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2020 DIGILAW 457 (AP)

Shik Mastan Vali Mastan v. State Of Andhra Pradesh

2020-07-14

M.VENKATA RAMANA

body2020
JUDGMENT M.Venkata Ramana, J. - All these three civil revision petitions are filed against the orders in I.A.Nos.897 of 2019, 898 of 2019 and 896 of 2019 in O.S.No.8 of 2014 on the file of the Court of learned Principal Junior Civil Judge, Peddapuram. 2. The above petitions were filed in the trial Court, to reopen the suit, to recall DW.1 and to receive death certificates relating to alleged attestors to Ex.B1-Will, respectively. The plaintiff is the petitioner. The defendants are the respondents. 3. The petitioner filed the suit for permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the plaint schedule land. It is to an extent of Ac.3.64 cents in Sy.No.27/6 at China Brahmadevam Village of East Godavari District. 4. The 1st respondent filed a written statement, raising a counter-claim opposing the suit claim. 5. The suit is at the stage of arguments and both parties have already let in evidence in respect of the issues involved and which, they are required to prove. 6. At this stage, all the above three petitions were filed in the trial Court by the respondents. The reason stated by the General Power of Attorney of the 1st respondent for this purpose in his affidavit was that he was advised by their learned counsel to file these applications in order to produce the death certificates of alleged attestors to Ex.B1 namely of Sri Vetkuri Somaraju and Achanta Madhava Rao. To prove these documents, according to the 1st respondent, she also required that he be recalled. For such purpose, she requested that the proceedings in the suit be reopened. 7. The petitioner opposed these three petitions, specifically, denying the reasons so set out. While referring to the proceedings in the suit, the petitioner specifically contended that DW.1 did not speak about the fact as to the presence of alleged attestors to Ex.B1-Will when it was allegedly executed. He further contended that filing these petitions at the stage of arguments was only an attempt to cover up the laches and lacunae in the evidence of the respondents. Thus, seriously opposing these petitions, he resisted their claim. 8. Heard Sri S.Subba Reddy, learned counsel for the petitioner and Sri N.Siva Reddy, learned counsel for the 1st respondent. None represented the 2nd respondent. 9. Thus, seriously opposing these petitions, he resisted their claim. 8. Heard Sri S.Subba Reddy, learned counsel for the petitioner and Sri N.Siva Reddy, learned counsel for the 1st respondent. None represented the 2nd respondent. 9. Now the point for determination is, 'whether the petitions filed by the respondents could have been ordered by the learned trial Judge and permitting recall of DW.1 for the purpose of marking the documents sought to be produced through him, is proper?' 10. The parties are closely related. The dispute is with reference to an immovable property. Having regard to the pleadings set up by both the parties, it is quite manifest that they were aware of the nature of evidence to be let in in the suit. 11. When the respondents relied on Ex.B1-Will at the trial, it is their duty to prove this fact. There are averments clearly setting out this Will dated 28.09.1976 in the written statement of the 1st respondent. There is also reference to registered partition deeds dated 22.03.2006 and also a partition dated 31.07.1976 in the written statement. Details of these disputed facts having regard to the scope of these three revision petitions are unnecessary to consider. A bare reference to these documents is made only to point out the seriousness of the nature of the dispute and the nature of evidence expected to be let in by the parties at the trial in order to discharge the relative burden placed on them in this respect. 12. With reference to reception of General Power of Attorney by the 1st respondent in favour of her son namely DW.1-Sri Y.Ram Babu, it is not in dispute that it was already produced in the suit in I.A.No.573 of 2019 and permission was granted to DW.1 to represent his mother as her General Power of Attorney, in the suit by the order of the trial Court dated 13.09.2019. In fact as seen from the content of the petition in I.A.No.896 of 2019, this original General Power of Attorney in favour of DW.1, though was initially described in the petition it was later scored out. This fact is specifically pointed out by Sri S.Subba Reddy, learned counsel for the petitioner. Scoring out this document was for an obvious reason referred to above, since it was already produced in the matter. 13. This fact is specifically pointed out by Sri S.Subba Reddy, learned counsel for the petitioner. Scoring out this document was for an obvious reason referred to above, since it was already produced in the matter. 13. In respect of marking the death certificates of the alleged attestors to Ex.B1, in the course of hearing, Sri S.Subba Reddy, learned counsel for the petitioner brought to the notice of this Court that DW.2 clearly referred to the fact that both the attestors to Ex.B1 are no more, in his deposition. 14. Sri N.Siva Reddy, learned counsel for the 1st respondent confirmed this fact, while further stating that this fact of death of both the attestors, was not disputed at the trial specifically questioning DW.2 in this respect. 15. In the above circumstances, these facts and circumstances can well be taken into consideration by the trial Court in considering the respective claims of the parties. In the presence of the nature of the reason assigned on behalf of the 1st respondent to produce these two death certificates, as rightly contended for the petitioner, the trial Court could not have come to the conclusion observing that the General Power of Attorney of the 1st respondent could not have known in whose presence his maternal grand father executed Will under Ex.B1. When DW.1 entered witness box aware of the nature of the case expected to depose and meet the challenge offered by the other side, the reason assigned by the learned trial Judge is not proper and nor can be supported. Merely because the petitioner would have an opportunity to cross examine DW.1, when once these documents are produced and exhibited, it cannot be stated that whatever right or advantage the petitioner had secured on account of nature of evidence let in by the respondents could be allowed to be watered down on such reason assigned by learned trial Judge. 16. Thus, while holding that the respondents are at liberty to rely on the evidence on record in proof of the fact that both the attestors of Ex.B1 are no more, it is unnecessary either to reopen the suit, to receive the documents sought to be produced by the 1 st respondent or to recall DW.1 for the purpose of marking them. Thus, finding no justification in the order of the trial Court, the same has to be set aside. 17. Thus, finding no justification in the order of the trial Court, the same has to be set aside. 17. In the result, all the three Civil Revision Petitions are allowed setting aside the common order of the Court of learned Principal Junior Civil Judge, Peddapuram in I.A.Nos.896, 897 and 898 of 2019 in O.S.No.8 of 2014, dated 12.02.2020. The respondents are at liberty to rely on evidence on record to canvass their case that the attestors to Ex.B1 are no more. No costs. 18. Pending miscellaneous petitions if any, shall stand closed.