Kurunati Koteswara Rao vs Dasari Gangamma and Another

Motilal B. Naik, J.—First respondent herein filed O.S.No. 5 of 1980, on the file of the Special Assistant Agent, Kovvur, against her husband, second respondent herein, and the appellant herein for partition and possession of 3/4 th share of the suit schedule property measuring Acs. 12-14 cents in R.S.No. 154, situated at Darbhagudem, an agency village of Jeelugumilli, and for past and future profits and casts. In order to appreciate the controversy raised in this second appeal, it would be appropriate to narrate the gist of the case in nutshell.

Second respondent had mortgaged the suit schedule property to third parties by taking some amount as loan. In order to redeem the mortgage, the second respondent entered into a sale agreement with the appellant for some consideration, and the subject-matter of the suit property was sold to the appellant by the second respondent. The appellant, pursuant to the sale, was put in possession of the said property. Pursuant to the possession, the appellant had invested huge amounts on the property and developed Mango Garden on the suit schedule land.

First respondent, who is the wife of the second respondent, filed O.S.No.5 of 1980 before the Court of the Special Assistant Agent, Kovvur, for partition and possession of 3/4 th share of the property, after ejecting the appellant from the suit schedule land. It is the specific case of the first respondent, in the suit filed by her, that she begot two male children through the second respondent in the years 1965 and 1967, who died soonafter their birth. It is claimed by the first respondent, the two children were born in the private hospital of one Dr. J.V. Rajendra Prasad Reddy in Jangareddygudem village, who is examined as P.W.2 on behalf of the plaintiff-first respondent herein,in the suit. It is also claimed by the first respondent, that after the death of her two children, born from out of the wedlock with the second respondent, she is entitled to succeed to their undivided shares, that is to say 1/4 th share of the suit schedule land. Therefore, it is contended that the sale, effected on 24-2-1970 by the second respondent in favour of the appellant, is void. The first respondent has also pleaded the ground that the transaction had taken place in agency area and is h by the provisions u/s 3 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation No. 1 of 1959, as amended by Regulation 1 of 1970 dated 2-1-1970.

In the said suit, the appellant filed written statement denying the fact of the first respondent giving birth to two male children in the years 1965 and 1967 through the second respondent. It is stated in the written statement that the first and second respondents colluded themselves, denying the property to the appellant and foisted the case. In order to redeem the mortgage of the suit schedule property, the second respondent sold the property to the appellant, this fact is known to all the villagers and also to the first respondent. On the basis of the submissions in the plaint and the written statement the trial Court framed the following issues:-

(1) Whether a son was born to the plaintiff through the first defendant in 1965 in the hospital of Sri Prasada Reddy of Jangareddigudem and died within a month at Darbhagudem ?

(2) Whether another son was born to the plaintiff through the first defendant in 1967 in the hospital of Sri Prasad Reddy of Jangareddigudem and died in the same hospital within few days ?

(3) whether the registered sale-deed dated 24-2-1970 executed by the first defendant in favour of the second defendant is void under Sub- Clause I of Section 3 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation No. 1 of 1959 as amended by Regulation I of 1970 dated 2-1-70 ?

(4) To what share, if any, is plaintiff entitled to in the plaint schedule land.

(5) To what past profits, if any, plaintiff is entitled to ?

(6) to what relief ?

On behalf of the first respondent seven witnesses were examined and Exs. A-l and A-2 were marked. On behalf of the appellant, three witnesses were examined and Exs .D-l to D-4 were marked. The trial Court after considering the oral and documentary evidence placed before it, disbelieved the evidence adduced on behalf of the plaintiff-first respondent herein and dismissed the suit - O.S.No. 5 of 1980. As against the dismissal of the suit, dated 21-5-1988, the first respondent carried the matter by way of appeal in A.S.No. 1 of 1988, before the Court of the Agent to the Government, West Godavari District at Eluru. However, the lower appellate Court reversed the finding of the trial Court and decreed the suit in favour of the plaintiff-first respondent herein, holding that the first respondent is entitled to 3/4 th share of the suit schedule land. Aggrieved by the judgment and decree dated 17-4-1989 of the Agent to the Government, West Godavari District at Eluru, in A.S.No. 1 of 1988 this second appeal has been filed.

