IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTEENTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.856 of 1993 Between: Arli Dandasi ..... APPELLANT AND Badumsetti Ramanayya and others ..... RESPONDENTS JUDGMENT: The unsuccessful plaintiff in O.S.No.106 of 1991 on the file of the Additional Subordinate Judge, Srikakulam had preferred this appeal. 2. The first respondent is the defendant in the said suit. The respondent Nos.2 to 5 were impleaded in the present appeal as per Court order dated 17-07-2007 in A.S.M.P.No.1965 of 2006. 3. The appellant – plaintiff filed the suit praying for the relief of permanent injunction. The learned Additional Subordinate Judge, Srikakulam after settling the issues in the light of the respective pleadings of the parties, having examined PWs.1 to 5 and DWs.1 and 2 and having marked Exs.A-1 and A-2 and Exs.B-1 and B-2 and Exs.X1 to X-4, after recording reasons came to the conclusion that the plaintiff is not entitled to the relief as prayed for and accordingly, the suit was dismissed without costs. Aggrieved by the same, the present appeal was preferred. 4. Sri D. Ramalingaswamy, learned counsel representing the appellant – plaintiff would maintain that it is not in serious controversy that Seethamma was the lawful owner of the plaint schedule property and she was in possession and enjoyment of the said property till she died in the year 1983. The learned counsel also would maintain that she is the only natural heir being the daughter of Seethamma and as per the provisions of the Hindu Succession Act she being the only heir is entitled to succeed to the plaint schedule property. The learned counsel also explained the relationship of the parties and further would maintain that atleast there is some evidence. The oral evidence adduced on behalf of the plaintiff to prove the factum of possession and apart from the evidence of DW-1 except the interested testimony of DW- 2 there is no evidence available on record and even though the evidence of DW-2 is to be taken into consideration in the light of the several of the suspicious circumstances it cannot be said that Ex.B-1 was duly proved. When that being so to record a finding that Ex.B-1 is valid and to further record a finding that the defendant has been in possession of the property in question cannot be sustained. 5. The learned counsel while further elaborating the submissions pointed out the under noted suspicious circumstances surrounding the will: 1. There is no need to execute a will on any stamp papers. 2. In this case, there is the unimpeachable evidence of PW-2 the stamp vendor corroborated by the various entries made in the register of stamps sold which is maintained by him as per the statutory rules and requirements. His evidence clearly shows, that the entries made in the stamp-papers by the stamp vendor were tampered with, and were forged, obviously to give a colouring that the will was executed on 13-10- 1981, before the death of Sithamma. 3. The evidence of PW-2 and Exs.X1 to X4 will clearly establish the effect that even by the end of December, 1981, he sold stamp papers only up to serial No.5861 and that therefore, the purchase of the stamps bearing serial Nos.1750 and 1751 on 13-10-1981 is absolutely false. 4. His evidence stands unchallenged that he did not put the date 13-10-1981 on those papers and he could not have sold those stamps on 13-10-1981. 5. He categorically deposed with reference to the register, that a stamp paper worth Rs.30/- was sold on 18-6-81 by him under the serial No.3814, and that he never sold any stamp paper worth Rs.2/- containing the serial No.3814 which is page No.2 of the will. Thus, it is obvious, that some stamp paper purchased from some one was utilized as one of the papers of this will by making forged entries beneath the stamp as if those entries were made by PW-2. 6. In the above circumstances, it is clear, that the entries on the stamp papers made by stamp vendors were tampered with, and that by making some forgeries, such forged stamp papers were used instead of using white papers; if creates a reasonable suspicion in the mind of any judge about the truth and genuineness of the will. 6. The learned counsel also would maintain that in the light of the facts and circumstances, it is clear that Ex.B-1 was brought into existence for the purpose of establishing the rights of the natural heir of Seethamma and hence, in the facts and circumstances of the case the findings recorded by the trial Court to be set aside and the appeal to be allowed. 7. Per contra Sri A. Rama Rao, learned counsel representing the first respondent would maintain that since a small portion of the property had been acquired and to prevent the payment of compensation to the lawful owner the defendant i.e., the first respondent in the appeal an application ASMP No.1965 of 2006 was filed and thus, R-2 to R-5, the District Collector, the Special Deputy Collector, the Revenue Divisional Officer and the Mandal Revenue Officer, Srikakulam District were brought on record. 8. The learned counsel would submit that in the light of the oral evidence available on record and also the admissions made by PW-1 should be taken into consideration, the findings recorded by the trial court relating to factum of possession under no disturbance and this being a mere suit for injunction the said findings are to be confirmed and the appeal to be dismissed. 