Andhra Pradesh High Court - Amravati

Gattu Taraka Rama Rao vs Samudram Radha Krishna Murthy on 30 October, 2023

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                 SECOND APPEAL No.338 of 2008


JUDGMENT:

This Second Appeal is filed aggrieved against the Judgment

and decree in A.S.No.10 of 2006 on the file of Senior Civil Judge,

Chirala, dated 11.12.2006,allowing the Judgment and decree in

O.S.No.69 of 1999 on the file of Principal Junior Civil Judge, Chirala,

dated 23.01.2006.

2. The appellant herein is the 2nd defendant, the 1st respondent

herein is the 1st defendant and the respondents 2 to 5 herein are the

plaintiffs in the Original Suit No.69 of 1999 on the file of Principal

Junior Civil Judge, Chirala.

3. The plaintiffs initiated action in O.S.No.69 of 1999 on the file of

Principal Junior Civil Judge, Chirala, with a prayer to declare that the

plaintiffs have got title over the plaint schedule site and for

consequential permanent injunction restraining the defendants and

their men from interfering with the plaintiffs' possession and

enjoyment of the suit schedule site, alternatively for the relief of 2 VGKRJ SA 338 of 2008

declaration of title over the suit schedule site and for consequential

possession of the same by evicting the defendants from the plaint

schedule site.

4. The learned Principal Junior Civil Judge, Chirala, dismissed

the suit of the plaintiffs. Felt aggrieved of the same, the

unsuccessful plaintiffs in the above said suit filed the aforesaid

appeal before the first appellate Court. The learned Senior Civil

Judge, Chirala, set aside the judgment of the trial Court in OS.No.69

of 1999, dated 23.01.2006, and allowed the appeal. Aggrieved

thereby, the unsuccessful 2nd respondent/ 2nd defendant therein

approached this Court by way of second appeal.

5. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the original suit.

6. The case of the plaintiffs, in brief, as set out in the plaint

averments in OS.No.69 of 1999,is as follows:

Smt. Atchula Rama Lakshmi was the step-mother of the

plaintiffs. Originally, the plaint schedule site belonged to late

Atchula Rama Lakshmi. She died intestate on 28.02.1996 leaving 3 VGKRJ SA 338 of 2008

behind the plaintiffs as her legal heirs. Atchula Rama Lakshmi

purchased the plaint schedule site under registered sale deed dated

17.04.1986 from the ILTD Company Staff Co-operative Industrial

Construction Society Ltd. The schedule site is lying vacant. The 1 st

plaintiff is residing at Ramagundam and working as teacher in

Railway school. The plaintiffs 2 to 4 are residing in Chirala in their

marital homes. Late Atchula Rama Lakshmi and her husband

Aryakantham were residing in a rental house belonging to the

cousin of Aryakantham at Paparaju Thota, Chirala. Whenever the

1stplaintiff and his family visits Chirala, they used to stay with

Aryakantham and late Atchula Rama Lakshmi and the plaintiffs used

to look after the welfare of their father and step mother. After the

death of Aryakantham, plaintiffs' step-mother Atchula Rama

Lakshmi fell ill during the last week of February, 1996. The

2ndplaintiff and 4thplaintiff's husband Palepu Subbaramayya took her

to the hospital at Chirala and on the advice of doctors they took her

to Guntur and from there they took her to Madras for treatment and

as late Atchula Rama Lakshmi is suffering with acute blood cancer,

in advance stage, she was brought to Chirala from Chennai on the

night of 26.02.1996.

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                                                          SA 338 of 2008

ii. The 1stdefendant is the brother of Atchula Rama Lakshmi. He

requested the plaintiffs 2 to 4 that he will take Atchula Rama

Lakshmi to his house from the rented house and accordingly he

shifted her to his house on 27.02.1996. Late Atchula Rama Lakshmi

died on 28.02.1996 at 11.00 a.m. At that time the 2ndplaintiff was

present at the house of 1st defendant. 1st defendant and his son

called the 2nd plaintiff outside the house and had discussion about

the death intimation to the relatives and funerals. After the talks she

went inside the house and found that there was ink on the left hand

of the dead body of Atchula Rama Lakshmi and the 2 ndplaintiff learnt

that the 1stdefendant and his men might have obtained the thumb

marks of Atchula Rama Lakshmi on some white papers and

stamped papers. The 1stdefendant and his son subsequently

committed theft of promissory notes, gold, silver ornaments and

other valuable movables belonged to the deceased Atchula Rama

Lakshmi. The 1stplaintiff gave a police complaint and filed criminal

case, which was pending by the date of filing of the suit on the file of

Additional Munsif Magistrate, Chirala. Having learnt that the 1st

defendant was trying to alienate the plaint schedule site, plaintiffs

got issued a legal notice to the defendants on 09.12.1998 and the 5 VGKRJ SA 338 of 2008

