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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M.VENKATA RAMANA, J.
Kandhumarthi Ratnam, W/o. Brahmanandam & Ors. – Appellants
Versus
Karri Veerraju, S/o. Gavraiah Mason Bapuji Nagar Jagannadhapuram Kakinada & Ors. – Respondents
Second Appeal No. 1053 of 2004
Decided on : 29-11-2021
Article 148 of the Limitation Act, 1908 - Article 148,61(b) and 132 - Transfer of Property Act, 1882, - Section 58(d) - Evidence Act – Section 92 – Land - Suit for redemption - Respondents as plaintiffs laid suit for redemption relating to an alleged usufructuary mortgage and to direct original defendant to deliver vacant possession of plaint schedule land - Plaint schedule describes land in question within the boundaries mentioned therein - It shall be referred to hereinafter as, ‘the suit land’ for convenience – One and his wife are the parents of respondent - Suit land belonged to said one - He died - Upon his death, it devolved upon said wife and both respondents – Said wife died and therefore, both the respondents became its absolute owners upon succession - Whether Section-92 of Evidence Act applies in this case to lead evidence with regard to facts.
Finding of the court:
When there are consistent findings concurrently arrived at by both Courts below in context of appreciation of material and evidence, this Court sitting in second appeal cannot lightly interfere -This instance did not present being a substantial question of law since application of Section 92 of the Indian Evidence Act is in right perspective by both the Courts- Thus, this question is also held against appellants and in favour of respondents - This Court is satisfied that there are no such questions much less substantial questions of law in terms of Section 100 CPC to consider and determine -Both the Courts below rightly came to conclusion to uphold claim of respondents, with which no interference is warranted in this second appeal.
Result: Appeal dismissed.
JUDGMENT :
The defendants are the appellants.
2. The respondents as the plaintiffs laid the suit for redemption relating to an alleged usufructuary mortgage and to direct the original defendant Sri Botta Nookayya to deliver vacant possession of the plaint schedule land.
3. The plaint schedule describes the land in question being of Ac.1-00 in S.No.89/2, patta No.227 in Rekhavanipalem, Tuni Mandal of East Godavari District within the boundaries mentioned therein. It shall be referred to hereinafter as, ‘the suit land’ for convenience.
4. Sri Gavarayya and his wife Smt. Seethayamma are the parents of the respondents. The suit land belonged to Sri Gavarayya. He died in the year 1965. Upon his death, it devolved upon Smt. Seethayamma and both the respondents. Smt.Seethayamma died in the year 1969 and therefore, both the respondents became its absolute owners upon succession.
5. During her lifetime Smt.Seethayamma on her behalf and on behalf of the 1st respondent, who was then a minor, borrowed Rs.1,000/- from Sri Boddu Narasimha Murthy offering the suit land as the security and executed a registered simple mortgage deed in his favour dated 30.04.1966 agreeing to repay the same with interest at 8% p.a. within three years.
6. The deceased 1st defendant Sri Nookayya is cousin of Smt.Seethayamma.
7. The aforestated simple mortgage dated 30.04.1966 was assigned in favour of Sri Nookayya under a registered deed dated 16.03.1967.
8. It is the contention of the respondents that the deceased defendant Sri Nookayya was in possession and enjoyment of the suit land under a usufructuary mortgage, enjoying the profit therefrom towards interest on the principal amount of Rs.1,000/- and that when they demanded him to deliver this land to them, Sri Nookayya refused claiming that the respondent should pay certain amount under the promissory notes.
9. There was exchange of notices in between the respondents and Sri Nookayya prior to the institution of the suit.
10. The respondents further contended that Sri Nookayya insisted that the suit land be sold to him offering meagre price, which they did not agree and that he attempted to grab the suit land taking advantage of the discharged promissory notes. In those circumstances denying the alleged oral agreement for sale of the suit land in his favour by the respondents for Rs.22,000/- and further denying the connected transactions alleged, referring to their demand for delivery of possession of the suit land upon receiving the amount due under the mortgage, the respondent laid the suit.
11. Sri Nookayya as the sole defendant resisted the claim denying the alleged usufructuary mortgage and relationship between himself and respondents as mortgagee and mortgagors, contending that the suit land was agreed to be sold to him under an oral agreement for sale dated 22.12.1986, whereby Rs.11,600/- was received by the respondents towards part-payment of the sale consideration. Expressing his ready and willingness to pay balance amount of Rs.10,400/-, denying that the 1st respondent had discharged the amounts due to him under various promissory notes, Sri Nookayya asserted possession of the suit land in terms of Section 53-A of the Transfer of Property Act. He further contended that the promissory notes executed by the 1st respondent in his favour and in favour of his son Sri Botta Nageswara Rao though not enforceable being barred by time, they reflect part sale consideration paid under the above sale agreement. He also asserted that he had effected improvements to this land spending huge money.
12. Upon death of Sri Nookayya during trial, his Legal Representatives, who are the appellants in this second appeal, also contended that on 22.12.1986 the 1st respondent offered to bring the 2nd respondent to execute the sale deed in terms of oral agreement for sale, referring to various amounts allegedly borrowed by him on different
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