service matter =The Rajasthan Public Service Commission, first respondent holds examinations for direct recruitment to State and subordinate service posts under the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules 1962 (`Rules’ for short). Appellant appeared as an `open market candidate’ in the 1983 examination and was selected to Rajasthan Tehsildar Services (Subordinate service) and = Sub-rule 1 of Rule 11 of Rules provided that the number of chances which a candidate appearing at the examinations can avail of, shall be restricted to three, for direct recruitment to posts specified in Schedules I and II of the Rules. The said rule was amended by notification dated 30.3.1990 whereby the ceiling in regard to the number of chances to appear in the examination was relaxed by increasing it from 3 to 4 examinations.= Having regard to the bar contained in Rule 4(2)(v), the appellant could not have appeared for the examination for the year 1990, as an NGE candidate, as by then he had appeared only thrice as an open market candidate and had not exhausted all the four chances as an open market candidate.

                                                                        Not Reportable 




                     IN THE SUPREME COURT OF INDIA




                      CIVIL APPELLATE JURISDICTION




                        CIVIL APPEAL NO. 8399 OF 2011


                     [Arising out of SLP [C] No.27941/2008]








Ashok Kumar Jain                                                     ... Appellant




Vs.




Rajasthan Public Service Commission


Through its Chairman & Ors.                                          ... Respondents










                                  J U D G M E N T










R.V.RAVEENDRAN, J. 








       Leave granted.




2.     The   Rajasthan   Public   Service   Commission,   first   respondent   holds 




examinations   for   direct   recruitment   to   State   and   subordinate   service   posts 




under the Rajasthan State and Subordinate Services (Direct Recruitment by 




Combined   Competitive   Examinations)   Rules   1962   (`Rules'   for   short). 




Appellant appeared as an `open market candidate' in the 1983 examination 




and was selected to Rajasthan Tehsildar Services (Subordinate service) and 



                                              2






was appointed as a Naib Tehsildar, a non-gazetted post on 15.10.1985. The 




appellant   also   appeared   in   the   combined   competitive   examination   held   in 




1987 and 1989 as an open market candidate. The examination for the year 




1990   was   held   in   two   stages   on   25.11.1990   and   22.2.1992.   The   appellant 




appeared   in   the   said   examination   as   an   open   market   candidate   and   was 




unsuccessful.








3.     The   appellant   again   applied   for   the   combined   competitive 




examination for the year 1991, advertised on 19.10.1991. The appellant was 




provisionally allowed to appear in the said examination. On scrutiny of his 




application it was found that appellant had already availed four chances as 




an   open   market   candidate   in   the   examinations   relating   to   the   years   1983, 




1987, 1989 and 1990 and he was not therefore entitled to appear for the fifth  




time, as the maximum number of chances for a candidate under the Rules 




was four. He could not also be considered as a candidate in the examination  




for the year 1991 under the Non-Gazetted Employees quota (for short `NGE 




quota'),   as   appellant   was   working   as   a   Tehsildar,   a   Gazetted   post,   from 




December 1990. Therefore a notice dated 25.6.1993 was issued calling upon 




him to show cause why his application should not be rejected on the ground  




that   he   was   not   entitled   to   participate   in   the   combined   competitive  




examination for the fifth time.   



                                                      3






4.     The   appellant   had   by   then   appeared   in   the   written   examination   in 




pursuance   of   the   provisional   permission   and   had   succeeded   in   the   written 




examination. Being aggrieved by the action proposed to deny him the right 




to participate in the examination process, the appellant filed a writ petition 




for quashing the show cause notice dated 25.6.1993 and sought a direction to 




respondents to permit him to appear in the interview. During the pendency 




of the said  writ petition, he was promoted  as a Tahsildar on a substantive  




basis,   vide   order   dated   24.8.1996,   with   effect   from   26.11.1993.   The   writ 




petition was heard nearly thirteen years later and a learned Single Judge of 




the High Court dismissed the writ petition by order dated 31.5.2006 holding 




as under : 




       "In the present case, when the last date of receipt of the application forms 


       was extended by RPSC in keeping with the principles of fair play and with 


       a view to providing opportunities to all eligible candidates the contention 


       of the petitioner that the amended rule 11(1) was applied retrospectively 


       cannot   be   accepted.   Even   otherwise   eligible   criteria   is   required   to   be 


       applied   with   reference   to   the   last   date   appointed   by   the   competent 


       authority for receipt of application forms. The amendment in Rule 11(1) 


       having   been   made   much   before   the   last   date   of   submission   of   the 


       application forms, all eligible candidates stood duly notified by the RPSC  


       by issuing a corrigendum.  For these reasons it can also be accepted that 


       the amended rules were applied retrospectively so as to defeat the claim of 


       any eligible candidate. As per scheme envisaged in Rule 4 of 1962  Rules,  


       candidate   can   be   held   eligible   against   the   quota   of   NGE   only   if   he   has 


       exhausted all the chance to appear in the examination as an open market 


       candidate. In my view, the action of RPSC in not permitting the petitioner 


       to appear against the NGE quota in the year 1990 did not suffer from any 


       legal infirmity and therefore, the petitioner could not be allowed one more 


       chance as a general candidate in the combined competitive examination of 


       the year 1992 as a general candidate and had ceased to be a non-gazetted 


       employee   having   been   promoted   to   the   post   of   Tehsildar   which   is   a 


       gazetted post. 



                                                   4






5.     The appellant challenged the said order in a civil special appeal and 




the   division   bench   dismissed   the   appeal  in   limine,  by   the   impugned   order 




dated 5.4.2007,  on the following reasoning: 




       "As to whether the petitioner was working as Tehsildar on ad hoc basis, 


       temporary   basis   or   substantively   is   not   material   for   the   purpose   of 


       consideration of the eligibility of the petitioner for combined competitive 


       examination to find out as to whether he could apply in the category on 


       non-gazetted employees. On the date of the application dated 18.1.1990, 


       the petitioner was working as Tehsildar and that he has been working as 


       Tehsildar   since   15.10.1985   surely,   therefore,   his   candidature   in   the 


       category   of   non-gazetted   employees   could   not   have   been   considered. 


       Thus,   when   Rule   4   of   the   Combined   Competitive   Examination   was 


       amended on 20.3.1990 and the employees were allowed to avail of more 


       than   three   chances,   the   application   made   by  the   petitioner   on  18.1.1990 


       could   only   have   been   considered   in   the   open   category   and   not   in   the 


       category of non-gazetted employees".










6.     The   said   order   is   challenged   in   this   appeal   by   special   leave.   The 




appellant contends that he was appointed as a non-gazetted Naib Tehsildar 




and worked as Naib Tehsildar upto 1990, that thereafter he was temporarily 




promoted   as   Tehsildar,   and   that   only   on   24.8.1996,   he   was   promoted   on 




substantive   basis   with   retrospective   effect,   and   therefore   he   could   not   be 




considered as working as a Gazetted Officer till 1996. He contends that his 




attempts in 1983, 1987 and 1989 were as an open market candidate, but his 




application in regard to the examination for the year 1990, should be treated  




as   being   in   the   NGE   category   and   not   as   an   open   market   candidate.   He 




therefore contended that he still had one more chance (fourth chance) as a 




general category candidate under the Rules when he appeared for the fifth 



                                                5






time in the examination for the year 1991 and therefore his participation was 




valid.










