IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FIRST (21ST) DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY A.S.No.364 OF 1994 Between:- Kommineni Janardhan Rao …Appellant A n d Kodali Babu Rao & others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY A.S.No.364 of 1994 JUDGMENT: This appeal is directed against the judgment and decree dated 30.07.1993 in OS No.65 of 1985 on the file of the Subordinate Judge, Gudiwada, wherein, the said suit filed by the appellant for specific performance of agreement dated 23.05.1985 and for possession of plaint schedule lands and for past and future mesne profits, was dismissed. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. The appellant herein filed suit with the following averments in brief: The 2nd defendant is the only son of the first defendant. The 3rd defendant is the stepmother of first defendant. The 4th defendant is the son of 3rd defendant. The plaint schedule lands belongs to the 3rd defendant. Out of love and affection, 3rd defendant executed a registered settlement deed dated 01.07.1961 conveying life interest in favour of first defendant and vested reminder in favour of his sons. The settlement deed was duly acted upon and first defendant has been in possession and enjoyment of the schedule lands. The defendants 1 and 2 for legal necessity and to discharge the debts and for acquiring the properties elsewhere, offered to sell the plaint schedule property to the plaintiff for Rs.43,500/-. The defendants 1 to 3 executed agreement of sale in favour of the plaintiff, receiving advance of Rs.10,000/-. As per the terms of the said agreement, the balance sale consideration has to be paid after due measurements within one month and the sale deed has to be obtained by the plaintiff. In case of default, the plaintiff has to pay interest at 24% per annum on the balance sale consideration. As per the request of first defendant, the plaintiff paid another sum of Rs.10,000/- on 04.06.1985 and obtained endorsement of payment on the back of the agreement and also took delivery of plaint schedule property. The plaintiff was ready with the balance of sale consideration by 26.07.1985 and requested the defendants 1 and 2 to execute the registered sale deed, but they did not come forward. The 3rd defendant got issued a registered notice dated 26.07.1985 stating that the gift deed dated 01.07.1961 was conditional, and as the marriage between first defendant and Rajeswaramma has broken down, the gift deed stood cancelled. Hence, the defendants 1 and 2 have no right to sell the plaint schedule property. The defendants forcibly dispossessed the plaintiff on 25.11.1985 and took possession of the same. 4. The defendants 1 and 2 remained ex-parte. The 3rd defendant filed written statement and 4th defendant adopted the same by filing a memo, contending in brief as follows: Neither the plaintiff nor the defendants 1 and 2 have possession over the plaint schedule property at any time. The 3rd defendant alone has been in possession of the same in her own right and she has been cultivating the same through her son, 4th defendant. The 3rd defendant never executed any agreement of sale dated 23.05.1985 along with the defendants 1 and 2. The plaintiff in conspiracy with the defendants 1 and 2 forged the signatures of 3rd defendant on the agreement of sale. There was no reply by the plaintiff and first defendant for the telegraphic notice dated 25.07.1985 and registered notice dated 26.07.1985 issued by the 3rd defendant. The 3rd defendant executed settlement deed in favour of first defendant on 01.07.1961 just before his marriage with Rajeswaramma, which was scheduled for 06.07.1961. The 3rd defendant’s husband kept Mohammedan woman by name Galisiamma as mistress and she died within 20 days after the birth of the first defendant. The 3rd defendant brought up first defendant and settled his marriage with Rajeswaramma. Koganti Venkatasubbaiah, father of bride refused to give his daughter in marriage to first defendant, unless 3rd defendant executed settlement deed. In order to facilitate the marriage between first defendant and Rajeswaramma, 3rd defendant had executed the settlement deed and it was agreed specifically that in case, first defendant and Rajeswaramma did not live together for any reason, 3rd defendant shall have the right to revoke and cancel the settlement deed. The possession was not delivered to first defendant as recited in the settlement deed. The first defendant and Rajeswaramma lived together for about two months and thereafter, there has been estrangement between them due to serious