APHC010533482024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3206] TUESDAY,THE TWENTY EIGHTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO SECOND APPEAL NO:760/2024 Between: Gopisetti Peda Venkaiah and Others ...APPELLANT(S) AND Nunna Sambrajyam and Others ...RESPONDENT(S) Counsel for the Appellant(S): 1. MOHAMMED GAYASUDDIN Counsel for the Respondent(S): 1. NIMMAGADDA REVATHI 2. The Court made the following Judgment: The respondents herein, had filed O.S.No.303 of 2005, for declaration of title over the suit schedule property consisting of Ac.0.65 cents of land in Sy.No.244-3 of Kattempudi Gram Panchayat, Ponnuru Mandal, Guntur District and for a consequential recovery of possession of the property from the appellants herein. The said suit, bearing O.S.No.303 of 2005, filed before the learned Principal Junior Civil Judge, Ponnuru, was dismissed on 07.02.2014. Aggrieved by the said order of dismissal, the respondents moved the learned 2 RRR, J S.A.No.760 of 2024 VI Additional District Judge (Fast Track Court), Bapatla, by way of A.S.No.27 of 2014, which came to be allowed on 16.07.2024. 2. Aggrieved by the said judgment, the appellants have moved this Court, by way of the present Second Appeal. 3. The admitted facts of the case are that: (i). Sri Nunna Koteswara Rao, was the owner of the suit schedule property and that the 1st appellant herein, who was closely related to Sri Nunna Koteswara Rao, was in possession of the property and had been cultivating the land. Sri Nunna Koteswara Rao, passed away, in the year, 1995. Thereafter, the respondents moved the learned Principal Junior Civil Judge, Ponnuru, in 2005, after the 1st appellant had executed a deed of gift in favour of appellants 2 to 4, dated 16.09.2004. (ii). The case of the respondents was that, late Sri Nunna Koteswara Rao, had been allotted the suit schedule property in the family partition between the family members of Sri Nunna Koteswara Rao. Subsequently, Sri Nunna Koteswara Rao had leased out the suit schedule property to the 1st respondent, who cultivated the suit schedule property as the tenant of late Sri Nunna Koteswara Rao. Later, after the demise of Sri Nunna Koteswara Rao, in 1995, the 1st respondent, continued to cultivate the land. However, the respondents sought to obtain possession of the land as the 1st appellant had executed a deed of gift in favour of the appellants 2 to 4. The respondents also contended that they had also issued a legal notice to the 1st respondent, 3 RRR, J S.A.No.760 of 2024 calling upon him to hand over the land, which was refuted by the 1st respondent in his reply notice. (iii). The respondents contended that the 1st respondent was the wife of late Sri Nunna Koteswara Rao and the respondents 2 to 4 were the children of late Sri Nunna Koteswara Rao and the 1st respondent, who had inherited the property, after the demise of late Sri Nunna Koteswara Rao. (iv). The appellants resisted the suit, contending that, Sri Nunna Koteswara Rao, on account of the close relationship between Sri Nunna Koteswara Rao and the 1st appellant had sold the suit schedule property for a sum of Rs.95/- to the 1st appellant, in the year 1974, by way of an oral sale. The appellants contended that no deed of sale was required to be put in writing or registered as the valuation of the sale was less than Rs.100/- and the proviso of Section 54 of the Transfer of Property Act, 1882, would not be applicable. Though, there is no pleading regarding any dispute about the relationship between Sri Nunna Koteswara Rao and the respondents, it appears that, during the course of examination of the 1st respondent, as P.W.1, certain suggestions were made to her, to the effect that, she had married Sri Nunna Koteswara Rao, even during the subsistence of his first marriage and consequently, her marriage is null and void and the respondents 2 to 4 are illegitimate children. It also appears that the 1st respondent, as P.W.1, had admitted to the same. 4 RRR, J S.A.No.760 of 2024 (v). The appellants also contended that, on account of the sale executed in favour of the 1st appellant, the possession over the said land was by way of an assertion of title, which would give rise to a claim of adverse possession of the 1st appellant. 4. The Trial Court, had held that the respondents had not demonstrated their title over the land and that the version of the appellants that, there was an oral sale of the suit schedule property, in the year, 1974 was believable. On this basis, the Trial Court dismissed the suit of the respondents. 5. The Appellate Court, disbelieved the version of the appellants that, there was an oral sale. The reason for such a finding was that the land value in the area was around Rs.6,000/- per acre, even prior to the alleged sale and the question of Ac.65 cents of land being sold for Rs.95/- was not believable. The Appellate Court also noted that, the allegation of the oral sale was not raised either in the reply notice given to the notice issued by the respondents and also in the deed of gift executed in September, 2004, in favour of appellants 2 to 4. Having disbelieved the plea of oral sale, the Appellate Court, also rejected the contention of the appellants that they would also have a claim over the land by virtue of adverse possession. The Appellate Court, took the view that such claim of adverse possession runs contrary to the claim of permissive possession and tracing of title to Sri Nunna Koteswara Rao. 5 RRR, J S.A.No.760 of 2024 6. Sri Mohammed Gayasuddin, learned counsel appearing for the appellants, assails the said judgment of the Appellate Court on the following grounds: (i). The Appellate Court, had misdirected itself in accepting the claim of the respondents to be the legal heirs of Sri Nunna Koteswara Rao. Once, there is an admission of illegal marriage, neither the 1st respondent as illegitimate wife nor the respondents 2 to 4, as illegitimate children, would be entitled to a share of property of Sri Nunna Koteswara Rao. (ii). The Appellate Court, had heard the matter and reserved it on 11.10.2023, whereas the judgment was finally pronounced only, on 16.07.2024 and the enormous delay in delivery of this judgment, without any further hearing, is contrary and violative of Order 20 of C.P.C. and consequently, the judgment would have to be set aside and the matter would have to be remanded to the Appellate Court. The judgment of the Hon’ble Supreme Court in the case of State through Inspector of Police, C.B.I., Chennai Vs. Naresh Prasad Agarwal & Another1 is relied upon for this purpose. The judgment of the Hon’ble Supreme Court in the case of State through The Inspector of Police, C.B.I., A.C.B., Chennai Vs. S. Murali Mohan & Another, dated 01.10.2024, in Criminal Appeal No.4166 of 2024 is also relied upon. (iii). The Appellate Court, could not have rejected the claim of the appellants, that the suit schedule property had been purchased for Rs.95/-, on 1 2024 INSC 120 6 RRR, J S.A.No.760 of 2024 the ground that, the valuation of a sale is the prerogative of the parties and such sales cannot be set aside merely on the basis of the Appellate Court. Reliance is placed upon a judgment of the High Court of Bombay in the case of Dashrath Narayan Shinde Vs. Laxman Gangaram Ghag, decided on 29.01.2010. The Appellate Court, ought to have appreciated that the enormous delay of filing of the suit, in 2005, after the demise of late Sri Nunna Koteswara Rao, in the year 1995, amounts to estoppel and a suit for recovery of possession and declaration could not have been filed. (iv). The Appellate Court, ought to have considered the fact that, the respondents had not produced any succession certificate before the Trial Court or the Appellate Court to raise a claim of the succession over the suit schedule property. 7. Smt. Nimmagadda Revathi, learned counsel appearing for the respondents, on the other hand, contends that: (i). The Appellate Court, after reserving the judgment. on 11.10.2023, had reopened the case and one of the dates on which such reopening had occurred and was finally heard, was on 19.06.2024, and consequently, the contentions raised, on this aspect, by the learned counsel for the appellants does not survive. (ii). The 1st respondent, did not admit any illegality of marriage and had only stated that, the 1st wife of Sri Nunna Koteswara Rao, had passed away more than 35 years ago and that, she has married subsequently. She 7 RRR, J S.A.No.760 of 2024 had also deposed that Sri Nunna Koteswara Rao, did not have any children from the 1st wife. (iii). The valuation of the suit schedule property @ Rs.6,000/- per acre was arrived at by the Appellate Court on the basis of Ex.A.2, which is the certified copy of the sale deed, dated 17.02.1970, of the same period, which was prior to the late transaction of 1974, wherein the valuation of neighboring piece of land was fixed at Rs.7,000/- per acre. 8. The scope of a Second Appeal under Section 100 of C.P.C. is restricted to look into a question of whether a subsequent question of law arises. In this case, while it is true that untenable facts and extreme conclusions of facts would amount to questions of law by themselves, it would have to be seen whether any such inference can be drawn in the present case. 9. The Trial Court arrived at a finding that the respondents had not made out their case before the Trial Court as to the title over the land. The Trial