Andhra Pradesh High Court - Amravati
Sangisapu Seetarama Rao vs B.V.S. Murthy on 25 March, 2025
APHC010142902005
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY ,THE TWENTY FIFTH DAY OF MARCH
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 332/2005
AND
IA 1 OF 2024
IN
FIRST APPEAL NO: 332/2005
Between:
Sangisapu Seetarama Rao and Others ...APPELLANT(S)
AND
B V S Murthy ...RESPONDENT
TRANSFER APPEAL NO: 635/2008 Between:
S. Veeravenakata Satya Ganesh Kumar and Others ...APPELLANT(S) AND B V S Murthy and Others ...RESPONDENT(S) Counsel for the Appellants:
1. .
2. M R S SRINIVAS Counsel for the Respondents:
1. V V RAVI PRASAD The Court made the following:
Common Judgment:
The A.S. No.332 of 2005 is filed by the appellants/defendant Nos.1, 2, 4 and 5 against the common judgment, dated 21.04.2005, passed in O.S. No.242 of 1999 and O.S.No.339 of 2001 on the file of the I Additional Senior Civil Judge, Rajahmundry.
O.S.No.242 of 1999 is filed by the plaintiff by name Bulusu Venkata Satyanarayana Murthy against Sangisapu Sitarama Rao, Sangisapu Venkata Satya Surya Ganesh Kumar, Sangisapu Meena (died), Mangipudi Radha Krishna Sandhyavathi and Sangisapu Annapurna Devi, for seeking relief of recovery of possession and delivery of original sale deed to the plaintiff. The trial Court decreed the Suit. A.S.no.332 of 2005 is filed against the decree passed in O.S.No.242 of 1999.
2. The Transfer A.S.No.635 of 2008 is filed by the appellants/plaintiffs against the common judgment, dated 21.04.2005, passed in O.S. No.242 of 1999 and O.S.No.339 of 2001 on the file of the I Additional Senior Civil Judge, Rajahmundry.
O.S.No.339 of 2001 is filed by S.V.V.S.S. Ganesh Kumar, M.R.K. Sandhyavalli and S. Meena against B.V.S. Murthy and two others for simple suit for relief of permanent injunction restraining the defendants and their men from ever interfering with the peaceful possession and enjoyment over the plaint schedule property. The trial Court dismissed the said suit. The Transfer A.S.No.635 of 2008 is filed against the decree passed in O.S.No.339 of 2001.
3. The trial Court clubbed both the suits i.e., O.S.No.242 of 1999 and O.S.No.339 of 2001 and common evidence is recorded by the trial Court in O.S.No.242 of 1999, on a memo filed by both the parties as per orders, dated 04.02.2002. Both the appeals i.e., A.S.No.332 of 2005 and A.S.No.638 of 2008 were filed against the common judgment, dated 21.04.2005 on the file of I Additional Senior Civil Judge, Rajahmundry, therefore, this Court clubbed both these appeals are heard together being disposed of by this common judgment.
4. For the sake of convenience, both parties in the appeals will be referred to as they are arrayed in the original suits.
5. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.242 of 1999 connected with A.S.No.332 of 2005, is as follows:
Plaintiff is the absolute owner of the tiled house appurtenant site bearing D.No.17-23-15 for total extent of 435 sq. yards at Sitampeta, Rajahmundry Municipal Corporation limits. The plaintiff purchased the said property from the defendants for a total consideration of Rs.4,75,000/-. The plaintiff at the time of settlement of transaction paid an amount of Rs.25,000/- by way of cheque to 1st defendant. Subsequently, on 28.12.1994, the plaintiff paid an amount of Rs.1,61,000/- to M/s.Krishna Chaitanya Corporation for the amount due from the 1st defendant to it and again on 11.01.1995 the plaintiff paid a sum of Rs.50,000/- to the said Corporation which delivered the title deeds relating to the plaint schedule property to 1st defendant, who in turn delivered the same to the plaintiff. At the time of making payments to the said Corporation, the 1st defendant represented that there was an agreement of sale executed by him in respect of schedule property and that it was executed as security for the amounts borrowed by them from the said Corporation. Subsequently, before registration of sale deed, plaintiff paid total amount of Rs.22,000/- on different dates either to the 1st defendant or his son, 2nd defendant, who acknowledged the receipt of the same in the diary maintained by plaintiff in token of receipt of amount. The plaintiff purchased Non Judicial stamp worth Rs.100/- on 23.12.1994 and handed over the same to 1st defendant for preparing agreement of sale. The 1st defendant received the stamp paper and later informed the plaintiff that the value of the properties would be increased by the State Government from 01.04.1995 and therefore advised the plaintiff to complete the sale transaction before 31.03.1995 to avoid paying more stamp duty. The 1st defendant and other defendants registered a sale deed in the name of plaintiff and the consideration for sale deed was mentioned as Rs.1,90,000/- to obtain income tax clearance by the defendants and also payment of capital gain tax and therefore the sale deed was executed at the 1st defendant dictation as if the property was sold for Rs.1,90,000/- only. The plaintiff was informed that 1st defendant scribed the document and therefore he put his signature as Swahasham in the document. Along with the 1st defendant, the other defendants and also the previous agreement holder by name Appala Jagannadharaju joined in execution of the sale deed to avoid any claim from the said Jagannadha Raju regarding the property. All the defendants, Jagannadha Raju and the plaintiff attended the office of Sub-Registrar and presented the sale deed for registration on 31.03.1995, after the 1st defendant receiving the amount of Rs.1,90,000/- at the time of execution of the sale deed, by the date of payment of Rs.1,90,000/- the plaintiff was owing an amount of Rs.27,000/- towards balance sale consideration and to that effect plaintiff gave an undertaking in writing in favour of 1st defendant that plaintiff would pay the amount within six months and till the date of payment of balance amount, the defendants are permitted to continue in occupation of the property as licencees. The said letter was executed on the same day i.e., 31.03.1995 at the dictation of 1st defendant. The 1st defendant at the time of registration informed the plaintiff that he would keep the original sale deed with him as a security for payment of balance sale consideration of Rs.27,000/- and for the said course the plaintiff agreed and delivered the same to the 1st defendant after obtaining from Sub-
Registrar‟s Office and thus the 1st defendant came into custody of the original document. Subsequent to the registration of sale deed either the 1st defendant or his son 2nd defendant collected the balance sale consideration of Rs.27,000/- from the plaintiff from time to time and signed in the Diary maintained by the plaintiff in token of receipt of the same. Thus, by 05.06.1995, the plaintiff paid the entire sale consideration and requested the defendants to vacate the property. The plaintiff many times requested the defendants to vacate the schedule property, the 1st defendant used to inform the plaintiff that he had not yet secured suitable premises for vacating the schedule property. When the plaintiff pressurized the 1st defendant to vacate the premises, the defendants got issued a registered notice, dated 24.08.1995 to the plaintiff and his brother falsely alleging that the sale consideration was fixed at Rs.5,25,000/- and out of which plaintiff paid only Rs.2,85,000/- and called upon the plaintiff to pay Rs.2,40,000/- together with interest and threatened the plaintiff with cancellation of the sale deed through process of law and for damages etc. Prior to exchange of registered notices, upon the application made by the plaintiff for mutation of his name in the place of 1st defendant name in the Municipal records and also for payment of taxes in his name, the Rajahmundry Municipality on 13.07.1995 issued notice to 1st defendant to file any objections for mutation. On enquiry, the plaintiff came to know that the defendants unilaterally cancelled the sale deed by executing cancellation deed, dated 11.02.1997 reciting false averments therein that the sale deed executed by them was not supported by consideration and that 1 st defendant was made to execute the sale deed at that time he was not keeping good health, etc.
6. The brief facts in the written statement filed by the 1st defendant before the trial Court by denying the plaint averments which was adopted by defendant Nos.2 to 4 are as follows:
The plaintiff is not the absolute owner of the plaint schedule property. The defendants agreed to sell away the plaint schedule property for a sum of Rs.5,25,000/-. The plaintiff was also agreed for the same in the presence of one S.B. Chowdary, but contrary to it by playing fraud and misrepresentation, the plaintiff brought into existence of the alleged sale deed, dated 28.03.1995 with false recitals therein. This defendants never intended to mention the sale consideration in the sale deed as Rs.1,90,000/- and they do not have any obligation to get any income tax clearance or capital gain tax as alleged in the plaint. In fact, after scribing the sale deed by one Bulusu Venkataramayya, who is the brother of plaintiff, himself and the plaintiff brought the scribed sale deed to the house of defendants and obtained the signature of this defendant‟s wife as 1st attestor at this defendants house only and hurriedly evacuated the defendants to the Sub-Registrar Office and obtained their signatures there without giving any opportunity to go through the contents of the sale deed. At the time of putting signatures of the defendants, even the defendants do not know with whom the sale deed scribed. In fact, no amount was paid either on the date of obtaining the signatures of the defendants on the document, dated 28.03.1995 or on 31.03.1995 on the date of alleged registration. The plaintiff never paid Rs.1,90,000/- to the defendants at any point of time and as such on the date of sale deed, plaintiff was owing only Rs.27,000/- is utterly false. On the date of alleged sale deed, the plaintiff was owing Rs.2,67,000/-. But, subsequently, the plaintiff paid Rs.27,000/- out of the total balance sale consideration of Rs.2,67,000/-. The defendants have only received the said amount of Rs.27,000/- on installment basis. Even after the registration, the sale deed was not shown to the defendants. In fact, as the plaintiff deviated the original terms of the oral agreement of sale, dated 18.10.1994, the defendants themselves continuing in the property as owners by giving a valid legal notice, dated 24.08.1995, calling upon the plaintiff to get registered a new sale deed with original terms by duly mentioning the original sale consideration and balance sale consideration due as on the date of notice, etc. The defendants have also issued a prior notice, dated 18.01.1997 to the plaintiff intimating him that they are going to cancel the sale deed by way of another registered sale deed. But, the plaintiff neither objected for the same nor issued any reply for the same, consequently, the sale deed was cancelled as the sale deed obtained by the plaintiff is nothing but a deed obtained by misrepresentation. As such, the said sale deed was cancelled on 11.02.1997. Now there is no any sale deed in force in the eye of law and as such the defendants have been enjoying the plaint schedule property with valid title, interest and possession as owners. Thus, the sale deed in question is a void document and as such the plaintiff cannot insist the defendants for possession of the property. The plaintiff should have filed a suit for declaration of his title and right over the plaint schedule property basing on his alleged sale deed. He cannot seek relief of mere possession of the plaint schedule property without proving his title for the same. The brother of the plaintiff scribed the sale deed and forged the signature of 1st defendant at the column mentioned as scribe stating as (swahastam) own handwriting. The 1st defendant also filed a criminal case C.C.No.510 of 1998 on the file of III Additional Judicial Magistrate of First Class, Rajahmundry and the said case is pending. The agreed sale consideration between the parties is Rs.5,25,000/-.