differences. Rajeswaramma abandoned first defendant and contacted illegal marriage with another person and she begot children through him. The first defendant also contacted illegal marriage with one Aruna Kumari and migrated to Bhilai in Madhya Pradesh. The 2nd defendant is the son of first defendant through the said Arunakumari. There was no dissolution of marriage by divorce between first defendant and Rajeswaramma. The 2nd defendant cannot therefore claim any vested reminder right in the plaint schedule lands. The 3rd defendant alone is in possession of the plaint schedule property all these years and she perfected her title to the schedule property by adverse possession also. The suit is filed collusively at the instance of the defendants 1 and 2. 5. Subsequently, the plaint was amended stating that the defendants forcibly took possession of the plaint schedule property and so, the plaintiff is entitled for profits for the Faslis 1396, 1397 and 1398. 6. The 4th defendant filed additional written statement denying the claim of the plaintiff for mesne profits. 7. On the strength of the pleadings, the following issues and additional issues were framed. (1) Whether the suit agreement of sale dated 23.05.1985 is true? (2) Whether the settlement deed executed by 3rd defendant on 01.07.1961 became ineffective and thus it is null and void as contended by the third defendant in para 6 of her written statement? (3) Whether the defendants 1 and 2 have no title to the suit property? (4) Whether 3rd defendant perfected her title to the suit property by adverse possession? (5) Whether the plaintiff is entitled to the specific performance of the agreement of sale dated 23.05.1985 as prayed for? (6) To what relief? Additional issues: (1) Whether the plaintiff is entitled for possession of the suit property? (2) Whether the plaintiff is entitled to past profits as claimed in the suit? (3) Whether the plaintiff is entitled for future profits? 8. During trial, PWs.1 to 6 were examined and Exs.A.1 to A.8 were marked on behalf of the plaintiff. DWs.1 to 4 were examined and Exs.B.1 to B.4 were marked on behalf of the defendants. 9. On a consideration of the evidence available on record, the trial Court held on issue No.1 that the suit agreement of sale is not true; on issue No.2, the trial Court held that the settlement deed dated 01.07.1961 executed by 3rd defendant became ineffective in view of the break down of the marriage between the first defendant and Rajeswaramma and also in view of execution of Ex.B.1 revocation deed. On issue No.3 the trial Court held that the defendants 1 and 2 have no title over the property; on issue No.3 it was held that the defendants have no title to the suit property. On issue No.4 it was held that the defendants 5 to 9 are in possession of the property. On issue No.5, it was held that the plaintiff is not entitled to the specific performance of the agreement of sale dated 23.05.1985; On additional issue No.1 the trial Court held that the plaintiff is not entitled for possession of the suit property and on the additional issue Nos.2 and 3, it was held that the plaintiff is not entitled for past and future mesne profits. Accordingly, the suit was dismissed. Aggrieved by the same, the plaintiff filed the present appeal. 10. The points that arise for consideration in this appeal are:- i. Whether the suit agreement of sale-Ex.A-1 is true? ii. Whether the revocation deed Ex.B-1 executed by D-3 revoking the earlier settlement deed-Ex.A-3 dated 01-07-1961 is valid and iii. Whether the plaintiff is entitled for specific performance of agreement of sale-Ex.A-1 and for recovery of possession of the suit property? 11. It is not disputed that the plaint schedule property, an extent of one acre of land situated in R.S.No.295/2 of Ventrapragada village originally belonged to D-3 who is step- mother of D-1. D-2 is son of D- 1, born through one Galisiamma. D-4 was born to D-3 through her husband, who is also father of D-1. D-3 and D-4 died. D-5, the wife, and D-6 to D-9, the children of D-4 are his legal heirs. It is also not disputed that D-3 executed a settlement deed-Ex.A-3 dated 01-07- 1961 conveying the suit land in favour of D-1 giving him life interest therein with vested remainder to the sons that may be born to D-1 and in the absence of any male issues to the female issues that may be born to D-1. It is also not disputed that about a week after execution of Ex.A-3, D-1 was married to one Rajeswaramma, but a couple of months thereafter, there was estrangement between them and Rajeswaramma married some other person and D-1 also married another lady Aruna Kumari. 