KUKKALA BALAKRISHNA Vs. VIJAYA OIL MILL VISSAKODERUPALEM

JUDGEMENT

(1.) THE present Second Appeal is preferred by the unsuccessful plaintiffs in both the Courts below in os No. 235/95 on the file of I-Additional junior Civil Judge, Bhimavaram and in as No. 1/2001 on the file of Senior Civil judge, Bhimavaram. The appellants-plaintiffs filed the said suit praying for declaration of item No. 2 of the plaint schedule property as their absolute property and also for a consequential relief of permanent injunction restraining the 7th respondent-7th defendant from obtaining possession of the 2nd item of the plaint schedule property either through court or by forcible eviction and for other appropriate reliefs.

(2.) ON service of suit summons before the Court of first instance, defendants 1 to 5 had not chosen to contest the matter and were set ex parte. The 6th and 7th respondent-6th and 7th defendants in the suit had put in their written statements and on the strength of the pleadings, the court of first instance having settled the issues, recorded the evidence of PWs. 1 to 3 and DWs1 to 3, marked Ex. A. 1 to Ex. A. 29 and Ex. B. 1 and Ex. B. 2 and on appreciation of the evidence available on record, recorded findings relating to issues 1 to 3 commencing from Paras 10 to 46 and came to the conclusion that the appellants-plaintiffs failed to prove the title and possession over the plaint schedule properties and also the plea that late Kukkala Manikyam executed Ex. A. 5 - will and ultimately answered the said issues 1 to 3 against the appellants-plaintiffs. While answering issue no. 4 at Para 47, the Court of first instance dismissed the suit, no doubt, without costs. Aggrieved by the same, the unsuccessful plaintiffs carried the matter by way of appeal as No1/2001 on the file of Senior Civil judge, Bhimavaram and the appellate Court having formulated the point for consideration, proceeded to discuss with the oral and documentary evidence available on record, commencing from Paras 10 to 15, and ultimately came to the conclusion that the decree and Judgment made by the Court of first instance do not suffer from any illegality and accordingly dismissed the appeal without costs. Aggrieved by the same, the present second appeal had been preferred by the unsuccessful plaintiffs and this Court by judgment dated 26. 7. 2005 after formulating the points for consideration at Para 14, proceeded to discuss with the oral and documentary evidence available on record and the findings recorded both by the Court of first instance and also the appellate Court and came to the conclusion that the findings recorded by both the courts below relating to the validity of ex. A. 5 being unsustainable findings, the second appeal to be allowed by setting aside the Decrees and Judgments of the Courts below and accordingly allowed the second appeal, but without costs. Aggrieved by the same, the Court auction purchaser -7th respondent -7th defendant carried the matter to the Apex Court in Civil Appeal no. 1245/2008 and the Apex Court was of the opinion that the judgment made in the second appeal by this Court without formulating the substantial questions of law in a second appeal cannot be sustained and accordingly while setting aside the judgment made by this Court, restored the second appeal to its original file and requested this court to dispose of the second appeal preferably within a period of six months from the date of supply of a copy of the order and further made it clear that the apex Court had not gone into the merits of the appeal which shall be decided after formulating the substantial questions of law and then decide the second appeal in accordance with law. Thus, in the light of the said order made by the Apex Court specified supra dated 12. 2. 2008, this second appeal is coming up for final hearing before this Court.

(3.) SUBMISSIONS made by Sri Agastya sarma: Sri Agastya Sarma, the learned counsel representing the appellants had pointed out to the substantial question of law on the strength of which the second appeal had been admitted by this Court and also further pointed out that not only the said substantial question of law would arise for consideration, the other substantial questions of law which had been formulated even in the grounds of the second appeal also may have to be considered. The learned Counsel also would maintain that in the light of the language of Section 100 of the Civil Code of Procedure since the same is permissible, a request was made that the other substantial questions of law which had been formulated in the grounds of second appeal also may be considered along with the substantial question of law on the strength of which the second appeal had been admitted by this Court. While further elaborating his submissions, the learned counsel in all fairness would maintain that it is no doubt true that in the light of the order made by the Apex Court, this Court cannot again go into the merits or demerits which had been discussed by this Court while allowing the second appeal. But, however, the learned Counsel had taken this Court through the relevant portions of the findings recorded by this Court and also would maintain that it is not as though the learned judge had not formulated the substantial questions of law, but however, the said formulation was under the caption of points for consideration and when that being so, may be that when findings had been recorded in detail by this Court, the said findings need not be totally ignored despite the observations made by the Apex Court specified above. While further elaborating his submissions, the Counsel had taken this court through the oral and documentary evidence available on record, the findings recorded by the Court of first instance and also the findings recorded by the appellate court, and further pointed out that since the registration or non-registration of a will being not of any serious consequence in the light of the clear and categorical evidence of PWs. 2 and 3 supporting the version of the appellants-plaintiffs, the suit to be decreed by setting aside the Decrees and Judgments made by the Courts below. While further elaborating his submissions, the learned Counsel also would maintain that every circumstance cannot be taken as a suspicious circumstance and while appreciating the proof relating to the execution of the will, the recitals of the document and the relevant oral evidence adduced on behalf of the parties may have to be taken into consideration and every discrepancy in the oral evidence or certain inconsistencies, if any, which are minor, cannot be taken into serious consideration while appreciating the evidence and inasmuch as, the Court of first instance and also the appellate Court had not appreciated the oral evidence available on record especially in the context of Ex. A. 5 in proper perspective, this is a fit case where, though concurrent findings had been recorded, such findings to be disturbed and the second appeal to be allowed. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions.