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2020 DIGILAW 213 (AP)

Kondamudi Raghavamma v. Ikkurthu Krishna Murthy

2020-03-10

M.VENKATA RAMANA

body2020
JUDGMENT : This Second Appeal is preferred under Section 100 of Code of Civil Procedure against the decree and judgment in A.S.No.34 of 2013 dated 30.04.2015 of the Court of the learned X Additional District Judge, Guntur at Gurazala. The decree and Judgment of the Court of learned Senior Civil Judge, Gurazala in O.S.No.151 of 2009 dated 30.11.2012 was set aside in the above appeal. In order to decide this second appeal, it is desirable to consider the material on record viz., the pleadings and the evidence let in by the parties at the trial and which were considered by both the Courts below. 2. The plaintiff is the appellant in the second appeal and was the respondent in the first appeal. Whereas the defendant is the respondent herein and was the appellant in the first appeal. 3. The appellant is the daughter of Sri Thummalacheruru Satyanarayana, S/o.Sri Peda Narasaiah. He died in the year 1990. Smt.Satyavathamma was the first wife of Sri Thummalacheruvu Satyanarayana. She died when the appellant was quite young. Thereafter, Sri Thummalacheruvu Satyanarayana married Smt. Hanumayamma. She died on 15.08.2009. She did not have issues by her husband Sri Thummalacheruvu Satyanarayana. 4. The plaint schedule property is a house with an open site in Macherla Town of Guntur District. A vacant site was purchased in the name of Sri Thummalacheruvu Satyanarayana on 15.06.1976 from the original owner Smt. Koteswaramma for valuable consideration and Ex.B1 is the registration extract of this sale deed. Smt. Hanumayamma during her lifetime was living in the plaint schedule house and till she died. The defendant is the grandson of Smt.Subbayamma, who is elder sister of Smt.Hanumayamma. 5. The above are the admitted facts in this case. 6. The appellant laid the suit to declare her right, title and interest of the plaint schedule house and to grant perpetual injunction restraining the respondent from interfering with her peaceful possession and enjoyment of the same. 7. The claim set forth by the appellant in the plaint was that she is class-I heir to succeed the estate of her late father Sri Thummalacheruvu Satyanaryana, who died intestate, and that the respondent, who was nothing to do with their family or the plaint schedule house, tried to interfere with her peaceful possession and enjoyment creating a panic situation threatening her and to cause damage to the plaint schedule house. Thus alleging that there was threat of dispossession from the respondent by use of force, she claimed such relief. 8. The respondent resisted the case of the appellant in the plaint contending mainly in the written statement that the appellant relinquished her right and share in the plaint schedule house in favour of Smt.Hanumayamma upon receiving Rs.40,000/-under a Term Deposit Receipt of Andhra Bank, executing a relinquishment agreement dated 10.04.1990 in her favour. He further claimed in the written statement that Smt.Hanumayamma was in possession and enjoyment of the plaint schedule house for more than 20 years exclusively to the knowledge of everyone as an absolute owner including from the date of alleged relinquishment agreement and thus perfected her right and title to the plaint schedule house by adverse possession. 9. The respondent further stated in his written statement that during lifetime of Sri Thummalacheruvu Satyanarayana, upon the vacant site purchased, he as well as Smt. Hanumayamma got constructed the house with their joint funds and she executed a registered Will in his favour and in favour of her other three sisters bequeathing the plaint schedule house in their favour with certain directions including meeting the expenses for her obsequies and to discharge her liabilities, upon selling the same and that the balance to be shared among all the legatees equally. Thus setting up right, title and interest in the plaint schedule house exclusively in favour of Smt.Hanumayamma against the interest of the appellant and further claiming as a legatee under the Will of Smt.Hanumayamma stated above, the respondent claimed that the appellant was never in possession of the plaint schedule house. While contending that the legatees under the Will of Smt.Hanumayamma have been in possession and enjoyment of the plaint schedule property, he further contended that the suit filed against him alone could not be maintained, while the relief claimed stood barred by time. 10. The appellant resisting the version of the respondent filed a rejoinder denying the case set up by him and stating that the alleged relinquishment agreement was not executed by her and it was a fabrication. She also denied execution of the registered Will by Smt. Hanumayamma and disputing the claim of adverse possession as well as necessity to bring the alleged legatees under the Will on record as parties to the suit. 11. She also denied execution of the registered Will by Smt. Hanumayamma and disputing the claim of adverse possession as well as necessity to bring the alleged legatees under the Will on record as parties to the suit. 11. Basing on the above pleadings, the following issues were settled for trial: “1. Whether the plaintiff is entitled to seek declaration and consequential injunction, as prayed for? 2. Whether the relinquishment deed dated 10.4.1990 is true and correct? 