Perumalla Mahalaxmamma vs Perumalla Manikyam 4 Others
2021 Latest Caselaw 4898 AP

            THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

                 SECOND APPEAL No. 1361 of 2011

JUDGMENT:

The plaintiff in O.S.No.205 of 1992 on the file of the Court of

learned Principal Senior Civil Judge, Anakapalle is the appellant.

The respondents are the defendants.

2. The 2nd respondent died and his legal representatives being

respondents 6 to 8 are brought on record in the second appeal.

3. The appellant laid the suit for declaration of her right, title

and interest to the plaint schedule property, which is a house at

Kasimkota Village and to evict the respondents there from as well

as recovery of rent or damages.

4. Sri Perumalla Padamatayya and Sri Simhachalam are

brothers. Smt.Nallabilli Chinnammi is the younger sister of

Smt.Kasamsetty Narayanamma. They are sisters of Sri

Padamatayya and Sri Simhachalam.

5. A site was purchased by Smt.Nallabilli Chinnammi under a

registered sale deed dated 06.12.1958. Her husband died at an

young age. A house was constructed in this site consisting of about

three rooms.

6. It is the contention of the appellant that Smt.Nallabilli

Chinnammi was staying with her mother and that she was brought

up by Smt.Nallabilli Chinnammi, who was looking after affairs of

their family including the appellant and her husband. She further

contended that during her life time, Smt.Nallabilli Chinnammi

executed an unregistered will dated 09.06.1980 in a sound

disposing state of mind bequeathing of her properties including the

plaint schedule property in her favour.

7. It is also the contention of the appellant that she permitted

Sri Simhachalam, elder brother of her husband to be a tenant in a

portion of the plaint schedule house on a monthly rent of Rs.50/-

and subject to paying the house tax. She further contended that

she got constructed a wall in the middle room separating the

portion in her occupation and that of Sri Simhachalam. She further

contended that since she filed O.S.No.55 of 1999 on the file of the

Court of learned Senior Civil Judge, Anakapalle, Sri Simhachalam

bore grudge against her and he got issued a legal notice dated

10.03.1992, making several false allegations including a claim to

the plaint schedule property. She further alleged that since Sri

Simhachalam failed to pay rent from March, 1991, she got issued a

reply to his legal notice on 14.03.1992.

8. Before institution of the suit, Sri Simhachalam died leaving

behind the respondents, who are bound to pay rent to her as well

as vacate the plaint schedule property, according to the contention

of the appellant.

9. The respondents resisted this claim of the appellant denying

the entire case set up by her including the alleged will dated

09.06.1980. They further contended that Sri Perumalla

Simhachalam was the absolute owner of the plaint schedule

property in Kaspa street, Kasimpet Village, which he got

constructed along with his sister, Smt.Nallabilli Chinnammi. They

further contended that they are in occupation of two rooms and

that Smt.Nallabilli Chinnammi was in occupation of one room in

this house and that Smt.Nallabilli Chinnammi had executed an

unregistered Will dated 05.09.1978 in a sound disposing state of

mind bequeathing her share in this house namely one room in

favour of Sri Simhachalam. They further contended that an year

later, Smt.Nallabilli Chinnammi died making Sri Simhachalam

entitled for this room under this bequest.

10. The respondent also contended that Sri Simhachalam was

paying property tax as owner with the absolute rights to the plaint

schedule house and for more than 12 years. They further

contended that during his life time Sri Simhachalam gave a room to

the appellant for her residence, who, however, tried to grab the

said property constructing a wall with the assistance of Executive

Officer, Kasimkota Grampanchayat. However, this act was

questioned by Sri Simhachalam, according to them, on which the

officers of the Grampanchayat did not interfere. Denying that

there was a relationship of landlord and tenant between appellant

and Sri Simhachalam, questioning the maintainability of the suit

and that it is bad for non-joinder of parties, they denied the claim

of the appellant.

