THE HON’BLE SRI JUSTICE G.CHANDRAIAH S.A.NO.39 OF 1999 JUDGMENT Heard both the counsel. 2. The 1st respondent here filed the suit in O.S.No.56 of 1986 on the file of District Munsif at Siddipet, for declaration of title and for perpetual injunction, in respect of an extent of 626 sq. yards in Sy.No.1839 of Siddipet town and revenue mandal, Medak District, with specific boundaries mentioned in the schedule attached to the plaint. The appellant here is the 1st defendant in the suit and is the contesting party. During the pendency of the suit, the 1st respondent/plaintiff died and his legal representatives were brought on record, as plaintiffs 2 to 6 and they are the respondents 2 to 6 herein. 3. By judgment and decree dated 02.03.1993, the trial court decreed the suit as prayed for. Aggrieved by the same, the 1st defendant in the suit filed the first appeal in A.S.No.12 of 1993 on the file of Senior Civil Judge, Siddipet. By judgment and decree dated 17-07-1998, the lower appellate court dismissed the appeal and thereby confirmed the judgment and decree of the trial court. Challenging the same, the 1st defendant in the suit, filed the present second appeal. 4. For the sake of convenience, the parties will be referred to as per their array in the original suit. 5. As per the plaint averments, the case of the plaintiff is that the suit schedule land in Sy.No.1839 originally belonged to one Hajjam Buchaloo, and her husband Dr.M.Krishna Rao purchased an extent of 2,835 sq yards from him under an unregistered document, for a consideration of Rs.82/- Sikka-e-Osmainia on 20th Shahervar, 1354 Fasli. He gifted the entire property purchased from Hajjam Buchaloo in favour of the plaintiff on 8th Isfandar 1356 fasli. The plaintiff constructed a house in the centre portion of the gifted land within a plinth area of 85 sq. yards. During the life time of Krishna Rao, he sold 400 sq. yards to one Ramkrishnaiah, who in turn sold the same to one Sadar Ali on southern side of the land of the plaintiff. The plaintiff sold an area of 264 sq. yards to G.Kishan and others on the northern side and 240 sq. yards to one Ramchandra Reddy and an extent of 60 sq. yards to one R.Shanker on the northeast of the gifted land. In all, the plaintiff sold an area of 1,000 sq. yards and the remaining 1,835 sq. yards is in possession and enjoyment of the plaintiff. 6. The defendants 1 and 2 who have no right over the suit land, with an evil idea to grab the same, denied the title, and interfered illegally with the possession of the plaintiff. The defendants are making attempts in respect of 626.5 sq. yards, which is shown specifically in the plaint sketch, with the help of un-social elements. The defendants on 29-1-1986 tried to dispossess the plaintiffs from the suit land and hence the plaintiff is constrained to file the suit for declaration of title and for perpetual injunction. 7. The defendants 1 and 2 filed written statement denying the plaint averments. Their case is that the alleged gift deed said to have been executed by Dr.Krishna Rao, in favour of the plaintiff on 8th Isfandar 1356 Fasli, is not for 2,835 sq. yards, but it is only for 1,625 sq. yards. Taking advantage of the possession of the gift deed, the plaintiff made tampering. In fact late Krishna Rao, during his life time, sold an extent of 517 sq. yards, to one Kasulbanda Ramkrishna Reddy on eastern side of the site of 2,835 sq. yards and executed a registered sale deed on 6th Teer, 1356 Fasli, for a consideration of Rs.1,000/- Sikka-e-Osmania. By virtue of the said purchase, Ramkrishna Reddy, was put in possession of 517 sq. yards. The said Ramkrishna Reddy, in turn sold the said 517 sq. yards on 12th Amardad, 1356 Fasli under an un-registered simple sale deed in favour of 1st defendant for a consideration of Rs.1,551/- Sikka-e-Osmania, and inducted the 1st defendant into possession of 517 sq.yards. Ever since the date of purchase, 1st defendant is in possession and prior to him, Ramkrishna Reddy was in possession, who also dug a well and erected a temporary tent in the suit land. The said Ramakrishna Reddy, vendor of the 1st defendant, also executed a regular registered sale deed in pursuance of the un-registered simple sale deed, on 12th Amardad, 1356 Fasli on 11-7-1985, in favour of the 1st defendant, acknowledging the earlier sale. The site of 517 sq. yards is situate adjoining the open land and the house of the 2nd defendant is on the western side. The 1st defendant also fixed boundary stones on its western side, by separating the land of the plaintiff and his site of 517 sq. yards. The 2nd defendant is the owner and possessor of 1,200 sq. yards, which was purchased from one Indira w/o