Andhra Pradesh High Court - Amravati
Konduri Peda Gangi Reddy vs Gangarapu Yedukondala Reddy on 18 December, 2019
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Second Appeal No.467 of 2019
JUDGMENT:
This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is filed by the unsuccessful plaintiff assailing the decree & judgment, dated 23.04.2019, of the learned XIII Additional District Judge, Narasaraopet, Guntur District,passed in A.S.no.27 of 2014.
1.1 By the said decree & judgment, the learned Additional District Judge, Narasaraopet, allowed the first appeal with costs and had set aside the decree & judgment, dated 25.03.2014, of the learned Additional Senior Civil Judge, Narasaraopet, passed in O.S.no.244 of 2010 and dismissed the said suit.
2. I have heard the submissions of SriG.V.S.Mehar Kumar, learned counsel appearing for the appellant/plaintiff ('plaintiff', for brevity); and, of Sri Sridhar Tummalapudi, learned counsel appearing for the 1st respondent/1st defendant ('1st defendant', for brevity) at the stage of admission.I have perused the material record.
3. Thissecond appeal is coming up for consideration/judgment on the following limited aspects: - 'Whether the questions, which are raised in the memorandum of grounds of appeal or any other substantial questions of law are involved? And, if so, whether the second appeal deserves to be admitted?'
4. The appellant is the plaintiff. The 1st respondent herein is the 1st defendant. The parties in this second appeal shall hereinafter be referred to as arrayed in the original suit, for convenience and clarity.
5. To begin with, it is necessary to take note of the respective pleadings/cases of the parties and the events that led to the filing of this second appeal by the plaintiff.
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6. The case of the plaintiff as is borne out by the material record,in brief, is this: 'The plaint schedule property originally belonged to one Madduri China Chenna Reddy. He purchased the same under a registered sale deed, dated 24.04.1973, from Kondrasi Kotaiah and others. Later, for his family benefit&necessity and for discharge of his debts, he offered,on 11.09.2006, to sell the plaint schedule property to the plaintiff for a total consideration of Rs.1,25,000/-. On the even date, the plaintiff paid a sum of Rs.1,20,000/- to the said China Chenna Reddy towards part of sale consideration.As the total consideration except a paltry sum of Rs.5,000/-was paid, the said vendor,having executed an agreement of sale,delivered possession of the schedule property to the plaintiff. No time is stipulated for payment of the balance of consideration. The plaintiff is always ready and willing to perform his part of the contract and pay the balance of consideration of Rs.5,000/- and obtain a regular registered sale deed. He demanded his vendor many a time to execute a regular sale deed by receiving the balance of sale consideration. While so, the vendor died intestate, on 11.12.2008, leaving behind the defendants 2 to 7 as his successors. After his death, the plaintiff demanded defendants 2 to 7 personally and also through mediators to receive the balance of consideration and execute a regular sale deed. The defendants 2 to 7had received the balance of sale considerationand executed a registered sale deed, on 13.03.2009, in favour of the plaintiff. Thus, the plaintiff acquired the title and possession over the plaint schedule propertyand iscontinuing in possession and enjoyment of the plaint schedule property in his own right to the exclusion of all others. In the month of November, 2009, the plaintiff came to know that the 1st defendantobtained a decree for specific performance of a contract of sale against the said vendor, China Chenna Reddy, and the 5th defendant herein in O.S.no.342 of 2006 on the file of the Court of the Additional Senior Civil Judge, Narasaraopet. The plaintiff made enquiries and obtained the certified copy of the said decree, on 27.11.2009, and came to know that the suit was 3 MSRM, J S.A.no.467 of 2019 decreed on 14.08.2007. The so-called decree passed in O.S.no.342 of 2006 is nothing but a collusive ex parte decree obtained to defeat the right of the plaintiff over the schedule property. Neither the 5th defendant nor the other defendants disclosed to the plaintiff about the said decree. Now the 1st defendant is pursuing his remedy against the defendants 2 to 7 for getting a registered sale deed and obtaining delivery of the plaint schedule property. The collusive decree, which was obtainedbehind the back of the plaintiff, createda cloud on the right of the plaintiff over the schedule property. If the said decree is executed, the plaintiff will be ousted from the schedule property. The plaintiff asked defendants 2 to 7 about the agreement of sale in the name of the 1st defendant. They said that their father never offered the plaint schedule property for sale to anybody except to the plaintiff. But, the defendants 2 to 7 did not take any steps either for cancellation of the said decree or to safeguard the title of the plaintiff over the plaint schedule property. Now, the 1st defendant started making efforts to dispossess the plaintiff from the plaint schedule property. For the said purpose, he also approached Rompicherla police with a false complaint. He also moved a petition before the Tahasildar to prevent the revenue people from mutating the records and issuing pattadar passbook & title deed. Therefore, the plaintiff is constrained to file the suit for cancellation of the decree in O.S.no.342 of 2006 and for declaration of his title over the plaint schedule property and for consequential permanent injunction.'
