Judgment:
P.S. Narayana, J.
1. The unsuccessful plaintiff in O.S. No. 66 of 85 on the file of Subordinate Judge, Amalapuram, had preferred the present Appeal. The said suit was filed originally as O.S. No. 59 of 83 on the file of District Munsif, Amalapuram. The said suit O.S. No. 66 of 85 was tried along with O.S. No. 36 of 85 and the learned Subordinate Judge, Amalapuram, in the light of the respective pleadings of the parties, having settled the Issues, recorded the evidence of P.W.1 to P.W.5 and D.W.1 to D.W.5, marked Exs.A-1 and A-2 and Exs.B-1 to B-13 and ultimately came to the conclusion that the suit O.S. No. 36 of 85 filed for the relief of perpetual injunction to be decreed and accordingly decreed the same with costs and the suit O.S. No. 66 of 85 filed for the relief of declaration of title and recovery of possession to be dismissed and accordingly dismissed the same without costs with a further direction to recover the court fee from the plaintiff in the said suit. By virtue of the pecuniary jurisdiction, it is stated that the appellant herein preferred the Appeal A.S. No. 115 of 91 on the file of II Additional District Judge, Rajahmundry as against the decree for perpetual injunction made in O.S. No. 36 of 85 and the same was dismissed for non-prosecution. Being aggrieved of the dismissal of the suit O.S. No. 66 of 85, the unsuccessful plaintiff had preferred the present Appeal.
2. Contentions of Sri M.V. Suresh: Sri M.V.Suresh, the learned Counsel representing the appellant/plaintiff had taken this Court through the respective pleadings of the parties and the evidence available on record and would maintain that in the facts and circumstances of the case, the suit should have been decreed by the learned Subordinate Judge, Amalapuram and the dismissal of the suit or the findings recorded by the learned Judge while dismissing the said suit cannot be sustained. The learned Counsel also would maintain that the present suit being a comprehensive suit, the mere fact that the said appeal filed by the appellant A.S. No. 115 of 91 on the file of II Additional District Judge, Rajahmundry which was dismissed for non-prosecution would not alter the situation in any way and hence this matter to be decided on merits on appreciation of the evidence available on record. The Counsel also while further elaborating his submissions in all thoroughness had taken this Court through the oral and documentary evidence available on record and further made certain submissions that the plea taken is one of nominality, but however evidence had been adduced as though it is a benami transaction and even if it is to be taken that these expressions 'nominal transaction' and 'benami transaction' had been liberally understood by the parties, in the light of the clear evidence available on record relating to the sale transaction Ex.A-1 = Ex.B-6, especially in the absence of any suit filed by the 1st defendant praying for a declaratory relief that the document in question is nominal or otherwise or in the absence of any such suit being instituted by the original owner of the property on the strength of the title based on Ex.A-1 =Ex.B-6, the appellant/ plaintiff is bound to succeed. The learned Counsel also would maintain that certain of the facts are not in serious dispute at all. Ex.A-1 =Ex.B-6 sale deed is in the name of the appellant. The appellant in fact has been paying tax also and possession of this property had been with the appellant as on the date of filing of the suit for injunction and by virtue of the interim order only the 1st defendant entered into this property. The Counsel also pointed out that the evidence available on record is clear and categorical that consideration had been paid on behalf of P.W.1 or by P.W.1 only and this aspect also is further strengthened by the endorsement relied upon by the 1st defendant and Exs.B-8 and B-10 in particular. Further, the counsel pointed out certain of the admissions made by D.W.1 and explained how D.W.1 got custody of this document and hence the Counsel would maintain that in the light of the voluminous oral evidence available on record apart from the document placed before the Court, the evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5, the contra evidence adduced on behalf of the 1st defendant cannot be believed and hence the suit to be decreed as prayed for by allowing the Appeal. The learned Counsel placed strong reliance on several decisions to substantiate his submissions.
3. Contentions of Sri Addepalli Suryanarayana: Sri Addepalli Suryanarayana, the learned Counsel representing the respondents/defendants would that even the age given in the plaint to be taken or in the light of the evidence of P.W.1 there cannot be any doubt whatsoever that P.W.1 at the time of Ex.A-1=Ex.B-6 transaction was not a major. The learned Counsel also would further maintain that P.W.1 had not been consistent in her stand. She had been changing the stands and the earliest point of time in Exs.B-1 and B-2, had taken a stand that being the fostered daughter of Appalamma, Appalamma gifted the property in her favour. But however, subsequent thereto she had changed the version. Even relating to the payment of consideration, the case of the plaintiff/P.W.1 is not consistent. While further elaborating his submissions, the Counsel would maintain that even if the cause of action specified in para-7 of the plaint to be taken and carefully examined, the same is totally contrary to the evidence of P.W.1 and hence her case cannot be believed. The Counsel also would maintain that in the light of the admission made that even in the light of the date of death of the Appalamma, D.W.1 was in possession of the property and further in the light of Exs.B-1 and B-2 it can be taken that P.W.1 is not coming up with true version before the court. While further elaborating his submissions, the learned Counsel pointed out that when common judgment had been delivered and when the foundation and the respective pleadings of the parties are substantially the same, the non-prosecution of yet another Appeal would result in finality of the said decree and it may have to be taken that it may operate as res judicata. Even otherwise, in a suit of this nature, a suit for ejectment, the plaintiff is not expected to rely on the weakness of the defence. The mere fact that some plea of nominality had been taken and subsequent thereto some evidence had been let in regarding bona fide nature of the transaction, this would not seriously alter the situation. The vendor of the property in fact had supported the version of D.W.1. The very transaction Ex.A-1 = Ex.B-6, whether valid or not, this question also need not be seriously gone into especially in the light of the fact that the original owner of the property is not interested in challenging the same and in fact he had supported the version of D.W.1. Hence, in the light of the facts and circumstances, the mere fact that the plea of nominality had been discharged amply that may not seriously alter the situation and hence the findings are to be confirmed and the Appeal to be dismissed. The learned Counsel also relied upon certain decisions to substantiate his submissions.
