Andhra Pradesh High Court - Amravati
Katta Kanaka Durga Katta Durgamma vs Nuthalapati Triveni on 12 February, 2024
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
APPEAL SUIT No.229 OF 2020
Between:
Katta Kanaka Durga @ Katta Durgamma,
W/o. Nageswara Rao, Aged 48 Years,
R/o.D.No.17-5-52, Goods Sahib Road,
Islampet, Tenali, Permanent R/o.D.No.4-7-78/3,
Koritapadu, Chandramouli Nagar,
Behind Pothuraju Swami Temple,
Guntur District. .... Appellant/Defendant
Versus
1. Nuthalapati Triveni,
W/o.Baji Chowdary @ Baji,
Aged 32 Years, D.No.2-31-38/A,
National Club Road, Nandulape,
Tenali, Guntur District.
2. Shaik Hasina, W/o.Zikriya,
Aged 43 Years, R/o.17-9-6/B,
Muttumsettivaripalem, Tenali,
Guntur District.
3. Bhandari Jayanthi Lal,
S/o. Pukharaj Jain, Aged 55 years,
R/o.6-9-44, Jain Temple Street,
Gangannammapet, Tenali,
Guntur District. .... Respondents/Plaintiffs.
DATE OF JUDGMENT PRONOUNCED : 12.02.2024
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wishes to see
The fair copy of the judgment? Yes/No
______________________________
A.V.RAVINDRA BABU, J
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AS No.229/2020
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ APPEAL SUIT No.229 OF 2020
% 12.02.2024
# Between:
Katta Kanaka Durga @ Katta Durgamma,
W/o. Nageswara Rao, Aged 48 Years,
R/o.D.No.17-5-52, Goods Sahib Road,
Islampet, Tenali, Permanent R/o.D.No.4-7-78/3,
Koritapadu, Chandramouli Nagar,
Behind Pothuraju Swami Temple,
Guntur District. .... Appellant/Defendant
Versus
1. Nuthalapati Triveni,
W/o.Baji Chowdary @ Baji,
Aged 32 Years, D.No.2-31-38/A,
National Club Road, Nandulape,
Tenali, Guntur District.
2. Shaik Hasina, W/o.Zikriya,
Aged 43 Years, R/o.17-9-6/B,
Muttumsettivaripalem, Tenali,
Guntur District.
3. Bhandari Jayanthi Lal,
S/o. Pukharaj Jain, Aged 55 years,
R/o.6-9-44, Jain Temple Street,
Gangannammapet, Tenali,
Guntur District. .... Respondents/Plaintiffs.
! Counsel for the Appellant : Sri P. Veera Reddy,
Rep. Smt.Marella Radha.
^ Counsel for the Respondents : Smt. Nimmagadda Revathi
> Head Note:
? Cases referred:
1. MANU/GH/0421/2022
2. (2008) 4 SCC 594
3. (2008) 15 SCC 150
4. (2016) 12 SCC 288
This Court made the following:
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AS No.229/2020
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
APPEAL SUIT No.229 OF 2020
JUDGMENT:
Challenge in this Appeal Suit is to the judgment and decree,
dated 02.07.2020, in Original Suit No.79 of 2016, on the file of the
Court of XI Additional District Judge, Tenali, Guntur District (for
short, 'the learned Additional District Judge') where under the
learned Additional District Judge decreed the suit of the plaintiffs
directing the defendant to vacate the plaint schedule property and
deliver possession thereof within one (1) month from the date of
decree failing which the plaintiffs are at liberty to execute the
decree by due process of law.
2. The parties to the Appeal Suit will hereinafter be referred to
as described before the trial Court for the sake of convenience.
3. The case of the plaintiffs, in brief, according to the
averments of the plaint in O.S. No.79 of 2016 on the file of the
Court of XI Additional District Judge, Tenali is that the suit
schedule property is the self acquired property of one Palaparthi
Satyanarayana, S/o. Peda Rama Swami of Islampet, Tenali. The
said Satyanarayana had a younger brother by name Palaparthi
Venkateswara Rao. The said Venkateswara Rao, during his life
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time, did not look after his wife and children properly, left them to
their fate and used to roam around the roads like an aimless man.
Family members of Venkateswara Rao used to suffer for food,
clothing and money. On humanitarian grounds, Palaparthi
Satyanarayana used to provide food and clothing to the children of
his younger brother, though he has knowledge that the family
members of his younger brother are disloyal people.
(i) Palaparthi Satyanarayana was blessed with a male child
namely Chidambara Koti Venkata Ramana @ Babu (hereinafter
referred to as Ramana @ Babu). Even in the childhood days of
Ramana @ Babu, Palaparthi Satyanarayana fell sick. On account
of the suspicious characters of his younger brother's family
members, he executed a Registered Will in connection with his
property i.e., the schedule property on 15.07.1980 at Sub-
Registrar's Office, Tenali vide document No.115/1980 and later on
06.02.1981 he passed away. The said registered will is the final
testament of Palaparthi Satyanarayana. According to the terms of
the will, suit schedule property will devolve upon his two wives
with limited rights and, after their death, the total property will go
to Ramana @ Babu with limited interest and limited rights. As per
another recital of the will after the lifetime of Ramana @ Babu, the
entire property will go to his children with absolute rights.
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(ii) Ramana @ Babu married one Palaparthi Bikshavathi on
11.11.1999 at Sri Lakshmi Padmavathi Sametha Sri Venkateswara
Swami Vari Devastanams at Vykunthapuram, Tenali of Guntur
District as per the customs of Hindu religion in the presence of
elders and well wishers. Subsequently, they were blessed with two
male children viz., Palaparthi Satheesh and Palaparthi Rama
Krishna on 16.06.2001 and 18.11.2004 respectively.
Unfortunately, on 05.02.2007, elder son of Ramana @ Babu viz.,
Satheesh died. Ramana @ Babu who developed more affection
towards his elder son unable to digest the issue of his death, got
addicted to alcohol and other vices as such his health was
deteriorated, due to which, Ramana @ Babu and his wife
Bikshavathi started to go around the hospital for treatment of
Ramana @ Babu. At this juncture, 4 years ago, defendant entered
into the house portion of the suit property pleading that her
husband's health condition was not good and promising that she
will look after the son of Ramana @ Babu and Bikshavathi i.e.,
Palaparthi Rama Krishna. Bikshavathi and her husband accepted
the proposal of the defendant to allow her to stay in a portion in
the premises on free of cost. By then, Bikshavathi and her
husband were unable to guess the intention of the defendant.
