THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 530 OF 1994 Date of Judgment: 12.3.2010 Between: Kotikalapudi Suryanarayana …Appellant and Ragu Adinarayana and others ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 530 OF 1994 JUDGMENT: 1. This second appeal is by the plaintiff who has lost in both the courts below. This case has a chequered history and it is also necessary to appreciate the relationship between the parties. For the sake of convenience, the parties are referred to as they are arrayed in the suit. 2. There are two plaintiffs who prosecuted the suit. The first plaintiff’s claim is that she is the owner of the suit schedule property under a registered sale deed dated 28.6.1945. The said property was purchased from her by the second plaintiff under a registered sale deed dated 28.6.1983 and he got impleaded himself as second plaintiff in the suit. The first plaintiff died pending the suit and thereafter the suit as well as the first appeal before the lower appellate court was prosecuted by the second plaintiff and the present second appeal is also filed by the second plaintiff. 3. The first defendant obtained a money decree against the second defendant who is the son of the first plaintiff, and third defendant is the son of first defendant who purchased the suit schedule property in a court auction conducted on 7.12.1982 for Rs.5,800/-. 4. The facts leading to filing of the suit are as follows, The first defendant filed OS No. 569 of 1975 against the second defendant and obtained a money decree against him on 27.6.1979. Pending the said suit, he got attached the suit schedule property on 3.6.1976. The first plaintiff claimed that she was not aware of the said attachment and she came to know of it only when the suit schedule property was brought to sale. She had thereupon filed EA No. 870 of 1982 before the Principal District Munsiff, Kovvur i.e., the court which passed the decree in OS No. 569 of 1975 and the court which was executing the said decree by attachment and sale of the suit schedule property. The said claim petition was dismissed by the learned District Munsiff, in limini, by order dated 13.9.1982 on the ground that the sale was posted to 14.9.1982 and the claim petitioner who is the mother of the judgment debtor has not moved in the matter though the property stands attached before judgment from 3.6.1976 and as such the claim petition was designedly delayed and not bona fide. 5. Under Order 21, Rule 58 (1) of the Code of Civil Procedure (for short “the Code”) the Court is empowered to reject the claim petition, in limini, if the claim or objection is made after the property has been sold or if the Court considers that such claim or objection was designedly or unnecessarily delayed. The order of the learned District Munsiff rejecting the claim petition is, therefore, referable to the power of the court under the proviso (1) of Rule 58 of Order 21 of the Code and if such claim or objection is rejected, a remedy of suit is provided under sub-rule (5) of Rule 58 of Order 21 of the Code. The first plaintiff accordingly filed the present suit OS No. 340 of 1983 before the learned District Munsiff, Kovvur. Though it is styled as claim suit under Order 21, Rule 63 of the Code, it is referable to Order 21, Rule 58 (5) of the Code (since the order 21, Rule 63 of the Code has been deleted under the 1976 amendment of the Code). In the said suit the first plaintiff sought a relief to set aside the attachment dated 3.6.1976 in respect of the suit schedule property and to grant consequential injunction restraining the defendants from dispossessing or interfering with the enjoyment of the plaintiff over the suit schedule property. The first defendant in the said suit is the decree holder in EP No. 16 of 1982 in OS No. 569 of 1975 and the second defendant is the judgment debtor, while the third defendant (who is the son of the first defendant-decree holder) is the auction purchaser of the property in court auction in pursuance of orders passed in EP No. 16 of 1982. The suit OS No. 340 of 1983 has been dismissed by both the courts below and the said decrees are subject matter of the present second appeal. 6. The said suit is contested by the third defendant- auction purchaser, while his father-first defendant-decree holder- has adopted the written statement of his son-third defendant and the second defendant conveniently remained exparte. In the written statement filed by the third defendant, he has taken several pleas doubting the title of the first plaintiff to the suit schedule property under the registered sale deed dated 28.6.1945 and claiming that the execution of the sale deed in favour of the first plaintiff is only a sham and nominal transaction and it has not been acted upon. He also pleaded that the second defendant’s father as well as the second defendant were addicted to all kinds of vices and therefore in order to secure the property, a nominal sale deed was executed in favour of the first plaintiff on 28.6.1945 and the said property being ancestral property was enjoyed by the joint family of the second defendant. It was also pleaded that there was an oral partition between the second defendant, his father and brother in 1960 and the suit schedule property fell to the exclusive share of the second defendant. It was also pleaded that the suit schedule property stands registered in all the revenue accounts in name of the second defendant for several years and the second defendant exercised his right of selling the property under different sale deeds and also by mortgaging the property to Malakapalli Co-Operative Rural Bank. It was also pleaded that the sale deed in favour of the second plaintiff by the first plaintiff, dated 28.6.1983 is also void and the suit as framed, is not maintainable. 