Andhra Pradesh High Court - Amravati
Potla Ramamohan Rao vs Sri Potla Bala Saraswathi Pillai on 16 February, 2024
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
FRIDAY, THE SIXTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE Dr. V.R.K. KRUPA SAGAR
APPEAL SUIT No.27 OF 2009
Between:
1. Potla Ramamohan Rao, S/o.not known Retired Sub-
Inspector of Police R/o. D.No.68-10-27, Rajeshwari Nagar,
Vidyuth Nagar, Kakinada.
2. Potla Alishamma, W/o. Ramamohana Rao Housewife R/o.
D.No.68-10-27, Vidyuthnagar, Kakinada.
3. Potla Kamala Kumari, W/o. M.J.Prasad Housewife R/o.
D.No.68-10-27, Rajeshwarinagar, Vidyuthnagar,
Kakinada.
...APPELLANT(S)
AND
1. Sri Potla Bala Saraswathi Pillai, W/o. Ramamohan Rao
R/o. Godarigunta, Kakinada.
2. Potla Sunitha, W/o. G.Venkateswararao R/o. D.No.68-10-
27, Rajeswarinagar, Vidyuthnagar, Kakinada.
...RESPONDENTS
The Court made the following Judgment:
This Appeal under Section 96 of Code of Civil Procedure
(C.P.C.) is filed by defendant Nos.1, 2 and 3 in the suit.
Defendant No.4 in the suit is shown as respondent No.2 and is
shown as not a necessary party. The sole plaintiff is shown as
respondent No.1.
Dr. VRKS, J
2. Sri A.K.Kishore Reddy, the learned counsel for appellants
and Sri J.Saraschandra Babu, the learned counsel for
respondent No.1 submitted their arguments. During the
pendency of the appeal, appellant Nos.1 and 2 died. Their legal
representatives have not been brought on record.
3. The submission of the learned counsel for appellants is
that the cause of action survives and appellant No.3 is the very
daughter of appellant Nos.1 and 2 and therefore appeal
survives.
4. No contrary submission is made on behalf of respondent
No.1.
5. Property in dispute is an extent of 221 square yards of
site with a RCC roof house on it bearing Door No.68010-27 in
Ramanayyapeta Sivaru, Gaigolupadu Village, Kakinada
Municipal Area, East Godavari District.
6. Smt. Potla Bala Saraswathi Pillai, as an indigent person,
filed O.S.No.91 of 2006 before learned I Additional Senior Civil
Judge, Kakinada seeking a declaration of her title over the
above referred property which is well described in the plaint
schedule and sought a direction as against defendant Nos.1 to 4
to vacate the property and deliver vacant property to her and
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also prayed for setting aside gift deed dated 06.05.2002
executed by defendant No.2 in favour of defendant Nos.3 and 4.
In the plaint she alleged that this property was owned by Smt.
K.Nageswaramma and from her plaintiff purchased it for
Rs.47,300/- under a registered sale deed dated 31.01.1996.
However, defendant No.2 impersonating herself as plaintiff
executed a registered gift deed dated 06.05.2002 in favour of her
two children/defendant Nos.3 and 4. The said gift deed is
invalid as she had no right to alienate such property. On
coming to know about such gift deed the plaintiff got executed a
cancellation gift deed dated 28.05.2003. The further case set
out in the plaint is that defendant No.1 was a Sub-Inspector of
Police and retired from service and he had developed intimacy
with the plaintiff and married her in 1989. They cohabited in
this plaint schedule property till April, 2002. Defendant No.1 is
husband of defendant No.2. Defendant Nos.3 and 4 are
children of those spouses. Plaintiff was sent out of the house.
It is in these circumstances the suit is filed for the prayers
referred above.
7. Defendant No.4 did not enter the contest and remained
ex parte before the trial Court. Defendant No.1 and defendant
No.2 filed a written statement and defendant No.3 filed a memo
Dr. VRKS, J
adopting the same. Relationship among defendants is admitted.
The intimacy and the marriage alleged in the plaint between
plaintiff and defendant No.1 is denied as false. Plaintiff is the
wife of Sri Kandikatla Dharmananda Mohana Rao and she had
a daughter by name Nirupama and also a son. Plaintiff once
met defendant No.1 and explained him about her miserable
condition and out of compassion her daughter Nirupama was
allowed to run a tailoring institute in the suit schedule property.
