Ananthula Laxmamma vs Ananthula Buchi Ramulu on 8 July, 2024

[Cites 36, Cited by 0]

Telangana High Court

Ananthula Laxmamma vs Ananthula Buchi Ramulu on 8 July, 2024

Bench: G.Radha Rani

      THE HONOURABLE DR.JUSTICE G.RADHA RANI

                     SECOND APPEAL No.570 of 2009
JUDGMENT:

This Second Appeal is filed by the appellant-respondent-plaintiff aggrieved by the judgment and decree dated 08.04.2009 passed in A.S.No.04 of 2006 by the II Additional District Judge, Nalgonda at Suryapet, reversing the judgment and decree dated 23.12.2005 in O.S.No.16 of 2001 passed by the Senior Civil Judge at Suryapet.

2. The parties are hereinafter referred as arrayed before the trial court.

3. The plaintiff filed the suit for declaration of title and perpetual injunction with regard to the suit schedule property which was in two bits one Ac.2-00 gts and other 90 Sq. Yds. in Sy.No.44 dry land situated at Suryapet Revenue Village. As per the contention of the plaintiff, the defendant No.1 was her husband and their marriage was solemnized in the year 1964, as per the rites and customs prevailing in their community. At the time of marriage, the mother and brothers of plaintiff gave Ac.4-00 gts. of dry land situated at Tudimudi Village and 10 thulas of gold to the plaintiff towards pasupu-kumkuma. Some years after the marriage, the plaintiff and defendant No.1 sold Ac.4-00 gts. of dry land situated at Tudimudi (V) of Shaligouraram Mandal which was the stridhana property of the plaintiff and with that money, purchased the suit land in two bits, Ac.2-00 gts. vide registered document No.1098 of 1976 on 10.06.1976 and 90 Sq. Yds. of 2 Dr.GRR, J SA_570_2009 land in the same survey number from the same owners i.e., K. Pichaiah and Mattaiah vide document No.594 of 1978 on 16.06.1978. Thus, the suit land was purchased with the stridhana property of the plaintiff and defendant No.1 was not having any right over the same. The two original sale deeds were in the custody of defendant No.1. After the marriage, the plaintiff and defendant No.1 lived together under one roof as husband and wife and they were blessed with a daughter by name Padma Kumari. After that the defendant No.1 started saying that there were no male issues and that he wanted to contract second marriage and contracted second marriage in the year 1980. Since then, the plaintiff was living in a separate house at Suryapet. The suit land was under Ayakut of Musi canal. The defendant No.1 on behalf of the plaintiff used to give the suit land to others on crop share basis and the plaintiff was taking her share from the persons whoever were cultivating. The defendant No.2 used to look after agricultural operations with the cultivators and after deducting the agricultural expenses, the remaining amount was shared equally by the cultivator and the plaintiff. Thus, she was in actual possession and enjoyment of the suit land. After purchase, the suit schedule property was mutated in the name of the plaintiff as pattedar and possessor. The defendant No.1 gradually changed his attitude towards the plaintiff and developed an indifferent attitude towards her and with an intention to cause loss to the plaintiff was trying to sell the suit land to others. On coming to know about it, the plaintiff questioned the defendant No.1. He initially denied 3 Dr.GRR, J SA_570_2009 the same. When she came to know that the defendant No.1 was making hectic efforts to sell the suit land to defendants 2 to 4, who were the real estate businessmen, the plaintiff again questioned the defendant No.1. He denied the title of the plaintiff and stated that he got transferred the suit land in his name and they he would sell away the same. The plaintiff submitted that no amount was spent by defendant No.1 for purchase or development of the suit land. The suit land was purchased with the stridhana property of the plaintiff, which was given by her mother and brothers. On enquiry, she came to know that defendant No.1 in collusion with the Revenue Authorities had got mutated the suit land in his name in the year 1984-1985 without any right or documents. The plaintiff had not executed any document in favour of the defendant No.1. The defendant No.1 got mutated his name behind the back of the plaintiff in collusion with the Revenue Authorities. As such, the said entries in the revenue records were liable to be cancelled and prayed to decree the suit in her favour.

4. Defendants 2 to 4 remained ex-parte.

5. The defendant No.1 filed written statement admitting the relationship with the plaintiff, but denying that the plaintiff was the owner and possessor of the suit schedule property. He contended that the boundaries shown with regard to the suit schedule property in the plaint were not true. As on the date of their marriage, the plaintiff's father Bikki Buchi Ramulu was no more and the 4 Dr.GRR, J SA_570_2009 marriage of the plaintiff was performed by her maternal uncle MolkapuriYagaiah at Mamidipally Village with the help of the junior paternal uncle of the plaintiff. Bikki Buchi Ramulu during his lifetime got Ac.2-00 gts of wet land and Ac.16- 00 gts of dry land. After the death of Bikki Buchi Ramulu, his sons partitioned the properties by metes and bounds and each one got Ac.1-00 gt. of wet land and Ac.8-00 gts. of dry land. The eldest brother of the plaintiff immediately after partition sold his share of Ac.1-00 gt. of wet land and Ac.8-00 gts. of dry land situated at Tudimidi Village to third parties and migrated to Mashireddipally Village near Panigiri to eke out his livelihood and he died at Mashireddipally Village. Bikki Buchi Ramulu had got meagre properties. He denied that Bikki Buchi Ramulu or the family members of the plaintiff gave any property to the plaintiff towards pasupu-kumkuma and that the plaintiff got Ac.4-00 gts of land at Tudimidi Village and with the said sale proceeds, purchased the suit land. 5.1. He further contended that he himself purchased the suit land. The eastern side Ac.2-00 gts piece of suit land was purchased by defendant No.1 on 16.11.1974 from Kamalla Pichaiah, son of Narsaiah, resident of Suryapet for a price of Rs.5,500/- under a sale agreement. The said Kamalla Pichaiah executed sale agreement on a Rs.5/-stamp paper, after receiving Rs.5,000/- from the defendant No.1 and mentioned the said fact in the sale agreement. The younger brother of Kamalla Pichaiah by name Mattaiah subscribed his signature and their step mother Narsamma attested her thumb impression on the said agreement to 5 Dr.GRR, J SA_570_2009 show their no objection for the said sale transaction. In the year 1974, the defendant No.1 was joint with his brothers and his father, as such, he feared that if registered sale deed was taken in his name, his brothers would claim a share in it. Therefore, the defendant No.1 obtained registered sale deed from his vendors Kamalla Pichaiah and his brother Mattaiah on 10.06.1976 in the name of the plaintiff by paying not only the balance sale consideration of Rs.500/- but also an additional sum of Rs.4,500/- to his vendors. Subsequently, in the year 1978, the defendant No.1 purchased the western side 90 Sq. yards of the suit land from the same vendors for Rs.500/-, but obtained the registered sale deed in the name of plaintiff for the same reason. The possession was given to the defendant No.1 on the date of execution of the agreement of sale in the year 1974 itself and since then, the defendant No.1 was in possession of the suit schedule property. Thus, the registered sale deeds were obtained in the name of the plaintiff only for the above stated reason, but the entire sale consideration was paid by the defendant No.1. No amount of the plaintiff was utilized to purchase the suit land. The family matters went on smoothly till 1980. In the said year, the defendant No.1 contacted second marriage, as the plaintiff did not beget male child. Thereafter, the plaintiff started living separately from the defendant. In the year 1983, the defendant heard rumors that the plaintiff started laying claims over the suit land. When the defendant questioned her about her attitude, the plaintiff denied those rumors and agreed to acknowledge the title of the defendant No.1 to the suit land. 6

