*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + SECOND APPEAL No.531 of 1992 %21.01.2011 # Takkolu Sidda Reddy and others .. appellants. Vs. $Shaik Mahaboob Bi and others. ..Respondents. !Counsel for the appellants : Sri M.Surender Rao ^Counsel for the Respondents : Sri Rajasekhar <Gist : >Head Note: ?Cases Referred: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.531 of 1992 JUDGMENT: The appellants in the second appeal are the plaintiffs in O.S.No.308 of 1982 on the file of the III Additional District Munsif, Kadapa. One Malla Reddy, who figured as the 1st plaintiff in the suit, is the father of appellants 2 to 4 herein. Appellants 5 and 6 are other members of the joint family, headed by Malla Reddy. Respondent No.2 is the brother of the 1st respondent, and they are said to be moneylenders. The 3rd respondent is said to be a regular borrower from them. The suit was filed with a prayer to cancel the sale deed, dated 07.06.1969, and to declare that the appellants are the owners of the property. The relief in the form of perpetual injunction was also claimed. The case was that the suit schedule property of about Acs.14.00, was purchased by the appellants from one Mr.Boomi Reddy Nagi Reddy, through a sale deed, dated 28.08.1961. It was alleged that the 2nd plaintiff obtained non-encumbrance certificate for the land to obtain loan in the year 1982 by mortgaging the property, and it was mentioned in the certificate that the suit schedule property was sold by Malla Reddy on 07.06.1969, (Ex.A.12) in favour of respondents 1 and 2, for consideration. The suit was opposed by the respondents. They pleaded that Malla Reddy, being the Karta of the family, sold the land through Ex.A.12 and the suit was filed with a view to commit fraud on the respondents. They pleaded that the suit is barred by limitation and is defective for mis-joinder or non-joinder of proper parties. Through its judgment, dated 10.06.1987, the trial Court decreed the suit. The respondents filed A.S.No.130 of 1987 in the Court of II Additional District Judge, Kadapa. The appeal was allowed on 16.04.1992. Hence, this second appeal. Sri M.Surender Rao, learned counsel for the appellants, submits that the property was held by the joint family and at no point of time either Malla Reddy or the appellants herein have executed sale deeds in favour of respondents 1 and 2. He contends that the trial Court recorded a clear finding to the effect that Ex.A.12, equivalent to Ex.B.1 was not executed by Malla Reddy at all and that the lower Appellate Court committed error in reversing the judgment and decree passed by the trial Court. He submits that the lower appellate Court was mostly impressed by the question of limitation, and in a matter of this nature, it is the knowledge of the disputed sale deed, and not the date of execution, that becomes relevant. Learned counsel also submits that once the appellants, and in particular Malla Reddy- deceased 1st plaintiff denied the execution of Ex.A.12/B.1, burden rested upon respondents 1 and 2 to prove the execution thereof and they utterly failed in this regard. Other grounds are also urged by the learned counsel. Sri Rajasekhar, learned counsel for the respondents, on the other hand, submits that except stating that Malla Reddy did not execute the sale deed, the appellants did not adduce any evidence to substantiate their contention. He contends that no efforts were made to secure the undisputed signatures or thumb impressions of Malla Reddy for comparison, with those pertaining to Ex.A.12. Learned counsel further submits that the evidence on record clearly disclosed that the property was being enjoined, since the date of Ex.A.12 by the respondents 1 and 2 and it has been leased in favour of the 3rd respondent for quite some time. He contends that the suit was hopelessly barred by limitation and it was purely speculative in nature. The principal relief claimed in the suit was the one, for cancellation of Ex.A.12. Though the relief of declaration of title was also claimed, it was purely dependent upon the truth or otherwise of Ex.A.12. If Ex.A.12 were to have been cancelled, the title would automatically have reverted to the appellants. On the other hand, if Ex.A.12 is not cancelled, there is no question of declaring title in the appellants. The relief of perpetual injunction was almost consequential, since the dispute as to title is very much under adjudication. Initially, the trial Court framed as many as seven issues. However, they have been re-cast into two issues. They are as under: i) “Whether the plaintiffs are entitled for declaration of their title and for cancellation of sale deed, dated 07.06.1969 and whether the plaintiffs are entitled for a permanent injunction against the defendants as prayed for? and ii) Whether the suit is barred by limitation?” To prove their case, the appellants examined PWs.1 to 5. However, Malla Reddy, who is said to have executed Ex.A.12, did not figure as a witness, since he died about two years after the suit was filed. Exs.A.1 to A.22 were filed. Those are in the form of land revenue receipts, encumbrance certificates, pattadar pass books, adangals etc. On behalf of the respondents, DWs.1 to 6 were examined and Exs.B.1 to B.7 were filed. The trial Court decreed the suit. The respondents filed A.S.No.130 of 1987. The lower Appellate Court framed the following two points for its consideration: i) “Whether Ex.B.1 – the sale deed dated 07.06.1969 said to have been executed by the 1st plaintiff - Takkolu Malla Reddy is true, valid and binding on the respondents-plaintiffs? and ii) Whether the respondents-plaintiffs have been in exclusive possession and enjoyment of the suit property?” It has reversed the judgment and decree passed by the trial Court. In view of the arguments advanced by the learned counsel for the parties, this Court is of the view that the following questions arise for consideration, namely 1. Whether the appellants were able to prove that Ex.A.12 was not executed by the 1st plaintiff-Malla Reddy? 