THE HON'BLE DR. JUSTICE MOTILAL B.NAIK

A.S.NO.1089 of 2000

03/08/2001

Sajana Granites, Madras rep. By its

partner Parvathareddy Jayarami Reddi

and another

petitioner

Manduva Srinivasa Rao

and 15 others

respondent

Counsel for Appellants: Sri S.Venkata Reddy

Counsel for Respondents : Sri Muvva Chandrasekhara Rao

G.P. for appeals for R.5 to R.9

:JUDGMENT: (Per the Hon'ble Sri CYS, J.)

THE HON'BLE SRI JUSTICE C.Y.SOMAYAJULU

Plaintiffs 1 and 2 in O.S.No.158 of 1992 on the file of the Court of the Additional Senior Civil Judge, Ongole, are the appellants. Appellants and A. Venkata Durgamba (hereinafter referred to as 3rd plaintiff) have filed the aforesaid O.S.No.158 of 1992 against respondents and five others for (i) a declaration that they (appellants) are the absolute owners of Ac.5.73 cents in S.No,55/6 of Rajupalem Lakshmipuram village within the boundaries mentioned in item No.1 of plaint schedule, and that 3rd plaintiff is the absolute owner of Ac.1.99 cents of land in S.No.55/6 of Rajupalem Lakshmipuram village within the boundaries mentioned in item No.2 of the plaint schedule; (ii) for a consequential permanent injunction restraining respondent 6 to 8 (defendants 10 to 12) from granting mining lease and other allied licenses to respondents 1 to 5 and defendants 6 to 9 in respect of items 1 and 2 of the of the plaint schedule; (iii) for a permanent injunction restraining defendants 5 to 9 from carrying on mining operations in item No.2 of the plaint schedule till Item No.2 of the plaint schedule is sub-divided; (iv) for a permanent injunction restraining respondents 6 to 8 from granting transport and other licenses to 9th defendant in respect of Ac.35.90 cents in S.No.55/6 till item No.2 of the plaint schedule is subdivided and (v) for a permanent injunction restraining respondents 9 and 10 i.e., defendants 13 and 14 from granting a 'no objection' certificate to the second respondent in respect of item No.1 of the plaint schedule. Subsequently, on the basis of a memo filed on behalf of the appellants and 3rd plaintiff that the claim with regard to item No.2 of the plaint schedule was adjusted out of Court, the suit in respect of item No.2 of the plaint schedule filed by 3rd plaintiff against defendants 5 to 9 was dismissed on 24.1.1996. Therefore the suit claim remained confined to appellants and respondents in relation to item No.1 of the plaint schedule, which would hereinafter be referred to as the suit property. (2) The averments, in brief, in the amended plaint and rejoinder are, 'Sajana Granites' (shown as 1st appellant/1st plaintiff in the cause title) is a registered firm. The original owner of the suit property and other properties was Telikapalli Mallaiah son of Purushottam. He had two sons by names Purushottam and Krishnaiah. As seen from the geneology table of Telikapalli family, Purushottam had a son by name Ramaswamy Sarma. Krishnaiah had three sons and a daughter by names Satyanarayana, Srinivasa Rao, Venkateshwarlu and 3rd plaintiff. Out of them Venkateswarlu died unmarried and intestate. Srinivasa Rao died leaving behind his wife Vaidehi as his legal heir. Satyanarayana died leaving behind his wife Adilakshmi and daughter Sukumari as his legal heirs. A.Venkata Ramanaiah, who is the son of 3rd plaintiff, is the General Power of attorney of his mother 3rd plaintiff, Vaidehi, Adilakshmi and Sukumari. Since Mallaiah did not want a share, his sons Purushottam and Krishnaiah divided that properties equally under a registered family settlement- cum- partition deed dated 19.11.1919. Subsequently, Ramaswamy Sarma s/o. Purushottam filed O.S.No.183 of 1932 for partition of his share in the family property against his father, uncle Krishnaiah and others, in which a compromise decree was passed on 17.12.1937. Under the said partition Purushottam's branch and Krishnaiah's branch got Ac.112.50 cents each and Guda family got Ac.75.00 cents. As per the revenue records the extent of S.No.55 is Ac.300-00 cents; out of which Ac.2-23 cents in S.No.55/3B was set apart for Nagarjunasagar Canal; Ac.18-90 cents in S.No.55/3A, Ac.47-64 cents in S.No.55/3C was surrendered by Lakshmi Narasamma w[o. Ramaswamy Sarma under Land Ceiling Act. Ac.37-70 cents in S.No.55/4 and Ac.86-50 cents in S.No.55/5 was surrendered under the Land Ceiling Act by Guda family. Government acquired Ac.193-14 cents for Cattle breeding Centre. Thus only Ac.1-00 cents in S.No.55/1, Ac.6-00 cents in S.No.55/2, Ac.53-96 cents in S.No.55/4B and Ac.45-90 cents in S.No.55/6 remained as per the revenue records. Guda family has no land in S.No.55. Yet respondents 3 and 4 filed a collusive suit in O.S.No.84 of 1992 seeking injunction against 1st respondent from interfering with their possession over the suit property. A.Venkata Ramanaiah as general power of attorney of 3rd plaintiff, Vaidehi, Adilakshmi and Sukumari sold suit property to 'Sajana granites' under a registered sale deed dated 4.8.1992, and so "Sajana Granites" became the absolute owner of the suit property. Krishnaiah, predecessor in title of the vendors of 'Sajana granites', was given a patta by the Settlement Officer under the Estates Abolition Act, which became final. Since the said patta cannot be questioned in civil Court, and since none in the branch of Rama Krishnaiah, senior paternal uncle of Mallaiah, was given a share in 'Turupu Kandrika' or 'Turpu Khandam' of which S.No. 55 is a part, Arundhatamma, widow of Rama Krishnaiah, who is the grand son of Ramakrishnaiah, has no right in the suit property. Therefore, the sale dated 20.1.1992 in favour of 1st respondent executed by Arundhatamma does not create any right in favour of 1st respondent in the suit property. 1st respondent, is claiming to have sold Ac.3.00 cents from out of the land purchased under the sale deed dated 20.1.1992 to the 2nd respondent on 18.6.1992. Though respondents 1 and 2 have no right in the suit property they are trying to interfere with the possession of the appellants over the suit property and are trying to obtain mining leases therein. Hence the suit.

(3) 1st respondent, who was initially set ex parte, when had put in appearance later, was not permitted to file his written statement but was allowed to participate in the proceedings.

(4) 2nd respondent filed its written statement and additional written statement alleging that subsequent to the family settlement in 1919 referred to in the plaint, there was a suit in O.S.No.327 of 1923 in respect of the properties covered by the deed of family settlement, 'Turpu Khandam' consisted of Ac.944-07 cents. Two branches of Telikapally family shown in the geneology table were allotted Ac.433.00 cents each in 'Turpu Khandam' in various S.Nos. There were 24 sharers in the aforesaid Ac.944-07 cents and each branch got 12 shares. In the 12 shares allotted to China Krishnaiah and Purushotham, Guda people also got 3 shares. The total extent of land in S.No. 55, as per the survey conducted in 1978, is Ac.285-60 cents but not Ac.300-00 cents as alleged in the plaint. The sale deed dated 4.8.1992, relied on by the appellants, was brought into existence by A.Venkata Ramanaiah, general power of attorney of 3rd plaintiff and others. Though the sale deed dated 20.1.1992 in favour of 1st respondent shows the extent purchased as Ac.10-91 cents, on actual measurement the area came to about Ac.6-00 cents only. The said extent has been in continuous possession and enjoyment of respondents 1 and 2 from the respective dates of their purchase. Ryotwari patta under the Estates Abolition Act was also issued to Ramakrishnaiah the husband of the vendor of the 1st respondent. Since appellants have neither title to nor possession of the suit property they are not entitled to any relief.

(5) Respondents 3 to 10 remained ex parte in the trial Court and in this Court. (6) On the basis of the above pleadings, the trial Court framed as many as 9 issues and four additional issues for trial. In support of their case appellants examined three witnesses, including the second appellant, as P.W.s 1 to 3 and marked Exs.A1 to A.65. In support of their case respondents 1 and 2, examined eight witnesses as DWs. 1 to 8 and marked Exs.B1 to B-65. After considering the evidence on record the trial Court held on issue No.5, which relates to the question whether first appellant is a registered firm, in favour of the appellants. Since second issue related to the claim against defendants 5 to 9, against whom the suit was dismissed, no finding was given thereon. On additional issue No.4 which relates to the jurisdiction of the Civil Court in respect of the patta issued under the Estates Abolition Act, the trial Court held that civil Court has no jurisdiction to go into the decision of the Tribunal under Estates Abolition Act. On issue No.1 which relates to the question whether the appellants are entitled to the declaration and consequential injunction prayed for, and additional issues 1 to 3 relating to the question whether T. China Krihshnaiah, predecessor of the vendor of 'Sajana granites' obtaining a ryotwari patta under Estates Abolition Act, whether the name of the husband of Arundhatamma (vendor of 1st respondent) is Ramakrishna Sastry or Ramakrishnaiah or both, and if the name of either Arundhatamma or her husband or his father Gopalakrishna does not find place in the patta, and on issues 3 and 4 which relate to the question whether appellants are entitled to injunction against respondents 6 to 8 and respondents 9 and 10, and on issues 6 and 8 which relate to the question whether 3rd plaintiff has no right or possession in S.No.55, and if 3rd plaintiff executed a spurious sale deed in favour of appellant and got filed the suit, held against the appellants. On issue No.7, which relates to the question whether the first respondent sold three acres and put the second respondent in possession thereof, held in favour of the respondents 1 and 2. On the basis of the said findings, on issue No.9, which relates to the relief, dismissed the suit. Hence this appeal by plaintiffs 1 and 2.

(7) It is necessary to mention that while answering issues 6 and 8 the trial Court merely stated that in view of the finding on the other issues, they are being answered against the appellants, without keeping view the fact they relate to 3rd plaintiff, whose claim was dismissed as settled out of Court, and so issues 6 and 8 became redundant.

