THE HON'BLE SRI JUSTICE R.KANTHA RAO

S.A.NO.1082 OF 2004

07-06-2011

Dr.A.Narahari Reddy and another

E.Anand Kumar and others

Counsel for petitioners: Sri Parasa Anantha Nageshwara Rao

Counsel for respondent No.1 and 8: Sri S.Shyam Sunder Rao

:JUDGMENT:

This second appeal is filed against the judgment and decree dated 12.03.2004, passed by the II Additional District Judge, Ranga Reddy District in A.S.No.8 of 2001 reversing the judgment and decree dated 23.11.2000 passed by the II Additional Senior Civil Judge, Ranga Reddy District in O.S.No.447 of 1992.

For the sake of convenience, the parties will be referred as 'the plaintiffs and the defendants.'

The plaintiffs are the appellants. They filed O.S.No.447 of 1992 for declaration of title and injunction in respect of the schedule property which is a land of an extent of 1575 sq. yards in Survey No.19 of Jillelaguda Village. The learned II Additional Senior Civil Judge, Ranga Reddy District decreed the suit filed by the plaintiffs. The second Additional District Judge, Ranga Reddy District, L.B.Nagar reversing the judgment of the trial Court, dismissed the suit filed by the plaintiffs. The plaintiffs are therefore, before this Court in the present second appeal.

I have heard Sri Parasa Anantha Nageshwara Rao, learned counsel appearing for the appellants and Sri S.Shyam Sunder Rao, learned counsel for the respondent Nos.1 and 8.

The brief facts necessary for disposing of the second appeal are stated as follows:

The defendants 7 to 11 are the owners of an extent of Ac.4.20 guntas of land covered by Survey No.19 of Jillellaguda Village. The schedule land is part of Survey No.19. According to the plaintiffs, they purchased the land from the defendants 7 to 11 under a registered sale deed dated 16.08.1989 for a valid consideration of Rs.78,750/- and they were put in possession of the property by the defendants 7 to 11. They asserted that they have been in possession and enjoyment of the land from the date of the purchase, but when the defendants tried to dispossess them by force, they filed the suit for declaration and injunction against them. Originally the suit was filed against the defendants 1 to 11. Subsequently, on an application for impleadment made by the plaintiffs, the defendant No.12 was added.

The defendants 7 to 11 admit that they are the owners of the Ac.4.20 guntas of land in Survey No.19. The suit schedule land is part of the same. They also admit that they sold the property to the plaintiffs under Ex.A.1 sale deed dated 16.08.1989 and delivered the possession of the land to them. Their entire case is that they do not have any claim over the land mentioned in the schedule annexed to the plaint which was sold away to the plaintiffs. Inter alia, however, they contended in their respective statements that the boundaries furnished to plaint schedule property are not correct. Thereafter, the plaintiffs filed an application for appointment of Commissioner furnishing the correct boundaries of the schedule mentioned land and with a prayer to direct the Commissioner to localize the schedule mentioned land with the assistance of a qualified surveyor. The petition filed for appointment of commissioner was allowed. The Commissioner inspected the land, conducted survey with the assistance of the Mandal Surveyor and filed his report Ex.A.33. The plan prepared by him is marked as Ex.A.32. He stated specifically in the report that he identified the land by conducting survey and also with the assistance of both the parties, who were present at the time of the Commission. After filing of the report by the Commissioner, the plaintiffs filed a petition for amendment of the schedule plan with a prayer to permit them to correct the boundaries which were mentioned by the Commissioner in his report. On merits the learned trial Court allowed the amendment petition.