4. Heard the Counsel on record, perused the oral and documentary evidence available on record and also the evidence recorded by the trial Court.
5. Before taking up further discussion on the Points which may arise for consideration in the present Appeal, it may be appropriate to have a look at the respective pleadings of the parties, the evidence available on record, the Issues settled in the suit, the evidence available on recode and the findings recorded by the trial Court in nutshell.
Pleadings of the parties:
6. For the purpose of convenience, the parties hereinafter would be referred to as 'plaintiff' and 'defendants' as shown in O.S. No. 66 of 85 aforesaid.
7. It is needless to say that the suit O.S. No. 66 of 85 was originally instituted as O.S. No. 59 of 83 on the file of District Munsif, Amalapuram and it appears the said suit was instituted as an indigent person. It was pleaded in the plaint as hereunder:
Plaintiff is the daughter of Koppadi Dhanalakshmi and foster daughter of Koppidi Appalamma. The said Koppadi Dhanalakshmi, Koppadi Appalamma, the 1st defendant and Lanke Veeramma respondents sisters and daughters of one Lanke China Sathiraju. Koppadi Appallamma was not having children and she brought up the plaintiff since her childhood. The foster mother of the plaintiff i.e., Appalamma, and the defendant were deserted by their husbands respectively and they came over to their father's house at Pora and used to live with him. The plaintiff's foster mother Appalamma used to trade in fish by attending shandies. The said Appalamma having taken the plaintiff as her foster daughter, got married the plaintiff to her brother Dorababu. The plaintiff and her foster mother Appalamma and her husband Dorababu used to carry fishing business by attending shandies and the plaintiff with her earnings and with the monetary help of her mother Appalamma purchased the plaint A Schedule properties and enjoying them. The mother of the plaintiff died and the plaintiff continued to live at her grandfather's house along with the 1st defendant. All the movables were also in the same house and taking advantage of the plaintiff's young age and close relationship, the 1st defendant took the custody of all the plaint schedule movables shown in B Schedule. Due to bad luck, the plaintiff's husband Dorababu died in the year 1976 leaving alone the plaintiff. The 1st defendant compelled the plaintiff to marry her another brother Lanke Pallayya who is more older in age and also an imbecile person with an ulterior motive to have control over the properties of the plaintiff and her person. The plaintiff in spite of her unwillingness and protest, could not succeed in resisting the pressure of the 1st defendant to the said marriage. The plaintiff was always unwilling to live along with Pallayya, the second husband. Subsequently, the plaintiff married again and lived with her third husband. It was also further pleaded that the 1st defendant after completing her plan of marrying the plaintiff with Pallayya began to compel the plaintiff to execute a document in respect of plaint A Schedule property in favour of Pallayya and attempted to take a document by force. The plaintiff with the assistance of Sagasani Apparao, Desalu and others left the house without taking her samans to Rajahmundry and got issued a notice to the 1st defendant and others. The 1st defendant taking advantage of the absence of the plaintiff took possession of the sale deed, tax receipts, samans etc., belonging to the plaintiff and got filed the original suit O.S. No. 171 of 80 (present O.S. No. 59 of 83) on the file of Munsif Magistrate, Mummidivaram praying to pass a decree in her favour for permanent injunction restraining the plaintiff and her men, falsely alleging that she purchased A schedule property with her monty and took the sale deed nominally in the name of the plaintiff. She had also obtained exparte injunction against the plaintiff and another representing to the court falsely that she is in possession of plaint A Schedule property and thus the 1st defendant is in possession of the property by virtue of court orders. It was further pleaded that even if the plaintiff succeeds and the suit filed by the 1st defendant is dismissed, unless there is a decree in favour of the plaintiff, it is not possible' to get possession of the A Schedule property in her favour and hence the suit. It was also further pleaded that having obtained injunction orders in her favour, the 1st defendant entered into plaint A Schedule property and cultivating and enjoying the usufruct. The plaint A schedule property is wet land with 100 yielding coconut trees. The 1st defendant by virtue of possession is realizing 100 bags of paddy and 3000 coconuts annually. The plaintiff is entitled to a decree for the past and also future profits.
