S Babu Rao vs S Appayamma Died
2021 Latest Caselaw 4410 AP

       THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

                          S.A.No.80 OF 2019

JUDGMENT:-

      The 1st defendant in O.S.No.533 of 2011 on the file of

the   Court     of   learned     Principal       Senior   Civil   Judge,

Rajamahendravaram is the appellant.

2.    Respondent Nos. 2 to 5 were the plaintiffs. The 1st

respondent was the 1st plaintiff. She died during pendency of

the suit. The 6th respondent was the 2nd defendant.

3. The suit was filed to declare that the respondent Nos.1

to 5 are absolute owners of plaint schedule property and for

a consequential recovery of possession as well as future

profits against the appellant and the 6th respondent.

4. The property in dispute is described in the plaint

schedule as under:

Shop premises consists of ground floor shop premises with godown in the first floor bearing D.No.9-20-3. T.S. No.1217/P, Main Road, Rajahmundry bounded on East : Wall of this property abutting to building of Vadrevu Satram South : House wall in between this property and the property of Vankayala Sanyasirao West : Road North : House wall of I. Sriranganayakulu Within the specified boundaries of extent 32 sq yards with iron shutter, electric service connection etc. It shall be herein after referred to as „the suit property‟

for convenience.

5. Sri Chinaraju and 1st respondent, Smt Sarvasuddi

Appayamma are the parents of the appellant and the

respondent Nos.2 to 6.

6. The suit property was purchased by Sri Chinaraju

under five (5) sale deeds dated 08.02.1985, 01.03.1985,

24.08.1984, 27.09.1982 and 14.10.1982. He was in

possession and enjoyment of this property since the year

1979 which he had originally taken on lease where he started

business in selling foot wear in the name and style "Raja Shoe

Company". He also raised loan for the purpose of this

business from Jampeta Co-operative Urban Bank,

Rajahmundry by mortgaging this property upon deposit of

title deeds.

7. The case of the respondent Nos.1 to 5 is that, Sri

Chinaraju settled this property to them under a registered

settlement deed dated 01.01.2009 and that since then, they

have been in possession and enjoyment of this property. They

also alleged that the appellant and the 6th respondent in

December, 2008 forcibly took over this property along with

stock in trade, driving away Sri Chinaraju therefrom.

Therefore, it is the contention of the respondent Nos.1 to 5

that Sri Chinaraju laid a suit in O.S.No.556 of 2004 on the

file of the Court of learned IV Additional Junior Civil Judge,

Rajahmundry for grant of Perpetual Injunction.

8. The appellant filed O.S.No.1047 of 2008 for Perpetual

Injunction on the file of the Court of learned Principal Junior

Civil Judge, Rajahmundry against Sri Chinaraju, alleging that

he attempted to dispossess them from the suit property. The

appellant also filed RCC No.30 of 2009 under Section 11 of

Andhra Pradesh Buildings (Lease, Rent and Eviction) Control

Act, 1960 to permit to deposit rents in respect of the suit

property on the file of the Court of learned Rent Controller

cum Principal Junior Civil Judge, Rajahmundry.

9. In the above circumstances, the respondent Nos.1 to 5

stated that they are requesting the relief against appellant

and 6th respondent.

10. The main defence of the appellant is with reference to

the denial of settling this property in favour of respondent

Nos.1 to 5 by Sri Chinaraju. It is also his contention that the

above settlement deed was obtained by the respondent Nos.1

to 5 taking advantage of the facts that Sri Chinaraju was

staying with them and that it was never acted upon. He also

questioned right of Sri Chinaraju to execute the settlement

deed in their favour stating that this property was purchased

out of their joint exertions, nominally obtaining sale deed in

his name. Further contention of the appellant is that, he

continued to be tenant of this property which he had obtained

from Sri Chinaraju. He also referred to necessity to institute

O.S.No.1047 of 2008 and R.C.C.No.30 of 2009 against Sri

Chinaraju.

Basing on the pleadings, the following issues were settled for trial:-

1. Whether plaintiffs are entitled for declaration and consequential recovery of plaint schedule property ?

2. Whether plaintiffs are entitled for future profits to be ascertained by way of separate application ?

3. Whether the 1st defendant is the tenant of plaint schedule property as contended by him ?

4. Whether plaint schedule property was purchased nominally in the name of S. Chinaraju, as contended by the 1st defendant ?

