The suit is filed for partition and separate possession of the share of plaintiff in the suit schedule property with a direction to defendants 1 & 2 to put the plaintiff in possession of her 1/3rd share in the property. = Adverse possession needs to be pleaded and proved with certainty. The Courts will have to take the date on which the possession turned hostile and the manner in which the possession was hostile vis--vis the true owner. The possession should be open continuous and hostile. the finding of the lower Court is not very clear and is not in accordance with law. In the absence of evidence, the Court should not have entered into of this area of controversy, because adverse possession is a matter of pleading and proof.- The findings of the Courts in the previous litigation about Pushpa were not proved to be incorrect or wrong in any manner. mere non-examination of Defendant No.3/Pushpa is not fatal to this case.- This Court also does not find anything irregular or wrong in the finding that defendant No.3/Pushpa is the daughter of Yallapi Sivaiah. This Court holds that the present plaintiff is not the wife of late Yallapi Sivaiah. She cannot therefore maintain or pursue this litigation.
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
A.S.No.2284 of 1998
16-11-2017
Yallapi Rajamma, @ Sarojanamma, Appellant/Plaintiff
Paditham Narayana Rao and 2 others. Respondents/Defendants
Counsel for the appellant: M.P. Chandramouli
Counsel for the Respondents: P. Ganga Rami Reddy
<Gist:
>Head Note:
?Cases referred:
1. AIR 1975 SC 1534
2 AIR 1981 SC 2235
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
A.S.No.2284 of 1998
JUDGMENT:
This appeal is filed against the judgment and decree
passed in the suit O.S.No.120 of 1988 on the file of the
Additional Sub-ordinate Judge, Guntur, dated 15.04.1997.
2. The unsuccessful plaintiff is the appellant. As this
is a first appeal and the plaintiff is the appellant, the parties
are described as they are arrayed in the suit only.
3. The plaintiff in the suit is Yallapi Rajamma @
Sarojanamma, w/o. Yallapi Sivaiah. She filed the said suit
O.S.No.129 of 1988 against P. Narayana Rao, R. Krishnaiah
and M. Pushpa.
4. The suit is filed for partition and separate
possession of the share of plaintiff in the suit schedule
property with a direction to defendants 1 & 2 to put the
plaintiff in possession of her 1/3rd share in the property.
The plaintiff claims to be the wife of one Yallapi Sivaiah as
described in para-4 of the plaint.
5. One Yallapi Mallaiah was the father and the head
of joint family consisting of himself and three sons Yallapi
Veera Badraiah, Yallapi Sivaiah and Yallapi Nagaraju.
As Yallapi Mallaiah died intestate, the plaintiff states that her
husband-Sivaiah acquired 1/3rd share in the plaint schedule
property. As per the averments of the plaint, the plaintiff and
Yallapi Sivaiah begot a daughter by name Yallapi Pushpa.
As the said Pushpa and her husband-Yaliah died, her
husband entire 1/3rd share in the property devolved on the
plaintiff. Thus she became entitled to 1/3rd share in her own
right.
6. As per the plaint averments, after the death of her
husband and daughter, the plaintiff sold her 1/3rd share of
property to one B. Subbaiah on 05.05.1970. Thereafter, she
migrated elsewhere and lost touch with the property and her
home town. She states that her purchaser-B. Subbaiah
instituted a suit O.S.No.89 of 1977 for partition in the District
Munsif Court, Venkatagiri for 1/3rd share in the suit schedule
property. He lost the suit and filed an appeal in A.S.No.27 of
1980, which was also dismissed. He further filed Second
Appeal No.904 of 1984 on the file of this Court, which was
also dismissed. Coming to know all these facts, she filed the
present suit for partition and for possession of her 1/3rd
share and her specific case is that her daughter died long ago
and that therefore, the third defendant in the said cases (the
suit, first appeal and second appeal) is an imposter. She now
seeks partition in her own right, as the Courts held that
B. Subbaiah is not entitled to any share in the property,
because the sale deed dated 05.06.1970 was signed by an
imposter and not by the wife of Sivaiah.
7. Defendants 1 & 2 are the purchasers of the
property. The defendants filed a written statement and denied
all the allegations. They plead that defendant No.3 in the suit
is not an imposter and is the daughter of Yallapi Sivaiah and
Rajamma. They support the judgments passed in the suit
O.S.No.89 of 1977 and state that the actual wife of Sivaiah by
name Sarojanamma left the family house more than 30 years
prior to written statement as she was mentally deranged.
The first defendant asserts that defendant No.3, who is his
vendor, is the real daughter and only available heir of Yallapi
Sivaiah. He questions the execution of the sale deed in 1970
on this ground and also on the ground that the sale deed was
registered in Nellore, but the property was situated in the
Venkatagiri. The defendants case is that the present plaintiff
is not the wife of Yallapi Sivaiah nor she is the mother of
defendant No.3. She does not have any right of the property
and the plaintiff is an imposter set up by the said
B. Subbaiah, who was the unsuccessful plaintiff in the earlier
suit. This is the crux of the defence.
8. After considering the entire matter, the lower
Court by the impugned judgment dismissed the suit holding
that the plaintiff failed to prove that she is the widow of
Yallapi Sivaiah, consequently, all other reliefs flowing from
this were negatived. The purchase of the property by
defendants 1 & 2 in the suit from defendant No.3 and others
was upheld. Hence, the suit was dismissed. 3 witnesses
were examined for the plaintiff before the lower Court and 5
witnesses were examined for the defendants. Exs.A.1 to A.10
were marked in favour of the plaintiff and Exs.B.1 to B.24
were marked in favour of the defendants.
9. The essential question, therefore, that falls for
consideration in this appeal and on which Sri M.P.
Chandramouli, learned counsel for the appellant/plaintiff and
Sri P. Ganga Rami Reddy, learned counsel for the
respondents/defendants concentrated on is point No.2-
whether the plaintiff is the wife of Yallapi Sivaiah.