12. The plaintiff claims to have purchased the suit land from D-1 to D-3 under an agreement of sale-Ex.A-1 dated 23-05-1985 for a consideration of Rs.43,500/- and that he paid an advance of Rs.10,000/- and the balance was agreed to be paid at the time of registration within a month thereafter. He further pleads that on 04-06- 1985 he made further payment of Rs.10,000/- towards the balance sale price and obtained delivery of possession from D-1 and D-2 under an endorsement-Ex.A-2. D-1 and D-2 remained ex parte and they never questioned the execution of Ex.A-1 agreement or Ex.A-2 endorsement. D-3 and her son D-4, however, disputed the genuineness of Exs.A-1 and A-2. D-3 even contended that her signature on Ex.A-1 is a forged one. She is, of course, not a signatory to Ex.A-1. According to D-3 and D-4, D-3 executed a revocation deed- Ex.B-1 on 13-06-1985 cancelling the earlier settlement deed-Ex.A-3 dated 01-07-1961 because D-1 did not comply with the conditions attached to the settlement under Ex.A-3 and he deserted Rajeswaramma, the first wife and married another woman and begot children through her and he also neglected to maintain D-3 who became old and sick. Thus, according to D-3 and D-4, the land which was earlier conveyed to D-1 under Ex.A-3 reverted back to D-3 by virtue of Ex.B-1 revocation deed and after her death D-4 and on his death his LRs D-5 to D-9 became entitled for the same. They would further contend that notwithstanding Ex.A-3 settlement deed D-3 has been in possession and enjoyment of the suit land all along and she continued to be in such possession after execution of Ex.B1 also and on the death of D-3 and later on the death of D-4 the possession and enjoyment of the land devolved on D-5 to D-9. D-3 to D-9 would further allege that on coming to know of the execution of Ex.B-1 revocation deed, the plaintiff in collusion with D-1 and D-2 brought Ex.A-1 agreement and Ex.A-2 endorsement into existence with antedate and by forging the signature of D-3 on Ex.A-1 to defeat the rights of other defendants. 13. As the suit is filed for specific performance based on the suit agreement of sale Ex.A-1 and in view of the defence raised by the contesting defendants, the burden lies on the plaintiff to establish the truth of execution of Ex.A-1 by D-3. The execution of Ex.A-1 is not denied or disputed by D-1 and D-2. In support of his case, the plaintiff examined himself as P.W.1 and testified that D-1, D-2 and D-3 executed the agreement Ex.A-1 in his favour on 23-05-1985 and the sale consideration was agreed at Rs.43,500/- and he paid Rs.10,000/- by way of advance under Ex.A-1 and subsequently on 04-06-1985 he paid another sum of Rs.10,000/- to D-1 and D-2 as per endorsement- Ex.A-1 and possession of land was delivered to him on that date and ever since he is in possession and enjoyment of the suit land. According to him, subsequent to filing of the suit, he was forcibly dispossessed by the defendants the moment the petition I.A.No.910 of 1985 filed by him for temporary injunction, was dismissed. He, therefore, amended the plaint seeking recovery of possession and for mesne profits. 14. P.W.2 is a scribe of Ex.A-1. P.W.2 worked as Assistant Karanam of the suit village Ventrpragada and subsequently he worked as village assistant of Poranki. He also testified to the factum of execution of Ex.A-1 by D-1 to D-3 and settlement of the sale price at Rs.43,500/- and payment of Rs.10,000/- by way of advance by the plaintiff on that date. It is also in his evidence that Mandava Nageswara Rao and K.Venkateswara Rao were present at that time and attested Ex.A-1. It is also in his evidence that about 10 days later he measured the land in the presence of P.W.1, D-1 and D-4. P.W.2, an independent witness, is a village officer and a document writer and his testimony is not discredited in any manner. There is absolutely no reason nor any motive suggested to P.W.2 as to why he should become a party to the fabrication of any document as against D-3 and go to the extent of forging the signature of D-3 thereon. 