7. The defendants 2 to 7 remained ex partebefore the trial Court. 7.1 Apart from the relationship and the title of late Madduri China Chenna Reddy over the schedule property, which are admitted, the case of the 1st defendant, in brief, is as follows: 'The plaintiff is the younger brother of the 2nd defendant and maternal uncle of the defendants 2 to 7. The defendants 2 to 7 introduced the plaintiff to create this false litigation. The suit is a purely 4 MSRM, J S.A.no.467 of 2019 collusive suit engineered by the defendants 2 to 7 with the help of the plaintiff to knock away the suit schedule property even by playing fraud upon the Court. The sale deed, dated 13.03.2006,executed in favour of the plaintiff is hit by the doctrine of lispendenseas per the provision under Section 52 of the Transfer of Property Act, 1882. The sale deed is void ab initio and does not confer any title, interest and right on the plaintiff in respect of the plaint schedule property. The suit filed by a stranger based on a created agreement of sale, for cancellation of the decree in O.S.no.342 of 2006 is not sustainable under law. The plaintiff cannot take the support of the said sale deed, dated 13.03.2009, which was created while E.P.no.26 of 2008 in O.S.no.342 of 2006 was pending before the Additional Senior Civil Court, Narasaraopet. Thus, the plaintiff has no locus standi to file the suit. The agreement of sale, dated 11.09.2006, said to have been executed by late Madduri China Chenna Reddy in favour of the plaintiff is a forged and created document. The attitude of the plaintiff in not obtaining a regular sale deed from his original vendor speaks volumes of the falsehood in respect of the alleged agreement of sale, dated 11.09.2006. The conduct of the plaintiff and the defendants 2 to 7 in bringing into existence, the sale deed, dated 13.03.2009, during the pendency of the E.P.no.26 of 2008 in O.S.no.342 of 2006 positively proves that the agreement of sale and sale deed were created.Madduri China Chenna Reddy never delivered possession of the schedule property to the plaintiff. The plaintiff is never in possession of the schedule property even by virtue of the alleged agreement of sale. The plaintiff approached the Court with unclean hands. Late Madduri China Chenna Reddy made an offer to this defendant to purchase the schedule property and this defendant accepted the said offer. After negotiations, the bargain was settled and later, Madduri China Chenna Reddy agreed to sell the schedule property for a total consideration of Rs.1,50,000/-. Having received earnest amount of Rs.14,000/- from this defendant, late Madduri China Chenna Reddy executed the agreement of sale, dated 16.10.2006, in favour of this 5 MSRM, J S.A.no.467 of 2019 defendant. The 3rd defendant also attested the said agreement of sale along with another attestor. This defendant demanded his said vendor on several occasions to execute a regular sale deed in his favour. This defendant got issued a legal notice, dated 26.10.2006, to late Madduri China Chenna Reddy calling upon him to execute a regular sale deed after receiving the balance sale consideration. After receiving the legal notice, the deceased Madduri China Chenna Reddy had kept quiet. But, to the surprise of this defendant, the 5th defendant got issued a legal notice, dated 27.10.2006, to this defendant and late China Chenna Reddy.She filed a caveatO.P against this defendant. This defendant was constrained to file the suit in O.S.no.342 of 2006 on the file of the Court of the Additional Senior Civil Judge, Narasaraopet, for specific performance of contract of sale against late China Chenna Reddy and the 5th defendant. The defendants therein remained exparte. The said suit was decreed on 14.8.2007. This defendant deposited the balance sale consideration of Rs.1,36,000/-, as directed by the Court, within the time stipulated by the Court. Late China Chenna Reddy refused to obey the decree. In pursuance of the decree passed by the Court, this defendant filed E.P.no.26 of 2008. Madduri China Chenna Reddy died on 11.12.2006, i.e., subsequent to the filing of the EP. This defendant filed E.A.no.29 of 2009 in the said E.P. to implead the defendants 2 to 7 herein as the legal