Shri T. Veerabhadrayya, Counsel appearing on behalf of the respondents has prima facie contended that the scope of second appeal is very much limited, to the extent whether there is any substantial question of law involved for consideration in the second appeal before this Court. If there is no substantial question of law involved in the second appeal, it is not open to this Court to re- appreciate the evidence and give a finding. This Court cannot go into the question of facts as determined by the Courts below.

On the contrary, Shri D. Gopal Rao, Counsel appearing on behalf of the appellant, vehemently opposes the argument advanced on behalf of the respondents, contending that the Courts are not lacking power to interfere with the findings of the Courts below, which had erroenously come to a conclusion without any such evidence. It is further contended that the trial Court had rightly disbelieved the evidence adduced on behalf of the first respondent, that she begot two children through the second respondent, who were born in the hospital of one Dr. J.V. Rajendra Prasad Reddy in the years 1965 and 1967. There was no documentary evidence placed before the trial Court to bring home the truth that the firs t respondent gave birth to two male children in the hospital run by Dr. J.V .Rajendra Prasad Reddy in the years 1965 and 1967. Such is the evidence, on which the first respondent tried to build castle for denying the right of the appellant on the suit schedule land, accrued to him on account of his purchase of the same from the second respondent, which was sold to him for redeeming his liability with the third parties.

In order to examine the legal contentions submitted by Shri Veerabhadrayya, the decisions cited by him are referred, one by one, hereunder:

In Ramaswamy Kalingaryar Vs. Mathayan Padayachi, ., the Supreme Court considered the scope of Sections 100 and 100A of the CPC and held that concurrent finding of fact in favour of certain party as to his being in sole possession of land, is unquestionable in second appeal. Shri Veerabhadrayya relying on this decision contended that where on the question of fact finding is concurrent by both the Courts, such a finding is not questionable in second appeal. There cannot be any dispute as far as the proposition laid down by the Supreme Court in this case. When there is a concurrent finding in this case as to the fact of a particular party in possession of a particular piece of land, such a finding, undoubtedly, cannot be disturbed by this Court in second appeal. In the case on hand, there is no such concurrent finding in this direction. The trial Court disbelieved the version of the first respondent that she gave birth to two male children in the private hospital run by P.W.2, Dr. J.V. Rajendra Prasad Reddy, in the years 1965 and 1967 and who died soon after their birth. Basing on such birth and death of the two male children, she has claimed 3/4 th share. The appellate Court, however, believed her version and decreed the suit in her favour. There is no concurrent finding on this fact. In this view of the matter, I am afraid, the proposition laid down by the Supreme Court in the case (1 surpa), has no application in the facts and circumstances of this case and enure to the benifit of the 1st respondent.

In Raruha Singh v. Achal Singh, AIR 1961 SC 1097., the Supreme Court held that in second appeal the jurisdiction of the High Court is confined to questions of law. I have no dispute as to the proposition laid down by the Supreme Court in the above decision. But in the facts and circumstances of this case, it has to be seen whether this proposition could be applied. In the case (2 supra), the District Court had pointed out that the trial Court had made an obvious mistake in regard to the date of construction of Banbharan. After all, the question at issue had to be tried in the light of oral evidence and surrounding circumstances. In the case on hand it was the specific statement of the first respondent that she gave birth to two children in the private hospital run by P.W.2, Dr. J.V. Rajendra Prasad Reddy, in the years 1965 and 1967. P.W.2, Dr. J.V. Rajendra Prasad Reddy, deposed in the Court that the first respondent gave birth to one child on 23-11-1965 and the other on 18-7-1967. The first child died ten days after birth and the second child died four days after birth. All this has been orally stated by P.W.2 without any record at the time of his evidence. Therefore, the trial Court had rightly rejected such an evidence, which is not based on any record. However, the lower appellate Court believed the statement without any basis. Therefore, it cannot be said, under these circumstances, the High Court cannot go into this aspect which is not based on any evidence.

In R. Ramachandran Ayyar Vs. Ramalingam Chettiar, , the Supreme Court held that a finding of fact has been recorded by the first appellate Court without any evidence, that finding can be successfully challenged in second appeal, because a finding of fact which is not supported by any evidence can be questioned u/s 100 of the Code of Civil Procedure; and in that connection, it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean the evidence accepted by the lower appellate Court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate Court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate Court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all. In such circumstances, any finding by the lower appellate Court on such evidence is questionable u/s 100 of the Code of Civil Procedure.

