In the result, the appeal is allowed by setting aside the trial Court's
decree and judgment in favour of the plaintiffs for possession with past and
future profits and costs by dismissing the plaintiffs' suit claim.
There is no
order as to costs, including in the appeal. Needless to say the remedy of the
plaintiffs is as legal representatives of the 2nd defendant for rescission of
the contract for sale and possession subject to result of suit for specific
performance stated pending filed by 1st defendant/appellant herein, unless any
defence taken therein of unenforceability of the agreement, for recovery of
possession to consider within its own merits.
It is further made clear that for
filing such suit by plaintiffs, their mother, brothers and sisters, the lis
covered by the appeal suit throughout no way come in their way also from the
fact that 1st defendant by acknowledging contract for sale entered by 2nd
defendant cannot when plead any adverse possession against 2nd defendant,
equally against the legal representatives of the 2nd defendant.
2014 (March. Part ) judis.nic.in/judis_andhra/filename=11040
HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
APPEAL SUIT No.854 of 1998
19-03-2014
Dakarapu Lakshmana Swamy..Appellant
Maddula Narasimha Rao and others....Respondents
Counsel for the Appellant:Sri A.Ramalingeshwara Rao
Counsel for respondents: Sri Y.V.Ravi Prasad
<GIST:
>HEAD NOTE:
?Cases referred:
1. AIR 1957 AP 386
2.1952(2) MLJ-448
3. AIR 1961 patna Page 158
4. AIR 1956 SC 593
5. AIR 2012 SC 1727
6. AIR 1960 SC 335
7. AIR 1936 PC 264
8. AIR 1954 Bombay 95
9. AIR 2006 SC 2832
10. 2010(3) Scale 569
11. AIR 1956 SC 593,para 23 page 602
12. AIR 1965 SC 241 at para 17&18
13. AIR 1951 SC 469
14. AIR 1971 Mad 184
15. 1996(1) SCC 639
16.(2004) 10 SCC 639
17. AIR 1964 SC 1254
18. 1993 (4) SCC 375
19.1997 (7) SCC 567
20. 1996(8) SCC 128
21. 1995(6) SCC 523
22. 2013 (2) ALT 268 para 7
23. 2008(6) ALD 2002
24. 1976 (2) APLJ page 16
25. AIR 1956SC 470
26. AIR 1953 SC 487
27. AIR 1952 Mad.419
28. AIR 1957 AP page 8
29. AIR 2003 SC 1989
30 AIR 1963 SC 1516
31. AIR-2001-SC-965
32. (2003(5)-SCC-89)
33. 1975(1)SCC 212
34. AIR-1976-SC-634
35. AIR-1969-SC-1144
36. 2011(8) SCALE 240
37. AIR 1989 SC 193
38 AIR 1987 SC 1242
39.AIR 1966 SC 735,
40. AIR 1954 SC 458
41.AIR 1953 SC 235
42.AIR 1995 SC 167
43. AIR 1988 SC 719(B)
44. 1991 (3) SCC 331
45. 1998(5)-ALD-349
46. 2003(8)-Supreme Today-194 at 196
47. (2009) 3 SCC 287
48. AIR 1984 SC 664
49. (1994) 5 SCC 167
50. AIR 1959 SC 282
51. AIR 1964 SC 880 (from AIR 1958 AP 131)
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
APPEAL SUIT No.854 OF 1998
JUDGMENT:
This appeal is filed by the 1st defendant in O.S.No.138 of 1988 on the
file of the Principal Senior Civil Judge, Eluru, having been aggrieved by the
judgment and decree dated 02.03.1998 in said suit filed by the respondent Nos.1
to 3 herein as plaintiff Nos.1 to 3 against him and their father Maddula
Gangaraju-2nd defendant to the suit who is no other than 4th respondent to the
appeal since died pending appeal and his other legal heirs(besides R.1 to
R.3(plaintiffs) on record not claimed so) brought on record as R.5 to R.9 of the
appeal by order dated 23.07.2012 in A.S.M.P.No.2400 of 2006.
1(a). In fact, as per the decision in Kotha Seshamma Vs. Pittela Venkayya1 after
born sons also got right by birth in the joint family property, even to
challenge the alienation made by father or other manager as improper to seek for
setting aside. Here, the claim of plaintiffs (the benefit of which the
respondents 5 to 8 also entitled) is in the joint family property to question
the alienation made by their father-2nd defendant under Ex.B.2 to 1st defendant
after Ex.A.1 relinquishment deed and as such there is a conflict of interest
between them and 2nd defendant, to say they cannot be legal representatives of
2nd defendant, but for necessary parties to the appeal along with
plaintiffs(respondents 1 to 3) to have benefit of suit and it is only the 1st
defendant, that is assignee under Order 22 Rule 10 of CPC of the rights 2nd
defendant under Ex.B.2 sale agreement. The suit filed by the three plaintiffs
dated 11.01.1987 was for possession of plaint A-schedule property of the Ac.5-35
cents with past and future profits against the two defendants by claiming they
got only plaint B-schedule movables exempt from consideration of means as
indigent persons pursuant to the permission accorded by order of the trial Court
in pauper O.P.No.66 of 1987.
2. Before coming to the grounds of appeal attacking legality and
correctness of said decree and judgment allowing the suit claim by the trial
Court and what are the points that required for determination on being
formulated from rival contentions in this first appeal and its scope, for better
appreciation, the factual matrix of the case before trial Court is the
following:-
2(a). The case of the plaintiffs is that 2nd defendant is the father of
plaintiff Nos.1 to 3 and the plaint-A schedule property, an extent of Ac.5-25
cents (Item No.I to the extent of Ac.2.50 cents and Item No.II to the extent of
Ac.2.75 cents in R.S.No.243) of I.S.Raghavapuram village, Dwarakatirumala
Mandal, West Godavari District was the joint family property of the plaintiffs
and their father i.e. the 2nd defendant, that 2nd defendant executed a
relinquishment deed on 12.10.1969 (Ex.A.1) in respect of his undivided share in
said joint family property in favour of the plaintiffs during their minority
showing their mother (wife of 2nd defendant) as guardian of them, that
thereafter, the 2nd defendant without any right contracted to transfer the
plaint-A schedule property to the 1st defendant on 28.02.1975 (Ex.B.2), that as
they were not having sufficient funds to cultivate the plaint-A schedule
property, they left I.S.Raghavapuram for Janagareddigudem in the year,1975 and
in their absence 1st defendant encroached the plaint-A schedule property and in
spite of legal notice failed to deliver the same and hence the suit claim.
2(b). The 2nd defendant having been served, remained
ex parte without any contest the suit claim.
2(c). The case of 1st defendant-appellant is that the relinquishment deed-
Ex.A.1 is a sham and nominal document and never acted upon, that 2nd defendant,
for the benefit of his joint family, agreed to sell the plaint-A schedule
property to him and in pursuance of the contract for sale executed by the 2nd
defendant, he came into possession, that the plaintiffs are not entitled to
evict him as he is protected by Section 53-A of the Transfer of Property Act,
1882, that otherwise he perfected his title over the plaint-A schedule property
by adverse possession against the plaintiffs and hence to dismiss the suit
claim.(Needless to say said contest of 1st defendant is in one way saying his
possession is pursuant to the agreement executed and delivered possession by 2nd
defendant-father of plaintiffs for the benefit of the joint family and entitled
to protection of Sec.53-A of the T.P.Act and otherwise perfected title by
adverse possession, to say both are not consistent for one alternate to other).
2(d). From the pleadings, the trial Court framed the following issues:-
1) Whether the plaintiffs are entitled to the relief of possession of plaint-A
schedule property?
2) Whether the 1st defendant is in possession and enjoyment of the plaint-A
schedule property as an lawful owner there of since 28.02.1975?
3) Whether the suit is barred by time?
4) Whether the plaintiffs are entitled to profits and if so at what rate?
5) To what relief are the plaintiffs entitled?
2(e). On above pleadings in deciding the issues, on behalf of the plaintiffs,
P.Ws.1 to 6 were examined and also placed reliance upon Exs.A.1 to A.4 viz.,
Ex.A.1 registered relinquishment deed, dated 12.10.1969 executed by 1st
defendant-Maddula Gangaraju in favour of his three sons who are the
plaintiffs(minors by then showing his wife as their mother guardian); Ex.A.2
registration extract of partition deed, dated 29.07.1955 in between Maddula
Narasimham and his sons i.e. the 2nd defendant, his brother and father; Ex.A.3
Office copy of notice, dated 07.01.1987 issued by plaintiffs to 1st defendant
and Ex.A.4 Postal acknowledgment, dated 19.01.1987 of 1st defendant. On behalf
of 1st defendant, D.Ws.1 to 7 were examined and relied upon Exs.B.1 to B.49
viz., Ex.B.1 registered extract of simple mortgage deed, dated 31.05.1971
executed by 2nd defendant and plaintiffs in favour of Eluru Cooperative Land
Mortgage Bank; Ex.B.2 Stamped sale agreement, dated 28.02.1975 executed by 2nd
defendant as his own property in favour of 1st defendant-Dakarapu Lakshmanaswamy
for the plaint A-schedule property, Exs.B.3 to B.8 endorsements on the Ex.B.2
sale agreement; Exs.B.9 to B.27 are receipts issued by Land Mortgage Bank, Exs.
B.28 to B.32 land revenue receipts, Ex.B.33 proforma for pattadar passbook,
Ex.B.34 registration extract of the mortgage deed, dated 19.11.1968 executed by
2nd defendant and the plaintiffs, Ex.B.35 registration extract of sale deed,
dated 10.10.1969 executed by 2nd defendant and the plaintiffs, Ex.B.36
registration extract of mortgage deed, dated 31.01.1971 executed by 2nd
defendant and plaintiffs, Ex.B.37 registration extract of sale deed executed by
2nd defendant and plaintiffs dated 26.05.1982, Ex.B.38 registration extract of
sale deed, dated 26.05.1982 executed by Smt. Maddula Savithramma, Ex.B.39
receipt, dated 08.12.1980 issued by APSEB for S.C.No.26 of I.S.Raghavapuram,
Ex.B.40 reconnection order issued by AAO(Electricity Revenue) Eluru for
S.C.No.26 of I.S.Raghavapuram, Ex.B.41 is certified copy of 10(1) Account,
Ex.B.42 certified copy of adangal issued by Mandal Revenue Officer, D.Thirumal,
Ex.B.43 certified copy of No.2 Adangal for R.S.No.252/3 for patta No.437,
Ex.B.44 Pattadar passbook, Ex.B.45 land revenue receipt and Ex.B.46 to B.49 are
certified copies of 10(1) account.
2(f). From said pleadings and evidence placed on record by both sides and after
hearing in deciding suit claim, the trial Court held that execution of Ex.A.1 is
not disputed by 1st defendant in his pleadings, P.W.1 also denied the suggestion
of Ex.A.1 brought into existence to avoid debts, what P.W.2(mother of
plaintiffs) deposed of her father insisted 2nd defendant as he was wasting the
income to execute relinquishment deed by payment of Rs.500/- is not safe to rely
and even P.W.3 and P.W.5 attestors of Ex.A.1 deposed of no need to execute the
Ex.A.1 document for 2nd defendant in favour of plaintiffs but for 2nd defendant
wanted to transfer in name of plaintiffs to get good income over the lands and
P.W.5 deposed that he cannot say even nature of the document and 2nd defendant
is not a spendthrift but intelligent, that from 1st defendant failed to attack
the genuineness of Ex.A.1 relinquishment deed in his evidence though mentioned
in pleadings, that contention of 1st defendant that the Ex.A.1 is sham and
nominal document is not accepted, and no decided case is placed by either side
on the question on sham and nominal nature of the Ex.A.1. It is also observed
that plaintiffs contend that 1st defendant cannot question Ex.A.1 as sham and
nominal being not a creditor of 2nd defendant. The decision in Thanubuddi
Venkatappareddi Vs.Gopavarapu Brahmayya2 and Rangabadi Vs.United Bank of India3
relied by 1st defendant is not on facts of agreement holder to contend the
relinquishment executed by vendor is a sham and nominal document to consider and
even the other decision relied upon of Nagubai Ammal Vs. B.S.Nama Rao4 is on
facts of husband executed gift to wife without intention to pass title to act
upon in holding as sham transaction and that has no application to the facts. It
is observed that it cannot be said that 2nd defendant contracted to transfer the
plaint-A schedule property to 1st defendant for the benefit of joint family,
that plaintiffs are the owners of plaint-A schedule property and they are
entitled to evict the 1st defendant, that 1st defendant is in wrongful
possession over the property and is liable to pay past and future mesne profits.
3(a). It is said findings of the trial Court impugned in the appeal filed by 1st
defendant on as many as 15 grounds with the sum and substance that, the trial
Court's judgment and decree are contrary to law and weight of evidence, that 1st
defendant is in possession of the property under an agreement of sale and
entitled to protection under Section 53-A of Transfer of Property Act, that
trial Court ought to have seen that plaintiffs have no title to claim recovery
of possession from 1st defendant, that and the suit is a collusive one at the
instance of the father, between father and sons(2nd defendant and plaintiffs),
that trial Court failed to appreciate the evidence on Ex.A.1 is a sham and
nominal document and also failed to see that 2nd defendant dealt with the
property as that of his own even after execution of Ex.A.1 document, that the
trial Court should have gone into genuineness of Ex.A.1 and failed to appreciate
the proposition laid down in Thanubuddi Venkatappareddi and Rangabadi(supra),
and thereby sought for setting aside the decree and judgment of trial Court
dismissing the plaintiffs' suit claim. In the Course of hearing the learned
counsel for the appellants reiterated said contentions raised in the grounds of
appeal attacking the correctness of trial Court's decree and judgment in seeking
to set aside the same.
