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2007 DIGILAW 720 (AP)

Routu Sivudunaidu v. Pandranki Lakshminarayanamma

2007-08-01

B.PRAKASH RAO

body2007
Judgment :- The appellants herein, who are the defendants in the Court below, by way of this appeal seek to assail the judgment and decree dated 18.04.1994 in A.S.No.3 of 1990 on the file of the Court of Subordinate Judge, Rajam, allowing the appeal at the instance of the respondent/plaintiff and setting aside the dismissal of the suit as per the judgment and decree dated 31.07.1989 in O.S.No.219 on the file of the Court of District Munsif, Palakonda. Heard Sri Rama Rao Ghanta, learned counsel appearing for the appellants, Sri Gade Venkateswara Rao and Sri Venkateswara Rao Gudapati, learned counsel appearing for the respondent. The facts, which arose in these proceedings, are that the respondent/plaintiff filed a suit for recovery of possession of the suit schedule property after ejecting the appellants/defendants and further consequential reliefs. The claim of the respondent/plaintiff was to the effect that she is the legally wedded wife of the third defendant and their marriage took place about 25 years prior to the filing of the suit. The third defendant executed a settlement deed dated 06.06.1963 settling the suit schedule properties and also some other lands giving her life interest and further as per the terms contained therein and later to her death, the said properties are to be enjoyed by her sons and if there are no sons, the same should be enjoyed by the daughters with absolute rights. Accordingly, the plaintiff claimed that she had been in possession and enjoyment of the lands all along. The plaintiff and the third defendant were blessed with two daughters and one son. However, the third defendant, about 14 years ago, kept one Appala Narasamma as concubine and left the plaintiff and the children. However, the defendants colluded together in the month of March, 1975 and trespassed into the suit lands by dispossessing the plaintiff in spite of her protests and resistance. Since the defendants have absolutely no right, title and interest over the schedule properties and the entire action on their part is collusive and fraud. The respondent/plaintiff is entitled for recovery of possession of the plaint schedule properties. Hence, the suit. Contesting the suit claim, the case of the first appellant/first defendant, which was adopted by the second appellant/second defendant, was that of denial as to the entire claim as set forth by the respondent/plaintiff. The respondent/plaintiff is entitled for recovery of possession of the plaint schedule properties. Hence, the suit. Contesting the suit claim, the case of the first appellant/first defendant, which was adopted by the second appellant/second defendant, was that of denial as to the entire claim as set forth by the respondent/plaintiff. Further, it was pleaded that the alleged settlement deed dated 06.06.1963 is not true, valid and binding and that apart it was never acted upon nor the plaintiff was put in possession in pursuance thereof. According to the appellants/defendants, there was a family settlement between the plaintiff, the minor son and the first defendant and a partition deed was executed on 03.05.1969 by them and thereafter, they themselves agreed to sell the suit schedule property and thus, entered into an agreement of sale dated 23.02.1971, which was also signed by the respondent/plaintiff. The first defendant paid the consideration to them and they have been put in possession and since March, 1971 they are in possession and enjoyment all along. It was also claimed that their possession in pursuance of the said agreement is sufficiently protected under Section 53-A of the Transfer of Property Act and they are ready and willing to perform their part of contract. Having regard to the aforesaid reasons, the plaintiff, it was stated, that she is not entitled for any relief as sought for. The third defendant, who died subsequently, filed a separate written statement denying all the allegations contained in the plaint and the claim made there in by the respondent/plaintiff and he also reiterated the self-same pleas as set forth by the defendants 1 and 2 to the effect that the said settlement deed dated 06.06.1963 was not acted upon nor the plaintiff was put in possession and there has been a family settlement in May, 1969 followed by a registered partition deed dated 03.05.1969, which itself goes against the said settlement deed dated 06.06.1963. Later, they had agreed to sell the suit schedule property to the defendants 1 and 2 for a consideration of Rs.10,971/- (Rupees ten thousand nine hundred and seventy one only) and entered into an agreement of sale dated 23.02.1971 and the said defendants 1 and 2 were put in possession and they have been in possession accordingly and paying land revenue. Later, the third defendant sailing with the defendants 1 and 2 in all aspects denied the claim of the respondent/plaintiff. On these and other allegations, the trial Court initially framed the following issues: 1. Whether the settlement deed dt.06.06.1963 is true, valid and binding on the defendants 1 and 2? 2. Whether the agreement of sale dt.23.02.1971 is true and binding on the defendant ? 3. Whether the suit is barred by time ? 