Andhra Pradesh High Court - Amravati
T.Kamalanabha Reddy vs G.Chandra Sekhar Reddy Anr. on 4 October, 2021
1
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
SECOND APPEAL No.440 of 2000
Between:
T.Kamalanabha Reddy, S/o.(late) Narasa Reddy
and two others
... APPELLANTS
AND
G.Chandrasekhar Reddy, S/o.G.Krishna Reddy
and another
... RESPONDENTS
DATE OF JUDGMENT PRONOUNCED :04.10.2021
SUBMITTED FOR APPROVAL
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
1. Whether Reporters of Local Newspapers
may be allowed to see the order? Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the order? Yes/No
____________________
M.VENKATA RAMANA, J
2
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE M. VENKATA RAMANA
+ S.A.No.440 of 2000
% Dated : 04.10.2021
Between:
# T.Kamalanabha Reddy, S/o.(late) Narasa Reddy
and two others
... APPELLANTS
AND
$ G.Chandrasekhar Reddy, S/o.G.Krishna Reddy
and another
... RESPONDENTS
! Counsel for appellants : Mr. M.Ravindranath Reddy
^Counsel for Respondent : Mr.S.S.Bhatt
<GIST :
>HEAD NOTE:
? Cases referred:
1. 2004(5) SCC 762
2. 1987(55) SCC
3. 2006(3) SCC 686
4. AIR 2002 RAJ 386
5. 2008(4) SCC 594
6. (2002) 3 SCC 676
7. 1983(1) SCC 35
8. AIR 1996 SC 1140
9. 2008(1) ALD 573
10. 2012(3) ALD 160
11. AIR 1951 SC 120
12. AIR 1949 PC 32
13. (1947) AC 484, 486
14. (2001) 3 SCC 179
15. AIR 1992 KAR 209
16. 1997(3) ALD 444
17. 1991(3) ALT 14
18. AIR 1970 KERALA 310
19. (1892) AC 473, dt:30-07-1892
20. AIR 1967 SC 465
21. AIR 1951 SC 16
22. AIR 1952 PUNJ 387
23. AIR 1961 MYS 62
24. AIR 1963 SC 1165
25. (1972) 2 SCC 461
26. 1999(2) MPLJ 31
27. (1973) 2 SCC 60
28. (2011) 4 SCC 567
29. (2017) 3 SCC 702
30. AIR 1961 SC 808
31. 201(2) ALT 501 (DB)
32. 1998(2) MADRAS L.W.274
33. 2008(1) ALD 24 (SC)
3
34. 2021 SCC On line SC 307
35. 2005(1) ALD 260
36. LAWS (APH) 2021-7-3
____________________
M.VENKATA RAMANA, J
4
HON'BLE SRI JUSTICE M. VENKATA RAMANA
SECOND APPEAL No.440 of 2000
JUDGMENT:
The defendant in O.S.No.24 of 1999 on the file of the Court of the
then Subordinate Judge (Senior Civil Judge), Srikalahasti, presented this
second appeal. He died and appellants 2 and 3 being his legal
representatives are brought on record, who are pursuing this appeal.
2. The respondents were the plaintiffs in the above suit. The second
respondent died during pendency of this second appeal. The first
respondent being her sole legal representative is already on record.
3. The respondents laid the suit for declaration of their right and title
to the plaint schedule properties and to restrain the deceased first
appellant by means of permanent injunction from in any way interfering
with their peaceful possession and enjoyment of these properties.
4. The plaint schedule properties are agricultural lands located in
Nagulapuram village of Chittoor district and described in the plaint
schedule as follows:
Sl.No. Survey No. Extent Hectares Wet or Dry
1. S.No.521/2 3.51 cents Dry
2. S.No.571/1 0.52 |
3. A.No.571/3 0.81 | 1.33 cents Wet
4. S.No.571/2 1.12 cents Wet
5. S.No.558/ 0.96 cents Wet
They shall be referred to hereinafter as 'the suit lands'.
5. Sri T.A.Kuppireddy and Smt.Sanjeevamma are the parents of the
second respondent. The suit lands and other extents of about Ac.60.00 wet
and dry lands at Nagulapuram belonged to Sri T.A.Kuppi Reddy. He died in
May 1956 testate, directing devolution of his estate by means of
a registered Will dated 22.03.1956. His entire properties were divided into
three parts shown as schedules 'A', 'B' and 'C' in this registered Will. 'A'
schedule property therein was bequeathed in favour of Smt.Sanjeevamma
his wife with life interest and thereafter to confer upon the second
respondent. 'B' schedule property therein was given away to the second
respondent with absolute rights. Sri Kuppi Reddy retained 'C' schedule
properties therein for life and thereafter to devolve in favour of his wife
after whose lifetime, they were directed to be conferred to this second
respondent. Sri Kuppi Reddy was apparently philanthropic and who has
constructed a Chowltry and Bhajan Mandir in their village, in the sites
belonged to him.
6. After the death of Sri Kuppi Reddy, Smt.Sanjeevamma and the
second respondent began to enjoy these properties. Smt.Sanjeevamma
had sold away some of them that included an extent of Ac.8.37 cents of
wet land in favour of Sri R.Chengal Reddy under Ex.A16 sale deed dated
22.03.1982 for valuable consideration.
7. Items 1 to 3 of the suit lands belonged to Smt.Sanjeevamma and
whereas items 4 and 5 belonged to the second respondent.
Smt.Sanjeevamma suffered from paralysis in the year 1983, had treatment
in Christian Medical College Hospital, Vellore in the state of Tamilnadu.
She died on 29.08.1985.
8. The deceased first appellant was a resident of Nagulapuram. He
claimed relationship to the second respondent, which is disputed by the
respondents. He had agricultural lands neighbouring the suit lands.
Initially, the suit was instituted by the first respondent alone and later on
the second respondent was added as a party (second plaintiff) to it.
9. The case of the respondents is that Smt.Sanjeevamma had executed
a settlement deed on 31.05.1985 (Ex.A2) in favour of the first respondent
giving away items 1 to 3 of the suit lands, which he continued to be in
possession and enjoyment. Further contention of the respondents is that
the second respondent settled items 4 and 5 of the suit lands under a
registered deed of settlement (Ex.A3) dated 29.05.1985 in favour of the
first respondent, which he continued to be in possession and enjoyment
since then. Contending that the deceased first appellant in order to knock
away the suit lands taking advantage of young age of the first respondent
and since his father was employed as a load surveyor in A.P.S.E.B. at
Chittoor, made attempts to trespass into the suit lands including on
10.05.1989. Therefore, the respondents contended that they were
constrained to lay the suit for the reliefs, sought.
10. The deceased first appellant resisting the claim of the respondents
in the plaint, filed a written statement denying the case set up by them.
11. The deceased first appellant specifically contended that items 1 to 3
of the suit lands were sold by Smt.Sanjeevamma to him for Rs.32,000/-,
who had received Rs.30,000/- out of it, executed an agreement for sale on
22.11.1989 and that these lands were delivered to him in possession
thereunder. Similarly, he contended that the second respondent had sold
items 4 and 5 of the suit lands for a consideration of Rs.20,000/- to him on
25.06.1984 under an agreement for sale and delivered possession of these
lands to him. Thus, he contended that in part performance of the contract
under these two agreements for sale executed by his vendors, he was put
in possession of these lands, which he continued to enjoy.
12. The deceased first appellant also contended that the version of the
respondents of execution of settlement deed dated 31.05.1985 by
Smt.Sanjeevamma in favour of the first respondent cannot be true, since
she was unwell who suffered a stroke somewhere in the year 1983, who
was not able to walk or talk till she died on 29.08.1985. He further denied
that settlement deed in respect of items 4 and 5 allegedly executed by the
second respondent on 29.08.1985 in favour of the first respondent. He
further contended that these settlement deeds were brought out to defeat
his rights under the agreements for sale executed in his favour by them.
He further contended that neither Smt.Sanjeevamma nor the second
respondent had any right to execute these settlement deeds, which are
fraudulent transactions and that these settlement deeds are fabricated.
He also denied the relationship between both the respondents while
asserting that he raised crops in the suit lands and denied the alleged
attempts attributed to him to dispossess the respondents.
13. Basing on the pleadings, issues were settled for trial:
1. Whether the settlement deed dated 29.05.1985 is true, valid and
binding on the defendant?