1stdefendant issued reply notice with false allegations that late

Atchula Rama Lakshmi executed un-registered will deed dated

27.02.1996 bequeathing the properties to the 1stdefendant and that

he in-turn sold the same to others. While so, the 2nddefendant filed

the caveat petition with false allegations as if he purchased the

plaint schedule property from the 1stdefendant. The plaintiffs got

issued reply notice to the 1stdefendant's advocate and also sent

Rs.10/- to the 1st defendant's advocate for the purpose of sending

photo stat copy of the will. The 1stdefendant did not send Photostat

copy of the alleged will inspite of several requests of the plaintiffs.

The plaintiffs assert that late Atchula Rama Lakshmi did not execute

any will in her life time and the alleged will referred in the reply

notice of 1st defendant and 2nd defendant's caveat petition are

neither true nor valid. Hence the plaintiffs filed a suit for declaration

of their title and consequential permanent injunction to restrain the

defendants from interfering the plaintiffs' possession and enjoyment

of the plaint schedule site. As the 2nddefendant falsely stated that

the possession was also belonged to him by the 1 stdefendant under

registered sale deed, the plaintiffs alternatively also claimed the 6 VGKRJ SA 338 of 2008

relief of declaration along with the consequential possession of the

plaint schedule site.

7. The 1st defendant filed written statement, the brief averments

are as follows:

The first defendant's sister Atchula Rama Lakshmi is the

absolute owner of the plaint schedule property having purchased the

same under registered sale deed. She has no issues, and after the

death of the husband of Atchula Rama Lakshmi, the 1 st defendant

being the brother of Atchula Rama Lakshmi looked after her welfare

till her death and Atchula Rama Lakshmi was residing with the

1stdefendant, after the death of her husband, till her death. The

plaintiffs never looked after Atchula Rama Lakshmi and the 1st

defendant provided the necessary medical treatment to Atchula

Rama Lakshmi for her illness. Late Atchula Rama Lakshmi executed

her last will on 27.02.1996 infavour of the 1stdefendant in a sound

and disposing state of mind. On 28.02.1996 she passed away at the

house of 1stdefendant. Thus, after the death of Atchula Rama

Lakshmi the will came into force and the 1stdefendant is the absolute

owner of the suit schedule property. He denied the plaint allegations 7 VGKRJ SA 338 of 2008

that he took Atchula Rama Lakshmi from the house of plaintiffs by

representing that he would keep her for certain period. The

1stdefendant sold the suit schedule property to the 2 nddefendant on

21.10.1998 and delivered possession to him. He also asserts that

he issued reply notice with all correct facts and also sent the photo-

stat copy of the will as required by the plaintiffs to their counsel.

Thus, he denied the title of the plaintiffs over the suit schedule

property.

8. The 2nddefendant filed written statement corroborating the

1stdefendant's version about the stay of Atchula Rama Lakshmi with

the 1stdefendant after the death of her husband and asserts that late

Atchula Rama Lakshmi was residing with the 1stdefendant after the

death of her husband. The brief averments of the written statement

filed by 2nd defendant are as follows:

The 1st defendant looked after the affairs of Atchula Rama

Lakshmi and was treating her well, late Atchula Rama Lakshmi had

no intention to give the property to the plaintiffs at any time and she

executed her last will dated 27.02.1996 in a sound and disposing

state of mind bequeathing all movable and immovable properties to 8 VGKRJ SA 338 of 2008

1st defendant and after the death of Atchula Rama Lakshmi the will

came into force. The 1stdefendant became the absolute owner of the

schedule property and other movables of Atchula Rama Lakshmi.

The 2nddefendant purchased the plaint schedule property under

Registered Sale deed dated 21.10.1998 for a valuable consideration

of Rs.42,200/- and took the possession from the 1st defendant. Thus,

he also prays for dismissal of the suit.

9. On the basis of above pleadings, the learned Principal Junior

Civil Judge, Chirala settled the following issues and additional

issues for trial:

1. Whether the plaintiffs are entitled for a declaration as sought for?

2. Whether the plaintiffs are entitled for the permanent injunction as prayed for?

3. To what relief?

Additional Issues:

1. Whether the un-registered will dated 27.02.1996 executed by deceased Rama Lakshmi is true and valid?

2. Whether the plaintiffs are entitled for alternative relief of possession of suit schedule property as prayed?

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                                                           SA 338 of 2008

10. During the course of trial in the trial Court, on behalf of

plaintiffs PW1 to PW5 were examined and Ex.A1 to Ex.A11 were

marked. On behalf of 2nd defendant DW1 to DW4 were examined

and Ex.B1 to Ex.B4 were marked.

11. The learned Principal Junior Civil Judge, Chirala, after

conclusion of trial, on hearing the arguments of both sides and on

consideration of oral and documentary evidence on record,

dismissed the suit of the plaintiffs with costs. Felt aggrieved thereby,

the unsuccessful plaintiffs filed the appeal suit in AS.No.10 of 2006

before the Senior Civil Judge's Court, Chirala, wherein, the following

point came up for consideration.

1. Whether the trial Court has properly appreciated facts and surroundings, circumstances with regard to the execution of the will and whether it has committed any error in appreciating the facts while holding that Ex.B1 will it true and valid?

12. The learned Senior Civil Judge, Chirala, i.e., first appellate

Court judge, after hearing the arguments, answered the point, as

above, against the respondents/defendants and in favour of the

appellants/plaintiffs and allowed the appeal of the plaintiffs and 10 VGKRJ SA 338 of 2008

decreed the suit of the plaintiffs as prayed for in the plaint. Felt

aggrieved of the same, the unsuccessful 2nd respondent/

2nddefendant in OS.No.69 of 1999 filed the present second appeal

before the composite High Court of Andhra Pradesh, Hyderabad, by

mentioning the following substantial questions of law that arise for

decision of this Court:

1. Whether in the facts and circumstances of the case, the proof the will Ex.B1 is not in accordance with the provisions of Section 63 of Indian Succession Act, since it was attested by 2 witnesses and one out of them has given evidence in support of the execution and attestation of the said will?

2. Whether in the facts and circumstances of the case, the findings of the appellate Court below are not perverse and self-contradictory and giving undue weight to irrelevant facts and minor discrepancies in evidence and ignoring the vital evidence of the defendant and his witnesses?

3. Whether in the facts and circumstances of the case, the judgment of the appellate Court below is legally sustainable since it is not in accordance with the provisions of under Order 41 Rule 31 of CPC since it has not framed any points for consideration and it has not either discussed or given any finding regarding the possession of the parties?

                                   11                               VGKRJ
                                                           SA 338 of 2008

4. Whether the Courts below misread, misinterpreted and ignored the evidence on record?

13. When the matter was before the composite High Court of

Andhra Pradesh, Hyderabad, the aforesaid substantial questions of

law raised by the appellant are considered by the composite High

Court of Andhra Pradesh on 12.06.2008 and admit the second

appeal. Therefore, the points relating to substantial questions of law

before this Court are:

consideration and it has not either discussed or given any finding regarding the possession of the parties?

4. Whether the Courts below misread, misinterpreted and ignored the evidence on record?

14. Heard Smt Nimmagadda Revathi, learned counsel,

representing Sri Nimmagadda Satyanarayana, learned counsel for

appellant/2nd defendant and Sri Narasimharao Gudiseva, learned

counsel for respondents/plaintiffs.

