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Andhra Pradesh High Court – Amravati
V.Radha Krishna Reddy vs Vunnam Haritha Thotapalli Haritha on 22 July, 2025
BVLNC,J A.S.No.622 OF 2010
Page 1 of 19 Dt: 22.07.2025
APHC010501442010
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3368]
(Special Original Jurisdiction)
TUESDAY, THE TWENTY SECOND DAY OF JULY
TWO THOUSAND AND TWENTY-FIVE
PRESENT
THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI
FIRST APPEAL No: 622/2010
Between:
1. V.RADHA KRISHNA REDDY, S/O. PENCHALA REDDY RETIRED
EMPLOYEE R/O. D.NO. 23-1-19, ALANKAR CENTRE,
MULAPET, NELLORE.
...APPELLANT
AND
1. VUNNAM HARITHA @ THOTAPALLI HARITHA, W/O.
DASARADHA RAMIREDDY, EMPLOYEE, R/O. D.NO. 16/3/177,
RAMALINGAPURAM, NELLORE. WORKING AS TEACHER AT
NETHAJI PILOT SCHOOL.
...RESPONDENT
Counsel for the Appellant:
1. M.RAVINDRA
Counsel for the Respondent:
1. M SRI ATCHYUT
The Court made the following:
BVLNC,J A.S.No.622 OF 2010
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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
A.S.No.622 OF 2010
Between:
Vunnam Radhakrishna Reddy,
S/o.Penchala Reddy, Aged 63 years,
Retired Employee, R/o.D.No.23-1-19,
Alankar Centre, Mulapet, Nellore. .... APPELLANT
Versus
Vunnam Haritha @ Thotapalli Haritha,
W/o.Dasardha Rami Reddy,
Aged 42 years, Employee,
R/o.D.No.16/3/177, Ramalingapuram,
Nellore. .... RESPONDENT
DATE OF JUDGMENT PRONOUNCED : 22.07.2025
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the Judgment? Yes/No
_____________________________
JUSTICE B.V.L.N.CHAKRAVARTHI.
BVLNC,J A.S.No.622 OF 2010
Page 3 of 19 Dt: 22.07.2025
* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
+ A.S.No.622 OF 2010
% 22.07.2025
# Between:
Vunnam Radhakrishna Reddy,
S/o.Penchala Reddy, Aged 63 years,
Retired Employee, R/o.D.No.23-1-19,
Alankar Centre, Mulapet, Nellore. .... APPELLANT
Versus
Vunnam Haritha @ Thotapalli Haritha,
W/o.Dasardha Rami Reddy,
Aged 42 years, Employee,
R/o.D.No.16/3/177, Ramalingapuram,
Nellore. .... RESPONDENT
! Counsel for the Appellant : Sri M.Ravindra
^ Counsel for the
Respondent : Sri M.Sri Atchyut
< Gist:
> Head Note:
? Cases referred:
1. 2020 (16) SCC 255
2. 2008(4) SCC 594
3. AIR Online 2023 SC 18
4. 2003 SCC Online Mad 157
This Court made the following:
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THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
APPEAL SUIT No.622 OF 2010
J U D G M E N T:
This Appeal Suit preferred U/s.96 of the Code of Civil Procedure,
1908 (hereinafter referred to as ‘C.P.C.’), by the plaintiff, challenging the
judgment and decree dated 30.07.2008 delivered in O.S.No.528 of 2006
on the file of I Addl.Senior Civil Judge, Nellore.
2. For the sake of convenience, the parties are referred to as
arraigned before the learned Trial Court.
3. The suit was instituted for delivery of possession.
4. The trial Court dismissed the suit, vide impugned judgment dated
30.07.2008.
PLEADINGS:
5. The plaintiff asserts ownership of the scheduled property. The
plaintiff’s mother, Smt. Vunnam Audilakshmamma, was the original
owner of the property. She executed a registered settlement deed on
November 8, 2005, bequeathing the property to the plaintiff. On October
14, 1995, she permitted the defendant to stay in the scheduled property
on humanitarian grounds. The plaintiff issued a notice on August 17,
2006, demanding that the defendant vacate the scheduled property and
BVLNC,J A.S.No.622 OF 2010
Page 5 of 19 Dt: 22.07.2025deliver vacant possession by August 31, 2006. The defendant received
the said notice and failed to deliver the possession.
06. The defendant, the wife of Sri V. Dasaradharami Reddy, alleges
that the plaintiff, Sri Vunnam Dasaradharami Reddy, and another
individual are brothers. She made an agreement to settle the plaintiff’s
property claims in favour of the defendant but demanded Rs.1,00,000/-
as dowry. The defendant’s parents presented cash and gold as
payment, but the plaintiff and other family members caused conflicts
between the defendant and her husband.
On 24.06.2002, Smt.V.Audilakshmamma executed a registered
settlement deed in favour of Smt.V.Umamaheswari, bequeathing the
suit property and delivering possession to her, against the defendant’s
promise. However, Smt.V.Audilakshmamma has no title to the property
and cannot execute a settlement deed in favour of the plaintiff without
cancelling the deed executed in favour of her daughter. This settlement
deed will not convey any title to the plaintiff.
Smt.V.Audilakshmamma filed a suit in O.S. 639/1997 for
permanent injunction against the defendant, which was dismissed. She
appealed in A.S.14/2002, which was also dismissed. Smt.V.
Audilakshmamma, her daughter, and other family members beat the
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defendant and tried to dispossess her from the suit house. The
defendant presented a report to the police, which led to the filing of a
case before the II Addl. Judl. Magistrate of First Class, Nellore.
ISSUES:
07. Basing on the above pleadings, the trial Court settled the
following issues for trial:
1. Whether the plaintiff is entitled to recover vacant possession of
plaint schedule property from the defendant?
2. Whether the Court fee paid is insufficient?
3. To what relief?
EVIDENCE:
08. During the trial of the suit, the plaintiff was examined as P.W-1,
while the defendant and her mother were examined as D.Ws-1 and 2.
Four documents were marked for the plaintiff as Ex.A-1 to Ex.A-4.
Ex.A-1 is the registered settlement deed dated 08.11.2005. Ex.A-2 is the
office copy of the legal notice dated 17.08.2006. Ex.A-3 is the postal
receipt, and Ex.A-4 is the postal acknowledgement. The defendant filed
two documents as Exs.B-1 and B-2, which are the voters’ list of Nellore
Assembly Constituency for the year 1993 and the Nellore Municipality
for the year 1986, as documentary evidence.
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09. Upon consideration of the oral and documentary evidence
presented by both parties, the Trial Court refused the plaintiff’s request
for a decree of possession. The Trial Court held that the plaintiff is not
entitled to the decree because, Smt.V.Audilakshmamma, has no
authority to execute the settlement deed. Consequently, the suit was
dismissed.
10. Heard Sri M.Ravindra, learned counsel for the appellant/plaintiff
and Sri M.Radha Krishna, learned Senior Counsel assisted by Sri M.Sri
Atchyut, learned counsel for the respondent/defendant.
SUBMISSIONS OF THE RESPECTIVE COUNSEL:
11. The plaintiff’s counsel argued that the trial court’s finding is not in
accordance with law, in view of proviso to Section 68 of the Indian
Evidence Act, 1872. He contended that the defendant admitted the
execution of the settlement deed, so there’s no need to prove its
execution through the attesting witness. Ex.A-1 was executed under the
Indian Registration Act, 1908 (16 of 1908), and the defendant admitted
its execution. Smt.V.Umamaheswari signed Ex.A-1 as an attesting
witness, giving her consent. Therefore, the plaintiff acquired title to the
suit property under Ex.A-1, and the defendant has no right, title, or
interest in it. The plaintiff is entitled to a decree for possession.
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12. The defendant’s counsel argued that Smt.V.Audilakshmamma
executed a settlement deed on June 24, 2002, bequeathing the suit
property to her daughter, Smt.V.Umamaheswari. However, the plaintiff
failed to file the deed. The plaintiff admitted to a covenant in the deed
that the donor cannot revoke it unilaterally. There’s no recital in Ex.A-1
that daughter voluntarily consented to the deed’s revocation. She wasn’t
examined to confirm this consent. Therefore, Ex.A-1 is invalid and won’t
convey title to the plaintiff in view of Section 123 of the Transfer of
Property Act, 1882.
13. The defendant specifically denied the execution of Ex.A-1
settlement deed in the written statement. Therefore, the attesting
witnesses must be examined as per U/s.68 of the Evidence Act, 1872.
However, the plaintiff failed to examine any attesting witnesses, hence
Ex.A-1 was not proved. The learned counsel relied on the judgment of
the Hon’ble Apex Court in the case of Govindbhai Chhotabhai Patel
and others Vs. Patel Ramanbhai Mathurbhai1.
14. The defendant’s counsel argued that the plaintiff should have filed
a suit for title and possession. A suit for possession alone is not
maintainable in this case because the plaintiff’s title is unclear due to an
1
2020 (18) SCC 255
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earlier settlement deed. He relied on the judgment of the Supreme Court
in Anathula Sudhakar Vs. P.Buchi Reddy (dead) by L.Rs and
others2.
15. The defendant’s counsel further argued that defendant has been
in possession of the suit property and is entitled to protect it unless the
plaintiff proves a better right. The burden of proof lies with the plaintiff,
and he cannot rely on the defendant’s weaknesses. The plaintiff failed to
discharge his burden under the Indian Evidence Act, 1872. He relied on
the judgment of the Hon’ble Apex Court in the case of Smriti Debbarma
(dead) Through Legal Representative Vs. Prabha Ranjan Debbarma
and Others3.
16. The defendant’s counsel argued that once a gift is accepted, it
can’t be revoked unless there’s power of revocation. He relied on the
Madras High Court’s judgment in Palaniswamy Gounder Vs.
Periammal4.
17. The defendant’s counsel would argue that the trial court found that
the plaintiff should have paid court fees on three-quarters of the
property’s market value, but failed to order the plaintiff to pay the
2
2008 (4) SCC 594
3
AIR Online 2023 SC 18
4
2003 SCC Oniine Mad 157
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remaining court fees. Since the plaintiff didn’t pay the deficit court fees,
the appeal is not maintainable.
ANALYSIS:
18. In light of the rival contentions stated above, the points that would
arise for consideration of this Court in the appeal are as follows::
1. Whether the plaintiff established his title over the plaint
schedule property? If so, he is entitled to decree for possession?
2. Whether the order of the trial court regarding the payment of
court fees warrants interference?
19. POINT No.1:
The plaintiff claims that the property in question belongs to his
mother, Smt. Audilakshmamma. She executed a settlement deed in his
favour, transferring the title to him. The defendant, the wife of his
brother, has been residing in the property since 1995, the date of their
marriage. The plaintiff contends that his mother allowed her to stay for
humanitarian reasons.
20. Smt.V.Audilakshmamma filed a suit for permanent injunction in
O.S.613/1997 against the defendant to prevent her from interfering with
her possession of the suit property. The trial Court dismissed the suit,
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and Smt.V.Audilakshmamma appealed in A.S.14/2002, but the appeal
was also dismissed, confirming the trial Court’s judgment.
21. The plaintiff, examined as P.W-1, admitted that his mother
executed a settlement deed on June 24, 2002, in favour of
Smt.V.Umamaheswari. He also admitted that his mother, has not
revoked it, and that the suit was not filed for its cancellation.
22. The plaintiff claims that Smt.V.Umamaheswari signed Ex.A-1 as
an attesting witness. The plaintiff’s counsel argued that she must have
attested to it since she consented to its execution in favour of the
plaintiff. The defendant denied Ex.A-1 and the plaintiff’s case as false.
23. To succeed, the plaintiff must prove he has title to the property
and is entitled to possession. The defendant can’t be dispossessed
unless the plaintiff establishes a better title and right. The Hon’ble
Supreme Court in the case of Smriti Debbarma (dead) Through Legal
Representative Vs. Prabha Ranjan Debbarma and Others held that
“the plaintiff shall establish title to claim a decree of possession. A
person in possession of land in the assumed character as the owner,
and exercising peaceably the ordinary rights of ownership, as a legal
right against the entire would except the rightful owner. A decree of
possession cannot be passed in favour of the plaintiff on the ground that
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defendants have not been able to fully establish their right, title and
interest in the property. The defendants, being in possession, would be
entitled to protect and save their possession, unless the person who
seeks to dispossess them has a better legal right in the form of
ownership or entitlement to possession. The burden of proof to establish
a title lies upon the plaintiff, as this burden lies on the party, who asserts
the existence of a particular state of things on the basis of which she
claims relief. The onus of proof, no doubt shifts and the shifting is a
continuous process in the evaluation of evidence, but this happens when
in a suit for title and possession, the plaintiff has been able to create a
high degree of probability to shift the onus on the defendants. In the
absence of such evidence, the burden of proof lies on the plaintiff and
can be discharged only when he is able to prove title. The weakness of
the defence cannot be a justification to decree the suit.”
24. In the present case, it is admitted that Smt.V.Audilakshmamma
executed a settlement deed dated June 24, 2002, in favour of her
daughter, Smt.V.Umamaheswari. The deed contains a provision that
prohibits the donor from cancelling it unilaterally.
25. Section 126 of the 1882 Transfer of Property Act allows for the
suspension or revocation of gifts as under:
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126. When gift may be suspended or revoked.
“The donor and donee may agree that on the happening of any
specified event which does not depend on the will of the donor a it
shall be suspended or revoked; but a gift which the parties agree
shall be revocable wholly or in part at the mere well of the donor is
void wholly or in part, as the case may be.”
“A gift also be revoked in any of the cases (save want or failure of
consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the
rights of transferees for consideration without notice.”
26. Under section 126 of the Transfer of Property Act, 1882, a donor
cannot revoke a gift once it’s been accepted, unless Donar has the
power to do so. This principle was confirmed by the High Court of
Madras in the case of Palaniswamy Gounder Vs. Periammal.
27. In this case, there’s no evidence of consent by Donee to revoke
the settlement deed and execute another in favour of the plaintiff.
There’s no reference to the earlier settlement deed or its revocation by
the donor with the consent of the donee, in Ex.A-1. In that perspective,
the mere fact that the daughter signed as an attesting witness on Ex.A-1
does not convey any title to the plaintiff.
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28. The existence of an earlier settlement deed casts doubt on the
title of the plaintiff. Consequently, the plaintiff should file a suit for the
declaration of title and the recovery of possession. The Hon’ble
Supreme Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy
(dead) by L.Rs and others held that when a cloud arises over the
plaintiff’s title and has no possession, a suit for declaration and
possession, with or without consequential injunction, is the appropriate
remedy. Therefore, the present suit, for possession alone is not
maintainable in law.
29. In light of the above discussion, I find no grounds to interfere with
the findings of the learned trial court that the plaintiff is not entitled to a
decree for possession.
30. POINT No.2:
The other issue in the appeal is the court fee paid by the plaintiff.
The plaintiff filed the suit for possession, paying the court fee under
Section 28 of the APCF and SV Act, 1956. The plaintiff valued the suit
property at Rs.11,49,000/- based on the market value certificate issued
by the Sub Registrar Office, Nellore. Therefore, the plaintiff paid half of
the market value, which was Rs.5,74,500/-.
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31. The trial Court found that the property’s market value certificate
states its value is Rs.11,49,000/-. The plaintiff paid the court fee under
Section 28 of the APCF & SV Act, 1956, calculated on half of the market
value. The learned trial judge further held that Section 28 of the APCF
and SV Act, 1956, stipulates that in a suit for the possession of
immovable property, the fee shall be computed on half of the market
value of the property. This provision is in direct relation to Section 9 of
the Specific Relief Act, 1877.
32. The defendant counsel argued that the Court Fee should be paid
under section 24(a) of the APCF & SV Act, 1956, instead of section 28.
33. The suit is filed for possession of the property. No relief for
declaration of title claimed. The plaintiff paid the Court Fee U/s.28 of
APCF & SV Act, 1956. Section 28 of APCF & SV Act, 1956, is as under:
28. Suits for possession under the Specific Relief Act, 1877.
“In a suit for possession of immovable property under S.9 of the
Specific Relief Act, 1877 (Central Act 1 of 1877), fee shall be
computed on one-half of the market value of the property or on
rupees two hundred, whichever is higher.”
34. The provision referred above pertains to Section 9 of the Specific
Relief Act, 1877 (Central Act 1 of 1877). The corresponding provision in
the Specific Relief Act, 1963, is Section 6, which is as follows::
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6. Suit by person dispossessed of immovable property:–
(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he or any
person claiming through him may, by suit, recover possession thereof,
notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought–
(a) after the expiry of six months from the date of dispossession;
or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any
suit instituted under this section, nor shall any review of any such order
or decree be allowed.
(4) Nothing in this section shall bar any person from suing to
establish his title to such property and to recover possession thereof.
35. If any person is dispossessed of immovable property without
consent, other than in due course of law, such person can file suit to
recover possession, regardless of title. In those cases, the Court Fee
shall be paid under Section 28 of the APCF & SV Act, 1956. In suits for
possession not otherwise provided for, the Court Fee shall be paid under
Section 29 of the APCF & SV Act, 1956;
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29. Suits for possession not otherwise provided for.
In a suit for possession of immovable property not otherwise
provided for, fee shall be computed on three-fourths of the market
value of the property or on rupees three hundred, whichever is
higher.
36. In light of the above law, the fee shall be calculated on three-
quarters of the property’s market value or Rs.300/-, whichever is higher.
The property’s market value is undoubtedly higher than Rs.300. In that
view, the Court Fee is payable on three-quarters of the property’s market
value. The property’s market value, as certified by the Registrar of
Assurance, Nellore, is Rs.11,49,000/-. Therefore, ¾ of this value is
Rs.8,61,750/-, and the court fee to be paid on this amount is Rs.11,126/.
But, the plaintiff paid only Rs.8,226/-, valuing the Court Fee as per
section 28 of APCF & SV Act, 1956, instead of section 29 of APCF & SV
Act, 1956. Consequently, the plaintiff shall be liable to pay the deficit
court fee of Rs.2,900/- (Rupees two thousand and nine hundred only).
37. The plaintiff must pay the balance Court Fee in four weeks from
the date of this judgment. If he fails to do so, the State Government is
entitled to recover it in accordance with law. Accordingly, the point is
answered.
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38. In the result, the Appeal Suit is dismissed. There shall be no order
as to costs.
39. Registry is directed to send copy of judgment to the District
Collector, Nellore, to take steps to collect the deficit court fee of
Rs.2,900/- (Rupees two thousand and nine hundred only) from the
appellant/plaintiff.
As a sequel, interlocutory applications pending, if any, in this
Appeal Suit, shall stand closed.
______________________________
JUSTICE B.V.L.N. CHAKRAVARTHI.
22.07.2025
psk
Note: L.R.Copy is to be marked
B/o. psk.
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THE HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
146
A.S.No.622 OF 2010
Note: Mark LR. Copy
psk.
22nd July, 2025
W
psk
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