*HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO + APPEAL SUIT No.267 of 1995 and C.R.P.No.998 of 2002 % 20-03-2014 A.S.No.267 of 1995 #Kakarla Rosenna and others ….Appellants Vs. $ Thammineni Narasappa and others …. Respondents C.R.P.No.998 of 2002 #Kakarla Rosenna ….Petitioner Vs. $ T.Narasappa and others …. Respondents !Counsel for the Appellants : Sri V.Ravinder Rao & Sri O.Manoher Reddy Counsel for the Respondents: Sri R.Subba Rao <Gist : >Head Note: ? Cases referred: 1. AIR 2003 SC 1989 2. AIR 1963 SC 1516 3. AIR-2001-SC-965 4. (2003(5)-SCC-89) 5. 1975(1)SCC 212 6. AIR-1976-SC-634 7. AIR-1969-SC-1144 8. 2011(8) SCALE 240 9. AIR 1989 SC 193 10. AIR 1987 SC 1242 11. AIR 1966 SC 735, 12. AIR 1954 SC 458 13. AIR 1953 SC 235 14. AIR 1995 SC 167 15. AIR 1988 SC 719(B) 16. 1991 (3) SCC 331 17. 1998(5)-ALD-349 18. 2003(8)-Supreme Today-194 at 196 19. (2009) 3 SCC 287 20. AIR 1984 SC 664 21. (1994) 5 SCC 167 22. 1911 ( 35) Bombay-169 23. 1915(39) Bombay 441 24. AIR 1951 PC 7 25. AIR 1963 SC 185 at 193 26. 1870 (7) Bombay HCAC 153 27. 1869 (12) MIA 350 28. 1909 (36) Cal 824 29. AIR 1961 SC 1302 30. 1906 (28) All. 377 31. AIR 1926 PC 1927 32. AIR 1970 SC 1673 33. 1868(4) MHCR 169 Contd… 34. 1881 (6) Cal. 381 35. AIR 1937 Bombay 169 36. AIR 1939 PC 152 37. AIR 1955 MB 129 38. AIR 1954 Raj. 17 39. AIR 1961 SC 1378 40. 2010(3) Scale 569 41. AIR 1956 SC 593,para 23 page 602 42. AIR 1965 SC 241 at para 17&18 43. AIR 1919 PC 162 44. 1971(1) APLJ-338 45. AIR 1959 (A.P) 360 46. ILR 1914 MADRAS 529 47. 1962(2) SCJ 472 48. 2010(3) SCALE 569 49. AIR 1956 SC 593 50. AIR 1965 (SC) 241 51. ILR 1937 Madras 529 52. (1997)2 SCC 630 53. AIR 1983 (SC) 114 HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO APPEAL SUIT No. 267 OF 1995 & C.R.P.No.998 of 2002 COMMON JUDGMENT: A.S.No.267 of 1995 1) The 1st defendant-Kakarla Rosenna among 3 plaintiffs including Narayanamma and Ch.Narayana filed this appeal against the four plaintiffs T.Narasappa, Ch.Narayana Swamy, Ch.Narasimhulu and Ch.Rajendra, aggrieved by the Judgment and decree dated 23.01.1995 in O.S. No.102 of 1985 on the file of Principal Subordinate Judge, Anantapur. C.R.P.No.998 of 2002 1(a) Said 1st defendant in O.S.No.102 of 1985 (being the appellant in A.S. No.267 of 1995) filed this revision aggrieved by the order in final decree petition against him in I.A. No.467 of 1998 in O.S. No.102 of 1985 on the file of Principal Senior Civil Judge, Anantapur. 2) Pending appeal the appellant-1st defendant of the suit Rosanna died and his L.Rs brought on record as appellants 2 to 4 by name Rangayya, Ananda Kumar and Vijaya Lakshmi as per orders in A.S.M.P. No.153, dated 18.06.2012 and the plaintiff T.Narsappa who was 1st respondent to the appeal also died and his L.Rs brought on record as respondents 7 to 11 by name Narsappa, Ranganna, Jayanarasimhulu @ Jayanna, Pullamma and Narayanamma as per orders in C.M.P.No.22508 of 1998 dated 18.08.1999. Said persons also brought on record during pendency of the final decree petition in I.A. No.467 of 1998 (impugned in the revision) i.e., the 1s t plaintiff T.Narsappa’s L.Rs as petitioners 5 to 7 viz., Narayana, Rangappa and Jayanarasimhulu vide orders in I.A. No.273 of 2000 dated 28.08.2000 and also C.Narasimhulu and Pullamma as respondents 4 and 5 vide orders in I.A. No.72 of 1999 dated 08.03.1999. 3) Since both the matters are interrelated and come out of one and the same dispute between the parties, both matters are clubbed together and the parties are being referred to as were arrayed before the trial Court in the original suit for the sake of convenience. 4) The suit was filed by plaintiffs 1 to 4 seeking partition and separate possession of the plaintiffs’ 5/8th share in the plaint schedule properties by metes and bounds and for mesne profits for three years prior to suit and thereafter till the date of possession of their share against the 1st defendant. The brief averments in the plaintiffs’ case are as follows: 4(a) The schedule mentioned property originally belongs to Balappa, who got married Mangamma, had one son (Chandrappa) and two daughters (Pullamma and Narayanamma). Balappa died in or around 1920 and after 8 years his son Chandrappa died unmarried and the schedule mentioned properties devolved on widow Mangamma, who also died subsequently. Consequent upon the death of Mangamma, her daughter, sole heir, Narayanamma was the absolute owner of the property as the other daughter Pullamma also died during the life time of Mangamma. (b) Narayanamma, sole heir of Balappa, entered into possession of the properties. On 15.06.1959 said Narayanamma executed a gift (Ex.A-7) of half share in favour of Aswarthappa (father of plaintiffs 2 to 4 & 2nd defendant) and defendants 1 & 3 jointly to be enjoyed by the three branches. The other half share in the schedule mentioned property, Narayanamma, gifted in favour of the 1st plaintiff reserving her right to enjoy the same during her life time with limited interest under the gift deed dated 13.04.1973(Ex.A-1). Narayanamma also executed a lease deed in favour of the 1st plaintiff permitting him to cultivate the lands. Subsequently Narayanamma also died. Consequent to the death of Narayanamma, 1st plaintiff became entitled to half share, plaintiffs 2 to 4 and 2nd defendant together are entitled 1/6th share and defendants 1 and 3 each became entitled to 1/6th share in the schedule properties. (c) When disputes arose between the parties, during the life time of Narayanamma, the 1st plaintiff and Narayanamma, filed a suit in O.S. No.274 of 1973 (Ex.B-15-plaint) on the file of District Munsif, Gooty for permanent injunction against 1st defendant and others from interfering with their possession and enjoyment and the same was dismissed, vide its Judgment dated 23.04.1979 (Ex.B-17), on the ground that the 1st plaintiff had not made out that he was in possession and enjoyment of the suit properties. Aggrieved by the same, the 1st plaintiff filed an appeal in A.S. No.119 of 1979 on the file of District Judge, Anantapur and the same was also dismissed vide its judgment dated 24.08.1981 holding that the adoption of the 1st defendant by Narayanamma and illatom affiliation of Rangappa are not true and the plaintiffs had 1/6th share in the suit properties and the defendants 1 and 3 are entitled to 1/6th share in the property. (d) The 1st defendant also filed O.P. No.218 of 1974 which was later numbered as a suit in O.S. No.80 of 1977 (Ex.A-3 Plaint) on the file of Subordinate Judge, Anantapur for declaration of his title to the plaint schedule properties and also for possession of the properties through Court and for mesne profits and the same was dismissed for non-prosecution by the plaintiff therein (1st defendant herein). The 1st defendant is entitled to only 1/6th share in the suit properties and he is not entitled to any of the properties, however, on the ground that he had been dispossessed by virtue of an order of injunction in O.S. No.274 of 1973, he later filed I.A. No.52 of 1979 (Ex.B-19 petition) and took possession of the same by order dated 05.05.1979 and delivery was recorded on 09.05.1979. Though the 1st plaintiff filed a petition for restitution of possession, he was not successful on that count. 5. The 1st defendant filed his written statement and the brief averments are as follows: 5(a) After the death of Balappa, Mangamma took Rangappa as her illatom son-in-law, by giving him in marriage with Narayanamma, agreeing to give him half a share in the properties as per custom and usage prevailing in their community and Rangappa had been living with his wife in his father-in-law’s house at Chayapuram and became the joint owner of the properties along with his wife Narayanamma. After the death of Mangamma, Narayanamma and Rangappa entered into the properties as joint owners and adopted the 1st defendant on 13.11.1942 (Ex.B-1) under a registered deed. Since the date of adoption, the 1st defendant also became a joint owner of the properties along with his parents. Therefore, after the adoption Narayanamma was not the sole and absolute owner of the properties and hence she has no right to execute any gift deed and the said gift deed as stated by the plaintiffs will not confer any rights to the donees and the gift is valid only to the extent of Narayanamma’s share, and even on the date of the alleged gift deed, said Narayanamma is mentally weak for more than 75 years old and not capable of taking care of herself, that taking advantage of the same, 1st plaintiff seems to have played fraud on her and might have obtained the alleged gift deed, which is not valid and enforceable in law. (b) The suit lands were never in possession and enjoyment of the plaintiffs 2 to 4 or defendants 2 and 3. After the death of Narayanamma, the 1st defendant was in joint possession and enjoyment of suit properties, became the sole and absolute owner of the same. The plaintiffs with an intention to grab the properties, started some disputes by filing a suit in O.S. No.274 of 1973 and upon the dismissal, filed an appeal in A.S. No.119 of 1977, which was also dismissed. After filing the suit in O.S. No.274 of 1973, they have obtained an interim injunction order with which they tried to interfere with the rightful possession and enjoyment of the 1st defendant. Under those circumstances, the 1st defendant filed O.S.No.80 of 1977 on the file of Sub-Court, Anantapur and as the injunction was vacated in the previous suit