9. While further elaborating his submissions the learned counsel also pointed out to the relationship between the parties and the circumstances under which the said Seethamma executed Ex.B-1 and this being natural especially in the light of the clear evidence of DW-2 it is to be taken that Ex.B-1 was duly proved. 10. The learned counsel would submit that though certain other witnesses were present at the time of Ex.B-1 they were not examined but one such witnesses had given a notarized affidavit in I.A.No.489 of 1992 in O.S.No.106 of 1991 and this aspect also would probablize the stand taken by the first respondent – defendant. The learned counsel also had taken this court through the oral evidence and would maintain that the evidence of PWs.3 to 5 cannot be able to believe since because of the disputes they deposed and on the strength of the oral evidence especially in the light of the admissions made by PW-1 a finding cannot be recorded that plaintiff has been in possession of the property and hence, the dismissal of the suit for injunction is well justified. 11. Heard the learned counsel on record, perused the oral and documentary evidence available on record and the findings recorded by the learned Additional Subordinate Judge, Srikakulam in O.S.No.106 of 1991. 12. In the light of the submissions made by the learned counsel representing the parties the following points arise for consideration in this appeal: 1. Whether the findings recorded by the trial Court relating to factum of possession be confirmed or to be disturbed in the facts and circumstances of the case ? 2. Whether the findings recorded by the trial Court in relation to validity of Ex.B-1 to be confirmed or to be disturbed in the facts and circumstances of the case ? 3. If so, to what relief the parties would be entitled to ? 13. POINT Nos.1 and 2:- For the purpose of convenience these points are being discussed together. The parties hereinafter will be referred as plaintiff and defendant as shown in O.S.No.106 of 1991 on the file of the Additional Subordinate Judge, Srikakulam. 14. The suit is filed by the plaintiff for the relief of permanent injunction. It was pleaded in the plaint that one Badumsetti Karrenna @ Thavudu had two wives. He had two sons Ramanujulu and Jaddonna @ Ramayya and one daughter Thiddimi Paramma wife of Bariki, through his first wife Thavitamma and through his second wife Seethamma. The said Karrenna had one daughter Arli Dandasi, the plaintiff herein. Karrenna and his two sons partitioned their properties in the year 1966 and in that partition plaint A to C schedule lands and D schedule house fell to the share of the said Karrenna and from the date of partition Karrenna was enjoying the same exclusively. Badumsetti Ramanujulu has two sons Badumsetti Ramanayya who is defendant herein and Badumsetti Apparao. Badumsetti Jaddenna @ Ramayya died without issues. The said Badumsetti Karrenna had executed a registered settlement deed dated 18-7-1971 in favour of second wife Seethamma in respect of plaint schedule properties, and since then she is in possession and enjoyment of those properties. Badumsetti Karrenna predeceased his second wife Seethamma. Seethamma died intestate in the year 1983 leaving behind her only daughter the plaintiff. After death of Seethamma the plaint schedule properties devolved on the plaintiff as she is only heir, under Section 15 (1)(a) of the Hindu Succession Act, 1956. From the date of death of Seethamma, the plaintiff is in peaceful possession and enjoyment of the plaint schedule properties. The daughter of plaintiff Varalakshmi was given in marriage to Badumsetti Appa Rao, younger brother of the defendant. The defendant is insisting the plaintiff, to execute a settlement deed in respect of the plaint schedule properties in his favour and in favour of his brother Appa Rao, as the plaintiff had no sons but the plaintiff refused to do so. At the instance of defendant, his brother Appa Rao discarded his wife Varalaxmi since three years and the said Varalaxmi is now residing with the plaintiff. The defendant openly proclaiming in the village that he would forcibly occupy the plaint schedule properties. 15. The defendant filed written statement with the following averments: It is not in controversy that Badumsetti Seethamma got the properties under settlement deed and ever since she had been in possession and enjoyment of the same. It is further averred that she executed an unregistered will dated 13-10-1981. Seethamma was a sickly woman and suffering from cancer and it was prolonged, during which time her grand son Ramanayya and his wife Saraswathamma served her and also incurred expenditure over the lady, and hence she executed her last will and testament on 13-10-1981. As per the will the suit schedule properties were bequeathed to her grand son with absolute rights. It is not correct to state that Seethamma died intestate. The defendant has been in peaceful possession and enjoyment of the schedule properties since the time of death of Seethamma. The said Seethamma executed the will in sound and disposing state of mind. The plaintiff has no claim whatsoever against those properties of Seethamma. 