2. Whether the settlement deed dated 31.05.1985 is true, valid and
binding on the defendant?
3. Whether the agreement of sale dated 22.11.1981 is true and
valid?
4. Whether the agreement of sale dated 25.06.1984 is true and
valid?
5. Whether the plaintiff has been in possession of the suit lands as
on the date of suit?
6. Whether the plaintiff is entitled for the declaration of title as
prayed for?
7. Whether the plaintiff is entitled for the permanent injunction as
prayed for?
8. To what relief?
14. The parties went to trial. The first respondent examined himself as
P.W.1 and the second respondent as P.W.2. P.W.3 was examined on their
behalf, who is an attestor to Ex.A3 settlement deed. On behalf of the
respondents, Ex.A1 to Ex.A17 are relied on. On behalf of the deceased
first appellant at the trial, he examined himself as D.W.1, D.W.2 and D.W.3
being attestors to Ex.B1 agreement for sale, while D.W.3 and D.W.9 are
attestors to Ex.B2 agreement for sale. Further reliance is placed on the
testimony of D.W.4 to D.W.8, D.W.10 and D.W.11, Ex.B3 to Ex.B25 on his
behalf at the trial. Ex.X1 and Ex.X2 were marked through D.W.7.
15. On the material and evidence, learned trial Judge dismissed the
suit. In the appeal A.S.No.42 of 1996 on the file of the Court of learned III
Additional District Judge, Chittoor at Tirupathi, the decree and judgment
of the trial Court were reversed and the suit was decreed granting relief as
prayed, in favour of the respondents and against the deceased first
appellant.
16. This second appeal is preferred in the above circumstances against
the decree and judgment of the appellate Court by the deceased first
appellant.
17. Heard Sri M.Ravindranath Reddy, learned counsel for the appellants
and Sri S.S.Bhatt, learned counsel for the respondents.
18. This second appeal was admitted for the following substantial
questions of law on 20.07.2000:
"1. Whether a suit for declaration of title and
possession is maintainable when the plaintiff is
not in possession of the suit schedule property?
2. Whether the Appellate Court can decree the suit
for declaration of title and for injunction after
having found that the defendant is in possession of
the suit schedule property?
3. Whether the suit filed by the plaintiff is hit by
Section 34 of the Specific Relief Act?"
19. In the course of hearing in this appeal, Sri M.Ravindranath Reddy,
learned counsel for the appellants requested for formulation of additional
substantial question of law, which is as follows:
"Whether the First Appellate Court can reverse the findings of
the Trial Court which are based on conflicting evidence or
otherwise, arrived at by the Presiding Judge of the Trial Court
based on oral evidence recorded by the same Presiding Judge
who authored the Judgment and thereby or in the said
process Whether the First Appellate Court has carried out its
functions correctly or not?"
20. Sri M.Ravindranath Reddy, learned counsel for the appellants
contended that it is open for this Court to consider any other substantial
question of law basing on the material if warranted in terms of Section 100
CPC.
21. Sri S.S.Bhatt, learned counsel for the respondents vehemently
opposed to consider this additional substantial question of law contending
that such question did not arise in terms of Section 100 CPC and in terms of
Order XLII Rule 2 CPC.
22. However, to support his contention, Sri Ravindranath Reddy, learned
counsel for the appellants relied on THIAGARAJAN AND OTHERS v.SRI
VENUGOPALASWAMY B.KOIL AND OTHERS1 where in para 17, it is stated
as under:
"17. Sub-section (5) of Section 100 CPC says that the appeal shall be
heard on the question so formulated and the respondent shall at the
hearing of the appeal be allowed to argue that the case does not
involve such a question. The proviso states that nothing in this sub-
section shall be deemed to take away or abridge the power of the
Court to hear, for reasons to be recorded, the appeal on any other
substantial question of law not formulated by it if it is satisfied that
the case involves such question."
2004(5) SCC 762
23. A reference is also made in this ruling to Kshitish Chandra Purkait
Vs. Santosh Kumar Purkait2 and observed in Para-18 in that context as
under:
"----- A three-Judge Bench of this Court held (a) that the High Court
should be satisfied that the case involved a substantial question of law
and not mere question of law; (b) reasons for permitting the plea to
be raised should also be recorded; (c) it has a duty to formulate the
substantial question of law and to put the opposite party on notice and
give fair and proper opportunity to meet the point; (d) in absence
thereof, hearing of the second appeal would be illegal."
24. Further reliance is placed on behalf of the appellants in the same
context on Ushabhai and Others Vs. Balakrishna and others3, where the
above ruling Thiagarajan is referred to.
25. The appellants also relied on OM PRAKASH v. MANOHARLAL4 a
judgment of High Court of Rajasthan in the same context, where a learned
single Judge of High Court of Rajasthan observed that even at the time of
arguments, such substantial question of law can be formulated, provided
the respondents are given an opportunity to meet out such question.
26. This additional substantial question is now referred to, since
strenuous contentions are advanced on behalf of both the parties basing on
the material and evidence, only for the purpose of considering whether the
determination of the same is required. Therefore, this additional
substantial question of law is being considered now along with the
substantial questions referred to above, which were formulated at the time
of admission of the second appeal.
27. Having regard to nature of dispute and the scope of adjudication in
this second appeal, all these substantial questions raised on behalf of the
appellants are now considered together. Another reason in doing so, is the
1987(55) SCC
2006(3) SCC 686
AIR 2002 RAJ 386
nature of material and evidence on record, consideration of which
necessarily overlaps, in deciding all these substantial questions.
28. It is settled proposition of law that in a suit for declaration of right
and title, the burden is on the plaintiff to establish his claim to the
properties in dispute affirmatively and in that process, he cannot rely on
weakness or latches in the case of the defendant.
29. In ANATHULA SUDHAKAR v. P.BUTCHI REDDY5relied on for the
appellants, the general principles covering a suit of this nature including a
suit for mere permanent injunction are stated in para 11 as under:
"11. The general principles as to when a mere suit for permanent
injunction will lie, and when it is necessary to file a suit for
declaration and/or possession with injunction as a consequential
relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property
and such possession is interfered or threatened by the defendant, a
suit for an injunction simplicitor will lie. A person has a right to
protect his possession against any person who does not prove a better
title by seeking a prohibitory injunction. But a person in wrongful
possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in
possession, his remedy is to file a suit for possession and seek in
addition, if necessary, an injunction. A person out of possession,
cannot seek the relief of injunction simplicitor, without claiming the
relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property
is in dispute, or under a cloud, or where the defendant asserts title
thereto and there is also a threat of dispossession from defendant, the
plaintiff will have to sue for declaration of title and the consequential
relief of injunction. Where the title of plaintiff is under a cloud or in
dispute and he is not in possession or not able to establish possession,
necessarily the plaintiff will have to file a suit for declaration,
possession and injunction."
2008(4) SCC 594
30. Smt.Sanjeevamma and her daughter, viz. the second respondent
undisputedly and admittedly had right, title and interest to items 1 to 3/4
and 5 of the suit properties respectively. The nature of defence of the
deceased first appellant at the trial basing on alleged purchase of these
extents from them under Ex.B1 and Ex.B2 agreements for sale feeds this
position. During their lifetime, they did have every right to divest
themselves from these properties either creating third party interest or by
any modes of transfer of property statutorily recognized, to convey right,
title and interest in relation thereto by valid and legal transactions.
31. When such is the admitted situation, when since the right, title and
interest to the suit lands remained with them during their lifetime, having
regard to the status of the second respondent as co-plaintiff along with the
first respondent, the requirement relating to burden of proof in that
context in terms of Section 101 of Indian Evidence Act stands discharged
particularly in the light of the defence of the appellants in this case.
32. Nonetheless, the first respondent should establish that by means of
Ex.A2 and Ex.A3 settlement deeds dated 31.05.1985 and 29.05.1985 he is
entitled to vested reminder in these lands while the settlers retained their
life interest therein and after their life time, he is entitled to them.
33. The significant factor in this context is that the second respondent
has supported these transactions.
34. Apart from the evidence of the second respondent as P.W.2,
evidence of P.W.3, who is one of the attestors to Ex.A3 settlement deed is
on record. He supported the version of the respondents in relation to
Ex.A3 transaction. His deposition is to the effect that the second
respondent had executed it in his presence and of Sri Ranganadhan,
another attestor. It was registered in the office of Sub-registrar at
Chittoor. As seen from Ex.A3, signatures of P.W.3 and Sri Ranganadhan
appear as attestors to it and it was scribed by one Sri Manohar Pillai.