Be it noted here, in the cause title of the suit the name of
defendant No.2 is shown as Potla Alishamma. In the written
statement of defendants, it is further stated that the original
name of defendant No.2 is Potla Bala Saraswathi Pillai and
thereafter by virtue of conversion of religion of defendant No.1
who adopted the faith of Christianity, the name of his
wife/defendant No.2 is changed as Alishamma. In the written
statement it is specially pleaded that the plaint schedule
property was purchased by defendant No.2 and thereafter she
validly executed a gift deed in favour of her children. That the
plaintiff never purchased the plaint schedule property. She had
no capacity to purchase the said property and thereafter build a
house thereon. Nirupama, the daughter of plaintiff, might have
stolen the original registered sale deed standing in favour of
Dr. VRKS, J
defendant No.2. For these reasons, they sought dismissal of the
suit.
8. Learned trial Court settled the following issues for trial:
1. Whether the plaintiff is legally wedded wife of
the 1st defendant?
2. Whether the plaint schedule property is
Stridhana property of 2nd defendant, provided by
1st defendant?
3. Whether the plaintiff is entitled for declaration
of plaintiff's title over plaint schedule property?
4. Whether the plaintiff is entitled for vacant
delivery of possession of plaint schedule
property?
5. Whether the plaintiff is entitled for cancellation
of gift deed dated 06.02.2002?
6. Whether the plaint schedule is correct?
7. To what relief?
9. To prove the respective cases, there is oral evidence of
PWs.1 and 2 and Exs.A.1 to A.19 and there is oral evidence of
DWs.1 to 3 and Exs.B.1 to B.8.
10. Based on the material on record and the contentions
advanced on both sides, the learned trial Court held that
plaintiff is the rightful owner of plaint schedule property under
Dr. VRKS, J
Ex.A.1-sale deed dated 31.01.1996 and defendant No.2 is only
Potla Alishamma and she is not Potla Bala Saraswathi Pillai @
Alishamma. Since defendant No.2 had no title over the plaint
schedule property, the gift deed under Ex.B.3 executed by her
in favour of her daughters/defendant Nos.3 and 4 is invalid and
does not bind the plaintiff. It held all the issues in favour of the
plaintiff. Finally, it passed a judgment and decree in favour of
plaintiff and against the defendants in the following terms:
"21. In the result, the suit is decreed with
costs declaring the ownership of the plaintiff over
the plaint schedule property and further directing
the defendants to put the plaintiff in peaceful
vacant possession of the plaint schedule property
within one month and it is further declared that the
gift deed Ex.B.3 dated 06.05.2002 is not valid and
binding on the plaintiff and that the cancellation of
gift deed under Ex.A.5 dated 28.05.2003 executed
by plaintiff is valid. The defendants are directed to
pay the court-fee payable in this suit to the
Government."
11. In challenge to the above judgment, the present appeal is
preferred contending that plaintiff failed to produce evidence
beyond reasonable doubt to get a judgment and decree in her
favour and the trial Court erred in appreciating the evidence
Dr. VRKS, J
and in granting the relief. Plaintiff in her evidence admitted that
she is wife of Sri Kandikatla Dharmananda Mohana Rao and
was not divorced and therefore she could not be called with the
surname Potla. Plaintiff had no right to execute a cancellation
gift deed dated 28.05.2003 under Ex.A.5. The crucial question
in the litigation is, who is Potla Bala Saraswathi Pillai - whether
it is plaintiff or defendant No.2. Without framing any issue in
that regard, learned trial Court disposed of the case and
therefore it is erroneous. That the suit is barred by limitation.
For these reasons, the appellants seek to set aside the
impugned judgment.
12. As against it, the learned counsel for respondent No.1
submits that the trial Court appropriately appreciated the
evidence on record and reached to appropriate conclusions and
there is no warrant for interference. The material on record also
indicated that defendant No.4 did not even accept the gift deed
executed by defendant No.2 and a gift which was not accepted
does not amount to gift and does not create any rights. For
these reasons, learned counsel seeks dismissal of the appeal.