2. Whether O.S.No.308 of 1982 was barred by limitation? Whether one goes by the principles underlying Section 101 or 102 of the Evidence Act, it is the appellants that were required to prove to the satisfaction of the Court, that Ex.A.12 was not executed by late Malla Reddy. Malla Reddy was alive for two years after the suit was filed. Ex.A.12 is a registered document. In addition to containing signatures, it would have the thumb impression of the executant also. Further, the office of the Sub-Registrar where the document was registered would maintain a record that would contain the signature and thumb impression of the document. The easiest way for the appellants to prove their case was to summon the record of the Sub-Registrar, pertaining to Ex.A.12 and to take necessary steps for comparison of the signature and thumb impression thereon, with the undisputed thumb impression and signature of Malla Reddy. In case it was not possible for them to take such steps during the lifetime of Malla Reddy, they could have obtained other records, which contained his signature. It is not as if Malla Reddy did not execute any document at all. The documentary evidence discloses that he filed declaration under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short ‘the Ceiling Act’) and an order passed therein was filed as Ex.A.20. The declaration signed by him would have been of much use. However, for reasons best known to them, no such steps were taken and there was no way that they could have claimed that Ex.A.12 was not executed by late Malla Reddy. The trial Court, however, had adopted a peculiar approach on this important aspect. It took note of the fact that no documents were placed before it to enable it to undertake comparison and still it has taken the view that Ex.B.1 was not executed by late Malla Reddy. The reason given by it proceeds as under: “Now the last point that arises before this Court whether the signature found in Ex.B.1 is the signature of first plaintiff. Admittedly no documents have been placed before this Court for comparison of the signature of first plaintiff from Ex.B.1 with any other comparative material. However, the first plaintiff signed in plaint at two places and the comparative study of the signature of first plaintiff from plaint and that of Ex.B.1 gives a slight ray of doubt over the authenticity of the first plaintiff’s signature because the characterisity in Ex.B.1 are free and the movement of hand writing is too faster than of signature in the plaint. The defendants have not taken any steps to send the signature of first plaintiff to any finger print expert in order to determine the genuiness of Ex.B.1’s signature. However this court is permitted to compare the signature of the first plaintiff with available material under Section 73 of Evidence Act and a close watch of the signature of first plaintiff signed in the plaint when compared to Ex.B.1 there is a lot of difference not only in regard to the movement but also to the very characteristics of each letter. There is no iota of evidence before this Court to substantiate that the defendants have ever enjoyed that suit lands till the disposal under Ex.B.1 in the year 1980. If the first plaintiff had really executed Ex.B.1 he would have not been dare enough to file a land ceiling declaration before Land Tribunal Officer and the Land Tribunal could not have issued Ex.A.17 and also no report could have been possible by the Deputy Tahasildar under Ex.A.20. This Court positively made every effort to discuss the evidence of plaintiffs and that of defendants and this court is of the opinion that Ex.B.1 is a void document and not acted upon the defendants did not have physical possession of the lands even by the date of Ex.B.1. Therefore, issues 1 and 2 are settled in favour of plaintiffs and against the defendants.” To say the least, the reasoning of the trial Court is perverse. It expected the defendants to do what the appellants were supposed to undertake. Even after taking note of the fact that comparable signatures of Malla Reddy were not placed before it, the trial Court has proceeded to undertake comparison. Worst part of it is that it has given margin for change of signatures and recorded a finding. When the principal question was about execution of Ex.B.1, it shifted the discussion to the possession and of filing of declaration under the Ceiling Act, to improbablise the execution of Ex.B.1. It is important to note here that respondents 1 and 2 filed O.S.No.283 of 1972 in the Court of Principal District Munsif, Kadapa, against the 3rd respondent, for recovery of lease amount in respect of the suit land for the years 1969 to 1972. The suit was decreed and the certified copy of the decree is filed as Ex.B.7. That clinchingly proves that the suit schedule property was in possession and enjoyment of respondents 1 and 2, ever since the date of Ex.B.1. This was not at all taken note of by the trial Court. The entries in the adangals for subsequent period were taken note of. The mere fact that late Malla Reddy filed a declaration under the Ceiling Act showing the property covered by Ex.B.1, does not make any difference, since the respondents were not parties to the said proceedings. Further, this is a case where the relief of declaration could not have been granted independent of the validity of Ex.B.1. As observed earlier, if the appellants have failed to prove that Ex.B.1 was not executed by late Malla Reddy, it is just impossible for them to get their title declared. The relief of injunction was equally unavailable to them in the light of the decree in Ex.B.7. The principle that once the possession over an item of immovable property is proved at a particular point of time, a presumption forward and backward needs to be drawn, unless the parties opposing such a plea are able to prove that the possession has changed in accordance with law gets attracted. Therefore, the first question is answered in the negative. The lower Appellate Court concentrated much on the question of limitation. The document is of the year 1969 and the suit was filed in the year 1982. The limitation prescribed under the Limitation Act for filing of suits for cancellation of documents is three years. However, the reckoning of limitation must be from the date of knowledge of the document and not from the date of execution. If it is to be calculated from the date of execution alone, many a time it would amount to begging the question. The party, who is not aware of a document, cannot be expected to have knowledge of the same from the date of execution. It is only when he becomes aware of the document that he can be expected to take steps. Therefore, the plea of the appellants that they came to know about Ex.B.1 on 20.06.1981, when the encumbrance certificate, marked as Ex.A.11, was obtained, needs to be taken into account. If the period of limitation is calculated from that date, the suit is filed within limitation. Though this question answered in favour of the appellants, no relief is granted to them. Hence, the second appeal is dismissed. There shall be no order as costs. _____________________ L. NARASIMHA REDDY, J. Dt.21.01.2011. Note: L.R. copy to be marked. GJ