3. Whether the registered will dated 21.1.2009 is true, valid and duly executed? 4. To what relief?” 12. At the trial, the appellant examined herself as P.W.1, P.W.2 being one of her alleged tenants, while P.W.3 a neighbour in the locality, to support her version and while relying on Ex.A1 to Ex.A4. The respondent examined himself as R.W.1 and relied on Ex.B1 to Ex.B4 in support of his contention. 13. Basing on the material, the trial Court decreed the suit as prayed for holding that the alleged relinquishment of right and interest in favour of Smt.Hanumayamma under an agreement dated 10.04.1990 was not established, that Ex.B2-Will executed by Smt. Hanumayamma in favour of the respondent and others was not proved. The trial Court accepted the case of the appellant observing that she is entitled for the plaint schedule house being Class-I legal heir to succeed to the estate of Sri Thummalacheruvu Satyanarayana. Thus holding, her right, title and interest to the plaint schedule house were declared while also granting permanent injunction in her favour restraining the respondent from interfering with her peaceful possession and enjoyment of the suit house. 14. Against the above decree and judgment, the appeal preferred by the respondent was allowed initially by decree and judgment dated 30.06.2014 setting aside the decree and judgment of the trial Court and remanding the case to the trial Court to consider the claim of the respondent of adverse possession and in respect of non-joinder of necessary parties. 15. 14. Against the above decree and judgment, the appeal preferred by the respondent was allowed initially by decree and judgment dated 30.06.2014 setting aside the decree and judgment of the trial Court and remanding the case to the trial Court to consider the claim of the respondent of adverse possession and in respect of non-joinder of necessary parties. 15. Against it, CMA No.909 of 2014 was preferred by the appellant and by an order dated 19.01.2015, the erstwhile High Court of Andhra Pradesh had set aside the remand direction of the first appellant Court observing that the question of adverse possession is inbuilt in issue No.1 and whereas the plea of non-joinder of necessary parties is inbuilt in issue No.3 and thus, directed the first appellate Court to restore the appeal to its original number, determine the appeal basing on the material available on record and thereby remitting the matter. 16. Thus, the matter again came before the first appellate Court. 17. The learned Judge in the 1st appeal, unfortunately, without having any conception and in utter disregard of the procedures either in respect of the trial or the appeal, took a view setting aside the decree and judgment of the trial Court. It is now questioned in this second appeal. Observations in para 23 of the Judgment of the first appellate Court indicate the basis on which it has chosen to allow the appeal. This portion of the appellate judgment is extracted hereunder: “23. In view of the above discussion and assessing evidence on the material available on record goes to show that the plaintiff has not discharged his burden of proof that Tummalacheruvu Hanumayamma had not executed any executed registered bequeathing the suit schedule property and the plaintiff had not filed any documents showing her possession over the suit schedule property and further the execution of relinquishment agreement dated 10.04.1990 though required stamp duty for limited purpose establishes possession of Tummalacheruvu Hanumayamma over the suit schedule property from 10.04.1990 till her death on 15.08.2009 which is more than 19 years and thereby acquired title by adverse possession. The plaintiff failed to establish the title over the suit schedule property and further, the plaintiff also failed to establish possession over the suit schedule property. ...” 18. The plaintiff failed to establish the title over the suit schedule property and further, the plaintiff also failed to establish possession over the suit schedule property. ...” 