7. The trial Court framed the following issues, 1. Whether the plaintiff has title to and possession of the schedule property within the statutory period? 2. Whether the suit is not maintainable for the reasons stated in the written statement? 3. To what relief? Additional Issue No.1, Whether the 2nd plaintiff has title and possession to the suit property within statutory period? 8. Issue No.1 and additional issue No.1 are relevant for the purpose of this case. While PWs. 1 to 4 were examined and Exs.A1 to A5 were marked for the plaintiff, D.Ws. 1 to 3 were examined and Exs.B1 to B18 were marked for the defendants. P.W.1 is the second plaintiff who supported the plaint allegations and marked Ex.A1- sale deed dated 28.6.1983 executed in his favour by the first plaintiff. P.W.2 is the scribe of Ex.A1. P.W.3 is a resident of village who speaks of possession of the plaintiff. P.W.4, who is also a resident of the same village and is 95-year-old , speaks of title and possession of the first plaintiff to the suit schedule property and also of the purchase of the said property by P.W.1. D.W.1 is the first defendant and decree holder who justifies the taking the proceedings against the second defendant in respect of the suit schedule property as it belonged to the second defendant-judgment debtor. D.W.2 is the Assistant Manager of District Co-Operative Central Bank, Kovvur who produced Ex.B16 by which the second defendant is said to have mortgaged the suit schedule property with the said bank. D.W.3 is the court staff who confirms that he delivered possession of suit schedule property and sale certificate under Exs.B12 and 13 to the third defendant-auction purchaser. 9. After considering the evidence, oral and documentary, the trial Court was of the view that the first plaintiff was never in possession of the property and that the plaintiff failed to prove the genuineness of the sale deed in her favour and on the basis of the sales and mortgages by the second defendant, of the part of the property covered by the first plaintiff’s sale deed dated 28.6.1945, the trial Court came to the conclusion that the second defendant sold away part of property under Exs.B10 and B11 and mortgaged the property under Ex.B16 which established that the first plaintiff was only name lender and she did not raise any objection when the property was attached before judgment and the trial Court, therefore, answered the issues against the first plaintiff by holding that the plaintiff has nothing to do with the property covered by her sale deed of 1945 and the said sale deed is only nominal and in view of the said finding, it dismissed the suit. 10. In appeal, the learned Senior Civil Judge concurred with the said findings, but held that though the sale deed dated 28.6.1945, on the basis of which the suit was filed, was not marked in evidence, the same was not necessary as ultimately all the defendants claimed title through the said document itself. The appellate Court also therefore was of the view that the plaintiff failed to establish her title on the basis of the said sale deed as it was only a sham and nominal and the second defendant being her natural son, has dealt with the part of the schedule property by executing sale deeds in favour of third parties and also by mortgaging the property to Co-Operative Bank. The appeal was accordingly dismissed. 11. While admitting this second appeal, on 15.6.1995, this Court has framed the following substantial question of law, “The valid of the registered sale deed is an important question to be considered minutely for arrived at a conclusion, whether the property covered by the sale deed was liable to be attached or not.” 12. In the present second appeal, I have heard Sri Nimmagadda Satyanarayana, learned counsel for the appellant and Sri M.V. Suresh, learned counsel for the respondents. 13. The learned counsel for the appellant contends that the deceased-first plaintiff could not question the attachment of suit schedule property conducted on 3.6.1976 as she was not aware of it and when she filed the claim petition vide EA No. 870 of 1982, she was not precluded from challenging the attachment as the property was not sold by then. He submits that the said claim petition was dismissed, in limini, on 13.9.1982 and sale was conducted on 14.9.1982 and ultimately the sale certificate was given to the third defendant-auction purchaser only on 7.12.1982 and therefore, the first plaintiff was entitled to file the present suit which she has filed on 4.3.1983 questioning the order of the executing court dismissing EA No. 870 of 1982 dated 13.9.1982 and the alleged delivery of possession in favour of third defendant-auction purchaser is subsequent to the suit i.e., on 8.3.1983. He, therefore, submits that the suit is clearly maintainable and ought to have been entertained by both the courts below by considering the right, title and interest of the deceased-first plaintiff, instead of throwing out her case in a cursory manner. It is further contended that the title under a registered sale deed, dated 28.6.1945 existing in favour of the first plaintiff-deceased could not have been ignored on the basis of revenue entries showing her son-second