YALLA ARJUNA PRASAD Vs. YALLA GANGARAJU

JUDGEMENT

(1.) V.L.N.G.K.Murthy, Counsel representing the appellant and Sri V. V.L.N. Sarma, Counsel representing the 3rd respondent.

(2.) Sri V.L.N.G.K. Murthy, the learned Counsel representing the appellant/defendant in O.S. No.22/92 on the file of Subordinate Judge, Pithapuram made the following submissions. The learned Counsel would maintain that this is a case where the original plaintiff, Yalla Gangaraju, who is no more, had challenged the validity of the sale deed dated 21-10-1991 executed by her on the ground of either fraud or undue influence. The learned Counsel also would maintain that the particulars mentioned thereof in the pleading are highly insufficient. Even otherwise the burden is on the plaintiff to establish the same irrespective of the fact whether appellant/defendant had proved his stand or not. The learned Counsel would maintain that no doubt Yalla Gangaraju was no more and subsequent thereto Yalla Butchiraju, who was brought on record was examined as P.W.1 and except this evidence there is no other evidence available on record on behalf of the plaintiff. The learned Counsel also would maintain that as against this evidence the appellant herein/defendant had examined himself as D.W.1 and also had examined the identifying witness as D.W.2, the scribe as D.W.3 and the Sub-Registrar as D.W.4 and in the light of the evidence available on record the learned Judge recorded certain findings and ultimately decreed the suit. In view of the same the said findings cannot be sustained and are liable to be set aside.

(3.) Per contra Sri V.V.L.N. Sarma, the learned Counsel representing the 3rd respondent in the appeal who was brought on record and who is now further prosecuting the litigation as the legal representative of the original plaintiff made the following submissions. The learned Counsel would maintain that the 3rd respondent Yalla Suryanarayana who is none other than the brother of the appellant/ defendant Yalla Arjuna Prasad, is the fostered son of Yalla Gangaraju and Yalla Butchiraju and this fact is not in serious dispute. The learned Counsel also would maintain that the age of Gangaraju at the relevant point of time to be taken into consideration and also the fact that none had accompanied Yalla Gangaraju at the time of execution of Ex.A.1 (=Ex.B-1) transaction also would assume some importance. The learned Counsel also would maintain that due to the misfortune of Yalla Suryanarayana, Yalla Gangaraju was no more by the time Yalla Butchiraju was examined as P.W.1 and except this evidence there is no other evidence available on record. But however the Counsel would contend that several admissions made by D.W.1, D.W.2 and D.W.3 would amply establish that the deal is a clandestine deal or a secret deal. The Counsel also commented on the discrepancies relating to the aspect of delivery of possession and the non-delivery of the title deeds and several of the discrepancies in relation to the alleged execution and the clear proof relating to non-passing of consideration. The Counsel also commented that though it is stated that the consideration was for the purpose of discharging the dents, none concerning the same were examined and hence the transaction appears to be shaky or a fishy transaction. The learned Counsel also would comment that there is no evidence about the capacity of the appellant/defendant in the suit, to purchase the property and how he raised the funds for the purpose of the said purchase. While concluding his submissions, the learned Counsel had taken this Court through the evidence of D.W.1 meticulously and several of the discrepancies and further pointed out to the nature of evidence of D.W.2, D.W.3 and D.W.4 as well and would comment that even in the light of the discrepancies, it can be taken that the plaintiff established her case and hence the present legal representative is bound to succeed and the appeal is liable to be dismissed. The learned Counsel also placed reliance on Takri Devi v. Rama Dogra, AIR 1984 HP 11, to substantiate his contentions.