Andhra HC (Pre-Telangana)
G.Shyamlal vs G.Ishwarji And Others on 21 June, 2018
Equivalent citations: AIRONLINE 2018 HYD 25
Author: D.V.S.S. Somayajulu
Bench: D.V.S.S. Somayajulu
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU A.S.No.1471 of 1999 21-06-2018 G.Shyamlal Appellant/ G.Ishwarji and others Respondents Counsel for the appellants: Sri P.Venugopal !Counsel for the Respondents: Sri O.Manohar Reddy and SriV.N.Ansari. <Gist: >Head Note: ? Cases referred: 1 (2006) 5 SCC 353 2 AIR 1989 SC 1269 3 2011 (5) ALD 53 4 AIR 2003 Orissa 146 5 2005 (6) SCC 614 6 AIR(Gujarat) 1970 284 7 (2004) 2 SCC 712 HONBLE SRI JUSTICE D.V.S.S.SOMAYAJULU A.S.No. 1471 of 1999 JUDGMENT:
This appeal is filed against judgment and decree dated 29.01.1999 in OS.No.49 of 199 which is filed for a declaration of title, recovery of possession, recovery of arrears of rents etc., on the file of the District Judge, Nizamabad.
For the sake of convenience, the parties are referred to as they are arrayed in the suit.
The brief facts of the case are as follows:
The plaintiff and his elder brother Narsoji were native of Khajapur Village of Medak District. The plaintiff came over to Nizamabad and secured private employment in the year 1959. His brother Narsoji shifted to Nizamabad in the year 1964. On the advice of Narsoji, the plaintiff had purchased the plaint schedule site measuring 525 sq.yards from A.Rajaiah under a registered sale deed No.2187 of 1977 dated 27.04.1977 for a consideration of Rs.16,000/-. On the application made by the plaintiff, the then Gram Panchayat, Kamareddy granted permission to the plaintiff for construction of a shop and residential building in its proceedings No.63/1983/A3, dated 25.09.1983. The plaintiff constructed the front portion of the ground floor comprising two shops. On up-gradation to Municipal Council, the Kamareddy Municipal Council assessed the tax for the suit building in the name of the Narsoji, on the basis of mistaken representation made by the tenant of the plaintiff. Coming to know of it, the plaintiff applied to the Municipality/defendant No.5 to change the name. Defendant No.5 refused to change the name in the records. Defendant No.4 is the son of Narsoji. The front portion shops were leased out to defendant Nos.1 and 2 on a monthly rent of Rs.1,500/-. The defendant paid rents upto the month of December, 1990. Defendant Nos. 1 and 2 failed to execute the lease deed and to pay rents from 01.01.1991. Then the plaintiff got issued notices to defendant Nos. 1 and 2. Thereafter, they inducted defendant No.3 into possession of the suit premises illegally. The plaintiff got issued notice under Section 106 of the Transfer of Property Act to defendant Nos.1 to 4 on 02.03.1993 terminating the tenancy and claiming arrears of rents. There was no response. Hence, the suit.
Defendant No.3 filed his written statement stating that the suit property was in the custody of defendant No.4 and he was looking after the affairs of the suit site and building. Defendant No.4 represented that he was one of the owners of the suit premises. Defendant No.3 verified from the Municipal Council, Kamareddy and found that the suit building stood in the name of the father of defendant No.4. Defendant No.3 entered into an agreement with defendant No.4 on 24.05.1990. Defendant No.3 established a hotel in the name and style of Udipi Hotel Sri Krishna Prasad and the inaugural function was held on 29.09.1990. Defendant No.4 brought the plaintiff to the inaugural function. Since defendant No.4 was acting at the instance of the plaintiff, defendant No.3 presumed that the plaintiff and the defendant No.4 were the co-owners of the suit premises. Defendant No.3 paid rents to defendant No.4 upto the date of filing of the suit. The rents were paid with the consent of the plaintiff. The notice issued by the plaintiff under Section 106 of the Transfer of Property Act is not in conformity with the provisions of the Transfer of Property Act. The notice is illegal and cannot determine the lease. Defendant Nos.1 and 2 filed memo adopting the written statement of defendant No.3.
