Telangana High Court
Amjed Mohiuddin vs Mohammed Habib Ahmed Khan And 3 Others on 6 September, 2024
THE HONOURABLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
I.A.No.1 of 2024
In /and
City Civil Court Appeal No.157 OF 2015
And
City Civil Court Appeal No.26 OF 2015
COMMON JUDGMENT:(Per Honourable Smt.Justice M.G. Priyadarsini) Heard Sri Ch. Janardhan, learned counsel appearing for the appellants/defendants in C.C.C.A. No.157 of 2015, Sri H. Sudhakar, learned counsel appearing for the appellants/defendants in C.C.C.A.No.26 of 2015 and Sri A. Venkatesh, learned Senior Counsel representing Sri Mohd. Nawaz Hyder Ali, leaned counsel for the respondents/plaintiff in both the Appeals.
2. Aggrieved by the Judgment and Decree dated 04.12.2014 passed in O.S.No.464 of 2009 on the file of learned XXIV Additional Chief Judge, City Civil Court at Hyderabad, the defendant No.2 and defendant Nos.3 and 4 have filed the present Appeals respectively.
3. It is to be noted that the sole plaintiff in O.S.No.464 of 2009 filed the said suit against defendant Nos.1 to 4 for declaration of title, recovery of possession with mesne profits and declaration of unregistered sale deed dated 16.02.1998 as null and void. On the 2 MB,J & MGP,J CCCA Nos.157 & 26/2015 other hand, the defendant Nos. 3 and 4 in O.S.No.464 of 2009 filed O.S.No.54 of 2011 against the plaintiff, defendant Nos.2, 1 in O.S.No.464 of 2009 and another for the relief of perpetual injunction in respect of same suit schedule property in O.S.No.464 of 2009. Since the suit schedule property and the dispute between the parties are one and the same, the Trial Court has passed Common Judgment dated 04.12.2014 in O.S.No.464 of 2009 and O.S.No.54 of 2011. However, the present Appeals are filed by the defendant Nos.2 to 4 in O.S.No.464 of 2009 only to the extent of setting aside the Judgment and Decree dated 04.12.2014 passed in O.S.No.464 of 2009. Thus, we are concerned only with the pleadings and issues in respect of O.S. No.464 of 2009 only.
4. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the Trial Court in O.S.No.464 of 2009.
5. The plaint averments of O.S.No.464 of 2009 in brief are as under:
a) The plaintiff having purchased an extent of Ac.0.05.06 guntas of land equivalent to 612.6 square yards in Sy.No.2 of Bhakthwarguda, Hakeempet (Now Nizam Colony), Tolichowki i.e., the suit schedule property under registered sale deed bearing document No.2853/1989 dated 18.12.1989 made constructions 3 MB,J & MGP,J CCCA Nos.157 & 26/2015 over the said plot. The municipal authorities have assessed the property tax and assigned Municipal No.9-4-62/98 and 9-4-62/99.
b) Since the plaintiff is a citizen of United States of America holding an Overseas Citizen of India Card, he used to pay property tax by post to the municipal authorities. Since the plaintiff is having cordial relationship with his elder brother, he kept his sale deed dated 18.12.1989 and other relevant documents with his elder brother Mohammed Mahmood Khan.
c) On demand of some amount by his brother, the plaintiff issued an Account Payee Cheque bearing No.617156 for Rs.20,000/- drawn on Indian Overseas Bank, Hyderabad. The plaintiff came to know that the said cheque was taken by defendant No.1, who is son of his brother by name Mohammed Mahmood Khan but he could not encash the same as it was an account payee cheque. Defendant No.1 did not return the said cheque. On account of this transaction, misunderstandings developed between the plaintiff and his brother and thereby plaintiff took all the original papers from his brother.
d) In the month of November, 2008 the plaintiff came to India with an intention to settle down in India and leveled the suit schedule property with the help of labourers to construct a house. On 27.12.2008 defendant No.1 and a person by name Mirza Rafeeq 4 MB,J & MGP,J CCCA Nos.157 & 26/2015 Bai trespassed into the suit schedule property and damaged part of compound wall, gate and demanded to extort an amount of Rs.3 lakhs from the plaintiff illegally and threatened to dispossess. Thus, the plaintiff filed O.S.No.4729/2008 on the file of learned VII Junior Civil Judge, City Civil Court, Hyderabad against defendant No.1 and another for perpetual injunction in respect of suit schedule property and the plaintiff was granted interim injunction orders on 29.12.2008, which was extended from time to time till 09.06.2009. The plaintiff has also filed a criminal complaint, which was registered before the Police, Humayun Nagar on 09.01.2009 against defendant No.1 and another.
