Andhra Pradesh High Court - Amravati

B. Venkatesulu vs G. Ashok Raju on 27 September, 2022

       HON'BLE SRI JUSTICE SUBBA REDDY SATTI

             SECOND APPEAL No.202 of 2019

JUDGMENT:-

      Plaintiffs in the suit filed the above second appeal

aggrieved by the judgment and decree dated 29.01.2019 in

A.S.No.108 of 2018 on the file of X Additional District Judge,

Tirupati reversing the judgment and decree dated 28.03.2018

in O.S.No.31 of 2007 on the file of Senior Civil Judge, Puttur.


2.    For the sake of convenience and brevity, parties to this

judgment are referred to as per their array in the plaint.


3.    Plaintiffs filed suit O.S.No.31 of 2007 against the

defendants seeking declaration of title and consequential

permanent injunction.


4.    In the plaint, it was contended, interalia, that plaint

schedule properties are ancestral properties of plaintiffs; that

1st plaintiff is mother of 2nd plaintiff; plaintiffs 3 and 4 are

sons of 2nd plaintiff; 2nd plaintiff has got two brothers by

name B.Eswaraiah Chetty and B.Krishnama Chetty; 5th

plaintiff is wife of B.Krishnama Chetty; 6th plaintiff is

daughter of 5th plaintiff; that Eswaraiah Chetty died after
                                  2


marriage and 1st defendant is his wife; that after death of

Eswaraiah Chetty, 1st defendant married again; that 1st

plaintiff and his sons mortgaged the plaint schedule property

and other properties on 11.04.1969 and later discharged the

debt; that again 1st plaintiff mortgaged the plaint schedule

property to Mangalam Cooperative Society in the year 1976;

that the revenue authorities issued 10(1) adangal in the name

of 1st plaintiff; that the plaintiffs are in possession of the

plaint    schedule   property;   that   1st   defendant,    wife   of

Eswaraiah Chetty, left the village and she married one

K.M.Chengalarayulu and she has been residing with her

husband; that 1st defendant has no right, title or possession

over the plaint schedule property; that 1st defendant is trying

to create fraudulent documents in favour of 2nd defendant;

that on 21.06.2007 defendants tried to interfere with the

schedule     property   and   hence,    the   suit   was   filed   for

declaration and injunction.


5.       1st Defendant filed written statement and contended

interalia that plaint schedule property is the ancestral

property of plaintiff; 2nd defendant is native of Gandala

Kandriga village and he created sale deed dated 26.10.2006
                                3


and it is a fabricated document and it does not bind 1st

defendant; that she is an illiterate and taking advantage of it,

2nd defendant created the document. Thus, 1st defendant in a

way supported the case of plaintiff.


6.    2nd Defendant filed written statement and contended

interalia that the schedule property belonged to 1st defendant

B.Syamalamma and she has been             in   possession   and

enjoyment of the same; that the revenue authorities also

issued pattadar pass book and title deed in her name vide

PattaNo.96; that she sold the property under a registered sale

deed dated 26.10.2006 and delivered possession to 2nd

defendant and since then he has been in possession and

enjoyment of the property; that 2nd defendant filed suit

O.S.No.18 of 2007 on the file of Junior Civil Judge, Nagari for

permanent injunction against the plaintiffs and the same is

pending; that the revenue authorities updated the records

and mutated the name of 2nd defendant; that there was a

family arrangement on 05.02.1976 between 1st defendant, 2nd

plaintiff and one Krishnam Chetty, husband of 5th plaintiff

and the same was reduced into writing as Panchayat

Kharanama, in that the schedule property was allotted to the
                                  4


share of 1st defendant and since then 1st defendant has been

in possession and enjoyment of schedule property and later

she sold the same to 2nd defendant and eventually the Court

to dismiss the suit.


7.      Basing on the above pleadings, the trial Court framed

the following issues:

     (1) Whether the plaintiffs are entitled for declaration as
        prayed for?
     (2) Whether the plaintiffs are entitled for permanent
        injunction as prayed for?
     (3) Whether the suit is not maintainable either in law or
        on facts as pleaded by defendants 1 and 2?
     (4) Whether the sale deed dated 26.10.2006 is fabricated
        as pleaded by 1st defendant?
     (5) Whether the sale deed dated 26.10.2006 is not
        binding on the 1st defendant as pleaded by 1st
        defendant?
     (6) Whether there is no cause of action as pleaded by 2nd
        defendant?
     (7) Whether the suit is barred by limitation as pleaded by
        2nd defendant?
     (8) Whether the suit is hit by the provisions of Order II
        Rule 2 of CPC as pleaded by 2nd defendant?
     (9) Whether the suit is hit by the provisions of Section 34
        of Specific Relief Act as pleaded by 2nd defendant?
     (10)     To what relief?
                                   5


8.    During the trial, 4th plaintiff examined himself as P.W.1

and examined P.W.2.        Exs.A-1 to A-17 were marked.          On

behalf of defendants, 1st defendant examined as D.W.1, 2nd

defendant examined as D.W.2 and got examined D.Ws.3 and

4. Exs.B-1 to B-25 were marked.


9.    Pending the suit, 2nd plaintiff died and since his sons

were already on record, his wife was brought on record as 7th

plaintiff. Later, 1st plaintiff also died.


10.   Trial Court by judgment and decree dated 28.03.2018

decreed the suit with costs. Aggrieved by the said judgment

and decree, 2nd defendant filed appeal A.S.No.108 of 2018 on

the file of X Additional District Judge, Tirupati. Lower

appellate court being the final fact finding Court, on

consideration of both oral and documentary evidence, allowed

the appeal vide judgment and decree dated 29.01.2019.

Aggrieved by the same, the above second appeal is filed.


11.   Heard Mrs.K.Tulasi Durgamba, learned counsel for

appellant   and    Mrs.S.Pranathi,     learned   counsel   for   1st

respondent.

12. Learned counsel for appellant would submit that

though 2nd defendant pleaded purchase of property from 1st

defendant, 1st defendant in fact denied the execution of Ex.B-

5 sale deed. She would submit that Ex.B-19 unregistered

Kharanama is not valid document. She would also submit

that the schedule property being ancestral property, 1st

defendant cannot sell away the property in favour of 2nd

defendant.

13. Learned counsel for 1st respondent supported the

judgment of the lower appellate Court.

14. Basing on the pleadings and contentions, the following

substantial questions of law arise for consideration:

(1) Whether in a suit for declaration and injunction, the plaintiffs are allowed to rely upon the weakness in the case of defendants?

(2) Whether Ex.B-19 unregistered Kharanama can be looked into for the purpose of severance of status?

15. Undisputed facts are that B.Ramalingaiah Chetty and

B.Venkata Subbamma are husband and wife and they were

blessed with three sons, by name, Subrahmanya Chetty,

Eswaraiah Chetty and Krishnama Chetty. Plaintiffs 2 and 3

are the sons and 7th plaintiff is the wife of Subrahmanya

Chetty. 5th Plaintiff is the wife and 6th Plaintiff is the

daughter of Krishnama Chetty. 1st Defendant Syamalamma

married Eswaraiah Chetty and after his death, she married

K.M.Chengalrayulu.

16. It is trite law that, in a suit for declaration of title,

burden always lies on the plaintiff to make out and establish

a clear case for granting such a declaration and the

weakness, if any, of the case set up by the defendants would

not be a ground to grant relief to the plaintiff, as observed by

the Hon'ble Apex Court in Union of India (UOI) and Ors. Vs.

Vasavi Co-op. Housing Society Ltd. and Ors.1.

17. Pleaded case of the plaintiffs is that suit schedule

properties are ancestral properties. 1st plaintiff and her sons

mortgaged the properties in the year 1969 and later

AIR 2014 SC 937

discharged the mortgage and again they mortgaged the

schedule property to Mangalam Cooperative Society in the

year 1976. 1st plaintiff's name was mutated in the revenue

records.

18. The evidence of P.W.1, 4th plaintiff in the suit, needs to

be considered in this connection. Some of the excerpts are

herewith extracted:

"By the time of my birth, Eswaraiah Chetty was not alive.

I have not filed any record to show that I am residing in the suit schedule property.

It is true in the revenue records, plaint schedule property stood in the name of Eswaraiah Chetty and after his death, 1st defendant's name was mutated.

We have not filed any petition or report before the Tahsildar or R.D.O. or District Collector contending that the plaint schedule property is our joint family property till filing of the suit.

I do not know whether the Tahsildar, Vijayapuram had issued pass book and title deed in favour of 1st defendant in respect of plaint schedule property.

I came to know that plaint schedule property is part and parcel of the property shown in Ex.A-1.

Ex.A-1 was obtained after filing the suit.

In Ex.A-2 the name of Eswaraiah Chetty is shown as owner during fasli 1389.

Ex.A-11 was issued even prior to issuance of Ex.A-5 notice. It is true in Ex.A-11, it is averred that 2nd defendant obtained a fraud document from 1st defendant."

19. A perusal of the above evidence of P.W.1 discloses that

the plaint schedule property stood in the name of Eswaraiah

Chetty, husband of 1st defendant, and after death of

Eswaraiah Chetty, the name of 1st defendant was mutated in

revenue records and she has been enjoying the property.

According to the plaintiff, suit schedule properties were

mortgaged in the year 1969 and later they were discharged.

However, P.W.1 deposed that extent Ac.0.70 in S.No.47/50

and Ac.0.95 cents in S.No.43/1, are not shown in Ex.A-4

registered mortgage deed. Apart from that, admission made

by P.W.1 in his cross-examination that the property was

mutated in the name of Eswaraiah Chetty in revenue records

also supports the plea of 2nd defendant regarding Ex.B-19

unregistered Panchayat Khararnama.

