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2023 DIGILAW 1412 (AP)

Gattu Taraka Rao v. Samudram Radha Krishna Murthy

2023-10-30

V.GOPALA KRISHNA RAO

body2023
JUDGMENT 1. This Second Appeal is filed aggrieved against the Judgment and decree in A.S.No.10 of 2006 on the file of Senior Civil Judge, Chirala, dtd. 11/12/2006, allowing the Judgment and decree in O.S.No.69 of 1999 on the file of Principal Junior Civil Judge, Chirala, dtd. 23/1/2006. 2. The appellant herein is the 2nd defendant, the 1st respondent herein is the 1st defendant and the respondents 2 to 5 herein are the plaintiffs in the Original Suit No.69 of 1999 on the file of Principal Junior Civil Judge, Chirala. 3. The plaintiffs initiated action in O.S.No.69 of 1999 on the file of Principal Junior Civil Judge, Chirala, with a prayer to declare that the plaintiffs have got title over the plaint schedule site and for consequential permanent injunction restraining the defendants and their men from interfering with the plaintiffs' possession and enjoyment of the suit schedule site, alternatively for the relief of declaration of title over the suit schedule site and for consequential possession of the same by evicting the defendants from the plaint schedule site. 4. The learned Principal Junior Civil Judge, Chirala, dismissed the suit of the plaintiffs. Felt aggrieved of the same, the unsuccessful plaintiffs in the above said suit filed the aforesaid appeal before the first appellate Court. The learned Senior Civil Judge, Chirala, set aside the judgment of the trial Court in OS.No.69 of 1999, dtd. 23/1/2006, and allowed the appeal. Aggrieved thereby, the unsuccessful 2nd respondent/ 2nd defendant therein approached this Court by way of second appeal. 5. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiffs, in brief, as set out in the plaint averments in OS.No.69 of 1999, is as follows: Smt. Atchula Rama Lakshmi was the step-mother of the plaintiffs. Originally, the plaint schedule site belonged to late Atchula Rama Lakshmi. She died intestate on 28/2/1996 leaving behind the plaintiffs as her legal heirs. Atchula Rama Lakshmi purchased the plaint schedule site under registered sale deed dtd. 17/4/1986 from the ILTD Company Staff Co-operative Industrial Construction Society Ltd. The schedule site is lying vacant. The 1 st plaintiff is residing at Ramagundam and working as teacher in Railway school. The plaintiffs 2 to 4 are residing in Chirala in their marital homes. Atchula Rama Lakshmi purchased the plaint schedule site under registered sale deed dtd. 17/4/1986 from the ILTD Company Staff Co-operative Industrial Construction Society Ltd. The schedule site is lying vacant. The 1 st plaintiff is residing at Ramagundam and working as teacher in Railway school. The plaintiffs 2 to 4 are residing in Chirala in their marital homes. Late Atchula Rama Lakshmi and her husband Aryakantham were residing in a rental house belonging to the cousin of Aryakantham at Paparaju Thota, Chirala. Whenever the 1stplaintiff and his family visits Chirala, they used to stay with Aryakantham and late Atchula Rama Lakshmi and the plaintiffs used to look after the welfare of their father and step mother. After the death of Aryakantham, plaintiffs' step-mother Atchula Rama Lakshmi fell ill during the last week of February, 1996. The 2ndplaintiff and 4thplaintiff's husband Palepu Subbaramayya took her to the hospital at Chirala and on the advice of doctors they took her to Guntur and from there they took her to Madras for treatment and as late Atchula Rama Lakshmi is suffering with acute blood cancer, in advance stage, she was brought to Chirala from Chennai on the night of 26/2/1996. ii. The 1stdefendant is the brother of Atchula Rama Lakshmi. He requested the plaintiffs 2 to 4 that he will take Atchula Rama Lakshmi to his house from the rented house and accordingly he shifted her to his house on 27/2/1996. Late Atchula Rama Lakshmi died on 28/2/1996 at 11.00 a.m. At that time the 2ndplaintiff was present at the house of 1st defendant. 1st defendant and his son called the 2nd plaintiff outside the house and had discussion about the death intimation to the relatives and funerals. After the talks she went inside the house and found that there was ink on the left hand of the dead body of Atchula Rama Lakshmi and the 2 ndplaintiff learnt that the 1stdefendant and his men might have obtained the thumb marks of Atchula Rama Lakshmi on some white papers and stamped papers. The 1stdefendant and his son subsequently committed theft of promissory notes, gold, silver ornaments and other valuable movables belonged to the deceased Atchula Rama Lakshmi. The 1stplaintiff gave a police complaint and filed criminal case, which was pending by the date of filing of the suit on the file of Additional Munsif Magistrate, Chirala. The 1stdefendant and his son subsequently committed theft of promissory notes, gold, silver ornaments and other valuable movables