HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL Nos.197 of 2009, 198 of 2009 & 204 of 2009 Dated 28-11-2014 SECOND APPEAL Nos.197 of 2009, 198 of 2009 & 204 of 2009:
Between:
G.Subbamma.
And:
..Appellant.
Dornadula Subba Rami Reddy.
..Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL Nos.197 of 2009, 198 of 2009 & 204 of 2009 COMMON JUDGMENT:
All these appeals arise out of dispute between sister and brother in respect of Ac.1.54 cents of land in Survey No.1493-2 in patta No.413 of Atmakur village, Nellore District. In all the appeals, sister is appellant and brother is respondent.
Sister filed O.S.No.47 of 1992 claiming permanent injunction against brother restraining him from interfering with the possession and enjoyment of the above referred land. Mother of both sister and brother filed O.S.No.171 of 1991 to set aside settlement deed dated 26-10-1990 executed by mother in respect of property in an extent of Ac.1.54 cents in patta No.413 in S.No.1493-2 of Atmakur. Sister filed O.S.No.207 of 1996 against brother for recovery of profits from out of the said property for Fasli 1402. During the pendency of proceedings in O.S.No.171 of 1991, the mother of appellant died and the respondent herein being the son of sole plaintiff in O.S.No.171 of 1991 was impleaded as second plaintiff and the suit in O.S.No.171 of 1991 and O.S.No.47 of 1992 were tried jointly and the suit in O.S.No.207 of 1996 was tried separately. Trial court dismissed both the suits filed by appellant herein and decreed the suit filed by mother of the appellant herein, against which, appeals were preferred to the first appellate court and all the three appeals were dismissed and aggrieved by the dismissal of those appeals, present three second appeals are filed.
All the three appeals are admitted by this Court taking grounds 2 to 5 in all the appeals as substantial question of law.
Ground Nos.2 to 5 in all the appeals are one and the same which are as follows:
1. Whether the deceased 1st plaintiff in O.S.No.171 of 1991 can claim, after 8-5-1988, that the suit schedule property was purchased benami in her name and whether such a plea is not barred by provisions of Benami Prohibition Act, 1982.
2. Both the courts failed to see that there is no evidence on record that the deceased 1st plaintiff has given 50 cents of land to the 2nd plaintiff, and as per section 123 of Transfer of Property Act, any such gift should be by way of a registered document, whether the settlement deed in question i.e., Ex.A.1 dated 26-10-1990 can be disbelieved on the ground that it was executed for entire extent of Ac.1-54 cents coupled with the fact that the pattadar pass books were issued after execution of the settlement deed dated 26-10-1990.
3. Both the courts failed to see that unless there is a strict evidence on record as regards the coercion, misrepresentation and undue influence, no document can be set aside and whether the following circumstances would enable the courts below to set aside the settlement deed in view of the facts below:
(a) There is no evidence that deceased 1st plaintiff was not well, even though she was aged about 80 years as on the date of execution of the document and she died only on 17-5-1992.
(b) There are no inconsistencies in the statement of P.W.1 and P.Ws.2 to 4, who are attestors of the document.
(c) The executor admitted execution of the document and informed the same to the respondent herein and requested him to take a lenient view.
4. Whether the respondent could discharge his burden as regards the fraud misrepresentation and undue influence, having filed the suit and especially when there is ‘in presenti’ transfer under settlement deed.
5. Whether the courts below are justified in decreeing the suit O.S.No.171 of 1991, even assuming without admitting that Ex.A.2 can not be relied upon, on the death of the deceased 1st plaintiff, the appellant is entitled for 1/4th share in the property by virtue sections 6 and 15 of the Indian Succession Act and there is merger of interest.”
Heard arguments of both sides.
At the time of arguments, learned counsel for appellant mainly contended that the trial court committed error while recording evidence in joint trial. He submitted that the suit in O.S.No.171 of 1991 is a comprehensive suit which was also earlier in point of time but the trial court recorded evidence in O.S.No.47 of 1992, which is a suit for mere injunction thereby, thrown burden of proof on the appellant herein who is only a defendant in the main comprehensive suit and therefore, the procedure adopted is incorrect and illegal, hence appellant took additional grounds.
