IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA SECOND APPEAL No.1415 of 2004 Between: Nirmala Residential Aided High School, Ashramam Street, Alcot gardens, Rajahmundry, East Godavari District, rep. by its Correspondent K.V. Ratnam and another ..... APPELLANTS AND V. Lakshmi Kantham and others ..... RESPONDENTS JUDGMENT: On 16-11-2004 this court made the following order: “Having regard to substantial question of law “Whether the Courts below are right in decreeing the suit when the document (will) under which the plaintiff claims her right is not proved at all and in the absence of complying the mandatory provisions of Section 68 and 69 of the Indian Evidence Act”. Admit”. 2. This Court in C.M.P.No.12935 of 2004 granted interim stay on the said date i.e., 16-11-2004. Sri TVS Prabhakar Rao, learned counsel representing the appellants had taken this Court through the respective pleadings of the parties and the evidence available on record and the findings recorded by both the Courts of first instance and also the appellate Court and would maintain that no acceptable evidence in proof of the document in question had been placed before this Court and hence, the findings recorded by both the Courts below cannot be sustained. The learned counsel also would maintain that in the light of the same the Second Appeal to be allowed. 3. Per contra Sri E.V.S. Ravi Kumar, learned counsel representing the contesting respondents would maintain that both the Courts below had appreciated the oral and documentary evidence available on record and arrived at the correct conclusion and hence, in Second Appeal it is not a fit matter to be interfered with especially in the light of the ambit of Section 100 of the Code of Civil Procedure. 4. Heard the learned counsel on record. 5. The substantial question of law on the strength of which the Second Appeal had been admitted already had been referred to supra. For the purpose of convenience the parties hereinafter would be referred to as plaintiff and defendants as shown in O.S.No.242 of 1990 on the file of the Additional Senior Civil Judge, Rajahmundry. 6. The un-successful defendants 1 and 2 are the appellants in the present Second Appeal. The first respondent is the plaintiff. Respondents 2 to 7 are the legatees of the original owner, bequeathed the property in favour of the first respondent. Though several grounds had been raised in paragraph Nos.1 to 16 of the grounds of Second Appeal and though several substantial questions of law, as such, have been specified in paragraph No.17, it is needless to say that this Court admitted the Second Appeal on the substantial questions of law which had been already referred to supra. 7. Ex.A-9 is the will. The principal contention which had been argued in elaboration is in relation to Ex.A-9 the registration extract of will executed by Smt.Gade Bhadrakali Rama Satyavathi, W/o.late Surya Prakasarao, dated 25-10-1976. 8. The plaintiff filed the suit for declaration of recovery of possession and past profits and future profits as well. It was pleaded in the plaint hereunder: The plaint schedule property originally belonged to one Chillara Adinarayanamma, wife of late Lakshminarayanarao and she died recently. During the life time of Adinarayanamma she agreed to sell the schedule property to one Gade Surya Prakasarao, son of Tirupathiraju under an agreement of sale dated 9.6.1962 for a consideration of Rs.6,000/- and an advance of Rs.1,000/- was paid under the agreement of sale and it is agreed that from the balance sale consideration a simple mortgage debt due to Mutha people has to be discharged in part. The two months time has been fixed for performance of the terms of the agreement of sale. The said Adinarayanamma agreed to negotiate with the mortgagee and on payment of Rs.5,000/- the schedule property will be released from the mortgage. The said Gade Surayaprakasarao during the lifetime and well within the due date made ready the balance consideration and demanded several times Adinarayanamma to make arrangements for payment of consideration so as to release the property from the mortgage. But somehow she could not persuade the mortgagee for release of the property and the allowed time to be passed on. She could not get ready to release the property from mortgage, as she could not make any adjustments with the mortgagee. Subsequently the schedule property was delivered to Gade Surayaprakasarao and he was to be in possession of the property under the agreement of the same. So Suryaprakasarao and his family came into possession of the property in the month of September, 1962 itself and continuing in possession of the same uninterruptedly. But he could not take a sale deed from Adinarayanamma as she could not make any settlement with mortgagee. While so, the mortgagee filed a suit