7.        The question therefore is whether the appellant's participation in the 




examination for the year 1991 should be considered as the fourth attempt as 




an open market candidate (in which event, he was entitled to participate) or 




as the fifth attempt as an open market candidate (in which event, he was not 




entitled to participate). This in turn requires consideration as to whether he 




appeared   as   an   open   market   candidate   or   as   an   NGE   candidate,   when   he 




appeared in the examinations for the year 1990.










8.        Sub-rule 1 of Rule 11 of Rules provided that the number of chances 




which   a   candidate   appearing   at   the   examinations   can   avail   of,   shall   be 




restricted to three, for direct recruitment to posts specified in Schedules I and 




II of the Rules. The said rule was amended by notification dated 30.3.1990 




whereby   the   ceiling   in   regard   to   the   number   of   chances   to   appear   in   the 




examination was relaxed by increasing it from 3 to 4 examinations. Rule 4 




(1)   of   the   Rules   provides   that   7%   of   the   available   vacancies   in   the   state 




services to be filled by direct recruitment shall, subject to the provisions of 




sub-rule (2), be reserved for candidates who are non-gazetted employees of 



                                                6






the   government,   Panchayat   Samitis   and   Zila   Parishads.   Sub-rule   (2)   of 




Rule 4 prescribed the eligibility conditions for the non-gazetted employees 




to   participate   in   the   combined   competitive   examination.   One   of   the   five 




conditions   of   eligibility   for   a   non-gazetted   employee   to   appear   in   the 




combined competitive examination is that he must not be eligible to appear 




in the examination as an open market candidate (vide clause (v) of Rule 4(2)  




of the Rules). This would mean that unless a NGE candidate has exhausted 




all four chances as an open market candidate, he cannot appear as an NGE 




candidate.









9.      It   is   not   in   dispute   that   the   appellant   appeared   as   an   open   market 




candidate   in   the   years   1983,   1987   and   1989.   He   also   appeared   in   the 




examination   for   the   year   1990.   While   the   appellant   contends   that   his 




appearance   in   the   examination   for   1990   was   as   an   NGE   candidate,   the 




respondents   contend   that   his   said   appearance   was   as   an   open   market 




candidate   for   the   fourth   time.   Having   regard   to   the   bar   contained   in   Rule  




4(2)(v), the appellant could not have appeared  for the examination  for the 




year 1990, as an NGE candidate, as by then he had appeared only thrice as 




an open market candidate and had not exhausted all the four chances as an 




open   market   candidate.   Therefore,   the   appearance   of   appellant   in   the 



                                               7






examination for the year 1990 was as an open market candidate. If that is so, 




having exhausted all four chances as an open market, he could not appear in 




the examination for 1991 as an open market candidate.  The appellant could 




not also be considered as an NGE candidate in regard to the examination for 




the year 1991, as by then he was working as a Tehsildar and was no longer a 




non-gazetted   employee.   Therefore,   the   appellant   was   not   entitled   to 




participate in the examination for the year 1991. 










10.    In   view   of   the   above   there   is   no   merit   in   the   appeal   and   it   is 




accordingly dismissed.










                                                        ................................J.


                                                        (R.V. Raveendran)










New Delhi;                                              .............................J.


September 30, 2011.                                     (H.L. Gokhale)

In a suit filed for declaration of title and consequential mandatory injunction, two aspects become necessary. First is that the plaintiff must independently prove his title over the property without depending upon the weakness of the defendant. The second is that even if the plaintiff has proved his title, the defendant can successfully resist the suit in case, he proves a title, which is superior to the one pleaded and proved by the plaintiff. Many a time both these aspects are dealt with together and a finding is recorded. In the instant case, the respondents proved their title by filing Ex.A-1, dated 21-03-1966. Both on account of the fact that the document is more than 30 years old and that there is no controversy as to its execution, the document was held proved.Though a plea was taken that a deed of settlement was executed in favour of the Mosque in respect of the suit schedule property, the document was not made part of record. Thereby, the presumption provided for under Section 114 (g) of the Evidence Act gets attracted. Even if the document was made part of record, the fact remains that it is almost a quarter century later to the transaction covered by Ex.A-1. « advocatemmmohan

THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY

SECOND APPEAL No.218 OF 2011

24-06-2011

Shaik Rahim S/o.Habibulla

Shaik Nasar Ahmed S/o. Late Ahmed and others

Counsel for the Appellant:Mr. M.V. Suresh

Counsel for the Respondents: None.

:ORDER:

This Second Appeal is filed against the concurrent judgments rendered by

the Court of the Principal Junior Civil Judge, Markapur in O.S. No.355 of 1999

and the Court of the V Additional District Judge, Markapur in A.S. No.243 of

2009. The appellant is the 2nd defendant in the suit.

2. The suit was filed by Shaik Imambi and her husband against the

appellant herein and his father (1st defendant), who is no more, for the relief

of declaration of title in respect of suit schedule property, marked as: (a) B C

E D and (b) E F G J. They have also prayed for the relief in the form of a

mandatory injunction for removal of gate fixed at point 'K' in the land. It was

pleaded that they purchased the suit schedule property and other extent through

Sale Deed, dated 21-03-1966, marked as Ex.A-1 and constructed a house on part of

it. The first part of the suit schedule property is a site between a public

road on the eastern side of the house of the plaintiffs and the second part of

it is a land between their house and the Mosque on the southern side. According

to them, the appellant and his father have high-handedly erected a gate opening

into the suit site and are interfering with the enjoyment of the said property

by them.

3. On behalf of the appellant, written statement was filed. It was

stated that the suit schedule property is part of the Mosque ever since 1989,

when the owner of the property had settled the same in favour of the Mosque.

The father of the appellant was said to be the Muttawalli of the Mosque.

4. During the pendency of the suit, Shaik Imambi and her husband died and their

legal representatives i.e. respondents herein, were brought on record. The

father of the appellant herein also died and the appellant was treated as his

legal heir. Through judgment, dated

06-07-2009, the trial Court decreed the suit. The appellant herein filed A.S.

No.243 of 2009. The appeal was dismissed on 27-07-2010. Hence, this second

appeal.

5. Sri M.V. Suresh, learned counsel for the appellant submits that the

trial Court categorically found that there is a vast difference between the

extent mentioned in Ex.A-1, on the one hand and the one found on the ground. He

submits that though the deed of settlement was not filed, the evidence on record

clearly disclosed that the disputed site was being used as an access to the

Mosque. Learned counsel further submits that since the suit schedule property

was being utilized as an access to the Mosque, the respondents were under

obligation to implead the Mosque as well as the Wakf Board in whom it vests and

that suit is bad for non-joinder of necessary parties.

6. While the respondents laid their claim over the suit schedule property on

the basis of Ex.A-1, the appellant and his father pleaded a deed of settlement

of the year 1989 as the base for their rights. The trial Court framed the

following issues for its consideration:

"01. Whether the site shown as B,C,D,E,F in the Plaint Plan is

not a part of the Registered sale deed dt.21.03.1966?

02. Whether the settlement deed dt.19.12.1989 said to have been a executed in

favour D. is true, valid and binding on the plaintiffs?

03. Whether the Plaintiffs are entitled to declare title in the sites shown as

E,G,J,F and B,C,D,E as shown in the Plaint Plan?

04. Whether the Plaintiffs are entitled to the relief of mandatory injunction in

respect of those sties as prayed for in the Plaint?