In the case on hand, it has always been the case of the first respondent that she gave birth to two male children - one in the year 1965 and the other in 1967 - who died soon after their birth, and the said children were born in the private hospital run by one Dr. J.V. Rajendra Prasad Reddy, P.W.2. It is in this context, the evidence of P.W.2 has to be examined carefully. P.W.2 had deposed that the first respondent gave birth to two male children in the years 1965 and 1967, who died later on. He gave this statement on 12-12-1983. It is interesting to see that there are no records maintained by P.W.2 to say that the first respondent gave birth to two male children on so and so dates. Without the support of any record it is hard to believe the statement of the doctor, P.W.2. As a doctor he is expected to maintain births and deaths register in the hospital and intimate the same to the concerned authorities. In the absence of any documentary proof on this ground, the oral evidence let-in by P.W.2, supporting the case of the first respondent, cannot be believed. In my view, the lower appellate Court, basing only on the evidence of P.W.2, granted the relief sought for by the first respondent in the suit. Such a relief is not based on any evidence. Therefore, it is a matter which precisely falls u/s 100 of the CPC for consideration by this Court.

Admittedly, the property was sold to the appellant by the second respondent, who is the husband of the first respondent, in the year 1970, for a valuable consideration for redeeming his liability with the third parties. Pursuant to the purchase of the property, the appellant spent huge amounts on the property and raised Mango Garden. The suit was filed in the year 1980. This conduct of the first respondent supports the case of the appellant that conspiracy is hatched to deny him the fruits from the property which he has purchased.

In view of the discussion I have made, the legal submissions made by Shri Veerabhadrayya, Counsel appearing on behalf of the respondents, are rejected. In my view, there is no material before the lower appellate Court to reverse the finding of the trial Court. The lower appellate Court, on certain presumptions and assumptions without there being proper evidence, had come to the conclusion that the first respondent has established her case and is entitled for the relief sought for by her. The finding of the lower appellate Court is based on no evidence, and therefore, it has to be set aside.

Accordingly, the judgment and decree of the lower appellate Court is set aside. Consequently the judgment and decree of the trial Court is confirmed. In the result, the appeal is allowed.

Since nothing has been adverted to on the question of the effect of Section 3 of the Andhra Pradesh Scheduled Areas land Transfer Regulation No. 1 of 1959, as amended by Regulation 1 of 1970,1 am not persuaded to give a finding on this aspect, because the scope of second appeal is limited to the question whether the lower appellate Court had sufficient material to reverse the finding of the trial Court. No costs.

Immediately after pronouncing the judgment in this appeal Sri Gopal Rao, learned Counsel appearing on behalf of the appellant, brings to my notice that pursuant to the orders of this Court in C.M.P. Nos. 9412/89 dated 20-7-1989 (Rs. 7,500/-), 5338/90 dated 24-12-1990 (Rs. 5,000/-), 5,777/91 dated 24-10-1991 (Rs. 1,500/-), 15695/92 dated 19-8-1992 (Rs. 2,000/-), and 1993/93 dt.24-12-1993 (Rs. 2,000/-) an amount of Rs. 18,000/- has been deposited by the appellant herein. On such deposit, on various dates the first respondent has withdrawn the amount without furnishing any security as directed by this Court in the above CMPs. These deposits and withdrawals were, however, subjected to decision in the appeal. In view of this contingency it is urged that the first respondent may be directed to return the amount which has been received by her pursuant to the orders of this Court.

The Counsel appearing on behalf of the first respondent states that no such direction could be issued to the first respondent for returning the money received by her. It is only on an application filed u/s 144 of CPC before the trial Court, an order to that effect could be obtained. I am afraid, I cannot accept these submissions. During the pendency of the Second Appeal, this Court granted interim directions directing the appellant herein to deposit some amount. On such deposit it was further directed the first respondent could withdraw the said deposits without furnishing any security. However, these deposits and withdrawals were subjected to result in the Second Appeal. These orders are only of interlocutory nature, in my view, the principle evolved in Section 144 of CPC has no application to the facts and circumstances of an order of this nature and, therefore, the objection is rejected.

It is not disputed that the first respondent has withdrawn the amount pursuant to orders of this Court in the CMPs. stated supra. Therefore, the first respondent is directed to return the amount of Rs. 18,000/-, which has been withdrawn by her, to the appellant herein within three (3) months from today. Any delay by the first respondent in returning the amount to the appellant would be illegal and without the authority of law.