THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.121 of 1999 Dated:- 12th August, 2010 Between:- Yadagiri Rao and others …Appellants AND Smt. M.Bharathi …Respondent THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.121 of 1999 JUDGMENT:- This second appeal arises out of the judgment dated 19.09.1998 in A.S.No.150 of 1996 passed by VIII Additional Chief Judge – cum – III Member Tribunal for Disciplinary Proceedings, City Civil Court, Hyderabad (for short, ‘appellate Court’), whereby and whereunder, the judgment and decree dated 21.03.1996 passed in O.S.No.3738 of 1990 by VII Junior Civil Judge, City Civil Court, Hyderabad (for short, ‘trial Court’) has been confirmed. 2. Originally the third appellant and the respondent herein have filed the original suit for perpetual injunction restraining appellants 1 and 2 from interfering with their peaceful possession and enjoyment of the suit schedule property. 3. The parties will be referred to as they were arrayed before the trial Court for the sake of convenience. 4. The facts of the case, in brief, are as follows:- C.Narasamma, the first plaintiff is the second wife of Late C.Rama Swamy. Bharathi – the second plaintiff is their daughter. First defendant C.Yadagiri Rao is their eldest son and the second defendant is their youngest son. C.Narasamma and C.Rama Swamy were doing business of bricks and sand for the past 30 years and acquired a site and house bearing municipal No.16-11- 310/2/F, Opposite to State Bank of Hyderabad, Dilsukhnagar, Hyderabad. The first defendant was given house bearing municipal No.16-11-361 sitauted at Moosarambagh. The second defendant was given a house bearing municipal No.16-5-322/1 situated at Dabeerpura, Hyderabad. The second plaintiff was given house bearing No.16-11-310/2/F situated at Moosarambagh. During the life time of C.Rama Swamy, he had sold the vacant site on the northern side of the house bearing municipal No.16-11-361 situated at Moosarambagh to the husband of the second plaintiff under registered sale deed. As the first and second defendants were not supporting the first plaintiff and her husband C.Rama Swamy, they were living separately in the house bearing municipal No.16-11-310/2/F. As the second plaintiff was kind and supporting her parents, the first plaintiff and her husband had bequeathed the house bearing municipal No.16-11-310/2/F to the second plaintiff under registered will. 5. The case of the plaintiffs is that second plaintiff was conducting bricks and sand business and paying taxes of the suit schedule property and also lending support to her age old parents. C.Rama Swamy died in the year 1988. It is alleged that thereafter, defendants tried to interfere into the possession and enjoyment of the plaintiffs 1 and 2 in respect of the suit schedule property and the plaintiffs filed a suit against the first and second defendants for perpetual injunction. During the pendency of the suit, the first plaintiff filed I.A.No.826 of 1991 and transposed herself as D-3. The said I.A. was allowed on 29.08.1991 and that the first plaintiff has been arrayed as defendant No.3 in the suit. Defendants 2 and 3 did not choose to file written arguments and they were set ex parte for non filing of the written arguments. The first defendant alone filed written arguments and admitted the relationship with the plaintiffs and defendants and also allotment of different houses to the first and second defendants. The first defendant denied that the husband of the plaintiff purchased open place which is by the side of the house bearing municipal No.16-11-361 situated at Moosarambagh and thereafter husband of second plaintiff constructed a house bearing municipal No.16-11- 408/4. The first defendant also denied execution of Will Deed dated 29.08.1991 in favour of the second plaintiff in respect of the suit schedule property and also denied that the plaintiff was in possession and enjoyment of the suit schedule property at any time. The first defendant, however, pleaded that defendants 2 and 3 are in possession of the suit schedule property and were conducting brick and sand business on behalf of the joint family. 6. Heard the learned counsel on record. 