(8) The point for consideration is whether appellants are entitled to the declaration and injunctions sought?

(9) The main contentions of Sri S.Venkat Reddy, learned Senior Counsel appearing on behalf of the appellants are that the Court below was in error in not believing that the name of the husband of Arundhathamma was Ramakrishna Sastry only, but not Ramakrishna inspite of voluminous documentary evidence adduced by the appellants and that the trial Court's failure to consider the word 'stet' used in Ex.A.11, a very important document produced by the appellants, resulted in miscarriage of justice, and D.W.2 is not a truthful witness because he sold away all his land in S.No.55 and gave false evidence only to help respondents 1 and 2, and that the trial Court was in error in relying on Ex.B.61 for holding against the appellants merely on the ground that P.W.3 admitted her signature therein. It is his contention that PW.3 in fact denied her signature in Ex.B.61, but due to a mistake of the typist the word 'not' was not typed, and a careful reading of the evidence of P.W.3 shows that it is her case that she has not given any statement, and that the trial Court was in error in not relying on Ex.A.18 and A.19, and was in error in holding that Arundhathamma handed over the rough patta to the first respondent, failing to note that patta was issued to Telikapalli Krishnaiah, father of 3rd plaintiff, that the Court below was in error in not drawing an inference against respondents 1 and 2 for not examining Arundhathamma. He contended that Ex.B.27 cannot be taken into consideration for holding against the appellants, because, as seen from Ex.B.39, Telekapalli Satyanarayana declared that he owns Ac.16-25 cents in S.No.55, and to establish the mistake that crept in Ex.B.27 appellants filed C.M.P.No.13613 of 2000 to receive additional evidence. Sri Muvva Chandrasekhar Rao, learned counsel for respondents 1 and 2, by placing reliance on M.M.B.CATHOLICS v. TAULO AVIRA1, M.M.B.CATHOLICS v. M.P.ATHANASIUS2, C.AUDILAKSHMAMMA v. A.RAMARAO3 and K.VENKATA SUBBAREDDI v. B.RAMAIAH4 contended that since appellants are plaintiffs they have to stand or fall on the strength of weakness of their case, but cannot succeed on the weakness of the case of respondents 1 and 2. He contended that since execution of Ex.B.4 by Arundhatamma is admitted by the appellants, question of drawing an adverse inference for her non-examination does not arise. Relying on STATE OF HIMACHAL PRADESH v. KESHAV RAM5, NAGAR PALIKA, JIND v. JAGAT SINGH6, CORPORATION OF BANGALORE CITY v. M.PAPAIAH7 and Y.VIJAYABHARATHI v. Y.MANIKYAMMA8 he contended that merely on the basis of entries in Revenue records appellants are not entitled to seek declaration of their title to the suit property, as entries in revenue records are not conclusive and do not confer title. Relying on M.PALLAMMA & CHITTEMMA v. LAND ACQUISITION OFFICER9 he contended that since patta granted under Sec.11 of the Estates Abolition Act enures to the benefit of other co-sharers also, Ex.A.11 is not much of relevance or importance to decide this case, and contended that since the appellants admitted that the name of the husband of Arundhathamma is Ramakrishnaiah, merely because in some of the documents produced he described himself as Ramakrishna Sastry, it cannot be said that Rama Krishna and Rama Krishna Sastry are different persons.

(10) The Supreme Court in M.P.ATHANASTUS case (2 supra), M.M.CATHOLICES v. POLO AVIRA case(1 supra) and this Court in C.AUDILAKSHMAMMA case (3 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 plaintiff's title and so if the plaintiff fails to 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 1and 2, or on the basis that the evidence adduced by respondents 1 and 2 does not establish their title to the suit property.

11) The trial Court while answering Issue No.4 "Whether the civil Court has jurisdiction to question the patta, if any, issued under the Estates Abolition Act", relying on M. Chayanna vs. K. Narayana 10and A. Bodayya vs. V.L. Ramaswamy11 held that civil Court has no

jurisdiction to go into the decision of the Tribunal and so it need not go into the various documents filed on behalf of both parties prior to the Estates Abolition Act. Ex.A.11 shows that patta under Section 15(1) dated 28.11.1960 was given to T. Krishnaiah, Guda Chidambaraiah, Guda Rambhotlu, Subrahmanyam, Ramakrishnaiah, Lakshminarsamma and Guda Venkatramaiah. Section 15 of the Estates Abolition Act enjoins the Settlement Officer examining the nature and history of all lands, in respect of which the landholder claims a ryotwari patta under Sections 12, 13 or 14, and decide in respect of which lands the claim should be allowed. Since an appeal against the order of the Settlement Officer is provided under sub-section (2) of Section 15 of the Estates Abolition Act, order passed by the Settlement Officer granting or refusing patta would be a matter of record. Appellants did not choose to produce the patta, allegedly granted to the predecessor in title of their vendor. They also did not take steps to summon the relevant record from the Office of the Settlement Officer to show that the Settlement Officer conducted an enquiry under Section 15 of the Estates Abolition Act. In the absence of any document to show that an enquiry was held and thereafter a patta under Section 15 of the Estates Abolition Act was issued, the inference is that patta, if any, granted was issued under only Section11 of the Estates Abolition Act. The Supreme Court in The State of Tamilnadu vs. Ramalinga12 held that civil Court has jurisdiction to decide the question of title. A Division Bench of this Court speaking through Sri V.Parthasarathi,J in Kodali Rani vs. Koti Venkateshwar Rao 13 (A.S.No.352 of 1964 dated 12.4.1969) held that the changes that are brought about consequent on the issue of patta, leave unaffected the core of the title and the incidents of ownership inhering in the owners prior to the date of abolition of estate. The said decision was referred to and relied by Sri B.P. Jeevan Reddi, J. in K. Ranga Reddy vs. M. Venkatarami Reddi14 and Sri M. Jagannadha Rao, J. in M. Pallamma's case (8 supra) for holding that civil Court has jurisdiction to go into the question of title. A Division Bench of this Court in Jaya Syamala Rao vs. Sri Radhakantha Swamy 15overruled the decision in K. Ranga Reddy case (14 supra), relying on the decisions of the Supreme Court in Chayanna and Bodaiah cases (12 and 13 supra). In Nallipatta Ramakrishna Reddy vs. Kasula Balaiah16 Sri M.Jagannadha Rao, J. held that the decision of the Division Bench in Ranga Reddy case (14 supra) must be deemed to have been impliedly overruled by the decision of the Supreme Court in Ramalinga case (12 supra) and so the civil Court has jurisdiction to decide the issue of title, notwithstanding the earlier decision of the Settlement Officer granting patta under Sec.11 of the Estates Abolition Act. Sri Im. Panduranga Rao, J. in Chakali Anjappa vs. Betappavari Anjaneyulu17 reviewed the case law and held that since the decision of the Supreme Court in Ramalinga case (12 supra) was followed by a Division Bench of this Court in K.V. Krishnaiah vs. M. Sidda Reddy18 (S.A.Nos.458 and 484 of 1994, dated 14.6.1989) civil Court has jurisdiction to go into the question of title, though a patta was issued under Section 11 of Estates

Abolition Act. In K.V. Krishnaiah's case (18 supra) speaking for a Division Bench of this Court, Sri S.S.M. Quadri, J. reviewing case law, held that in view of the decision of the Supreme Court in Ramalinga's

case (12 supra) the view taken in K. Ranga Reddy's case (14 supra) is correct, and that the view taken by the Division Bench in Jaya Syamala Rao's case (15 supra) is not good law in view of Ramalinga's case (12 supra), and civil Court has jurisdiction to entertain the question of title. Sri Im. Panduranga Rao, J. in State of A.P. vs. K. Veerama Reddy19 referring to all the above cases held that in view of the decision of the Supreme Court in Ramalinga's case (14 supra) and the decision of the Division Bench of this Court in K. Krishnaiah's case (20 supra) civil Court has jurisdiction to decide the question of title. In view thereof the decision of the Division Bench in Kodali Rani's case (15 supra) still holds good. It is held thus in that decision.

"So far as the substantive part of the title is concerned, i.e., the common law right of ownership, the Estates Abolition Act did not and could not operate to his detriment in any manner. The common law right of ownership remained unaffected and it is only a right arising out of a particular tenure that was the subject matter of the legislation. The right of occupancy in ryotwari as well as zamindari areas is an ancient concept and was held to be an inviolable right. It was there even before the passing of the Estates Land Act, which, under Section 6, merely embodied the common law and was of a declaratory nature. Ownership with reference to immovable property not only be defined as the greatest possible interest in it which a mature system of law recognizes; and the incidents of ownership are, the right to possess, the right to use, the right to manage, the right to the income, the right to security, and the incident of transmissibility. All these incidents of ownership are unaffected by the change from zamindari tenure to

ryotwari tenure. The changes that are brought about consequent on the issue of a patta, leave unaffected the core of the title and the incidents of ownership enumerated above. Prior to the notification of the estate, the common law right of ownership was associated with a particular form of tenure i.e., tenure under the permanent settlement. When that tenure was terminated as a result of the abolition of the estate, the State became entitled to provide a different pattern for the mutual relationship between it and the subject who was entitled to a species of ownership de hors the Estates Land Act and without reference to the provisions of that Act. It is only to regulate the new pattern of the relationship between the State and the owner in regard to the terms on which the property is to be held, that Section 11 as also some other provisions of the Act had been devised."

(12) Therefore, the question as to who is the owner of the suit property has to be gone into independently, irrespective of the allegation that a patta was granted in respect of the suit property under the Estates Abolition Act. Since Ex.A.11 is not the patta, which is the primary evidence, and is only an extract from the revenue register, it is secondary evidence on the issue relating to grant of patta. Since no record from the Office of the Settlement Officer was summoned to show that the Settlement Officer examined the history of the suit property, and since Supreme Court in KESHAVRAM case (5 supra), JAGTSINGH case (6 supra) and M.PAPAIAH case (7 supra) held that entries in revenue records do not confer title, nor are conclusive of

title, relying merely on Ex.A.11 and Ex.A.12 appellants cannot seek a declaration of their title to the suit property.

