* THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR + APPEAL SUIT No.322 of 2003 % Dated 20.08.2010 # Pyla Demudamma W/o Sanyasi Rao, R/o. Tanam Village, Paravada Mandal, Visakhapatnam District. …APPELLANT VERSUS $ Cheepurupalli Moogulu (died) per LRs. …RESPONDENT ! Counsel for the Appellant: MR. K.V. SATYANARAYANA ^ Counsel for the Respondents: MR. VIDYA PRASAD <GIST: >HEAD NOTE: ? Cases referred 1. 2000 (5) SUPREME 425 2. AIR 1978 NOC 289 (MAD) 3. AIR 1974 MP 75 4. AIR 1958 AP 611 5. 2002 (5) ALT 370 (D.B.) 6. AIR 1958 SC 886 7. AIR 1964 SC 538 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR APPEAL SUIT No.322 of 2003 BETWEEN Pyla Demudamma. ... APPELLANT AND Cheepurupalli Moogulu (died) per LRs. ...RESPONDENTS Counsel for the Appellants: MR. K.V. SATYANARAYANA Counsel for the Respondent: MR. VIDYA PRASAD The Court made the following order: JUDGMENT: This appeal is by the plaintiff against dismissal of her suit O.S.No.64 of 1998 for declaration of title with respect to A schedule properties and consequential relief of permanent injunction with respect to B schedule properties and for possession of C schedule properties. 2. The plaintiff is the daughter of the defendant. She filed the present suit on the basis of suit notice Ex.A1 = Ex.B15 dated 26.09.1998 and the reply thereto by the defendant under Ex.B17 = Ex.A3 dated 08.10.1998. The foundation of plaintiff’s case is that her mother – Chinna was the only daughter of one Pyla Chinna Musalayya alias Krishnamma, who died intestate about 30 years ago and plaintiff’s mother is his only daughter and legal heir. All the suit schedule properties except few items, which are claimed by the defendant, as his self-acquisitions are, admittedly, properties of Pyla Chinna Musalayya. In the suit notice Ex.A1 referred to above, the plaintiff had asserted the said relationship and under the reply notice Ex.B17 the defendant had disputed all other allegations except relationship. The suit, therefore, was laid by the plaintiff on the foundation that her status as the grand daughter of Pyla Chinna Musalayya was admitted by the defendant and she, further, claimed that her mother being the only heir of said Musalayya succeeded to his entire property described in the suit schedules and that she left a Will dated 06.10.1963 - Ex.A5 and thereunder all the properties of her mother are bequeathed to her. The plaintiff thereby sought exclusion of defendant, her father, from all the plaint schedules by seeking relief of declaration and possession with respect to A and C schedule properties and claiming that she is in possession of B schedule properties sought injunction against the defendant from interfering with her possession. 3. The said suit was resisted by the defendant by filing a written statement and in the forefront he admitted that while the plaintiff is his daughter, the rest of the allegations were denied. It was admitted that the plaint schedule properties originally belong to Musalayya, but the said Musalayya and his wife – Pyla Sannamma had no issues, therefore, he fostered the defendant, who is none other than own sister’s son of Musalayya. It is also alleged that the marriage of the defendant with one Pyla Chinna was also performed by Musalayya and that the plaintiff is the daughter born to the defendant and Chinna. It is stated that the wife of defendant died and thereafter the defendant married another woman by name – Chandramma also at the instance of Musalayya and gave birth to three sons and one daughter. He denied the plaint allegations that plaintiff has any right to A schedule properties and also denied that he is enjoying C schedule properties as licensee of plaintiff. Similarly, the rights claimed by the plaintiff over B schedule properties were also denied. The defendant also pleaded adverse possession by alleging that Musalayya himself handed over all the properties to him and since then, the defendant is continuously enjoying ownership rights and possession and is paying land revenue etc. over the schedule properties and perfected his title by adverse possession. He also alleged that plaintiff’s marriage was performed by defendant 40 years ago by giving all the customary gifts and the plaintiff is residing with her husband’s family and she has no right, title, interest or possession with respect to plaint schedule properties. He, therefore, claims to be a foster son of Musalayya having succeeded to his properties about 35 years ago since the death of Musalayya. He also specifically alleged that house property in A schedule and items 3 and 4 of A schedule are purchased by him under Ex.B43 and as such, they are his separate properties. The Will propounded by the plaintiff Ex.A5 dated 06.10.1963 was disputed as a forged and fabricated document by further alleging that the wife of the defendant and mother of plaintiff – Chinna died long prior to 1963 and as such, the question of her executing a Will does not arise. 4. On the aforesaid pleadings, the Court below framed issues as follows: 1. Whether the Will dated 06.10.63 alleged to be executed by the mother of the plaintiff is true, valid and binding on the defendant, and if so, whether the plaintiff is entitled for declaration of title over the plaint ‘A’ schedule property? 2. Whether the plaintiff got title to and possession over plaint ‘B’ schedule property? 3. Whether the defendant is in possession of plaint ‘C’ schedule property as licensee and if so, whether the plaintiff is entitled to recover possession of ‘C’ schedule property? 