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2009 DIGILAW 618 (AP)

Shantha Bai v. Shanker Rao

2009-09-07

L.NARASIMHA REDDY

body2009
COMMON JUDGMENT These three Second Appeals have common basis and are in relation to the same item of property. Hence, they are disposed of through a common judgment. For the sake of convenience, the parties are referred to by their names, to avoid any confusion. The background of the appeals, in brief, is as under: One Sri Baswanth Rao had two sons, viz., Bheem Rao and Naga Rao. Bheem Rao’s grand son is Shankar Rao, the contesting respondent herein. Naga Rao had a son, by name, Srinivas Rao, through his first wife-Laxmi Bai. After the death of Laxmi Bai Naga Rao married Nagamani Bal. She acquired an extent of ACS. 5.06 guntas of land in survey No. 418 of Madnoor Village, Nizamabad District and a house, bearing No. 3-49, in that village, and died issueless. Srinivas Rao had a son by name Rajeshwar Rao. The first wife of Rajeshwar Rao, Smt. Parvathi, died and after her death, he married, Shantha Bai, the appellant in S.A. Nos.1233 and 1287 of 2006. She sold the landed property to one Mr. Hanumanth Rao, the appellant in S.A. (sr) No. 29302 of 2007. Shankar Rao filed O.S.No. 10 of 1999 in the Court of Senior Civil judge, Bodhan, for the relief of declaration of title and perpetual injunction, in respect of two items of property, referred to above. He pleaded that Nagamani Bai, the second wife of Naga Rao, was looked after by him, since she had no issues, and out of love and affection, she executed a Will, dated 05.04.1970, marked as Ex.A-4, bequeathing her properties to him. He stated that, consequent on the death of Nagamani Bai, on 31.08.1978, he became the absolute owner, and despite that, Shantha Bai and her relations, by name, Bheemanna and Nagnath, who were impleaded as defendants in the suit, are interfering with his possession over the suit property. Shantha Bai, on the other hand, filed O.S. No.29 of 2000, in the same Court, against Shankar Rao, for the relief of perpetual injunction, in respect of the very property. According to her, she succeeded to the property, being the natural legal heir of Nagamani Bai and that the Will pleaded by Shankar Rao is fabricated. She too complained that Shankar Rao is interfering with her possession over the property. The trial Court clubbed both the suits. According to her, she succeeded to the property, being the natural legal heir of Nagamani Bai and that the Will pleaded by Shankar Rao is fabricated. She too complained that Shankar Rao is interfering with her possession over the property. The trial Court clubbed both the suits. Through a common judgment, dated 01.08.2005, it decreed O.S. No.29 of 2000 and dismissed O.S. No.10 of 1999. Shankar Rao filed A.S.Nos. 35 and 36 of 2005 in the Court of VII Additional District and Sessions Judge (FTC), Nizamabad, against the judgments and decrees in O.S.Nos.10 of 1999 and 29 of 2000, respectively. The appeals were allowed through common judgment, dated 31.08.2006. Aggrieved thereby, Shantha Bai filed S.A.Nos.1233 and 1287 of 2006. Hanumanth Rao, who purchased the landed property from Shantha bai, during the pendency of the proceedings, filed S.A.(sr)No.29302 of 2007, with the leave of this Court. Sri Vijay Kumar Heroor, learned counsel for Smt. Shantha Bai and Sri Hanumanth Rao, submits that the sole basis for Shankar Rao, either to claim the relief of declaration of title and perpetual injunction, or to oppose the suit filed by Shantha Bai, is the Will, Ex.A.4, but he failed to prove the execution of the same. Learned counsel contends that once the testate devolution is ruled out, the property has to devolve through succession, and being the most proximate legal heir, Shantha Bai is entitled for the suit property. He submits that the trial Court recorded a finding that Shantha Bai is in possession of the property, on the basis of the oral and documentary evidence and the lower Appellate Court was not justified in disturbing the same. Sri. J. Prabhakar, learned counsel for Shankar Rao, on the other hand, submits that Ex.A.4 was proved as required in law and the error committed by the trial Court in holding that the document was not proved, was corrected by the lower Appellate Court. He further submits that the predecessor-in-title of Shantha Bai filed O.S.No.135 of 1982 in the Court of Senior Civil Judge, Nizamabad, which was transferred to the trial Court herein, are re-numbered as O.S.No.122 of 1984, against Shankar Rao, for recovery of possession of the very property and that the suit was dismissed, as evident from Ex.A.3. He further submits that the predecessor-in-title