(13) In para III (i) of the plaint it is alleged that as per judgment in O.S.No.183 of 1932 Ramakrishnaiah's branch has no share in S.No.55. But Ex.A.11 shows that Telikapalli Rama Krishnayya was also granted a patta in S.No.55. During the course of evidence, the case of appellants is that Rama Krishnaiah referred to in Ex.A.11 is the son of Subbaiah, but not son of Gopala Krishnaiah, the father-in-law of Arundhatamma, who is the vendor of 1st respondent. 'Stet' written near the rounding off of the name Subbaiah is also taken as a ground to support the contention of appellants. The meaning of 'Stet', as per dictionary, is "Let it stand; a direction used in proof reading to indicate that a word, letter etc., marked for correction or omission is to remain". It is unnecessary for us to go into the meaning of 'stet' for deciding this appeal because the remark "patta granted" is not written in the column where 'stet' was written in Ex.A.11. In the column next to it some names are mentioned, after the remark "patta allowed u/s.15 in ASO ELR-A..No.58/60 dated 28.11.60 to". In those names the name of Telikapalli Rama Krishnaiah also is mentioned. Whether the said Rama Krishnaiah is the son of Subbaiah or the son of Gopala Krishnaiah, he should be the grandson of Rama Krishnaiah. As per the allegations in the plaint, the branch of Ramakrishnaiah has no share in S.No.55. No person by name Rama Krishnaiah is shown in Ex.A.2, in the branch belonging to Purushottam, the ancestor of the vendors of the appellants. Appellants who took a plea in the plaint that Ramakrishnaiah's branch has no share in S.No.55, cannot now shift their stand and contend that Rama Krishnaiah mentioned in Ex.A.11 is not the husband of Arudhatamma, because it is settled law that evidence not supported by pleadings cannot be taken into consideration for deciding the case. This apart DW.2 who is Rama Krishnaiah s/o Subbaiah, swore to the fact that he is not Rama Krishnaiah mentioned in Ex.A.11. All these apart the question as to who is Rama Krishnaiah, to whom patta is granted, as mentioned in Ex.A.11, may be relevant for deciding the title of 1st respondent, but not for deciding title of the appellants. As stated earlier it is not necessary to decide 1st respondent's title, for deciding this case because appellants have to succeed on the strength of their own title only, but not on the weakness of the case of respondents 1 and 2. So 'stet' in Ex.A.11 pales into insignificance.

(14) C.M.P.No.13614 of 2000.

Appellants filed this petition seeking leave to amend the name of the husband of Arundhatamma as Rama Krishna Sastry, in place of Rama Krishna, in the plaint and in Ex.A.2, on the ground that by mistake the word 'Sastry' was not suffixed to 'Rama Krishna'. The said petition is opposed by the respondents 1 and 2.

(15) Both parties adduced evidence in the trial Court on the aspect as to whether the name of the husband of Arudhatamma is Rama Krishna or Rama Krishna Sastry, or both, and the trial Court gave a finding against the appellants. Obviously appellants are seeking the amendment, by this petition, to substantiate their contention that Rama Krishna mentioned in Ex.A.11 does not refer to the husband of Arundhatamma, and he should be Rama Krishna son of Mukku Subbaiah. As stated earlier Ex.A.11 is of little help for deciding this appeal. In fact, the question as to what is the actual name of the husband of Arundhatamma is not relevant for deciding the title of appellants because they are not claiming title through Arundhatamma.

(16) In Modi Spinning and Weaving Mills Limited vs.Ladha Ram & Co.20 the Supreme Court held that an amendment introducing an entirely different case and seeking to displace the plaintiff completely from the admissions made by the defendant in the written statement, is liable to be rejected. In Hiralal vs. Kalyan Lal21 defendant who filed a written statement making certain admissions in favour of the plaintiff, sought an amendment, after issues were framed by the Court on the basis of the admissions, seeking permission to withdraw the said admissions. Supreme Court dismissed that petition on the ground that such withdrawal would cause irretrievable prejudice to the plaintiff. The ratio in those decisions also applies to cases of petitions for amendment to withdraw earlier admissions made in the plaint. The averments in the plaint and also Ex.A.2, show that the name of the husband of Arundhatamma is Rama Krishnaiah. Only after obtaining a copy of the death certificate of the husband of Arundhatamma, in which his name is shown as Rama Krishna Sastry, appellants changed their stand and started contending that the name of the husband of Arundhatamma is Rama Krishna Sastry, but not Ramakrishna or Ramakrishnaiah. The vendors of appellants, being the close relatives of Arundhatamma should be imputed with knowledge of name of her husband. Nothing prevented the appellants from filing a petition for amendment when the case was pending in the trial Court. Without filing a petition for amendment in the trial Court, and after the trial Court gave an adverse finding against them, appellants, by this petition, are trying to wriggle out the admissions made by them earlier. They did not even try to explain the reasons for their not seeking the amendment in the trial Court. Since the petition is designedly filed to get over the adverse finding of the trial Court, and since reasons for not filing the petition in the trial Court are not given or explained, and since prayer for amendment of pleadings to withdraw the admissions made earlier cannot be granted at a belated stage of appeal after an adverse decision was given by the trial Court on the basis of the admission made by a party, C..M.P.No.13614 of 2000 is dismissed.

(17) Before parting with the petition, we wish to add that in Brahmin community 'Sastry', 'Sarma' or 'Pantulu' are usually suffixed to the names given to the individuals, though they are not named as such. Those suffixes, probably, were intended to reveal the caste of the individual. In Reddy community people suffix "Reddy", In Kamma community, people suffix 'Choudary'. In Vysya community people suffix 'Gupta' or 'Setti' or 'Shetti'. In Balija community 'Goud' is suffixed to the name and so on. Therefore, whether the suffix, which is intended to reveal the caste of the individual, is included or omitted while mentioning the name of an individual, is not much of relevance for finding out the real or actual name given to an individual.

(18) C.M.P.Nos.13613 and 13614 of 2000.

C.M.P.No.13613 of 2000 is filed to receive copies of the statement, declaration in C.C.No.1/OGL/75 filed by T. Satyanarayana under A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, the verification report and the order passed in the said C.C. as additional evidence in the appeal on the ground that the trial Court did not properly appreciated the contention that T. Satyanarayana filed Ex.A.39 declaration that he has Ac.16.25 cents in S.No.55 in Rajupalem Laxmipuram village, merely because Ex.B.27 shows that only Ac.2.25 cents in S.No.55 was computed to his holding. The contention of the appellants is that an error kept in Ex.B.27 order of the Tribunal, by typing Ac.2.25 cents against S.No.55 instead of typing that extent against S.No.66, and by typing Ac.16.25 cents against S.No.66 instead of S.No.55. C.M.P.No.13614 of 2000 is filed to summon the originals of the documents produced along with C.M.P.No.13613 of 2000. The contention of the appellants is that since the trial Court did not refer to submissions made about the typographical or clerical error mentioned above these petitions are filed to substantiate their case. In his statement before the Land Reforms Tribunal, no doubt, T.Satyanarayana seems to have stated that he has Ac.2.25 cents in S.No.66 and Ac.16.25 cents in S.No.55, as mentioned in Ex.A.39. Appellants utilised the opportunity to adduce rebuttal evidence, after the respondents closed their evidence in the trial Court. They were very much aware that respondents 1 and 2 filed Ex.B.27 to show that only Ac.2.25 cents in S.No.55 was computed to the holding of T. Satyanarayana. Yet they did not take steps to produce the documents now sought to be introduced as additional evidence. They had ample opportunity in the trial court to summon the documents now sought to be summoned. But they did not do so. Ex.B.27 was marked during the chief-examination of DW.1, on 20.1.1998. After closure of the evidence on behalf of respondents 1 and 2, appellants began their rebuttal evidence on 17.12.1998 by further examining PW.1. PW.3 was examined on 15.4.1999. It is thus clear that appellants had taken about ten months for adducing their rebuttal evidence. Reasons for their failure to produce certified copies of documents now sought to be summoned in the trial Court are not stated. Therefore they cannot now be permitted to introduce additional evidence at this stage. Out of four documents now sought to be introduced as additional evidence, two documents i.e., declaration (Ex.A.39) and order of the Land Reforms Tribunal (Ex.B.17) are already on record. Certified copies of verification report and statement of T. Satyanarayana could have been obtained and filed in the trial Court itself. But it was not so done. Petition for summoning the originals of the documents now sought to be introduced as additional evidence in an appeal, cannot but be said an abuse of process of the Court. Hence both the petitions are dismissed.