in O.S.46 of 1965 on the file of the District Court, Rajahmundry for a preliminary decree against Chillara Adinarayanamma and others. In the said suit Gade Bhadrakali Rama Satyavathi, wife of Surya Prakasarao and her mother-in-law Gade Subbamma were added as parties as Suryaprakasarao died on 30.11.1983. A preliminary decree was passed in the said suit and subsequently a final decree was also passed in I.A.988/68 in O.S.46/65 on 20.12.1968. For the final decree proceedings late Bhadrakali Rama Satyavathi and her mother-in-law G. Subbamma were added as respondents 7 and 8. In pursuance of the said final decree the schedule property and some other property were brought to sale in E.P.26 of 1969 under two lots. Item No.1 of the E.P. schedule is the property covered under the plaint schedule and item No.2 is some other property. In pursuance of the said proceedings item No.1 was sold on 21.4.1976 in a court auction and one N.S.V.Hanumantharao became the highest bidder for a sum of Rs.14,600/- but sale was not confirmed as in the meanwhile the J.Drs therein filed a petition in E.A.219 of 76 in E.P.26 of 69 to set aside the sale on the ground that it was vitiated by material irregularity. On contest the petition was allowed on 5.6.1978 and sale was set aside. The auction purchaser got refund of amount deposited by him. Against the said orders of setting aside the sale the D.Hr 8th defendant herein preferred A.A.O.436 of 78 on the file of the High Court of Judicature, A.P. which was ultimately withdrawn as not pressed on 3.11.1978. During the entire course of proceedings, Bhadrakali Rama Satyavathi alone continued in possession and enjoyment of the schedule properties to the knowledge of one and all. During the lifetime of Bhadrakali Rama Satyavathi she leased out the said property to the first defendant and he is continuing as a lessee under Bhadrakali Rama Satyavathi and also Vamaraju Suryaprakasarao till his death and the plaintiff became the absolute owner of the said property. In the meanwhile Chillara Adinarayanamma for the reasons better known to her and though delay is there on her part in not settling the mortgage amount and get the property released from the mortgage filed a speculative suit in O.S.652/75 on the file of the I Additional District Munsif Court, Rajahmundry for possession of schedule property on the alleged ground that the agreement was cancelled. Bhadrakali Rama Satyavathi contested the said suit and ultimately Adinarayanamma could not succeed in the said suit and that she could not establish in any manner that the agreement has been cancelled for the fault of the plaintiff’s predecessors. So she has to withdraw the suit on 18.12.1978 and it was allowed to be dismissed for default on that day. The dismissal of the said suit filed by the original owner Chillara Adinarayanamma amounted to confirmation of the validity of the agreement of sale in favour of and continuous possession and enjoyment of the schedule property by Gade Suryaprakasarao and his successors in interest including the plaintiff herein. It amounted to open assertion of title in the schedule property by the successor of Suryaprakasarao. The possession of Suryaprakasarao’s successors thus again asserted and confirmed and they continued in possession of the same. During the course of these events, Suryaprakasarao died and his wife Bhadrakali Rama Satyavathi and his mother Subbamma succeeded to the estate of late Suryaprakasarao, which includes the plaint schedule property. In an arrangement between Bhadrakali Rama Satyavathi and Subbamma’s daughter Manapragada Seetharamma, Setharamma relinquished her rights in the schedule property and other properties of late Gade Suryaprakasarao and they were given over to Bhadrakali Rama Satyavathi. Thus Bhadrakali Rama Satyavathi became exclusive owner of all the properties of late Suryaprakasarao, which includes the plaint schedule property. While continuing in possession of plaint schedule property and other properties Bhadrakali Rama Satyavathi during her life time in a sound and disposing state of mind executed a registered will dated 25.10.1976 bequeathing all her properties including the plaint schedule property to her relation Vamaraju Suryaprakasarao. He came into possession of the property on the death of Bhadrakali Rama Satyavathi in the year 1981 i.e. on 6.8.1981 and enjoyed the same during his life time and he also died leaving behind him his wife, the plaintiff herein as the only next and nearest class I heir under the provisions of Hindu Succession Act of 1956. Vamaraju Suryaprakasarao’s brother’s sons fabricated a will alleged to have been executed by Suryaprakasarao during his life time made claims to certain properties belonging to V.Suryaprakasarao and situated at Penumalle(V) as they were bequeathed to them under the