He further submitted that lower court committed error by recording evidence in subsidiary suit instead of recording it in the main suit and it is error in law and that is the substantial question of law involved in the appeals in S.A.Nos.197 of 2009 and 198 of 2009. He further submitted that to rectify the said mistake, the matters may be remitted back to the court below for recording evidence afresh after giving opportunity to both parties. He further submitted that that is the only substantial question of law in these appeals and due to over sight, this ground was not urged in the main ground by considering the additional ground, at least the main suits O.S.Nos.171 of 1991 and 47 of 1992 may be remanded for re-trial afresh.
In response to this argument, advocate for respondent submitted that clubbing two suits and conducting joint trial is a procedural aspect and unless it is shown that great prejudice is caused to appellant on account of such joint trial, findings which were concurrent cannot be set aside. He further submitted that only on the request of appellant, the evidence was recorded in the suit filed by her and the court has framed issues separately in both the suits and considered the burden of proof, and the party who commenced the suit can reserve right of rebuttal evidence in respect of issues on which, the burden lies on the opposite party. He further submitted that the appellant has not reserved any such right and as she claimed right over the suit schedule property, only on the basis of the settlement deed of 1990, therefore, she has examined witnesses connected to that document and the trial court, after elaborate discussion and consideration of all the witnesses connected with the document, gave a finding that the document of 1990 is obtained by fraud, misrepresentation and coercion. He further submitted that no substantial question of law is involved and realizing the same, the appellant has now come forward with additional ground touching procedure aspect which cannot be termed as question of law and therefore, there are no grounds to interfere with the concurrent findings of both courts.
Now the point that would raise for my consideration in these appeals is that whether the procedure adopted by trial court while conducting joint trial would amount to error of law involving substantial question of law for a decision by this court.
POINT:
There is no dispute with regard to relationship between the parties. One D.Mangamma is the mother of appellant and respondent herein. The said Mangamma filed O.S.No.171 of 1991 to set aside settlement deed dated 26-10-1990 on the ground that it was obtained by fraud, misrepresentation, undue influence and coercion. She filed that suit against the appellant herein who is her daughter and the said suit was resisted contending that Mangamma executed document voluntarily on free volition. Thereafter, appellant herein filed O.S.No.47 of 1992 against the respondent claiming permanent injunction in respect of the property that was settled on her through settlement deed of the year 1990. Thereafter, appellant filed O.S.No.207 of 1996 for recovery of profits on the property for Fasli 1402. O.S.No.171 of 1991 and O.S.No.47 of 1992 were tried together and in the joint trial, four witnesses were examined on behalf of appellant herein and six witnesses were examined on behalf of respondent herein. On behalf of appellant, five documents were marked and on behalf of respondent, 18 documents were marked. In O.S.No.207 of 1996, on behalf of appellant, two witnesses were examined, one document was marked and on behalf of respondent, one witness was examined and no documents were marked. Considering the oral and documentary evidence, trial court dismissed O.S.No.47 of 1992 and O.S.No.207 of 1996 filed by appellant herein and decreed O.S.No.171 of 1991 filed by mother of the respondent herein who was subsequently impleaded as second plaintiff in the said suit.
Appellant herein preferred A.S.No.10 of 2000 against the decree in O.S.No.171 of 1991, A.S.No.12 of 2000 against dismissal of O.S.No.47 of 1992 and A.S.No.11 of 2000 against dismissal of O.S.No.207 of 1996. All the three appeals were dismissed confirming the decrees passed by the trial court. Appellant herein claimed rights over the suit schedule property by virtue of settlement deed dated 26-10-1990 executed by mother of appellant and respondent which is marked as Ex.A.2. Respondent herein claimed rights over the schedule property through registered will dated 8- 5-1992, which is marked as Ex.B.18. Appellant herein is examined as P.W.1 and attestors of Ex.A.2 are examined as P.Ws.2 and 3 and appellant’s son is examined as P.W.4. Respondent herein is examined as D.W.1, scribe of Ex.A.2 is examined as D.W.2, attestors of the will (Ex.B.18) are examined as D.Ws.3 and 4, appellant’s sister’s husband is examined as D.W.5 and Director of Co-operative Society from where defendant took loan on this property is examined as D.W.6.
