Andhra Pradesh High Court - Amravati
Smt.Challa Rama Tulasamma vs Allu Pulla Reddy on 5 November, 2024
1
APHC010512782009
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
TUESDAY, THE FIFTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY
TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T
T. MALLIKARJUNA RAO
SECOND APPEAL NO: 414/2009
Between:
Smt.challa Rama Tulasamma ...APPELLANT
APPELLANT
AND
Allu Pulla Reddy and Others ...RESPONDENT(S)
Counsel for the Appellant
Appellant:
1. A S C BOSE
Counsel for the Respondent(S):
1. KARRI MURALI KRISHNA
The Court made the following JUDGMENT:
1. This Second Appeal was filed by the Appellant/Plaintiff under Section
100 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') against the
Judgment and decree, dated 29.01.2009 passed in A.S. No.36 of 2004 on the
file of Additional Senior Civil Judge
Judge's Court, Narasaraopet (for short, 'the
1stAppellate Court') reversing the Judgment and decree, dated 03.06.2004
passed in O.S.No.447 of 2001 on the file of Principal Junior Civil Judge's
Court, Sattenapalli (for short 'the trial Court').
2. The Appellant is the Plaintiff, who filed the suit in O.S.No.447
447 of 2001
for a permanent injunction restraining the Defendants and their men from
interfering with the Plaintiff's peaceful possession and enjoyment of the plaint
schedule property.
3. It is prudent to refer to the parties as they are initially presented in the
suit O.S.No.447 of 2001 to minimize any potential confusion and to enhance
the understanding of the case.
4. The factual matrix essential for adjudicating the contentious issues
between the parties can be outlined as follows:
(a) The Plaintiff is the eldest daughter of Renukamma and
Venkata Reddy and has five sisters, with Sree Lakshmi being the fourth
daughter. The 1st Defendant is Sree Lakshmi's husband. At the time of
Sree Lakshmi's marriage, their mother gave her property, including gold
ornaments valued at Rs.50,000/- and various utensils. On 15.02.2001,
Renukamma executed a Registered Will, bequeathing the schedule
property and other assets to the Plaintiff. The Will also included
provisions for the Plaintiff's sisters. The Plaintiff maintains that her
mother executed the Will in sound mind, making it her final testament.
After Renukamma passed away on 09.05.2001, she had paid the cist
for the schedule land, which is supported by a Pattadar Pass Book and
Title Deed confirming ownership.
(b) Following her mother's demise, the Plaintiff has rightfully
enjoyed the schedule property, actively cultivating crops, including
paddy, on the land. She has taken appropriate steps to have her name
recorded with the relevant authorities and has applied for the Pattadar
Pass Book and Title Deed for the property. However, the 1st Defendant
has developed an unwarranted interest in the property and is
attempting to assert control over it with the aid of the 2 nd Defendant.
Recently, the Defendants made unsuccessful attempts to unlawfully
dispossess her from the land; however, their efforts were thwarted by
the timely intervention of respected elders in the community. Faced with
ongoing illegal actions from the Defendants, the Plaintiff feels
compelled to file this suit to safeguard her rights and secure her
ownership of the property.
5. The 1st Defendant filed his written statement, whereas the 2 nd
Defendant adopted the same. The 1st Defendant has refuted most of the plaint
averments and contends as follows:
(a) The schedule property is owned by the Defendant's father-in-
law, Venkata Reddy, who inherited it from his ancestors. His father-in-
law gifted the schedule property to the Defendant by Gift Deed dated
01.04.1973. Since then, Defendant has been in continuous possession
and enjoyment of the property, exercising absolute rights to it, a fact
known to all, including Plaintiff. Venkat Reddy cultivated the schedule
land during his lifetime, and after his passing, the Defendant's mother-
in-law continued this practice. The sale proceeds from the cultivation
were paid to the Defendant after deducting lease payments and other
expenses. Venkata Reddy did not allocate the other properties among
his family members during his lifetime. Consequently, following his
death, his family enjoyed those properties without any formal partition.
(b) The Defendant further contends that all of his father-in-law's
daughters are co-owners of the ancestral properties, as there are no
male issues. He asserts that his mother-in-law lacked exclusive rights to
allocate her husband's ancestral properties to any individual. Apart from
the schedule property, the remaining assets are to be partitioned
among the daughters. The Defendant also claims that the schedule
property is located in Gudipudi, under the jurisdiction of the Sattenapalli
Sub-Registrar's Office. However, he points out that the document
presented by the Plaintiff was executed at the Phirangipuram Sub-
Registrar's Office. This discrepancy suggests the document was forged
and created at the Plaintiff's marital home in Vemavaram, within the
Phirangipuram Mandal. He asserts that the document is fabricated and
does not legally bind the Defendants or other family members.
