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2001 DIGILAW 1696 (AP)

Thimma Reddy v. Perugu Malamma

2001-12-26

P.S.NARAYANA

body2001
JUDGMENT : The unsuccessful plaintiffs in O.S. No.116of 1979 on the file of the Additional Subordinate Judge, Anantapur are the appellants in this appeal. The appellants plaintiffs initially filed O.P. No.52 of 1978claiming the relief of partition and separate possession of 2/3rd share in the plaint schedule lands and subsequently it was numbered as O.S. No.116 of 1978. The respondents in this appeal were the defendants in the suit. For the sake of convenience, the parties are referred to as they are arrayed in the suit as plaintiffs and defendants. 2. The allegations in the plaint are as follows. The plaint schedule lands are the ancestral lands of the plaintiffs and their father, defendant No.2 and they are enjoying the said lands. Defendant No.2 was given to wayward habits and immoral acts and he has been selling the properties for his vices and that the said sales are not binding on the plaintiffs. It was also alleged that the incomederived from the properties are more than sufficient for the maintenance of the family. The alleged recitals in the sale deeds executed in favour of defendants 1 and 3 are nominal. Defendant No.3 is the junior paternal uncle of defendant No.2 and defendant No.1 is the daughter-in-law of defendant No.3. It was alleged that several demands have been made for partition of the properties but defendant No.2 was postponing the same on one pretext or the other and finally a notice was also issued to the defendants for partition and separate possession and that the defendants gave a reply with all false allegations. Hence, the plaintiffs filed the suit for partition and separate possession. 3. The first defendant filed detailed written statement disputing the age of the plaintiffs and specifically denying that plaint schedule lands are not the ancestral properties and a specific stand was taken that the lands in question are the self acquired properties of defendant No.2. It was further pleaded that defendant No.2was cultivating the lands as a ryot and obtained a patta for the said lands from the settlement authorities in Karthaparthi village which was originally an inam village. It was also pleaded that neither defendantNo.2 nor anyone of his predecessors hadany right to the property at any time prior to the patta being granted to defendant No.2. It was also pleaded that wayward behaviour and illegal acts on the part of defendantNo.2 are baseless. It was also pleaded that neither defendantNo.2 nor anyone of his predecessors hadany right to the property at any time prior to the patta being granted to defendant No.2. It was also pleaded that wayward behaviour and illegal acts on the part of defendantNo.2 are baseless. It was further pleaded that the suit was filed at the instance of defendant No.2 and that the plaintiffs and defendant No.2 are living in the same house. It was also pleaded that she purchased items6 to 9 and 1/12th share in item No.1 of plaint schedule properties under a sale deed dated2-7-1973 for Rs.2,000/-. Defendant No.2 was forced to execute mortgage deed dated6-10-1969 for a sum of Rs.4,000/- in favour of defendant No.3 which he could not discharge and as he could not discharge the debts he had to sell his properties. There was absolutely no ground in the allegation of the plaintiffs that the transactions were unwarranted. Defendant No.3 had purchased item No.2 of the plaint schedule property for a sum of Rs.500/- under a registered sale deed dated 11-8-1969. In view of the same, the transactions are valid and that the plaintiffs are not entitled for anyshare. 4. The other defendants had filed memos adopting the written statement of defendantNo.1. Defendants 2 and 6 remained ex parte. 5. On the above pleadings, the trial Court framed the following issues:(1) Whether the suit properties are ancestral as alleged in the plaint-(2) Whether the sale in favour of defendants 1 and 3 by defendantNo.2 does not bind the shares of the plaintiff-(3) Whether the suit lands are jointly enjoyed by the plaintiffs with the defendants-(4) Whether there is family necessity for the sale-(5) To what relief-Additional issue: Whether defendants 1 and 3 are entitled to work out equities- 6. On behalf of the plaintiffs P.Ws.1 and2 were examined and Exs.A-1 and A-2 were marked. On behalf of the defendants, defendant No.5 was examined as D.W.1 andExs.B-1 to B-5 were marked. D.W.1 was examined only in-chief and the learned counsel for the plaintiffs reported "no instructions' when the matter stood posted for his cross-examination. In the said circumstances, the trial was proceeded with by invoking the provisions of Order 17Rule 3 CPC. 7. The Court below on appreciation of both oral and documentary evidence had arrived at the conclusion that the appellants plaintiffs are not entitled to any relief and dismissed the suit. In the said circumstances, the trial was proceeded with by invoking the provisions of Order 17Rule 3 CPC. 7. The Court below on appreciation of both oral and documentary evidence had arrived at the conclusion that the appellants plaintiffs are not entitled to any relief and dismissed the suit. Aggrieved by the same, the present appeal is filed. 8. Sri Anthony Reddy, the learned counsel for the appellants-plaintiffs has strenuously contended that the Court below had not properly appreciated Ex.A-1 and also the evidence of P.Ws.1 to 3. The learned counsel had further contended that the Court below erred in holding that the sale transactions are binding on the plaintiffs. The learned counsel further contended that the very fact that the appeal is preferred by the plaintiffs clearly goes to show that the plaintiffs are entitled for partition. But, however, unfortunately, the lower Court held that Exs.A-1 and A-2 are not proved and that the ownership of the grandfather of the plaintiffs is not established. 