Dr. VRKS, J
13. On hearing the submissions on both sides and on perusal
of the material on record, the following points fall for
consideration in this appeal:
1. Whether the plaint schedule property covered by
Ex.A.1-registered sale deed dated 31.01.1996
was purchased by the plaintiff or was purchased
by defendant No.2?
2. Whether defendant No.2-Potla Alishamma is also
called as Potla Bala Saraswathi Pillai @
Alishamma?
3. Whether the impugned judgment suffers from
errors of fact or law requiring interference?
Point Nos.1 to 3:
14. As could be seen from the pleadings on both sides and the
evidence on both sides, plaintiff Smt. Potla Bala Saraswathi
Pillai's name is never in dispute. As per the written statement
of defendants, the name of defendant No.2 is also Potla Bala
Saraswathi Pillai @ Alishamma. Undisputed evidence on record
indicated Ex.A.1-registered sale deed stands in the name of
Smt. Potla Bala Saraswathi Pillai. According to plaintiff, she
purchased that property and thereafter constructed a house on
it. According to defendants, defendant No.2 purchased this
Dr. VRKS, J
property and constructed a house on it. Therefore, who is Bala
Saraswathi Pillai is the crucial determining factor to clinch the
issue as to whom Ex.A.1-sale deed belonged to. During the
trial, plaintiff - Smt. Potla Bala Saraswathi Pillai produced
Ex.A.1-registered sale deed. Defendants failed to adduce any
evidence that such a document was with the defendants at any
time and that it was stolen away by one Nirupama from their
house. Defendant No.1 being an erstwhile police officer could
have certainly initiated some or the other proceedings for
recovery of such a valuable document if at all it was stolen from
his house. Pleadings and evidence did not indicate any such
efforts. In such circumstances, it is reasonable to think that
Ex.A.1 was never with defendants and as it was never with the
defendants it could not have been stolen by anyone including
Nirupama. Thus, Ex.A.1 containing the name of Bala
Saraswathi Pillai is produced by plaintiff whose name is Bala
Saraswathi Pillai. Plaintiff producing this document probablises
her contention that she purchased the property.
15. Defendant No.1 is Potla Ramamohan Rao. Pleaded case
of him is that he changed his religion from Hinduism to
Christianity. Be it noted, despite such change, there is no
change in his name. Pleaded case is that his wife/defendant
Dr. VRKS, J
No.2-Alishamma alone changed her name. Her original name
was Bala Saraswathi Pillai and on change of religion she gained
the name Alishamma and therefore her full name is Bala
Saraswathi Pillai @ Alishamma. This being the specific case
pleaded by the defendants/appellants, it is for them to prove it.
When the name became a matter of dispute, it is normally
expected that the Court trying the suit would frame an issue on
that. Record shows that trial Court did not frame any issue
strictly on this aspect. It is that part of the omission that is
challenged in this appeal. I must say that though an issue was
not framed by the trial Court, the fact is that the trial Court well
grasped the real controversy and in the impugned judgment
after narrating the issues framed in the suit at paragraph No.6
the trial Court mentioned as below:
"6. Issues 1 to 5 are discussed together since
they are inter-related and dependant on the
outcome as to who is "Potla Bala Saraswathi Pillai",
whether plaintiff or 2nd defendant?"
16. Thereafter one would notice complete focus of the trial
Court on that aspect of the name and a detailed discussion
spread into nine pages plus was rendered by the trial Court. A
reading of the oral evidence adduced on both sides would also
Dr. VRKS, J
show that their examinations-in-chief and cross-examinations
revolved around the disputed aspect concerning name only.
Thus, both parties to the litigation as well as the Court trying
the suit were fully aware as to what was at the heart of the
dispute and both parties adduced evidence in that regard.
Though a specific issue was not framed formally, entire focus of
the trial Court revolved around that fact of the matter.
Therefore, the impugned judgment does not suffer from any
legal laches. At any rate, the appellants have not even raised
the questions of prejudice being occurred to them because of
absence of a specific issue concerning name. Therefore, the
contention of the learned counsel for appellants that there was
no specific issue concerning the name dispute is a contention
without any merit.