e) In view of the rumors that defendant Nos.3 and 4, who are brothers, likely to claim the suit schedule property in collusion with defendant Nos.1 and 2 with the help of fictitious and fabricated documents, the plaintiff filed a caveat petition against defendant Nos.3 and 4 in the month of January, 2009. Defendant Nos.3 and 4 filed O.S.No.378 of 2009 on the file of learned VII Junior Civil Judge, City Civil Court, Hyderabad against plaintiff, defendant Nos.1 and 2 and another on 19.01.2009 alleging that they have purchased suit schedule property vide registered sale deeds bearing document Nos.3788/2008 and 3789/2008, dated 27.08.2008 from defendant No.2 therein (defendant No.1 herein), who filed written statement admitting the claim of defendant Nos.3 5 MB,J & MGP,J CCCA Nos.157 & 26/2015 and 4 but could not say as to from whom they acquired the said property. Defendant Nos.3 and 4 are claiming their title over the schedule property as defendant No.1 herein executed those sale deeds as holder of an agreement of sale cum GPA dated 25.07.2008. Defendant Nos.3 and 4 filed a document dated 16.02.1998 in O.S.No.378 of 2009 purported to be unregistered sale deed alleged to have been executed by plaintiff conveying the suit schedule property for consideration of Rs.1,56,000/-. Based on the said illegal, inadmissible and forged unregistered sale deed, the defendant No.1 executed agreement of sale cum GPA in favour of defendant No.2.
f) Since all the defendants have conspired and colluded with each other to create false and forged documents in respect of suit schedule property, the plaintiff filed a complaint on 15.03.2009 against all the defendants before the Humayun Nagar Police Station and the same was registered as Cr.No.146/2009 for the offence under Sections 420, 468 and 471 of The Indian Penal Code. The defendants have approached a fake stamp vendor, who was having the stamp of one Ahmed Ali Khan, an old stamp vendor and created the document as if it was written on 16.02.1998 and whereas the date of selling stamp paper was 16.02.2008. In fact the stamp vendor Ahmed Ali Khan died in the year 1984, as such the question of selling stamp paper by him bearing Stamp No.8923 6 MB,J & MGP,J CCCA Nos.157 & 26/2015 dated 16.02.2008 or 16.02.1998 does not arise. The defendant in order to show the document as back dated have managed to put the date as 16.02.1998 under the signatures of notary in addition to in typed matter in the preamble of document as 16.02.1998 instead of 16.02.2008. To the information of the plaintiff, notary also is a fake person and in the year 1998, there was no notary by name S.M.Bahauddin as claimed by the defendants and the signatures were also created for the purpose of showing additional evidence to support their false claim.
g) There is no necessity for the plaintiff whatsoever to alienate the suit schedule property in 1998 or 2008 and moreover the plaintiff has not received a single pie from defendant No.1 as consideration of the suit schedule property. Due to the creation of forged unregistered sale deed, a cloud is created on the clear title of the plaintiff as defendant No.1 based on the said forged document succeeded in creating another false document signed as an agreement of sale cum GPA in document No.3368/2008 dated 25.07.2008 in favour of defendant No.2 to make it appear that defendant No.1 is the owner of the said property under invalid document. Defendant No.1 cannot convey any better title than he had, as such, all transactions between defendant Nos.1 and 2 and defendant Nos.3 and 4 cannot get any title, as such the defendant Nos.3 and 4 cannot continue in possession over the said property.
7 MB,J & MGP,J CCCA Nos.157 & 26/2015 As the plaintiff left India on 27.03.2009, there was a communication gap between him and his counsel to take steps for clubbing his suit in O.S.No.4729 of 2008 with O.S.No.378 of 2009. Under the guise of temporary interim injunction orders, the defendant Nos.3 and 4 with the help of some unsocial elements forcibly dispossessed the plaintiff by driving out watchman of the plaintiff from the suit schedule property on 08.06.2009. The plaintiff returned to India on 03.07.2009 and came to know that the suit schedule property was occupied by the defendants, damaged the rooms constructed by the plaintiff and digging deep pits in the land with the help of JCB and proclainers with an intention to change the physical features of the suit schedule property to create hurdles.
h) If the suit schedule property is leased out, it would fetch Rs.10,000/- per month and thereby the defendants have caused a loss of Rs.10,000/-per month to the plaintiff from 08.06.2009 till filing of the suit and thereby it would comes to Rs.18,667/-. The plaintiff is entitled for mesne profits @ Rs.10,000/- per month. Hence, the present.
6. In reply to the above plaint averments, defendant No.2 filed written statement, which was adopted by the defendant Nos.1. The averments of the written statement filed by defendant No.2 in brief are as under:
8 MB,J & MGP,J CCCA Nos.157 & 26/2015
a) The plaintiff being owner of the suit schedule property alienated the suit schedule property to the defendant No.1, who in turn alienated the same in favour of defendant No.2 by virtue of Agreement of sale cum GPA and thereafter defendant No.2 alienated the suit schedule property in favour of defendant Nos.3 and 4 under registered sale deeds. Since the plaintiff sold the property at much lesser consideration amount and since the prices of lands in twin cities of Hyderabad and Secunderabad have gone up, a false suit is foisted for illegal monetary gain.
b) The plaintiff has filed false criminal case on some false and baseless grounds as a counter blast to the suit filed by defendant Nos.3 and 4. Since the defendant No.1 being absolute owner and possessor of the suit schedule property by virtue of sale deed obtained from plaintiff, he has rightly and lawfully alienated the same in favour of defendant No.2. No cause of action accrued to the plaintiff so as to file the present suit and the dates and occasions mentioned in the plaint averments are crated one for the purpose of suit and thereby prayed to dismiss the suit.