belonged to the deceased Atchula Rama Lakshmi. The 1stplaintiff gave a police complaint and filed criminal case, which was pending by the date of filing of the suit on the file of Additional Munsif Magistrate, Chirala. Having learnt that the 1st defendant was trying to alienate the plaint schedule site, plaintiffs got issued a legal notice to the defendants on 9/12/1998 and the 1stdefendant issued reply notice with false allegations that late Atchula Rama Lakshmi executed un-registered will deed dtd. 27/2/1996 bequeathing the properties to the 1stdefendant and that he in-turn sold the same to others. While so, the 2nddefendant filed the caveat petition with false allegations as if he purchased the plaint schedule property from the 1stdefendant. The plaintiffs got issued reply notice to the 1stdefendant's advocate and also sent Rs.10.00 to the 1st defendant's advocate for the purpose of sending photo stat copy of the will. The 1stdefendant did not send Photostat copy of the alleged will inspite of several requests of the plaintiffs. The plaintiffs assert that late Atchula Rama Lakshmi did not execute any will in her life time and the alleged will referred in the reply notice of 1st defendant and 2nd defendant's caveat petition are neither true nor valid. Hence the plaintiffs filed a suit for declaration of their title and consequential permanent injunction to restrain the defendants from interfering the plaintiffs' possession and enjoyment of the plaint schedule site. As the 2nddefendant falsely stated that the possession was also belonged to him by the 1 stdefendant under registered sale deed, the plaintiffs alternatively also claimed the relief of declaration along with the consequential possession of the plaint schedule site. 7. The 1st defendant filed written statement, the brief averments are as follows: The first defendant's sister Atchula Rama Lakshmi is the absolute owner of the plaint schedule property having purchased the same under registered sale deed. She has no issues, and after the death of the husband of Atchula Rama Lakshmi, the 1 st defendant being the brother of Atchula Rama Lakshmi looked after her welfare till her death and Atchula Rama Lakshmi was residing with the 1stdefendant, after the death of her husband, till her death. She has no issues, and after the death of the husband of Atchula Rama Lakshmi, the 1 st defendant being the brother of Atchula Rama Lakshmi looked after her welfare till her death and Atchula Rama Lakshmi was residing with the 1stdefendant, after the death of her husband, till her death. The plaintiffs never looked after Atchula Rama Lakshmi and the 1st defendant provided the necessary medical treatment to Atchula Rama Lakshmi for her illness. Late Atchula Rama Lakshmi executed her last will on 27/2/1996 infavour of the 1stdefendant in a sound and disposing state of mind. On 28/2/1996 she passed away at the house of 1stdefendant. Thus, after the death of Atchula Rama Lakshmi the will came into force and the 1stdefendant is the absolute owner of the suit schedule property. He denied the plaint allegations that he took Atchula Rama Lakshmi from the house of plaintiffs by representing that he would keep her for certain period. The 1stdefendant sold the suit schedule property to the 2 nddefendant on 21/10/1998 and delivered possession to him. He also asserts that he issued reply notice with all correct facts and also sent the photo-stat copy of the will as required by the plaintiffs to their counsel. Thus, he denied the title of the plaintiffs over the suit schedule property. 8. The 2nddefendant filed written statement corroborating the 1stdefendant's version about the stay of Atchula Rama Lakshmi with the 1stdefendant after the death of her husband and asserts that late Atchula Rama Lakshmi was residing with the 1stdefendant after the death of her husband. The brief averments of the written statement filed by 2nd defendant are as follows: The 1st defendant looked after the affairs of Atchula Rama Lakshmi and was treating her well, late Atchula Rama Lakshmi had no intention to give the property to the plaintiffs at any time and she executed her last will dtd. 27/2/1996 in a sound and disposing state of mind bequeathing all movable and immovable properties to 1st defendant and after the death of Atchula Rama Lakshmi the will came into force. The 1stdefendant became the absolute owner of the schedule property and other movables of Atchula Rama Lakshmi. The 2nddefendant purchased the plaint schedule property under Registered Sale deed dtd. 21/10/1998 for a valuable consideration of Rs.42, 200.00 and took the possession from the 1st defendant. The 1stdefendant became the absolute owner of the schedule property and other movables of Atchula Rama Lakshmi. The 2nddefendant purchased the plaint schedule property under Registered Sale deed dtd. 21/10/1998 for a valuable consideration of Rs.42, 200.00 and took the possession from the 1st defendant. Thus, he also prays for dismissal of the suit. 9. On the basis of above pleadings, the learned Principal Junior Civil Judge, Chirala settled the following issues and additional issues for trial: 1. Whether the plaintiffs are entitled for a declaration as sought for? 2. Whether the plaintiffs are entitled for the permanent injunction as prayed for? 3. To what relief? Additional Issues: 1. Whether the un-registered will dtd. 27/2/1996 executed by deceased Rama Lakshmi is true and valid? 