Dr.GRR, J SA_570_2009 Then the defendant No.1 approached Sri T.Sampath Rao, Advocate to do the needful to him in the matter so as to see that his title to the suit land would become unassailable. The defendant told his Advocate all the above facts. The said Advocate advised the defendant to obtain a decree against the plaintiff seeking for declaration of his title and for perpetual injunction in respect of the suit land. The defendant No.1 studied up to 12thclass in Telugu medium. Sri T. Sampath Rao, Advocate prepared the suit and filed the same in the District Munsiff Court, Suryapet for declaration of title of the defendant No.1. The defendant No.1 was all the while under the impression that the plaint allegation contained the benami nature of the transaction in favour of the plaintiff. Sri T. Sampath Rao, Advocate, told him that a decree was passed in his favour for declaration of his title to the suit land and gave him a certified copy of decree. On the basis of decree in O.S. No.509/1983, the patta of the suit land was mutated in the name of the defendant No.1. Since, the defendant No.1 was in possession of suit land even before the date of suit in O.S. No.509/1983 claiming absolute title to it openly to the knowledge of one and all including the plaintiff, therefore, even if the benami plea failed, he would be deemed to have acquired the title to the suit land by adverse possession. The defendant No.1 also sold portion of suit land to third parties in the month of January, 2001. It was strange to note that Sri T. Sampath Rao, Advocate, who was the Advocate of the defendant No.1 in OS No.509/1983 had filed the suit on behalf of the plaintiff 7 Dr.GRR, J SA_570_2009 setting up pleas inconsistent with the pleas set up in the previous suit. After institution of the present suit, the defendant No.1 obtained certified copies of plaint, written statement and decree in O.S.No.509/1983 and got them read out, and came to know that a false plea of purchase of suit land from the plaintiff by the defendant No.1 was taken up in O.S.No.509/1983 instead of benami plea. 5.2. The defendant No.1 further submitted that as the Musi water was not supplied regularly, he got dug a well near a Government Water Source, and with help of such well water he was cultivating the suit land and also with Musi water depending upon its availability. He denied that the plaintiff used to give the suit land to others on crop share basis and contended that the plaintiff intentionally had not stated the names of crop share holders. He contended that he was cultivating the suit land alone and enjoying the yield there from, as owner, without giving any amount of share to the plaintiff. The plaintiff had no right whatsoever over the suit land and contended that the patta of the suit land was mutated in his favour on the basis of the Civil Court decree in O.S.No.509 of 1983 and he got absolute ownership and possession over the suit land and the plaintiff had no right to file the suit seeking for any relief. He further contended that the suit was barred by limitation. The plaintiff got knowledge about the change of her name in Record of Rights since more than twelve years and prayed to dismiss the suit.

Dr.GRR, J SA_570_2009

6. A rejoinder was filed by the plaintiff admitting that she was the daughter of Bikki Buchiramulu and Laxmidevamma, and that her father Buchiramulu was not alive at the time of her marriage. She stated that after fixing the date of marriage, her elder brother by name, Gurvaiah died at Thummidi village, as such, the marriage was celebrated at Malkapuri Village, but the entire expenses of her marriage were borne out by her mother and brother. She denied that her father got only Ac.2-00 of wet land and Ac.16-00 of dry land and stated that her father was having Ac.7-00 of wet land and Ac.70-00 of dry land. During the lifetime of her father, he set apart Ac.9-00 of dry land and Ac.1-00 of wet land towards the marriage expenses of the plaintiff and her sister Pullamma. She stated that on partition, each of her brother got Ac.30½-00 of dry land and Ac.3-00 of wet land towards their shares. Her elder brother migrated to Machireddypally by selling his share land of Ac.30 ½-00 of dry land and Ac.3-00 of wet land and denied that her father got meagre property. She stated that, Ac.4-00 of land was given to her at the time of marriage towards Pasupu kumkuma and that she sold out the said land at Thummidi village and purchased the suit land with the sale proceeds. She denied that the Defendant No.1 purchased the land from Kamalla Pichaiah under a sale agreement on 16-11-1974. She contended that the said agreement was false and created for the purpose of the suit. She further contended that by the date of sale, the defendant No.1 was not the member of the joint family. The joint family was separated in the year 1970-1971. As such, the contention of the 9 Dr.GRR, J SA_570_2009 defendant No.1 that due to fear that the joint family would claim a share in it, he obtained the registered sale deeds in her name was false. The entire amount for the purchase of the suit schedule property was borne out from her stridhana property and that the defendant No.1 was not in possession of the same. 6.1. She further contended that though the defendant No.1 contacted second marriage in the year 1980, she lived in the same house for a period of 6 years after the second marriage. She was not aware about defendant No.1 approaching SriT. Sampath Rao, Advocate and what was the advice given to the Defendant No. 1. She contended that defendant No.1 was capable of reading and understanding English language and the suit should have been drafted as per the instructions given by the Defendant No.1. She denied knowledge of O.S.No.509 of 1983 and stated that at no time, she signed on any paper nor she had knowledge about passing of the said decree, nor sold the suit land to defendant No.1 at anytime. If at all the name of the defendant No.1 was shown as possessor in the revenue records, it was only on her behalf. As such, the defendant No.1 would not acquire any title nor could claim adverse possession. Even if the defendant No.1 sold any piece out of the suit land, it was not binding upon her as the same was sold without any right.