4. To what relief? 5. The trial Court examined plaintiff as P.W.1 and one of the attestors of Ex.A5 – Will as P.W.2. Exs.A1 to A14 were also marked on behalf of the plaintiff, which comprise of exchange of notices prior to suit; the Will – Ex.A5; the revenue entries; the title documents and certified copies of 10(1) accounts. The defendant examined himself as D.W.1 and D.Ws.2 to5 were examined in support of his case apart from marking Exs.B1 to B46. The important documents marked by the defendant are: Ex.B1 - death extract of Chipurupalli Sannamma alias Chinna – mother of plaintiff; Ex.B2 - death extract of Pyla Sannamma – wife of Musalayya and Ex.B3 is the death extract of Musalayya. The other documents comprise of 10(1) accounts of lands in different villages, which are in the plaint schedule and the house tax receipts and land revenue receipts relating to house properties therein in addition to registered sale deeds executed by third parties in favour of defendant – Ex.B43. 6. The trial Court decided issue No.1 against plaintiff by rejecting the Will propounded by her on the ground that it contains several suspicious circumstances and that the plaintiff as a propounder failed to remove the same. The trial Court also held that the plaintiff failed to prove that her mother is natural daughter of the deceased Musalayya. On issue No.2, the trial Court held that there is no evidence of plaintiff being in physical possession of B schedule properties and on issue No.3, it found that the plaintiff has no right to seek possession of C schedule properties from the defendant and consequently dismissed the suit. 7. In this appeal, Mr. K.V. Satyanarayana, learned counsel for the appellant, had made submission based on the documentary evidence alone. He had laid lot of emphasis on the admission of the defendant in the reply notice Ex.B17 wherein he accepted the relationship, as pleaded by the plaintiff viz. that plaintiff is the grand daughter of Musalayya. For the sake of convenience the relevant portion of translated copy of Ex.A1 is extracted hereunder together with reply of the defendant as contained in reply noticed Ex.B17: Ex.A1: “You are the father, “Chinna” is the mother Pyla Chinna Musalayya is the maternal grandfather of my client. The said Chinna Musalayya died intestate 30 years back, after his death, is only daughter “Chinna” because absolute owner of all his properties, under the Hindu Succession Act. Subsequent to the death of “Chinna” my client, Chinna’s daughter, because the absolute owner of the schedule properties under the Hindu Succession Act as well as will executed by Smt. Chinna.” Ex.B17: “Except the relationship, rest of the allegations in your notice are not true. They all not binding on my client. The allegations that are not denied in this notice cannot be treated as accepted from my client. My client’s father-in-law Pyla Chinna Musalayya during his life time settled all his properties in favour of my client. Subsequent to the death of Chinna Musalayya my client is in absolute possession and has been enjoying the same. Neither your client nor anybody else has any right to question my client regarding the above said properties.” Learned counsel, therefore, contended that D.W.1 in the cross- examination has admitted and stands by his statement in Ex.B17 extracted above. That part of the evidence, which is relied upon is as follows: “Pyla China Musalayya was resident of Tanam Village, China Musalayya brought up me according to me. China Musalayya has no children. I do not know whether the plaintiff in the notice issued by her stated that China Musalayya is her maternal grand father and Chinna is her mother. In Ex.B.17 I have admitted the relationship set out in Ex.B.15 which is equivalent to Ex.A.1. I have also stated in Ex.B.17 that Pyla China Musalayya is my father in law.” 8. Learned counsel has relied upon the provisions of Order XII Rule 6 of the Code of Civil Procedure, 1908 by contending the these admissions are sufficient to decree the suit and has relied upon the decision of the Honourable Supreme Court in UTTAM SINGH DUGAL & CO. LTD. v. UNION BANK OF INDIA[1], para 12 of the said decision is relied upon, which is as follows: “12. Learned Counsel for the appellant contended that Order XII Rule 6 comes under the heading ‘admissions’ and a judgment on admission could be given only after due opportunity to the other side to explain the admission, if any, made; that such admission should have been made only in the course of the pleadings or else the other side will not have an opportunity to explain such admission; that even though, the provisions reads that the Court may at any stage of the suit make such order as it thinks fit effect of admission, if any, can be considered only at the time of trial; that the admission even in pleadings will have to be read along with order VIII Rule 5(1) CPC and Court need not necessarily proceed to pass an order or a judgment on the basis of such admission but call upon the party relying upon such admission to prove its case independently; that during pendency of other suits and the nature of contentions raised in the case, it would not be permissible at all to grant the relief before trial as has been done in the present case; that the expression ‘admissions’ made in the course of the pleadings or otherwise will have to be read together and the expression, ‘otherwise’ will have to be interpreted ejusdem generis’. 