THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.71 of 1999 Dated: 08th October, 2010 Between:- …Appellant AND …Respondent THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.71 of 1999 JUDGMENT:- In this Second Appeal, the appellant challenges the judgment dated 27.08.1998 passed in A.S.No.8 of 1995 by Senior Civil Judge, Addanki (‘lower appellate Court’, for brevity) whereby and whereunder, the judgment and decree dated 31.03.1995 passed in O.S.No.126 of 1984 by the Additional District Munisif, Addanki (‘trial Court’, for brevity) was set aside. 2. The appellant herein is the first defendant and the first respondent herein is the plaintiff in original suit, i.e., O.S.No.126 of 1984 on the file of Additional District Munisif (Junior Civil Judge), Addanki. Since the first respondent died, he is being represented by his Legal Representatives i.e. R-3 to R-5. The plaintiff filed a suit against defendants 1 and 2, seeking permanent injunction. The said suit was dismissed by the judgment dated 31.03.1995. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.8 of 1995 on the file of the Senior Civil Judge, Addanki. Learned Senior Civil Judge, by judgment dated 27.08.1998, allowed the appeal by setting aside the judgment and decree of the trial Court. Aggrieved by the same, the first defendant in the Original Suit filed this Second Appeal. For the sake of convenience, the parties will be arrayed as they were arrayed before the trial Court. 3. The facts of the case, in brief, are as follows:- The subject matter of the appeal is the land admeasuring Acs.0.60 cents in Survey No.420/2 situated at Kotapadu village, Prakasam District (‘suit schedule property’, for brevity). The suit schedule property originally belongs to one Ravipati Ramamma. Ravipati Ramamma got this property by virtue of a Will executed by her father – G.Adiseshu under Ex.B.5 dated 05.02.1934. Ravipati Ramamma and her husband Veeraiah had no issues. Ravipati Ramamma and her husband had adopted one Ravipati Keshavulu. There were disputes between Ravipati Ramamma and her adopted son Ravipati Keshavulu. Bathina Ramaseethamma (hereinafter referred to as ‘Ramaseethamma’) (P.W.9) is the daughter of step mother of Ravipati Ramamma. Ravipati Ramamma executed a registered Settlement Deed on 16.03.1950 under Ex.A.1 in favour of Ramaseethamma settling several properties i.e. about 26 items including the suit schedule property. The plaintiff is the purchaser of suit schedule property from Ramaseethamma. The plaintiff’s case is that since execution of Ex.A.1, Ramaseethamma had been in possession and enjoyment of the suit schedule property till she sold it to him. The plaintiff’s further case is that he purchased Acs.0.30 cents of land under registered sale deed dated 01.09.1983 from the sons of Ramaseethamma and remaining Acs.0.30 cents of land by another registered sale deed dated 09.12.1983 from Ramaseethamma and her sons and that Ramaseethamma ratified the sale deed dated 01.09.1983 executed by her sons in favour of the plaintiff by executing a ratification deed on 09.12.1983. 4. The defendants’ case is that the suit schedule property originally belongs to Ravipati Ramamma and that she and her husband Veeraiah had adopted one Ravipati Keshavulu and that said Keshavulu filed a suit in O.S.No.60 of 1961 on the file of Subordinate Judge, Ongole, against Ravipati Ramamma, Ramaseethamma and Goruntla Veeraraghavaiah seeking partition of several properties including the suit schedule property and that the said suit ended in compromise and as per the compromise recorded by the Court on 21.11.1968, the suit schedule property was allotted to Ravipati Ramamma and accordingly, the said suit was decreed. It is also the case of the first defendant is that he had purchased the suit schedule property from Ravipati Ramamma under registered sale deed under Ex.B.1 for a valuable consideration on 30.06.1971 and that since then he has been in possession and enjoyment of the suit schedule property. It is also the case of first defendant that Ex.A.1 – Settlement Deed executed in favour of Ramaseethamma was nominal and it was never acted upon. 5. The further case of the plaintiff is that Ravipati Ramamma had no right to alienate the suit schedule property in favour of the first defendant and that she had already lost her title and possession over the suit schedule property by virtue of the registered Settlement Deed executed by her in favour of Ramaseethamma and that the first defendant had fraudulently obtained the sale deed from Ravipati Ramamma in the year 1971. 