6.2. She further submitted that Sri T. Sampath Rao, Advocate on coming to know about the suit in O.S. No. 509/1983 instructed her to engage some other 10 Dr.GRR, J SA_570_2009 counsel, as such, she changed the Advocate. She further submitted that she was living along with defendant No.1 under the same roof as husband and wife as on the date of passing the decree in O.S.No.509/1983, and afterwards also. The defendant No.1 was making false contentions to suit his claim. She also contended that the Revenue Authorities without giving any notice or information to her, got mutated the land in the name of defendant No.1 behind her back. She once again reiterated that she had not engaged any Lawyer nor filed any written statement in O.S.No.509 of 1983, the defendant No.1 himself created all false documents and obtained consent decree which was not having any value in the eye of law. As such, the mutations said to have been done in accordance with the said decree were null and void and were liable to be set aside. She further stated that till December, 2000, she was not having knowledge about the wrong entries in revenue records, as such, the suit was within limitation.

7. Basing on the said pleadings, the trial court framed the issues as follows:

i. Whether the plaintiff is the owner and possessor of the suit land and entitled to declaration, as prayed for? ii. Whether the plaintiff is entitled to injunction against the defendants, as prayed for?

       iii.    To what relief?
                                         11
                                                                         Dr.GRR, J
                                                                       SA_570_2009

8. The plaintiff examined herself as PW.1 and got examined PWs.2 to 6.

Exs.A1 to A8 were marked on her behalf. The defendant No.1 was examined as DW.1 and got examined DWs.2 to 4. Exs.B1 to B27 were marked on his behalf.

9. On considering the oral and documentary evidence on record, the trial court came to the conclusion that the plaintiff was given Ac.4-00 of dry land at the time of her marriage and the same was sold by her apart from the10 thulas of gold given to her and she was having sufficient source of income as on the date of purchase of the suit land and the defendant No.1 failed to adduce any evidence to show that he was having independent income to purchase the suit land. The trial court disbelieved the agreement of sale dated 16.11.1974 put up by the defendant, marked under Ex.B1 as he had not pleaded in O.S.No.509 of 1983 about the existence of agreement of sale and on the other hand pleaded that, he purchased Ac.2-08 gts. of land from the plaintiff and perfected his title. The trial court observed that the defendant No.1 set up a false plea that he purchased the land from the plaintiff and obtained a consent decree and the said decree came to be passed within a short span of 10-15 days from the date of the institution of the suit. Though the plaintiff had clearly stated in her evidence that she had not suffered any such decree, the defendant No.1 had not chosen to produce any documents to show that she was served with suit summons and that thereafter, she herself engaged an Advocate and filed written statement admitting her claim. There was no documentary evidence or oral evidence 12 Dr.GRR, J SA_570_2009 adduced by the parties and merely on the basis of the alleged admission of the defendant therein i.e., the plaintiff herein, the said suit was decreed. Even if the defendant admitted or consented to pass the decree, it was for the court to decide whether the claim put forth by the parties was supported any piece of evidence.

9.1. The trial court also further observed that the consent decree passed by the Court was required to be registered, otherwise, it would have no value in the eye of law. Mere payment of stamp duty and penalty was of no use to establish title to the suit land without registering the same. The decree obtained by defendant No.1 viewed in any way would not create any kind of right or title in favour of defendant No.1. The trial court also observed that if Exs.A1 and A2 were obtained nominally in the name of plaintiff, nothing prevented the defendant No.1 to obtain any registered deeds of cancellation of Exs.A1 and A2 or to obtain any other document in his favour, but defendant No.1 resorted to obtain a consent decree which did not confer any title in respect of immovable property. Exs.A1 and A2, the certified copies of the registered sale deeds standing in the name of the plaintiff would prove her title and they could not be doubted and the plaintiff was entitled for the relief of declaration basing on the said two documents.

Dr.GRR, J SA_570_2009 9.2. The trial court also observed that no notice was issued by the Mandal Revenue Officer under Section 5 of A.P. Rights on lands and Pattadar Passbooks Act, 1971 before making any amendments in the Record of Rights and no document was filed by the defendant No.1 to show that any notice was given to the plaintiff prior to incorporating his name in the revenue records or any enquiry was conducted by the M.R.O. and observed that the agreement of sale under Ex.B1 or the consent decree under Ex.B4 would not help the case of defendant No.1 to establish his title. The trial court after appreciating the evidence of DWs.2 to 4 also held that the oral evidence of DWs.2 to 4 would no way outweigh the documentary evidence under Exs.A1 and A2. The trial court also considering that the plaintiff being lawful owner, she was entitled to protect her possession from any other third person including defendant No.1 and as the entries in the revenue records were made without following the procedure under A.P. ROR Act held that she was also entitled to seek the relief of injunction and decreed the suit in favour of the plaintiff.

10. Aggrieved by the said decree and judgment dated 23.12.2005 passed by the learned Senior Civil Judge, Suryapet, the defendant No.1 preferred an appeal. The appeal was heard by the II Additional District Judge, Nalgonda at Suryapet, and vide judgement and decree dated 08.04.2009 in A.S.No.4 of 2006, allowed the appeal by setting aside the judgment and decree passed by the trial court.

Dr.GRR, J SA_570_2009

11. Aggrieved by the said judgment passed by the learned II Additional District Judge, Nalgonda at Suryapet, reversing the judgment of the trial court, the plaintiff preferred this Second Appeal raising the following substantial questions of law:

1. Whether the court below has committed an error of law in dismissing the suit for declaration basing on a decree for declaration obtained against the appellant by fraudulent means and without her knowledge in respect of the suit schedule property and whether such decree is binding on the appellant.