said fabricated will. They illegally trespassed into the properties situated at Penumalle and squatting on the same. So the plaintiff has to file a suit in O.S.119 of 1989 on the file of the Subordinate Judge Court, Amalapuram for declaration of her title and for possession of the properties. As the will is fabricated and as they are not fully aware of the properties of late Suryaprakasarao they did not make a mention of the schedule property in the said will which is questioned in the suit on the file of the Subordinate Judge Court, Amalapuram and so the schedule property devolved on the plaintiff under Hindu Succession Act of 1956. The 1st defendant is continuing in the premises as lessee of the plaintiff and her predecessors in title. But since some time past as the plaintiff lost her husband and as she is residing in a remote village the 1st defendant willfully failed to pay the rents regularly and he became a chronic defaulter. Then the plaintiff got issued a registered notice on 23.07.1990 to the first defendant demanding payment of rents due and also demanded for vacation of the premises and the first defendant received the same and got issued a reply though his advocate on 2.8.1990 seeking some time to issue a reply even without denying the lease if it is a fact. But subsequently the 1st defendant colluded with the 2nd defendant who is no other than fostered mother of the 1st defendant’s manager. They both in collusion with defendants 3 to 7 falsely and maliciously woven a story to the effect that the property belongs to late Chillara Adinarayanamma and that she executed an agreement in favour of late Gade Suryaprakasarao and subsequently the agreement was cancelled in or about November, 1978 and that subsequently the said Chillara Adinarayanamma executed an agreement of sale in favour of 2nd defendant on 6.10.1978 and that the 2nd defendant was put in possession of the property etc. All the said allegations are false to the knowledge of defendants 1 to 7. There is no cancellation of agreement in favour of Gade Suryaprakasarao the predecessor of the plaintiff herein and there is no agreement in favour of 2nd defendant by Chillara Adinarayanamma. The possession of the property was not delivered by either Gade Suryaprakasarao or his wife Bhadrakali Rama Satyavathi. There is no necessity for such a cancellation and they continued in possession of property and the 1st defendant continued to be a lessee under the predecessors of the plaintiff and after their death the plaintiff herein. The so called agreement was set up to defeat and delay the legitimate claims of the plaintiff in the schedule property. The plaintiff and her predecessor in title became absolute owners of the property. The agreement in favour of the plaintiff’s predecessor was executed on 9.6.1962 and shortly thereafter somewhere in the month of September 1962 the possession of the property was delivered to Gade Suryaprakasarao. Since then Gade Suryaprakasarao continued in possession of the property under the terms of agreement of sale with the benefits of Section 53-A of Transfer of Property Act. The sale deed could not be taken because of the delay and latches on the part of Chilla Adinarayanamma inspite of the fact that the plaintiff’s predecessor Gade Suryaprakasarao and after his death Bhadrakali Rama Satyavathi were always ready and willing to perform their part of the contract in taking the sale deed after it was released from the mortgage. The original vendor could not get the property released from the mortgage inspite of repeated requests from the predecessors of the plaintiff. The plaintiff also learnt that Adinarayanamma subsequently received the amount of Rs.5,000/- promising to get the property released from mortgage and executed a registered sale deed in favour of Bhadrakali Rama Satyavathi. By virtue of terms of agreement of sale in his favour he continued to be in possession of the sale till his death and after his death his wife Bhadrakali Rama Satyavathi succeeded to the same and she continued in possession of the same till her death and after her death the plaintiff’s husband came into possession of the same and enjoyed the property during his life time and on the death of plaintiff’s husband the plaintiff came into possession of the same and enjoying the same. In any way the continuous possession and enjoyment of Gade Suryaprakasarao and Bhadrakali Rama Satyavathi itself is sufficient to get an absolute title in the schedule property by virtue of their long, open, uninterrupted possession and enjoyment of the schedule property by them or the title of the plaintiff and her predecessors have been perfected by adverse possession and prescription and their possession was also protected by provisions of Section 53-A of Transfer of property Act. In that way also the vendor cannot claim back the possession of the property and the theory set up in the registered notice to the effect that Adinarayanamma got back possession is patently false and it is only made to set up a false case and false defence against the claim of the plaintiff. Viewed in any angle the defence set up by the defendants 1 and 2 is false and frivolous and it has no legs to stand. Any agreement said to have been executed by Chillara Adinarayanamma subsequently in favour of 2nd defendant is void document and it has no legs to stand and it is not binding on the plaintiff and no rights were accrued to the 2nd defendant under and by virtue of the said alleged agreement of sale. Subsequently after receipt of the reply notice the plaintiff got issued another reply stating the things straight and asserting the true and correct position of facts. The said reply was given to defendants 1 and 2 on 2.10.1990 and it was duly acknowledged. A further reply was given by defendants 1 and 2 on 6.10.1990 with the self same false allegations. The rejection of plaintiff’s claim for possession and rents by defendants 1 and 2 is patently false and untenable. They are in a way denying the title of the plaintiff. So the plaintiff is constrained to file this suit for declaration of her title in the schedule property and for possession of the same after ejecting the defendants 1 and 2 there from. Defendants 3 to 7 were added as they are stated to be the only L.Rs of late Chillara Adinarayanamma who is the original owner and who executed the agreement of sale in favour of late Gade Suryaprakasarao in the year 1962 and who is said to have been received the balance of consideration also with a promise to get the property released from mortgage for effective adjudication of the dispute. As the defendant No.8 was the mortgagee, he was added as a party to the suit. 9. Defendants 1 and 2 filed written statement. Defendant No.3 also filed a separate written statement. Defendant No.7 adopted the written statement of defendant No.3. Defendant No.8 filed separate written statement. The other defendants remained exparte. The learned counsel of defendant No.8 reported no instructions and defendant No.8 set exparte. 10. The allegations made in the written statement of defendant Nos.1 and 2 are as hereunder: The plaint schedule property originally belonged to one Chillara Audinarayanamma. Defendants 1 and 2 only knew that Bhadrakali Rama Satyavathi got an agreement of sale from the said Adhinarayanamma and took possession of the plaint schedule site. Later the said Rama Satyavathi gave the schedule property on lease to the 1st defendant institution for which K. Suryarao was the then manager. While the plaint schedule site was in the possession of the 1st defendant, the original owner of the property viz. Chillara Audinarayanamm filed a suit in O.S.No.652 of 1975 on the file of the District Munsif’s Court, Rajahmundry for possession of the property. While the said suit is pending, Bhadrakali Rama Satyavathi’s life became miserable and she could not make her both ends meet. Thereupon the said Satyavathi lived in her brother’s place at Chagallu and fell sick there while staying with her brother. During that period, the brother of Bhadrakali Satyavathi viz. one Ch. Ramarao used to collect rents from the 1st defendant’s institution till the end of April, 1978. Later when the financial condition of Bhadrakali Rama Satyavathi became more miserable and also when her health condition deteriorated, the original owner Chillara Adhinarayanamma and Bhadrakali Rama Satyavathi adjusted their dispute in O.S.No.652/75 inter se in or about the month of October or November 1978 and got an agreement executed in favour of Rama Satyavathi cancelled. Thereupon the said Rama Satyavathi agreed to re-deliver the possession of the schedule property to the original owner – Adhinarayanamma and at the instance of either parties, the 1st defendant institution delivered possession of the schedule property to the original owner Adhinarayanamma. Thus the original owner Adhinarayanamma could get back the possession of the schedule property and from that time onwards Bhadrakali Rama Satyavathi’s interest in the schedule property ceased. The 1st defendant institution also ceased to be a tenant in respect of the schedule property under Bhadrakali Rama Satyavathi since the date of the said settlement. In view of the above said adjustment of the dispute, the parties to O.S.652/75 allowed the suit to be dismissed for default. The dismissal of the suit O.S.No.652/75 confers title over Bhadrakali Rama Satyavathi is against the principles of law and it is untenable. Subsequent to the above said transaction, the original owner Chillara Adhinarayanamma agreed to sell an extent of about 1000 square yards of site including the plaint schedule site to the second defendant for a sum of Rs.50,500/-. In fact, the said Adhinarayanamma executed an agreement of sale, dated 6.10.1979 in favour of the second defendant agreeing to sell the property to her and put the second defendant in possession of the property. The second defendant from time to time made payments to the original owner-Adhinarayanamma and also paid the entire sale consideration to her. Thus, the 2nd defendant came into possession of the schedule property under an agreement of sale, dated 6.10.1979. After coming into possession of the property, the 2nd defendant permitted the 1st defendant institution to occupy the entire property covered by the agreement of sale, including the plaint schedule site. Thus, the 1st defendant came into possession of the property and is in possession of the property as such from that date till today, but not as a tenant under Bhadrakali Rama Satyavathi as alleged in the plaint. Defendants 1 and 2 do not admit the allegation that Bhadrakali Rama Satyavathi and her mother-in-law succeeded to the schedule property from Suryaprakasarao. D1 and D2 also do not admit the allegation that there was an arrangement between Rama Satyavathi and Subbamma’s daughter Seetharamam and that Rama Satyavathi became the absolute owner of the property in pursuance of such an alleged arrangement. Defendants 1 and 2 also do not admit the truth and validity of the will said to have been executed by Rama Satyavathi on 25.10.1976. The plaintiff must strictly prove the truth or otherwise of the said will. Defendants 1 and 2 do not admit that the plaintiff is the heir of Vamaraju Suryaprakasarao. D1 and D2 are not aware of the litigation said to have been initiated by the brothers of Vamaraju Suryaprakasarao against the plaintiff on the file of Sub Court, Amalapuram. It is incorrect to state that the 1st defendant willfully failed to pay rents and became a chronic defaulter. In view of the fact stated in the preceding paragraphs, the 1st defendant is no longer a tenant in the schedule property and therefore the question of default does not arise. There is no obligation on the part of the 1st defendant to pay rents either to the plaintiff or her husband at any point of time. It is true that there was exchange of notices between the plaintiff and the defendants 1 and 2. Defendants 1 and 2 gave suitable replies from time to time with true and correct facts. It is also not permissible under law to contend that the plaintiff has perfected her title on the ground of adverse possession, as the same is contrary to her own pleadings in the preceding paragraphs. The plaintiff is not entitled for the relief of declaration. It is incorrect to state that the agreement executed by Chillara Adhinarayanamma in favour of the 2nd defendant is invalid. The said agreement is true, valid and binding on all persons including the plaintiff. The plaintiff is not entitled for either the relief of declaration or the relief of possession from D-1 and D-2. The plaintiff is also not entitled for profits -- either past or future. Even as per the pleadings of the plaintiff, the alleged lease of the plaintiff is not validly terminated and the suit is liable to be dismissed in limine against the first defendant on that ground so far as the relief of possession is concerned. 11. The third defendant filed written statement with the following averments: The 3rd defendant is aware of the agreement of sale entered by his mother with late Gadi Suryaprakasarao in the year 1962 for an amount of Rs.6,000/-. At the time of agreement of sale, late Suryaprakasarao paid an advance of Rs.1,000/- and agreed to obtain a regular sale deed within two months after paying the balance sale consideration of Rs.5,000/-. As Sri late Surya Prakasarao could not obtain a regular sale deed by raising the balance sale consideration of Rs.5,000/- nor deposit the same to the credit of the suit O.S.No.46/65 on the file of the 1st Additional District Court, Rajahmundry within in the stipulated time of two months the said agreement was stand cancelled. At that time the 3rd defendant’s mother late Adinarayanamma was not in a position to return advance amount received by her from Surya Prakasarao. Then late B.V.Subbarao, Advocate who was the counsel for late Adinarayanamma and maternal uncle of Sri late Surya Prakasarao prevailed upon Adinarayanamma and her sons to deliver the schedule property to late Surya Prakasarao so that late Surya Prakasarao can lease out premises and appropriate the rents towards discharge of the advance and interest thereof and re-deliver the same after discharge. Thus Suryaprakasarao and his family got into possession of the property. After the death of late Surya Prakasarao, his wife late Bhadrakali Rama Satyavathi who is in possession of the property even after