Additionally, the Pattadar Pass Book, Title Deeds, and cist receipts
issued in favour of his mother-in-law indicate that the ancestral
properties were never partitioned. Therefore, Defendant maintains that
he is the rightful owner of the schedule property and alleges that
Plaintiff's son is orchestrating the entire situation behind the scenes.
6. Based on the above pleadings in O.S.No.447 of 2001, the trial Court
framed the following issues:
1) Whether the 1st Defendant is in possession and enjoyment of the
suit land having got the same from his father-in-law Venkata Reddy
under a Gift Deed dated 01.04.1973?
2) Whether the Plaintiff is in possession and enjoyment of the suit land
and entitled for permanent injunction against the Defendants in
respect of the said land as prayed for?
3) To what relief?
7. During the trial, P.Ws.1 to 6 were examined on behalf of the Plaintiff
and marked Exs.A.1 to A.6 documents. Conversely, on behalf of the
Defendants, D.Ws.1 to 5 was examined and marked Ex.B.1.
8. After the trial concluded and both sides presented their arguments, the
trial Court decreed the suit in favour of the Plaintiff, granting a permanent
injunction restraining the Defendants and their men from interfering with the
Plaintiff's peaceful possession and enjoyment of the plaint schedule property
vide Judgment dated 03.06.2004. Dissatisfied with this Judgment and decree
in O.S.No.447 of 2001, the Defendants subsequently filed an appeal in
A.S.No.36 of 2004 before the 1st Appellate Court.
9. The 1st Appellate Court, being the final fact-finding Court, on scrutiny of
oral and documentary evidence adduced on behalf of both sides, had allowed
the Appeal without costs by its Judgment, dated 29.01.2009, Aggrieved by the
1st Appellate Court's Judgment passed in A.S.No.36 of 2004, the
Appellant/Plaintiff preferred the present Second Appeal.
10. I heard Sri A.S.C.Bose, learned Counsel representing the
Appellant/Plaintiff, and Sri Karri Murali Krishna, learned Counsel for the
Respondents/Defendants.
11. During the pendency of the Appeal, 1st Respondent/Defendant died.
Respondents 3 to 8 were brought on record as Legal Representatives of the
deceased-Respondent No.1 vide orders dated 30.01.2024 in I.A.No.03 of
2022.
12. Sri A.S.C. Bose, learned Counsel for the Appellant/Plaintiff, contends
that the trial Court failed to consider the documents submitted on behalf of the
Plaintiff adequately. He argues that the findings of the 1st Appellate Court
represent an apparent misapprehension and failure to appreciate the evidence
presented. Specifically, the 1st Appellate Court overlooked the late
Smt.Renukamma had acquired absolute rights over the property associated
with the Will dated 15.02.2001, and she held these rights at the time of her
death. Furthermore, the 1st Appellate Court failed to consider the legal
principle that, in a suit for injunction, only the possession of the property as of
the filing date is pertinent. Additionally, the 1st Appellate Court addressed
issues that had yet to be raised in the trial Court, thus exceeding its
jurisdiction and rendering a perverse judgment and decree without adequately
considering the central issue concerning the possession of the schedule
property.
13. Per contra, Sri Karri Murali Krishna, learned Counsel for the
Respondents/Defendants, contends that the 1st Appellate Court correctly
appreciated the facts of the case and reached a correct conclusion. The
reasons given by the 1st Appellate Court do not require any modifications.
14. Based on the Appellants' contentions, the following substantial
questions of law are involved in this Second Appeal:
1. Whether the Judgment and Decree of a Court can be held
as valid when the same is passed without considering the
evidence and material on record?
2. Can a Court decide the rights of the parties which subject is
not before it and which is the subject matter in another
suit?
3. Can a Court overlook the admitted evidence and even hold
against the admitted evidence of the party? Can a Court
can over look the settled proposition of law laid down by
the High Court and the Hon'ble Apex Court?
15. With the assistance of the learned Counsel for the respective parties, I
have gone through the Judgments, the pleadings and the evidence on record.
Before delving into the matter, since the Appeal is filed under Sec.100 of
C.P.C., this Court must see the scope of Section 100 of C.P.C.