10. The learned counsel for the appellant/plaintiff
points out that the lower Court erred in relying upon the
alleged discrepancies in the dates and that the lower Court
has given too much credence and weight to the discrepancies
in the dates. As per the appellant, the defendants had
admitted that Sarojamma is the wife of Yallapi Sivaiah and
that PW.1 married to Sivappa, as the averments in paras 4 &
5 of the plaint are not denied. He also argued that an
admission need not be proved and best evidence was ignored
by the lower Court.
11. Before going into the matter, the entirety of the
written statement has to be seen. It is a settled rule of
interpretation, particularly of pleadings that the entire
pleading should be seen and a stray line should not be
highlighted and reliance placed thereon. A reading of the
entire written statement makes it clear that defendant No.1
denied that the present plaintiff is the wife of Yallapi Sivaiah.
He asserts that defendant No.3/Pushpa, the daughter of
Yallapi Sivaiah and Sarojanamma is still alive. He also asserts
that the current litigation is set up by B. Subbaiah, who failed
in the earlier round of litigation. Viewed in totality, this is the
major defence. Therefore, the lower Court had to examine the
fundamental issue whether the present plaintiff is the wife of
Yallapi Sivaiah.
12. It is an admitted fact that there is no documentary
proof of the marriage of Sivaiah with Sarojanamma. There are
no photographs or other evidence of the said marriage.
Neither is there any documentary proof to show the birth of a
child or the death of child-Pushpa. No documentary evidence
is filed to show where the said Sarojanamma was residing all
these years prior to the litigation. Therefore, this Court like
the lower Court will have to sift the details available to decide
whether there is a probability that the present plaintiff is the
wife of late Yallapi Sivaiah and if the daughter of Sivaiah and
Sarojanamma called Pushpa had died in her minority.
The following passage from the well known judgment of
Dr. N.G. Dastane v. Mrs. S. Dastane is relevant for this case:-
The normal rule which governs civil proceedings is that a fact can be said to
be established if it is proved by a preponderance of probabilities. This is for
the reason that under the Evidence Act, Section 3, a fact is said to be proved
when the court either believes it to exist or considers its existence so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists. The belief
regarding the existence of a fact may thus be founded on a balance of
probabilities. A. prudent man faced with conflicting probabilities concerning
a fact-situation will act on the supposition that the fact exists, if on weighing
the various probabilities he links that the preponderance is in favour of the
existence of the particular fact. As a prudent man, so the court applies this
test for finding whether a fact in issue can be said to be proved. The first
step in this process is to fix the probabilities, the second to weigh them,
though the two may often intermingle. The impossible is weeded out at the
first stage, the improbable at the second. Within the wide range of
probabilities the court has often a difficult choice to make but it is this
choice which ultimately determines where the preponderance of probabilities
lies. Important issues like those which affect the status of parties demand a
closer scrutiny than those like the loan on a promissory note.
(emphasis supplied)
13. The registered sale deed executed by the plaintiff
in favour of B. Subbaiah, which is the genesis for both the
litigations, is marked as Ex.A.2 and it is dated 05.06.1970.
This Document No.1021 of 1970 was registered on
05.06.1970 and is executed in favour of B. Subbaiah by Smt.
Rajamma @ Sarojanamma, wife of Sivaiah. The certified copy
of document is marked as Ex.A.2 and the original is marked
as Ex.A.7. The present plaintiff states that she executed this
document as per the recitals of this document. As per the
said document, the husband of the executant died eight years
prior to the execution of this document and that thereafter,
the executant and her daughter became entitled to the
husbands share and after the death of her daughter, the
executant became the owner of the entire property. Therefore,
she is executing the sale deed conveying the property in
favour of B. Subbaiah. This document as mentioned earlier is
the genesis for this litigation and the contents of this
document go to show that Sivaiah, the husband of the
executant died in 1962 and the daughter also died prior to
1970.
14. As noticed by the lower Court, the subsequent
evidence does not support either of these dates. The witness
was called for chief examination and was examined on
12.09.1994. According to her evidence in chief, her husband
died about 25 years ago (1969). She also states that her
marriage with Sivaiah took place 25 years ago (1968-69). She
states that she sold her share in the property to B. Subbaiah,
and the registration extract is marked as Ex.A2. She identifies
that B. Subbaiah is in the Court hall that day. She states in
her chief that after Ex.A.2 she resided for 4 or 5 years
thereafter in Srikalahasti then some disputes arose between
herself and her mother and she went away along with her
daughter to Chittoor. Thereafter, she left her daughter and
went to Bangalore. Therefore, as per the chief examination of
PW.1 itself, the daughter was alive by the date on which she
executed Ex.A.2 and along with her daughter she went to
Chittoor, where she left her daughter with some unknown
people. 4 to 5 years after 05.02.1970 places this movement
from Srikalahasti to Chittoor in the year 1974-75. In her last
line of chief examination, she says that my daughter-Pushpa
passed away at Chittoor 25 years ago (1969).
15. In her cross-examination, she states that she lived
with her husband for 5 years after her marriage at
Venkatagiri in the suit house. So, if her marriage was
performed in 1969-70, according to the cross-examination,
she lived there till 1974/75.
16. She also states in the further cross-examination
that there is no proof for her daughters birth at Venkatagiri.
She states that her daughter was aged about 5 years when
she took her to Sivaiah and from there to Chittoor. This
movement to Srikalahasti and Chittoor took place after Ex.A.2
was executed in February, 1970. Therefore, it leads to further
doubt about the veracity of the claim. The last line of the
cross-examination and before the re-examination is to the
following effect:
B. Subbaiah is conducting this litigation.
17. PW.2 claiming to be the step-mother of the present
plaintiff was examined as a witness to prove the plaintiff case.
She states that she brought PW.1 and got her married to
Sivappa. She states in her chief examination as follows:
my daughter (PW.1) has sold away to one Subbaiah, the
share fell to her husband and the sale consideration was
handed over to me. The sale consideration sum was
Rs.3,000/-. PW.1 stayed with us for some time and later
she left for Bangalore along with her daughter without
intimating me due to some disputes in the family.
18. This again shows that the daughter was alive after
execution of the sale deed in favour of B. Subbaiah (Ex.A.2 &
A.7). In her cross-examination, PW.2 admits that the
marriage was performed 25 years ago and that PW.1 lived
with her husband for 5 years after the marriage. Therefore,
even according to this witness, the marriage was performed in
1969 and Sivaiah was alive for 5 years i.e., till 1974. As per
the cross-examination, the daughter-Pushpa was aged about
3 years when Sivappa died. Therefore, the daughter must
have been born in 1971.
19. Even PW.3, who is the stated step-brother, states
that after the demise of Sivappa, Rajamma was at Venkatagiri
for one year before she is coming to his house along with her
daughter. He admits in his cross-examination that the
daughter of PW.1 was aged about 1 years, when PW.1 came
to Sivaiah after her husbands death. This contradicts in the
evidence of PW.2 and gives another set of dates.
20. It was the argument of the learned counsel for the
appellant/plaintiff about these witnesses that in the chief
examination of PW.1 it was asserted by her that Gouramma
(her step-mother) has 6 daughters and 2 sons and that the
names of sons and daughters were given very clearly in the
chief examination. The names of uncles etc. were also given
in the chief examination. He argued that the witness who
spoke about the family history and genealogy has not been
cross-examined at all on the relationship and that therefore,
the evidence should be treated as admitted. Hence, he argues
the evidence of PW.2 and PW.3 should be given due weight.
21. On the contrary, it is the reply of the learned
counsel for the respondents/defendants that this genealogy
or family tree is not very relevant for the crucial issue on
hand viz., whether the present plaintiff is the wife of Yallapi
Sivaiah or not. The family tree or details are not pleaded in
the plaint and hence the learned counsel stated that in the
absence of pleading, no evidence can be considered. There is
force and substance in this contention.
22. It is the fact that the burden is squarely on the
plaintiff to prove this fact. The plaintiff will have to establish
that she is the actual wife of Yallapi Sivaiah. As a plaintiff
seeking to establish her right, one has to prove her case.
Therefore, this Court is of the opinion that the failure to cross
examine of PW.1 on these issues of genealogy is not very
relevant, as held by Honble Supreme Court of India in
Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar
(Dead) by Lrs. and Others . The other evidence on this issue is
enough to decide the point and there is no need to draw any
adverse inference on the failure to cross examine.
23. The discrepancies in the date and the fact that
other than the oral evidence of PWs.2 & 3, there is no other
documentary proof or other evidence to establish that the
present plaintiff is the wife of Yallapi Sivaiah leads to any
amount of doubt about her identity itself. Her version is
riddled with inconsistencies and does not inspire confidence.
24. The learned counsel for the appellant/plaintiff also
laid stress on the fact that DW.1 entered into an agreement
with PW.1 on 06.09.1994 for Rs.7,000/- and the present
plaintiff agreed to relinquish her rights in the schedule
property. Two demand drafts were also obtained to be paid to
her, which were marked as Exs.B.19 and 20. The learned
counsel, therefore, argued that the defendant himself
recognized the right of the plaintiff and her status as the wife
of Yallapi Sivaiah. A reading of the evidence, however, goes to
show that on 06.09.1994 the plaintiff came to the house of
DW.1 and demanded Rs.7,000/- to relinquish her rights.
Thereafter, the relinquishment deed was executed by the
present plaintiff, but the same was not registered and the
plaintiff did not turn up for registration at the Sub-Registrars
office. The said document was presented before the District
Registrar for registration. DW.1 also deposed that the plaintiff
in O.S.No.89 of 1977 prevented her attending the registration.
In the cross-examination on this aspect he states though the
plaintiff is not Rajamma and though according to us, she is in
imposter, we have taken the said document dated 07.09.1994
only to get rid of the litigation, which was stated by the
plaintiff and to look after our business. He also admits that
in the document dated 07.09.1994, it is mentioned that in
view of the mediation and compromise, the plaintiff should
get her suit dismissed. This explanation which was accepted
by the Court is a plausible explanation. This Court is also of
the opinion that the lower Court rightly believed in this
explanation that because of the chequered history of this
litigation and the long delay, the compromise was affected.
The deed in question of September 1994 is however not in the
evidence, as the same was not registered. If the evidence of
DW.1 is ready in his entirety, it leads to the conclusion that
the said document was entered into with a view to settle the
matter and to get rid of the current litigation. The property in
question has been in litigation since 1977 till date, therefore,
it is not unthinkable that compromise was sought to be
effected in 1994. Therefore, the lower Court rightly believed
that the defendants did not recognize the rights of the present
plaintiff.
25. Viewed from all the above and in view of the
alleged glaring discrepancies in the documentary and oral
testimony of the plaintiff and her witnesses, plus the fact that
B. Subbaiah is conducting all the litigations, it is clear that
the plaintiff did not discharge the burden of proof that she is
the original or real wife of Yallapi Sivaiah and that she has a
right to file and maintain the suit. This court is of the
opinion that she has been set up as the wife late Yallapi
Sivaiah. The contents of Ex.A.2/A.7 itself dilute her entire
story. When no direct evidence is available, contemporaneous
document that throw light on the issues have to be
considered and looked into. Therefore, point No.2 whether the
plaintiff is the wife of Yallapi Sivaiah is answered against the
plaintiff. The lower Court was also right in this finding.
26. The other important question is point Nos.3 & 4,
whether the only daughter of Yallapi Sivaiah is dead or is still
alive and whether defendant No.3 is the daughter of Yallapi
Sivaiah.
27. These two points go together and as rightly
noticed by the lower Court, no credible evidence about the
birth or death of Pushpa is available. The recitals of the
registered document Ex.A.7 are to the effect that she died
before Ex.A.7 was executed. The evidence of prime witness
(the plaintiff/PW.1) is that after execution of Ex.A.7, she went
to her brothers house at Chittoor and later went to
Bangalore. She does not know with whom she left her only
child and when that child died or how the child died.
Therefore, the lower Court rightly came to the conclusion that
the contention of the plaintiff that her child died is
improbable and untrue. As a corollary to this, the question to
be decided whether defendant No.3 is the daughter of Yallapi
Sivaiah. The evidence of defendants in this issue is clear.
They have deposed that Pushapa, the third defendant is the
daughter of Yallapi Sivaiah. They deposed that DW.3 was
living in Madras and that her marriage was performed by
defendants themselves. Even as rightly noticed by the lower
Court in the plaint, the age of Pushapa is not mentioned by
the plaintiff in the plaint. It is also important to note that in
the previous round of the litigation, the courts up to this High
Court have held that defendant No.3/Pushpa is the daughter
of Sivaiah. The plaintiff herself filed the certified copies of
orders passed in SA No.904 of 1984 and in CMP No.1222 of
1988. This Honble High Court also noticed that defendant
No.3/Pushpa is still alive and that both the courts below
found that the defendant No.3 is the daughter of Yallapi
Sivaiah.
28. To contradict these judgments, the plaintiff has
not filed any contrary evidence. Her conduct as a person and
as a mother is noticed by the lower Court and no explanation
was given by her to justify her conduct of leaving a girl child
behind in the house of some unknown persons. By filing a
copy of the order passed by this High Court (Ex.A.8), she
proved the fact that she is aware of the finding that Pushpa in
that suit has been held to be the daughter of Yallapi Sivaiah.
Nothing contrary has been pointed out nor is any evidence
filed to show that the findings of two courts and of the
Honble High Court in SA No.904 of 1984 on this matter is
incorrect. No evidence has been filed by the present plaintiff
to show that Pushpa in that earlier suit is not the Pushpa
(defendant No.3) of this suit. In the absence of any other
evidence, this Court is of the opinion that the plaintiff failed
to prove that defendant No.3 is not the daughter of Yallapi
Sivaiah. Therefore, the finding of the lower Court on point
Nos.3 & 4 is correct. This Court holds that the daughter of
Yallapi Sivaiah is alive and the defendant No.3 is the
daughter.
29. Issue No.3 is another issue on which arguments
were advanced. According to the defence, they have perfected
the entitlement by adverse possession from 1976 onwards.
30. The learned counsel for the appellant/plaintiff
argued that by pleading adverse possession, the defendants
have recognized the title of the plaintiff. The learned counsel
contends that adverse possession can only be raised against
the true owner and that once the defendants plead adverse
possession, they impliedly recognise the title of the plaintiff
which was extinguished by open hostile possession of the
defendants. It is true that there is a plea in the written
statement, but the oral evidence of defendants does not show
that they have given any evidence to prove adverse
possession. The oral evidence is absolutely silent about the
aspect of adverse possession.
31. Adverse possession needs to be pleaded and
proved with certainty. The Courts will have to take the date
on which the possession turned hostile and the manner in
which the possession was hostile vis--vis the true owner.
The possession should be open continuous and hostile.
The evidence in this case on adverse possession and is totally
lacking. The finding of the lower Court on this issue is
therefore, not correct. The lower Court examined the issue
vis--vis the sale to B. Subbaiah under Ex.A.2 & A.7,
therefore, the Courts came to the conclusion that even if the
plaintiff was the wife of Sivaiah, she stated that she delivered
possession to B. Subbaiah and she lost her possession.
The lower Court below felt that B. Subbaiah was not in
possession as a third party purchaser and the suit he filed
was for partition and separate possession. Therefore, the
Court held that from 1970 onwards, neither B. Subbaiah nor
his vendor were in possession. The court below, therefore,
held that even if the plaintiff was the wife of Yallapi Sivaiah,
she lost the possession of plaint schedule property.
Therefore, the finding of the lower Court is not very clear and
is not in accordance with law. In the absence of evidence, the
Court should not have entered into of this area of
controversy, because adverse possession is a matter of
pleading and proof.
32. The last argument advanced by the learned
counsel for the appellant/plaintiff is that defendant No.3 was
not examined as a witness and that in the absence of her
evidence, an adverse inference should be drawn. In the chief
examination itself, DW.1 deposed that he contacted defendant
No.3 and that defendant No.3 told her that even B. Subbaiah
also contacted her to give evidence on behalf of the plaintiff.
She stated that she was not prepared to give evidence on
behalf of either party in the suit and if she was summoned,
she will depose against the persons. This part of the chief
examination is not touched upon in the course of cross-
examination. Hence, as per settled law, it is to be taken as
admitted. Even otherwise, this appears to be a reasonable
explanation for her non-examination. The plaintiff as the
dominant litus choose to add this Pushpa as a party but she
could not prove whether her daughter Pushpa died before or
after Ex.A.2 was executed. The findings of the Courts in the
previous litigation about Pushpa were not proved to be
incorrect or wrong in any manner. Hence, for all these
reasons this Court holds that the mere non-examination of
Defendant No.3/Pushpa is not fatal to this case.
33. For all these reasons, on a review of the entire
evidence, pleadings and cross-examination, this Court holds
that the findings of the lower Court are in order. There is
nothing irregular or wrong in the said findings particularly
the finding that the present plaintiff/appellant is not the wife
of late Yallapi Sivaiah. This Court also does not find anything
irregular or wrong in the finding that defendant No.3/Pushpa
is the daughter of Yallapi Sivaiah. This Court holds that the
present plaintiff is not the wife of late Yallapi Sivaiah. She
cannot therefore maintain or pursue this litigation.
34. For all the above reasons, the appeal is dismissed
and the impugned judgment and decree dated 15.04.1997 of
the Additional Subordinate Judge, Gudur in O.S.No.120 of
1988 is hereby confirmed, except the finding of issue No.3.
However, there shall be no order as to costs. Miscellaneous
petitions, if any, pending in this appeal shall stand closed.
_____________________________
D.V.S.S. SOMAYAJULU, J
Date: 16.11.2017
A.S.No.2284 of 1998
16-11-2017
Yallapi Rajamma, @ Sarojanamma, Appellant/Plaintiff
Paditham Narayana Rao and 2 others. Respondents/Defendants
Counsel for the appellant: M.P. Chandramouli
Counsel for the Respondents: P. Ganga Rami Reddy
<Gist:
>Head Note:
?Cases referred:
1. AIR 1975 SC 1534
2 AIR 1981 SC 2235
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
A.S.No.2284 of 1998
JUDGMENT:
This appeal is filed against the judgment and decree
passed in the suit O.S.No.120 of 1988 on the file of the
Additional Sub-ordinate Judge, Guntur, dated 15.04.1997.
2. The unsuccessful plaintiff is the appellant. As this
is a first appeal and the plaintiff is the appellant, the parties
are described as they are arrayed in the suit only.
3. The plaintiff in the suit is Yallapi Rajamma @
Sarojanamma, w/o. Yallapi Sivaiah. She filed the said suit
O.S.No.129 of 1988 against P. Narayana Rao, R. Krishnaiah
and M. Pushpa.
4. The suit is filed for partition and separate
possession of the share of plaintiff in the suit schedule
property with a direction to defendants 1 & 2 to put the
plaintiff in possession of her 1/3rd share in the property.
The plaintiff claims to be the wife of one Yallapi Sivaiah as
described in para-4 of the plaint.
5. One Yallapi Mallaiah was the father and the head
of joint family consisting of himself and three sons Yallapi
Veera Badraiah, Yallapi Sivaiah and Yallapi Nagaraju.
As Yallapi Mallaiah died intestate, the plaintiff states that her
husband-Sivaiah acquired 1/3rd share in the plaint schedule
property. As per the averments of the plaint, the plaintiff and
Yallapi Sivaiah begot a daughter by name Yallapi Pushpa.
As the said Pushpa and her husband-Yaliah died, her
husband entire 1/3rd share in the property devolved on the
plaintiff. Thus she became entitled to 1/3rd share in her own
right.
6. As per the plaint averments, after the death of her
husband and daughter, the plaintiff sold her 1/3rd share of
property to one B. Subbaiah on 05.05.1970. Thereafter, she
migrated elsewhere and lost touch with the property and her
home town. She states that her purchaser-B. Subbaiah
instituted a suit O.S.No.89 of 1977 for partition in the District
Munsif Court, Venkatagiri for 1/3rd share in the suit schedule
property. He lost the suit and filed an appeal in A.S.No.27 of
1980, which was also dismissed. He further filed Second
Appeal No.904 of 1984 on the file of this Court, which was
also dismissed. Coming to know all these facts, she filed the
present suit for partition and for possession of her 1/3rd
share and her specific case is that her daughter died long ago
and that therefore, the third defendant in the said cases (the
suit, first appeal and second appeal) is an imposter. She now
seeks partition in her own right, as the Courts held that
B. Subbaiah is not entitled to any share in the property,
because the sale deed dated 05.06.1970 was signed by an
imposter and not by the wife of Sivaiah.
7. Defendants 1 & 2 are the purchasers of the
property. The defendants filed a written statement and denied
all the allegations. They plead that defendant No.3 in the suit
is not an imposter and is the daughter of Yallapi Sivaiah and
Rajamma. They support the judgments passed in the suit
O.S.No.89 of 1977 and state that the actual wife of Sivaiah by
name Sarojanamma left the family house more than 30 years
prior to written statement as she was mentally deranged.
The first defendant asserts that defendant No.3, who is his
vendor, is the real daughter and only available heir of Yallapi
Sivaiah. He questions the execution of the sale deed in 1970
on this ground and also on the ground that the sale deed was
registered in Nellore, but the property was situated in the
Venkatagiri. The defendants case is that the present plaintiff
is not the wife of Yallapi Sivaiah nor she is the mother of
defendant No.3. She does not have any right of the property
and the plaintiff is an imposter set up by the said
B. Subbaiah, who was the unsuccessful plaintiff in the earlier
suit. This is the crux of the defence.
8. After considering the entire matter, the lower
Court by the impugned judgment dismissed the suit holding
that the plaintiff failed to prove that she is the widow of
Yallapi Sivaiah, consequently, all other reliefs flowing from
this were negatived. The purchase of the property by
defendants 1 & 2 in the suit from defendant No.3 and others
was upheld. Hence, the suit was dismissed. 3 witnesses
were examined for the plaintiff before the lower Court and 5
witnesses were examined for the defendants. Exs.A.1 to A.10
were marked in favour of the plaintiff and Exs.B.1 to B.24
were marked in favour of the defendants.
9. The essential question, therefore, that falls for
consideration in this appeal and on which Sri M.P.
Chandramouli, learned counsel for the appellant/plaintiff and
Sri P. Ganga Rami Reddy, learned counsel for the
respondents/defendants concentrated on is point No.2-
whether the plaintiff is the wife of Yallapi Sivaiah.
10. The learned counsel for the appellant/plaintiff
points out that the lower Court erred in relying upon the
alleged discrepancies in the dates and that the lower Court
has given too much credence and weight to the discrepancies
in the dates. As per the appellant, the defendants had
admitted that Sarojamma is the wife of Yallapi Sivaiah and
that PW.1 married to Sivappa, as the averments in paras 4 &
5 of the plaint are not denied. He also argued that an
admission need not be proved and best evidence was ignored
by the lower Court.
11. Before going into the matter, the entirety of the
written statement has to be seen. It is a settled rule of
interpretation, particularly of pleadings that the entire
pleading should be seen and a stray line should not be
highlighted and reliance placed thereon. A reading of the
entire written statement makes it clear that defendant No.1
denied that the present plaintiff is the wife of Yallapi Sivaiah.
He asserts that defendant No.3/Pushpa, the daughter of
Yallapi Sivaiah and Sarojanamma is still alive. He also asserts
that the current litigation is set up by B. Subbaiah, who failed
in the earlier round of litigation. Viewed in totality, this is the
major defence. Therefore, the lower Court had to examine the
fundamental issue whether the present plaintiff is the wife of
Yallapi Sivaiah.
12. It is an admitted fact that there is no documentary
proof of the marriage of Sivaiah with Sarojanamma. There are
no photographs or other evidence of the said marriage.
Neither is there any documentary proof to show the birth of a
child or the death of child-Pushpa. No documentary evidence
is filed to show where the said Sarojanamma was residing all
these years prior to the litigation. Therefore, this Court like
the lower Court will have to sift the details available to decide
whether there is a probability that the present plaintiff is the
wife of late Yallapi Sivaiah and if the daughter of Sivaiah and
Sarojanamma called Pushpa had died in her minority.
The following passage from the well known judgment of
Dr. N.G. Dastane v. Mrs. S. Dastane is relevant for this case:-
The normal rule which governs civil proceedings is that a fact can be said to
be established if it is proved by a preponderance of probabilities. This is for
the reason that under the Evidence Act, Section 3, a fact is said to be proved
when the court either believes it to exist or considers its existence so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists. The belief
regarding the existence of a fact may thus be founded on a balance of
probabilities. A. prudent man faced with conflicting probabilities concerning
a fact-situation will act on the supposition that the fact exists, if on weighing
the various probabilities he links that the preponderance is in favour of the
existence of the particular fact. As a prudent man, so the court applies this
test for finding whether a fact in issue can be said to be proved. The first
step in this process is to fix the probabilities, the second to weigh them,
though the two may often intermingle. The impossible is weeded out at the
first stage, the improbable at the second. Within the wide range of
probabilities the court has often a difficult choice to make but it is this
choice which ultimately determines where the preponderance of probabilities
lies. Important issues like those which affect the status of parties demand a
closer scrutiny than those like the loan on a promissory note.
(emphasis supplied)
13. The registered sale deed executed by the plaintiff
in favour of B. Subbaiah, which is the genesis for both the
litigations, is marked as Ex.A.2 and it is dated 05.06.1970.
This Document No.1021 of 1970 was registered on
05.06.1970 and is executed in favour of B. Subbaiah by Smt.
Rajamma @ Sarojanamma, wife of Sivaiah. The certified copy
of document is marked as Ex.A.2 and the original is marked
as Ex.A.7. The present plaintiff states that she executed this
document as per the recitals of this document. As per the
said document, the husband of the executant died eight years
prior to the execution of this document and that thereafter,
the executant and her daughter became entitled to the
husbands share and after the death of her daughter, the
executant became the owner of the entire property. Therefore,
she is executing the sale deed conveying the property in
favour of B. Subbaiah. This document as mentioned earlier is
the genesis for this litigation and the contents of this
document go to show that Sivaiah, the husband of the
executant died in 1962 and the daughter also died prior to
1970.
14. As noticed by the lower Court, the subsequent
evidence does not support either of these dates. The witness
was called for chief examination and was examined on
12.09.1994. According to her evidence in chief, her husband
died about 25 years ago (1969). She also states that her
marriage with Sivaiah took place 25 years ago (1968-69). She
states that she sold her share in the property to B. Subbaiah,
and the registration extract is marked as Ex.A2. She identifies
that B. Subbaiah is in the Court hall that day. She states in
her chief that after Ex.A.2 she resided for 4 or 5 years
thereafter in Srikalahasti then some disputes arose between
herself and her mother and she went away along with her
daughter to Chittoor. Thereafter, she left her daughter and
went to Bangalore. Therefore, as per the chief examination of
PW.1 itself, the daughter was alive by the date on which she
executed Ex.A.2 and along with her daughter she went to
Chittoor, where she left her daughter with some unknown
people. 4 to 5 years after 05.02.1970 places this movement
from Srikalahasti to Chittoor in the year 1974-75. In her last
line of chief examination, she says that my daughter-Pushpa
passed away at Chittoor 25 years ago (1969).
15. In her cross-examination, she states that she lived
with her husband for 5 years after her marriage at
Venkatagiri in the suit house. So, if her marriage was
performed in 1969-70, according to the cross-examination,
she lived there till 1974/75.
16. She also states in the further cross-examination
that there is no proof for her daughters birth at Venkatagiri.
She states that her daughter was aged about 5 years when
she took her to Sivaiah and from there to Chittoor. This
movement to Srikalahasti and Chittoor took place after Ex.A.2
was executed in February, 1970. Therefore, it leads to further
doubt about the veracity of the claim. The last line of the
cross-examination and before the re-examination is to the
following effect:
B. Subbaiah is conducting this litigation.
17. PW.2 claiming to be the step-mother of the present
plaintiff was examined as a witness to prove the plaintiff case.
She states that she brought PW.1 and got her married to
Sivappa. She states in her chief examination as follows:
my daughter (PW.1) has sold away to one Subbaiah, the
share fell to her husband and the sale consideration was
handed over to me. The sale consideration sum was
Rs.3,000/-. PW.1 stayed with us for some time and later
she left for Bangalore along with her daughter without
intimating me due to some disputes in the family.