defendant being in possession of the suit schedule property. He also submits that the defendants could not have pleaded that the said sale deed is a sham or nominal document nor the courts below could have found as such, as only the auction purchaser contested the suit and he has no locus standi. He also submits that the sales or mortgage said to have been made by the second defendant with regard to the part of the suit schedule property of the first plaintiff does not bind the plaintiff. He states that because the first plaintiff died pending the suit, her sale deed of 1945 could not be exhibited, though it was filed along with the plaint, but in any case, the courts below have not considered the said document. He has also pointed out that though the written statement was filed by the third defendant-auction purchaser, he has not been examined in the suit and therefore, the learned counsel seeks to draw an adverse inference against the contesting third defendant and in this connection he relies upon a decision of the Supreme Court reported in Vidhyadhar Vs. Mankikrao [1]. 14. Per contra, Sri M.V. Suresh, learned counsel for the respondents contends that the very suit document viz., sale deed, dated 28.6.1945 is not marked by the plaintiff and as such the courts below had no occasion to examine the same and further the ownership of the second defendant is established by sale deeds in favour of third parties under Exs.B10 and B11 which remained unquestioned by the plaintiff even till now and in addition, by the execution of Ex.B16, the mortgage deed by the second defendant, it established that his title was accepted even by the mortgagee bank. The learned counsel relies upon the evidence of P.W.4 to contend that there was an oral partition and the suit schedule property fell to the share of second defendant and therefore, it was rightly attached and sold in execution of decree against the second defendant. He also contends that the present suit is not maintainable in view of the fact that the property was already sold in court auction on the date of suit and he relies upon a decision of this Court reported in P.P. Raj and another Vs. Sri Rama Finance Corporation and others [2]. 15. In the light of the rival contentions of the parties, the substantial question of law is answered as follows, Under the scheme of the Code of Civil Procedure which is referred to above, with the rejection of the claim petition, the plaintiff has remedy of filing a suit under Order 21, Rule 58 (5) of the Code and as such the present suit is clearly maintainable. Even in the decision of this Court in P.P. Raj and another Vs. Sri Rama Finance Corporation and others (2nd supra) itself the legal position has been discussed in paragraph-20 as follows, “…..A suit can be maintained only when the claim is rejected under clause (b) of the proviso to sub-rule (1) on the consideration that it was designedly or unnecessarily delayed. …………….. Now that in view of the amended provisions under sub-rule (2), since the Court is competent to adjudicate even the serious questions of right, title or interest over the property, a right of a suit is specifically excluded. Therefore, serious and substantial questions of right, title or interest to the property arising between the parties to the claim are expected to be adjudicated upon by the Court in the claim petition itself in accordance with Rule 58 of the Code.” 16. Since the Executing Court declined to entertain the claim petition, the deceased-first plaintiff was obliged to file the present suit and the substantial questions of right, title and interest with regard to the suit schedule property have to be adjudicated in that suit. It is not in dispute that when the first plaintiff filed EA No. 870 of 1982, the suit schedule property was not brought to sale and the auction sale was subsequent to dismissal of EA No. 870 of 1982. There was, therefore, no impediment for the deceased-first plaintiff to file the claim petition and the present suit was filed on 4.3.1983 within the period prescribed by law and the alleged delivery of possession of suit schedule property to the auction purchaser is subsequent thereto, i.e., on 8.3.1983. 17. It is also to be noted that except the auction purchaser-third defendant, no other defendants contested the suit. The auction purchaser has come into picture only subsequent to sale of property dated 14.9.1982 and it is difficult to accept his contention that the plaintiff’s sale deed of 1945 is a sham and nominal and that there was an oral partition in 1960 and that the suit schedule property fell to the share of second defendant etc. All such claims, in reality, are matters of pleading of proof by party concerned and not by a third party, i.e., the auction purchaser who claims right in the property only subsequent to auction sale dated 14.9.1982. Even otherwise, as rightly contended by the learned counsel for the appellant, although the third defendant has filed his written statement, he has not examined himself and therefore, the contents of his written statement were not proved by him. In the decision of the Supreme Court in Vidhyadhar Vs. Mankikrao (1st supra) it is clearly held in paragraph-16 as follows, “(16) Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.” 