18. In this second appeal, the appellant raised the following substantial questions of law for the purpose of determination: “i. Whether the Learned Appellate Court is right in coming to the conclusion that Ex.B1-Will is true and valid and binding on the appellant/plaintiff though there is no recital of the appellant/plaintiff relinquishing her right as claimed by the respondent/ defendant? ii. Whether documents can be relied on by the court though they are not marked? iii. Whether the learned lower Appellate Court has appreciated the evidence available on record in proper perceptive? iv. Whether the learned Lower Appellate Court is right in coming to the conclusion that Smt.Hanumayamma has been in adverse possession for more than 12 years and thereby perfected her title by adverse possession?” 19. On the above substantial questions of law, on 26.07.2015, this second appeal was admitted by the erstwhile High Court of Andhra Pradesh at Hyderabad. 20. Sri V.S.K. Rama Rao, learned counsel for the appellant, strenuously contended pointing out the nature of the judgment of the appellate court. The learned counsel further contended seriously assailing the manner in which the matter was considered with reference to the material on record including want of proof of ouster when the plea of adverse possession is claimed against a co-sharer. 21. Sri Rayaprolu Srikanth, learned counsel for the respondent, contending with equal vehemence referring to the nature of the decree and judgment of the trial Court and material on record sought to support the decree and judgment of the appellate Court mainly contending that the claim of the appellant stood barred by time and that, absolutely no proof was laid with reference to cause of action alleged by the appellant against the respondent. 22. It is desirable to consider the substantial questions of law raised by the appellant referred to above, now, basing on the material available. 23. For convenience, in as much as discussion and findings now to be recorded in respect of questions i and ii overlap, it is desirable to consider them together. Thereafter, questions iii and iv can be considered independently. Substantial question nos. (i) and (ii):- 24. 23. For convenience, in as much as discussion and findings now to be recorded in respect of questions i and ii overlap, it is desirable to consider them together. Thereafter, questions iii and iv can be considered independently. Substantial question nos. (i) and (ii):- 24. Admitted and undisputed facts referred to supra do indicate that the appellant, at the death of her late father Sri Thummalacheruvu Satyanrayana, was a legal heir to succeed to his estate. So also Smt. Hanumayamma, being his widow. 25. Contention of the respondent at the trial was that upon purchase of vacant site under the original of Ex.A1, the plaint schedule house was constructed with the funds of Sri late Thummalacheruvu Satyanrayana and the funds contributed by Smt. Hanumayamma and thus pooling together. Except the version of the respondent in the written statement and at the trial, absolutely no material was placed to prove such alleged fact. On the other hand, the material on record makes out that the house stood recorded in the name of Sri Thummalacheruvu Satyanarayana in the records of the concerned Government departments, in whose name, Smt. Hanumayamma was paying tax etc. This inference is possible from the version of the respondent as D.W.1 and contents of his written statement. 26. The respondent also admitted at the trial that the appellant would be the legal heir to succeed to the plaint schedule house, if Smt. Hanumayamma had died intestate. 27. The burden of proof in a title suit is always on the plaintiff (appellant herein), who cannot take advantage of any weakness set up in the case of the defendant (respondent herein). But, when the admitted and undisputed situation, the pleadings and the evidence let in by the defendant himself support the case of the plaintiff, in terms of Sections 101 and 102 of the Evidence Act, it is open for the plaintiff to rely on these circumstances and the material to support her claim. 28. But, when the admitted and undisputed situation, the pleadings and the evidence let in by the defendant himself support the case of the plaintiff, in terms of Sections 101 and 102 of the Evidence Act, it is open for the plaintiff to rely on these circumstances and the material to support her claim. 28. On behalf of the respondent in this context, reliance is placed in Uppara Anjinappa (Died) vs. T. Khasim Sab (Died) Per LR, (2019) 5 ALT 511 relying on the proposition that the burden is on the plaintiff to establish her claim and in a suit for declaration of title and possession, she could succeed only on the strength of her own title upon adducing sufficient evidence in discharging it irrespective of whether the respondent proved his case or not. 29. Further contention of the respondent is that relief of declaration falls within the scope of Section 34 of the Specific Relief Act and in such an event the burden of proof is on the appellant. Reliance is placed in this context on Mohd. Yousuf vs. Greater Hyderabad Municipal Corporation, (2016) 6 ALT 547. 