APHC010006612024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3397] TUESDAY,THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 13/2024 Between: Modugumudi Masthan ...APPELLANT AND Ankem Naga Amala Swamy Died and Others ...RESPONDENT(S) Counsel for the Appellant: 1. V V L N SARMA Counsel for the Respondent(S): 1. NARASIMHA RAO GUDISEVA The Court made the following: HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO SECOND APPEAL No.13 of 2024 JUDGMENT: This second appeal is filed aggrieved against the Judgment and Decree dated 20.10.2023 in A.S.No.50 of 2023, on the file of the I Additional District Judge, Krishna, Machilipatnam, confirming the Judgment and Decree dated 10.04.2023 in O.S.No.308 of 2012, on the file of the Principal Senior Civil Judge, Machilipatnam. 2. The appellant herein is the defendant and the respondent herein is the plaintiff in O.S.No.308 of 2012, on the file of the Principal Senior Civil Judge, Machilipatnam. 3. The plaintiff initiated action in O.S.No.308 of 2012, on the file of the Principal Senior Civil Judge, Machilipatnam, with a prayer for declaration that the plaintiff is the absolute owner of the plaint schedule property and for recovery of possession of the plaint schedule property after ejecting the defendant there from and put the plaintiff in vacant possession thereon. 4. The learned Principal Senior Civil Judge, Machilipatnam, decreed the suit with costs. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed the aforesaid appeal before the first appellate Court. The learned I Additional District Judge, Krishna, Machilipatnam, dismissed the first appeal without costs by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.308 of 2012, is as follows: One Modugumudi Subba Nagulu executed a Will dated 02.02.1984, bequeathing the suit property to the father of the defendant herein. In turn, the father of the defendant executed a gift deed in favour of the defendant on 15.03.2001. Later, the defendant constructed an RCC roofed building, which is the suit schedule property herein. In order to have a permanent residence at Pedana, the plaintiff purchased the suit property under a registered sale deed dated 01.05.2008, for a valuable consideration of Rs.4,31,000/- from the defendant herein, and thus, the plaintiff became the absolute owner of the suit schedule property. After the purchase of the suit schedule property, the plaintiff has been paying tax to the Pedana Municipality and thereby has been in possession and enjoyment of the suit property. Thereafter, the plaintiff has been bedridden since 2009 due to paralysis. The plaintiff further pleaded that while so, the defendant approached the plaintiff and requested him to give the suit schedule property on lease for a monthly rent of Rs. 1,500/-, and the plaintiff accepted the same. The plaintiff further pleaded that, taking advantage of his close acquaintance with the plaintiff, the defendant committed default in payment of rent from February 2011 onwards. In view of his paralysis, the plaintiff was advised to live at Pedana for proper medical aid, and under those circumstances, the plaintiff requested the defendant, through his father-in-law/Sonti Rama Krishna Prasad, to vacate the suit property, but the defendant failed to do so. Thereafter, on 07.04.2012, the plaintiff issued a registered notice to the defendant demanding him to vacate the suit property, for which the defendant gave a reply notice with false allegations and denied the plaintiff‟s title to the suit property. As such, the plaintiff was constrained to file the present suit. 7. The defendant filed written statement denying the contents of plaint averments and further contended as follows: The defendant admitted that the plaintiff was bedridden in the year 2009 due to paralysis, and after receipt of the legal notice from the plaintiff, the defendant approached one advocate by name Sri G. J. Victor and showed the notice, whereupon he was informed that a suitable reply notice would be issued setting out the true facts. The defendant pleaded that, as he was in dire need of money, the plaintiff readily agreed to lend an amount of Rs. 1,00,000/- on mortgaging the suit property. Taking advantage of his illiteracy, the plaintiff cleverly managed the document writer and fabricated the sale deed as if the defendant executing the same in favour of the plaintiff. The defendant further pleaded that he paid monthly interest till February 2011 @ 36% per annum to the father-in-law of the plaintiff, and in the month of March 2011, the defendant paid an amount of Rs. 50,000/- towards part payment. He further pleaded that no possession was handed over by the defendant at the time of the alleged sale, that the plaintiff was never in possession of the suit property, and that there is no cause of action for the suit. Hence, the suit is liable to be dismissed. 