2. Whether the court below was right in observing that the appellant failed to prove and establish that she purchased the property with her Sthridhana amount and whether such observation was hit under Sections 3 and 4 of the Benami Transaction Act.

12. Heard Sri N. Ashok Kumar, the learned counsel for the appellant and Sri K. Raghuveer Reddy, the learned counsel for respondent No.1 and Sri M. Damodar Reddy, the learned counsel for respondent No.4.

13. Learned counsel for the appellant contended that the lower appellate court failed to appreciate the evidence in a proper perspective. It had not even considered the rejoinder filed by the plaintiff and had not discussed the evidence on record and erroneously carried away with the judgment and decree 15 Dr.GRR, J SA_570_2009 in O.S.No.509 of 1983 and came to a conclusion that respondent No.1 was having title over the suit property and that the same was obtained with the knowledge of the appellant-plaintiff herein which was totally incorrect and had not gone into the correctness of the decree under Ex.A3 and under what circumstances, the respondent No.1 obtained such decree. The learned judge failed to appreciate that there were no good relations between the appellant and respondent No.1 since 1980, after the respondent contracted second marriage. The respondent No.1 filed O.S.No.509 of 1983 against the appellant-plaintiff for declaration of title in respect of the suit schedule property and obtained the decree in a fraudulent manner. The lower appellate court erroneously considered that the plaintiff herein appeared to have filed the written statement accepting the plea of respondent No.1 and that the said suit was decreed with consent. When the relations between the parties were admittedly strained, there was no question of appellant-plaintiff consenting for passing a decree in favour of respondent No.1. Thus, the so called decree in O.S.No.509 of 1983 was a fraudulent document. The lower appellate court failed to consider the conduct of the respondent No.1 and the contradictory pleas taken by him. Though in O.S.No.509 of 1983, the respondent No.1 had taken a plea that he purchased the property from the appellant, in the present suit he threw the blame on his counsel entirely and contended that it was a benami transaction. The said two pleas were inconsistent and contradictory. To suit his convenience, the 16 Dr.GRR, J SA_570_2009 respondent No.1 blamed his counsel as if it was drafted against his instructions. If it was so, he ought to have summoned his counsel for examination. The lower appellate court erroneously observed that the appellant suppressed the decree passed in Ex.B3. When the appellant had no knowledge, there was no question of suppressing the said fact. The respondent No.1, being the husband of the appellant who was looking after the affairs, manipulated, obtained and got mutated his name in the revenue records. The appellant being illiterate lady was not aware of the legal proceedings, thus, the decree obtained under Ex.B3 was not binding upon her.

13.1. He further contended that the lower appellate court committed material irregularity in observing that the appellant ought to have filed a suit for cancellation of decree obtained under Ex.B3. When the appellant had no knowledge about such fraudulent decree, there was no question of seeking for its cancellation. No questions were put to appellant about getting a decree for declaration in respect of the suit schedule property in her cross-examination. The lower appellate failed to note that a decree obtained by fraudulent means would not have any legs to stand, fraud vitiates any kind of right and title. The lower appellate court failed to observe that the name of respondent No.1 was entered in the revenue records by taking advantage of Ex.B3 decree, as such, no reliance could be placed upon the said document to prove his possession. The lower appellate court totally ignored the settled principles of law and failed to 17 Dr.GRR, J SA_570_2009 consider the pleadings of the appellant in the rejoinder that she had no knowledge of Ex.B3 and that it was obtained by fraudulent means. The lower appellate court also erred in observing that the suit was barred by limitation. It was a settled law that the date of knowledge of particular fact was the actual date to start the limitation for raising the cause of action. The lower appellate court misquoted the provisions of Benami Transaction Act to reject the plea of appellant and relied upon the judgment of the Hon'ble Apex Court in S.P. Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs.1 on the aspect that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such judgment and decree by the first court or by the highest court had to be treated as a nullity by every court, whether superior or inferior. It could be challenged in any court even in collateral proceedings.

13.2. He also relied upon the judgment of the Hon'ble Apex Court in A.V. Papayya Sastry and Ors. Vs. Government of Andhra Pradesh and Ors. 2 on the aspect that fraud vitiates all judicial acts whether in rem or in personam. Judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by court of first instance or by the final court. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. This is an exception to Article 141 of the Constitution 1 (1994) 1 SCC 1 2 (2007) 4 SCC 221 18 Dr.GRR, J SA_570_2009 and doctrine of merger." He also relied upon the judgment of the Hon'ble Apex Court in Meghmala and Ors. Vs. G. Narasimha Reddy and Ors. 3 wherein it was held that an act of fraud is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void-ab-inito. He also relied upon the judgment of the Hon'ble Apex Court in Ramnath Exports Private Limited Vs. Vinita Mehta and Anr. 4 wherein it was held that first appeal is a valuable right of appellant and therein all questions of fact and law are open for consideration by re-appreciating the material evidence. Therefore, first appellate court is required to address all issues and decide the appeal assigning valid reasons either in support or against by re-appraisal. The court of first appeal must record its findings dealing with all issues, considering oral as well as documentary evidence led by parties. He also relied upon the judgment of the Hon'ble Apex Court in Suraj Bhan and Ors. Vs. Financial Commissioner and Ors. 5 on the aspect that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court. He also relied upon the judgment of the Hon'ble Apex 3 (2010) 8 SCC 383 4 (2022) 7 SCC 678 5 (2007) 6 SCC 186 19 Dr.GRR, J SA_570_2009 Court in Daya Singh and Anr. Vs. Gurdev Singh (dead) by LRs. &Ors.6 on the aspect that mere existence of adverse entry in revenue records does not give rise to cause of action. Cause of action to sue accrues only when right asserted in suit is infringed or there is threat to infringe that right. Cause of action arose when wrong entries in revenue records were discovered for the first time by appellants and respondents' refusal to admit claim of appellants which had accrued to them consequent on compromise, as such, held the suit was within limitation.

13.3. He also relied upon the judgment of the Hon'ble Apex Court in Karnataka Board of Wakf Vs. Government of India and Ors. 7 on the aspect that the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. He also relied upon the judgments of the Hon'ble Apex Court in Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Ors. 8 and Mangal Singh and Ors. Vs. Smt. Rattno (dead) by her L.Rs. and Anr.9 on the aspect that even if a female Hindu, was in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it and that the possession might be either actual or constructive or 6 (2010) 2 SCC 194 7 (2004) 10 SCC 779 8 AIR 1959 SC 577(1) 9 AIR 1967 SC 1786 20 Dr.GRR, J SA_570_2009 in any form recognized by law. Possession referred to Section 14 need not be actual physical possession or personal occupation of the property by the Hindu female, but may be possession in law. He also relied upon the judgment of the Hon'ble Apex Court in Bhoop Singh Vs. Ram Singh Major and others 10 wherein it was held that if the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs.100/- or upwards in favour of any party to the suit, the decree or order would require registration. He also relied upon the judgment of the High Court of Andhra Pradesh in Naspuri Dharmaiah and Anr. Vs. Kota Veeraiah @ Dr. V.K. Kota 11 on the aspect that a decree need not always be granted on the mere admissions made by the defendant. The Court has to see whether the appellant was entitled under law to get the relief prayed for or whether the suit was a collusive one to defeat law relating to public revenues or public policy. True purpose of admission has to be taken into account to consider passing of decree in terms of admission.

14. The learned counsel for respondent No.1, on the other hand, contended that no suit was filed by the appellant for cancellation of decree in O.S.No.509 of 1983. Without seeking cancellation of the decree, the plaintiff was seeking the relief of declaration of title in the present suit. As rightly pointed out by the lower appellate court, the two decrees would be staring at 10 AIR 1996 SC 196 11 1993 (3) ALT 712 (S.B.) 21 Dr.GRR, J SA_570_2009 each other one in favour of the plaintiff and the other in favour of the respondent No.1-defendant No.1. There could not be any two declarations in favour of the two persons with regard to the same property. The earlier decree would hold good unless it was set aside by a competent court. No issue was framed by the trial court with regard to validity of the said decree or the defence of forgery taken by the parties. Likewise, in the written statement itself, the defendant had stated the names of the persons to whom he sold the property in the year 2001 itself along with the particulars of the registered sale deeds and the date of registration, but no steps were taken by the plaintiff to implead them as parties to the suit or sought for any relief for recovery of possession or cancellation of the said registered sale deeds. No amendments were made to the plaint, cause of action or the relief sought and relied upon the judgment of the High Court of Andhra Pradesh in Basant Kumar Soni Vs. Mukunda Das Soni and Ors. 12 wherein on considering the provision of Order I Rule 10(2), it was held that the primary object of provision was to bring before Court at one and the same time all persons interested in dispute, so that all controversies in suit can be finally determined once for all in the presence of all parties without delay, inconvenience and expenses of several actions, trial and inconclusive adjudications. He further contended that though there was a separate procedure enunciated in Record of Rights Act for rectification of entries in the revenue 12 2010 (4) ALD 490 22 Dr.GRR, J SA_570_2009 records, the appellant-plaintiff had not availed any such remedies. The appellant by her conduct allowed the name of her husband to continue in the revenue records, as such, she was estopped by her conduct under Section 115 of the Indian Evidence Act. The plea of adverse possession as well as the defence of benami transaction were taken by the defendant in his written statement itself and the same was considered by the lower appellate court, as such, no error was committed by the lower appellate court in passing the said judgment and reversing the judgment of the trial court.

14.1. He further contended that the gift of immovable property by way of Pasupu Kumkuma to the daughter at the time of marriage would also require stamp duty and registration and relied upon the judgment of the High Court of Andhra Pradesh in Gandevalla Jayaram Reddy Vs. Mokkala Padmavathamma and Ors.13. He further contended that the property was not identifiable at present, in view of the sales made to several persons and changing hands during all these years, as such, no executable decree could be passed at this length of time and relied upon the judgment of the Hon'ble Apex Court in Nahar Singh Vs. Harnak Singh and Ors. 14.

15. Learned counsel for the appellant-plaintiff, in reply, contended that except mentioning the names of the persons and the numbers of the sale deeds, 13 2001 (5) ALD 402 (FB) 14 (1996) 6 SCC 699 23 Dr.GRR, J SA_570_2009 the sale deeds were not filed by the respondent No.1 before the Court. All the said transactions were also alleged to be done on the same date i.e., 20.01.2001. Without converting the land from agricultural property to non-agricultural property, the respondent No.1 could not sell the same as plots. The alleged purchasers also not got impleaded themselves till date from the year 2001. Even if the entire extent of land sold was considered, it would not be more than 1800 Sq. Yds., but still the property was available and the decree could be executed. He contended that the plea of benami transactions had to be pleaded and proved, but there was no evidence adduced by the respondent No.1- defendant No.1 to prove the benami transaction. The respondent No.1- defendant No.1 had not stated his source of income with which he purchased the suit schedule property. The plaintiff had adduced evidence of PW.4 to show that she sold her property given by her parents to her brother at the rate of Rs.4,000/- and also sold her gold jewellery. The name of defendant No.1 was appearing in revenue records only after 1983-1984 i.e., after obtaining the fraudulent decree in O.S.No.509 of 1983, but not since the date of agreement of sale marked under Ex.B1 in the year 1974. Hence, Ex.B1 could be considered as a sham and created document and prayed to allow the second appeal by setting aside the judgment of the lower appellate court and by upholding the judgment of the trial court which was passed on considering all the aspects. 24

Dr.GRR, J SA_570_2009

16. The Second Appeal is not a matter of right and the parties have to satisfy the Court that the case involves a substantial question of law and not a mere question of law. The Hon'ble Apex Court in several cases had enumerated the basic ingredients constituting a substantial question of law as under:

1) The question of law on which there is conflict of judicial opinion and not finally decided by Supreme Court, Privy Council; or by Federal Court15.

2) The finding which has been arrived at by court below without any evidence on record 16.

3) Inference from or legal effect of proved or admitted facts;

4) Disregard or non- consideration of relevant or admissible evidence17.

5) Taking into consideration irrelevant or inadmissible evidence 18.

           6)    Misconstruction of evidence or document 19.
           7)    Interpretation or construction of material documents 20.
           8)    A question of admissibility of evidence 21.