Ramana @ Babu did not recover from his ill-health and passed
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away on 23.03.2012. As per the Will of Palaparthi Satyanarayana,
the suit property ultimately fell to Palaparthi Rama Krishna, who
is the son of Ramana @ Babu and Bikshavathi. After the death of
Ramana @ Babu, Bikshavathi had to go to her maternal home to
stay for few days. Defendant promised to her that she will collect
the rents and will look after the house but she did not keep up her
promise. The defendant started to use the property of her own and
started to show her disloyal character. She did not send any
amounts to Bikshavathi.
(iii) During the course of time, Bikshavathi felt that property
is not useful for the welfare of her son as such she decided to sell
the property. Plaintiffs 1 to 3 approached Bikshavathi to purchase
the suit schedule property. Bikshavathi approached the Principal
District Court, Guntur and obtained necessary permission to sell
away the property of Palaparthi Rama Krishna, her son, who was
minor by then. Plaintiffs 1 to 3 and Bikshavathi visited the suit
schedule premises and discussed with the tenants including the
defendant and the tenants including the defendant informed to the
plaintiffs that they would vacate the property and they will have no
objection for purchase of the property by the plaintiffs. Hence, the
plaintiffs decided to purchase the property. Apart from this, the
Principal District Judge, Guntur granted necessary permission to
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Bikshavathi to sell away the property of her minor son. After
conclusion of the transaction, the defendant changed her version
and did not allow the plaintiffs to enter into the schedule property.
The plaintiffs got cleared the tax pending to the Government after
purchase of the property. They sent a legal notice to the defendant
on 03.03.2016 asking her to vacate the property. Having received
the said notice, she kept quiet. Hence, the Suit for recovery of
possession from the defendant.
4. The defendant got filed a written statement denying the case
of the plaintiffs and her contention, in brief, according to the
contents of her written statement is that Palaparthi
Satyanarayana and his two wives Arogyamma and Renuka Devi
had love and affection towards the defendant. Defendant used to
treat Arogyamma as her mother. They performed the marriage of
Ramana @ Babu with one Bikshavathi. Since the date of marriage,
Bikshavathi was not interested towards her husband and she
used to quarrel with him. Ramana @ Babu was affected with Aids
disease. Knowing the said fact, Bikshavathi left the company of
Ramana @ Babu and went to Vijayawada. Subsequently, she never
visited her husband and her relatives. On 11.04.2003, the
defendant, relatives and elders of both parties decided to settle the
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issue. Taking customary divorce in the Yerukala Community is
prevailing. Hence, Ramana @ Babu took customary divorce by
consuming 1/4th liter of liquor given by Bikshavathi. Similarly, the
relatives of Bikshavathi consumed the same quantity of liquor
given by Ramana @ Babu. Thus, there was a customary divorce
between Ramana @ Babu and Bikshavathi on 11.04.2003. The
defendant spent money and constructed RCC building with two
portions out of the said property. Ramana @ Babu died intestate
on 23.03.2012 leaving behind him the defendant, her mother
Bhagyamma and her sisters Muchu Koti Prabha, Jagannadham
Lakshmi, Jagannadham Parvathi and her brother Palaparthi
China Babu as his legal heirs. She is paying monthly tax in the
name of his senior paternal uncle - Palaparthi Satyanarayana.
Bikshavathi filed HMGOP No.8 of 2014 on the file of the Court of
Principal District Judge, Guntur as if Katta Rama Krishna @
Palaparthi Rama Krishna is the minor son of late Ramana @ Babu
and that the suit property was bequeathed to him under the
alleged will dated 15.07.1980 executed by Palaparthi
Satyanarayana. The relatives of Ramana @ Babu are not shown as
parties to the aforesaid HMGOP No.8 of 2014. Palaparthi
Satyanarayana never executed the will dated 15.07.1980.
Therefore, the plaintiffs will not get any right and title over the suit
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property. Plaintiffs conspired together and brought into existence
the sale deed dated 15.07.2004. Hence, the Suit is liable to be
dismissed.
5. Basing on the above pleadings, originally, the learned
Additional District Judge settled the following issues for trial:
1. Whether the plaintiffs are the absolute owners
having title over the plaint schedule property, if so,
entitled for possession of the plaint schedule property
from the defendant?
2. Whether the plaintiffs are entitled for permanent
injunction as prayed for?
3. To what relief?
6. It is a fact that the learned Additional District Judge, at the
time of delivery of judgment, re-casted the following issues:
1. Whether the will dated 15.07.1980 executed by
Palaparthi Satyanarayana is true, valid and binding on
the parties to the suit?
2. Whether there was customary divorce between
Chidhambara Koti Venkata Ramana and Bikshavathi
on 11.04.2003 as pleaded by the defendant?
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3. Whether the suit is maintainable without seeking
the relief of declaration of title?
4. Whether the suit is bad for non-joinder of necessary
parties?
5. Whether Katta Rama Krishna @ Palaparthi Rama
Krishna was born to Chidhambara Koti Venkata
Ramana and Palaparthi Bikshavathi?
6. Whether the plaintiffs are entitled to recovery of
possession of the suit property as prayed for?
7. During the course of trial, on behalf of the plaintiffs, PWs.1
to 3 were examined and Exs.A-1 to A-12 were marked. On behalf
of the defendant, she examined herself as DW.1 and further
examined DW.2 in support of her case. Exs.B-1 to B-29 were
marked on behalf of the defendant.
8. The learned Additional District Judge, on hearing both sides
and after considering the oral and documentary evidence on
record, made findings that the defendant failed to prove that there
was customary divorce between Ramana @ Babu and Bikshavathi
as pleaded and further failed to prove that Katta Rama Krishna @
Palaparthi Rama Krishna was not born to Chidambara Koti
Venkata Ramana @ Babu and Bikshavathi and that even the
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plaintiffs did not prove the will dated 15.07.1980 alleged to be
executed Palaparthi Satyanarayana and that the Suit is not bad
for non-joinder of necessary parties and that the Suit is
maintainable without seeking the relief of declaration of title and
further made a finding that irrespective of proving of the will dated
15.07.1980, PW.2 and her son Palaparthi Rama Krishna after the
death of Palaparthi Satyanarayana had every right to inherit the
plaint schedule property as such the plaintiffs being the
purchasers of the property from them had right over the plaint
schedule property and that the defendant is not the Class-I legal
heir to Palaparthi Satyanarayana and with the aforesaid findings
decreed the Suit of the plaintiffs.
