Telangana High Court
Mangali Laxmamma Died Through Lrs ... vs Abdul Hameed R/O Kodangal M, ... on 13 June, 2022
Bench: M.Laxman
THE HONOURABLE SRI JUSTICE M.LAXMAN
SECOND APPEAL NO.419 OF 2006
JUDGMENT:-
1.
The present Second Appeal is arising out of the judgment
and decree dated 06.12.2005 in A.S.No.9 of 2005, on the file of
the Senior Civil Judge at Narayanpet, wherein and whereby, the
judgment and decree dated 21.02.2005 in O.S.No.40 of 1998,
on the file of Junior Civil Judge, Kodangal, which was filed for
cancellation of sale deed and recovery of possession, was
dismissed and such judgment was confirmed by the lower
Appellate Court. Hence, the present appeal is at the instance of
the appellants/plaintiffs.
2. For the sake of convenience, the ranks of the parties, as
were referred to in the suit, are maintained.
3. Originally, the plaintiffs filed suit for injunction and
subsequently, the suit was amended for recovery of possession.
It is the case of the 1st plaintiff that she is the absolute owner of
land admeasuring 35 guntas forming part of Survey No. 128/AA
(hereinafter be referred as "suit schedule property") situated in
Indanoor Village and she inherited such property from her
father Late Mangali Papanna. The 1st plaintiff died during the
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pendency of the suit and plaintiffs 2 & 3 were brought on record
as legal heirs. According to them, they are in possession of the
suit property and after filing of the suit, they were dispossessed.
It is also their claim that the sale deed dated 25.06.1982 was
forged by impersonating the original plaintiff and her husband.
As such, they filed the present suit.
4. The case of the defendant is that, he had purchased the
suit land from the 1st plaintiff through the registered sale deed
document No.870 of 1982, dated 25.06.1982 and ever since his
purchase, he is in possession of the said suit schedule property.
The plaintiffs, taking advantage of some wrong and un-mutated
interest, tried to deny his title and possession with false
allegations and filed suit for injunction and later converted into
suit for recovery of possession by seeking cancellation of
registered sale deed. The trial Court framed the following issues
along with an additional issue which are as follows:-
(i) Whether the registered sale deed bearing
No.870/82, dated 25.06.1982 is forged document?
(ii) Whether the plaintiffs are entitled to the relief of
cancellation of registered sale deed dated
25.06.1982?
(iii) Whether the plaintiffs are entitled to the relief of
declaration of title to the extent of 0.35 guntas in
Sy.No.128/AA or 128/EE?
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(iv) Whether the plaintiffs are in possession of 0.35
guntas on the date of filing the suit?
(v) Whether the defendant interfered with the
possession of plaintiffs?
(vi). Whether the plaintiffs are entitled to the relief of
perpetual injunction?
(vii) To what relief?
ADDITIONAL ISSUE:-
(i) Whether the plaintiffs are entitled for recovery of
possession of suit lands as prayed for ?
5. The plaintiffs, to support their case, examined PWs 1 to 4
and relied upon Exs.A1 to A26. The defendant examined DWs 1
to 4 and relied upon Exs.B1 to B13.
5A. The trial Court, after appreciating the evidence on record,
found that the plaintiffs failed to establish their case of forgery
of registered sale deed under Ex.B1 and also failed to discharge
their burden of proof to establish that the sale deed is forged
one. Therefore, the suit of the plaintiffs filed for cancellation of
registered sale deed and recovery of possession by declaring the
plaintiffs as the owners, was dismissed.
6. The plaintiffs filed Appeal Suit before the lower Appellate
Court aggrieved by the judgment and decree of the trial Court
and the lower Appellate Court also rendered the same result.
Hence, the present Second Appeal.
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7. Heard both sides.
8. At the time of admission, the following substantial
questions of law are framed. They are hereunder:-
" (i) Both the Courts below erred in law while not
comparing the thumb impression of the first plaintiff in
Ex.B-1 with the admitted thumb impressions of the first
plaintiff available on record in the vakalath and on the
plaint and not recording the finding in respect of the
plaintiffs case with regard to assertion of Ex.B1 as
forged document and
(ii) Whether the Courts below were right in
dismissing the suit filed by the appellants/plaintiffs
while holding that the burden of proving Ex.B-1 as
forged document is on the plaintiffs/appellants?"
9. The facts which are not in dispute are that, originally, the
1st plaintiff was the owner of the suit schedule land. The
plaintiff's case is that she has not executed any sale deed and
the sale deed under Ex.B1 was fabricated. The defendant case
is that the 1st plaintiff executed sale deed and her husband was
the attestor apart from other witnesses. The lower Court as well
as the Appellate Court found that the burden to prove the
forgery of the sale deed under Ex.B1 was on the plaintiffs and
such burden was not discharged and no proof is placed on
record to show that plaintiff No.1 was impersonated by the
defendant in obtaining the sale deed.
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10. On the contrary, both the Courts have taken note of the
fact that the defendant had examined DWs 2 & 3, who are the
attestors and they clearly supported the execution of sale deed
by the deceased-plaintiff. Both Courts concurrently held that
the burden to prove forgery of the sale deed was not discharged.
This Court feels such findings of both the Courts are in
accordance with the established principles of burden of proof
and such findings requires no interference.
10-A. It is the plaintiffs who failed to take steps to compare
the admitted thumb impression and disputed thumb impression
on the sale deed. This burden is on the plaintiffs and the
plaintiffs have not chosen to send the disputed document for
comparison to obtain opinion of the expert. Such burden
cannot be placed on the defendant. Both the Courts below have
rightly held that the plaintiffs failed to establish the case of
forgery. Therefore, they have rightly come to a conclusion in
dismissing the suit and appeal. Such findings do not require
any interference.
11. In the result, the Second Appeal is dismissed. In the
circumstances, there shall be no order as to costs.
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12. Miscellaneous petitions, if any pending, shall stand
closed.
_____________________
JUSTICE M.LAXMAN
Dt.13.06.2022
ysk
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S.A.NO.419 OF 2006
THE HONOURABLE SRI JUSTICE M.LAXMAN
SECOND APPEAL NO.419 OF 2006
Dt.13.06.2022
ysk