8. On the basis of above pleadings, the learned Principal Senior Civil Judge, Machilipatnam, framed the following issues for trial: 1) Whether the plaintiff obtained a sale deed from the defendant in respect of the plaint schedule property by representing that the defendant was executing a mortgage deed for Rs.1,00,000/- ? 2) Whether the plaintiff never had possession of the schedule property in pursuance of sale deed dated 01.05.2008 bearing document No.884/2008? 3) Whether the plaintiff is an absolute owner of the plaint schedule property? 4) Whether the plaintiff is entitled for possession of the plaint schedule property? 5) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A-1 and A-20 were marked. On behalf of the defendant, D.Ws.1 and 2 were examined and no documents were marked. 10. The learned Principal Senior Civil Judge, Machilipatnam, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.50 of 2023, on the file of the I Additional District Judge, Krishna, Machilipatnam, wherein, the following points came up for consideration. 1) Whether the plaintiff is the absolute owner of the suit property? 2) Whether the suit property is to be delivered to the plaintiff from the defendant? 3) Whether the Judgment of the trial Court suffers from any irregularity or illegality? 4) If so, whether the interference of this Appellate Court is required to meet the ends of justice? 5) To what point? 11. The learned I Additional District Judge, Krishna, Machilipatnam, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiff/respondent and dismissed the appeal filed by the defendant without costs. Felt aggrieved of the same, the unsuccessful defendant in O.S.No.308 of 2012 filed the present second appeal before this Court. 12. Heard Sri V.V.L.N. Sarma, learned counsel for the appellant/ defendant and Sri Narasimha Rao Gudiseva, learned counsel for the respondent/pliantiff. 13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of CPC could be admitted only when the appellant satisfies this Court that the substantial question of law between the parties arise in this case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In a case of Boodireddy Chandraiah v. Arigela Laxmi1, the Apex Court held that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact namely, the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising a substantial question of law. 14. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law. 1 (2007) 8 SCC 155 15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellant has shown any substantial question of law. The contention of the appellant is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by both the Courts below i.e. the trial Court and the first appellate Court. 16. The undisputed facts are that one Modugumudi Subba Nagulu executed a Will dated 02.02.1984, bequeathing the suit property, a vacant site, to the father of the defendant herein. In turn, the father of the defendant executed a gift deed in favour of the defendant on 15.03.2001. Thereafter, the defendant constructed an RCC roofed building, which is the suit schedule property herein. The plaintiff purchased the suit schedule property under a registered sale deed dated 01.05.2008, for a valuable consideration of Rs.4,38,000/- from the defendant, and thus became the absolute owner of the suit schedule property. It is also an undisputed fact that the plaintiff has been suffering from paralysis since 2009 onwards. 17. It is the specific case of the plaintiff that he purchased the plaint schedule property under Ex.A-1 registered sale deed dated 01.05.2008 from the defendant. Since the plaintiff has been bedridden since 2009 due to paralysis, the defendant approached the plaintiff and requested him to give the suit schedule property on lease for a monthly rent of Rs.1,500/-, and the plaintiff also accepted the same. The plaintiff further pleaded that, taking advantage of his close acquaintance with the plaintiff, the defendant committed default in payment of rent from February 2011 onwards. 18. It is the specific case of the defendant that, since the defendant was in dire need of money, the plaintiff readily accepted to lend the amount of Rs.1,00,000/- on mortgaging the suit property. Taking advantage of the illiteracy, the plaintiff cleverly managed the document writer and got fabricated the sale deed as if the defendant was executing the sale deed in favour of the plaintiff. It shows that the defendant executed a registered document under Ex.A-1, but his defence is that the plaintiff had managed the document writer and drafted a sale deed instead of a mortgage deed. The defendant has taken another defence before the institution of the suit in Ex.A-16 reply notice. Ex.A-13 shows that the plaintiff had issued a legal notice on 07.04.2012, and in that notice the plaintiff claimed ownership over the suit property by virtue of the registered sale deed under Ex.A-1 and further demanded the defendant to vacate the suit property. Ex.A-16 reply notice said to have been received by the defendant through his advocate and in Ex.A-16 reply