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2002 DIGILAW 1306 (AP)

Shyamala v. Rambilas Tapadia

2002-11-08

DALAVA SUBRAHMANYAM

body2002
DALAVA SUBRAHMANYAM, J. ( 1 ) THE appellants-Defendants 1, 4 and 5 filed the second appeal against the decree and judgement in A. S. No. 140 of 1987 dated 14. 6. 1990 on the file of the Additional Chief Judge, City Civil Court, Hyderabad in allowing the appeal and setting aside the decree and judgement in O. S. No. 761 of 1977 on the file of the V Additional judge, City Civil Court, Hyderabad. The second appeal was disposed of on 18. 1. 1999 and thereupon the 1st respondent-plaintiff filed Civil Appeal 760 of 2001 (SLP 8739 of 1999) on the file of the Supreme Court of India and the Supreme Court set aside the decree and judgement in S. A. No. 284 of 1991 and the second appeal was remanded to the trial Court to decide the second appeal on merits after framing substantial questions of law, if any, arises in the case. The brief facts of the case are as follows: Ram Bilas Tapadia, who is the plaintiff, filed O. S. No. 761 of 1977 on the file of the V Additional Judge, City Civil Court, Hyderabad praying for a declaration that he is the absolute owner of the suit property and for possession and also to cancel the sale deed dated 21. 3. 1974 executed by defendants 2 and 3 in favour of 1st defendant. The plaintiff averred in the suit that he is the absolute owner of the suit premises bearing Municipal No. 1. 1. 651 having purchased from the 2nd defendant for a consideration of Rs. 20,000/- under a registered sale deed dated 28. 4. 1972 and the plaintiff was put in possession of the said premises. The 2nd defendant also handed over his title deeds in respect of the suit property and the property was delivered to the plaintiff and the property was mutated in the Municipal records in the name of the plaintiff. In the year 1974, when the 4th defendant on behalf of the 1st defendant was interfering with his possession, O. S. No. 940 of 1974 was filed and temporary injunction was obtained. The plaintiff came to know that 2nd and 3rd defendants have jointly executed a sale deed in favour of the 1st defendant on 21. 3. 1974 for a sum of Rs. 25,000 transferring the suit property by giving door No. 651/1 with the same schedule. The plaintiff came to know that 2nd and 3rd defendants have jointly executed a sale deed in favour of the 1st defendant on 21. 3. 1974 for a sum of Rs. 25,000 transferring the suit property by giving door No. 651/1 with the same schedule. 2nd and 3rd defendants committed fraud on the plaintiff and the 1st defendant. Since the 2nd defendant suppressed the fact that he nominally transferred the suit property in favour of 3rd defendant in the year 1971 under an agreement to re-transfer the property and the 2nd and 3rd defendants challenged the plaintiff s title, the plaintiff filed a suit for declaration, consequential possession and to set aside the sale deed dated 21. 3. 1974. ( 2 ) THE 1st defendant was a minor at the time of filing of the suit and the Court guardian filed written statement on her behalf and subsequently when she attained majority, she filed the written statement denying the averments contained in the plaint. She denied the allegation that the plaintiff is the owner of the suit premises. Since the 1st defendant was a minor and her father was residing in America, 4th defendant was looking after the affairs. The 2nd defendant mortgaged the suit property to one K. Venkayya under a registered sale deed dt. 13. 7. 1971 and a symbolic possession was given to him and K. V. Subba Rao executed rental agreement in favour of K. Venkayya. K. V. Subba Rao let out the premises to several tenants and subsequently K. V. Subba Rao and K. Venkayya sold the suit property in favour of the 1st defendant under registered sale deed dated 21. 3. 1974 for a valid consideration and possession was delivered. The 2nd defendant did not execute any sale deed in favour of the plaintiff and the alleged sale deed is a forgery and the same is not valid in law. The plaintiff was never in possession of the property and the property was not mutated in his name. 4th defendant is collecting rents from the tenants. O. S. No. 940 of 1974 was dismissed on 24. 8. 1977 for default and so far the plaintiff has not taken any steps to get the suit restored. The 1st defendant purchased the suit property on 21. 3. 1974 and the plaintiff having filed the suit after August, 1977, the suit is barred by limitation. O. S. No. 940 of 1974 was dismissed on 24. 8. 1977 for default and so far the plaintiff has not taken any steps to get the suit restored. The 1st defendant purchased the suit property on 21. 3. 1974 and the plaintiff having filed the suit after August, 1977, the suit is barred by limitation. The plaintiff has no right and title and therefore the plaintiff is not entitled to the reliefs prayed for and hence the suit may be dismissed with costs. ( 3 ) 4th defendant filed written statement denying the averments. Since the 1st defendant was a minor and her father was working in America, 4th defendant was looking after the affairs of the suit property. The 2nd defendant mortgaged the suit property in favour of K. Venkayya under a registered sale deed and a symbolic possession was given to him and subsequently the said K. Venkayya and K. V. Subba Rao executed a registered sale deed dated 21. 3. 1974 in favour of the 1st defendant and delivered possession. 4th defendant has been managing the affairs and collecting the rents from the tenants. After filing of the suit O. S. No. 940 of 1974, the 2nd defendant informed that he has not executed any sale deed in favour of the plaintiff as claimed by him and the signatures in the said sale deed are not that of K. V. Subba Rao and his thumb impressions were not taken in the said sale deed. The suit is barred by limitation. ( 4 ) 5th defendant also filed written statement adopting the grounds taken by the defendants 1 and 4. It was further contended that 1st defendant gifted the said house in favour of her father, who is the 5th defendant. On the above said pleadings, the trial Court framed and settled the following issues. 1. Whether the plaintiff is entitled to the declaration and possession of the house bearing No. 1. 1. 651, situated at Chikkadpalli? 2. Whether the plaintiff is entitled to seek the cancellation of the sale deed dt. 21. 3. 1974 in favour of D1 in respect of the suit house? 3. Whether the sale deed dt. 21. 3. 1974 in favour of D1 is true and valid? 4. 1. 651, situated at Chikkadpalli? 2. Whether the plaintiff is entitled to seek the cancellation of the sale deed dt. 21. 3. 1974 in favour of D1 in respect of the suit house? 3. Whether the sale deed dt. 21. 3. 1974 in favour of D1 is true and valid? 4. Whether the suit is barred by res judicata in view of the dismissal of O. S. No. 940/74 on the file of the VI Asst. Judge, City Civil Court, Hyderabad filed by the plaintiff? 5. Whether the suit is barred by limitation? 6. Whether the suit house is the identical property purchased by D1? 7. Whether D4 is a necessary and proper party to the suit? 8. To what relief?additional issue: 1. Whether D1 is entitled to gift away the suit property to D5? On behalf of the plaintiff Pws 1 to 3 were examined and Ex. A1 to A20 were marked. On behalf of the defendants Dws 1 to 7 were examined and Ex. B1 to B40 were marked. Ex. X1 to X13 were marked through the witness After appreciating the oral and documentary evidence, the trial Court came to the conclusion that the sale deed in favour of 1st defendant was true and valid and the plaintiff was not entitled to the relief of declaration and possession or cancellation of the sale deed and consequently the suit was dismissed with costs. ( 5 ) AGGRIEVED against the decree and judgement, the plaintiff filed A. S. No. 140 of 1987 on the file of the Additional Chief Judge, City Civil Court, Hyderabad and the learned Additional Chief Judge, City Civil Court, Hyderabad after appreciating the entire evidence came to the conclusion that the plaintiff proved the execution of Ex. A1 sale deed and consequently allowed the appeal setting aside the decree and judgement in O. S. No. 761 of 1977 and decreed the suit of the plaintiff as prayed for declaring his title and for consequential possession. Aggrieved against the said decree and judgement, defendants 1, 4 and 5 filed the above second appeal and after hearing both parties, the second appeal was allowed with costs setting aside the decree and judgement in A. S. No. 140 of 1987. The 1st respondent-plaintiff filed S. L. P. No. 8739 of 1999 in the Supreme Court which was numbered as Civil Appeal No. 760 of 2001. The 1st respondent-plaintiff filed S. L. P. No. 8739 of 1999 in the Supreme Court which was numbered as Civil Appeal No. 760 of 2001. The apex Court directed the High Court to decide the second appeal on merits only after framing question of law, if any, arises in the case. Now, the following substantial questions of law arise in this second appeal. 1. Whether the first appellate Court failed to consider vital piece of evidence and relied upon inadmissible evidence while answering the point No. 1 in A. S. No. 140 of 1987 concerning the execution of Ex. A1 sale deed in favour of the plaintiff? 2. Whether the finding of fact which is not supported by any evidence recorded by the lower appellate Court without considering the entire evidence on record can be challenged in the second appeal? 3. Whether the findings reached by the lower appellate Court is erroneous, perverse or patently illegal or suffers from procedural irregularity which can be questioned under Section 100 C. P. C? ( 6 ) POINTS 1 to 3:- Defendants 1, 4 and 5 are the appellants in the second appeal. The trial Court dismissed the suit filed by the plaintiff on the ground that the plaintiff failed to prove the execution of Ex. A1 sale deed in his favour. On appeal filed by the plaintiff, the lower appellate Court held that Ex. A1 sale deed was executed by the 2nd defendant and after appreciating the entire evidence came to the conclusion that Ex. A1 is true and valid and therefore the plaintiff was entitled to the reliefs prayed for in the suit. ( 7 ) THE learned counsel appearing for the appellants contended that the conclusions reached by the lower appellate Court are erroneous and cannot be sustained. The finding given by the lower appellate Court is based on mis-reading of evidence on record or has been arrived at by ignoring the material evidence on record and therefore it is vitiated by error of law, which required interference in the second appeal. Learned counsel for the appellant relied on a decision in Ashok Kumar v. Basantilal wherein the Court laid down the principles to be followed in the second appeal. Non-consideration of material evidence was a substantial questions of law as laid down in Nellikkottu Kolleriyil Madhavi v. Kavakkalathil Kalikutty and others. Learned counsel for the appellant relied on a decision in Ashok Kumar v. Basantilal wherein the Court laid down the principles to be followed in the second appeal. Non-consideration of material evidence was a substantial questions of law as laid down in Nellikkottu Kolleriyil Madhavi v. Kavakkalathil Kalikutty and others. Learned counsel for the appellant further contended that substantial question of law includes with its ambit issue of perversity as held in Kulwant Kaur v. Gurdial Singh Mann Learned counsel for the appellants contended that the lower appellate Court has not considered vital piece of evidence to reach its conclusion on inadmissible evidence on record and therefore the judgement is vitiated and hence the judgement has to be set aside. ( 8 ) LEARNED counsel for the 1st respondent contended that no substantial question of law involved in the second appeal and the second appeal is maintainable only when there is any substantial question of law. Whether a finding of fact reached by the lower appellate Court is against the weight of evidence or not is a question which will remain in the realm of appreciation of evidence and does not project any question of law, much less any substantial question of law as held in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor. Learned counsel for the 1st respondent relied on a decision in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar wherein it was held as under:"it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence". ( 9 ) LEARNED counsel for the 1st respondent further contended that the lower appellate Court after considering the entire evidence rightly came to the conclusion that the sale deed marked as Ex. A1 in favour of the plaintiff was true and valid and therefore the plaintiff was entitled to the reliefs prayed for in the suit and the said finding of fact cannot be interfered in the second appeal. It was further argued that this Court cannot re-consider the conclusions reached by the lower appellate Court, which are based on the evidence on record, and therefore the appeal has to be dismissed. ( 10 ) THE trial Court dismissed the suit disbelieving the execution of Ex. A1 whereas the lower appellate Court decreed the suit and came to conclusion that 2nd defendant executed Ex. A1 sale deed and therefore the plaintiff was entitled the reliefs prayed for in the suit. In the light of the above substantial questions of law framed it has to be seen whether the conclusions reached by the lower appellate Court is right or the lower appellate Court committed error and failed to consider the vital piece of evidence and came to erroneous conclusion, which requires interference in the second appeal. Pws 1 and 2 deposed with regard to the execution of the sale deed Ex. A1 which was denied by the 2nd defendant who is examined as Dw-7. It is in the evidence of Pw-1 that the 2nd defendant at the time of execution of Ex. A1 sale deed delivered the link documents to prove that his vendors had valid title to the disputed property. Dw-7 categorically stated that he did not execute the sale deed in favour of Pw-1 and it does not contain his thumb impressions and signatures contained in Ex. A1 sale deed delivered the link documents to prove that his vendors had valid title to the disputed property. Dw-7 categorically stated that he did not execute the sale deed in favour of Pw-1 and it does not contain his thumb impressions and signatures contained in Ex. A1 and A2 are not of his and further he did not deliver the so called link documents. The lower appellate Court believed that the 2nd defendant delivered Ex. A3 to A5 which are link documents ignoring the fact whether they are true and valid documents. The lower appellate Court failed to consider Ex. A14 which is an affidavit of 2nd defendant filed in O. S. No. 940 of 1974 dated 13. 6. 1974. The said affidavit was filed long prior to the filing of the suit and the 2nd defendant in his affidavit stated that he did not execute any sale deed in favour of the plaintiff and he never delivered the so called link documents. The lower appellate Court failed to note the inherent defect in Ex. A1 in so far as the thumb impression of the 2nd defendant was not taken. Generally, the thumb impressions of the executant will be taken at the time of registration of the document. The explanation given by the plaintiff is that the executant was known to the Sub Registrar. No such endorsement was made on the document. Further the 2nd defendant denied the fact that he is known to the Joint Sub Registrar Md. Akthar. In fact his thumb impressions were obtained on Ex. B9 sale deed. The trial Court compared the signatures contained in Ex. A1 and Ex. B9 and opined that the signatures contained in Ex. A1 are forged. The plaintiff has not chosen to send the disputed document for expert opinion. ( 11 ) IN such circumstances, under Section 73 of the Evidence Act, the Court is competent to compare the signatures and the trial Court rightly opined that the signatures found on Ex. A1 are not identical or similar to that of the admitted signatures which fact was ignored by the lower appellate Court. The reasons given by the lower appellate Court are not correct and the Court is entitled to compare the signatures and give its opinion. The lower appellate Court observed that the execution of Ex. A18 probablises to some extent the case of the plaintiff. The reasons given by the lower appellate Court are not correct and the Court is entitled to compare the signatures and give its opinion. The lower appellate Court observed that the execution of Ex. A18 probablises to some extent the case of the plaintiff. The lower appellate Court cannot base its conclusions on probabilities. Hence the judgement is vitiated. Pw-2 has not witnessed the passing of consideration under Ex. A1. The recitals in Ex. A1 and the suggestions put to Dw7 with regard to the consideration is different. No cash consideration passed under Ex. A1. The 2nd defendant admitted that he handed over Exs. B1,b3,b4,b6, B7 and B8 at the time of execution of the sale deed and that he received Ex. B1,b3 and B4 documents from his predecessors in title namely R. Damodar Reddy. The evidence of Dw-1 who is the clerk in District Registrar s Office has not been properly appreciated by the lower appellate Court. It is the evidence of Dw-1 that Ex. B1 is the original sale deed dated 4. 6. 1964 executed by Chinthala Atchaiah and Ratnabai in favour of R. Damodar Reddy, which has been entered in the office records of the District Registrar s Office under Ex. X1. The plaintiff filed Ex. A5 said tobe the original sale deed executed by Atchaiah and Ratnabai in favour of R. Damodar Reddy which was said to be handed over by the 2nd defendant at the time of execution of Ex. A1. Ex. A5 is dated 25. 6. 1964 but not dated 4. 6. 1964. The document No. 1656 dated 25. 6. 1964 marked as Ex. A5 and the said document was not registered. In the light of the evidence of Dw1, it is proved that Ex. A5 is not true document, but the same has been fabricated and filed to appear as though that it is a registered sale deed. This circumstance would falsify the evidence of Pw-1 that D2 handed over the link document to him at the time of execution of Ex. A1. Further, the thumb impression on the reverse of first page on Ex. A5 is in ordinary inkpad. Generally, at the time of registration, thumb impression of the executant will be taken on black inkpad and specimen thumb impressions will be kept in the records of the Registration department. The evidence of Dw-1 would prove that Ex. A1. Further, the thumb impression on the reverse of first page on Ex. A5 is in ordinary inkpad. Generally, at the time of registration, thumb impression of the executant will be taken on black inkpad and specimen thumb impressions will be kept in the records of the Registration department. The evidence of Dw-1 would prove that Ex. A5 is a forged document. There is yet another circumstance to come to the conclusion that Ex. A5 is a forged document since the signature of Atchaiah is in English in Ex. A5 whereas he signed in Telugu in Ex. B1. The father s name of R. Damodar Reddy is mentioned as Krishna Reddy instead of Ramachandra Reddy. The lower appellate Court failed to notice the interpolations under Ex. A5 document, which is visible to the naked eye and on examination by magnifying glass, it is clear that the year 1971 has been changed to 1970 and there is interpolation in respect of the month which has been changed to August. The signatures of the attestors in both the documents appear to be by the same person but not written with free hand. After careful scrutiny of these documents, I have no hesitation that Ex. A3 to A5 are fabricated documents and they were not delivered by the 2nd defendant and therefore the lower appellate Court committed error in relying on Ex. A3 to A5 for coming to the conclusion that Ex. A1 was executed by the 2nd defendant. Though the documents contained the seal of Registrar office, evidently, they might have been fabricated with connivance of some one in the Registrar office. The lower Courts ought to have ordered an enquiry, but at this stage it is not necessary to order an enquiry in to the matter. The lower appellate Court also erred in relying on some admissions. It is significant to note that the 2nd defendant who is examined as Dw7 gave an affidavit as early as 13. 6. 1974 that he did not execute any sale deed in favour of the plaintiff and he did not hand over any title deeds of his predecessors. There appears to be some mistake in recording the evidence. The lower appellate Court relying on the evidence of Dw7 that he admitted in the cross examination that Ex. A3 is the registered sale deed executed by R. Damodar Reddy in his favour and Ex. There appears to be some mistake in recording the evidence. The lower appellate Court relying on the evidence of Dw7 that he admitted in the cross examination that Ex. A3 is the registered sale deed executed by R. Damodar Reddy in his favour and Ex. A5 is a registered sale deed under which his vendor purchased the property from Atchaiah and another. It is evident that Ex. A3 and A5 are the fabricated documents. The alleged documents cannot be taken note of in view of denial made by the 2nd defendant long prior to the filing of the suit itself. There is also some mistake in recording the deposition of Dw6 and there appears to be typographical error and the word not had been omitted while typing the evidence, "i contacted D2 and he told me that he sold the property to Pw1". On a perusal of the entire evidence and in the chief examination, Dw6 was disputing that the 2nd defendant did not sell the suit property to the plaintiff earlier to his purchase. The findings of the lower appellate Court are nothing but perverse and therefore it requires interference by this Court. The trial Court has given cogent reasons in coming to the conclusion that the 2nd defendant did not execute the sale deed Ex. A1 in favour of the plaintiff. The lower appellate Court committed error in not appreciating Ex. B6 and its effect. The 2nd defendant namely K. V. Subba Rao executed a sale deed on 13. 7. 1971 in favour of Kurra Venkataiah and entered into an agreement to re-purchase the same. It is significant to note that Ex. A1 is dated 28. 4. 1972 and Ex. B6 is dated 13. 7. 1971. Therefore, by the date of Ex. A1, the 2nd defendant having executed the sale deed in favour of Kurra Venkataiah had no valid title over the suit property and therefore, the plaintiff will not derive any title under Ex. A1 document. The 2nd defendant and Kurra Venkataiah jointly executed Ex. B9 wherein the right of 2nd defendant for re-purchase is also mentioned and Ex. B9 is in favour of the 1st defendant. Thus the lower appellate Court failed to appreciate Ex. B6 and its effect. As on the date of Ex. A1 document. The 2nd defendant and Kurra Venkataiah jointly executed Ex. B9 wherein the right of 2nd defendant for re-purchase is also mentioned and Ex. B9 is in favour of the 1st defendant. Thus the lower appellate Court failed to appreciate Ex. B6 and its effect. As on the date of Ex. A1, the 2nd defendant had no subsisting right or interest in the suit property and as such the plaintiff will not get any valid title under Ex. A1 document, even if it were to be a true document. For the reasons stated above, the lower appellate Court failed to consider the vital piece of evidence and relied on inadmissible evidence while coming to the conclusion whether Ex. A1 is true and valid document executed in favour of the plaintiff and the findings reached by the lower appellate Court is without consideration of the entire evidence on record and thus the findings reached by the lower appellate Court are erroneous, perverse or patently illegal which require interference in the second appeal. On careful consideration of the entire evidence on record, I come to the conclusion that the plaintiff failed to prove the execution of Ex. A1 and that he did not derive any right, title or possession to the suit property and thereby the plaintiff is not entitled to any of the reliefs prayed for. Hence the decree and judgement of the lower appellate Court is liable to be set aside by allowing the second appeal. ( 12 ) IN the result, the second appeal is allowed with costs through out and the decree and judgement in A. S. No. 140 of 1987 dated 14. 6. 1990 on the file of the Additional Chief Judge, City Civil Court, Hyderabad is set aside and the decree and judgement in O. S. No. 761 of 1977 shall be restored.