heirs of late China Chenna Reddy. The defendants, who are the judgment debtors in E.P.no.26 of 2008, filed their counters in the said E.A. The said application was allowed and defendants 2 to 7 herein were impleaded as the parties to the EP. The Executing Court rejected the contentions of the defendants 2 to 7 and passed suitable directions after considering the draft sale deed and directed this defendant to deposit the stamp duty and registration fee for having a sale deed registered. The plaintiff with the assistance of the defendants 2 to 7 created the documents in his favour to defeat all the above stated legal proceedings. There is no whisper about the agreement of sale, dated 11.09.2006, or sale 6 MSRM, J S.A.no.467 of 2019 deed,dated 13.03.2009, in the entire proceedings in O.S.no.342 of 2006. The defendants 2 to 7 are aware of the suit proceedingssince the inception and even as on the date of the agreement of sale in favour of this defendant. And, after creating the sale deed, dated 13.03.2009, in his favour, the plaintiff started attempts for mutation of the property in his name in the revenue records. This defendant got issued a legal notice, on 25.01.2010, to the Tahasildar, Rompicherla, the District Collector, Guntur, the plaintiff and the defendants 2 to 7,stating all the material facts. The plaintiff and other defendants received the legal notice, but kept quiet. There is no cause of action to file the suit. The decree in O.S.no.342 of 2006 is not a collusive decree. If there is collusion between this defendant andthe other defendants as alleged by the plaintiff, there would have been no necessity for this defendant to file a suit and execution petition as in such a case, he could have straightaway obtained a regular sale deed from the other defendants instead of spending long time and huge amount unnecessarily. There is no collusion between the 1st defendant and the other defendants as alleged by the plaintiff in the suit. The allegations in the plaint are vague. The plaintiff, who is the close relative of the defendants 2 to 7,is playing havoc with their assistance. The litigation is a sheer abuse of process of law.'
8. Taking into consideration the above pleadings, the trial Court framed the following issues:
i) Whether the registered sale deed, dated 13.3.2009, executed by the defendants 2 to 7 in favour of the plaintiff is true, correct and binding on D1?
ii) Whether the plaintiff is in possession and enjoyment of the plaint schedule property?
iii) Whether the plaintiff is entitled for cancellation of the decree, dt.14.8.2007 passed in O.S.no.342/2006 on the file of Addl. Senior Civil Judge, Narasaraopet?
iv) Whether the plaintiff is entitled for perpetual injunction as prayed for?7
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v) To what relief?
[Reproduced verbatim]
9. At trial, the plaintiff was examined as PW1; his supporting witnesses were examined as PWs 2 to 4; and, exhibits A1 to A3 were marked. The 1st defendant was examined as DW1. Exhibits B1 to B16 were marked on his side. Exhibit A1 is the Possessory Agreement, dated 11.09.2006; exhibit A2 is the sale deed, dated13.03.2009; and, exhibit A3 is the certified copy of the decree in O.S.no.342 of 2006. Exhibit B1 is the CC of agreement of sale, dated 16.10.2006; exhibit B2 is the CC of legal notice, dated 26.10.2006; exhibit B3 is the CC of legal notice; exhibit B4 is the CC of Caveat filed by the 5th defendant; exhibit B5 is the CC of plaint in O.S.no.342 of 2006; exhibit B6 is the CC of decree in O.S.no.342 of 2006; exhibit B7 is the CC of petition in E.P.no.26 of 2008; exhibit B8 is the CC of counter filed by defendants 3 & 4 in E.P.no.26 of 2008; exhibit B9 is the CC of counter filed in EA no.29 of 2009 in EPno.26 of 2008; exhibit B10 is the CC of notice, dated 25.01.2010; exhibit B11 is the bunch of postal acknowledgments (10) in number; exhibit B12 is the registered sale deed, dated 15.11.2010; exhibit B13 is the CC of petition, affidavit and order, dated 31.01.2011, in EA.No.6 of 2011; exhibit B14 is the CC of delivery receipt, dated 31.01.2011; exhibit B15 is the CC of proceedings of Court Amin; and, exhibit B16 is the letter, dated 27.12.2012, from Joint Registrar-I, Vijayawada.