9. Felt aggrieved of the aforesaid judgment and decree in O.S.
No.79 of 2016, dated 02.07.2020, the un-successful defendant
therein filed the present Appeal.
10. Now, in deciding the present Appeal, the points that arise for
determination are as follows:
1) Whether the defendant before the learned Additional
District Judge proved her contention that there was
customary divorce between Ramana @ Babu and
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Bikshavathi on 11.04.2003 and that Palaparthi Rama
Krishna was not born to Ramana @ Babu and
Bikshavathi during their wedlock?
2) Whether the plaintiff before the learned Additional
District Judge proved the execution of the will dated
15.07.1980 by Palaparthi Satyanarayana?
3) Whether suit of the plaintiffs seeking recovery of
possession basing on Ex.A-8 sale deed dated
15.07.2014 is maintainable without seeking
declaration of title and whether the suit of the
plaintiffs is bad for non-joinder of any necessary
parties?
4) Whether the plaintiffs before the learned Additional
District Judge proved their entitlement to recover
possession of the suit schedule property from the
defendant?
5) Whether the judgment, dated 02.07.2020 in O.S.
No.79 of 2016 is sustainable under law and facts and
whether there are any grounds to interfere with the
same?
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POINT Nos.1 to 5:
11. All these points can conveniently be discussed and decided
together. PW.1 before the trial Court was no other than the third
plaintiff who put forth the facts in his chief-examination affidavit
in tune with the pleadings. Through his examination, Exs.A-1 to
A-12 were marked. It is pertinent to describe here Exs.A-1 to A-12.
Ex.A-1 is the certified copy of registered will dated 15.07.1980
executed by Palaparthi Satyanarayana. Ex.A-2 is the death
certificate, dated 06.02.1981, of Palaparthi Satyanarayana. Ex.A-3
is the marriage receipt issued by the Executive Officer of Sri
Lakshmi Padmavathi Sametha Sri Venkateswara Swamy Vari
Devasthanam, Tenali. Ex.A-4 is the birth certificate, dated
18.11.2004, of Palaparthi Rama Krishna issued by Registrar of
Births and Deaths, Municipal Corporation, Vijayawada. Ex.A-5 is
the death certificate, dated 23.03.2012, of Palaparthi Chidambara
Koti Venkata Ramana issued by the Registrar of Births and
Deaths, Municipality, Tenali. Ex.A-6 is the certified copy of order
in HMGOP No.8 of 2014 on the file of the Court of Principal
District Judge, Guntur. Ex.A-7 is the receipt, dated 19.06.2014,
for clearance of pending tax balance issued by Tenali Municipality.
Ex.A-8 is the registration extract of registered sale deed, dated
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15.07.2014, in the name of plaintiff, executed by Palaparthi
Bikshavathi as guardian of her son. Ex.A-9 is the House tax
receipts (3 in number) in the name of plaintiffs. Ex.A-10 is the
office copy of legal notice, dated 03.03.2016, issued to the
defendant. Ex.A-11 is the postal acknowledgment of the
defendant. Ex.A-12 is the Aadhaar Card in the name of defendant.
12. Further, the plaintiffs got filed the chief-examination
affidavit of their vendor i.e., Palaparthi Bikshavathi, who in her
chief-examination affidavit deposed in respect of the case of the
plaintiffs in tune with the plaint averments. Further, the plaintiffs
got examined the third party namely Kubha Veeramma as PW.3
and her chief-examination is in support of the case of the
plaintiffs.
13. The defendant got filed her chief-examination affidavit
adverting to the contents of written statement and through her
chief-examination, she sought to mark as many as 29 documents
as such Exs.B-1 to B-29 were marked during the course of her
chief-examination. It is pertinent to refer here those documents
that were marked through DW.1. Ex.B-1 is the death certificate of
Palaparthi Satyanarayana issued by the Tenali Municipality dated
06.02.1981. Ex.B-2 is the death certificate of Palaparthi
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Chidhambara Koti Venkata Ramana obtained from Tenali
Municipality dated 23.03.2012. Ex.B-3 is the electricity charges
payment receipt paid by the defendant dated 30.10.2012. Ex.B-4
is the electricity charges payment receipt paid by the defendant
dated 22.03.2013. Ex.B-5 is the electricity charges payment
receipt paid by the defendant dated 19.09.2013. Ex.B-6 is the
electricity charges payment receipt paid by the defendant dated
16.12.2013. Ex.B-7 is the electricity charges payment receipt paid
by the defendant dated 24.01.2014. Ex.B-8 is the electricity
charges payment receipt paid by defendant dated 24.02.2014.
Ex.B-9 is the electricity charges payment receipt paid by the
defendant dated 24.03.2014. Ex.B-10 is the electricity charges
payment receipt paid by the defendant dated 26.04.2014. Ex.B-11
is the Electricity charges payment receipt paid by the defendant
dated 11.07.2014. Ex.B-12 is the electricity charges payment
receipt paid by the defendant dated 09.08.2014. Ex.B-13 is the
voter identity card in the name of defendant. Ex.B-14 is the
Transfer Certificate in the name of defendant issued by Head
Master, AP High School, Muthamsettyvaripalem of Tenali. Ex.B-15
is the seven colour photos with compact disc showing with suit
property. Ex.B-16 is the Vaartha daily news paper district edition
dated 16.04.2015. Ex.B-17 is the Visalandhra daily news paper
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district edition dated 16.04.2015. Ex.B-18 is the copy of Caveat
petition filed by Palaparthi Bikshavathi against the defendant on
the file of the Court of XI Additional District Judge, Tenali.
Ex.B-19 is the reply notice dated 09.08.2014 issued on behalf of
the defendant to the caveat petition. Ex.B-20 is the legal notice
dated 23.08.2014 issued on behalf of Palaparthi Bikshavathi to
the advocate for the defendant. Ex.B-21 is the notice dated
30.08.2014 sent by Assistant Engineer (Operation), Tenali to the
defendant. Ex.B-22 is the reply notice dated 03.09.2014 issued on
behalf of the defendant to Assistant Engineer (Operation), Tenali.
