IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE NINETH DAY OF JUNE TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE P. S. NARAYANA * * * SECOND APPEAL No. 4 1 6 OF 1999 Between: Fatimunnisa Begum … Appellant V/s. Syed Ibrahim & Anr. … Respondents Counsel for the appellant : Sri A . Satya Prasad Counsel for the Respondents : Sri VLNGK. Murthy The court made the following : Judgment (follows 2nd page) THE HONOURABLE SRI JUSTICE P. S. NARAYANA SECOND APPEAL No. 4 1 6 OF 1999 JUDGMENT : This Court on 31-8-2000 made the following order: Admit in view of the substantial question of law raised in ground No.5 (a) to (c) of grounds of appeal. Notice. Ground No.5 (a) (b) and (c) reads as hereunder: (a) Whether in absence of delivery of possession of property under a gift deed, can such gift is valid under the Mohammadan Law? If answer is No, exhibit B4 gift deed said to have been executed by the father in favour of defendant is valid ? (b) Whether in a suit for specific performance, is it permissible to the court to go into the aspect of holding the property prior to suit document i.e., Ex.Al and coming to erroneous conclusion that the appellant does not hold any property, is permissible to the trial court and same is not exercise of excessive jurisdiction ? (c) Whether sweeping remarks against the appellant by the courts below are basing on no evidence and such remarks or findings are irrelevant for adjudicating the case on hand the court below. 2. Sri Satyaprasad, the learned counsel representing the appellant had taken this court through the findings recorded by the court of first instance, the learned Subordinate Judge, Rajahmundry in OS.No. 191 of 1983 and also the findings recorded by the learned I-Additional District Judge, Rajahmundry in AS.No. 146 of 1992 and would maintain that both the courts totally erred in appreciating the oral and documentary evidence in proper perspective. It is further pointed out that the substantial questions of law on the strength of which the second appeal had been admitted and would maintain that in the light of the same, the second appeal to be allowed. 3. Per Contra, Sri V.L.N.G.K. Murthy, the learned counsel representing the first respondent would maintain that the second appeal was dismissed for default as against second respondent and in the light of the same inasmuch as the dismissal of the suit being as against both the respondents and such decree being indivisible the second appeal cannot be heard on merits and the same to be dismissed. 4. Heard the counsel on record. Perused the oral and documentary evidence available on record and also the findings recorded by the learned Subordinate Judge, Rajahmundry, in OS.No.191 of 1983 and also the learned I-Additional District Judge, Rajahmundry, in AS.No. 146 of 1992. It is not in serious controversy that the second appeal was dismissed in default as against respondent No.2. Be that as it may, even other wise, this court is inclined to consider the merits and demerits of the case in the light of the submissions made by the counsel on record. The parties can be referred to as “plaintiff” and “defendant” as shown in OS.No. 191 of 1983. 5. The second defendant in the suit is shown as second respondent in the second appeal as already aforesaid as against second respondent the second appeal was dismissed for default. The plaintiff filed the suit praying for specific relief of suit agreement dated 08-9-1980 and the averments made in the plaint are as hereunder: i) The plaint schedule property is the absolute property of Syed Abdul Aziz. He agreed to sell the same to the plaintiff for Rs.35,000- for the purpose of discharging his debt of Rs.31,000/- due to the plaintiff. He executed an agreement for sale on 08-9-1980 for Rs.35,000/- and agreed to appropriate Rs.31,000/- out of the sale consideration towards the plaintiff’s debt and received Rs.2,000/- at the time of the agreement. It was that the plaintiff should pay the balance of Rs.2,000/- at the time of registration of the sale deed. Aziz put the schedule property in the possession of the plaintiff. Aziz died intestate about 1 ½ years ago without completing the sale transaction. Even during the life time of Aziz the plaintiff requested to execute the sale deed after receiving the balance of sale consideration which was already with her. Aziz stated that he was going to Madras and after returning from there he would execute the sale deed. But he died in Madras. His wife also died. The plaintiff and the second defendant are the daughters and the first defendant is the only son of Aziz. Hence the defendants are liable to complete the sale transaction by executing the sale deed. In spite of demand by her and through her husband the defendants were postponing the execution of the sale deed. The plaintiff got issued notice to the defendants which they evaded to receive. The plaintiff is ready and willing to obtain the sale deed. She is ready with the sale consideration. ii) The first defendant filed written statement which was adopted by the second defendant with the following allegations. The allegations that Aziz agreed to sell the suit property to the plaintiff for Rs.35,000/- and that Aziz was indebted to the plaintiff to a sum of Rs.31,000/- and that Aziz agreed to adjust the said amount from out of the sale consideration and that the plaintiff paid Rs. 2,000/- to Aziz and that Aziz executed the suit agreement for sale are all false. This defendant’s father executed registered gift deed dated 31-3-1980 with regard to his properties viz., the plaint schedule property in a sound and disposing state of mind and voluntarily. In pursuance of the gift deed the said property was taken possession by the defendant and his younger brother. This defendant’s father also admit the tenancy of the plaintiff and represented her to pay rent of Rs.160/- per month to this defendant and his brother. When default was made in payment of the said rent, a notice was issued on 14-4- 1980 calling upon the plaintiff and her husband to vacate the house property. For the said notice the plaintiff’s husband gave reply denying the relationship of landlord and tenant and stated that the said property was gifted to the plaintiff by Aziz in 1973 and that he lent Rs.2,500/- for purchasing the property covered by the schedule. The plaintiff knows about the execution of the gift deed. The plaintiff has no affection this defendant or her parents. This defendant’s father has no right to execute the suit agreement when he gifted away the property to this defendant and this defendant accepted the gift and took over possession of the said property. By the date of the alleged agreement, there is no subsisting right to this defendant’s father to execute any agreement for sale. This defendant’s father was although with the defendant at Madras and that therefore there is no possibility of his execution of the agreement in favour of the plaintiff. The plaintiff at the instigation of her husband might have obtained the signatures of the father of this defendant or might have obtained the signatures of the father of this defendant on blank papers without his knowledge. The suit agreement is fabricated. This defendant did not evade to receive any notice. The suit is bad for non- joinder of proper parties since this defendant has got another brother by name Sayyed Siddique Hussain. The property is valued more than Rs.1,00,000/- even by the date of the alleged agreement for sale. The suit agreement is grossly undervalued. The suit is frivolous and vexatious. 