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2005 DIGILAW 362 (AP)

Arava Pushpamma v. Arava Sudarsanam

2005-04-15

P.S.NARAYANA

body2005
( 1 ) ARAVA Pushpamma, plaintiff in O. S. No. 1091 of 1981, on the file of the Principal District Munsif, Nellore, had preferred the present second appeal. ( 2 ) THIS Court admitted the second appeal on 24-02-1997, framing the following substantial questions of law which are referred to infra. "a) Whether the lower appellate Court had not erred in holding that the appellant failed to prove Ex. A-1 in the light of the fact that the 1st defendant (deceased Arava Chinnaiah) categorically admitted about the execution of Ex. A-1 registered sale deed while pleading that his thumb impression on Ex. A-1 was obtained by playing fraud and mis-representation? b) Whether the lower appellate Court has not erred that though issue No. 2 has been framed by the trial Court casting burden upon the appellant to prove Ex. A-1 in the light of the categorical defence of the deceased 1st defendant, the said registered sale deed Ex. A-1 was vitiated by fraud and misrepresentation, the deceased 1st defendant has to substantiate his defence and a mere technical defect in not properly framing the above issue No. 2 cannot be taken as a ground to upset the judgment of the trial Court? c) The lower appellate Court has not erred to consider that the burden of proof loses its significance when the parties have adduced the necessary evidence in the light of the judgment of the Supreme Court reported in A. I. R. 1973 (SC) Page 626?" ( 3 ) SRI P. Sridhar Reddy, the learned counsel representing appellant/plaintiff had taken this Court through the findings recorded by the Court of first instance and would submit that after adduction of evidence of both sides, the concept of burden of proof would lose its importance. The learned counsel also would submit that one of the attestors in relation to sale deed is no more, yet another attestor is D-4 in the suit and the whereabouts of the scribe also being unknown, the suit had been rightly decreed on the strength of the registered sale deed Ex. A-1 and also in the light of evidence of PW-1. A-1 and also in the light of evidence of PW-1. The learned counsel also would submit that one of the attestors in relation to sale deed is no more, yet another attestor is D-4 in the suit and the whereabouts of the scribe also being unknown, the suit had been rightly decreed on the strength of the registered sale deed Ex. A-1 and also in the light of evidence of PW-1. The learned counsel also would further submit that the particulars relating to the ground of fraud or ground of misrepresentation had not been pleaded in detail in the written statement. The learned counsel also would submit that the prior title deed Ex. A-3 also was delivered to the appellant/plaintiff on the date of Ex. A-1 and merely because the respondents/defendants were permitted to be on the property for some more time, would not alter the situation in any way. The learned counsel also pointed out to certain findings recorded in relation to appointment of Commissioner to examine the first defendant and how the first defendant was not examined and hence would submit that an adverse inference may have to be drawn in this regard. The learned counsel also placed reliance on the decisions of Vidyadhar V. Mankikarao ( AIR 1999 SC 1441 ) and Court of Ward, Kolhapur V. G. N. Ghorpade ( AIR 1973 SC 626 ). ( 4 ) PER contra, Syed Ghouse Basha, the learned counsel representing respondents/defendants would contend that in the light of the findings and evidence of DWs. 1 to 4 and also Exs. X-1 and X-2 and in the light of the fact that the plaintiff and her husband are having money lending business, the defense taken by the respondents/defendants, is definitely sustainable. The learned counsel also pointed out that under what circumstances the first defendant could not be examined, though a Commissioner was appointed and hence the counsel would maintain that no adverse inference could be drawn in this regard. The learned counsel also would submit that inasmuch as it is a suit for ejectment, the burden is on the plaintiff to establish her case and in the absence of the same, such plaintiff may have to be non-suited. The learned counsel placed reliance on the decisions of C. Audilakshmamma Vs. Ramarao ( AIR 1973 AP 149 ), Moran Mar Basselios Catholicos V. The Most Rev. The learned counsel