16. In H.P.Pyarejan V. Dasappa (dead) by L.Rs. and others 1 , the
Hon'ble Supreme Court held that:
Under Section 100 of the Code (as amended in 1976), the
jurisdiction of the High Court to interfere with the judgments of
the Courts below is confined to hearing on substantial questions
of law. Interference with the finding of fact by the High Court is
not warranted if it involves re-appreciation of evidence (see
PanchugopalBarua v. Umesh Chandra Goswami (1997) 4 SCC
713) and Kshitish Chandra Purkait v. Santosh Kumar
Purkait (1997) 5 SCC 438)......
17. Considerations in Section 100 of C.P.C., arise only when there is a
substantial question of law and not mere such questions of law or one based
on facts. The learned Counsel for Respondent is right in placing reliance on
these rulings. However, it has to be borne in mind that in case of
misapplication of law and improper appreciation of evidence on record,
particularly the documentary evidence, it is the bounden duty of the High
Court sitting in Second Appeal to consider such questions which are
substantial in terms of law.
18. In the second Appeal, while exercising jurisdiction under Section 100 of
the C.P.C., this Court must confine itself to the substantial question of law
2006 (3) A.L.T. 41 (S.C.)
involved in the Appeal. This Court cannot re-appreciate the evidence and
interfere with the findings of the Courts below, where the Courts below
recorded the findings judicially by appreciating both oral and documentary
evidence. Further, the existence of a substantial question of law is the sine
qua non for the exercise of jurisdiction. This Court cannot substitute its own
opinion unless the findings of the Courts below are manifestly perverse and
contrary to the evidence on record.
19. The relationship, as delineated by both parties, is not in dispute. The
Plaintiff, Renukamma, is the eldest daughter of her parents, Renukamma and
Venkata Reddy, and she has five younger sisters. Among them, Sree Lakshmi
is the fourth daughter of her mother. The 1st Defendant is Sree Lakshmi's
husband. The Appellant/plaintiff asserts that her mother, Renukamma,
executed a registered Will on 15.02.2001 (Ex.A4), bequeathing the properties
listed in the plaint schedule and other assets to her. It is uncontested that the
Plaintiff's mother, Renukamma, passed away on 09.05.2001, as evidenced by
the death certificate (Ex.A5).
20. In contrast, the respondents/Defendants maintain that the 1 st
Defendant's father-in-law, Venkata Reddy, acquired the suit schedule property
and other assets through ancestral inheritance. They contend that the
schedule property was gifted to the 1st Defendant by his father-in-law vide Gift
Deed dated April 18, 1973 (Ex.B1). Since that time, the 1 st Defendant has
purportedly enjoyed continuous possession of the property, exercising
absolute rights therein.
21. It is not seriously contested that the schedule property and other
properties originally belonged to the Plaintiff's father, Venkata Reddy, and his
ancestors, with Venkata Reddy having passed away approximately 25 years
ago. The Plaintiff contends that following her father's death, his properties
were held in the possession and enjoyment of his wife until her death. Given
the Plaintiff's assertion that she acquired rights to the property through Ex.A4,
the registered Will, the onus rests upon her to substantiate this claim.
22. The Plaintiff, examined as P.W.1, Challa Rama Tulasamma, has
reaffirmed all assertions made in the plaint. She also examined P.W.4,
Lingareddy Prakash Reddy and P.W.6, Vuyyuru Ratnareddy, both of whom
are attestors, as well as P.W.5, Koppolu Satyanarayana Reddy, the scribe of
Ex.A4, the Will in question. Upon careful consideration of their evidence, the
trial Court pointed out several discrepancies and inconsistencies, ultimately
concluding that the Plaintiff failed to demonstrate the execution of Ex.A4
sufficiently.
23. Challenging the Judgment rendered by the trial Court, the
Appellants/Defendants filed A.S. No. 36 of 2004. In its Judgment, the learned
1st Appellate Court noted in paragraph 24 that "for all purposes, the plaintiff
failed to prove Ex.A4, the Will of Renukamma." After a thorough examination
of both the trial Court's and the 1st Appellate Court's judgments, this Court
concurs that both Courts arrived at a sound conclusion based on the evidence
adduced. This Court finds that the Plaintiff did not establish the execution of
Ex.A4, as claimed. The 1st Appellate Court further observed that, even if the
Will were considered proven, it would lack enforceability, given that
Renukamma herself possessed no title to the properties encompassed in
Ex.A4; these properties are ancestral holdings of Renukamma's husband.
This finding is well-supported by reasons. Both parties acknowledge that the
property rightfully belonged to Renukamma's husband and his ancestors.
Therefore, the 1st Appellate Court's determination that Renukamma lacked
any title, much less an absolute title, to the properties referenced in Ex.A4,
including the schedule property, stands unchallenged. Renukamma could not
convey any title to the Plaintiff regarding the plaint schedule.
24. As noted in the Judgment of the trial Court, while it concluded that the
Plaintiff failed to prove the execution of the Will by Renukamma, it
nevertheless accepted the Plaintiff's case by relying on Ex.A1, Pattadar Pass
Bookand Ex.A2, the Title Deed issued in favour of the Plaintiff's mother,
Renukamma. Additionally, Plaintiff referenced Ex.A3, a certified copy of the
1B form issued by the Mandal Revenue Officer (M.R.O.), which identifies
Renukamma as the Pattadar of the plaint schedule property. Plaintiff also
cited Cist receipts for the Faslies 1395, 1402, and 1404 to 1410, as evidenced
in Ex.A6.The trial Court relied on these documents to support the Plaintiff's
assertion that Renukamma had the property until her death. The 1st Appellate
Court observed that the ten Cist receipts in Ex.A6 were issued in
Renukamma's name and predated the suit. The 1 st Appellate Court further
acknowledged that Exs.A1 to A3 were also registered in Renukamma's name.
However, the 1st Appellate Court concluded that since Renukamma held no
title to the property, even if the Will were assumed to be valid, it would not
confer any rights to the Plaintiff. Consequently, the Court reasoned that if the
Plaintiff has no title over the plaint schedule property, she possesses no rights
concerning it. Without a right or title to the plaint schedule, the question of
invasion or threat to such rights by the Defendants is moot.
25. The 1st Appellate Court observed that a person without a title cannot
convey title to others. As previously noted, Defendants contended that the
father-in-law of the 1st Defendant executed a registered Gift Deed in his
favour. The 1st Appellate Court correctly pointed out that the 1st Defendant did
not take the necessary steps to prove Ex.B1, the Gift Deed, which is a
document requiring compulsory attestation. None of the attestors of Ex.B1
were examined, and the Gift Deed was not established in accordance with
Section 68 of the Indian Evidence Act. Additionally, during her cross-
examination, the 1st Appellate Court highlighted that P.W.1 claimed ignorance
regarding Ex.B1, stating that she was unaware whether her father executed
the Gift Deed in favour of the 1st Defendant on 18.04.1973. Notably, the 1st
Appellate Court referred to a specific question posed during her cross-
examination, where P.W.1 categorically stated that the 1st Defendant acquired
rights to the plaint schedule property from the date of the Gift. By relying on
this admission from P.W.1, the 1st Appellate Court concluded that her
testimony significantly undermined the Plaintiff's case and bolstered the 1 st
Defendant's claim regarding his rights to the plaint schedule through Ex.B1,
the Gift Deed.
26. Although the 1st Appellate Court noted that the Defendants failed to
prove Ex.B1, the Gift Deed as mandated by Section 68 of the Indian Evidence
Act, it nonetheless concluded that the 1st Defendant's rights and title to the
plaint schedule property were more robust than those of the Plaintiff. It is
noteworthy that, despite asserting that the 1st Defendant obtained possession
of the schedule property through Ex.B1, he did not provide any documentation
to substantiate his possession as of the date of the suit. In this context, the 1 st
Appellate Court rightly observed that the Defendants' failure to prove their
possession at the time of the suit does not automatically entitle the Plaintiff to
a permanent injunction, especially considering that she also failed to establish
her title and possession over the schedule property.
27. The 2nd Defendant was examined as D.W.2, Munnangi Appireddy. No
documentary evidence was placed to demonstrate D.W.2's cultivation of the
land in question as of the filing date of the suit as a lessee. D.Ws.3 to 5 are
none other than the Plaintiff's sisters. The 1 st Appellate Court also noted that
these witnesses lacked personal knowledge of the matter and appeared
merely to support the Defendants' case.
28. Upon reviewing the Judgment of the 1st Appellate Court, this Court finds
that it provided cogent and convincing reasons for setting aside the Judgment
and decree passed by the trial Court. After careful analysis of the evidence,
this Court concludes that both parties failed to substantiate their claims. The
Plaintiff did not demonstrate that she acquired possession of the schedule
property under the Will, nor that she had maintained continuous possession
thereof as a result of the said Will. Although the Plaintiff was able to show that
the schedule property was held in the possession of Renukamma until her
death, the 1st Appellate Court correctly observed that Renukamma's
possession could not be construed as possession by the Plaintiff, particularly
given that the Plaintiff failed to establish the execution of Ex.A4, the Will. In
the absence of this Will, the daughters of Renukamma may be entitled to a
share in the property. As previously noted, Renukamma's daughters came
forward in support of the Defendants case and testified as D.Ws.3 to 5.