9. Sri Prabhakar Sarma, the learned counsel representing the respondents had contended that in the facts and circumstances of the case, the Court below had proceed to decide the matter correctly by invoking the provisions of Order 17Rule 3 CPC. The learned counsel placed reliance on the judgment of this Court in M/s. Kalagara Hari Babu v. E. Krishna Rao1.The learned counsel had also contended that the Court below after appreciating the evidence of P.Ws.1 to 3 had arrived at the conclusion that the plaintiffs are unable to establish their case and hence the Court below is justified in dismissing the suit. 10. The lower Court has considered the evidence of P.Ws.1 to 3 and also Exs.A-1 andA-2 and Exs.B-1 to B-5 and the finding of fact arrived at by the Court below is absolutely correct. It is not a case where a party was refused the opportunity to cross-examine the witness. Here is a case where D.W.1 was very much available for cross-examination and the defaulting party i.e., the appellants plaintiffs had taken advantage and pleaded that they have not cross-examined D.W.1.The learned counsel had also placed reliance on the judgment of this Court in Secretary to Govt. of India v. Indira Devi2, M.M.B. Catholicos v. T. Paulo Avira3 and Almedia A.D. v. State4. 11. Heard the counsel and also perused the material available on record. 12. of India v. Indira Devi2, M.M.B. Catholicos v. T. Paulo Avira3 and Almedia A.D. v. State4. 11. Heard the counsel and also perused the material available on record. 12. The points which fall for consideration are:(a) Whether the appellants-plaintiffs can take advantage of non-cross-examination of D.W.1-(b) Whether the judgment and decree of the lower Court are liable to beset aside-(c) To what relief- 13. Points (a) and (b) can be dealt with together. The case of the appellants plaintiffs is that the plaint schedule properties are the ancestral properties of their family and that they have been enjoying the sale properties jointly with the second defendant. P.W.1 is the first plaintiff. He had deposed that his paternal grandfather purchased the suit schedule properties under a registered sale deed from one Kanteerava Narasimha Chari and the sale deed is available in his house but he had not produced the sale deed or any witness who is acquainted with the said transaction.P.W.1 also deposed that he had no personal knowledge regarding the purchase of the suit schedule lands and that he cannot say in which year his grandfather purchased the same P.W.2 is the Triune Officer of Gulyam village till 1975 and P.W.3 is one Kamma Narasppa. P.W.2 in his cross-examination stated that the suit lands are the self acquired properties of the second defendant. He also deposed that he and his son solditem No.5 of plaint schedule to the second defendant under a registered sale deed dated 16-9-1985 and the said sale deed is produced on record as Ex.A-2. No doubt, the evidence of P.W.3 is available to the effect that they are the ancestral properties of the appellants-plaintiffs. Whether Ex.A-1patta granted on 10-2-1945 pertains to the suit lands or not, no evidence is forthcoming and even P.W.2 in his cross-examination deposed that he does not know by whom the patta was granted. Hence, in the circumstances, the Court below recorded a finding that there is no evidence to show that the property is the ancestral property of appellants-plaintiffs. While considering issues 2 and 4 in paragraph 10 of the judgment, the Court below considered Ex.B-2 and observed that P.W.2 was present at the time of execution of Ex.B-2 mortgage deed by the second defendant in favour of the third defendant and that he was an identifying witness to Exs.B-2 and B-3. While considering issues 2 and 4 in paragraph 10 of the judgment, the Court below considered Ex.B-2 and observed that P.W.2 was present at the time of execution of Ex.B-2 mortgage deed by the second defendant in favour of the third defendant and that he was an identifying witness to Exs.B-2 and B-3. As regards the aspect of waiving of right of cross-examination of D.W.1 by the appellants-plaintiffs, no finding was recorded by the Court below. 14. It is pertinent to note that the fifth defendant was examined as D.W.1 and he was examined in-chief only. At that stage, the counsel for the appellants had reported no instructions. Section 138 of the Indian Evidence Act provides for order of examinations. In Almedia's case (4 supra), it was held that evidence of a witness given in chief-examination is not legally admissible for or against a party unless the other side is given an opportunity to cross-examine him or unless the other side waives its right of cross-examination. It is no doubt true that cross-examination is as essential as chief examination but here is a peculiar case where the witnesses though available for cross-examination, the opportunity was not availed by the appellants-plaintiffs to cross-examine D.W.1. Even in the absence of evidence of D.W.1, a clear finding had been recorded by the trial Court that the appellants-plaintiffs had miserably failed to prove the essential fact pleaded by P.W.1. In Indira Devi's case (2 supra), while dealing with the ambit of the provisions of the Evidence Act, this Court held that the burden of proving a fact rests on the party asserting the affirmative of the issue and not upon the party denying it. 15. The learned counsel for the appellants-plaintiffs strenuously contended that the finding relating to the documentary evidence produced by the plaintiffs is erroneous. 16. Section 103 of the Evidence Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 17. In the light of the fore going discussion, it should be held that though D.W.1 was available for cross-examination; the appellants-plaintiffs waived their right of cross-examination. 17. In the light of the fore going discussion, it should be held that though D.W.1 was available for cross-examination; the appellants-plaintiffs waived their right of cross-examination. However, it was rightly pointed out by the lower Court that even in the absence of the evidence of D.W.1on the strength of the material available on record and the evidence of P.Ws.1 to 3, the appellants-plaintiffs had miserably failed to establish their case. 18. I do not see any ground to interfere with the findings recorded by the Court below and I am of the view that the appeal is devoid of merits and the same is liable to be dismissed. Accordingly, the appeal is dismissed. No costs. Court fee to be paid by Appellants.