35. In the presence of the evidence so let in on behalf of the
respondents at the trial, this transaction under Ex.A3 is established. There
is no reason to reject the testimony so let in on record on behalf of the
respondents.
36. Ex.A2 settlement deed was also executed at Chittoor by
Smt.Sanjeevamma. The second respondent attested it. It bears the left
thumb impression of Smt.Sanjeevamma as is described therein.
37. Learned trial Judge considered that there is no proof offered in
respect of Ex.A2 since none of the attestors or the scribe was examined at
the trial. Similarly, disbelieving Ex.A3, learned trial Judge recorded the
findings that there is no proof in relation to these two settlement deeds.
One of the findings of learned trial Judge in this respect is necessity for
execution of these documents and their registration, at Chittoor.
38. Another factor pointed out in their defence on behalf of the
appellants is the serious ill-health from which Smt.Sanjeevamma was
suffering at the time of Ex.B2 transaction on account of paralysis, while
also referring to the treatment she had at Vellore. A reference is also
made as to conduct of the second respondent in this context, who was
staying at Chittoor in the house of one Sri G.Krishna Reddy, with whom it
was contended at the trial that she had illicit intimacy.
39. Execution and registration of Ex.A2 and Ex.A3 at Chittoor cannot be
a reason or factor by itself to discard these transactions. Sri G.Krishna
Reddy-D.W.11 is the father of the first respondent. D.W.10
Smt.Govindamma is his wife and mother of the first respondent. The
contention of the respondents is that the first respondent was adopted by
the second respondent and apparently Smt.Sanjeevamma also encouraged
this relationship. There is however no valid proof of this adoption. But,
material on record is proving that the second respondent fostered the first
respondent and that he was calling her as his aunt. Sri G.Krishna Reddy
was an employee of A.P.State Electricity Board. It is the contention of the
appellants that he was then working at Nagulapuram when he and his
family came to be associated with the second respondent. Association of
Sri Krishna Reddy and his wife as well as his children and of the second
respondent is an established fact from the evidence on record in this case.
However, there is strong denial from the respondents and also from Sri
Krishna Reddy as D.W.11 of this alleged relationship attributed in between
them. The first respondent, who was with the second respondent and her
mother from the time he was 6 or 7 years old, grew up, did his engineering
course from Bangalore and by the date of trial, he was an engineer working
at Bangalore.
40. The suit lands are at Nagulapuram. The documents in relation to
these lands or any immovable properties at Nagulapuram could have been
registered at the relevant place. They were however executed and
registered at Chittoor. The appellants attributed that to avoid the
deceased first appellant and to keep away these transactions from his
notice, they were executed and registered at Chittoor at the instance of Sri
G.Krishna Reddy.
41. When there is no bar for registration of these documents at Chittoor,
the contention of the appellants in this context as such cannot stand. The
parties had chosen to enter into these transactions at Chittoor. P.W.3
deposed that he had lands at Nagulapuram, though a resident of
Pothambattu near Chittoor. He is as an attestor to Ex.A3 settlement deed.
42. P.W.2 - the second respondent deposed in respect of Ex.A2
settlement deed. On behalf of the appellants a suggestion was given to
P.W.2 viz. the second respondent in cross-examination that the thumb
impressions of Smt.Sanjeevamma were taken forcibly on Ex.A2. This
suggestion indicative of the defence of the appellants puts at rest any
controversy as to the thumb impressions appearing on Ex.A2 settlement
deed and to hold that they are of Smt.Sanjeevamma. This circumstance
infact offers support and corroboration to the testimony of P.W.2 the
second respondent, who deposed in respect of Ex.A2 settlement deed
executed by her mother.
43. Regarding health condition of Smt.Sanjeevamma, evidence on record
is from P.W.1 and P.W.2 and medical record in the nature of Ex.A52 to
Ex.A58. However, specific defence of the appellants that she was in such a
serious condition unable to move and speak, is not supported by any oral or
documentary proof. The deceased first appellant clearly admitted in cross-
examination for the respondents in this respect. However, an admission,
which seriously dents this version of the appellants, is in the testimony of
D.W.2 an attestor to Ex.B1 agreement. He stated in cross-examination that
Smt.Sanjeevamma was hale and healthy about three months prior to her
death and when she fell sick. Thus, this statement of D.W.2 is establishing
that the health condition of Smt.Sanjeevamma was not such that she was
not in a position to enter into Ex.A2 transaction. Though she used to sign
in Tamil, because of paralysis she was suffering from, her left thumb
impressions were taken on Ex.A2.
44. In such an event, when there is evidence on record from the
respondents that she had executed Ex.A2 settlement deed, on her own
conscious of such fact giving away the lands covered by it in favour of the
second respondent, the defence so set up by the appellants should fail.
45. Thus, from the material on record, particularly in the backdrop of
the defence set up by the appellants, the irresistible inference to draw is
that the settlement deeds under Ex.A2 and Ex.A3 are proved and that the
first respondent was conferred the suit lands thereunder by the second
respondent and her mother Smt.Sanjeevamma, subject to limitation stated
therein. Thus, right, title and interest in respect of the suit lands were
transferred to the first respondent.
46. The effect of Ex.B1 and Ex.B2 sale agreements needs consideration.
Further to consider in this context is the defence of the appellants in terms
of Section 53-A of Transfer of Property Act, since it is their contention that
under these agreements for sale Smt.Sanjeevamma and the second
respondent had put the deceased first appellant in possession of the suit
lands in part performance of the contract thereunder.
47. In terms of Section 53-A of Transfer of Property Act, a person in
possession of the property pursuant to the contract, in its part
performance, is entitled for protection. (SHRIMANT SHAMRAO
SURYAVANSHI AND ANOTHER v. PRALHAD BHAIROBA
SURYAVANSHI(DEAD) BY LRs. AND OTHERS6). At the same time, it should
be proved that the transferee should have performed or is willing to
perform his part of contract.
48. Therefore, the burden was on the deceased first respondent to
establish the contracts under Ex.B1 and Ex.B2 agreements for sale at the
trial and further to establish that he was ready and willing to perform his
part of contract, to claim this benefit under Section 53-A of the Transfer of
Property Act.
49. Ex.B1 is an unregistered agreement for sale allegedly executed by
Smt.Sanjeevamma in favour of the deceased first appellant on 22.11.1981.
It is the contention of the appellants that she had agreed to sell away
items 1 to 3 of the suit lands for a consideration of Rs.32,000/- thereunder
(2002) 3 SCC 676
and had delivered possession of these lands to the deceased first appellant
upon receiving Rs.30,000/-. Thus, their contention is that Rs.2,000/- was
the balance payable under this agreement for sale to the vendor.
50. The reason for sale of these lands stated in Ex.B1 is to meet her
family expenses and the medical expenses. The signature attributed to
Smt.Sanjeevamma is in Tamil in it. D.W.2 and D.W.3 attested it and one
Sri Manoharan is its scribe as per its contents.
51. Apart from the evidence of the deceased first appellant, there is
evidence of these two attestors examined at the trial as D.W.2 and D.W.3.
They deposed supporting this transaction to the effect that in their
presence the vendor upon receiving the sale consideration had executed
Ex.B1 agreement for sale.
52. Learned trial Judge accepted their testimony and thereby held that
Ex.B1 was proved. However, learned first appellate Judge reversed this
finding holding that the testimony of D.W.2 and D.W.3 along with that of
the deceased first appellant as D.W.1 did not prove this transaction and
thus disbelieved Ex.B1.
53. D.W.2 and D.W.3 admitted their relationship and of the deceased
first appellant. It is one of the circumstances considered affirmatively in
favour of the respondents by the learned appellate Judge. However, this
relationship cannot have any bearing according to the contentions of the
appellants when both these witnesses consistently deposed proving this
transaction. In one of the judgments of Hon'ble Supreme Court relied on
for the appellants in MADHUSUDAN DAS v. SMT.NARYANIBAI (deceased)
BY LRs AND OTHERS7 in para-18, the effect of relationship of witnesses is
stated thus:
1983(1) SCC 35
"...................
