THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Second Appeal No.239 of 2014 Between:
Dated 12th December, 2014 S.Chandra Mohan and another And Sri N.Pandari and another …Appellants …Respondents Counsel for the appellants: Sri P.V.Kavindra Counsel for the respondents: ---
The Court made the following:
JUDGMENT:
This second appeal arises out of the concurrent findings of fact recorded by the Courts below in A.S.No.10 of 2013 and O.S.No.2 of 2004, on the file of the learned Additional District Judge, Vikarabad, Ranga Reddy District and on the file of the learned Senior Civil Judge, Vikarabad, respectively.
The brief facts of the case are that respondent No.1 filed O.S.No.2 of 2004 for recovery of possession, mandatory injunction and mesne profits against respondent No.2 and the appellants herein. It is the pleaded case of respondent No.1 that his mother, late Smt.Mote Mallamma, was the original owner of the suit schedule property and that after her death, he succeeded to the same. He has further pleaded that his mother has put the father of respondent No.2 into physical possession of the property as a tenant and that after his death, respondent No.2 has refused to handover the possession to him. With the said pleadings, he filed the suit for the above mentioned reliefs.
Respondent No.2 has filed written statement, wherein he has inter alia stated that his father was inducted into possession by the mother of respondent No.1 under Ex.B2, agreement of sale, dated 06.04.1993. It is also his pleaded case that the said Mallamma has executed Ex.B1, General Power of Attorney, in his favour. He has further pleaded that in pursuance of the said GPA, he has sold the property to the appellants.
Based on the respective pleadings of the parties, the trial Court has framed the following issues:
“1. Whether the plaintiff is the owner of the suit schedule property?
2. Whether the plaintiff suppressed the alleged sale of the land by his mother in favour of the father of the D1 under an agreement of sale dated 6-4-93 and execution of registered GPA?
3. Whether the plaintiff is entitled to recovery of possession of the suit schedule property?
4. Whether the plaintiff is entitled to permanent injunction?
5. Whether the plaintiff is entitled to past or future mesne profits as prayed for?
6. Whether the suit is barred by limitation?
7. Whether the plaintiff alone can maintain the suit without joining his sisters?
8. Whether the suit is bad in law for non joinder of necessary party i.e. Mallaiah?
9. To what relief?”
On behalf of respondent No.1, he has examined himself as PW.1 and also examined one Baswaraju as PW.2. He has got marked Exs.A1 to A4. On behalf of respondent No.2, he has examined himself as DW.1 and got Exs.B1 to B7 marked.
The trial Court by judgment and decree, dated 06.l2.2006, has partly decreed the suit to the extent of recovery of possession. The said judgment was confirmed in appeal by the lower appellate Court.
At the hearing, Sri P.V.Kavindra, learned counsel for the appellants, contended that as the mother of respondent No.1 has executed Ex.B1, general power of attorney, in favour of respondent No.2, he has executed sale deeds in favour of the appellants and therefore, the said sale deeds bind respondent No.1.
With reference to Ex.B1, general power of attorney, and Ex.B2, agreement of sale, the trial Court has framed issue No.2. While dealing with this issue along with issue No.1, the trial Court has held as under:
“…The Ex.B2 is agreement of sale typed in English language and admittedly the late Mallamma an illiterate woman and used to sell the vegetables cannot be said to be acquainted with the language in which the Ex.B2 was executed. It is not clear from the evidence of the D.W.1 whether the terms and conditions as laid down in Ex.B2 were read over and explained to the executant of the said agreement of sale and only after knowing the contents of the said document she affixed her thumb impression. So, in the absence of any such evidence it is very difficult to prove the plea that the father of D1 purchaser of the suit land from late Mallamma executed the agreement of sale to sell the suit land in favour of the father of the D1. It is the claim of the D1 that late Mallamma executed a registered GPA in his favour under Ex.B1. As per the recitals of the GPA Ex.B1 late Mallamma appointed the D1 who is an Advocate by profession and also seems to be of her relative was given power to negotiate the sale transaction in respect of the suit land and also to execute the necessary document etc. When late Mallamma executed the GPA on 6-4-93 so, the question of execution of agreement of sale on the same date in favour of the father of the D1 also creates an amount of doubt about the correctness or otherwise of the contents of the Ex.B2. The D1 set up a case that the agreement of sale as well as GPA under Ex.B1 and B2 contains the signatures of the plaintiff herein but the plaintiff denied his signatures Ex.B2 and further set up a case that the agreement of sale under Ex.B2 is a created and fabricated one. The defendant No.1 who relied upon the Ex.B2 is expected to examine the other attestor of Ex.B2 to prove the sale transaction in between late Mallamma and his father Mallaiah as well as payment of the part of the sale consideration. But for the reasons best known to the D1, he has not at all taken any such steps to examine the other attestor to prove the due execution of the agreement of sale under Ex.B2. Admittedly, Ex.B2 came into existence on 6-4- 93 but the purchaser who entered into agreement of sale has not at all bothered to take any follow up action to fulfill his remaining part of the contract either during the life time of late Mallamma or subsequent to her death. So, in view of the reasons discussed aforesaid, which clearly casts a cloud about the sale transaction in between late Mallamma and Mallaiah who is the father of the D1. As stated supra, late Mallamma was the owner and pattedar of the suit land and plaintiff being the son succeeded to the said property by virtue of Exs.A1 to A3. Therefore, it can be safely concluded that the plaintiff is the owner of the suit schedule property and that late Mallamma has not executed any agreement of sale under Ex.B2 and accordingly both the issues are decided in favour of the plaintiff and against the defendants.”
On a careful consideration of the reasons given by the trial Court as confirmed in the appeal by the lower appellate Court, I am of the opinion that these concurrent findings of fact do not give rise to any substantial question of law for entertaining this second appeal.
Hence, the second appeal is dismissed.
As a sequel to dismissal of the second appeal, S.A.M.P.No.663 of 2014 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 12th December, 2014
VGB