Court, also accepted the plea of oral sale, on the basis of the statements made before the Trial Court. It is clear that the Trial Court did not go into the valuation of the land or the question of whether the respondents were required to demonstrate or prove title to the land. 10. In the present case, the respondents had asserted that the land belonged to Sri Nunna Koteswara Rao, and had inherited the property, by virtue of being his wife and children. In the written statement, this contention has not been disputed or denied. In the absence of any such denial, the 8 RRR, J S.A.No.760 of 2024 question of demonstrating their title may not arise. The defense of the appellants, in the written statement, was that there was an oral sale between Sri Nunna Koteswara Rao and the 1st appellant. It is settled law that, a person, who pleads the fact would have to prove the said fact. In the present case, the burden of proving the oral sale was on the appellants. They sought to discharge this burden by producing certain witnesses, who were said to have been present at the time of oral sale. 11. It may also be noted that, the Trial Court did not go into the question of whether the respondents were entitled to inherit the property of Sri Nunna Koteswara Rao, or not. Apparently, this question was raised more at the First Appeal stage rather than at the stage of Trial Court. Be that as it may, the Appellate Court, while considering the contention of the appellants that there was no valid marriage between the 1st respondent and Sri Nunna Koteswara Rao and that the respondents 2 to 4 were illegitimate children of Sri Nunna Koteswara Rao, had held that, even in such circumstances, and in the absence of any other children born to Sri Nunna Koteswara Rao, through his wife, the respondents would stand to inherit. 12. On the question of oral sale, it is clear that the Trial Court did not go into the question of valuation of the land, in terms of Ex.A.2, except referring to Ex.A.2 in paragraph – 14 of the judgment of the Trial Court. 13. The appellants had relied upon the judgment of the Hon’ble High Court of Bombay in the case of Dashrath Narayan Shinde Vs. Laxman Gangaram 9 RRR, J S.A.No.760 of 2024 Ghag, which had held that, valuation of property, in cases of sale, should be left to the parties involved in the said sale and no conclusions can be drawn merely, on the ground that, the property was undervalued for the purpose of getting out of all the provisions of Section 54 of the Transfer of Property Act, 1882. 14. With due respect, this judgment would at best be persuasive and not binding on by this Court. This Court is of the view, in the light of the value of the land, in that area, even in the year 1970, being Rs.7000/- per acre and in view of the fact that the plea of oral sale @ Rs.95/- having not been taken either in the reply notice or in the gift deed executed in September 2004, the question of undervaluation is definitely a question, which can be gone into.The enormous difference in value makes it apparent that this is a plea, which has been created solely for the purpose of creating a claim over the land. The said plea was rightly rejected by the Appellate Court. 15. The contention of the appellants that, there was an enormous delay of about eight months from the date of reserving the case to the date of delivery of the judgment would also have to be rejected in as much as the Appellate Court, had subsequently, reopened the case from time to time and had finally, reserved the case for judgment only in June, 2024 and had delivered the judgment within one month, thereafter. 16. The appellants had also contended that, the delay in filing the suit from the date of death of Sri Nunna Koteswara Rao, in the year, 1995, would 10 RRR, J S.A.No.760 of 2024 amount to estoppel. The statute of limitation permits the respondents to file a suit for recovery for declaration within 12 years from the date of cause of action arising. In the present case, the claim of the appellants that the cause of action arouse in the year, 1974, when the oral sale took place, cannot be accepted as the plea of oral sale itself is rejected. It is apparent that the cause of action arises only when the 1st appellant executed the deed of gift in favour of the appellants 2 to 4. 17. In the aforesaid circumstances, I do not find any reason to interfere with the order of the Appellate Court and accordingly, this Second Appeal is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed. ________________________ R. RAGHUNANDAN RAO, J Date: 28.01.2025 KPV/MJA 11 RRR, J S.A.No.760 of 2024 256 THE HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO SECOND APPEAL No.760 of 2024 28.01.2025 KPV/MJA