8. The 1st defendant filed written statement with the following averments:
It was pleaded that the material allegations in the plaint are not true and correct. The suit is not maintainable and it is liable to be dismissed. One Lanka China Sattiraju s/o. Venkanna was the father of the defendant. Lanka Venkamma was the mother. Lanka China Sattiraju and Lanka Venkamma are having three sons and four daughters by name Pallayya, Mahalakshmi, Thannababu, Koppadi Appalamma, Bommidi Sundaramma (the 1st defendant), Koppadi Dhanalakshmi (mother of the plaintiff) and Lanka Veeramma. Lanka China Satti Raju and his two sons Pallayya and Mahalakshmi divided themselves and they used to live separately. The 1st defendant is having about 7 to 8 acres of property originally and she sold some properties and purchased some property. The 1st defendant and Koppadi Appalamma used to live jointly in the house purchased by the 1st defendant and used to do fish business. The 1st defendant is not having any issues. Koppadi Appalamma before her death was a chronic T.B. patient and ulcer in her throat. She was looked after by the 1st defendant and maintained by the 1st defendant. Koppadi Appalamma used to help the 1st defendant alone. She was not having any independent source of her own. She had no properties of her own. Since the 1st defendant is not having any business, taking into consideration that the plaintiff happened to be the sister's daughter, used to live along with the 1st defendant. The 1st defendant alone got married the plaintiff to her brother Dhanababu s/o. China Sattiraju. The 1st defendant also brought up Lanka Dhanababu from his childhood. The marriage was effected in or about 1966. The plaintiff used to live along with the 1st defendant and she was maintained by the 1st defendant. The plaintiff's parents Koppadi Dhanlakshimi and her husband Apparao have no properties of their own. They are residents of Pora. The plaintiff has no property of her own and she has nothing to fall back upon. The 1st defendant used to do fishing business by going to weekly shandies at Mummidivaram, Ambajipeta, Cheyyeru and acquired large amounts. All the properties are her self acquisitions. She used to get income from out of her own properties. She, from out of her own income and from out of the income from her business, acquired the A Schedule property by means of the sale deed dated 30-4-1973 for Respondents 25,000/-. Even though the 1st defendant only acquired the A Schedule property with her own stridhana funds since the plaintiff and Dhanababu are living with the 1st defendant, out of confidence the 1st defendant took the sale deed nominally in the name of the plaintiff. The plaintiff has nothing to do with the A Schedule property and never purchased the A Schedule property out of her own funds. The plaintiff is not having any status or capacity to acquired the A Schedule property. The plaintiff is penniless woman and she was being maintained by the 1st defendant alone. The plaintiff's husband late Dhanababu also had no funds of his own and he is not having any means to purchase the A Schedule property. The plaintiff is not aware about the purchase and as to how the sale deed dated 30-4-1973 for Respondents. 25,000/- came into existence alleged in the registered notice got issued to the 1st defendant on 9-4-1980 to the effect that Koppadi Appalamma gifted the A Schedule property to her. She, at first set up title in Koppadi Appallamma. Koppadi Appallamma has no capacity to purchase the A Schedule property. She never gifted the A schedule property to the plaintiff at any time. Koppadi Appalamma was not the fostered mother of the plaintiff. The plaintiff did not partake at any time with the 1st defendant or appallamma and with the acquisitions. The plaintiff never came into possession in pursuance of the sale deed dated 30-4-1973 and enjoyed the A Schedule property at any time. The plaintiff has no title to or possession to the A Schedule property and never acquired any title to the A Schedule property. The 1st defendant is the absolute owner of the A Schedule property and she is enjoying the A Schedule property in her own right to the exclusion of the plaintiff. The sale deed dated 30-4-1973 is a nominal document which did not confer any title upon the plaintiff whatsoever. The plaintiff, after the death of Appallamma never lived along with the grand father. It was also further pleaded that the plaintiff in fact is having movable property shown in the B Schedule. The 1st defendant never came into custody of the B Schedule gold jewellery and movables. The plaintiff did not possess the alleged gold jewellery and the other articles valuing at Rs. 21,100/-. The plaintiff is put to strict proof with regard to the alleged existence of the B Schedule movable property and the 1st defendant coming into custody of the same. While matters stood thus, the 1st defendant's fostered son Danababu died in or about 1976 living along with the 1st defendant. After his death, the 1st defendant alone used to maintain the plaintiff. After the death of Danababu the plaintiff was married again to the 1st defendant's brother Lanka Pallayya in the year 1980. He is not imbecile. The 1st defendant did not compel the plaintiff to marry Lanka Pallayya at any time. The plaintiff voluntarily married him. It is absolutely false to allege in para-4 of the plaint that despite the unwillingness and protest of the plaintiff the plaintiff got married to Pallayya. After marriage with Pallayya, she did not live with him but went away along with one Voleti Kasulayya of Pora. She did not live with him also. In to the month of May 1980 she lived along with Sangani Desalu whose house is about 10 yards to the house the 1st defendant. No marriage ever took place but Sangani Desalu kept the plaintiff. She is not the married wife of Sangani Desalu. To take the help of Sangani Desalu she, having come into contact with him, is living with him and hatched plan to clutch at the A schedule property. The 1st defendant never compelled the plaintiff to execute any document for the A schedule property in favour of Pallayya. The 1st defendant never attempted to take any document by force. The plaintiff having contact with Sangani Desalu left the house of the 1st defendant on her own accord. She never left the B Schedule property in the house of the 1st defendant. When the B Schedule property is not at all in existence, the question of leaving them in the house of the 1st defendant does not arise at all. More so the plaintiff having left the house with Sangani Desalu left the village and got issued a false registered notice on 9-6-1980 through her Advocate K. Rajarao Chowdary of Rajahmundry. Even in the said registered notice, the plaintiff did not allege about the existence of the B Schedule property. That itself belies the story of the existence of the B schedule property and the 1st defendant coming into custody of the said B schedule movable properties. The plaintiff having filed a pauper suit with a view of harass the 1st defendant and succumb to her dictates made a false claim about the B schedule property. The plaintiff is not having any capacity to possess or funds to own the B schedule property. The B schedule property is only imaginary. The 1st defendant is not liable to deliver either the B schedule property or its value. It was also further pleaded that the plaintiff joining hands with Sangani Desalu tried to interfere with the peaceful possession and enjoyment of the 1st defendant over the A schedule property. The 2nd defendant was looking after the A schedule property on behalf of this defendant. The defendants 1 and 2, to preserve the possession of the 1st defendant, got filed a suit on 9-6-1980 on the file of Principal District Munsif, Amalapuram, numbered as O.S. No. 171 of 80. The plaintiff herein filed a written statement falsely alleging that she is in possession. The injunction also had been granted in I.A. No. 411 of 1980 and it was made absolute on 20-10-1981. The plaintiff herein by setting up false defence filed a written statement on 25-10-1980. The suit O.S. No. 171 of 80 was transferred to the Munsif Magistrate Court, Mummidivaram and was numbered as O.S. No. 36 of 85. When the suit was posted finally for trial, the plaintiff herein filed the suit as O.P. No. 66 of 85. The said suit O.S. No. 59 of 83 was transferred and numbered as O.S. No. 36 of 85 on the file of Subordinate Judge, Amalapuram/ The plaintiff herein having waited sufficiently for a long period of five years having no title or possession got filed the present suit by slowly developing her case. The 1st defendant, from the beginning is having custody of the title deed, tax receipts etc., and is absolutely false or the plaintiff to contend that in her absence the 1st defendant took possession of the documents etc. The 1st defendant never came into possession of the A schedule property by virtue of the court orders. The 1st defendant puts the plaintiff to strict proof of her possession from the date of the sale deed till the alleged trespass by the 1st defendant. When the 1st defendant is in peaceful possession and enjoyment from the date of the sale deed till today the question of the 1st defendant trying to trespass upon the A schedule property does not arise at all. The alleged trespass is false and it is created only for the purpose of the present suit. The claim of the plaintiff for profits as alleged is false. The income of the A schedule property had been highly exaggerated. The A schedule property is in the biennial zone. The A schedule property won't fetch 100 bags of paddy per year. There are only 60 yielding coconut trees. There are 40 coconut trees about 10 to 12 years. 30 coconut trees are aged roughly about 6 to 8 years. The plaintiff, taking advantage of having filed a pauper suit highly exaggerated the claim for past mesne profits at Rs. 43,500/-. The plaintiff's claim towards past profits when she is not having any title is not legal and valid. The plaintiff is not entitled to any declaration for the A schedule property as claimed in the suit. The plaintiff is not having any title and she is put to strict proof with regard to her title etc. The long silence on the part of the plaintiff itself even though the 1st defendant filed a suit for permanent injunction itself belies the theory of the title of the plaintiff. The suit is only filed as a counterblast to the suit filed by the defendant. Sangani Desalu is not behind the litigation. The suit is liable to be dismissed.