We think the proper rule to be that when a witness holds a position
of relationship favouring the party producing him or of possible
prejudice against the contesting party, it is incumbent on the court to
exercise appropriate caution when appraising his evidence and to
examine its probative value with reference to the entire mosaic of
facts appearing from the record. It is not open to the court to reject
the evidence without anything more on the mere ground of
relationship or favour or possible prejudice."..............
54. It is for the court to exercise caution when evaluating the evidence
of the witnesses who are related to the party to the suit, to consider
probative value of such testimony.
55. The contents of Ex.B1 referring to necessity for Smt.Sanjeevamma to
sell away items 1 to 3 of the suit lands, offer a suspicious circumstance.
Even according to the defence version, Smt.Sanjeevamma fell ill in the
year 1983. It is not the case of either party that she was sick and was
undergoing treatment during November 1981 or by the alleged date of
Ex.B1, viz. 22.11.1981. The deceased first appellant as D.W.1 admitted
clearly that she was hale and healthy by then. Though the material on
record including Ex.A16 sale deed indicated that Smt.Sanjeevamma was
given to selling away part of her properties, the reasons so assigned in
Ex.B1 compelling to sell these items to the deceased first appellant are not
convincing.
56. Learned appellate Judge considered the necessity of
Smt.Sanjeevamma to sell away items 1 to 3 of the suit lands under Ex.B1
and for this purpose, effect of Ex.A17 promissory note was considered.
Learned appellate Judge observed that the deceased first appellant
admitted this promissory note. However, as seen from the record and
deposition of D.W.1, there is no such admission.
57. There are circumstances surrounding acceptability of Ex.A17
promissory note in this case. Its contents make out that on 09.09.1979, the
deceased first appellant had borrowed Rs.3,000/- from Smt.Sanjeevamma
agreeing to repay the same on demand. It also bears an endorsement of
payment of Rs.10/- dated 09.08.1982. When it was introduced in evidence
through P.W.1, at the trial, on behalf of the deceased first appellant, there
was no cross-examination of this witness or P.W.2. Nor he offered any
explanation as D.W.1 at the trial. Thus, Ex.A17 promissory note remained
an uncontroverted and undisputed document. When the contents of Ex.A17
are that the deceased first appellant had borrowed Rs.3,000/- agreeing to
repay the same with interest at 12% per annum, from Smt.Sanjeevamma,
as rightly observed by learned appellate Judge, necessity for her to sell
away items 1 to 3 of the suit lands under Ex.B1 agreement is questionable
in addition to the reasons already stated above. Further, it gives raise to
question the capacity of the first appellant to purchase these lands from
her thereunder.
58. It appears that Smt.Sanjeevamma and the second respondent were
given to lending money in the village, not only as seen from Ex.A17
promissory note but also Ex.X1 and Ex.X2, P.W.7 admitted these promissory
notes in cross-examination at the trial. Though he is a witness to support
the version of the deceased appellant at the trial, his grouse against the
second respondent stood exposed on account of these money transaction
he had with her. In that process, he proved that under Ex.X1 promissory
note dated 27.01.1978 he had borrowed Rs.5,000/- from her on which he
had made three payments. He also admitted that under Ex.X2, his wife
borrowed Rs.8,200/- on 15.05.1985 from the second respondent and made
only one payment thereon. It was suggested to him on behalf of the
respondents that there were disputes between him on one hand and the
second respondent on the other in respect of these transactions, since they
did not repay the amounts due to her. Suggestions on behalf of the
respondents were denied by this witness.
59. Nonetheless, these transactions made out that neither
Smt.Sanjeevamma nor the second respondent were in such circumstances
to sell away the suit lands under Ex.B1 and Ex.B2. This is another factor to
question the claim of the appellants in this context.
60. Further, as rightly observed by the learned appellate Judge, the
deceased first appellant did not take any steps to get this alleged sale
confirmed either by issuing a notice or calling upon Smt.Sanjeevamma to
execute a regular sale deed. The deceased first appellant as D.W.1
admitted this fact at the trial. Similarly, he admitted that he did not pay
balance sale consideration of Rs.2000/- to her. He did not choose to file
a suit for specific performance against Smt.Sanjeevamma. He denied the
suggestion that he got the signature of Smt.Sanjeevamma forged in Ex.B1.
61. Thus, these admissions of the deceased first appellant are the
circumstances that surround the alleged transaction under Ex.B1. They
reflect upon nature of this transaction and making it unbelievable. If at all
the deceased first appellant had entered into this contract under Ex.B1
with Smt.Sanjeevamma, he should have taken all necessary steps to
ultimately get a sale deed in his favour and omission to do so in that
direction is a definite factor affecting credibility of this transaction.
62. In this backdrop when the testimony of the propounder of Ex.B1
itself is giving raise to suspicion of its nature, D.W.2, D.W.3 and the
deceased first appellant, being relations, will have significant effect in
evaluating their testimony.
63. D.W.2 in his cross-examination could not give the names of another
attestor to Ex.B1 viz D.W.3 and of it's scribe. When these parties are
inter-related, it is hard to believe that D.W.2 would not have known
association of D.W.3 with this transaction as an attestor.
64. D.W.3 could not state the extent covered by Ex.B1 agreement for
sale and could not state the reason why Smt.Sanjeevamma had sold the
lands under Ex.B1. He further stated that he had not seen the deceased
first appellant paying consideration to Smt.Sanjeevamma and further
deposed that he was informed by her of the same. According to him, the
sale consideration was only Rs.30,000/- and could not state the total sale
consideration under Ex.B1 at Rs.32,000/-. His deposition is silent as to
payment of alleged balance sale consideration of Rs.2,000/- to her.
65. Considering the inconsistencies in the testimony of D.W.1 and D.W.2
relating to execution of Ex.B1, when they are in relation to vital aspects of
execution, they make their testimony a suspect and unreliable.
66. The contention of the appellants is that under Ex.A2 agreement for
sale on 25.06.1984, the deceased first appellant had purchased items 4 and
5 of the suit lands from the second respondent upon paying a consideration
of Rs.20,000/-. Their further contention is that the second respondent had
executed Ex.B2 therefor in favour of the deceased first appellant.
Possession of these items was also delivered according to their contention
under Ex.B2 and that the second respondent had received entire sale
consideration thereunder.
67. Apart from the testimony of the deceased first appellant as D.W.1,
there is evidence of D.W.4 and D.W.9, who are its attestors, on record to
support this transaction. Their testimony is that Ex.B2 agreement bears
the signature of the second respondent. The contents of Ex.B2 set out the
necessity for the sale, to meet the family as well as the medical expenses.
D.W.4 deposed that the recitals in Ex.B2 are not to the effect that the sale
of these lands by the second respondent was for the purpose of discharging
the debts incurred by her and to meet the medical expenses relating to her
mother. He too admitted his relationship with the defendant stating that
Kannamma, who is the wife of the deceased first appellant is his brother's
daughter. He denied the suggestion that Ex.B2 was concocted with his help
and that of D.W.9 in collusion by the deceased first appellant. He also
denied the suggestion that Ex.B2 did not contain the signature of the
second respondent and also the transaction thereunder, when suggested
for the respondents.
68. D.W.9 could not give the reason why the lands under Ex.B2 were
sold away. He too denied the suggestions for the reasons that the second
respondent did not sign in his presence in Ex.B2 and that Ex.B2 is
fabricated, in collusion with D.W.4 and D.W.1.
69. The testimony of the deceased first appellant as D.W.1, D.W.2 to
D.W.4 and D.W.9 is to the effect that the deceased first appellant was in
possession of the suit lands for about 20 years prior to the institution of the
suit. The deceased first appellant as D.W.1 also deposed that he was
tenant cultivating these lands. As rightly considered by the learned
appellate Judge, the written statement did not refer to these facts.
70. In respect of Ex.B2, no steps were taken by the deceased first
appellant as in the case of Ex.B1, to enforce the contract thereunder.
Neither he got issued a notice to the second respondent nor filed a suit for
specific performance requiring execution of a regular sale deed in his
favour basing on this contract. Even though entire sale consideration was
allegedly paid to the second respondent, failure to obtain a regular sale
deed from her pursuant to it is a factor of significance. As admitted by the
deceased first appellant himself, there is no record to show that he was in
possession of the suit lands for the last 20 years prior to the institution of
the suit, nor is there any material to show that he was enjoying these lands
pursuant to Ex.B1 and Ex.B2 sale agreements from the dates of their
execution.