Defendant No.4 filed his written statement stating that the plaintiff and the father of defendant No.4 had opened a hotel in Nirmal and jointly ran that hotel till the year 1969. In or about the year 1973 Narsoji purchased an open plot measuring 525 sq.yards in Kamareddy from Angul Rajaiah S/o Laxmaiah, R/o Kamareddy. But before registration of the plot in his name, the mother of Narsoji expired. So registration could not be affected. Later, in the year 1977, Narsoji got the plot registered in the name of the plaintiff out of love and affection. The plaintiff neither paid the sale consideration nor met the expenses for registration of the sale deed. Defendant No.3 is in possession of the suit premises as the tenant of defendant No.4 paying rent to him. Narsoji got the property recorded in his name in the Gram Panchayat records. He was paying the property tax in respect of the suit property. Narsoji died in the year 1987. Defendant No.3 has been paying rent to defendant No.4. The plaintiff has no right to claim any arrears of rent as he is not the owner of the suit building. The notice given by the plaintiff did not terminate the lease in favour of defendant No.3. The plaintiff is not entitled to the relief of declaration or for possession of other reliefs.
On the basis of the above pleadings, the lower Court framed the following issues for trial:
(1) Whether the plaintiff is entitled to declaration of title, recovery of possession over the scheduled property?
(2) Whether the plaintiff is entitled to recover arrears of rent of Rs.78,300/-?
(3) Whether the plaintiff is entitled to mandatory injunction in respect of the suit premises? (4) Whether the plaintiff is not the owner and possessor of the scheduled property?
(5) Whether the schedule property was purchased by the father of the fourth defendant and latter he constructed mulgies in the year 1983 to 1985?
(6) Whether the defendant (third) is in possession of the suit property as a tenant?
On behalf of the plaintiff, PW.1 was examined and Exs.A.1 to A.15 were marked. For the defendants, four witnesses were examined and Exs.B.1 to B.71 were marked. After the trial and hearing the parties, the District Judge, Nizamabad passed the impugned judgment holding that the plaintiff is entitled to a decree as prayed for. The suit was thus decreed. It is this decree that is now challenged in the present appeal.
This Court has heard Sri P.Venugopal, learned counsel for the appellant and Sri O.Manohar Reddy and Sri V.N.Ansari, learned counsel for the respondents.
Learned counsel for the appellant/defendant 4 argued the matter and also submitted a written note along with the case law. The gist of the learned counsels submission is that the plaintiff miserably failed to prove his title to the property. It is his contention that the burden cast upon the plaintiff was not discharged at all and that the plaintiff was not able to explain the passage of consideration under Ex.A.1. The learned counsel argued that the mere fact that a sale deed is in the name of the plaintiff will not enable him to get a declaration unless he proves that he actually paid the consideration. Learned counsel for the appellant/defendant No.4 also pointed the fact that the municipal taxes were paid over a period of time in the name of defendant No.4. The books of accounts that were exhibited show that appellant/defendant No.4 spent money for construction of the building and this further strengthens the case of the appellant/defendant No.4 that he is the actual owner of the premises in question. Learned counsel also argued that the suit filed is hopelessly barred by time and that under Section 3 of the Limitation Act, the Court has a duty to dismiss the suit on the ground of limitation.
In reply to this, the learned senior counsel Sri Ravinder Rao appearing for the plaintiff/respondent has argued that the plaintiffs case is proved by Ex.A.1-sale deed, which is a registered sale deed in the plaintiffs name. Learned senior counsel argued that Exs.A.1 to A.3, A.5, A.6 and A.13 to A.15, apart from the admissions made in the pleadings and the evidence, go to show that the defendants themselves recognize the title of the plaintiff. Learned counsel also argued that the admissions are sufficient evidence along with the title deed Ex.A.1 to prove the plaintiffs case for a declaration. The learned counsel also argued that it is the defendants who set up a plea of nominal nature of the sale deed and therefore, he argued that it is not for his clients to prove the nature of the sale deed-Ex.A.1. Learned counsel also argued that the suit is well within time for the relief sought and also argued that in the absence of pleading, the plea of limitation cannot be heard or considered.
