NARUKHURTI SUNDARAMMA Vs. PENDURTHI VENKATA RAO

JUDGEMENT

(1.) The un-successful plaintiff No.2 in O.S.No.44 of 1985 on the file of the Subordinate Judge, Kowur filed A.S.No.294 of 1995. Likewise, she filed Transfer A.S.No.127 of 1995 as against the judgment and decree made in O.S.No.156 of 1987.

(2.) The suit in O.S.No.44 of 1985 on the file of the Subordinate Judge, Kowur was filed by Smt.P.Bullemma and Smt.N.Sundaramma as plaintiffs praying for recovery of possession of the plaint schedule property, past mesne profits and also future mesne profits and such other suitable reliefs. The first plaintiff is the mother and the second plaintiff is the daughter. The first plaintiff is no more. The second plaintiff-present appellant in A.S.No.294 of 1995 is prosecuting the litigation. P.Venkatarao-defendant in O.S.No.44 of 1985 filed the other suit in O.S.No.156 of 1987 for perpetual injunction as against N.Dharma Rao and Smt.N.Sundaramma. N.Sundaramma-second defendant in the said suit was added as per orders in I.A.No.1627 of 1987, dated 30.01.1991. The learned Subordinate Judge, Kowur by common judgment dated 31.1.1995 dismissed the suit in O.S.No.44 of 1985 and decreed the suit in O.S.No.156 of 1987, granting injunction in favour of the plaintiff till he is evicted by due process of law. Aggrieved by the same, the aforesaid appeals had been preferred by N.Sundaramma.

(3.) SUBMISSIONS OF SRI T.S.ANAND: Sri T.S.Anand, learned counsel representing the appellant in both the appeals would contend that as far as the transfer appeal is concerned, limited relief of injunction until P.Venkatarao is evicted by due process of law had been granted and the result of the said appeals would depend upon the result of the main matter in A.S.No.294 of 1995, which was preferred as against the suit for recovery of possession and other reliefs in O.S.No.44 of 1985. The learned counsel also had taken this court through the findings recorded by the learned Judge and would contend that having believed Ex.A-1 and having disbelieved Ex.B-9 and having arrived at a conclusion that Ramanna had the testamentary capacity to dispose of the plaint schedule property in O.S.No.44 of 1985, dismissed the suit mainly on the ground that the relief prayed for is pre-mature, for the reason that only after the death of P.Bullemma, the relief can be prayed for, cannot be sustained. The learned counsel also pointed out that both the life interest holder and vested remainder holder as plaintiffs instituted the suit in O.S.No.44 of 1985 and specific relief also was prayed for in the suit for recovery of possession on behalf of both the plaintiffs and hence, the said findings recorded by the learned Judge to the effect that the remedy of the plaintiff would be to file yet another suit also cannot be sustained. The learned counsel while further elaborating his submissions regarding the scope and ambit of Order 41, Rule 33 of C.P.C., in all fairness, would contend that adverse findings also may be questioned by the ultimate successful party but, however, the learned counsel would contend that even if the evidence available on record is carefully appreciated, the only conclusion that can be arrived at is that Ex.A1 is a valid document and hence Ramanna had executed the will by making duspostion of the properties this cannot be doubted in any way, especially in the light of the fact that even in Ex.B9, there is a recital relating to the existence of Ex.A1. The learned counsel also would contend that merely because after testamentary duspostion, certain properties had been given to the son by Ramanna and that itself can not be taken as a suspicious circumstance. From the facts and circumstances it is clear that Ex.B9 was brought into existence only with a view to defeat the rights of the plaintiff under Ex.A1. Ultimately, the learned counsel would conclude that in the light of the clear findings, which had been recorded by the learned Judge, inasmuch as the said findings had not been questioned, atleast by way of cross objections, such findings shall normally be not disturbed by the appellate court.