3(b). On the other hand the learned counsel for the plaintiffs-respondent Nos.1
to 3 of the appeal contended that the decree and judgment of the trial Court is
a well considered and reasoned outcome on merits and for this Court while
sitting in appeal there is nothing to interfere against any of said findings of
the trial Court in decreeing the suit claim and hence to dismiss the appeal with
costs.
3(c). The 2nd defendant to the suit as 4th respondent to the appeal in his
lifetime (having remained ex parte in the suit also) did not choose to contest
the appeal, so also after him by the respondent Nos. 5 to 9 of the appeal being
his wife and other children by any separate contest. They are not legal
representatives to represent 2nd defendant against the plaintiffs being mother,
brothers and sisters of plaintiffs; from conflict of interest in their sailing
with plaintiffs to their entitlement to the benefit of the suit, but for 1st
defendant being the assignee from 2nd defendant under Ex.B.2 sale agreement with
possession, as discussed in 1st para of this appeal.
4) From the rival contentions, the points that arise for consideration to decide
the lis are formulated as follows:-
1. Whether Ex.A.1 relinquishment deed, dt.12.10.1969 for the joint family
property covered by plaint A-schedule executed by 2nd defendant in favour of the
plaintiffs was a sham or a nominal one and the 2nd defendant not lost any of his
undivided joint rights and possession as father manager thereon and if so the
plaintiffs when not parties to the Ex.B.2 contract for sale dated 28.02.1975
executed by 2nd defendant in favour of 1st defendant and delivered possession,
how far bound by the same?
2. If Ex.A.1 dated 12.10.1969 is true and valid, with no right or possession
over the plaint schedule property thereafter for 2nd defendant much less as
father manager of plaintiffs with effect therefrom; what right 2nd defendant got
to execute the Ex.B.2 contract for sale dated 28.02.1975 and deliver possession
in favour of the 1st defendant as of his own and how far the Ex.B.2 contract
for sale bind the plaintiffs who were not parties to the same?
3. The 1st defendant who is in possession of the plaint-A schedule property as
its vendee in claiming through 2nd defendant, whether can claim protection under
Section 53-A of Transfer of Property Act and if so, with what consequences in
view of suit for specific performance is admittedly pending for adjudication on
the subject lis?
4. If not and otherwise whether 1st defendant got adverse possession, else what
right the 1st defendant got to oppose the suit claim by virtue of the Ex.B.2
non-possessory sale agreement dated 28.02.1975 executed and delivered possession
thereunder by 2nd defendant over the plaint A-schedule property as of his own
even after Ex.A.1 relinquishment deed dated 12.10.1969 by 2nd defendant in
favour of the plaintiffs?
5. Whether the judgment and decree of trial Court is liable to be set aside and
if so to what extent and with what findings?
6. To what result?
5. As the points 1 to 5 are inter-related and mainly revolving around Ex.A.1 and
B.2 and from the conflict of interest pleaded by plaintiffs against the 2nd
defendant for the 1st defendant sailing under 2nd defendant, for sake of
convenience and to avoid repetition of facts, the same are taken up together to
decide the lis.
Points-1 to 5:
6. Before coming to the factual matrix, the settled proposition of law including
from decisions cited by both sides are that:
6(a). judging is not merely a job, but a way of life based a spiritual wealth
that includes by obligation of an impartial search for truth;
6(b). trial is a voyage in which trust is the quest. Truth alone triumphs, not
falsehood. Through truth, the divine path is spread out by which the sages whose
desires have been completely fulfilled, reach where that supreme treasure of
truth resides.
6(c).Even in case of conflict between stability and truth, truth also preferable
as truth also preferable as truth should be the guiding star in the entire
judicial process. Truth alone has to be the foundation and justice. The entire
judicial system has been created only to discover and found out the real truth.
Thus, it is the bounden duty of Judges in the journey of trial/enquiry to
discover truth. Vide the Full Bench decision in Maria M.S. Fernandes Vs.Erasmo
J.De Sequerio5.
6(d). It is also important to recollect as part of application of evidence with
reference to the pleadings as part of discovering truth, the well laid down
expression of the Full Bench of the apex Court in Mrs. Rukhmabai Vs.late
Laxminarayana6 at para-19 by relying upon the Privy council's expression7 that,
it sometimes happens that persons make statements which serve their purpose or
proceed upon ignorance of the true position; and there it is not their
statements, but their relations with the estate, which should be taken into
consideration in determining the issue.
6(e). Even the decision relied upon by plaintiffs of Provident Investment
Company Limited Vs.Court of I.T.8 at para-3 speaks that Court is not confined
merely to looking to the form of the transaction between the parties (in giving
that to the legal rights and obligations thereunder), but the true legal
position that arises out of the document(by ignoring the form to ascertain real
nature) in which the transaction was embodied and for that the Court may even
look at the surrounding circumstances in construing the document. At para-8 it
was also held that, a relinquishment means the extinction of a right, thereby
there is nothing left to transfer or sell. It is not in dispute, that
relinquishment is only giving up the joint right and not by creating any right
by transfer to stranger. In fact, the Ex.A.1 relinquishment deed execution is
not in dispute, but for it is genuine or fraudulent and for that purpose being a
sham and nominal one not intended to act upon, as contended by 1st defendant in
claiming rights through the executant 2nd defendant.
6(f). It is also the well settled principle of law that to be kept in mind that,
a plaintiff can at best take alternative pleas, but not any inconsistent pleas
and even any pleas taken inconsistent to one another, he got the doctrine of
election of one of the pleas thereby the other inconsistent plea being taken
waived, for not entitled to approbate and reprobate. However, so far as
defendant concerned, he can take any number of pleas to non-suit the plaintiff
any in that course one plea may be inconsistent to the other, however, where he
makes a counter claim, he is at par with plaintiff so far as the counter claim
concerned, vide decision Balder Singh B.Manohar Singh9.
6(g). Coming to the doctrine of election, it is well laid down in Karuna Kapali
Vs.M/s Lalchand PC Trust10 in dealing with relevancy and importance of
pleadings and binding nature on facts admitted need not be proved under Section
58 read with Sec.17 of the Indian Evidence Act and order XII Rule 6 CPC and
inconsistent and alternative pleas and doctrine of election.
6(h). He, who accepts a benefit under a deed or will or other instrument, must
adopt the whole contents of the instrument, must confirm to all its provisions
and renounce all rights that are inconsistent with it. Election is obligation
imposed upon a party by Courts of equity to choose between two inconsistent or
alternate rights or claims in cases where there is a clear intention of the
person from whom he derives the one, that he should not enjoy both. Every case
of election therefore, presupposes plurality of rights, with an intention of the
party who has a right to control one or both, that one is substitute for others.
The party who is to take has a choice, but he cannot enjoy the benefit of both
as laid down in Streatfield Vs.Streat field and explained by the three judge
Bench in Nagubai Ammal Vs.B.shyam Rao11 that the doctrine of election is not
however confined to instruments. A person cannot say at a time that a
transaction is valid and thereby obtained some advantage, to which he could only
be entitled on the footing that it is valid and then turned round and say it is
void for the purpose of securing some other advantage, to approbate and
reprobate the transaction.
6(i). In Halsbury's laws of England Vol.13, page: 454 para 572, the principle
has been described as species of estoppels. The said principle is also been
accepted in C.Bwepathuma Vs.Velasine S.Kadamboli phaya12.
7. Thus, if the plaintiffs from their specific case against the defendants say
by relying upon Ex.A.1 relinquishment deed, for possession saying 2nd defendant
as per Ex.A.1 lost right and possession with no right to alienate under Ex.B.2
sale agreement in favour of 1st defendant and putting him in possession in
seeking as trespassers liable for ejectment and for past and future profits on
the property against 1st defendant who claims through 2nd defendant (their
father), that possession after date of Ex.B.2 sale agreement is thus adverse to
the plaintiffs represented by their mother as guardian in Ex.A.1 deed.
8. The 1st defendant-vendee from 2nd defendant under the Ex.B.2 agreement as
part of resisting plaintiffs suit claim set up adverse possession also and to
that effect placed reliance upon two decisions viz.,1) Collector of Bombay
Vs.Municipal Corporation of Bombay(5 judge Bench)13 at para-19 therein it was
held that before a right could be said to be acquired or lost by adverse
possession, it must have been the subject of possession by a man without title
as against the person with right and title. True, there can be an adverse
possession of a limited right like that of a mortgagee or a lessee or even a
permanent tenant, but still a right must have been enjoyed by the possessor
adversely to the claim of the true owner. (2) In Abdul Kareem Vs.Zuleika bi14
(referring to AIR 1918 Cal. 786) that where a gift is made by a father to his
infant son, no change of possession is necessary, the principle is that the
declaration of gift is deemed to change the possession by the father on his own
account into possession as a guardian on his son's account) at para-21 held that
or a Mohammedan executed gift in favour of minor granddaughter by constituted as
guardian of minor and delivered possession representing by him even from then
neither he nor his heirs got any right to the property gifted as that possession
constitutes adverse to donor.
9. Thus, it cannot be said that 1st defendant pursuant to the Ex.B.2 agreement
cannot set up adverse possession (besides protection of part performance
available or not under Section 53-A of the T.P.Act) by relying upon the decision
in Madanlal Vs.Mirza Abdul Gafful15; as what 1st defendant contests is contract
for sale executed by 2nd defendant as his own property and not even on behalf of
plaintiffs, but for 2nd defendant being father of the plaintiffs, thereby the
alienation binds the joint family and thus they cannot invoke the principle in
the decisions, for a defendant is entitled to alternative prayers even one is
inconsistent to the other in resisting the plaintiffs' suit claim.
10. There is no doubt no dispute on the principle laid down in the decision and
also referring to the other decision relied by the plaintiffs of Karnataka Board
of Wakfs Vs. Government of India16 that adverse possession is a hostile
possession by clearly asserting hostile title in denial of the title of the true
owner. It is a well settled principle that a party claiming adverse possession
must prove that his possession is "nec-vi, nec-clam, nec-precario", that is
peaceful, open and continuous. The possession must be adequate in continuity, in
publicity and in extent to show that their possession is adverse to the true
owner. Physical act of exclusive possession and the animus possidendi to hold
as owner in exclusion to the actual owner are the most important factors, which
are to be accounted in cases of this nature. Plea of adverse possession is not
a pure question of law, but a blended one of fact and law. Therefore, a person
who claims adverse possession should show a) on what date he came into
possession, b) what was the nature of possession, c) whether the factum of
possession was known to the other party, d) how long his possession is continued
and e) his possession was open and undisturbed. A person pleading adverse
possession has no equities in his favour, since he is trying to defeat the
rights of the true owner, thus it is for him to clearly plead and establish all
facts necessary for adverse possession. It was also held that a plaintiff filing
title suit, should be very clear about the origin of title over the property for
that plaintiffs relied upon SM.Karim Vs. Bibisakina17 Parsinni Vs. Sukhi18
D.N.Venkatarayappa Vs. State of Karnataka19 Maheshchand Sarma Vs. Rajkumar
Sarma20 P.Periaswamy Vs. P.Periathambi21.
11. The other decision plaintiffs relied upon is Tricon partners Vs. Smt.
Mandala Neeraja22 holding that to set up ouster among co-parceners as purchaser
from one of co-parceners as own, their possession should be for 12 years
continuous and they cannot count the possession of vendor as their possession.
This decision has no application unless the plaintiffs say, irrespective of it
is proved or not by the defendants of the relinquishment is sham and nominal and
2nd defendant and plaintiffs continued as co-parceners even after Ex.A.1, that
is not at all their case. So also the decision of Modadugu Venkata Subbamma Vs.
Kana Marlapudi Rattaiah23 that the alienation of joint benefit of estate to
bind other co-parceners; so also the decisions of Vadla Krishnaiah Vs. Nalli
Narasimha Reddy24 and Manikyala Rao25 holding (by referring to Siddeswar
Mukharji26 and also permanayakam27 and Achayya Vs.Venkata Subba Rao28 that the
purchaser of undivided share of co-parceners cannot acquire any interest in
specific item of properties and claim to be put in possession that any definite
piece of the family property, but for acquires on equity to step into the
alienor's shoes and work out his rights by partition as the tenant in common, he
cannot even in joint possession with other co-parceners and thereby cannot even
claim protection under Section 53-A of the T.P.Act. This decision also as
stated supra for not the case of plaintiffs has no application for them to rely.