71. The appellants relied on Ex.B9 and Ex.B10 extracts of adangals for
faslies 1397 and 1398 corresponding to the years 1987-88 and 1988-89
respectively. The pattadar for items 1 to 3 of the suit lands as per these
adangals is Smt.Sanjeevamma and whereas in respect of items 4 and 5, the
second respondent is shown as the pattadar. The name of the deceased
first appellant is mentioned as the person in enjoyment of these lands in
these two adangals. However, as rightly observed by the learned appellate
Judge, it is not stated in these adangals that he is in enjoyment on account
of purchase from the pattadars under the agreements for sale. Thus, the
source by which he came into possession of these lands is not seen from
these two adangals.
72. It is also to be noted that at the trial, neither the adangals of the
year 1981 covering items 1 to 3 nor the one covering the year 1984 in
relation to items 4 and 5 of the suit lands was produced to prove and
probablise that the deceased first appellant was inducted into possession of
these lands under these two agreements for sale. Thus, these two adangals
and entries therein did not advance the contention of the appellants that
the deceased first appellant was in possession and enjoyment of the suit
lands under the contracts covered by Ex.B1 and Ex.B2 in part performance
thereunder.
73. Ex.B23 is a true copy of adangal for fasli 1404 relating to the year
1994-95. It is a document, post institution of the suit. Possession of these
lands is reflected in these adangals similarly as in Ex.B9 and Ex.B10. This
document being only a true copy and not issued by the office of the
concerned Tahsildar, cannot have any bearing, nor can be looked into,
since it did not have authenticity nor evidentiary value.
74. The contention of the respondents is that during lifetime of
Smt.Sanjeevamma, she and the second respondent were in possession and
enjoyment of these lands and that they were cultivating them either
personally or through hired labour. P.W.2 viz. the second respondent also
deposed that one Sri Boya Kannayaram was assisting her in cultivation. He
was not examined at the trial on behalf of the respondents, which fact was
considered by the learned trial Judge.
75. Both parties relied on cist receipts in support of their respective
contentions. Ex.A4 to Ex.A12 and Ex.A9 to Ex.A24 are the LR receipts in
the name of Smt.Sanjeevamma relating to patta No.41 for items 1 to 3.
Ex.P25 to Ex>P47 are the cist receipts relating to patta No.124 covering
items 3 and 4 of the suit lands in the name of the second respondent.
Ex.P48 is the cist receipt in the name of the first respondent. Ex.A12 to
Ex.A17 are also the cist receipts, but cist was paid thereunder after the
institution of the suit.
76. On behalf of the deceased appellant at the trial the cist receipts
were produced being Ex.B3 to Ex.B7. Ex.B3 to Ex.B5 are in the name of the
second respondent, which the deceased first appellant admitted as D.W.1.
He paid the cist on 24.04.1989 for faslies 1396, 1398 under Ex.B6 and also
for the same faslies under Ex.B7. They stand in the name of the deceased
first appellant. Ex.B11 to Ex.B16, Ex.B21, Ex.B22 were issued post
institution of the suit in the name of the deceased first appellant.
Apparently, no mutation was carried out in respect of the patta of these
lands in his favour and it stood in the names of Smt.Sanjeevamma and the
second respondent, as the case may be.
77. Learned appellate Judge compared the signature in Ex.B1 attributed
to Smt.Sanjeevamma and the one in Ex.A16 sale deed and recorded the
finding that these signatures did not tally, even to the naked eye. Though
it is open for a Court to compare signatures in terms of Section 73 of Indian
Evidence Act, it is quite a hazardous course. Unless the Judge concerned is
proficient in the science of comparison of signatures and has ability,
usually this exercise shall not be resorted to. Necessary caution has to be
observed in this context and the Judge concerned cannot don the role of an
expert. Hon'ble Supreme Court in O.BHARATHAN v. K.SUDHAKARAN8
cautioned in undertaking this exercise in para - 20 as follows, while
referring to State (Delhi Admn.) Vs. Pali Ram (AIR 1979 SC 14):
"20. ....... Though it is the province of the expert to act as judge or
jury after a scientific comparison of the disputed signatures with
admitted signatures, the caution administered by this Court is to
the course to be adopted in such situations could not have been
ignored unmindful of the serious repercussions arising out of the
decision to be ultimately rendered. To quote it has been held in
State (Delhi Admn.) Vs. Pali Ram (supra):
"The matter can be viewed from another angle also.
Although there is no legal bar to the Judge using his own
eyes to compare the disputed writing with the admitted
writing, even without the aid of the evidence of any
handwriting expert, the Judge should, as a matter of
prudence and caution, hesitate to base his finding with
regard to the identify of a handwriting which forms the
sheet- anchor of the prosecution case against a person
accused of an offence, solely on comparison made by
himself. It is therefore, not advisable that a judge should
take upon himself the task of comparing the admitted
writing with the disputed one to find out whether the two
agree with each other: and the prudent course is to obtain
the opinion and assistance of an expert."
78. On behalf of the appellants, reference is made to MD.TAJUDDIN v.
MD.ABDUL RAHAMAN AND OTHERS9 and GOWRI SHANKAR v. J.L.BABU
AND ANOTHER10 in respect of the Court undertaking this exercise of
comparison of signatures under Section 73 of Evidence Act. Nonetheless,
AIR 1996 SC 1140
2008(1) ALD 573
2012(3) ALD 160
the caution required to observe as per the ruling of the Hon'ble Supreme
Court referred to above shall be the watchward.
79. All these circumstances carefully considered and analysed by the
learned appellate Judge in its judgment were not addressed by the learned
trial Judge. Basing on the oral evidence of the attestors and that of the
deceased first appellant, learned trial Judge recorded findings accepting
Ex.B1 and Ex.B2 agreements for sale and held that Smt.Sanjeevamma had
sold items 1 to 3 and the second respondent had sold items 4 and 5 of the
suit lands to the deceased first appellant. Learned trial Judge further held
that Ex.A2 and Ex.A3 settlement deeds were entered into only to get over
the agreements for sale under Ex.B1 and Ex.B2 while further holding that
those settlement deeds were not proved at the trial.
80. In respect of Ex.B1 and Ex.B2, learned trial Judge did not even
consider the circumstances that are staring from the record, from the clear
admissions of the deceased first appellant as D.W.1 and the documentary
evidence adduced by both the parties, leading to the extent of rejecting
the defence on the ground of highly doubtful authenticity. In such
circumstances, the learned appellate Judge, when considering
a regular appeal under Section 96 CPC, empowered in terms of Section 107
CPC, is entitled to reappraise the evidence on record and is at liberty to
draw his own independent conclusions and inferences. The power of the
first appellate Court in this context is unbridled and is not circumscribed by
any limitations.
81. However, Sri M.Ravindranath Reddy, learned counsel for the
appellants strenuously contended that the attempt of the learned
appellate Judge is not correct and particularly when the learned trial
Judge had an opportunity of observing the demeanour of the witnesses,
who deposed before him. Hence, it is contended that the observations
recorded by the learned trial Judge bear due weight and consideration. Sri
M.Ravindranath Reddy, learned counsel for the appellants had undertaken
a strenuous exercise of bringing to the notice of the details of recording
evidence at the trial by the same presiding officer, who delivered the
judgment in this matter pointing out that the same presiding officer had
recorded almost entire depositions of the witnesses and conducted entire
trial.