But, later the plaintiff contending that the sale consideration was Rs.4,75,000/- . The amount of Rs.1,90,000/- which is incorrect figure of consideration that was mentioned in the sale deed was also not paid to the defendants at any point of time. Admittedly, the plaint schedule property was not handed over to the plaintiff even to date. As the sale deed in question is inoperative, void and not acted upon, the defendants issued prior notice and therefore, the defendants 2 to 4 filed O.S.No.1095 of 1999 on the file of Principal Junior Civil Judge, Rajahmudnry and obtained injunction orders against the plaintiff and his brother.
7. On the basis of above pleadings, the trial Court framed the following issues for trial:
(1) Whether the real sale consideration for the sale deed, dated 28.03.1995 executed in respect of the plaint schedule property was agreed to be Rs.5,25,000/-?
(2) Whether the sale deed, dated 28.03.1995 was obtained by misrepresentation?
(3) Whether the defendants have right to cancel the sale deed and if the cancellation deed, dated 11.02.1997 is valid and binding on the plaintiff?
(4) Whether the payments pleaded by the plaintiff are true?
(5) Whether the plaintiff is entitled to possession of plaint schedule property and to delivery of sale deed, dated 28.03.1995?
(6) Whether the plaintiff is entitled to profits as prayed for?
(7) To what relief?
8. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.339 of 2001 connected with Transfer A.S.No.635 of 2008, is as follows:
The plaintiffs 1 to 3 are the children of 3rd defendant. The defendants 1 and 2 are the brothers. The plaint schedule property is an undivided joint family property of all the plaintiffs and the 3rd defendant. The plaintiffs and 3rd defendant tried to sell away the plaint schedule property and the 1st defendant agreed to purchase the same for a sum of Rs.5,25,000/-. In this connection, the defendants 1 and 2 came to the house of plaintiffs and 3 rd defendant by saying that stamp duty was going to be hiked from the 1st day of April, 1995 and thus they are worried, if the registration was delayed. By saying so, they hurriedly obtained the signatures on the sale deed in favour of 1st defendant on 31.03.1995 without paying the sale consideration in full as agreed earlier and got it registered. They did not pay any amount on the date of registration. In fact, entire sale consideration as per the agreement in between the parties was not mentioned in the sale deed. It is learnt at the instance of the 1st defendant, the 2nd defendant drafted the sale deed in his own hand writing. But, the defendants 1 and 2 wantonly mentioned beneath of sale deed, as if it was drafted by the 3rd defendant and the signature of the 3rd defendant as a scribe was forged in the sale deed. The defendants 1 and 2 obtained the signatures of the plaintiffs and 3rd defendant herein without informing the correct contents of the sale deed written and without giving any opportunity or chance to them to go through the sale deed. Therefore, the sale deed is inoperative and not acted upon. No rights accrued to the 1st defendant in respect of the plaint schedule property and the plaintiffs and 3rd defendant did not lose their title and possession over the same. As the 1st defendant wrongfully tried to make possession of the property by filing false criminal case and threats against the 3rd defendant and plaintiffs, they cancelled the sale deed in question on 11.02.1997 by issuing prior notice to 1st defendant on 18.01.1997 and also by forfeiting the sale consideration of Rs.2,85,000/- for their wrongful and illegal acts. As such, the defendants 1 and 2 are stopped for claiming the same. The valuation of the cancellation deed was noted as Rs.1,90,000/- only as the value of the void sale deed could be cancelled was also Rs.1,90,000/- by the date of obtaining the signatures of the plaintiffs and 3rd defendant for the sale deed an amount of Rs.2,58,000/- was only paid and the balance sale consideration to be paid is Rs.2,76,000/-. After the registration of sale deed an amount of Rs.27,000/- was paid by the 1st defendant as part payment of balance sale consideration due to the plaintiffs and 3rd defendant. Even after payment of the said part payment of Rs.27,000/- still there is a due of sum of Rs.2,40,000/- by the defendants 1 and 2 as on 05.06.1995 to the plaintiffs and 3rd defendant. At that juncture, the 1st defendant filed false criminal cases against the 3rd defendant to harass him so as to grab the property from the plaintiffs as well as 3rd defendant by avoiding the payment of balance sale consideration of Rs.2,40,000/-. Thus, the 3rd defendant has also filed criminal case C.C.No.510 of 1998 on the file of III Additional Judicial First Class Magistrate, Rajahmundry against the defendants 1 and 2 for the offence of cheating, forgery and other connected offences under Indian Penal Code.
9. The brief facts in the written statement filed by the 1st defendant before the trial Court by denying the plaint averments which was adopted by 2nd defendant are as follows:
The 3rd defendant was the absolute owner of the plaint schedule property and that he claimed title to the property under registered Will, dated 18.01.1974 executed by one S. Venkata Suryanaryana. The plaintiffs joined in execution of the sale deed, dated 28.03.1995 along with one Jagannadha Raju, who was holding a registered agreement of sale in his favour on 28.03.1992 to ward off any claim by the plaintiffs and the said Jagannadha Raju regarding the schedule property. The plaintiffs and 3rd defendant are aware the consideration for the sale transaction covered by sale deed, dated 28.03.1995 was Rs.4,75,000/- only. The 3rd defendant before registration of the sale deed received a sum of Rs.2,58,000/- which is made up of Rs.25,000/- received advance by way of cheque and Rs.1,61,000/- and also Rs.50,.000/- got paid to Krishna Chaitanya Corporation on behalf of the 1st defendant, who was owing a mortgage debt and who also executed an agreement of sale in favour of said Jagannadha Raju partner of Krishna Chaitanya Corporation and also Rs.22,000/- received from the 1st defendant in installments which were acknowledged either by 3rd defendant or the 1st plaintiff in the diary maintained by the 1st defendant. Thus, the 3rd defendant before registration received Rs.2,58,000/-. On the date of settlement of bargain i.e., the date of execution of sale deed, the 3rd defendant received a sum of Rs.1,90,000/- which is the sale consideration mentioned in the sale deed as per the dictation of the 3rd defendant to avoid obtaining income tax clearance and also to avoid payment of capital gain tax. After registration, the 3rd defendant or the 1st plaintiff received a sum of Rs.27,000/- in installments which were also acknowledged by 3rd defendant or 1st plaintiff in the diary maintained by the 1st defendant. Thus, the entire sale consideration as agreed of Rs.4,75,000/- was paid and thus the sale transaction is fully supported by consideration. After receipt of the balance sale consideration, the 1st defendant requested the family of 3rd defendant to return the original sale deed and to vacate property and deliver the same to him, the 3rd defendant and his family gave evasive answers and failed to deliver the property and also sale deed, dated 28.03.1995. The plaintiffs and 3rd defendant issued registered notice falsely. Thereafter there was exchange of notices between them. The 1st defendant having waited for considerable time was contemplating to take legal action for possession of the schedule property and filed O.S.No.242 of 1999 on the file of Additional Senior Civil Judge, Rajahmundry in pursuance of the sale deed, dated 28.03.1995 and for delivery of sale deed.
10. The brief facts in the written statement filed by the 3rd defendant before the trial Court are as follows:
The defendants 1 and 2 made misrepresentations and played fraud and obtained a void sale deed, dated 28.03.1995 from him and the plaintiffs. No consideration was paid under the aforesaid document. The 1 st defendant filed O.S.No.242 of 1999 for mere possession of the property only. The 1st defendant has no title to or possession of the property. Therefore, the defendants 1 and 2 have no right to claim possession of the property. The sale deed is void document. The 1st defendant has not taken any steps to rectify the voidness of sale deed by completing the necessary formalities and getting a new, valid and good sale deed as required as per law and also as contemplated under the registered notice, dated 24.08.1995 got issued to the defendants 1 and 2. The 3rd defendant and his sons i.e., plaintiffs are entitled to the plaint schedule property.
11. On the basis of the above pleadings, the trial Court framed the following issues:
(1) Whether the plaintiffs are entitled to injunction as prayed for?
(2) To what relief?