9. Issues settled by the trial Court:
1. Whether the plaint A Schedule Property is the personal property of the plaintiff and the defendants have trespassed into the plaint A Schedule property?
2. Whether the plaintiff is entitled to the declaration and recovery of possession of the plaint A Schedule property?
3. Whether the plaint B Schedule properties are possessed by the plaintiff and are in the possession of the defendants and whether the plaintiff is entitled to recover the same or the value thereof?
4. Whether the 1st defendant purchased the plaint A Schedule property with her funds benami in the name of the plaintiff and it continued to be in the possession and enjoyment of her?
5. Whether the plaintiff is estopped from filing the suit?
6. Whether the plaintiff is entitled to pay profits; if so to what extent?
7. To what relief?
10. Evidence available on record:
Witnesses examined for plaintiff:
P.W.1 Sangani Lanka Bhushanama
P.W.2 Palepu Rama Murthy
P.W.3 Tadi Viswanadham
P.W.4 Kappala Viswanadham
P.W.5 Banthu Venkat Rao
Witnesses examined for defendant:
D.W.1 Bommidi Sundaramma
D.W.2 Tadi Sita Ramiah
D.W.3 Boja Reddy
D.W.4 Lanka Pallaiah
D.W.5 Karri Appa Rao
Documents marked for plaintiff:
Ex. A-1 Registration extract of sale deed dated 30-4-1973
Ex.A-2 Certified copy of tax receipts
Documents marked for defendant:
Ex.B-1 Copy of notice given by P.W.1 to 1st defendant
Ex.B-2 -do-
Ex.B-3 I.A. No. 149 of 84 in O.S. No. 36 of 1985
Ex.B-4 dt. 8-3-1961 - Registration extract of house site purchased from Appala Swamy
Ex.B-5 Registration extract of sale deed executed opportunity D.W.1 in favour of N. Mussalayya
Ex.B-6 dt. 30-4-1973 - Original sale deed executed by T. Seetha Rama Murthy in favour of D.W.1.
Ex.B-7 Pronote dt. 2-12-1971 executed by T. Sita Ramamma
Ex.B-8 Endorsement in Ex.B-7 dt. 7-2-1973 to discharge the amount of D.W.1
Ex.B-9 Pronote dt. 18-11 -1971 executed by Tadi Sita Ramamma
Ex.B-10 Endorsement in Ex.B-9 to discharge the entire amount
Ex.B-11 Bunch of tax receipts showing A Schedule property (Total 34) paid by D.W.1
Ex.B-12 certified copy of order in C.C. No. 168 of 90 dt. 30-10-1981
Ex.B-13 dt. 29-12-1976 Registration extract dt. 29-12-1976 standing in the name of D.W.1 from Gonemadatala people
11. Findings recorded by the trial Court in nut-shell: As already aforesaid, the learned Subordinate Judge, Amalapuram tried both the suits together and on appreciation of the evidence of P.W.1 to P.W.5 and D.W.1 to D.W.5, Exs.A-1 and A-2 and Exs.B-1 to B-13, came to the conclusion that the suit for declaration of title and recovery of possession filed as indigent person O.S. No. 66 of 85 to be dismissed with costs and the suit O.S. No. 36 of 85 filed by the 1st defendant for perpetual injunction to be decreed with costs. The learned Subordinate Judge, Amalapuram while answering Issue No. 1 in O.S. No. 66 of 85 at para-10 appreciated the oral and documentary evidence available on record in detail and came to the conclusion that in the light of the facts and circumstances especially she being a minor at the relevant point of time, it is strange to contend that she could have purchased the property by spending huge amount and further came to the conclusion that the 1st defendant proved purchasing the A Schedule property in the name of the plaintiff and got her married with her brother and while answering Issue No. 4 in O.S. No. 66 of 85 along with Issue No. 1 in O.S. No. 36 of 85the further evidence of D.W.1 to D.W.3 apart from the other evidence of D.W.4 and D.W.5 also had been appreciated at length and Ex.B series had been dealt with in elaboration and came to the conclusion that the document Ex.B-6 was kept nominally in the name of P.W.1. While answering the other Issues, the learned Subordinate Judge, Amalapuram recorded further findings and ultimately nagatived the relief of declaration of title and recovery of possession in favour of the appellant and granted the relief of injunction in favour of the 1st respondent/1st defendant.
12. Points which arise for consideration in this Appeal: In the light of the submissions made by the Counsel on record, the following Points arise for consideration in this Appeal:
1. Whether the findings recorded by the trial Court in relation to Ex.A-2=Ex.B-6 to be confirmed or liable to be set-aside in the facts and circumstances of the case?