Ex.B-23 is the office copy of report sent by the defendant to the
Chairman, Human Rights, Hyderabad. Ex.B-24 is the office copy
of report dated 23.05.2015 given by the defendant to I Town
Police, Tenali. Ex.B-25 is the Notice dated 08.06.2015 sent to the
defendant by Bikshavathi and plaintiffs. Ex.B-26 is the served
copy of complaint No.5358/2014 filed by the plaintiffs and
Bikshavathi against the defendant on the file of the Court of I
Additional Judicial First Class Magistrate, Tenali. Ex.B-27 is the
notice dated 28.03.2016 issued on behalf of plaintiffs and
Bikshavathi to the defendant. Ex.B-28 is the office copy of reply
notice dated 02.09.2016 issued on behalf of the defendant to the
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notice dated 28.03.2016. Ex.B-29 is the postal acknowledgment of
Tenali Municipality dated 01.01.2014.
14. Further, the defendant got filed the chief-examination
affidavit of DW.2, who is a third party and his chief-examination
affidavit is in support of the case of the defendant.
15. Sri P. Veera Reddy, learned Senior Counsel, appearing on
behalf of Smt. Marella Radha, learned counsel for the
appellant/defendant, would contend that the basis for claim of the
plaintiffs for recovery of possession of the suit schedule property
from the defendant is their sale deed under Ex.A-8. Plaintiffs
claimed to have purchased the property from Palaparthi
Bikshavathi, guardian of her minor son Rama Krishna under
Ex.A-8. They pleaded that Rama Krishna got the property by virtue
of the effect of Ex.A-1 copy of the will. Plaintiffs did not prove the
execution of Ex.A-1 will by Palaparthi Satyanarayana in the
manner as claimed. The contention of the defendant is that
Palaparthi Satyanarayana died intestate. The defendant is no
other than the daughter of Palaparthi Venkateswara Rao, who is
the younger brother of Palaparthi Satyanarayana. The contention
of the appellant/defendant is that as Palaparthi Satyanarayana
died intestate, she and her family members were alone the legal
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heirs. The contention of the defendant is also that Palaparthi
Satyanarayana and his two wives used to treat the defendant as
their own daughter with love and affection. The contention of the
defendant is also that Ramana @ Babu, the son of Palaparthi
Satyanarayana married PW.2 - Bikshavathi but their marriage
was dissolved on 11.04.2003 out of a customary divorce. So,
according to them, Palaparthi Rama Krishna was not born to
Ramana @ Babu and PW.2 during their wedlock. There used to be
a practice in Erukula community for getting customary divorce.
DW.1 and DW.2 testified about the customary divorce on a later
date. Their evidence was not challenged during the course of
cross-examination with regard to the customary divorce by
suggesting any contra theory. Learned Senior Counsel would
strenuously contend that if the evidence of a witness on a
particular aspect is not disputed, during the course of cross-
examination by doing any contra cross-examination, such version
is deemed to have been admitted. In support of his contention,
learned counsel would rely upon Para Nos.31 to 34 of the decision
of the High Court of Gauhati in Jalaluddin Ali v. Manju Begum
and others1. He would submit that in Jalaluddin Ali (supra), the
High Court of Gauhati dealt with the aspect of non-cross-
1 MANU/GH/0421/2022
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examination on a particular aspect. So, the contention of learned
Senior Counsel is that as the testimony of DW.1 and DW.2 was
not challenged during the cross-examination with reference to the
customary divorce spoken by them, it is deemed that plaintiffs
admitted the factum of customary divorce. The learned Additional
District Judge, ignoring these aspects, held that the defendant
failed to probabilize her contention with regard to the customary
divorce between Ramana @ Babu and Bikshavathi. Those findings
are not at all tenable at any rate. Apart from this, Ex.A-1 will was
not proved in accordance with Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian Evidence Act, 1872.
16. Learned Senior Counsel would further contend that though
PW.2 filed HMGOP No.8 of 2004 on the file of the Court of
Principal District Judge, Guntur but she did not implead the
defendant and her other relatives and obtained an order in
HMGOP No.8 of 2004 on behalf of the minor son by collusion.
Therefore on the strength of the order, as above, PW.2 had no
power to sell the property, especially when the plaintiffs did not
prove Ex.A-1 will. PW.2 was not a party to the present Suit and
her non-joinder is bad in law. Learned counsel would contend that
in Ex.B-14 - transfer certificate the defendant was shown as
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daughter of Palaparthi Satyanarayana which probabilized her
contention that wives of Palaparthi Satyanarayana used to treat
her as their own daughter and this aspect was not considered by
the learned trial Court. The plaintiffs did not implead the tenants
who used to reside in the suit schedule property as parties and
delivery of possession as mentioned in the sale deed of the
plaintiffs is not at all correct. The plaintiffs, for obvious reasons,
did not seek to declare their title though they had knowledge that
they have an imperfect title and the suit for mere recovery of
possession is not at all maintainable without seeking declaration
of title. In support of such contention, he would rely upon a
decision of the Hon'ble Apex Court in Anathula Sudhakar v. P.
Buchi Reddy (Dead) by LRs and others2. The evidence of DW.1
had corroboration from the evidence of DW.2 who testified that
there were no issues between PW.2 and Ramana @ Babu. PW.2
did not file any proof to show her residence in Tenali after the year
2003, which shows that she was residing elsewhere after obtaining
customary divorce between the elders. The burden lies on the
plaintiffs to prove their title which they failed miserably to prove.
There is no dispute about the fact that the defendant has been in
settled possession of the plaint schedule property. In the absence
2 (2008) 4 SCC 594
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of establishing the contentions set forth by the plaintiffs the
defendant had every right to remain in the plaint schedule
property being the legal heir of Palaparthi Satyanarayana. The
defendant consistently proved the fact that there was customary
divorce between Ramana @ Babu and Bikshavathi as such
Palaparthi Rama Krishna was not born to PW.2 and Bikshavathi.
The learned Additional District Judge did not appreciate the
evidence in proper perspective. With the above submissions,
learned counsel would contend that the judgment, dated
02.07.2020, in O.S. No.79 of 2016 on the file of the Court of XI
Additional District Judge, Tenali is liable to be set-aside.
