Telangana High Court

Sri K.David, vs Sri S.Srinivas, on 12 September, 2022

Bench: G.Anupama Chakravarthy

       HIGH COURT FOR THE STATE OF TELANGANA

                SECOND APPEAL No.85 of 2014
Between:

K.David.
                                     ...Appellant
        And

S. Srinivas & another.
                                     ...Respondents

         JUDGMENT PRONOUNCED ON : 12.09.2022


     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

1.      Whether Reporters of Local newspapers     :   Yes
        may be allowed to see the judgment ?

2.      Whether the copies of judgment may be     :   Yes
        marked to Law Reporters/Journals ?

3.      Whether Their Lordships/Lordship wish to :    Yes
        see the fair copy of the judgment ?



                          _________________________________
                          G. ANUPAMA CHAKRAVARTHY, J
                                 2
                                                             GAC, J
                                                   S.A.No.85 of 2014



 +HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.85 of 2014

                         DATE: 12.09.2022
Between :

K. David.
                                    ...Appellant
       And

S. Srinivas & another.
                                    ...Respondents

For Appellant             :    Mr.B.Venkateswara Rao,
                               Advocate.

For respondent            :    None appeared.


< Gist:

< Head Note:

? CITATIONS :

(2013) 2 SCC 606



C/15
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                                                                   GAC, J
                                                         S.A.No.85 of 2014



     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.85 of 2014
JUDGMENT :

This appeal is arising out of the judgment dated 14.08.2012

in A.S.No.105 of 2010 on the file of Principal District Judge,

Ranga Reddy at L.B.Nagar, Hyderabad, confirming the judgment

and decree dated 18.01.2010, passed in O.S.No.1369 of 2009 on

the file of VIII Additional Senior Civil Judge, R.R.District.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court.

3. The appellant is the plaintiff. The appellant has filed the suit

for cancellation of Agreement-cum-GPA, dated 04.12.2003 vide

document bearing No.9090/03 and for perpetual injunction in

respect of the plaint schedule property bearing Plot No.29,

admeasuring 300 square yards, in Sy.No.52 of Bandlaguda Jagir

village of Rajendranagar Mandal, R.R. District.

4. The record reveals that despite receipt of summons,

defendant Nos.1 and 2 were absent and set ex parte. On behalf of

GAC, J S.A.No.85 of 2014

the plaintiff, PW-1 was examined and Exs.A-1 to A-5 were

marked. The trial Court gave a finding that except the oral

evidence of PW-1 and Exs.A-1 to A-5, there is no other proof to

show that the alleged registered document was not executed by the

plaintiff and as no steps were taken by the plaintiff to prove the

same, the suit was dismissed.

5. Being aggrieved by the same, the plaintiff filed A.S.No.105

of 2010 before the Principal District Judge, Ranga Reddy. Pending

appeal, the plaintiff has filed a petition under Order 41 Rule 27

vide I.A.No.1500 of 2012 for additional evidence and the first

appellate Court allowed the said I.A. and Exs.A-6 to A-8 were

marked. Later, the first appellate Court has framed the following

point for consideration:

"Whether the plaintiff is entitled to the relief as prayed for or whether the judgment and decree refusing the relief is liable to be sustained ?"

6. The first appellate Court, after considering the entire oral

and documentary evidence on record, has come to a conclusion that

the plaintiff is not entitled for the relief of cancellation of the

registered instrument and therefore, dismissed the appeal.

GAC, J S.A.No.85 of 2014

7. Being aggrieved by the orders of the first appellate Court,

the present Second Appeal is filed raising the following substantial

questions of law:

"i) Whether the judgments and decrees of the courts below are not illegal in view of placing negative burden on the plaintiff ?

ii) Whether the findings of both the courts below, while dismissing the suit and appeal, are not perverse in the teeth of the abundant oral and documentary evidence filed on behalf of the plaintiff particularly when the defendants did not contest the suit at all ?

iii) Whether the appreciation of the evidence by the courts below in the facts of the case is not contrary to the law laid down by the Hon'ble Supreme Court in the judgment reported in [(2013) 2 SCC 606] ?"

8. Heard arguments on behalf of the appellant and perused the

entire record.

9. The learned counsel for the appellant urged that he is a

literate and is in the habit of making signatures on the documents

but Ex.A-1/the Agreement of sale-cum-GPA contains the thumb

impression which is not at all belonging to him and the trial Court

ought to have cancelled Ex.A-1 on the said ground. It is further

GAC, J S.A.No.85 of 2014

urged by the counsel for the appellant that the Courts below did not

consider the fact that the photograph affixed on the certified copy

of the Agreement of sale-cum-GPA does not belong to him when

compared to the photograph which is on Ex.A-8 and ought to have

passed an ex parte decree in his favour.