The main grievance of the appellant is that the trial court while recording evidence in her suit committed error and that caused prejudice to her. Appellant contended that the trial court by recording evidence in the subsidiary suit i.e., suit for injunction instead of recording in the comprehensive suit i.e., suit to set aside the settlement deed committed error in law. According to appellant, because of recording evidenced in her suit, the burden of proving was thrown on her in the main case i.e., O.S.No.171 of 1991 and that caused prejudice to her.
On the other hand, it is the contention of the advocate for respondent that the evidence was recorded in the suit filed by the appellant only on her request and the trial court has not shifted the burden on the appellant in respect of issue in the comprehensive suit. He further submitted that trial court has not committed any error and even otherwise it is only procedural aspect and there is no substantial question of law involved in these appeals.
I have perused the entire material on record.
As rightly pointed out by advocate for respondents joint trial was conducted on the request of appellant herein. The trial court in its judgment at para 9 recorded the following findings “Perusal of suit docket in O.S.No.171/91 discloses that the defendant in O.S.No.171/91 filed petition against the respondent/2nd plaintiff under section 151 C.P.C. for joint trial of O.S.No.171/91 along with O.S.No.47 of 92. The respondent/ 2nd plaintiff filed a counter and on hearing both sides, the then District Munsif, Atmakur passed a speaking judicial order on 21-11-96 ordering that the trial of 171/91 along with OS No.47/92. Accordingly, the joint trial was ordered. Both the advocates and parties agreed with they lead the evidence in OS 47/92 and the same evidence can be taken as the evidence in OS 171/91. At the time of evidence as comes in joint trial, the mother of 2nd plaintiff and the defendant namely Mangamma whose documents are being challenged is died.
Hence, we have got the evidence of plaintiff sister and defendant brother. Since the plaintiff in OS No.47/92 as the defendant in OS 171/91 and similarly the defendant in OS 47/92 is the plaintiff No.2 in O.S.171/91, for the sake of convenience and also to avoid confusion the court refers to the parties with respect of their status in OS 47/92. In OS No.47/92 Gudur Subbamma sister is the plaintiff and Dornadula Subbaramireddi brother is the defendant. Even in the evidence also recorded in the joint trial the plaintiff and the defendants refers to the plaintiff and the defendant in OS No.47/92 only.”
From a reading of the above findings, it is clear that only on the request of appellant herein by way of a petition, joint trial was conducted though the respondent herein opposed for it and the evidence was also recorded in O.S.No.47 of 1992 which is the suit filed by appellant herein on the request of both parties and both advocates.
When the trial court recorded evidence in the suit filed by appellant herein only on her request, now complaining that the trial court committed error in recording evidence in subsidiary suit without recording it in the main suit. Though evidence is recorded in the suit filed by appellant herein, the trial court has not put the burden on the appellant herein with regard to issue in O.S.No.171 of 1991 i.e., comprehensive suit. The learned trial judge dealt with the issues framed in both the suits with reference to the evidence adduced on behalf of both parties and no where the court below shifted the burden of proving the issue in comprehensive suit on the appellant.
On a scrutiny of the entire material on record, I am of the considered view that no question of law is involved in these three second appeals leave alone substantial question of law. The original ground referred to above on the basis of which appeals are admitted are only with reference to factual findings and they are no way concerned with any question of law. Even the additional ground urged is only with regard to procedural aspect and even that cannot be accepted in view of the fact that trial court recorded the evidence in the suit filed by appellant only on her request and joint trial is conducted on a petition filed by appellant herein in spite of the objection from the respondent herein. As there is no procedural irregularity, even the request of the appellant for remand the cases for fresh trial cannot be accepted. Therefore, the point is held against the appellant.
For these reasons, all these three appeals are devoid of merits and therefore, they are liable to be dismissed.
Accordingly, these three appeals are dismissed with costs through out.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 28-11-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL Nos.197 of 2009, 198 of 2009 & 204 of 2009 Dated 28-11-2014 Dvs