notice, the defendant pleaded that “when the plaintiff was in need of money, he approached the defendant with a request to execute a sale deed in respect of the suit schedule property house in his favour, enabling him to manage the suit schedule property in favour of the third parties to get loan, believing the same, the defendant executed a registered sale deed as in Ex.A-1 in favour of the plaintiff, but possession was not delivered”. During the pendency of the suit, he contended in the written statement that he approached one Advocate and the reply notice was issued by some other advocate, and the defendant does not know who invented the story in a reply notice. But, no steps has been taken by the defendant to summon the said advocate to prove that he did not issued any instructions to the said advocate to issue a reply notice. It shows that the defendant had suppressed the true facts and had taken two defences, one in the Ex.A-16 reply notice and another in the written statement. 19. To prove the Ex.A-1 sale deed, the plaintiff produced the original link documents, Will and the registered gift deed, which were marked as Ex.A-2 and Ex.A-3 respectively. Learned counsel for the appellant would contend that the original plaintiff did not enter into the witness box and that an adverse inference may be drawn against the plaintiff. It is well settled that “it is not always necessary to draw such adverse inference disentitling the plaintiff of his claim; it always depends upon the facts and circumstances of each case”. It is the admitted case of the defendant that the plaintiff is suffering from Paralysis since 2009 and the suit is filed by the plaintiff in the year 2012, therefore, the wife of the original plaintiff entered into the witness box and given her evidence as P.W.1. She also produced Ex.A-17 medical certificate issued by the City Neuro Center, Vijayawada. P.W.1 also deposed that her husband been suffering from Paralysis since 2009, and the right side part whole body of her husband was totally paralyzed and he was completely bedridden. In order to prove the same, she also produced Ex.A-17 medical certificate said to have been issued by the City Neuro Center, Vijayawada. Section 120 of the Indian Evidence Act enables P.W.1 to give her evidence on behalf of the plaintiff. Therefore, there is no subsistence in the contention of the appellant/defendant that P.W.1 is not competent to depose her evidence on behalf of the plaintiff. 20. To prove Ex.A-1 sale deed, the plaintiff got examined one of the attestors to Ex.A-1 sale deed as P.W.4. When the original registered sale deed was confronted to P.W.4, he admitted the signature on Ex.A-1 as the 1st attestor. In the sale deed, he was examined as P.W.4 before the Advocate Commissioner and his evidence goes to show that he is one of the attestor in the sale deed, but he has not stated about the contents of Ex.A-1 sale deed. Moreover, the registered sale deed is signed by the defendant and his photograph is also there on Form-32(A) of the Registration Act, and the same is admitted by the defendant. Moreover, the execution of the registered sale deed is admitted by the defendant in the Ex.A-16 reply notice, but, his contention is that it is a nominal sale deed. In the written statement itself, the defendant had taken a different plead that, due to family necessities, he borrowed Rs.1,00,000/- and he executed a mortgage deed in favour of the plaintiff, not a sale deed, but the plaintiff managed the document writer and got prepared a sale deed. In order to prove the same, the defendant did not venture to examine another attestor or scribe of Ex.A-1 registered sale deed. 21. Ex.A-1 registered sale deed proves that the plaintiff purchased the suit schedule property house on 01.05.2008, under registered sale deed, and possession was also delivered as on the date of sale deed and to recognize his possession in the plaint schedule property, he relied on the property-tax receipts under Ex.A-5 and Ex.A-6 and also paid water tax for the plaint schedule property house under Ex.A-7. It is the specific case of the plaintiff that the defendant requested the plaintiff to let out the suit schedule property house for a monthly rent of Rs.1,500/-, after execution of the registered sale deed, the plaintiff accepted the same and the defendant is staying in the plaint schedule property house as tenant and later the defendant committed default in payment of the rents from February, 2011 onwards. The plaintiff proved Ex.A-1 registered sale deed. To disprove the same, the appellant did not venture to produce any rebuttal evidence to show that the Ex.A-1 is not a registered sale deed, it is a nominal sale deed or it is a mortgage deed. It is also one of the strong circumstances to believe Ex.A-1 sale deed is that on the date of the registered sale deed, the original link documents are also handed over to the plaintiff by the defendant. 