18. From the impugned judgments, it is evident that both the courts below have not kept the aforesaid aspects in mind and have accepted the evidence led on behalf of the defendants viz., that of the first defendant and negatived the contention of the plaintiff based on a registered sale deed of 1945 standing in her name. The findings of both the courts below that the sale deed of the deceased first plaintiff is a sham and nominal, is clearly not based on any evidence and title under registered sale deed cannot be negatived on a slender evidence or on allegation of the party that the sale deed is a sham and nominal document. The proper adjudication with respect to the rights of plaintiff based upon the said document was all the more essential as the claim petition filed by the deceased-first plaintiff was rejected, in limini, without any adjudication. Further the appellate court itself has rightly observed in paragraph-6 of its judgment, which is as follows, “……It appears that the lower court was under the impression that the plaintiff had to prove the genuineness of the sale deed. The sale deed cannot be questioned by the defendants because if there is no such sale deed, the schedule property cannot be attached and sold in execution……….” 19. It is, therefore, evident that the ultimate title of the auction purchaser is again traceable to the same sale deed of 1945 of the first plaintiff and if the said sale deed is declared a sham or nominal, the origin of title of defendants 2 and 3 itself becomes uncertain. The finding of the trial Court that the first plaintiff has not objected to the attachment before judgment dated 3.4.1976 till filing of the claim petition EA No. 870 of 1982 is, therefore, erroneous and is of no significance, even according to the decision of this Court in P.P. Raj and another Vs. Sri Rama Finance Corporation and others (2nd supra) cited by the learned counsel for the respondents. The trial court also observed that against the dismissal of the said claim petition, the first plaintiff has not preferred any revision or appeal, which also suffers from misconception about the remedies of claim petitioner and as stated above, neither an appeal nor a revision lies against such rejection of claim petition and the suit, as filed by the plaintiff, was perfectly maintainable. The trial court proceeded to think that there is no evidence to establish the genuineness or validity of sale deed dated 28.6.1945 by the first plaintiff, whereas, in fact, not only a presumption ought to have been drawn, but the defendants ultimately traced their title only through the same sale deed. Further the finding of the trial court towards the end of paragraph-13 of its judgment that the tile of the second defendant is established by adverse possession is to say the least; most perverse. 20. The appellate court also committed similar error in accepting the evidence of first defendant as D.W.1 without noticing that the third defendant was not examined in support of the statements pleaded in the written statement. Further the finding of the lower appellate court that the plaintiff has nothing to do with the property covered by her sale deed dated 28.6.1945 is not based on any evidence and is, in fact, contrary to the inference which flows in favour of the first plaintiff from the registered sale deed dated 28.6.1945. This Court has rightly framed a substantial question that the validity of the registered sale deed has to be minutely considered, but unfortunately both the courts below committed error in not appreciating and considering the matter from that point of view and the impugned judgments being perverse, are liable to be set aside. 21. This, however, leaves consideration of another important aspect raised by the learned counsel for the respondents that the sale deed dated 28.6.1945 itself is not before the court, as the same was not marked. The objection raised by the learned counsel for the respondents is justified as the plaintiff ought to have marked the said sale deed, though there is no gain saying that the document was produced along with the plaint, but could not be marked as the first plaintiff died pending the suit. Perhaps realizing the same, the learned counsel for the appellant has filed CMP No. 12680 of 2002 under Order 41, Rule 27 of the Code in this appeal praying this Court to receive certain documents as additional evidence and mark them as Exs.A6 to A15. The affidavit filed in support of the said petition states that the set of documents contain not only certified copies of registered sale deed dated 28.6.1945, which is the basis of the suit, but also several other sale deeds showing that the deceased-first plaintiff had sold various portions of the property in favour of third parties by exercising her right of ownership over the entire property covered by the said sale deed, dated 28.6.1945. Reference is also made to ground No.5 of the memorandum of second appeal stating that the appellant is filing registration extracts of several sale deeds executed by the first plaintiff as additional evidence in the second appeal. It is also stated in the affidavit that the learned counsel for the appellant who filed the second appeal was later elevated and the appellant, therefore, has engaged another advocate. When it was noticed that the documents sought to be produced were in the office file of previous counsel and not filed in the court, the present application is filed. The said application is contested by the respondents by filing a counter-affidavit and it is argued that none of the ingredients of Order 41, Rule 27 of the Code applies warranting reception of the said documents as additional evidence. A somewhat similar question was considered and