15
  Sir Chunilal v. Mehta, AIR 1962 SC 1314.
16

Sree Kondiba Dagadu Kadam v. Savitribai Sopan Gijar, (1999) 3 SCC 722;, AIR 1999 SC 2213 and Rohini Prasad v. Kasturchand, (2000) 3 SCC 668: AIR 2000 SC 1283.

Sri Chand Gupta v. Gulzar Singh, AIR 1992 SC 123; Ishwar Dass Jain v. Sohanlal, (2000) 1 SCC 434; AIR 2000 SC 426.

Santakumari v. Lakshmi Amma Janaki Amma, (2000) 7 SCC 60; AIR 2000 S.C. 3009; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067; KondibaDagadu Kadam v. Savitribai, AIR 1999 SC 2213.

SindraNaickaVaidyar v. Ramaswami Ayyar; AIR 1994 SC 532; Sukhdei v. Bairo (1999) 4 SCC 262). 20 KondibaDagadu Kadam v. Savitribai, AIR 1999 SC 2213; Mehrunnisa v. Visham Kumari, (1998) 2 SCC 295: AIR 1998 SC 427.

KondibaDagadu Kadam v. Savitribai, AIR 1999 SC 2213; Banarsi Das v. Brig Maharaja Sukhjit Singh, AIR 1998 SC 179.

Dr.GRR, J SA_570_2009

9) Disposal of appeal by first appellate court by allowing application to adduce additional evidence by one party without giving opportunity of rebuttal to the other party.

10) New plea on pure question of law going to the root of the matter.

11) Rejection of admissible evidence on flimsy ground 22.

12) Gross miscarriage of justice23.

13) Biased approach of the court below 24.

14) Reversal of finding by first appellate court without evidence 25.

15) Perverse finding recorded by the courts below26.

16) Inconsistent and contradictory finding of the court 27.

17) When appeal is decided only on equitable ground and without application of mind 28.

18) When the court has no jurisdiction 29.

SUBSTANTIAL QUESTION OF LAW No.1:-

Whether the court below has committed an error of law in dismissing the suit for declaration basing on a decree for declaration obtained against the appellant by fraudulent means and without her knowledge in respect of the suit schedule property and whether such decree is binding on the appellant.

Major Singh v. Rattan singh, AIR 1997 SC 1906; Ishwar Dass Jain v. Sohan Lal, AIR 2000 SC 426.

Rohini Prasad v. Kasturchand, AIR 2000 SC 1283; Mohd. Yunus v. Gurubux Singh (1995) Supp (1) SCC 418.

Banarsi Dass v. Brig, AIR 1998 SC 179.

Banarsi Dass v. Brig. Maharaja, AIR 1998 SC 179.

State of Rajasthan v. Harphool Singh, (2000) 5 SCC 652; Rajappa HanamanthaRajoji v. Mahadev Chakannabasappa, (2000) 6 SCC 120: AIR 2000 SC 2108.

State of Rajasthan v. Harpal Singh, (2000) 5 SCC 652.

Md. Hadi Hussain v. Abdul Hamidi Choudhary, (2000) 10 SCC 248.

KondibaDagadu Kadam v. Savitribai, AIR 1999 SC 2213; Gurdev Kaur v. Kakiand others, 2007 (1) SCC 546 = AIR 2006 SC 1975; Amar Bahadur v. DevendraSingh, AIR 2007 MP 262.

Dr.GRR, J SA_570_2009

17. This question mainly relates to whether the decree in O.S.No.509 of 1983 passed by the Junior Civil Judge, Suryapet was obtained by playing fraud on the plaintiff or whether the plaintiff had knowledge of the same and whether such decree was binding on the appellant-plaintiff.

18. The contention of the plaintiff was that she was having no knowledge about passing of the said decree nor she signed on any papers nor received any summons from the Court. A perusal of the plaint in O.S.No.509 of 1983 marked as Ex.B2 would disclose that the said suit was filed for declaration of title and perpetual injunction and for rectification of the Record of Rights of Suryapet Town record to an extent of Ac.2-08 gts. and the address of the plaintiff therein (respondent No.1 herein) was shown as Ananthula Buchiramulu, S/o. Ramalingaiah, aged 41 years, occupation Agriculturist R/o.Suryapet and the address of the defendant therein (appellant herein) was shown as Ananthula Laxmamma, W/o. Buchiramulu, aged 35 years, occupation: House-hold, R/o. Suryapet. Except stating that both the plaintiff and defendant were residents of Suryapet, their house numbers or the names of the streets where they were residing were not mentioned. The plaint would disclose that it was verified on 26.04.1983, as per the date mentioned on it. The written statement was filed by the defendant on 04.05.1983 and judgment and decree were also passed by the District Munsiff, Suryapet on the same day i.e., on 04.05.1983. As such, within a period of eight days, from the date of filing the 27 Dr.GRR, J SA_570_2009 plaint, the entire proceedings were completed and the judgment and decree was also passed. As per the contents of the plaint, the plaintiff therein Buchiramulu stated that he purchased the suit land from his wife, the defendant therein more than 12 years back and he was in actual possession and enjoyment of the same, which was admitted by the defendant in her written statement. No document was even filed by the plaintiff to show his purchase of the suit land from the defendant. No summons were filed by the respondent No.1 herein i.e., Ananthula Buchiramulu in the present case to show that they were actually served on the defendant. The written statement filed in O.S.No.509 of 1983 would disclose that it was attested by Smt. A. Laxmamma by affixing her thumb impression. The name of the counsel, who filed the said suit on behalf of the plaintiff was shown as Sri T. Sampath Rao and Sri D. Umapathi and the name of the counsel for defendant was shown as B. Seshagiri Rao, as per the decree passed in O.S.No.509 of 1983 marked as Ex.B4.