12 Coming to the appreciation of evidence oral and documentary and the powers
and limitations of the appellate court:
12(a). As per Banarsi Vs.Ramphal29 and Pannalal Vs. State of Bombay30(5 judges
bench), the 1st appellate Court must re-appreciate (appreciate afresh) the
entire evidence in giving its findings supported by reasons as to decide the lis
and therefrom to find how far the decision of the trial court on any of its
findings and conclusions are correct or incorrect, including for confirmation or
reversal of said findings of the trial Court and the appellate Court for that
is conferred with powers of width amplitude under Order XLI Rule 22,24 and 33 so
as to do complete justice between the parties and such power is unfettered to
make whatever order it thinks fit, even between co-respondents, for ordinarily
cross-objections between co-respondents they do not prefer. It is also as per
Santosh Hazari V. Purushottam Tiwari31 and Madan Lal V. Yoga Bai32, and Harihar
Prasad Singh V. Balmiki Prasad Singh33, that in Civil appeals, particularly in
first appeal, the appreciation of evidence is at large like appreciation of
evidence in a suit, more particularly from Order XLI, Rule 33 and 24 C.P.C. No
doubt, the burden of showing that the judgment or even a finding therein under a
challenge in appeal is wrong or incorrect either wholly or in part lies on the
appellant and same is also the proposition in the course of the cross-objections
as the cross-objectors are at par with appellants so far as their contentions in
the cross-objections concerned, in the course of the cross-objections in
shifting the burden on them, from hearing the main appeal. Coming to the powers
of the 1st appellate Court in this regard concerned, more particularly from
Order XLI, Rule 33 and 24 C.P.C. and from several expressions of the Apex Court
including Koksingh V. Deokabai34; Gaisi Ram V. Ramji Lal35 and Madan Lal
(supra), that the 1st appellate court is competent to grant relief if finds
appropriate on any facts though that was not granted by the trial Court in
rendering complete justice and prevent to the extent possible scope for further
litigation and to give finality to the lis. It is in spite of non-filing of
appeal or cross-objections with any specific plea, for granting such relief it
is within the power of the appellate Court, subject to the rider that it cannot
grant more relief than what was granted by the trial Court for want of cross-
objections Ranjan Prakash V. Divisional Manager36 and Banarsi (supra). It is
needless to say the 1st appellate Court desires to reverse the judgment and
decree of lower Court; it should discuss the findings and set aside those which
are unsustainable either on fact or on law.
12(b). It is also the well-settled proposition of law from S.B. Noronal V. Prem
Kundi37 that, pleadings are not statutes and legalism is not verbatim. Common
sense should not be kept in cold storage, when pleadings are construed. In Ram
Sarup Gupta Vs. Bishur Narain Inter College38 referring to the constitution
Bench expression in Bhagwati Prasad V.Chandramaul39 and Sheodhari Rai V. Suraj
Prasad Singh40 Trojan and Company V. R M N N Nagappa Chettiar41 that the
pleadings should receive a liberal and not pedantic approach as meant to
ascertain the substance and not form, it only requires the opposite party to
know. Though generally no plea, no evidence can be looked into and for no issue
no finding can be given; it is not always the static principle from the fact
that even a plea not made specifically from deficiency in pleadings, but if
covered by implication and evidence let in and parties know the case, it can be
looked into and even to give finding no issue framed is of no bar to formulate a
point and decide. Burden of proof in such matters, pales significance as what is
necessary is party shall aware of the plea and let in evidence for the Court to
give finding from the hearing covering the lis but not outside the scope. It
was also held therein that even alternative remedy not pleaded if entitled,
Court can grant it where it is appropriate to do so.
12(c). In Balasankar Vs. Charity Commissioner, Gujarat42 at para-19-it was held
that, burden of proof pales significance when both parties adduced evidence and
it is the duty of the court to appreciate the entire evidence adduced by both
sides in deciding the lis. Further the party proved in possession of best
evidence is bound to produce the same to throw light on the lis and to unfold
any truth and thereby cannot take shelter on the abstract doctrine of burden of
proof saying burden not on him to prove by filing the same, as laid down in NIC
vs. Jugal Kishore43, and in Lakhan Sao Vs. Dharam Chowdhary44.
12(d). It was also laid down regarding appreciation of evidence in some of the
expressions vividly that, appreciation of evidence is no doubt from experience
and knowledge of human affairs depending upon facts and circumstances of each
case and regard had to the credibility of the witness, probative value of the
documents, lapse of time if any in proof of the events and occurrence for
drawing inferences, from consistency to the material on record to draw wherever
required necessary inferences and conclusions from the broad probabilities and
preponderance and from the over all view of entire case to judge as to any fact
is proved or not proved or disproved. Coming to the proof of facts out of the
facts in issue to the extent of relevant facts concerned, in some of the above
expressions it also discussed what is meant by proved, not proved or disproved
with reference to Section 3 of the Evidence Act. In N.K.Somani Vs., Punam
Somani45, also the scope as to what is the difference between proved, not proved
and disproved was discussed.
12(e). In RVEE Gounder Vs., RVS Temple46 case at paras 25 & 26, the Apex Court
discussed that, in civil cases the proof is by preponderance of probabilities
for including in suits relating to ejectment or declaration of title or for
possession; and the onus shifts from initial burden on the plaintiffs if able to
establish from preponderance of probabilities for entitlement, on the defendant
to rebut the same including with specific claim on their part if any. It is in
explaining the earlier propositions of law that, in a suit for ejectment,
plaintiff shall win or lose his case only on his own strength principle, since
it does not mean the onus of proof is static and always on the plaintiff or it
shall never shifts on the defendant even if the plaintiff is able to establish
his case from preponderance of the probability as to what is meant by proved,
not proved or disproved required for the above expressions with reference to
Section 3 of Evidence Act without going into the other components of "may
presume, shall presume and conclusive proof", from the very definition, proved
and disproved to say not proved is when it is neither proved nor disproved. It
requires considering the matters before the Court on any fact for either
believes it to exist or does not exist (which is by direct evidence), or
considers its existence so probable that a prudent man ought, under the
circumstance of a particular case to act upon supposition that it exists or it
does not exist (which is by circumstantial evidence). At para-25 of the
judgment, the Apex Court clearly held that in a suit for ejectment once
plaintiff has been able to create a high degree of probability so as to shift
the onus on the defendant, it is for the defendant to discharge his onus and in
the absence there of, the burden of proof lies on the plaintiff shall be held to
have been discharged so as to prove the plaintiff's title.
12(f). Coming to the law on interpretation of deeds and documents in i).
Narendra Gopal Vs. Rajat Vidhyardhi47 para-32 (cl.3) it was held that, in
appreciating the documents of unilateral dispositions and testamentary
dispositions(wills), the true intention of the testator (executant) has to be
gathered, not by attaching importance to isolated expressions but by reading the
document as a whole. The intention of the testator must be ascertained not only
from the words used but also from surrounding circumstances. The court will put
itself in the armchair of the executant/testator. (ii). In V.S.Talwar Vs.
Premchandra48 at para-7 it was held that in construing instruments court must
have regard not only to the presumed intention of the parties but also to the
meaning of the words which they have used. (iii). In Hind Plastics Vs. Collector
of Customs49 at para-17 it was held that, every instrument has to be so
interpreted as to accord with the intention of its maker having regard to the
language used. Though one cannot ignore actual words used and go after the
supposed intention of maker, since that would amount to entering the arena of
speculation, but all the same said principle is unexceptionable.
13. From the above principles of law laid down in the expressions, coming to
the decision on the facts in dispute covered by the points 1 to 5 for
consideration, the fact that 2nd defendant Maddula Gangaraju is son of
Narasimham garu @ Narasimha Rao through second wife after death of first wife
and the other children of said Narasimham through his third wife are
Sitharamakrishna, Sathyanarayana Murthy and Padmavathy and they constitute joint
family not in dispute and that is also borne by contents of the Ex.A.2
registration extract of the partition deed, dated 29.07.1955 filed and placed
reliance by the plaintiffs. As per the partition deed, dated 29.07.1955,
M.Gangaraju-2nd defendant was given B-schedule property viz., northern half of
the thatched house with 300 sq.yards of vacant site towards north-east of it
described as Item-I of I.S.Raghavapuram; In Item-II, vacant site, 1/3 joint
right known as hayrick site of I.S.Raghavapuram; Item-III in Sy.No.43/1,43/2 and
43/3 out of common extent 'z', wet land of I.S.Raghavapuram in an extent of
Ac.0.70 cents; Item No.4 I.S.Raghavapuram 'z', dry, Sy.No.202, northern Ac.1-13
cents; Item No.5 I.S.Raghavapuram 'z', wet, Sy.No.44/1 south-western side
Ac.0.26 cents; Item No.6 I.S.Raghavapuram 'z', dry, Sy.No.243, Ac.3-5- cents:
Item No.7 I.S.Raghavapuram, to the north of above item No.6 in a same survey
number land of Ac.2-75 cents; Item No.8, I.S.Raghavapuram 'z', dry, Ac.0-60
cents , Sy.No.137: Item No.9,I.S.Raghavapuram, Ac.1-00 out of Ac.3-00 cents
known as Ranganayakulucheruvu, 'z', dry; item No.10 Lakkavaram village, dry, the
house and site of Ac.1-65 sq.yards 1/3rd joint rights subject to life estate
rights of Maddula Veeramma in the thatched house and site of Ac.1-701/2 sq.yards
therein of undivided half joint rights. Thus, the plaint A-schedule property of
Sy.No.243, Items 1 and 2 are part of Ex.A.2 registered partition deed B-schedule
property Items 6 and 7 which are in I.S.Raghavapuram 'z' dry, Sy.No.243 to say
the plaint-A schedule property is part of joint family and coparcenery property
of 2nd defendant and his undivided sons-the plaintiffs 1 to 3 including those
among respondents 5 to 8 and 2nd defendant was the family-manager. In the
plaint filed by the plaintiffs 1 to 3 as indigent persons is dated 11.01.1987
the age of the 1st plaintiff shown as 28 years major, 2nd plaintiff shown as 26
years major and 3rd plaintiff was shown only 17 years by referring his mother
Savithramma as next friend and it was subsequently as per the orders in
I.A.No.522 of 1992 dated 05.02.1996, 3rd plaintiff is declared as major since
attained majority within one year after said pauper suit field on 11.01.1987.
14. Before the pauper suit filed on 11.01.1987, the plaintiffs issued legal
notice covered by Ex.A.3 dated 07.01.1987 to the 1st defendant D.Lakshmana Swamy
through advocate and that was served on him only on 19.01.1987 as per Ex.A.4
acknowledgment. It is to say that by the date of service of legal notice,
already the pauper suit was field on 11.01.1987. It is even otherwise to say
within no time and opportunity to give reply the suit was filed. The non-giving
for no opportunity to give reply cannot be to the advantage of plaintiffs
against the 1st defendant from the above. The Ex.A.3 legal notice of the
plaintiffs to the 1st defendant reads that the plaint schedule property is the
joint family property of the plaintiffs and their father Gangaraju (2nd
defendant), that said Gangaraju was a man of wayward habits and addicted to
vices, saying managing joint family properties of his volition, that he executed
registered relinquishment deed, dated 12.10.1969 in favour of his sons-
plaintiffs 1 to 3 relinquishing his undivided interest in the joint family
property and thereby the plaintiffs are absolute owners of all the joint family
properties therefrom with no right to deal with the properties by their father
M.Gangaraju after said relinquishment deed. It speaks very closely their mind
that, from dated 12.10.1969, their father has no right over the property covered
by said relinquishment deed. The notice further reads that the plaintiffs were
neglected by their father M.Gangaraju and they shifted in 1975 to
Jangareddigudem village for earning livelihood that there the plaintiffs 1 and 2
were carrying on business by running small killy shops for no necessary capital
to do cultivation by left the lands fallow that taking advantage of their
absence in the village, the 1st defendant D.Lakshmana Swamy trespassed into the
schedule property some time later and when the plaintiffs intended to sell away
the land for their business at Jangareddigudem, visited I.S.Raghavapuram on
03.01.1987 date corrected from typed date of '8' with pen as '3' and they came
to know that the 1st defendant D.Lakshmana Swamy is squandering on the lands and
realizing income therefrom, thus he is a tresspasser with no right to be in
possession of their absolute property and realizing paddy at the rate of 20 bags
per acre on the 4 1/2 acres and the other Ac.1-00 cents by raising chillies,
hence to vacate and deliver vacant possession and to pay past profits, else to
file suit. They did not mention in the Ex.A.3 notice what are the circumstances
under which their father relinquished his undivided rights in the joint family
properties, they did not mention even of they got any strained relation with
their father, they did not even mention their father cause entered said
D.Lakshmana Swamy into the property, they did not mention that they cultivated
the lands after Ex.A.1 dated 12.10.1969 and or came into possession or their
father not continued in possession, they did not even mention what made them to
leave the lands fallow for all the years after Ex.A.1 relinquishment dated
12.10.1969 or for all the three to leave the village to Jangareddigudem for so
called running of pan shops there instead of cultivation with their hard labour
if at all as whatever the investment to run pan shop can be invested in
cultivating the lands; even according to them as part of the joint family
properties those were cultivated by their father prior to Ex.A.1 relinquishment
deed, dated 12.10.1969 and it is not even their case that those lands lying
fallow and for the first time, 1st defendant brought it for cultivation. It is
the specific case of 1st defendant that pursuant to Ex.A.2 agreement, defendant
No.2 put him in possession while he was in possession and after he received the
Ex.A3 notice, he raised dispute through elders and 2nd defendant assured that
the notice can be ignored and he was going to execute sale deed as per the
agreement. These are the attending circumstances that are required to be
appreciated regarding the suit claim set out in the notice for the first time as
supra by the plaintiffs.
15. Coming to the Ex.A.1 relinquishment deed, dt.12.10.1969 it was on stamp
purchased in the name of their father - 2nd defendant on 10.10.1969 from stamp
vendor which are worth of Rs.9-00 paise one stamp and of Rs.2.50 paise the other
stamp.