This Court, after hearing the submissions of the learned counsels and their concentration on the issue of title, is of the opinion that issue Nos.4 and 5 are to be decided first since they form the crux of the arguments of the learned counsels. Both these issues relate to the title of the plaintiff to the suit property. If these issues are decided in favour of one of the party, all the other issues can be decided as a necessary corollary to this.
Learned counsel for the appellant/defendant No.4 argued that Ex.A.1-sale deed by itself does not prove title of the plaintiff. It is his case that the property was purchased in the name of the plaintiff by father of defendant No.4/appellant out of love and affection. The expenditure for registration of the sale deed was not borne by the plaintiff. Learned counsel also argued that defendant No.4 acted as the owner of the property subsequent to the death of his father, leased out the same to the other defendants and the municipal tax was also assessed in the name of defendant No.4 as can be seen from the large number of municipal receipts, which are filed and marked as exhibits in the B series. The rental receipts, which are filed by the appellant/defendant No.4, also show that he has been renting out the property to the tenants. The demand notices received from the municipality also strengthen the plaintiffs case. In addition, the learned counsel also pointed out that the account books filed by him as Ex.B.64 etc., show that the expenditure for the construction of the building was borne by the appellant/defendant No.4 and his father. Learned counsel argued that nothing contrary to these documents has been filed and that therefore, the plaintiff failed to prove his title while the defendant proved his title and possession.
In reply thereto, learned counsel for the appellant submitted that the registered sale deed of 1997-Ex.A.12, the Gram Panchayat approvals by Exs.A.2 to A.3, the notices issued by the municipality to the plaintiff show the plaintiffs title, possession and enjoyment of the property. Learned counsel also pointed out that the admissions in the written statement are also enough to grant a decree in favour of the plaintiff.
This Court, on an examination of the pleadings, notices that defendant No.3, who is inducted as a tenant and has filed a written statement, wherein he pleaded as follows:
It was represented to this defendant by defendant No.4 that he too was one of the owners of the suit premises.
Similarly, he states that since defendant No.4 was acting at the instance of the plaintiff, the defendant presumed that the plaintiff and defendant No.4 are the co-owners of the suit schedule property. The learned senior counsel pointed out that the admission of tenant in a written statement filed in a Court deserves to be given due weight. As per the learned senior counsel, defendant No.3 admitted that the plaintiff has title to the property. But he presumed that he was a joint owner because of the fact that defendant No.4 dealt with the tenant.
Learned counsel also pointed out that in the written statement of the appellant/defendant No.4 it was initially pleaded that his father purchased the property in the name of the plaintiff out of love and affection for his nephew. The learned counsel points out that in the cross-examination of PW.1, a suggestion was put to him, (when he was cross- examined, after being recalled as per order in IA.No.1494 of 1997) that the registration was affected in 1977 from out of the joint family funds. Learned senior counsel pointed out that there is no consistency. The later suggestion clearly goes to show that the property according to the cross-examination was purchased from out of the joint family funds. The learned senior counsel also points out the following admissions in the cross-examination of DW.1:
I never obtained consent of the plaintiff in writing about the payment of rents to D.4. There is no evidence either orally or written to the effect that the plaintiff has consented for the transaction between me and D.4. It is a fact that except property receipts, there is no other record at the time of transaction that D.4 was the owner of the suit premises.
Learned counsel also argued and pointed out that the present appellant was examined as DW.2 and when he was examined in chief on 13.11.1997, he deposed as follows:
In 1977 my father got the said plot registered in the name of plaintiff. My father paid sale consideration of Rs.9,600/- and he also borne the registration expenses in respect of the said plot. I do not know why my father got the said plot registered in the name of plaintiff.
The learned counsel argued that in the written statement the plea was taken that the sale deed was registered out of love and affection. But in the evidence, the witness says that he does not know why the property was registered in the name of the plaintiff. He also points out that Ex.A.1-sale deed, ex facie, shows that the consideration is Rs.16,000/- whereas, DW.1 deposed in the deposition that sale consideration of Rs.9,600/- was paid. Learned counsel also pointed out the cross-examination of the very same witness on 15.11.1997, wherein he deposed as follows:
The entire consideration for suit plot was paid in the year 1973 in October or November. As my father was not having money for registration charges of the suit site, hence he got it registered in 1977. There is no date for the payment of Rs.8100/- on one occasion and Rs.1,500/- on another occasion in Ex.B.63.