7. Defendant Nos.3 and 4 filed written statement, the brief averments of which are as under:
a) Defendant Nos.3 and 4, who are own brothers alleged to have purchased suit schedule property individually to an extent of 9 MB,J & MGP,J CCCA Nos.157 & 26/2015 462.26 square yards and 150 square yards respectively and they were delivered possession of the suit schedule property by defendant No.2. After purchase of the suit schedule property, defendant Nos.3 and 4 alleged to have demolished the existing structures and also started construction activity.
b) Plaintiff and defendant Nos.1 and 2 realizing drastic increase in the value of the suit schedule property and also the gullible nature of defendant Nos.3 and 4, they have developed ill intention either to grab the suit schedule property or to extort huge amounts from defendant Nos.3 and 4. Defendant Nos.1 and 2 and plaintiff despite being aware of the fact that they do not have valid right, title or interest over the suit schedule property have tried to interfere with the peaceful possession and enjoyment of the defendant Nos.3 and 4 over the suit schedule property with the help of antisocial elements on 09.01.2009 and 11.01.2009 but the defendant Nos.3 and 4 could resist the said attempts. When the defendant Nos.3 and 4 approached the concerned Police on 17.01.2009 to take actions against the trespassers, they refused for the same under the guise of civil dispute. Accordingly defendant Nos.3 and 4 filed O.S.No.378 of 2009 on the file of learned VII Junior Civil Judge, City Civil Court, Hyderabad against plaintiff, defendant Nos.1 and 2 and one Shaik Akber.
10 MB,J & MGP,J CCCA Nos.157 & 26/2015
c) The defendant Nos.3 and 4 were delivered with the possession of suit schedule property on the date of execution of sale deed i.e., on 27.08.2008, as such, the claim of the plaintiff of being in possession of the suit schedule property in the month of November, 2008 does not arise. Thus, the defendant Nos.3 and 4 are not liable to pay any amount towards mesne profits, whether past or future, as they are the absolute owners of the property. Defendant Nos.3 and 4 have acquired the suit schedule property through valid legally sustainable documents and the purchasers in title also have absolute title emanating from valid genuine documents and it is the plaintiff, who is trying to create cloud on the title of defendant Nos.3 and 4. Plaintiff is not entitled to file the present suit as the plaintiff has resorted to file the suit with all false allegations only to extort huge amounts from defendant Nos.3 and 4 and thereby the suit is liable to be dismissed.
8. Based on the pleadings adduced on behalf of both the sides, the Trial Court has framed as many as 9 issues. As per the orders dated 31.12.2010 passed by the Chief Judge, City Civil Court, Hyderabad in Transfer O.P.No.1195 of 2010, O.S.No.378/2009 on the file of learned VII Junior Civil Judge, City Civil Court, Hyderabad was transferred to Court of III Additional Chief Judge, City Civil Court, Hyderabad to be tried along with O.S.No.464/2009. As per the proceedings Dis.No.5693, dated 11 MB,J & MGP,J CCCA Nos.157 & 26/2015 28.11.2013 of the Chief Judge, City Civil Court, Hyderabad, both the suits were transferred to learned XXIV Additional Chief Judge, City Civil Courts at Hyderabad. Thus, O.S.No.378/2009 was renumbered as O.S.No.54/2011. As per the memo submitted by learned counsel on behalf of both the sides, both the suits were clubbed and common evidence was adduced in O.S.No.464/2009.
9. On behalf of plaintiff, PWs 1 to 3 were examined and exhibited Exs.A1 to A116. On behalf of defendants, DWs 1 to 3 were marked and exhibited Ex.B1 and B2.
10. After considering the rival contentions, the learned XXIV Additional Chief Judge, City Civil Courts at Hyderabad dismissed O.S.No.378/2009 (renumbered as O.S.No.54/2011) and whereas partly decreed O.S.No.464 of 2009 to the extent of declaring plaintiff as owner and possessor of the suit schedule property and declaring the agreement of sale cum GPA dated 25.07.2008 as null and void and not binding on the plaintiff and as a consequence the unregistered sale deed dated 16.02.1998 was declared as void and nonest in the eye of law. Aggrieved by the above decree and judgment, the defendant Nos.2 to 4 preferred the present Appeals.
11. Now the point for determination is whether there are any grounds to set aside the impugned Judgment and Decree dated 12 MB,J & MGP,J CCCA Nos.157 & 26/2015 04.12.2014 passed in O.S.No.464 of 2009 on the file of learned XXIV Additional Chief Judge, City Civil Court at Hyderabad?
12. There is no dispute that originally plaintiff is the owner of the suit schedule property having purchased the same under Ex.A1 from S.M. Qutubuddin vide registered sale deed bearing document No.2853/1989 dated 18.12.1989. Though the defendants alleged to have been claiming title over the suit schedule property from the plaintiff by virtue of unregistered sale deed in favour of defendant No.1 on 16.02.1998, the plaintiff is denying to have executed the said document. The title over the suit schedule property alleged to have transferred from plaintiff to defendant no.1 under unregistered sale deed and from defendant No.1 to defendant no.2 under agreement of sale cum GPA and from defendant No.2 to defendant Nos.3 and 4 under registered sale deeds. Thus, the crux of the dispute to be decided at this juncture is whether the plaintiff executed unregistered sale deed in favour of defendant No.1 on 16.02.1998.