16. The contents of this Ex.A.1 relinquishment deed read that by receiving
Rs.500/- as consideration, the undivided interest of 2nd defendant-Gangaraju was
relinquished by him in their favour in the joint family properties by referring
the three plaintiffs being his sons as all minors represented by his wife as
their mother-guardian by name Savithramma, that they got the ancestral property
in their joint possession and enjoyment, as he has no interest to take any share
by partition and fragmentation or to manage being father-manager, thereby as on
date whatever the rights he got in their joint family immovable and movable
properties and also cash, he relinquished his right by receiving Rs.500/- from
them so that they are conferred with rights over entire property under the
document. The attestors to the document are Dallapudi Kondal Rao and Ithakota
Nageshwara Rao who are P.Ws.3 and 5 respectively of the suit and the scribe was
one Balanaga Subbarao not examined as witness to the suit. A perusal of said
relinquishment deed, no way whispers there are any debts or what are the
circumstances which made him all of a sudden to relinquish having been managing
as father-manager after partition of the properties with his father in 1955
covered by Ex.A.2 registration extract of the partition deed, that too, in
favour of the minor children represented by his wife as their guardian, and it
is unknown how in those days by consideration of Rs.500/- passed to him by them
and by their what means to believe. The only reason assigned is he is not
interested in managing as father-manager of the joint family properties or to
receive any share by fragmentation on partition with the three sons and thereby
relinquishes.
17. It is practically an unilateral document and said reasons assigned no way
inspire confidence to believe as no ordinary prudent man with these reasons
relinquishes his right for alleged cause of division results fragmentation, that
too, when he is the father-manager already managing and cultivating the lands to
further managing and cultivating even on behalf of his minor sons by keeping
jointly. There is no mention for any disputes or he was wasting the properties
or how plaintiffs got Rs.500/-to pay. It was not mentioned of his wife paid the
amount or his father-in-law paid the amount and what is the necessity for him to
receive Rs.500/-even to relinquish, if relinquishes for said cause to make
believe. The evidence of witnesses not even consistent regarding said
consideration and the evidence of witnesses speak he simply wanted to change to
his son's name the property for continuing in his name felt not auspicious. From
the above it clearly speaks there was no intention to act upon, the Ex.A.1 was
nominally or as a sham document executed. It further reinforces from the facts
of not even acted upon by any mutation in plaintiffs name and their payment of
land taxes. Already the land was mortgaged to LMB and there is no recital
regarding the secured loan and other loans how to discharge. It clearly speaks
from all the important surrounding circumstances, for outcome of the document
with the recitals that it is a sham and nominal document. Even his father-in-
law i.e. maternal grandfather of the plaintiffs not present and attested to say
he was allegedly present and paid Rs.500/-as set up in P.W.2's evidence.
Further, if it was really cause executed by their maternal grandfather to save
from squandering away by 2nd defendant for its execution dated 12.10.1969 it is
believable of its execution on the stamps purchased on 10.10.1969 by 2nd
defendant only and it was registered on the next day dated 13.10.1969 and before
the Sub Registrar one of the attestors to the document D.Kondala Rao-P.W.3 was
one of the identifying witnesses besides one B.Sathyanarayana of Seethampeta and
nowhere the father in law of 2nd defendant shown present. In Ex.A.3 notice is
also it was kept in dark the contents of said Ex.A.1 relinquishment deed.
18. There is not even specific mention in Ex.A.3 notice that pursuant to Ex.A.1
relinquishment deed dt.12.10.1969 they have taken possession of the property
much less through their so called mother-guardian from their father by virtue of
the same. It is not even mentioned that after Ex.A.2 relinquishment deed
dt.12.10.1969 they ever came into possession and cultivated but for saying in
the notice Ex.A.3 that unable to do cultivation for want of capital they left
the village and shifted to Jangareddigudem only in 1975. If that is the case,
after 12.10.1969 till 1975 they were in the village and even no whisper about
they came into possession and cultivated the land; as had it been, the question
of their inability to invest for continuation of cultivation of the lands does
not arise for the first time in 1975 to leave the village to set up a killy shop
for livelihood in different village of different mandal by investing for it,
leaving the lands fallow.
19. Coming to further contents of plaint para-4, all the lands are valuable and
income yielding lands besides the dwelling house of I.S.Raghavapuram, that
however, the 2nd defendant-father of the plaintiffs was not properly managing
the properties and squandering the income and not even carrying cultivation by
neglected the interests of plaintiffs in the joint family properties and in
those circumstances disputes arose between them and at the interference of their
maternal grandfather, 2nd defendant agreed to renounce his share in the family
properties and executed Ex.A.1 relinquishment deed dt.12.10.1969 in their favour
which facts are silent in Ex.A.1 deed and Ex.A.3 notice. Ex.A.1 relinquishment
deed no way speaks there were any disputes or differences much less through his
father-in-law by his wife or by the minor children. Further, if really high
yielding lands and in cultivation by Ex.A.1 relinquishment deed dated
12.10.1969, the plaintiffs can continue cultivation and realize income with no
need to leave village much less to run pan shop for livelihood at other village
even 6 years after the Ex.A.1 document. From the above, there is some motive
behind execution of the Ex.A.1 so called relinquishment deed by not intended to
act and thus not acted upon.
20. Coming to para-5 of the plaint averments it is averred that even by the date
of relinquishment deed dated 12.10.1969(Ex.A.1) their father-2nd defendant
absolutely without any legal necessity, sold away Ac.4-00 cents of wet land
allotted to him under Ranganayakulucheruvu and raised loan from Land Mortgaging
Bank(for short 'LMB'), Eluru by mortgaging some items of property and the
renunciation deed (Ex.A.1) executed by their father-2nd defendant with the
object of safeguarding their interest so as to take then existing property and
subject to the liabilities and thereby he relinquished all his rights in the
joint family properties and therefore no longer he has any right to deal with
the existing properties since they are the absolute owners. They did not
challenge the said alienations of Ac.4-00 of land sold by their father of
Ranganayakulu cheruvu area and they did not challenge the loan obtained by their
father from LMB, Eluru by mortgaging all properties, if it was for his wayward
life as alleged in the Ex.A.3 legal notice with no such whisper in Ex.A.1
relinquishment deed much less in plaint para-4 but for saying he was squandering
incomes. Nothing attributed of 2nd defendant got any vices in the Ex.A.1
document. It is not even a partition by allotting already sold Ac.4-00 to the
share of their father for the remaining existing lands to their share subject to
LMB debt. If at all there is interference by their maternal grandfather to
protect their shares in the properties from their father squandering away being
the family-manager, which is not the proper recourse of executing a
relinquishment deed. The plaint further averments from para-6 reads that they
are unable to carry the cultivation for want of capital and thereby shifted to
Jangareddigudem to eak out livelihood and opened a killy shop there by raising
loans from bank and private individuals and surviving on the meager income of
the killy shops. This averment is strange to note that if at all high yielding,
no need to raise loans to livelihood by putting killy shop at other village but
for to do cultivation by raising loans from banks or private individuals, there
by raising loans from banks and individuals for surviving could not be believed.
It is either because a plea set up by them for the suit purpose to get over any
admission as to how the 1st defendant entered the property pursuant to the
agreement executed in his favour by their father the 2nd defendant to their
knowledge if any, if they say they are in the village and otherwise the lands
are fallow and unyielding sold to 1st defendant and put him in possession and
they with their father all shifted to Jangareddigudem for other means of all
their better living. That conclusion is in fact substantiating from recitals in
their documents being discussed supra. It is not even their case that after the
relinquishment deed dated 12.10.1969 they are separated in the mess from their
father and not living in the joint house of their father or their father left
even the family house with or without their mother to another place from
I.S.Raghavapuram. These are also the important circumstances of their knowledge
about contract for sale between the 1st defendant vendee and their father vendor
which they kept totally in silence for reasons better known and even got other
properties other than the plaint schedule even from the relinquishment deed
Ex.A.1 read with Ex.A.2 partition deed and suppressed all the means and filed
the suit as indigent persons.
21. Coming to other averments in the plaint that as the income from killy shops
are insufficient for their maintenance, they alienated the remaining items
allotted to their share by their father except the plaint schedule properties
which are covered by items 6 and 7 of the Ex.A.2 partition deed. It is further
averred that even though the alienations made by them, their father was also
figured as co-executant at the request of purchasers. It clearly speaks that
having not able to realize any income from the properties, they and their father
even after so called relinquishment deed jointly alienated the properties
covered by the relinquishment deed, which fact is suppressed by the plaintiffs
in laying the suit claim with some ingenious advice. It is to say suffice from
their own plaint averments at para-7 of so called relinquishment deed Ex.A.1
saying intended to act upon was not acted upon. As otherwise to satisfy the
purchasers from the alienations made by them of rest of properties, there is no
need of their joining their father at the request of their vendees as co-
executants, but for referring the registered relinquishment deed and a right of
them pursuant to it over the property and to ask their father at best to stand
as attestor besides their mother if any and it was not their case and the
relinquishment admittedly not even referred for said subsequent alienations to
say it was a sham and nominal document and not acted upon. When they themselves
say their father and themselves alienated the properties and executed the sale
deeds as joint vendors referring joint rights, even after Ex.A.1 so called
relinquishment deed, dated 12.10.1969 without referring it to such alienations,
it is also one of the circumstances strongly showing their father in possession
and management of the properties alienated along with them being the father-
manager subsequent to the Ex.A.1 relinquishment deed, to say that was never
acted upon as not intended to act upon being a sham and nominal document. From
para-9 of the plaint, the plea they set up was of came to know through Kondala
Rao-P.W.3 and their uncle Setharamaiah that their father-2nd defendant executed
agreement of sale in favour of 1st defendant agreeing to sell the plaint
schedule property for Rs.3400/- per acre and also delivered possession to him.
22. This is important to note from their very say that, even Ex.A.1
relinquishment deed is true and acted upon, their father without right was in
possession as of his and pursuant to it executed Ex.B.2 agreement and put in
possession, the 1st defendant, as of his own to say his possession is adverse to
the plaintiffs after Ex.A.1 deed and the animus is confirmed by his possession
and enjoyment as of his own and with that recital alienated under Ex.B.2
agreement dated 28.02.1975 to 1st defendant and put him in possession and if
that is the case, the defendants possession is adverse to the plaintiffs since
subsequent to Ex.A.1 to say for more than 12 years by date of suit on 11.01.1987
with animus possidendi and plaintiffs since represented by mother as guardian in
Ex.A.1 dated 12.10.1969, the limitation runs from beginning and by suit date,
their rights were extinguished under Section 27 of the Limitation Act and as
pleaded by 1st defendant he got right by adverse possession in claiming through
2nd defendant as agreement holder and plaintiffs have no right to claim
possession. It is also necessary to mention that, despite the knowledge of them
as mentioned in para-9 of the plaint supra of the 1st defendant is agreement
holder and his possession of the property is pursuant to the agreement for the
plaint schedule property; in the Ex.A.3 notice they did not whisper at all for
describing as if he is an outright trespasser for first time only in 1975.
23. Coming to the para-10 of the plaint averments, after Ex.A.1 relinquishment
deed executed by their father-2nd defendant in their favour, he has no authority
to deal with the property of them having voluntarily walked out from the
coparcenery and thereby, the contract for sale in favour of the 1st defendant
executed by the 2nd defendant is not binding on them, even in the agreement
dated 28.02.1975 it was alleged that it is for discharge of the liability due to
the co-operative LMB, Eluru, and as they are not parties to the contract for
sale, they have not authorized their father so to enter, the possession of the
property therein of the 1st defendant is without right and in wrongful
possession as trespasser in the eye of law and thereby they are entitled to
possession of the A' schedule property with profits and for that the cause of
action is relinquishment deed dated 12.10.1969 and agreement executed by their
father-2nd defendant in favour of the 1st defendant dated 28.02.1975 and
possession delivered therein on that day and alter on 31.01.1987 when they
allegedly came to know of the trespass and wrongful possession of the 1st
defendant in cause issued notice before filing the suit. Even from that, to say
2nd defendant while enjoying with possession the property as if his own and with
such recital as his own executed Ex.B.2 sale agreement dated 28.02.1975 and
delivered possession on that day itself to the 1st defendant, from that to say
since they left the village prior to that even leaving the land unattended and
2nd defendant's possession not even on their behalf, as he was said to be in
possession from their own say by date of suit for more than statutory period
with animus possidendi of 2nd and 1st defendants openly, peacefully and
uninterruptedly by setting upon right by 2nd defendant even knowing that of
plaintiffs, the defendants thus perfected right over the property by adverse
possession against the plaintiffs. It is being conscious of their delay in
filing of the suit, they by setting up of rights under Ex.A.1 so called
relinquishment deed, filed suit after Ex.A.3 notice dt.07.01.1987 without even
waiting for acknowledgment of proof of service of notice that was served on 1st
defendant only on 19.01.1987. On their own from the above, the suit claim is
barred unless to say Ex.B.2 agreement is on their behalf also, otherwise they
cannot say 1st defendant cannot claim adverse possession through 2nd defendant,
against them. This is the factual background of the case which is the outcome
of the suit claim by plaintiffs and it shows the 2nd defendant-their father is
behind in bringing to light from existence of the never acted and unintended to
operate so called relinquishment/release deed Ex.A.1 dated 12.10.1969 in case
filing the suit. In fact, had 2nd defendant contested or even 2nd defendant
filed the suit against the 1st defendant or plaintiffs and 2nd defendant
together filed the suit against the 1st defendant, 1st defendant got no defence
to the rescission of contract but for the way in which present suit filed gives
scope and life to the defence claim.
24. From this background now coming to the other facts that their father-2nd
defendant even made party remained ex parte having been served and did not even
choose to contest, however, the evidence on record speaks he was attending Court
for adjournments including during evidence of witnesses of plaintiffs. It
speaks as one of the attendant circumstances as pointed out by the 1st defendant
of the suit is outcome of collusion between the plaintiffs and 2nd defendant by
make use of the sham and nominal document-Ex.A.1.
25. The contest of the 1st defendant therefrom to be seen at the cost of
repetition that, the 2nd defendant is educated, worldly wise and pakka
businessman and the allegations contra against him in the plaint as if he was
squandering income of properties of joint family and in carrying of cultivation,
badly neglecting to safeguard the rights of plaintiffs in the properties are
concocted for the case purpose; so also by setting up the alleged dispute by
which their father allegedly executed the Ex.A.1 renouncement deed (dated
12.10.1969) at the instance of their maternal grandfather in their favour and it
is with no truth or substance; that there was no necessity to execute so called
Ex.A.1 renunciation deed dated 12.10.1969 by 2nd defendant in favour of
plaintiffs, that the allegation of 2nd defendant sold Ac.4-00 cents of land of
Ranganayakulu cheruvu and raised loan from LMB, Eluru by mortgaging all the
properties of the family without necessity is also an allegation set up for the
case purpose. It is contended therefrom that, by so called relinquishment deed,
2nd defendant relinquished all his lands over the joint family property and he
has no right to deal with the properties existing or plaintiffs alone the
exclusive owners is a false version; so also alleged mismanagement of the joint
family properties by 2nd defendant. It is also contended that, the recitals in
the so called relinquishment deed are false, fictitious and make believe, that
it is a sham, nominal and bogus document brought into existence by the 2nd
defendant with ulterior and wrongful motive. It is also contended that it is
false and untenable to state he relinquished his undivided 1/4th share by
receiving a paltry amount of Rs.500/-; though the fact remains of they continued
as members of joint family even thereafter and the so called relinquishment deed
was never intended to operate and never acted upon and never given effect by the
parties and it is patently a sham and nominal document brought into existence by
2nd defendant for his own reasons, that even thereafter, the plaintiffs and 2nd
defendant together obtained loan by mortgaging joint family properties which
include plaint schedule property and also sold some of their properties jointly
to third parties admittedly by execution of registered documents together
describing as members of joint family, which exposes the utter falsity of the
suit claim and nominal nature of so called relinquishment deed and the false
attempt to explain for joint execution of sale deeds for the subsequent
alienations as if at the instance of vendees they joined their father also. It
is contended as set up conveniently by intended to explain if possible the clear
documentary admissions of they all members of the joint family for the joint
family properties which they cannot get over by operation of estoppel. It is
further contended in the written statement from para-4 that, the 2nd defendant
for the necessity of joint family contacted debts from the cooperative LMB
Eluru, on security of the properties and also indebted to others and he offered
to sell the plaint schedule property to the 1st defendant and after
negotiations, bargain and settlement; he agreed to sell and accordingly 2nd
defendant executed for the plaint schedule property the Ex.B.2 sale agreement
dated 22.08.1975 for the total Ac.5-50 cents in two items in Sy.No.243 in
I.S.Raghavapuram belong to them at Rs.3400/- per acre and said sale agreement
was duly executed by 2nd defendant for discharge of joint family debts and for
the benefit and necessity of their joint family and possession was also
delivered pursuant to the agreement to the 1st defendant by 2nd defendant, by
represented that they were selling the property to discharge loan to LMB Eluru,
and other debts, which the 1st defendant as vendee bona fide believed and
entered the agreement and in all under the agreement he paid Rs.5,000/- on the
date of agreement 28.02.1975; Rs.800/- in March, 1975, Rs.100/- on 24.03.1975;
Rs.3,650/- for discharge of debt due to Lunani Tobacco Company, Eluru on
06.04.1975, Rs.1000/-on 03.05.1975, Rs.500/- on 06.06.1975, Rs.1000/- on
016.07.1975 and all the payments were duly endorsed on the back of the agreement
and signed by 2nd defendant and 1st defendant on behalf of the 2nd defendant
made number of payments in discharge of the bank debts total 19 payments from
15.03.1975 to 07.04.1983 to the bank and they are borne by vouchers; viz.,
Exs.B.2 agreement, Exs. B.3 to B.8 payment endorsements and Exs.B.9 to B.27
receipts and in addition 1st defendant also paid Rs.350/-+Rs.301-45ps towards
arrears of electricity charges due by 2nd defendant in respect of service
connection No.26 and Rs.506/- towards discharge of 2nd defendant's debt to
cooperative Society of G.Kothapalli in all total Rs.23,639-45 paise paid by 1st
defendant towards sale consideration which all received as detailed supra by 2nd
defendant and thus he paid entire sale consideration thereby under the contract
for sale dated 22.08.1975 which payment is even more to the payable, that he has
been in uninterrupted possession and enjoyment pursuant to the sale agreement
and also by paying land revenue and other taxes for all these years and he is
ready and willing to perform his part of the contract to obtain sale deed and he
is entitled to the benefit of Section 53-A of the Transfer of Property Act and
the plaintiffs and their father are clearly barred from disputing or in any
other manner questioning the right and possession of property by 1st defendant
under the contract for sale, that 1st defendant has been in possession and
enjoyment of the properties pursuant to the contract for sale and as absolute
owner and revenue authorities also in recognition of his right, title and
possession, granted patta in his favour to the knowledge of plaintiffs and 2nd
defendant, and from admissions and declarations made by 2nd defendant before
revenue authorities, separate patta No.437 was granted in favour of 1st
defendant being bonafide purchaser for consideration. It is also contended that
he also perfected right and title over the property by adverse possession for
more than statutory period and invested on the lands and improved the lands by
deepened borewell and installed motor and pumpset by spending Rs.50,000/- and it
is to blackmail him, the suit is filed by the plaintiffs and 2nd defendant
illegally for wrongful gain and to have unfair advantage, and the contra
allegations in the plaint are utterly false and untenable and sought for
dismissal of the suit saying the plaintiffs besides got full knowledge of the
agreement of sale and possession pursuant to it of the 1st defendant of the suit
property have no cause of action.
26. From this background, coming to the evidence on record on behalf of the
plaintiffs, the evidence of P.W.1-1st plaintiff in the chief-examination is
that, the plaint schedule property was not yielding any income and thereby they
kept the land in fallow and left for Jangareddigudem. It is to say the land was
not yielding even prior to their leaving for Jangareddigudem in 1975 and also
prior to the alleged execution of Ex.A.1 relinquishment deed dated 12.10.1969
and when such is the case the plaint averments of high yielding properties and
their father-2nd defendant was spendthrift or squandering away the huge incomes
therefrom and there was a dispute in this regard or therefrom 2nd defendant was
made to execute the so called Ex.A.1 relinquishment deed dated 12.10.1969 at the
intervention of their maternal grandfather are proving false, through this
sentence itself. Apart from said evidence contra to the contents of Ex.A.1
cannot be permitted, the Ex.A.1 contents clearly speak no reason or cause for
any prudent person to execute but for some malafide intention behind it as a
sham and nominal document or as a fraudulent and bogus document at all means
with no any little intention to act upon, brought into existence with some
ingenious brain, as stated supra. There is a clear contention in disputing the
document by the 1st defendant. Thus the trial Court was wrong in still saying as
if the genuineness of Ex.A.1 document was not disputed by the 1st defendant. The
P.W.1's evidence in Chief to say 1st defendant did not give reply to their
Ex.A.3 notice even served by Ex.A.4 and not delivered possession to them, they
filed the suit is not correct for the reasons mentioned supra as there is no
time to the date of suit from date of notice to give reply which facts are
suppressed without giving any dates in so saying in P.W.1's chief-examination.
The 1st defendant's clear version is he raised dispute and he was promised by
2nd defendant to execute sale deed and the alleged sale of land of
Ac.4-00 at Ranganayakulucheruvu of joint family by 2nd defendant not even filed
to know what was the purpose of said sale whether it is for family necessity or
for personal expenses of 2nd defendant or for any tainted avyavaharika purpose,
apart from said sale transaction not disputed and questioned by plaintiffs even
admittedly. Therefore, at one breath saying the lands are not yielding and
fallow and unable to survive they left the village, at the other breath they
again say that the lands are high yielding and 2nd defendant-their father was
squandering away the incomes or that 1st defendant-vendee is entered into
possession by 2nd defendant as trespasser without right or that he got 10 to 15
bags of paddy per acre from the plaint A-schedule property and from one acre
raising tobacco and chilli crops and getting profits of Rs.7,000/- per acre, are
not only inconsistent but also untrue per se from proper appreciation of said
evidence.
27. In the cross-examination of P.W.1, he deposed that they all 5 brothers to
say only three plaintiffs filed and their younger brother Lakshminarayana and
Sathi Babu were not made parties to the suit even they were born by then and
they are also members of the co-parecnery and not even the case of the suit
filed for their benefit also. Their non-joinder also being necessary parties is
a bar to the suit, but for to say in the appeal after death of 2nd defendant
they were brought on record. P.W.1 did not even disclose his date of birth. He
deposed that 2nd plaintiff is two years younger to him whose date of birth also
he is not able to say. He deposed that he cannot say when their father-2nd
defendant mortgaged the plaint schedule properties to LMB, Eluru which was after
the Ex.A.1 relinquishment deed and he did not read even the contents of Ex.A.1
and they did not pay any amount to their father under Ex.A.1. Thus, the so
called payment of Rs.500/- under Ex.A.1 is not true. He denied the suggestion
that Ex.A.1 relinquishment deed was brought into existence with a view to avoid
payment of debts by his father to others and it is a fraudulent or sham and
nominal document. P.W.1 deposed that he does not know the name of the scribe of
the document or the other attestor but for D.Kondal Rao to say that his father
was gambler and alchoholic, for no such averments in Ex.A.3 notice or Ex.A.1
relinquishment deed or in the plaint or in the chief-examination, it is baseless
to believe and even they admittedly issued no notice to their father much less
through their mother of wasting any properties or income by addicting to vices.
For saying, the plaint schedule property market value is Rs.1,00,000/- per acre,
no document is filed. At other breath, he was saying as on the date of Ex.A.1
relinquishment deed, he cannot speak its value. The value mentioned in the
plaint also no way supports his version. He deposed that, after Ex.A.1
relinquishment deed, their parents begot four more children viz., two sons and
two daughters besides the three plaintiffs. It shows there are cordial relations
between the 2nd defendant and his wife and with no any disputes all by their
living together. P.W.1 deposed that his father obtained loan from LMB, Eluru;
though he cannot say the year when obtained and they never issued any notice to
their father in this regard about allegation of wasting of money. In the year
1969 he took his maternal grandfather Immadi Pullaiah to raise dispute with his
father. It was not his version in Ex.A.3 notice or the plaint, to believe. He
deposed that there were no elders present at the time of alleged dispute.
Earlier he deposed that his mother never issued any legal notice and again says
his mother issued legal notice to his father but he cannot say the date. He did
not even deny the sale agreement but for saying he does not know about sale
agreement entered by his father with 1st defendant. He admitted all the
signatures on the document as that of his father and again attempted to wriggle
out saying he cannot say when in the plaint they admitted 1st defendant's sale
agreement as executed by 2nd defendant and also put 1st defendant in possession
on the agreement dated 28.02.1975 as per cause of action para of plaint and 2nd
defendant also not disputed the sale. Thus, no more proof of Ex.A.2 agreement
required. P.W.1 deposed that he does not know said Gollapudi Brahmanandam-
document writer and scribe to the sale agreement and he cannot say whether the
agreement is true or not and as to whether his father received consideration
mentioned in the agreement or not and of all the payment endorsements Exs.B.3 to
B.8 and as to 1st defendant in all paid Rs.23,639-45 paise under the agreement
including those covered by Exs.B.9 to B.27. He deposed that only in the year
1987 he came to know of 1st defendant's possession of plaint schedule property.
From the year 1975 itself when he is in possession and the plaint averments
described in earlier paragraphs show of the agreement and delivery of possession
on 28.02.1975. Thus, it is strange to believe that he came to know about 1st
defendant's possession only 12 years later for the first time in the year 1987,
it is quite unbelievable as really Ex.A.1 relinquishment acted upon from 1969,
they could not leave the property unattended even after their alleged leaving of
the village in 1975 till 1987 that too in their say then only came to know and
not when visited the property found in possession. It speaks they never
exercised any right in property under Ex.A.1 relinquishment thereafter but for
by 2nd defendant-their father and who pursuant to it executed the Ex.B.2 sale
agreement dated 28.02.1975 and the recitals speak that the 2nd defendant-father
of the plaintiffs is owner of the property and there is loan to LMB, Eluru over
the property and for its discharge and discharge of other debts he offered to
sell and entered the contract for sale at Rs.3400/- per acre and on the date of
agreement on behalf of the vendor, vendee paid and acknowledged by receipts
Rs.5,000/- to the LMB, Eluru, for the loan and remaining consideration was
agreed to be payable by 30.05.1975 to obtain sale deed and mentioned that
possession will be delivered at the time of the registration of the sale deed
and if he fails to pay the balance consideration within the time and obtain sale
deed, the agreement being cancelled and the total extent mentioned is item-I to
the extent of Ac.2-75 cents and item-II to the extent of Ac.2.75cens in
Sy.No.243. No doubt, as per Ex.B.2 sale agreement the same is not possessory
agreement much less any endorsement of delivery of possession to claim
protection under Section 53-A of the Transfer of Property Act, but for to say
even by plaintiffs from plaint cause of action para and P.W.1 cross-examination
discussed supra of 2nd defendant put the 1st defendant in possession on the sale
agreement dated 28.02.1975 and he continues therefrom. The payment endorsements
therein covered by Exs. B.3 to B.8 are from 11.03.1975 to 16.07.1975
acknowledged by the executant-the 2nd defendant with dates of receipts of the
amounts but for out of the consideration at Rs.3,400/- per acre, only Rs.5,000/-
towards discharge of the LMB paid thereunder referred, besides other cash
payments under Exs.B.3 to B.8 to 2nd defendant and also among Exs.B.9 to B.27
payment receipts all the amounts paid on behalf of the 2nd defendant by 1st
defendant (vendee) to the LMB covered by Exs.B.10 to B.27. (Ex.B.39 electricity
demand receipt also was paid on behalf of the 2nd defendant by 1st defendant
dated 08.02.1980). Ex.B.9 is the loan discharge payment receipt to the Fisheries
Extension Officer of the IMS loan recovery incurred by 2nd defendant paid on
15.03.1975. All the above show that 1st defendant paid to 2nd defendant is full
consideration; though not within agreement originally stipulated time, the
endorsement for subsequent payments show waiver of any claim of time is essence.