In view of this, the learned counsel for the respondents argued that the appellant/defendant No.4 has come up with contradictory stands at different points of time. It is the appellant/defendant No.4, who raised the plea that the property was purchased nominally in the name of the plaintiff. Therefore, the learned senior counsel submits that a duty was cast upon defendant No.4 to discharge the burden. He points out that the burden is not discharged at all. Learned senior counsel also pointed out that to prove the nominal nature of the sale deed, the defendants have examined defendant No.3, who is an attestor to the sale deed- Ex.A.1. In the chief-examination itself, the witness deposes as follows:
As late Narsoji taken me to Registrar Office, hence I thought the suit property will be of Narsoji. The plaintiff used to come to Ramareddy when there were family functions.
Again in the cross-examination, on 19.11.1997, the witness clearly states that he does not know the contents of the said document. He also deposes that he was told that the consideration was paid, but he do not know on what date and how many days or months earlier to execution of document the consideration was paid. In the penultimate line of the cross-examination, he also states that there was no talk by him or discussion with late Narsoji regarding title of the suit house.
The learned senior counsel, therefore, argued that the appellant/defendant No.4 did not have any personal knowledge about Ex.A.4 and he took contradictory stands. Even the witness examined by them to prove their contention deposed that he had no knowledge about the title, or about the passage of sale consideration. Hence, the submission of learned senior counsel is that the defendants failed to prove their case.
In support of the plaintiffs case, the learned senior counsel points out that Ex.A.1sale deed has been filed in original by the plaintiff. Learned counsel argues that a registered document carries a certain sanctity. He relies upon Section 114(e) of the Evidence Act and argues that there is a presumption that an Official act i.e the registration has been validly done. In addition, this Court notices that Prem Singh and others v Birbal and others is the relevant case on this point wherein the Honble Supreme Court held as follows:
13. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption.
Learned counsel also argues that after the sale deed was obtained in 1977, the plaintiff applied to the Municipality seeking permission for construction and the same was granted by Exs.A2 and A.3, which are of the year 1983. According to the learned counsel, Ex.A.4-income tax return also shows the rent paid as income. Exs.A.5 and A.6 are the applications made by the plaintiff for further construction in the year 1991-92 which are in the knowledge of defendant No.4. Learned counsel points out that appellant/defendant No.4 in his cross-examination on 15.11.1997 categorically admits as follows:
It is true that plaintiff has taken permission for construction of first floor on 11.02.1991. It is also a fact that in first floor some pillars are raised and after dispute started, the further construction work was stopped.
Learned counsel for the appellant argues that the various documents filed and the actions taken are in consonance with the ownership of the property and that therefore, the plaintiff has proved his case.
This Court, on an examination of the facts and considering the submissions, notices that Ex.A.1 is the registered sale deed in favour of the plaintiff. The subsequent actions of the plaintiff in applying the municipality, the admissions of the defendants as to co-ownership in the pleadings, that defendant No.4 was acting for the plaintiff, the admission of the appellant that the plaintiff applied for the municipal plan for the second floor in 1991 which is long after Ex.A.1 sale deed strengthens the case of the plaintiff. The plaintiff, in the facts and circumstances of the case, has proved that he is the lawful owner of the suit schedule property. The defendant has not discharged his burden. The tenant himself admits the plaintiffs title. The co-ownership set up by the defendant is clear from the pleadings. The plaintiffs case is that as he was living away, defendant No.4 looking after the property. As can be seen from the plaint, because defendant No.5-municipality wrongfully mutated the name of defendant No.4, the present litigation arose. Because of this wrongful mutation, a suit had to be filed against the tenant; the present appellant who setup a rival claim, against defendant No.5/Muncipal Council, Kamareddy etc. This Court, on a review of the entire evidence and documents, holds that the defendants were not able to discharge the burden cast upon them. The combined affect of admissions in the written statement, contradictory stands of the defendant about the consideration and the existence of Ex.A.1-sale deed and the applications for construction etc., is that the plaintiff is the owner of the property.