of Shantha Bai filed O.S.No.135 of 1982 in the Court of Senior Civil Judge, Nizamabad, which was transferred to the trial Court herein, are re-numbered as O.S.No.122 of 1984, against Shankar Rao, for recovery of possession of the very property and that the suit was dismissed, as evident from Ex.A.3. He contends that, even assuming that the Will, Ex.A.4 is not proved, the relief of injunction could not have been granted to Shantha Bai, since Shankar Rao is in possession of the property. Learned counsel submits that the finding recorded by the trial Court, as to possession of the suit property, is contrary to the evidence on record. Common trial was conducted, in both the suits, one filed by Shankar Rao and the other, by Shantha Bai, in relation to the same property. In O.S.No.10 of 1999 the following two issues were framed, viz., a) “Whether the plaintiff (Shankar Rao) is entitled for declaration as owner and possession of the suit schedule property? b) Whether the plaintiff is entitled for permanent injunction for suit schedule property?” Only one issue was framed in O.S.No.29 of 2000, viz., “Whether the plaintiff (Shantha Bai) is entitled for perpetual injunction as prayed for by her or not to the suit schedule property?” The relationship of the parties is not in dispute. The property was acquired by Nagamani Bai and neither of the parties are direct lineal descendants to her. Their relationship was a bit chequered. Shankar Rao deposed as PW.1 and he filed Exs.A.1 to A.22. On behalf of Shantha Bai, DWs. 1 to 5 were examined and Exs.B.1 to B.16 were filed. Most of the documentary evidence, adduced on behalf of both the parties, is in the form of pahanies for various years. The other documentary evidence adduced by Shankar Rao comprised of pleadings and judgment in O.S.No.122 of 1984 and the Will-Ex.A.4 and that, adduced by Shantha Bai, included the death certificates of her husband and father-in-law, the correspondence undertaken to the office of the Mandal Revenue Officer and Revenue Divisional Officer. O.S.No.10 of 1999 was dismissed and O.S.No.29 of 2000 was decreed. In the appeals preferred by Shankar Rao, the lower Appellate Court virtually treated the issues in the suits, as points for its consideration, but projected them from different angles. O.S.No.10 of 1999 was dismissed and O.S.No.29 of 2000 was decreed. In the appeals preferred by Shankar Rao, the lower Appellate Court virtually treated the issues in the suits, as points for its consideration, but projected them from different angles. This Court is of the view that the following points arise for consideration, in these Second Appeals, viz., a) Whether Shankar Rao proved his title to the property through Ex.A.4? b) Who among Shankar Rao and Shantha Bai are in possession of the suit schedule property? The declaration of title claimed by Shankar Rao is on the basis of Ex.A.4. It was not registered. The document is required to be attested, as provided for under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The plaint is silent, as to whether the attestors of Ex.A.4, or the scribe thereof, are alive, when the suit was filed. Even in his chief-examination, Shankar Rao, as PW.1, did not mention about the status of the attestors, or the scribe. It is only in the cross-examination, he stated that the attestors and scribe are no more alive. However, he cannot feel relieved, even if the attesting witnesses and scribe were dead, by the time the suit was filed and the trial commenced. Heavy burden rested upon him, at least, to prove the surrounding circumstances relating to execution of the Will. Any individual, who is otherwise acquired with the state of affairs, such as, Nagamani Bai being looked after by him, or the factum of execution of Will, the attestors, sharing the information with any one, be it before or after execution of Ex.A.4, could have been elicited. He did not even state as to how he come to know about Ex.A.4. His evidence is silent as to whether he was present when it was being executed. Apart from that, the law places heavy burden upon the propounder of a Will, to explain the suspicious circumstances. The fact that the disposition under the Will is in deviation from the principles of succession is recognized as one the suspicious circumstances. Admittedly, if the succession to the properties of Nagamani is to take place, Shantha Bai stands a better chance to succeed, being more proximate, in kinship than Shankar Rao. Except that he deposed as PW.1, not a single witness was examined by the latter. Admittedly, if the succession to the properties of Nagamani is to take place, Shantha Bai stands a better chance to