10. On appreciation of pleadings and the oral & documentary evidence, the trial Court answered the issues in favour of the plaintiff and decreed the suit in favour of the plaintiff and also granted a perpetual injunction in favour of the plaintiff restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiffover the schedule property. The aggrieved 1stdefendant preferred the first appeal in A.S.no.27 of 2014 on the file of the Court of the learned XIII Additional District Judge, Narasaraopet. The learned Additional District Judge, vide decree & judgment, which are 8 MSRM, J S.A.no.467 of 2019 impugned in this second appeal, having considered the facts and evidence, in detail, allowed the said first appeal and had set aside the decree & judgment of the trial Court and dismissed the suit of the plaintiff with costs. Aggrieved thereof, the unsuccessful plaintiff filed this second appeal.
11. Learned counsel for the plaintiff contended as follows: 'The decree & judgment of the lower appellate Court are contrary to law, weight of evidence and probabilities of the case. The Court below failed to appreciate the material record in correct perspective. The lower appellate Court erred in dismissing the suit and in setting aside the well-consideredjudgment &decree of the trial Court, without giving cogent reasons. The Court below ought to have seen that exhibit B1,which is much later to the plaintiff's agreement of sale, is not proved by examining any witnesses associated with the said document. The lower appellate Court should have considered that the plaintiff has got a registered sale deed in respect of the plaint schedule property.The reasoning of the Court below is unsound and unsustainable. Hence, the impugned decree &judgment are liable to be set aside and the decree &judgment of the trial Court are to be restored. The first appellate Court reversed the decree &judgment of the trial Court. There are no concurrent findings of facts. The Court below failed to appreciate the case of the plaintiff that the decree for specific performance obtained by the 1st defendant against the deceased vendor and 5th defendant herein is a collusive decree and that as the agreement of sale of this plaintiff, which is prior in point of time, is genuine, the defendants 2 to 7 executed a registered sale deed in favour of the plaintiff and that the plaintiff is not aware of the earlier decree in favour of the 1st defendant as the defendants suppressed the said fact.'
12. Having so contended, it is submitted on behalf of the plaintiff that the following substantial questions of law are involved in this second appeal: 9
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i) Whether the lower appellate court is justified in reversing the findings of the trial Court with regard to registration of the property in favour of the appellant pending the E.P proceedings is binding on the 1st defendant or not?
ii) Whether the lower appellate court should have decided the finding that the judgment and decree in O.S.no.342 of 2006 is binding on the appellate or not where he is not a party to the said suit?
iii) Whether the lower appellate court is justified in reversing the finding theEx.A1 is proved by examining witnesses on the document and disbelieving the Ex.B1 by the trial court?
iv) Whether the lower appellate court is in justified in giving finding that the Ex.B1 is valid without proving the said document by examining the witnesses with regard to existing of the said Ex.B1?
v) Whether the lower appellate court is in justified in reversing the finding of the permanent injunction against the 1st respondent who is not in possession of the same without giving cogent reasons?