The other point that is urged by the learned counsel for the appellant is about the books of accounts, which are filed and marked in this case. These documents are filed to show that defendant No.4 spent some money for construction of the property. Exs.B.63 and 64 are the said documents. These two documents are supposedly account books, which are maintained by defendant No.4. However, the appellant admits in his cross-examination that other pages of the book are closed by pasting with gum. Similarly, in Ex.B.64 also pages 1 to 24 are closed with pins. No explanation is forthcoming why these documents are closed with gum and pins. In addition, books of accounts, without supporting entries, cannot be relied upon as authentic evidence. The element of self-interest cannot be ruled out when a book of account is prepared. It is for this reason that the Courts insist on corroboration of entries by calling upon the party to file supporting entries for this corroboration. The entries by themselves cannot be treated as proof. In Smt.Chandrakantaben & Another v Vadilal Bapalal Modi & Others the Honble Supreme Court clearly held that unless the entries in the account books are supported by evidence they cannot be relied upon. Even Section 34 of the Evidence Act says that the entries by themselves are not enough to fasten liability.
In the case on hand, these documents do not inspire confidence. Even otherwise, the appellant admits as follows:
According to me, I spent Rs.1,87,000/- for said construction. I have not maintained any accounts for construction of rear portion.
Therefore, this Court is of the opinion that entries in these documents cannot support the defendants case of proving his title to the property.
Learned senior counsel rightly pointed out that in para 12 of the impugned judgment, the lower Court has correctly considered the heading of the document also and came to a conclusion that if the account book is treated as correct, it shows that the account was maintained for the plaintiff.
In addition, the learned senior counsel rightly pointed out that as per the settled law, the entries in the revenue records or municipal tax records cannot support the case of title. This Court does not seek to repeat the law on the subject. It is so well settled that entries in revenue records, tax receipts are not proof of title. The case of the plaintiff is that he has title but defendant No.5 wrongly assessed tax in the name of defendant No.4. This is why the suit is filed for a relief against defendant No.5 also.
Therefore, on a review of the facts and submissions made, this Court is of the opinion that the plaintiff discharged the burden cast upon him by proving his title to the property. Hence this Court upholds the findings of the Court below on issue Nos.4 and 5. As a consequence of these findings on issue Nos.4 and 5, the plaintiff is entitled to relief of declaration of title, recovery of possession of the suit schedule property, which is issue No.1. As a consequence to these decisions on issue Nos.4 and 5, the plaintiff is entitled to a mandatory injunction to get his name mutated in the municipal records as the owner of the property. Hence, issue No.3 is also decided in favour of the plaintiff/respondent No.1.
Issue Nos.2 and 6 were not really argued by the learned counsels and no serious dispute was raised on these two issues which also of a corollary to other issues. This Court upholds the findings on issue Nos.2 and 6 which are discussed in paragraphs 16 to 21 of the judgment in question.
PLEADING ON LIMITATION: - The last point that survives for consideration is the question of limitation.
Learned counsel for the appellant vehemently argued that the suit is barred by time. Learned counsel relied upon Harijana Chinna Thippanna and another v Smt. Harijana Eramma and argued that even though a separate issue was not framed, still by virtue of Section 3 of the Limitation Act, the defendant is entitled to argue that the suit is barred by time. In addition to Harijana Chinna thippannas case he also relies upon A.Papa Rao and Others v The Jeypore Sugar Co. Ltd. and Others and also relies upon Articles 58 and 120 of the Limitation Act.
In reply thereto, learned counsel for the respondent pointed out that there is no pleading in the written statement about the two articles of the Limitation Act mentioned in the oral submissions. Para 5 of the written statement of the appellant is to the following effect: the contents of para 6 are not correct. The suit is not within time.
The learned senior counsel appearing for the plaintiff/respondent relies upon judgment of the Honble Supreme Court of India reported in Narne Rama Murthy v Ravula Somasundaram and Others . He points out that in the said judgment, the Honble Supreme Court held as follows:
5. We also see no substance in the contention that the Suit was barred by limitation and that the Courts below should have decided the question of limitation. When limitation is the pure question of law and from the pleadings itself it becomes apparent that a suit is barred by limitation, then, of course, it is the duty of the Court to decide limitation at the outset even in the absence of a plea.