30. When the admitted situation of the appellant is that in usual course, in terms of Hindu Succession Act, she is the class-I heir to succeed to the estate of her late father, divesting her from such status, when specifically pleaded and admitted at the trial by the respondent, it is for him to establish divestitude. 31. The specific case of the respondent in his written statement and at the trial was that the appellant relinquished her share in the plaint schedule house upon executing an agreement of relinquishment dated 10.04.1990 upon receiving a Term Deposition Receipt of Rs.40,000/-of Andhra bank from Smt. late Hanumayamma, during her lifetime. The respondent did not produce this alleged relinquishment agreement or exhibit at the trial. It was filed along with the written statement. Omission in this process to bring it as a part of material evidence has not been explained. When the burden is on the respondent to establish this alleged fact, this omission is a fatal flaw to his claim. 32. With reference to further claim of the respondent that Smt. late Hanumayamma had executed a registered Will in his favour and in favour of her three sisters under Ex.B2 on 21.01.2009, except his interested testimony, there is no other material. 32. With reference to further claim of the respondent that Smt. late Hanumayamma had executed a registered Will in his favour and in favour of her three sisters under Ex.B2 on 21.01.2009, except his interested testimony, there is no other material. Not only in terms of Section 68 of the Indian Evidence Act but also under Section 63 of Indian Succession Act, the propounder of Will shall examine the attestors at the trial. None was examined on behalf of the respondent to prove Ex.B2 Will. But his attempt appears that there was an admission by the appellant as P.W.1 of execution of Ex.B2 Will and therefore in terms of Section 58 of Indian Evidence Act there is no necessity to prove this Will, being admitted. 33. As rightly explained by the learned trial Judge in the judgment, in the course of cross-examination, this Will was confronted to the appellant and with reference to photograph of Smt. Hanumayamma appearing in this registered Will, she made a statement identifying her. Cross-examination of the appellant in the course of trial was recorded by an Advocate Commissioner. Apparently it was a mistake, in marking this Will as Ex.B1 as if the appellant admitted. The appellant at the trial as P.W.1 clearly denied Ex.B2 Will. A statement was elicited in cross-examination from her in this respect where she clearly stated that Smt. Hanumayamma did not execute any Will. However, care was taken in the course of trial to correct the situation in the examination of the respondent as D.W.1, through whom Ex.B1 was exhibited as photograph of Smt. Hanumayamma on this Will and Ex.B2 was exhibited as the registered Will, thus, from this clarification made at the trial itself, it is well established that it was not a clear admission of this registered Will of Smt. Hanumayamma by the appellant. It was separately marked as Ex.B2, which the respondent should have prove and establish invariably. But he failed. Therefore, there is no proof in respect of this registered Will, as such. 34. It is to be noted that there is no reference of the alleged relinquishment agreement attributed to the appellant in Ex.B2-Will forsaking her share in the plaint schedule house in favour of Smt. Hanumayamma. 35. But he failed. Therefore, there is no proof in respect of this registered Will, as such. 34. It is to be noted that there is no reference of the alleged relinquishment agreement attributed to the appellant in Ex.B2-Will forsaking her share in the plaint schedule house in favour of Smt. Hanumayamma. 35. Thus, the main basis or foundation on which the claim of the respondent rested at the trial on account of the above two circumstances and documents, was not proved and established. Thus the main plank of defence fell to the ground. 36. Therefore, in the absence of proof of these facts, basing on the admitted status and situation of the appellant, she alone shall be entitled to the plaint schedule house, being the sole legal heir to succeed. 37. However, the contention of the appellant at the trial was that upon the death of Smt. Hanumayamma, she continued to be in possession of the plaint schedule house as legal heir of Class-1, succeeding to the estate of her late father. In these circumstances, the burden to establish such fact rests upon the appellant. One of the contentions of the respondent at the trial was that the appellant was not in possession and enjoyment of the plaint schedule house and her assertion in that respect was not proper. 