6. In the light of the pleadings of the respective parties, the following issues were settled for trial: 1. Whether the sale agreement dated 8-9-1980 is true and plaintiff is entitled to ask for specific performance against the defendants for executing a sale deed and on their failure to get the document registered through court ? 2. Whether the first defendant and his brother got absolute rights in the plaint schedule property under a registered gift deed dated 30-3-1980 executed by Abdul Aziz ? 3. Whether the plaintiff was attorned as tenant of the first defendant and his brother ? 4. Whether the suit agreement dated 8-9-1980 is a forged one ? 5. Whether the suit is bad for non-joinder of proper and necessary parties ? 6. Whether the value of schedule property is undervalued? 7. To what relief ? 7. The learned Subordinate Judge, Rajahmundry recorded the oral and documentary evidence. The plaintiff examined herself as PW.1 and examined PWs.2 to 4 and marked Exs.A1 5o A23 on her behalf. The first defendant examined himself as DW.1 and the second defendant examined himself as DW2 and they examined DW.3 and marked Exs.B1 to B16 on their behalf. 8. The learned Subordinate Judge appreciated the oral and documentary evidence available on record in elaboration and answered issue Nos. 1, 4 and 6 at paras 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 and ultimately came to the conclusion that the suit agreement Ex.A1 dated 08-9-1980 is not true and the plaintiff is not entitled for the relief as prayed for and further held that the suit agreement for sale is a forged one and also further held that the value of the suit property was not stated in Ex.A1. While answering issue nos. 2 and 3, the learned Subordinate Judge further recorded the reasons at para nos. 20, 21, 22, 23, 24, 25, 26 and 27 and referred to several decisions which had relied on and ultimately came to the conclusion that the first defendant and his brother got Exs.B1 to B3 executed by Aziz and in view of Ex.B7 and notice PW.1 had attorned as tenant and his brother and ultimately while answering issue nos. 5 and 7 at para nos. 28 and 29 came to the conclusion that the plaintiff is not entitled for the relief as prayed and dismissed the suit with costs. 9. Aggrieved by the same, the matter was carried by way of appeal in AS.No. 146 of 1992. The appellate court at para no.9 formulated the following point for consideration: 1. Whether the finding of the lower court that the suit agreement for sale Ex.A1 dated 8-9-1980 is not true and that the plaintiff is not entitled for the relief of specific performance of the suit agreement as prayed for, is erroneous and if so, whether the same is liable to be interfered with ? 2. Whether the finding of the lower court that the suit agreement dated 8-9-1980 is a forged one is erroneous and if so, whether the same is liable to be interfered with ? 3. Whether the finding of the lower court that the first defendant and his brother got absolute rights in the plaint schedule property under Ex.B4 gift deed dated 31- 3-1980 executed by Aziz is erroneous and if so, whether the same is liable to be interfered with? 4. Whether the finding of the lower court that the plaintiff has attorned as a tenant of first defendant and his brother is erroneous and if so, whether the same is liable to be interfered with ? 5. To what relief ? 10. The appellate court while answering on point Nos. 1 and 2 re-appreciated the oral and documentary evidence available on record and recorded findings at para nos. 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 and came to the conclusion that Ex.A1 is not true and the plaintiff is not entitled to the relief of specific performance and the suit agreement is forged one and accordingly the findings of the trial court had been confirmed. While answering point nos. 3 and 4, further findings had been recorded at para nos. 22, 23, 24, 25 and 26 and came to the conclusion that the findings of the trial court are to be confirmed in this regard also and accordingly the said findings had been confirmed. While answering point no.5 at para no.27 the appellate court came to the conclusion that the appeal is devoid of merit and accordingly the same was dismissed with costs. 11. Aggrieved by the same, the present second appeal had been filed. This Court had carefully gone through the substantial questions of law on the strength of which the second appeal had been admitted and also the findings recorded by the trial court and the appellate court as well and this Court is thoroughly satisfied that these are concurrently factual findings recorded by both the courts below and hence such findings normally cannot be disturbed in the second appeal. Even other wise, the second appeal was dismissed for default as against respondent No.2 and even on this ground, the second appeal is bound to fail. Hence viewed from any angle, this court is thoroughly satisfied that the substantial questions of law had been pointed out on the strength of which the second appeal had been admitted not being the substantial questions of law. These questions being only in relation to factual findings. In the light of the concurrent findings recorded by both the courts below, this court is not inclined to interfere with the said findings and the said findings are hereby confirmed. The second appeal shall stand dismissed. However, in the peculiar facts and circumstances, let the parties bear their own costs, as far as this second appeal is concerned. __________________________ JUSTICE P. S. NARAYANA. 09-06-2010. I s L THE HONOURABLE SRI JUSTICE P.S. NARAYANA SECOND APPEAL No. 4 1 6 of 1999 Circulation Entry No. 3 5 Date: 09-06-2010 Computer No. 43 Court Master: I s L