Further once 2nd defendant put 1st defendant in possession pursuant to
agreement, he is not trespasser against 2nd defendant for liability to pay
damages or profits and once 2nd defendant in possession without right and also
put 1st defendant in possession, their possession is adverse to plaintiffs and
plaintiffs lost right over the property for more than 12 years with animus
possidendi after Ex.A.1. Otherwise, 1st defendant's possession is not as true
possession as the sale for not any avyavaharika purpose but for discharge of
loans pre-existing from legal necessity to bind plaintiffs from Ex.A.1 not
acted upon. Even taken the recitals in Ex.B.2 as of 2nd defendant's property and
not referred for plaintiffs and other sons also vide decision S.M.Jakati
Vs.S.M.Borker50 holding that the liability of a Hindu son to discharge debts of
his father which are not tainted by immorality or illegality (burden is on the
son to so prove) is founded in the pious obligation of the son which continues
to exist in the lifetime and even after death of the father and which does not
come to an end as a result of partition of joint family property.
28. The decision of Kalwadevadatham Vs. Union of India51 Full Bench of apex
Court at para 14 held that registered partition deed between father and sons,
even contended as real to protect the interest of minor sons, showing mother as
guardian of said minors with averments father not living with family, there was
nothing to show father ill-disposed towards the sons or actuated by desire to
harm their interest, it is nothing but a nominal document with a real purpose to
save the property by showing in sons shares and for no provision for debts
existing by them to discharge, the suit as per evidence shows Nagappa(father)
and his wife(mother) behind the litigation, that too, when evidence show all
living together, the story of he was living away proved false and shows he was
in possession of all properties even later and his showing interest in the lis
by attending Court, the partition deed held never intended to act upon and not
to be validated. This decision squarely applies to the present facts to conclude
from what is discussed supra on the facts of Ex.A.1 so called relinquishment is
unreal and never intended to act upon and not acted upon and 2nd defendant never
parted with possession and plaintiffs suppressed all the facts in laying the
suit claim in collusion with their parents falsely against the 1st defendant by
using the document as a device in stead of fairly filing any suit for rescission
of contract for sale and recovery of possession of the property. Further, in
this case the Exs.B.28 to B.32 are the land revenue payment receipts by the 1st
defendant during the years 1981,1982,1986,1987 and 1990 for the land in patta
No.437 of I.S.Raghavapuram claimed as per plaint schedule which is in Sy.No.243.
Ex.B.33 is proforma for pattadar passbook in the name of 1st defendant for
I.S.Raghavapuram land, the survey number mentioned is 252/3 tallied for plaint
schedule Sy.No.243, as S.No.243 was re-numbered as S.No.252. Ex.B.44 is the
pattadar passbook issued in favour of 1st defendant dated 10.10.1994 for said
Sy.Nos.252/3 and 13 for fasili 1406 of I.S.Raghavapuram. Ex.B.49 is also for
said Sy.No.252/2 of I.S.Raghavapuram. Now coming to the alienations made by
plaintiffs and their father-2nd defendant together subsequent to the alleged
relinquishment deed dated 12.10.1969 concerned, Ex.B.1 is the registration
extract of mortgage deed dt.31.05.1971 executed by 2nd defendant-M.Gangaraju as
guardian on behalf of his minor sons Narasimha Rao, Padmanabham and
Venkateshwara Rao- plaintiffs 1 to 3 in favour of LMB Eluru for loan of
Rs.5,000/- availed on mortgage of the lands in Sy.No.252 for Ac.12-75cents in
item-I, for Ac.2-50 cents in item No.2. So it all correlates to say old
Sy.No.243 mentioned in Ex.A.2 partition deed is changed as Sy.No.252 from the
extents referred correlates to plaint schedule. Apart from other extents of
Ac.1-65cents, Ac.1.66 cents in Sy.Nos.226/1 and 225/2 etc., there is no whisper
of Ex.A.1 relinquishment deed therein. It is a registered mortgage deed and even
the plaintiffs having knowledge of the same, they did not issue any notice to
their father or the LMB. They did not challenge the mortgage of 1971 at any
point of time including after issuing Ex.A.3 legal notice to the 1st defendant
in the suit to question mortgage if at all the so called relinquishment deed
acted upon and this registered document itself is foolproof in saying within one
and half year after alleged execution of relinquishment deed, this registered
mortgage deed is executed by 2nd defendant as father-guardian including for the
minor sons of him in favour of the LMB, Eluru by saying the properties are the
joint family properties of them on security of loan of Rs.5,000/- referred
therein. It also substantiates the fact that the alleged Ex.A.2 relinquishment
deed dated 12.10.1969 was not intended to act upon and not even acted upon from
the subsequent conduct of plaintiffs and their father-2nd defendant including
from this Ex.B.1 document, apart from that Ex.B.34 is Registered mortgaged deed
for Rs.5,000/- dated 19.11.1969 incurred by 2nd defendant who executed mortgage
deed for and on behalf of his minor sons and also as family-manager by
mortgaging all the properties of I.S.Raghavapuram village including the land of
Ac.2-75 cents and Ac.3-55 cents which correlates to the plaint schedule for the
benefit of the family, the loan availed and it is to discharge the loan, the
Ex.B.2 sale agreement was executed as referred of Rs.5,000/- loan paid of and
voucher received as part of consideration referred therein. Further, under
Ex.B.35 registered sale deed dated 10.10.1969 the 2nd defendant for himself and
on behalf of his undivided minors sons as guardian executed sale deed for land
in Sy.No.172-4/2 of Ac.5-00 out of the extent of Ac.5-24 cents of
I.S.Raghavapuram village by referring the same as one of the joint family
properties fallen to his share in the partition from his father, that himself
and his sons are members of the joint family and for the family necessities.
Said alienation also not challenged by plaintiffs at any time later. The vendee
Gollapalli Kondalrao s/o Veeranna is no other than P.W.3 one of the attestors to
Ex.A.2 relinquishment deed dt.12.10.1969. This document is dated 10.10.1969 and
registration of this document was also on 13.10.1969, which is the registration
date of Ex.A.1 relinquishment deed. Both were registered on even date and
registration number of Ex.A.1 was 29 of 1969 dt.13.10.1969 having executed sale
deed on 10.10.1969 on purchased the stamp for relinquishment deed on that date
and executed relinquishment deed on 12.10.1969 and registered both the documents
on 13.10.1969 and in the sale deed referred as for family necessities sold the
properties to said G.Kondalrao (P.W.3) who is no other than one of the attestors
of the Ex.A.1 relinquishment deed. It shows the scheme behind execution of
Ex.A.1 relinquishment deed is not intended to act upon but to defraud any
creditors and save the property from creditors by showing the names of his sons
if possible as a sham and nominal, if not even fraudulent document as laid down
in Nagappa's case(supra). Even without given effect to Ex.A.1, subsequent
alienations made is crystal clear, not only from Ex.A.1 and other facts referred
supra, but also from Ex.B.36 another registered land mortgage deed dated
03.11.1971 in favour of the LMB Eluru as father-manager of the properties as
still joint family for himself and on behalf of the minor sons for the loan of
Rs.3,400/- availed by mortgage of the land in Sy.Nos.243, 226/1, 226/2, and
other extents. Apart from it, Ex.B.37 is another registered sale deed dated
26.05.1982 executed by the 2nd defendant in favour of Mokkavalli Apparao, for
himself and as father manager for and for his sons, saying the land is part of
the ancestral property and not in convenient enjoyment and for discharge of
debts. It is when long subsequent to Ex.A.1 dated 12.10.1969, suffice to say
Ex.A.1 never acted upon being a sham and nominal document. The extent shown in
said Ex.A.37 is of Sy.No.226/1, 226/2 and 225/4 and 225/5 of I.S. Raghavapuram.
Ex.B.38 is another registered sale deed on the even date for Rs.5,440/- with
continuous registration number executed in favour of the same vendee Mokkavalli
Apparao by M.Savithramma-wife of 2nd defendant for Sy.No.225/2, an extent of
Ac.1-28 cents of I.S.Raghavapuram by describing for family benefit the sale is
effected. It is also important to note that, 2nd defendant is one of the
attestors of the sale deed. It is clear that the plaintiffs are minors
representing by their mother for Ex.A.1 relinquishment deed dated 12.10.1969 and
on 10.10.1969, the 2nd defendant-their father on behalf of the plaintiffs also
sold the property to one of the attestors of the Ex.A.1 relinquishment deed i.e.
D.Kondalrao (P.W.3) for family necessity of the joint family and in 1971
besides other alienations and mortgages to the LMB, at the same time in favour
of same vendee M.Apparao not only 2nd defendant for himself and minor children
showing as guardian sold some of the properties wherein the wife of the 2nd
defendant who is mother of plaintiffs also by the self-same date to self-same
vendee for another consideration sold another extent of land of the village for
family benefit to which 2nd defendant is one of the attestors. That itself
speaks the family relations between them is cordial and what is deposed by the
P.W.1 in chief-examination of there were strained relations between his father
and mother or his mother even issued notice etc., are proved false. The sale
transactions of 1982 and the Ex.A.1 notice dated 07.01.1987 and the present suit
filed on 11.01.1987, about 5 or 6 years thereafter in all to say the plaintiffs
guardian-cum-mother represented them for Ex.A.1 relinquishment of 1969 also got
knowledge of the sale transactions including in the year 1982 and they are in
cordial terms and what the plaintiffs speak of they left the village in 1975 to
Jangareddigudem for livelihood even taken true, as in Ex.B.38 transaction, her
address was referred as resident of Jangareddigudem and 2nd defendant's address
also referred as resident of Jangareddigudem in 1982 to say all they shifted to
Jangareddigudem and not plaintiffs alone.
29. From this background, coming to P.W.1 further cross-examination, he cannot
pretend no knowledge of all the transactions and the suit sale agreement
transaction and the several payments made by 1st defendant for discharge of
debts also and he also deposed that from the plaint schedule property patta
number is 437 that is for which the 1st defendant paid tax receipts referred
supra and he also deposed that patta was granted by revenue authorities for the
suit land in favour of the 1st defendant pursuant to the suit sale agreement. He
denied the suggestion that suit is filed falsely to extract money from 1st
defendant by them if possible. He deposed that, he does not know whether 1st
defendant spend more than Rs.50,000/- to improve the plaint schedule property
and also does not know whether 1st defendant raised dispute through elders after
receipt of Ex.A.3 notice against them and their father P.W.1 also admitted the
Ex.B.35 sale transaction executed by their father for him and on behalf of them
in favour of P.W.3 D.Kondalrao and again by saying he does not know said sale
transaction, which shows he attempted to wriggle out if possible and he deposed
that they sold land of Ac.3-80 cents under registered sale deed dated 26.05.1982
to M.Apparao and his father and they all 5 brothers are parties to said the suit
sale transaction (Ex.B.37); though he deposed that he does not know why his
mother sold Ac.1-37 cents on that day to said M.Apparao (Ex.B.38 sale
transaction) and denied the suggestion of not entitled to claim possession of
plaint schedule property. He categorically deposed that, all the joint family
properties that fallen to the share of his father (covered by Ex.A.2 partition
deed, dated 29.07.1955) were sold away by them, however, by saying except the
plaint schedule property. It all speaks as even they left the village to
Jangareddigudem including his father and mother having sold the properties and
the suit laid having sold the property under agreement for sale to 1st defendant
by 2nd defendant for himself and on behalf of plaintiffs also for reasons better
known. It shows the collusive outcome between plaintiffs and 2nd defendant as
suggested in the attempt to extract money if possible by them. P.W.2 mother of
plaintiffs deposed that the partition between 2nd defendant (her husband) and
her father-in-law was prior to her marriage and about 10 acres of land fallen to
the share of her husband (B-schedule property of Ex.A.2 partition deed). She
deposed that her husband was not properly cultivating the lands and her father
used to come to village and cultivate the land of I.S. Raghavapuram from
Chakicherla 7 kms away and got dug borewell and her father was raising wet crops
of paddy by investing money in the lands and realizing the amounts and after
deducting the expenditure paying to her husband who was wasting the amounts of
income from the lands and thereby her father insisted her husband for
relinquishment of rights over the property in favour of his sons, for which he
agreed and received Rs.500/- from her father at the time of execution and
executed Ex.A.1. Said evidence of her is a different story and proved false from
what all discussed supra. In fact, as detailed the contents of Ex.A.1 supra,
there is no such recital of consideration paid Rs.500/- was by her or her
father. It shows neither P.W.1 nor P.W.2 have no regard for changing their
stands time to time including in the evidence discussed supra. Her father was
not even a witness much less attestor or identifying witness before Sub
Registrar to the Ex.A.1 even to make believe at the time of execution he paid
Rs.500/- or he asked to relinquish the rights or cause executed the document if
not voluntary by 2nd defendant and if to act upon, as discussed supra. She
further deposed that, her husband availed loan of Rs.5,000/- from LMB, Eluru on
the properties covered by Ex.A.1 relinquishment deed prior to Ex.A.1. In fact
that is covered by Ex.B.34 registration extract of mortgage deed referred supra
and continuation to it is Ex.B.1. She deposed that plaintiffs are not liable to
discharge said debt. Admittedly, plaintiffs did not challenge said alienation.