12. As stated supra, on a memo filed by both parties before the trial Court, the trial Court clubbed both the suits and common evidence was recorded in O.S.No.242 of 1999. During the course of trial before the trial Court, on behalf of the plaintiffs, P.W.1 was examined and Exs.A.1 to A.20 were marked. On behalf of the defendants, D.W.1 to D.W.4 were examined and Exs.B.1 to Ex.B.24 were marked.
13. The learned I Additional Senior Civil Judge, Rajahmundry, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit in O.S.No.242 of 1999 with costs and dismissed the suit in O.S.No.339 of 2001 with costs vide common judgment, dated 21.04.2005. Felt aggrieved of the decree in O.S.No.242 of 1999, the defendants 1, 2, 4 and 5 filed the appeal suit in A.S.No.332 of 2005 and felt aggrieved of the dismissal of the suit in O.S.No.399 of 2001, the plaintiffs filed Transfer A.S.No.635 of 2008.
14. Heard Sri M.R.S. Srinivas, learned counsel for the appellants and heard Sri V.V. Ravi Prasad, learned counsel for the respondent.
15. Learned counsel for the appellants would contend that the decree and judgment of the trial Court is erroneous, contrary to law and the trial Court erroneously held that the appellants have to vacate the property and handover the same to the respondent which is against the evidence on record and probabilities of the case. He would further contend that the trial Court grossly erred in not noting the fundamental fact that the suit is filed for relief of recovery of possession of the property based on Ex.A.20 photostat copy of the sale deed without producing its original or at-least not taking steps to produce it under Section 64 of the Indian Evidence Act. He would further contend that the trial Court erroneously dismissed the suit filed by the appellants for seeking relief of prohibitory injunction in O.S.No.239 of 2001. He would further contend that the common judgment passed by the learned trial Judge may be set aside by allowing two appeals filed by the appellants.
16. Per contra, learned counsel for the respondent would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit filed by the respondent herein for recovery of possession and rightly dismissed the suit filed by the appellants herein for seeking relief of permanent injunction. He would further contend that both the appeals may be dismissed by confirming the common judgment passed by the learned trial Judge.
17. Having regard to the pleadings in the suit in O.S.No.242 of 1999 and finding recorded by the trial Court and in the light of the rival contentions and submissions made by either side before this Court, now the following points would arise for determination in A.S.No.332 of 2005:
1) Whether the cancellation of sale deed, dated 11.02.1997 in O.S.No.242 of 1999 is invalid and ineffective and not binding on the plaintiff?
2) Whether the plaintiff in O.S.No.242 of 1999 is entitled the relief of recovery of possession of the plaint schedule property and delivery of original sale deed as sought for?
Now the point for determination in Transfer A.S.No.635 of 2008 connected with O.S.No.339 of 2001 is as follows:
Whether the Plaintiffs in O.S.No.339 of 2001 on the file of I Additional Senior Civil Judge, Rajahmundry are entitled the relief of permanent injunction as prayed for?
18. Point No.1 in O.S.No.242 of 1999:
Whether the cancellation of sale deed, dated 11.02.1997 in O.S.No.242 of 1999 is invalid and ineffective and not binding on the plaintiff?
The case of the plaintiff in O.S.No.242 of 1999 is that he purchased the suit schedule property from the 1st defendant and others for an amount of Rs.4,75,000/- and at the time of settlement of sale transaction, a sum of Rs.25,000/- was paid by way of cheque on 28.12.1994, he paid Rs.1,61,000/- to M/s.Krishna Chaitany Corporation towards the amount due by the 1st defendant, again on 11.01.1995 he paid further sum of Rs.50,000/- and got the title deeds released, that the 1st defendant executed an agreement of sale, that the plaintiff further paid a sum of Rs.22,000/- on different dates either to the 1st defendant or his son 2nd defendant that on 23.12.1994, he purchased a stamp paper worth of Rs.100/- for preparing an agreement of sale, that on 31.03.1995 a sale deed was executed in his favour and on the said date he paid a sum of Rs.1,90,000/- to avoid capital gains by them. The plaintiff further pleaded that the 1st defendant executed a sale deed with his own handwriting and that previous agreement holder also joined in execution of sale deed and a sale deed was duly registered on 31.03.1995 and the plaintiff owning a sum of Rs.27,000/- towards balance sale consideration and the 1st defendant told him that he would have safe custody of the original registered document, dated 31.03.1995 and on payment of balance sale consideration he would deliver the same.
19. The contention of the defendants is that the defendants agreed to sell the plaint schedule property for a sum of Rs.5,25,000/-, the plaintiff on his own hand paid a sum of Rs.1,61,000/- on 28.12.1994 and on 11.01.1995 and got the sale deed released from their creditors, however, the plaintiff by playing fraud and misrepresentation brought into existence of the registered sale deed, dated 31.03.1995 with false recitals therein. The main contention of the defendants is that the defendants have issued a notice, dated 18.01.1997 to the plaintiff informing that they are going to cancel the sale deed for which no reply was given and that the sale deed was duly cancelled on 11.02.1997 before the Sub-Registrar and the sale deed relied upon by the plaintiff is no longer in force. The grounds urged for cancellation of sale deed is balance sale consideration was not paid and part of sale consideration was only paid.
20. It was contended by the defendants in the written statement itself that the plaintiff never paid Rs.1,90,000/- to the defendants at any point of time and as such on the date of sale deed, the plaintiff was owing only Rs.27,000/- is utterly false. The defendants also admitted in the written statement itself that they agreed to sell the plaint schedule property for a sum of Rs.5,25,000/- and the plaintiff on his own hand paid a sum of Rs.1,61,000/- on 28.12.1994 and on 11.01.1995 and got the sale deed released from the creditors of 1st defendant. The 1st defendant is examined as D.W.1. He admitted in his evidence that he has agreed to sell the plaint schedule property for a sum of Rs.5,25,000/- to the plaintiff which was originally bargained from Rs.8,00,000/- to Rs.5,25,000/-. He further deposed that the plaintiff by way of misrepresentation informed to the 1st defendant that the real sale consideration is Rs.5,25,000/- and the amounts paid till 28.03.1995 is Rs.2,58,000/- and the amount due is Rs.2,67,000/- are correctly mentioned in sale deed Ex.A.20 and obtained the signatures of himself and his children i.e., other defendants hurriedly at the verge of last moment of submission of sale deed in the Sub-Registrar Office. He further deposed in his evidence in chief examination itself by the time of obtaining signatures for registration, he is suffering from paralysis and his children are not well-versed. It seems that the execution of sale deed is admitted by the 1st defendant and his children i.e., other defendants.
21. The 1st defendant i.e., D.W.1 admitted in his evidence in cross examination itself that the plaint schedule property was agreed to sell to the plaintiff for a sale consideration of Rs.5,25,000/- and on the date of agreement, the plaintiff issued a cheque for Rs.25,000/- drawn on Union Bank of India to him and as on the date of settlement of bargaining in favour of the plaintiff, the plaint schedule property was under the mortgage with M/s.Krishna Chaitanya Corporation. He further admitted that on his behalf the plaintiff paid Rs.1,61,000/- to M/s. Krishna Chaitanya Finance Corporation on 28.12.1994 with regard to the mortgage debt due by him. He further admitted in his cross examination that the plaintiff also paid Rs.50,000/- to M/s. Krishna Chaitanya Finance Corporation on his behalf towards mortgage debt due by him. He further admitted that from December, 1994 onwards till 11.03.1995 either himself or his son from time to time received total amount of Rs.27,000/- in installments from the plaintiff and made endorsements in the diary maintained by the plaintiff.
22. The cancellation deed is marked as Ex.B.2 by the defendants. As seen from the recitals of Ex.B.2, one of the reasons for cancellation of Ex.B.2 is non-receipt of balance sale consideration. As seen from the material available on record, it is undisputed fact that the payment of advance and payments to M/s. Krishna Chaitanya Corporation by the plaintiff in a suit, O.S.No.242 of 1999, is admitted by the defendants. The execution of sale deed was also admitted. The advance amount of Rs.25,000/- which was paid by way of cheque was also admitted by the defendants. As stated supra, the payments made to M/s. Krishna Chaitanya Corporation on behalf of the 1st defendant in respect of mortgage debt was also admitted. Furthermore, the documentary evidence also supported the payments made to the said M/s.Krishna Chaitanya Corporation. It is also admitted by the defendants that an amount of Rs.22,000/- was paid prior to the registration of sale deed and after registration of sale deed, they admitted about the receipt of Rs.27,000/-. It is also admitted by the defendants that they attended before the Sub- Registrar for execution of registered sale deed under Ex.A.8/Ex.A.20. Furthermore, the signatures on all pages of the sale deed are also admitted by the defendants.
23. The law is well settled that a sale deed executed and registered before the Sub-Registrar cannot be cancelled on the ground that a part of sale consideration not having been paid. The only recourse available under the law is to sue for recovery of unpaid balance sale consideration. As stated supra, even assuming if really there was an unpaid balance sale consideration, the remedy available to the defendants is to file a suit for recovery of amount.
24. Section 54 of the Transfer of Property Act defend sale is a transfer of ownership in exchange for a price paid or promised or part paid or part promised. The plaintiff has pleaded in the plaint all the defendants, Jagannadhai Raju and plaintiff attended before the Sub-Registrar and presented a sale deed for registration on 31.03.1995, after the 1st defendant receiving an amount of Rs.1,90,000/- at the time of execution of sale deed. He further pleaded that by the time of payment of Rs.1,90,000/- the plaintiff is owning Rs.27,000/- towards balance sale consideration and to that effect plaintiff gave an undertaking in writing in favour of the 1st defendant he would pay the amount within six months and till the date of payment of balance amount, the defendants are permitted to continue in occupation of property as licensees. The plaintiff further pleaded that subsequent to the registration of sale deed either the 1st defendant or 2nd defendant i.e., son of 1st defendant collected the balance sale consideration of Rs.27,000/- from the plaintiff from time to time and made endorsements in the diary maintained by the plaintiff in token of receipt of the same and that on 05.06.1995, the plaintiff paid the entire sale consideration and requested the defendants to vacate the property, but the defendants remained silent.
25. As noticed supra, the payment of balance sale consideration, if any, is not a ground to set aside the sale deed
26. In a case of Vidyadhar vs. Manikrao and another1, the Apex Court held as follows:
"The definition indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all 1 (1999) 3 Supreme Court Cases 573 rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in that property or else it would not be a sale. The definition further says that the transfer of ownership has to be for a "price paid or promised or part-paid and part-promised". Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-promised" indicate that actual payment of whole of the price at the time of the execution of sale deed is not sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs. 100/-, the sale would be complete.
There is a catena of decisions of various High Courts in which it has been held that even if the whole of the price is not paid, the transaction of sale will take effect and the title would pass under that transaction. To cite only a few, in Gyatri Prasad v. Board of Revenue and Ors.13 (1973) Allahabad Law Journal 412, it was held that non-payment of a portion of the sale price would not effect validity of sale. It was observed that part payment of consideration by vendee itself proved the intention to pay the remaining amount of sale price. To the same effect is the decision of the Madhya Pradesh High Court in Sukaloo and Anr. v. Punau 14."
In a case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) 2, Section 54 of the Transfer of Property Act, 1882 provides as under:
"54. „Sale‟ defined.--„Sale‟ is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised." The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of 2 AIR 2020 Supreme Court 3310 ownership has to be made for a "price paid or promised or part paid and part promised". Price thus constitutes an essential ingredient of the transaction of sale.
In Vidyadhar v. Manikrao & Anr.14 this Court held that the words "price paid or promised or part paid and part promised" indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. The non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a "sale", 14 (1999) 3 SCC 573.
the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.
In view of the law laid down by this Court, even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed. We find that the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue.
In view of the ratio laid down in the aforesaid case laws and for the aforesaid reasons, the registered sale deed cannot be cancelled on the sole ground that a part of sale consideration was only paid under the document, the remedy open to the defendants is that they have to file a suit for recovery of amount for unpaid balance sale consideration.
27. Another ground urged for cancellation of registered sale deed is that the plaintiff obtained a sale deed by playing fraud and undue influence. Admittedly, vendors have not approached the civil Court for cancellation of sale deed. The vendors approached the Sub-Registrar for cancellation of registered sale deed and the vendors executed the registered cancellation deed before the Sub-Registrar by cancelling earlier registered sale deed. Admittedly, the defendants have not approached the civil Court for cancellation of sale deed. The law is well settled that the entire burden is on the person to prove who alleged fraud, coercion and undue influence.
D.W.2 or D.W.3 are not attestors to the alleged sale deed. D.W.2 admits in his evidence in cross examination itself that he was not present at the time of sale deed was scribed and he was also not an identifying witness before the Sub-Registrar and he came to know through 1st defendant that plaintiff misrepresented regarding the terms of sale deed and that the plaintiff has to pay Rs.2,67,000/-. His evidence shows that he has no personal knowledge about the alleged fraud and undue influence. D.W.3 another witness to the defendants has also admitted that he had acquaintance with D.W.2 since his childhood and his father also worked under him and he has no visiting terms with the plaintiff. D.W.4 is the 2nd defendant. Admittedly, D.W.2 and D.W.3 are not having any personal knowledge about the alleged coercion, fraud and undue influence alleged to have been played by the plaintiff.
28. Learned counsel for the appellants placed reliance of Amar Nath vs. Gian Chand and another3, wherein the Apex Court held as follows:
Section 35 of the Registration Act provides for the procedure on admission or denial of execution. The person, who has executed the document is to be asked whether he accepts the execution of the document. Section 35(2) reads as follows:3
(2022) 11 Supreme Court Cases 460 "35. (2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office."
(emphasis supplied) This provision gives authority to the Registering Authority to satisfy himself that the persons appearing before him are the persons they represent to be or for any other purpose contemplated under the Act. Towards this end, Registering Officer can examine anyone present in his Office.
The Apex Court further held as follows:
Section 35(3) reads as follows:
"35. (3)(a) If any person by whom the document purports to be executed denies its execution, or
(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or
(c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead:
Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII:
Provided further that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII."
Thus, the aforesaid provision deals with situations in which the Registering Authority refuses the registration. If the registering Authority is satisfied about the identity of the person and that he admits the execution of the document, it may not be apart of the Registrar‟s duty to enquire further. The registration by itself will not bring the curtains down on questions relating to title to the property. The very purport of the Law of Registration is to usher in and maintain a transparent system of maintaining documents relating to property rights. It puts the world on notice about certain transactions which are compulsorily registrable Section 17 interalia. The law also makes available facility of registering documents at the option of the person (Section 18).
The facts in the aforesaid case law are the document for registration is presented by power of attorney holder. In the case on hand, D.W.1 admitted in his evidence in cross examination itself that the plaint schedule property was sold to the plaintiff for a sale consideration of Rs.5,25,000/- and he also admitted that himself and other defendants appeared before the Sub- Registrar and presented the document for registration. The signatures of the defendants as executants in the sale deed are admitted by them. D.W.4 i.e., 2nd defendant also admitted they signed on the sale deed in the Sub-Registrar Office before the Sub-Registrar.
29. Learned counsel for appellants placed another reliance of the Full Bench of this Court in Yanala Malleswari vs. Ananthula Sayamma4. The above Full Bench judgment of this Court in Yanala Mallesswari's case is challenged before the Apex Court wherein the Apex Court overruled the above judgment. The Apex Court in the case of Thota Ganga Laxmi and another vs. Government of Andhra Pradesh and others5, held as follows:
In this connection, we may also refer to Rule 26(i)(k) relating to Andhra Pradesh under Section 69 of the Registration Act, which states:
"The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously 4 (2006) SCC OnLine AP 909 5 2012 (1) ALD 90 (SC) registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing natural consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale:
Provided that the registering officer shall dispense with the execution of cancellation deed by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registerable by any provision of law".
A reading of the above rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties. In this case, neither is there any declaration by a competent court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions.
In the case on hand, the defendants signed on the original registered sale deed before the Sub-Registrar, the same is not in dispute. The plaintiff and defendants are parties to the registered sale deed. Ex.B.2 was executed by the executants in the registered sale deed only. Original sale deed is not cancelled by the competent Civil Court. If the defendants want to obtain a registered cancellation deed from the Sub-Registrar that document has to be accompanied by a declaration showing the mutual consent or orders of a competent civil Court annulling the transaction contained in a previously registered deed of conveyance of sale. The suit schedule property is not a government property or assigned or endowment land. The schedule property is a private property. It is undisputed fact by both parties that originally the suit schedule property belongs to the defendants. The original title of the defendants in the suit schedule property is not at all in dispute.
30. Learned counsel for the appellants placed another reliance of Decan Paper Mills Company Limited vs. Regency Mahavir Properties and others6, the Apex Court held as follows:
In Suhrid Singh v. Randhir Singh32, in the context of the Court Fees Act, 1870 this Court held: (SCC p.114, para 7) "7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non- binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is 6 (2021) 4 Supreme Court Cases 786 invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act."
The Apex Court further held as follows:
The reasoning in the aforesaid judgment would again expose the incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non- executant, the non-executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem. All these anomalies only highlight the impossibility of holding that an action instituted under section 31 of the Specific Relief Act, 1963 is an action in rem.
Here, in the case on hand, the plaintiff and defendants are parties to the original sale deed. The defendants alone approached the Sub-Registrar for cancellation of sale deed. The plaintiff is not a party to the cancellation deed. The contention of the defendants is that the plaintiff played fraud, coercion and undue influence in obtaining the registered sale deed. In such a case, the defendants have to approach the civil Court for cancellation of registered sale deed and they are not supposed to approach the Sub-Registrar for cancellation of the earlier registered sale deed.
31. Learned counsel for the appellants placed reliance of Satya Pal Anand vs. State of Madhya Pradesh and others7, wherein the Apex Court held as follows:
7(2016) 10 Supreme Court Cases 767 "It is a well-established provision position that the remedy of writ under Article 226 of the Constitution of India is extraordinary and discretionary.
In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of the conduct of the appellant in pursuing multiple proceedings for the same relief and also because the appellant had an alternative and efficacious statutory remedy to which he has already resorted to. This view of the High Court has found favour with Dipak Misra, J. We respectfully agree with that view."
In the instant case, Rule 26(k)(i) relating to Andhra Pradesh under Section 69 of the Registration Act, 1908, which states that the registering officer shall ensure at the time of preparation for registration of cancellation deed or previously registered deed of conveyance on sale before him, that such cancellation deed is executed by all the executants and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil Court. Therefore, the facts and circumstances in the aforesaid case law are different to the instant case.
32. Learned counsel for the appellants placed reliance of Ediga Chandrasekhar Gowd and another vs. The State of Andhra Pradesh, rep. by the Principal Secretary, Revenue (Registration & Stamps) Department, Secretariat Buildings, Hyderabad and others8, wherein the composite High Court of Andhra Pradesh at Hyderabad held as follows:
The judgment in Yanala Malleshwari (2 supra) was however set aside by the Supreme Court of India in Thota Ganga Laxmi V. Government of Andhra Pradesh. The Supreme Court opined that there cannot be any unilateral cancellation and a party who wants to cancel a sale deed executed, has to necessarily file a civil suit for its cancellation or seek re- conveyance from the vendee, and executing a cancellation deed, or getting it registered, is unheard of in law. It also referred to Rule 26(i)(k) of the Rules and stated that the said Rule is consistent with the view of the Court that a cancellation deed can be registered only after a sale deed is cancelled by a competent Civil Court after notice to the concerned parties and in the absence of any declaration by a competent Court or notice to parties, the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions.
From the above decision of the Supreme Court, it is very clear that as regards the „sale deeds‟ which are „executed contracts‟, procedure under Rule 26(i)(k)(i) is mandatory and there cannot be any unilateral cancellation of registered sale deeds or registration of such cancellation deeds unless all the parties to the sale deed are also parties to the cancellation deed.
In my view, the logic which the Supreme Court applied to cancellation of sale deeds equally applies to agreements of sale/ power of attorneys.
Learned counsel for the appellants placed another reliance of Komanapalli Rajendar Singh vs. State of Andhra Pradesh, represented by Principal Secretary, Revenue Stamps Department (W.P.No.31077 of 2018).8
2017 SCC OnLine Hyd.543 The facts in the case cited are Writ Petition under Article 227 of the Constitution of India was filed by the party to declare the action of the 1 st respondent/Sub-Registrar registering the cancellation deed is null and void. The said writ petition was dismissed by the composite High Court of Andhra Pradesh at Hyderabad by giving liberty to the writ petitioner to approach the Civil Court for appropriate relief. In the aforesaid case law also the composite High Court of Andhra Pradesh at Hyderabad held that non-payment of sale consideration is not a ground for cancellation of sale deed.
33. Learned counsel for the appellants placed a reliance of State of Punjab and others vs. Gurdev Singh9 .
The facts in the aforesaid case law is relates to the order of dismissal from the service of an employee which was ultra virus, whereas the facts in the present case are different to the aforesaid case law.
34. Learned counsel for the appellants placed another reliance of The Lord Bishop vs. The Land Tribunal, Bantwal (W.P.No.1762 of 2005 (LR).
The facts in the aforesaid case law are the writ petition has been filed under Article 226 and 227 of the Constitution of India praying the Court to quash the order passed by the Land Tribunal, Mangalore.
35. Learned counsel for the appellants placed another reliance of Smt. Vatumalli Lakshmi Prasanna vs. The State of Telangana, rep. by its Secretary, Revenue (Registration & Stamps) Department, Secretariat, Hyderabad and others10 2017 SCC OnLine Hyd.331 The facts in the aforesaid case law are writ petitioners came to know that the documents were being entertained for registration on the ground that deed of cancellation of sale made in the year 2007 was presented by the 9 (1991) 4 Supreme Court Cases 1 10 2017 SCC OnLine Hyd 31 Tahsildar in Revenue Department and the same was registered on 16.08.2017. The registration of such document is under challenge in the writ petition. The facts in the present case are admittedly the property is a private property but not belongs to the Government and the appellants are original owners of the schedule property and they have executed a registered sale deed in favour of plaintiff.
36. Learned counsel for the appellants placed reliance of Seera Simhachalam and another (defts.) vs. Pediredla Simhachalam and others11.
The facts in the aforesaid case law are a concurrent finding was given by both the Courts below that a sale deed under Ex.B.1 was nominal and the plaintiff continued to remain in possession and enjoyment of the property throughout, whereas the facts and circumstances in the present case are different.
37. Learned counsel for the appellants placed a reliance of Shaik Subhani vs. State of Andhra Pradesh12.
The facts in the present case are the plaintiff relied on a registration extract of sale deed which is not at all undisputed by the appellants. The execution of original registered sale deed is not at all disputed by the vendors. If the execution of sale deed is disputed by the vendors, then the plaintiff has to take necessary steps as required under law. Therefore, the facts in the aforesaid case are different to the instant case.
38. Learned counsel for appellants would contend that in view of the ratio laid down in Amar Nath's case (3 supra), the mere registration could not put the cuts and down and passage of consideration has to be established. In Amar Nath's case (3 supra), the power of attorney executed by a principal was 11 2000 (2) ALT 479 12 1999 SCC OnLine AP 413 cancelled by way of cancellation deed by a principal. The counsel for appellants would contend Section 92 proviso (1) of Indian Evidence Act would enable the appellants to contest the validity of the sale deed for want of consideration. Here the sale deed in question was not challenged by the appellants in a court of law. The appellants have not approached the civil Court for cancellation of sale deed on the ground that the sale deed was not supported by consideration.
39. Learned counsel for the appellants would contend that in view of the Full Bench judgment of this Court in Yanala Malleswari's case (4 supra), the cancellation of sale deed need to be challenged. I am unable to accept the contention of the learned counsel for the appellants because the Full Bench of this Court in Yanala Malleswari's case (4 supra) was overruled by the Apex Court in Thota Ganga Laxmi's case (5 supra). In Thota Ganga Laxmi's case (5 supra) the Apex Court held that "both the cancellation deed as well as registration thereof, were wholly void, non est and meaningless transactions and those transactions can simply ignore"
40. Learned counsel for the appellants placed reliance of Full Bench judgment of the Apex Court in Satya Pal Anand's case (8 supra) and contended that void document need to be challenged.
Section 31 of the Specific Relief Act, says;
31. When cancellation may be ordered.--
(1)Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2)If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
Here the defendants executed a sale deed in question, dated 28.03.1995 and subsequently it was registered on 31.03.1995 and thereafter it was cancelled on 11.02.1997 by the executants. Section 31 of the Specific Relief Act itself says that the person who intends to cancel the sale deed which is void or voidable, he needs to approach the civil court and the civil court may, in its discretion so adjudicate it and order it to be delivered up and cancelled. In Satya Pal Anand's case (8 supra), Full Bench of Apex Court held as follows:
The role of the Sub-Registrar (Registration) stands discharged, once the document is registered (see Raja Mohammad Amir Ahmad Khan (supra). Section 17 of the Act of 1908 deals with documents which require compulsory registration. Extinguishment Deed is one such document referred to in Section 17(1)(b). Section 18 of the same Act deals with documents, registration whereof is optional. Section 20 of the Act deals with documents containing interlineations, blanks, erasures or alterations. Section 21 provides for description of property and maps or plans and Section 22 deals with the description of houses and land by reference to Government maps and surveys. There is no express provision in the Act of 1908 which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. In absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of registration offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered.
The Apex Court further held as follows:
No provision in the State of Madhya Pradesh enactment or the Rules framed under Section 69 of the Act of 1908 has been brought to our notice which is similar to the provision in Rule 26(k)(i) of the Andhra Pradesh Registration Rules framed in exercise of power under Section 69 of the Act of 1908. That being a procedural matter must be expressly provided in the Act or the Rules applicable to the concerned State. In absence of such an express provision, the registration of Extinguishment Deed in question cannot be labelled as fraudulent or nullity in law. As aforesaid, there is nothing in Section 34 of the Act of 1908 which obligates appearance of the other party at the time of presentation of Extinguishment Deed for registration, so as to declare that such registration of document to be null and void. The error of the Registering Officer, if any, must be regarded as error of procedure. Section 87 of the Act of 1908 postulates that nothing done in good faith by the Registering Officer pursuant to the Act, shall be deemed invalid merely by reason of any defect in the procedure. In the present case, the subject Extinguishment Deed was presented by the person duly authorized by the Society and was registered by the Registering Officer. Once the document is registered, it is not open to any Authority, under the Act of 1908 to cancel the registration. The remedy of appeal provided under the Act of 1908, in Part XII, in particular Section 72, is limited to the inaction or refusal by the Registering Officer to register a document. The power conferred on the Registrar by virtue of Section 68 cannot be invoked to cancel the registration of documents already registered.
In Thota Ganga Laxmi's case (5 supra), the Apex Court held as follows:
"In our opinion, there was no need for the appellants to approach the civil court as the said cancellation deed dated 04.08.2005 as well as registration of the same was wholly void and non est and can be ignored altogether. For illustration, if A transfers a piece of land to B by a registered sale deed, then, if it is not disputed that A had the title to the land, that title passes to B on the registration of the sale deed (retrospectively) from the date of the execution of the same) and B then becomes the owner of the land. If A wants to subsequently get that sale deed cancelled, he has to file a civil suit for cancellation or else he can request B to sell the land to A but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law."
The Apex Court further held as follows:
"In this connection, we may also refer to Rule 26(k)(i) relating to Andhra Pradesh under Section 69 of the Registration Act, 1908, which states:
"(i) The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of conveyance on sale before him that such cancellation deeds are executed by all the executants and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing natural consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale:
Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a government officer competent to execute government orders declaring the properties contained in the previously registered conveyance on sale to be government or assigned or endowment lands or properties not registerable by any prevision of law."
A reading of the above Rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent court that the cancellation deed can be registered and that too after notice to the parties concerned. In this case, neither is there any declaration by a competent court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions."
In Thota Ganga Laxmi's case (5 supra), the registered sale deed is dated 21.06.1983, cancellation deed by the Sub-Registrar is dated 04.08.2005 i.e., cancellation of sale was done prior to 29.11.2006 i.e., prior to commencement of Rule 26k.