6. The defendants further case is that after purchasing the suit schedule property from Ravipati Ramamma in the year 1971, he filed a declaration under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, and that he had also mortgaged the suit schedule property with some other property along with Andhra Bank, Addanki and obtained loan and that the bank issued legal notices to him. It is also his case that the original sale deed has been deposited in the bank and, therefore, he filed the certified copy of the sale deed dated 30.06.1971. It is also his case that Ravipati Ramamma and Ramaseethamma jointly and individually executed several documents on 30.06.1971 in favour of the first defendant and others. 7. It is the case of the plaintiff that the second defendant aided the first defendant in obtaining the sale deed from Ravipati Ramamma. It is also alleged by the plaintiff that both the defendants were trying to dispossess him from the suit schedule property. It is also alleged that both the defendants destroyed the field channel through which, the suit schedule property received water. All these allegations have been denied by the first defendant in his written statement. 8. The second defendant filed a written statement and denied the allegations that he aided the first defendant in obtaining the sale deed from Ravipati Ramamma. He has also denied the allegation that he along with the first defendant destroyed the field channel through which the suit schedule property received water. The second defendant’s further case is that he has purchased the land situated to the west of the suit schedule property, which originally belongs to one Guntupalli Swamulu and that one Kallem Venkayamma purchased the said land from said Swamulu and that from Kallem Venkayamma, he purchased the said land under registered sale deed dated 16.11.1984 and that his vendor had shown the eastern boundary, in the said sale deed as the land of the first defendant. 9. On behalf of the plaintiffs, the plaintiff himself was examined as P.W.1 and second defendant was examined as P.W.2 and other witnesses on his behalf were examined as P.Ws.3 to 10 and Exs.A.1 to A.12 were marked. On behalf of the defendants, the first defendant was examined as D.W.1 and Exs.B.1 to B.14 were marked. 10. Basing on the above pleadings, the trial Court framed necessary issues. The trial Court, relying on Ex.B.7 - Certified copy of the Compromise Petition in O.S.No.60 of 1961, came to the conclusion that the suit schedule property, which is item No.6 in the said Compromise Petition, was allotted to Ravipati Ramamma as per the said Compromise Deed and, therefore, whatever rights that were conferred under Ex.A.1 – Settlement Deed in favour of Ramaseethamma stood ceased by subsequent Compromise Decree in between the settler and the settlee. It was also opined that Ex.A.1 – Settlement Deed in favour of Ramaseethamma was not acted upon insofar as the suit schedule property is concerned. It was also opined that Ravipati Ramamma, along with Ramaseethamma, executed Exs.B.1 to B.4 and if at all Ravipati Ramamma had no subsisting title, there was no necessity for her to take part in alienating the properties under Exs.B.1 to B.4. It was also held that since Ex.B.14 – Registered Sale deed executed by Ravipati Ramamma in favour the first defendant was also executed on the same day i.e. on 30.06.1971, it shows that Ramaseethamma had every knowledge about execution of Ex.B.14 by Ravipati Ramamma and that neither Ravipati Ramamma nor Ramaseethamma ever challenged or disputed Ex.B.14. It was also held that the defendant was in possession of the suit schedule property and that he raised loans from banks. Holding so, the trial Court dismissed the suit 11. On appeal by the plaintiff in the original suit, the lower appellate Court, however, did not agree with the findings of the trial Court and on re-appreciation of the entire evidence on record, allowed the appeal by setting aside the judgment and decree passed by the trial Court. The lower appellate Court observed that from the recitals of Ex.A.1, it is clear that Ravipati Ramamma settled suit schedule property along with other properties on Ramaseethamma and that there is a clear recital in Ex.B.7 that the plaintiff in O.S.No.60 of 1961, Ravipati Keshavulu, has no right to question Ex.A.1 and thereby title of Ramaseethamma is unquestionable and Exs.A.2 and A.3 proves that the plaintiff purchased the suit schedule property and the oral evidence and recitals of Exs.A.7, A.8 and A.9 proves the possession of the plaintiff over the suit schedule property. Aggrieved by the same, the first defendant in the original suit filed this appeal. 