O.S. No.274 of 1973 as it was dismissed, the 1st defendant did not prosecute the same. (c) After the death of Narayanamma and Rangappa being the adopted son and sole and absolute owner of the suit properties, the 1st defendant having possession and enjoyment of the same, paying land revenue also and no one else paying the same and hence, neither the plaintiffs nor the other defendants have any right, title or interest in the suit properties. He got a half share being an adopted son and on the other half, he got it by inheritance on the death of Rangappa and Narayanamma. (d) Since the plaintiffs themselves admitted regarding the prior suit, under which it has been held that the 1st defendant is in physical possession of the suit properties in his own right and that the plaintiffs are not in possession of the same, they cannot be deemed to be in joint possession of the suit properties and since they did not file said suit for possession or for partition, but for injunction, this suit is barred under Order II Rule 2 C.P.C. (d) As far as the mesne profits are concerned, when the 1st defendant was never in wrongful possession of the suit properties and when the 1st defendant is enjoying as a rightful owner, that question does not arise. The defendants 2 and 3 are colluding with the plaintiffs and the suit is liable to be dismissed. 6. Basing on the pleadings of both the parties, the trial Court framed the following issues:- i. Whether the plaintiffs are entitled for partition and separate possession of their due share as claimed? Additional issues: ii. Whether the gift deed dated 13.04.1973 executed by Narayanamma in favour of the 1st plaintiff is true? iii. Whether the gift deed dated 15.06.1959 executed by Narayanamma in favour of Aswarthappa, the 1st defendant and 3rd defendant is true? iv. Whether said gift deeds are vitiated by fraud as mentioned by 1st defendant in para-4 of the written statement? v. Whether Rangappa was the illatom son-in-law of Mangamma as contended by the 1st defendant? vi. Whether the adoption set up by the 1st defendant to Rangappa and Narayanamma is true, valid and binding on the plaintiffs? vii. Whether Narayanamma was not entitled to all the properties but was entitled to only a share as contended by the 1st defendant in para 3 of the written statement? viii. Whether the plaintiffs are entitled to mesne profits? ix. To what relief? 7. During the course of trial, the plaintiff as P.Ws-1 and another witness as P.W-2 were examined on behalf of the plaintiff and marked Exs.A-1 to A-14. Ex.A-1 is the registration extract of gift deed dated 13.04.1973 executed by Narayanamma in favour of the 1st plaintiff, Ex.A-2 is the copy of Judgment in A.S. No.119 of 1979 which was dismissed, Ex.A-3 to A-6 are the copies of plaint, written statement, judgment and decree respectively in O.S. No.80 of 1977, Ex.A-7 is the registration extract of gift deed dated 15.06.1959 executed by Narayanamma in favour of Aswarthappa and others, Exs.A-8 to A-14 are the relevant portions in the evidence of various witnesses including the 1st defendant during the course of trial in O.S. No.274 of 1973. On behalf of defendants the 1st defendant as D.W-1 and another witness as D.W-2 were examined and marked Exs.B-1 to B- 22. Ex.B-1 is registered document dated 13.11.1942 executed by Narayanamma in favour of the 1st defendant, Ex.B-2 is Lagnapatrika of the 1st defendant, Exs.B-3 to B-10 are the tax receipts, Ex.B-11 is the transfer of patta, Exs.B-12 to B-14 are the verification report given by the verification officer of land ceiling tribunal, Anantapur; order passed by L.R.Tribunal and notice of the L.R.Tribunal respectively. Exs.B-15 to B-19 are copies of plaint, written statement, judgment and decree respectively in O.S. No.274 of 1973, Ex.B-20 is the publication in Andhra Prabha dated 05.06.1973, Ex.B-21 is copy of Judgment of High Court of A.P and Ex.B-22 is the relevant portion marked in Ex.B- 16. 8. After considering the entire evidence of witnesses, documents exhibited by both parties and after hearing both sides, learned Principal Subordinate Judge, Anantapur passed preliminary decree on 23.01.1994 holding that the 1st plaintiff is entitled for 1/24th share, plaintiffs 2 to 4 are entitled for 1/24th each, 1st defendant and 3rd defendant are each entitled for 4/24th share and 2nd defendant is entitled for 1/24th share in the plaint schedule properties and also held that the plaintiffs are entitled for mesne profits in respect of their share in the plaint schedule properties. 