38. The plaintiff relied on her evidence as P.W.1 and that of P.Ws.2, who according to her was the tenant in occupation of the plaint schedule house. The learned trial Judge considered the testimony of P.W.2 as sufficient proof of possession of the plaint schedule house by the appellant. Contra to it, the respondent did not let in any evidence. The evidence of P.W.1 and P.W.2 is acceptable in this respect. Thus possession of the plaint schedule house as contended by the appellant, stood established. She had let out this property and was in possession through her tenant viz., P.W.2. 39. The first appellate Court though last Court of fact did not specifically refer to the oral evidence adduced by P.W.2, except for a cursory reference that such oral evidence cannot be considered in the light of tax receipts and electricity bills, filed along with the written statement. But, they were not in fact, exhibited at the trial on his behalf nor they are a part of material record. 40. But, they were not in fact, exhibited at the trial on his behalf nor they are a part of material record. 40. Consideration of the documents which were not exhibited at the trial by the first appellate Court, is totally improper and in fact runs against the fundamental principles in conducting a fair trial. The learned trial Judge should have appreciated the fact that an adversary will have a right to cross-examine a witness basing on the documents marked or exhibited through a witness by a party to the suit, in respect of their authenticity or relevancy or for another other purpose germane for consideration for a just decision during trial. The learned appellate Judge apparently lost grasp of these elementary requirements and failed to apply himself. It amounted to clear illegality and there cannot be any justification in this method of approach. 41. When Ex.B2 Will is not proved and established, even as admitted by the respondent as D.W.1, the appellant remains the sole legal heir entitled for the plaint schedule house. The reason is that in these circumstances, the plaint schedule house shall be subject matter of intestate succession at the death of her late father as well as Smt. Hanumayamma. The appellant is the step daughter of Smt. Hanumayamma. On the death of the father of the appellant, she and Hanumayamma became entitled to the plaint schedule house in equal shares as Class-I heirs. Thus, the appellant stood entitled for half share in the plaint schedule house as of right. In respect of other half allottable to Smt. Hanumayamma, the general rules of succession in case of a female Hindu dying intestate shall apply. Section 15 of the Hindu Succession Act comes into play and it has to be applied, in this context. This plaint schedule house being the property of late father of the appellant, in terms of Section 15(2)(b) of the Hindu Succession Act, it shall devolve, upon the appellant. The material on record, proves that Smt. Hanumayamma, had half share in this house, at the death of her husband. Since such acquisition was from her late husband, the appellant being the daughter of her late husband, this half share of Smt. Hanumayamma reverts to the appellant in the course of devolution of interest. Thus, legal entitlement to the plaint schedule house stood in favour of the appellant. 42. Since such acquisition was from her late husband, the appellant being the daughter of her late husband, this half share of Smt. Hanumayamma reverts to the appellant in the course of devolution of interest. Thus, legal entitlement to the plaint schedule house stood in favour of the appellant. 42. Thus these two substantial questions are answered in favour of the appellant and against the respondent. Substantial question No.(iv):- 43. Undisputedly the plaint schedule house stood in the name of Sri Thummalacheruvu Satyanarayana even during the lifetime of Smt. Hanumayamma in the concerned Government records. Her possession of this house was not established at the trial to the effect that it was against the right and interest of the appellant. The very fact that the respondent had set up in his written statement that the appellant had given up her right in the plaint schedule house under a relinquishment agreement dated 10.04.1990, is a clear indication and recognition that either the respondent or Smt. Hanumayamma were conscious and treated the appellant as the one entitled to the plaint schedule house as a co-sharer. This circumstance alone is indicative of the fact that Smt.Hanumayamma never asserted openly with hostile animus her possession against the interest of the appellant. The suit was laid by the appellant on 29.10.2009 and immediately within two months after the death of Smt. Hanumayamma. In these circumstances, it cannot be stated that Smt. Hanumayamma was enjoying the suit schedule house with an adverse animus against the appellant. In