7. It is an admitted fact that the first plaintiff is the wife of Late C.Rama Swamy and defendants 1 and 2 are their sons and the second plaintiff is the daughter of Late C.Rama Swamy. It is also an admitted fact that Smt.Agamma is the first wife of late C.Rama wamy (who died issueless) was residing in the house bearing No.16- 5-332 and 332/1 situated at Dabeerpura, Hyderabad. It is also an admitted fact that said Agamma was also doing sand bricks business at Dabeerpura, Hyderabad. Late C.Rama Swamy and the first plaintiff were doing bricks and sand business at Moosarambagh, Hyderabad. As per plaint averments, the testimony of P.W.1 and the evidence of D.W.1 to 3, it is an admitted fact that the house bearing municipal No.16-11-361 is situated at Moosarambagh, Hyderabad, and the house bearing municipal No.16-5-332 and 332/1 is situated at Dabeerpura, Hyderabad, and the suit schedule property bearing No.16-11-310/2/F situated at Moosarambagh, Hyderabad, is acquired by late C.Rama Swamy. It is an admitted fact that the house bearing No.16-11-361 which is situated at Moosarambagh, Hyderabad was allotted to the first defendant by virtue of an agreement between him and late C.Rama Swamy in a Civil litigation filed by the first defendant, vide O.S.No.1403 of 1984 on the file of the IX Assistant Judge, City Civil Court, Hyderabad. In the year 1987, Late C. Rama Swamy executed registered gift deed No.1157/87 in favour of the first defendant and since then the first defendant is in possession and enjoyment of the said house. The first defendant, who was examined as D.W.1, specifically stated in his chief examination that he is in possession and enjoyment of the house bearing No.16-11-361 situated at Moosarambagh and admitted in his cross-examination that the house bearing No.16-11-361 situated in Moosarambagh is in his exclusive possession and enjoyment from one year prior to 1987 and further stated that the he was residing in the same premises since his birth. Late C.Rama Swamy, the father of the first defendant has paid taxes to the house before handing it over to him. 8. The second defendant, who is examined as D.W.3, admitted in his evidence that the house bearing No.16-5-332 situated at Dabeerpura, Hyderabad was allotted to him by his father late C.Rama Swamy and he was residing in the said house and doing business of sand and bricks. He had admitted in his evidence that the house bearing No.16-5-332 situated at Dabeerpura was gifted to him in the year 1987 and since then the he is in possession and enjoyment of the same. The first defendant also admitted in his evidence that at the time of his father’s death, he was residing in the said premises for his business purposes and the first plaintiff used to visit the suit house now and then. According to P.W.1, the suit schedule premises bearing municipal No.16-11- 310/2/F situated at Moosarambagh, Hyderabad, was purchased by late C.Rama Swamy and gifted the same to the second plaintiff dated 21.08.1984. P.W.1 further stated that first defendant admitted in his examination-in- chief itself that he came to know about the execution of the Ex.A.1 – Will Deed after the death of his father late C.Rama Swamy and that the Will Deed was executed by his father and mother in favour of the second plaintiff without his knowledge. The trial Court decreed the suit in favour of the plaintiffs. Aggrieved by the same, defendants 1 to 3 carried the mater in appeal before the appellate Court. 9. According to P.W.1, the suit schedule property was purchased by late C.Rama Swamy and he gifted the same to second plaintiff vide gift deed dated 21.08.1984. The first defendant also admitted in his evidence that he came to know about execution of Ex.A.1 – Will Deed after the death of his father and that the said will was executed without his knowledge. He has also deposed that the attestors of the said Will Deed are not alive. The second defendant was examined as D.W.3. He has also admitted that the suit schedule property was gifted to the second plaintiff. The appellate Court found that the evidence of defendants 1 and 3 was contradictory to one another and that the same proves that the first and second defendant never resided in the suit schedule property after the execution of Ex.A.1 – Will Deed in favour of the second plaintiff. The appellate Court also held that the documents filed by the second plaintiff Ex.A.1 to A.3 prove that the suit schedule property is in her possession and enjoyment. The recitals of Ex.A.1 – Will Deed would go to show that the executants had reserved right to revoke or cancel the Will Deed. Admittedly, one of the executants – C.Rama Swamy died. The Will Deed is a registered Will. According to P.W.1, his father has handed over Ex.A.1 – Will Deed to her one month before his death. The appellate Court, on appreciation of the evidence, came to the conclusion that there is no evidence to say that the appellants are in possession and enjoyment of the suit schedule property on the date of filing of the suit and further observed that they were residing separately in the respective houses allotted to them by their father – Late C.Rama Swamy. Thus, the appellate Court dismissed the appeal confirming the judgment of the trail Court. 