2. Whether the dismissal of the Appeal for non-prosecution i.e., A.S. No. 115 of 91 on the file of II Additional District Judge, Rajahmundry would operate as res judicata so as to hear this Appeal on merits?
3. If so to what relief the parties would be entitled to?
13. Point Nos. 1 and 2: The respective pleadings of the parties, the Issues settled by the trial Court, the evidence available on record and the findings recorded by the trial Court already had been referred to supra. It is needless to say that the respective stands taken by the parties in the other suit O.S. No. 36 of 85 also appear to be substantially the same. But however, simply the relief of injunction had been prayed for in the other suit. The Issues settled in the said suit are as hereunder:
1. Whether the 1st plaintiff through the 2nd plaintiff has been in possession and enjoyment of the suit properties as on the date of the suit?
2. Whether the defendants threatened to interfere with the alleged possession of the plaintiffs over the suit properties?
3. Whether the suit is bad for nonjoinder of necessary party?
4. To what relief?
It is no doubt true that this is a comprehensive suit, a suit for declaration of title and recovery of possession but the basis or foundation on a careful reading of the respective pleadings of the parties, appear to be substantially the same. It is needless to say that even in a suit for perpetual injunction, incidentally the title may have to be gone into. It is not in serious controversy that as far as the other Appeal A.S. No. 115 /on the file of II Additional District Judge, Rajahmundry is concerned, had not been prosecuted further and the same was dismissed.
14. Several discrepancies had been pointed out especially in the light of certain admissions made by P.W.1 and also the cause of action wherein specifically the date 9-6-1980 had been referred to when that the defendants filed a false suit for perpetual injunction. P.W.1 deposed that P.W.1 and her mother earned money to purchase the property and they used to sell fish at shandies and they purchased the suit land at Respondents. 25,000/- and she left the title deed with the 1st defendant. She also deposed that her grand father paid the consideration to the vendors and this witness also deposed that this witness and her mother Appalamma were living with their grand father. Further, P.W.1 deposed about Ex.A-2, certified copy of tax receipts. Her specific case is that she was fostered by the said Appalamma. P.W.1 also deposed about the 1st defendant filing a suit for injunction and the other details. However, in cross-examination P.W.1 deposed that Appalamma was not having any immovable properties by the time she purchased these properties and she was suffering with T.B. and she died in 1976. She was suffering with the diseases about 4 or 5 years prior to her death. Relating to Exs.B-1 and B-2, P.W.1 deposed that by mistake the gift made by Appalamma in her favour had been specified. The covenants and the contents of Exs.B-1 and B-2 had been explained. P.W.1 also deposed that in her written statement in O.S. No. 36 of 895 she did not mention all these facts. P.W.1 also deposed that after the death of Appalamma, the 1st defendant came into possession of the properties. No doubt some comment was made on this aspect to substantiate the submissions that the cause of action which had been pleaded in the suit for declaration of title and recovery of possession cannot be believed. Further, P.W.1 also deposed that the 1st defendant was having 7 acres of land by the time she purchased the properties under Ex.A-1. She purchased 3 acres of land from Gonemadhala Anantharamamurthy. In the land acquired by the 1st defendant i.e., 7 acres, these lands also were there though the sale deeds were in her name.
15. It may be that the evidence of P.W.1 was that apart from these lands, the other lands also had been there. But however, certain submissions were made that in the of the admission made by P.W.1 in relation thereto it is to be taken that the 1st defendant alone had purchased the property. But however, this may not amount to a prior admission in the said direction but the fact remains that the 1st defendant had substantial properties. Further, the fact to be noted is that there are admissions made by P.W.1 that Appalamma was not well even for a sufficiently long time prior to her death and hence the stand taken by her that out of joint earnings of P.W.1 and Appalamma this property had been purchased also may not be a sustainable stand.
16. The broker in the land dealings was examined as P.W.2. P.W.2 deposed that P.W.1 purchased the plaint schedule property from Tadi Seetharamayya. He also deposed that P.W.1 and her foster mother acquired properties out of their earnings. The transaction was settled at Rs. 25,000/- P.W.1 and her foster mother enjoyed the properties and Rs. 5000/- was paid as advance. A pronote debt of Rs. 9000/- due to one Varada Subrahmanyam was discharged by Appalamma through her father. Lanka Sathi Raju discharged a loan of Rs. 2500/- due to the Co-operative Bank. The 1st defendant has nothing to do with the suit transaction. It is pertinent to note that in the cross-examination P.W.2 deposed that the 1st defendant was aged about 15 years at the time of sale deed. No doubt, certain suggestions had been denied and relating to certain facts this witness P.W.2 deposed that he had no knowledge.
17. P.W.3 is the attestor of the original of Ex.A-1 and this witness deposed that one Sathi Raju, the grand father of P.W.1 looked after the transaction and paid the consideration. In the cross-examination P.W.3 deposed that P.W.1 was aged 16 or 18 years by the time of Ex.A-1. One Seetharamayya called P.W.3 to attest the sale deed. Before the Sub-Registrar some amount was paid. P.W.3 also deposed that he does not personally know about the family affairs of Sathiraju.
18. P.W.4 and P.W.5 had been examined to show that for some time they cultivated these lands by virtue of the lease granted by P.W.1.
19. No doubt relating to the custody of Ex.B-6 i.e., the original of Ex.A-1, strong reliance was placed by the Counsel representing the appellant on an admission made by D.W.1 to the effect that 'she went away with wearing apparel leaving documents and B Schedule property. This witness D.W.1 deposed about the defence which she had taken in the written statement and she specifically deposed that Appalamma was not having properties at any time and since 40 years she had been doing fishing business and after the death of her husband she came to Pora village and purchased a house site at Pora and constructed a house. She also deposed how subsequent thereto she began purchasing the properties. She also deposed about Ex.B-4 and by the time of purchase made under Ex.B-4 already she owned Acs. 2-60 cents. Further D.W.1 deposed that she purchased A Schedule property by way of a registered sale deed dated 30-4-1973 for Rs. 25,000/-. Ex.B-6 is the original of Ex.A-1. D.W.1 also deposed that after selling the property under Ex.B-5 she purchased Acs. 3-09 cents from Ananda Ram Murthy for Rs. 36,000/- under registered sale deed. D.W.1 also deposed that she is not having children. She further deposed abut Ex.B-7, the discharged promissory note dt. 22-12-1971 and discharged endorsement Ex.B-10.