05. Whether the Plaintiffs are entitled to the relief of mandatory injunction as

prayed for in the Plaint?

7. On behalf of the respondents, PWs.1 and 2 were examined and Exs.A-1 to

A-6 were filed. On behalf of the appellant DWs.1 and 2 were examined and no

documentary evidence was adduced. The trial Court appointed an Advocate

Commissioner and the report and other related documents were taken on record as

Exs.C1 to C5. The suit was decreed as prayed for.

8. The lower appellate Court framed only one point for its consideration,

viz., whether the appellant had established substantial grounds to set aside the

decree and ultimately dismissed the appeal.

9. The principal controversy in the suit revolves around the source of

title for the suit schedule property, as pleaded by the respondents. In a suit

filed for declaration of title and consequential mandatory injunction, two

aspects become necessary. First is that the plaintiff must independently prove

his title over the property without depending upon the weakness of the

defendant. The second is that even if the plaintiff has proved his title, the

defendant can successfully resist the suit in case, he proves a title, which is

superior to the one pleaded and proved by the plaintiff. Many a time both these

aspects are dealt with together and a finding is recorded. In the instant case,

the respondents proved their title by filing Ex.A-1, dated 21-03-1966. Both on

account of the fact that the document is more than 30 years old and that there

is no controversy as to its execution, the document was held proved.

10. It is true that there is some discrepancy as to the extent that is

mentioned in the document on the one hand, and the one found on the ground as

measured by the Commissioner. However, the principle that the "boundaries

mentioned in a document would prevail upon the extent and other particulars",

needs to be kept in mind. It is not in dispute that the eastern boundary for

the property under Ex.A-1 is a road leading to Mosque. It means that the

property of the respondents abuts the road. The suit schedule property is a

vacant land between the road on the one hand, and the house of the respondents

on the other. The title of the respondents over the suit schedule property came

to be proved. The appellant could have convinced the Courts below to dismiss

the suit if only he established a superior title to the property. Though a plea

was taken that a deed of settlement was executed in favour of the Mosque in

respect of the suit schedule property, the document was not made part of record.

Thereby, the presumption provided for under Section 114 (g) of the Evidence Act

gets attracted. Even if the document was made part of record, the fact remains

that it is almost a quarter century later to the transaction covered by Ex.A-1.

Viewed from any angle, this Court does not find substantial question of law.

11. The Second Appeal is, accordingly, dismissed. There shall be no order as

to costs.

In a suit filed for declaration of title and consequential mandatory injunction, two aspects become necessary. First is that the plaintiff must independently prove his title over the property without depending upon the weakness of the defendant. The second is that even if the plaintiff has proved his title, the defendant can successfully resist the suit in case, he proves a title, which is superior to the one pleaded and proved by the plaintiff. Many a time both these aspects are dealt with together and a finding is recorded. In the instant case, the respondents proved their title by filing Ex.A-1, dated 21-03-1966. Both on account of the fact that the document is more than 30 years old and that there is no controversy as to its execution, the document was held proved.Though a plea was taken that a deed of settlement was executed in favour of the Mosque in respect of the suit schedule property, the document was not made part of record. Thereby, the presumption provided for under Section 114 (g) of the Evidence Act gets attracted. Even if the document was made part of record, the fact remains that it is almost a quarter century later to the transaction covered by Ex.A-1. « advocatemmmohan

A.P.Society registration Act =The A.P. Legislature enacted the new Act in the year 2001. Section 31 of the new Act repeals the Societies Registration Act 1960. However, sub-section (2) thereof makes it clear that any steps taken under the old Act shall be deemed to have been taken under the new enactment= The society was registered about half a century ago. Its affairs were being administered by the managing committee, comprising of various office bearers, including President Treasurer and Secretary. The record discloses that the 2nd respondent and the father of the 3rd respondent contributed a sum of Rs.25,000/-, which was quite a considerable amount at that time and that the same was used in acquiring properties for the establishment of a Degree College at Markapur. As a measure of recognition of their generosity, the members resolved to appoint them as Presidents in terms of three years each with hereditary rights. This arrangement was incorporated in bye-law 9(b). The petitioner or for that matter, anyone did not raise objection for the past five decades. .=What Section 14 mandates is an election to the committee comprising of not less than three members. At any rate, the arrangement that was in existence under the old enactment is saved under sub- section (2) of Section 32. The trial Court has taken note of these developments and dismissed the S.R.O.P.= This Court is not inclined to take any different view. « advocatemmmohan

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY

CIVIL REVISION PETITION No.1043 OF 2011

05-07-2011

Chirlamacherla Chinna Venkata Subbaiah

Vasavi Kanyaka Parameswari Arts

Counsel for the petitioner:Sri Nimmagadda Satyanarayana

Counsel for respondents:--

:ORDER:

The 1st respondent-society was registered way back in the year 1966. It

appears that respondent No.2 and his brother, by name Balaratnam, gave a

considerable amount of Rs.25,000/- to the society. As a measure of gratitude,

the members have resolved to appoint the 2nd respondent and his brother as

Presidents in alternative terms of three years with hereditary rights. The

election of the other office bearers was being held from time to time. The

affairs of the society were being administered with that arrangement.

The petitioner filed S.R.O.P.No.2 of 2006 in the Court of I Additional

District Judge, Ongole against the respondents under Section 23 of the A.P.

Societies Registration Act, 2011 (for short 'the new Act') with a prayer to

declare bye-law 9(b) of the society as illegal, void and contrary to Section 14

of the new Act, for mandatory injunction directing respondents 2 to 4 to conduct

elections to all the posts in the executive committee and to direct the society

to amend the bye-laws suitably. He pleaded that whatever may have been the

justification or legality of bye-law 9(b) before the new Act came to be enacted,

once Section 14 of the new Act mandates that election shall be held to the

committee periodically, it becomes impermissible for respondents 2 and 3 to act

as Presidents on nomination basis.

The application was opposed by the respondents. It was urged that the

arrangement was in existence almost for half a century and that the same cannot

be altered at this length of time. They further pleaded that Section 14 of the

new Act does not prohibit the nomination of any office bearers and on the other

hand, Section 5(v) permits of such an arrangement. It was also pleaded that the

new Act does not have effect on the bye-laws, that were framed by the society

registered under the A.P. Public Societies Registration Act. The trial Court

dismissed the O.P, through judgment, dated 28.09.2010. Hence, this revision

under Article 227 of the Constitution of India.

Sri Nimmagadda Satyanarayana, learned counsel for the petitioner submits

that there is a clear conflict between bye-law 9(b) of the society on the one

hand and Section 14 of the new Act on the other. He contends that bye-law 7(a)

of the society also mandates that election shall be held and bye-law 9(b)

virtually makes it nugatory to the extent it concerns the post of office

President.

The society was registered about half a century ago. Its affairs were

being administered by the managing committee, comprising of various office

bearers, including President Treasurer and Secretary. The record discloses that

the 2nd respondent and the father of the 3rd respondent contributed a sum of

Rs.25,000/-, which was quite a considerable amount at that time and that the

same was used in acquiring properties for the establishment of a Degree College

at Markapur. As a measure of recognition of their generosity, the members

resolved to appoint them as Presidents in terms of three years each with

hereditary rights. This arrangement was incorporated in bye-law 9(b). The

petitioner or for that matter, anyone did not raise objection for the past five

decades.