succeed, being more proximate, in kinship than Shankar Rao. Except that he deposed as PW.1, not a single witness was examined by the latter. Therefore, Ex.A.4 cannot be said to have been proved. The view taken by the lower Appellate Court, in this regard, cannot be sustained in law. Though he has raised a plea of adverse possession, he has not chosen to adduce any evidence to prove it. Further, once he has claimed right to the property on the strength of a Will, he cannot fall back on the plea of adverse possession. Reference, in this context, may be made to the judgments of this Court in Gade Hanmandlu v. Sri Rajarajeswara Swamy Temple 2005 (4) ALT 664 , Madepeddi Rajalingam v. Rudroju Chinna Somaiah 2008 (2) ALT 403 and M.Maremma and others v. D.Krishnavenamma and others 2009 (1) ALD 177 (DB). The result is that, Shankar Rao failed to prove his title, and thereby, he is not entitled for the relief of declaration. Coming to the second question, both the contesting parties have claimed relief of perpetual injunction, against each other, as regards the same property. Irrespective of the title to the property, the possession of the parties, over the property, as on the date of filing of the suit, assumes significance. The uncertainty, in this regard, is confounded, on account of the fact that the revenue records reflected almost an equivocal state of affairs. Therefore, much would depend upon the result of the application of settled participles of law, to the facts of the case. One of the known methods in determining the question as to possession over an item of immovable property is that, if there existed an admitted state of affairs, in relation to the item of property, as between the same parties, at a given point of time, be it anterior, or posterior to the filing of the suit, a presumption can be drawn, either forward, or backward, from that point onwards. This presumption, of course is always rebuttable. Reference, in this context, may be made to the judgment of this Court in G.Trinadha Swamy v. Gandham Satyanarayana (2006 (2) APLH 93 (SN). This presumption, of course is always rebuttable. Reference, in this context, may be made to the judgment of this Court in G.Trinadha Swamy v. Gandham Satyanarayana (2006 (2) APLH 93 (SN). In the instant case, Rajeshwar Rao, the husband, and Srinivas rao, father-in-law of Shantha Bai filed O.S.No.135 of 1982, in the Court of Senior Civil Judge, Nizamabad, against Shankar Rao, for recovery of possession of the suit schedule property herein. That suit was transferred to the Court of Senior Civil Judge, Bodhan, and re-numbered as O.S.No.122 of 1984 and it was dismissed. The plaint in the suit is filed, as Ex.A.1, written statement, as Ex.A.2 and the order of dismissal, as Ex.A.3. The very fact that the suit was filed for recovery of possession connotes that the possession of Shankar Rao over the property was admitted. Since Shantha Bai is claiming rights over the land, through her husband and father-in-law, burden rests upon her, to show as to how the possession was recovered, or resumed from Shankar Rao, subsequent to 1984. She stated in her evidence as PW.1 that with the intervention of elders, the dispute between Shankar Rao, on the one hand, and Srinivas Rao and Rajeshwar Rao, on the other hand, was settled and that the land and house property were handed over to the later. She is said to be in possession of the same, as their successor. In the cross-examination, she admitted that she is residing at Gulbarga, with her children. The panchayat referred to by her is said to have taken place, after the dismissal of the suit; in the Gram Panchayat Office, and in the present of all the village elders. She expressed her inability to name the elders, who have participated in the panchayat. It was also her case that a document was written incorporating the outcome of the panchayat. Though she pleaded that she filed that document into the Court, it was not so. The relevant portion of her cross-examination reads as under: “It is true that the said suit 135/82 transferred to this Court, after establishment of this court. Subsequently on 18.10.1995, the said suit was dismissed for default. It is true that against the said dismissal orders neither my husband nor my father-in-law filed any restoration petition nor filed any revision or appeal. Subsequently on 18.10.1995, the said suit was dismissed for default. It is true that against the said dismissal orders neither my husband nor my father-in-law filed any restoration petition nor filed any revision or appeal. The panchayat referred by me in my affidavit took place, after the death of my husband and my father-in-law. I