Andhra HC (Pre-Telangana)
Ahmed Bin Sayeed And Ten Others vs Mrs. Kamala Bai And Seven Others on 25 August, 2014
Equivalent citations: AIRONLINE 2014 HYD 38, (2014) 6 ANDHLD 505
Bench: K.C.Bhanu, Anis
THE HONBLE SRI JUSTICE K.C.BHANU AND THE HONBLE SMT. JUSTICE ANIS CIVIL MISCELLANEOUS APPEAL NO. 560 OF 2014 25-08-2014 Ahmed Bin Sayeed and ten others.Appellants Mrs. Kamala Bai and seven others. Respondents Counsel for the Appellants: Sri H.Venugopal Counsel for the Respondents: Sri Md.Shareef <Gist : >Head Note: ?Cases referred: 1.2011(5) ALD 149 (SC) THE HONBLE SRI JUSTICE K.C.BHANU AND THE HONBLE SMT. JUSTICE ANIS CIVIL MISCELLANEOUS APPEAL NO. 560 OF 2014 JUDGMENT:
(Per the Honble Smt. Justice Anis)
1. This Civil Miscellaneous Appeal, under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908 (for short C.P.C.), is directed against the order, dated 16.04.2014 passed in I.A.No.605 of 2013 in O.S.No.1116 of 2013 on the file of the IV Additional District Judge, Ranga Reddy District at L.B.Nagar.
2. Appellants were arrayed as the respondents 1 to 3 and 5 to 12, while the respondents 1 to 7 as the petitioners and respondent No.8 as the respondent No.4 in I.A. before the trial Court.
3. For the sake of convenience, the parties are referred to as arrayed in the I.A. before the trial Court.
4. The petitioners filed the petition under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. to grant ad interim injunction restraining the respondents from changing the nature of the suit schedule property and making any construction in the suit schedule property plots bearing Nos.306, 307, 308, 313, 314 and 315 comprising in Survey Nos.87 and 119 admeasuring 1008 Sq. yards situated at Puppalguda village, Rajendranagar Mandal, Ranga Reddy District.
5. The brief averments made in the petition filed before the trial Court are as follows:
The petitioners/plaintiffs are the owners and possessors of the land comprising in Survey Nos.87 and 119 of Puppalguda village and grampanchayat, Rajendranagar Mandal, Ranga Reddy District, which was inherited from the deceased Ramlal, who was the husband of 1st petitioner and father of petitioners 2,3,5 and 6. Petitioners 4 and 7 are the legal heirs of one Bharat Singh, who was the son of the said Ramlal.
Originally, late Kalyan Singh during his lifetime was the protected tenant of one Syed Shah Ahmed Mohiuddin. The said Kalyan Singh adopted his maternal grandson by name Ramlal and the said Ramlal succeeded the said property as protected tenant of Kalyan Singh. During the lifetime of Ramlal, he was the owner and possessor of the agricultural land admeasuring Ac.12.17 guntas in Survey No.87 and 16.06 guntas of land in Survey No.119 altogether Ac.26.31 guntas in Survey Nos.87 and 119 of Puppalaguda village and grampanchapayat, Rajendranagar Mandal, Ranga Reddy District by virtue of a Certificate of Ownership under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short the Act) under Proceedings No.LR/155/75, dated 29.08.1975 issued by a competent revenue authority. During his lifetime, the said Ramlal along with his brothers namely Sukhlal, Shivlal, Suraj and Papalal and all sons of deceased Sajjanlal appointed one Riyaz S/o.R.Kareem as their General Power of Attorney on 12.11.1990 vide registered Document No.3452 of 1990 and the said Riyaz is the natural son of respondent No.4.
The said Ramlal, who was the owner and possessor of the aforesaid lands, died on 13.10.1996. After the death of Ramlal, his brothers Sukhlal, Shivlal, Suraj and Papalal and all sons of deceased Sajjanlal cancelled the registered Power of Attorney in favour of said Riyaz on 25.11.1997 under a registered instrument. Hence, the said Riyaz is ceased to be the power of attorney from the date of execution of the said cancellation deed.