41. The law is well settled by Full Bench of Apex Court in a case of Veena Singh (deceased) through LRs vs. District Registrar and another 13 held as follows:
"A document, once it is registered can be cancelled or set aside only by a civil court of competent jurisdiction. Upon the registration of sale deed on 16.04.2012 the registration authorities or rendered infructous and would have no power to cancel the registration even on the ground of fraud or other irregularities."
Full Bench of Apex Court further held as follows;
"The role of Sub-Registrar stood discharged once the document had been registered, since there is no express provision in the Registration Act which empowers the Sub-Registrar to recall the registration."
The Apex Court further held as follows:
"The role of Sub-Registrar stands discharged, once the document is registered."
There is no express provision in 1908 Act, which empowers the Sub- Registrar to recall such registration."
42. Section 17 of 1908 deals with documents which require compulsory registration. There is no express provision in 1908 Act, which empowers to recall such registration.
132022 LiveLaw (SC) 462
43. In view of the aforesaid reasons, there is no substance in the contention of the appellants that cancellation of sale deed need to be challenged by the plaintiff in a civil Court. The reason is that there is no need for the plaintiff i.e., purchaser to approach the civil court, as the said cancellation deed, dated 11.02.1997 as well as registration of the same was void and non est and can be ignored altogether.
44. It is not in dispute that the appellants are having title in the suit schedule property. The execution of registered sale deed, dated 28.03.1995 is not at all disputed by the appellants, therefore, automatically the title follows to the plaintiff by virtue of registered sale deed registered on 31.03.1995, then the plaintiff become the owner of the property. If the appellants want to cancel the sale deed on the ground of coercion, fraud and undue influence, they have to approach the civil court for cancellation of the sale deed, but not before the Sub-Registrar for cancellation.
45. Learned counsel for the appellants would contend that a notice was given to the plaintiff by the appellants before the cancellation of sale deed, the plaintiff has not responded the said notice soon after receipt of the notice. As stated supra, for cancellation of sale deed the party has to approach the civil Court instead of approaching Sub-Registrar. If Sub-Registrar wants to entertain a cancellation, it has to be accompanied by a declaration showing mutual consent of parties or orders of a competent civil court. The ratio laid down in Thota Ganga Laxmi's case (5 supra) is the sale deed has to be cancelled by a competent civil Court and that too after notice to the parties to the concerned. Learned counsel for the appellants would draw the attention of this Court that a notice has been issued by the Sub-Registrar before cancellation of sale deed. Admittedly, there is no documentary evidence on record to show that the Sub-Registrar issued a notice to both parties and conducted enquiry before admitting the cancellation of sale deed. There is no such endorsement on Ex.B.2 cancellation deed. In my view before entertaining cancellation deed, the Sub-Registrar has no business to issue notice to the purchasers under a registered sale deed which was registered earlier unless there is an order of competent civil court for cancelling the earlier registered sale deed. Admittedly, the Sub-Registrar has no authority to decide alleged fraud and undue influence as pleaded by the appellants. The civil Court alone has to decide the said alleged fraud and undue influence. In view of the aforesaid reasons, there is no force in the contention of the appellants that cancellation deed need to be challenged by the plaintiff, because cancellation of sale deed by the Sub- Registrar without orders of the civil Court is unheard of law and meaningless transactions. Admittedly, there is no consent in between vendors and vendee in a registered sale deed for cancellation of the earlier sale deed. Vendors themselves executed a cancellation deed in the absence of the vendee. Therefore, the said cancellation deed is unilateral cancellation only, though the appellants have issued a notice to the plaintiff for cancellation of the earlier registered sale deed.
The learned counsel for Appellants would contend that the plaintiff rendered apology in a criminal proceeding which was compromised between both the parties. It does not mean that plaintiff admitted he got forged the signatures of appellants in a registered sale deed. Moreover, the proceedings and orders of a criminal Court are not binding on Civil Court.
46. As stated supra, the law is well settled that once a sale deed has been registered, it is no more open to the Sub-Registrar to cancel the earlier registered sale deed on the ground that there were some irregularities in registering the earlier sale deed. The remedy open to the party is only they have to approach the civil court under Section 31 of the Specific Relief Act. Mere issuance of notices either by vendors or Sub-Registrar prior to entertaining cancellation deed would not attach any sanctity because the law is very clear that the cancellation deed has to be executed by both vendors and vendee accompanied by a declaration showing mutual consent or a decree from a competent civil Court.
47. For the aforesaid reasons, I am of the considered view that the cancellation of sale deed under Ex.B.2 is invalid and inoperative.
Accordingly, point No.1 is answered against the appellants.
48. Point No.2:
Whether the plaintiff in O.S.No.242 of 1999 is entitled the relief of recovery of possession of schedule property and delivery of the original sale deed, dated 28.03.1995 as prayed for?
Learned counsel for the appellants would contend that the plaintiff in O.S.No.242 of 1999 is seeking relief of recovery of possession without seeking the relief of declaration of title, therefore, the suit for recovery of possession is not maintainable. He would further contend that there is a cloud on the title of the plaintiff.
49. Learned counsel for the appellants placed a reliance of Union of India and others vs. Vasavi Cooperative Housing Society Limited and others14, wherein the Apex Court held as follows:
"In a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff‟s own title, plaintiff must be non-suited."14
(2014) 2 Supreme Court Cases 269 Learned counsel for the appellants placed another reliance of Moran Mar Basselios Catholicos vs. Thukalan Paulo Avira & others15, wherein the Apex Court held as follows:
"It is perfectly clear that in a suit of this description if the plaintiffs are to succeed they must do so on the strength of their own title."
Learned counsel for appellants placed another reliance of Sajana Granites, Madras and another vs. Manduva Srinivasa Rao and others 16, wherein the Composite High Court of Andhra Pradesh at Hyderabad, held as follows:
"The Supreme Court in M.P. Athanastus case (supra), M.M. Catholices v. Polo Avira case (supra) and this Court in C. Audilakshmamma case (supra) held that plaintiff in a suit for declaration of title, and for recovery of possession, can succeed only on the strength of his own title and that it is not obligatory on the defendants to plead and prove the possible defects in the plaintiffs title and so if the plaintiff fails to establish his title, even if the defendant fails to establish his own title, plaintiff must be non suited. In this case since appellants are seeking declaration of their title to the suit property they have to establish their title; and cannot expect relief on the basis of the weakness of the case of respondents 1 and 2, or on the basis that the evidence adduced by respondents 1 and 2 does not establish their title to the suit property."
Learned counsel for appellants placed another reliance of K. Venkatasubba Reddy vs. Bairagi Ramaiah (died) by L.Rs.17, wherein the Composite High Court of Andhra Pradesh at Hyderabad, held as follows:
"A Division Bench of this Court also in Chakicherla Adilakshmamma v. Almakuru Rama Rao and Ors,- (3) AIR 1973 AP 149. Relying on the judgment of the Supreme Court in AIR 1954 SC 526 (cited supra) held 15 1958 SCC OnLine Supreme Court 136 16 2001 SCC OnLine AP 666 17 1999 (1) APLJ 416 (HC) that "in a suit for ejectment, the plaintiff is liable to be nonsuited, if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not."
The law laid down by the Supreme Court and also by the Division Bench of this Court in the ejectment suits is also applicable to the suits for declaration of title. Thus, the plaintiff must succeed by establishing his own title, by adducing satisfactory evidence and he cannot succeed on the weakness of the defendant's case.
Learned counsel for the appellants placed another reliance of Baba Kartar Singh Bedi vs. Dayal Das and others18.
The ratio laid down in the aforesaid case laws are not at all applicable to the present case on hand. There cannot any dispute with the ratio laid down in all the aforesaid case laws. In the case on hand, admittedly, there is no cloud on the title of either vendors of the plaintiff or plaintiff. As per the own case of both the parties, the defendants are original owners of the plaint schedule property and they executed a registered sale deed under original of Ex.A.8/Ex.A.20. The title to the plaint schedule property is passed from the defendants to the plaintiff under a registered sale deed. As stated supra, the cancellation of registered sale deed under Ex.B.2 is null and void and not binding on the plaintiff. As long as the registered sale deed is not legally cancelled, the plaintiff has no need to seek relief for declaration of title.
50. Learned counsel for the appellants placed reliance of Brahma Nand Puri vs. Neki Puri Since deceased represented by Mathra Puri and another19, the Apex Court held as follows:
"The plaintiff‟s suit being one for ejnectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in 18 1939 SCC OnLine PC 37 19 AIR 1965 SC 1506 possession has no title to the property, assuming learned counsel is right in that submission".
Learned counsel for the appellants placed reliance of Jagdish Narain vs. Nawab Sai Ahmed Khan20, wherein the Privy Council held as follows:
"In a suit in ejectment the plaintiffs can succeed only on the strength of their own title, and there is no obligation upon the defendants to plead possible defects in the plaintiffs‟ title which might manifest themselves when the title is disclosed. It is sufficient that in the written statement the defendants deny the plaintiffs‟ title, and under this plea, they can avail themselves of any defect which such title discloses."
Learned counsel for the appellants placed reliance of A. Ramloo and others vs. G. Sreeramachandra Murthy and others 21 , wherein the composite High Court of Andhra Pradesh at Hyderabad held as follows:
In a ruling reported in Moran Mar Basselios Catheolicos and another v. Most Rev. Mar Poulose Athanasius and others, AIR 1954 SC 526, it has been held by their Lordships as under:
"That the plaintiff in ejectment suit must succeed on the strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere destruction of the defendants title, in the absence of establishment of his own title carries the plaintiff nowhere."