29. As aptly observed by the 1st Appellate Court, since the schedule
property and other assets were not partitioned following the deaths of Venkata
Reddy or Renukamma, the Plaintiff and her five sisters are, for all intents and
purposes, considered coparceners with rights to shares in the ancestral
properties of the family, including the plaint schedule property. It has come to
the Court's attention that the wife of the 1st Defendant, Allu Sree Lakshmi, filed
a suit for partition in O.S.No.321 of 2004. It is further submitted that the
schedule property is not included in the subject matter of that suit, and the trial
Court granted a preliminary decree with costs in O.S.No.321 of 2004 for the
partition of the plaint schedule properties into six equal shares. In that suit, the
Plaintiff contended that her mother executed a Will in her favour and for the
other sisters, bequeathing the properties. However, the Plaintiff did not take
steps to prove the Will in that case. The Plaintiff subsequently appealed
against the orders in O.S.No.321 of 2004, which was also dismissed. It is
clear that the present suit schedule property is not part of the subject matter in
O.S.No.321 of 2004. As this case concerns a suit for permanent injunction,
both the trial Court and the 1st Appellate Court evaluated the evidence on
record to determine whether the Plaintiff could establish an incidental title to
the property. No issues were framed regarding the Will, and the Defendants
did not take steps to prove the settlement deed. Nevertheless, the 1st
Appellate Court considered the contentions from both sides concerning the
settlement deed, based on admissions made by P.W.1 in her testimony, even
though it was not established as required under Section 68 of the Indian
Evidence Act. Since both parties failed to present reliable evidence to support
their respective claims, and the evidence on record was insufficient to
determine that either the Plaintiff or the Defendants were in possession of the
property as of the date of suit, the 1st Appellate Court ultimately allowed the
Appeal.
30. The 1st Defendant has not elucidated how Renukamma came into
possession of the schedule property despite the execution of the Gift Deed in
his favour by Renukamma's husband, Venkata Reddy. Notably, it is not the
Defendants' assertion that they filed a suit against Renukamma to obtain
possession of the property. Furthermore, the Defendants in this suit have not
admitted or explained Renukamma's possession of the schedule property. As
previously indicated, it is not the Defendants' stand that Renukamma was to
have the property on his behalf following her husband's death. While the 1st
Defendant asserts that D.W.2 has been in possession of the property, no
evidence has been produced to support this claim.
31. Moreover, Renukamma's possession cannot be interpreted as exclusive
possession by either the Defendants or the Plaintiff; rather, it constitutes, at
best, joint possession shared among her daughters. It is important to note that
Plaintiff asserts absolute possession based on the Will, which has not been
proven. The 1st Defendant is expected to pursue remedies based on Ex.B1,
the Settlement Deed, by filing a suit for possession; however, it appears that
the 1st Defendant has not made such an effort.
32. This Court discerns no perversity in the Judgment rendered by the
learned 1st Appellate Court. The findings and reasoning provided by the 1 st
Appellate Court are consistent with established legal principles. The 1st
Appellate Court meticulously reviewed all evidence available on the record.
Consequently, the Judgment of the learned 1st Appellate Court is upheld. The
Appeal lacks merits in its entirety.
33. In these circumstances, finding no such questions that require
consideration in the Second Appeal, which is a much less substantial question
of law as pointed out for the Appellants, this Second Appeal has to be
dismissed.
34. However, it remains open to both parties to seek appropriate remedies
to establish their property rights and possession. The Plaintiff has failed to
demonstrate her possession as of the date of filing the suit based on the Will,
and she also needs to clarify how her mother acquired the right to bequeath
the schedule property to her. The 1st Appellate Court rightly dismissed the
suit. With prudent caution, the 1st Appellate Court also noted that this
dismissal does not imply that the respondent has been in possession of the
property. Upon reviewing the evidence on record, this Court concurs that the
respondent has also not adduced any evidence to substantiate his claim of
possession of the property as alleged in the suit.
35. As a consequence, this Second Appeal is dismissed without costs.
The Judgment and decree dated 29.01.2009 in A.S. No.36 of 2004 on the file
of learned Additional Senior Civil Judge Narsaraopet, is confirmed.
In this Second Appeal, miscellaneous applications pending, if any, shall
stand closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 05.11.2024
MS/SAK
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
SECOND APPEAL NO.414 OF 2009
Date: 05.11.2024
SAK