placed reliance on the decisions of C. Audilakshmamma Vs. Ramarao ( AIR 1973 AP 149 ), Moran Mar Basselios Catholicos V. The Most Rev. Mar Poulose Athanasius (A. I. R. 1954 SC 526), Amir Bi V. Management, Nilasandra Mosque (A. I. R. 1969 Mysore 103), Lourembam V, Laisram (A. I. R. 1979 Gauhati 68) and also on the decision of Mohammad Yysuf v. D. (A. I. R. 1968 Bombay 112) in this regard. ( 5 ) HEARD the counsel and perused the oral and documentary evidence available on record and the findings recorded by the Court of first instance, as well as the appellate Court. ( 6 ) THE suit is for declaration of title in relation to plaint A schedule property and also ejectment of the respondents/defendants from plaint A schedule property and delivery of possession of the same and for recovery of damages worth about Rs. 180/- from the defendants for their wrongful use and occupation of the plaint A schedule property and for future mesne profits and for costs of the suit. ( 7 ) THE first defendant in the suit Arava Chinnaiah died on 16-08-1988 and inasmuch as the legal representatives, defendants 2 to 4, are already on record, a memo was filed to the said effect and the same had been recorded. ( 8 ) FOR the purpose of convenience, the parties are referred to as plaint as defendants. It was pleaded in the plaint as hereunder:- the 1st defendant is the father of defendants 2 to 4. They are living separately. A-Schedule property is the thatched house with the appurtenant site. It is the self-acquired property of the 1st defendant. He has purchased the same with his own funds. He sold the same to the plaintiff for Rs. 1,800/- under sale deed dated 22-01-1979. As the 1st defendant required time to secure residential accommodation elsewhere, he continued to stay in the plaint A-schedule premises as a tenant of the plaintiff agreeing to pay rent of Rs. 5/- per month. It was agreed by the plaintiff and 1st defendant that the 1st defendant should vacate the premises by 30-03-1979 and deliver possession to the plaintiff. The tenancy expired on 30-03-1979. The possession of the 1st defendant became wrongful since then. 5/- per month. It was agreed by the plaintiff and 1st defendant that the 1st defendant should vacate the premises by 30-03-1979 and deliver possession to the plaintiff. The tenancy expired on 30-03-1979. The possession of the 1st defendant became wrongful since then. As the 1st defendant failed to vacate the premises and deliver possession to the plaintiff by 30-03-1979, the plaintiff issued a notice dated 24-08-1979 to the 1st defendant urging him to deliver vacant possession of the A-schedule premises within two weeks from the date of receipt of notice. Though the 1st defendant received notice, he did not send any reply. He did not comply with the demand of the plaintiff. Though he was promising from time to time to vacate the A-Schedule premises, the 1st defendant without complying with the demand of the plaintiff, set up defendants 2 to 4, who are his sons, to attack the sale of the A-Schedule property to the plaintiff. Defendants 2 to 4 issued a notice dated 01-11-1979 through their lawyer to the plaintiff falsely alleging that A-Schedule premises is the joint property of all the defendants and that the 1st defendant was not the exclusive owner and that the sale in favour of the plaintiff was vitiated by fraud and misrepresentation on the part of the husband of the plaintiff by name Joseph. In their notice, they required cancellation of the sale deed alleging that it was obtained by the plaintiffs husband by misrepresenting to the vendor that it was a mortgage deed for Rs. 800/ -. The A-Schedule premises was the absolute property of the 1st defendant. The sale in favour of the plaintiff is valid and operative and binding on all the defendants. The sale deed dated 22-01-1979 was truly and validly executed by the 1st defendant and the same is unimpeachable. On receipt of the notice from the defendants 2 to 4, the plaintiff, her husband and mediators brought home to the defendants the falsity and the untenability of their claim and urged them to be just and to deliver possession of A-Schedule premises to the plaintiff. They promised to deliver possession to the plaintiff. The Plaintiff has been anxiously waiting for the fulfillment of their promise. They once again claimed that they are all in occupation of A-Schedule premise. They promised to deliver possession to the plaintiff. The