10. Record reveals that initially Exs.A-1 to A-5 were marked by

the trial Court and Exs.A-6 to A-8 were marked by the first

appellate Court. It is relevant to mention that Exs.A-6 to A-8 are

the ration card, identity card issued by Tirumala Enterprises and

Aadhaar Card respectively, which contain the photograph of the

plaintiff. Ex.A-1 is the certified copy of the Agreement-cum-GPA

and Exs.A-2 and A-3 are the encumbrance certificates of the suit

schedule property and Ex.A-4 is the sale deed of the suit schedule

property, dated 25.04.1995 and Ex.A-5 is the employer certificate.

11. As per the oral evidence of the plaintiff, the suit schedule

property was purchased by him in the year 1995 and he obtained a

loan of Rs.5,000/- from the 1st defendant in the year 2003 and

handed over the title deed of the suit schedule property to the

GAC, J S.A.No.85 of 2014

defendant and inspite of discharging his debt in the year 2003, the

title deed was not returned to him.

12. It is important to note that the pleadings and evidence of

PW-1 disclose that the plaintiff kept quiet for six years and in the

month of June 2009, he obtained Encumbrance Certificate and

came to know that the suit schedule property was standing in the

name of the 1st defendant basing on Ex.A-1, and after coming to

know about Ex.A-1, he filed the suit for its cancellation. Though it

is the specific contention of the plaintiff that he did not execute

Ex.A-1 and it is the outcome of impersonation/forgery/fabrication,

he did not prove the same before the Courts below. There is no

oral or documentary proof before the Courts below that plaintiff

obtained loan of Rs.5,000/- from the 1st defendant and handed over

the title deed and later he repaid the loan but did not receive the

original title deed. Except the affidavit in lieu of his chief

examination, there is no other oral or documentary evidence to

corroborate the said fact. Proper explanation is also not given by

the plaintiff as to why he kept silent for a period of six years from

2003 to 2009 though the defendant did not return the title deed. In

GAC, J S.A.No.85 of 2014

the absence of proper oral or documentary evidence, the trial Court

or the first appellate Court cannot grant an ex parte decree in

favour of the plaintiff though the defendants were set ex parte. The

plaintiff has not taken any steps to compare his thumb impression

with that of the thumb impressions found on Ex.A-1 to prove that

the thumb impression does not belong to him. Furthermore, the

Courts cannot give any finding basing on the photographs, without

there being any pleadings or evidence.

13. Section 101 of the Indian Evidence Act reads as under:

"101. Burden of proof : Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

14. In order to support his contentions, the learned counsel for

the appellant has relied on the judgment of the Apex Court in Gian

Chand & Brothers v. Rattan Lal Alias Rattan Singh1, but the

said judgment is not applicable to the facts of the case on hand, as

in the present case, the defendants were set ex parte, whereas, in

(2013) 2 SCC 606

GAC, J S.A.No.85 of 2014

the aforesaid judgment, the defendants have contested the case.

Relevant para Nos.18 to 21 of the said judgment read as under:

"18. It is well settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. In Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558], it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto. The purpose of referring to the same is that if the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. But the question would be what would be the consequence in a situation where the signatures are proven and there is an evasive reply in the written statement and what should be construed as substantiating the assertion made by the plaintiff.

19. In Krishna Mohan Kul v. Pratima Maity and others [(2004) 9 SCC 468], it has been ruled thus: -

"12.....When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation."

20. In Shashi Kumar Banerjee and others v.

Subodh Kumar Banerjee since deceased and after him his legal representatives and others [AIR 1964 SC 529], a Constitution Bench of this Court, while dealing with a mode of proof

GAC, J S.A.No.85 of 2014

of a will under the Indian Succession Act, observed that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.

21. In A. Raghavamma and another v. A.

Chenchamma and another [AIR 1964 SC 136], while making a distinction between burden of proof and onus of proof, a three-Judge Bench opined thus: -

"There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.""

15. As per the ratio laid down in the aforesaid judgment, it is for

the plaintiff to prove his case. As already stated supra, except PW-

1, there is no other evidence on record and plaintiff has not

discharged his burden.

16. The substantial questions of law raised by the appellant

relate to the facts of the case but not to law and both the Courts

GAC, J S.A.No.85 of 2014

have given a concurrent finding on facts. The scope under Section

100 of CPC is very limited and in the absence of any substantial

question of law, this Court cannot interfere with the findings of fact

by both the Courts below as there is no irregularity or illegality.

Moreover, there is no necessity to interfere with the orders of the