9. Learned counsel, however, being conscious of the fact of the fact that the above provision as well as the decision of the Supreme Court relates to admissions in pleadings whereas admissions relied upon in the present case being in the pre-suit reply notice, the learned counsel relied upon a classic decision of the Court of Appeal in the Supreme Court of Judicature of England Chancery Division, particularly the decision of CHITTY, J. in HAMPDEN V. WALLIS [1884 Vol. XXVII 251]. That was an action calling upon the defendant to pay into the Court a sum of £2000 and seeking deposit of 250 Egyptian United bonds, based upon admissions not being admissions made in the action. Relying upon earlier decisions it was held that it is not necessary that admission should be in the defence or in the proceedings and therefore, an order was made based on the admissions. 10. The decision of the Madras High Court in REETHALAMMAL v. K. ARUMUGHAM PILLAI [2] was relied upon for the proposition that under Order XII Rule 6 CPC admission of the plaintiff though not in the pleadings can also be taken into consideration, as there would be no scope for prejudice. A Division Bench of Madhya Pradesh High Court in SHIKHARCHAND v. BARI BAI [3] is also relied upon wherein Order XII Rule 6 CPC was interpreted by stating that it must relate to the facts stated in the plaint itself and that it is open for the Court to pass a judgment on admission on the pleading or otherwise. The word “otherwise” in the said provision clearly indicates that it is open to the Court to base the judgment on statements made by a party not only in the pleadings but also dehors the pleadings and that such admission may be made either expressly or constructively. A decision of this Court in TATAYYA v. NAKARAJU[4] is also relied upon for the proposition that under Section 35 of the Evidence Act an entry in any public or other official book, register or record stating a fact in issue made in the course of discharge of public duty by public servant is itself a relevant fact. But the said relevancy attached to a birth register statutorily maintained entries from the book is a proof of the entries but the said provision is not applicable with regard to death registers marked as Exs.B1 to B3 in the present case. Another decision in UNION OF INDIA v. VASAVI CO-OPERATIVE HOUSING SOCIETY LTD. [5] is relied upon to the extent of statement of law in para 25 therein. The said para is extracted hereunder and based on that it is contended that the plaintiff having discharged the initial burden, the burden now shifts on to the defendant, who has failed to discharge the said burden. “25. There cannot be any doubt whatsoever that in a suit for declaration of title, the burden of proof is always on the plaintiff to make out and establish a clear case for granting such declaration. The burden, undoubtedly, lies upon the plaintiff. The weaknesses, if any, in the case set up by the defendants itself would not be a ground to grant any relief to the plaintiff. The submission in this regard is unexceptional. But, once the evidence is let in by both the parties, the question of burden of proof pales into some insignificance. The evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues settled that may ultimately determine the fate of the suit. Suffice it to observe that the initial burden would always be upon the plaintiff to establish its case. But if the evidence let in by the defendants in support of their case probablises the case set up by the plaintiff, such evidence cannot be ignored and kept out of the consideration. The court is bound to make an assessment and appreciate the cumulative effect of the entire evidence let in by the parties in support of their respective contentions.” 11. Thus, it would be evident from the reply notice of the defendant, where he admitted the relationship, on the plaintiff’s notice, is the sheet anchor of the submissions on behalf of the appellant. 12. Learned counsel for the respondent/defendant, on the other hand, made detailed submissions based upon the evidence of plaintiff, as P.W.1, and particularly, her cross-examination to contend that even according to the plaintiff – Sannamma, was the wife of Musalayya and she pre-deceased Musalayya about 10 years prior to his death. It was suggested to P.W.1 that her mother died on 12.05.1953, which she denied. She also denied the suggestion that Musalayya has no children of his own by asserting that her mother is the only daughter of Musalayya. It was also suggested to her that her mother was only daughter by courtesy to Musalayya, to which she stated that during life time of her mother she gave a Will to the plaintiff but she is unable to state the age of her mother either at the time of execution of Will or at the time of her death. Learned counsel also disputed that there is any admission, as such, as contended by the learned counsel for the appellant. According to him, Ex.A1 notice was given by the plaintiff to her father – defendant herein and in the reply, the defendant states that except the relationship, the rest of the allegations are not true and he refers to Musalayya as his father-in-law. Learned counsel, therefore, contends that the defendant was not denying the relationship that plaintiff is his daughter, as such, the said reply notice cannot be read as an admission of other relationships, which plaintiff has referred to in the notice. He further stated that