82. In support of his contention, Sri M.Ravindranath Reddy, learned
counsel for the appellants relied on the observations of Hon'ble Supreme
Court in SARJU PERSHAD v. RAJA JWALESHWARI PRATAP NARAIN SINGH
AND OTHERS11. In para-7 of this ruling it is stated:
"The question for our consideration is undoubtedly one of fact, the
decision of which depends upon the appreciation of the oral evidence
adduced in the case. In such cases, the appellate court has got to bear in
mind that it has not the advantage which the trial Judge had in having the
witnesses before him and of observing the manner in which they deposed
in court. This certainly does not mean that when an appeal lies on facts,
the appellate court is not competent to reverse a finding of fact arrived
at by the trial Judge. The rule is--and it is nothing more than a rule of
practice --that when there is conflict of oral evidence of the parties on
any matter in issue and the decision hinges upon the credibility of the
witnesses, then unless there is some special feature about the evidence of
a particular witness which has escaped the trial Judge's notice or there is
a sufficient balance of improbability to displace his opinion as to where
the credibility lies, the appellate court should not interfere with the
finding of the trial Judge on a question of fact(1). The gist of the
numerous decisions on this subject was clearly summed up by Viscount
Simon in Watt v. Thomas(2), and his observations were adopted and
reproduced in extenso by the Judicial Committee in a very recent appeal
from the Madras High Court(3). The observations are as follows:
"But if the evidence as a whole can reasonably be regarded as justifying
the conclusion arrived at the trial, and especially if that conclusion has
been arrived at on conflicting testimony by a tribunal which saw and
heard the witnesses, the appellate court will bear in mind that it has not
enjoyed this opportunity and that the view of the trial Judge as to where
AIR 1951 SC 120
credibility lies is entitled to great weight. This is not to say that the Judge
of first instance can be treated as infallible in determining which side is
telling the truth or is refraining from exaggeration. Like other tribunals,
he may go wrong on a question of fact, but it is a cogent circumstance
that a Judge of first instance, when estimating the value of verbal
testimony, has the advantage (which is denied to Courts of appeal) of
having the witnesses before him and observing the manner in which their
evidence is given."
83. In the same context, learned counsel for the appellants also relied
on SARA VEERASWAMI ALIAS SARA VEERRAJU v. TALLURI
NARAYYA(DECEASED) AND OTHERS12 in which ruling, the observations in
WATT or THOMAS v. THOMAS13 are relied on.
84. SANTOSH HAZARI v. PURUSHOTTAM TIWARI (DECEASED) BY LRs.14
is also relied on in the same context while also referring to the parameters
under which a second appeal in terms of Section 100 CPC be considered vis-
à-vis the judgment of the first appellate Court.
85. The relevant observations in this ruling in para-15 are as under:
"...............
While writing a judgment of reversal the appellate Court must
remain conscious of two principles. Firstly, the findings of fact based
on conflicting evidence arrived at by the trial Court must weigh with
the appellate Court, more so when the findings are based on oral
evidence recorded by the same presiding Judge who authors the
judgment. This certainly does not mean that when an appeal lies on
facts, the appellate Court is not competent to reverse a finding of fact
arrived at by the trial Judge. As a matter of law if the appraisal of the
evidence by the trial Court suffers from a material irregularity or is
based on inadmissible evidence or on conjectures and surmises, the
appellate Court is entitled to interfere with the finding of fact (See
Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC
114). The rule is and it is nothing more than a rule of practice that
when there is conflict of oral evidence of the parties on any matter in
AIR 1949 PC 32
(1947) AC 484, 486
(2001) 3 SCC 179
issue and the decision hinges upon the credibility of witnesses, then
unless there is some special feature about the evidence of a particular
witness which has escaped the trial Judges notice or there is a
sufficient balance of improbability to displace his opinion as to where
the credibility lies, the appellate Court should not interfere with the
finding of the trial Judge on a question of fact.(See Sarju Pershad
Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors. (AIR 1951 SC
120). Secondly, while reversing a finding of fact the appellate Court
must come into close quarters with the reasoning assigned by the trial
Court and then assign its own reasons for arriving at a different
finding. This would satisfy the Court hearing a further appeal that the
first appellate Court had discharged the duty expected of it. We need
only remind the first appellate Courts of the additional obligation cast
on them by the scheme of the present Section 100 substituted in the
Code. The first appellate Court continues, as before, to be a final
Court of facts; pure findings of fact remain immune from challenge
before the High Court in second appeal. Now the first appellate Court
is also a final Court of law in the sense that its decision on a question
of law even if erroneous may not be vulnerable before the High Court
in second appeal because the jurisdiction of the High Court has now
ceased to be available to correct the errors of law or the erroneous
findings of the first appellate Court even on questions of law unless
such question of law be a substantial one.
86. It is also desirable to extract the following observations relating to
what is substantial question of law, in para - 14 of this ruling:
"A point of law which admits of no two opinions may be a proposition
of law but cannot be a substantial question of law. To be substantial,
a question of law must be debatable, not previously settled by law of
the land or a binding precedent, and must have a material bearing on
the decision of the case, if answered either way, in so far as the rights
of the parties before it are concerned. To be a question of law
involving in the case there must be first a foundation for it laid in the
pleadings and the question should emerge from the sustainable
findings of fact arrived at by court of facts and it must be necessary to
decide that question of law for a just and proper decision of the case.
An entirely new point raised for the first time before the High Court is
not a question involved in the case unless it goes to the root of the
matter. It will, therefore, depend on the facts and circumstance of
each case whether a question of law is a substantial one and involved
in the case, or not; the paramount overall consideration being the
need for striking a judicious balance between the indispensable
obligation to do justice at all stages and impelling necessity of
avoiding prolongation in the life of any lis."
87. MADHUSUDAN DAS v. SMT.NARYANIBAI (deceased) BY LRs AND
OTHERS, (already referred supra); SANGAWWA v. SHANKARAPPA15 (a case
for grant of maintenance) and CHOTA LAL v. BHOLARAM AGARWAL AND
OTHERS16, are also relied on by learned counsel for the appellant in this
respect.
88. It is true that the findings of the trial Court in relation to and basing
on the oral evidence bear significant effect in evaluating such evidence on
record on reappraisal by the first appellate Court. The rulings relied on by
Sri M.Ravindranath Reddy, learned counsel for the appellants are not to the
effect that such observations of the trial Court cannot in any eventuality be
interfered with. Pertinent to bear in this context the observations of
Hon'ble Supreme Court in SANTOSH HAZARI, referred to supra.
89. Reasons stated above accepting the findings recorded by the learned
appellate Judge rejecting those recorded by the trial Judge, explain the
present situation. When learned trial Judge ignored crucial admissions of
the party to the suit, viz. the deceased first appellant(defendant) which
have profound effect on the entire defence, going to the root of the
matter, learned appellate Judge was right in rejecting the findings of the
trial Court, offering his own reasons. Such exercise was undertaken in the
interests of justice, which a first appellate Court is ordained under Section
107 CPC. Appraisal of evidence thus considered by the learned trial Judge
suffered from serious irregularity, in pretentious ignorance of the material
on record.
AIR 1992 KAR 209
1997(3) ALD 444
90. Therefore, it is not correct for the appellants to contend that the
approach of the learned appellate Judge is against law and the findings
recorded by the trial Court should be preferred. Sitting in second appeal,
this Court is entitled to, in given facts and circumstances to consider this
situation. When the approach of the learned appellate Judge is just and
appropriate and is in accordance with law basing on appropriate evaluation
of the material on record, it should be supported.
91. In the backdrop of rejection of the defence of the appellants, basing
on Ex.B1 and Ex.B2, it is manifest that it is not open for them to rely on
Section 53-A of Transfer of Property Act contending that the suit lands are
held by them in part performance of the contract. Nor there is proof that
the deceased first appellant was always ready and willing to perform his
alleged part of contract under these agreements. An agreement for sale
cannot confer or create an interest or title or right to the property in terms
of Section 54 of the Transfer of Property Act. On such basis, the appellants
cannot contend that the alleged possession of these lands should be
protected while questioning the ultimate relief granted by the appellate
Court against them. Possibility of Ex.B1 and Ex.B2 as held by the learned
appellate Judge being fabrications brought out at the instance of the
deceased first appellant is not ruled out. Possession if any of the suit lands
claimed by the deceased appellant at the trial, as rightly observed by the
learned appellate Judge is that of a trespasser and an encroacher.
92. Law does not recognize possession of a trespasser. It is a wrongful
act. Very intention of a trespasser to gain entry into property is tainted
with criminality and to remain in that property without any manner of right
or title is only in furtherance of such criminal intention. It is no possession
in the eye of law. Thus, a trespasser is not entitled for consideration
either in terms of equity or law. Learned appellate Judge relied on
KANAKAPPAGARI CHINNABHA REDDY17, where it was observed that a
trespasser in possession of the property is not entitled for an equitable
relief of injunction.
93. The respondents clearly stated in their plaint that there were
attempts of the deceased appellant to highhandedly enter and trespass
into the suit lands on 10.05.1989 and attempted to dispossess the first
respondent. This apprehension, in proved facts and circumstances in this
case became a reality. The deceased appellant could not have remained
on the suit lands nor his LRs now on record as appellants can claim on such
basis that they have been in possession and enjoyment of these lands.