Plaintiff has been anxiously waiting for the fulfillment of their promise. They once again claimed that they are all in occupation of A-Schedule premise. As the plaintiff is not in a position to cope with the high-handedness of the defendants, she filed this suit for declaration of her title to A-Schedule property and for ejectment of the defendants there from and for payment of damages to the plaintiff at Rs. 15/- per mensem for their wrongful use and occupation of the premises from 01-04-1979 to 01-03-1980 and for future mesne profits. ( 9 ) DEFENDANTS 1, 2 and 4 filed written statement and the third defendant filed an adoption memo. It was pleaded in the written statement as hereunder: the defendants 2 and 4 are not residents of Subedarpet Channel street. They are the undivided sons of the 1st defendant. They are living jointly with the 1st defendant in the plaint A-Schedule property, in Aravapalem, Kapadipalem, Nellore. The 1st defendant never approached Arava Pushpamma for a loan. She never lent any money to the 1st defendant. It was Arava Joseph, the husband of plaintiff who paid Rs. 800/- by way of mortgage loan. The plaintiff has no connection with the loan transaction. The plaint A-Schedule property was acquired with the earnings of the three sons of the 1st defendant who were all earning in different trades. As the 1st defendant is the elder member in the family, it was nominally registered in his name. The plaint A-Schedule property is the joint property of the defendants 2 to 4. The 1st defendant was aged about more than 80 years at the time of purchase of plaint A-Schedule property. He was not even doing coolie work at that time. He had no capacity to purchase the plaint A-Schedule property by himself. It is false to state that the 1st defendant sold plaint A-Schedule property to the plaintiff for Rs. 1,800/- on 22-01-1979 and that he agreed to be a tenant of the plaintiff till 30-03-1979 paying a rent of Rs. 5/- per month and to vacate the premises and to deliver possession by 30-03-1979. The 1st defendant was never a tenant of the plaintiff. The 1st defendant had some debts to be discharged by 22-01-1979. He, therefore, approached Arava Joseph, the husband of the plaintiff for a loan of Rs. 800/ -. 5/- per month and to vacate the premises and to deliver possession by 30-03-1979. The 1st defendant was never a tenant of the plaintiff. The 1st defendant had some debts to be discharged by 22-01-1979. He, therefore, approached Arava Joseph, the husband of the plaintiff for a loan of Rs. 800/ -. Joseph, in his turn, agreed to give him a loan provided he mortgaged the plaint A-Schedule property to him with interest at 36% p. a. The 1st defendant agreed for the same. Thereafter, Joseph took the 1st defendant near Registrars Office in District Court compound and got a document written in the shed by one of the document writers purporting to be a sale of A-Schedule property for Rs. 1800/ -. He brought the document and without reading out the document to the 1st defendant falsely represented to him that it was mortgage deed for Rs. 800/- and asked him to put his thumb impression thereon. The 1st defendant implicitly believed his representation and affixed his thumb impression. Thus Joseph fraudulently took his thumb impression on the document got prepared by him. He then paid Rs. 800/- only to the 1st defendant and not Rs. 1,800/ -. The 1st defendant was then an old man of over 80 years. He was unable to understand as to what he was doing. Then he was taken to Registrars Officer. By that time, the attestors arrived. Joseph told the attestors that it was a mortgage bond and asked them to attest the document. They accordingly attested the document. They had no opportunity to go through the document. They even identified the 1st defendant before the Registrar. The Registrar asked 1st defendant if he had received the amount and the 1st defendant replied that he received the amount. In these circumstances, the sale deed dated 22-01-1979 was fraudulently obtained by Joseph by misrepresenting that it was a mortgaged bond for Rs. 800/ -. The sale deed is, therefore, void, inoperative and unenforceable. It conveys no title, right or interest in the plaint A-Schedule property to the plaintiff. Having strong belief that what was registered was only a mortgage bond for Rs. 800/-, the 4th defendant paid Rs. 24/- by the end of February, 1979 being the months interest to Jospeh. One Annadata Krishnamoorthy, a soda vendor was present then. Joseph received the amount and promised to note the payment on the bond. Having strong belief that what was registered was only a mortgage bond for Rs. 800/-, the 4th defendant paid Rs. 24/- by the end of February, 1979 being the months interest to Jospeh. One Annadata Krishnamoorthy, a soda vendor was present then. Joseph received the amount and promised to note the payment on the bond. In October, 1979, the 4th defendant went to Joseph and offered to pay principle and interest due on the mortgage bond for Rs. 800/ -. But, Joseph refused to receive the amount on the ground that there was no mortgage bond and that what was registered was a pucca sale deed. The fact that it was a sale deed was kept as a secret till then. The defendants thereafter gave a notice dated 01-11-1979 to the plaintiff that the sale deed dated 22-01-1979 was fraudulently obtained representing that it was mortgage deed and that it was, therefore, void and inoperative. No notice was issued to the 1st defendant. The alleged mediation and he promise of the 1st defendant to vacate the plaint A-Schedule property are all false. The plaintiffs claim for damages is unsustainable. The thatched vasara alleged to have been sold to the plaintiff is only one ankanams in extent and the same is rented out, it might fetch a rent of one rupee of month. The suit is, therefore, liable to be dismissed with costs. ( 10 ) ON the strength of the pleadings of the parties before the Court of first instance, the following issues were settled:- 1. Whether the suit property is the joint family property of D-1 to D-4? 2. Whether the sale deed dated 22-01-1979 is true and valid? 3. Whether the 1st defendant agreed to be a tenant of the plaintiff on a rent of Rs. 5/- per month? 4. Whether the plaintiff is entitled to declaration of title? 5. To what relief of plaintiff is entitled? ( 11 ) THE plaintiff examined herself as PW-1 and Exs. A-1 to A-6 were marked and on behalf of defendants DWs. 1 to 4 were examined and Exs. X-1 and X-2 were marked. ( 12 ) THE plaint schedule property is a thatched house with an appurtenant vacant site. 5. To what relief of plaintiff is entitled? ( 11 ) THE plaintiff examined herself as PW-1 and Exs. A-1 to A-6 were marked and on behalf of defendants DWs. 1 to 4 were examined and Exs. X-1 and X-2 were marked. ( 12 ) THE plaint schedule property is a thatched house with an appurtenant vacant site. The stand taken by the defendants is that the plaint schedule property is their joint family property and not the self-acquired property of the first defendant and hence the first defendant has no right to execute the sale deed. In alternative, further stand had also been taken that this is a matter relating only to a monetary transaction and the document was obtained by playing fraud and on misrepresentation. The Court of first instance, on appreciation of the evidence available on record, negatived the contentions raised by the defendants and ultimately decreed the suit with costs, as prayed for. ( 13 ) AGGRIEVED by the same, defendants 2 to 4, incidentally the legal representatives of the first defendant, preferred A. S. No. 45 of 1989, on the file of he District Judge, Nellore. The appellate Court, at para 9, framed the following point for consideration: whether the respondent/plaintiff has failed prove issue No. 2 by leading cogent and relevant evidence and that the finding of the Lower Court is without basis and material and consequently the judgment and decree of lower Court deserves to be set aside or not. ( 14 ) AFTER framing the point for consideration referred to supra, the appellate Court at para 10 had recorded certain findings and ultimately allowed the appeal without costs and aggrieved by the same, the present second appeal is preferred. ( 15 ) EX. A-1 is the registered sale deed executed by the first defendant in favour of plaintiff, dated 22-01-1979, Ex. A-3 is registered sale deed executed by Arava Narsimhulu in favour of Arava Chinnaiah i. e. , the first defendant, dated 29-08-1968, in the suit, Exs. A-2 and A-4 are the respective office copies of the lawyers notice, Ex. A-5 is the postal receipt and Ex. A-6 is the postal acknowledgment. ( 16 ) THE plaintiff alone was examined as PW-1. The main ground of attack made by the defendants is that Ex. A-2 and A-4 are the respective office copies of the lawyers notice, Ex. A-5 is the postal receipt and Ex. A-6 