She deposed that, her father died 20 years back may be to say he could not be
examined in proof of alleged passing of consideration of Rs.500/- but to believe
there is no such mention in Ex.A.1 or in Ex.A.3 notice. She deposed that
herself and their children shifted to Jangareddigudem from I.S.Raghavapuram 20
years back and her husband used to visit Jangareddigudem now and then. It is,
in fact, not correct as discussed supra, from the recitals of Ex.B.37 and 38
sale deeds executed by her, her husband and sons in favour of M.Apparao,
dt.26.05.1982 by referring their address as all residents of Jangareddigudem.
Thus, what she deposed of her husband had not taken responsibility of family
affairs is untrue and he was staying away is also untrue. The plaintiffs alone
claimed performed the marriages of two daughters and she also disposed of her
sthreedhana property spent for the marriage of her daughters. It is not
inspiring as true, from what is discussed supra. In her cross-examination, she
deposed that her husband is behind the litigation and he also came on that day.
It is surprising to note that even her husband-2nd defendant to the suit did
not choose to file written statement and did not contest and having remained ex
parte, when attending the Court for adjournments and attended including on that
day when she was giving evidence and the sale deed recitals also speaks that
they are all residing in Jangareddigudem having shifted from I.S.Raghavapuram;
it clearly speaks to substantiate the contentions of 1st defendant that, her
husband-2nd defendant is behind the litigation as rightly suggested and as laid
down in Nagappa's case (supra). Though P.W.2 denied the same, this fact is
proved from the record which they cannot get over by such denial against the
documentary evidence. She deposed that, she does not know for what purpose the
suit is filed. In fact, she represented as guardian of 3rd plaintiff at the
time of filing the pauper O.P. and gave chief-examination affidavit and in the
cross-examination when says she does not know purpose of the suit. It is as laid
down in Nagappa's case(supra) her husband is behind the litigation as she also
deposed that she does not remember whether her husband gave instructions in
filing the suit by drafting the plaint. It is not her case by any specific
denial but for her husband is standing behind the litigation without even
contest by remaining ex parte. On the other breath, no doubt in the attempt to
wriggle out, she stated that she and her children gave instructions for drafting
the plaint as indigent persons. For her showing her husband is addicted to
vices like gambling and consuming alcohol even there is no any basis as plaint
is silent and Ex.A.3 notice is also silent. Even there is no any legal notice to
her husband by her being guardian for the children of her, questioning any
alienation on that ground if at all. She deposed that, she does not know whether
any notice cause issued to her husband about his wasting any properties and her
father never got issued any such notice and she does not even know nature of the
documents executed by her husband in favour of sons-plaintiffs (Ex.A.1) and her
husband did not make any provision for her maintenance therein. She deposed
that, even after Ex.A.1, her husband was coming to their house and two daughters
born to her after execution of Ex.A.1. This also speaks that, the evidence of
P.Ws.1 and 2 is false regarding he is addicted to vices and staying away. She
deposed that she does not know whether after Ex.A.1, her husband acted as
guardian for plaintiffs and contacted the loans by giving security of plaint
schedule property, though denied the suggestion of he had no vices and she is
giving false evidence. She deposed that, she does not know the details of
family members as on the date of Ex.A.1 and the details of debts and what debts
her husband subsequently contacted over the plaint schedule property and as to
when he sold other properties out of the total extent of Ac.10-00 in the
partition and she cannot give survey numbers and extents of plaint schedule
even. She deposed that she does not know whether her husband sold the plaint
schedule property to 1st defendant under sale agreement and received sale
consideration covered by proof of payments made by the vendee-cum-1st defendant
and acknowledged all the payments by her husband on the reverse of the sale
agreement. She deposed that she did not enquire her husband about contention of
1st defendant in the suit regarding the sale agreement and payments and she does
not know whether the patta for plaint schedule property granted in favour of 1st
defendant. She deposed that from 1969 onwards they never paid any land revenue
or loans, her explanation is unbelievable in saying as if karanam of the village
asked not to pay.
30. Even coming to so called evidence of attestors of Ex.A.1 relinquishment deed
P.W.3 G.Kondalrao, who was one of the vendees of part of the family properties
of 2nd defendant and plaintiffs covered by Ex.B.35 dated 10.10.1969 which is
registered on 13.10.1969 on the same day of registration of Ex.A.1
relinquishment deed shown executed on 12.10.1969 on the stamp purchased on
10.10.1969 as detailed supra. He deposed that family of plaintiffs are not
residing in I.S.Raghavapuram, but at Jangareddigudem and they are his relatives
and his daughter was given in marriage to the son of brother of 2nd defendant
and he knows Ex.A.1 relinquishment deed being attestor to it and consideration
passed referred therein to 2nd defendant and father-in-law of 2nd defendant by
name I.Pullaiah was present at the time of execution of Ex.A.1 and it is not
sham and nominal document but for intended to act upon. The so called father of
P.W.2 present is false as discussed supra, as had it been he could be an
attestor or Rs.500/- as paid by him so could be referred in the Ex.A.1. He
deposed that, he purchased the land from 2nd defendant and his sons prior to the
date of relinquishment deed which is under original of Ex.B.35 (dated 10.10.1969
(wrongly typed as Ex.B.10) and deposed that he paid Rs.3300/- consideration to
them and obtained the sale deed and plaintiffs by then minors and 2nd defendant
was acted as father-guardian in execution of the sale deed as there was no
income fetching by the land. Having so deposed having purchased the property
from 2nd defendant and his sons minors represented by 2nd defendant as father-
guardian, how it can be believed that at the same time, 2nd defendant
relinquished his right over the joint family properties with intent to act upon
to which he stood as attestor. In the cross-examination he deposed that, there
is no need for any person to relinquish his share in favour of the minor sons on
the ground of not getting income from the land. He deposed that 2nd defendant
thought to execute the document only for name change for him in favour of his
sons to get good income for name change and otherwise there is no need for him
to execute the relinquishment deed Ex.A.1 in favour of plaintiffs. If that is
true, that itself is sufficient to say executed Ex.A.1 relinquishment deed was
not at all intended to act upon but for nominal to execute for changing name
instead from his name in the name of his sons. In fact that can be done even
from change in the revenue records by mutation or by partition by showing
allotment of these properties in favour of the sons by saying what the property
sold to this witness towards his share if at all. This evidence of P.W.3 is
also crystal clear of Ex.A.1 was not intended to act upon as relinquishment deed
but for to name change of the joint family properties under the management of
2nd defendant as father- manager for him and his sons as continued by living
together with no any strained relationship. P.W.3 deposed that, he does not
know the name of other attestors but scribed by B.Subbarao and he got
remembrance of the date of Ex.A.1 since he obtained registered sale deed prior
to it from 2nd defendant and his sons (Ex.B.35 supra). He deposed that 2nd
defendant, his wife and children are residing jointly as on the date of Ex.A.1
and now they are all residing at Jangareddigudem village along with their
youngest son Sathyanarayana out of 5 sons and two daughters of them and they are
now and then only coming to I.S.Raghavapuram village and 2nd defendant was
cultivating all the joint family properties including the plaint schedule till
they left for Jangareddigudem. It also speaks the Ex.B.2 sale agreement dated
28.02.1975 and plaintiffs case of they left I.S.Raghavapuram to Jangareddygudem
in 1975 is along with 2nd defendant and P.W.2. As this witness (P.W.3) speaks
prior to that 2nd defendant was cultivating the plaint schedule property till
what all they left was in 1975. Even coming to the evidence of the other
attestor to Ex.A.1 i.e. P.W.5 E.Ngeshwara Rao of Beemadolu village, who deposed
that he attested Ex.A.1 executed by 2nd defendant in favour of his children-the
plaintiffs, he knows the 2nddefendant from 1962 as he was having a tea stall at
Bheemadolu and 2nd defendant was coming to take tea there since it was near the
Sub Registrar office, Bheemadolu and at the tea stall the scribe scribed the
Ex.A.1 and said scribe is alive and it was at the instance of 2nd defendant,
particulars of the properties were described about his conveying properties to
his sons he attested when asked by 2nd defendant, that 2nd defendant-M.Gangaraju
took Rs.500/- from his father-in-law and informed that he was unable to manage
the properties and as such he was executing the document in favour of his sons
and there was no other reason for executing the document. Said version of P.W.5,
from what all discussed supra, is proving false. P.W.5's evidence regarding
execution of Ex.A.1 described is contra to the evidence of P.W.3 attestor. From
what is described by the P.W.5, P.W.3 and what is described by P.W.2 wife of 2nd
defendant and P.W.1-1st plaintiff, the eldest son of 2nd defendant and P.W.2.
This is the inconsistent version in this regard. When 2nd defendant he was not
able to manage the properties, the question of relinquishing in favour of his
minor sons the properties does not arise to believe said version of P.W.5, but
for to believe if at all to lease out the family properties to get income, as
executing a relinquishment serves no purpose that too, when plaintiffs are
minors being his sons while all living together. In the cross-examination of
P.W.5, he deposed that as the brother-in-law of M.Gangaraju has asked him to
give evidence, he is giving the evidence and he does not know the deed when was
registered and he cannot say what document was executed by M.Gangaraju and he
does not know how much extent owned by the M.Gangaraju and as to what debts he
was having. He deposed that M.Gangaraju informed him about executing of deed in
favour of his sons that the wife of M.Gangaraju acted as guardian of his sons
and whether they were residing jointly or not, he does not know. He deposed
that, M.Gangaraju is not spendthrift and he is an intelligent person. From this
word also, what P.W.1-the elder son of M.Gangaraju deposed about M.Gangaraju is
addicted to vices, so also by his wife-P.W.2 are proved false. P.W.5 deposed
further that, he does not know what properties conveyed by M.Gangaraju to his
sons was mentioned in the deed and what properties he owned and when he
partitioned with his brothers and how many brothers he got, but for he attested
at the request of M.Gangaraju saying only one person came for attestation and he
has to attest as other person. It shows he practically does not know but for if
at all, he is simply accommodating M.Gangaraju to put his signature as attestor
without knowing anything and having known M.Gangaraju as intelligent person with
no vices. Thereby the other evidence particularly of P.Ws. 1 and 2 regarding
the reasons for execution of Ex.A.1 proved false from this evidence also. Even
coming to the evidence of P.Ws. 4 and 6, the P.W.6 I.Venkatarao s/o Pullaiah is
no other than the brother of P.W.2 and uncle of P.W.1 and brother-in-law of 2nd
defendant, what he deposed of his father, P.W.4 and his sister P.W.2 raised
dispute with 2nd defendant about his wasting properties and asked him to execute
relinquishment deed in favour of plaintiffs and thereby after receiving Rs.500/-
2nd defendant put his signature on Ex.A.1 and he was also present is proving
false for not the case by P.W.2 and P.w.1 about his presence or his knowing
anything to believe. Had it been true, the stamp of Ex.A.1 relinquishment could
not be purchased by 2nd defendant in his name. Even from his evidence it simply
speaks that, P.W.2 his sister and their father Pullaiah cause prepared the
document and obtained signature of 2nd defendant by paying Rs.500/- and not
voluntarily executed the document by 2nd defendant by relinquishing his rights.
He deposed that by the date of Ex.A.1 relinquishment deed, the 2nd defendant's
family was having 5 acres of land though at the time of marriage of P.W.2 and
2nd defendant, family was having 10 acres. He deposed that 2nd defendant got
borewell dug in the plaint schedule property with the income from the lands.
This is what P.Ws. 1 and 2 deposed of borewell was cause dug by father of P.W.2
at his expenses is proved false. He deposed that, he was under circumstances
forcing 2nd defendant to sell any of his properties prior to Ex.A.1 document and
by the date of it, 2nd defendant was not having any debts that it is not correct
to say he does not know anything regarding the debts of the family as the
Ex.B.34 registered mortgage deed executed by 2nd defendant for himself and on
behalf of his minor sons as father-manager in favour of LMB, Eluru was of the
year prior to the Ex.A.1 i.e. dated 19.11.1968 by availing mortgage loan on
mortgaging properties to the bank. In the cross-examination, P.W.6 deposed that
he did not attest Ex.A.1 and there is no proof to say his presence at that time
and as if it was executed and registered on the same day which is false as
discussed supra of Ex.A.1 executed on 12.10.1969 and registered on 13.10.1969
along with Ex.B.35 registered sale deed executed by the 2nd defendant and his
sons in favour of P.W.3. He deposed that he does not know when the stamps for
Ex.A.1 purchased of what value and in whose name. He deposed that 2nd defendant
conveyed all his rights to his children. He deposed that 2nd defendant got bad
vices and became drunkard and never looked after his wife and children and
deserted them, which is not true from what is discussed supra including from the
evidence of P.Ws. 2 and 3 and Exs.B.37 and 38 recitals all are residents at
Jangareddigudem, so also deposed by the P.W.4 and he deposed that he does not
know any notice was issued to the 2nd defendant about his wasting properties and
addicted to bad vices and stated as if in 1968 and 69 they raised a dispute
before elders. It is also proved false from what P.W.2 deposed of there was no
elderly dispute but for his father came and disputed at his house and no elders
even present. He deposed that 2nd defendant sold Ac.4 or 5 acres for discharge
of debts and he does not know for what purpose the debts were contacted. What he
deposed of 2nd defendant did not take any loan from LMB Eluru after Ex.A.1 even
false from Ex.B.1 registered mortgage deed in favour of LMB executed by him for
and on behalf of his minor children was dated 31.05.1971 which is subsequent to
earlier mortgage in favour of the bank dated 19.11.1968 under Ex.B.34. He
deposed that 2nd defendant has not sold any property subsequent to Ex.A.1 which
is false as P.W.2 and P.W.1 also admitted about sales including Ex.B.37 and B.38
sale transactions one by P.W.2 and the other by 2nd defendant for himself and on
behalf of his sons, including P.W.1 in favour of one M.Apparao by referring them
as all are residing at Jangareddigudem. He also deposed that after Ex.A.1 date,
2nd defendant blessed with two more sons and two more daughters to say they were
amicably leading life as husband and wife and begot four children to say their
relationship is cordial and he did not neglect them and not a spendthrift and
they are residing at Jangareddigudem having shifted from the village
I.S.Raghavapuram in 1975 as can be seen from the factual matrix of the case
discussed supra, and this piece of evidence is also lending support to it. He
admitted the signatures on the Ex.B.1 sale agreement in favour of 1st defendant
as executed by 2nd defendant for and on behalf of minor children dated
28.02.1975. Even coming to the evidence of P.W.4, who is no other than father's
brother of P.Ws.2 and P.W.6, he was also one of the introduced witnesses like
PW.6 from what is discussed supra and from no whisper in the evidence of P.Ws.2
and 3 much less any reference in Ex.A.3 notice and plaint averments of their
names and particulars for any elderly dispute for execution of Ex.A.1 for his
saying he was also present as if for execution of Ex.A.1 relinquishment deed by
2nd defendant to speak alleged payment of Rs.500/- to 2nd defendant by his
father-in-law for relinquishing rights over the property to his sons-plaintiffs.