17. Since the name of the plaintiff is Bala Saraswathi Pillai is
never in dispute, there was no need for her to establish her
name once again. Therefore, the contention of the appellants
that as plaintiff failed to prove her identity the suit ought not to
have been decreed is a contention that lacks any merit.
18. The specific case of defendants/appellants is that
defendant No.2 is Bala Saraswathi Pillai @ Alishamma. The
Dr. VRKS, J
evidence of DWs.1 and 2 would show about ration
cards/household cards, voter identity cards, pension passbook
of defendant No.1 which would contain the name of his
wife/defendant No.2 and school or college certificates or any
other such documents pertaining to defendant No.2 showing her
name are all available and DWs.1 and 2 said that they would
not produce them. In that context, learned trial Court recorded
that defendants did not choose to produce such documents and
stated that production of such documents would have indicated
the actual and real name of defendant No.2 and the fact that
such documents were suppressed allowed it to conclude that
there is no evidence brought on record showing that defendant
No.2 is Bala Saraswathi Pillai @ Alishamma. It may also be
recorded here that the conversion of religion is not borne by
record through any document and change of name is also not
borne by record through any document. Thus, defendants
having asserted a particular name for defendant No.2 failed to
demonstrate the truth of their contention. Added to this, the
learned trial Court conducted a serious scrutiny of signatures of
defendant No.2 on her pleadings, on her examination-in-chief
and cross-examination papers and made a detailed record
stating that at certain places only defendant No.2 was writing
Dr. VRKS, J
her name as Bala Saraswathi Pillai @ Alishamma and at other
places she was writing differently and at one place she wrote her
name as Alishamma and then added thereafter the remaining
part of her alleged name. Thus, the trial Court even castigated
the conduct of defendant No.2 in trying to conceal her real
name. During arguments, learned counsel for appellants failed
to put forth any contention to find fault with any of the
observations of the trial Court. Therefore, the conclusions
arrived at by the trial Court that it is the plaintiff and plaintiff
alone is Potla Bala Saraswathi Pillai and such name is not there
for defendant No.2 and the only name of defendant No.2 is Potla
Alishamma and thus, Ex.A.1-registered sale deed always
belonged to plaintiff and it is the plaintiff who purchased such
property and defendant No.2 never purchased such property are
to be accepted as correct. Such findings are based on evidence.
The conclusions reached are the only conclusions that could be
reached from the material on record and those findings are to be
upheld.
19. Defendant No.2 executed Ex.B.3-registered gift deed dated
06.05.2002 in favour of her daughters/defendant Nos.3 and 4.
Under this gift deed she gifted the property covered by Ex.A.1
which is the plaint schedule property. Since the property
Dr. VRKS, J
covered under Ex.A.1 is owned by plaintiff, defendant No.2 had
no power to transfer such property under such gift deed.
Defendant No.2 resorted to execution of Ex.B.3 for the first time
indicating her name falsely. In other words, while she was Potla
Alishamma, she described herself as Bala Saraswathi Pillai @
Alishamma. In such circumstances, the trial Court was right in
holding that this Ex.B.3-registered gift deed carries no effect on
the title of plaintiff held by her under Ex.A.1. Plaintiff under her
anxiety, though not a party to Ex.B.3, in the act of rescuing her
property, executed Ex.A.5-cancellation gift deed. In terms of
law Ex.A.5 carries no value. However, the observation of the
trial Court is that in the context of the totality of the facts the
conduct of plaintiff in executing Ex.A.5 cannot be found fault
with. The findings of the trial Court on Ex.A.5 are questioned in
this appeal, but any decision in that regard helps none. The
grounds urged in this appeal have no merit. All the points are
answered in favour of respondent No.1 and against the
appellants.
20. In the result, this Appeal is dismissed. The impugned
judgment dated 05.12.2008 of learned I Additional Senior Civil
Judge, Kakinada in O.S.No.91 of 2006 is confirmed.
Consequently, the appellants and respondent No.2 should
Dr. VRKS, J
vacate the suit schedule property and deliver vacant possession
of the same to the plaintiff/respondent No.1 on or before
31.03.2024, failing which plaintiff/respondent No.1 could take
recourse to process of law before the Court below. There shall
be no order as to costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 16.02.2024
Ivd
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
Date: 16.02.2024
Ivd