10. While admitting the second appeal, this Court formulated the following substantial questions:- I. Whether the judgment of the appellate Court is vitiated by non-consideration of the terms of the will which is a joint will executed by the third appellant and her husband II. Whether the appellate Court had misdirected itself as regards the proof of possession of the disputed house and whether the appellate Court’s judgment is vitiated on account of non- consideration of the effect of the documents filed by the plaintiff in support of the alleged possession. 11. The third appellant herein was the first plaintiff in the suit. The respondent herein is the second plaintiff in the suit. Admittedly, the suit was filed by the respondent and the third appellant herein jointly. Admittedly, the third appellant herein is the wife of late C.Rama Swamy. Appellants 1 and 2 herein are sons of Late C.Rama Swamy and respondent is the daughter of late C.Rama Swamy. Thus, the third appellant herein, who is the first plaintiff in O.S., is the mother of the second plaintiff. The plaintiffs averments go to show that the third appellant herein and late C.Rama Swamy were conducting business in bricks and sand for the past thirty years and they acquired the suit schedule property which was given to their daughter i.e. the second plaintiff. Though it is contended that the second plaintiff was given the suit schedule property, the plaint averments go to show that defendants were interfering with the possession plaintiffs 1 and 2. This shows that the third appellant herein was admittedly in possession of the property. Admittedly, the plaint averments have not been amended after the first plaintiff was transposed herself as third defendant. 12. However, as seen from the record, the suit is for perpetual injunction. The main question that arises for consideration is who was in possession of the property on the date of filing of the suit. Both the Courts below have categorically held that appellants 1 and 2 herein are not in possession of the suit schedule property on the date of filing of the suit. The said findings cannot be disturbed at this stage unless it is shown that there is misreading of evidence. Moreover, the Courts below have categorically held that the evidence of P.W.1 and Exs.A.1 to A.6 shows that the suit schedule property was in possession and enjoyment of second plaintiff. The third appellant herein, who was examined as P.W.2, categorically admitted that her husband had obtained her thumb impression while executing Ex.A.1 – Will Deed in favour of P.W.1. Thus, execution of Ex.A.1 – Will Deed by late C.Rama Swamy and the third appellant herein seems to have been admitted by P.W.2. P.W.3 also admitted about the gifting of the suit schedule property in favour of P.W.1. Since one of the executants herself has been examined as witness and she herself admitted that her thumb impression was obtained by her husband – late C.Rama Swamy and also admitted the fact that her husband executed Ex.A.1 – Will Deed, it appears that the findings of the Courts below are based on evidence. 13. Section 70 of the Indian Evidence Act, 1872, reads as follows:- “70. Admission of execution by party to attested document: - The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.” 14. In view of the peculiar circumstances of this case, the findings of the Courts below cannot be found fault. However, admittedly, the third appellant herein who was arrayed as the first plaintiff in the Original Suit and who was in joint possession of the suit schedule property along with the plaintiffs as on the date of filing of the suit cannot be restrained from entering into the property. It appears that though the Courts below were justified in decreeing the suit against the first and the second appellant herein, but it has to be seen that it is the third appellant herein / first plaintiff in O.S. who, along with her husband – Late C.Rama Swamy, executed the Will in favour of the respondent herein / second plaintiff in O.S. and admittedly, the third appellant herein / first plaintiff in O.S. was in joint possession of the suit schedule property along with the respondent herein / second plaintiff in O.S. as on the date of filing of the suit. Thus, it is clear that the Courts below went wrong in granting injunction against the third respondent. 15. Having regard to the facts and circumstances of the case, I am inclined to order as follows. i) The judgments of both the Courts below, as far as it relates to granting of injunction in favour of the plaintiffs against appellants 1 and 2 herein, is hereby confirmed. ii) The judgments of both the Courts below, as far as it relates to granting of injunction in favour of the respondent herein / second plaintiff in O.S. and against the third appellant herein / first plaintiff in O.S., is hereby set aside. 16. In the result, the Second Appeal is allowed in part to the extent indicated above. However, in the circumstances, I desist from making any order as to costs. ______________________________ JUSTICE B.CHANDRA KUMAR August 12, 2010 Bvv