94. THIRUVANCHAN SANKARAN v. KUNJIPILLAI AMMA GOURI AMMA AND
OTHERS18 is relied on for the appellants with reference to application of
Section 114 of Evidence Act. Possession follows title is the principle
considered in the above ruling. Sri S.S.Bhatt, learned counsel for the
respondents contended that continuity of the things must be presumed under
Section 114 of Indian Evidence Act and in the given facts and circumstances of
this case, possession of the suit lands to rest with the respondents should be
accepted. Interim injunction granted by the trial Court in I.A.No.159 of 1989
referred to in para - 17 of the judgment of the trial Court is brought to the
notice of this Court by learned counsel for the respondents, while supporting
the findings of the learned appellate Judge in granting relief of permanent
injunction.
95. The material on record is making out that Smt.Sanjeevamma and the
second respondent were in possession and enjoyment of the suit lands to the
extent they were entitled to. It passed on to the first respondent by virtue of
Ex.A2 and Ex.A3. Failure of the appellants to establish of the case set up at
the trial, of the deceased first appellant being in possession and enjoyment of
1991 (3) ALT 14
AIR 1970 KERALA 310
these lands, well before institution of the suit is a factor of significance in this
context. The deceased first appellant without there being a basis in his
written statement, apparently tried to clothe his alleged entry into the suit
lands as a lawful exercise of his right claiming at one stage as a tenant in
possession at the trial and in terms of Ex.B1 and Ex.B2 agreements for sale.
Such attempt of the appellant is to justify his alleged entry and illegal
continuance of such trespass into the suit lands. These factors were rightly
considered by the learned appellate Judge while recording right findings.
96. Sri M.Ravindranath Reddy, learned counsel for the appellants on this
score strenuously contended that concurrent findings recorded by both the
Courts below relating to possession of the suit lands in favour of the
appellants cannot be interfered with in this second appeal. It should be
borne in mind that the finding recorded by the learned trial Judge was
reversed in the first appeal and that the possession if any, of the deceased
first appellant was held being of a trespasser. Therefore, the finding of
the learned appellate Judge was not in tandem with that of the trial Court.
The character and nature of alleged possession claimed by the appellants
of the suit lands stood distinctly different than what was held by the
learned trial Judge. Therefore, it cannot be stated that there are
concurrent and consistent findings in favour of the appellants recorded by
both the Courts below upholding the possession of the suit lands in favour
of the appellants.
97. Sri M.Ravindranath Reddy, learned counsel further contended that
the suit as laid for declaration, in the absence of proof of possession of the
suit lands is not maintainable and Section 34 of Specific Relief Act itself is
a bar to entertain the suit.
98. Strenuous contentions are advanced which apparently are basing on
serious research into the subject by Sri M.Ravindranath Reddy, learned
counsel for the appellants. Further contentions are advanced that
maintainability of the suit is a legal issue and hence the appellants are
entitled to raise it for the first time in the second appeal, since it is a
question purely based on law.
99. Sri S.S.Bhatt, learned counsel for the respondents seriously opposed
to permit to raise this plea for the first time in the second appeal,
particularly, having regard to the scope of adjudication at this stage, in
terms of Section 100 CPC.
100. In effect, the question raised by Sri M.Ravindranath Reddy, learned
counsel for the appellants is in respect of frame of the suit in terms of
Order II CPC. Rule 1 of Order II CPC states that every suit shall as far as
practicable be framed so as to afford ground for final decision upon
subjects in dispute and to prevent further litigation concerning them.
Frame of suit is thus explained in this Rule 1 of Order II CPC. Rule 2(1) of
Order II CPC requires every suit to include whole of the claim, if the
plaintiff is entitled to make in respect of the cause of action.
101. As seen from the plaint, the respondents have set out their case
against the deceased appellant, stating that there is a cloud cast on their
right, title and interest to the suit lands. They requested the declaratory
relief and also specifically alleging attempts of the deceased first appellant
to trespass into these lands, they requested consequential permanent
injunction restraining him from doing so. Therefore, the plea or case set
up by them is in accordance with Order II CPC in framing the suit and in
that process, they invoked application of Section 34 of Specific Relief Act.
In such circumstances, the deceased first appellant as the defendant
should specifically raise all such pleas as are open to him in his defence,
specifically pleading any new facts and raising specific denials of the
allegations or facts in the plaint in terms of Order VIII Rules 2 and 5 CPC.
102. The deceased first appellant in his written statement came up with
his specific case in defence pleading such facts and the denial of the
allegations in the plaint. The written statement did not set out questioning
frame of the suit and the nature of the relief sought by the respondents
against him. Nor is there a specific plea in the written statement that the
suit claim is not in accordance with and barred by Section 34 of the
Specific Relief Act.
103. Therefore, it is a new plea, which is sought to be raised in this
second appeal on behalf of the appellants. Any plea which is not based on
pleadings cannot be raised for the first time in the second appeal. A case,
which was not set up either in the trial Court or in the first appellate Court
cannot be permitted to be raised for the first time in the second appeal.
However, Sri M.Ravindranath Reddy, learned counsel for the appellants
relied on a number of rulings including of Queens Bench judgment in
CONNECTICUT FIRE INSURANCE COMPANY v. KAVANAGH19. The
statement of law therein in page-6 is as under:
"............When a question of law is raised for the first time in
a Court of last resort, upon the construction of a document, or
upon facts either admitted or proved beyond controversy, it is not
only competent but expedient, in the interests of justice, to
entertain the plea. The expediency of adopting that course may be
doubted, when the plea cannot be disposed of without deciding
nice questions of fact, in considering which the Court of ultimate
review is placed in a much less advantageous position than the
Courts below. But their Lordships have no hesitation in holding that
the course ought not, in any case, to be followed, unless the Court
is satisfied that the evidence upon which they are asked to decide
establishes beyond doubt that the facts, if fully investigated, would
have supported the new plea............................"
104. Further reliance is placed in the same context in RAGHUBANS
NARAIN SINGH v. UTTAR PRADESH GOVERNMENT THROUGH COLLECTOR
1982 AC 473
OF BIJNOR20, where the above ruling of the Privy Council was considered in
approval.
105. YESWANT DEORAO DESHMUKH v. WALCHAND RAMCHAND
KOTHARI21 is also relied on for the appellants, where the same ruling of
the Privy Council was considered in para-16. KISHORI LAL v.BEG RAJ AND
OTHERS22 is relied on for the appellants referring to application of Section
42 of the Specific Relief Act, 1877 (Section 34 of Specific Relief Act of
1963) to the effect that an objection relating to maintainability of the suit
could be raised at any stage even for the first time in the second appeal.
KASIPATHI v. E.SUBBA RAO PAWER23 is also relied on for the appellants
for the same purpose. However, in this ruling, a plea sought to be raised
for the first time in the second appeal in respect of nature of improper
registration of a sale deed was not permitted.
106. BANARSI DAS AND ANOTHER v. KANSHI RAM AND OTHERS24 is also
relied on by the learned counsel for the appellants in the same context,
where the question of limitation being of mixed fact and law, was held
being impermissible to be raised for the first time in the second appeal
before the High Court.
107. Similarly, JAGDISH CHANDER CHATTERJEE AND OTHERS v. SHRI
SRI KISHAN AND ANOTHER25 is also relied on by the learned counsel for the
appellants, where raising a new point permitting both parties to address
thereon by the High Court in the second appeal relating to contractual
tenancy and its due termination by means of a notice was upheld.
AIR 1967 SC 465
AIR 1951 SC 16
AIR 1952 PUNJ 387
AIR 1961 MYS 62
AIR 1963 SC 1165
(1972) 2 SCC 461
108. BALKRISHAN AND ANOTHER v. MOHSIN BHAI (DECEASED)
THROUGH LRs AND OTHERS26 is also relied on by the learned counsel for
the appellants, where one of the learned single Judges of Madhya Pradesh
High Court, permitted a pure question of law patent on record based on
admitted facts to raise, for the first time in second appeal.
109. In respect of bar in terms of Section 34 of Specific Relief Act and its
application RAM SARAN AND ANOTHER v. SMT.GANGA DEVI27 is relied on.
In para-4 of this ruling, it is stated thus, considering the facts:
"We are in agreement with the High Court that the suit is hit
by Section 42 of the Specific Relief Act. As found by the fact-
finding courts, Ganga Devi is in possession of some of the suit
properties. The plaintiffs have not sought possession of those
properties. They merely claimed a declaration that they are the
owners of the suit properties. Hence the suit is not maintainable."
110. This ruling was followed in GIAN KAUR v. RAGHUBIR SINGH28. In
given fact situation basing on the relief sought in the plaint, in paras 10 to
13 of this ruling, it is stated:
"10. It appears, prima facie, that apart from making a prayer
for declaration there is also a consequential prayer for a decree for
permanent injunction restraining the defendant from alienating the
suit property or interfering in peaceful possession of plaintiff therein.
There is an alternative prayer for decree for possession also.
11. From the prayers made in the plaint, it is clear that the
consequential relief of permanent injunction was prayed and before
the Trial Court the fourth issue relating to the maintainability of the
suit in the present form was raised but the same was not pressed by
the defendant nor was any such question raised before the First
Appellate Court.
12. In that view of the matter, the finding of the High Court
that the suit is merely for declaration and is not maintainable
under Section 34 of the Specific Relief Act cannot be sustained. The
1999(2) MPLJ 31
(1973) 2 SCC 60
(2011) 4 SCC 567
High Court's reliance on a decision of this Court in Ram Saran (supra) is
also not proper. From the decision in Ram Saran (supra), it is clear
that in that suit the plaintiff merely claimed a declaration that they
are the owners of the property and they have not sought for possession
of the said properties.
13. For the reasons aforesaid, this Court holds that the suit is
not hit by Section 34 of the Specific Relief Act. The decision in Ram
Saran (supra) was rendered on totally different facts and cannot be
applied to the present case. We are, therefore, constrained to
observe that the High Court reversed the concurrent finding of the
Courts below on an erroneous appreciation of the admitted facts of the
case and also the legal question relating to Section 34 of the Specific
Relief Act."
111. Reliance is also placed by learned counsel for the appellants in this
respect on EXECUTIVE OFFICER, ARULMIGU CHOKKANATHA SWAMY KOIL
TRUST, VIRUDHUNAGAR v. CHANDRAN AND OTHERS29. Having regard to
the fact situation, in para 35 of this ruling, it is stated thus:
"The plaintiff, who was not in possession, had in the suit
claimed only declaratory relief along with mandatory injunction.
Plaintiff being out of possession, the relief of recovery of possession
was a further relief which ought to have been claimed by the plaintiff.
The suit filed by the plaintiff for a mere declaration without relief of
recovery of possession was clearly not maintainable and the trial court
has rightly dismissed the suit. The High Court neither adverted to the
above finding of the trial court nor has set aside the above reasoning
given by the trial court for holding the suit as not
maintainable."............
112. C.MOHAMMED YUNUS v. SYED UNISSA AND OTHERS30 is also relied on
for the appellants. Holding that a suit for declaration with consequential
relief for injunction is not a suit for declaration simplicitor and that it is a suit
for declaration and further relief, it is stated that further relief claimed in a
particular case consequential upon a declaration is always dependant on facts
and circumstances of each case.
(2017) 3 SCC 702
AIR 1961 SC 808
113. In SURANENI LAKSHMI v. B.VENKATA DURGA RAO AND ANOTHER31, a
Division Bench of this Court when at Hyderabad, considered the effect of
Sections 34 and 41 of Specific Relief Act. It is observed in this ruling that the
declaratory relief sought under Section 34 is not exhaustive and there will be
several aspects to be considered against several parties to the suit, when
declaration is sought.
114. MUNISAMY v. MANIMUTHU ACHARI32 is also relied on for the
appellants. However in this ruling, on facts considering that consequential
relief was sought along with declaratory relief in accordance with Section 34
of Specific Relief Act, the contention that a mere declaration of title under
Section 34 of this Act is barred, was rejected.
115. A suit simplicitor for declaration in terms of Proviso to Section 34 of
Specific Relief Act when in given facts and circumstances, without
consequential relief though required, is not maintainable. What the court
does in terms of Section 34 is declaring a pre-existing legal character or right
to a property in given facts and circumstances against the one denying or
interested to deny title to such character or right. It is purely a discretionary
relief. No new right or legal character is created in terms of Section 34 of
Specific Relief Act. Proviso to Section 34 of Specific Relief Act directs that the
Court shall not make such declaration when further relief is required to be
sought and when the plaintiff omits to do so.
116. The suit was laid properly in perfect frame, meeting the requirements
of Section 34 of Specific Relief Act. Therefore, the bar under Section 34 of
Specific Relief Act did not exist. Moreover, this application of Section 34 of
Specific Relief Act, is a mixed question of fact and law. It is not a pure
question of law.
2011(2) ALT 501 (DB)
1998(2) MADRAS L.W.274
117. In SANTOSH HAZARI, the effect of new point raised for the first time
before the High Court, being a substantial question of law or not, is considered
in para 15, referred to above.
118. SANTOSH HAZARI is referred to in BOODIREDDY CHANDRAIAH AND
ANOTHER v. ARIGELA LAKSHMI AND ANOTHER33, summarizing the principles
relating to Section 100 CPC. In para-12 further observations in para-13 are
also relevant:
"12. The principles relating to Section 100 CPC, relevant for
this case, may be summerised thus:-
(i) An inference of fact from the recitals or contents of a document
is a question of fact. But the legal effect of the terms of a
document is a question of law. Construction of a document
involving the application of any principle of law, is also a question
of law. Therefore, when there is misconstruction of a document or
wrong application of a principle of law in construing a document, it
gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A
question of law having a material bearing on the decision of the
case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it is not
covered by any specific provisions of law or settled legal principle
emerging from binding precedents, and, involves a debatable legal
issue. A substantial question of law will also arise in a contrary
situation, where the legal position is clear, either on account of
express provisions of law or binding precedents, but the court
below has decided the matter, either ignoring or acting contrary to
such legal principle. In the second type of cases, the substantial
question of law arises not because the law is still debatable, but
because the decision rendered on a material question, violates the
settled position of law.
13. The general rule is that High Court will not interfere with
concurrent findings of the Courts below. But it is not an absolute
rule. Some of the well recognized exceptions are where (i) the
2008(1) ALD 24(SC)
courts below have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong inferences from proved
facts by applying the law erroneously; or (iii) the courts have
wrongly cast the burden of proof. When we refer to 'decision based
on no evidence', it not only refers to cases where there is a total
dearth of evidence, but also refers to any case, where the
evidence, taken as a whole, is not reasonably capable of supporting
the finding.
119. In MALLANAGUODA AND OTHERS v. NINGANAGOUDA AND OTHERS34
the jurisdiction to interfere with the judgment of the first appellate Court
under Section 100 CPC by the High Court is stated in para-10 as under:
"10. The First Appellate Court is the final Court on facts. It has
been repeatedly held by this Court that the judgment of the First
Appellate Court should not be interfered with by the High Court in
exercise of its jurisdiction under Section 100 CPC, unless there is a
substantial question of law."
120. Learned counsel for the appellants also relied on B.PUSHPAMMA v.
JOINT COLLECTOR, RANGA REDDY35, and KASU RAYAPA REDDY v. STATE OF
A.P.36. However, these two rulings relate to effect of provisions of A.P. Rights
in Land and Pattadar Passbook Act, 1971 and they are not direct on point.
121. Parameters relating to Section 100 CPC laid down in the above rulings
should be borne in mind. In the light of the material on record and upon
earnest consideration now, it is manifest that the substantial questions of law
including new question raised in the course of hearing in the second appeal on
behalf of the appellants did not arise or remain for consideration. This Court
is satisfied that this case did not involve any substantial questions of law for
determination. Therefore, no interference with the decree and judgment of
the learned appellate Judge is required. Consequently, the second appeal has
to be dismissed.
2021 SCC On line SC 307
2005(1) ALD 260
LAWS(APH) 2021-7-3
122. In the result, the second appeal is dismissed confirming the decree
and judgment of the lower appellate Court. Parties shall bear their own
costs in this second appeal. Interim orders if any, stand vacated. All
pending petitions, stand closed.
___________________
M. VENKATA RAMANA, J
Dt: 04.10.2021
Note:
L.R.Copy to be marked.
B/o.Rns
HON'BLE SRI JUSTICE M. VENKATA RAMANA
SECOND APPEAL No.440 OF 2000
Date:04.10.2021
Rns