4. To what relief ? During the course of trial, the respondent/plaintiff examined P.Ws.1 to 4 and marked Exs.A.1 to A.8 whereas on behalf of the appellants, D.Ws.1 and 2 were examined and Exs.B.1 to B.15 were marked. Basing thereon, the trial Court dismissed the suit holding that the defendants 1 and 2 were in possession and enjoyment in pursuance of the said agreement and there had been a partition as claimed by them prior to the said settlement deed dated 06.06.1963, which was marked as Ex.A.1. Hence, the respondent/plaintiff is not entitled for any relief. Aggrieved thereby, the respondent/plaintiff filed a regular appeal where the lower appellate Court, on a consideration of the evidence and the material on record, did not agree with the ultimate conclusions of the trial Court mainly that there has been no proper discussion nor any reasons in support as against the conclusions or findings, which are ultimately given by the trial Court and deferring with the same, allowed the appeal holding that the settlement deed in Ex.A.1 is true, valid and acted upon and she has been put in possession and therefore, the question of partitioning the property especially where life interest is created does not arise and even otherwise the agreement and the partition as set up by the defendants have not been proved nor valid and thus, held that the plaintiff is entitled for the relief of possession on her own absolute right and title. Hence, this appeal. Hence, this appeal. Assailing the conclusions as arrived at by the lower appellate Court in reversing the conclusions of the trial Court, Sri Rama Rao Ghanta, learned counsel appearing for the appellants contended that the alleged settlement deed as claimed by the respondent/plaintiff is not true nor acted upon especially having regard to the staring circumstances of the partition and also the agreement of sale, which was duly signed by the respondent/plaintiff herself on 23.02.1971, which is marked as Ex.B.2 and the said partition deed is marked as Ex.B.1 and therefore, the lower appellate Court was not right in holding that the plaintiff has got any title or right for seeking the alleged possession. Sri Gade Venkateswara Rao, learned counsel appearing for the respondent repelling the aforesaid contentions sought to sustain the same on the ground that having regard to the settlement deed already executed, the question of any further transactions in contra thereto or in the teeth of the rights as conferred under Ex.A.1, which itself is a limited one would not arise and therefore, the appellants cannot set up any valid claim and the lower appellate Court has rightly rejected the same. On a consideration of the elaborate submissions made in detail and in depth from both the sides and on perusal of the entire material on record, the points that arise for consideration, on the facts and circumstances, are as to whether the respondent/plaintiff has got valid right or title for seeking the relief of possession and whether the plea as set forth by the appellants in regard to the partition under Ex.B.1 dated 03.05.1969 and the agreement of sale under Ex.B.2 dated 23.02.1971 are true and valid? Having regard to the very nature of questions, which cropped up ultimately and which revolve around as to the correctness, validity, and genuineness and also as to whether all those three documents namely settlement deed in Ex.A.1 as claimed by the respondent/plaintiff, partition deed in Ex.B.1 and the agreement of sale in Ex.B.2 as claimed by the defendants are true or not and whether the same are acted upon by the parties. There is no serious dispute in regard to the relationship between the plaintiff and the third defendant and they blessed with the children i.e., two daughters and one son. There is no serious dispute in regard to the relationship between the plaintiff and the third defendant and they blessed with the children i.e., two daughters and one son. There is no serious dispute to the effect that certain differences arose between the plaintiff and the third defendant having regard to the fact that the third defendant kept another woman. It is also not in dispute that the third defendant had executed Ex.A.1 on 06.06.1963 settling the property in favour of the respondent/plaintiff creating life interest and subsequently the same should be vested with the children. However, the claim of the appellants is only in pursuance of the partition in Ex.B.1 and agreement of sale in Ex.B.2. To sustain their claim under these two documents, the appellants pleaded that even though there has been such a registered settlement deed under Ex.A.1, it was not given effect to nor acted upon and no possession was delivered to the plaintiff and therefore, it would not create any enforceable right and title. While considering these aspects after framing points for consideration namely whether the settlement deed dated 06.06.1963 is acted upon; secondly whether the agreement of sale dated 23.02.1971 is true and binding on the defendants and lastly whether the plaintiff is entitled to recovery of possession of the plaint schedule property, the lower appellate Court, on a detailed consideration of the evidence as set forth from both the sides and giving its own reasons, primarily did not agree with the conclusions and the result of the trial Court in dismissing the suit by specifically pointing out in para No.28 of the judgment, which reads as follows: "In this regard, I may state with concern that the learned District Munsif did not consider any of these aspects. The judgment is without any reasons supporting the conclusion, though it ran into 14 pages. The learned District Munsif has just narrated the entire pleadings and the evidence, but did not discuss the oral or documentary evidence. In a single word, he concluded that the partition is proved and therefore, the plaintiff is not entitled to recovery of possession of the plaint schedule lands. The learned District Munsif has not exhibited any seriousness in discussing the merits of the case and without giving any reasons or discussion, he simply jumped to the conclusion. In a single word, he concluded that the partition is proved and therefore, the plaintiff is not entitled to recovery of possession of the plaint schedule lands. The learned District Munsif has not exhibited any seriousness in discussing the merits of the case and without giving any reasons or discussion, he simply jumped to the conclusion. Such type of