12. Sri T.Rajendra Prasad, learned counsel for the appellant/first defendant submitted that admittedly, the suit schedule property originally belongs to Ravipati Ramamma and that as there were some disputes between Ravipati Ramamma and her adopted son Ravipati Keshavulu, she had executed Ex.A.1 – nominal Settlement Deed in favour of Ramaseethamma on 16.03.1950 and it was never acted upon. It is also his submission that the adopted son of Ravipati Ramamma – Ravipati Keshavulu filed a suit in O.S.No.60 of 1961 and that the said suit ended in compromise in the year 1968 and as per the terms of compromise, the suit schedule property was allotted to Ravipati Ramamma. It is also his submission that Ravipati Ramamma sold the suit schedule property to the first defendant and on the same day, Ravipati Ramamma and Ramaseethamma executed registered sale deeds under Exs.B.1 to B.4 and sold several properties covered under Ex.A.1 and these circumstances show that Ex.A.1 – Settlement Deed in favour of Ramaseethamma was nominal and it was never acted upon. It is also his submission that the first defendant purchased the suit schedule property on 30.06.1971 and since then, he has been in possession and enjoyment of the same and that Ramaseethamma had no right to sell the suit schedule property to the plaintiff and that Ravipati Ramamma had also no right to execute Ex.A.5 –Registered Cancellation Deed dated 09.12.1983, that too, after a period of twelve years after selling the suit schedule property to the first defendant. It is also his submission that a registered sale deed cannot be cancelled by executing a cancellation deed. He had relied on the decision of this Court in case between Property Association of Baptist Churches, Kavali, Nellore, Regional Office, Preston Institute, Jangaon, Warangal District Vs. Sub-Registrar, Jangoan, Warangal District and others[1]. It is also his submission that Ramaseethamma had also signed on the Compromise Petition in O.S.No.60 of 1961, and, therefore, she is bound by the terms of the compromise and that she had no right to sell the suit schedule property to the plaintiff. It is also his submission that as far as the possession of the suit schedule property is concerned, Ex.A.8 – Certified copy of Adangal for the year 1981 – 83 shows that first defendant was in possession of the suit schedule property as on the date of filing of the suit. It is vehemently argued that if at all the facts and circumstances are taken into consideration, the only conclusion that can be reached is that, the first defendant was in possession of the suit schedule property and that he was illegally dispossessed after filing of the suit. It is also his submission that the plaintiff ought to have examined Ravipati Ramamma who is a crucial witness and for non-examination of Ravipati Ramamma, an adverse inference has to be drawn against the plaintiff. In support of this contention, he had relied upon the judgment between Pisipati Punnakotiah (died) and others Vs. Kallapalli Kolikamba and others[2]. It is also his submission that the plaintiff had filed a suit for mere injunction and when there is serious dispute with regard to the title, the plaintiff ought to have amended the suit seeking the relief of declaration of title. 13. Per contra, Sri M.V.S. Suresh Kumar, learned counsel for the respondent / plaintiff submitted that admittedly, Ravipati Ramamma is the original owner of the suit schedule property and that she had settled the property in favour of Ramaseethamma and once the property is settled in favour of Ramaseethamma, Ravipati Ramamma looses her title and she will not have any subsisting title to alienate the said property at a subsequent stage. It is also his submission that even as per the compromise entered into between the parties in O.S.No.60 of 1961, the suit schedule property had been allotted to Ravipati Ramamma and that she also executed a deed canceling the sale deed executed in favour of the first defendant. It is also argued that though the first defendant claims that he purchased the property in the year 1971, he has not filed a scratch of paper to show that he was in possession of the property from 1971 to 1983. It is also his submission that the plaintiff purchased the property from Ramaseethamma and by virtue of his sale deeds, he continues to be in possession. It is also his submission that the plaintiff, in support of his contention, examined P.Ws.1 to 9, i.e., all the neighboring land owners and that on behalf of the defendants, except the first defendant, no other witness has been examined. It is also his submission that stray entry of possession in Ex.A.8 – Certified copy of Adangal for the year 1981 – 1983 does not prove the possession of the first defendant. It is also his submission that presumption may be drawn both backward and forward depending upon the nature of the things and surrounding circumstances as per illustration ‘D’ of Section 114 of the Indian Evidence Act. Reliance is placed on the judgment in case between Ambika Prasad Thakur Vs. Ram Ekbal Rai (died)[3]. Relying on the judgment in case between Ammanamanchi Venkateswarlu Vs. Thummuri Ganga Raju[4], it is submitted that mere land revenue receipts do not show the possession of the first defendant. It is also his submission that admittedly, Ravipati Ramamma executed a Settlement Deed in Ex.A.1 in the year 1950 and after execution of the same, the settler cannot subsequently alienate the same property in favour of others. In support of this contention, learned counsel has relied on the judgment in case between Namburi Basava Subrahmanyam Vs. Alapati Hymavathi[5]. 