HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL Nos.275, 811, 812 and 813 of 2010 Between: Ch.Subha and another … Petitioners And Karri Appayamma and another … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL Nos.275, 812, 813 AND 811 OF 2010 COMMON JUDGMENT:- All these second appeals, arise out of a common judgment of the Principal District Judge, Rajahmundry, dated 05.08.2009, in A.S.Nos.243, 244, 245 and 246 of 2006, are heard together and are disposed of by this common judgment at the stage of admission. The facts, which gave rise to institution of the suits and these appeals are as under: O.S.No.109 of 1996 is filed for cancellation of sale deed, dated 11.05.1993, executed in favour of the plaintiffs in O.S.No.100 of 1997, purchased by one Lankey Gangamma under a sale deed, dated 29.03.1984, and she enjoyed the said property till her death, which took place on 20.06.1991. She fostered her sister’s daughter Appayamma i.e., the 1st plaintiff in O.S.No.109 of 1996 and performed her marriage with her brother Karri Venkata Rao, who is the plaintiff in O.S.No.110 of 1996. As per the plaint allegations, she executed a Will, dated 14.04.1991, in a sound and disposing state of mind and with a free volition creating life interest in favour of Appayamma and bequeathing the absolute remainder rights in favour of the son of the 1st plaintiff Karri China Sathiraju, who is the 2nd plaintiff in O.S.No.109 of 1996, which came into operation on her death on 20.06.1991 and since then they are enjoying the property by paying necessary land revenue. Further, Karri China Sathiraju and his father Karri Venkata Rao approached the father of the 2nd defendant, Chiluvuri Surapuraju, who was the 1st defendant in O.S.No.109 of 1996, in April, 1993 and requested to assist them in obtaining loan from the Government for digging fish ponds and the 2nd defendant represented to the 2nd plaintiff that he would assist them in getting those benefits subject to producing the original documents pertaining to the schedule property and other properties and gained confidence for handing over the title deeds to him. Taking advantage of the said title deeds, the 2nd defendant forged and created the suit sale deeds in favour of the 1st defendant in respect of the property on 11.05.1993 showing as if that Gangamma sold away the property to the 1st defendant for Rs.53,400/- subsequent to her death effected on 20.06.1991. But no consideration as such was passed under that document and the sale is void. Taking advantage of the sale deeds, the 2nd defendant tried to trespass into the property and the defendants also filed O.S.No.100 of 1997 (O.S.No.9 of 1994) before the District Munsif Court, Mummidivaram and obtained ex parte injunction in I.A.No.60 of 1994, which was later vacated. Hence the above suit. The defendants, who are the plaintiffs in O.S.No.100 of 1997, filed a written statement traversing the plaint averments pleading that the plaintiff in O.S.No.110 of 1996, who is the husband of the 1st plaintiff and the father of the 2nd plaintiff in O.S.No.109 of 1996, was happened to be in the possession and management of the schedule property which was lying waste and needed some repairs. He offered to sell the property in 1987 to the 2nd defendant and the bargain was settled and the 2nd defendant purchased the property for Rs.86,600/-. He also purchased Ac.2-48 cents in R.S.No.561 for Rs.42,200/- belonging to Karri Venkata Rao in the name of his daughter i.e., the 1st defendant in O.S.No.111 of 1996 and paid the entire sale consideration of Rs.1,28,800/- reposing confidence in Karri Venkata Rao. The 2nd defendant had taken delivery of possession of the entire Ac.7-57 cents from Karri Venkata Rao and since then he is in possession and enjoyment of the lands from May, 1997. The 1st defendant after taking possession of the entire land planted 500 cococnut plants and invested lot of amount. Further some of the coconut plants died, he invested the amount and brought the property under cultivation and formed fish tanks and insisted Karri Venkata Rao to execute necessary sale deed. Accordingly, Karri Venkata Rao got executed the sale deed, dated 12.08.1993, through his son Sathi Raju, the 2nd plaintiff in favour of the 1st defendant in O.S.No.111 of 1996. In fact, the defendants got no acquaintance with Karri China Sathiraju (plaintiff in O.S.No.111 of 1996) or Lankey Gangamma. Further, the defendants denied about the death of Lankey Gangamma that took place on 20.06.1991 and the Will said to have been executed by her. O.S.No.110 of 1996 was filed by Karri Venkata Rao for cancellation of the sale deed, dated 11.05.1993, with the similar averments made in O.S.No.109 of 1996, stating that he purchased the schedule property from K.Gopalam and others on 29.03.1984 and that the 2nd defendant created corresponding sale deed showing as if Karri Venkata Rao executed it in favour of the 1st defendant for Rs.35,300/- in respect of the schedule property. O.S.No.111 of 1996 was filed by K.China Sathiraju for cancellation of the sale deed, dated 12.08.1993, in respect of the property claimed by the defendants said to have been executed by him claiming that he purchased the property under the sale deed, dated 29.03.1984, from K.Gopalam and others and since then he has been in possession and enjoyment of the same. Defendant Nos.1 and 2 filed written statement with the pleadings similar to the pleadings made in the written statement filed in O.S.Nos.109 and 110 of 1996. Pending the above suits, defendant Nos.1 and 2 in O.S.Nos.109, 110 and 111 of 1996 filed O.S.No.100 of 1997 taking the similar pleas, which were taken in the written statement and claiming the title under registered sale deeds, dated 11.05.1993 and 12.08.1993. Defendants filed written statement with the pleadings similar to the pleadings made in the plaints in O.S.Nos.109, 110 and 111 of 1996. Basing on the respective pleadings of the parties, the learned Senior Civil