20. As stated supra, the suit is one filed for declaration, the

plaintiffs must succeed on the strength of their own case and

they cannot depend upon the weakness of defendants. The

evidence of D.W.1 needs to be scrutinised carefully. D.W.1,

1st defendant in the suit, having sold the property to 2nd

defendant, in his cross examination, denied thumb

impressions belonged to her on vakalat, written statement

and chief affidavit. Thus, after alienating the property in

favour of 2nd defendant, 1st defendant and plaintiffs colluded,

resulted in plaintiffs filing the suit for declaration, as if the

plaint schedule properties are ancestral properties and 1st

defendant is nothing to do with the schedule properties. The

evidence of D.W.1 is extracted hereunder:

"The thumb impressions shown to me are not mine in my vakalat, written statement, chief affidavit.

My advocate informed to me about this adjournment.

I have not telephone or cell phone. My advocate telephoned to me and informed the adjournment.

It is true that my husband purchased the property in S.Nos.42/8 and 42/14.

It is not true to say that in the year 1985 I alone obtained loan mortgaging the plaint schedule property to Mangalam PACS in document No.1624 of 1985 (Ex.B-7)."

21. A perusal of evidence of P.W.1 and D.W.1 proved that

there was family arrangement, wherein the husband of 1st

defendant Eswaraiah Chetty got the properties and enjoyed

the properties during his lifetime and after his death, plaint

schedule properties were mutated in the name of 1st

defendant. D.W.1, after exercising right over the property

later sold the property under Ex.B-5 to 2nd defendant.

22. Trial Court having framed nine issues, did not consider

the basic concept of declaration suit and the burden of proof

in a proper perspective. All the nine issues were tried

together. P.W.1 also admitted that, Ex.A-1, they got it after

institution of suit. Even in the plaint, no averment was made

about the sale deed executed by 1st defendant in favour of 2nd

defendant prior to filing of suit. In Ex.A-11 it was mentioned

that 1st defendant executed nominal sale deed in favour of 2nd

defendant. All these instances make the things more than

discernable that the plaintiffs failed to prove their title over

the suit schedule property.

23. Regarding Ex.A-19 unregistered Panchayat

Khararnama, stamp duty and penalty was paid and it was

marked for collateral purpose. In Chinnappareddigari

Pedda Muthylareddy Vs. Chinnappareddigari

Venkatareddy and Ors.2, the Full Bench of the composite

High Court of Andhra Pradesh held thus:

34. In our view where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however be looked into for the purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family who from thence onwards, hold it as co-tenants. It is now a well-established principle of Hindu law, as held by their Lordships of the Privy Council and the Supreme Court that for a severance in status, all that is required is a communication to the other members of the joint family of an unequivocal intention to separate. This communication of intention could be done orally or by a notice in writing to the other coparceners, or by other means depending upon the facts and circumstances of the case. If the intention is expressed by reducing the same to writing such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of title of any of the properties which each of the erstwhile coparceners hold as a result of that partition.

AIR 1969 AP 242

24. In J.Jagannatha Reddy vs. J.Ravinder Reddy and

Ors.3, the composite High Court of Andhra Pradesh held

thus:

"35. From the above it is clear that the factum of partition can be proved by other independent evidence, even though the deed of partition is not marked or admitted in evidence for what of registration and stamp duty."

25. In Digambar Adhar Patil Vs. Devram Girdhar Patil

(Died) and Ors.4, the Hon'ble Apex Court held thus:

"Under the Hindu Law, it is not necessary that the partition should be affected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it."

26. Therefore, the factum of partition pleaded by 2nd

defendant was proved in view of updating revenue records in

the name of 1st defendant. Unless, there was a partition

entering the name of late Eswaraiah Chetty's name and later

name of D1 in revenue records does not arise. Even P.W.1

2003 (1) CCC 189 (A.P.) = MANU/AP/0998/2002

AIR1995 SC 1728

admitted that in the revenue records, the name of Eswaraiah

Chetty was mutated and after his death, the name of 1st

defendant was updated in the revenue records. Thus, the

plaintiffs failed to prove that plaint schedule properties are

ancestral properties and they are entitled for declaration of

title and consequential injunction.

27. Under Ex.B-5, 1st defendant sold the property to 2nd

defendant and delivered possession. Since the plaintiffs

failed to prove possession over the schedule property, they

are not entitled for the relief of declaration and injunction.

28. Dealing with the scope of Section 100 of CPC, the

Hon'ble Apex Court in Kulwant Kaur and Ors vs. Gurdial

Singh Mann (Dead) By Lrs. and Ors.5 held as follows:

"Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to

5 (2001) 4 SCC 262

dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity."

29. The Hon'ble Apex Court in Hero Vinoth Vs.

Seshammal6, held thus:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. 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, insofar as

AIR 2009 SC 1481

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. (See Santosh Hazari v.

Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(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."

30. A conspectus of judgements referred to supra on the

scope of interference by the High Court in second appeal, this

Court while exercising jurisdiction under Section 100 of CPC

must confine to the substantial question of law involved in

the appeal. This Court cannot re-appreciate the evidence and

interfere with the concurrent findings of the Court below

where the Courts below have exercised the discretion

judicially. Further the existence of substantial question of law

is the sine qua non for the exercise of jurisdiction. This Court

cannot substantiate its own opinion unless the findings of the

Courts are manifestly perverse and contrary to the evidence

on record. If the findings are based on inadmissible evidence