14. In reply, learned counsel for the appellant / first defendant submitted that by executing Ex.A.5 – Cancellation Deed by Ravipati Ramamma, it becomes an admitted case that she executed Ex.B.1 – registered sale deed in favour of the defendant in the year 1971 and from the date of execution of the sale deed in favour of the first defendant till the date of its cancellation, the period is more than twelve years and this itself shows that the first defendant had perfectly strayed by way of adverse possession. 15. As seen from the grounds of appeal, the substantial questions of law that arise for consideration in this appeal are as follows: 1. Whether the lower appellate Court is right in relying on Ex.A1 settlement deed which was never acted upon by the parties thereto and in view of the compromise decree in O.S. No.60/61 on the file of the Sub-Court, Ongole; 2. Whether a registered sale deed can be cancelled by the vendor by executing a cancellation deed without notice and knowledge of the vendee of the said sale deed; 3. Whether the Court below is right in deciding the possession and enjoyment of the suit schedule property without considering the possession of the appellant in view of Ex.B14 registered sale deed dated 30.06.1971, admittedly executed by Smt. Ramamma in favour of the appellant; 4. Whether the finding of the lower appellate Court that the plaintiff is in possession and enjoyment of the suit schedule property by placing reliance on Ex.A9 to A12 which are the documents came into existence subsequent to the suit and in the absence of specific pleading by the plaintiff that he was put in possession of the property on such and such date is not perverse; and 5. Whether the judgment of the lower appellate Court has legs to stand in the absence of deciding the adverse possession pleaded by the appellant. 16. I have considered the above rival contentions. It has to be seen that this is an appeal filed against the judgment and decree of the lower appellate Court by which the judgment of the lower Court was reversed. Thus, this is an appeal against the reversal judgment. So, the findings of both the Courts blow are not concurrent in this case. The general rule is that the High Court will not interfere with the concurrent findings of the Courts below. Even if the findings of the Courts below are concurrent, but where they have ignored the material evidence or had drawn wrong inference from the proved facts or wrongly cast the burden of proof on any party, then in those circumstances the High Court can interfere even at the stage of second appeal. As discussed above the Courts have to read the entire evidence before drawing any conclusions. 17. It is the bounden duty of the Courts to meticulously read the entire evidence on record. Unless the Judge reads the entire evidence, he may not be in a position to draw correct conclusions. Thus, the conclusions of a Court must be based on critical analysis of the evidence and on sound reasoning. The circumstances under which a document was executed, the intention of the parties and the subsequent events have to be taken into consideration to decide whether it is a nominal document and acted upon or not. 18. It appears from a close reading of the entire material on record that the trial Court has properly appreciated the evidence on record. It should be never forgotten that the trial Court Judge will have an opportunity to observe the demeanor of the parties and the witnesses examined before it. Therefore, a superior Court should be slow in disturbing the findings of the trial Court. Unless and until it appears that the appreciation of the evidence is not proper and the findings are not based on evidence, the appellate Court will not be justified in substituting its own conclusions in the place of the conclusions already reached by the trial Court. POINT No.1:- 19. Coming to the facts of the case on hand, it is not in dispute that Ravipati Ramamma executed Ex.A.1 – registered Settlement Deed dated 16.03.1950, in favour of Ramaseethamma settling several properties, i.e., 26 items on her. Admittedly, Ravipati Ramamma and her husband had no issues. It is also not in dispute that they had adopted Ravipati Keshavulu and subsequently, disputes arose between Ravipati Ramamma and Ravipati Keshavulu. 