Andhra HC (Pre-Telangana)
Akkiraju Saraswathi And Anr. vs Mohd. Jehangir Pasha And Ors. on 22 September, 2004
Equivalent citations: 2004(6)ALD144
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This C.M.A is filed against the judgment and decree, dated 19.1.2004, in A.S. No. 110 of 2000, on the file of I Addl. Chief Judge, City Civil Court, Secunderabad. A.S. No. 110 of 2000 was filed against the judgment and decree, dated 11.9.2000, in O.S. No. 545 of 1991, on the file of XVIII Junior Civil Judge, Secunderabad. The suit was filed by the sole plaintiff-1st respondent herein, for the relief of declaration that the total area conveyed under sale deed, dated 15.4.1959, in favour of the fourth defendant, is 600 square yards and not 1600 square yards, and for consequential injunction restraining the Defendants 4 to 8, from interfering with his possession of the area, over and above 600 square yards, covered by the deed. Defendants 8 and 9, the subsequent purchasers from Defendant No. 4, are the appellants herein. The parties are referred to as arrayed in the suit.
2. According to the plaintiff, his father by name Mohd. Sharfuddin and two others by name Narsimhulu Mudiraj and Mohd. Kareemulla, have jointly acquired the lands in Sy.Nos.61 and 62 of Hasmatpet, Tirumalgiri Village, Secunderabad, through sale deeds, and divided the same into 150 plots, duly leaving space for roads and parks. Plot Nos.111/A and 134/A, admeasuring 300 square yards each, were sold through a sale deed, dated 15.3.1959, in favour of the fourth defendant, since dead, represented by his sons, Defendants 10 to 12. He pleaded that out of 150 plots, 120 were sold, and the balance of the plots were divided among the three partners, and that an extent of 4500 square yards, adjoining Plot Nos.lll/A and 134/A, was allotted to the share of his father.
3. He stated that the fourth defendant altered the extent in the sale deed, from 600 square yards to 1600 square yards, and filed certain fabricated documents before the competent authority under the Urban Land Ceiling and Regulation Act, 1976, with a view to transfer the same in favour of the Defendants 8 and 9 herein. He submitted a complaint before a Criminal Court against the fourth defendant alleging fabrication of the documents, and to overcome the same, the fourth defendant approached the Sub- Registrar, Marredpally, Secunderabad, and got corrected the extent in the records. He stated that the Sub-Registrar-the third respondent herein, had corrected the records of his office, in relation to the documents, without notice to him and based on such corrections, Defendants 4 to 8 are interfering with his possession.
4. Defendants 2, 3, 4, 7 and 8 filed separate written statements. The substance of these written statements is that the sale deed, dated 15.3.1959, marked as Ex.B-6, was executed transferring an extent of 1600 square yards for a consideration of Rs. 1,500/-. It was stated that the certified copy thereof marked as Ex.A-1, was procured by the plaintiff, after the contents of the register in the office of the second respondent were manipulated. It was stated that on noticing the same, the fourth defendant filed an application for correction of records in the office of third defendant, and after holding a departmental enquiry, and verification of the records, the third respondent, vide proceedings marked in Ex.B-1, dated 20.12.1989, set at naught the manipulation and the original extent of "1600 square yards" was restored. The maintainability of the suit itself was challenged by stating that the relief in the suit, if at all fitted into the one for rectification of the documents, and realizing that he cannot file such a suit, the plaintiff has chosen to seek declaration, that too, not of his right or entitlement, vis-a-vis the land, but of the fourth defendant and Ors. claiming through him. Other subsidiary defences were also taken.
5. The Trial Court framed necessary issues and through its judgment, dated 11.9.2000 dismissed the suit. Aggrieved thereby, the plaintiff filed A.S. No. 110 of 2000. The lower Appellate Court set aside the judgment and decree of the Trial Court, and remanded the suit for fresh disposal, with a specific direction to refer Exs.B-6 and B-7 for examination by Forensic Science Laboratory, Red Hills, Hyderabad, for comparison of the digit "1" occurring in the figure "1600" in Para 2 of the said document, and to refer Ex.B-8 for Handwriting Expert to compare the signature of Mohd. Karimullah, one of the executants. The expenditure for this purpose was directed to be borne by Defendants 10 to 12. The Trial Court was directed not to touch the question of locus standi of the plaintiff to file the suit, or of the limitation in filing the suit.
6. Learned Counsel for the appellants Ms. S. Vani submits that the suit, with the reliefs contained in it, does not fit into any provisions of the Specific Relief Act, and the plaintiff has no locus standi to seek a declaration, in relation to a sale deed, to which he is not a party. She contends that even a suit, with properly framed relief, by a party to the document, executed in the year 1959, could not have been maintained in the year 1991, and that the lower Appellate Court committed illegality in setting aside the findings recorded by the Trial Court. She submits that the original sale deed Ex.B-6 continued to be the same, ever since it was executed, and it was only on account of manipulation in the office of the third defendant, obviously at the behest of the plaintiff, that the figures were changed in their records. She contends that restoration of the original entries in the records, in accordance with the relevant provisions of law, cannot be treated as rectification, nor does it give rise to any cause of action for the plaintiff. It is also her case that the plaintiff failed to establish his right, title or interest in any portion of the land covered by Ex.B-6, and unless he seeks a declaration of title for himself, the suit was not maintainable. She contends that the directions given by the lower Appellate Court are not only opposed to the basic principles of evidence, but also are totally unwarranted.
7. Sri R. Chandra Shekar Reddy, learned Counsel for the respondents, on the other hand, submits that being legal heir of one of the vendors under Ex.B-6, the plaintiff has locus standi to file the suit. He contends that the cause of action to file suit arose in view of the correction of the contents, undertaken by the third respondent, and the suit was filed within the period of limitation, from the date of such corrections. It is his case that the contents of Ex.B-6 were also manipulated and the same is clearly demonstrated by the variation of extents in the documents Exs.B-7 and B-8. He states that the necessity for the plaintiff to seek a declaration of his right, did not arise on account of the fact that his entitlement was already declared by Courts of competent jurisdiction through decrees marked as Exs.B-30 and B-31.
8. The plaintiff sought for declaration that the actual extent in the document Ex.B-6, is 600 square yards and not 1600 square yards. He pleaded that being son of one of the vendors in that document, he has locus standi to file the suit. The defendants resisted the claim by raising several contentions on facts and law. On the basis of the same, the Trial Court framed the following issues:
(1) Whether the plaintiff is entitled for declaring that
(a) that the total area of Plot Nos.134/ A and 111/A sold to Defendant No. 4 through registered sale deed document No. 522/1959 is only 600 square yards and not 1600 square yards ?
(b) The orders passed by the second defendant, dated 20.12.1989 rectifying the area of Plot Nos.134/ A and 111/A together as 1600 square yards is illegal, null and void?
(2) Whether the plaintiff is entitled for the injunction as prayed for?
(3) Whether the petitioner has got locus standi for claiming the above declaration and injunction? Whether the suit is within time? To what relief?
9. On behalf of the plaintiff, he alone was examined and Exs.A-1 to A-63 were marked. On behalf of defendants, DWs.l to 7 were examined and Exs.B-1 to B-55 were marked. The Trial Court has also taken on record, Exs.X-1 and X-2. It answered Issues 1, 3 and 4 against the plaintiff. Issue No. 2 also was answered in the negative, on the ground that, it is not supported by pleadings. In the appeal, the lower Appellate Court set aside the findings of the Trial Court and remanded the matter. While remanding, the lower Appellate Court circumscribed the consideration before the Trial Court, by stating that it shall not deal with the question of locus standi and limitation (Issues 3 and 4) and send Exs.B-6 to B-8 for verification, by the concerned agencies, at the expense of Defendants 10 to 12.
10. Had it been a case, where the lower Appellate Court made the various observations as it did, in its judgment as a measure of final adjudication of the matter, this Court would have considered the feasibility of examining their validity in depth. Since they came to be made in the process of remanding the matter, this Court feels its limitations in pronouncing finally on the questions involved. However, the validity of certain observations made by it, need to be considered in a limited context.
11. As observed earlier, the suit is filed for the relief of declaration that the extent in Ex.B-6 is 600 square yards and not 1600 square yards. Such a relief, in fact, fits into Section 26 of the Specific Relief Act, hereinafter referred to as "the Act". That, however, can be claimed only by persons who are parties to the instrument to be rectified and the grounds are limited to those of fraud or mutual mistake. It is not in dispute that the plaintiff is not a party to the document. The relief of rectification of a document is personal to the concerned party. The reason is that whether mutual mistake has taken place, or fraud was committed, are the matters, within the perception of the concerned persons. Any rights or obligations arising out of these factors cannot be said to be heritable; because such factors do not crystallize into a right by operation of law or otherwise. It is only when the party to an instrument initiates proceedings pleading fraud or mistake and proves the same, that a right for rectification arises. The legal heir of a party, who is entitled to claim the relief of rectification, under Section 26 of the Act can pursue the matter if only, the proceedings were initiated by such party during his lifetime. It is impermissible for the legal heirs to initiate proceedings for rectification for the first time, after the death of the party to the instrument. It conforms to logic as well as reason that when the party himself was not of the view, that there was any mutual mistake or fraud, his legal heirs cannot plead that the party was subjected to such fraud or mistake. Therefore, the question of locus standi looms large in the present case.