In the case on hand, the vendors of the plaintiff i.e., defendants executed a registered sale deed in favour of the plaintiff. The signatures on all the pages of registered sale deed were admitted by the defendants. It is also admitted by the defendants that the plaintiff paid Rs.22,000/- prior to registration of sale deed. The defendants also admitted about the payment of advance of Rs.25,000/- by way of cheque. The defendants further admitted 20 1945 SCC OnLine PC 56 21 1999 SCC OnLine AP 80 about all the payments made to M/s.Krishna Chaitanya Corporation and about receipt of Rs.27,000/- subsequent to execution of registered sale deed.
51. The recitals in the sale deed with regard to receipt of Rs.1,90,000/- is also admitted by the defendants. The defendants also admitted their presence before the Sub-Registrar and they admitted that they made signatures on the sale deed before Sub-Registrar in Sub-Registrar Office.
52. Learned counsel for the appellants would contend that various admissions made by the plaintiff in his deposition established the fact that execution of sale deed in dispute with free will and consent has not been established. But the defendants cannot be taken advantage by pointing out the minor discrepancies in the cross examination of P.W.1 in his evidence. At the same time, the admissions of the defendants in their evidence in cross examination cannot be thrown out. Admittedly, the title to the plaint schedule property is passed from vendors to the vendee i.e., plaintiff. As long as the registered sale deed is not legally canceled, the plaintiff has no need to seek the relief of declaration of title. The recitals in the plaint are by the date of payment of Rs.1,90,000/-, the plaintiff was owing an amount of Rs.27,000/- towards balance sale consideration and to that effect plaintiff gave an undertaking in writing in favour of 1st defendant that plaintiff would pay the amount within six months and till the date of payment of balance amount, the defendants are permitted to continue in occupation of the property as licencees. The plaintiff pleaded that the 1st defendant at the time of registration informed the plaintiff that he would keep the original sale deed with him as security for payment of balance sale consideration of Rs.27,000/- and for the said course, the plaintiff agreed and delivered the same to the 1 st defendant after obtaining from Sub-Registrar Office and thus the 1st defendant came into custody of the original registered sale deed. Subsequent to the registration of sale deed either the 1st defendant or the 2nd defendant, his son collected the balance sale consideration of Rs.27,000/- and that by 05.06.1995 the plaintiff paid the entire sale consideration and requested the defendants to vacate and deliver the plaint schedule property, the 1st defendant replied that they would vacate the schedule property in a short time after securing some other house on rent. The plaintiff further pleaded believing the said representation, the plaintiff waited till 07.06.1995 and approached the 1st defendant and asked him to vacate the property and the 1st defendant also signed in the diary maintained by the plaintiff, the 1st defendant informed the plaintiff that he would deliver the keys of the house immediately after vacating the property, but the 1st defendant and his family members failed to do so.
53. Ex.A.5 notice, dated 06.05.1995 issued by Rajahmundry Municipal Corporation goes to show that the name of the plaintiff is mutated in the municipal records in the place of defendants. It seems that by virtue of the original registered sale deed under original of Ex.A.8/Ex.A.20, the name of the plaintiff is entered into municipal records. Ex.A.6 and Ex.A.7 goes to show that the plaintiff also paid municipal tax. Ex.A.13 paper publication, dated 10.10.1997 given by the plaintiff through his counsel shows that there was an exchange of notices in between plaintiff and defendants and the defendants intend to alienate the schedule property to third parties. It shows that a paper publication given to the general public by informing about the registered sale deed obtained by the plaintiff from the defendants. The defendants have gave reply by publishing in the same paper under Ex.A.14, dated 04.11.1997 by informing about the cancellation of registered sale deed.
54. The plaintiff relied on Ex.B.1 notice, dated 14.09.1995 got issued by him through his counsel. In Ex.B.1 the plaintiff demanded the 1st defendant to vacate suit schedule property and deliver the possession. Ex.B.1 is dated 14.09.1995 and the registered sale deed is dated 31.03.1995. The plaintiff also paid municipal tax for the year 1995-96. The appellants relied on the bunch of municipal tax receipts and contended that they paid municipal tax to Rajahmundry Municipality. The contention of the plaintiff is based on the cancellation deed Ex.B.2, dated 11.02.1997, the defendants paid municipal tax to Rajahmundry Municipality. The plaintiff herein filed a suit for recovery of possession in the year 1999. The sale deed of the plaintiff is not legally cancelled. As noticed supra, Ex.B.2 is non est in the eye of law and the same is invalid document and the same can be simply ignored and there is no need to sought for cancellation of Ex.B.2 registered cancellation deed.
55. For the aforesaid reasons, the plaintiff is having valid title under original of registered sale deed in the plaint schedule property and the said registered sale deed is not legally cancelled. Unless and until the said registered sale deed is legally cancelled, the plaintiff is entitled for recovery of possession of the plaint schedule property.
56. For the aforesaid reasons, the plaintiff is entitled for recovery of possession of the plaint schedule property.
57. Learned counsel for the appellants would contend that entrustment of original of Ex.A.20 by the plaintiff is not yet proved. In the plaint itself it was specifically reiterated that 1st defendant at the time of registration informed the plaintiff that he would keep the original sale deed with him as security for payment of balance sale consideration of Rs.27,000/- and that the said course, the plaintiff agreed and delivered the same to the 1st defendant after obtaining from Sub-Registrar Office and thus, the 1st defendant came into the custody of original of registered sale deed.
58. In para 13 of the plaint it was specifically recited since the original sale deed is in the custody of the defendants and the same was not returned in spite of receipt of entire sale consideration and that the plaintiff is also obliged to seek return of the sale deed, dated 28.03.1995.
59. It was contended by the appellants that the plaintiff admitted in his evidence in cross examination he received the document from the registration authority. As seen from the evidence of the plaintiff i.e., P.W.1 in his evidence in further chief examination, dated 18.02.2002 he deposed that the original sale deed in respect of the plaint schedule property remained with the 1st defendant and he obtained registration extract of sale deed. He further deposed that at about 10 or 15 days after the registration of the sale deed, himself and the 1st defendant went to the Sub-Registrar Office at there he took back the sale deed and the 1st defendant had taken the sale deed on the pretest that he would retain it till the balance sale consideration was paid to him. Despite his request, the 1st defendant did not vacate the suit building even after he paid the remaining sale consideration. His evidence goes to show that the original registered sale deed was entrusted to the 1 st defendant, since the 1st defendant had taken back the sale deed by stating that he would retain it till the payment of balance sale consideration by the plaintiff to him. It is well settled that stray sentences in the deposition of the witnesses cannot be taken into consideration. To arrive conclusion, on the entire deposition of the witness has to be looked into. Moreover, there was a clear admission by the 1st defendant i.e., D.W.1 in his evidence in cross examination that as on the date of giving the original of Ex.A.20 to him by the plaintiff in June, 1995, the plaintiff has to discharge Rs.2,40,000/- to him. Therefore, the said admission of D.W.1 cannot be ignored simply. Here it is relevant to say the date of registration of the sale deed is dated 31.03.1995. The own witness of the defendants i.e., D.W.2 deposed in his evidence in chief examination affidavit itself that they advised the plaintiff to give original sale deed to the 1 st defendant until the total amount paid to him and in his presence he gave the original sale deed to the 1st defendant with a request that he will come and take back the same after getting bank loan and payment of balance sale consideration. D.W.3 in his evidence in chief examination itself stated that the plaintiff has surrendered the original sale deed to the 1st defendant and on surrendering the original sale deed, D.W.1 verified it and found that the real terms agreed in between the plaintiff and 1st defendant with regard to the total sale consideration of Rs.5,25,000/- and the actual sale consideration and the balance sale consideration to be paid was not incorporated and the signatures on the said document was also forged. The admissions of D.W.2 and D.W.3 in their evidence categorically goes to show that after returning the original sale deed by the plaintiff, the 1st defendant noticed the alleged mischief act alleged to have been committed by the plaintiff and alleged forgery said to have been committed by the plaintiff in registered sale deed. In such a case, no prudent man will return the original sale deed to the plaintiff. If it was a forged document, the defendants have been taken necessary legal steps against the plaintiff by producing the original document before the concerned authority. Furthermore, 2nd defendant i.e., D.W.4 also admitted in his evidence in cross examination itself that the plaintiff came to his house after they reported the matter to D.W.2, then D.W.2 asked the plaintiff to bring the sale deed by asking the plaintiff if the plaintiff failed to pay the balance sale consideration and kept the original document with the 1st defendant until the balance amount has been paid, then the plaintiff went and brought the original of Ex.A.20 and given to his father and on perusal of Ex.A.20 by his father, his father came to know the alleged fraudulent act committed by the plaintiff. As stated supra, no prudent man will return back the original sale deed to the vendee i.e., plaintiff, if it was a forged document. Certainly, the 1st defendant will take necessary legal steps against the plaintiff.
