NEKKANTI SURYA KANTAMMA Vs. SANKURATRI ANNAPURNAMMA

JUDGEMENT

(1.) Smt. Nekkanti Suryakanthamma, 3rd plaintiff, who was added as per orders in I.A.No.761/88 dated 17-7-1988 in O.S.No.24/89, renumbered as O.S.No.51/92 on the file of Subordinate Judge, Tanuku, preferred the present Appeal aggrieved by the Judgment and decree made therein dated 26-8-199. The 1st respondent herein is the defendant in the said suit and the 2nd plaintiff in the said suit is shown as 2nd respondent in the present Appeal. The suit was originally instituted by Chilukuri Subbarayudu who died and yet another Chitturi Chinna Abbulu who is shown as 2nd respondent in the present Appeal. The said plaintiffs filed the suit praying for a decree against the defendant confirming possession of the 1st plaintiff given by the defendant in pursuance of the sale deed dated 17-6-1976 or in the alternative to grant decree against the defendant for delivery of possession of the plaint schedule property after ejecting defendant and her men therefrom to the 1st plaintiff, to grant future profits till the date of delivery of possession, to grant costs of the suit and also to grant such other suitable reliefs. The defendant in the suit as plaintiff filed O.S.No.288/79 on the file of District Munsif, Tanuku praying for permanent injunction restraining the defendants, their men from interfering with the possession and enjoyment of the plaint schedule property which was renumbered as O.S.No.52/92. The 1st plaintiff in the aforesaid suit is shown as 2nd defendant in this suit. The learned Subordinate Judge, Tanuku had tried both the suits together, recorded evidence of PW-1 and PW-2, DW-1 to DW-3, marked Exs.A-1 to A-8, Exs.B-1 to B-5 and Exs.X-1 to X-3 and ultimately came to the conclusion that the 1st respondent herein, the defendant in O.S.No.51/92 who is the plaintiff in O.S.No.552/92, is entitled to the decree for permanent injunction and decreed the suit O.S.No.52/92 and dismissed O.S.No.51/92 and aggrieved by the same the 3rd plaintiff who was brought on record as aforesaid had filed the present Appeal.

(2.) Heard Sri C.Ramachandra Raju, the learned Counsel representing the appellant/3rd plaintiff and Sri Veeraswamy, the learned Counsel representing the 1st respondent/sole defendant in the suit.

(3.) Submissions made by Sri C.Ramachandra Raju : Sri Ramachandra Raju, the learned Counsel representing the 3rd plaintiff in the suit made the following submissions. The learned Counsel had explained the relationship between the parties and would maintain that the earliest suit was a suit for injunction simpliciter and no Appeal was preferred as against the said Judgment and decree since the rights of the present appellant/3rd plaintiff are in no way affected. The learned Counsel also pointed out that Ex.A-1 sale deed is not at all vitiated and in the facts and circumstances of the case, the learned Judge had erred in not declaring the title of the 1st plaintiff in the suit. The learned Counsel also explained why the 2nd plaintiff also was impleaded as a party in the said suit. While making elaborate submissions, the learned Counsel pointed out to the findings recorded by the trial Court on the aspect of coercion, undue influence and fraud and would contend that several of the findings would go to show that the stand relating to the ground of coercion virtually had been given up. The learned Counsel also would maintain that execution of Ex.A-1 is not specifically denied. However that being so, the framing of Issue No.1 is not proper and on a careful reading of Issues 1 and 2 these Issues are inconsistent with each other and by framing Issue No.1, the burden was placed on the plaintiffs instead of placing the same on defendant. The learned Counsel also had explained in detail the evidence available on record and would contend that in the light of Section 60(2) of the Indian Registration Act when there is an admission made before the Sub-Registrar by the defendant relating to the execution of the document, in the absence of clear particulars relating to undue influence, coercion or fraud, as the case may be, and in the absence of clear evidence in this regard, the plaintiffs in the suit are bound to succeed. The Counsel also would maintain that the finding recorded that there is no endorsement to the effect that the contents had been read over or explained to the defendant at the time of registration of Ex.A-1 would not alter the situation in any way inasmuch as the endorsement made by the Sub-Registrar would go to show that the defendant admitted the execution of Ex.A-1. The learned Counsel also pointed out to Order 6 Rule 4 of the Code of Civil Procedure in this regard. While further elaborating his submissions the learned Counsel had taken this Court thoroughly through the evidence of DW-1 and also PW-1 and had pointed out that DW-1 had not stated anything about these grounds and hence the findings recorded that Ex.A-1 is an invalid document cannot be sustained. The learned Counsel also had taken this Court through the recitals of Ex.A-1 and would contend that in the light of the recitals the oral evidence need not be given consideration in the light of Sections 91 and 92 of the Indian Registration Act 1872. The learned Counsel also pointed out to the evidence of PW-2 and Exs.X-1, X-2 and X-3 and would contend that in the light of this evidence it is clear that Ex.A-1 in fact was acted upon. That is the reason why the defendant had mortgaged only rest of the property for obtaining the loan. The learned Counsel also would further maintain that in the injunction suit no Issue relating to title as such had been framed and merely because both the suits were tried together and evidence was recorded and Common Judgment was delivered the mere fact that an Appeal was not preferred in the suit for injunction would not attract the operation of the doctrine of res judicata since the finding if any relating to title in an injunction suit cannot operate as res judicata in a suit for declaration of title and recovery of possession. The learned Counsel also explained that the stand that Ex.A-1 came into existence under certain circumstances and the same was not acted upon cannot be believed even in the light of the documents relied upon by the defendant herself. The learned Counsel also placed reliance in certain decisions.