Smt Tanuku Shyamalamba (Died) v. Musunuri Bala Tripura Sundari (Died)

THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO CRP.No.5810 of 2016 ORDER :

Heard the counsel for petitioners. None appears for respondents.

2.

This Revision is filed challenging the order dt.11.11.2016 in I.A.No.826 of 2016 in O.S.No.4 of 2007 on the file of Senior Civil Judge, Tanuku.

3.

The petitioners herein are legal representatives of the defendant in the suit who died pending suit.

4.

The 1st respondent / plaintiff filed the suit for recovery of possession claiming that she purchased the plaint 'B' schedule property under a registered sale deed dt.29.11.1984 executed by the sole defendant / 1st petitioner.

5.

Written statement was filed by the sole defendant during her life time taking a plea that the sale deed dt.29.11.1984 is a sham and nominal document.

6.

Admittedly, the sole defendant had filed O.S.No.75 of 1998 to declare the sale deed dt.29.11.1984 as nominal and for a perpetual injunction, and the said suit was dismissed on 31.01.2005; and that the

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Appeal Suit No.98 of 2005 against the said judgment is pending before the Appellate Court.

7.

After the death of 1st respondent / plaintiff, the 2nd respondent, who is the daughter of plaintiff's nephew by name M.S. Rama Rao, was brought on record.

8.

In the written statement filed by 1st petitioner / defendant, no doubt, the respondent took a plea that the very suit is an outcome of certain mischief played by the said M.S. Rama Rao, who is a habituated litigant, and that he was behind the 1st respondent / plaintiff in filing the suit.

9.

I.A.No.826 of 2016 was filed by petitioners during the evidence of petitioners / defendants alleging that M.S. Rama Rao, who is the nephew of the deceased-1st respondent and father of 2nd respondent, had got registered by 1st respondent a pocket Will in the Office of the Sub-Registrar, Eluru vide Document No.5-1/1983 and registered on 29.11.1983 and that petitioners came to know of it recently. They alleged that to substantiate their case and to prove that M.S. Rama Rao is the person behind the back of 1st respondent / plaintiff it is necessary to cause production of the said pocket Will by the SubRegistrar, Eluru, and therefore, he should be summoned invoking Order XVI Rule 6 and 7 of Civil Procedure Code. 10.

Counter-affidavit was filed by 2nd respondent contending that the document sought to be summoned has no relevance to the suit,

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since it was stated in the Will set up by petitioners that the said pocket Will was cancelled.

11.

By order dt.11.11.2016, the Court below dismissed the said application. It noted that the pocket Will dt.29.11.1983 was referred to in Ex.B.1 Will dt.06.08.1995 set up by petitioners and since the petitioners were aware of the said pocket Will in view of the said recital, they cannot take a plea that they recently came to know of it. It further held that since the pocket Will was cancelled under Ex.B.1 Will set up by petitioners, there is no necessity to refer to the same, that it is not relevant for the purpose of deciding the suit and so the Sub-Registrar, Eluru, need not be summoned to produce it. 12.

The counsel for petitioners contended that even the deceased-1st petitioner / defendant had taken a plea that M.S. Rama Rao got the suit filed by deceased 1st respondent / plaintiff; that he was the person who got the 1st petitioner / defendant to execute the Will dt.29.11.1983 which was registered in the Office of the Sub-Registrar, Eluru by playing fraud on 1st petitioner / defendant; and that to highlight his role, the document is required to be produced by issuing summons to the Sub-Registrar, Eluru.

13.

Admittedly, the execution of sale deed dt.29.11.1984 by 1st petitioner in favour of 1st respondent is not in dispute though the 1st respondent has taken the plea that it is sham and nominal, and had filed a suit which was dismissed. But an Appeal against the said

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judgment is pending in A.S.No.98 of 2005. As long as the said document is subsisting it cannot be disputed that 1st respondent can lay a claim for recovery of possession on its basis. 14.

In this context, whether the 1st petitioner / defendant was made to execute the pocket Will dt.29.11.1983 by M.S. Rama Rao or not would not be very relevant, since the execution of Sale Deed dt.29.11.1984 by 1st petitioner / defendant is not in dispute though a plea is taken that at the instance of the said M.S. Rama Rao it was done.

15.

Therefore, I am of the opinion that the Court below was right in dismissing I.A.No.826 of 2016. Accordingly, the Civil Revision Petition fails, and it is accordingly dismissed. No order as to costs. 16.

As a sequel, miscellaneous petitions pending if any in this Civil Revision Petition, shall stand closed.

__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 25-11-2016 Ndr/*