do not know whether my father-in-law Srinivas Rao was died after dismissal of the suit filed by him against the plaintiff. The panchayat referred by me in my affidavit took place in the Gram panchayat office ‘Madnoor’. In the said panchayat, all the village elders were present. I cannot say the names of the elders who participated in the panchayat. In the said panchayat a Document was got written and I have taken the item No.1 of the suit schedule lands in possession from the plaintiff herein. I filed the said document in the Court which was got written in the said panchayat to show that I have taken the possession of Item No.1 of the suit schedule properties. It is true that I have not pleaded in my plaint in O.S.No.29 to 2000 with regard to execution of the document in the panchayat with regard to taking delivery of possession of Item No.1 from the plaintiff, I have not filed the said document in the said suit. I cannot say any reasons for not filing the compromise petition in the suit filed by my father-in-law and my husband in O.S.No.132/82 which was later transferred to this Court and renumbered as O.S.No.122 of 1984.” It was also suggested to her that Shankar Rao never delivered possession of the property. Though Shantha Bai, as DW.1 has stated that she does not know the names of persons, who participated in the Panchayat, Mr. Sayanna Vatnalwar, examined by her, as DW.2 stated that he participated in it. According to him, no document was written, incorporating the terms of panchayat. He admitted that Shankar Rao did not execute any document in favour of Srinivas Rao, as regards any partition, or delivery of possession of the land in favour of Srinivas Rao. Another contradiction is as to the place of panchayat. This witness said that it took place in the “Chowk” near the house of Timmawar Hanmandulu. He too stated that he does not remember the names of elders in the panchayat. Another contradiction is as to the place of panchayat. This witness said that it took place in the “Chowk” near the house of Timmawar Hanmandulu. He too stated that he does not remember the names of elders in the panchayat. Therefore, the evidence of this witness is at variance with that of DW.1, Further confusion was added to the matter by examining Hanumanth Rao, as DW.3 According to him, he panchayat has taken place on the road near the suit land. It has already been mentioned that according to DW.1, the panchayat took place at the Gram Panchayat office. This witness was aged about 20 years at that time and he was not a participant. He is the person, who purchased the property from Shantha Bai and his evidence cannot be relied upon. From the above, it becomes clear that the place of panchayat, according to DW.1 is the office of Gram Panchayat, according to DW.2, it is the Chowk, near the house of Timmawar Hanmandulu, and the suit site itself as per DW.3. DW.1 stated that the contents of the panchayat were reduced into writing, whereas according to DW.2, nothing of that sort has taken place. None of the witnesses have spoken to the participation of any specific persons. The state of affairs, which is mentioned and pleaded in Ex.A.1, the plaint in O.S.No.135 of 1982, filed by husband and the father-in-law of Shantha Bai; cannot be ignored, in the strength of slippery, self-contradictory and totally unreliable evidence. Therefore, the finding recorded by the trial Court, that Shantha Bai proved her possession over the suit schedule property, cannot be sustained in law. On the other hand, possession of Shankar Rao, which was acknowledged by none other that the husband and father-in-law of Shantha Bai, cannot be ignored. The result would be that Shankar Rao is entitled for the relief of perpetual injunction and similar relief cannot be granted to Shantha Bai. Hanumanth Rao, in turn, has to abide by the result that ensues against Shantha Bai. For the foregoing reasons, a) S.A.No.1233 of 2006 and S.A.(SR)No.29302 of 2007 are partly allowed, setting aside the decree of declaration of title granted in A.S.No.35 of 2005 by the Court of VII Additional District and Sessions Judge, (FTC), Nizamabad at Bodhan, but upholding the decree for perpetual injunction, granted therein; and b) S.A.No.1287 of 2006 is dismissed. For the foregoing reasons, a) S.A.No.1233 of 2006 and S.A.(SR)No.29302 of 2007 are partly allowed, setting aside the decree of declaration of title granted in A.S.No.35 of 2005 by the Court of VII Additional District and Sessions Judge, (FTC), Nizamabad at Bodhan, but upholding the decree for perpetual injunction, granted therein; and b) S.A.No.1287 of 2006 is dismissed. There shall be no order as to costs.