20. It is no doubt true that in Exs.B-8 and B-10, the name of the plaintiff P.W.1 had been shown. Certain submissions had been in this regard. It may be that in the light of the close relationship between the parties since the discharge endorsement was made, the name of P.W.1 had been shown. It is pertinent to note that the very sale transaction was made in the name of P.W.1. It may be again reemphasized that here is a sale transaction which had been entered into. Whether it was by D.W.1 or by any other elderly person, the fact remains that P.W.1 was a minor at that time. This Court need not dwell further about the validity of Ex.A-1 =Ex.B-6 transaction since the original owners of the properties are not interested in challenging the same. This witness, D.W.1, also deposed that Ex.B-6 was nominally executed in the name of the plaintiff as she married her brother. When Ex.B-6 was executed in favour of the plaintiff, she was aged 14 years. Ex.B-6 property was never in possession of late Appalamma. She also deposed that she filed 34 tax receipts about A Schedule property and Ex.B-11 is a bunch of tax receipts, 34 in number. D.W.1 also deposed about C.C. No. 168 of 1980 and an order of acquittal was recorded. It was marked as Ex.B-2. The husband of the plaintiff died after six years after executing Ex.B-6. This witness no doubt deposed that the plaint schedule property also is not in her possession and the plaintiff also is not possessing the said property. Specifically D.W.1 deposed about P.W.4 and P.W.5 not cultivating these lands. D.W.1 also further deposed about Ex.B-13. , In the cross-examination, clearly this witness deposed, as she had no children, with a view to get the marriage of P.W.1 also deposed that she paid the consideration in the presence of Sub-Registrar and it is mentioned in the original of Ex.B-6. This witness denied several suggestions put to her. No doubt while deposing this witness D.W.1 deposed that P.W.1 went away with working apparel leaving the documents in B Schedule property. That by itself cannot be taken that by virtue of the same only D.W.1 came into custody of the original of Ex.A-1 i.e., Ex.B-6. It is her specific case that these also are residing with her and this evidence may have to be appreciated in the said backdrop.
21. Apart from the evidence of D.W.1, the evidence of D.W.2, the vendor who executed Ex.B-6 is available on record who deposed that it is his ancestral property and he sold Ex.B-6 property for consideration of Rs. 20,000/- and had taken an advance of Rs. 5000/- and gave delivery of the property to D.W.1. Further, D.W.2 deposed relating to Exs.B-7 and B-9 and supported the version of D.W.1.
22. D.W.3 deposed that he is having 80 cents of land at 1 K.M. away from the suit land and he knows P.W.1. The land was purchased by D.W.1 from D.W.2 prior to 1973. This witness worked for four years under D.W.1 after he left work under Boja Ramadasu. Thereafter P.W.5 was looking after the land. No doubt in cross-examination D.W.3 deposed that he never cultivated the suit land as a tenant and he worked as a farm servant for four years under S.W.1.
23. D.W.4 deposed that he is the eldest son of his father and the deceased Danababu is his brother and during the lifetime of their father they divided the properties and they are having separate houses. The deceased Danababu used to live with D.W.1. D.W.1 kept Danababu in her house with a view to get her married to P.W.1. After the marriage, Danababu lived for three years and thereafter he expired. The deceased Appalamma is his sister and the said sister had no properties or business. She was suffering with cancer. P.W.1 did not acquire any properties. D.W.1 alone acquired the properties. The suit property is never in the custody of P.W.1. After the death of Danababu, P.W.1 eloped with Kasulayya and she stayed with him for two months. Their uncle brought her back and handed over to D.W.1. Thereafter P.W.1 and his witness D.W.4 married. P.W.1 lived for about one year with D.W.4. It is Ex.B-2. In the cross-examination this witness deposed about the age difference and other facts. D.W.4 no doubt deposed that P.W.1 personally cultivated the suit lands without appointing farm servants.
24. D.W.5, the 2nd defendant, deposed that D.W.1 is his relative and he is having six acres of land near the suit land and deposed about D.W.1 purchasing the property from D.W.2 no doubt the other facts.
25. It is no doubt true that the plea of nominality and the plea of benami, though these are distinct, quite often these expressions are being used in interchangeable manner. Elaborate submissions had been made in relation thereto. Strong reliance was placed on Velappa v. Palani AIR 1915 Mad 1079 wherein while dealing with the rule of construction it was observed:
The rule of construction which the Court must obey in determining this question is well understood and long established and is best expressed in the well known opinion of Tindal, C.J. in Shore v. Wilson 91 Cl. and F 355. Though the object of the Court must always ultimately be to ascertain the intention of the parties, yet the intention must be gathered from the words they have used where those words are definite and unambiguous; and the Court must not travel outside the words used to found or confirm speculations as to their having in fact intended something other than what they have said.