The A.P. Legislature enacted the new Act in the year 2001. Section 31 of

the new Act repeals the Societies Registration Act 1960. However, sub-section

(2) thereof makes it clear that any steps taken under the old Act shall be

deemed to have been taken under the new enactment. It means that if any

inconsistency is noticed between the state of affairs that came into existence

under the old enactment and the scheme of things under the new Act, the steps so

found shall be deemed to have been taken under the new Act and nowhere in the

Act, much less under Section 32, it is suggested that any steps taken under the

old enactment shall be deemed to be invalid or inoperative. Further, Section 14

of the New Act does not mandate that every office bearer of the managing

committee must be elected. The provision reads as under:

14. Committee of the society:- (1) Every society shall elect a Committee,

consisting of not less than three members of the society, by a resolution passed

by a majority of the members present and entitled to vote at an annual general

body meeting of the society held under Sec.20.

(2) The term of the Committee or of its members soc elected shall be a period

not exceeding six years as may be specified in the bye-laws:

Provided that a member who has completed a term of an elected member is eligible

for re-election as a member of Committee, if the bye-laws so permit.

(3) Every society shall maintain a register showing the names, addresses and

occupations of the persons, who are members of the Committee and shall file with

the Registrar:-

(i) a copy of the register within a period of fourteen days from the date of

election of the members of the first committee; and

(ii) a notice of every change in the members of the Committee within a period of

fourteen days from the date of such change.

A distinction is maintained between the committee and office bearers as is

evident from Section 5 of the new Act. The relevant provision reads as under:

5. Contents of bye-laws of societies:- The bye-laws of a society shall

contain provisions in respect of following matters:

(i) identity of the society which includes name and address particulars of the

society;

(ii) activities of the society;

(iii) membership of the society i.e., eligibility, admission, withdrawal and

termination etc.,

(iv) General body which contains the manner of meetings to be held or convened,

quorum, functions and responsibilities etc.,

(v) Office bearers and their appointment/election/removal/recall and their

responsibilities etc.,

(vi) Finances which includes types of funds to be raised, appointment of

auditors, liability of members for discharge of debts etc., and

(vii) Other matters which cover the internal matters of settlement of internal

disputes, dissolution of the society etc.

It is therefore evident that in a given case, it is impermissible for an

office bearer to be appointed/elected. What Section 14 mandates is an election

to the committee comprising of not less than three members. At any rate, the

arrangement that was in existence under the old enactment is saved under sub-

section (2) of Section 32. The trial Court has taken note of these developments

and dismissed the S.R.O.P. This Court is not inclined to take any different

view.

Therefore, the civil revision petition is dismissed. There shall be no

order as to costs.

A.P.Society registration Act =The A.P. Legislature enacted the new Act in the year 2001. Section 31 of the new Act repeals the Societies Registration Act 1960. However, sub-section (2) thereof makes it clear that any steps taken under the old Act shall be deemed to have been taken under the new enactment= The society was registered about half a century ago. Its affairs were being administered by the managing committee, comprising of various office bearers, including President Treasurer and Secretary. The record discloses that the 2nd respondent and the father of the 3rd respondent contributed a sum of Rs.25,000/-, which was quite a considerable amount at that time and that the same was used in acquiring properties for the establishment of a Degree College at Markapur. As a measure of recognition of their generosity, the members resolved to appoint them as Presidents in terms of three years each with hereditary rights. This arrangement was incorporated in bye-law 9(b). The petitioner or for that matter, anyone did not raise objection for the past five decades. .=What Section 14 mandates is an election to the committee comprising of not less than three members. At any rate, the arrangement that was in existence under the old enactment is saved under sub- section (2) of Section 32. The trial Court has taken note of these developments and dismissed the S.R.O.P.= This Court is not inclined to take any different view. « advocatemmmohan

. New facts must be specially pleaded.- The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.=mere acceptance of rent for period subsequent to expiry of lease period during which lessee continued to occupy lease premises cannot be said to be a conduct signifying “assent” to continuance of lease even after expiry of lease period. « advocatemmmohan

HON'BLE SRI JUSTICE B. CHANDRA KUMAR

Second Appeal No. 511 of 2008

23-03-2011

K.Sajjan Raj

Gopisetty Chandramouli

Counsel for Appellant : Sri B.V. Bakshi

Counsel for respondent :Sri R. Chandrashekar Reddy

:Judgment:

This appeal is directed against the judgment and decree dated 03.03.2008

passed in A.S. No.149 of 2006 by the I Additional Chief Judge, City Civil Court,

Secunderabad, confirming the judgment and decree dated 25.07.2006 passed in O.S.

No. 770 of 2004 on the file of the I Junior Civil Judge, City Civil Court,

Secunderabad.

The appellant herein is the defendant in the original suit. The parties

hereinafter will be referred to as they are arrayed before the trial Court for

the sake of convenience.

The plaintiff is the owner of the building in which the suit schedule

Mulgi is situated. The father of the defendant was inducted as tenant in the

suit schedule premises in the year 1952. After his demise, the defendant became

a tenant. Initially, the monthly rent was at Rs.500/-, but subsequently the

same was enhanced to Rs.1100/- per month, exclusive of electricity consumption

charges, from December 2001. The tenancy is month to month commencing from

first of the month to end of the month according to English Calendar. The

plaintiff issued a quit notice dated 28.05.2004 terminating the tenancy and

calling upon the defendant to vacate the premises and handover the vacant

possession of the suit premises within 15 days from the date of service of the

notice. The said notice was sent through speed post as well as under

certificate of posting. Though the registered envelop was returned with an

endorsement "as not claimed returned to Sender", but the plaintiff's case is

that the notice sent under certificate of posting was served on the defendant.

Since the defendant failed to vacate the premises, the plaintiff filed the suit

for eviction. The plaintiff also averred that the premises under the occupation

of the defendant would fetch a rent of Rs.5000/- and therefore the defendant is

liable to pay Rs.5,000/- per month towards mesne profits/damages for the use and

occupation of the property from the date of suit till the date of delivery of

vacant possession.

The defendant resisted the claim of the plaintiff and denied that he did

not claim the notice sent by the plaintiff. His specific case is that he left

for Rajastan on pilgrimage on 30.05.2004 and returned to Secunderabad only in

the night of 20th June 2004 and that he did not receive any notice prior to

30.05.2004 from the plaintiff and that he had learnt about the notice sent under

certificate of posting only on 21.06.2004. His main case is that after his

return from pilgrimage he tried to contact the plaintiff on 21.06.2004, but he

could not contact the plaintiff and at last on 24.06.2004 he met the plaintiff

and the plaintiff agreed to talk with him after about one week. Then the

defendant again met him on 02.07.2004 and they again met on 06.07.2004 and

finally agreed to renew the lease on the following terms.

(a) that the lease shall be for a period of twenty (20) years; commencing from

01.06.2004.

(b) That, the monthly rent shall be Rs.2,000/- (Rupees Two Thousands only)

exclusive of electricity consumption charges, to be enhanced by 20% for every

five years.

(c) That, the monthly rent shall be payable on or before 5th of every month.

(d) That, the premises should not be sub-let or the nature of business be

changed, nor any partnership be entered into to carry on the business without

prior written permission of the landlord.

(e) That, this lease deed should be got registered within 4 months from

06.07.2004; and the stamp and registration charges therefor be shared equally by

the Lessor and the Lessee. All the other conditions as are envisaged in the

Transfer of Property Act.

It is also the specific case of the defendant that the plaintiff did not inform

him about the filing of the suit when he met the plaintiff on the above

mentioned dates. The further case of the defendant is that in compliance of the

said arrangement, the plaintiff had been receiving the renewed rent of

Rs.2,000/- per month from 01.06.2004 and that on 10.07.2004 the plaintiff

received the monthly rent for the months of June and July 2004 and passed

receipts. Thus, the specific case of the defendant is that in view of the

subsequent agreement and renewal of lease, the suit became infructuous.

On behalf of the plaintiff, the plaintiff himself was examined as PW.1 and

Exs.A1 to A5 were marked. On behalf of the defendant, the defendant himself was

examined as DW.1 and one S. Prakash was examined as Dw.2 and Exs.B1 to B7 were

marked.

The learned Junior Civil Judge, having appreciated the evidence, came to

the conclusion that when the plaintiff had sent a notice dated 28.05.2004

through speed post to the defendant and when it is returned as not claimed and

when the notice is sent to the correct address, it is deemed that there is

service of notice. It is also observed that non-filing of rejoinder by the

plaintiff would not automatically prove the averments made by the defendant.

The learned Judge also held that the defendant did not produce even an iota of

evidence with regard to alleged renewal of lease and with regard to terms and

conditions of the fresh renewal agreement. Holding so, the suit was decreed.

Aggrieved by the same, the defendant carried the matter in appeal. The lower

appellate Court also disbelieved the version of the defendant with regard to

fresh lease agreement and further observed that subsequent payment of Rs.2,000/-

per month also not in conformity with the alleged fresh lease agreement and

accordingly dismissed the appeal. Challenging the said judgment, the defendant

filed the present second appeal.

Sri B.V. Bakshi, learned counsel for the defendant/appellant, submitted

that the defendant had been on pilgrimage during the relevant period and that he

did not receive the notice sent by the plaintiff and that after his return the

defendant had contacted the plaintiff and there was fresh agreement of lease

extending the lease by a period of 20 years and enhancing the rent to Rs.2000/-

per month and that this agreement was acted upon. His main submission is that

the plaintiff admitted that he has received the rents at Rs.2000/- per month and

this circumstance clearly supports the version of the defendant that there was

renewal of the earlier lease. It is also his contention that when the defendant

met the plaintiff he was not even informed that the plaintiff filed a suit for

eviction of the defendant and that after the defendant received summons in the

suit and when he filed a suit for specific performance, the plaintiff stopped

receiving the rents. His main submission is that when the defendant had taken a

specific plea about the fresh lease agreement and when the plaintiff has not

denied the same by filing a rejoinder it amounts to admission, and as per the

provisions of Section 58 of the Indian Evidence Act an admitted fact need not be

proved. It is also his submission that once a fresh lese agreement has been

entered into between the parties and acted upon, the earlier quit notice becomes

ineffective. It is also his submission that the courts below failed to

appreciate the evidence in proper perspective and simply held that the defendant

failed to prove the fresh lease agreement. It is also his submission that an

unregistered agreement of lease is admissible in evidence under Section 49 of

the Registration Act as evidence of part performance. In support of his

contention, he has relied on the judgment in case between Maneklal Mansukhbhai

v. Hormutsji Jamshedji Ginwalla and sons1. It is also his submission that

specific performance can be ordered even where the agreement to sell is oral and

where a property has been delivered in pursuance of the agreement of sale.

Learned counsel for the respondent/plaintiff submitted that the plaintiff

has issued quit notice to the correct address of the defendant and the same has

been admitted by the defendant and when a notice is sent to the correct address

it is deemed to have been served and therefore the finding of the Courts below

on this aspect is correct. It is also his submission that the plaintiff in his

notice had categorically mentioned that the defendant is liable to pay damages

at Rs.5000/- per month till the vacant possession of the premises was delivered

to him and any amount paid by the defendant after termination of tenancy would

be accepted under protest and without prejudice to his contentions. It is also

argued that as far as denying the averments made by a party are concerned the

defendant in a suit is required to deny all the material averments made by the

plaintiff under Order VIII Rule 3 CPC and if any averment is not specifically

denied the same amounts to an admission under Order VIII Rule 9 CPC. It is also

his contention that admittedly the defendant did not make any counter claim or

pleaded set off and only in case where the defendant had claimed counter claim

or pleaded set off then it becomes obligatory on the part of the plaintiff to

file a rejoinder to the said counter claim or set off under Order VIII Rule 6-A

CPC. It is his specific submission that merely because the plaintiff did not

file rejoinder that will not amount to an admission. It is also his submission

that after amendment of the Registration Act by Act 4 of 1999, agreement of

lease must be registered one and if not registered, such agreement of lease is

invalid. It is also submitted that the judgments relied on by the defendant are

not applicable to the facts of this case, since they are based on Section 53(a)

of the Transfer of Property Act., i.e., where possession has been delivered in

pursuance of the agreement of sale and that situation did not arise in this

case.

The substantial question of law that arises for consideration is that when

a pleading in the written statement is not denied by filing a rejoinder whether

such pleading in the written statement can be taken as admission.

It is not in dispute that the plaintiff is the owner of the premises and

that the defendant is a tenant of the said premises and monthly rent of the said

premises was at Rs.1100/- before the dispute arose between the parties. The

specific case of the plaintiff is that he got issued a quit notice dated

28.05.2004 calling upon the defendant to hand over the vacant possession of the

premises and that the defendant evaded to receive the notice. Admittedly, the

notice Ex.A1, dated 28.05.2004, was sent by speed post. Ex.A2 is the speed post

receipt, Ex.A3 is the returned registered envelop and Ex.A4 is the certified

copy of posting coupon. It is an admitted case that the notices were sent to

the correct address of the defendant. Therefore, the finding of the lower

Court, that when a notice has been sent to the correct address of a party and

when the same has been returned 'as not claimed', the same amounts to service of

notice, need not be disturbed.

Though the defendant claimed that he was not in the town and that he had

been on pilgrimage and that he left Secunderabad on 30.05.2004, but the

documents filed by him, particularly the railway ticket Ex.B6, go to show that

he left Secunderabad on 31.05.2004. A perusal of the postal endorsement reveals

that the postman went to the address of the defendant on 29.05.2004 and on

31.05.2004. Therefore, the contention of the defendant that he was not

available in Secunderabad when the said notice was tendered also appears to be

not correct. However, since no arguments have been advanced on this point,

there is no need to discuss this issue any further.

The only claim of the defendant is that subsequently there was an oral

agreement between the parties by which the lease was extended on certain terms

and conditions and in pursuance of that oral agreement he has paid monthly rent

of Rs.2000/- to the plaintiff and that the plaintiff has accepted the same. It

is a fact that the defendant has made a specific averment in his written

statement about the renewal of the lease and with regard to fresh agreement of

sale on 06.07.2004. It is also mentioned as per the agreed terms the lease

period is extended by another 20 years commencing from 01.06.2004 on a monthly

rent of Rs.2,000/- exclusive of electricity consumption charges and the said

rent has to be enhanced by 20% for every five years. Admittedly, the plaintiff

has not filed any rejoinder. Order VIII CPC deals with the filing of written

statement by a defendant. Rule 2 of Order VIII is as follows.

2. New facts must be specially pleaded.- The defendant must raise by his

pleading all matters which show the suit not to be maintainable, or that the

transaction is either void or voidable in point of law, and all such grounds of

defence as, if not raised, would be likely to take the opposite party by

surprise, or would raise issues of fact not arising out of the plaint, as, for

instance, fraud, limitation, release, payment, performance, or facts showing

illegality.

Thus, Rule 2 of Order VIII envisages that new facts such as that the suit

is not maintainable or that the transaction is either void or voidable in law

and also all such grounds of defence such as fraud, limitation, release,

payment, performance, or facts showing illegality must be specifically raised.

Rule 3 of Order VIII specifies that the denial of plaint averments must be

specific i.e., each allegation made by the plaintiff must be specifically

denied.

Sub-rules (1) and (2) of Rule 5 of Order VIII are as follows.

5. Specific denial.-(1) Every allegation of fact in the plaint, if not

denied specifically or by necessary implication, or stated to be not admitted in

the pleading of the defendant, shall be taken to be admitted except as against a

person under disability:

Provided that the Court may in its discretion require any fact so admitted

to be proved otherwise than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the

Court to pronounce judgment on the basis of the facts contained in the plaint

except as against a person under a disability, but the Court may, in its

discretion, require any such fact to be proved.

Thus, under Order

VIII Rule 5, the allegation of fact made in the plaint if not denied, is to be

taken as admitted.

Rule 6 of Order VIII deals with the set-off, which is as follows.

6. Particulars of set-off to be given in written statement.-(1) Where in a suit

for the recovery of money the defendant claims to set-off against the

plaintiff's demand any ascertained sum of money legally recoverable by him from

the -plaintiff, not exceeding the pecuniary limits of the jurisdiction of the

Court, and both parties fill the same character as they fill in the plaintiff's

suit, the defendant may, at the first hearing of the suit, but not afterwards

unless permitted by the Court, present a written statement containing the

particulars of the debt sought to be set-off.

(2) Effect of set-off.-The written statement shall have the same effect as a

plaint in a cross-suit so as to enable the Court to pronounce a final judgment

in respect both of the original claim and of the set-off: but this shall not

affect the lien, upon the amount decreed, of any pleader in respect of the costs

payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written

statement in answer to a claim of set-off.

Thus, the effect of plea of set-off shall have the same effect as a plaint in a

cross-suit and when the plaintiff files an answer to a claim of set-off the

rules relating to a written statement shall apply to such answer. Thus, the

plaintiff steps into the shoes of the defendant while filing an answer to the

claim of a set-off pleaded by the defendant. Rule 6A deals with a counter claim

by the defendant and the counter claim has to be treated as a plaint and

governed by the rules applicable to plaints under sub-rule (4) of Rule 6A and

the plaintiff shall be at liberty to file a written statement in answer to the

counter-claim of the defendant within such period as may be fixed by the Court

under sub-rule (3) of Rule 6A.

Rule 6B is as follows.

6B. Counter-claim to be stated.-Where any defendant seeks to rely upon any

ground as supporting a right of counter-claim, he shall, in his written

statement, state specifically that he does so by way of counter-claim.

It is not the case of the learned counsel for the defendant/appellant that the

defendant sought to rely upon any ground as supporting a right of counter-claim

nor that he has specifically mentioned that he does so by way of counter claim

in this case. Thus, it is clear that the appellant herein did not follow Rule

6-B as quoted above.

Rule 7 of Order VIII is as follows.

7. Defence or set-off founded upon separate grounds.-Where the defendant relies

upon several distinct grounds of defence or set-off or counter-claim founded

upon separate and distinct facts, they shall be stated, as far as may be,

separately and distinctly.

Rule 8 of Order VIII is as follows.

8. New ground of defence.-Any ground of defence which has arisen after the

institution of the suit or the presentation of a written statement claiming a

set-off or counter-claim may be raised by the defendant or plaintiff as the case

may be, in his written statement.

Rule 9 of Order VIII is as follows.

9. Subsequent pleadings.-No pleading subsequent to the written statement of a

defendant other than by way of defence to set-off or counter-claim shall be

presented except by the leave of the Court and upon such terms as the Court

thinks fit; but the Court may at any time require a written statement or

additional written statement from any of the parties and fix a time of not more

than thirty days for presenting the same.

Thus, Rule 9 of Order VIII specifies that no pleading subsequent to the written

statement of a defendant other than set-off or counter-claim shall be presented

without the leave of the Court. Learned counsel for the defendant/appellant

could not show any provision to show that if any allegation made in the written

statement is not denied specifically the same amounts to admission by the

plaintiff. No such provision appears to be available under the Code of Civil

Procedure. Therefore, what the law envisages is that as far as the defendant is

concerned, he has to deny the specific averments or allegations made by the

plaintiff and when the defendant makes a specific plea of set-off or counter

claim, then only the plaintiff is required to file an answer to the counter

claim or the set-off pleaded by the defendant. As far as the other averments

made by the defendant, which do not come within the definition of set-off or

counter claim, the plaintiff is not required to answer the same. Therefore,

non-filing of any answer by the plaintiff to the specific pleading of the

defendant that there was fresh lease or the renewal of lease on 06.07.2004

cannot be taken as an admission made by the plaintiff.

Learned counsel for the defendant/appellant submits that though the renewal of

lease or fresh lease is not registered, but when the circumstances point out

that the said agreement was acted upon, a formal lease is not necessary to

attract the application of Section 53A of the Specific Relief Act.

He has relied on a decision reported in Maneklal Mansukhbhai v. Hormutsji

Jamshedji Ginwalla and sons (1 supra). In that case, the appellant desired to

erect a ginning factory and with that object approached the Talukdari Settlement

Officer for permanent lease of certain lands. The said Officer agreed to grant

a lease subject to sanction of the Government. The Government of Mumbai granted

requisite sanction and to that effect a letter was sent to the Commissioner and

to the Talukdari Settlement Officer by the Chief Secretary to Government. Then

the factory was set up and the Talukdari Settlement Officer continued to receive

the rents. However, the agreement of lease was not registered. Section 53 of

the Transfer of Property Act came to be considered in that case. The issue was

whether the transfer could be ascertained with reasonable certainty. Ex.181 is

the resolution, by which the Government of Mumbai granted requisite sanction.

The apex Court observed as follows.

".................Once it is held that Ex.181 is good secondary evidence of the

agreement of lease, there can then be no hesitation in holding that by an offer

and an acceptance made in writing and signed by the respective parties an

agreement was completed between the Talukdari Settlement Officer and the

predecessor-in-interest of the defendant and that necessary sanction of the

Government was also in writing signed by the officer concerned. It has further

to be held that the terms of the contract can be fairly deduced from the

recitals of this document."

In that case, the lessee had taken possession in part performance of the

agreement, but also paid rents continuously for some period. In the above

circumstances, it was held that an agreement of lease creating a present demise

but not registered is admissible under Section 49 of the Registration Act as

evidence of part performance and Ex.181 is secondary evidence of that agreement.

It was further observed that a formal lease is not necessary to attract the

application of Section 53-A of the T.P. Act. All that is required is that an

agreement in writing signed by the transferor can be gathered from the evidence.

