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2011 Supreme(AP) 204
High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE B. PRAKASH RAO & The HONOURABLE MR. JUSTICE R. KANTHA RAO
Lakshmi Parvathi
Versus
K. Umamaheswari
C.C.C.A.NO.104 of 2005
Decided on : 08-03-2011
For the Appellant:V. Ranga Babu, Advocate.
For the Respondent:Ashok Anand Kumar, Advocate.
Headnote:A) SPECIFIC RELIEF ACT, 1963, Section 34 - Benami Transactions (Prohibition) Act, 1988, Section 4:- Suit for possession and damages filed by the plaintiff that the suit scheduled property was purchased in the name of the plaintiff, but since she was in U.S.A. at that relevant point of time late Dr. N.T.R. occupied the property. – Defendant who is in occupation of the property as the wife of the late Dr. N.T.R. and claiming that as his legal wedded wife puts the title in pursuance of a will purported to have been executed by him but not produced in the court. – Defendant not entitled to put up the plea that the plaintiff is only a benmidar and the real purchaser Dr. N.T.R. had purchased it for his benefit, in view of Section 4 of Benami Transaction (Prohibition) Act, 1988 - Once both the parties to the suit have adduced evidence in support of their, it remains within the discretion of the courts to decide the issues on the preponderance of evidence and hence the order of the trial court allowing the suit directing the defendant to hand over the vacant possession of the property to the plaintiff is upheld. It was held there is no merit in the appeal against order of the trial allowing the suit. (Para 24)
B) EVIDENCE ACT, 1872, Sec. 114:- Non-examination of the plaintiff in itself does not enjoin adverse inference in so far as the examination of the power of attorney holder is full and conclusive and power of attorney holder is in personal knowledge of the issues in question, unless the the evidence is of such a nature that it is insufficient in the absence of the testimony of the party to the suit, then the Court would be justified in drawing adverse inference against the case of the said party for his non-examination to the effect that the case which had been set up by him is not correct. (Para 17)
C) CIVIL PROCEDURE CODE, 1908:- In so far as a proceedings is within the inherent jurisdiction of the court, lack of territorial or pecuniary jurisdiction in itself does not render the judgment rendered by the court does not make it unenforceable or void unless such a lack of jurisdiction results in substantial injustice or causes prejudices to any of the parties. (Para 23)
R. Kantha Rao,J
This appeal is filed by the defendant against the judgment and decree dated 18.01.2005 passed by the II Senior Civil Judge, City Civil Court, Hyderabad in O.S.No.82 of 1999.
The unsuccessful defendant is the appellant.
We have heard Sri Vedula Venkata Ramana, learned senior counsel appearing for the appellant and Sri D. Prakash Reddy, learned senior counsel appearing for the respondent.
For the convenience sake, we refer the parties to the lis as ‘the plaintiff and the defendant.’
The plaintiff instituted the suit to recover the possession of the house bearing No.8-2-674/6/1 situated at Road No.13, Banjara Hills, Hyderabad, hereinafter called as “suit property” by evicting the defendant therefrom and to recover the damages at the rate of Rs.15,000/- per month for use and occupation by the defendant with effect from 01.02.1996.
The plaintiff asserted her title to the suit property by virtue of a registered sale deed dated 10.08.1990 executed in her favour by its original owner. As the plaintiff at relevant time was staying in USA executed, a General Power of Attorney in favour of her brother M.Ramakrishna, who filed the suit on her behalf. The version of the plaintiff is that as she was in USA at the time of execution of the registered sale deed dated 10.08.1990, her father late N.T.Rama Rao took possession of the suit property on her behalf, but the consideration was paid by her and she became entitled to the suit property under the registered sale deed dated 10.08.1990 and thus, she is the absolute owner of the said property.
On the other hand, it was the contention of the defendant that she is the legally wedded wife of late N.T.Rama Rao, the entire sale consideration was paid by late N.T.Rama Rao but he purchased the suit property benami in the name of the plaintiff, late N.T.Rama Rao also reconstructed the entire house by spending his own money and lived therein along with the defendant in his own right. Thus, according to the defendant, the plaintiff has no title to the property and late N.T.Rama Rao bequeathed all his moveable and immoveable properties in favour of the defendant under a will and after the death of late N.T.Rama Rao, she became absolute owner of the properties including the suit property. It was also contended that since she disputed the title of the plaintiff, the court fee paid by the plaintiff under Section 40(2) of the A.P. Court Fee and Suits Valuation Act is not correct. Contending as such, the defendant sought to dismiss the suit.
Basing on the rival contentions, the following issues and additional issues have been framed by the trial Court:
1. Whether the plaintiff is entitled for recovery of possession of the suit property as prayed for?
2. Whether the suit schedule property is the self acquired property of late N.T.Rama Rao?
3. Whether the defendant is legally wedded wife of late N.T.Rama Rao?
4. Whether the suit schedule property was transferred in the name of the defendant under a will by late N.T.Rama Rao?
5. To what relief?
Additional Issues:
1. Whether the deed of General Power of Attorney dated 23.01.1996 alleged to be executed by the plaintiff in favour of N.Ramakrishna is proved and if so, whether GPA holder is having authority to represent the plaintiff?
2. Whether the plaintiff came into possession of the suit property after purchasing the same?
3. Whether the suit as framed and filed is maintainable?
4. Whether the suit is properly valued and proper court fee was paid?
Before the learned trial court, the General Power of Attorney holder of the plaintiff was examined as PW.1, one of the attestors of the registered Sale Deed dated 10.08.1990 was examined as PW.2 and Exs.A.1 to A30 were marked. The defendant got herself examined as DW1 and marked Exs.B.1 to B.7.
The learned trial Court having answered all crucial issues in favour of the plaintiff, decreed the suit directing the defendant to vacate the suit property within a period of two months from the