11. Basing on the pleadings, the trial Court settled the following

issues:

1. Whether the plaintiff is entitled for declaration of the plaint schedule property and for possession?

2. Whether the plaintiff is entitled for damages?

3. Whether the plaintiff is entitled to mesne profits?

4. Whether the suit is maintainable under law?

5. To what relief?

12. At the trial, the appellant examined herself as PW.1 apart

from PW.2 to PW.5, while relying on Ex.A1 to Ex.A4 in support of

her claim. The 3rd respondent examined himself as DW.1 apart

from examining DW.2 and DW.3, while relying on Ex.B1 to Ex.B6, in

support of contention of the respondents.

13. On the material and evidence, the trial Court dismissed the

suit by the decree and judgment dated 05.05.2000.

14. The appellant preferred A.S.No.202 of 2004 on the file of the

Court of learned X Additional District Judge (Fast Track Court)

Visakhapatnam at Anakapalle.

15. By the decree and judgment dated 17.02.2011, the decree

and judgment of the trial Court were confirmed in the appeal.

16. These are the circumstances, under which this second appeal

is presented by the appellant.

17. Heard Sri M.Radha Krishna, learned counsel for the appellant

and Sri V.V.L.N.Sarma, learned counsel for the respondents.

18. Both the learned counsel agreed to address arguments at the

stage of admission on the substantial questions of law referred to

in the memorandum of appeal in the second appeal. Accordingly,

both of them are heard on merits.

19. The appellant laid the suit for declaration of her right, title

and interest of the plaint schedule house and for ejectment of

respondents therefrom. In the circumstances, it is the burden of

the appellant to establish her claim. She cannot rely on the

weakness or laches in the case of the respondents. It is the settled

proposition of law.

20. The appellant as well as the respondents have set up their

respective claims basing on unregistered Wills executed by

Smt.Nallabilli Chinnammi to the plaint schedule house. In usual

course of succession, in the absence of any other legal heirs from

near kinship, the heirs of Sri Simhachalam and Sri Padamatayya

would be entitled to this property.

21. It is further to be noted that these parties are in occupation

of two different portions in the plaint schedule house.

22. When their claims are thus based on the Wills of

Smt.Nallabilli Chinnammi, on which one is trying to exclude the

entitlement of other to the plaint schedule house, it is for them to

establish by cogent and convincing evidence required in terms of

Section 68 of the Indian Evidence Act and Section 63(c) of the

Indian Succession Act. A Will is compulsorily attestable document

and therefore, examination of those connected to such transaction

including attestors mainly and in case of necessity, the scribe is

necessary.

23. In order to prove Ex.A1, unregistered Will dated 09.06.1980,

evidence was let-in of PW.2 and PW.4 i.e. alleged attestors by the

appellant, who deposed in respect thereof as PW.1. It appears

that the scribe of this Will is no more and therefore, his son being

PW.3 was examined at trial, who identified handwriting of his

father in this Will.

24. The respondents, who are relying on Ex.A3-Will stated to be

of Smt.Nallabilli Chinnammi relied on testimony of DW.2, one of its

alleged attestors and DW.3 i.e. alleged scribe. DW.1 deposed with

reference to Ex.B3, Will.

25. Thus, there is evidence on record in respect of these claims

of the appellant as well as the respondent relating to Ex.A1 and

Ex.B3 Wills. When the dispute is predominantly based on such

claims, the trial Court could have settled appropriate issues,

therefor, calling upon the parties to lead evidence thereon. As

seen from the issues settled by the trial Court, no such attempt

was made. Nor the learned trial Judge recorded any specific

finding either relating to proof of Ex.A1-Will or Ex.B3-Will. These

questions were completely glossed over recording certain

unnecessary observations. If at all there are any findings in the

judgment of the trial Court, relating to respective claims of the

parties, they are in para-10 of its judgment. They are extracted as

under:

"The absolute ownership of the plaint schedule house property documents only appears to be a paper ownership but not physical ownership. Anyhow, the defendants and plaintiff have been residing in the plaint schedule house property in separate rooms which is not in dispute. The defendants have not seeking the relief for adverse possession. Therefore, the unregistered wills placed before the court in the suit proceedings cannot be considered and both of them are the lgal heirs of the Chinnammi brothers. Chinnammi had no issues. The brothers legal representatives are in possession and enjoyment in respect of their separate rooms in the plaint schedule property which is not in dispute. Thereby, their possession and enjoyment in respect of their respective portions in the plaint schedule property belongs to Chinnammi has to be safeguarded. When Chinnammi had no issues it is better to keep it in the custody of the parties to the suit in their respective shares. In case the property has to be delivered to the Government as the purchaser had no issues, when the parties possession and enjoyment to their respective

portions is not in dispute. It is better to safeguard their rights and interest in the property of Chinnammi by disallowing unregistered wills placed by both parties into the court. If the Wills are taken into consideration one of the party will looses their rights or possession and enjoyment. Naturally the Court has to consider its depend upon the material and the evidence. In this suit both of them are not the legal heirs."

26. These observations clear reflection of abdication of its duty

by the trial Court and improper way of deciding the matters in

issue.

27. In the appeal presented by the appellant, the situation did

not receive any better treatment. Except referring to evidence

adduced by the parties, as seen from paras 16 to 20, no clear

findings were recorded in respect of these two Wills, by the

appellate Court in it's judgment.

28. Sri M.Radha Krishna, learned counsel for the appellant,

strenuously contended that both the Courts below totally failed to

grasp the situation and when evidence is on record, failing to

record any findings or drawing inferences thereon has caused any

amount of prejudice to the appellant. It is further contended that

the prejudice suffered by the appellant is due to determination of

the matter making unnecessary references by the trial Court and

drawing inferences unnecessarily as if the appellant failed to prove

her claim when the relief of declaration was sought, by the

appellate Court. Learned counsel for the appellant further

contended that appropriate points for determination were not

settled by the learned appellate Judge in terms of Order 41 Rule

31 C.P.C, which is lead to improper determination of the matter in

the appeal, which is the last Court of fact.

29. Sri M.Radha Krishna, referring to Order 41 Rule 31 C.P.C. and

necessity to frame appropriate points for its decision by the

appellate Court relied on Malluru Mallappa(D) through Lrs v.

Kuruvathappa and others1. Learned counsel referring to

observations in this ruling in respect of application of Order 41

Rule 31 CPC and that the role of the 1st appellate Court is different

from that of the High Court in a Second Appeal under Section 100

C.P.C particularly relied on para-17 in this ruling, where reference

is made to Vinod Kumar v. Gangadhar2. It is desirable to extract

this part of decision of Hon'ble Supreme Court for facility

hereunder:

"Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this court taking note of all the earlier judgments of this court reiterated the aforementioned principle with these words: "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must

AIR 2020 SC 925

2015(1) SCC 391

address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)"

30. Relevant are also observations in Para-18 of this ruling,

where the observations in Shasidhar and others v. Ashwani Uma

Mathad and another3 are extracted:

"21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law."

31. Thus, basing on these observations of Hon'ble Supreme

Court, Sri M.Radha Krishna, learned counsel for the appellant,

strenuously contended that the duty of the appellate Court, thus is

sacrosanct to decide in first appeal in terms of Section 96 C.P.C

and the judgment of the 1st appellate Court in this case, is

completely devoid of such consideration.

32. Sri V.V.L.N.Sarma, learned counsel for the respondents,

attempted to repel these contentions on the ground that the

learned appellate Judge took pains to consider the evidence on

record in respect of both these disputed Wills under Ex.A1 and

Ex.B3 and ultimately, since the appellant failed to discharge her

burden in a claim of this nature for declaration and ejectment,

rightly concluded that she failed in that process. Sri

V.V.L.N.Sarma, learned counsel for the respondents, further

2015(11)SCC 269

contended that learned appellate Judge also framed necessary

points for consideration in Para-11 of its judgment and recorded

findings thereon. Therefore, it is the contention of learned

counsel for the respondents that want of specific reference to the

issues relating to both these disputed Wills, either in the trial

Court's judgment or in the judgment of the appellate court is not a

vitiating factor nor has lead to any prejudice either to the

appellant or to the respondent. Thus, Sri V.V.L.N.Sarma, learned

counsel for the respondents, sought to support the reasons

assigned in the judgments of both the Courts below.