2. Whether the plaintiffs are entitled for alternative relief of possession of suit schedule property as prayed? 10. During the course of trial in the trial Court, on behalf of plaintiffs PW1 to PW5 were examined and Ex.A1 to Ex.A11 were marked. On behalf of 2nd defendant DW1 to DW4 were examined and Ex.B1 to Ex.B4 were marked. 11. The learned Principal Junior Civil Judge, Chirala, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit of the plaintiffs with costs. Felt aggrieved thereby, the unsuccessful plaintiffs filed the appeal suit in AS.No.10 of 2006 before the Senior Civil Judge's Court, Chirala, wherein, the following point came up for consideration. 1. Whether the trial Court has properly appreciated facts and surroundings, circumstances with regard to the execution of the will and whether it has committed any error in appreciating the facts while holding that Ex.B1 will it true and valid? 12. The learned Senior Civil Judge, Chirala, i.e., first appellate Court judge, after hearing the arguments, answered the point, as above, against the respondents/defendants and in favour of the appellants/plaintiffs and allowed the appeal of the plaintiffs and decreed the suit of the plaintiffs as prayed for in the plaint. Felt aggrieved of the same, the unsuccessful 2nd respondent/ 2nddefendant in OS.No.69 of 1999 filed the present second appeal before the composite High Court of Andhra Pradesh, Hyderabad, by mentioning the following substantial questions of law that arise for decision of this Court: 1. Felt aggrieved of the same, the unsuccessful 2nd respondent/ 2nddefendant in OS.No.69 of 1999 filed the present second appeal before the composite High Court of Andhra Pradesh, Hyderabad, by mentioning the following substantial questions of law that arise for decision of this Court: 1. Whether in the facts and circumstances of the case, the proof the will Ex.B1 is not in accordance with the provisions of Sec. 63 of Indian Succession Act, since it was attested by 2 witnesses and one out of them has given evidence in support of the execution and attestation of the said will? 2. Whether in the facts and circumstances of the case, the findings of the appellate Court below are not perverse and self-contradictory and giving undue weight to irrelevant facts and minor discrepancies in evidence and ignoring the vital evidence of the defendant and his witnesses? 3. Whether in the facts and circumstances of the case, the judgment of the appellate Court below is legally sustainable since it is not in accordance with the provisions of under Order 41 Rule 31 of CPC since it has not framed any points for consideration and it has not either discussed or given any finding regarding the possession of the parties? 4. Whether the Courts below misread, misinterpreted and ignored the evidence on record? 13. When the matter was before the composite High Court of Andhra Pradesh, Hyderabad, the aforesaid substantial questions of law raised by the appellant are considered by the composite High Court of Andhra Pradesh on 12/6/2008 and admit the second appeal. Therefore, the points relating to substantial questions of law before this Court are: 1. Whether in the facts and circumstances of the case, the proof the will Ex.B1 is not in accordance with the provisions of Sec. 63 of Indian Succession Act, since it was attested by 2 witnesses and one out of them has given evidence in support of the execution and attestation of the said will? 2. Whether in the facts and circumstances of the case, the findings of the appellate Court below are not perverse and self-contradictory and giving undue weight to irrelevant facts and minor discrepancies in evidence and ignoring the vital evidence of the defendant and his witnesses? 3. 2. Whether in the facts and circumstances of the case, the findings of the appellate Court below are not perverse and self-contradictory and giving undue weight to irrelevant facts and minor discrepancies in evidence and ignoring the vital evidence of the defendant and his witnesses? 3. Whether in the facts and circumstances of the case, the judgment of the appellate Court below is legally sustainable since it is not in accordance with the provisions of under Order 41 Rule 31 of CPC since it has not framed any points for consideration and it has not either discussed or given any finding regarding the possession of the parties? 4. Whether the Courts below misread, misinterpreted and ignored the evidence on record? 