B2 receipt and the transaction covered by it. Departure from the case they had set out in Ex.A2 reply notice and written statement is a serious blow to their version in this case and a fatal flaw. As rightly contended for the respondents, the apparent reason for this changed stance is the opinion of P.W.4 Deputy Works Manager, Indian Security Press, Nasik.
69. At the trial, on behalf of the respondents, I.A.No.813 of 2006 was filed to forward Ex.B2 receipt to Indian Security Press, Nasik for examination and report as to year of printing and date of issue of revenue stamp appearing on Ex.B2. P.W.4, who examined Ex.B2, pursuant to the orders of the trial Court, issued Ex.A18 report and opinion dated 06.01.2009. His opinion in this context is that the revenue stamps affixed to Ex.B2 receipt were printed on 19.05.1997 and were first dispatched on 02.06.1997 from Security Press, Nasik for the public. He further stated that every year this press issues revenue stamps in a new design and a specimen stamp upon such issue shall be retained in the Stamp Forgery Detection Cell in this security press.
70. On behalf of the appellants this witness was subjected to searching cross-examination with reference to his qualification to examine the stamps and to issue report. He was also questioned with reference to manner of examination. Apparently emphasis was laid then, on account of MVR,J A.S.No.883 of 2011 23 absence of any specific reason and manner of test conducted by him in Ex.A18 report. This witness stated in cross-examination that physical features of a revenue stamp under examination and that of specimen used for such purpose should be noted and that the same is not mentioned in his Ex.P18 report. Though he claimed that he had brought entire file when he was deposing in the trial Court, the specimen stamp used for the purpose of comparison and examination or a replica of the same, was not produced claiming security concerns. He also admitted in cross-examination that the entire file brought by him did not contain any material relating to physical features of the stamps examined and the specimen used for such purpose.
71. Ex.A18 did not contain any reasons in respect of the conclusions drawn by him which fact also he admitted in cross- examination. As seen from the statements elicited from this witness in cross-examination, he apparently tried to cover up the deficiencies so pointed out on the ground of security. Thus, he sought to explain non- disclosure of such vital information.
72. A careful consideration of testimony of P.W.4 including Ex.A18 report issued by him is not making out a satisfactory account. A witness appearing as an expert whose opinion bears relevance in the given circumstances of the case, cannot attempt to screen or shutout the material, which is otherwise relevant for consideration as a measure of acceptance and reliability.
73. Apparently, in order to match the version of P.W.4 that the stamps pasted on Ex.P2 were printed on 19.05.1997, the appellants came out with such version referred to supra giving a new dimension to their MVR,J A.S.No.883 of 2011 24 entire case covering Ex.B2 receipt. If really Ex.B2 was so obtained in the manner the appellants presented at the trial, in Ex.A2 reply notice should have referred the same and also in the written statement. It is an unnecessary departure made by them fatally affecting their case.
74. Law bars considering of a varied account at the trial, which is not based on pleadings. It is settled proposition of law that evidence shall always be in consonance with the pleadings.
75. A request is also made by the learned counsel for the appellants relying on Vajjala Sree Rama Murthy and Others vs. Tadepalli Narayana Murthy4 to reject the testimony of P.W.4 in as much as the respondents cannot seek many reliefs in the nature of examination of these documents through a handwriting expert, through Indian Security Press to determine the date of issuance of the revenue stamps appearing on Ex.B2 and other reliefs. This contention would have been appropriate at the stage when the trial Court considered I.A.No.813 of 2006, had it been raised. Admittedly, the appellants did not question the order in I.A.No.813 of 2006 of the trial Court in revision. Therefore, this ruling in Vajjala Sree Rama Murthy and others, can have no direct application now or relevance. Even otherwise, the evidence P.W.4 for the reasons recorded supra is not inspiring confidence or acceptability by itself. Ultimately, the outcome of such examination by P.W.4 and his report in Ex.A18 had driven the appellants to take a different stand than what they were faithfully following earlier in the suit. 4 . 2006(3) ALT 621 MVR,J A.S.No.883 of 2011 25
76. Reasons are assigned supra in respect of failure of the respondents to get Ex.B1 and Ex.B2 examined by a Handwriting expert, that lead to drawal of adverse inference, against them. However, having regard to nature of evidence adduced in proof of Ex.B2-receipt, the above factor cannot insulate the case of the appellant, without being affected.
77. Sri Vedula Srinivas, learned senior counsel, in the course of hearing in this appeal requested to compare the signature appearing on Ex.B2 with the admitted signatures available on record in terms of Section 73 of the Indian Evidence Act. To support such contention he relied on Lalit Popli vs. Canara Bank and Others5 . Similarly, reliance is placed in Kuppusamy Gounder and Ors. Vs. Palaniappan6, and with reference to due verification of credentials of an expert reliance is placed in Balkrishna Das Agarwal vs. Radha Devi and Others7. But, it is an unnecessary exercise, in this case, in view of what is stated above.
78. Long delay of six years referred to in Ex.A1 legal notice is pointed out by Sri Vedula Srinivas, learned counsel for the appellants, as reflection of the conduct on the part of the respondents in questioning this transaction, even according to the case set up by them though it is not admitted by the appellants at any stage.
