BATHINENI VIJAYA LAKSHMI Vs. GOTTIMUKKALA RADHAIAH

JUDGEMENT

(1.) This appeal is filed by plaintiffs 2 and 3 as against the Judgment and Decree made in O.S. No.88/89 on the file of Subordinate Judge, Bapatla, dismissing the suit. Respondent is the defendant. Plaintiffs 2 and 3 were brought on record as the legal representatives of the deceased 1st plaintiff as per order in I.A.No.1048/94 dated 17-8-1994. The suit was filed for recovery of an amount of Rs.47,600/- on the basis of a promissory note. It was pleaded that on 20-8-1986 the defendant borrowed Rs.35,000/- from the plaintiff for raising tobacco and executed a promissory note undertaking to repay the said amount with interest at 12% p.a. It was also pleaded that the defendant is not entitled to the benefits of A.P. Act 45 of 1987 as he owns Ac.3-00 of wetland and Acs.5-00 of dry land. Despite repeated demands, since the defendant failed to pay the amount, the suit was filed. As already referred to supra, the original plaintiff died and plaintiffs 2 and 3 were added as legal representatives. Respondent in this appeal - the defendant resisted the suit pleading that the suit promissory note is a rank forgery. It was also pleaded that the defendant purchased tobacco from one Tarigopula Ranga Rao and subsequently sold the barns to his relatives who agreed to pay the remaining balance amount to the said Ranga Rao. It was also pleaded that the said Ranga Rao also agreed to collect the remaining amount from the relatives of the defendant. The defendant sustained loss in agriculture. The said Ranga Rao bore grudge against the defendant as his relatives did not pay the amount. Hence, the said Ranga Rao with the assistance of his followers created the suit promissory note and got the suit filed. The defendant is a small farmer owning Acs.4-00 of land. An additional written statement also was that the plaintiffs cannot further prosecute the litigation without the production of Succession Certificate. On the strength of the pleadings, the following issues and additional issues were settled by the trial Court: Issues :- (1) Whether the suit pronote is true, valid and binding on the defendants ? (2) Whether the suit is barred by time ? (3) Whether the defendants are small farmers and they are protected under Act 45/87 ? (4) To what relief ? Additional Issues :- (1) Whether the plaintiffs have to obtain Succession Certificate to prosecute the suit ? (2) Whether the suit is maintainable ? (3) To what relief ? The learned Judge on appreciation of evidence of P.W.I - the 1st legal representative of the deceased plaintiff, P.W.2 - Scriber, P.Ws.3 and 4 - Attestors, recorded a finding that the execution of promissory note - Ex.A.l is proved in accordance with law and hence the presumption relating to the payment of consideration to be drawn. A further finding had been recorded that the suit is within limitation since on the next day of working the suit was filed. On appreciation of the evidence of P.Ws.1 to 4 and also D.Ws.l to 3 and also Ex.P.1, Exs.B.l to Ex.B.3 and also Exs.X.1 to X.4, a further finding had been recorded that the defendant is not a small farmer and not entitled to the benefits of the Act 45 of 1987 as claimed by him. A further finding had been recorded that plaintiffs 2 and 3, the present appellants, cannot further prosecute this litigation without the production of Succession Certificate. In view of the dismissal of the suit, the unsuccessful plaintiffs preferred the appeal and in view of the adverse findings which had been recorded on all other issues, the cross-objections had been preferred.

(2.) Sri Harnath, the learned Counsel representing the appellants had filed a memo before this Court along with the Succession Certificate issued in Succession O.P.No.8/ 99 on the file of Junior Civil Judge, Ponnur. The learned Counsel would contend that inasmuch as the evidence was appreciated in proper perspective and positive findings had been recorded relating to all other issues, and in view of the fact that the suit was dismissed only on the ground of non- production of Succession Certificate, the defect is cured now and hence the suit to be decreed as prayed for. The learned Counsel also would maintain that the Succession Certificate produced is an order made by the competent Court and though no separate application is filed, the same be looked into by this Court inasmuch as it is an order made by the Court. The learned Counsel also placed reliance on the following decisions and had urged the production of Succession Certificate even in the case of this nature is not at all necessary. Chinna Pullaiah (Died) by L.R. v. LAO, Srisailam Project, Mahabubnagar, 2000 (6) ALD 91; Mabukhan v. Rajamma, AIR 1963 AP 69; P.V. Swamy (Died) per L.R. Sunkalamma v. LAO, Srisailam Project, 2001 (2) ALD 139; G. Buddanna (Died) by LRs. v. B. Subbarayudu, 2005 (1) ALD 258; J. Kista Reddy and others v. M.R.O., Rangapur Village, Pebbair Mandal, Mahabubnagar, 2005 (2) ALD 666; Inder Sen v. Man Singh Gujjar, AIR 1992 P&H 130; K. Laxminarayan v. V. Gopalaswami, AIR 1963 AP 438 and Maung Po Htwa v. Ma Jgwe Zin, AIR 1937 Rangoon 470. It is contended by Mr. Harnath that merely because Succession Certificate is produced that does not mean that Succession Certificate is required in the matter and this aspect may also be considered in the light of the decisions cited in this regard.

(3.) Sri Krishna Murthy, the learned Counsel representing the respondent - Cross-objector - defendant made the following submissions : At the outset the learned Counsel raised an objection to the way in which the Succession Certificate is being produced before this Court and would comment that merely because at a belated stage the same had been produced, automatically the said document cannot be received. The learned Counsel also had taken this Court through the evidence of P.Ws.1 to 4 and D.Ws.l to 3 and would comment that in the facts and circumstances, the adverse findings recorded relating to the other issues also cannot be sustained. While further elaborating his submissions, the learned Counsel had drawn the attention of this Court to Order XLI Rule 27 C.P.C. and would maintain that the said provision cannot be circumvented by the production of such Certificate at the appellate stage by way of memo. The learned Counsel also placed strong reliance on Manne Adinarayana v. Mane Chintanna (Died) and others, 1995 (2) ALD 204 and Pramod Kumar v. Om Prakash, AIR 1980 SC 446.