19. No questions were put forth to PW.1 in the present suit in her cross-examination with regard to the said judgment and decree, except giving a suggestion that she engaged an Advocate in the suit filed by defendant No.1 in O.S.No.509 of 1983 on the file of Junior Civil Judge, Suryapet and that in pursuance of the civil court decree, the patta was mutated in favour of defendant No.1, which was denied by the witness. The respondent No.1, who was examined as DW.1 admitted in his cross-examination that as on the date of 28 Dr.GRR, J SA_570_2009 passing of the decree in O.S.No.509 of 1983, he and his wife were living together at Kummari Bazar at Suryapet town. He admitted that till 1984, he and his wife lived together and till 1985, the relationship between him and his wife was cordial.The decree was pertaining to the year 1983. Thus, both the plaintiff and defendant were living together under one roof by the date of passing of the decree. Though DW.1 denied that he obtained decree within a period of one week, the date of filing of the plaint on 26.04.1983 and passing of the judgment and decree on the same day as on the date of filing the written statement on 04.05.1983 would disclose that the entire proceedings were completed within a period of (08) days. As per the contention of the learned counsel for the appellant-plaintiff on 04.05.1983 itself, the marriage of the daughter of plaintiff and defendant was performed. All these would show the conduct of the defendant as to how on one hand while residing along with his wife and performing the marriage of his daughter, he on the other side, filed the suit for declaration of title against his wife, obtained a consent decree and got transferred the lands, which were standing in her name into his name and got mutated the property in the revenue records in his name basing on the consent decree. The Court which passed the judgment and decree had not looked into whether any summons were really served on the defendant or not or examined any witnesses before it to ascertain whether the admissions made by the defendant were true or not by recording her evidence 29 Dr.GRR, J SA_570_2009 on oath but passed a judgment and decree on the same day of filing the written statement, which shows the unwarranted haste in passing the decree.

20. The High Court of Andhra Pradesh in Naspuri Dharmaiah and Anr. Vs. Kota Veeraiah @ Dr. V.K. Kota (11 supra) held that:

" The decree need not always be granted on the mere admissions made by the defendant under Order XII Rule

6. The Court has to see whether the plaintiff is entitled under law to get the relief prayed for or whether suit is a collusive one to defeat law relating to public revenues or public policy. True purpose of admission be taken into account to consider passing of decree in terms of admission. It was also held herein that mere admission of defendant is not conclusive proof positive of factum of adverse possession. There should be evidence to establish that defendant is owner of property having title thereto and that plaintiffs' possession is hostile to true owner to consider plea of adverse possession."

21. In a similar manner, no documents were filed before the court to show that the property was standing in the name of the defendant or that the same was purchased by the plaintiff to grant the relief of declaration of title and perpetual injunction. Only merely basing upon the admission made by the defendant in her written statement, the decree was passed.

22. As per the judgment of the Hon'ble Apex Court in S.P. Chengalvarayanaidu (dead) by LRs. Vs. Jagannath (dead) by LRs. and Ors. (1 supra), it was held that:

Dr.GRR, J SA_570_2009 "A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."

23. In the present case also, the respondent No.1-defendant No.1 had not produced the sale deed executed by his wife in his favour. By withholding the said vital document and without producing any of the documents and without adducing any evidence, obtained the judgment and decree in his favour on the same day, which was nothing but playing fraud upon the Court as well as upon the other party. By playing deception, he took unfair advantage over his innocent wife living with him under the same roof, who was unaware of his actual intentions.

24. The contention raised by the learned counsel for the respondent that the appellant-plaintiff had not taken any steps to set aside the judgment in O.S.No.509 of 1983, as such, the said judgment would be staring against her appears to be without any merit, as the judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law and such a judgment can be challenged in any Court even in collateral proceedings. 31

Dr.GRR, J SA_570_2009

25. The Hon'ble Apex Court in A.V. Papayya Sastry and Ors. Vs. Government of Andhra Pradesh and Ors. (2 supra) held that:

"Fraud vitiates all judicial acts whether in rem or in personam. Judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by court of first instance or by the final court. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. This is an exception to Article 141 of the Constitution and doctrine of merger."

26. Further in Meghmala and Ors. Vs. G. Narasimha Reddy and Ors. (3 supra)the Hon'ble Apex Court held that:

"An act of fraud is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void-ab- initi.Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine, including res-judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court."

27. Thus, the plaintiff need not file any separate suit challenging the said judgment and even in the present proceedings, she can take the defence of obtaining the said judgment by playing fraud upon her and the same can be treated as nullity by this Court. The lower appellate court committed an error in 32 Dr.GRR, J SA_570_2009 dismissing the suit filed by the plaintiff basing upon the decree for declaration obtained against her by the respondent by playing fraud upon her in O.S.No.509 of 1983 and as such, the said decree was not binding upon her. SUBSTANTIAL QUESTION OF LAW No.2:-

Whether the court below was right in observing that the appellant failed to prove and establish that she purchased the property with her Sthridhana amount. Whether such observation was hit under Sections 3 and 4 of the Benami Transaction Act?

28. The plaintiff by examining herself as PW.1 and also examining her sister-in-law as PW.4 and her cousin brother as PW.6 and by marking the documents under Exs.A5 to A8, the certified copies of the pahanies pertaining to the year 1963-1964, 1964-1965, 1965-1966, 1985-1986 could show that her father was having sufficient landed property as on the date of her marriage and that she was given Ac.4-00 of land and 10 thulas of gold towards pasupu- kumkuma and after sometime, she sold the said land to her brothers for a consideration of Rs.4,000/- and with that money and along with the money obtained by sale of gold, purchased suit schedule properties vide registered sale deeds marked under Exs.A1 and A2. The trial court on appreciating the evidence considered that the plaintiff was able to prove that she was given stridhana at the time of her marriage and by the sale of the said property, she 33 Dr.GRR, J SA_570_2009 was having sufficient source of income to purchase the suit schedule properties marked under Exs.A1 and A2.

29. The lower appellate court failed to observe the conduct of the respondent No.1-defendant No.1 wherein he took a stand in O.S.No.509 of 1983 that his wife sold the property to him and contrary to the said stand had taken the plea of Benami transaction, in the present case, unable to file the sale deed in his name showing the purchase of the property from his wife to him, took contradictory pleas and threw the blame on his counsel as if it was drafted against his instructions. He ought to have summoned his counsel Sri T. Sampath Rao for examination, if the counsel had drafted the plaint in O.S.No.509 of 1983 against his instructions. As rightly pointed out by the learned counsel for the plaintiff, the plea of benami has to be not only pleaded but proved by the party. But no evidence was adduced by the respondent No.1- defendant No.1 to prove his source of income to purchase the property. He only contended in his written statement that as he was living in a joint family, to avoid his brother's claiming a share in it, he purchased the suit schedule properties in the name of the plaintiff. The plaintiff filed a rejoinder stating that the joint family was separated in the year 1971-1972 itself and the defendant No.1 was not a member of the joint family by the date of the said sale deeds executed in the year 1976 or 1978. The respondent No.1-defendant No.1 had not adduced any evidence to show that he was living in a joint family by the 34 Dr.GRR, J SA_570_2009 said date or that he along with his brothers sold any of the properties jointly even after the said date of execution of the sale deeds.