79. The appellants did not produce any material to show that they have been in continuous possession and enjoyment of the suit land from the alleged date of possession viz., 05.10.1992. They could have produced adangals upto the year 1997 from 1992, since their possession and 5 . AIR 2003 SC 1796 6 .2011(6) CTC 619 7 . AIR 1989 ALL 133 MVR,J A.S.No.883 of 2011 26 enjoyment of the suit land of whatsoever nature is not in dispute since the year 1997. It is one of the factors considered by the learned trial Judge to disbelieve this version of the appellants.
80. P.W.3 is the Panchayat Secretary who worked in Patrunivalasa from 01.01.2000 to 26.07.2007 as Village Revenue Officer. He deposed with reference to land revenue collected from the 1st respondent under Ex.A16 & Ex.A17, Land Revenue Receipts. He was also confronted with 12 cist receipts in Ex.B3 on behalf of the appellants. His evidence is that these receipts reflected collections towards water cess. Ex.A16 and Ex.A17 are land Revenue Receipts issued on 07.04.2003 and 07.04.2006 for the faslies 1411 & 1414 respectively. The reason for failing to confront this witness with Exs.A6 to Ex.A15 is not known on behalf of the respondents. They were marked through P.W.1 viz., the deceased 1st respondent at the trial. The manner in which these L.R.Receipts were issued, raise any amount of doubt as to their credibility.
81. All these three documents can have no bearing in this case. In the sense, when possession of the suit land is admitted by the respondents since the year 1997, when these documents pertain to the period when admittedly the appellants were in possession of the suit lands and enjoying them, they did not add anything more to assist the contention of the respondents.
82. Ex.A5 adangal did not correctly reflect the persons in possession of the suit land during the years 2002-03. It should have recorded the possession of the appellants of this land. However, it is showing different names as if they were enjoying this land.
MVR,J A.S.No.883 of 2011 27
83. Production of appropriate adangals reflecting the possession and enjoyment of the suit land by the appellants at the trial right from 1992 would have lend any amount of assurance offering credibility to their version. Thus, it is another deficiency in the proof expected to be offered by the appellants in this case.
84. Thus, a careful consideration of the material on record in respect of Ex.B2 receipt leads to infer that the appellants have failed to prove this transaction.
85. A new case set up at the trial by the appellants had led to this situation, whereby their claim of possession and enjoyment of the suit land in furtherance of the contract covered by Ex.B1 agreement for sale has to be rejected.
86. Sri Vedula Srinivas, learned counsel for the appellants, laid any amount of emphasis on Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (Dead) by L.Rs., and others8 explaining the scope and application of Section 53-A of the Transfer of Property Act. In para-16 of this ruling, conditions required for application of Section 53-A of the Transfer of Property Act are set out as under:
"16. ... there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are-
1) there must be a contract to transfer for consideration any immovable property.
2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained:8
. (2002) 3 Supreme Court Cases 676 MVR,J A.S.No.883 of 2011 28
4) the transferee must in part performance of the contract take possession of the property, or of any part thereof:
5) the transferee must have done some act in furtherance of the contract; and
6) the transferee must have performed or be willing to perform his part of the contract."
87. In Para-7 of this ruling, it is also stated in this context as under:
"7. A perusal of Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired....."
88. The predominant contention of the appellants is that they have been in possession and enjoyment of the suit land under the contract covered by Ex.B1 invoking Section 53-A of the Transfer of Property Act, in the circumstances of the case, on the material, stands rejected, for the reason that the delivery of the suit property as claimed by the appellants under Ex.B2 receipt is not proved and established.
89. Therefore, in the given facts and circumstances, in as much as the requirements of Section 53-A of the Transfer of Property Act are not established by the appellants, they cannot protect their possession of the suit lands in terms thereof. Thus, this point is held. POINT No.2:
90. In view of the findings on point No.1, when possession of the suit land held by the appellants is not established in terms of Section 53-A of the Transfer of Property Act, the respondents being the admitted owners having title to the suit land, they are entitled for its possession.
MVR,J A.S.No.883 of 2011 29
91. A vain attempt is made on behalf of the appellants to rest their claim of long possession of the suits lands, suggestive of acquiring right, title and interest thereto by adverse possession. This plea has not been specifically taken in the written statement by the appellants. Even otherwise, when they are tracing their right and interest to the suit land through the respondents, they cannot set up such a plea. Law is laid down in this context in Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar and Others9.
92. Therefore, the appellants are bound to deliver vacant and peaceful possession of the suit land to the respondents.
93. The respondents are entitled for relief sought in the suit declaring their right, title and interest to the suit land and consequent delivery of possession against the appellants. The judgment of the trial Court has to be confirmed accordingly, holding in favour of the respondents and against the appellants.
POINT No.3:
94. In view of the findings on points 1 and 2, this appeal has to be dismissed. In the circumstances without costs.
95. In the result the appeal is dismissed without costs confirming the judgment and decree of the Court of the learned Principal Senior Civil Judge, Srikakulam dated 16.09.2011 in O.S.No.99 of 2003. The appellants are directed to hand over peaceful possession of the suit land to the respondents and four (04) months time is granted for this purpose. 9 . AIR 1996 SC 910 MVR,J A.S.No.883 of 2011 30 Otherwise, the respondents are at liberty to take recourse to due process of law for possession of the property.
As sequel thereto, pending miscellaneous petitions, if any, shall stand closed.
________________________ JUSTICE M.VENKATA RAMANA Dt:30.12.2020 RR MVR,J A.S.No.883 of 2011 31 HON'BLE SRI JUSTICE M.VENKATA RAMANA APPEAL SUIT No. 883 of 2011 Dt:30.12.2020 RR