13. The first and foremost contention of the defendants is that though the plaintiff failed to establish that the unregistered sale deed dated 16.02.1998 is a forged document, the Trial Court has declared the unregistered sale deed dated 16.02.1998 as null and void. It is the contention of the plaintiff that on the demand of his elder brother i.e., father of defendant No.1, he issued account 13 MB,J & MGP,J CCCA Nos.157 & 26/2015 payee cheque bearing No.61756 for Rs.20,000/- and that the said cheque was taken over by defendant No.1 and used it for copying the signature of the plaintiff. It is further argued that the forged signature on the unregistered sale deed appears to have been created or reproduced by electronic method or some other technical device with the help of signatures of the plaintiff on the cheques and some other documents which are available with the father of defendant No.1. On the other hand, the defendants argued that the plaintiff has not taken any steps to send the document to the expert for comparison of the signature on the said document. It is to be noted that the defendants have not exhibited either the said unregistered sale deed dated 16.02.1998 or produced the subsequent registered agreement of sale cum GPA alleged to have been executed by defendant No.1 in favour of defendant No.2 during the course of trial. These documents are alleged to be in possession of the defendants. It is settled law that evidence based on expert opinion cannot be taken as substantial piece of evidence unless corroborated by other evidence. Thus, merely because plaintiff has not taken any steps to send the disputed document to expert is not fatal to the case of the plaintiff.
14. It is pertinent to note that during the pendency of C.C.C.A. No.157 of 2015, the defendant No.2 has filed I.A.No.1 of 2024 by invoking provision under Order XLI Rule 27 of The Code of Civil 14 MB,J & MGP,J CCCA Nos.157 & 26/2015 Procedure to receive the certified copies of judgment dated 11.03.2024 and depositions in C.C.No.90 of 2016 as additional evidence. It is the specific contention of the defendant No.2 that the plaintiff on the allegation that defendants have forged and fabricated certain documents including document dated 16.02.1998, lodged a complaint in C.C.No.90 of 2016 against the defendants for the offence under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code; that C.C.No.90 of 2016 was ended in acquittal on 11.03.2024. On the other hand, the plaintiff filed detailed counter to I.A.No.1 of 2024 contending that the defendant No.2 is trying to delay the present proceedings by filing vexatious application without assigning any reason as to how the present documents are relevant to decide the lis. It is further argued that the averments made by the defendant No.2 in I.A.No.1 of 2024 that all the four accused were acquitted in C.C.No.90 of 2016 is false as there is clear observation of the learned Chief Metropolitan Magistrate that C.C.No.90 of 2016 is binding only on Accused Nos.2 to 4 as the case against accused No.1 is split up vide C.C.No.7908 of 2023 due to non attendance in the court despite issuance of warrant.
15. The defendant No.2 has enclosed certified copies judgment dated 11.03.2024 and certain depositions in C.C.No.90 of 2016 as additional evidence to the affidavit filed in support of application in 15 MB,J & MGP,J CCCA Nos.157 & 26/2015 I.A.No.1 of 2024. Though the case in C.C.No.90 of 2016 was filed against accused Nos.1 to 4, the case proceeded against accused Nos.2 to 4 and the case against accused No.1 (M. Ashfaq Ahmed Khan) was split up and numbered as C.C.No.7905 of 2023. Thus, it is evident that the case filed by plaintiff against prime accused i.e., accused No.1 (M. Ashfaq Ahmed Khan) is still pending. Moreover, as rightly argued by learned counsel for the plaintiff, the defendant No.2 has not assigned any reason as to how these documents are relevant to decide the lis. Furthermore, in Avitel Post Studioz Limited and others v. Hsbc Pi Holding (Mauritius) Limited 1 the Honourable Supreme Court observed that the law on the issue stands crystallized to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. 1 AIRONLINE 2020 SC 691 16 MB,J & MGP,J CCCA Nos.157 & 26/2015
16. Learned counsel for the plaintiff relied upon a decision in A. Andisamy Chettiar v. A. Subburaj Chettiar 2 wherein it was observed that the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It was further observed that the true test, therefore is, whether the appellate Court is able to pronounce the judgment on the material before it without taking into consideration the additional evidence sought to be adduced.
17. As stated supra, the defendant No.1 i.e., the person in whose favour unregistered agreement of sale alleged to have been executed by plaintiff and who is also shown as Accused No.1 in C.C.No.90 of 2016 has not yet been acquitted in the said case and instead the case against him in C.C.No.90 of 2016 was split up and numbered as C.C.No.7908 of 2023, which is still pending in view of non appearance of defendant No.1/accused No.1 before the concerned Trial Court. It is to be noted that the prime beneficiary from the unregistered agreement of sale is none other than defendant No.1/accused No.1 in CC No.7908 of 2023 against 2 (2015) 17 SCC 713 17 MB,J & MGP,J CCCA Nos.157 & 26/2015 whom the allegations of forgery and fabrication have not yet be disproved. In such circumstances, the proceedings or the judgment, which are not at all connected with the allegations leveled against accused No.1/defendant No.1, cannot help this Court in arriving to a conclusion. Even otherwise, as stated supra, the findings given by Criminal Court cannot bind on the Civil Court. Therefore, in view of the above facts and circumstances and also considering the principle laid down in A. Andisamy Chettiar's case (supra), we are of the considered view that the additional evidence intended to be produced by the defendant No.2 in CCCA No.157 of 2025 is not of much helpful to the defendant No.2 to establish his contention and it would also be not much of assistance to this Court in adjudicating the dispute between the parties. The suit filed by the plaintiff is for declaration of title, recovery of possession and to declare the unregistered sale deed as null and void. Furthermore, when defendant No.1 cannot obtain any valid title over the suit schedule property by virtue of unregistered sale deed, it is irrelevant as to whether the said document is forged or fabricated. Hence, the application filed under the provisions of order XLI Rule 27 of The Code of Civil Procedure to receive additional document vide I.A.No.1 of 2024 is liable to be dismissed.
