HON’BLE SRI JUSTICE B. PRAKASH RAO S.A.No. 459 of 1994 Date: 15-04-2011 Between: Beduduri Nagireddy ……. Appellant and Beduduri Adinarayana Reddy and others ……. Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO S.A.No.459 of 1994 JUDGMENT: The first defendant is the appellant in this appeal filed under Section 100 of C.P.C. who, inter alia, is aggrieved against the judgment and decree, dated 06-08-1994 in A.S.No.165 of 1988 on the file of the District Judge, Anantapur, allowing the said Appeal at the instance of the unsuccessful plaintiffs and setting aside the judgment and decree, dated 21-07-1988 in dismissing the suit filed by them in O.S.No.172 of 1982 on the file of the Additional Subordinate Judge, Anantapur, and decreeing the suit granting the relief of partition and allotment of shares including the allotment of the land in question, which is covered under Ex.B-1, sale transaction. Heard Sri R.V. Prasad, learned counsel appearing for the appellant and Sri O. Manohar Reddy, learned counsel appearing for the respondents. The facts in brief are that in the suit, the plaintiffs sought for declaration of title to the suit schedule property, which is consisting of Ac.10-25 cents in Sy.No.10 situated at Nagireddipalli, Hamlet of Narayanapuram, Anantapur Taluk, Anantapur District. The case of the plaintiffs is that the plaintiffs 1 to 3 are the sons of defendant No.2, whereas the plaintiff No.4 is the son of defendant No.3. Plaintiffs and defendants 2 and 3 have constituted a joint family. The suit property is claimed to be their ancestral property. However, having regard to the fortuitous circumstances namely, bitter faction in the village and taking advantage of the close relationship of defendant No.1 with that of the defendants 2 and 3, defendant No.1 promised to take care of the properties subject to a valid document being executed in his favour. Accordingly, the defendants 2 and 3 were forced to execute a document, dated 18-06-1973 styling it as a sale deed in favour of defendant No.1 and put him in possession. Though it recites about the consideration, however no amount was paid nor it was intended to convey any title. Further, the consideration as shown is far below the market rate which was at Rs.1,500/- per acre at the relevant point of time. Therefore, the entire transaction is bereft of any necessity to the family, hence, the same is not valid and binding on the plaintiffs. Hence, the relief. Contesting the suit claim, the case of the appellant was that of total denial including as to his relationship with defendants 2 and 3. No doubt it was alleged that the defendants 2 and 3 involved in a criminal case, but they are let out on bail and they were acquitted. The transaction, dated 18-06-1973, is an out and out sale on payment of valid consideration of Rs.5,000/- apart from the same being for legal necessity. It was stated that since the family owed the debt of Rs.2,000/- from the bank, the said amount was paid and the balance amount of Rs.3,000/- was paid to the defendants 2 and 3 in cash. Since then defendant No.1 is in absolute possession and enjoyment and therefore, it cannot be said that the said transaction is in any way vitiated. Hence, the suit is liable to be dismissed. On these and other allegations, the trial Court framed the following issues: 1. Whether the document executed by D-2 and D-3 is not supported by consideration and not binding on the defendants? 2. Whether plaintiff is entitled for declaration of title and possession? 3. To what relief? During the course of trial, the plaintiffs examined PWs.1 to 4, of which included the first plaintiff as PW-1, PW-2 is a retired constable and PWs.3 and 4 are the supporting witnesses, and Ex.A-1 was marked. On behalf of the defendants, DWs.1 to 5 were examined, of which included the first defendant as DW-1, whereas DWs.2 and 4 are the attestors of the said transaction, which is marked as Ex.B-1, and the other two witnesses i.e., DWs.3 and 5 are only supporting witnesses. On consideration of the evidence and the material on record, initially the trial Court dismissed the suit holding that the sale transaction is perfectly valid and it was for legal necessity towards discharge of the loan and that apart, the consideration was paid and the defendant No.1 was put in possession. It was also noticed that in view of the allegation of collusion between the plaintiffs and defendants 2 and 3, the said defendants 2 and 3 remained ex parte and did not appear in the Court nor contested. Aggrieved thereby, the plaintiffs preferred the appeal where the appellate Court once again, on appraisal of the entire facts and the material on record and on framing the points for consideration as to 1) whether the sale deed dated 18-06-1973 is nominal and if so not supported by consideration? and 2) whether the appellants-plaintiffs are entitled for declaration of their title and for possession?, sought to consider the case though ultimately upholding the sale transaction in favour of defendant No.1, however doubted about the payment of consideration since the defendants 2 and 3 were in sub-jail at the relevant point of time. Even though two attestors were examined namely DWs.2 and 4, however, in view of the discrepancy and the alleged pro-note not coming before the Court and especially in regard to the payment of the balance of consideration which is concerned, there is no evidence of whatsoever in nature and the document as such does not recite nor there is any acknowledgement and therefore, by giving other reasons in support, the lower appellate Court held that the sale deed is true and supported by consideration to the extent of Rs.2,000/-, but not supported by consideration to the extent of balance of Rs.3,000/- as there was no legal necessity to that extent. Accordingly, while allowing the appeal converted the relief into one for partition declaring that the plaintiffs 1 to 3 and the defendant No.2 are each entitled to 1/8th share and the plaintiff No.3 and defendant No.3 are each entitled to 1/4th share from out of the suit schedule properties. Further the shares of the defendants 2 and 3 are ordered to be allotted to the defendant No.1 in respect of the plaint schedule property covered by Ex.B-1. Hence, this Appeal. The above chequered events and the material on record would amply show that there is no dispute in regard to the execution of Ex.B- 1 and the payment of Rs.2,000/-. Admittedly, even in this appeal, nothing has been pointed out to show in regard to the payment of Rs.3,000/-. Therefore, it cannot be said that there is any perversity or illegality in regard to the findings arrived at by the lower appellate Court. As far as the execution is concerned, both the trial Court as well as the lower appellate Court held in its favour and therefore, the said finding is a concurrent finding of fact. The reversal is only in regard to the payment of balance consideration i.e., Rs.3,000/-. Since there is no evidence and the material in support, this Court cannot go into the same or uphold any such plea of payment. Therefore, the lower appellate Court was right in converting the relief into one for partition in accordance with the shares held by the individuals as per the Personal Law. Further, in view of the upholding the sale transaction under Ex.B- 1, I do not find any illegality or irregularity in regard to the allotment of shares of defendants 2 and 3 to the defendant No.1, who is a purchaser under Ex.B-1. In the circumstances, no question of law much less a substantial one arises in this appeal to warrant any interference by this Court. Accordingly, the Second Appeal is dismissed. However, in the circumstances, no order as to costs. ________________ B. PRAKASH RAO, J Date: 15-04-2011 YCR