From his cross-examination, P.W.2's evidence as if her father was coming and
cultivating the lands by investing the amounts is proved false, from what P.W.4
deposed was his brother never went to I.S.Raghavapuram to cultivate the lands of
2nd defendant family as 2nd defendant himself was getting lands cultivated. What
he deposed of Ex.A.1 mentioned Rs.500/- paid by father-in-law of 2nd defendant
to him to execute the document is not correct; from no such recital of he
received amount from his father-in-law though P.W.4 denied the suggestion of he
is an introduced witness (planted) and he is giving false evidence, though does
not know anything.
31. Thus, from what the evidence adduced by the plaintiffs also the Ex.A.1 so
called relinquishment deed is not intended to act upon and never acted upon; to
say in the absence of said document, the properties are joint family properties
and Ex.B.2 sale agreement executed by 2nd defendant by himself as of his own
even and the plaintiffs stated as no right to alienate and 1st defendant
thereunder gets no right for so claiming, as dicussed supra from that stand the
right of recovery of possession relying on Ex.A.1 that was besides sham and
nominal and not genuine not entitled otherwise lost right to recover possession,
but for to say the sale agreement was for him and on behalf of his minor
children of the joint family property, to maintain suit for rescission of the
contract for sale and recovery of possession and till then they are not even
entitled to profits or damages against 1st defendant. No doubt on perusal of
the recitals in Ex.B.2 sale agreement it no where speaks it was executed for and
on behalf of his minor children also but for by him referring as his property
and there was no recital of delivery of possession as it is a non possessory
sale agreement. In this regard regarding the proof of Ex.B.2 sale agreement and
delivery of possession thereunder, even later passing of consideration
thereunder in addition to what is discussed supra, undisputedly there is a suit
for specific performance to obtain sale deed filed by the 1st defendant herein
which is pending against the plaintiffs and 2nd defendant if any (no plaint copy
is filed for further knowing): Subject to that, coming to the evidence of 1st
defendant-D.W.1, besides the documentary evidence, placed reliance by him
covered by Exs.B.1 to B.49 discussed supra (which proves and possession of 1st
defendant after obtaining the Ex.B.2 agreement dt. 22.02.1975 even date by
mutation of his name in the revenue records and obtained pattadar passbook also
and he paid consideration agreed under Ex.B.1 at Rs.3,400/- per acre comes to
51/2 x Rs.3,400/- = Rs.18,700/- and evidence of him and other witness on his
side prove what he paid was more as stated supra. As per the D.W.1-1st
defendant's evidence in chief, in addition to what he paid of Rs.5,000/-
referred in the Ex.B.2 sale agreement dated 22.02.1975 for purchase at
Rs.3,400/- per acre for the plaint schedule referred thereunder total extent of
51/2 acres other payments made including discharge of the loan in LMB Eluru and
other loans of the 2nd defendant and his family in all about Rs.23,000/- and
add, he also spent huge amount nearly Rs.55,000/- for the land including
installation of motor pumpset and he deposed that he was not intimated about any
execution of Ex.A.1 in favour of his sons dt. 12.10.1969 when 2nd defendant
executed the Ex.B.2 sale agreement or later and thereby he does not know about
said Ex.A.1 relinquishment deed. He also deposed that after receiving legal
notice (Ex.A.3) of plaintiffs prior to the suit the matter was placed before
elders and 2nd defendant was asked by the mediators about the notice he got
issued by his sons, for which he replied that he would execute registered sale
deed in favour of 1st defendant and he need not worry to the notice, however he
got filed the suit through his sons without even any right to claim possession
of the plaint schedule property, that even the plaintiffs never questioned his
right, possession and enjoyment of the schedule property prior to the notice and
suit filed and he is not a trespasser as alleged by them.
32. In the cross-examination, D.W.1 deposed that the negotiation for purchase of
plaint schedule property at I.S.Raghapuram village taken place prior to the
agreement and the agreement was executed at Eluru and he knows 2nd defendant's
family since his childhood, including the plaintiffs and the sale agreement was
executed by 2nd defendant alone which is Ex.B.2
(wrongly referred as Ex.B.3). He deposed that, there was a partition of the
properties between 2nd defendant and his father Narasimha Rao and the plaint
schedule property is part of the property fallen to the share of 2nd defendant
in the said partition (Ex.A.2) though he represented that he is selling the same
as of him. He deposed that the plaint schedule property was under mortgage with
LMB Eluru, even by the date of sale agreement and 2nd defendant agreed to sell
the property to discharge the loan to LMB Eluru, that though it is not
specifically recited with regard to mortgage deed to LMB Eluru; it was
discharged by him on the date of sale agreement and paid Rs.5,000/- cash. He
deposed that he does not know whether said cash payment was written in the sale
agreement or not, that receipt for payment of Rs.5,000/- passed by LMB Eluru on
the date of agreement to 2nd defendant and it was recited in the agreement and
other than that, he has no evidence about said Rs.5,000/- paid on the date of
agreement to 2nd defendant. He deposed that, he requested the LMB to inform him
about the liability of 2nd defendant, and he was not informed anything by
postponing and he did not get any legal notice issued to the bank, for no
liabilities of 2nd defendant to the bank. He deposed that as per the agreement,
he has to pay remaining balance of sale consideration to 2nd defendant and
obtain sale deed before 30.05.1975 and he does not know, whether it is recited
in said Ex.B.2 to the effect that, he has to forgo the earnest money of
Rs.5,000/- in case he failed to pay balance consideration on or before
30.05.1975 and that 2nd defendant has to refund the earnest money in case he
fails to receive balance consideration and register sale deed. He deposed that
he does not know recitals regarding the delivery of possession of the property
in the agreement. He deposed that the agreement was written in the verandah of
Court premises Eluru that one B.Raju and a person attested the same and the
scribe read over the contents to the attestors also, that 2nd defendant and his
sons were since living jointly, he obtained the sale agreement from 2nd
defendant and made payments to him even after 30.05.1975 which he received, that
he did not seek extension of time as 2nd defendant informed that his signature
acknowledging part payments keep the agreement in force and thereby he did not
issue any notice for extension of time. Last payment made by him was on
16.07.1975 as per Ex.B.8 endorsement under the agreement and 2nd defendant did
not issue any notice asking him to pay money to the bank on his behalf and the
voucher for Ex.B.4 endorsement was taken by 2nd defendant and he did not issue
any notice in reply and he did not mention the same in his pleadings, that he
did not issue any notice for execution of sale deed. He deposed that, the
mortgage debt to LMB Eluru was fully discharged by him, though he cannot say how
much amount was paid to the LMB Eluru for the debt of 2nd defendant and there is
no clearance certificate issued by the LMB for said debt. He deposed that he
was put in possession of the plaint schedule property pursuant to the agreement
and denied the suggestion of the sale agreement is not a genuine one and brought
into existence in collusion with 2nd defendant. He deposed that the payments
under Exs.B.10 to B.13 are prior to 30.05.1975 for payments to LMB Eluru as to
there is no mention in the sale agreement he does not know. Further, 2nd
defendant has given and written his consent to the surveyor for issuing patta in
his favour and he raised sugarcane crop in 4 acres and is getting income of
Rs.15,000/- per acre out of which Rs.10,000/- per acre is the expenditure to say
net income at Rs.5,000/- per acre and in the one acre paddy yield is 10 bags and
so far from 1975 he realized Rs.40,000/- net income from the property.
33. D.W.1 denied the suggestion that the 2nd defendant has no title to sell the
property and he has no right over the property. In the entire cross-examination
of him by plaintiffs, there is no dispute regarding -payments made under the
sale agreement. It is not even the case of plaintiffs that the sale agreement
enforceability is barred by law and there was no delivery of possession pursuant
to the agreement. Even 2nd defendant who executed the agreement as if his own
and not even as father manager for and on behalf of his children, did not
dispute the agreement either by filing written statement or by coming to witness
box for giving evidence. The plaintiffs did not even summon him as court witness
with right of cross-examination if at all they dispute the agreement but for to
say the Ex.B.2 agreement dated 28.02.1975 executed by 2nd defendant was after he
relinquished of his rights under Ex.A.1 dt.12.10.1969, with no right to execute
as of his own. It is in fact as discussed supra, Ex.A.1 deed is proved as sham
and nominal and not acted upon and later all properties treated as joint family
properties and alienated the same. It is not even a suit for rescission of
contract by cancellation of the sale agreement and not even to say but for the
share of 2nd defendant out of the joint family properties, it will not bind the
plaintiffs share, for not executed the sale agreement for and on behalf of them
also and thereby only for proportionate land out of agreement schedule and on
the payment of consideration he is entitled to specific performance to deliver
back the remaining land or the like. As discussed supra, the suit for specific
performance is pending. It shows the possession delivered to 1st defendant as
vendee by 2nd defendant as vendor of the plaint schedule property by sale
pursuant to the agreement Ex.B.2 dated 28.02.1975 though it is recited as non-
possessory and to deliver possession at the time of registration, the plaint
cause of action and about referred evidence speak that possession delivered was
on the agreement date. Though Section 53-A of T.P.Act, protection won't apply
even as per the decision in Mohanlal (supra) relied upon by plaintiffs, 1st
defendant is in possession as vendee under contract for sale under 2nd defendant
and not in an unauthorized manner, for the contract of sale by 2nd defendant was
being manager of joint family of plaintiffs and 2nd defendant proved continuing
from Ex.A.1 held sham and nominal, 1st defendant is not liable for any damages.
The suit for specific performance since pending and without rescission of
contract for sale by repudiating it, the present suit of plaintiffs for
ejectment against the father as 2nd defendant and the vendee-1st defendant
under the agreement won't lie as Ex.A.1 proved sham and nominal and Ex.B.2
executed by 2nd defendant was while acting as family manager-father of
plaintiffs though referred as if his own and the consideration passed was for
discharge of debts and other needs and the transaction is thus not hit by
immorality or avyavaharika purposes. Thus, subject to result of pending suit
for specific performance, the remedy of plaintiffs as respondents 1 to 3 and 5
to 8 being all legal representatives of late 2nd defendant-appeal 4th respondent
(since died pending appeal) is to file a suit for rescission of the contract for
sale and possession if not any defence raised in the specific performance suit
and within the purview of the lis to consider thereunder. As in the present lis,
in view of the suit for specific performance pending and nothing material
regarding it placed on record when no expression for any finding thereunder can
be given, no relief in favour of the plaintiffs for treating the claim as
possession by rescission of the contract for sale does not arise. The present
suit covered by appeal lis is not for seeking possession by cancellation of
contract for sale by rescinding the contract or by showing the contract for sale
time barred for ejectment along with their father(2nd defendant) who entered the
contract being father manager to bind the plaintiffs, they cannot maintain the
suit for ejectment saying the 2nd defendant their father got no right by virtue
of Ex.A.1 relinquishment deed, to alienate in favour of 1st defendant under
Ex.B.2 agreement and as trespasser for Ex.A.1 proved sham and nominal.
Accordingly, Points 1 to 5 are answered.
Point No.6:
34. In the result, the appeal is allowed by setting aside the trial Court's
decree and judgment in favour of the plaintiffs for possession with past and
future profits and costs by dismissing the plaintiffs' suit claim. There is no
order as to costs, including in the appeal. Needless to say the remedy of the
plaintiffs is as legal representatives of the 2nd defendant for rescission of
the contract for sale and possession subject to result of suit for specific
performance stated pending filed by 1st defendant/appellant herein, unless any
defence taken therein of unenforceability of the agreement, for recovery of
possession to consider within its own merits. It is further made clear that for
filing such suit by plaintiffs, their mother, brothers and sisters, the lis
covered by the appeal suit throughout no way come in their way also from the
fact that 1st defendant by acknowledging contract for sale entered by 2nd
defendant cannot when plead any adverse possession against 2nd defendant,
equally against the legal representatives of the 2nd defendant.
_________________________
Dr. B. SIVA SANKARA RAO, J
Date: -03-2014
