NARAYANA REDDY P Vs. B POTHA REDDY

JUDGEMENT

(1.) These two Revision Petitions are disposed of by a common order as they arise out of the common order in I.A.No.499/93 and I.A.No.500/97 in A.S.No.49/1992.

(2.) The defendant is the petitioner. The Plaintiff respondent filed a suit for declaration of title and perpetual prohibitory injunction restraining the defendant from interfering with his possession in an extent of Acs.1.55 cents out of Acs.3.08 cents in S.No.556 of Balapalapalle village in Dhone Sub-District of Kumool District. He claims to have purchased Ac.1.55 cents and two other extents in Survey Nos.482/3 and 482/2 of the same village aggregating to Acs.2.65 cents under Ex.A-1 registered sale deed dated 2-1-1985 from one Kanala Eswara Reddy (P.W.3). The present suit is filed on the ground that the defendant without any manner of right was disputing his title and was trying to interfere with his possession of the disputed extent while the defendant resisted the suit on the plea that he purchased the entire extent of Acs.3.08 cents in Survey No.556 including the disputed extent from one M.Thimmaiah (D.W.2) under a registered sale deed dated 19-12-1989 and he has been in possession and enjoyment of the same throughout and that earlier it was in exclusive possession and enjoyment of D.W.2 M.Thimmaiah and the Plaintiff has no manner of right or title to the disputed extent. On the basis of the evidence adduced by both parties the trial Court decreed the suit. During the pendency of the trial the plaintiff filed registered copy of the sale deed dated 13-5-1941 purporting to have been executed by one Chinna Subbigadu and his son Maddigadu and another Maddigadu s/o Muddavaram Subbigadu in favour of Vunnam Naganna in respect of 1 /4th share in Acs.6.94 cents in S.No.480 and Acs.3.08 cents in S.No.556 of Balapalapalle village and it was marked as Ex.A-3 on the side of the plaintiff. The plaintiff filed this document for the purpose of establishing that the defendant's father namely P.W.2 or his father had no title to the disputed extent or the entire land in S.No.556. The defendant examined one Vannam Subbarayudu D.W.3 son of Vannam Naganna, Vendee under Ex.A-3 saledeed. The defendant further contended that D.W.2 the defendant's vendor is the grandson of Chinna Subbigadu who is one of the vendors under Ex.A-3 sale deed and that subsequent to A-3 sale deed D.W.2's father worked as farm servant under Vannam Naganna and ultimately in the year 1965 in consideration of the wages payable to D.W.2's father, the said Vannam Naganna sold away the entire extent of Acs.3.08 cents in S.No.556 of the suit village to D.W.2's father and delivered possession of the same to him in the same year i.e. 1965. Further no registered sale deed was executed in 1965 or any other document was executed evidencing the transfer in favour of D.W.2's father. However, the trial Court without taking into account the plea of the defendant decreed the suit of the plaintiff. Therefore, he filed an appeal A.S.49/92 on the file of Addl. Dist. Judge, Kurnool. Pending disposal of the appeal he filed LA. No.499/93 for amendment of the written statement under Order 6 Rule 17 and I.A.No.500/93 to adduce additional evidence. Both the I.As. were allowed and appeal was also allowed by the appellate Court on 18-2-1994 and remanded the matter to the trial Court. Against I.A.No.499/93 C.R.P. No.1829/94 was filed and against I.A.No.500/93 C.R.P.No.l827/94 was filed. Against the judgment in A.S. No.49/92 C.M.A. No.665/94 was filed. The C.R.Ps. were allowed and consequently the C.M.A was also allowed and the matter was remanded to the Appellate Court directing it to dispose it of afresh after giving reasons. The appellate Court pursuant to the remand order dismissed I.A.Nos.499/93 and 500/93. Aggrieved by the same the present C.R.Ps are filed. I.A.No.499/93 is filed under Order 6 Rule 17 seeking amendment of the written statement incorporating the pleas pertaining to additional evidence. I.A.No.500/93 is filed under Order 41 Rule 27 CPC seeking permission of the Court to raise additional evidence. The additional evidence sought to be adduced are that the father of D.W.2 has no valid document in his favour executed by Vannam Naganna in respect of the entire extent of Acs.3.08 cents of Survey No.556 as contemplated under Section-43 of the Transfer of Property Act and also under Section-113 of the Specific Relief Act, 1963 and therefore, it is a document which should be admitted as additional evidence. In addition he also sought for adducing additional evidence by filing survey sketches and the plaint plan, Ex.A-2, filed by the plaintiff is incorrect which would probablise that the plaintiff was never in possession of the disputed extent. Therefore, he sought permission to adduce additional evidence by filing sale deed dated 20-8-1993. But the learned Judge refused to admit additional evidence on the ground that it cannot be admitted as additional evidence, on the ground that Section 43 of the T.P.Act is not applicable to the said document. According to him, the said section would apply to such subsequent acquisition of title by the transferee by operation of law and not by transfer inter vivos and in case of transfer by inter vivos such transfer must be obtained by the earlier transferor himself and not by or at the instigation of transferee under an earlier transfer from the transferor in question. He also held that under Ex.A-3 dated 13-7-1941 Chinna Subbigadu and his son Maddigadu and Maddavaram Maddigadu i.e. co-parceners have sold only 1/4th share in Acs.3.08 cents in S.No.556 which roughly works out to Ac.0.77 cents. If this is so, it is not clear as to how Vannam Naganna or his son Subbarayudu i.e. D.W.3 could convey entire Acs.3.08 cents in S.No.556 to the father pf D.W.2 Thimmaiah in 1965, He also observed that there is no evidence as to what happened to the remaining 3/4th share in S.N0.556 and in whose possession and enjoyment it wast D.W.2 and his father were not exclusive owners of entire extent of S.No.556 and there were other; coparceners or sharers and who among them enjoyed the remaining 3/4th share of the said S.No.556is also not clear. Having held as above he refused to admit the document as additional evidence. He also observed that the suit of the plaintiff is to be decided on the basis of the evidence adduced by him substantiating his title to the property and therefore, the said document is not necessary to determine the title of the plaintif f and consequently he rejected the amendment of the written statement sought for by the defendant. Be has not given separate reasons for refusing to amend the written statement.

(3.) The learned Counsel appearing on behalf of the petitioner relying on the judgment of the Supreme Court in Jote Singh vs. Ram Das Mahto contended that the observation of the learned Judge that Section 43 of the Transfer of Prpperty Act is not applicable to voluntary transfers is quite contrary to the dictum laid down by the Supreme Court. He contended that the Supreme Court held that Section 43 of the T.P.Act is not applicable to involuntary transfers like auction sales but they are applicable to voluntary transfers,