14. Heard Smt Nimmagadda Revathi, learned counsel, representing Sri Nimmagadda Satyanarayana, learned counsel for appellant/2nd defendant and Sri Narasimharao Gudiseva, learned counsel for respondents/plaintiffs. 15. Point No.3: Smt Nimmagadda Revathi, learned counsel, representing Sri Nimmagadda Satyanarayana, learned counsel for appellant/2nd defendant, would contend that the appellant i.e., 2nd defendant proved the execution of the will in favour of 1st defendant and later the 1st defendant sold the suit schedule property to the appellant/2nd defendant, but the first appellate Court allowed the appeal and decreed the suit simply as prayed for. She would further submit that the title of the plaint schedule property to the parties is not at all decided by the first appellate Court and the learned first appellate judge simply gave finding that Ex.B1 is a fabricated will. She would further submit that the first appellate Court has not framed any points for consideration with regard to title of the parties and it has not discussed or not given any finding regarding the possession of the parties. With these submissions the learned counsel for appellant/ 2nd defendant would contend that the judgment of the learned Senior Civil Judge, Chirala in AS.No.10 of 2006 is to be set aside by dismissing the suit of the plaintiffs. 16. Sri Narasimharao Gudiseva, learned counsel for respondents/plaintiffs would contend that Ex.B1 alleged Will is a fabricated will and he would further contend that the learned first appellate judge rightly allowed the appeal, as such, the second appeal is liable to be dismissed. 17. In order to prove the case of the plaintiffs, the first plaintiff is examined as PW1 and second plaintiff is examined as PW4. 17. In order to prove the case of the plaintiffs, the first plaintiff is examined as PW1 and second plaintiff is examined as PW4. The case of the plaintiffs is that the suit schedule property originally belongs to Atchula Rama Lakshmi, who is the step mother of the plaintiffs, died intestate and did not execute any will in favour of any body and the alleged will dtd. 27/2/1996 i.e., Ex.B1 is a fabricated and forged document. The plaintiffs further pleaded that the deceased Atchula Rama Lakshmi and her husband looked after the plaintiffs and performed the marriages of the plaintiffs and the deceased Atchula Rama Lakshmi had love and affection towards the plaintiffs and the plaintiffs are only the legal heirs of the deceased Atchula Rama Lakshmi, as such, the plaintiffs are entitled for relief of declaration of title in view of Sec. 15(b) of Hindu Succession Act. The plaintiffs further pleaded that as the deceased Atchula Rama Lakshmi had no issues and her husband also died prior to her death and the plaintiffs are the only legal heirs of the deceased Atchula Rama Lakshmi through her husband, the plaintiffs are entitled for all the properties of Atchula Rama Lakshmi and they are the only legal heirs of her properties. The plaintiffs further pleaded that the 1st defendant fabricated the Ex.B1 will one day prior to the date of death of the Atchula Rama Lakshmi. 18. The case of the 2nd defendant is that the 1st defendant is none other than the own brother of the deceased Atchula Rama Lakshmi and she executed Ex.B1 un-registered will in favour of 1st defendant and later 1st defendant sold away the said property to the 2nd defendant under a registered sale deed dtd. 21/10/1998 i.e., Ex.B3 and the suit is filed on 11/2/1999 and during the pendency of the suit, the 2nd defendant also sold away the same property on 20/3/1999 to one Peddireddy Sudhakar Reddy under Ex.B4. The learned counsel for 2nd defendant pleaded that the 2nd defendant proved the execution of Ex.B1 will. 19. As seen from the pleadings in the plaint itself, the suit schedule property site originally belongs to one Atchula Rama Lakshmi, who is the step mother of the plaintiffs, died intestate and did not execute any will in favour of anybody and the alleged will dtd. 19. As seen from the pleadings in the plaint itself, the suit schedule property site originally belongs to one Atchula Rama Lakshmi, who is the step mother of the plaintiffs, died intestate and did not execute any will in favour of anybody and the alleged will dtd. 27/2/1996 i.e., Ex.B1 is a forged and fabricated document and they looked after the deceased Atchula Rama Lakshmi during her life time and the deceased Atchula Rama Lakshmi and her husband looked after the plaintiffs and performed the marriages of the plaintiffs and the deceased Atchula Rama Lakshmi had love and affection towards the plaintiffs and the plaintiffs alone are enjoying and succeeding her properties. The plaintiffs further pleaded that the plaintiffs are entitled for declaration of title in view of Sec. 15(b) of Hindu Succession Act, as the deceased Atchula Rama Lakshmi had no issues and her husband predeceased her and the plaintiffs are the only legal heirs of the deceased Atchula Rama Lakshmi through her husband and therefore, the plaintiffs are entitled for all the properties of Atchula Rama Lakshmi and they are alone are enjoying and succeeding her properties. The Trial Court, after conducting trial, dismissed the suit, the unsuccessful plaintiffs in the said suit filed the appeal before the first appellate Court, the first appellate Court i.e., Senior Civil Judge's Court, Chirala, simply framed only one point on the aspect of Ex.B1 will only and gave finding on the Ex.B1 will without touching the aspect of ownership of the plaint schedule property and so also possession of the plaint schedule property. As seen from the material part of the record, the plaintiffs sought relief of declaration of title and so also consequential relief of permanent injunction and Court Fee is paid under Sec. 24(b) of A.P.C.F. and S.V. Act and also separate Court Fee was paid for alternative of recovery of possession of plaint schedule property. But, unfortunately, no point is framed for determination by the first appellate Court about the title of property and so also possession. The judgment of trial Court reveals that prior to filing of the suit, the 1st defendant sold the plaint schedule property to 2nd defendant under a registered sale deed, during the pendency of the suit, the 2nd defendant also sold away the plaint schedule property to one Peddireddy Sudhakar Reddy under a registered sale deed dtd. 20/3/1999. The judgment of trial Court reveals that prior to filing of the suit, the 1st defendant sold the plaint schedule property to 2nd defendant under a registered sale deed, during the pendency of the suit, the 2nd defendant also sold away the plaint schedule property to one Peddireddy Sudhakar Reddy under a registered sale deed dtd. 20/3/1999. As stated supra, the trial Court dismissed the suit and the first appellate Court simply allowed the appeal as prayed for. The judgment and decree of first appellate Court is silent whether preliminary relief of declaration of title and consequential permanent injunction is granted to the plaintiffs or alternative relief of recovery of possession is granted to the plaintiffs. 20. Order 41 Rule 31 of Code of Civil Procedure, 1908 reads as follows: The judgment of the appellate Court shall be in writing and shall state:- a) the points for determination; b) the decision thereon; c) the reasons for the decision; and d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the judge or by the judges concurring therein. Unfortunately, the first appellate court has not at all touched upon the title aspect or possession aspect. For the foregoing reasons, the judgment of first appellate Court is not legally sustainable since it is not in accordance with the provisions of under Order 41 Rule 31 of Civil Procedure Code. Since the first appellate Court has not framed relevant points for consideration, namely, declaration of title, consequential permanent injunction as prayed by the plaintiffs and alternative relief of recovery of possession as prayed in the plaint. On a conspectus of pleadings, evidence and law, the decree and judgment of first appellate Court is unsustainable and liable to be set aside, since the decree of first appellate Court is in executable decree. Therefore, interest of justice requires that the matter has to be remanded back to the first appellate Court i.e., Senior Civil Judge's Court, Chirala, with a direction to frame the relevant points for determination and to give an opportunity to both parties to submit hearing on the points to be framed in accordance with law and dispose of the first appeal on merits. 21. 21. For this purpose, this Court set up the following points for determination in first appeal to be decided by the first appellate Court in addition to the point framed on the will by the first appellate Court. 1. Whether the appellants/ plaintiffs in the suit are entitled relief of declaration of title and consequential relief of permanent injunction as prayed in the plaint? 2. Whether the appellants/plaintiffs in the suit are entitled the alternative relief of recovery of possession as prayed in the suit? 22. Accordingly, this second appeal is allowed and the judgment and decree dtd. 11/12/2006 passed in A.S.No.10 of 2006 on the file of Senior Civil Judge, Chirala is set aside and the matter is remanded back to the first appellate Court with a direction to afford an opportunity to both parties to submit hearing on the two points set up supra by this Court and after hearing arguments pass the judgment on merits without being influenced by the findings in its earlier judgment dtd. 11/12/2006. The entire exercise shall be completed within three months from the date of receipt of a copy of this judgment. Registry is hereby instructed to transmit the entire record forthwith to the first appellate Court i.e., Senior Civil Judge's Court, Chirala. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed.