IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 22nd DAY OF FEBRUARY TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.6518 of 2005 BETWEEN: Sri Vemuri Appa Rao and another … PETITIONER(S) And Smt Polavarapu Srivani … RESPONDENT(S) HON’BLE SRI JUSTICE N.RAVI SHAKAR CIVIL REVISION PETITION No.6518 of 2005 ORDER: Defendants who are two in number in O.S.No.310 of 1998 on the file of the Court of Junior Civil Judge, Gannavaram (trial Court) are petitioners in this revision. The respondent, a lady, brought the said suit under Section 6 of the Specific Relief Act, 1963 (for short Act) for recovery of possession of suit schedule properties from the defendants on the ground that they forcibly dispossessed her from the same on 19.07.1998 and 25.07.1998 respectively and therefore she is entitled to recover possession of the same from them. 2. The trial Court after considering the evidence let in by both sides upheld the case of the plaintiff and decreed the suit by its judgment dated 17.10.2005. Questioning the same defendants have filed this revision as no appeal lies against the judgment of the trial Court under Section 6 of the Act. The suit properties consist of two items. The first is Ac.0-92 cts of dry land in R.S.No.544/4 situate in Vedurupavuluru of Mustabada village and the second is a vasara house constructed in 260 square yards of house site said to be situate in Mustabada village. The plaintiff in support of her case examined including herself six witnesses and filed 21 documents. Defendants from their side examined four witnesses and filed 4 documents. Thus having regard to this quantum of evidence, the respective cases of the parties and the evidence have to be dealt with in detail to decide about the correctness of the findings of the trial Court. 3. The plaintiff’s mother is one Lella Samrajyam. Defendants 1 and 2 are the brothers of Samrajyam and all the three are children of one late Vemuri Pitchaiah. Thus this Vemuri Pitchaiah of Mustabada village, is the maternal grandfather of the plaintiff. He admittedly died on 26.04.1998. According to the plaintiff Vemuri Pitchaiah executed Ex.A2 registered Will dated 06.02.1997 bequeathing the second item of the suit properties to her and he further executed Ex.A1 registered Will dated 25.07.1997 bequeathing the first item of the suit properties to her and after that he died on 26.04.1998 vide Ex.A3 death certificate. 4. The plaintiff’s case is that after the death of her grandfather Vemuri Pitchaiah on 26.04.1998 she came into possession of both the items of the suit properties and has been in possession and enjoyment of the same as his legatee under the above two Wills. Her further version is that the defendants 1 and 2 because of their disputes with her forcibly dispossessed her from Ac.0.92 cts of land( item No.1 of the suit property) on 19-07-1998 and from the house property (item No.2 of the suit property) on 21-07-1998 and therefore she brought the suit within six months to recover possession of the same from both of them. In the plaint mention is made about the disputes that broke out between defendants and their father Pitchaiah and also a partition that took place in 1984 between them and further as to how the defendants neglected their father in his old age and as to how the plaintiff and her mother looked after him. However these aspects have a little bearing on the suit having regard to its scope as only possession factor has to be seen in this suit. 5. The first defendant filed written statement resisting the suit and the same is adopted by the second defendant. Their case is that Vemuri Pitchaiah never executed the wills set up by the plaintiff and they looked after Pitchaiah till he died. They also stated that their father Vemuri Pitchaiah executed his last will dated 25-02- 1998 marked as Ex.B.1 bequeathing the suit properties to them and that they have been in joint possession and enjoyment of the suit properties along with Pitchaiah during his life time and even thereafter i.e., after his death. Their version is that plaintiff was never in possession of the suit properties and she brought the suit only to harass them and further pleaded that her remedy lies in filing a regular suit for declaration of title and possession to establish her case. It must also be mentioned here that they admitted the prior partition between them and their father in 1984, which is pleaded by the plaintiff but that also is outside the scope of the suit and hence not gone into. 6. The trial Court, as already mentioned supra, accepted the claim of the plaintiff and decreed the suit. Having regard to the scope of the suit, what has now to be seen is whether the plaintiff is able to prove that she was in possession of the suit properties after the death of Pitchaiah and whether she was wrongfully dispossessed by the defendants, as claimed by her. 7. The learned Counsel for the defendants/petitioners argued that the trial Court did not consider the matter in its proper perspective regarding possession having regard to the probabilities of the case which show that defendants were throughout in possession of the suit properties and committed a patent error in upholding the case of the plaintiff and consequently its judgment should be set aside. On the other hand, the learned Counsel for the plaintiff argued that the oral testimony of P.Ws.1 to 6 and Exs.A.1 to A.21 documents filed by the plaintiff amply establish the case of the plaintiff and that the judgment of the trial Court is well founded and does not call for interference. 8. To repeat, the scope of the suit is very limited and it has to be seen whether the plaintiff is able to prove her case that she was in possession of the suit properties within six months prior to the suit and she was wrongly dispossessed. It is not necessary to go into the genuineness of Exs.A.1 and A.2 Wills set up by the plaintiff nor is it necessary to go into the validity of Ex.B.1 Will. Late Pitchaiah died on 26-04-1998 and both the Wills relied upon by the plaintiff, therefore, will take effect only on that date. Late Pitchaiah was about 75 years of age when he executed Exs.A.1 & A.2 Wills and admittedly he was not keeping good health. Thus late Pitchaiah cannot be said to have carried on cultivation of Ac.0.92 cts of agricultural land (item No.1 of the suit property) on his own and therefore he must have employed some coolies or somebody else to cultivate the said land if the plaintiff’s case that he was personally cultivating is true. The plaintiff did not choose to examine any agricultural coolie or anybody else who was actually looking after the cultivation of the said land during his life time. 9. It is in the evidence of P.W.1 i.e., the plaintiff herself that five months after the death of her mother Samrajyam which admittedly occurred on 17-11-1996 she shifted along with her husband to Vijayawada from the village of her grand father. It is not her case that late Pitchaiah entrusted the cultivation of item No.1 of the suit property to her husband or that she was looking after the same otherwise and she did not examine anybody to show that late Pitchaiah himself was cultivating through somebody or she looked after its cultivation through somebody. P.Ws.2 to 6 examined by her are other landlords in the village who no doubt supported her case regarding the Wills but there is nothing in their evidence to show that late Pitchaiah himself cultivated the first item of suit property or the plaintiff cultivated it. The plaintiff admittedly came to the village in question on the next day after the death of Pitchaiah. 10. On the other hand, defendants 1 and 2 are no other than the sons of late Pitchaiah and their version is that though a partition took place in 1984, they were carrying on the cultivation of item no.1 also. D.W.2 Mallampati SambasivaRao, a neighbouring land owner of item no.1 stated that even during the life time of Pitchaiah defendants were cultivating it and that he has got Ac.0.60 cts of land to the West of item No.1 and he knows about the cultivation of the same by defendants personally. Nothing was elicited from him to discredit his version. 11. Now coming to the probabilities of the case, defendants are none other than the sons of late Pitchaiah and both of them are also in agriculture. Thus normally it is not unusual for the sons to look after the cultivation of their father’s agricultural land and in the absence of clinching evidence to show that plaintiff came into possession of item no.1 after the death of her father, the probabilities more weigh in favour of defendants as they are also agriculturists. The plaintiff however filed Exs.A.4 to A.21 revenue pass book and revenue title deed, cists receipts and electricity bills, which all pertain to the period from 1984 to 1997, but all of them stand in the name of Pitchaiah. It may be noted that plaintiff being the grand daughter must have had full liberty and movement in the house of her grand father and therefore the plaintiff stealthily taking them away cannot be ruled out. Thus in the above circumstances the mere fact that the plaintiff filed the above documents pertaining to the item No.1 cannot improve her case. For the aforesaid reasons, it follows that the plaintiff’s case that she came into possession of the item No.1 after the death of Pitchaiah cannot be accepted on the evidence brought on record. 12. Then coming to the house property i.e., item No.2, no doubt defendants 1 and 2 admitted that the said house belongs to their father. Even here, as transpires from evidence, the plaintiff resided in that house with her mother after the latter was deserted by the plaintiff’s father and before her marriage. It should also be noted that the house of the first defendant allotted to him is adjacent to the item no.2 and the evidence shows that even defendants had access to it and they were also moving in the house freely as after all Pitchaiah is none other than their father. Further the evidence also discloses that there was no compound wall separating the houses of the first defendant and Pitchaiah. The plaintiff was admittedly residing at Vijayawada when Pitchaiah died and she came to the village on the next date after the death of Pitchaiah. There is no evidence to show that plaintiff got exclusive possession of the house after the death of Pitchaiah. 13. The trial Court seems to have gone by the evidence of P.Ws.2 to 6 who merely supported the version of the plaintiff without looking into the probabilities of the case having regard to the relationship between defendants and Pitchaiah and also the fact that plaintiff being the grand daughter of Pitchaiah must have had free access into the house of Pitchaiah and she must be having that access even into the houses of defendants who are none other than her maternal uncles before this litigation started. The evidence of the plaintiff herself shows that she stayed at the village for about 15 days after the death of Pitchaiah i.e., till completion of the death ceremonies and then went away which is normal for any grand daughter. By this circumstance alone, it cannot be said that plaintiff got possession of item No.2 under the Will of Pitchaiah set up by her after the death of Pitchaiah. In my opinion, the trial Court ignored the evidence of D.Ws.1 to 4 altogether which is consistent with the above probabilities which are found in an agricultural family in a village and concluded that the plaintiff must be held to have possession of both the properties under the Wills of Pitchaiah set up by her after his death. The trial Court in my opinion must be held to have committed a serious error in appreciating the evidence and upholding the case of the plaintiff. 14. It may be noted that this Court in a revision would not normally interfere with the finding of a fact recorded by the trial Court in a suit like this unless there is some patent error committed by the trial Court in appreciating the evidence. The circumstances of this case and the probabilities arising therefrom which are already mentioned in the preceding paragraph would show that the trial Court ignored the same and committed a serious error in appreciating the evidence and finding in favour of the plaintiff. In my opinion, the circumstances and the probabilities of the case do not show that plaintiff came into possession of the suit properties after the death of her grand father. Accordingly, the point is decided in favour of the defendants. 15. Before the formal result of this C.R.P is stated, it should be noted that the plaintiff herein also filed another suit O.S.No.272 of 1998 under Section 6 of the Act against defendants 1 & 2 herein who are her maternal uncles and also a third party who got impleaded himself as third defendant in the said suit claiming recovery of possession of Ac.1.78 cts of land. Plaintiff’s case in that suit was that her mother got the said extent of Ac.1.78 cents under a Will of her maternal grandmother Nagendramma i.e., the wife of Pitchaiah and after the death of her mother she came into possession of that land. 16. The plaintiff’s plea in the other suit is that she was dispossessed from that land on 17-07-1998 i.e., two days prior to 19-07-1998 on which she says that she was dispossessed from item No.1 of the suit properties in the present suit. The trial Court dismissed that suit and the plaintiff filed C.R.P.No.4840 of 2008 against that judgment. That C.R.P. and the present C.R.P have been heard separately and have been taken up for disposal separately. The other C.R.P. has been dismissed today by a separate order. It appears that this suit and also the other suit referred to supra are the result of internecine quarrel between the parties who are close relatives and in both the suits the probabilities weigh against the plaintiff. 17. The Civil Revision Petition is allowed setting aside the judgment and decree of the trial Court. There shall be no order as to costs. It goes without saying that it shall be open for the plaintiff to establish her rights to the suit properties in a regular suit, if she is so advised. _____________________ N.RAVI SHANKAR,J 22nd February, 2011 VJL