18 MB,J & MGP,J CCCA Nos.157 & 26/2015
18. It is to be seen that the document, which is alleged to be forged and fabricated is unregistered sale deed 16.02.1998 purported to have been executed by plaintiff in favour of defendant No.1. The plaintiff is totally denying the execution of the said document. The said unregistered sale deed dated 16.02.1998 is very crucial document, as based on the said document, defendant No.1 alleged to have executed agreement of sale cum General Power of Attorney vide document No.3368/2008 dated 25.07.2008 in favour of defendant No.2 and based on the said agreement of sale cum GPA, defendant No.2 executed registered sale deeds under Exs.B1 and B2 in favour of defendant Nos.3 and 4. If the unregistered sale deed dated 16.02.1998 is discarded, then the subsequent Agreement of sale cum GPA and registered sale deeds cannot be considered as valid and binding on the plaintiff.
19. Now the question to be adjudicated is even for the sake of arguments, if it is presumed that unregistered sale deed is not forged document, whether based on such unregistered sale deed, can defendant No.1 execute agreement of sale cum GPA in favour of defendant No.2. In general the validity of a sale agreement without registration is three years from the date of execution. Even otherwise, if the unregistered sale deed dated 16.02.1998 is not discarded that is to say that if the unregistered sale deed is presumed to be not forged and fabricated, still the subsequent 19 MB,J & MGP,J CCCA Nos.157 & 26/2015 documents i.e., Agreement of sale cum GPA and registered sale deeds cannot be considered as valid and binding on the plaintiff, because through an unregistered sale deed, title in respect of an immovable property cannot be transferred to others. In view of the provisions of The Transfer of Property Act, right, title or interest in respect of an immovable property can be acquired only if the deed is registered. As per Section 17 of The Registration Act, the registration of a tangible immovable property is compulsory if the value of the respective property exceeds Rs.100/- and it is the registration of the property which makes the sale valid. A document may be presented for registration within four months from the date of execution (signature). But defendant No.1 has not taken any steps for years together after obtaining the unregistered sale deed from plaintiff. The alleged unregistered sale deed was alleged to have been executed by the plaintiff on 16.02.1998. 10 years thereafter defendant No.1 alleged to have executed agreement of sale cum General Power of Attorney vide document No.3368/2008 dated 25.07.2008 in favour of his own son i.e., defendant No.2. Thus, defendant No.1 kept quiet for 10 years after obtaining unregistered sale deed from the plaintiff.
20. It is the specific contention of the defendant No.2 that defendant No.1 got validated the unregistered sale deed dated 16.02.1998 before the District Registrar vide proceedings 20 MB,J & MGP,J CCCA Nos.157 & 26/2015 No.4767/E1/VAL/2001 on 11.04.2001 by paying requisite fee. But no evidence is adduced to that extent. However, on the other hand, in order to disprove the validation of unregistered sale deed by defendant No.1, the plaintiff got examined one Joint Sub Registrar Stamps and Registration Department as PW3. The stamp paper on which unregistered sale deed dated 16.02.1998 alleged to have been executed was stated to have been purchased from stamp vendor by name Ahmed Ali Khan but as per the evidence of PW3 the name of Ahmed Ali Khan is not available in the list of stamp vendors maintained by their office records. Further, the said unregistered sale deed dated 16.02.1998 alleged to have been notarized by S.M. Bahauddin. But as per the evidence of PW3, there was no person by name Bahauddin. The evidence of PW3 further discloses that as per the inward register dated 25.09.2001, the File No.4767/2001 is in respect of Mohd. Asif Ali and pertains to G1 Section but not 11.04.2001. Thus, from the above evidence of PW1, suspicion arises with regard to the validation of unregistered sale deed dated 16.02.1998. It appears that some foul play was involved in the alleged validation of unregistered sale deed dated 16.02.1998.
21. It is to be noted that when the validation of an unregistered sale deed is sought for, it shall be with the consent of both the parties. It is not the case of the defendant No.1 that he could not 21 MB,J & MGP,J CCCA Nos.157 & 26/2015 secure the presence of plaintiff for execution of registered sale deed. No material is placed by defendant No.1 to establish that he has made some efforts to contact with plaintiff with a request to execute registered sale deed in his favour. When the plaintiff has raised objection with regard to the genuineness of validation of unregistered sale deed along with some supported documents, the burden lies on defendants to disprove the objections raised by the plaintiff. In such circumstances, the defendants ought to have examined an independent witness to prove that the unregistered sale deed was validated through due process of law.
