APHC010121092016

IN THE HIGH COURT OF ANDHRA

(Special Original Jurisdiction)

TUESDAY, THE

TWO THOUSAND AND TWENTY FOUR

THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR

FIRST APPEAL NO: 878/2016

Between:

Bommineni Venkatamma and Others

P Gangamma Died and Others

Counsel for the Appellant(S):

1.

VIJAY ASHRIT

2.

VIJAY ASHRIT

3.

VIJAY ASHRIT

4.

VIJAY ASHRIT

Counsel for the Respondent(S):

1.

MAHESWARA RAO

2.

5912/MAHESWARA RAO KUNCHEAM

IN THE HIGH COURT OF ANDHRA

PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3365]

THE TWENTY SIXTH DAY OF MARCH

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR

FIRST APPEAL NO: 878/2016

atamma and Others

...APPELLANT(S)

AND

P Gangamma Died and Others

...RESPONDENT(S)

Counsel for the Appellant(S):

Counsel for the Respondent(S):

MAHESWARA RAO KUNCHEAM

5912/MAHESWARA RAO KUNCHEAM

[3365]

THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR

...APPELLANT(S)

...RESPONDENT(S)

2

Dr. VRKS, J

A.S.No.878 of 2016

SUBMITTED FOR APPROVAL :

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

1. Whether Reporters of Local Newspapers

may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to Yes/No

see the fair copy of the Judgment?

_____________________________

Dr. V.R.K.KRUPA SAGAR, J

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Dr. VRKS, J

A.S.No.878 of 2016

* HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

+ FIRST APPEAL NO: 878/2016

% 26.03.2024

# Between:

Bommineni Venkatamma and Others ...APPELLANT(S)

AND

P Gangamma Died and Others ...RESPONDENT(S)

! Counsel for the Appellant(s) : Sri VIJAY ASHRIT

^ Counsel for Respondent(S): Sri MAHESWARA RAO

KUNCHEAM

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Dr. VRKS, J

A.S.No.878 of 2016

< Gist:

> Head Note:

? Cases referred:

1. 2023 SCC OnLine SC 1183

2. (2006) 5 SCC 353

3. (2021) 15 SCC 300

The Court made the following:

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Dr. VRKS, J

A.S.No.878 of 2016

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

APPEAL SUIT No.878 of 2016

JUDGMENT :

Defendants in the suit preferred this Appeal under

Section 96 of Code of Civil Procedure (C.P.C.). Respondents

herein are the plaintiffs in the suit. Appellants impugn the

judgment dated 22.04.2016 of learned Senior Civil Judge,

Dharmavaram in O.S.No.26 of 2012.

2. Sri Vijay Ashrith, the learned counsel for the appellants

and Sri Maheswara Rao Kuncheam, the learned counsel for

respondent Nos.2 to 6, submitted arguments.

3. The property in dispute is Ac.17.73 cents of land in

Bathalapalli Revenue Village of Dharmavaram of Anantapur

District. This land originally belonged to Sri B.Peddanna. He

died intestate and his property was succeeded by his two sons

by name Sri Pedda Sangappa and Sri Chinna Sangappa.

Sri Pedda Sangappa died unmarried and issueless and died

intestate. Sri Chinna Sangappa also died survived by his wife

Venkatamma and a son by name Sri B.Nagabhushanam.

Smt. Venkatamma executed a registered gift deed dated

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A.S.No.878 of 2016

23.09.2011 in favor of her son Nagabhushanam as per Ex.B.1

and thus, gifted the plaint schedule property to him. Within

days thereafter, the donee Sri Nagabhushanam executed a

registered sale deed dated 29.09.2011 as per Ex.B.2 in favour of

Sri K.Chandrayudu and Sri K.Chennakesavulu. It is these

transactions that gave rise to the controversy. Therefore,

showing the mother and son as defendant No.1 and defendant

No.2 and the two purchasers as defendant No.3 and defendant

No.4, the plaintiffs filed O.S.No.26 of 2012 stating that they

owned and possessed the property and their title is in cloud and

therefore they prayed for declaration of their right and title over

the plaint schedule property and for a consequential permanent

injunction restraining the defendants from interfering with their

peaceful possession and enjoyment and for costs and such

other reliefs. The essence of the plaintis that Sri Pedda

Sangappa and Sri Chinna Sangappa sold out Ac.4.00 cents of

the plaint schedule property under a registered sale deed dated

09.06.1967 as per the original of Ex.A.3. Subsequently

Sri Chinna Sangappa died survived by his wife/defendant No.1

and a minor son/defendant No.2. Sri Pedda Sangappa and

defendant No.1 for herself and his natural guardian of

defendant No.2 sold out the remaining extent of Ac.13.73 cents

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Dr. VRKS, J

A.S.No.878 of 2016

under a registered sale deed dated 27.03.1978 as per Ex.A.4.