Ramchandraiah, under a registered sale deed in the year 1960, which is abutting towards east of 517 sq. yards. The 2nd defendant constructed shops and residential house in the site purchased from Indiar and he is in possession of 1,200 sq. yards. Neither the plaintiff nor her legal heirs are having any right or possession over the suit land. The 1st defendant also dumped thirty tractor loads of bricks, sand, 2000 granites and 20 loads of foundation stones in the suit land to raise the level of the land and thus the 1st defendant is in possession of his 517 sq. yards and the remaining land is in possession of the 2nd defendant. There is no cause of action to file the suit and hence the suit is liable to be dismissed with costs. 8. The plaintiff filed rejoinder stating that the alleged purchased by Ramkrishna Reddy and thereafter by the 1st defendant, is false and the documents are fabricated. By the date of alleged sale by late Krishna Rao in favour of Ramkrishna Reddy, late Krishna Rao had gifted away the entire property purchased by him to the 1st plaintiff and hence he himself had no right to alienate any portion of the land in Sy.No.1839 and, therefore, the sales are not binding on the plaintiffs. 9. Based on the above pleadings, the trial court framed the following issues for trial: i) Whether the plaintiffs are entitled for perpetual injunction as prayed for? ii) To what relief? 10. Initially the suit was filed only for perpetual injunction and as the defendants denied the tiled of the plaintiffs, I.A.No.545/92 was filed for amendment of the plaint and by order dated 30.10.1992, the amendment was allowed and the suit was covered into suit for declaration of title and for possession. Hence, the following additional issues have been framed: i) Whether the plaintiffs are entitled for declaration of title in respect of suit schedule property? ii) Whether the suit is barred by limitation? 11. In support of the case of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A-1 to A-17 were got marked. On behalf of the defendants D.Ws.1 to 4 were examined and Exs.B-1 to B-5 were got marked. 12. Appreciating the entire evidence, both oral and documentary, the trial court decreed the suit as prayed for. On appeal by defendants, the lower appellate court framed the following point for consideration: Whether the judgment and decree of the trial court under appeal, suffers from any infirmity, requiring this court to interfere with the same at this appellate stage? 13. On re-appreciating the entire evidence, the lower appellate court dismissed the appeal and thereby confirmed the judgment and decree of the trial court. Hence, the second appeal by the 1st defendant. 14. This court admitted the second appeal in view of the following substantial questions of law: i) Whether the courts below are not in error in not holding that the suit is barred by limitation as the cause of action for the suit arose before 1978? ii) Whether the trial court is justified in allowing I.A.No.542 of 1992 on 30.10.1992 when the prayer in the above I.A. is barred by limitation and changes cause of action? iii) Whether the courts below are justified in decreeing the suit when the trial court held that Ex.A-4 is tampered one and is only for 1,624 sq. yards and when the lower appellate court held that without looking into the original of Ex.A-4 it was not possible to hold that Ex.A-4 is forged one and the burden is on the plaintiff to produce the original of Ex.A-4 and the said burden is not discharged by the plaintiffs? iv) Whether the courts below are justified in holding that by the date of Ex.A-2, Krishna Rao himself had no right and the rights in S.No.1839 were conveyed to deceased/1st plaintiff because the gift deed is only for 1,624 sq. yards, and is tampered one. v) Whether the courts below are justified in imputing knowledge to the 1st defendant/appellant with the contents of Ex.A-13? vi) Whether the lower appellate court is justified in placing reliance on Exs.A-4, A-9, A-10, A-11 and A-14 for showing alleged possession of the plaintiff over the suit schedule land to which proceedings D-1 is not a party and these documents would give boundaries of the land contained therein? vii) Whether the lower appellate court is justified in holding that Ex.B-2 can’t be believed on the ground that original of Ex.B-2 is not produced and when it is the case of the appellant herein that the original of Ex.B-2 is lost? viii) Whether the lower appellate court is justified in holding that the appellant did not file any document to show his possession, when Exs.B-2 and B-4 would clearly show his possession and D.Ws.1 and 4 clearly spoke that the appellant is owner and possessor of 517 sq. yards out of the suit schedule property? 