22. Learned counsel for the appellant has placed reliance on Samiullah Vs. State of Bihar and Ors.2, wherein the Apex Court held as follows: “The Registration Act mandates registration of documents, not the title and this distinction is the fundamental character of out country’s presumptive titling system through registration. Thus, registration of a document recording purchase of immovable property does not confer guaranteed title ownership, instead it only serves as a public record of the transaction having presumptive evident value, but it is never a conclusive proof of ownership.” 2 2025 LawSuit(SC) 1460 In the case on hand, it is not the case of the appellant that he is not having a valid title in the suit schedule property. As seen from Ex.A-1 to Ex.A-3, by virtue of a Will executed in favour of the father of the plaintiff, the father of the plaintiff was having title in the plaint schedule property vacant site and the father of the plaintiff executed a registered gift settlement deed in favour of the vendor of the plaintiff and thereafter, the vendor of the plaintiff got constructed a terraced building in the plaint schedule property vacant site and later, he sold the plaint schedule property to the plaintiff under a registered sale deed under Ex.A-1. 23. Learned counsel for the appellant has placed reliance on State of Orissa (complainant) Appellants Vs. Khetra Mohan Singh (accused) Respondent3. The facts in the aforesaid case law are that “there was a charge of having committed criminal breach of trust in respect of Rs.700/- against the Bill Clerk in a Government Department”. Therefore, the facts and circumstances in the aforesaid case are different to the instant case. 24. Learned counsel for the appellant has placed reliance on Boei Rama Devi Vs. Suggu Ammaji @ Suggu Ammojamma4. The ratio laid down in the aforesaid case law relates to the suit for bare injunction, but not a suit for declaration of title and possession. 3 AIR 1965 ORISSA 126 4 2023 (1) ALT 490 (S.B.) 25. Learned counsel for the appellant has placed a judgment of the Division Bench of the Composite High Court of Andhra Pradesh in Duggandla Rami Reddy (died) per LRs. Vs. Tirumala Tirupathi Devasthanams, Tirupathi, Chittoor District and another5. The facts in the aforesaid case law are different to the instant case. 26. Learned counsel for the appellant has placed a judgment of the Oudh High Court in Lachmi Narain Vs. Lachmi Narain and Anr.6, wherein it held as follows: “In a suit for ejectment, it is upon plaintiff to make out his title by definite evidence which to not open to any reasonable doubt. He cannot succeed merely by showing a semblance of title or by adducing evidence which would support the case only so fas as to establish it to some slight degree of probability. He cannot rely on the weakness of the defendant’s title, but must succeed on the strength of his own.” 27. Learned counsel for the appellant has placed a judgment in Union of India and Others Vs. Vasavi Cooperative Housing Society Limited and Others7, wherein the Apex Court held as follows: “17. This Court in Maran Mar Basselios Catholicos v. Thukalan Paulo Avira reported in AIR1959 SC 31 observed that “in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title.” 18. In Nagar Palika, Jind v. Jagat Singh, Advocate (1995) 3 SCC 426, this Court held as under: 5 2013 (1) ALD 521 (DB) 6 AIR 1948 OUDH 139 7 (2014) 2 Supreme Court Cases 269 “the onus to prove title to the property in question was on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit.” 19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.” 28. Learned counsel for the appellant has placed a judgment of the Composite High Court Andhra Pradesh in Dastagir Ahmed Vs. Khairunnisa Rahana and others8, wherein it held as follows: “22. It hardly needs any mention that the relief of declaration of title and recovery of possession needs a strong foundation. The plaintiff in such a suit must not only prove his case as required under law, but also establish his bona fides. Any factors that create doubt, or the inconsistency in tha case if the plaintiff would reflect upon the truthfulness of the plea and would enable the Court to reject the relief.” 29. Learned counsel for the appellant has placed a judgment of the Composite High Court Andhra Pradesh in Sajana Granites, Madras and another Vs. Manduva Srinivasa Rao and others9, wherein it held as follows: “10. The Supreme Court in M.P. Athanastus case (supra), M.M. Catholices v. Polo Avira case (supra) and this Court in C. Audilakshmamma case (supra) held that plaintiff in a suit for declaration of title, and for recovery of possession, can succeed only on the strength of his own title and that it is not obligatory on the defendants to plead and prove the possible defects in the plaintiffs title and so if the plaintiff fails to 8 2012 (3) ALD 13 9 2002 (1) ALT 466 (D.B.) establish his title, even if the defendant fails to establish his own title, plaintiff must be non suited. In this case since appellants