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2011 Supreme(AP) 35

2011 (4) ALD 734
High Court of Andhra Pradesh
L. NARASIMHA REDDY
Takkolu Sidda Reddy & Others
Versus
Shaik Mahaboob Bi & Others
SECOND APPEAL No.531 of 1992
Decided on : 21-01-2011

Advocates Appeared:
For the Appellants:M. Surender Rao, Advocate.
For the Respondents:R1 to R9- Rajasekhar, Advocate.

Headnote:

Land Reforms Act, 1973 – Evidence Act – Section 73 – Injunction – Comparison of signature – Suit was opposed by respondents, pleaded that being the Karta of family, sold land through Ex.A.12 and the suit was filed with a view to commit fraud on respondents – They pleaded that suit is barred by limitation and is defective for mis-joinder or non-joinder of proper parties – Through its judgment, dated trial Court decreed suit – Respondents filed A.S. in Court of II Additional District Judge – Appeal was allowed – Hence, this second appeal – Held, party who is not aware of a document, cannot be expected to have knowledge of same from date of execution – It is only when he becomes aware of document that he can be expected to take steps – Therefore, plea of appellants that they came to know about Ex.B.1 when encumbrance certificate, marked as Ex.A.11, was obtained, needs to be taken into account – If period of limitation is calculated from that date, suit is filed within limitation – Though this question answered in favour of appellants, no relief is granted to them – Appeal is Dismissed

Judgment :

1. The appellants in the second appeal are the plaintiffs in O.S.No.308 of 1982 on the file of the III Additional District Munsif, Kadapa. One Malla Reddy, who figured as the 1st plaintiff in the suit, is the father of appellants 2 to 4 herein. Appellants 5 and 6 are other members of the joint family, headed by Malla Reddy. Respondent No.2 is the brother of the 1st respondent, and they are said to be moneylenders. The 3rd respondent is said to be a regular borrower from them. The suit was filed with a prayer to cancel the sale deed, dated 07.06.1969, and to declare that the appellants are the owners of the property. The relief in the form of perpetual injunction was also claimed. The case was that the suit schedule property of about Acs.14.00, was purchased by the appellants from one Mr.Boomi Reddy Nagi Reddy, through a sale deed, dated 28.08.1961. It was alleged that the 2nd plaintiff obtained non-encumbrance certificate for the land to obtain loan in the year 1982 by mortgaging the property, and it was mentioned in the certificate that the suit schedule property was sold by Malla Reddy on 07.06.1969, (Ex.A.12) in favour of respondents 1 and 2, for consideration.

2. The suit was opposed by the respondents. They pleaded that Malla Reddy, being the Karta of the family, sold the land through Ex.A.12 and the suit was filed with a view to commit fraud on the respondents. They pleaded that the suit is barred by limitation and is defective for mis-joinder or non-joinder of proper parties. Through its judgment, dated 10.06.1987, the trial Court decreed the suit. The respondents filed A.S.No.130 of 1987 in the Court of II Additional District Judge, Kadapa. The appeal was allowed on 16.04.1992. Hence, this second appeal.

3. Sri M.Surender Rao, learned counsel for the appellants, submits that the property was held by the joint family and at no point of time either Malla Reddy or the appellants herein have executed sale deeds in favour of respondents 1 and 2. He contends that the trial Court recorded a clear finding to the effect that Ex.A.12, equivalent to Ex.B.1 was not executed by Malla Reddy at all and that the lower Appellate Court committed error in reversing the judgment and decree passed by the trial Court. He submits that the lower appellate Court was mostly impressed by the question of limitation, and in a matter of this nature, it is the knowledge of the disputed sale deed, and not the date of execution, that becomes relevant. Learned counsel also submits that once the appellants, and in particular Malla Reddy-deceased 1st plaintiff denied the execution of Ex.A.12/B.1, burden rested upon respondents 1 and 2 to prove the execution thereof and they utterly failed in this regard. Other grounds are also urged by the learned counsel.

4. Sri Rajasekhar, learned counsel for the respondents, on the other hand, submits that except stating that Malla Reddy did not execute the sale deed, the appellants did not adduce any evidence to substantiate their contention. He contends that no efforts were made to secure the undisputed signatures or thumb impressions of Malla Reddy for comparison, with those pertaining to Ex.A.12. Learned counsel further submits that the evidence on record clearly disclosed that the property was being enjoined, since the date of Ex.A.12 by the respondents 1 and 2 and it has been leased in favour of the 3rd respondent for quite some time. He contends that the suit was hopelessly barred by limitation and it was purely speculative in nature.

5. The principal relief claimed in the suit was the one, for cancellation of Ex.A.12. Though the relief of declaration of title was also claimed, it was purely dependent upon the truth or otherwise of Ex.A.12. If Ex.A.12 were to have been cancelled, the title would automatically have reverted to the appellants. On the other hand, if Ex.A.12 is not cancelled, there is no question of declaring title in the appellants. The relief of perpetual injunction was almost conseque





















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