Plaint further refers to the relationship among plaintiffs and the

purchasers under those documents and they state that by

27.03.1978 the plaint schedule property was no more with

Sri Pedda Sangappa and Sri Chinna Sangappa and their

families and yet by creating Ex.A.5-gift deed and Ex.A.6-sale

deed they wanted to grab the property and that forced them to

file the suit.

4. Defendants contested stating that Exs.A.3 and A.4-sale

deeds are forged and fabricated. It is further contested that by

the time of Ex.A.4-sale deed dated 27.03.1978 defendant No.2

was a minor so also plaintiff No.4-Sri P.Mallikarjuna who

purchased the property was also a minor and sought dismissal

of the suit.

5. In the context of the above rival contentions, the trial

Court settled the following issues:

1. Whether the plaintiffs are in possession and enjoyment

of the plaint schedule property?

2. Whether the plaintiffs are entitled for declaration of

their right over the plaint schedule property?

3. Whether the plaintiffs are entitled for permanent

injunction as prayed for?

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A.S.No.878 of 2016

4. Whether the registered sale deeds, dt. 9.6.1967 and

27.3.1978 are true, valid and acted upon and binding

on the parties to the suit?

5. To what relief, if any, is the plaintiffs entitled for?

6. At the trial, there was evidence of PWs.1 and 2 and

Exs.A.1 to A.16 and DWs.1 to 3 and Exs.B.1 to B.7.

7. On considering the material on record and the

contentions raised on both sides, learned trial Court agreed with

the case of plaintiffs and found no merit in the contentions

raised by the defendants and held that the dispute raised by the

defendants with reference to Exs.A.3 and A.4–sale deeds is

incorrect and accordingly it decreed the suit as prayed for. It is

against that, the defendants have come up with this appeal.

8. The submission advanced on behalf of the appellants is

that Sri Pedda Sangappa died on 15.03.1977 evidenced by

Ex.B.7-death certificate dated 18.08.2012 and therefore he

could not have executed Ex.A.4-registered sale deed dated

27.03.1978 and the learned trial Court failed to appreciate the

evidence in proper perspective. It is further contended that it is

only certified copy of registered sale deed dated 09.06.1967 as

per Ex.A.3 that was filed by plaintiffs and they did not assign

any reason as to why they did not file the original. That both

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A.S.No.878 of 2016

the sale deeds in Exs.A.3 and A.4 are forged documents and

despite evidence led by the defendants/appellants,the trial

Court erroneously concluded the suit in favour of

respondents/plaintiffs and that shall be set aside.

9. As against it, the learned counsel for respondent Nos.2 to

6, submits that in the notices exchanged prior to the institution

of the suit as well as in the pleadings of the defendants, they

never disclosed that Sri Pedda Sangappa died on 15.03.1977

and while the suit was pending they got procured Ex.B.7-death

certificate by making all false statements before the authorities

and the learned trial Court paid full attention on that aspect

and rightly discarded the said contention and held that there

was no evidence to show that Sri Pedda Sangappa died on

15.03.1977. Learned counsel further submits that the evidence

of DWs.1 to 3 indicated absence of possession of the property by

them since the time of Ex.A.4-sale deed dated 27.03.1978. On

the other hand, the evidence of PWs.1 and 2 and Ex.A.7-Form-

1B and Ex.A.8-bunch of adangals and Ex.A.9-pattadar

passbooks showed continuous possession and enjoyment of the

property by the plaintiffs. Learned counsel further argued that

the plaintiffs had effective control over the property and they got

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A.S.No.878 of 2016

the property mortgaged evidenced by Ex.A.10 dated 14.05.1974

during the lifetime of the predecessors. It was in those

circumstances the learned trial Court after complete

appreciation of the evidence, decreed the suit rightly and

appellants cannot seek for any interference.

10. In the light of the rival submissions, the following points

fall for consideration:

“1. Whether the respondents/plaintiffs through

evidence failed to show Exs.A.3 and A.4-

registered sale deeds are genuine documents

and the learned trial Court erroneously held

otherwise?

2. Whether the impugned judgment is incorrect

on facts and law?”