26. In K. Venkatraswami and Anr. v. Sakunthalamma and Ors. : 1996 (2) ALT 869 at paras 15 and 16 it was observed:
Before that we must know what is meant by the interpretation or construction of a document. As per Lord Eldon interpretation means ascertaining the meaning of the language of a document or the manner in which it is related to existing facts. Such a concept as a primitive rule is to be found that generally speaking we must construct instruments by what is found that generally speaking we must construct instruments by what is found within their four corners (Smith v. Deo 1821, 2B and B 473, 602) (P.1293 of Sarkaron Evidence, Vol. 1, 14th Edition 1993). The expression 'Construction' as applied to a document, at all events as used by English lawyers includes two things: first, the meaning of the words, and secondly their legal effect or the effect which is to be given to them. The meaning of the words, I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the word is a question of law (per Lindley LJ in Chatenay v. Brazilian S.T. and Co. 1891, 1 QB 79, 85: 63 LT 739. Relied on in Badri v. Rajkumar 75 I.C. 686 : A 1923 AII. 337). Therefore, the meaning of the words in Ex.B-3 if wrongly given by the Courts below, although questions of facts on proper interpretation leading to different meaning, the effect would be something different in the result and therefore it would raise a question of law and therefore substantial question of law because the inferences and ultimately would become rights and liabilities of the parties to the document. It is true that the parties have tried to put up their construction or interpretation on a document because in R.V. Nathalal; AIR 1939 Bom. 434 it was emphatically held that the interpretation of a document is the duty of the Court and it is not permissible to call a witness to explain in unless he is an expert under the Evidence Act. Therefore if the Court commits an error in proper interpretation of a document leading to results that would naturally give rise to a question of law or a substantial question of law. Therefore, Mr. Panduranga Rao is right in asserting that the interpretation of a document like Ex.B-3 if not done properly or if done, leading to two inferences would obviously raise a pure question of law or atleast a substantial question of law.
Then coming to the question as to how to interpret the document like Ex.B-3 which has certain expressions without mentioning the properties or the details thereon it is already pointed out that this as a latent ambiguity and not patent ambiguity calling for interpretation or construction. The manner and the method in which the law expects such an interpretation or construction of document has been incorporated in Sections 93 - 98 of the Indian Evidence Act; viz...
When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects (Section 93)
When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts (Section 94)
When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense (Section 95)
When the facts are such that the language used might have been meant to apply to anyone, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to (Section 96)
When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply to correctly to either, evidence may be given to show to which of the two it was meant to apply (Section 97)
27. In Kamala Devi v. Takhatmal and Anr. : AIR 1964 S.C. 859 the Apex Court observed at paras 8 and 9:
Now coming to the construction of the surety bond, the first question raised by the learned Additional Solicitor General is that the terms of the surety bond should be construed in the context of the surrounding circumstances, namely, the circumstances under which the surety bond came to be executed. In support of this contention he relied upon the judgment of the Judicial Committee in Raghunandan v. Kirtyanand : AIR 1932 PC 131 at pp. 132-133. There, the Judicial Committee was asked to construe a surety bond. The question raised was whether under the terms of the bond the liability undertaken by the surety was to pay the entire decree amount or to pay the balance of the amount due under the decree after the mortgage security was realized upto the limit of the amount guaranteed under the bond. The terms of the document were not clear and unambiguous. In those circumstances, Lord Tomlin, speaking for the Board observed:
The bond must be considered in the light of the order directing the security to be given...
In those circumstances what is the meaning of the language employed in the bond?
These observations only apply the well settled rule of construction of documents to a surety bond. Sections 94 - 98 of the Indian Evidence Act afford guidance in the construction of documents; they also indicate when and under what circumstances extrinsic evidence could be relied upon in construing the terms of a document. Section 94 of the Evidence Act lays down a rule of interpretation of the language of a document when it is plaint and applies accurately to existing facts. It says that evidence may be given to show that it was not meant to apply to such facts. When a court is asked to interpret a document, it looks at its language. If the language is clear and unambiguous and applies accurately to existing facts, it shall accept the ordinary meaning, for the duty of the Court is not to delve deep into the intricacies of the human mind to ascertain one's undisclosed intention, but only to take the meaning of the words used by him, that is to say his expressed intentions. Sometimes when it is said that a Court should look into all the circumstances to find an author's intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document. The other sections in the said group of sections deal with ambiguities, peculiarities in expression and the inconsistencies between the written words and the existing facts. In the instant case, no such ambiguity or inconsistency exists as we shall demonstrate presently. The Privy Council's case was one f ambiguity and the surrounding circumstances gave the clue to find out the real intention of the parties expressed by them.
Bearing the said principles in mind, let us look at the document closely. The preamble to the surety bond in clear terms gives the object of the bond. It says that 'the defendant has been directed by the Court to furnish security in the sum of Rs. 1,00,000/- to produce and place at the disposal of the Court the property specified in the Schedule hereunto annexed. Therefore, the object is to see that the said direction is properly carried out, and to provide for contingency if a default is made by the judgment-debtor in complying with the said direction. The second paragraph of the bond binds the surety to Court in that the said defendant shall produce and place at the disposal of the Court, when required, the said property or the value of the same. The words used in this part of the undertaking given by the surety is clear and unambiguous. The judgment-debtor shall produce the bills or their value and place them at the disposal of the Court when required by the Court.' The obligation undertaken by the surety is that the judgment-debtor shall produce the said property when required by the Court. Her obligation does not arise at all till the Court makes the requisition. In this case there is no order or entry in the order sheet requiring the judgment-debtor to produce and place the property in Court; nor even the execution petition, though it describes the judgment-debtor in one of the columns, asks for any relief against him. But it is said that the words 'when required' suggested by the learned Counsel for the respondent, if accepted, would make those words unnecessary; it would mean that the judgment-debtor should be required to produce the property only if he could do so and need not be required to produce it if he could not do so; in such a case those words could as well be excluded from the sentence, for they would not serve any purpose. If the words were retained there, to accept the argument of the learned Counsel, they should be qualified by adding 'if the bills could be produced and when the money could lawfully be paid by the judgment-debtor.' But those words are not there and we cannot add them, for without adding them, full meaning could be given to the words used in the clause. But whatever ambiguity there may be - in our view there is none - the words 'in default of his doing so' make it absolutely clear that the surety binds herself only if the judgment debtor makes a default when he is required to produce the document. The intention f the parties is very clear. The surety undertook that the judgment-debtor would produce the bills if required by the Court and that if he made a default, she should be bound to pay the decree amount up to a particular limit. A court cannot possibly decide beforehand that the judgment-debtor would not produce the bills or at any rate the value of the same if demanded; for ought we know he might have paid that amount from other sources or he would have taken out an application to the Official Receiver to do so or on the events that subsequently happened i.e., on the annulment of the adjudication, he could have paid that amount. It is well settled that a surety bond has to be strictly construed. In State of Bihar v. M. Homi : 1955-2 SCR 78 : (S) AIR 1955 SC 478 this Court ruled that provisions in a surety bond which are penal in nature must be very strictly construed. This Court again in State of Uttar Pradesh v. Mohammad Sayeed : 1957 SCR 770 : (S) AIR 1957 SC 587 applied the strict rule of construction f a surety bond in that case. In the present case a strict construction of the bond leads to the only conclusion that a demand of the Court on the judgment-debtor and a default made by him were necessary conditions for the enforcement of the bond against the appellant.