[Reproduced verbatim]
13. The following material facts and aspects are discernable from the pleadings, submissions and the material record.The 2nd defendant is the wife of late China Chenna Reddy. The defendants 3 to 7 are their children. On the basis of an agreement of sale, dated 16.10.2006, said to have been executed by late China Chenna Reddy, who is admittedly the owner of the schedule property, the 1st defendant instituted a suit for specific performance against the said vendor and the 5th defendant herein, in O.S.No.342 of 2006 on the file of Additional Senior Civil Court, Narasaraopet. However, the said suit was instituted after issuance of a notice and on the 5th defendant lodging a caveat. The said suit was decreed exparte on 14.08.2007. Having deposited into Court, the balance of sale consideration, as per the terms of the decree, the 10 MSRM, J S.A.no.467 of 2019 1stdefendant filed E.P.No.26 of 2008 for obtaining a sale deed through Court. Since China Chenna Reddy died, the defendants 2 to 7, who are his legal heirs, were impleaded in the said E.P.According to the plaintiff, he, having come to know of the said decree in the former suit, had obtained a certified copy of the same and filed the present suit for cancellation of the said decree and for perpetual injunction interalia contending that late China Chenna Reddy, during his life time, executed a prior possessory agreement of sale, dated 11.09.2006, in his favour, having agreed to sell the schedule property for a total consideration of Rs.1,25,000/- and received Rs.1,20,000/-, and that he failed to execute a sale deed during his life time and that on his intestate death, the plaintiff made demands in the presence of mediators and that on that, the defendants 2 to 7 executed a regular registered sale deed in respect of the schedule property on 13.03.2009, after receiving the balance sale consideration of Rs.5,000/- and that the decree in the former suit in favour of the 1st defendant is a collusive decree and that, therefore, it is liable for cancellation.
14. In this backdrop, it is to be noted that the initial onus of proof and the legal burden are on the plaintiff to establish that the decree in the former suit favour of the 1stdefendant is a collusive decree.The averments in the plaint and the evidence that is culled out by the Courts below in the judgments, reflect that it is simply stated by the plaintiff that the decree in favour of the 1st defendant in the former suit is a collusive decree and that when the plaintiff questioned the defendants 3 to 7 about the said decree, they simply stated that their father never offered for sale, the schedule property to anybody else except the plaintiff and that the defendants 2 to 7 did not take any steps either for cancellation of the said decree in favour of the 1st defendant or to safeguard the title of the plaintiff over the schedule property. Except the bald averments, no other further averments were made in support of the contention that the decree in the former suit is a collusive decree. No reasons are forthcoming from the plaintiff for the said defendants 2 to 7, who are his close 11 MSRM, J S.A.no.467 of 2019 relatives, colluding with the 1st defendant, for the 1st defendant obtaining a decree in the former suit, detrimental to the interests of the plaintiff. No reasons much less valid reasons are pleaded or established and no motive is attributed either to the original owner, China Chenna Reddy, or the defendants 2 to 7 for colluding with the 1st defendant and acting against the interests of the plaintiff. When collusion in obtaining a decree is the case, the plaintiff is obliged, under facts and in law, to plead the material particulars like reasons for collusion and motive, if any, specifically and a mere vague pleading of collusion bereft of details and repetition of the same in the evidence does not advance the case of the plaintiff any further, more particularly, when the plaintiff is the younger brother of the 2nd defendant, i.e., the brother-in-law of the late China Chenna Reddy, the original owner, who suffered the decree in the former suit. Though exhibit A1 agreement being relied upon by the plaintiff is dated 11.09.2006, till the former suit is decreed on 14.09.2007 and an execution application is filed by the 1st defendant, the plaintiff had kept quiet and did not take steps either to obtain a sale deed or to sue for specific performance, either the vendor China Chenna Reddy during his life time or the defendants 2 to 7, after his death.Only after the execution petition is filed in the former suit and the execution proceedings reached an advanced stage, the sale deed was obtained by the plaintiff in the year 2009, directly from the defendants 2 to 7.The defendants 2 to 7 are admittedly aware of the decree in the former suit and also the pending execution proceedings initiated by the 1st defendant as they have filed a counter and opposed their impleadment in the execution proceedings. Yet, they have executed the registered sale deed, dated 13.03.2009, in favour of the plaintiff, who is