these circumstances, the plea of adverse possession set up by the respondent against the appellant cannot stand, in as much as in terms of Article 65 of Limitation Act, the person claiming adverse possession should prove that he including his predecessor in interest have been in possession and enjoyment of the property with hostile animus to the knowledge of another, who has right and interest in the property in question for 12 years or more. 44. It cannot be stated that in terms of Article 112 of the Limitation Act, this suit stood barred by time. 44. It cannot be stated that in terms of Article 112 of the Limitation Act, this suit stood barred by time. Rightly in this context, on behalf of the appellant adverting to the proposition as to the proof of ouster required to support a claim of adverse possession between two co- sharers or heirs, reliance is placed on a well-known judgment of the Hon’ble Supreme Court in P.Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1975 SC 314. Relevant observations in this ruling are in para-4 and they are extracted hereunder for benefit. “4. Now, the ordinary classical requirement of the adverse possession is that it should be nec vi nec clam nec precario (See Secretary of State for India v. Debendra Lal Khan, 61 Ind App 78 at p 82: ( AIR 1934 PC 23 at p. 25) (A). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna, 27 Ind APP 136 at p. 140 (PC)(B). But it is well-settled that in order to establish adverse possession of one co-heir as against another it is enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered , in law, as possession of all co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not I possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. (See Corea v. Appuhamy, 1912 AC 230(c)). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster…..” 45. In the light of the settled law and having regard to the facts and circumstances of this case, the plea of adverse possession set up by the respondent shall be rejected. 46. In the light of the settled law and having regard to the facts and circumstances of this case, the plea of adverse possession set up by the respondent shall be rejected. 46. In this backdrop, the effort of the learned counsel for the respondent relying on Mst. Rukhmabai vs. Lala Laxminarayan and others, AIR 1960 SC 335 , Khatri Hotels private limited and another Vs. Union of India (UOI) and another, AIR 2011 SC 3590 and Mohd. Abdul Sattar @ Shaik Mahaboob vs.Rahmatunnissa and others, (2015) 3 ALT 118 cannot in any manner assist his contention. 47. Therefore, it has to be held that there is no cause for the respondents to raise a plea of adverse possession against the appellant. Thus, this substantial question is answered in favour of the appellant and against the respondent. Substantial question No. (iii) : 48. As seen from the judgment of the first appellate Court, it cannot be stated that there was any appreciation of evidence worth the name. Certain reasons, if at all they are so called, are stated in the judgment under appeal. They are neither based on evidence on record nor worthy to consider. It was a completely lopsided exercise. Thus, this substantial question is answered. 49. In view of the findings on all the substantial questions of law, the result is that the second appeal shall be allowed. The first appellate Court had no reason or justification to interfere with the decree and judgment of the trial Court. On account of improper consideration and exercise of its jurisdiction as an appellate Court, twice the parties had to approach this Court and they were made unnecessarily to bear the burden in every respect. However, having regard to the facts and circumstances, it is desirable to direct the parties to bear their own costs in this second appeal. 50. In the result, the Second Appeal is allowed setting aside the decree and judgment of the Court of learned X Additional District Judge, Guntur at Gurazala in A.S.No. 34 of 2013 dated 30.04.2015 and restoring the decree and judgment of the court of learned Senior Civil Judge, Gurazala in O.S.No.151 of 2009 dated 30.11.2012. 50. In the result, the Second Appeal is allowed setting aside the decree and judgment of the Court of learned X Additional District Judge, Guntur at Gurazala in A.S.No. 34 of 2013 dated 30.04.2015 and restoring the decree and judgment of the court of learned Senior Civil Judge, Gurazala in O.S.No.151 of 2009 dated 30.11.2012. Consequently, declaration of right, title and interest to the plaint schedule house granted in favour of the appellant (plaintiff) against the respondent (defendant) as well as the consequential permanent injunction in her favour and against the respondent (defendant) are confirmed. The parties are directed to bear their own costs in the second appeal. As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.