28. Further reliance was placed on Rangappa Nayakar v. Rangaswami Nayakar and Ors. AIR 1925 Mad 1005 wherein it was held:
It seems to us that in this passage in this judgment the Subordinate Judge has confounded a sham transaction in respect of property, that is to say, a transaction in and by which no title of any kind either legal or beneficial, is intended to be passed, with benami transactions properly so called, namely, transactions where the legal estate becomes veseted in a certain person the beneficial interest therein remaining with the transfer or being vested in some third person who is called the real owner. The essence therefore of a sham transaction is that though a registered deed is brought into existence no title of any kind, either legal or beneficial is intended to be passed thereby to any person whatsoever, that is to say, the deed of transfer is not intended to effect any transfer of property. The difference therefore between sham transactions and benami transactions is one of intention. If the deed of transfer is made with the intention of placing the property in the name of third person, the intention clearly amounts to a transfer of the legal title and such a transaction can amounts to a transfer of the legal title and such a transaction can scarcely be called a sham transaction, but comes directly within the meaning of benami transactions properly so called.
29. The learned Counsel for the appellant also placed strong reliance on Sree Meenakshi Mills Limited, Madurai v. Commissioner of Income-Tax, Madras 0044/1956 : AIR 1957 S.C. 49. Wherein the Apex Court had an occasion to deal with the banami nature of transactions. On the aspect of the distinction between sham or nominal or benami transaction, reliance also was placed on Mulakalapalli Pullayya and Anr. v. Chalamala Guravayya 1969 (1) An.W.R. 209 and on the aspect of onus of proof relating to benami, strong reliance was placed on the decision of the Division Bench of this Court in K.A. Natesa Chettiar v. Nune Krishnaiah Chetty and Ors. 1971 (1) An.W.R. 20. Further strong reliance was placed on Valliammal (Died) by L.Rs. v. Subramaniam and Ors. : (2004) 7 SCC 233, Krishnanand Agnihotri v. State of M.P. : AIR 1977 S.C. 796, as well. The learned Counsel had drawn the attention of this Court to the ratio laid down in Gapadibai v. State of M.P. : AIR 1980 S.C. 1040, Nandigam Ramaro v. Burugupalli Srikrishnamurthi and Ors. : 1961 ALT 974 : 1961 (2) An.W.R. 271 : AIR 1962 A.P. 226, Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 S.C. 1316, Bhim Singh (dead) by L.Rs. and Anr. v. Kan Singh : AIR 1980 S.C. 727, Ponnuswamy Nadar v. Narayanan Nadar AIR 1977 Mad 19 and Jaydayal Poddar (Deceased) through L.Rs. and Anr. v. Mst. Bibi Hazra and Ors. : AIR 1974 S.C. 171.
30. There cannot be any doubt whatsoever that the plea of nominality or the plea of benami, as the case may be, since quite confusing, the same had not been clearly spelt out. It is no doubt true that there is some slight variation between the plea raised in the written statement and the nature evidence which had been let in. But, it is pertinent to note that that this is a suit for declaration of title and recovery of possession. A Division Bench of this Court in Chakicherla Audilakshmamma v. Atmakaru Ramarao : AIR 1973 A.P. 149 while relying on Moran Mar Baselios Chatholicos and Anr. v. Most Rev. Mar Poulose Athanasius AIR 1954 S.C. 526 held that in a suit for ejectment, the plaintiff is liable to be non-suited if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not. Here is a case where certain facts are not in serious controversy. The fact that P.W.1 was aged about 14 or 15 years on the date of Ex.A-1 = Ex.B-6, it cannot be said to be a serious controversy at all. Further, relating to Ex.A-1=Ex.B-6 transaction, P.W.1 had taken inconsistent stands or different stands. Commencing from Exs.B-1 and B-2, no doubt she made an attempt to explain the said discrepancies while deposing as P.W.1. The fact that Appalamma was suffering with serious disease even prior to her death also is not in controversy. The stand taken by P.W.1 that by virtue of the business transacted by Appalamma with the assistance of P.W.1. If any, these properties had been acquired, cannot be a sustainable stand in the light of the evidence available on record. The vendor had supported the version of D.W.1. Further, D.W.1 explained why at that particular point of time this document had been kept in the name of P.W.1.
31. On appreciation of the while evidence available on record, though the plea of nominality had been taken, the fact remains that the consideration had been advanced by D.W.1 and the property had been purchased in the name of P.W.1 at the relevant point of time. This is only the conclusion which can be arrived at by this Court in the peculiar facts and circumstances of this case. This Court is not inclined to express any opinion relating to the validity or otherwise of Ex.A-1=Ex.B-6 transaction since the parties, if any aggrieved of the said illegality had not approached the Court by challenging the same. In the light of the same, this Court is satisfied that the findings recorded by the trial Court do not suffer from any illegality whatsoever. It is needless to add that though the suit for injunction had been dismissed and the matter was carried by way of Appeal, the Appeal had not been further prosecuted and the same was dismissed for non-prosecution. Even in the light of the same also, this Appeal being devoid of merit, the same is liable to be dismissed.
32. Point No. 3: In the light of the findings recorded above, the Appeal being devoid of merit, the same shall stand dismissed. No order as to costs.