22. Even otherwise, except alleging that the unregistered sale deed was validated, the defendant No.1 has not taken any steps in issuing a notice to the plaintiff to come for the registration of the said document or filed any suit for specific performance against the plaintiff for a direction to come forward for registration of the said document. The defendant No.1 and plaintiff are none other than close relatives and in such circumstances nothing prevents defendant No.1 from inviting/requesting plaintiff to come forward for registration of the said document. There is no explanation on behalf of defendants as to why defendant No.1 did not take any steps for issuing notice to the plaintiff for registration of the sale deed rather than validating the unregistered sale deed by other means. These peculiar circumstances create any amount of 22 MB,J & MGP,J CCCA Nos.157 & 26/2015 suspicion on the genuineness of unregistered sale deed, dated 16.02.1998.
23. Learned counsel for the plaintiff relied upon a decision in Sri Gangai Vinayagar Temple and another v. Meenakshi Ammal and others 3 wherein the Honourable Supreme Court observed as under:
"20. On the issue of applicability of res judicata in cases where two or more suits have been disposed of by one common judgment but separate decrees, and where the decree in one suit has been appealed against but not against the others, various High Courts have given divergent and conflicting opinions and decisions. The High Court of Madras and erstwhile High Courts of Lahore, Nagpur and Oudh have held that there could be no res judicata in such cases whereas the High Courts of Allahabad, Calcutta, Patna, Orissa and erstwhile High Court of Rangoon have taken contrary views. It should also be noted that there are instances of conflicting judgments within the same High Court as well. The decision of Tek Chand, J. in Full Bench Judgment of the Lahore High Court in Lachhmi vs. Bhulli [AIR (1927) Lah 289] and Full Bench Judgment of the Madras High Court in Panchanda Velan vs. Vaithinatha Sastrial [ILR (1906) 29 Mad 333] and of the Oudh High Court in B. Shanker Sahai v. B. Bhagwat Sahai [AIR 1946 Oudh 33 (FB)] appear to be the leading decisions against the applicability of res judicata. Without adverting to the details of those cases, it is sufficient to note that the hesitancy or reluctance to the applicability of the rigorous of res judicata flowed from the notion that Section 11 of the Code refers only to "suits" and as such does not include "appeals" within its ambit; that since the decisions arrived in the connected suits were articulated simultaneously, there could be no "former suit" as stipulated by the said section; that substance, issues and finding being common or substantially similar in the connected suits tried together, non-filing of an appeal against one or more of those suits ought not to preclude the consideration of other appeals on merits; and that the principle of res judicata would be applicable to the judgment, which is common, and not to the decrees drawn on the basis of that common judgment."
24. In the present case, it is observed that though defendant Nos.3 and 4 (plaintiffs in O.S.No.54 of 2011) have filed Appeal against judgment and decree in O.S.No.464/2009, they have not filed any appeal against the decree passed in O.S.No.54 of 2011. 3 (2015) 3 Supreme Court Cases 624 23 MB,J & MGP,J CCCA Nos.157 & 26/2015 Thus, the principle laid down in the above said decision squarely applicable to the facts of the present case. Though the common judgment is passed in O.S.No.464/2009 and O.S.No.54/2011, two separate decrees were drawn, against which, the aggrieved party i.e., the defendants in O.S.No.464/2009 and plaintiffs in O.S.No.54 of 2011 ought to have filed separate Appeal. But the defendants in O.S.No.464/2009 and plaintiffs in O.S.No.54 of 2011 did not choose to challenge the decree passed in O.S.No.54 of 2011 and thereby the said decree has attained finality.
25. It is the specific contention of the defendant No.2 that the Trial Court erroneously decreed the suit without being any prayer relief sought by the plaintiff that to declare the Agreement of Sale cum General Power of Attorney dated 25.07.2008 and the sale deeds dated 27.08.2008 as null and void without being any relief sought by the plaintiff. In this regard, learned counsel for the plaintiff relied upon a decision in G. Subrahmanyam (died) by LRs v. G. Leela and others 4 wherein the Honourable Supreme court observed that though the Court cannot ordinarily grant any relief to the plaintiff against the defendant which is not asked for, if a larger or wider relief is claimed, the lesser relief can always be granted. In the present case, the plaintiff sought for declaration of title, recovery of possession with mesne profits and declaration of 4 2011 SCC Online AP 411 24 MB,J & MGP,J CCCA Nos.157 & 26/2015 unregistered sale deed dated 16.02.1998 as null and void. Thus, it is clear that the plaintiff has prayed for larger reliefs than the relief of declaring the Agreement of Sale cum General Power of Attorney dated 25.07.2008 and the sale deeds dated 27.08.2008 as null and void. It is pertinent to note that when the unregistered sale deed dated 16.02.1998 is declared as null and void, obviously the subsequent documents i.e., the Agreement of Sale cum General Power of Attorney dated 25.07.2008 and the sale deeds dated 27.08.2008 would lose their legal sanctity. Even if the unregistered sale deed is not declared as null and void, through the said unregistered sale deed defendant No.1 cannot get alienable rights, more particularly, when defendant No.1 failed to place any palpable evidence to establish that he has validated the unregistered sale deed through due process of law. It is just and necessary to quote a legal maxim 'nemo dat quod non habet' which means that nobody could pass a better title than he himself has.