closely related to them. If really the defendants 2 to 7 colluded with the 1st defendant and the decree in the former suit is a collusive decree, as rightly contended, the defendants 2 to 7 ought not to have joined hands with the plaintiff and executed a regular registered sale deed in his favour during the pendency of the E.P., filed by the 12 MSRM, J S.A.no.467 of 2019 1st defendant pursuant to the decree for specific performance granted in his favour in the former suit. As already noted, no reasons, much less valid reasons, are forthcoming for either late China Chenna Reddy or the defendants 2 to 7 colluding with the 1st defendant, who is a stranger, and to defeat the claim, if any, of the plaintiff, who is no other than the brother-in-law of the said China Chenna Reddy and the younger brother of the 2nd defendant.As on the date of the decree in the former suit and the initiation of the execution proceedings, in E.P.No.26 of 2008, by the 1st defendant, the plaintiff is only an agreement holder under exhibit A1, dated 11.09.2006, even assuming for a moment that the said agreement is genuine.It is axiomatic that under an agreement of sale, no title passes.The 1st defendant instituted the former suit for specific performance in the year 2006. The plaintiff obtained the sale deed in respect of the schedule property from the defendants 2 to 7 in the year 2009, as already noted.By which time, the former suit of the 1st defendant was decreed and the E.P filed in the year 2008 for execution of the said decree is pending before a competent civil Court.Under Section 52 of the Transfer of Property Act, 1882, which deals with the doctrine of lispendens, any transfer pendentelite, cannot affect the rights of a party arising out of the result of the suit and the transferee would be bound by the ultimate result of the litigation even if he had no notice of the litigation at any stage. Therefore, the rights of the 1st defendant, the decree holder in the former suit, are not affected by the sale deed of the plaintiff, which was executed by the defendants 2 to 7, who are the legal heirs of the 1stjudgment debtor in the former suit.All these factors cumulatively show that the plaintiff failed to establish that the decree in the former obtained by the 1st defendant is a collusive decree. On the other hand, it is obvious that there is collusion between the plaintiff and the defendants 2 to 7, who are closely related. It is also borne out by record that in the execution proceedings initiated by the 1stdefendant, delivery of the schedule property was ordered and the schedule property was delivered to 13 MSRM, J S.A.no.467 of 2019 the1st defendant through the process of the Court.The said fact is evident from Exhibit B14- certified copy of the delivery receipt, dated 31.01.2011, and Exhibit B15-proceedings of the Field Assistant of the Court. The said subsequent event is also a strong circumstance apart from the plaintiff's failure to prove the case, as required under facts and in law, to non-suit the plaintiff.
15. Having gone through the judgments of the Courts below, this Court finds that the trial Court erred in appreciating the facts &evidence correctly and the legal position in proper perspective and that, on the other hand, the 1stappellate Court, having correctly and properly appreciated the facts &evidence and also the legal position, rightly dismissed the suit of the plaintiff after setting aside the decree & judgment of the trial Court. For the aforesaid reasons coupled with the findings supra, this Court finds itself in agreement with the reasoning and the findings of the 1stappellate Court and accordingly holds that the factual findings recorded by the Court below do not give rise to any questions of law, leave alone, substantial questions of law.
16. On the above analysis and on a careful reading of the questions of law formulated in the grounds of second appeal, this Court finds that the questions being sought to be raised are not substantial questions of law and that the said questions are not even pure questions of law; but, are either only mixed questions of fact & law or pure questions of fact. Therefore, this Court further finds that no question of law much less a substantial question of law is involved requiring interference with the decree & judgment impugned. Accordingly, this Court holds that there is no substance in the questions being sought to be raised. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratios in the decisions in Gurudev Kaur v. Kaki1and Dagadabai (dead) by LRs. v. Abbas 1 AIR 2006 SC 1975 14 MSRM, J S.A.no.467 of 2019 Alias GulabRustumPinjari2. In the case on hand, after careful examination of the pleadings, evidence and the contentions, as this Court finds that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of the narrow compass of Section 100 of the Code of Civil Procedure.
17. In the result, the Second Appeal is dismissed.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this appeal shall stand closed.
_____________________ M. SEETHARAMA MURTI, J 18.12.2019 RAR 2 (2017) 13 SCC 705