15. The learned counsel for the appellant mainly contended that the plaintiffs have come to the court claiming title and possession over the suit schedule property and they relied on Ex.A-4, which is the certified copy of the gift deed alleged to have been executed by late Krishna Rao in favour of the 1st plaintiff – Jagadamba for the entire extent of 2,835 sq. yards. But they failed to prove the gift deed. He submitted that the case of the plaintiffs is that the late Krishna Rao had purchased 2,835 sq. yards from one Hajjam Buchaloo under unregistered document and in the plaint they have categorically stated that late Krishna Rao during his life time had sold an extent of 400 sq. yards to one Ramkrishnaiah, who in turn sold the same to one Sadar Ali. When late Krishna Rao purchased only an extent of 2,835 sq. yards and out of which, he sold an extent of 400 sq. yards, he cannot execute gift deed in favour of 1st plaintiff again for the total extent of 2,835 sq. yards. This circumstance itself falsifies Ex.A-4. He contended that the defendant had categorically denied execution of Ex.A-4 for the entire extent of 2,835 sq.yards. In spite of the categorical denial, the plaintiffs failed to prove Ex.A-4 by examining either attestors or by sending the document to handwriting expert for opinion. He contended that though the trial court has categorically recorded finding of fact that the plaintiff failed to prove Ex.A-4 gift deed and that it is tampered by the 1st plaintiff, still decreed the suit based on the weaknesses of the defendant. He vehemently contended that the plaintiffs, who have come to the court seeking declaration and possession, have to establish their case by proving the documents on which they rely, but they cannot rely on the weakness of the defendants. In support of this contention that the burden is on the plaintiffs to prove their case, the learned counsel for the appellants relied on the judgments reported in M.M.B.CATHOLICOS v. M.P. ATHANASIUS[1], SAYEDMOHD. MASHUR KUNHI KOYA THANGAL v. BADAGARA JUMAYATH PALLI DHARAS COMMITTEE[2], CORPN. OF CITY OF BANGALORE v. ZULEKHA BI[3], SAJANA GRANITES v. MANDUVA SRINIVASA RAO[4] and C.AUDILAKSHMAMMA v. A. RAMARAO[5]. He further contended that the trial court has held that the plaintiffs failed to prove Ex.A-4. There is no appeal by the plaintiffs against this finding. But the lower appellate court in the appeal filed by the defendants, held that without looking into the original of Ex.A-4, it is not possible to hold that Ex.A-4 is forged. He contended that the burden is on the plaintiffs to prove Ex.A-4, but when they failed to produce original or could lead any tangible evidence, the lower appellate court is not justified in relying on Ex.A-4. 16. He further contended that the gift deed is only for 1625 sq. yards. To prove that the gift deed is only for 1625 sq. yards, the defendants produced Ex.B-3, which is the certified copy of the registered gift deed and they also examined the Sub Registrar, Siddipet, as D.W.3, who categorically deposed, based on Volume – I register, that Ex.B-3 is only for 1625 sq. yards and not for 2835 sq. yards. But the courts below erroneously refused to rely on the evidence of official witness. He contended that D.W.3 categorically deposed that Ex.B-3 is genuine and that Ex.A-4 is tampered. The trial court has also held that Ex.A-4 is tampered one, but still relied on Ex.A-4 to decree the suit. He contended that when once the extent is changed, the boundaries will not tally. He further contended that the plaintiffs have stated that they have sold an extent of 1000 sq. yards to different individuals, but no such sale deed or any details with regard to specific boundaries, either documentary or oral have been adduced. The plaintiffs further failed to establish the suit schedule property with specific boundaries. In these circumstances, when there are sales to different persons and the original purchase made by Krishna Rao is 2,835 and the gift deed is for 1625 sq. yards and the plaintiffs have sold 1000 sq. yards to different persons and when the plaintiffs failed to establish the exact location of the suit schedule property with specific boundaries, the boundaries mentioned in Ex.A-4 gift deed will definitely vary and hence the discrepancies with regard to boundaries mentioned in gift deed, which is not proved, cannot be taken to disbelieve the case of the defendant no.1. 