Judge, Ramachandrapuram settled necessary issues in each suit for trial. The learned trial Court by a common order, dated 09.10.1996, decreed O.S.Nos.109, 110 and 111 of 1996 cancelling the original documents under Exs.A11 & A16 - dated 11.05.1993 and Ex.A12-dated 12.08.1993 and in view of the cancellation of the sale deeds, the suit in O.S.No.100 of 1997, which is based on the said documents, was dismissed. Aggrieved by the same, the 1st and 2nd defendants in O.S.Nos.109, 110 and 111 of 1996 filed A.S.Nos.243, 246, 245 of 2006 and the plaintiffs in O.S.No.100 of 1997 filed A.S.No.244 of 2006. On dismissal of the appeals, they filed the present second appeals. Learned counsel for the appellants strenuously contends that once the Will deed set up by the plaintiffs in O.S.Nos.109, 110 and 111 of 1996 has not been proved, as per the finding recorded by the lower appellate court, and Lankey Gangamma died issueless in the year 1991, they are not entitled to file the suit for cancellation of the sale deeds, as they are not class-I heirs. Even if Gangamma died prior to the execution of the sale deeds, the plaintiffs cannot seek cancellation of the sale deeds when admittedly they are class-II Heirs. Mere production of Exs.A17 and A18 by the plaintiffs coupled with the admission of D.W.2, with regard to the issuance of Ex.A17, is not sufficient to prove the plea of fraud by the appellants. It is not disputed Karri Venkata Rao, plaintiff in O.S.No.110 of 1996, was examined as P.W.1 and Karri China Sathi Raju, the 2nd plaintiff in O.S.No.109 of 1996, was examined as P.W.2 and one C.K.Surya Prakash was examined as P.W.3 and Exs.A1 to A17 were marked on behalf of the plaintiffs in O.S.Nos.109, 110 and 111 of 1996. Whereas, the 3rd plaintiff in O.S.No.100 of 1997 was examined as D.W.1 and four more witnesses were examined as D.Ws.2 to 5 and no documents were marked on their behalf, except Ex.C1-opinion of finger print expert. As per the evidence of P.W.1, late Lankey Gangamma executed a Will in the year 1991 in the presence of Kamaraju Pemmadi, who was the scribe of the Will and Danduprolu Koyaraju and Pantadi Babu Rao were the attestors of the Will. But none of the attestors were examined as mandated under Section 63 of the Indian Succession Act, 1956 and Sections 68 and 69 of the Indian Evidence Act, 1872. Therefore, the lower appellate court rightly held that the Will has not been proved. With regard to the other properties covered in O.S.Nos.100 and 111 of 1996, there is no dispute that the plaintiff in O.S.No.110 of 1996-Karri Venkata Rao and the plaintiff in O.S.No.111 of 1996-Karri Venkata China Sathiraju are the owners of those properties. On the question as to whether Karri Venkata Rao, Karri China Sathi Raju and late Gangamma actually sold the schedule property in the year 1987 as alleged by the defendants, the lower appellate court rightly held that Exs.A13 and A17 are the certified copies of the death extracts of Gangamma issued by Gram Panchayat showing that she died on 20.06.1991 and Ex.A14 is the certified copy of the Will, dated 14.04.1991, claimed to be executed by late Gangamma in favour of Appayamma; that when the two sale deeds under Exs.A1 and A3 along with the admitted signatures and thumb impressions of Karri Venkata Rao and Karri China Venkata Sathi Raju were sent to finger print expert for examination and comparison, it was found that the signature and thumb impression purported to have been made under Exs.A1 and A3 are not identical with the specimen thumb impressions received and to that effect the finger print expert gave Ex.C1 Opinion. Further, D.W.2 in his cross-examination clearly admitted the contents of Exs.A17 and A18, to repel the arguments of the appellants that the registration of the death of Gangamma was on 22.02.1994 by the Panchayat officer, which was not immediately recorded and no credence can be given to the said certificate. When the appellants claim that they purchased the property in the year 1987, but they obtained corresponding sale deeds in the year 1993, which improbablises that they paid the huge amounts and they have not obtained the registered sale deeds, and when the recitals of the sale deeds also does not disclose about payment of necessary consideration and delivery of the property as claimed by the appellants, an adverse inference has to be drawn against the genuineness of the sale deeds said to have been executed by Karri Venkata Rao, Karri China Sathi Raju and late Gangamma on 11.05.1993 and 12.08.1993. When the plaintiffs Karri Venkata Rao and Kari China Sathi Raju marked Exs.A4 to A10-land revenue receipts about payment of necessary land revenue and proved their possession of the properties; and once they established the non execution of the sale deeds and continuous possession of their properties, the defendants cannot claim possession under the void sale deeds. When the plaintiffs proved their possession and enjoyment, they are entitled to injunction to maintain their possession. The lower appellate Court after considering the entire evidence on record in its proper perspective rightly dismissed the appeals, declaring that the plaintiffs in O.S.Nos.109, 110 and 111 of 1996 are in possession of the properties and entitled to permanent injunction in respect of the schedule properties. It is not in dispute that the plaintiffs in O.S.Nos.109, 110 and 111 of 1996 are in possession of the schedule properties. Once they established that they are in possession and enjoyment of the schedule properties and they are class II heirs, they can always seek cancellation of the sale deeds, when their possession was disturbed under void sale deeds by the plaintiffs in O.S.No.100 of 1997. Therefore, no question of law much less substantial question of law arises for consideration in these second appeals. All the second appeals are dismissed at the admission stage. There shall be no order as to costs. _________________ A.GOPAL REDDY, J 20th August 2010 lmv