60. On conjoint reading of the evidence of D.W.1 to D.W.4 and P.W.1, it is quite clear that there was an understanding between both the parties that till such time the balance sale consideration was paid by the plaintiff, the original sale deed has to be retained with the 1st defendant. D.W.2 and D.W.3 admitted in their evidence in cross examination that the plaintiff returned the original sale deed to them and they in turn handed over the same to the 1 st defendant. They further stated they have returned back the original sale deed to the plaintiff but they have not obtained any acknowledgement from the plaintiff. Therefore, it is clear that the entrustment of original sale deed to the defendants itself proved by the plaintiff. There is no evidence that the defendants have returned back the original sale deed to the plaintiff. It was argued by the leaned counsel for the appellants that the plaintiff tendered apology in criminal proceedings which was compromised in between both the parties. It does not mean that the plaintiff admitted that he got forged the signatures of the appellants in a registered sale deed. Moreover, the proceedings or orders of a criminal case are not binding on a civil Court. For the above said reasons, I do not find any illegality in ordering recovery of possession of plaint schedule property and delivery of original sale deed by the Trial Court.
61. In view of the aforesaid reasons, point No.2 is answered against the appellants.
62. Point in Transfer A.S.No.635 of 2008 connected with O.S.No.339 of 2001:
Whether the plaintiff in O.S.No.339 of 2001, on the file of I Additional Senior Civil Judge, Rajahmundry is entitled the relief of permanent injunction as prayed for?
Aggrieved against the judgment in O.S.No.339 of 2001, the plaintiffs filed the instant appeal vide Transfer A.S.No.635 of 2008. It is not in dispute by both sides that the plaintiffs are in possession of the plaint schedule property. The contention of the 1st defendant in O.S.No.339 of 2001 is that all the plaintiffs and one Jagannadha Raju attended the office of Sub-Registrar and presented the sale deed for registration on 31.03.1995 and the plaintiffs received the amount of Rs.1,90,000/- at the time of execution of sale deed, by the time of payment of Rs.1,90,000/-, the 1st defendant has to pay an amount of Rs.27,000/- towards balance sale consideration and to that effect, the 1st defendant gave an undertaking in writing in favour of the 1st plaintiff and that he would pay the amount within six months and till the payment of balance sale consideration amount, the plaintiffs are permitted to continue in occupation of the property as licencees and subsequent to the registration of the sale deed, though 1st defendant paid the remaining balance sale consideration, the plaintiffs did not deliver the possession of the plaint schedule property.
63. The 1st plaintiff would contend that after receipt of balance sale consideration in the year 1997, the plaintiffs herein executed a cancellation deed before the Sub-Registrar by cancelling the earlier registered sale deed. As stated supra, the cancellation of sale deed said to have been executed by the plaintiffs is nothing but unilateral cancellation and therefore, the said unilateral cancellation is not yet binding on the 1st defendant since the plaintiffs have not approached the civil Court for cancellation of the same.
64. The plaintiffs executed a registered sale deed in favour of 1st defendant and the said sale deed is not yet legally cancelled, therefore, the 1 st defendant is having valid title in the plaint schedule property by virtue of the registered sale deed. It is the admitted case of plaintiffs in O.S.No.339 of 2001 that they are the original owners of plaint schedule property and they have executed a registered sale deed on 31.03.1995 in favour of the 1st defendant in respect of plaint schedule property. Therefore, the title to the plaint schedule property was transferred to 1st defendant under a registered sale deed. Therefore, the 1st defendant is original owner of plaint schedule property. The law is well settled that no Court shall grant a relief of injunction against the true owner of the plaint schedule property. The vendors after execution of the registered sale deed in favour of the vendee, cannot maintain suit for permanent injunction against the vendee/ true owner until that registered sale deed is legally cancelled. Admittedly, the plaintiffs are in possession of the plaint schedule property, the 1st defendant filed a suit for recovery of possession of the plaint schedule property vide O.S.No.242 of 1999 and recovery of possession is also ordered in that suit. As long as the original sale deed is not yet legally cancelled, the plaintiffs are not entitled the relief of permanent injunction as sought for.
65. In view of my above findings, the learned trial Judge rightly dismissed the suit in O.S.No.339 of 2001 filed by the appellants.
Accordingly, the point is answered against the appellants.
66. I.A.No.1 of 2024 in A.S.No.332 of 2005:
This application is filed under Order XLI Rule 27 of the Code of Civil Procedure by the petitioners/ appellants with a prayer to receive the certified copies of judgment and depositions in C.C.No.78 of 2015, on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class at Kovvur, as additional evidence.
67. The petitioners, more particularly, the 2nd petitioner contended that one Sunil Prasad filed O.S.No.203 of 2002, on the file of Senior Civil Judge, Kovvur, against his deceased father, for recovery of money based on a fraudulent mortgage transaction and also obtained a decree against his deceased father as he could not contest the matter because of his ill-health, that admittedly his father is a paralytic patient and he was bedridden for some time, and that after recovery from his ill-health, he filed an application to set aside the exparte decree obtained by the said Sunil Prasad in O.S.No.203 of 2002 and the decree-holder in O.S.No.203 of 2002 got attached the amount deposited by the respondent in the present appeal. He further contended that the respondent herein filed C.C.No.78 of 2015 on the file of Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Kovvur, alleging the collusion between their deceased father and themselves on one side and decree holder in O.S.No.203 of 2002 on the other side, that the decree holder in O.S.No.203 of 2002 was given up by the respondent in the said C.C.No.78 of 2015 and prosecuted the matter against them and his deceased father and in the said C.C.No.78 of 2015 they were acquitted holding that they are not found guilty for the offence alleged against them and that the matter was not further prosecuted by the respondent herein. He further contended that there are subsequent events which leads to irresistible conclusion that the respondent herein planted the decree holder in O.S.No.203 of 2002, got the amount attached and sent for to the said suit.
68. The respondent contended that he had deposited a sum of Rs.2,40,000/- on 07.12.2000 as per the direction of the learned trial Court vide I.A.No.1421 of 1999, that in the year 2002, one Sunil Prasad filed a suit for recovery of money based on a promissory note against the deceased father of the petitioners and the same was decreed and the decree in O.S.No.203 of 2002 was put for execution and the amount deposited in O.S.No.242 of 1999 was attached in execution and was later withdrawn by the Decree holder with a notice to the deceased father of the petitioners as part satisfaction. The respondent contended that the petitioners herein fully aware of the fact that the amount deposited by the 1st respondent herein was attached and withdrawn by the decree-holder in O.S.No.203 of 2002 in exaction proceedings.
69. The present application is filed under Order XLI, Rule 27 of the Code of Civil Procedure. Order XLI, Rule 27 of the Code of Civil Procedure reads as follows:
27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 2[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
The general principle is that the Appellate Court should not travel outside the record of the trial Court and cannot take any evidence in appeal. However, as an exception under Order XLI, Rule 27 of the Code of Civil Procedure, enable the Appellate Court to take additional evidence in exceptional circumstances only. The proviso under Order XLI Rule 27 of the Code of Civil Procedure permits the party to produce additional evidence before the Appellate Court provided it has to come under the ambit of Order XLI Rule 27 of the Code of Civil Procedure.
70. The documents to be received as additional evidence in this application is certified copy of the judgment in C.C.No.78 of 2015 on the file of Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Kovvur. The contention of the petitioners/appellants is that they were acquitted in a criminal case filed by the respondent. The law is well settled that the proceedings and orders of a criminal court are not binding on a civil Court. The subject matter of the present suit is recovery of possession as sought by the 1st respondent which is a title suit. As noticed supra, the judgment of a criminal court is not at all binding on a civil Court.
71. Another document said to be received as additional evidence is certified copy of depositions of respondent and his counsel in C.C.No.78 of 2015 on the file of Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Kovvur. P.W.1-B.V.S. Murthy is a 1st respondent in the present appeal proceedings and he was examined as P.W.1 in C.C.No.78 of 2015, the counsel for P.W.1 was examined as P.W.2 in C.C.No.78 of 2015. The counsel for 1st respondent by name G.S.S. Murali Mohan, Advocate is not a witness in the present suit proceedings.
72. The law is well settled that the manner of recording evidence and the parameters for adducing evidence is governed by the provisions of Indian Evidence Act. Section 33 of the Indian Evidence Act states that the evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, would be relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which he states, when the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without any amount of delay or expense which under the circumstances of the case, the Court considers unreasonable. Therefore, only in a certain specified contingencies, it would be possible for a party to mark the evidence tendered by the witness in a judicial proceeding, or before any person authorized by law to record evidence. However, even for marking such documents, the status states that the adverse party must have a right and liberty to cross examine the witness.
73. In the case on hand, the deposition of witness of the 1st respondent herein in a criminal case and also deposition of his counsel have to be received as additional evidence. Admittedly, the counsel for the respondent before the Court of Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Kovvur, is not a witness in the present suit proceedings. As stated supra, proceedings and orders of a criminal Court are not binding on a Civil Court.
74. For the aforesaid reasons, I am of the considered view that there are no grounds to allow the present application. Therefore, the application filed by the petitioners/appellants have not come under the ambit of Order XLI Rule 27 of the Code of Civil Procedure and it is liable to be dismissed. Accordingly, I.A.No.1 of 2024 is dismissed.
75. In the result, both the appeals i.e., A.S.No.332 of 2005 and Transfer A.S.No.635 of 2008 are dismissed confirming the common judgment, dated 21.04.2005, passed in O.S. No.242 of 1999 and O.S.No.339 of 2001 on the file of the I Additional Senior Civil Judge, Rajahmundry. The appellants/defendants in A.S.No.332 of 2005 are hereby directed to deliver the plaint schedule premises to the respondent/plaintiff in O.S.No.242 of 1999 within three (03) months from the date of this judgment. Considering the facts and circumstances, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the Appeals shall stand closed.
_________________________ V. GOPALA KRISHNA RAO, J Date: 25.03.2025 PGR