Point in the appeal:

(19) 1st appellant (1st plaintiff) is described in the cause title as "Sajana Granites" represented by its partner Parvatareddy Jayaramireddy. But in para- iii(a) of the plaint, it is stated "the plaintiffs1 and 2 are partners of 'Sajana Granites' bearing registration Number 448/92 dated 9.7.1992'. From the said averment it is clear that the suit was intended to be filed by P. Jayarami Reddy, and 2nd appellant, as partners of Sajana Granites', but not on behalf of the firm "Sajana Granites", and did not treat 'Sajana Granites' as the 1st plaintiff. Rule 1 of Order 30 C.P.C. enables the persons claiming as partners of a firm suing in the name of the firm, and any one of the partners of the firm signing and verifying the pleadings on its behalf. Therefore, if the plaint is filed in the name of a firm represented by a partner, the partner who signs and verifies the plaint should disclose that he is affixing his signature to the plaint on behalf of the firm being represented by him. Therefore, if P. Jayarami Reddy intended to sign the plaint on behalf of "Sajana Granites" he should have affixed his signature to the plaint and the verification therein on behalf of "Sajana Granites". He did not do so in this case. The plaint is signed and verified by (1) P. Jayarami Reddy (2) K. Ambazagan and (3) A. Venkata Ramaiah individually, but not on behalf of, or representing someone else. It has to be treated so because P. Jayaramireddy and A. Venkata Ramaiah did not mention above their signatures in the plaint, that they are signing on behalf of "Sajana Granites" and 3rd plaintiff respectively. Therefore, technically, it has to be taken that they affixed their signatures to the plaint in their individual capacity and not on behalf of, or representing any other party. Since claim of 3rd plaintiff was dismissed we need not consider the effect of A. Venkata Ramanaiah not signing and verifying the plaint as the general power of attorney of the 3rd plaintiff. Since P. Jayarami Reddy did not affix his signature, and did not verify the plaint for and on behalf of "Sajana Granites", it has to be taken that nobody signed and verified the plaint for and on behalf of "Sajana Granites" and so P. Jayarami Reddy has to be taken as the 1st plaintiff. The averment in para iii(a) of the plaint that plaintiffs 1 and 2 are the partners of "Sajana Granites", referred to above, supports this view. Rule 26 of the Civil Rules of Practice, which requires one of the plaintiffs signing each page of the plaint is also not followed in this case. It is distressing to note that, of late, in many courts Civil Rules of Practice are followed more in breach than in practice. It is not a healthy trend. No doubt parties may not be non-suited for mere breach of Civil Rules of Practice, but the proceedings have to be returned for compliance with the Rules, because Civil Rules of Practice are made and are intended to be followed, but not to be ignored. It is unfortunate that checking staff, either due to ignorance or otherwise are not insisting on compliance with the Civil Rules of Practice and some times the provisions of C.P.C. also. We hopefully wish that at least from now onwards the checking staff, and all the concerned, would take some interest and insist on compliance with the provisions contained in the Civil Rules of Practice and Code of Civil Procedure.

(20) From Ex.A.1, an extract in form No.A, maintained by Registrar of Firms under Rule-5 of Partnership Rules, it is seen that Anantabatla Venkata Ramanaiah, Ananthabhatla Ramalakshmi, Vishnu Vajhula Venkateshwarlu, Vishnuvajhula Ram Kumar, Vadlapati Venkata Satya Sudharshan Babu, Kuppuswamy Pandurangam, P.Jayarami Reddy and A.Rama Sheshaiah are the partners of the firm "Sajana Granites", which was registered on 9.7.1992 with the Registrar of Firms. Since all the partners of "Sajana Granites", are not parties to the suit and since only two of the partners thereof, in their individual capacity, filed the suit, a decree in favour of 'Sajana Granites' declaring its title to the suit property cannot be granted, because the plaint is not property presented on its behalf, though shown as 1st plaintiff and 1st appellant.

(21) Ex.A.3 sale deed in favour of 'Sajan Granites', basing on which, title to the suit property is being claimed, shows that Ananthabotla Venkata Ramanaiah, as power of Attorney of Telikapalli Audilakshmamma wife of Satyanarayana, Boddupalli Sukumari wife of Chandresekhara Rao, Boddupalli Chandrasekhara Rao son of Parthasaradhi, Telekepalli Vydehi wife of Srinivasa Rao and Ananthabotla Venkata Durgamba wife of Radhakrishnaiah (3rd plaintiff) executed it in respect of Ac.1-50 cents in D.No.54/2, Ac.0-33 cents in D.No.55/2, and Ac.6-00 in D.No.55/6 within the boundaries mentioned therein. We are not concerned with item Nos.1 and 2 of Ex.A.3. Item No.3 of Ex.A.3 consisting six acres, is the suit property. The important recitals in Ex.A.3 read as under:

"Whereas the vendor is absolute owner in possession and enjoyment and position (sic) inter alia of property in Rajupalem Lakshmipuram described in the schedule hereunder and hereafter referred to as the schedule property having acquired the same under family settlement No.5545/1919 dated 25.11.1919 of District Registrar's Office, Guntur and title confirmed under judgment OS No. 183 of 1932 dated 12-5-1932 of District Munsif Court, Ongole in favour of Telikepalli Krishnaiah from whom the property descended whereas the vendor agreed to sell and the purchaser has agreed to purchase the said schedule property subject to the terms and conditions of the above said registered firm and measuring Ac. 7- 83 cents of R.L. Puram for a sum of Rs. 16,000/- only and purchaser has paid to vendor an amount of Rs. 16,000/-. The vendor hereby acknowledge the receipt of entire consideration of Rs. 16,000/- only paid by the purchaser as aforesaid to the vendor. The vendor is absolute owner. Hereby grant transfers and conveys unto the purchaser all the schedule property to hold the same and to be enjoyed by the purchaser with absolute rights".

The preamble of Ex.A.3 shows that the market value of the property sold thereunder, as per the basic value register, was Rs.67,500/-. The recitals extracted above show that the sale consideration of Rs.16,000/- was paid by the vendee to the vendors earlier. The suit was filed in November 1992 about one month after purchasing the suit property and other properties under Ex.A.3. In the plaint the value of the suit property is shown as Rs.1,50,000/- per acre. The steep appreciation in the value of the suit property by more than 100% of the value shown in the basic value register, would not have taken place in just one month time. So it has to be taken that even by the date of Ex.A.3 the value of the suit property must have been about a lakh per acre. Since Ex.A.3 is dated 4.8.1992, and since Ex.A.1 shows that the firm 'Sajana Granites' was constituted on 2.7.1992 and registered on 9.7.1992, it is clear that within one month from the date of registration of 'Sajana Granties', A. Venkata Ramanaiah, who is the first partner of the firm 'Sajana Granites' and power of attorney of the executants Ex.A.3, had executed the sale deed in favour of the firm "Sajan Granites" for a consideration far far less than the market value. (22) Ex.A.4 dated 6.1.1992 under which the two daughters-in-law of T.China Krishnayya i.e., Audilakshmamma and Vaidehi, the daughter and son-in-law of the said Audilakshmamma i.e, Sukumari and Chandra Sekhar Rao gave power of attorney to A.Venkata Ramanaiah, who is the grand son of T.China Krishnayya through his daughter 3rd plaintiff, does not disclose either the S.Nos. or the extent of property in respect of which they gave the power of attorney Only an omnibus statement that power in respect of their joint land in Survey number in east and West Khandam of Rajupalem Lakshmipuram was given thereunder. In fact no reference to any patta given under the Estates Abolition Act also was made therein. In Ex.A.5 power of attorney given by 3rd plaintiff to her son A.Venkata Ramanaiah on 27.3.1980, there is no mention of either Rajupalem Lakshmipuram village, or the land situated therein obviously because 3rd plaintiff knew that she had no land in that village by that date, as seen from Ex.B.40. The names of other villages only are mentioned therein. Therefore by virtue of Ex.A.5, A.Venkata Ramanaiah does not have the authority to sell the lands of 3rd plaintiff at Rajupalem Lakshmipuram, even if she has lands therein. Therefore even if 3rd plaintiff had any right in the suit land, the same would not stand conveyed to 'Sajana Granites' by virtue of Ex.A.3, because power to alienate the land at Rajupalem Laxmipuram village, belonging to 3rd plaintiff, was not given to her power of attorney who executed it.

(23) For reasons best known to the appellants, they did not produce the deed of partnership of 'Sajana Granites' to enable the court to find out the shares of each partners therein. During cross examination P.W.2, who is an attestor to Ex.A.3, admitted that he is the brother of Alhari Rama Seshaiah who was shown at S.No.9 of Ex.A.1 as a partner of 'Sajana Granites', and that the other attestor to Ex.A.3 is the son of the said Rama Seshaiah. It is thus clear that both the attestors to Ex.A.3 are close relatives of the partners in 'Sajana granites' the vendee thereunder. The evidence of P.W.2, during cross examination, shows that Ex.A.3 was typed to his dictation in English, and that he does not know whether the land with granite, by the date of Ex.A.3 was being sold at the rate of Rs.2 to 3 lakhs per acre in that area, and that his brother informed him that the land was being purchased at Rs.4000/- per acre. That statement prima facie cannot be true, because the total extent of land covered by Ex.A.3 is nearly eight acres. If consideration was fixed at the rate of Rs.4000/- per acre the cost of about 8 acres would be nearly Rs.32,000/- but not Rs.16,000/- as shown in Ex.A.3. Since stamp duty as per the basic value register at Rs.67,500/-, was paid, if sale consideration is mentioned as Rs.32,000/- instead of Rs.16,000/- as shown in Ex.A.3, there would not have been any problem for registration of Ex.A.3. P.W.2 who is a retired Sub Registrar, and who allegedly gave instructions for drafting of Ex.A.3, would not have failed to note that fact. The probability for mentioning a small amount might be that the account books of 'Sajana Granites' disclose that much cash only being available with it. We would like to refer to the evidence of P.W.3 here. She stated that before she executed Ex.A.4, D.W.1 approached and asked her to sell the land at a price of Rs.8000/- per acre, and as she was not aware that it is a granite land, she agreed to sell it at that price, and went to the Registrar's Office to execute the sale deed, and when she found that there was an alteration in the extent of land covered by the sale deed, she tore away the sale deed and refused to sell the land. Assuming what she stated about the alteration and her tearing away the sale deed are true, the earlier part of her above evidence shows that even before she executed Ex.A.4 on 10.6.1992, she knew that the value of her land in respect of which she gave Ex.A.4 to A.Venkata Ramanaiah was not less than Rs.8000/- per acre, when she (allegedly) was not aware of granite being available therein. When price of Rs.8000/- per acre was offered for the suit land, even prior to Ex.A.4, would any prudent person agree to sell the same land, subsequently, for about Rs.2000/- per acre? The answer, naturally, would be an emphatic "No". The very low price mentioned in Ex.A.3 is a circumstance to doubt the genuineness of Ex.A.3.