17. Smt. Nimmagadda Revathi, learned counsel for the
respondents/plaintiffs, would submit that it is for the defendant
before the trial Court to prove the factum of customary divorce
between Ramana @ Babu and Bikshavathi, which she failed to
probabilize. In Ex.B-19 - reply of the defendant, there was no
whisper about the date of customary divorce and names of the
elders or relatives in whose presence it was obtained. On the other
hand, Ex.B-19, the so called reply of the defendant was marked
during her chief-examination and the contents thereof were not in
dispute. It was issued in response to a Caveat filed by PW.2. The
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allegations were that the marriage between Ramana @ Babu and
Bikshavathi was performed in the year 1999 and they resided
together for a period of 7 years and thereafter there arose disputes
and that there was a customary divorce. It means that PW.2 and
her husband resided together even according to the defendant till
the year 2006. The defendant set-up the date of customary divorce
for the first time in her written statement. So, she pleaded the
customary divorce was as that of the year 2003. So, Ex.B-19 reply
falsifies the evidence of DW.1. So, even according to the defendant,
both PW.2 and her husband had access with each other till the
year 2006. Here, Palaparthi Rama Krishna i.e., son of Ramana @
Babu and Bikshavathi was born on 18.11.2004. So, the defendant
deliberately set up the date of alleged customary divorce as that of
the year 2003 which was false. So, till the year 2006, PW.2 and
her husband had access to each other. According to PW.2, there
was no customary divorce between her and her husband and her
husband died during the subsistence of the marriage. So, when
PW.2 and her husband had access to each other, defendant
cannot be permitted to contend that Palaparthi Rama Krishna was
not born to Ramana @ Babu and Bikshavathi. Apart from this, in
Ex.A-4 the birth certificate of Palaparthi Ramakrishna, his father's
name was clearly shown as Palaparthi Chidambara Koti Venkata
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Ramana. The learned Additional District Judge with sound
reasons made adverse findings against the defendant with regard
to the paternity of Palaparthi Rama Krishna and further negatived
the theory of customary divorce.
18. Learned counsel would further submit that it is a fact that
the plaintiffs did not produce the original will said to be executed
by Palaparthi Satyanarayana in favour his two wives with vested
remainder to Ramana @ Babu and after his death to his legal
heirs. Plaintiffs could produce only Ex.A-1 copy of the will. It is a
fact that they did not examine the attestors. However, there is no
dispute that Ramana @ Babu was the only son to Palaparthy
Satyanarayana and he died intestate and there is no dispute that
PW.2 was no other than one of the legal heir and further
Palaparthi Rama Krishna - the minor son was the legal heir. So,
PW.2 and her son were only the Class-I legal heirs. The defendant
was not at all a Class-I legal heir. The defendant did not prove that
she was the daughter of Palaparthi Satyanarayana. Mere showing
her name as daughter of Palaparthi Satyanarayana in the transfer
certificate would not confer any rights on her. According to her,
the two wives of Palaparthi Satyanarayana used to treat her with
love and affection. Plaintiffs are not disputing the possession of the
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plaint schedule property with the defendant for a considerable
period of time. The plaintiffs filed the Suit for recovery of
possession basing on the title. There was no denial of the title of
the plaintiffs. The Suit for recovery of possession without seeking
declaration of title is absolutely maintainable. In support of the
contentions, she would rely upon the decisions of the Hon'ble Apex
Court in Kurella Naga Druva Vudaya Bhaskara Rao v. Galla
Jani Kamma @ Nacharamma3 and Muddasani Venkata
Narsaiah (dead) through legal representatives v. Muddasani
Sarojana4. The learned Additional District Judge rightly dealt
with the fact that PW.2 and her son were the Class-I legal heirs as
such as the plaintiffs purchased the plaint schedule property from
the minor, being represented by PW.2 they derived rights as such
decreed the suit of the plaintiffs. The learned Additional District
Judge rightly appreciated the evidence in proper perspective and
rightly decreed the suit of the plaintiffs as such the judgment of
the learned Additional District Judge needs no interference.
19. Sri P. Veera Reddy, learned Senior Counsel, during the
course of reply, would contend that the contents in Ex.B-19 -
reply issued on behalf of the defendant that PW.2 and her
3 (2008) 15 SCC 150
4 (2016) 12 SCC 288
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husband resided for a period of 7 years from the year 1999
appears to be incorrect which was said to be issued by her
counsel. He would submit that when the evidence of DW.1 and
DW.2 was not at all challenged as regards the customary divorce
and when the defendant made an emphatic pleading in the written
statement about the customary divorce, non-challenging of the
testimony of DW.1 and DW.2 by the plaintiffs during the course of
their cross-examination means that virtually they admitted about
the customary divorce. There was no proper appreciation of the
evidence by the learned Additional District Judge in this regard.
The fact that Ex.A-8 - registered sale deed, dated 15.07.2014, set
up by the plaintiffs speaks of the delivery of possession goes to
prove that the contents of it are false as such basing on it,
plaintiffs cannot recover possession of the plaint schedule property
from the defendant. With the above said reply, learned Senior
Counsel seeks to interfere with the judgment of the learned
Additional District Judge.
20. Before going to deal with the disputed facts, it is pertinent to
refer here the admitted facts. The admitted facts are that originally
the suit schedule property was the self acquired property of
Palaparthi Satyanarayana, who had two wives namely
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Aarogyamma - first wife and Renuka Devi - second wife and
Palaparthi Satyanarayana and Renuka Devi were blessed with one
male child viz., Chidambara Koti Venkata Ramana @ Babu on
21.08.1978. Palaparthi Satyanarayana admittedly had one brother
viz., Palaparthi Venkateswara Rao and out of his wedlock with
Bhagyamma, they were blessed with 6 issues out of which the
present defendant is their daughter. So, Palaparthi Satyanarayana
is the paternal uncle of the present defendant. There is no dispute
about the death of Palaparthi Satyanarayana on 06.02.1981,
which is quietly evident from Ex.A-2 and Ex.B-1 death certificates.
Further admitted fact was that Ramana @ Babu, S/o. Palaparthi
Satyanarayana married one Bikshavathi (PW.2) and he died on
23.03.2012, which is evident from his death certificate marked
under Ex.A-5. These are all the admitted facts which are not in
dispute.
21. The disputed facts are about the contention raised by the
defendant that there was a customary divorce between Ramana @
Babu and Bikshavathi (PW.2) on 11.04.2003 and that Katta Rama
Krishna @ Palaparthi Rama Krishna was not born to Ramana @
Babu and Bikshavathi (PW.2). The disputed fact is also that
Palaparthi Satyanarayana during his life time executed the
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original of Ex.A-1 - will conveying the suit schedule property in
favour of his two wives with limited interest and thereafter, it will
devolve upon his son Ramana @ Babu with limited interest and
after his lifetime, property has to be devolve upon his issues.
These are all the factual aspects which are in dispute.
22. Firstly, this Court would like to deal with whether the
defendant before the trial Court was able to probabilize her
contention about the customary divorce between Ramana @ Babu
and Bikshavathi on 11.04.2003 and further that Katta Rama
Krishna @ Palaparthi Rama Krishna was not born to Ramana @
Babu and Bikshavathi. Admittedly, issue Nos.2 and 5 before the
trial Court were necessitated on account of the written statement
of the defendant which she is bound to prove.
