HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.2932 OF 2001 AND TRANSFER APPEAL SUIT No.666 OF 2001 COMMON JUDGMENT: These two appeals arise out of a common judgment in O.S.No.122 of 1992 and O.S.No.81 of 1999 on the file of the Principal Senior Civil Judge, Eluru. 2. The suit O.S.No.122 of 1992 was filed by the plaintiff for recovery of possession of items 1 to 6 of the suit schedule properties by evicting defendants 1 to 5 and for recovery of the profits from defendants 1 to 4. 3 The allegations in the plaint go to show that the 1st defendant was the husband of the plaintiff and they got a male child in 1960, who died within three days, another child was also born in 1962 and he also died. The plaintiff became the class one heir of the two children. Defendant No.2 is brother-in-law of defendant No.1. Defendants 3 and 4 are the sons of defendant No.2. Defendant No.5 is the paternal uncle of defendant No.1. The plaintiff filed O.S.No.39 of 1960 on the file of the District Judge, Eluru, against defendant No.1 and his family members for partition and separate possession of her half share as a class one heir of her children and ultimately, a compromise decree was passed in I.A.No.213 of 1965 in O.S.No.39 of 1964 on the file of the District Judge, Eluru, and as per the said compromise, the plaintiff became entitled to the schedule properties with absolute rights to an extent of Acs.5.36 cents and 508 square yards of site in Munduru village. The marriage between the plaintiff and the 1st defendant was dissolved by virtue of the decree in O.P.No.6 of 1972 on the file of Sub- Court, Eluru. The 1st defendant filed O.P.No.20 of 1989 on the file of Sub Court, Anakapalli with false allegations for restitution of conjugal rights. The plaintiff has also provided defendant No.5 five bags of paddy per year towards his maintenance and executed a maintenance deed on 15.08.1965 with charge over item No.5 of the schedule properties. Defendant No.1 along with supporters got into possession of the house property in July, 1991 and in December, 1991 they have trespassed into the agricultural lands i.e., item Nos. 1 to 5 and caused loss. A police report was given but no action was taken. The plaintiff also sold Acs.1.07 cents of land to defendant No.6 and delivered possession to him, but however that land was also occupied. 4. The 1st defendant filed a written statement contending that the suit is barred by time. The decree in O.S.No.39 of 1964 on the file of District Court, Eluru, is not valid. The alleged trespass and forceful possession was not correct. The decree in O.S.No.39 of 1964 is a collusive decree to avoid the debts of the 1st defendant, so also the proceedings for divorce. Item No.5 was always in possession of the 1st defendant. Items 1 to 5 were leased out by the 1st defendant and the house site is in possession of the 3rd defendant. 5. The other defendants also denied the right of the plaintiff. Defendant No.6 supported the claim of the plaintiff. Defendant No.7, who is legal heir of 1st defendant, claimed that she became entitled to the suit properties by virtue of Will dated 06.11.1995 executed by the 1st defendant. Therefore, the suit is liable to be dismissed. 6. On the basis of the above pleadings, the following necessary issues have been framed by the trial Court in O.S.No.122 of 1992, for trial: 1) Whether the plaintiff is entitled for recovery of possession in items 1 to 6 of the suit schedule property after evicting the defendants 1 to 5 thereon? 2) Whether the suit is barred by limitation? 3) Whether the plaintiff is entitled for recovery of a sum of Rs.8,750/- from the defendants 1 to 4 towards mesne profits with interest thereon? 4) Whether the suit is bad for misjoinder of defendants 2 and 4 to 6? 5) To what relief? Subsequently, on 09.02.2000 the following additional issue was framed in O.S.No.122 of 1992 after filing additional written statement by defendant No.3: Whether the Will dated 06.11.1995 executed by the deceased 1st defendant is true, valid and binding on the plaintiff? 7. O.S.No.81 of 1999 was filed by the 3rd defendant in O.S.No.122 of 1992 for declaration of title and injunction. The allegations in the plaint are repetition of the allegations in the written statement filed in the earlier suit. According to him, the properties belonged to husband of the 1st defendant and during his life time he leased out the properties to him and he continued in possession of the property including item No.6. The said Rajarao died on 22.12.1995 and executed a Will on 01.12.1995 in respect of his properties. It was also further pleaded that the 1st defendant, who is the plaintiff in O.S.No.122 of 1992, neglected to look after her husband and they had no issues. It was also further pleaded that the decree in O.S.No.39 of 1964 and also subsequent divorce application are all collusive. The 1st defendant has filed a suit O.S.No.122 of 1992 and the 7th defendant set up a Will dated 06.11.1995, which is not true. The defendants are trying to cause interference with the possession and enjoyment and the 1st defendant was never in possession and hence the suit. 8. The 1st defendant, who is the plaintiff in O.S.No.122 of 1992, filed the written statement reiterating her contentions. Defendant No.3 filed a written statement, which was adopted defendant No.4, who questioned the rights of the plaintiff. 9. On the basis of the above pleadings, the following necessary issues have been framed by the trial Court in O.S.No.81 of 1999, for trial: 1) Whether the Will dated 01.12.1995 executed by B.V. Raja Rao is true, valid and binding on 1st defendant? 2) Whether the plaintiff is entitled for declaration and the consequential relief of permanent injunction as prayed for? 3) To what relief? 10. Common evidence was recorded in O.S.No.122 of 1992 and on behalf of the plaintiff, PWs.1 to 8 were examined and marked Exs.A.1 to A.43. On behalf of the defendants, DWs.1 to 10 were examined and got marked Exs.B.1 to B.8. The learned Principal Senior Civil Judge, Eluru, after considering the evidence on record decreed the suit O.S.No.122 of 1992 and dismissed the suit O.S.No.81 of 1999. Aggrieved by the said judgment, A.S.No.2932 of 2001 was filed by the plaintiff in O.S.No.81 of 1999 and he also filed the Transfer Appeal Suit 666 of 2001 aggrieved by the judgment in O.S.No.122 of 1992. 11. For the sake of convenience, the parties are referred as in O.S.No.122 of 1992. 12. The points that arise for consideration are: 1) Whether the plaintiff is entitled to the schedule properties? 2) Whether the decree in O.S.No.39 of 1964 is valid? 3) Whether the Will set up by the 3rd defendant/appellant is valid and enforceable? 4) Whether the judgment and decree passed by the learned Principal Senior Civil Judge, Eluru, is legal and sustainable? 13. POINTS: The learned counsel for the appellant contends that the plaintiff has no right or interest in the schedule properties and the so-called decree in O.S.No.39 of 1964 is not valid and it is a collusive one and she was never in possession of the properties and as such, the plaintiff is not entitled for the declaration of the title. Evidently, during the trial of the suit, the 1st defendant died therefore, his evidence is not available. The determination of issues in this case largely depends upon the validity of the compromise decree O.S.No.39 of 1964. The appellant herein contends that the said decree is a collusive one. It was sought to be canvassed that the husband of the plaintiff was indebted to others and in order to screen the properties, a collusive suit was filed and the total properties shown in the schedule in that suit were given to the plaintiff, which is evident from the conduct and therefore, the decree is not valid. This contention of the appellant is per se incorrect. As can be seen from the compromise decree, which is marked as Ex.A.6, the plaintiff was given an extent of Acs.5.38 cents of land shown as items 1 to 5 and the house property of 508 square yards. To that compromise decree, the schedule was also attached. If the plaint in O.S.No.39 of 1964 is seen under Ex.A.1, the total extent of the property shown as Acs.10.57 cents of land out of it Acs.5.26 cents is claimed as half share apart from the house property. Therefore, the suit property schedule itself shows that the total extent was Acs.10.57 cents. In fact, the compromise decree does not give an excess share to the plaintiff. 14. The 1st defendant denied the birth of the children and the right of the plaintiff for the share in the property. The terms of the compromise are marked as Ex.A.4 and they clearly go to show that two children were born and they died and consequently the plaintiff became entitled to their shares. Therefore, it cannot be said that as the entire properties were given to the plaintiff under the compromise decree, it is a collusive one. In fact, there is no evidence about the circumstances under which such a collusive decree has to be effected between the parties. Ex.A.9 is the decree in O.S.No.6 of 1972, where-under the marriage between the plaintiff and her husband was dissolved. An attempt is sought to be made by relying on the filing of O.P.No.20 of 1989 by the 1st defendant for restitution of conjugal rights and obtaining a decree to the effect that the earlier decrees are collusive. This by itself will not in any way establish the claim of the appellant. If really the plaintiff and 1st defendant are living separately, there is no reason as to why an application for restitution of conjugal rights shall be filed in 1989. Exs.A.36 to A.43 are the relevant documents showing the effectiveness of the compromise decree. An attempt was also sought to be made in 1991 that the plaintiff was not in possession of the property and the alleged dispossession is a falsity. 15. It was also sought to be contended that the plaintiff was living with one Babuji and she never came to the village. It is also to be noted that in the subsequent suit in O.S.No.881 of 1972 the 1st defendant has specifically admitted about the compromise decree in O.S.No.39 of 1964. The delivery of possession of the property to the plaintiff was also admitted. In fact, O.S.No.881 of 1972 was filed by the 1st defendant as a pauper against the plaintiff specifically admitting the filing of the suit O.S.No.39 of 1964 and sought maintenance claiming that he has no property. In fact, he never sought for a declaration that the compromise decree is not valid. Therefore, from the own admission of the 1st defendant, the rights of the plaintiff were recognized and she has been in possession and enjoyment of the property and the 3rd defendant, who is the appellant herein, claiming to be the 1st defendant cannot contend to the contra and he is bind by the pleadings of the 1st defendant. The evidence of number of witnesses adduced by the defendants about the Wills and the possession has no relevancy. They sought to be contended that the documents Exs.A.41 to A.43 are subsequent to the suit and there should not have been relied on by the lower Court. On behalf of the defendants also to show the continuous possession and enjoyment of the property, there are no documents and the cultivation accounts are not filed though a lease deed is said to have been executed, it was not filed. Therefore, when once the title of the plaintiff with regard to the schedule properties, which were conferred on the compromise decree, is accepted and her husband himself accepted the same, at this stage, it is not permissible for the appellant to plead the contra and say that the plaintiff is not the owner of the property. Further-more, the law presumes that the owner is in possession of the property and there are extracts of the settlement register and cultivation accounts, which prima facie shows the possession and enjoyment of the plaintiff till 1991 as claimed by her. The evidence on record clearly shows that the theory of dispossession claimed by the plaintiff is true. The contention of the appellant that there was no delivery of possession at any time cannot be accepted. When once the 1st defendant has no right in the schedule properties, which were evidently given under a compromise decree to the plaintiff, the appellant or any other person will not get any right either under the Will Ex.B.1 or Ex.B.2 and therefore, they have to be ignored. I have also no hesitation in holding that the evidence adduced by the defendants is not sufficient to come to a conclusion that they have been in continuous possession and enjoyment of the property to the detriment of the rights of the plaintiff and acquired any right in the properties. Therefore, there are absolutely no reason to interfere with the judgment and decree passed by the learned Principal Senior Civil Judge. Accordingly, points are answered. 16. In the result, both the appeals are dismissed. Each party shall bear their own costs. _________________________ N.R.L. NAGESWARA RAO, J Date:09.08.2011 INL