SANGANI BHUSHANAMMA Vs. BOMMIDI SUNDARAMMA

JUDGEMENT

(1.) THE unsuccessful plaintiff in O. S. No. 66 of 85 on the file of Subordinate Judge, amalapuram, had preferred the present appeal. The said suit was filed originally as o. S. No. 59 of 83 on the file of District Munsif, amalapuram. The said suit O. S. No. 66 of 85 was tried along with O. S. No. 36 of 85 and the learned Subordinate Judge, amalapuram, in the light of the respective pleadings of the parties, having settled the issues, recorded the evidence of P. W. 1 to p. W. 5 and D. W. 1 to D. W. 5, marked exs. A-1 and A-2 and Exs. B-1 to B-13 and ultimately came to the conclusion that the suit O. S. No. 36 of 85 filed for the relief of perpetual injunction to be decreed and accordingly decreed the same with costs and the suit O. S. No. 66 of 85 filed for the relief of declaration of title and recovery of possession to be dismissed and accordingly dismissed the same without costs with a further direction to recover the court fee from the plaintiff in the said suit. By virtue of the pecuniary jurisdiction, it is stated that the appellant herein preferred the Appeal a. S. No. 115 of 91 on the file of II Additional district Judge, Rajahmundry as against the decree for perpetual injunction made in o. S. No. 36 of 85 and the same was dismissed for non-prosecution. Being aggrieved of the dismissal of the suit o. S. No. 66 of 85, the unsuccessful plaintiff had preferred the present Appeal.

(2.) CONTENTIONS of Sri M. V. Suresh: sri M. V. Suresh, the learned Counsel representing the appellant/plaintiff had taken this Court through the respective pleadings of the parties and the evidence available on record and would maintain that in the facts and circumstances of the case, the suit should have been decreed by the learned subordinate Judge, Amalapuram and the dismissal of the suit or the findings recorded by the learned Judge while dismissing the said suit cannot be sustained. The learned counsel also would maintain that the present suit being a comprehensive suit, the mere fact that the said appeal filed by the appellant a. S. No. 115 of 91 on the file of II Additional district Judge, Rajahmundry which was dismissed for non-prosecution would not alter the situation in any way and hence this matter to be decided on merits on appreciation of the evidence available on record. The counsel also while further elaborating his submissions in all thoroughness had taken this Court through the oral and documentary evidence available on record and further made certain submissions that the plea taken is one of nominality, but however evidence had been adduced as though it is a benami transaction and even if it is to be taken that these expressions 'nominal transaction' and 'benami transaction' had been liberally understood by the parties, in the light of the clear evidence available on record relating to the sale transaction Ex. A-1 = Ex. B-6, especially in the absence of any suit filed by the 1st defendant praying for a declaratory relief that the document in question is nominal or otherwise or in the absence of any such suit being instituted by the original owner of the property on the strength of the title based on Ex. A-1=ex. B-6, the appellant/plaintiff is bound to succeed. The learned counsel also would maintain that certain of the facts are not in serious dispute at all. Ex. A-1=ex. B-6 sale deed is in the name of the appellant. The appellant in fact has been paying tax also and possession of this property had been with the appellant as on the date of filing of the suit for injunction and by virtue of the interim order only the 1st defendant entered into this property. The counsel also pointed out that the evidence available on record is clear and categorical that consideration had been paid on behalf of P. W. 1 or by P. W. 1 only and this aspect also is further strengthened by the endorsement relied upon by the 1st defendant and Exs. B-8 and B-10 in particular. Further, the counsel pointed out certain of the admissions made by D. W. 1 and explained how D. W. 1 got custody of this document and hence the Counsel would maintain that in the light of the voluminous oral evidence available on record apart from the document placed before the Court, the evidence of p. W. 1, P. W. 2, P. W. 3, P. W. 4 and P. W. 5, the contra evidence adduced on behalf of the 1st defendant cannot be believed and hence the suit to be decreed as prayed for by allowing the Appeal. The learned Counsel placed strong reliance on several decisions to substantiate his submissions.

(3.) CONTENTIONS of Sri Addepalli suryanarayana: Sri Addepalli suryanarayana, the learned Counsel representing the respondents/defendants would that even the age given in the plaint to be taken or in the light of the evidence of p. W. 1 there cannot be any doubt whatsoever that P. W. 1 at the time of Ex. A-1=ex. B-6 transaction was not a major. The learned counsel also would further maintain that p. W. 1 had not been consistent in her stand. She had been changing the stands and the earliest point of time in Exs. B-1 and B-2, had taken a stand that being the fostered daughter of Appalamma, Appalamma gifted the property in her favour. But however, subsequent thereto she had changed the version. Even relating to the payment of consideration, the case of the plaintiff/p. W. 1 is not consistent. While further elaborating his submissions, the Counsel would maintain that even if the cause of action specified in para-7 of the plaint to be taken and carefully examined, the same is totally contrary to the evidence of P. W. 1 and hence her case cannot be believed. The Counsel also would maintain that in the light of the admission made that even in the light of the date of death of the Appalamma, D. W. 1 was in possession of the property and further in the light of Exs. B-1 and B-2 it can be taken that P. W. 1 is not coming up with true version before the court. While further elaborating his submissions, the learned Counsel pointed out that when common judgment had been delivered and when the foundation and the respective pleadings of the parties are substantially the same, the non-prosecution of yet another Appeal would result in finality of the said decree and it may have to be taken that it may operate as res judicata. Even otherwise, in a suit of this nature, a suit for ejectment, the plaintiff is not expected to rely on the weakness of the defence. The mere fact that some plea of nominality had been taken and subsequent thereto some evidence had been let in regarding bona fide nature of the transaction, this would not seriously alter the situation. The vendor of the property in fact had supported the version of D. W. 1. The very transaction Ex. A-1 = ex. B-6, whether valid or not, this question also need not be seriously gone into especially in the light of the fact that the original owner of the property is not interested in challenging the same and in fact he had supported the version of D. W. 1. Hence, in the light of the facts and circumstances, the mere fact that the plea of nominality had been discharged amply that may not seriously alter the situation and hence the findings are to be confirmed and the Appeal to be dismissed. The learned Counsel also relied upon certain decisions to substantiate his submissions.