Dismissed

Baruvemukula Anil Kumar v. Baruvemukula Chandra Kiran

Andhra Pradesh HC18 Oct 2024AS/1908/2018

Case brief

AI extract

What is this about?

In a second appeal against a judgment in a suit for recovery of possession, the High Court held that the suit was maintainable without a declaration of title as the original owner's title was undisputed. The Court rejected the appellant's claim that the gift deed was forged or obtained by coercion and dismissed the appeal.

What did the court decide?

The appeal suit was dismissed with no order as to costs.

Baruvemukula Anil Kumar Vs Baruvemukula Chandra Kiran — Partition | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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SATURDAY, THE NINETEENTH DAY OF OCTOBER
li t! a •A
iX
TWO THOUSAND AND TWENTY FOUR 'SihIJ y-Qi

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PRESENT

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THE HONOURABLE SRI JUSTICE NINALA JAYASURYA AND

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THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM

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APPEAL SUIT NO: 1908 OF 201«

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Appeal filed under Section 96 of C.P.C, against the Judgment and Decree dated 24-08-2018 passed in O.S.No.358 of 2012 on the file of the Judge. Family Court-CumXII Additional District Judge, Guntur, Guntur District.

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Between:

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Baruvemukula Anil Kumar, S/o.Late Gnana Sundaram, Christian, aged 48 years. Railway Employee, R/o.Door No.3-20-8/3,1®‘ line Ravindranagar, New Pattabhipuram, Guntur.

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...Appellant/Defendant

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AND

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Baruvemukula Chandra Kiran, S/o.Late Gnana Sundaram Christian, St aged 42 years. Private Employee, R/o.Door No. 15-7-132,1 line. Vinobha Nagar, Old Guntur, Guntur.

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...Respondent/Plaintiff

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lA NO: 1 OF 2018

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Petition filed under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings, pursuant to

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Decree and Judgment dated 24-08-2018 in O.S.No.358 of 2012 on the file of the Court of the Judge. Family Court-Cum-XII Additional District Judge, Guntur pending disposal of the above Appeal.

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Counsel for the Appellant :Sri T.Ramakoteswara Rao, Counsel representing Sri B Srinarayana

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Counsel for the Respondent :Sri Jesu Ratna Kumar Nelaturi

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The Court made the following:

APHC010859522018

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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[3494]

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(Special Original Jurisdiction)

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SATURDAY ,THE NINETEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE NINALA JAYASURYA

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THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM

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APPEAL SUIT No: 1908 OF 2018

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Between:

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Baruvemukula Anil Kumar

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...APPELLANT

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AND

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Baruvemukula Chandra Kiran

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...RESPONDENT

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Counsel for the Appellant:

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I.Mr.B.SRINARAYANA

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Counsel for the Respondent:

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I.Mr.JESU RATNA KUMAR NELATURI

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The Court made the following Order: (perNinala Jayasurya) The present appeal is filed against the Judgment and^Decreedated 24.08.2018 in O.S.No.358 of 2012 on the file of the Court of XII Additional District Judge at Guntur.

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The respondent / plaintiff filed the said suit for recovery of the possession of the suit schedule property from the defendant^and if he failed to . deliver the possession of the suit schedule property,^{todeliverthesameunder} due process of Law. The learned Trial Court decreed the^suitin favour of the plaintiff, aggrieved by which, the defendant filed the present appeal.

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Heard Mr.T.Ramakoteswara Rao, Advocate representing^the learned counsel for the appellant. Also heard learned counsel for the respondent.

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For the sake of convenience, the parties are referred to as they are arrayed in the suit.

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As per the plaint averments, the defendant is the brother of the plaintiff. ■ One Smt.Suryakanthamma, who is the mother of the plaintiff and the defendant purchased the scheduled property vide Registered Sale Deed dated 16.12.1968 from one Chodagam Venkata Narayana, improved the said property and thereafter gifted it to the plaintiff vide Registered Gift Deed dated 29.01.1999. The plaintiff got the exclusive rights over the suit schedule property and after the death of the parents, the plaintiff requested the defendant to deliver the possession of the suit schedule property, which he is looking after as a care taker, but the defendant had not delivered the

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possession of the property, despite issuance of legal notice. Hence the suit for recovery of possession of the suit schedule property.

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The defendant filed a written statement, inter alia. stating that their father one Mr.Gnana Sundaram purchased the site and constructed a house With his money and obtained documents in the name of their mother, that the Gift Deed in the name of the plaintiff is nominal, sham and collusive document' and the plaintiff obtained the said dooumeht under threat, coercion and undue influence etc.. It is also pleaded that the possessioh of the defendant is not permissive possession as pleaded by the plaintiff, that the Gift Deed is a rahfl forged document etc.

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pleadings, formulated the following

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1 Whether the plaintiff is entitled for recovery of possession?

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Whether the Gift Deed dated 29.01.^999 is true nominal, sham, ‘ collusive and obtained by coercion and whether the Gift Deed is acted upon?

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Before the Trial Court, the plaintiff got himself examined as P.W.1, the attestor of the Gift Deed as P.W.2 and got marked Exhibits A1 to A29. The defendant was examined as D.W.1 and his neighbor was examined as D.W.2. Exs.BI to B3 were marked on his behalf.

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The learned Trial Court, after considering the oral and documentary evidence on record, decreed the suit in favour of the respondent / plaintiff. Aggrieved by the said Judgment and Decree, the present appeal is filed.

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The learned counsel for the appellant, inter alia, contended that the order under challenge is not sustainable as the Court^{belowfailedtoconsider} the matter in a proper perspective. It is his contention^thata suit for mere possession is not maintainable without seeking the^relief of declaration of^title, that as the respondent / plaintiff is claiming title to the suit schedule property through Ex.AI-Gift Deed, he has to prove that the Gift was validly executed and accepted by him. He submits that the learned Trial Court without proper appreciation of the crucial aspects, went wrong in answering the issues in favour of the respondent / plaintiff and committed an error in decreeing the suit. He submits that the order under challenge is^{notsustainableinthefacts} and circumstances of the case and seeks to allow the present appeal. No other grounds were urged.

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On the other hand, the learned counsel for the respondent while referring to the various conclusions recorded by the^{learnedTrialCourtonthe} basis of the evidence adduced by both sides, made submissions^tosustain the order under challenge.

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This Court has considered the submissions made and perused the material on record.

It is the case of the plaintiff that the subject matter property originally belongs to one Smt.Suryakanthamma, mother of the plaintiff and the defendant, whereas the stand taken by the appellant / defendant is that the property was purchased by their father, but the documents were obtained in the name of their mother. As per the pleadings, it is the case of the plaintiff that his mother Suryakanthamma executed a Gift Deed dated 29.01.1999 (Ex.AI) in respect of the suit schedule property in his favour. To substantiate his case, he got examined P.W.2- one of the attestor. In his evidence, P.W.2 had categorically deposed that Smt.Suryakanthamma executed a Registered Gift Deed on 22.01.1999 and the same was registered on 29.01.1999 and that he along with one K.Sarath Babu put their signatures as attestors and also identifying witnesses, that the Deed was scribed by one Mr.P.M.Paul. Nothing was elicited in his cross examination to disbelieve his evidence.

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As noted above, the defendant had taken a plea that the Gift DeedEx.AI is nominal, sham and collusive. Further, that the said document was obtained by the plaintiff under threat, coercion, undue influence. That apart, he also pleaded that the Gift Deed does not contain the signatures of the legal heirs of Smt.Suryakanthamma and it is a rank forged document. Though it IS settled position that the defendant is entitled to take inconsistent pleas, such pleas shall not be mutually destructive. On one hand, he took a stand that Ex.AI is nominal, sham and collusive and on the other hand, a diagonally opposite plea was taken that it was obtained under threat, coercion and undue influence. Not only the said pleas, he had also taken a plea that the document

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(Gift Deed) is a rank forgery. The pleas taken by the^{defendantaremutually} destructive. Though a plea was raised that Ex.A1 is^{aforgeddocument,no} steps have been taken to send Ex.A1 for the opinion^{ofhandwritingexpert.} The evidence adduced on behalf of the defendant does not support his case. Even on the aspect of the alleged undue influence, coercion or collusion. nothing could be elicited during the cross examination of the plaintiff’s witnesses. Thus, the defendant failed to prove his case. Whereas, the plaintiff established execution of Ex.A1 in his favour.

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Coming to the other documentary evidence, Ex.A2 is the Original Registered Sale Deed dated 16.12.1968 executed by one^Mr.Chodagam Venkata Narayana Rao in the name of Suryakanthamma, mother of the plaintiff and the defendant. Exs.A6 to A17 are the original property tax payment receipts issued by the Guntur Municipality^{infavourofthemotherof} the plaintiff. The defendant in the cross examination^admitted that the suit schedule property stand in the name of his mother and^{thatbythetimewhen} she purchased the suit schedule property in the year^{1968,shewasworking} as a teacher. Though a stand was taken in the written^{statement,thatthe} property was purchased by his father in the name of^{thedefendant’smother} Smt.Suryakanthamma, in his cross examination he stated^{thathisfatherand} mother together have purchased the suit schedule property^{andthathisfather} had paid the money for construction of house. However,^{nomaterialisplaced} to substantiate his case and the inconsistency in the^{evidenceisfatal.} On the other hand, the material on record, coupled with the^{evidenceadducedon}

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behalf of the plaintiff establish that the mother of the plaintiff was the original owner of the suit schedule property and by virtue of Registered Gift Deed (Ex.A1), the plaintiff acquired rights in respect of the suit schedule property, As the original owner’s (Donor) title was not in dispute, the suit as filed for mere possession, without seeking declaration of title, is maintainable.

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Though the learned counsel sought to imc impress upon this Court that the trial Court failed to consider the matter by appreciating the evidence on record in a proper perspective, the same merits no acceptance in the light of the conclusions arrived at supra. The learned Trial Court had meticulously gone through the evidence on record and after detailed consideration of the submissions made, concluded that the plaintiff is having better title, that there

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IS no serious cloud over the title of the plaintiff and the suit for recovery of possession is maintainable, that there is no need to seek declaration of title. Though no specific plea was taken in the written statement as a contention was raised that the defendant perfected title in respect of the suit schedule property by virtue of adverse possession, the learned Trial Court had examined the said aspect and negatived the same.. The learned Trial Court while answering the said point, relied on the decision of the Hon’ble Supreme Court in Vasantiben Prahladji Nayak and others v. Somnath Muijibhai Nayak and others^ and held that mere continuation in possession of a particular property years together without any declaration of hostility would not confer the title by way of adverse possession. The said finding of the learned

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AIR 2004 SC 1893

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Trial Court is well considered and the order under challenge contains cogent reasons. There is no illegality, much less improper appreciation of the evidence both oral or documentary. Therefore, the contentions^advancedon behalf of the appellant are rejected.

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Considering the matter in its entirety and in view^{oftheconclusions} arrived at supra, this Court see no reason to interfere^{withtheorderassailed.}

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Accordingly, the appeal is dismissed. There shall be^{noorderastocosts.}

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As a sequel, pending miscellaneous petitions, if any,^{shallstandclosed.}

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SD/- M RAMESH BABU DEPUTY REGISTRAR

//TRUE COPY//

To,

SECTION OFFICER

The Judge, Family Court-Cum-XII Additional District Judge , Guntur, Guntur District. (With records)

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One CC to Sri B Srinarayana, Advocate [OPUC]

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One CC to Sri Jesu Ratna Kumar Nelaturi, Advocate [OPUC]

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The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravathi

5. Three CD Copies

BSV

sree

■)

HIGH COURT

DATED: 19/10/2024

JUDGMENT AND DECREE

AS.No.1908 of 2018

5 0 6 JAN 2C:5 1
Current Section .

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DISMISSING THE APPEAL SUIT WITHOUT COSTS

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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SATURDAY, THE NINETEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE NINALA JAYASURYA AND

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THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM

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APPEAL SUIT NO: 1908 OF 2018

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Between:

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Baruvemukula Anil Kumar, S/o.Late Gnana Sundaram, Christian, aged 48 years. Railway Employee, R/o.Door No.3-20-8/3,1 St line. Ravindranagar, New Pattabhipuram, Guntur.

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...Appellant/Defendant

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AND

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Baruvemukula Chandra Kiran, S/o.Late Gnana Sundaram, Christian aged 42 years. Private Employee, R/o.Door No.15-7-132,1 St line Vinobha Nagar, Old Guntur, Guntur.

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...Respondent/Plaintiff

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Appeal under Section 96 of C.P.C, against the Judgment^andDecree dated 24-08-2018 passed in O.S.No.358 of 2012 on the file of the Judge, Family Court-Cum- XII Additional District Judge, Guntur,^{GunturDistrict.}

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This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Trial Court and material papers in the Suit and upon hearing arguments of Sri T.Ramakoteswara Rao, Advocate representing Sri B.Srinarayana, Advocate for the Appellant and of Sri N.Jesu Ratna Kumar, Advocate for Respondent

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This Court doth Order and decree:

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That the appeal suit be and is hereby dismissed;^and

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That there be no order as to costs in this appeal.

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SD/- M RAMESH BABU DEPUTY REGISTRAR

//TRUE COPY//

fKSECTION OFFICER

To,

The Judge, Family Court-Cum- XII Additional District Judge, Guntur, Guntur District.

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Two CD copies

BSV

sree

HIGH COURT

DATED:19/10/2024

DECREE

AS.No.1908 of 2018

anoh;^
g 0 6 JAN 2C:5 <o<br>■>:
. Current Section ^

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DISMISSING THE APPEAL SUIT WITHOUT COSTS

Baruvemukula Anil Kumar v. Baruvemukula Chandra Kiran

Case brief

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Baruvemukula Anil Kumar v. Baruvemukula Chandra Kiran

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