After the death of Ramlal, the Mandal Revenue Officer granted succession in favour of 1st petitioner and others vide Proceedings in File No.D/1477/06 and as per the report of the Tahsildar, Rajendranagar in File No.D/815/2006, dated 08.04.2006, the petitioners were in possession of the aforesaid lands.
The said Riyaz, the then Power of Attorney, during the subsistence of the Power of Attorney developed the said lands into plots under a valid permit from HUDA vide Permit No.10132 in Letter No.10132/MP2/h/90, dated 06.10.1994 and as per the agreement, an extent of Ac.3.33 guntas was excluded from the said layout in Survey No.119 for the petitioners and the petitioners sold Ac.3.08 guntas in Survey No.119 to a company by name Agile Buildcon (India) Private Limited and remaining extent of Ac.0.25 guntas was lying with the petitioners and the said land was divided into plots numbered as 306, 307, 308, 313, 314, 315, 329, 330, 331, 332, 333 and 334. Further, the petitioners appointed one Rafeeq Ali S/o.Toufeeq Ali as their General Power of Attorney through a registered General Power of Attorney vide Document No.3582 of 2012, dated 30.07.2012.
Further, respondent No.4, who is the natural father of the said Riyaz, impersonating himself as the Power of Attorney in the year 1996, has sold the plots bearing Nos.306, 307 and 308 altogether admeasuring 480 Sq. yards through a registered Sale deed vide Document No.2722 of 1996, dated 19.08.1996 to the 1st respondent; plots bearing Nos.313 and 315 altogether admeasuring 352 Sq. yards through a registered Sale deed vide Document No.2723 of 1996, dated 19.08.1996 to the respondent No.2; and plots bearing Nos.315 and 316 altogether admeasuring 352 Sq. yards through a registered Sale deed vide Document No.2724 of 1996, dated 19.08.1996.
Further, when the petitioners are taking steps to file a suit against the respondents 1 to 4, the respondents came to the petition schedule property on 02.09.2013 with heavy machinery and started construction work in the plots bearing Nos.306, 307 and 308 admeasuring 480 Sq. yards and the plots bearing Nos.313, 314 and 315 admeasuring 528 Sq. yards. The respondents 1 to 3 sold away the plots bearing Nos.306, 307, 308, 313, 314 and 315 admeasuring 1008 Sq. yards in Survey Nos.87 and 119 to the respondents 5 to 9 through a registered Sale deed vide Document No.5655 of 2013, dated 13.08.2013. As such, the petitioners have no other alternative remedy than to approach the Court seeking the relief to declare the registered Sale deeds executed in favour of respondents 1 to 3 and 5 to 9 as void and not binding on the petitioners and put the petitioners in possession of the petition schedule property and further restraining the respondents from alienating and constructing or changing the nature of the petition schedule property.
6. The brief averments made in the Counter filed by the respondents 5 to 12 before the trial Court are as follows:
The injunction petition filed by the petitioners restraining the respondents from alienating or changing the nature of the petition schedule property is not maintainable either in law or on facts.
The respondents admitted that originally the land in Survey Nos.87 and 119 was owned by Syed Shaik Ahmed Mohiuddin and Ramlal being the protected tenant obtained ownership certificate under Section 38-E of the Act for the land to an extent of Ac.10.26 guntas and Ac.16.05 guntas in Survey Nos.87 and 119 respectively admeasuring Ac.26.31 guntas totally in Puppalguda Village, Hyderabad (West). The respondents further admitted that Ramlal and his brothers namely Suklal, Shivlal, Paplal and Suraj, the son of deceased brother Mohanlal, have constituted joint Hindu Undivided Family and they jointly made an application under Section 5(1)(B) of R.O.R. Act for mutation of the revenue records in their favour.
