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2013 DIGILAW 183 (AP)

Chennupati Thatha Ramulu v. Kolli Chenchamma

2013-03-13

K.G.SHANKAR, L.NARASIMHA REDDY

body2013
JUDGMENT L. NARASIMHA REDDY, J.:- These two C.M.As. are filed against the order dated 25.2.2012 passed by the Family Court-cum-Additional District Judge, Ongole in IA No.1007 of 2011 in OS No.302 of 2011, but by different parties. 2. For the sake of convenience, the parties are referred to be arrayed in the suit. 3. The plaintiff filed the suit against the defendants for the relief of declaration of title and perpetual injunction in respect of 4 items of suit schedule property. The 1st defendant (for short 'the defendant') is his elder sister. Defendants 2 to 4 are the officials of the Government. He pleaded that the defendant and her husband, by name Ramadasu, who is none other than their paternal uncle, have fostered him from the childhood and brought him up, Ramadasu is said to have executed a registered Will on 19.2.1992 bequeathing 50% of his self-acquired properties in favour of the plaintiff and the remaining 50% in favour of the defendant. It was also stated that the defendant executed a Will on the same date, bequeathing her properties in favour of the plaintiff. It was pleaded that on the death of Ramadasu on 28.2.1995, he became the absolute owner of the suit schedule property and ever since then, he is in possession and enjoyment thereof. Alleging that the defendant has started interfering with his possession over the suit schedule properties, he filed the suit. He also filed IA No.1007 of 2011 under Order 39 Rules 1 and 2 CPC. 4. The defendant filed a counter opposing the I.A. She stated that being an ex-serviceman, the plaintiff had committed fraud upon herself and her husband and when it was sensed that he manipulated certain documents, she got the Will said to have been executed by her cancelled. She further stated that after the death of her husband, the properties were transferred in her name, so much so that he was also issued pattadar pass books and title deeds. She contended that after she cancelled the Will, the plaintiff has fabricated an agreement of sale and filed OS No.l47 of 2003 in the Court Junior Civil Judge, Parchur for the relief of specific performance and that it has since been dismissed. She contended that after she cancelled the Will, the plaintiff has fabricated an agreement of sale and filed OS No.l47 of 2003 in the Court Junior Civil Judge, Parchur for the relief of specific performance and that it has since been dismissed. She also pleaded that taking advantage of her illiteracy and old age, not only the plaintiff but also his son started harassing her and at one point of time, she was inflicted bleeding injuries and the son of the plaintiff was convicted for it in CC No.94 of 2003 by the Court of Additional Judicial Magistrate of First Class, Parchur. 5. After hearing both the parties, the trial Court passed the order under appeal holding that the defendant raised crop in item No.3 of the suit schedule property and that there shall be temporary injunction in respect thereof in favour of the plaintiff, subject to the conditions that the defendant shall be entitled to harvest the crop and that the plaintiff shall be under obligation to deposit a sum of Rs.15,000/- per annum. While the plaintiff filed CMA No.184 of 2012 feeling aggrieved by the conditions incorporated by the trial Court in the order of temporary injunction, the defendant filed CMA No.962 of 2012 challenging the very grant of temporary injunction. 6. Heard Sri G. Srinivas, learned Counsel for the plaintiff and Sri G. Vasantha Rayudu, learned Counsel for the defendant. 7. The sole basis for the plaintiff to file the suit is the Will said to have been executed by the husband of the defendant. The defendant is none other than the elder sister of the plaintiff. On the one hand, he pleaded that he was fostered and became the member of the family of the defendant and on the other hand, he instituted quite large number of proceedings. 8. A legatee under a Will can derive rights either on declaration being granted by the Court as to the legality and validity of the Will or there not being any objection from the natural descendents of the executant of the Will. In the instant case, it is to be noted that on the death of Ramadasu, the property has devolved upon his wife. It is stated that the couple was not blessed with any children. The plaintiff could have certainly derived rights, had there not been any objection from the defendant. In the instant case, it is to be noted that on the death of Ramadasu, the property has devolved upon his wife. It is stated that the couple was not blessed with any children. The plaintiff could have certainly derived rights, had there not been any objection from the defendant. The record however discloses that at no point of time, she acquiesced in the Will. On the other hand, when she came to know that a Will from her was also procured by the plaintiff on the same date, she initiated steps to get it cancelled by raising the plea that the plaintiff committed fraud upon them. This being the case, it would be very difficult to assume that the plaintiff derived rights under the Will straight away on the death of Ramadasu. However, the final adjudication in this regard has to emerge in the suit and it is too early to express any final opinion. 9. Coming to the prima facie case and balance of convenience, the record as of now discloses that pattadar pass books and title deeds in respect of the suit schedule properties have been issued in favour of the defendant. The A.P. Rights in Land and Pattadar Pass Books Act provides for a presumption as to the existence of title and consequential rights in the person in whose favour, the pattadar pass books and title deeds are issued. It is no doubt true that the plaintiff has pursued the remedies vis-a-vis the pattadar passbooks issued to the defendant or denial of the same to him. As long as the title deeds and the pattadar pass books marked as Ex.R1 and Ex.R2 respectively are in favour of the defendant, her rights cannot be defeated. 10. On the question of prima facie case itself, the conduct of the plaintiff needs to be considered. He is an ex-serviceman and he stated that it is the defendant and her husband who fostered him and brought him up in the life. Any person in his place would have taken all possible care and served an 82 years old sister, even if she did not give any property, whatever to him. However, the way he treated the defendant would shock the conscience of any individual. Not only he subjected the defendant to series of litigation, but also has pressed into service, his brother and son to harass her. However, the way he treated the defendant would shock the conscience of any individual. Not only he subjected the defendant to series of litigation, but also has pressed into service, his brother and son to harass her. The lack of scruples on the part of the plaintiff is evident from the fact that once he sensed that the defendant has cancelled the Will said to have been executed by her, he filed OS No.147 of 2003 for specific performance of alleged agreement of sale in respect of the same properties and in the plaint, he did not even mention that the defendant is his sister. His conduct deserves serious deprecation. 11. The trial Court was not consistent in its approach on the question as to whether the plaintiff was in possession of the suit schedule property. Once it emerged that the pattadar pass books and title deeds are in favour of the defendant and she is the legal descendent, there was absolutely no basis to imagine or infer anything in favour of the plaintiff. 12. Hence, CMA No.962 of 2012 is allowed with costs of Rs.10,000/- payable to the defendant and the order under appeal is set aside. Consequently, IA No.1007 of 2011 shall stand dismissed. CMA No.184 of 2011 is also dismissed. 13. Since the parties are senior citizens, the trial Court shall take up the suit after the pleadings are complete. 14. The miscellaneous petitions filed in these appeals shall also stand disposed of.