The correspondence mentioned in Ex.181 fully establishes that fact. The facts

of that case are entirely different to the facts of the present case. In that

case, in pursuance of the agreement of lease possession was delivered to the

lessee and the plaintiff who disputed the agreement of lease admittedly did not

produce necessary documents which were in its possession and an adverse

inference was drawn against the plaintiff in that case. More over, the facts

and circumstances of that case reveal that the agreement was acted upon and

secondary evidence as in Ex.181 was available in that case.

Admittedly, in this case, the lease agreement is not registered. More so, there

is no written agreement at all. The defendant pleads only an oral agreement of

lease. That too, the lease period is said to be extended by 20 years. Except

the self-serving statement of the defendant, there is no iota of evidence to

show that there was an oral agreement between the plaintiff and defendant

extending the lease for another period of 20 years. It has to be seen that the

defendant had already come to know about the quit notice issued by the

plaintiff. He was informed that a notice has been received under certificate of

posting and then he says that he approached the plaintiff on 21.06.2004 and on

24.06.2004 and again on 04.07.2004 and on 06.07.2004. It is not the case of the

defendant that he had taken any mediators along with him. When the plaintiff

had issued a quit notice, the appellant/defendant would have, in all

probabilities, insisted for a written and registered agreement of lease, that

too when the period of lease is said to be extended by another 20 years.

Therefore, as observed by the Courts below, there is no iota of evidence to

prove the oral lease. More over a lease of such nature, admittedly, requires

registration.

Learned counsel for the defendant/appellant has also relied on a decision

reported in Smt. Anjali Das v. Bidyut Sarkar2. In that case, the respondent

therein was the owner of the flat and he agreed to sell the same to the

appellant therein. However, permission of co-operative society was required and

both of them applied to the society seeking permission and the appellant was put

in possession of the property and in the above circumstances, protection

available under Section 53A of the T.P. Act came to be discussed. Admittedly,

the plaintiff was given possession of the flat, then she had also applied to the

society for membership. She was granted membership. Of course, the agreement

of sale was not registered one. It was held that when the vendor delivered

possession on receiving part of sale consideration the same must be held to be

in pursuance of part performance of contract. The facts of that case are

entirely different and admittedly in that case both the parties applied to the

society for permission and on the facts it was held that the appellant was

entitled to protection under Section 53A of the T.P. Act.

Here, in this case, the defendant was in possession of the property as a lessee

and it is not in dispute that the plaintiff had issued quit notice and in spite

of receiving the said notice, the defendant did not vacate the premises. His

plea is that there was a fresh lease. Admittedly, no evidence has been adduced

in support of the fresh lease. Therefore, it cannot be said that he entered

into the possession by virtue of fresh lease agreement. Where in a given case,

in pursuance of an oral agreement, if a vendee or a lessee is put in possession

of the property and there is satisfactory evidence to show their possession and

where there is cogent evidence corroborated by all surrounding circumstances to

presume the lease or an agreement of sale, then in those circumstances, even if

a registered document such as a registered lease or registered agreement of sale

is not available, the agreement of sale or an agreement of lease even if not

registered can be looked into for collateral purpose to the possession of Vendee

or Lessee, as the case may be. But, there are no such facts in this case to

presume a fresh lease between the parties. The only circumstance relied upon by

the learned counsel for the defendant/appellant is that the respondent/plaintiff

has accepted the rent at Rs.2000/- per month and that could be only in pursuance

of the fresh lease. No doubt, the plaintiff has accepted the rent at Rs.2,000/-

per month from May 2004 to October 2004 and passed receipts. But, it has to be

seen that the plaintiff in his legal notice has categorically stated that

without prejudice to his contentions he will be receiving any amount paid to

him. He had also claimed Rs.5,000/- per month towards damages and categorically

mentioned in his notice that any amount paid by the defendant after termination

of the tenancy will be accepted under protest and without prejudice to his

contentions to seek the eviction of the defendant. Therefore, the plaintiff

with abundant caution had specifically mentioned that he will be receiving

whatever amounts paid towards the lease without prejudice to his contentions.

Merely because the plaintiff had accepted the rent of Rs.2000/- per month, it

cannot be presumed that there was an oral fresh lease agreement between the

parties. It has to be seen that the plaintiff stopped receiving the said amount

soon after filing of the written statement by the defendant. It gives an

impression that as soon as the plaintiff came to know that the defendant had

taken a plea in his written statement and pleaded fresh lease or renewal of

lease the plaintiff stopped receiving the amounts from the defendant. This

circumstance also supports the case of the plaintiff. Anyhow, the settled legal

position is that receiving of rents after issuing quit notice cannot be said to

be a conduct of signifying "assent" to the continuance of the lease even after

expiry of lease period (Refer Shanti Prasad Devi and another v. Shankar Mahta

and others reported in 2005 (4) ALD 116 (SC) = AIR 2005 SC 2905). Relying on

the said decision, this Court in K. Srinivasa Rao v. N. Ramachandramurthy3, held

that mere acceptance of rent for period subsequent to expiry of lease period

during which lessee continued to occupy lease premises cannot be said to be a

conduct signifying "assent" to continuance of lease even after expiry of lease

period.

In view of the above discussion, it has to be held that though the defendant had

taken a specific plea in his written statement and even if the same is not

denied by way of filing a rejoinder or additional written statement by the

plaintiff, the same does not amount to an admission. There are no merits in the

second appeal and the same is liable to be dismissed.

Accordingly, the second appeal is dismissed. However, in the circumstances, the

defendant/appellant is granted time till 30th June 2011 to vacate the suit

schedule premises and to hand over vacant possession of the same to the

plaintiff subject to payment of rents. No costs.

?1 AIR 1950 Supreme Court 1

2 AIR 1992 Calcutta 47

3 2010 (6) ALD 765

. New facts must be specially pleaded.- The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.=mere acceptance of rent for period subsequent to expiry of lease period during which lessee continued to occupy lease premises cannot be said to be a conduct signifying “assent” to continuance of lease even after expiry of lease period. « advocatemmmohan

1. Whether the 2nd defendant is able to prove that Ex.B-2 dated 7-2-1995 was duly executed by late Bhavanamma in a sound and disposing state of mind and that Ex.B-2 was not surrounded by any suspicious circumstances? 2. Whether plaintiff is able to prove that late Bhavanamma in a sound and disposing state of mind executed Ex.A-1 Will Deed and there are no suspicious circumstances surrounding the execution of Ex.A-1 Will Deed? « advocatemmmohan