Further, Ramlal and his brothers executed a registered irrevocable GPA dated 12.11.1990 in favour of Riyaz Kareem S/o.R.Kareem (4th respondent) in respect of the land admeasuring Ac.17.36 guntas in Survey Nos.87 and 119 of Puppalguda village. In the said GPA, the principals conferred the powers under Clause No.5 on the said power of attorney holder Riyaz to sub-delegate all or such of the powers conferred on him to others. By virtue of the said clause, the power of attorney holder Riyaz delegated his powers to his father R.Kareem i.e. respondent No.4 by executing sub-power of attorney dated 28.04.1994 duly authorized to execute the registered Sale deeds in favour of intending purchasers and complete the sale transactions while he was going abroad. Basing on such Special Power of Attorney, the respondent No.4 executed Sale deed on 19.08.1996 vide Document No.2722 of 1996 in favour of 1st respondent in respect of plot Nos.306, 307 and 308 admeasuring 480 Sq. yards in Survey Nos.87 and 119 of Puppalguda village. Further, the respondent No.4 executed another Sale deed on 19.08.1996 vide Document No.2723 of 1996 in favour of 2nd respondent in respect of plot Nos.313 and 314 in Survey Nos.87 and 119 admeasuring Ac.352 Sq. yards. On the same day, the respondent No.4 executed another Sale deed vide Document No.2724 of 1996 in favour of 3rd respondent in respect of plot Nos.315 and 316 in Survey Nos.87 and 119 of Puppalguda village. Due to financial necessities, the respondents 1 to 3 sold out the house plots bearing Nos.306, 307 and 308 admeasuring 480 Sq. yards; plot bearing Nos.313 and 314 admeasuring 352 Sq. yards and plot bearing No.315 admeasuring 176 Sq. yards total admeasuring 1008 Sq. yards in Survey Nos.87 and 119 of Puppalguda village under registered Sale deed vide Document No.5688 of 2013, dated 13.08.2013 in favour of respondents 5 to 9. In turn, the respondents 5 to 9 submitted an application for regularization of house plots under the regularization scheme and obtained the regularization from HMDA. Further, on 26.08.2013, the respondents 5 to 9 entered into Development agreement-cum- General Power of Attorney with respondents 10 to 12 in respect of house plot bearing Nos.306, 307 and 308 admeasuring 480 Sq. yards and plot bearing Nos.313, 314 and 315 admeasuring 1008 Sq. yards respectively.
Further, the respondents 10 to 12 have obtained permission from the authorities concerned for construction of the apartments duly paying necessary charges. As such, the respondents 5 to 9 have acquired the said properties under registered Sale deeds by paying valid sale consideration to their vendors and they are put into physical possession of the said properties. By virtue of the registered Sale deeds, the respondents 5 to 9 became absolute owners with regard to the above said house plots and the vendors have conveyed the perfect title with possession to the respondents 5 to 9 in respect of the house plots. Accordingly, respondents 5 to 9 entered into Development agreement with respondents 10 to 12.
The respondents stated that the petitioners approached the Court with unclean hands without establishing prima facie case over the petition schedule property. As such, the petitioners are not entitled to seek ad interim injunction against the respondents. Further, if interim injunction is granted, the respondents would be put into hardship, mental agony and irreparable loss. Hence, prayed the Court to dismiss the petition.
7. The respondents 1 to 3 filed a memo before the trial Court adopting the counter filed by the respondents 5 to 12.
8. The respondent No.4 remained ex parte before the trial Court.
9. Basing on the above pleadings, the Tribunal framed a point and in order to substantiate their case, Exs.P.1 to P.15 were marked on behalf of the petitioners and Exs.R.1 to R.19 were marked on behalf of the respondents before the trial Court.
10. After considering the oral and documentary evidence and upon hearing the learned counsel for both the parties, the trial Court allowed the petition and directed the respondents to restrain from changing the nature of property and making of any construction over the petition schedule property till disposal of the suit.
11. Aggrieved by the order of the trial Court, the respondents 1 to 3 and 5 to 12 preferred the present Civil Miscellaneous Appeal.
12. The learned counsel for the appellants/respondents argued that the petition filed by the respondents/petitioners is not maintainable as the Sale deeds were executed way back in the year 1996 and the same were challenged only in the year 2013 after the death of Ramlal and during the lifetime of Ramlal, he never disputed or questioned the said Sale deeds.
It is also argued that Ramlal died on 13.10.1996 and the petitioners filed the suit after long lapse of 17 years, and as such, by that time, the rights of the appellants were crystalised under registered documents. Therefore, the trial Court ought not to have granted interim injunction stating not to alter the nature of the petition schedule property.