23. Turning to the cross-examination of PW.1, who is the third
plaintiff, his entire cross-examination was confined relating to the
so called execution of Ex.A-1 which was in serious dispute and
further the so called irregularities on the part of Bikshavathi in
obtaining permission from the Principal District Judge, Guntur to
sell away the plaint schedule property in favour of the plaintiffs
etc. In other words, PW.1 was not at all cross-examined with
reference to the so called customary divorce dated 11.04.2003 as
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pleaded by the defendant and that Katta Rama Krishna @
Palaparthi Rama Krishna was not born to Ramana @ Babu and
Bikshavathi. Similar is the situation in respect of the evidence of
PW.3, who was the elder sister of PW.2. However, during the
course of cross-examination of PW.2, who is no other than
Palaparthi Bikshavathi, the defendant agitated about the so called
customary divorce between her and her husband. During the
course of cross-examination of PW.2, she denied that she came to
know that her husband Ramana @ Babu Rao was attacked with
Aids disease. She denied that after coming to know about the said
fact, she deserted her husband. She denied that elders intervened,
mediated and requested her to lead marital life with her husband
and she refused to lead marital life as he was attacked with Aids
and accordingly she took customary divorce on 11.04.2003 and
performed all activities as per the caste customs on that day at
Vijayawada and since then there was no marital relation between
her and her husband, she started living separately. She admitted
that her husband died due to Aids. She denied that she did not
attend the obsequies of her husband as she took customary
divorce and that Palaparthi Rama Krishna was not born to
Chidambara Koti Venkata Ramana @ Babu.
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24. As seen from the evidence of DW.1, who is the defendant,
she deposed about her contention with regard to the so called
customary divorce between Ramana @ Babu and Bikshavathi on
11.04.2003.
25. DW.2 was the so called elder who claimed that he was
present at the time of customary divorce and there was a
customary divorce between PW.2 and her husband on 11.04.2003
and that no children were born to Bikshavathi through Ramana @
Babu.
26. It is to be noted that the contention of the appellant is that
when the evidence of DW.1 and DW.2 was not challenged by giving
any contra suggestions with reference to the customary divorce
spoken by them during their chief-examination, it is deemed that
plaintiffs admitted the same as such the trial Court was not
justified in giving negative findings. In support of his contention,
learned Senior Counsel for the appellant would rely upon the
decision of the Gauhati High Court in Jalaluddin Ali (1st supra).
It is to be noted that during the course of cross-examination,
DW.1 deposed there is no documentary evidence to show divorce
between Bikshavathi and Ramana @ Babu. Witness adds that it
was effected between the caste elders. There is no document to
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show before the caste elders. It is true that Ramana @ Babu was
alive till the year 2012. She denied that Ramana @ Babu never
raised any dispute during his life time that children born to
Bikshavathi are not his children and that he did not file any suit
or complaint against Bikshavathi denying the children are not his
children. During the course of cross-examination of DW.2, he
denied that out of wedlock of Bikshavathi and Ramana @ Babu,
they were blessed with two children and that he is deposing false
after taking money from the defendant.
27. It is to be noted that according to the case of the plaintiffs,
Ramana @ Babu and Bikshavathi were blessed with two children
and the elder son died due to ill-health and the surviving son is
Katta Rama Krishna @ Palaparthi Rama Krishna. It is to be noted
that though there was no suggestion before DW.1 and DW.2
denying the factum of customary divorce but in this regard cross-
examination was done to test the veracity of DW.1 and DW.2. The
cross-examination of DW.1 was such that she was probed as to
whether there was any document to prove the customary divorce
before the caste elders that was alleged to be happened between
Bikshavathi and Ramana @ Babu. Further, the defence of the
plaintiffs before DW.1 was that Ramana @ Babu never disputed
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the paternity of his children. Cross-examination of DW.2 was with
contention that Ramana @ Babu and Bikshavathi were blessed
with two children. So, merely because there were no suggestions it
cannot be held that plaintiffs accepted the version of DW.1 and
DW.2. If that analogy is to be applied, there was no cross-
examination of PW.1 and PW.3 with reference to the customary
divorce between PW.2 and her husband. It is a fact that PW.2
denied the so called customary divorce between her and her
husband as suggested to her. The line of cross-examination of
DW.1 and DW.2 on behalf of the plaintiffs can only mean that
ultimately plaintiffs denied the so called theory of customary
divorce between PW.2 and her husband and the paternity issue of
Palaparthi Rama Krishna.
28. Turning to the decision of Guwahati High Court in
Jalaluddin Ali (1st supra), cited by learned counsel for the
appellant/defendant, the Gujarat High Court with reference to the
judgment of the Hon'ble Supreme Court dealing with the cross-
examination held that the fact of non-cross-examination is that
the statement of the witness has not been disputed.
29. Coming to the present case on hand, plaintiffs examined
PW.2, who was no other than Palaparthi Bikshavathi, who denied
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the case of the defendant to any extent. Hence, merely because
there was no suggestion given to DW.1 and DW.2, the case of the
defendant cannot be strengthened and this Court cannot lost site
of the fact that during the course of cross-examination of PW.1
and PW.3 also defendant did not come up with any version about
the so called customary divorce between PW.2 and her husband
and disputing the paternity issue of the son of PW.2 i.e.,
Palaparthi Rama Krishna.
30. To this extent simply because there was no suggestion given
to DW.1 and DW.2 about the customary divorce, the case of the
defendant cannot be strengthened. It is to be noted that the
plaintiffs got marked birth certificate of Palaparthi Rama Krishna
under Ex.A-4 which reveals that Palaparthi Rama Krishna was
born on 18.11.2004. During the course of cross-examination of
PW.1, the contents therein are not in dispute. Of course, there was
an agitation by the defendant before PW.2 in this regard and PW.2
denied the case of the defendant. So, the date of birth certificate in
the name of Palaparthi Rama Krishna means that he was born on
18.11.2004 and his father's name was mentioned as Ramana @
Babu.
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31. It is to be noted that during the chief-examination of DW.1,
Ex.B-19 was marked. According to the chief-examination affidavit
of DW.1 on 02.08.2014 Bikshavathi filed a Caveat OP for which
she (DW.1) sent a detailed reply dated 09.08.2014 through her
counsel mentioning all the facts. So, the contents of the reply
under Ex.B-19 were never in dispute. It is not that those contents
were out of any mistake or otherwise. So, as seen from Ex.B-19 to
the Caveat filed by Bikshavathi - PW.2, the defendant ventured to
issue Ex.B-19 reply. As evident from Ex.B-19, the contention of
the defendant is that Ramana @ Babu married Bikshavathi in the
year 1999 and both lived together for some time. 7 years thereafter
some disputes arose between Bikshavathi and her husband and in
the presence of defendant, relatives and caste elders they dissolved
the marriage and took customary divorce, which is prevailing in
their community. It is to be noted that when Ex.B-19 did not
reveal the date of customary divorce, it was only through the
written statement of the defendant the date of customary divorce
as 11.04.2003 was projected. So, in the earliest point of time i.e.,
09.08.2014 defendant did not plead the factum of date of
customary divorce. If Ex.B-19 contents are considered, it means
that Ramana @ Babu and PW.2 resided together from the year
1999 as husband and wife till the year 2006. So after 2006
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according to Ex.B-19, some disputes arose, which resulted into
customary divorce. Here, the defendant pleaded the customary
divorce as 11.04.2003. Obviously, it was with an intention to
dispute the paternity issue of Palaparthi Rama Krishna because
he was born on 18.11.2004 according to Ex.A-4. Defendant is not
disputing his date of birth. So, it appears that with an intention to
dispute his paternity only the defendant ventured to put forth the
date of the alleged customary divorce as 11.04.2003, contrary to
the contents of Ex.B-19 - reply. It is never the case of the
defendant throughout the trial that by mistake or otherwise there
was a mention in Ex.B-19 that Ramana @ Babu and Bikshavathi
resided together till the year 2006. So, obviously it is very clear
that Ex.B-19 falsifies the contents of the written statement of the
defendant with reference to the so called date of customary
divorce.
32. It is to be noted that as evident from the evidence of DW.2,
he was unable to say his door number and the door umber of the
defendant and it is very astonishing to note that he remembered
the date of the so called customary divorce. By virtue of Ex.B-19
even it falsifies the evidence of DW.2 also with reference to the
date of customary divorce. The evidence of PW.2 is such that there
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was no customary divorce at all between her and her husband.
She admitted that her husband suffered with Aids till he died. The
fact that her husband was suffering with Aids would not lead to
any conclusion that on account of that she got customary divorce.
The defendant by standing on her own legs miserably failed to
prove the customary divorce as pleaded by her.
33. As the defendant miserably failed to prove the customary
divorce and as she wanted to dispute the paternity issue of the son
of PW.2 only on the ground that PW.2 and her husband got
customary divorce on 11.04.2003, at this juncture, it is pertinent
to extract here Section 112 of the Indian Evidence Act, which runs
as follows:
"112. Birth during marriage, conclusive proof of
legitimacy - The fact that any person was born during the
continuance of a valid marriage between his mother and any
man, or within two hundred and eighty days after its
dissolution, the mother remaining unmarried, shall be
conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had
no access to each other at any time when he could have been
begotten."
34. So, a perusal of Section 112 of the Indian Evidence Act
reveals that if any person was born during the continuance of a
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valid marriage between his mother and any man, or within 280
days after its dissolution, the mother remaining un-married, it
shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had no
access to each other at any time. Here, the date of birth of
Palaparthi Rama Krishna was on 18.11.2004. Defendant
miserably failed to prove the customary divorce dated 11.04.2003.
On the other hand, Ex.B-19 reply by the defendant falsifies her
evidence and evidence of DW.2 with regard to customary divorce.
Ex.B-19 means that both Ramana @ Babu and her wife
Bikshavathi, even according to the defendant, resided together till
the year 2006. So, Ramana @ Babu and her wife i.e., PW.2 had
every access with each other prior to the birth of their son by
name Palaparthi Rama Krishna. So, considering Section 112 of the
Indian Evidence Act, the paternity issue of Palaparthi Rama
Krishna is nothing but a conclusive one. Hence, the contention of
defendant that Palaparthi Rama Krishna was not born to PW.2
and her husband is not at all tenable. The defendant failed to
prove those aspects in the considered view of this Court.
35. Now, another aspect to be considered here is whether the
plaintiffs were able to prove the execution of original of Ex.A-1 -
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Will by Palaparthi Satyanarayana in favour of his two wives. It is
to be noted that in view of Section 63 of the Indian Succession Act
and Section 68 of the Indian Evidence Act and as the Will is
compulsorily attestable document, it is to be proved by examining
at least one attesting witness. Neither the plaintiffs produced the
original of Ex.A-1 Will nor tendered any explanation for its non-
production. Even they did not examine any attestor thereof. The
original of Ex.A-1 set-up by the plaintiffs was in serious dispute.
So, it is a case where the plaintiffs did not prove the execution of
original of Ex.A-1 by Palaparthi Satyanarayana in the manner as
pleaded.
36. Though the plaintiffs failed to prove execution of Ex.A-1 but
they are claiming recovery of possession basing on the sale deed
executed by PW.2 representing her son conveying the plaint
schedule property in their favour. The plaintiffs got marked the
registration extract of the sale deed under Ex.A-8 which literally
reveals that the plaint schedule property was purchased by the
plaintiffs from PW.2. It is to be noted that simply because the
plaintiffs failed to prove Ex.A-1, the Suit cannot be dismissed.
Even according to the defendant, the plaint schedule property was
the self acquired property of Palaparthi Satyanarayana. As evident
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from the evidence of PW.2 during cross-examination Ramana @
Babu is the son of Renuka Devi, the second wife of Palaparthi
Satyanarayana. Arogyamma, first wife of Palaparthi
Satyanarayana, died of heart attack. Renuka Devi died in the train
accident in the year 1992. There is no dispute that Ramana @
Babu was the only legal heir to Palaparthi Satyanarayana, who
was born through his second wife Renuka Devi. There is no
dispute about the marriage between Ramana @ Babu and PW.2.
As this Court already pointed out, the defendant cannot dispute
the paternity issue of Palaparthi Rama Krishna. So, after the death
of Palaparthi Satyanarayana and his two wives, ultimately the
plaint schedule property devolved upon PW.2 and Ramana @
Babu. There was no dispute about the death of Ramana @ Babu.