judgments will cause lot of confusion and rather cause miscarriage of justice." Having regard to the aforesaid reasons given, this Court also has gone through the judgment of the trial Court and on perusal thereof, the aforesaid reasons as given by the lower appellate Court are found to be correct. It is thus, evident from the judgment of the trial Court that though it runs into 16 paras, the entire 14 paras are nothing but extracts of the pleadings and contentions from both the sides and the extracts from the decisions, which have been cited across the Bar and the para, which contains the conclusion or discussion reads as follows: "Exs.B.1 to B.15 go to show that the defendants 1 and 2 are in possession and enjoyment and a partition in their family took place long back prior to Ex.A.1. So the issues 1 to 4 are answered in favour of defendants against the plaintiff in view of the above case law." A bare look at the aforesaid para clearly shows that bereft of any reasons, discussion, it is totally laconic and shows amply lack of application of any mind. As rightly pointed out by the lower appellate Court, there is absolutely no discussion of the pros and cons of the evidence set forth, documents relied on and no reasons are given either to accept which of them or to reject which of them. This aspect is quite very often being noticed in the judgments of the Courts below though the same runs into pages and pages, the substantial portion thereof till almost last page, it is nothing but extract of the pleadings and the contentions and the conclusion is hardly restricted to para or page. No reasons is being shown to discuss and give reasons. A judgment bereft of any reasons is not a judgment at all and does not show the application of any mind also. No reasons is being shown to discuss and give reasons. A judgment bereft of any reasons is not a judgment at all and does not show the application of any mind also. Thus, the need of the hour is to pay serious attention by the most of the Presiding Officers to improve and express upon the reasoning portion of the judgment rather than allowing to be a mere extract of the pleadings and the contentions. The practice of passing laconic orders or judgments is being deprecated all along and yet, the same is being repeated. This aspect needs to be attended by the authorities concerned to take note thereof and opt for such remedial steps with a serious attention. Coming to the merits of the case as already pointed out, the trial Court did not pay much attention nor give any consideration apart from lack of reasons. However, the lower appellate Court having given a due consideration of the same with its own reasons, has found on all the aforesaid points for consideration upholding the claim of the respondent/plaintiff in pursuance of Ex.A.1 settlement deed and also to the effect that the same is acted upon. After referring to the contentions urged on either side, the lower appellate Court observed that in order to prove Ex.A.1, the attestor thereof was examined as P.W.2 and P.Ws.3 and 4, who are independent witnesses, speak of the possession of the plaintiff over the suit schedule property. Further, having regard to the admission by the third defendant himself in regard to the execution of Ex.A.1, it stands amply proved. As regards the pointer as to whether the said document is acted upon or not, the lower appellate Court has taken into consideration that since the very execution of Ex.B.1 has been denied by the plaintiff as P.W.1 and there being absolutely no reason or any explanation forthcoming for non-examination of any other witness except getting it marked through D.W.1 i.e., first defendant and the failure to examine the very third defendant himself and not examining any of its attestors and the statement of D.W.2 found to be not helpful, it was held that it cannot be said that Ex.B.1 stands proved. Even considering these circumstances as pointed out on behalf of the appellants to show that Ex.A.1 is not acted upon, the lower appellate Court has delved into the same individually and by giving its own reasons, did not find favour with the appellants. Ultimately it was held that as there is already a division as referred to in Ex.A.1 itself, the settlement deed is found to be duly acted upon. On the other aspect of execution of Ex.B.2, it was held that except examining himself as D.W.1 by the first defendant and the denial by P.W.1 as to her thumb impression and none of the executants, attestors or the scribe of the document having been examined, it was held specifically that the appellants have failed to prove due execution of Ex.B.2 and thus, the same is not true and its execution is not proved by them. Considering the plea of the appellants as to protection under Section 53-A of the Transfer of Property Act, it was held that since the very document in pursuance of which the claim of possession is held to be not true and further having regard to the fact that the plaintiff herself has no capacity to execute Ex.B.2 in favour of the appellants, there is absolutely no satisfaction of the basic conditions required under Section 53-A of the Transfer of Property Act and therefore, the appellants are not entitled to any protection there under. Having regard to the findings of fact as arrived at by the lower appellate Court with all the plausible and acceptable reasons behind and the evidence in support, no question of law arises nor the pleas as raised or pointed which arose in this appeal to be considered would involve any question of law much less a substantial one. This Court in any way would not venture to re- appreciate the evidence to come to any different conclusion in its exercise of powers under Section 100 of the Code of Civil Procedure as long as no such question arises. Hence, I do not find any merits in this appeal. The Second Appeal is accordingly dismissed. No costs.