It is further argued that Clause 5 of the registered GPA confers powers on the power of attorney holder to sub-delegate the powers and there is no illegality in executing GPA by Riyaz in favour of 8th respondent/4th respondent. It is further argued that the respondents/petitioners have already divested their rights and interests in favour of M/s.Agile Buildcon (India) Private Limited by way of agreement of sale- cum-GPA on 01.02.2007 in respect of the land admeasuring Ac.3.08 guntas in Survey No.119 and Ac.0.16 guntas in Survey No.87 of Puppalguda village. In the said document, it is also shows that the husband of 1st respondent/1st petitioner allotted the land admeasuring Ac.0.15 guntas in Survey No.87 and Ac.3.09 guntas in Survey No.119, in total Ac.3.24 guntas, who in turn sold the land to M/s.Agile Buildcon (India) Private Limited on 01.02.2007. Further, the appellants/respondents have constructed and completed the apartments by obtaining permission from the HMDA authorities.
It is further argued that the trial Court failed to see the laches on the part of the respondents/petitioners in approaching the Court as the petition schedule property was already sold by appellants 1 to 3/respondents 1 to 3 to appellants 4 to 8/respondents 5 to 9, who in turn entered into Development agreement with appellants 9 to 11/respondents 10 to 12 and the appellants 9 to 11/respondents 10 to 12 have also obtained permission from the concerned authorities for construction of the apartments. Therefore, the respondents/petitioners failed to prove the prima facie case and balance of convenience and if the injunction is granted, the appellants/respondents would suffer irreparable loss as they have already completed the construction and finally prayed the Court to allow the appeal.
13. On the other hand, the learned counsel for the respondents/petitioners argued that originally one Ramlal was the holder of certificate of ownership under Section 38-E of the Act over the agricultural land of Ac.26.31 gunts comprising in Survey Nos.87 and 119 of Puppalguda village and during his lifetime, himself, his brothers and the sons of his deceased brother executed registered GPA in favour of one Riyaz, who is the son of the 8th respondent/4th respondent on 12.11.1990. After the death of said Ramlal on 13.10.1996, the brothers of Ramlal and the sons of his deceased brother cancelled the GPA of Riyaz on 25.11.1997. Therefore, the GPA holder cannot delegate further powers under an unregistered GPA in favour of 8th respondent/4th respondent and no title was passed to the appellants/respondents through the 8th respondent/4th respondent.
It is further argued that the respondents/petitioners are the absolute owners and possessors of the petition schedule property and the prima facie case and balance of convenience are in favour of the respondents/petitioners and if the injunction already granted is vacated, the appellants/respondents will complete the construction and third party interests will be created, thereby it also adversely affect the interests of the general innocent public and finally prayed the Court to dismiss the appeal.
14. After hearing both sides, the point that arises for consideration is:
Whether the appellants/respondents have made out any case to set aside the impugned order passed by the trial Court as prayed for?
15. POINT:
As per the pleadings and as per the documentary evidence, originally one Syed Shah Ahmed Mohiuddin was the owner of Survey Nos.87 and 119 of Puppalguda village admeasuring Ac.26.31 guntas. One Kalyan Singh was the protected tenant to the said Syed Shah Ahmed Mohiuddin. The said Kalyan Singh adopted his maternal grandson Ramlal and the said Ramlal during his lifetime, obtained ownership certificate under Section 38-E of the Act on 29.08.1975 from the competent authority vide Proceedings No.LR/155/75. It is also an admitted fact that Ramlal and his brothers namely Sukhlal, Sivalal, Suraj and Papalal and the sons of the deceased Sajjanlal appointed one Riyaz, son of 4th respondent, as their General Power of Attorney in respect of entire lands through a registered Document No.3452 of 1990, dated 12.11.1990. It is also an admitted fact that Ramlal died on 13.10.1996 and after his death, his brothers and sons of his deceased brother cancelled the power of attorney in favour of Riyaz on 25.11.1997 under a registered Document. Since then, the said Riyaz is ceased to be the power of attorney to the petitioners. Further, after the death of Ramlal, first petitioner and others obtained succession in their favour vide Proceedings in File No.D/1477/06. It is also an admitted fact that the said Riyaz, the then power of attorney holder, during subsistence of power of attorney, developed the lands into plots after obtaining permission from HUDA vide Permit No.10132 in Letter No.10132/MP2/h/90, dated 06.10.1994 and as per the agreement, an extent of Ac.3.33 guntas was excluded from the said layout in Survey No.119 for the petitioners and the petitioners sold an extent of Ac.3.08 guntas to M/s.Agile Buildcon (India) Private Limited and remaining extent of Ac.0.25 guntas lying with the petitioners and the land was divided into plots numbered as 306, 307, 308, 313, 314, 315, 329, 330, 331, 332, 333 and
334. It is also an admitted fact that the 4th respondent father of Riyaz executed Sale deeds under Exs.P.9 to P.11 for plots 306 to 308 and 313 to 316 to the respondents 1 to 3, who in turn sold the said plots to respondents 5 to 9.
16. Now, the burden of proof lies on the petitioners to prove the prima facie case, balance of convenience and if the injunction is not granted, irreparable loss is going to be caused. The main contention of the petitioners is that father of Riyaz sold the plots 306 to 308 and 313 to 316 to respondents 1 to 3 without proper authority as no power of attorney was given to GPA holder i.e. Riyaz to sub-delegate the powers to sell the said plots except the extent of acts given in Clause (5) of Ex.P.2, and therefore, the unregistered and improperly stamped power of attorney alleged to have executed by Riyaz in favour of his father i.e. 4th respondent, is without any authority and invalid, and such document cannot be taken into consideration.
17. A perusal of Ex.P.2 shows that Ramlal, his three brothers and the son of his deceased brother executed the said document in favour of Riyaz to deal with agricultural lands in Survey Nos.87 and 119 to an extent of Ac.17.36 guntas in Poppalguda village. As per Ex.P.2, Clause (11) empowers the GPA holder to sell the lands in Survey Nos.87 and 119 situtated in Poppalguda village. The Clause (5) of registered irrevocable power of attorney executed in favour of Riyaz is as follows:
To file all appeals, revision, petitions, as may be required before the courts or the concerned offices and departments and to engage and appoint legal practitioner to conduct the case in the above matter and we further authorize out Attorney to delegate all or such of the powers herein conferred on him by us jointly and severally in favour of any other person as other attorney and further empower such other constituted attorney with additional acts which our attorney may deem fit and proper.
Clause (5) empowers the G.P.A. holder to delegate all or such of the powers conferred upon him by the petitioners in favour of any other person as other attorney.
18. The learned counsel for the appellants vehemently contended that Clause (5) is sufficient to show that original GPA holder i.e. Riyaz is empowered to re-delegate his powers to his father i.e. 4th respondent. The learned counsel for the respondents/petitioners argued that Clause (2) of the unregistered GPA, dated 28.04.1994 shows that the said Riyaz gave powers to his father to act on his behalf to conclude the agreement of sale dated 07.05.1992 which he entered into with M/s.Kashtopa Corporation with regard to lands at Gachibowli. Admittedly, the petition schedule lands are situated at Puppalaguda village, Rajendranagar Mandal, Ranga Reddy District. Even Clause (11) of the said document i.e. Ex.R.2 shows that Riyaz gave powers to his father i.e. 4th respondent to deal with his properties.
19. Section 190 of the Indian Contract Act, 1872 reads as follows:
When agent cannot delegate.- An agent cannot lawfully employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may, or, from the nature of the agency, a sub-agent must, be employed.
Delegation by an agent, that is entrusted to another person by an agent of the exercise of a power or duty entrusted to him by his principal, is in general prohibited, under the maxim delegatus non potest delegare. A delegated authority cannot be delegated further. The relationship of principal and agent is based on confidence and trust. When the principal has reposed trust in a particular agent, the agent cannot substitute another person in his place. In other words, an agent cannot employ a sub-agent to get the work done through him. This rule, however, is subject to certain exceptions, viz.,
1. When there is a custom of trade to that effect, the agent may employ a sub-agent.
2. When the nature of agency so requires, an agent must employ a sub-agent. For instance, an agent authorized to recover some amount from a third person by filing a suit must engage a lawyer for the purpose, or when an agent has been authorized to purchase or sell goods in a foreign country, he must engage a sub-agent for doing the work.
3. When an act does not require personal skill, the same may be got done through a sub-agent. The rule against delegation is only for such acts, which an agent has undertaken to perform personally. If the undertaking is of a purely ministerial nature, where an agent has not undertaken to perform the same personally, a sub-agent may be appointed to do the work. For instance, if an agent has been appointed to weigh coal lying at a place, or to transport goods from one place to another, he may get the work done from a sub-agent.
4. When the principal, expressly or impliedly, agrees to the appointment of a sub-agent for doing certain work, which has been otherwise assigned to the agent, a sub-agent may be validly appointed.
Therefore, the maxim would, however, stringently apply where personal skill of the agent is essential or where the principal has reposed trust and confidence in the agent. The reason that no such power can be implied as an ordinary incident in the contract of agency is that confidence in the particular person employed is at the root of the contract. Accordingly, the general power of attorney holder too in whom confidence is reposed has, generally speaking, no power to delegate their authority.
20. Further, the Honble Supreme Court in a case of SMS Tea Estates Pvt. Ltd. Vs. Chandmari Tea Company Pvt. Ltd. , has laid down the procedure to be adopted where a document is not registered (but compulsorily registerable) and not duly stamped, as follows:
(i) The court should, before admitting any document into evidence or acting upon such document, examine whether the instrument/document is duly stamped and whether it is an instrument which is compulsorily registerable.
(ii) If the document is found to be not duly stamped, Section 35 of Stamp Act bars the said document being acted upon. The court should then proceed to impound the document under Section 33 of the Stamp Act and follow the procedure under Section 35 and 38 of the Stamp Act.
(iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the Court or before the Collector (as contemplated in Section 35 or 40 of the Stamp Act) and the defect with reference to deficit stamp is cured, the court may treat the document as duly stamped.
(iv) Once the document is found to be duly stamped, the court shall proceed to consider whether the document is compulsorily registerable. If the document is found to be not compulsorily registerable, the court can act upon the document, without any impediment.
In the case on hand, the G.P.A. in favour of 4th respondent is an unregistered and improperly stamped document. A perusal of the document shows that it involves the transfer of rights in the immovable property from one party to another. The son of the 4th respondent is also created transfer of rights of his personal property as well as the property situated in Survey Nos.87 and 119. Therefore, the said document is compulsorily registerable document under the Registration Act, 1908.
21. Admittedly, the GPA executed by Riyaz in favour of his father is not clear whether he sub-delegated his powers with respect to the petition schedule properties or whether he executed unregistered GPA on 28.04.1994 to sell his properties situated at Gachibowli, Hyderabad. Clause (1) of Ex.R.2 is contradictory with the contents of Clause (2) and (11) of Ex.R.2. Clause (1) of Ex.R.2 empowers to deal with the property in Survey Nos.87 and 119 of Puppalguda Village. Clause (2) of Ex.R.2 empowers to execute the Sale deed in favour of M/s.Kashtopa Corporation over the properties situated at Gachibowli. Clause (11) of Ex.R.2 empowers to sub-delegate and to deal with his properties. Further, the learned counsel for the appellants/respondents prima facie failed to clear the cloud cast on Ex.R.2.
22. In the aforesaid circumstances, the trial Court rightly granted the injunction against the appellants/respondents not to change the nature of the property and making constructions in the petition schedule properties. If the constructed apartments allowed to sell, it will effect the interests of the general public who purchased the said plots and it will be difficult for the petitioners to recover the possession of the said property in case they succeed in the suit. Therefore, the trial Court rightly granted injunction in order to avoid multiplicity of proceedings and the said findings of the trial Court are based on record which needs no interference by this Court. Hence, the appeal is devoid of merit and is liable to be dismissed.
23. In the result, the Civil Miscellaneous Appeal is dismissed, confirming the order dated 16.04.2014, passed by the learned IV Additional District Judge, Ranga Reddy District at L.B.Nagar, in I.A.No.605 of 2013 in O.S.No.1116 of 2013. No order as to costs. Miscellaneous Petitions, if any, pending in the appeal shall stand closed.
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(K.C. BHANU, J)
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(ANIS, J) 25.08.2014