POINT Nos.1 and 2:

11. Ex.A.3 is certified copy of registered sale deed dated

09.06.1967. This was executed by Sri Pedda Sangappa and

Sri Chinna Sangappa. It is undisputed on both sides that by

the time of this document both of them were alive. The original

of this document was not filed, but only a certified copy was

filed. The evidence of PW.1 was that they lost the original and

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therefore they had to file only the certified copy. This non-filing

of the original is objected to by the defendants during the trial

as well as during the hearing of this appeal. It is in this regard

one requires to notice Section 57(5) of the Registration Act,

1908, which reads as below:-

“57. Registering officers to allow inspection of certain

books and indexes, and to give certified copies of

entries:-

(1) ………….

(2) …………

(3) …………

(4) …………

(5) All copies given under this section shall be signed and

sealed by the registering officer, and shall be admissible

for the purpose of proving the contents of the original

documents.”

12. One also shall notice Section 79 of the Indian Evidence

Act, 1872, which reads as below:-

“79.Presumption as to genuineness of certified

copies:– The Court shall presume to be genuine every

document purporting to be a certificate, certified copy or

other document, which is by Law declared to be

admissible as evidence of any particular fact, and which

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A.S.No.878 of 2016

purports to be duly certified by any officer of the Central

Government or of a State Government, or by any officer in

the State of Jammu and Kashmir who is duly authorized

thereto by the Central Government:

Provided that such document is substantially in the form

and purports to be executed in the manner directed by law

in that behalf.

The Court shall also presume that any officer by whom

any such document purports to be signed or certified,

held, when he signed it, the official character which he

claims in such paper.”

13. Referring to these and other provisions of law, the Hon’ble

Supreme Court of India in Appaiya v. Andimurthu @

Thangapandi

1 held that in a suit of present nature production

of certified copy of a registered sale deed is sufficient. In the

case at hand, the executants being the ancestors of the

appellants/defendants they must be holding the requisite

material to show as to how Sri Pedda Sangappa and Sri Chinna

Sangappa either subscribed their signatures or put their thumb

impressions. They did not produce any material in that regard

to show to the trial Court that such a document was not

executed by them. Therefore, they failed to convince the trial

Court regarding their challenge to this document.

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A.S.No.878 of 2016

14. Ex.A.4 is the original registered sale deed dated

27.03.1978. In Prem Singh V. Birbal

2

and in Rattan Singh v.

Nirmal Gill

3

, the Hon’ble Supreme Court of India held that

there is a presumption that a registered document prima facie

would be valid in law. The onus of proof would be on a person

who leads to rebut the presumption.

15. Ex.A.4-registered sale deed dated 27.03.1978 is an

ancient document. 34 years after that document O.S.No.26 of

2012 was filed. It was filed by respondents/plaintiffs who could

be said to be persons holding proper custody of the document

going by the recitals in the document. Thus, when a person

produces a document of 30 years old indicating the legitimate

possession of such a document, Section 90 of the Indian

Evidence Act applies and the provision reads as below:-

“90. Presumption as to documents thirty years old : –

Where any document, purporting or proved to be thirty

years old, is produced from any custody which the Court

in the particular case considers proper, the Court may

presume that the signature and every other part of such

document, which purports to be in the handwriting of any

particular person, is in that person’s handwriting, and, in

1

2023 SCC OnLine SC 1183

2

(2006) 5 SCC 353

3

(2021) 15 SCC 300

14

Dr. VRKS, J

A.S.No.878 of 2016

the case of a document executed or attested, that it was

duly executed and attested by the persons by whom it

purports to be executed and attested.

Explanation:– Documents are said to be in proper custody

if they are in the place in which, and under the care of the

person with whom, they would naturally be; but no

custody is improper if it is proved to have had a legitimate

origin, or if the circumstances of the particular case are

such as to render such an origin probable.

This explanation applies also to section 81.”

16. As per the recitals in Ex.A.4, it was executed by defendant

No.1 as well as defendant No.2 along with late Sri Pedda

Sangappa. The law demands, it is for the persons opposing a

registered conveyance to prove their case. The trial Court

expected defendant No.1 and defendant No.2 to produce some

evidence that they never participated in execution of such

document. It further observed that it was well within the

competence of defendant No.1 and defendant No.2 to seek

opinion of an expert to support their claim. But they did not do

it. Thus, observations made by the learned trial Court remain

unanswered in terms of law. However, at this length of time at

paragraph No.16 of the grounds of appeal, the appellants urge

that they may be given an opportunity in this regard. This

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A.S.No.878 of 2016

Court finds no reason to accord any such opportunity as for a

period of four long years the trial was pending before the trial

Court and they did not avail of that opportunity.