33. The contention of learned counsel for the appellant requires

acceptance. It is the bounden duty of the trial Court to settle

appropriate issues in terms of Section 14 Rule 1 C.P.C particularly,

when such a serious questions of fact and law relating to proof of

Wills are projected from the pleadings. Despite there being no

such issues, the parties had chosen to let in evidence upon

examining those concerned to the transactions covered by these

two Wills. Thereupon, the trial Court should have necessarily

recorded findings drawing such inferences either accepting Ex.A1

or Ex.A3 as the case may be. It is the duty of the trial Court to

pronounce judgment on all issues in terms of Order 14 Rule 2 C.P.C.

It was not so done. Recording such observations as extracted

above from the judgment of the trial Court, indicated nature of it's

judgment.

34. The 1st appellate Court had an opportunity to correct the

situation. In the circumstances, invoking its powers to determine

in terms of Order 41 Rule 33 C.P.C and if necessarily to remand the

matter or call for findings from the trial Court, upon settling

appropriate issues for determination with reference to these two

Wills for consideration in the appeal, before it's disposal. The

appellate Court did not do so. Added to it, it failed to record any

findings specifically drawing such conclusions and inferences in

relation thereto. The role thus taken to by the appellate Court

was not in terms of deciding the matter in proper perspective.

35. The observations of the Hon'ble Supreme Court in the

decision relied on by Sri M.Radha Krishna, learned counsel for the

appellant in this respect relating to role of the appellate Court in

considering the appeal under Section 96 C.P.C in the context of the

present matter are thus a grim reminder. The appellate Court also

failed completely in this respect.

36. In these circumstances, though, it is rather painful

particularly when the matter is being considered in the second

appeal in terms of Section 100 C.P.C , to direct to remand this

matter to the trial Court, it is but, necessary.

37. Having regard to the nature of the judgments of both the

Courts below as well as reasons assigned therein, it is desirable to

direct the trial Court to reconsider the issues already on record

afresh and further to frame other issues relating to true and valid

nature of Ex.A1-Will and Ex.B3-Will for determination. Needless to

state that the parties are entitled for an opportunity to adduce

further evidence and whatsoever aspect they desire to lead.

38. Therefore, interference in this second appeal is warranted

setting aside the decrees and judgments of both the Courts below

directing that the matter be remitted to the trial Court for fresh

consideration and determination on all the issues including the

issues now directed to be framed relating to Ex.A1 and Ex.B3,

Wills.

39. In the result, the Second Appeal is allowed setting aside the

decrees and judgments of both the Courts below. The matter is

remitted to the trial Court subject to the following directions:

1. The trial Court shall consider determination of the issues

already on record afresh basing on the evidence let in by

the parties.

2. The trial Court is directed to frame two additional issues

as follows:

i) Whether unregistered Will dated 09.06.1980

propounded by the plaintiff is true, valid and binding

on the defendants.

ii) Whether unregistered Will dated 05.09.1978

propounded by the defendants is true, valid and

binding on the plaintiff.

3. The trial Court shall give an opportunity to the parties to

adduce fresh and further evidence, if they so desire in

respect of respective claims including on these disputed

Wills.

4. The trial Court basing on such evidence and material shall

determine the case recording specific findings on all the

questions of fact and law raised by the parties in relation

to issues thus settled and available on record.

5. The trial Court shall not in any manner be influenced by

any of the observations and findings recorded in the

earlier judgments of the said Court as well as the

appellate Court.

6. The trial Court shall determine the matter on

independent consideration of the material and evidence.

7. Since the suit is of the year 2000, it shall be a matter of

appreciation, if the trial Court disposes of the suit within

six months from the date of receipt of a copy of this

judgment along with material records subject to

cooperation of learned counsel appearing for the parties.

8. The costs in this case at all stages shall be subject t0

result in this suit after remand.

40. Consequently, miscellaneous petitions pending if any, shall

stand closed.

41. Interim orders granted earlier if any, stand vacated.

_____________________ M.VENKATA RAMANA, J Date: 30.11.2021 Pab