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2023 DIGILAW 257 (AP)

C. Lakshmidied v. Bonala Devi

2023-02-01

V.R.K.KRUPA SAGAR

body2023
JUDGMENT : 1. Legal representative of the plaintiff filed this second appeal under Section 100 C.P.C. Respondent herein was the defendant in the suit. 2. Smt Chavitina Lakshmi filed O.S.No.275 of 2006 seeking for permanent injunction restraining the defendant from interfering with her peaceful possession and enjoyment of the plaint schedule property. After due trial, by the judgment dated 28.09.2011 learned Principal Junior Civil Judge, Chodavaram dismissed the suit. Her appeal in A.S.No.41 of 2011 was dismissed on merits by the learned Senior Civil Judge, Chodavaram by a judgment dated 25.10.2017. It is against that the present second appeal. 3. After the judgment of the first appellate Court, the original plaintiff Smt Chavitina Lakshmi died on 07.12.2017. Therefore, her son sought leave of this Court to file the second appeal and this Court granted leave by allowing I.A.No.01 of 2018 by an Order dated 08.04.2022. Thus, the appellant herein is the legal representative of the original plaintiff. 4. The following are undisputed facts: Agricultural land in three plots totalling an extent of Ac.0.60 cents in S.No.138/4 in P.S.Peta village of Chodavaram Mandal in Visakhapatnam District (This is plaint schedule property) was owned and possessed by Smt Chavitina Demulamma. Her own sister is Smt Mahalakshmamma. The said sister Mahalakshmamma had two sons viz., Prakasha Rao and Nageswara Rao. Plaintiff Smt Lakhsmi is wife of the above referred Prakasha Rao. Defendant Smt B.Devi is the daughter of above referred Nageswara Rao. On 02.11.2006 plaintiff sued the defendant seeking permanent injunction. Both sides claimed possession over the plaint schedule property. Both sides propounded wills said to have been executed by the original owner Smt Chavitina Demulamma. The testatrix died on 16-12-1998. Defendant put forth a registered will dated 09-02- 1995, the certified copy of which is Ex.B2. Plaintiff propounded an unregistered will dated 02-12-1998 and exhibited it as per Ex.A1. Between these two wills Ex.A1 is latest in point of time. In Ex.A1 there is a mention that the testatrix earlier executed another registered will dated 05-11-1998 and by Ex.A1 the said registered will dated 05-11-1998 is revoked. There is no mention in Ex.A1 about Ex.B2 will dated 09-02-1995 propounded by defendant. During the pendency of first appeal, the plaintiff moved I.A.No.50 of 2013 for production of additional evidence which include a will dated 13-05-1998 and another will dated 06.01.1997. (That application for additional evidence was dismissed by the first appellate Court). There is no mention in Ex.A1 about Ex.B2 will dated 09-02-1995 propounded by defendant. During the pendency of first appeal, the plaintiff moved I.A.No.50 of 2013 for production of additional evidence which include a will dated 13-05-1998 and another will dated 06.01.1997. (That application for additional evidence was dismissed by the first appellate Court). Thus altogether five wills emerged and they were attributed to the deceased woman Smt Chavithina Devullamma. Both sides pleadings and evidence had not averted to those two wills sought to be produced before the first appellate Court. 5. Pleadings and evidence on both sides refer about one Mr.Bodanki Suribabu. According to plaintiff, the testatrix was indebted to that person to a tune of Rs.17,000/- and towards satisfaction of interest component of her debt two out of the three plots of plaint schedule was kept in his possession. Plaintiff claimed to have discharged that debt as per endorsement on Ex.A2 pronote and took possession of those plots on 20.05.2001. 6. According to defendant, on the death of testatrix on 16-12- 1998 she obtained possession of the plaint schedule property and thereafter under a written lease deed dated 08-04-2001 she inducted the earlier referred Bodanki Suribabu as a tenant into the plaint schedule property. Thereafter, when the tenant refused to vacate the tenancy land, she sued him in A.T.C.No.01 of 2002 and won the case and filed E.P.No.159 of 2005 and through process of law got him evicted and obtained possession through Court’s Field Assistant on 28-04-2006 and thus in possession of the disputed property by the time of filing of the suit on 02-11- 2006 and exhibited Ex.B4 Court execution proceedings and Ex.B3 delivery warrant and receipt. 7. Trial Court framed the following issues:- 1. Whether the plaintiff is entitled for permanent injunction as prayed for? 2. To what relief? 8. It extensively dealt with the oral evidence of Pws.1 to 6 and Ex.A1 and A2 for plaintiff and the oral evidence of Dws.1 to 3 and Exs.B1 to B4 and considered the arguments on both sides. It stated that the suit being one for permanent injunction alone, there was no need to go into the merits of title over property and the case required proof of possession and that both sides failed to produce documents evidencing possession of property by the date of filing of the suit. It stated that the suit being one for permanent injunction alone, there was no need to go into the merits of title over property and the case required proof of possession and that both sides failed to produce documents evidencing possession of property by the date of filing of the suit. It stated that burden is on plaintiff to produce reliable evidence and sustain the claim on her own strength. Criticism of defect in the evidence on defendant’s side is not equal to proof of case by the plaintiff. About Ex.A1 will propounded by the plaintiff, on evidence it found that testatrix was in the habit of subscribing signatures on documents and Ex.A1 did not contain signature of her. The thumb impression on Ex.A1 attributed to testatrix is not tallying with the undisputed thumb impression of the testatrix available on other documents. Testatrix lived with defendant and died in the house of defendant at Anakapalli and she was bedridden for some period preceding her death. In the context of such circumstances Ex.A1 unregistered will said to have been executed at P.S.Peta the village of plaintiff, just a few days prior to her death created cloud of suspicion. It recorded the discrepant versions of evidence of witnesses examined on plaintiff’s side and found that plaintiff failed to prove due execution of Ex.A1 by the testatrix. 9. It stated that, plaintiff can not substantiate her case merely by arguing that the delivery of property obtained by defendant during execution proceedings under Exs.B3 and B4 was only symbolic delivery. Holding that plaintiff failed to prover her possession over the property, it dismissed the suit. 10. Plaintiff carried the matter to first appellate Court. There the following points were settled for consideration: 1. Whether the decree and judgment of the Principal Junior Civil Judge, Chodavaram in O.S.No.275/2006 dated 28.09.2011 suffers from any legal infirmities? 2. Whether the appreciation of the evidence by the trial Court is within the legal frame work? 3. Whether the decree and judgment of the trial Court are perverse warranting inference as prayed for? 11. Learned first appellate Court stated that it is for plaintiff to prove her possession and enjoyment of property and further to prove that there was attempt of the defendant to dispossess her and the scope of the appeal was limited to that. 3. Whether the decree and judgment of the trial Court are perverse warranting inference as prayed for? 11. Learned first appellate Court stated that it is for plaintiff to prove her possession and enjoyment of property and further to prove that there was attempt of the defendant to dispossess her and the scope of the appeal was limited to that. Though oral evidence of Pw.1 to Pw.6 was there, that by itself can not be the basis to grant the relief unless there are documents evidencing possession. It stated that Ex.A1 will and Ex.A2 promissory note are not documents evidencing possession of plaintiff. Plaintiff /Pw.1 admitted during cross examination that she had not filed pattadar and title deed pass books in proof of possession claimed by her. Coming to Ex.A1 will propounded by the plaintiff it appreciated the evidence and then agreed with the findings of the trial Court and held that Ex.A1 was not proved. It further stated that the subsequent will is required to contain the reasons for cancellation of the earlier will. Since Ex.A1 will has not mentioned about cancellation of Ex.B2 will, it is not possible to construe that Ex.B2 was cancelled. It analysed the evidence of Sri Bodanki Suribabu/Pw.4 and the evidence of Dw.3/the Field Assistant of the Court, Ex.B3 and Ex.B4 and noted that Pw.4 in his cross-examination admitted that Field Assistant of Court had come for effecting delivery of property in execution proceedings. It noted that the delivery receipt contained the signature of the plaintiff also. Thus, it held that the delivery of property in favour of defendant was physical and actual and not symbolic. It stated that in terms of illustration (e) of Section 114 of the Indian Evidence Act made the Court to also presume that judicial and official acts have been regularly performed. It stated that plaintiff failed to prove possession and enjoyment and failed to prove unlawful attempt of defendant in dispossessing her. Finally it dismissed the first appeal. 12. It is against that judgment of the first appellate Court the plaintiff in the suit filed the second appeal under Section 100 C.P.C. The law is that, it is for the appellant to satisfy this Court that the case involves a substantial question of law. Only in the event of existence of substantial question of law this Court has to admit the appeal. Only in the event of existence of substantial question of law this Court has to admit the appeal. Therefore, it is for the appellant to show to this Court about the existence of substantial question of law. While considering an appeal at the stage of admission it is relevant to notice the law in this regard. In Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar, 1999(3) SCC 722 . The Hon’ble Supreme Court of India held that concurrent findings of fact, however erroneous, cannot be normally disturbed by the High Court while considering the appeal under Section 100 C.P.C. Second appeal cannot be decided merely on equitable grounds. A substantial question of law is different from substantial question of fact. In Santosh Hazari v. Purushottam Tiwari, 2001(3) SCC 179 . The Hon’ble Supreme Court of India laid down the rule that to be substantial, a question of law must arise and must be debatable and such question must have a material bearing on the outcome of the case. 13. In the memorandum of grounds of appeal the appellant formulated the following substantial questions of law: “1. Whether the judgment and decree of the Courts below are vitiated by non consideration of relevant pleading, valid evidence and by perverse reasoning? 2. Whether the Courts below justified in not considering the recitals of Ex.A1 which clearly mention that earlier will is revoked and dismissing the suit on the ground that there is no mention of cancelling the earlier will executed in favour of respondent in Ex.B2? 3. Whether the Courts below are justified in dismissing the suit for permanent injunction when the plaintiff proved title, possession and enjoyment by marking Ex.A1 and Ex.A2 and by examining Pws.2 to 6?” 14. Learned counsel for appellant argued that the original plaintiff by oral and documentary evidence proved her title and possession and enjoyment over the property. But the Courts below erroneously dis-believed her case. That the delivery proceedings in E.P.No.159 of 2006 in favour of defendant was only symbolic and was a paper delivery. The testatrix had relatives and properties at P.S.Peta Village, yet Courts below erroneously held about suspicious circumstances in execution of will. Courts below failed to notice that Ex.A1 will propounded by plaintiff distributed properties not only to the original plaintiff but also to the defendant/respondent herein and others. 15. The testatrix had relatives and properties at P.S.Peta Village, yet Courts below erroneously held about suspicious circumstances in execution of will. Courts below failed to notice that Ex.A1 will propounded by plaintiff distributed properties not only to the original plaintiff but also to the defendant/respondent herein and others. 15. As against the above submissions the learned counsel for respondent/defendant submits that, this appeal has not traced any substantial questions of law and the appellant was only seeking re-appreciation of the evidence which is impermissible especially when there was no perversity in the findings recorded by both the Courts below and sought for dismissal of the appeal. 16. Having considered the rival submissions and having considered the pleadings of both sides and the findings recorded by both the Courts below, the controversy has to be resolved. 17. The suit was one for perpetual injunction over immovable property. The property is an agricultural land. The original owner/Smt Chavitina Demulamma died on 16.12.1998. During her life time she was in possession and enjoyment of the disputed property. What happened after her death and who came into possession of the property is the dispute. On appreciating the evidence thoroughly, learned first appellate Court recorded factual observations that by the very pleadings of the plaintiff, possession over the disputed property was not obtained by plaintiff immediately after death of testatrix in the year 1998 and she obtained possession only in the year 2001 and she obtained that possession from Pw.4 Sri Bodanki Suribabu. Who was in possession between 16.12.1998 and 20.05.2001/Ex.A2 was one of the questions. Both the Courts below observed that neither the possession of the plaintiff nor the possession of Sri Bodanki Suribabu was established by any document. According to plaintiff, possession was obtained from Pw.4 on 20.05.2001. The suit was filed in the year 2006. Between those two dates plaintiff claimed possession over the property. Both the Courts below observed that no documentary evidence disclosing possession was filed. That the land being agricultural in nature, possession and enjoyment of such a land can be seen through entries in the revenue records. No such documents such as adangals, payment of taxes, pattadar and title deed pass books were filed by the plaintiff before the Courts below. Both the Courts below observed that no documentary evidence disclosing possession was filed. That the land being agricultural in nature, possession and enjoyment of such a land can be seen through entries in the revenue records. No such documents such as adangals, payment of taxes, pattadar and title deed pass books were filed by the plaintiff before the Courts below. Thus, whatever was the source of possession, in establishing possession, no document was there before the Courts below to accept the claim of the plaintiff about the possession. During the course of hearing of first appeal, plaintiff made an attempt to produce pattadar and title deed pass books said to have been given to her in the year 1997 itself. Learned first appellate Court refused to receive the additional evidence for two reasons. It stated that there was no satisfactory explanation at all as to why documents of the year 1997 were not produced before the trial Court where the suit was filed in the year 2006. It also held that while the pleadings and the evidence of plaintiff indicated her purported possession only from the year 2001 how was it that her possession was allegedly recorded in revenue records since the year 1997. It was on these two principles, learned first appellate Court refused to receive the additional evidence. How that reasoning based on facts is incorrect is to be satisfactorily explained by the appellant. Except harping on Exs.A1 and A2 the appellant has not been able to show any principle of law or facts on which the approach of the Courts below could be found fault with it. Both the Courts below referred to the evidence of Sri Bodanki Suribabu/Pw.4 and that was a right approach, because plaintiff claimed possession from the said witness stating that the testatrix put in a condition in Ex.A1 will that she borrowed money from him and gave two plots of land to his possession and the beneficiary should repay the debt and obtain possession. According to plaintiff, she complied with that and obtained possession evidenced by Ex.A2 endorsements of Bodanki Suribabu. This version was dis-believed by both the Courts below. They accepted the case of defendant. According to plaintiff, she complied with that and obtained possession evidenced by Ex.A2 endorsements of Bodanki Suribabu. This version was dis-believed by both the Courts below. They accepted the case of defendant. According to defendant/respondent herein, defendant obtained possession of the property soon after the death of testatrix and inducted Pw.4/Bodanki Suribabu as a tenant and on his refusal to vacate the property, defendant resorted to legal proceedings and obtained a decree and in the execution of it obtained possession from Pw.4 evidenced by Exs.B3 and B4 and the proof of said version was spoken to by Dw.3 the Field Assistant. The learned first appellate Court also recorded an observation that even Pw.4 admitted about Field Assistant approached for effecting the delivery of property. It was on those facts, based on evidence Courts below found that the defendant was in possession of the property. In this second appeal the contention of the appellant is that the delivery obtained by defendant was symbolic and not physical. This assertion is only an assumption without any factual basis. Similar argument was put-fourth before the learned first appellate Court and with appropriate reasoning, the learned first appellate Court negatived such contentions. It rightly held that there was presumption attached to the truth of due discharge of official acts and added to that there was enough evidence of Dw.3 and Exs.B3 and B4 and it was on such appreciation it negatived the contention of symbolic delivery asserted by this appellant. Requesting this Court to reappreciate that evidence is an argument on facts and not on argument at law. 18. When once both the Courts below held that Ex.A1 will was not proved, the whole contention of the plaintiff/appellant falls to ground because, Ex.A2 pronote and delivery of property by Pw.4 in favour of plaintiff are matters that emanated out of Ex.A1 will and not otherwise. 19. As stated in the earlier paragraphs of this judgment, altogether five wills were attributed to the original owner Smt Chavitina Demulamma. Latest among them is claimed to be Ex.A1 will propounded by plaintiff/appellant. It made a reference of cancellation of one out of remaining wills but it did not refer to cancellation of Ex.B1 registered will propounded by the defendant. As stated in the earlier paragraphs of this judgment, altogether five wills were attributed to the original owner Smt Chavitina Demulamma. Latest among them is claimed to be Ex.A1 will propounded by plaintiff/appellant. It made a reference of cancellation of one out of remaining wills but it did not refer to cancellation of Ex.B1 registered will propounded by the defendant. It was in that context, the learned first appellate Court observed that omission to cancel Ex.B1 will by a specific recital in Ex.A1 made it to understand that Ex.B1 will was not cancelled. It is that finding which is sought to be challenged by the appellant. No particular principle of law is argued before this Court. Section 70 of the Indian Succession Act,1925 made a provision about the revocation of earlier wills. According to this provision, by a subsequent will the earlier will could be revoked. It seems it was this principle that was governing the reasoning of the learned first appellate Court. As a matter of fact, Ex.A1 had no reference to Ex.B1. Therefore, the observation of the learned first appellate Court can not be called as incorrect. Before the Courts below nothing seemed to have been argued as to how both the wills can not be reconciled concerning the suit schedule property. According to the appellant, Ex.A1 will provided several beneficiaries which include the original plaintiff, the defendant and others as it distributed not only the plaint schedule property but also other properties. As against it, Ex.B1 will did not deal with the other properties and other beneficiaries. Even if these submissions are taken into consideration what was required for the original plaintiff was to demonstrate before the Courts below through appropriate evidence inviting specific findings of the Courts to the affect that Ex.A1 will was acted upon concerning other properties and the other beneficiaries and the defendant obtained possession of those properties. By establishing such facts plaintiff should have sustained her claim that Ex.A1 will was genuine. It seems there was neither evidence in that regard nor argument advanced in that regard and thus there was no findings concerning it from both the Courts below. In the second appeal such questions of facts are not shown to exist by any method by the appellant. It seems there was neither evidence in that regard nor argument advanced in that regard and thus there was no findings concerning it from both the Courts below. In the second appeal such questions of facts are not shown to exist by any method by the appellant. Moreover any finding concerning Ex.B1 will as subsisting or not is not going to change the final decision on the proof of Ex.A1 will as well as the result of the case. The findings of the Courts below that the admitted thumb impression of the testatrix on other documents was found totally different from the thumb impression attributed to testatrix on Ex.A1 being an important finding on fact, the Courts below were justified in disbelieving Ex.A1. My attention is not drawn to any fact and any evidence to say that finding was perverse. Since the Courts below considered only the evidence on record and did not consider anything that was not part of the record and since the conclusions were based on evidence on record and such conclusions were supported by appropriate reasoning and since the entire decision of the Courts below went on facts and no particular questions of law are argued or debated, this Court finds that the appellant failed to show existence of any substantial questions of law. Therefore, there is no merit in this appeal. 20. In the result, this second appeal is dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.