is the postal acknowledgment. ( 16 ) THE plaintiff alone was examined as PW-1. The main ground of attack made by the defendants is that Ex. A-1 sale deed is not true ad valid for the reason that it is not a sale deed at all since the same had been obtained by misrepresentation or fraud and, in fact, it was intended to be a mortgage deed, a simple monetary transaction, but not a sale deed and yet another ground of attack being that it is not the self-acquired property of the first defendant, but the property belongs to all the joint family members. ( 17 ) THE execution of the sale deed is not in dispute or controversy. It is also not in serious controversy that PW-1 came into custody of the original title deed Ex. A-3 also. Submissions at length were made relating to the same by both the counsel to substantiate their respective contentions. Ex. A-1 was attested by DW-1 and one G. G. Prakash. In the cross-examination of PW-1 it was stated that the other attestor Prakash died. The scribe was also not examined. Apart from PW-1, the only other witness connected with the execution of the document is DW-1 and he is the fourth defendant in the suit, who is the youngest son of the first defendant. It is needless to say that he is an interested witness and naturally he would support the stand taken by the defendants. It may be that merely because he is the son of the first defendant, his evidence cannot be totally thrown out of record and the same may have to be considered. The Court of first instance, in fact, had considered the evidence at length and had recorded that in view of the fact that the execution of Ex. A-1 is not in dispute, though no other evidence is available on record, the plaintiff is entitled to a decree as prayed for. ( 18 ) APART from the evidence of DW-1, the evidence of DWs. 2, 3 and 4 also is available on record. Exs. X-1 is Xerox copy of registered mortgage deed executed by A. Mariyamma in favour of A. Pushpamma, dated 27-01-1974. Ex. ( 18 ) APART from the evidence of DW-1, the evidence of DWs. 2, 3 and 4 also is available on record. Exs. X-1 is Xerox copy of registered mortgage deed executed by A. Mariyamma in favour of A. Pushpamma, dated 27-01-1974. Ex. X-2 is Xerox copy of notice issued to A. Krishnavenamma, dated 21-08-1980. Certain submissions were made that if at all Ex. A-1 is a sale deed, it was intended to be acted upon by the parties, plaintiff should have taken possession of the property immediately after execution of Ex. A-1 and the very fact that the defendants continue to be in possession of the property even subsequent thereto, would go to show that it is just only a nominal transaction concerned with a money transaction between the parties and nothing more and hence, the element of fraud and also the element of misrepresentation are well established. It is needless to say that the particulars and details of fraud and misrepresentation are to be pleaded in specific terms in the light of Order VI Rule 4 of the Code of Civil Procedure. Apart from this aspect of the matter, the other attestor is no more and the only attestor available is DW-1, D-4 in the suit. D-4 is the youngest son of the first defendant, who is an interested witness. The scribe could have been examined, but no reason is forthcoming for non-examination of the scribe. ( 19 ) THE learned counsel representing the appellant would contend that inasmuch as though a Commissioner was appointed to examine the first defendant, the non-examination of the first defendant would go a long way and hence adverse inference may have to be drawn. Reliance was placed on Vidyadhars Case (1 supra) wherein the Apex Court observed as under: it was defendant No. 1 who contended that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- were paid as sale consideration to defendant No. 2. He further claimed that payment of Rs. 4,500/- to defendant No. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No. 1 as he did not enter into the witness box. 500/- were paid as sale consideration to defendant No. 2. He further claimed that payment of Rs. 4,500/- to defendant No. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No. 1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross-examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh Vs. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh vs. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbaksh Singhs case (AIR 1927 PC 230) (supra ). The Allahabad High Court in Arjun Singh V. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhangwan Dass v. Bhishan Chand, AIR 1974 Punjab and Haryana 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box. ( 20 ) THE Court of first instance and also the appellate Court had recorded slightly some varied reasons for non-examination of the first defendant. ( 20 ) THE Court of first instance and also the appellate Court had recorded slightly some varied reasons for non-examination of the first defendant. On the aspect of burden of proof, the learned counsel representing the appellant placed strong reliance on Ghorpades case (2 supra) and would submit that when both the parties had let in evidence, the aspect of burden of proof may lose its importance. There cannot be any doubt about this well settled proposition. ( 21 ) THE learned counsel representing the respondents had placed strong reliance on Basselios Catholicos case (4 supra) and Audilakshmammas case (3 supra) to substantiate his stand that in a suit for declaration of title and recovery of possession, it being a suit for ejectment, that the plaintiff is unable to establish her case, she is liable to be non-suited. There cannot be any quarrel about this proposition of law. The learned counsel also placed reliance on the decisions 5, 6 and 7 cited supra. ( 22 ) ON a careful scrutiny of the evidence available on record and also the findings recorded by both the Courts below, the appellate Court, in fact, reversed the judgment and decree of the Court of the first instance framing the point for consideration which had been referred to supra. The relevant discussion relating to the point is at para 10 of the judgment of the appellate Court. When a ground of misrepresentation or fraud is specifically raised by the defendants, it is needless to say that the burden is on he defendants to establish those pleas. It is also surprising that except placing reliance on Exs. A-1 to A-3, the title deeds and also the evidence of PW-1, there is no other evidence forthcoming on the side of the plaintiff. Obviously, the reason being that one attestor is no more and yet another attestor is the fourth defendant in the suit. It is not as though only the persons concerned with the sale transaction should be examined where a fact is to be established. The plaintiff could have thought of examining certain other witnesses to substantiate her stand that it was only a sale transaction and not a monetary transaction. To negative the same, necessary evidence could have been let in but, however, the plaintiff also had not chosen to examine anyone except the interested witness PW-1 and PW-1 alone. The plaintiff could have thought of examining certain other witnesses to substantiate her stand that it was only a sale transaction and not a monetary transaction. To negative the same, necessary evidence could have been let in but, however, the plaintiff also had not chosen to examine anyone except the interested witness PW-1 and PW-1 alone. ( 23 ) IN the light of what had been laid down in Basselios Catholicos case (4 supra) and Audilakshmammas case (3 supra) and in the peculiar facts and circumstances, it cannot be said that the plaintiff also had successfully discharged the burden cast upon her but, however, in the light of the fact D-4 is one of the attestor and another attestor is no more, the evidence of the scribe could have been let in. Apart from this aspect of the matter, the other evidence to further strengthen her stand could have been put forth. In the absence of the same, inasmuch as it cannot be said that the burden cast upon the plaintiff had been discharged in accordance with law, the appellate Court had arrived at such a conclusion. But however, on a careful scrutiny of the findings of the appellate Court, this Court thoroughly satisfied that disposal of the first appeal definitely is not in accordance with law since all the aspects had not been considered by the appellate Court. Cryptic point for consideration had been framed. In the light of the respective stands taken by both the parties, it is a fit matter to be remanded to the appellate Court for the purpose of affording opportunity to both the parties to let in further evidence in the light of the views expressed by this Court supra. ( 24 ) ACCORDINGLY, the second appeal is allowed to the extent indicated above, inasmuch as the order of remand is made by this Court, the parties to bear their own costs.