18. This again shows that the daughter was alive after
execution of the sale deed in favour of B. Subbaiah (Ex.A.2 &
A.7). In her cross-examination, PW.2 admits that the
marriage was performed 25 years ago and that PW.1 lived
with her husband for 5 years after the marriage. Therefore,
even according to this witness, the marriage was performed in
1969 and Sivaiah was alive for 5 years i.e., till 1974. As per
the cross-examination, the daughter-Pushpa was aged about
3 years when Sivappa died. Therefore, the daughter must
have been born in 1971.
19. Even PW.3, who is the stated step-brother, states
that after the demise of Sivappa, Rajamma was at Venkatagiri
for one year before she is coming to his house along with her
daughter. He admits in his cross-examination that the
daughter of PW.1 was aged about 1 years, when PW.1 came
to Sivaiah after her husbands death. This contradicts in the
evidence of PW.2 and gives another set of dates.
20. It was the argument of the learned counsel for the
appellant/plaintiff about these witnesses that in the chief
examination of PW.1 it was asserted by her that Gouramma
(her step-mother) has 6 daughters and 2 sons and that the
names of sons and daughters were given very clearly in the
chief examination. The names of uncles etc. were also given
in the chief examination. He argued that the witness who
spoke about the family history and genealogy has not been
cross-examined at all on the relationship and that therefore,
the evidence should be treated as admitted. Hence, he argues
the evidence of PW.2 and PW.3 should be given due weight.
21. On the contrary, it is the reply of the learned
counsel for the respondents/defendants that this genealogy
or family tree is not very relevant for the crucial issue on
hand viz., whether the present plaintiff is the wife of Yallapi
Sivaiah or not. The family tree or details are not pleaded in
the plaint and hence the learned counsel stated that in the
absence of pleading, no evidence can be considered. There is
force and substance in this contention.
22. It is the fact that the burden is squarely on the
plaintiff to prove this fact. The plaintiff will have to establish
that she is the actual wife of Yallapi Sivaiah. As a plaintiff
seeking to establish her right, one has to prove her case.
Therefore, this Court is of the opinion that the failure to cross
examine of PW.1 on these issues of genealogy is not very
relevant, as held by Honble Supreme Court of India in
Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar
(Dead) by Lrs. and Others . The other evidence on this issue is
enough to decide the point and there is no need to draw any
adverse inference on the failure to cross examine.
23. The discrepancies in the date and the fact that
other than the oral evidence of PWs.2 & 3, there is no other
documentary proof or other evidence to establish that the
present plaintiff is the wife of Yallapi Sivaiah leads to any
amount of doubt about her identity itself. Her version is
riddled with inconsistencies and does not inspire confidence.
24. The learned counsel for the appellant/plaintiff also
laid stress on the fact that DW.1 entered into an agreement
with PW.1 on 06.09.1994 for Rs.7,000/- and the present
plaintiff agreed to relinquish her rights in the schedule
property. Two demand drafts were also obtained to be paid to
her, which were marked as Exs.B.19 and 20. The learned
counsel, therefore, argued that the defendant himself
recognized the right of the plaintiff and her status as the wife
of Yallapi Sivaiah. A reading of the evidence, however, goes to
show that on 06.09.1994 the plaintiff came to the house of
DW.1 and demanded Rs.7,000/- to relinquish her rights.
Thereafter, the relinquishment deed was executed by the
present plaintiff, but the same was not registered and the
plaintiff did not turn up for registration at the Sub-Registrars
office. The said document was presented before the District
Registrar for registration. DW.1 also deposed that the plaintiff
in O.S.No.89 of 1977 prevented her attending the registration.
In the cross-examination on this aspect he states though the
plaintiff is not Rajamma and though according to us, she is in
imposter, we have taken the said document dated 07.09.1994
only to get rid of the litigation, which was stated by the
plaintiff and to look after our business. He also admits that
in the document dated 07.09.1994, it is mentioned that in
view of the mediation and compromise, the plaintiff should
get her suit dismissed. This explanation which was accepted
by the Court is a plausible explanation. This Court is also of
the opinion that the lower Court rightly believed in this
explanation that because of the chequered history of this
litigation and the long delay, the compromise was affected.
The deed in question of September 1994 is however not in the
evidence, as the same was not registered. If the evidence of
DW.1 is ready in his entirety, it leads to the conclusion that
the said document was entered into with a view to settle the
matter and to get rid of the current litigation. The property in
question has been in litigation since 1977 till date, therefore,
it is not unthinkable that compromise was sought to be
effected in 1994. Therefore, the lower Court rightly believed
that the defendants did not recognize the rights of the present
plaintiff.
25. Viewed from all the above and in view of the
alleged glaring discrepancies in the documentary and oral
testimony of the plaintiff and her witnesses, plus the fact that
B. Subbaiah is conducting all the litigations, it is clear that
the plaintiff did not discharge the burden of proof that she is
the original or real wife of Yallapi Sivaiah and that she has a
right to file and maintain the suit. This court is of the
opinion that she has been set up as the wife late Yallapi
Sivaiah. The contents of Ex.A.2/A.7 itself dilute her entire
story. When no direct evidence is available, contemporaneous
document that throw light on the issues have to be
considered and looked into. Therefore, point No.2 whether the
plaintiff is the wife of Yallapi Sivaiah is answered against the
plaintiff. The lower Court was also right in this finding.
26. The other important question is point Nos.3 & 4,
whether the only daughter of Yallapi Sivaiah is dead or is still
alive and whether defendant No.3 is the daughter of Yallapi
Sivaiah.
27. These two points go together and as rightly
noticed by the lower Court, no credible evidence about the
birth or death of Pushpa is available. The recitals of the
registered document Ex.A.7 are to the effect that she died
before Ex.A.7 was executed. The evidence of prime witness
(the plaintiff/PW.1) is that after execution of Ex.A.7, she went
to her brothers house at Chittoor and later went to
Bangalore. She does not know with whom she left her only
child and when that child died or how the child died.