17. This takes us to the question as to whether Ex.A.4-

registered sale deed was also executed by Sri Pedda Sangappa

or not since the contention is that he died by then. As per

Ex.B.7 dated 18.08.2012, Sri Pedda Sangappa died on

15.03.1977. If that is correct, he could not have participated in

execution of Ex.A.4 on 27.03.1978. Therefore, it is now

necessary to see when Sri Pedda Sangappa died. A perusal of

Ex.B.7 shows that for the first time the death of Sri B.Pedda

Sangappa was registered on 18.08.2012. By then the suit was

already pending and defendants also filed their written

statements. The record would show that written statement was

filed on 20.12.2012. Earlier to that, the defendants received

Ex.A.12-notice dated 09.10.2011 from plaintiffs and they issued

a reply notice dated 12.10.2011 as per Ex.B.3. Thus, prior to

the issuance of Ex.B.7 and after the issuance of Ex.B.7,

defendants had opportunity to say this fact of death of

Sri Pedda Sangappa on 15.03.1977. Their reply notice and their

written statement are absolutely silent on this. Thus, they

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A.S.No.878 of 2016

never put it to the knowledge of the plaintiffs at the time of

commencement of the trial that their challenge on Ex.A.4 is

rested on the death of Sri Pedda Sangappa. It is in such

circumstances the learned trial Court rightly said that the

defendants developed the new story based on Ex.B.7. It is for

the defendants to tell the Court as to why the death of Sri Pedda

Sangappa was not registered since 15.03.1977 to 18.08.2012

which is about 45 years. That certainly allows one to feel

suspicious. It is precisely there the plaintiffs took pain of

exhibiting Exs.A.14, 15 and 16. The purport of these

documents is that defendant No.2 obtained this death certificate

on a pretention that there was an insurance policy of Sri Pedda

Sangappa in which he was a nominee and therefore he required

the death certificate of Sri Pedda Sangappa. While cross-

examining DW.2, an admission was elicited from this witness

that there was no such insurance policy at all and he was never

a nominee. Thus, falsehood was represented before public

authorities in obtaining Ex.B.7. It is in that context of facts,

learned trial Court did not put faith on Ex.B.7. Just by

production of Ex.B.7 defendants/appellants cannot at this

length of time argue that Sri Pedda Sangappa could not have

executed Ex.A.4-sale deed. Be it noted that according to

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A.S.No.878 of 2016

appellants as well as respondents, Sri B.Pedda Sangappa died

unmarried and issueless and intestate. Therefore, the true

purport of the conveyance does not get effected by non-

participation of Sri Pedda Sangappa. The trial Court rightly

observed that defendants failed to adduce any evidence to rebut

the presumption raised under Section 90 of the Indian Evidence

Act to the effect that there was either impersonation or some

other malpractice in getting Ex.A.4-sale deed. This Court finds

that the approach of the learned trial Court and its assessment

of evidence on record is in consonance with law and does not

require any interference.

18. Another contention raised for appellants was defendant

No.2 was a minor when Ex.A.4-registered sale deed was

executed. On evidence learned trial Court recorded that

defendant No.2 was a minor by then. However, in terms of

Section 8 of the Hindu Minority and Guardianship Act, 1956,

the natural guardian is entitled to convey the title on behalf of

the minor but that shall be done after obtaining requisite

permission from the Court. The provision further provides that

if the Court permission was not obtained, the conveyance is

voidable at the option of the minor. Article 60 of the Schedule

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A.S.No.878 of 2016

of the Limitation Act states that within three years after

attaining majority the minor could sue for avoidance of such

conveyance. It is not the case of appellants that defendant No.2

exercised that option and sued for avoidance of Ex.A.4. Learned

trial Court properly recognized the principles of law and even

tested the case of defendant No.2 under Article 65 of the

Schedule of the Limitation Act and stated that from thedate of

conveyance in Ex.A.4 within 12 years he could have sued for

avoidance of it and even that was not done by defendant No.2.

It was for those reasons, learned trial Court approved the

authenticity of Ex.A.4 and in this appeal the appellants failed to

indicate any factual or legal error in it.

19. For the reasons stated above, both the points are held

against the appellants.

20. In the result, this Appeal is dismissed. Consequently, the

impugned judgment dated 22.04.2016 of learned Senior Civil

Judge, Dharmavaram in O.S.No.26 of 2012 stands confirmed.

Appellants shall bear their own costs and bear the costs of

respondents in this appeal.

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A.S.No.878 of 2016

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________

Dr. V.R.K.KRUPA SAGAR, J

Date: 26.03.2024

Ivd

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Dr. VRKS, J

A.S.No.878 of 2016

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

APPEAL SUIT No.878 of 2016

Date: 26.03.2024

Ivd