9. Aggrieved by the same, the 1st defendant, filed the present appeal contending that the decree of partition in favour of the plaintiffs’ is contrary to law, weight of evidence and the trial Court having held the appellant has been validly adopted by Narayanamma by establishing the same vide Ex.B-1 registered deed, which was also attested by Rangappa, ought to have dismissed the suit as the 1st defendant is entitled to all the properties as the absolute owner and the 1st defendant is in continuous possession and enjoyment of all the suit properties since 13.11.1942 for which mutation in the revenue records has also been done in his favour. The 1st defendant further contends that the trial Court ought to have held that Exs.A-1 and A-7 should be invalid as Narayanamma herself given up her rights in all the suit properties under Ex.B-1 and no records establishes possession of Narayanamma at any point of time. The 1st defendant further impugning that merely because no direct evidence after the lapse of over 75 years could be produced, it does not mean that the plea of 1st defendant as regards the illatom of Rangappa and Mangamma cannot be believed and prayed to allow the appeal by setting aside the decree and Judgment dated 23.01.1994 passed in O.S. No.102 of 1985 on the file of Principal Subordinate Judge, Anantapur. 10. After passing of the decree, pending the appeal, the plaintiffs filed I.A. No.467 of 1998 in O.S. No.102 of 1985 under Order XX Rule 18 C.P.C seeking a final decree by appointing a commissioner for demarcation of the schedule properties in terms of the preliminary decree and for assessment of the mesne profits of the schedule properties and when the respondents reported no counter, the learned Principal Senior Civil Judge appointed an Advocate- Commissioner for demarcation in terms of the preliminary decree for assessment of the mesne profits and learned Advocate-Commissioner filed his report. Basing on the report and after considering the entire material on record, the learned Principal Senior Civil Judge allowed the petition on 13.04.2001 in I.A.No.467 of 1998 in O.S. No.102 of 1985 holding that the legal representatives of the 1st petitioner are entitled for mesne profits of Rs.3,60,660/- towards their 12/24th share, petitioners 2 to 4 are entitled to Rs.30,055/- each for their 1/24th share and the 3rd respondent is entitled to Rs.1,20,220/- towards his 4/24th share i.e., 1/6th share. The learned Judge further held that the petitioners are also entitled to 6% interest from the date of the order till the date of realization over the respective amounts to which they are entitled. 11) Aggrieved by the same, the petitioner-1st defendant, filed C.R.P.No. 998 of 2002 impugning the ascertaining of mesne profits as illegal, improper and unjust by exceeding jurisdiction, that even the learned Advocate Commissioner had made a personal inspection and had arrived at Rs.1,64,000/- and odd towards mesne profits and the learned Judge has absolutely no basis to arrive at the figure of Rs.7,21,000/- and odd; that the learned Judge ought to have observed that the entire Anantapur District has been drought hit since over a decade and there has been absolutely no crop on many lands in the district and the Learned Judge ought to have seen and follow the report of the Commissioner regarding the wasteful plants filled upon many lands and prayed to allow the revision by setting aside the decree and order dated 13.04.2001 passed in I.A. No.467 of 1998 in O.S. No.102 of 1985 on the file of Principal Senior Civil Judge, Anantapur. 12. During the course of this appeal the sole appellant died and legal representatives of the appellant-1st defendant were brought on record as appellants 2 to 4 as per order dated 20.06.2013 in A.S.M.P.No.153 of 2013. The 1st respondent-1st plaintiff also died and legal representatives of the 1st respondent also brought on record as respondents 7 to 11 vide orders dated 18.08.1999 in C.M.P.No.22508 of 1998. 13. Heard both sides and perused the material on record. In the course of hearing the appeal, the learned counsel for the appellants reiterated above contentions in seeking to set aside the trial Court’s decree and judgment by dismissal of the suit claim. Whereas it is the contention of the counsel representing the respondents that the appeal claim is speculative and baseless in order to trouble them further, that the trial Court after discussion of the entire evidence on record by proper appreciation of fact and law came to the right and reasoned conclusion but for finding on alleged adoption which they can assail and but for that, for this Court while sitting in appeal, there is nothing more to interfere, hence, to dismiss the appeal. 14. Now the points that arise for consideration in the appeal are: 1. Whether the 1st plaintiff for half share and the remaining plaintiffs 2 to 4 along with 2nd defendant for 1/6th respectively to the claim of 5/8th share for remaining said to be entitled by defendants 1 and 3 each 1/6th out of plaint schedule, entitled to partition with separate possession based on Ex.A-1 to A-7 settlement deeds respectively executed by Narayanamma for the plaint schedule properties respectively as its owner with possession and enjoyment by creating right and reserving life interest possession and enjoyment? 2. Whether plaintiffs are not entitled to partition and possession of any extent over the plaint schedule properties from the claim by 1st defendant as adopted son of Narayanamma and her husband Rangappa ( so called illatum son-in-law of Mangamma widow of Balappa under caste custom in vogue) under Ex.B-1 adoption deed and with claim Narayanamma also divested her right over the plaint schedule properties thereunder and otherwise also from the claim of the 1st defendant perfected title by adverse possession? 3. Whether the trial Court’s decree and judgment granting relief of partition with separate possession and profits is unsustainable and requires interference by this Court while sitting in appeal and if so to what extent including on the quantum of profits arrived by the trial Court in the final decree proceedings impugned in the C.R.P. No.998 of 2002? 4. To what result? 15. As the points 1 to 3 are interrelated, to avoid repetition of evidence point wise and for sake of convenience all the points are taken up together to decide commonly. 16. Before coming to decide the above points 1 to 3 for consideration, it is apt to state the settled position of law in dealing with appreciation of the evidence by the appellate Courts and powers of the appellate Court that: 16(a) As per Banarsi Vs.Ramphal [1] and Pannalal V. State of Bombay[2] (5 judges bench), the 1st appellate Court must re- appreciate (appreciate afresh) the entire evidence in giving its findings supported by reasons as to decide the lis and therefrom to find how far the decision of the trial court on any of its findings and conclusions are correct or incorrect, including for confirmation or reversal of said findings of the trial Court and the appellate Court for that is conferred with powers of width amplitude under Order XLI Rule 22,24 and 33 so as to do complete justice between the parties and such power is unfettered to make whatever order it thinks fit, even between co- respondents, for ordinarily cross-objections between co-respondents they do not prefer. It is also as per Santosh Hazari V. Purushottam Tiwari[3] and Madan Lal V. Yoga Bai [4] , and Harihar Prasad Singh V. Balmiki Prasad Singh[5], that in Civil appeals, particularly in first appeal, the appreciation of evidence is at large like appreciation of evidence in a suit, more particularly from Order XLI, Rule 33 and 24 C.P.C. No doubt, the burden of showing that the judgment or even a finding therein under a challenge in appeal is wrong or incorrect either wholly or in part lies on the appellant and same is also the proposition in the course of the cross-objections as the cross-objectors are at par with appellants so far as their contentions in the cross-objections concerned, in the course of the cross-objections in shifting the burden on them, from hearing the main appeal. Coming to the powers of the 1st appellate Court in this regard concerned, more particularly from Order XLI, Rule 33 and 24 C.P.C. and from several expressions of the Apex Court including Koksingh V. Deokabai[6]; Gaisi Ram V. Ramji Lal[7] and Madan Lal (supra), that the 1st appellate court is competent to grant relief if finds appropriate on any facts though that was not granted by the trial Court in rendering complete justice and prevent to the extent possible scope for further litigation and to give finality to the lis. It is in spite of non-filing of appeal or cross-objections with any specific plea, for granting such relief it is within the power of the appellate Court, subject to the rider that it cannot grant more relief than what was granted by the trial Court for want of cross-objections Ranjan Prakash V. Divisional Manager[8] and Banarsi (supra). It is needless to say the 1st appellate Court desires to reverse the judgment and decree of lower Court, it should discuss the findings and set aside those which are unsustainable either on fact or on law. 16(b) It is also the well-settled proposition of law from S.B. Noronal V. Prem Kundi [9] that, pleadings are not statutes and legalism is not verbatim. Common sense should not be kept in cold storage, when pleadings are construed. In Ram Sarup Gupta Vs. Bishur Narain Inter College [10] referring to the constitution Bench expression in Bhagwati Prasad V.Chandramaul [11] and Sheodhari Rai V. Suraj Prasad