THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.1419 AND 1420 OF 2010 04.11.2011 Between: Ganti Rama Rao …. Appellant AND G.Subba Lakshmi And another. … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.1419 AND 1420 OF 2010 COMMON JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) G.V.Krishna Murthy and G.Rama Rao are sons of late Subrahmanyam and late Sundaramma. Rajahmundry Municipality (hereafter, Rajahmundry Corporation) allotted house bearing No.23-4-32 (house No.25) with appurtenant land admeasuring 127 square yards, in Rajahmundry, to Sundaramma. Rama Rao was employed in Pune. Sundaramma allegedly executed Will dated 09.03.1990 in favour of Krishna Murthy. After her death, Krishna Murthy approached the Rajahmundry Corporation seeking execution of sale deed for the house, which was bequeathed to him. A sale deed was accordingly executed in his favour on 27.08.1999. Rama Rao was allegedly inducted as a licensee into a portion of the said house. It appears he commenced business of manufacturing steel almyrahs causing sound pollution. Therefore, he was asked to vacate, in vain. After issuing legal notice on 29.05.2002, Krishna Murthy instituted O.S.No.187 of 2004on the file of the Principal Senior Civil Judge, Rajahmundry, for eviction and recovery of possession of Rama Rao. During the pendency, Krishna Murthy died and his wife Subbalakshmi came on record. The defendant in the suit made a counter claim for declaration and recovery of possession of a portion of suit schedule property in possession of the other side. The Court of Principal Senior Civil Judge decreed the suit for recovery of possession after evicting the defendant, but denied past profits. The counter claim was rejected. The defendant filed two appeals being A.S.No.83 of 2008 against the decree of eviction and A.S.No.84 of 2008 against rejection of counter claim. The plaintiff filed cross-objections in A.S.No.84 of 2008 for past profits. The Family Court-cum- Court of Additional District Judge, Rajahmundry, by common Judgment dated 23.02.2010 dismissed defendant’s appeals and allowed cross-objections awarding past profits of Rs.6,900/-. Aggrieved by the same, S.A.Nos.1419 and 1420 of 2010 are filed against A.S.Nos.83 and 84 of 2008 respectively. The admitted fact of the matter is as follows. The first defendant is younger brother of the first plaintiff. He was working in Central Institute of Fisheries Education, Bombay. The first plaintiff was staying with his mother who was allotted suit schedule house by Rajahmundry Corporation. According to the first plaintiff, his mother executed Will in his favour bequeathing suit schedule property and based on the same he approached Rajahmundry Corporation and obtained registered sale deed dated 27.08.1999 by the Corporation. He allowed his younger brother as a licensee to stay in a portion of house, but he caused nuisance by manufacturing steel almyrahs. Therefore, he got issued legal notice dated 29.05.2002 for eviction, in vain. Again in 2004, when the first defendant made attempts to raise unauthorized constructions, after issuing telegraphic notice, the suit was filed. The second defendant – Rajahmundry Corporation was impleaded subsequently. They filed a separate written statement making the following averments. The suit schedule house was originally allotted to Sundaramma. The Corporation informed the two brothers as persons interested in obtaining sale deeds to submit their applications. The first plaintiff alone submitted application. Therefore, a paper publication was made on 24.02.1994 inviting objections for execution of sale deed in favour of first plaintiff. No objections were received, and therefore, Rajahmundry Corporation executed sale deed on 27.08.1999 in favour of the plaintiff. The first defendant opposed the suit. He alleged that Sundaramma executed Will in his favour on 08.02.1984, he is the exclusive owner of the entire property and that the sale deed executed by Rajahmundry Corporation is not binding on him, and therefore, the suit for eviction is not maintainable. He denied the Will executed by Sundaramma in favour of first plaintiff. The trial Court framed seven issues including additional issues. The second plaintiff gave evidence as P.W.1 besides bringing three other witnesses. She also marked Exs.A.1 to A.17. Ex.A.8 is Will dated 09.03.1990 executed by Sundaramma in favour of the first plaintiff and Ex.A.1 is the sale deed executed by Rajahmundry Corporation. Ex.A.2 is the legal notice dated 29.05.2002. The defendant examined seven witnesses and marked twenty four documents (Exs.B.1 to B.24). After considering evidence, the trial Court came to the conclusion that Ex.B.2, Will, set up by the first defendant stood cancelled by Ex.A.8, Will executed by Sundaramma in favour of first plaintiff; that the first plaintiff is the rightful owner in view of Ex.A.1, sale deed executed by Corporation; and that the first defendant has no right to continue in possession of the suit schedule property. While decreeing the suit, the past profits were denied giving liberty to the second plaintiff to file a separate application for ascertainment of future profits. As noticed supra, in the two appeals filed by the first defendant, the first appellate Court considered the matter again in the light of the evidence and dismissed both the appeals and allowed cross-objections filed by the second plaintiff ordering payment of past profits, while observing that the second plaintiff would be entitled for future profits from the date of the suit till the date of delivery of possession to be determined by separate application. The counsel for the appellant/first defendant made the following submissions. The mother of the first plaintiff and first defendant executed Ex.B.2 Will in favour of the later; and therefore, the suit schedule property allegedly belongs to the appellant. Even if Ex.A.1, sale deed, is exclusively in the name of first plaintiff, the fist defendant has a share therein as a co-owner and there cannot be a suit for eviction of co-owner. He would also contend that the Will, Ex.A.8, dated 09.03.1990, was set up by the second plaintiff which altogether a new case, and therefore, the Courts below ought to have disbelieved it. Per contra, the counsel for first respondent/second plaintiff would submit that when the first appellate Court rejected Ex.B.2, Will, set up by the first defendant and Ex.A.8, Will set up by the plaintiffs and proceeded on the basis of Ex.A.1, sale deed, executed by Rajahmundry Corporation in favour of the deceased first plaintiff, at the stage of second appeal, the other issues are irrelevant. He would submit that after death of Sundaramma on 23.03.1991, Rajahmundry Corporation issued notice to both the brothers; it is only the first plaintiff who approached for obtaining sale deed and it is only he who paid the necessary amounts and obtained necessary sale deed, and therefore, he is the absolute owner of the property. As rightly pointed out by the first appellate Court, when the plaintiffs came to the Court seeking for eviction and recovery of possession based on title, the burden is on them to prove that they have title and are entitled to evict the first defendant. They relied on Ex.A.1, sale deed; Ex.A.9, mutation proceedings and Ex.A.10, bunch of tax receipts. These would clinchingly show that it is the first plaintiff, who till his death, was recognized under Ex.A.1, as the rightful owner. Further, when Ex.A.2, notice, dated 29.05.2002 was issued by the first plaintiff terminating licence and claiming the right to evict the defendant, curiously reply notice was not issued. The explanation now offered that there was mediation by the elders who advised the parties to enjoy the property in equal shares and therefore, he could not issue reply notice is quite improbable. Be that as it is, the case of the first plaintiff was well supported by the Rajahmundry Corporation. They categorically stated in the written statement that after death of Sundaramma, the Corporation issued notice to both the brothers as parties interested to obtain sale deed and that it is only the first plaintiff who approached for the sale deed, then the Rajahmundry Corporation made paper publication on 24.02.1994 calling for objections and thereafter executed sale deed. Therefore, even if both the wills set up by the parties are excluded, there is a clinching evidence to support the case of the plaintiffs. Therefore, the Courts below were correct in appreciating the facts and recording findings by giving cogent and convincing reasons. Substantial question of law would not arise in these appeals. The second appeals, for the above reasons, are dismissed. No costs. _______________ (V.V.S.RAO, J) .11.2011 pln