16. A rejoinder was filed. It was stated in the rejoinder that the defendant filed will dated 13-10-1981 with a petition to keep the same in a sealed cover, till the commencement of the suit. The alleged will said to have been executed by Badumsetti Seethamma is a rank forgery and concocted on three non-judicial stamps. First page of the non-judicial stamp worth Rs.10/- bearing serial No.10750, and 2nd page of the stamp worth Rs.2/- bearing serial No.3814 and the third page of stamp bearing serial No.10751. The stamps shows that the names of the original purchaser were erased and the name of Seethamma was written. The defendant had secured the non-judicial stamps in the name of third person and erased the name and concocted the will. The defendant knowing fully aware that Badumsetti Seethamma has not executed any registered documents in favour of third parties and making sure of it, admitted thumb marks of Badumsetti Seethamma are not available for comparison forged the will. The defendant is not oldest son’s son of Badumseti Seethamma, she is second wife of late Karrenna and the plaintiff is the only issue through Seethamma. The first wife of Badumsetti Karrenna was Tavithamma, she had two sons and two daughters through him. Hence, the contention of the defendant that he is oldest sons’ son of Badumsetti Seethamma is false and he is the son of stepson of Badumsetti Seethamma i.e., he is the oldest son of Badumsetti Ramanujulu. 17. On the strength of these pleadings before the trial Court the following issues were settled: 1. Whether the alleged will dated 13-10-81 said to have executed by Budamsetti Seethamma, W/o.Karrenna @ Thavudu in favour of Ramanayya is true, valid and binding on the plaintiff ? 2. Whether the plaintiff is entitled to the permanent injunction as prayed for ? 3. To what relief ? 18. On behalf of the plaintiff PWs.1 to 5 were examined and Ex.A-1 genealogy of Budamsetti Karrenna @ Thavudu dated 24- 11-91 and Ex.A-2 Registration extract of settlement deed for Rs.20,000/- in favour of B. Seethamma by her husband Budamsetti Karrenna dated 18-07-1971 had been filed. As against this evidence the evidence of DWs.1 and 2 is available on record and Ex.B-1 the un-registered will executed by Budamsetti Seethamma in favour of defendant, dated 13-10-1981 and Ex.B-2 voters list of Noradi village of Kotturu Assembly segment had been marked. Exs.X-1 page No.2 in the N.J. Stamps sales register, Ex.X-2 page No.285 in the N.J. stamps sales register, Ex.X-3 certificate of the Sub-Register, Pathapatnam on page No.1 in the N.J. stamps sales register and Ex.X-4 page No.189 in the N.J. stamps sales register also had been marked. 19. The learned Judge appreciated the evidence of DWs.1 and 2 and relied upon the evidence of DW-2 and came to the conclusion that Ex.B-1 was duly proved and further recorded a finding that the plaintiff failed to establish her possession and ultimately the suit was dismissed. 20. It is pertinent to note that even after the death of Seethamma in pursuance of Ex.B-1 some mutation had been done and entries had been made. To evidence the same no acceptable evidence, as such, had been placed by the contesting defendant. Apart from this aspect of the matter the evidence of PW-2 is available on record and Exs.X-1 to X-4 also had been strongly relied on to show that the finding recorded relating to the validity of Ex.B-1 cannot be sustained. 21. Yet another strong reliance had been put-forth that even as per the admitted relationship, the plaintiff being the only natural daughter of the deceased Seethamma, a total exclusion of the natural heir i.e., the only daughter also is suspicious. Several other suspicious circumstances had been pointed out and certain further submissions had been made that atleast the oral evidence of PWs.3 and 5 are available on the factum of possession of plaintiff whereas such evidence also had not been thought of on behalf of the contesting defendant. 22. No doubt, the notarized affidavit sworn to by one of the alleged attestors apart from DW-2 had been placed before this Court which was filed in I.A.No.489 of 1992 in O.S.No.106 of 1991 aforesaid. It is needless to say that this affidavit filed is of no consequence and the same would not come to the aid of the contesting defendant in any manner whatsoever. The details of the oral evidence and the relevant portion pointed out by the respective counsel need not be dealt with in elaboration for the reason that this is a simple suit for permanent injunction and the principal question to be decided is the factum of question though incidentally the title can be gone into. In the light of the facts and circumstances, and also in the light of the unsatisfactory evidence which had been placed by both the parties this Court is of the considered opinion that instead of driving the plaintiff to yet another suit i.e., a comprehensive suit for declaration and consequential reliefs, it would be appropriate to remand the matter to the trial Court directing the parties to maintain status quo obtaining as on today till the disposal of the suit afresh by the trial Court. 23. It is also made clear that the plaintiff has given liberty to file appropriate amendment application praying for appropriate reliefs so as to make the suit a comprehensive suit. It is needless to say that the defendant also is at liberty to contest the same in accordance with law by putting in appropriate additional pleadings, if the defendant is so advised. 24. POINT No.3:- In the result, subject to the observation of the maintenance of status quo by the parties till a decision is delivered by the trial Court and subject to the observations made above, the findings are hereby set aside and the matter is remanded to the trial Court to decide the matter afresh, in accordance with law at the earliest point of time this being an old suit. The parties should bear their own costs. ___________________ P.S. NARAYANA, J April 15, 2010. Pn THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.856 of 1993 April 15, 2010