the written statement of the defendant also is consistent with the said stand that plaintiff being the daughter of defendant and his first wife is admitted but the rest of the allegations are denied. He points out para 6 of the written statement that the mother of the plaintiff was the daughter of Pyla Yerukulu and after his marriage was performed by Musalayya, the plaintiff was born to them. 13. Learned counsel, therefore, states that for an admission either within the pleadings or outside the pleadings, the same must be unqualified, absolute and unequivocal so as to rest the decision thereon. No such admission exists in the present case and the said legal position on which reliance is placed by the appellant’s counsel would be of no assistance to him. With regard to other evidence and particularly, Exs.B1 to B3, the death extracts, the learned counsel has placed strong reliance upon the dates of deaths to describe the plaintiff’s case by contending that while Ex.B1 - the death extract of plaintiff’s mother – Sannamma alias Chinna shows that she died on 12.05.1953 and her age is mentioned as 35 years and that the death was reported by Musalayya, who is described as her father. Learned counsel, therefore, states that this document by itself destroys any truth or any validity of Ex.A5 Will, which is dated 06.10.1963 and at least 10 years after the death of the alleged testator. Similarly, wife of Musalayya died on 12.06.1962 as per Ex.B2 where she is described as Pyla Sannamma and her age is shown as 50 years. Here again informer’s name is that of Musalayya and the relationship is shown as husband. Ex.B3 is the death extract of Musalayya himself showing the date of death as 25.05.1965 at the age of 60 years. Learned counsel, therefore, states that the mother of the plaintiff pre-deceased Musalayya and his wife and she died at a very young age. 14. D.W.1 in his evidence states that Pyla China Yerukulu and Simhachalam are the parents of his first wife Chinna. Learned counsel, therefore, states that the first wife of the defendant and mother of the plaintiff, in any case, having pre-deceased Musalayya and his wife, it is difficult to accept that the properties of Musalayya devolved on her. The evidence of D.Ws.1 and 3, according to the counsel, is sufficient to establish that the plaintiff’s mother was not born to Musalayya. A detailed submission was made by the learned counsel to establish that the ages of the deceased mentioned in Exs.B1 to B3 – death extracts also improbabilize the case of the plaintiff, as rightly held by the trial Court. Learned counsel also stated that self-acquisitions of the defendant covered under Ex.B43 cannot form part of the present suit schedule. Items 3 and 4 of A schedule, therefore, are established as self-acquisitions by the defendant on the basis of Exs.B43, which remained uncontraverted. It is also highly improbable that exact half of B and C schedule properties, by splitting each survey number as claimed by the plaintiff, are being in her possession and defendant’s possession. This, on the face of it, would be impracticable and improbable, as each survey number cannot be claimed to have been divided exactly into two halves and remained in possession of either of the parties. The learned counsel, therefore, submits that the trial Court was right in dismissing the suit. 15. In the light of these contentions, the points that arise for consideration are: 1. Whether the learned counsel for the appellant is justified in seeking a decree based on admissions of the defendant in Ex.B17, in terms of Order XII Rule 6 of the Code of Civil Procedure, 1908? 2. If for any reason the said question is held against the appellant, whether the judgment of the Court below is sustainable? POINT No.1: 16. To appreciate the contention it is appropriate to extract Order XII Rule 6 CPC, which is as follows: ORDER XII ADMISSIONS R.1… R.2… R.3… R.4… R.5… R.6. Judgment on admissions.- (1) where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. 17. In the present case, from the alleged admissions appearing in Ex.B17, relevant portion of which is already extracted above, it is obvious that the admissions are in documents prior to the suit viz. the notices exchanged prior to the suit. The thrust of the contentions of the learned counsel for the appellant, therefore, is on the word ‘or otherwise’ used in Rule 6 above. Thus, the learned counsel contends that the admissions of the party may be either in the pleadings or elsewhere other than the pleadings; still such admissions are sufficient for the Court to pass a decree. It is also to be noticed that Rule 6 gives discretion to the Court to pass judgment on admission at any stage of the suit either suo motu or on application of the party. The discretion of the trial Court to pass a judgment on admission presupposes that it is not a right of a party to seek judgment on admissions. The purpose and object behind the provision is not requiring the parties to wait for the determination of other questions arising in the litigation and for speedy disposal of such issue, which is admitted. 18. Another provision under Order VIII Rule 5 CPC will also have to be kept in mind while considering the said submission, which in legal parlance is also referred to as rule of non-traverse. ORDER VIII R.1… R.2… R.3… R.4… R.5. Specific denial. – (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact to admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether