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TMI Blog2016 (5) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... is son of Veeraiah and Yashoda is wife of the said late Balaiah. After the death of Rajaiah, the property was given as widow's estate to Yashoda. It was to be reverted to the Plaintiff after the death of Yashoda. Yashoda enjoyed the property in her lifetime. However, after her death, Smt. Gandla Buchamma, surviving sister of late Balaiah succeeded to the property and sold it to Plaintiff vide registered sale deed dated 25.4.1981 and also delivered the possession. Thereafter on 12.6.1981 the Defendants forcibly evicted the Plaintiff from the property. 4. The Defendants in their written statements contended that Ballaiah was the absolute owner of the property and after his death Yashoda became the absolute owner of the property. She was in possession of the property. It was not to be reverted back to the Plaintiff after the death of Yashoda. Yashoda after death of her husband, as per authority given by her late husband, had adopted Defendant No. 3 Sarojana when she was aged 12 years and thereafter she resided in the house of Yashoda as her daughter. Thus, Buchamma did not succeed to the property. The adopted daughter Defendant No. 3 succeeded to property by inheritance. Defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e established in the absence of any document to that effect. Defendant No. 3 had no title to the property, as such she had no right to retain its possession. Defendant No. 3 being third party could not question the sale deed and passing of consideration. The sale deed is valid and binding. Even if Buchamma has not delivered the possession to the Plaintiff that would not affect his right to claim possession on the strength of his title conferred upon him under the sale deed. It was not necessary to examine Buchamma as she had never objected to the execution of sale deed. In the written statement only her authority to sell the property was questioned. It was not necessary to file a suit for declaration of title as Buchamma acquired the suit property by way of inheritance from the absolute owner and thereafter sold it to the Plaintiff. 8. The High Court in the second appeal has not disturbed the concurrent findings that the adoption of Defendant No. 3 Sarojana by Yashoda has not been established. However, the High Court has held that the sale deed has not been proved for want of examination of Buchamma and in the circumstances it was necessary for the Plaintiff to file a suit for dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been framed on the question of title of the Plaintiff as well as on the question of adoption of Defendant No. 3. On the basis of title claimed in the suit, both the parties have adduced their evidence in support of their respective cases. The main plea of Defendant No. 3 that she was an adopted daughter of Yashoda has not been found to be established by the trial Court, the first Appellate Court or by the High Court. Thus, in our opinion, there was no serious cloud on the title of the Plaintiff so as to force him to seek the relief for declaration of title in the instant case which was in fact based on the strength of the sale deed executed by Buchamma, who was the sole surviving heir of Balaiah as such succeeded to the property and had the right to execute the sale deed in favour of the Plaintiff. 13. We are fortified in our aforesaid conclusion by a decision in Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma (2008) 15 SCC 150, wherein this Court has examined the question of maintainability of suit for possession without prayer for declaration of title. This Court has referred to its earlier decision in Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594, wherein t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of examination of Buchamma. The High Court has ignored the pleadings of the parties and the evidence on the question of execution of sale deed which establishes that sale deed had been executed by Buchamma in favour of the Plaintiff. In the written statement filed on behalf of the Defendants, the sale deed was denied for want of knowledge. A perusal of same indicates that the authority of Buchamma to execute the sale deed in favour of the Plaintiff was put into question. Defendant No. 3 Sarojana in her deposition in court did not deny the fact that sale deed was executed by Buchamma in favour of the Plaintiff. She has stated that she was not aware whether Buchamma has executed any sale deed in favour of the Plaintiff. She only asserted that she was the adopted daughter of Yashoda. 15. It is settled law that denial for want of knowledge is no denial at all. The execution of the sale deed was not specifically denied in the written statement. Once the execution of the sale deed was not disputed it was not necessary to examine Buchamma to prove it. The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement. This Court in Jahuri Sah a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uwarlal Amritlal v. Rekhlal Koduram and Ors. AIR 1950 Nagpur 83 has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of Patna High Court in Karnidan Sarda and Anr. v. Sailaja Kanta Mitra AIR 1940 Patna 683 has laid down that it cannot be too strongly emphasized that the system of administration of justice allows of cross-examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first Appellate Court as to the factum of execution of the sale deed in favour of the Plaintiff. 17. It is also settled law that passing of consideration under a sale deed cannot be questioned by third party. Defendant No. 3 has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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