15. Point No.3:

Smt Nimmagadda Revathi, learned counsel, representing Sri

Nimmagadda Satyanarayana, learned counsel for appellant/2nd

defendant, would contend that the appellant i.e., 2nd defendant

proved the execution of the will in favour of 1st defendant and later

the 1st defendant sold the suit schedule property to the appellant/2nd

defendant, but the first appellate Court allowed the appeal and

decreed the suit simply as prayed for. She would further submit that

the title of the plaint schedule property to the parties is not at all

decided by the first appellate Court and the learned first appellate

judge simply gave finding that Ex.B1 is a fabricated will. She would 13 VGKRJ SA 338 of 2008

further submit that the first appellate Court has not framed any

points for consideration with regard to title of the parties and it has

not discussed or not given any finding regarding the possession of

the parties. With these submissions the learned counsel for

appellant/ 2nd defendant would contend that the judgment of the

learned Senior Civil Judge, Chirala in AS.No.10 of 2006 is to be set

aside by dismissing the suit of the plaintiffs.

16. Sri Narasimharao Gudiseva, learned counsel for

respondents/plaintiffs would contend that Ex.B1 alleged Will is a

fabricated will and he would further contend that the learned first

appellate judge rightly allowed the appeal, as such, the second

appeal is liable to be dismissed.

17. In order to prove the case of the plaintiffs, the first plaintiff is

examined as PW1 and second plaintiff is examined as PW4. The

case of the plaintiffs is that the suit schedule property originally

belongs to Atchula Rama Lakshmi, who is the step mother of the

plaintiffs, died intestate and did not execute any will in favour of any

body and the alleged will dated 27.02.1996 i.e., Ex.B1 is a

fabricated and forged document. The plaintiffs further pleaded that 14 VGKRJ SA 338 of 2008

the deceased Atchula Rama Lakshmi and her husband looked after

the plaintiffs and performed the marriages of the plaintiffs and the

deceased Atchula Rama Lakshmi had love and affection towards

the plaintiffs and the plaintiffs are only the legal heirs of the

deceased Atchula Rama Lakshmi, as such, the plaintiffs are entitled

for relief of declaration of title in view of Section 15(b) of Hindu

Succession Act. The plaintiffs further pleaded that as the deceased

Atchula Rama Lakshmi had no issues and her husband also died

prior to her death and the plaintiffs are the only legal heirs of the

deceased Atchula Rama Lakshmi through her husband, the plaintiffs

are entitled for all the properties of Atchula Rama Lakshmi and they

are the only legal heirs of her properties. The plaintiffs further

pleaded that the 1st defendant fabricated the Ex.B1 will one day prior

to the date of death of the Atchula Rama Lakshmi.

18. The case of the 2nd defendant is that the 1st defendant is none

other than the own brother of the deceased Atchula Rama Lakshmi

and she executed Ex.B1 un-registered will in favour of 1st defendant

and later 1st defendant sold away the said property to the 2nd

defendant under a registered sale deed dated 21.10.1998 i.e., 15 VGKRJ SA 338 of 2008

Ex.B3 and the suit is filed on 11.02.1999 and during the pendency of

the suit, the 2nd defendant also sold away the same property on

20.03.1999 to one Peddireddy Sudhakar Reddy under Ex.B4. The

learned counsel for 2nd defendant pleaded that the 2nd defendant

proved the execution of Ex.B1 will.

19. As seen from the pleadings in the plaint itself, the suit

schedule property site originally belongs to one Atchula Rama

Lakshmi, who is the step mother of the plaintiffs, died intestate and

did not execute any will in favour of anybody and the alleged will

dated 27.02.1996 i.e., Ex.B1 is a forged and fabricated document

and they looked after the deceased Atchula Rama Lakshmi during

her life time and the deceased Atchula Rama Lakshmi and her

husband looked after the plaintiffs and performed the marriages of

the plaintiffs and the deceased Atchula Rama Lakshmi had love and

affection towards the plaintiffs and the plaintiffs alone are enjoying

and succeeding her properties. The plaintiffs further pleaded that the

plaintiffs are entitled for declaration of title in view of Section 15(b) of

Hindu Succession Act, as the deceased Atchula Rama Lakshmi had

no issues and her husband predeceased her and the plaintiffs are 16 VGKRJ SA 338 of 2008