(24) There is yet another angle to doubt the genuineness of Ex.A.3. A.Venakta Ramanaiah, as power of attorney of the executants of Ex.A.3 sold the land thereunder to 'Sajana Granites', of which he is the first partner and his wife is the 2nd partner. His father-in-law, brother-in-law and others also are partners in the said firm. Since A.Venkata Ramanaiah, the power of attorney of the executants of Ex.A.3 is also one of the beneficiaries of the sale under Ex.A.3 for a consideration, far, far below the market price, the transaction, prima facie, is hit by Section 215 of the Contract Act, which lays down that an agent should not deal on his own account in the business of agency without obtaining the consent of the principal and acquainting him with all material information known to him on the subject. It is no doubt true that Section 215 of Contract Act enables principal only to repudiate the contract, but not a third party, and P.W.3, who is one of the principals, of A.Venkataramanaiah, did not state that she repudiated Ex.A.3. But, for the reasons best known to them, appellants did not examine Adi Lakshmi and Sukumari to swear to the fact that they know that they have a right in the suit property and that they had no objection for a firm in which A.Venkata Ramanaiah, their agent, is a partner purchasing the property belonging to them for a price far far less than the market price. This is another circumstance to doubt the genuineness of Ex.A.3 (25) The allegation in para 3(o) of the plaint reads:

"On the date when O.S.No.221/92 is filed by the 3rd plaintiff through her General Power of Attorney agent, the entire extent in S.No.55/6 is found to be joint and undivided and it is not subdivided"

Ex.B.49 is a copy of the plaint in O.S.221of 1992 filed by the 3rd plaintiff through her son and her power of Attorney A.Venkata Ramanaiah in respect of (i) Ac.39-56 cents in S.No.55/B bounded on East: Chimakurthy Polimera; South: Land in S.No.55/5 belonging to Government of A.P. surrendered by G.V.Subrahmanaym; West: Land of cattle breeding centre in S.No.55/4A; North: Land of cattle breeding centre in S.No.55/4A again waste land of cattle breeding centre in S.No.55/4 A, again North : Ongole - Kurnool road; and (ii) Ac.45-90 cents in S.No.55/6 bounded on East: Chimarkurthy Polimera, South: Land in S.No.121, 123 and 124, West: Land in S.No.119 and 54 and North: Government ceiling land. The averments in para 3(a) of Ex.B.49 read as follows:

"The lands in Thurpu Kandrika are rocky and non-agricultural lands. The plaintiff is the joint pattadar in the plaint schedule property and item No.1. It is a single plot having joint right, title and possession. Item No.1, it is lying as a single individual plot without any signs and symptoms of partition or separate possession with separate boundary stones or ridges. So much so in S.No.55/6 of R.L.Puram village" (underlining ours)

In para 3(b) it is alleged:

"Plaintiff also came to know that some business people have applied for licences for excavation of granites in the schedule property and they also made an application for the grant of non-objection certificate and transport licences"

When in July, 1992, the 3rd plaintiff, and also her power of attorney, A.Venkata Ramanaiah were aware of the fact that the land in S.No.55/6 also has granite, and that several people made applications, why the vendors under Ex.A.3 entered into a transaction of sale in respect of land in S.No.55/6, at about Rs.2000/- per acre, which is far below the market rate, is not explained. In view of all the above facts and circumstances, the only inference that can be drawn in that Ex.A.3 might have been brought into existence by A.Venkata Ramanaiah, who executed Ex.A.3 as general power of attorney of the Vendors thereunder in favour of 'Sajana Granites', in which he, his wife his close relatives and others are partners, to make it appear that the Vendee is a bona fide purchaser, and is a stranger to the family and is claiming a right to the suit property, by virtue of a sale deed executed by the persons whose ancestors had title to the property sold there under, when in fact the major beneficiaries of the sale under Ex.A.3 would be A.Venkata Ramanaiah, the de facto executant of Ex.A.3 sale deed and his family members. This is so because a firm unlike a company, is not different from its partners, and the title to the property purchased by a firm, vests in the partners of that firm, in accordance with their share in the firm. Therefore, even though a sale deed is taken in the name of the firm, the partners of the firm would be the actual owners of the property purchased by the firm. The fact that two strangers only are shown as partners representing the firm shows that A.Venkata Ramaniah tried to camouflage his association with the firm "Sajan Granites".

(26) The source of title, as per the recitals in Ex.A.3, is the family settlement dated 25.11.1919, confirmed in O.S.No.183 of 1932 on the file of the Court of the District Munsif, Ongole. No reference to patta in favour of T. Krishnaiah, or any body else under Estates Abolition Act is made in Ex.A.3. The averments in sub para "a" to "g" up to the middle portion of "h" of para III of the plaint also read as if the source of title of the vendor of the appellants is the compromise decree in O.S.No.183 of 1932. About five years after institution of the suit, appellants filed I.A.No.1519 of 1992 seeking amendment to the plaint, by taking a plea that since T. Chinna Krishnaiah, predecessor in title of vendors of appellants, obtained Ryatwari patta under the A.P. Estate Abolition and since the names of T.Ramakrishna Sastry or his father Gopala Krishnaiah do not find place in the patta, and since the decision of the Settlement Officer under the A.P. Estate Abolition Act cannot be questioned in a civil Court, they are entitled to a decree. This fact clearly establishes that neither the appellants, nor their vendors were aware of the patta proceedings at the time of Ex.A.3 and even by the date of institution of the plaint. If the vendors of appellants, or appellants had knowledge of the patta under Estates Abolition Act there was no reason for not mentioning that fact in Ex.A.3. As appellants who took a specific plea by way of amendment to the plaint that Chinna Krishnaiah obtained Ryotwari patta under the Estates Abolition Act, failed to produce the same into court, the only inference that can be drawn is that no patta was issued in favour of Chinna Krishnaiah.

(27) To be entitled to a decree in their favour, appellants have to establish, by acceptable evidence, that the suit property was allotted exclusively to the branch of T.China Krishnaiah. Ex.A.2 is the geneology of Telikapalli Krishnayya's family filed by appellants and Ex.B.3 is the geneology table of the same family, filed by respondents 1 and 2. Ex.A.2 and Ex.B.3 are the same, except for the fact that in Ex.B.3 the names of Purushotham, the brother and Tirupati the father of Krishnaiah, the progenitor, also are mentioned. Appellants contend that the suit property was allotted to the descendants of Mallaiah, son of Purushotham as shown in Ex.A,.2 and Ex.B.3, whereas the contention of respondents 1 and 2 is that the suit property was allotted to the descendants of Ramakrishnaiah, brother of Purushotham. The specific plea in para III(i) of the plaint is that as per the decree in O.S.No.183 of 1932 Rama Krishnaiah's branch has no land in "Turupu Kandika". But from a reading of Ex.A.29 with Ex.A.27 and Ex.A.28 it is clear that the descendants of Ramakrishnaiah also were made parties to O.S.No.183 of 1932,,and that they also were given land in Turpu Khandam, of which the suit property, admittedly, is a part. The present Survey Number is given to the suit land long subsequent to 1932. By 1932 the suit land was having another survey number. Therefore, it is for the appellants to establish the corresponding old survey number of the present S.No.55 or 55/6, and they should also establish that old S.No. corresponding to the present S.No.55 was allotted to China Krishnaiah as per the compromise decree i.e., Ex.B.22.

(28) In Ex.A.8, a registration extract of the sale deed dated 17.1.1968, executed by Telekpepalli Laxmi Narasamma, wife of Ramaswamy Sarma (plaintiff in O.S.No.183 of 1932 covered in Ex.A.27 to Ex.A.29) in favour of Bommisetti Mallikarjuna Rao, it is mentioned that Ac.17-95 cents sold thereunder is a part of old S.No.39 Ac.19-22 cents and old S.No.40 Ac.16-88 cents of Rajupalem Lakshmipuram village corresponding to New S.No.55 of the said village. The northern boundary of the land sold thereunder is shown as the land belonging to Telekapalli Ramakrishnaiah and others to some extent. From Ex.A.2 it is seen that no person by name Ramakrishnaiah is there in the branch of Mallaiah adopted son Purushotham, through whose descendants appellants are claiming right to the suit property. There are two Ramakrishnaiahs in the descendants of Ramakrishnaiah, brother of Purushotham i.e., Ramakrishnaiah son of Gopala Krishnaiah who is the husband of Arundhati, the vendor under Ex.B.5, and Ramakrishnaiah adopted son of Mukku Subbaiah. Therefore, it is clear that T.Ramakrishnaiah, in the branch of Ramakrishnaiah brother of Purushotham was having land in S.No.55 corresponding to old S.No.39 and 40 even during 1968. Here it must be stated that we are alive to the fact that for proving the boundary recitals in documents which are not inter parties, the executant of the document has to be examined, and the executant of Ex.A.8 is not examined by either party. We are considering the boundary recital in Ex.A.8, a document produced the appellants themselves, only to examine the truth of the averment made in the plaint that Rama Krishnaiah's branch was not given any land in Turupu Kandrika or Khandam, but for not giving a relief on the basis of those recitals to any of the parties.

(29) P.W.1 is the 2nd plaintiff and a partner of 'Sajana Granites'. He is described in the plaint as a person aged 40 years, hailing from Aruthawadi village of Tamilnadu state. He cannot be expected to, and does not even claim, personal knowledge of the events that took place prior to the purchase under Ex.A.3. So all his statements in relation to events that happened during compromise in O.S.No.183 of 1932 etc., are in the nature of hearsay, or are must be based on the recitals in documents. Surprisingly he pleaded ignorance of the relationship between A.Venkata Ramanaiah and other partners of 'Sajana Granites' though he also is a partner of the same firm, which prima facie shows that he is hiding truth for obvious reasons. His evidence is that suit property is in eastern Kandrika and that items 1 to 21 of B schedule in the compromise decree in O.S.No.183 of 1932 i.e., Ex.A.29, are now in S.No.55, and that China Krishnaiah and Purushotham (brother of China Krishnaiah and father of Ramaswamy Sarma, plaintiff in O.S.No.183 of 1932) have 1/24th share jointly in items 23 to 44 of B schedule (covered by Ex.A.29 compromise decree). From Ex.A.29 it is seen that defendants 15 to 19 in O.S.No.183 of 1932 are T.Krishnaiah, Gopala Krishnaiah, Subbaiah (all sons of Ramakrishnaiah), Peda Venkata Subbaiah and China Venkata Subbaiah son of Tirupataiah, who is another son of Ramakrishnaiah. They belong to the branch of Ramakrishnayya, brother of Purushotham as shown in Ex.A.2. Para III (c) at page 4 of the compromise petition attached to Ex.A.29 compromise decree, which relates to items 25 to 44 of the plaint B Schedule of O.S.No.183 of 1932 reads as under:

"

"

which clearly shows that Rama Krishnaiah's branch also has a share in Turupu Kandrika or Khandam. As stated earlier Ex.A.9 also shows that Ramakrishnaiah's branch also has a share in S.No.55. The evidence of P.W.1 that the boundaries in Ex.A.8 are not correctly mentioned is only a self-serving statement, without any corroboration, because as stated above he cannot and does not claim personal knowledge of the events that took place prior to Ex.A.3. In fact he clearly admitted that he has no personal knowledge. P.W.2 is an attestor to Ex.A.3 and has no knowledge of the title of the vendors under Ex.A.3. The evidence of P.Ws.1 and 2 therefore does not establish that the executants of Ex.A.3 have title to the suit property.

(30) Here we would like to refer to a point, which was not raised during the course of arguments by the learned counsel, on the aspect of adducing rebuttal evidence. As per Rule 3 of Order 18 CPC when there are several issues, the burden of proving some of which lies on the other party, the party beginning can reserve his right to adduce rebuttal evidence in respect of those issues on which the burden of proof is on the opposite party. The docket shows that appellants have reserved their right to adduce rebuttal evidence. From the issues as framed by the trial Court, only on issue No.6 (Whether plaintiff No.3 has no right or possession in S.No.55) and issue No.7 (whether the first defendant sold 3 acres and put D.2 in possession under sale deed dt.18.6.1992) the burden of proof was placed on respondents 1 and 2. Issue No.8 was not properly framed, as it wrongly cast the burden of proof on respondents 1 and 2. It reads 'whether plaintiff No.3 executed a spurious sale deed in favour of plaintiffs 1 and 2 and got the suit filed?' Since appellants filed the suit for declaration of their title to the suit property, and since respondents 1 and 2 contend that the sale deed, basing on which the appellants filed the suit, is not genuine, in view of Sections 101 to 103 of the Evidence Act, it is for the appellants, who are plaintiffs, to establish the truth and genuineness of the sale deed being relied on by them. There is no presumption that all registered sale deeds are true and genuine. If their truth and genuineness of a sale deed is put in issue, the party relying on it should prove it. Hence issue No.8 ought to be "whether the sale deed dated 4.8.1992 in favour of plaintiffs 1 and 2 is true and valid" but not as framed by the trial Court. Be that as it may, since respondents 1 and 2 did not seek an amendment to issue No.8, and since the Court below also did not think it fit to amend issue No.8, suo motu, as per the power vested in it by virtue of Rule 5 of Order 14 CPC, appellants can be taken to have a right to adduce rebuttal evidence on issue No.8 also, and therefore rebuttal evidence could have been adduced by appellants only on issues 6 to 8 but not on other issues. Since issue No.6 relates to 3rd plaintiff whose suit was dismissed, question of adducing rebuttal evidence on issue No.6 does not arise. On issue No.7 the rebuttal evidence can be on the aspect of 1st respondent selling 3 acres from out of the land purchased by him and putting 2nd respondent in possession thereof. On issue No.8 the rebuttal evidence ought to be in respect of genuineness of Ex.A.3 only. But the rebuttal evidence adduced by recalling PW.1 for further examination, and by examining P.W.3, was not confined to issues 7 and 8, and evidence on all the issues was adduced through them i.e., P.Ws. 1 and 3. That apart several uncertified Xerox copies, some of which are illegible, and undecipherable are allowed to be brought on record. The record is heavily burdened with irrelevant and unnecessary oral and documentary evidence. Courts should not be mute spectators during the course of trial and should be alert, and see that no irrelevant and unnecessary oral or documentary evidence, which has no relation to the facts in issue or relevant facts, is brought on record. Uncertified Xerox copies of copies of documents are inadmissible evidence, being copies of copies which is secondary evidence. For bringing secondary evidence on record conditions laid down in Section 65 of Evidence Act have to be satisfied. When illegible or undecipherable documents are produced by parties court should insist on production of neat and readable copy thereof being filed. The rejoinder filed by the appellants is more in the nature of written arguments. Rule 2 Order 6 C.P.C. is also ignored. Be that as it may, since evidence came on record without any objection seemingly taken for its being brought on record, and since no arguments were addressed in that regard before us, we would consider the entire evidence on record for disposal of this appeal.

(31) P.W.3, one of the executants of Ex.A.4 power of attorney, and one of the DE JURE executants of Ex.A.3 was examined on commission by the Principal Senior Civil Judge, Guntur on 15.4.1999 at Guntur, as rebuttal evidence. During chief-examination she stated

"Smt.Arundhatamma w/o Ramakrishna Sastry had no right at all in item No.1 of plaint schedule property. Four years back I had seen Arundhatamma in Guntur. At that time she was cooking food to her grand sons in a rented house in Bordipet, Guntur. I questioned Arundhatamma whether she had got any right in item No.1 of plaint schedule property. She replied that D.W.1 approached her and offered her some amount and as she was suffering financially for food and clothing she received the said amount and she signed on a document which was fabricated by D.W.1 as if she has got right over item No.1 of plaint schedule property."

The above statement of P.W.3, if at all, establishes that Arundhatamma in fact executed Ex.B.5 sale deed after receiving consideration. It is pertinent to note that Ex.B.5 is dated 30.1.1992, which is long prior to Ex.A.4 dated 10.6.1992, and Ex.A.3 dated 16.6.1992, and the alleged meeting of Arundhatamma by PW.3 was about 4 years prior to 1999 i.e., 1995, three years after the filing of suit by her (alleged) vendees. No ordinary prudent person would, after disposing of a property, enquire another if that person has a right in the property disposed of earlier by him. If P.W.3 wanted to make an enquiry about the right of Arundhatamma in the suit property, she would have made that enquiry prior to Ex.A.3 being executed by her power of attorney. Three years after her power of attorney executing Ex.A.3, there could be no earthly reason for PW.3 trying to find from Arundhatamma if she (Arundhatamma) had a right in the suit property. Therefore the evidence of PW.3 that Arundhatamma informed her that she has no right in the suit property, cannot be true. More over whether or not Arundhatamma has a right in the suit property, relates to the question of title of respondents 1 and 2, because they trace their title through Arundhatamma, and it has nothing to do with the title of the vendors of the appellants. As stated above appellants would not be entitled to a relief, on the ground that respondents 1 and 2 failed to establish their title. Therefore, even assuming what PW.3 stated is true, it only shows that Arundhatamma did not claim a right in the suit property. That statement does not establish the title of P.W.3 or her co-sister Adilakshmi.

(32) P.W.3 stated that she does not know the extent of land given to her father- in-law Chinna Krishnaiah towards his share in S.No.55, and as to how much extent of land was allotted to the share of her husband and his brother Satyanarayana in S.No.55/6, and that she does not know how much land in S.No.55/6 was sold away by her husband and how much land is still remaining, and that neither she nor her father has knowledge about the land owned by her husband in Rajupalem Lakshmipuram, and that she cannot say how much extent of land Smt.Audi Laxamma, Smt.Sukamari and Chandra Shekar were having in S.No.55 and 55/6 and the extent of land sold by them, and that she is not aware of 1919 partition deed (Ex.A.30) or the passing of final decree in O.S.No.183of 1932 (Ex.B.23 which is the same as Ex.A.29) and that she did not go through those documents, and that Sri A.Venkata Ramanaiah did not ever inform her about Ex.A.30 or Ex.B.23 and that neither she nor her father ever stayed at Rajupalem Lakshmipuram, and since she was living at Guntur only she has no personal knowledge about her lands, and that A.Venkata Ramanaiah never assisted her father in cultivation of the lands at Rajupalem Lakshmipuram, and that she has no personal knowledge whether she got land in S.No.55/6, and did not make any attempt to verify the revenue record to know whether she has land in Sy.No.55/6 or not, and when she executed Ex.A.4 she was not aware that she has land in Sy.No.55/6, and that about two years back only she came to know that they still have land in S.No.55/6. This statement of P.W.3 that she came to know about two years back (i.e., long after the filing of the suit) about her having land in S.No.55/6, even if true, only establishes that her statement in chief examination that when she met Arundhatamma about four years prior to her giving evidence she made an enquiry about the right of Arundhatamma cannot be true, because at that time she was not even aware that she has a right in S.No.55/6.

(33) P.W.3 admitted that Exs.B.62 and 63 letters were written by her father. 2nd page in the 6 pages enclosed to Ex.B.62 letter dated 28.2.1991, contains the list of survey numbers belonging to Satyanarayana (husband of Adi Lakshmi), Srinivasa Rao (husband of P.W.3). In Ex.B.63 there is reference only to S.No.55 in the lands jointly held by Satyanarayana and Srinivasa Rao. The extent of S.No.55 is shown as Ac.38-50 cents. P.W.3 clearly stated that "out of full confidence in D.W.1 as a gentleman my father sent Ex.B.62 with enclosures to D.W.1" and that she came to know that D.W.1 cheated her only after Arundhatamma executed Ex.B.5 sale deed. D.W.1, in whom the father of P.W.3 had confidence as admitted by P.W.3, is a person aged about 72 years and admittedly was looking after the affairs of the husband of P.W.3. By Ex.B.62 the father of P.W.3 made a request to D.W.1 to assist P.W.3. Therefore, it is clear that D.W.1 has knowledge of the rights of the family members of P.W.3 in the lands at Rajupalem Laxmipuram village.

(34) Ex.B.40 is a copy of the order of the Land Reforms Tribunal in C.C.No.2342 of 1975 and 2096 of 1975, filed by A.Venkata Ramanaiah and his father Radha Krishnaiah i.e., son and husband respectively of the 3rd plaintiff. Neither of them disclosed in their declarations that they had right in any part of the land in S.No.55. If 3rd plaintiff was having a right in S.No.55 or 55/6 by 1975, her husband, who filed the declaration, would not have failed to mention S.No.55 in declaration. As stated in the earlier para 18, the declaration filed by the husband of 3rd plaintiff does not show that she has any property at Rajupalem Lakshmipuram village. For that reason, and since Ex.B.40 does not show that any party of land in S.No.55 or S.No.55/6 was computed to the holding of the father of A.Venkata Ramanaiah, it has to be taken that 3rd plaintiff did not have a right in any part of S.No.55 or S.No.55/6. Only A.Venkata Ramanaiah, a partner of 'Sajana Granites' and who also executed Ex.A.3 on behalf of 3rd plaintiff and others could explain the reasons for the 3rd plaintiff joining execution of Ex.A.3, when she has no right in the suit property as per Ex.B.40. But for the reasons best known to them, appellants did not examine A.Venkata Ramanaiah. Appellants tried to explain away his non- examination alleging that he is stone deaf, and so it would be very difficult to make him understand the questions. A witness without suffering the consequences for his non-examination, cannot be kept away from the witness box by a party to the suit by merely alleging that he is stone deaf. Such witness, who is said to be stone deaf should be brought to Court to enable the Court finding out if he can give evidence or not, after understanding the questions put to him, as it is for the court, but not for a party, to decide if a witness is capable of giving evidence or not. Section 119 of the Evidence Act lays down as to how the evidence of a dumb witness can be recorded. Usually deafness and dumbness go together. Since A.Venkata Ramanaiah one of the partners of the firm 'Sajana Granites' in whose favour he executed Ex.A.3 sale deed, as power of attorney of the vendors stood away from the witness box an adverse inference has to be drawn against the appellants.

(35) Under Exs.B.28 to B.32 T.Adilakshmamma wife of Satyanarayana (eldest son of China Krishnaiah and elder brother of Srinivasa Rao i.e., husband of P.W.3) her daughter Sukumari and son in law Chandrasekhara Rao had sold away ac 0-74 2/3 cents Ac.0-74 2/3 cents, Ac.0-43 2/3 cents Ac.0-42 2/3 cents and Ac.0- 37 1/3 cents respectively i.e. in all Ac.2-72 cents, in S.No.55/2. Ex.B.12 shows that on 14.12.1967 the said Satyanarayana sold Ac.8-97 cents in S.No.55 corresponding to old S.Nos.39 and 40. Ex.B.13 shows that on 29.12.1967 Srinivasa Rao, husband of P.W.3 and brother of the aforesaid Satyanarayana sold Ac.8-97 cents in S.No.55 corresponding to old S.Nos.39 and 40. As stated earlier Ex.A.8 also shows S.No.55 corresponds to Old S.Nos.39 and 40. Ex.B.22 are the schedules attached to the final decree in O.S.No.183 of 1932 with sketches showing measurements. Pages 5 and 10 of Ex.B.22 show that extents of S.No.39 A and 39 B is Ac.9-90 cents each, and that the extents of S.Nos.40 A and 40 B is Ac.8-40 cents each and that 39B and 40 A were allotted to the plaintiff and 39 A and 40 B were allotted to defendants 2 to 4 therein. Defendants 2 to 4 therein are T.Krishnayya and his sons Satynaraayana and Venkateswarlu. Venkateswarlu died. So his father and brothers must have become owners of his share by survivorship. Satyanarayana is the husband of Adilakshmi and Vaidehi is the widow of his brother Srinivasa Rao. In view of Exs.B.12 and B.13 it can be taken that property allotted to defendants 2 to 4 under Ex.B.22 in S.No.39 and S.No.40 was sold away there under. So prima facie they can have no land in S.Nos.39 and 40 (old) after Ex.B.12 and B.13. Adilakshmi and Sukumari as wife and daughter of Satyanarayana can claim a right in the estate left behind by Satyanarayana as legal heirs to his estate and cannot have a right in property alienated by him during his life time. Chandrasekhara Rao, husband of Sukumari, can have no right in the property of his father-in-law either during the life time or after the death of his father in law. Similarly Vaidehi (P.W.3) had no right in the property of her husband Srinivasa Rao during his lifetime. When the executants of Ex.A.8, Ex.B.12 and Ex.B.13 never seem to have questioned the recitals therein during their life time, their heirs, decades thereafter, cannot be heard to say that the recitals therein are not true.

(36) Ex.B.10 shows that Krishnaiah and his three brothers Gopala Krishnaiah, Tirupataiah and Subbaiah, who are the sons of Ramakrishnaiah (first branch in Ex.A.2) filed O.S.327 of 1923 against T.Mallaiah, adopted son of Purushotham (grand father of Ramaswami Sarma who filed O.S.No.183 of 1992), China Krishnaiah second son of Mallaiah and his son Satyanarayana i.e., husband of Adilakshmi and father of Sukumari (shown as 2nd branch in Ex.A.2) and others, for recovery of possession of land mentioned in 'A' schedule therein, corresponding to Ac.23.42 cents as per B(2) schedule in O.S.No.327 of 1923, and that the said suit was decreed in part with certain directions. Ex.B.11 shows that appeal in A.S.No.79 of 1927 preferred against the decree in O.S.No.327 of 1923 was allowed in part, and the suit was decreed for Ac.17.76 cents in S.No.43 and 42. B schedule attached to Ex.B.10 contains the details of old S.No., extent of new S.No., name of the owner, whether it is strottriam or inam etc.. It shows the extents of land in S.Nos.39 and 40 as Ac.19-80 cents and Ac.16-77 cents respectively. Ex.A.8 shows that the extent of Old S.No.39 as Ac.19.22 cents and Old S.No.40 as Ac.16.88 cents, almost the same as mentioned in Ex.B.10. In the rejoinder filed by them appellants admit O.S.No.327 of 1923, but contended that after disposal of that suit and O.S.No.183 of 1932 several changes had crept in and that O.S.No.327 of 1923 is not a suit for partition, but is a suit for adjustment after resumption of same land by the Government. So it is clear that appellants admit the filing of O.S.No.327 of 1923. In para 13 of Ex.B.10 judgment in O.S.No.327 of 1923 the learned District Munsif observed:

"The Commissioner was a Head Accountant in the Taluk Office and retired from service recently. His work in this requires great commendation. He has spent much labour and taken great pains to do the work and also to bring about the equalization. No better person can be thought of for the purpose. He has prepared Settlement Registers and sketches with great care and has observed the quality of each land and his classification, I think, is the correct one. The parties have, under the guise of the suit, got the whole village surveyed and settled and practically have derived all the benefit that they can, with the help of the commissioner. It is not an easy matter to have about 1,500 acres measured, stones fixed wherever missing and plotted and demarcated and classified. All these have been done by the commissioner. It is now ascertained........."

As stated above the decree passed in the said suit was modified in appeal accepting plans prepared by the commissioner. The plans prepared by the commissioner in O.S.No.327 of 1923 were relied on and accepted in O.S.No.183 of 1932 also. Since the compromise decree in O.S.No.183 of 1932 is based on the survey made in O.S.No.327 of 1923, and since appellants trace the title of their vendors to the decree in O.S.No.183 of 1932, the survey made in O.S.No.327 of 1923 can be made use of for locating S.No.55/6, of which the suit land is a part.

(37) D.Ws. 4 and 5 are survey officials. The evidence of D.W.4 a retired Deputy inspector of Survey is that at the instance of D.W.1 he prepared correlation plans as per the settlement registers, survey kandams relating to Turpu Khandrika and their individual survey sketches in O.S.No.327 of 1923, present existing survey sketches of S.No.55 and prepared Ex.B.58 after physical examination of the land with the help of D.W.1, and that S.No.55 corresponds to Khandam No.3 of Turpu Kandrika in O.S.No.327 of 1923, that the eastern and northern boundaries of S.No.55 and Khandam No.3 are the same, and that there is a Theodelite survey stone on the east of S.No.55, and that eastern and northern boundaries are not and cannot be altered and since the plans by the commissioner in O.S.No.327 of 1923 were drawn to scale, he enlarged the scale, overlapped it on the present survey maps and prepared Exs.B.58 and B.59 and that S.No.55/6 correlates to part of S.No.38, 39, 40 and part of 50 referred to in O.S.No.327 of 1923. During cross examination he stated that he does not know if S.No.55 consists of old revenue numbers 18, 17 P, 43 part and that he correlated the present S.No.55 with S.Nos. given by the Commissioner in O.S.No.327 of 1923. He was cross-examined at length with reference to the provisions contained in Survey and Boundaries Act and the Rules and other standing orders. The evidence of D.W.5, Mandal Revenue Surveyor is that he prepared Exs.B.55 and B.56 correlation sketches with reference to the sketches attached to the decree in O.S.No.327 of 1923, and that Ex.B.55 correlates to 3rd Khandam of combined sketch in O.S.No.327 of 1923 and Ex.B.56 correlates to part of old S.No.38, S.No.39, S.No.40 and part of S.No.50 shown in O.S.No.327 of 1923. He was also cross-examined at length with reference to the provisions of Survey and Boundaries Act and Rules made thereunder and other standing orders. Reference to Survey and Boundaries Act and the Rules made thereunder and other standing orders, for appreciating and evaluating the evidence of D.Ws.4 and 5 is wholly irrelevant and unnecessary, because they prepared correlation sketches Exs.B.55 and B.56, B.58 and B.59 with reference to the plans prepared by the Commissioner in O.S.No.327 of 1923, and the sketches of the present S.No.55, after verifying the boundaries. The eastern and northern boundaries, being road and village, both during the time of survey in O.S.No.327 of 1923 and now also, remained unchanged. Existence of Theodalite stone on east is not disputed or denied. Since the plans prepared by the commissioner in O.S.No.327 of 1923 were drawn to scale, the correlation made by D.Ws.4 and 5 with reference to the plans prepared by the commissioner in O.S.No.327 of 1923 and the present plan of S.No.55 cannot be doubted and disputed because both D.Ws.4 and 5 are connected with the survey department and have knowledge of survey and map drawing. It is not the case of the appellants that they do not know survey, or that they do not know preparation of correlation sketches. The evidence of D.Ws.4 and 5 is in the nature of expert evidence under Sections 45 of the Evidence Act. Since D.Ws.4 and 5 did not conduct an independent survey, question of following the provisions of Survey and Boundaries Act or the Rules made thereunder and other relevant standing orders does not arise, as those provisions do not apply for preparation of correlation sketches with reference to earlier maps drawn to scale and the present survey maps, after verifying the correctness of the boundaries and survey stones. Ex.B.28 to B.32 show Adilakshmi, Sukumari and Chandrasekhar sold land in s.No.55/2. As per Ex.B.55 and B.58 present S.Nos. 55/2 and 55/3A correspond to old S.No.45. Ex.B.22 shows that Krishnaiah and his sons was allotted Ac.10-85 Cts in old S.No.45. The location of S.No.55 as shown in ex.A.7 exactly fits with Ex.B.55 and B.58 sketches. For that reason also Ex.B.55 and B.58 can be accepted. In fact it is for the appellants to establish the corresponding old S.Nos. present S.No.55/6, because they are claiming declaration of title to a part of the land therein, as per an old compromise decree. The registered document Exs.A.8, B.12 and B.13 also show that S.No.55 corresponds to old S.Nos.39 to 40. So merely because Ex.B.1 and Ex.A.11 show that old 'revenue numbers 17 P, 18 and 43 part' as corresponds to S.No.55, the evidence of D.Ws. 4 and 5 cannot be rejected. In fact appellants should have examined somebody from the Revenue Department, and explained, or proved, as to what old "revenue number" mentioned in Ex.B.1 and Ex.A.11 relate to. Old "revenue No." may not be the same thing as "old S.No." For that reason also from the fact that Ex.A.11 and Ex.B.1 contain old revenue numbers 17 P, 18 and 43 part, against S.No.55 it cannot be said that the corresponding old S.Nos. to the present S.No.55 were 17P, 18 and 43 part.