20. The circumstances under which Ex.A.1 was executed should be taken into consideration. Admittedly, Ravipati Keshavulu, the adopted son of Ravipati Ramamma, was claiming right over several properties including the suit schedule property and as such there were disputes between them. Certain crucial admissions appear to be not taken into consideration by the lower appellate Court. The important witness examined in this case is Ramaseethamma (P.W.9). She had categorically admitted that in view of the disputes between Ravipati Keshavulu and Ravipati Ramamma in O.S.No.60 of 1961, Ravipati Ramamma executed Ex.A.1 – Settlement Deed dated 16.03.1950 in her favour. As referred above, 26 items were settled on Ramaseethamma. These circumstances and particularly admission of PW.9 itself gives an impression that Ex.A1 was executed in order to defeat the claim of Ravipati Kesavulu. 21. Now it has to be seen whether Ramaseethamma exercised her right after execution of Ex.A1. Admittedly, Ravipati Ramamma executed the sale deed i.e., original of Ex.B.14 and sold the suit schedule property to the first defendant on 30.06.1971. This circumstance itself shows that Ravipati Ramamma had exercised her rights over the suit schedule property to the knowledge of one and all and the evidence on record shows that even to the knowledge of Ramaseethamma. There is nothing on record to show that Ravipati Ramamma ever challenged the sale deed executed in favour of the first defendant at any time till she executed the cancellation deed under Ex.A5 on 09.12.1983. The plaintiff ought to have filed any document to show that Ramaseethamma in fact enjoyed the suit schedule property from 16.03.1951 i.e. from the date of Ex.A.1 till he purchased the suit schedule property from her in 1983. Admittedly, no documents have been filed by the plaintiff to show that Ramaseethamma enjoyed the suit schedule land at any time or at least from the year 1951 to 1971. Even Ex.A7 the 10(1) account and Ex.A8 the certified copy of Adangal, though show the name of Ramaseethamma, do not show her exclusive possession over the suit schedule property rather the recitals of those documents reveal that Ravipati Ramamma’s name was continued as owner of the land in the revenue records. Now it has to be seen that admittedly Ravipati Ramamma and Ramaseethamma had jointly executed several sale deeds in Exs.B1 to B4 selling several items covered by Ex.A1. Ex.B.1 – Sale deed executed by Ravipati Ramamma and Ramaseethamma in favour of Guntupalli Swamulu on 30.06.1971. On the same day they had jointly executed Ex.B.2 and B3. Ex.B2 is the sale deed executed in favour of Guntupalli Sree Ramulu and Ex.B.3 is the registered sale deed executed in favour of Rachagiri Venkateshwarlu and also Ex.B.4 is the registered Sale deed executed by Ramaseethamma in favour of Gaddam Rama Bapaiah. Thus, it is clear that except Ex.B.4, the other documents i.e. Exs.B.1, B.2 and B.3 were jointly executed by Ravipati Ramamma and Ramaseethamma. It has to be seen that on the same day when the original of Ex.B.14 – Sale deed was executed by Ravipati Ramamma in favour of the first defendant, Exs.B.1 to B.4 were also executed. A perusal of the recitals of Ex.A1 and Exs.B1 to B3 reveal that certain lands in Sy.Nos.63, 389/2, 354/2 and 360/11, settled on Ramaseethamma under Ex.A1, were sold by Ravipati Ramamma and Ramaseethamma jointly on 30.06.1971. If at all Ex.A1 was acted upon, there was no necessity for Ravipati Ramamma to execute Exs.B1 to B3 along with Ramaseethamma. The other circumstances are admittedly, the suit schedule property was item No.6 in the ‘B’ Schedule property in O.S.No.60 of 1961 instituted by Ravipati Keshavulu against Ravipati Ramamma on the file of the Subordinate Judge, Ongole. Thus, the suit schedule property was claimed by Ravipati Keshavulu as one of the items to be partitioned between him and his adoptive mother Ravipati Ramamma. The recitals of the terms of compromise in Ex.B7 entered into between parties in O.S. No.60 of 1961 show that the parties agreed not to challenge Ex.A.1 i.e. settling of the suit schedule land on Ramaseethamma, but however in Para ‘D’, it is mentioned that ‘B’ Schedule property which includes suit schedule property, shall be allotted to Ravipati Ramamma. Thus, the recitals of Ex.B7 are not clear and they create a doubt as to whether the suit schedule property was allotted to Ravipati Ramamma or Ramaseethamma in the compromise entered in O.S.No.60 of 1961. There is another circumstance which suggest that even Ramaseethamma had knowledge about the execution of sale deed in favour of the first defendant on 30.06.1971. Admittedly, Exs.B1 to B.4 and original of Ex.B14 were executed on the same day. The attestor of Exs.B1 to B3 and the original of Exs.B14 is one and the same person. Similarly, the scribe of Exs.B1 and B2 and Ex.B14 is also one and the same person. Ramaseethamma admitted that she was present along with Ravipati Ramamma in the office of