12. Another limb of the same issue as to whether a declaration under Section 34 of the Act, can be sought in relation to the rights of the defendant. Discretion of Court as to declaration of status or right:-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation :-A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
13. A bare reading of the section discloses that it enables the plaintiff to seek a declaration as to his entitlement to any legal character or to any right as to property. The suit is to be instituted against a person denying or interested to deny his title or such character. A declaration of the right of a defendant, in relation to any property, is not at all contemplated under this question. The relief claimed by the plaintiff is as under:
"Plaintiff therefore prays for judgment and decree declaring that the total area of Plot Nos.134/A and 111/A sold to Defendant No. 4 through sale deed dated 15.3.1959 bearing document No. 522 of 1959 Book-I, Vol.7 at Pages 122 and 123 registered before the Sub-Registrar, Secunderabad (now Sub- Registrar, Marredpalli, Secunderabad) is only 600 Sq. yds. and not 1600 Sq.yds. and consequential injunction restraining the Defendants 4 to 8 and all persons claiming through them in any manner interfering with the plaintiff's peaceful possession and enjoyment of the property over and above 600 Sq.yds. covered by Plots Nos.111/ A and 134/A; declaring that the orders passed by the Second Defendant dated 20th December, 1989 to the effect of altering the area from 600 Sq.yds. to 1600 Sq.yds. as illegal, null and void; award costs of the suit and pass such other and further orders as may be deemed fit and proper".
14. The maintainability of the suit in the context of Section 34 of the Act was not at all dealt with, by the lower Appellate Court. It interfered with the findings recorded by the Trial Court after undertaking a general discussion without reference to any provision of law or decided cases.
15. The plea of limitation was also considered by treating the date of proceedings issued by the third defendant at the starting point. That date would not become relevant, if the suit is filed challenging the proceedings issued by the third respondent. The prayer in the suit does not indicate it. If the purport of the prayer is to have its impact on a document executed long back, the matter ought to have been discussed in further detail.
16. Coming to the direction issued by the Appellate Court, namely sending the documents in Exs.B-6 and B-7, for examination by F.S.L and Ex.B-8 to handwriting expert, that too, at the cost of defendants 10 to 12, it needs to be observed that the basic issue in the suit is about the correctness of the contents of Ex.B-6. Assuming that the plaintiff has locus standi, the suit is properly framed, and is filed within limitation, the burden squarely rests upon him to prove his case. He has not chosen to examine any witness, nor did he place before the Court any documents conferring title upon him, in relation to the disputed property.
17. In his chief-examination the plaintiff, as PW-1, stated that the extent of 4500 square yards, allotted to his father, is in Plot No. 78/A. The same is said to be adjoining Plot Nos.lll/A and 134/A purchased by the Defendant No. 4. If the land allotted to the father of the plaintiff, on the one hand, and the land purchased by Defendant No. 4, on the other hand, are situated adjoining each other, there would have been some scope to plead that the Defendant No. 4, or those claiming through him are trying to encroach upon the land in Plot No. 78/A. It is not in dispute that Plot N0.I06/A is in between Plot Nos.78/A and 111/A. Plot No.l34/A is on the southern side of Plot No. 111/A. In his cross- examination PW-1 stated that he is not aware as to who owns Plot No.I06/A. These facts have their own bearing on the validity of his claim. The plaintiff was himself not clear as to the nature of the relief to be claimed by him. Such being the case, the lower Appellate Court recorded certain uncalled for and unwarranted findings to the effect that the fourth respondent had perpetuated fraud on the Urban Land Ceiling Authorities.
18. The validity or otherwise of the proceedings before the Urban Land Ceiling Authority, is not at all the subject-matter of the suit. The plaintiff did not plead any fraud against the fourth defendant, nor did he lead evidence on that. Hence, the lower Appellate Court travelled beyond the scope of appeal in making such observations. It went a step further and required the Defendants 10 to 12 to prove that Exs.B-6 to B-8 are true and genuine. The relevant passage reads as under:
"In view of the foregone discussion, the suit is to be remanded to the Trial Court for referring Ex.B-6 to B-8 to the experts, who can conduct the required examinations and give reports and to decide the dispute on hand in the light of the given reports and the evidence, if any, to be adduced by the said Handwriting Experts and any other relevant evidence if it is required by the either party to the proceedings by giving due opportunity to either party to the proceedings. The expenses for the given scientific examinations are to be borne-out by the Respondents 10 to 12, who are the legal heirs of the 4th respondent, on whom, the burden of proving that all the recitals in Exs.B-6 to B-8 are true and genuine."
The above observation runs contrary to the basic principles of evidence in general, and burden of proof in particular.
19. The plaintiff cannot be extended the luxury of filing a suit of this nature, not examining any witness, not filing any documents worth mentioning, in support of his claim, but requiring the defendant to prove the documents, including the sale deed in question, were genuine. This Court does not at all approve the course of action adopted by the lower Appellate Court, and the observations made by it. Any further discussion is likely to have its impact on the adjudication of the matter. Suffice it to say that AS No. 110 of 2000 deserves to be decided on merits and there was occasion to remand the matter to Trial Court.
20. Hence the judgment and decree in AS No. 110 of 2000 are set aside, and the matter is remanded to the Appellate Court, for fresh consideration and disposal, in accordance with law, uninfluenced by any observations made in this judgment.