Though Ramana @ Babu and PW.2 were blessed with two issues,
another son by name Satheesh predeceased Palaparthi Rama
Krishna. There is no dispute further that PW.2 being the wife of
Ramana @ Babu and her son Palaparthi Rama Krishna in view of
the earlier findings were no other than the Class-I legal heirs, as
per the Hindu Succession Act, 1956. There is also no dispute that
parties are governed by the Hindu Succession Act. So, they are the
Class-I legal heirs. The defendant was not at all a Class-I legal heir
to Palaparthi Satyanarayana, being the daughter of his younger
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brother Palaparthi Venkateswara Rao. The contention of the
defendant is that the two wives of Palaparthi Satyanarayana used
to treat her with lot of love and affection. Even assuming for a
moment that even according to the pleadings of the plaintiffs,
Palaparthi Satyanarayana used to take care of the welfare of the
siblings of Palaparthi Venkateswara Rao as he neglected them, it
is not going to confer any right on the defendant with regard to the
plaint schedule property. The defendant did not plead any
testamentary succession. According to her, Palaparthi
Satyanarayana died intestate and she and her family members
were the immediate legal heirs. As the defendant miserably failed
to prove the customary divorce between Ramana @ Babu, who was
the Class-I legal heir of Palaparthi Satyanarayana and Palaparthi
Bikshavathi and as she failed to disprove the paternity issue of
Palaparthi Rama Krishna, absolutely, even according to the
provisions of Hindu Succession Act, she had no right to claim
plaint schedule property. PW.2 and her son being the Class-I legal
heirs excludes the defendant from the purview of Succession.
37. Coming to the contention of the defendant that the Suit for
recovery of possession is not maintainable without seeking for any
declaration of title, it is not a case where the title of the plaintiffs
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was denied. It is a case where the plaintiffs claimed that they
purchased the plaint schedule property from the legal heirs of
Palaparthy Satyanarayana. One cannot deny the fact that PW.2
and her son were the Class-I legal heirs to Ramana @ Babu, who
was the son of Palaparthi Satyanarayana.
38. Turning to the decision cited by learned counsel for the
respondents/plaintiffs in Kurella Naga Druva Vudaya
Bhaskara Rao (3rd supra), the Hon'ble Apex Court dealt with
certain factual aspects to the effect that in a particular case where
plaintiff purchased the land under the registered sale deed, dated
10.04.1957. The defendant in that particular case did not claim
any title with reference to any document but claimed to have
perfected title by adverse possession. The Hon'ble Apex Court held
that mere claim by the defendant that he perfected his title by
adverse possession does not meant that a cloud is raised over the
plaintiff's title and that he should file a suit for declaration of
title. The Hon'ble Apex Court held that unless the defendant raised
a serious cloud over the title, there is no need to file a suit for
declaration and a suit for possession is maintainable.
39. In Muddasani Venkata Narsaiah (4th supra) also, the
Hon'ble Apex Court held that when there was no serious cloud
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over the plaintiff's title, suit for recovery of possession is
maintainable without seeking any declaration of title.
40. Turning to the decision of the Hon'ble Apex Court in
Anathula Sudhakar (2nd supra), it is only where the title claimed
by the plaintiff is not in a cloud, the remedy is for declaration of
title and for possession. When the title is not disputed remedy is
suit for possession.
41. Coming to the present case on hand, the defendant claimed
to have come into possession of the schedule property as Class-I
legal heir as Palaparthi Satyanarayana was her paternal uncle and
after the death of Ramana @ Babu, she has rights over the
property by way of succession and there was customary divorce
between Ramana @ Babu as such neither PW.2 nor her son had
nothing to do with succession issue. She failed to probabilize such
contention, as this Court already pointed out. Considering the
same, absolutely, the title of the plaintiffs is not in serious dispute
as such the plaintiffs can as well maintain the Suit for recovery of
possession without seeking any declaration of title.
42. It is a fact that in Ex.B-14, the transfer certificate issued by
the school authorities, Palaparthi Satyanarayana was shown as
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father of the defendant. It is to be noted that the defendant was
not the daughter of Palaparthi Satyanarayana, as admitted by her.
She cannot support her contention basing on the certificate under
Ex.B-14, the so called transfer certificate issued by the school
authorities to a student when he or she was leaving the school. As
seen from Ex.A-8, the contents thereof are in a routine manner as
if the vendors delivered possession of the property to the vendee
but practically there is no dispute that possession of the property
has been with the defendant. It is to be noted that the plaintiffs
being purchasers of the plaint schedule property from its lawful
owners can as well maintain a Suit for recovery of possession
though Ex.A-8 literally runs the delivery of possession as on the
date of sale deed in a routine manner. The fact that Ex.A-8 literally
runs that the vendor delivered possession with vendee would not
defeat the right of the plaintiffs to recover possession basing on
the sale deed obtained by them from its lawful owner. Apart from
this, the non-joinder of PW.2 in the suit filed by the plaintiffs is
not at all fatal to the case of the plaintiffs. Plaintiffs being the
purchasers of the plaint schedule property under Ex.A-8 need not
show the vendor of the document as a party to the Suit. PW.2
obtained an order in HMGOP No.8 of 2014 on the file of the Court
of Principal District Judge, Guntur to sell the property of her son
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being a minor. As this Court already pointed out, PW.2 and her
son were the Class-I legal heirs of her husband and her husband
was son of Palaparthi Satyanarayana. The grievance of the
defendant is that neither she nor her other sisters or brothers
were joined as parties to HMGOP No.8 of 2014 before the Principal
District Court, Guntur. Absolutely, the aforesaid contention
deserves no merits in the light of the peculiar facts and
circumstances of this case.
43. The learned Additional District Judge, as evident from the
judgment, thoroughly appreciated the case of the parties and the
evidence on record in proper perspective and rightly decreed the
Suit of the plaintiffs. Hence, the judgment, dated 02.07.2020, in
Original Suit No.79 of 2016, on the file of the Court of XI
Additional District Judge, Tenali, Guntur District is sustainable
under law and facts and absolutely this Court does not see any
reason to interfere with the same.
44. In the result, the Appeal Suit is dismissed with costs
confirming the judgment and decree, dated 02.07.2020, in
Original Suit No.79 of 2016, on the file of the Court of XI
Additional District Judge, Tenali, Guntur District. The
appellant/defendant is directed to vacate and deliver possession
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of the plaint schedule property to the plaintiffs/respondents
within a period of one (1) month from the date of this judgment.
In the event of failure of the appellant/defendant to comply the
same, the respondents/plaintiffs are at liberty to recover
possession by due process of law.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
________________________________
JUSTICE A.V.RAVINDRA BABU
Date: 12.02.2024
Note:
Mark LR Copy.
DSH