26. None of the defendants have filed any documentary evidence to establish their possession over the suit schedule property as on the date of filing of the suit. Except contending that though the plaintiff failed to establish that unregistered sale deed is forged and fabricated, the Trial Court has cancelled the alleged documents, no material is placed by the defendants either before the Trial Court or before this Court. On the other hand, to establish his case, the 25 MB,J & MGP,J CCCA Nos.157 & 26/2015 plaintiff not only examined himself as PW1 but also examined PWs 2 and 3. Apart from the oral evidence, the plaintiff has placed his reliance on as many as 116 documents. When plaintiff placed relevant evidence with regard to fake stamp vendor (Exs.A60 and A61), fake notary and fake validation (Exs.A56, A57 and A86 to A88), it cannot be said that the plaintiff has failed to prove that unregistered sale deed is forged and fabricated, more particularly, when the defendants have not place any contrary evidence to disprove Exs.A56, A57, A60, A61 and A86 to A88.
27. It is to be seen that though defendants are claiming that plaintiff has executed unregistered sale deed dated 16.02.1998, which was alleged to have been validated in the year 2001, the plaintiff has been continuously paying property tax in respect of suit schedule property to the concerned authorities even after alleged execution of unregistered sale deed dated 16.02.1998 as evident from Exs.A2 to A25. Even the plaintiff has paid the electricity bills in respect of suit schedule property as evident from Exs.A32 to A34. If at all the plaintiff has executed unregistered sale deed dated 16.02.1998, there is absolutely no necessity for the plaintiff to pay the property tax and electricity bills to the concerned authorities in respect of suit schedule property.
28. The defendant No.2 is primarily relying on Ex.A35 which is titled as "Agreement of Sale - cum - General Power of Attorney". A 26 MB,J & MGP,J CCCA Nos.157 & 26/2015 perusal of Ex.A35 discloses that as per clause 5, the vendor shall make himself available at all times for execution of any document more particularly in the nature of registered sale deed. But as can be seen from Exs.A36 and A37, which were executed by virtue of Ex.A35, the vendor i.e., defendant No.1 has not executed them but in fact defendant No.1, who is alleged to be Agreement of Sale - cum - GPA holder has executed Exs.A36 and A37 in the capacity of original owner, which is quite contrary to clause 5 of Ex.A35. Thus, Exs.A36 and A37 have no legal sanctity. At this juncture it is appropriate refer to a decision of the Honourable Supreme Court in Suraj Lamps and Industries Private Limited v. State of Harayana and others 5 the Honourable Supreme Court observed as under:
"16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
29. In view of the principle laid down in the above said decision, it can be held that transactions in the nature of GPA do not convey 5 2009 (7) SCC 363] 27 MB,J & MGP,J CCCA Nos.157 & 26/2015 any title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. Though Ex.A35 is titled as "Agreement of Sale - cum - General Power of Attorney", it is appearing to be in the nature of "sale deed". The said document was executed between the parties for a total sale consideration of Rs.86,70,000/-. As per the said document, the total sale consideration of Rs.86,70,000/- was alleged to have been paid by the GPA holder. When total sale consideration is paid by the GPA holder, nothing prevents the parties from executing a registered sale deed rather than "Agreement of Sale - cum - General Power of Attorney".
30. In the cross examination, defendant No.2, who is examined as DW1, admitted that the document under which defendant No.1 purchased the suit property is that of 1971. But in fact the document under which defendant No.1 alleged to have purchased the suit schedule property from the plaintiff is in the year 1999 but not 1971.
31. As per the evidence of DW1, he has applied for encumbrance certificate from 1995-2008 in respect of suit schedule property and they show "NIL". DW1 further clarifies that he has seen the document through which plaintiff sold the property to defendant No.1 and it was a registered document. In fact, the alleged sale deed through which plaintiff alleged to have alienated the suit 28 MB,J & MGP,J CCCA Nos.157 & 26/2015 schedule property even as per the version of defendant No.1 is unregistered sale deed. If at all the document through which plaintiff alleged to have alienated the suit schedule property to defendant No.1, then certainly the encumbrance certificates obtained by DW1 would reflect the name of defendant No.1 but there is no such instance in the present case. DW1 specifically pleads that he has not filed any application for mutation before the MCH to transfer the suit schedule property in his name.
32. Though defendant Nos.3 and 4 claiming that they have purchased the suit schedule property by virtue of registered sale deeds, DW3 admitted in his cross examination that he did not see the MCH mutation record recorded in the name of his vendor or vendor's vendor in their names in respect of suit property. When a purchaser is intending to purchase a property, he is bound to verify the previous title of his vendor and also the title of his vendor's vendor. It is not out of place to note here that 'buyer be aware'.
33. It is the specific contention of the defendant Nos.3 and 4 that since the plaintiff is seeking relief to declare the unregistered sale deed dated 16.02.1998 as null and void, the plaintiff shall file the said document at the time of the filing the plaint. Thus, the Trial Court committed a gross error in granting the relief in favour of the plaintiff where the Order VII Rule 14 of The Code of Civil Procedure 29 MB,J & MGP,J CCCA Nos.157 & 26/2015 mandates that whenever a plaintiff sues upon a document or relies upon a document as the basis of his claim in the suit, the document is required to be delivered to the court along with the plaint. In this connection, learned counsel for the defendant Nos.3 and 4 relied upon decisions of High Court for the erstwhile State of Andhra Pradesh in Katakam Vishwanath v. Katakam China Srirama Murthy 6, Pavuluru Mohan Rao v. Gudipati Krishnamma and others 7, Nyayapathi Srinivas Raghavan v. Burra Adinarayana Sastry 8. As stated supra, the alleged unregistered sale deed, which is sought to be declared as null and void, is in possession of the defendants. Perhaps that might be the reason for the plaintiff for not filing the said document at the time of filing of the plaint. Sub Clause (2) of Order VII Rule 14 of The Code of Civil Procedure prescribes that where any such document is not in possession or power of the plaintiff, he shall, wherever possible, state in whose possession it is. As can be seen from the record, the plaintiff has specifically stated in the plaint that defendant Nos.3 and 4 have filed a document on 20.04.2009 in O.S.No.378 of 2009. When the alleged unregistered sale deed is not in possession of the plaintiff, he may not be in a position to produce the said document along with the plaint at the relevant point of time. When the plaintiff is not in a possession of such document, he shall at least aver as to 6 2004 AIR (AP) 522 7 2014 (2) ALD 29 8 2012 (6) ALD 452 30 MB,J & MGP,J CCCA Nos.157 & 26/2015 in whose possession the said document is in. It appears that the reason behind the above said provision in asking the plaintiff to file the relevant documents at the time of filing of the plaint itself is that permitting production of documents directly at the stage of cross-examination of a witness and/or a party to a suit would amount to springing a surprise and hence, it is impermissible. However, in the present case, the defendants are not disputing the existence of the said unregistered sale deed, dated 16.02.1998. Therefore, the principle laid down in the above said decisions cannot be made applicable to the facts of the present case.
34. One of the grounds raised by the defendant Nos.2 to 4 is that plaintiff and defendant No.1 are blood relatives, as such, defendant No.1 adopted written statement filed by defendant No.2 but did not come to witness box and did not even deny the averments in the plaint. It is further contention of the defendant Nos.2 to 4 that plaintiff and father of defendant No.1 are own brothers and thereby they both colluded with each other and executed unregistered sale deed dated 16.02.1998; thereafter defendant No.1 executed registered agreement of sale - cum - GPA in favour of defendant No.2 giving powers to look after the property.
35. It is observed that filing of a memo adopting written statement by defendant No.1 is nothing but defendant No.1 sailing with defendant No.2. Since the defendant No.2 has denied the 31 MB,J & MGP,J CCCA Nos.157 & 26/2015 plaint averments, it is deemed that even defendant No.1 has denied the plaint averments. Merely because defendant No.1 did not enter into witness box, it cannot be said that defendant No.1 and plaintiff have colluded with each other. Except, filing memo by defendant No.1 adopting written statement of defendant No.2, defendant No.1 has not come forward to refute the contentions of the plaintiff. These acts of defendant No.1 would support the case of defendant Nos.2 to 4 rather than supporting the case of plaintiff. As can be seen from the record, the plaintiff has initiated criminal proceedings not only against defendant Nos.2 to 4 but also against defendant No.1, who is none other than son of his elder brother. If at all there was any amount of collusion among plaintiff and defendant No.1 by virtue of their relationship, then certainly plaintiff would have omitted the name of defendant No.1 in the complaint lodged by him against alleged forgery and fabrication of documents case. Furthermore, the Defendant Nos.3 and 4 filed O.S.No.378 of 2009 on the file of learned VII Junior Civil Judge, City Civil Court, Hyderabad against plaintiff, defendant Nos.1 and 2, wherein defendant No.2 therein (defendant No.1 herein), filed written statement admitting the claim of defendant Nos.3 and 4. At the cost of repetition, we would like to observe that if at all there is any amount of collusion among plaintiff and defendant No.1 by virtue of their relationship, then certainly defendant No.1 would not have admitted the suit claim in O.S.No.378 of 2009 on the file 32 MB,J & MGP,J CCCA Nos.157 & 26/2015 of learned VII Junior Civil Judge, City Civil Court, Hyderabad filed by defendant Nos.3 and 4. Though defendant Nos.3 and 4 file the suit in O.S.No.378 of 2009 they could not say as to how they acquired the said property. In these circumstances, an adverse inference can be drawn against the defendants that there can be any amount of collusion between defendant No.1 and defendant Nos.2 to 4 but not between plaintiff and defendant No.1, more particularly, when plaintiff has initiated criminal proceedings not only against defendant Nos.2 to 4 but also against defendant No.1. Hence, the above contentions raised by learned counsel for the defendants do not hold water.
36. In view of the above facts and circumstances, this Court is of the view that the Trial Court has considered all the relevant aspects in proper perspective and passed a well reasoned Judgment and thereby there is no necessity to interfere with the impugned common judgment. Defendant Nos.2 to 4, who are the appellants in both these Appeals have failed to establish any of the grounds raised in these Appeals. Hence, the Appeals are devoid of merits and liable to be dismissed.
37. Accordingly, C.C.C.A.Nos.157 and 26 of 2015 along with I.A.No.1 of 2024 in C.C.C.A. No.157 of 2015 are dismissed. There shall be no order as to costs.
33 MB,J & MGP,J CCCA Nos.157 & 26/2015 As a sequel, pending miscellaneous applications, if any, shall stand closed.
__________________________________ MOUSHUMI BHATTACHARYA, J ________________________ M.G.PRIYADARSINI, J Date: 06.09.2024 AS