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY  C.M.A.No.1 of 2011   28-04-2011   Immadi Venkata Muttaiah @ Baburao   Sunkara Babaji Chowdary and another   Counsel for the appellant: Sri Ch. Dhanamjaya  Counsel for respondents: ------------------  :JUDGMENT:   This Civil Miscellaneous Appeal is filed against the judgment and decree in A.S.No.40 of 2006, dated 25-10-2010, on the file of the I Additional District Judge, Eluru, West-Godavari District, which, in turn, was filed against the decree in O.S.No.205 of 2001 passed by the Court of Additional Senior Civil Judge, Eluru, West-Godavari District. For the sake of convenience, the parties herein are referred to, as arrayed in the suit. The sole plaintiff is the appellant herein.  The suit was filed for the relief of declaration of title in respect of items 1 to 3; for recovery of possession of items 2 and 3 from the 1st defendant, and for perpetual injunction against defendants 1 and 2, in respect of item 1, of the plaint schedule.  The plaintiff pleaded the following facts: Himself and the 1st defendant are the sons of late Immadi Narayanamurthy and Bhavanamma and in  the oral family partition, the suit schedule properties were allotted to their mother. Bhavanamma was being looked after by the plaintiff till her death and out of love and affection, she executed a Will, dated 10-03-2000 (Ex.A-1), bequeathing the suit schedule properties in favour of the plaintiff. When the 1st defendant tried to interfere with the possession and enjoyment of some of the properties, the plaintiff got issued notice, Ex.A-2, and thereafter, correspondence ensued. It was ultimately found that the 1st defendant executed a sale deed in favour of the 2nd defendant, in respect of Ac.1.05 cents of land, from out of item No.1 of the suit schedule.  The 1st defendant, who is brother of the plaintiff remained ex parte. The 2nd defendant filed a written-statement, admitting the fact that he purchased Ac.1.05 cents of land through a sale deed dated 01-10-2001, marked as Ex.B-1. He further stated that the 1st defendant pleaded that his mother Bhavanamma executed a Will dated 07-02-  1995 (Ex.B-2), bequeathing the said property to him and the purchase was made  after due verification of records. He pleaded that the Will, Ex.A-1 relied upon by the plaintiff is a fabricated one.  The trial Court decreed the suit through judgment dated 12-12-2005. The 2nd defendant filed A.S.No.40 of 2006 in the Court of I Additional District Judge, West-Godavari, at Eluru. The appeal was allowed, through judgment dated 25-10-2010 and the decree and judgment passed by the  trial Court was set aside. The matter was remanded to the trial Court, mainly for the purpose of providing an opportunity to the 2nd defendant to cross- examine PW-3, one of the alleged attestors of Ex.A-1. The lower Appellate Court had reversed the finding of the trial Court on Ex.B-2, and held that the said Will is proved. A direction was given to the trial Court that the finding on Ex.B-2 shall remain.  Sri Ch. Dhanamjaya, learned counsel for the appellant submits that the plaintiff proved Ex.A-1 beyond any pale of doubt by examining various witnesses, including one of the attestors, and there was absolutely no basis for the lower Appellate Court in disturbing that finding. He further submits that the beneficiary under Ex.B-2 did not choose to enter appearance, and the lower Appellate Court was not justified in reversing the finding recorded by the trial Court on that document.  The suit filed by the plaintiff was for the relief of declaration in respect of three items of the suit schedule; recovery of possession and mesne profits, in respect of items 2 and 3, against the 1st defendant, and perpetual injunction in respect of item No.1, vis--vis the defendants 1 and 2. The plaintiff pleaded, Ex.A-1, as the source of his title. His brother, the 1st defendant, remained ex parte. The burden fell upon the 2nd defendant alone to resist the suit. Though he is not the legatee under Ex.B-2, he had to propound and prove it, since the transfer in his favour under Ex.B-1 was dependant upon the validity of that Will.  The trial Court framed the following issues, viz., 1. Whether the plaintiff is entitled for declaration of his title to suit schedule properties as prayed ? 2. Whether plaintiff is entitled for recovery of possession of item Nos.2 and 3 of suit schedule property after ejecting the first defendant therefrom? 3. Whether plaintiff is entitled for future profits over item Nos.2 and 3 of the suit properties? 4. Whether plaintiff is entitled for permanent injunction against the defendants in respect of item No.1 of suit property?  On behalf of the plaintiff, PWs 1 to 6 were examined and Exs.A-1 to A-22 were filed. On behalf of the defendants DWs 1 to 4 were examined and Exs.B-1 to B-5 were filed. Ex.X-1 is the copy of the ledger extract, containing the signature and thumb impression of Bhavanamma, marked through the Court.   The suit was decreed as prayed for. The 2nd defendant felt aggrieved by the decree, in so far as the decree was in respect of Ac.1.05 cents of land in item- I, of the suit schedule. In A.S.No.40 of 2006 filed by him, the lower Appellate Court framed two points for consideration, viz.,  1. Whether the 2nd defendant is able to prove that Ex.B-2 dated 7-2-1995 was duly executed by late Bhavanamma in a sound and disposing state of mind and that  Ex.B-2 was not surrounded by any suspicious circumstances?  2. Whether plaintiff is able to prove that late Bhavanamma in a sound and disposing state of mind executed Ex.A-1 Will Deed and there are no suspicious circumstances surrounding the execution of Ex.A-1 Will Deed?   Point No.1 was answered in favour of the 2nd defendant. On point No.2, the lower Appellate Court felt that the plaintiff did not prove Ex.A-1, since PW-3, one of the attesting witnesses, did not turn up for cross- examination. Therefore, it remanded the matter to the trial Court, limiting the consideration to the validity of Ex.A-1, and permitting the 2nd defendant to cross-examine PW-3. It was observed that, its finding on Ex.B-2 shall remain as it is.  Since the appeal is the continuation of a suit, the lower Appellate Court examined each and every aspect of fact and law, in detail. The claim of the plaintiff rested upon Ex.A-1, Will, dated 10-03-2000, said to have been executed in his favour, by his mother, Bhavanamma. The 2nd defendant, on the other hand, relied upon Ex.B-2, dated 07-02-1995, a Will, said to have been executed by the same lady, but in favour of the 1st defendant, in respect of the said property. Even if Ex.B-2 is validly executed and is proved, it would be subject to any subsequent testament. Ex.A-1, if proved as required under law, would hold the field being a subsequent Will. Both of them cannot operate at one and the same time.  The trial Court held that Ex.A-1 is proved and that Ex.B-2 was not validly executed. That finding was reversed by the lower Appellate Court. While it remanded the matter for consideration of proof of Ex.A-1, it recorded a clear finding on Ex.B-2 that it is proved. The observation made by the lower Appellate Court that its finding on Ex.B-2 shall remain untouched, needs to be clarified. If, after permitting PW-3 to be cross-examined, the trial Court comes to the conclusion that Ex.A-1 is validity executed, Ex.B-2 would cease to be operative, notwithstanding its valid execution. If the finding goes against the plaintiff on Ex.A-1, after remand, Ex.B-2 would certainly be a source of title. Another aspect is that, there is no necessity to disturb the decree in the suit, to the extent it is not against the 2nd defendant. In other words, the grievance of the 2nd defendant can be only vis--vis the decree for perpetual injunction in respect of part of item-I of the suit schedule property, admeasuring Ac.1.05 cents. Rest of the decree was directed against the 1st defendant, and he did not choose to prefer an appeal.  Therefore, the C.M.A. is partly allowed, directing that, a) the remand by the lower Appellate Court shall be confined to the decree, in so far as it is against defendant No.2; b) the decree to the extent it is exclusively against defendant No.1, shall remain intact; c) the 2nd defendant shall be entitled to cross-examine PW-3 on the validity of Ex.A-1; and  d) the enforceability of Ex.B-2 shall depend upon the finding of the trial Court on Ex.A-1.There shall be no order as to costs. 

1. Whether the 2nd defendant is able to prove that Ex.B-2 dated 7-2-1995 was duly executed by late Bhavanamma in a sound and disposing state of mind and that Ex.B-2 was not surrounded by any suspicious circumstances? 2. Whether plaintiff is able to prove that late Bhavanamma in a sound and disposing state of mind executed Ex.A-1 Will Deed and there are no suspicious circumstances surrounding the execution of Ex.A-1 Will Deed? « advocatemmmohan