Thereafter, the 12th defendant, who was added on an application filed under Order 1 Rule 10 C.P.C., by the plaintiffs filed written statement stating that the first defendant, who is the Power of Attorney holder of the defendants 7 to 11 sold the property to him initially under an agreement of sale in the year 1991 and thereafter he executed Ex.B.1 registered sale deed dated 22.09.1994 in his favour. The 12th defendant claimed to have been in possession of the suit land, which according to him is an extent of 1329 sq. yards, since his date of purchase from the first defendant in the year 1991 under an agreement to sell. But they did not file the said agreement. Before the trial Court, PWs. 1 and 2 were examined on behalf of the plaintiffs and marked Exs.A1 to A.34. On behalf of the defendants, DWs.1 to 3 were examined and marked Exs.B1 to B.10.

The learned trial Court mainly taking in to consideration the fact that the 12th defendant who said to have purchased the land under agreement to sell, which was allegedly executed in his favour by the General Power of Attorney did not fie the said agreement to sell, nor did he even furnish the date of agreement to sell, that admittedly, the defendants 7 to 11 executed Ex.A.1 registered sale deed dated 16.08.1989 in favour of the plaintiffs which is long prior to Ex.B.1 sale deed and also considering that Ex.B.1-sale deed is only after filing the suit by the plaintiffs and therefore, it is hit by Section 52 of the Transfer of Property Act arrived at a conclusion that the plaintiffs are entitled for decree for declaration of their title and consequential injunction and accordingly decreed the suit.

The learned first appellate Court took up the task of examining the Commissioner as a witness and by considering some admissions made by PW.2- Commissioner in his cross examination by the defendants and also thinking that the plaintiffs were not able to establish their case, one of the plaintiffs was examined as PW.1 and other witness as PW.2 who is no other than the Advocate Commissioner. They cannot succeed having recourse to the weakness of the case of the defendants and accordingly reversed the decree passed by the learned trial Court and dismissed the suit filed by the plaintiffs.

The Commissioner however, admitted in the cross examination that at the time of his inspection he was not having plaint copy or copy of Ex.B.1-sale deed with him and that the plaintiffs did not furnish necessary documents at the time of execution. He also made an admission that the suit land was not located with the suit documents filed by the plaintiffs as well as the defendants 1 to 11. However, he made a mention in the report that he with the help of both parties, who were present at the time of execution of warrant and with the assistance of the Mandal Surveyor, localized the suit land. The learned first appellate Court laid much emphasis on the evidence of PW.2 and reversed the judgment on the basis of his evidence holding that the plaintiffs failed to establish their case.

The following substantial questions of law were framed while admitting the second appeal:

1. Whether the judgment of the first appellate Court is the result of non- consideration of important evidence and consideration of irrelevant material adduced by the defendants.

2. Whether the first appellate Court failed to consider that the alleged Ex.B.1 sale deed dated 22.09.1994 was obtained by the defendant No.12 subsequent to the filing of the suit and is hit by Section 52 of the Transfer of Property Act.

3. Whether the judgment and decree passed by the first appellate Court is vitiated for perversity and being contrary to the evidence on record, this Court therefore, can interfere with the findings of fact recorded by the trial Court which are perverse and contrary to the established principles of law.

As mentioned earlier, the defendants 7 to 11 are the owners of the suit schedule land and they admitted that they sold the property to the plaintiffs under Ex.A.1-sale deed and delivered possession of the property to him under the said sale deed. From the admission of the defendants 7 to 11, therefore, the title and the possession of the plaintiffs are very well established. The learned first appellate Court ignored the said fact and misdirected itself in holding that the plaintiffs failed to prove their case by adducing the required evidence. Apart from the positive evidence adduced by them, the plaintiffs can prove their case from the admissions made by the defendants. Although, it would appear from the evidence of PW.2, the Advocate Commissioner, that he did not conduct the survey and localization of the schedule land properly, he had specifically mentioned in his report that he could identify the land with the assistance of the parties themselves and also with the help of the Mandal Surveyor, who was present at the time of his inspection. The defendants did not file any objections to the commissioner's report and moreover their specific case is that they are nothing to do with the land purchased by the plaintiffs under registered sale deed-Ex.A.1. The defendants failed to state specifically as to the particulars of the land sold by them with specified boundaries to the plaintiffs. They are bound to disclose the said fact because they have specifically admitted that they sold an extent of 1575 sq. yards of land to the plaintiffs and delivered possession of the said land.

The contention of the plaintiffs is that the defendants 1 to 11 with a view to defeat the rights of the plaintiffs created Ex.B.1 sale deed which was allegedly executed by the first defendant in the capacity of General Power of Attorney holder and it is in the said document is only a creature of fraud. According to the defendant No.12, the General Power of Attorney holder of defendants 7 to 11 executed an agreement to sell in his favour in the year 1991 and thereafter in pursuance of the said agreement to sell executed Ex.B.1 sale deed dated 22.09.1994 in his favour. He did not file the said agreement to sell nor did he even mention the date of the said agreement to sell in his written statement or in his evidence. Further the oral evidence adduced by the defendants is to the effect that in fact there was no agreement to sell in writing and the said agreement is only oral. These conflicting versions rightly counted by the learned trial Court to arrive at a just and proper conclusion that in fact there was no such agreement at all prior to Ex.B.1 sale deed and for the first time Ex.B.1 sale deed was brought into existence on 22.09.1994.

The power of attorney executed in favour of the first defendant allegedly by the defendants 7 to 11 is marked as Ex.B.2. The said document shows that it was executed on 16.12.1987. The sale deed in favour of the plaintiffs was executed by the defendants 7 to 11 on 16.08.1989. Thus, the General Power of Attorney was executed long prior to Ex.A.1 sale deed in favour of the plaintiff. When after executing the General Power of Attorney, the defendants 7 to 11 who are the owners of the schedule property sold it away to the plaintiffs under Ex.A.1 registered sale deed dated 16.08.1989 and delivered possessiont the General Power of Attorney holder absolutely has no authority to convey any title to the defendant No.12 under Ex.A.1-sale deed. Therefore, the sale transaction covered by Ex.B.1 is hit by Section 52 of the Transfer of Property Act and it cannot be said to be valid. The learned first appellate Court proceeded under a misconception that the plaintiffs failed to establish their case for declaration of title and injunction by adducing any positive evidence and the trial Court passed a decree in their favour basing on the weakness of the case of the defendants. The first appellate Court was clearly in error because as already noticed the admissions made by the defendants 7 to 11 clearly prove that the property was conveyed by them to the plaintiffs under Ex.A.1-sale deed and possession of the property was also delivered to him under the said sale deed. According to the defendant No.12 and from the evidence adduced on behalf of the defendants he seems to have obtained registered sale deed Ex.B.1 during the pendency of the suit from the first defendant, who is said to be authorized by the defendants 7 to 11, who are the real owners of the property. Having executed Ex.A.1 sale deed in favour of the plaintiffs and putting him in possession of the property, the defendants 7 to 11 are estopped from saying that on their authorization, the first defendant executed Ex.A.1-registered sale deed in respect of the same property in favour of the 12th defendant. Therefore, the alleged sale transaction covered by Ex.B.1 registered sale deed being hit by the provisions of Section 52 of the Transfer of Property Act is not valid in the eye of law and the judgment therefore, can certainly be said to be perverse.

In the circumstances pointed out herein above, it cannot at all be said that any title has been passed on to the 12th defendant under Ex.B.1 sale deed since admittedly defendants 7 to 11, who are real owners of the property sold the same to the plaintiffs under Ex.A.1 sale deed and put him in possession of the property much earlier to Ex.A.1. As rightly held by the learned trial Court, in view of the subsequent amendment seeking the relief of declaration of title and recovery of possession the plaintiffs are entitled for a decree of title and possession.

For the foregoing reasons, the decree and judgment, dated 12.03.2004, passed by the II Additional District Judge, Ranga Reddy District in A.S.No.8 of 2001 is set aside an the judgment and decree dated 23.11.2000 passed by the II Additional Senior Civil Judge, Ranga Reddy District in O.S.No.447 of 1992 is