(38) From a reading of Ex.A.7 (filed map of S.No.55) and the boundaries of the suit property given in the plaint schedule, it has to be taken that the suit land is on the north east of S.No.55/6, because boundaries given to suit property in the plaint schedule are East: Chemakuri Polimera, South: land of K.J.Narendra Dev, West: Land in S.No.55/6 and North: Government ceiling and in S.No.55/5 and Ex.A.7 shows that S.No.55/5 is to the north and west to some extent of S.No.55/6 and Chemakuri Polimera is to the east of S.No.55/6. As stated in para 21 supra, in O.S.No.221 of 1992 filed in July, 1992 by 3rd plaintiff through her son and general power of attorney. A.Venkata Ramanaiah, alleged that there was no demarcation of the land in S.No.55/6. How then in August 1992 vendors of appellants who included the 3rd plaintiff represented by their power of attorney A.Venkata Ramanaiah, sold land in S.No.55/6 within the specified boundaries, is not explained through any witness. From Ex.B.55, B.56, B.58 and B.59 it is seen that the north eastern part of S.No.55/6 falls in Old S.No.50 in O.S.No.183 of 1932 and old S.No.39 and 40 are in the middle and sought of the present S.No.55/6. The evidence adduced by appellants does not show that old S.No.50 was allotted to any of their vendors or the ancestors of these vendors. In the circumstances the contention of respondents 1 and 2 that Ex.A.3 is created for the purpose of filing the suit could be true. (39) D.W.1 is the power of attorney of 2nd respondent. As stated earlier D.W.1 has knowledge of the affairs relating to Telikapally family. His evidence is that on a petition filed by A.Venkataramanaiah the M.R.O. included the name of 3rdplaintiff in 10(1) Account i.e., Ex.A.6 without notice to interested persons and that after inclusion of the name of 3rd plaintiff in 10(1) account A.Venkata Ramanaiah as G.P.A. of 3rd plaintiff sold one acre under Ex.B.41 and filed O.S.No.221 of 1992. Merely because the name of 3rd plaintiff is entered in 10(1) account (Ex.A.6) she would not become the owner of a land mentioned therein. As held in KESHAVRAM case (5 supra), M.PAPAIAH case (7 supra) and VIJAYA BHARATI case (8 supra) entries in revenue records are not conclusive and do not confer title. D.W.2 is Ramakrishnaiah, son of Subbaiah. His evidence is that he sold away all his land in S.No.55/6 and that Ramakrishnaiah husband of Arundhatamma also has land in S.No.55/6 and that subsequent to his death his wife Arundhatamma inherited the property of her husband. As rightly contended by the learned counsel for respondents 1 and 2 non-examination of Arundhatamma is of no consequence in this case. We are not deciding the title of respondents 1 and 2 in this case. That apart as stated earlier the evidence of P.W.3 shows that Arundhatamma executed a sale deed in respect of property i.e., obviously in favour of 1st respondent. D.W.3 is the Mandal Revenue Officer. His evidence is that on an application filed by 1st respondent for mining lease he recorded Exs.B.53 and B.54 statements of T.Subrahmanaym adopted son of Peda Krishnaiah and Guda Venkata Subbamma. Ex.B.53 and B.54, being statements of living persons, can be used under Section 145 of the Evidence Act for contradiction only, and cannot be used unless the ingredients in Section 33 of the Evidence Act are satisfied. D.W.6 is an attestor to Ex.B.5 sale deed in favour of 1st respondent, executed by Arundhatamma and he also identified the executant of Ex.B.5 at the time of registration.

(40) D.W.7 is a junior assistant who recorded Exs.A.60 and 61 statements of Alluri Malathi w/o Rama Rao and P.W.3. He was examined prior to P.W.3 being examined.Exs.A.60 can also be used under Section 145 of Evidence Act for contradiction only, since it is the statement of a living person. Since P.W.3 was not examined by the date of examination of D.W.7, no exception could be taken for Ex.B.61 being brought on record. After P.W.3 was examined as a witness by appellants during rebuttal evidence, Ex.B.61 loses its importance, and the contents therein can be used only for contradicting P.W.3 as per Section 145 of the Evidence Act. Therefore, we are not going into the question whether the statement of P.W.3 during cross examination that Ex.A.61 contains her signature, is correctly recorded, or if there was a typographical error. In fact the question whether Ex.B.61 contains the signature of P.W.3 or not paled into insignificance after P.W.3 is examined as no portion therein was specifically brought to her notice during her cross examination. There is a cardinal distinction between a statement made by a party and a statement made by a witness who is sought to be discredited by use of his prior statement. In the case of a party, an admission made by a party in substantive evidence if it fulfills the requirements of Section 21 of the Evidence Act, and if prior statement of a witness is sought to be used to discredit his credibility as a witness, it does not become substantative evidence. In the case of an admission by a party it is not necessary to put the statement containing the admission having to the party because it is evidence proprio vigore, and in the case of a witness he cannot be disbelieved on the strength of a prior contradictory statement, unless it has been put to him as required by Section 145 of the Evidence Act. See VISWANATH PRASAD v. DWARKA PRASAD22 following BHARAT SINGH v. Mst.BHAGIRATHI23. In this case P.W.3 is not a party to the suit. So unless the portions to be made use of in Ex.B.61 are put and brought to the notice of P.W.3 they cannot be made use of by the appellants. Even if Ex.B.61 is not take into consideration, the evidence of P.W.3, as stated earlier, does not establish her title to any part of the suit property.

(41) Ex.B.60 is the statement of Malathi, the daughter of Ramaswamy Sarma, who filed O.S.No.183 of 1932. Since Ex.B.60 also is a statement of a living person who is not a party to the suit the same can be used only for the purpose of contradiction under Section 145 of the Evidence Act, and not as substantive evidence unless the ingredients of Section 33 of the Evidence Act are satisfied. D.W.8 is an attestor to Ex.B.9 sale deed executed by 1st respondent in favour of 2nd respondent.

(42) Adi Lakshmi or her daughter Sukumari or Satyanarayana husband of Sukumari and son-in-law of Adi Lakshmi, are not examined by the appellant to speak as to how they acquired right in the suit property. Since the evidence of P.W.3 does not show that she had title to the suit property and since 3rd plaintiff did not have title to the suit property as seen from Ex.B.40, and since Adi Lakshmi, Sukumari, Chandrasekhar Rao did not go into the witness box to establish as to how they have title to the suit property. The evidence of PW3 does not establish her title to the suit property. The evidence adduced by the appellants does not establish that the executants of Ex.A.3 had title to the suit property. As stated earlier, the circumstances mentioned above lead to an inference that Ex.A.3 was created by A.Venkata Ramanaiah, power of attorney of executants of Ex.A.3, to litigate against respondents 1 and 2, who obtained Ex.B.4, B.5 and B.9 and were in possession of the suit property from the date of Ex.B.4, i.e., 4-2-1991. Even assuming that respondents 1 and 2 do not have title to the suit property by virtue of Ex.B.4, B.5 and B.9, since they are in possession of the property even prior to Ex.A.3, unless appellants establish a better title than respondents 1 and 2, they cannot seek to recover possession from respondents 1 and 2. Since the evidence on record does not establish the title of the executants of Ex.A.3 to the suit property, we hold that the appellants are not entitled to the declaration and consequential reliefs sought. The point is answered accordingly.

(43) In the result, the appeal and C.M.Ps. are dismissed with costs.

?1)AIR 1959 SC 31

2)AIR 1954 SC 526

3)AIR 1973 AP 149

4)1999(3) ALT 210

5)AIR 1997 SC 2181

6)AIR 1995 SC 1377

7)AIR 1989 SC 1809

8)1998(2)ALT 623

9)1988(1) ALT 57 (NRC)

10)AIR 1979 SC 1320

11)AIR 1984 SC 1726

12)AIR 1986 SC 794

13)1969(2) SC 794

14)1980(2)An.W.R.332

15)1984(1)ALT286

16)1987(1)ALT 120

17)1990(2) An.W.R.98

18)1989(1)APLJ 93 (NRC)

19)1991(1) L.S.257

20)AIR 1997 SC 680

21)1998(1)SCC 299

22) AIR 1974 SC 117

23)AIR 1966 SC 405