are seeking declaration of their title to the suit property they have to establish their title; and cannot expect relief on the basis of the weakness of the case of respondents 1 and 2, or on the basis that the evidence adduced by respondents 1 and 2 does not establish their title to the suit property”.. In the case at hand, as stated supra, Ex.A-1 registered sale deed is proved. The contention of the appellant in Ex.A-16 reply notice is that, it is a nominal sale deed. Another contention taken by the appellant is that the plaintiff by managing the document writer got prepared a sale deed instead of a mortgage deed. In order to prove the same, the appellant did not take any steps to prove it is a nominal sale deed or a mortgage deed. He did not take any steps to summon the scribe or any attestor of the sale deed. Therefore, the plaintiff is having a valid title under Ex.A-1 original registered sale deed in respect of the plaint schedule property. Admittedly, Ex.A-1 registered sale deed is not legally cancelled. Unless and until, the said registered sale deed is legally cancelled, the plaintiff is entitled for possession of the plaint schedule property. 30. Section 54 of the Transfer of Property Act, provides as under: “54. “Sale” defined.—“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.” The definition of „Sale‟ indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which were possessed by the transferor to the transferee. 31. In the case at hand, the plaintiff has proved the registered sale deed said to have been executed by the defendant in favour of the plaintiff. As long as the plaintiff is having a valid title, he is entitled for possession of the plaint schedule property. As stated supra, admittedly, the defendant was the original owner of the suit schedule property vacant site, by virtue of the gift settlement deed said to have been executed by his father. Thereafter, he constructed a terraced building therein and later, the defendant sold away the plaint schedule house property to the plaintiff under Ex.A-1 registered sale deed dated 01.05.2008, by receiving sale consideration of Rs.4,31,000/-, from the plaintiff and the name of the plaintiff is also mutated in the municipal records. There was an exchange of notices, three (03) months prior to the institution of the suit in between both the parties. In case, if really the plaintiff played any fraud in obtaining Ex.A-1, the appellant will not keep quiet, he will initiate legal proceedings against the plaintiff, but, he remained silent which shows that after receiving the entire sale consideration, the appellant executed Ex.A-1 registered sale deed. To defeat the rights of the plaintiff, the appellant created a new story in the written statement which is contrary to the defence taken by the appellant in Ex.A-16 reply notice. It is well settled that “the person who pleaded a fraud has to be proved the alleged fraud by producing cogent evidence”, but, the appellant has failed to prove the same. 32. For the aforesaid reasons, I am of the considered view that the plaintiff is having a valid right and title in the plaint schedule property. Since, he is having a valid right and title in the plaint schedule property; certainly, he is entitled to the relief of recovery of possession of the plaint schedule property. 33. On appreciation of the entire evidence on record, the learned trial Judge as well as the learned first appellate Judge arrived at concurrent finding that the plaintiff is entitled to the relief of declaration that he is the absolute owner of the plaint schedule property and also entitled for possession of plaint schedule property. Learned counsel for the appellant would contend that both the Courts erred in decreeing the suit without deciding proper issue regarding the illiteracy of the defendant and also playing fraud by the plaintiff in the manner of execution of Ex.A-1 and thereupon, both the Courts came to a wrong conclusion and decreed the suit. The law is well settled that “the entire burden is on the person to prove who alleged fraud, coercion and undue influence. But, admittedly, the appellant/defendant failed to prove the same. 34. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the plaintiff and against the defendant do not brook interference and that both the Courts below are justified in dismissing the suit of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 35. Viewed thus, this Court finds that none of the questions raised are substantial questions and there is no subsistence in the questions raised and that therefore, the second appeal is devoid of merits and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki10. In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of Civil Procedure Code. 36. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below. Pending applications, if any, shall stand closed. No costs. __________________________ V. GOPALA KRISHNA RAO, J. Date: 18.11.2025 SRT 10 AIR 2006 SC 1975