BANDI NARSAIAH DIED Vs. VIRABATHINI MALLESHAM

JUDGEMENT

(1.) These two Second Appeals arise from a common judgment in A.S. No.11/1987 and cross-objections therein on the file of Additional District Judge, Warangal, dated 15-7-1992 and affirming the findings of the trial Court in O.S. No.33/1974 of Additional Subordina te Judge, Warangal, dt. 23-10-1986, except the issue relating to possession and dismissing the appeal and at the same time reversing the finding relating to possession and allowing the cross-objections filed by respondent-defendant No.2. Pursuant to the above judgment and decree, the Appellate Court directed that the cross-objector-defendant No.2 be put in possession of the suit land by an order dated 24-11-1992 in E.P.No.193/1992. The revision petition is directed against the order directing delivery of possession. Hence, common questions arise in both the Second Appeals and C.R.P. and thus, they are being disposed of together.

(2.) The facts giving rise to these appeals and revision petition in brief are: That the appellants-Plaintiffs filed O.S.No. 33/1974 for specific performance of agreement and perpetual injunction on the foot of an agreement of sale dated 7-1-1970 stating that plaintiff No.1 purchased the suit land for a consideration of Rs. 4,500/- from respondent No.1 and paid Rs. 3,500/- as part-payment and agreed to pay the balance of Rs.1,000/- at the time of registration. Ex.A-2 is the agreement of sale and Ex.A-3 is the receipt dated 7-1-70. It is also his case that he has been in possession of the suit land since 1966-67 and he was allowed to continue in possession and he has always been ready and willing to perform his part of contract, but respondent No.1 postponed the execution of registration and thereafter respondent No.2 obtained a registered sale deed on 18-3-1972 although he had knowledge of the agreement in favour of the appellants. Respondents No.1 and 2 filed separate written statements and contested the suit. The agreement of sale as well as the receipt, passing of part-payment thereunder and handing over possession of the land are all denied. On the other hand it is asserted by both of them that respondent No.2 purchased the land from her under a registered sale deed and possession and also delivered to him and respondent No.2 is in possession of the suit land. It is asserted by her that herself and her sister Mahmudunnisa, owner of adjoining land, together executed an agreement of sale on 3-8-1971 in favour of respondent No.2 for the suit land as well as the adjoining land of her sister and received part-payment of Rs.1,000/- which was shared by both of them equally. While so, appellant No. 1 threatened her sister and brother-in-law and managed to take a sale deed in respect of her sister's land and the matter was placed before mediators and they decided that she should transfer the suit land to respondent No.2 as her sister had already executed the sale deed in favour of appellant No.1. Thus, she executed the registered sale deed on 18-3-1972 and put respondent No.2 in possession of the suit land. On the above pleadings, the following issues have been framed by the trial Court:-

(3.) Aggrieved by the above findings on issues No.1 and 3 to 5 and the judgment and decree dismissing the suit, appellants preferred AS.No.11/1987 while respondent No.2 filed cross-objections challenging the finding on issue No.2. The learned Additional District Judge, Warangal, before whom the appeal and cross-objections came up for hearing, referred the disputed documents Exs.A-1 to A-3 to a Hand Writing Expert for comparison with the admitted signatures of respondent No.1 and the Hand Writing Expert has been examined as DW.6 on commission. The evidence of D.W.6, Professor Bawa Jung Bahadur, is that he has compared the signatures on Exs. A-1 to A-3 with the signatures on Exs. B-1, 2 and 5 and written statement of respondent No.l and came to the conclusion that the signatures on the questioned documents Exs. A-1 to A-3 are forged. Ex.X-4 is the opinion of the Hand Writing Expert and Ex.X-5 is comparative signatures chart. Upon reappraisal of the evidence on record and taking into consideration the evidence of D.W.6 Hand Writing Expert together with elaborate reasons set out by DW.6 in Ex.X-4, the learned Additional District Judge has affirmed the findings of the trial Court on issues 1 and 3 to 5 and dismissed the appeal. He reversed the finding on issue No.2 and held that respondent No.2 was in possession of the suit land on the date of the suit. In doing so, he has not approved the approach of the trial Court in basing the conclusion as to possession upon the result in I.A.No.294/1972 injunction petition and on the contrary it is held that an interim order passed in that I.A. can be varied after full trial and he has referred to the pahanies for the years 1967-68 to 1971-72 marked as Ex.A-3 to A-10 and held that no material is placed by the appellants to show their possession beyond 1971-72, whereas Ex.B-5 sale deed is dated 18-3-1972 and hence, respondent No.2 is in possession of the suit land since that date. Thus, the cross-objections filed by respondent No.2 are allowed and finding on issue No.2 has been set aside.