15. P.W.3 is also a resident of the same village and is one of the attestors of Ex.A-1. He testified that himself and M.Nageswara Rao were present at that time and they attested Ex.A-1. It is also in the evidence of P.W.3 that the other attestor Mandava Nageswara Rao is related to D-3 and D-4. He further deposed that Ex.A-1 was executed in his house. In the cross-examination, P.W.3 reiterated that D-3 subscribed her signature on Ex.A-1 in his presence. It is suggested to P.W.3 that he directed D-1 and D-2 to get the signature of D-3 on Ex.A- 1. Of course, he denied the suggestion, but the suggestion does not fit in with the case of D-3 that her signature was forged on Ex.A-1. D.W.3 Mandava Nageswara Rao admitted that he attested Ex.A-1. But according to him his signature was obtained by P.W.1 while he was going to fields and by then the signatures of D-1 and D-2 were already there. He also admitted that P.W.3 also signed by them. Thus, according to D.W.3, no one has signed in his presence but he admits his signature on Ex.A-1. It is to be noted that D.W.3 is related to D-3 and he attested Ex.A-1 settlement deed also executed by D-3 in 1961. In the cross-examination, he identified the signatures of D-1 and D-2 and P.W.3 on Ex.A-1 and reiterated that those signatures were there on Ex.A-1 even by the time he signed Ex.A-1. Thus, as per his own evidence D.W.3 signed Ex.A-1 as a witness and the signatures of D-1, D-2 and P.W.3 were already there. The testimony of P.Ws.1 to 3 would go to show that D.W.3 was present at the house of P.W.3 where Ex.A-1 was executed and he attested Ex.A-1 along with P.W.3 after D- 1 to D-3 have signed as executants. In the cross-examination, D.W.3 stated that about 5 or 6 years prior to his giving evidence he came to know that P.W.1 forged the signature of D-3 on Ex.A-1 and filed the suit and that his signature was found in that fabricated document as attestor. Admittedly, he did not issue any notice to P.W.1 nor took any action against him even after coming to know that his signature was obtained on a fabricated document or that after obtaining his signature as a witness the signature of D-3 was forged thereon. The silence on the part of D.W.3 for such a long period of five or six years runs contra to the natural course of human conduct and the said circumstance only tends to belie the testimony of D.W.3 that he signed Ex.A-1 near the fields and without going through the contents. The un-discredited testimony of P.Ws.1 to 3 would establish that D.W.3 was very much present at the time of execution of Ex.A-1 by D-1 to D-3 and he duly signed as an attestor on Ex.A-1. 16. The trial Court disbelieved Ex.A-1 mainly on the ground that the singular expression used in the body of the document negatives the presence of D-3 at that time. Ex.A-1was executed by three persons i.e., D-1, D-2 and D-3. A perusal of the body of the document Ex.A-1 would disclose that both singular and plural expressions were used at will by the scribe. In Ex.A-1, there are several recitals where plural expressions such as “memu” (we), “ma varasulu” (our legal heirs), “ma badyasthulu” (our representatives), “ma sontha karchulatho” (at our expense), “malo vokatavari pera” (in favour of first of us) etc., are used. In fact, the singular expression “na thaaluku” (my) is used only once in the first line of the body of the document. The preamble of Ex.A-1 also shows that the document was being executed by all the three i.e., D-1, his son D-2, and D-3. In the schedule of the document, it is noted that earlier D-1’s foster mother D-3 conveyed the property in favour of D-1 under registered settlement deed dated 01-07-1961. Towards the end of the document, it is recited that D-2 and D-3 would also join the execution of the registered sale deed. From this recital, the trial Court drew inference against the presence of D-3 at the time of Ex.A-1 on the premise that if D-3 was really present at that time there was no need to mention that her presence would be secured at the time of registration of the sale deed. It is to be noted that the above recital is not confined to D-3 alone but it refers to D-2 also by stating that D-2’s presence would also be secured at the time of registration of the sale deed. The presence of D-2 at the time of execution of Ex.A-1 is not disputed. Thus, the above recital promising to secure the presence of D-2 and D- 3 at the time of registration of the sale deed is only made by way of abundant caution as contended by the learned counsel for the appellant/ plaintiff and the said recital does not in any way lead to any inference of absence of D-3 at the time of execution of Ex.A-1. The trial Court clearly erred in appreciating the evidence on record and interpreting the recitals of Ex.A-1 and in concluding that the singular expression used would eliminate the presence of other executants. It is to be noted that D-2 was admittedly present at the time of Ex.A-1 and his presence and signature on Ex.A-1 is not disputed. In spite of presence of D-2, besides D-1, still the scribe appears to have used singular expression, that too at one or two places and from that circumstance alone, the presence of the other executants cannot be ruled out by correlating the singular expression to D-1 alone, especially in the light of the evidence of P.Ws.1 to 3. 