17. He further contended that the trial court had categorically held that Ex.A-4 gift deed is not proved by the plaintiffs, still it relied on Ex.A-4 and the approved plan Ex.A-9 of D-2 and Exs.A-10 and A-11 and the oral evidence of P.Ws.2 and 3 who happened to be the one of the vendees of the deceased plaintiff to hold that plaintiffs are in possession of the suit scheudle property. He contended that when once the gift deed under Ex.A-4 is held to be not prove, the court below cannot place any reliance on the said document. He further contended that for the proceedings under Ex.A-10 and A-11, which are execution proceedings in O.S.No.76/79, the defendants are not the parties and in view of the above circumstances, the findings of the courts below are perverse and needs to be set aside. 18. He submitted that late Krishna Rao sold an extent of 517 sq.yards to one Kasulabanda Ramakrishna Reddy, out of the suit schedule property under registered sale deed on 6th Teer, 1356 Fasli for a consideration of Rs.1,000/-, which is marked as Ex.B-2 and he in turn sold the same to 1st defendant initially under an unregistered sale deed and later executed registered sale deed on 11.7.1985, which is marked as Ex.B-4. He stated that 1st defendant during the course of evidence has stated that there was an agreement of sale under Ex.B-5 between late Krishan Rao and Ramkrishna Reddy and in pursance of the same, he executed registered sale deed under Ex.B-2. But the 1st defendant failed to prove Ex.B-5. He stated that once the sale deed is registered, the agreement of sale becomes insignificant and no adverse inference can be drawn for not proving the said unregistered sale deed. He contended that the 1st defendant has examined the sub registrar as D.W.3 who categorically deposed that Exs.B-2 and B-4 sale deeds are true and genuine documents. But the courts below disbelieved them and furthermore, the tiral court held that the genuineness or otherwise of those documents need not be gone into. This finding of the courts below is perverse and needs to be interfered with. He stated that the defendants in order to prove their claim, have produced the relevant documents and examined the official witnesses apart from other witnesses to prove their title and possession, but the courts below failed to appreciate the said evidence in proper perspective. He contended that the burden is on the plaintiffs to prove their case and they cannot rely on the weakness of the defendant. He contended that assuming for the sake of argument that defendants failed to prove their case, still the plaintiffs cannot succeed, unless they establish their claim. He stated that the courts below erroneously placed burden on the defendant to prove his claim, which is against the settled principle of law. With these contentions, he sought to allow the second appeal and dismiss the suit. 19. During the course of arguments, the learned counsel for the appellant raised the following substantial questions of law: i) Whether the plaintiff is entitled for declaration of title without establishing the genuineness and validity of Ex.A-4? ii) Whether the plaintiff discharged his obligation by duly proving Ex.A-4 registered sale deed? iii) Whether the plaintiff is entitled to claim title and possession based on manipulated gift deed (Ex.A-4) and basing on the weakness of defendants case? iv) Whether the courts below are justified in decreeing the suit of plaintiff having held that Ex.A-4 gift deed is not genuine one? v) Whether the plaintiff established the location and identity of suit property out of Sy.No.1839 by specific boundaries and dimensions? vi) Whether the courts below are justified in discarding or disbelieving the evidence of D.W.3 Sub-registrar who is an official witness, to arrive at a conclusion that Ex.A-4 is a genuine document, which is contrary to the official records? vii) To what relief? 20. The learned counsel for the appellant also raised the following additional substantial question of law: “Whether the findings of courts below are perverse and contrary to the evidence on record.” 21. The learned counsel for the respondents objected for raising the additional substantial question of law and further submitted that this court cannot re-appreciate the evidence and whether a finding of fact reached by courts below is against the weight of evidence or not, is a question, which will remain in the realm of appreciation of evidence and does not project any question of law, much less, any substantial question of law and hence cannot be interfered with. He further contended that the jurisdiction under Section 100 of C.P.C. can be exercised on the basis of substantial question of law framed at the time of admission of appeal. In support of his contentions, he relied on the judgments reported in DNYAOBA BHAURAO SHEMADE, v. MAROTI BHAURAO MARNOR[6], TAHERAKHATOON (D) BY LRS. V. SALAMBIN MOHAMMAD[7], KONDIBA DAGADU KADAM v. SAVITRIBAI SOPAN GUJAR AND OTHERS[8], G.AMALORPAVAM v. R.C.DIOCESE OF MADURAI[9] and SUKHDEV KAUR v. HOSHIAR SINGH AND ANOTHER[10] 22. On the above contentions, of the learned counsel for the respondents, the learned counsel for the appellant/defendant no.1, placing reliance on proviso to Section 100 of C.P.C, submitted that if the court is satisfied that the case involves any other substantial question of law, which is not framed, it can, by recording reasons and hearing the parties, can formulate such substantial question of law. The learned counsel for the appellant also relied on the judgment of the Apex Court reported in DHARAM SINGH v. KARNAIL SINGH[11] in support of his contention. 