the only legal heirs of the deceased Atchula Rama Lakshmi through

her husband and therefore, the plaintiffs are entitled for all the

properties of Atchula Rama Lakshmi and they are alone are

enjoying and succeeding her properties. The Trial Court, after

conducting trial, dismissed the suit, the unsuccessful plaintiffs in the

said suit filed the appeal before the first appellate Court, the first

appellate Court i.e., Senior Civil Judge's Court, Chirala, simply

framed only one point on the aspect of Ex.B1 will only and gave

finding on the Ex.B1 will without touching the aspect of ownership of

the plaint schedule property and so also possession of the plaint

schedule property. As seen from the material part of the record, the

plaintiffs sought relief of declaration of title and so also

consequential relief of permanent injunction and Court Fee is paid

under Section 24(b) of A.P.C.F. and S.V. Act and also separate

Court Fee was paid for alternative of recovery of possession of

plaint schedule property. But, unfortunately, no point is framed for

determination by the first appellate Court about the title of property

and so also possession. The judgment of trial Court reveals that

prior to filing of the suit, the 1st defendant sold the plaint schedule

property to 2nd defendant under a registered sale deed, during the 17 VGKRJ SA 338 of 2008

pendency of the suit, the 2nd defendant also sold away the plaint

schedule property to one Peddireddy Sudhakar Reddy under a

registered sale deed dated 20.03.1999. As stated supra, the trial

Court dismissed the suit and the first appellate Court simply allowed

the appeal as prayed for. The judgment and decree of first

appellate Court is silent whether preliminary relief of declaration of

title and consequential permanent injunction is granted to the

plaintiffs or alternative relief of recovery of possession is granted to

the plaintiffs.

20. Order 41 Rule 31 of Code of Civil Procedure, 1908 reads as

follows:

The judgment of the appellate Court shall be in writing and

shall state:-

a) the points for determination;

b) the decision thereon;

c) the reasons for the decision; and

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

and shall at the time that it is pronounced be signed and dated by

the judge or by the judges concurring therein.

                                  18                              VGKRJ
                                                         SA 338 of 2008

Unfortunately, the first appellate court has not at all touched

upon the title aspect or possession aspect. For the foregoing

reasons, the judgment of first appellate Court is not legally

sustainable since it is not in accordance with the provisions of under

Order 41 Rule 31 of Civil Procedure Code. Since the first appellate

Court has not framed relevant points for consideration, namely,

declaration of title, consequential permanent injunction as prayed by

the plaintiffs and alternative relief of recovery of possession as

prayed in the plaint. On a conspectus of pleadings, evidence and

law, the decree and judgment of first appellate Court is

unsustainable and liable to be set aside, since the decree of first

appellate Court is in executable decree. Therefore, interest of

justice requires that the matter has to be remanded back to the first

appellate Court i.e., Senior Civil Judge's Court, Chirala, with a

direction to frame the relevant points for determination and to give

an opportunity to both parties to submit hearing on the points to be

framed in accordance with law and dispose of the first appeal on

merits.

                                   19                              VGKRJ
                                                          SA 338 of 2008

21. For this purpose, this Court set up the following points for

determination in first appeal to be decided by the first appellate

Court in addition to the point framed on the will by the first appellate

Court.

1. Whether the appellants/ plaintiffs in the suit are entitled relief of declaration of title and consequential relief of permanent injunction as prayed in the plaint?

2. Whether the appellants/plaintiffs in the suit are entitled the alternative relief of recovery of possession as prayed in the suit?

22. Accordingly, this second appeal is allowed and the judgment

and decree dated 11.12.2006 passed in A.S.No.10 of 2006 on the

file of Senior Civil Judge, Chirala is set aside and the matter is

remanded back to the first appellate Court with a direction to afford

an opportunity to both parties to submit hearing on the two points

set up supra by this Court and after hearing arguments pass the

judgment on merits without being influenced by the findings in its

earlier judgment dated 11.12.2006. The entire exercise shall be

completed within three months from the date of receipt of a copy of

this judgment. Registry is hereby instructed to transmit the entire 20 VGKRJ SA 338 of 2008

record forthwith to the first appellate Court i.e., Senior Civil Judge's

Court, Chirala. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall stand closed.

________________________________ V.GOPALA KRISHNA RAO,J Dated: 30.10.2023.

Note: Issue C.C. by one week b/o.

       sj
                        21                         VGKRJ
                                          SA 338 of 2008






     HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO




           SECOND APPEAL No.338 of 2008


                    30.10.2023

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