5. Whether the settlement deed executed by S. Chinaraju in favour of plaintiffs is brought into existence by inducing him as contended by the 1st defendant ?

6. To what relief ?

11. At the trial, the 1st respondent examined herself as PW1

while the 5th respondent was examined as PW2. They relied

on Ex.A-1 to Ex.A-10 in support of their contention. The

appellant examined himself as DW1 and relied on Ex.B1 to

Ex.B4 in support of his contention.

12. Learned trial judge accepted the claim of respondent

Nos.1 to 5 and decreed the suit as prayed, while rejecting the

defence of the appellant by the Decree and Judgment dated

12.06.2017.

13. The appellant preferred A.S.No.100 of 2017 on the file of

the Court of learned Family Judge cum IXth Additional

District Judge, East Godavari, Rajamahendravaram against

this Decree and Judgment of the trial Court. It was also

dismissed by the Decree and Judgment dated 29.11.2018. In

these circumstances, the appellant has presented his Second

Appeal.

14. Heard Sri Chalasani Ajay Kumar, learned counsel for

the appellant and Sri P. Rajesh Babu, learned counsel for the

respondent Nos.2 to 5.

15. Since, both the learned counsel agreed to address

arguments on merits in the main appeal itself, at the stage of

admission, it is now being disposed of, upon hearing them.

16. The substantial questions of law raised by the appellant

in the memorandum of appeal essentially relate to

maintainability of the suit at the instance of the respondent

Nos.1 to 5 for reliefs of Declaration and possession, claiming

that the appellant remained a co-sharer in this property. They

further relate to right of Sri Chinaraju to give away the suit

property and alleging that there is no proof of Ex.A-1

Settlement deed in terms of Indian Evidence Act, 1872.

17. The claim of the respondent Nos.1 to 5 is based on

Ex.A-1 Registered Settlement deed dated 01.01.2009. It is

their specific contention that Sri Chinaraju, as the owner of

the suit property settled it in their favour out of love and

affection and partly on account of the difficulty he faced from

the appellant as well as the 6th respondent. It is true that

none was examined at the trial except PW1 and PW2, to prove

this document. Sri Chinaraju, was alive during the pendency

of the suit as per the material on record. Neither the attestors

nor the scribe to this transaction were examined at the trial.

18. However, both the Courts below relied on the admission

of the appellant as DW1, of signatures appearing in Ex.A-1 of

Sri Chinaraju. Considering this admission, both the Courts

inferred that it is sufficient to meet the requirements on

Section 68 of Indian Evidence Act, 1872.

19. Now the strenuous contentions are advanced on behalf

of the appellant that there is no proof of Ex A1 settlement

deed in law and reasons assigned by the Courts below in this

respect are not sound. As seen from the defence of the

appellant, either in the written statement or at the trial, it is

not his version that Sri Chinaraju did not execute this

settlement deed in favour of respondent Nos.1 to 5. It is

specific version of the appellant as DW1, in his examination-

in-chief that these respondent Nos.2 to 5 who were living with

the 1st respondent and Sri Chinaraju induced him and got

executed this settlement deed in their favour.

20. With reference to obtaining Ex.A-1 as alleged by the

appellant, neither in the written statement nor in the

testimony of DW1, details are furnished as to the nature of

inducement offered by the respondent Nos.1 to 5. Thus this

version of the appellant is not meeting the requirements of

Order VI Rule 4 Civil Procedure Code. It is required by the

appellant to furnish all such details when a document of this

nature is sought to be avoided on the grounds so set up by

the appellant.

21. Further the effect of proviso to Section 68 of Indian

Evidence Act should be considered in this context. The

proviso to Section 68 of Indian Evidence Act specifies that

there is no necessity to call an attesting witness in proof of

any document which is not a will and which is registered in

accordance with the Indian Registration Act unless its

execution by the person by whom it is stated as having had

been executed, is denied.

22. In view of the defence, it cannot be stated that there is

denial of execution of Ex.A-1 Settlement deed. Therefore, it is

not necessary to examine either the attestors or scribe to the

original Ex.A-1 as required under Section 68 of Indian

Evidence Act or Section 123 of the Transfer of Property Act.