23. On the other hand, the learned counsel for the respondents while reiterating the plaint averments and supporting the impugned judgments of the courts below, further contended that even assuming that the gift deed is only for 1625 sq. yards, still the defendants have no case. He contended that boundaries will prevail over the extent and the boundaries mentioned in Ex.A-4 are tallying with Ex.B-3 and the plaintiffs proved their title and possession. He stated that Ex.A-4 which is the gift deed executed by late Dr.Krishna Rao had fallen for consideration in another suits which are marked as Ex.A-16 and A-17 and the said judgment and decree have been confirmed by the High Court in the second appeal in S.A.No.60/1993 dated 2.9.2003 and in the said suit, it was held that Ex.A-4 is genuine one. He further contended that both the courts below have categorically held that the plaintiffs proved their title and possession over the suit schedule property, and these being findings of fact cannot be interfered with by this court under second appeal. 24. The learned counsel for the respondents also filed written arguments reiterating the plaint averments and the findings of both the courts below and the above contentions. With these contentions, the appeal is sought to be dismissed. 25. In view of the above rival contentions and the questions of law raised by the counsel for the appellant and the substantial questions of law framed for consideration at the time of admission of the appeal, I feel it appropriate to consider the second appeal on the following substantial question of law, which covers all the contentions raised by both the counsel: “Whether the findings of the courts below on the title and possession of the plaintiffs are based on evidence and not vitiated by perversity?” 26. Though the counsel for the respondents raised objection that no additional substantial question of law can be framed unless he is given an opportunity to make submissions, the said objection cannot be countenanced in view of the proviso to Section 100 C.P.C., since this court is of the view that the case involves the above substantial question of law, and moreover both the counsel have made elaborate arguments, taking this court through the entire evidence and the findings of both the courts below. Hence both the counsel were given sufficient audience to make submissions. This court in order to consider the entire gamut of the case, after giving sufficient opportunity to both the counsel, framed the above substantial question of law for comprehensive adjudication of the matter. The judgments relied on by the counsel for the respondents are not applicable to the facts of this case, since, in the present case, the trial court having held that Ex.A-4 gift deed on which the plaintiffs traced title, is a tampered document, still decreed the suit and hence the aspect of perversity needs to be examined. 27. In order to consider the above substantial question of law, it is necessary to note the case of the respective parties and the evidence, both oral and documentary available on record. 28. It is well settled that the plaintiffs who filed the suit for declaration of title and possession have to succeed on the strength of their own title and not on the weakness of the case of the defendants and that the defendants need not plead and prove the possible defects in plaintiffs title and that even if the defendants fail to establish their title, the plaintiff must be non-suited, if they fails to establish their title. A Division Bench of this court in SAJANA GRANITIES v. MANDUVA SRINIVASA RAO (4 supra) held as under: “10. The Supreme Court in M.P.Athanstus case (AIR 1954 SC 526), M.M.Catholic v. Polo Avira case (AIR 1959 SC 31) and this Court in C.Audilakshmamma case (AIR 1973 AP 149) held that plaintiff in a suit for declaration of title, and for recovery of possession, can succeed only on the strength of his own title and that it is not obligatory on the defendants to plead and prove