However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved.
His contention, therefore, is that in this case, limitation is a mixed question of law and fact, that it is a matter of evidence and that there should be clear/sufficient pleadings on limitation, since it has the effect of throwing out the plaintiffs suit in its entirety.
This Court also notices the following two judgments in addition to the judgments cited by the learned senior counsel. Kiritsinhji Bhagwatsinhji v Pharamroj Pirojshah Wadia and Food Corporation of India and Others v Babulal Agrawal .
In Kiritsinhji Bhagwatsinhjis case, the Honble Gujarat High Court held as follows:-
..It is true that Section 3 of the Limitation Act requires that although limitation has not been set up as a defence, every suit instituted after the period of limitation prescribed therefore by the First Schedule to the Limitation Act shall be dismissed. But, this cannot be taken to mean that when limitation has not been specifically pleaded in the defence and the facts are not apparent on the face of the record, the Court is bound to speculate upon possible questions of limitation that may arise in the suit.
In Babulal Agrawals case, the Honble Supreme Court held as follows:
.the learned counsel for the defendant appellant, however, relying upon Section 3 of the Limitation Act submits that it was the duty of the Court to see as to whether the suit was within limitation or not. A suit filed beyond limitation is liable to be dismissed even though limitation may not be set up as a defence. The above position as provided under the law cannot be disputed nor it has been disputed before us. But in all fairness it is always desirable that if the defendant would like to raise such an issue, he would better raise it in the pleadings so that the other party may also note the basis and the facts by reason of which suit is sought to be dismissed as threshold as to whether the suit is within limitation or not. There is always an office report on the limitation at the time of filing of the suit. But in case the Court does not prima facie find it to be beyond time at that stage, it would not be necessary to record any such finding on the point much less a detailed one. In such a situation at least at the appellate stage, if not earlier, it would be desired of the defendant to raise such a plea regarding limitation. In the present case except for making a passing reference in the list of dates/synopsis no such ground or question has been raised or framed on the point of limitation. It is quite often that question of limitation involves question of facts as well which are supposed to be raised and indicated by the defendant. The objecting party is not supposed to conveniently keep quiet till the matter reaches the Apex Court and wake up in a non-serious manner to argue that the Court failed in its duty in not dismissing the suit as barred by time In line with these two judgments and in line with what is cited by the Honble Supreme Court in Narne Rama Murthys case (5 supra), this Court holds that sufficient and adequate pleading is necessary in cases where limitation is a mixed question of fact and law. Where from an ex facie reading of the pleading, it appears to the Court that the lis is barred by time then a pleading may not be necessary as the facts are clearly visible and clear to uphold the plea of limitation. But where the question of limitation is a mixed question of fact and law, where there is an issue about the applicable article of the Limitation Act to the facts of the case and the suit does not appear to be barred by limitation on the face of it, then adequate and proper pleading is necessary to show that the suit is barred by time. This is the correct interpretation of Section 3 of the Limitation Act in the view of this Court.
Coming to the facts of this case, the pleading in para 5 of the appellants written statement is a very bald pleading bereft of any details whatsoever. The Honble Supreme Court in Babulal Agrawals case (7 supra) also held that such a pleading on limitation is not enough.
This Court, therefore, holds that the appellant/defendant No.4 cannot raise a plea of limitation or pursue the same without laying an adequate foundation for the same in his pleadings.
Even otherwise, on facts, this Court holds that the suit which is filed in June, 1993 is within time as the cause of action in the suit arises after defendant No.5 refused to change or mutate the name of the plaintiff and the tenant/defendants defaulted in payment of rents. These incidents occurred in 1991 and the suit that is filed in 1993 is in time.
For all these reasons, this Court holds that there are no merits in the appeal and the judgment and decree of the lower Court are confirmed in toto. The plaintiff/respondent in appeal is entitled to all the reliefs that he has prayed for in the plaint .
The appeal is, therefore, dismissed. In the circumstances of the case, no costs.
As a sequel, miscellaneous petitions, if any, pending in this appeal shall stand closed.
___________________________ D.V.S.S.SOMAYAJULU, J Date: 21.06.2018