23. In this context, Sri Rajesh Babu, learned counsel for the

respondent Nos.1 to 5 relied on the judgment of the Hon‟ble

Apex Court in "Surendra kumar, Appellant V. Nathulal,

Respondents1" rightly. In the given facts and circumstances

of the case with reference to the effect of Section 123 of the

Transfer of Property Act, 1882 and Section 68 of Indian

Evidence Act, 1872, it is stated in para No.12 of this

judgment thus:

"If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."

The proviso to section, which is relevant for the present

purpose, reads:

"Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

(Emphasis supplied)

AIR 2001 Supreme Court 2040

On a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not speficially denied its execution".

24. The situation in this case basing on the material, is

meeting all these requirements and particularly in the

absence of the defence set up by the appellant, being

substantiated.

25. Thus, by virtue of the original of Ex.A-1 settlement

deed, the suit property stood transferred to respondent Nos.1

to 5. The non-examination of Sri Chinaraju in this context,

did not bear any significance.

26. The attempt of the appellant to claim that he has been

the tenant of the suit property is not successful. In the sense,

his request to deposit rents in R.C.C.No.30 of 2009 was

rejected by the Court of the learned Rent Controller at

Rajahmundry as seen from Ex.A-9 Certified Copy of Decree

and Order therein.

27. Another attempt of the appellant to produce the receipt

in the shape of Ex.B-4 which is stated to be a copy under

which he claimed that he paid rent to Sri Chinaraju, was also

rejected by both the Courts below. The reasons assigned

therefor, are just and appropriate. The original Ex.B-4 receipt

was never produced by the appellant either in R.C.C.No.30 of

2009 or stated in the written statement in O.S.No.526 of 2004

or mentioned in O.S.No.1047 of 2008 nor it was referred to

and pleaded in the written statement in the present matter.

Therefore, for the first time it was introduced in evidence,

whereby the appellant claimed that he paid Rs.15,000/-

(Rupees Fifteen thousand only) to his father towards rent for

a period of five (5) years. Thus, the version of the appellant of

his tenancy of the suit premises is not established. It was

rightly rejected by both the Courts below.

28. Further, the contention of the appellant that he joined

his father along with the 6th respondent in acquiring the suit

property is preposterous. As observed by both the Courts

below, the appellant was a boy of 6 or 7 years old when the

suit property was purchased under the five (5) sale deeds

referred to above.

29. Sri Chinaraju had commenced the business in sale of

foot wear long ago and in or about the year, 1950 in a rented

premises and later continued in the suit property since the

year, 1979. Therefore, the appellant cannot raise such

contention.

30. Therefore, the possession if any held by the appellant of

the suit property is unauthorized. It did not have any legal

character nor such possession is justified in law. Such

wrongful possession cannot be permitted to the detriment to

the interests of respondent Nos.1 to 5.

31. All these facts and circumstances were considered by

both the Courts below in right perspective. In these

circumstances, when there are consistent and concurrent

findings recorded by both the Courts below this Court sitting

in second appeal cannot lightly interfere with the same.

32. Therefore, this Court is satisfied that there are no

circumstances warranting interference with the judgments

and decrees of both the Courts below in terms of Section 100

of Civil Procedure Code, since the entire case is based on

facts, where there are no such substantial questions of law

muchless one raised by the appellant in the second appeal, to

consider and determine. Therefore, the findings no merit in

this second appeal, it has to be dismissed.

33. In the result, the second appeal is dismissed. Having

regard to the close relationship among the parties they are

directed to bear their own costs. The appellant and 6 th

respondent are granted time till 01.01.2022 to vacate the suit

premises and handover peaceful possession to respondent

Nos.2 to 5. Lest, respondent Nos.2 to 5 are at liberty to

approach the trial Court for getting the appellant evicted from

the suit schedule property through process of law. Enquiry

relating to mesne profits as directed by the trial Court shall

go on.

Miscellaneous applications pending, if any, in this case

stand closed.

_________________________________ JUSTICE M. VENKATA RAMANA Date : 01.11. 2021 EPS

THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

S.A.No.80 OF 2019

Dated :01.11.2021

EPS