30. The defendant No.1 had also taken inconsistent pleas stating that even if the benami plea fails, he shall be deemed to have acquired title to the suit land by adverse possession. Thus, he himself was in doubt that the plea of benami taken by him may not stand to reason. Having taken the plea that he purchased the property from his wife in O.S.No.509 of 1983, he failed to prove the same. For the plea of benami also he failed to adduce any evidence and on the other hand, he took another plea of adverse possession. The plea of adverse possession and the plea of title are mutually inconsistent.

31. The Hon'ble Apex Court in Karnataka Board of Wakf Vs. Government of India and Ors. (7 supra) explained the plea of adverse title when can be taken. The Hon'ble Apex Court explained that:

"In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi SakinalAIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 35 Dr.GRR, J SA_570_2009 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128).

32. Whenever there is a plea of adverse possession inherently there was a plea in it that someone else was the owner of the property. A person claiming adverse possession must prove that his possession was peaceful, open and continuous 'nec vi, nec clam, nec precario'. When the adverse possession started and when it became adverse to the true owner by wrongfully dispossessing him/her must be stated by the person claiming adverse possession. But there were no pleadings as to on what date the defendant came into possession and the nature of his possession and when his possession was known to the other party and how long his possession was continued openly and undisturbed. Though the defendant claimed that he came into possession of the property even prior to the date of executing the sale deed, when the agreement of sale was executed in his favour by virtue of Ex.B1 in the year 1974, the said contention was denied by the appellant-plaintiff. The defendant also failed to 36 Dr.GRR, J SA_570_2009 mention in O.S.No.509 of 1983 about his entering into agreement of sale with the vendors by virtue of which, he came into possession of the property. As such, in all probability it would show that the said document marked under Ex.B1 was also a subsequently created document by the defendant No.1. All these would prove the conduct of the defendant as to how he was creating documents, taking mutual inconsistent pleas, obtaining judgment and decree behind the back of the plaintiff and getting entered his name in the revenue records without following the proper procedure established under law. As such, the trial court rightly disbelieved the contention of the defendant and considering the ample evidence filed by the plaintiff and considering Exs.A1 and A2 documents which were standing in her name, decreed the suit in her favour.

33. The lower appellate court without considering the rejoinder filed by the plaintiff, observing that the plaintiff suppressed the passing of the decree in O.S.No.509 of 1983 and observing that the suit was barred by limitation, as O.S.No.509 of 1983 was decreed on 04.05.1983, is considered as improper. The lower appellate court observing that the plaintiff kept quiet from 1983 to 2001 for a period of 18 years suppressing the decree in O.S.No.509 of 1983, is without appreciating the facts in a proper manner.

Dr.GRR, J SA_570_2009

34. The lower appellate court also failed to consider that the decree obtained by the defendant in O.S.No.509 of 1983 was compulsorily registerable, as per the judgment of the Hon'ble Apex Court in Bhoop Singh Vs. Ram Singh Major and others (10 supra) wherein it was held that:

17. It would, therefore, be the duty of the court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in preasenti in immovable property of the value of Rs.100/- or upwards in favour of other party for the first time, either by compromise or presented consent. If latter be the position, the document is compulsorily registerable.

18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below :

(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.

(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs.100/- or upwards in favour of any party to the suit, the decree or order would require registration.

(3) If the decree were not to attract any of the clauses of sub-

section (1) of section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration.

(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.

Dr.GRR, J SA_570_2009 (5) If the property dealt with by the decree be not the "subject matter of the suit or proceeding", clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.

19. Now, let us see whether on the strength of the decree passed in Suit No.215 of 1973, the petitioner could sustain his case as put up in his written statement in the present suit, despite the decree not having been registered. According to us, it cannot for two reasons : (1) The decree having purported to create right or title in the plaintiff for the first time that is not being a declaration of pre- existing right, did require registration. It may also be pointed out that the first suit cannot really be said to have been decreed on the basis of compromise, as the suit was decreed "in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct". Decreeing of suit in such a situation is covered by Order 12 Rule 6, and not by Order 23 Rule 3, which deals with compromise of suit, whereas the former is on the subject of judgment on admissions. (2) A perusal of the impugned judgment shows that the first appellate court held the decree in question as "collusive" as it was with a view to defeat the right of others who had bona fide claim over the property of Ganpat. Learned Judge of the High Court also took the same view."

35. In the present case also, the right, title or interest in immovable property were created for the first time in the name of the respondent No.1 basing upon the decree passed under Order XII Rule 6 upon the admissions made by the defendant therein. As such, it is a compulsorily registerable document.

36. The Revenue Authorities without looking into any document or title in favour of respondent No.1 basing upon the judgment and decree passed in O.S.No.509 of 1983 got mutated the name of respondent No.1-defendant 39 Dr.GRR, J SA_570_2009 No.1 in revenue records even without issuing notice to the plaintiff on whose name the record stood earlier. Thus, the Revenue Authorities without following the procedure under A.P. ROR Act got mutated the name of defendant No.1 in the revenue records.

37. The lower appellate court committed an error in reversing the well- reasoned judgment of the trial court without appreciating the pleadings, documents and evidence on record properly.

38. In the result, the second appeal is allowed setting aside the judgment and decree dated 08.04.2009 in A.S.No.4 of 2006 passed by the lower appellate court, confirming the judgment and decree dated 23.12.2005 passed in O.S.No.16 of 2001 by the Senior Civil Judge at Suryapet.

Pending miscellaneous applications, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J Date: July 8, 2024.

Unlock Advanced Research with PRISMAI

Telangana High Court