M. Rama Krishna Reddy (died) and Others vs Nammasivayya Prabhakar Reddy

Krishna Saran Shrivastav, J.—Having lost in both the courts below, the defendants have preferred this Second Appeal which has been admitted on the following substantial question of law:

"1. Whether the lower Court erred in declaring plaintiff''s title to the suit vacant site without considering any evidence as to the nature of possession and the mode of enjoyment of the vacant site and without recording a finding regarding plaintiff''s possessory title which was the basis of the plaintiff''s claim of ownership?

Having observed that the document Ex. A-4 gift was not inter parties and hence the boundary recitals therin were inadmissible in law, whether the lower appellate Court erred in relying on the same in proof of plaintiff''s title on the sole ground that the document was marked without objection by the defendants and the document so admitted meant admission of the contents of the document also by the defendants?"

The facts are jejune: - Plaintiff - respondent has purchased through registered sale deed dated 4-8-1978, the land shown in the plaint plan by letters '' ABCEFGH'' and constructed a kottam (cattle shed) on a portion of it shown by letters ''BEFG'' with entrance shown by letter ''X''. The portion shown in the plaint plan by letters ''ABGH'' is the front part of yard of the kottam which is the passage to reach the kottam from the street. The plaintiff-respondent instituted a suit for declaration of title and mandatory injunction against the appellants alleging that they had placed hayrick illegally on the protion shown by letters ''ABGH'' in the plaint plan (in short ''the disputed land) and, therefore, had prevented the respondent-plaintiff from using the path.

The 1st defendant filed a written statement alleging that the whole area shown by letters ''ABCEFGH'' was the part of their lime grinder. This land is his ancestral property. The vendor, namely, Chengal Reddy was not the owner in possession of the aforesaid land and, therefore, he could not pass any title to the respondent-plaintiff through the sale deed dated 4-8-1978. In order to grab the aforementioned land, about fifteen years back he got a gift deed executed by one A.V. Subbamma in favour of his brother''s son, namely Siva Rami Reddy in which it has been mentioned that the gifted property is situated in the south of the land shown in the plaint plan by letters "ABEFGH''. Few year prior to 4-8-1978, on the recommendation of the village Munsif and others, the defendants have donated a small portion of land out of the lime grinder site on which the vendor of the plaintiff-respondent has constructed the kottam and there is a separate path to reach the main street from the kottam. He has prayed for dismissal of the suit. The other defendants have adopted the written statement of the 1st defendant.

The learned trial Court, on assessment of the evidence on record, relying on the evidence of Chengal Reddi P.W. 1, a co-villager Akepati Venkata Subbareddy P.W. 3 and on the report Ex. A-2 of the Commissioner P.W.2, rejected the evidence adduced on behalf of the defendants and held that the suit land was owned by the vendor of the respondent-plaintiff and through the sale the respondent-plaintiff became the owner is possession of the suit land. It also relied on the registered gift deed Ex. A-4 dated 6-10-1965 executed by Akepati Papi Reddi gari Venkata Subba in favour of Meda Siva Rami Reddy in which the southern boundary, that is, the suit land has been shown as belonging to the vendor of the respondent-plaintiff, namely, Meda Chengal Reddy.

The defendants challenged the judgment of the trial Court unsuccessfully in the First Appeal, wherein the II Additional District Judge, Cuddapah held that Ex. A-4 and its contents were admissible in evidence because this document was marked with the consent of the defendants. The first appellate Court also relied on the evidence adduced by the respondent-plaintiff in preference to the evidence adduced by the appellant-defendants and dismissed the appeal.

Feeling aggrieved by the judgment and decree of the Courts below, the defendants have preferred this second appeal.

I shall deal the second substantial question of law first.

Referring and explaining the law laid down in the case of P.C. Purushothama Reddiar Vs. S. Perumal, , the Division Bench of the Madras High Court in the case of A.V.S. Perumal Vs. Vadivelu Asari, has held that the consent given by a party for marking a document does not dispense with either the proof of the contents of the document or the truth or otherwise of the contents. Permitting a document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved. With great respect, I am in complete agreement with this view of the learned Judges expressed in A.V.S. Perumal Vs. Vadivelu Asari, .

In the case of V.A. Amiappa Nainar (Died) and Others Vs. N. Annamalai Chettiar (Died) and Others, it is held that "the only method by which recitals in a document not inter parties could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found."

On perusal of the written statement, it is revealed that the appellant-defendants have pleaded that in the gift deed executed by one A.V. Subbamma some fifteen years back, that is to say, the gift deed Ex. A-4 dated 6-10-1965, it has been mentioned that the suit land is situated in the Northern side of the land covered by the gift deed as belonging to Meda Chengal Reddy. The trial Court, on assessment of the evidence on record, has rejected the case of the defendants that the land on which the kottam has been later constructed was donated by them to the vendor of the respondent-plaintiff, namely, Meda Chengal Reddy. This document Ex. A-4 was marked by the constent of the parties. Under these circumstances, tine contents of the document Ex. A-4 need not be proved by other evidence for tine simple reason that admitted facts need not be proved and, therefore, the case of V.A. Amiappa Nainar (Died) and Others Vs. N. Annamalai Chettiar (Died) and Others, , A.V.S. Perumal Vs. Vadivelu Asari, and P.C. Purushothama Reddiar Vs. S. Perumal, are of no help to the appellants-defendants.

Now coming to the first substantial question of law, I find that the trial Court has discussed the evidence of P.W. 1 and P.W. 3 in Para-4 of its judgment in appeal. These two witnesses have deposed that the suit land as also the land on which the kottam had been constructed belonged to the ancestors of Meda Chengal Reddy who has been in possession of the same. As noted above, the evidence adduced on behalf of the appellants-defendants that the land on which the kottam had been constructed by Meda Chengal Reddy P.W. 1 was donated to him by them has been disbelieved by the trial Court on cogent reasons. Their evidence had been disbelieved on the ground that they had strained relations with Meda Chengal Reddy. Therefore, their say that they gifted that land on the mere asking of the villagers is not believable. Tine evidence adduced on behalf of the respondent-plaintiff has been accepted in preference to the evidence adduced by the appellants-defendants . The trial Court discussed the evidence of PW-1 in para-5 of the judgment and preferred to tine evidence of the appellants-defendants after discussing the same in para-6 and 7 of its judgment.

The finding regarding long possession of the vendor of the respondent-plaintiff is based on the oral evidence adduced by the parties. In the case of Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, it is held that.

"When the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has excaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies."

When there is evidence on record to support the finding of fact as reached by the Courts below it is binding in Second Appeal unless it is shown that the finding is perverse and is based on no evidence at all. Such is not the case here.

For the foregoing reasons, I reach to the conclusion that the finding of the Court below suffers from no illegality and calls for no interference and, agreeing with the finding recorded by the Courts below, I reach to the conclusion that the respondent-plaintiff is the owner of the suit land.

In result, the appeal fails and is hereby dismissed. The appellants-defendants shall bear their own costs as well as the costs of the respondents-plaintiff. Counsel fee as per scale, if certified.