17. Yet another circumstance, which led the trial Court to reject Ex.A-1 is that the signature of D-3 as appearing in Ex.A-1 is not similar to her admitted signatures contained on the vakalath, written statement, Ex.A-3-settlement deed and Ex.B-1-revocation deed. It is to be noted that the vakalath and written statement are documents that came into existence subsequent to filing of the suit. Ex.A-3 settlement deed is of the year 1961. Ex.B-1 revocation deed was executed 24 years later in 1985. By 1985, D-3 was admittedly aged 65 years and even according to defendants, she was suffering from paralysis at that time. Her signature appended in 1985 cannot, therefore, be compared with her signatures on Ex.A-3, which was executed by her 24 years earlier. The signature of D-3 on Ex.A-3 looks totally different from her signature appended on Ex.B-1. The variation in the two signatures on Ex.A-3 and Ex.B-1 both admittedly executed by D-3 is only natural owing to long lapse of nearly 24 years in between the two documents. The testimony of the trial Court that the signatures of D-3 on vakalath, written statement, Ex.A-3 and Ex.B-1 are all similar is, therefore, factually incorrect and clearly erroneous. On the other hand, the signature of D-3 on Ex.B-1 bears reasonable amount of similarity to the disputed signature on Ex.A-1 which are both contemporaneous documents having been executed within a gap of one month. The comparison of the disputed signature of D-3 on Ex.A-1 which is of the year 1985 with the admitted signature of D-3 on Ex.A-3 which is of the year 1961 as attempted by the trial Court is not proper. The further observation of the trial Court that as all the three signatures of D-1 to D-3 are contained on the revenue stamps, it is possible that such stamps with signatures are lifted from elsewhere and affixed on Ex.A- 1, is also unwarranted and is without any basis and, in fact, there is no such pleading also by the defendants. The trial Court has chosen to ignore the testimony of P.Ws.2 and 3 and the admissions of D.W.3 pertaining to execution of Ex.A-1, for no valid reason. The conclusion reached by the trial Court that Ex.A-1 is not proved to be true is unsustainable as the same is based more on assumptions and presumptions than on proper appreciation of the evidence available on record, the conduct of the parties and the probabilities of the case. 18. In the circumstances, it must be held that the plaintiff has adduced sufficient evidence to establish the truth of execution of Ex.A- 1 by all the defendants 1 to 3. Ex.A-1 is, therefore, held to be true and valid document. 19. Regarding Ex.A-2, the execution thereof is not disputed by its executants D-1 and D-2. That apart, besides P.W.1, the plaintiff, P.W.4 the attestor of Ex.A-2 and P.W.5 the scribe of Ex.A-2 have also testified to the effect that on that day, the plaintiff made a payment of Rs.10,000/- and D-1 and D-2 endorsed the same under Ex.A-2. It is also in the evidence of P.W.4 that himself, P.W.1, D-1, D-2, the village karanam, and P.W.4 were all present at the time of measurement of the land and one week later Ex.A-2 was executed and on that day possession was also delivered to the plaintiff. P.Ws.4 and 5 are also independent witnesses and their testimony is not discredited in any manner and there is no reason as to why they should sail with the plaintiff and as against the third defendant. The testimony of P.Ws.4 and 5 supported the claim of P.W.1 that after measurement of land he made a further payment of Rs.10,000/- under Ex.A-2 and obtained delivery of possession on that date. The fact that D-3 was not present at the time of Ex.A-2 and that she was not the executant under Ex.A-2, is of no consequence and the said circumstance does not in any way impinge upon the validity of either Ex.A-1 or Ex.A-2, the truth of execution of which are duly established by necessary evidence by the plaintiff by examining the scribe and attestors. 20. The next contention of the contesting defendants is that 3rd defendant revoked the gift made by her under Ex.A-3 in favour of D-1 and executed a revocation deed Ex.B-1 as D-1 failed to comply with the conditions that were attached to the conveyance under Ex.A-3. According to the defendants 5 to 9, D-1 was born to Anjaiah through a muslim lady viz., Galisiyamma and, therefore, no one was coming forward to give his daughter in marriage to D-1 and that D-3 at