VERRIBOYINA VENKATA KRISANA RAO Vs. NAKKALA VENKAYAMMA

JUDGEMENT

(1.) This second appeal is preferred by second defendant in O.S. No.538 of 1974 on the file of the Principal District Munsif, Bapatla. The plaintiff filed the suit for perpetual injunction by contending that she is in possession and enjoyment of the suit schedule property. The trial Court, after considering the evidence adduced by both the parties held that the plaintiff failed to prove the possession as on the date of the suit and dismissed the suit. When an appeal is preferred, the plaintiff amended the plaint by converting the suit for possession and in pursuance of the same, the appellate Court remitted the matter to the trial Court for fresh disposal. After fresh evidence, the trial Court held that the plaintiff failed to prove prim facie title and possession as on the date of filing of the suit. Therefore, the suit was dismissed. Being aggrieved by the judgment of the trial Court, the plaintiff preferred A.S. No.41 of 1988 on the file of the Subordinate Judge, Bapatla. The appellate Court reversed the appeal by granting the decree as prayed for. Therefore, the second defendant preferred the present second appeal by raising the following substantial questions of law:

(2.) In the trial Court, the second defendant pleaded that the mother of the plaintiff after the death of her husband came to the house of her brother along with plaintiff and lived there for a considerable time and during that period, the plaintiff's mother developed affection towards the second defendant, who is none other than her brother's son and she executed a Will bequeathing the suit property in his name. The second defendant, during the trial of the suit, filed an unregistered Will covered by Ex.Bl and proved the same by examining the attestors and scribe's son to establish that the mother of the plaintiff executed the said Will in a sound state of mind and voluntarily bequeathing the suit property in his favour. The trial Court also observed that the second defendant established that he was in possession and enjoyment of the property from the date of the Will and he also preferred title by adverse possession.

(3.) The plaintiff contended that as her mother died about 20 years prior to the suit, she has been in possession and enjoyment of the property as legal heir. As the trial Court did not accept her contention that she is in possession and enjoyment of the property as on the date of filing of the suit, she converted the suit into one of recovery of possession and requested the Court to grant a decree. Before the trial Court, the plaintiff filed certain documents to show that the property was granted by way of D-form patta by the Government in favour of her mother and all the documents reflect that the property stood in the name of her mother. But the plaintiff did not file any document to show whether the patta was transferred in her name, whether she was in possession and enjoyment of the property at any time. In the absence of such material, the documents filed by the second defendant were considered, which reflects that he has been in possession and enjoyment of the property since long time and there are entries in the Revenue Records also to that effect. The trial Court dismissed the suit by accepting the Will that the second defendant became the absolute owner of the property and he was in, possession and enjoyment of the same.