Therefore, the lower Court rightly came to the conclusion that
the contention of the plaintiff that her child died is
improbable and untrue. As a corollary to this, the question to
be decided whether defendant No.3 is the daughter of Yallapi
Sivaiah. The evidence of defendants in this issue is clear.
They have deposed that Pushapa, the third defendant is the
daughter of Yallapi Sivaiah. They deposed that DW.3 was
living in Madras and that her marriage was performed by
defendants themselves. Even as rightly noticed by the lower
Court in the plaint, the age of Pushapa is not mentioned by
the plaintiff in the plaint. It is also important to note that in
the previous round of the litigation, the courts up to this High
Court have held that defendant No.3/Pushpa is the daughter
of Sivaiah. The plaintiff herself filed the certified copies of
orders passed in SA No.904 of 1984 and in CMP No.1222 of
1988. This Honble High Court also noticed that defendant
No.3/Pushpa is still alive and that both the courts below
found that the defendant No.3 is the daughter of Yallapi
Sivaiah.
28. To contradict these judgments, the plaintiff has
not filed any contrary evidence. Her conduct as a person and
as a mother is noticed by the lower Court and no explanation
was given by her to justify her conduct of leaving a girl child
behind in the house of some unknown persons. By filing a
copy of the order passed by this High Court (Ex.A.8), she
proved the fact that she is aware of the finding that Pushpa in
that suit has been held to be the daughter of Yallapi Sivaiah.
Nothing contrary has been pointed out nor is any evidence
filed to show that the findings of two courts and of the
Honble High Court in SA No.904 of 1984 on this matter is
incorrect. No evidence has been filed by the present plaintiff
to show that Pushpa in that earlier suit is not the Pushpa
(defendant No.3) of this suit. In the absence of any other
evidence, this Court is of the opinion that the plaintiff failed
to prove that defendant No.3 is not the daughter of Yallapi
Sivaiah. Therefore, the finding of the lower Court on point
Nos.3 & 4 is correct. This Court holds that the daughter of
Yallapi Sivaiah is alive and the defendant No.3 is the
daughter.
29. Issue No.3 is another issue on which arguments
were advanced. According to the defence, they have perfected
the entitlement by adverse possession from 1976 onwards.
30. The learned counsel for the appellant/plaintiff
argued that by pleading adverse possession, the defendants
have recognized the title of the plaintiff. The learned counsel
contends that adverse possession can only be raised against
the true owner and that once the defendants plead adverse
possession, they impliedly recognise the title of the plaintiff
which was extinguished by open hostile possession of the
defendants. It is true that there is a plea in the written
statement, but the oral evidence of defendants does not show
that they have given any evidence to prove adverse
possession. The oral evidence is absolutely silent about the
aspect of adverse possession.
31. Adverse possession needs to be pleaded and
proved with certainty. The Courts will have to take the date
on which the possession turned hostile and the manner in
which the possession was hostile vis--vis the true owner.
The possession should be open continuous and hostile.
The evidence in this case on adverse possession and is totally
lacking. The finding of the lower Court on this issue is
therefore, not correct. The lower Court examined the issue
vis--vis the sale to B. Subbaiah under Ex.A.2 & A.7,
therefore, the Courts came to the conclusion that even if the
plaintiff was the wife of Sivaiah, she stated that she delivered
possession to B. Subbaiah and she lost her possession.
The lower Court below felt that B. Subbaiah was not in
possession as a third party purchaser and the suit he filed
was for partition and separate possession. Therefore, the
Court held that from 1970 onwards, neither B. Subbaiah nor
his vendor were in possession. The court below, therefore,
held that even if the plaintiff was the wife of Yallapi Sivaiah,
she lost the possession of plaint schedule property.
Therefore, the finding of the lower Court is not very clear and
is not in accordance with law. In the absence of evidence, the
Court should not have entered into of this area of
controversy, because adverse possession is a matter of
pleading and proof.
32. The last argument advanced by the learned
counsel for the appellant/plaintiff is that defendant No.3 was
not examined as a witness and that in the absence of her
evidence, an adverse inference should be drawn. In the chief
examination itself, DW.1 deposed that he contacted defendant
No.3 and that defendant No.3 told her that even B. Subbaiah
also contacted her to give evidence on behalf of the plaintiff.
She stated that she was not prepared to give evidence on
behalf of either party in the suit and if she was summoned,
she will depose against the persons. This part of the chief
examination is not touched upon in the course of cross-
examination. Hence, as per settled law, it is to be taken as
admitted. Even otherwise, this appears to be a reasonable
explanation for her non-examination. The plaintiff as the
dominant litus choose to add this Pushpa as a party but she
could not prove whether her daughter Pushpa died before or
after Ex.A.2 was executed. The findings of the Courts in the
previous litigation about Pushpa were not proved to be
incorrect or wrong in any manner. Hence, for all these
reasons this Court holds that the mere non-examination of
Defendant No.3/Pushpa is not fatal to this case.
33. For all these reasons, on a review of the entire
evidence, pleadings and cross-examination, this Court holds
that the findings of the lower Court are in order. There is
nothing irregular or wrong in the said findings particularly
the finding that the present plaintiff/appellant is not the wife
of late Yallapi Sivaiah. This Court also does not find anything
irregular or wrong in the finding that defendant No.3/Pushpa
is the daughter of Yallapi Sivaiah. This Court holds that the
present plaintiff is not the wife of late Yallapi Sivaiah. She
cannot therefore maintain or pursue this litigation.
34. For all the above reasons, the appeal is dismissed
and the impugned judgment and decree dated 15.04.1997 of
the Additional Subordinate Judge, Gudur in O.S.No.120 of
1988 is hereby confirmed, except the finding of issue No.3.
However, there shall be no order as to costs. Miscellaneous
petitions, if any, pending in this appeal shall stand closed.
_____________________________
D.V.S.S. SOMAYAJULU, J
Date: 16.11.2017
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