Telangana High Court
M/S. Avalon Builders Pvt Ltd vs Seri Balreddy on 30 April, 2025
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No.983 of 2025
ORDER:
This Civil Revision Petition is filed against the Order dated 07.03.2025 in I.A.No.2827 of 2024 in O.S.No.53 of 2017, passed by the learned Principal District and Sessions Judge, Sangareddy.
2. Petitioners herein have filed an application vide I.A.No.2827 of 2024 in O.S.No.53 of 2017, against the respondents before the trial Court under Section Order 7 rule 11 of CPC to reject the plaint in O.S.No.53 of 2017. The trial Court after considering the arguments of both sides dismissed the application. Aggrieved by the said order, petitioners/defendants have preferred present revision petition.
3. Learned counsel for the petitioners/defendants herein mainly contended that respondents/plaintiffs have filed a suit vide O.S.No.53 of 2017, to declare the registered documents bearing Nos.5192 and 5193 of 2017, as invalid as they are executed without sanction and authority and also for injunction restraining the defendants from interfering with their possession of the suit land. Respondents/plaintiffs have admitted the 2 execution of agreement of sale-cum-GPA's bearing document Nos.11351 and 11352 of 2016 dated 25.05.2016 in para No.5 of the plaint and they have also admitted the issuance of notice cancelling the GPA's and it clearly shows the execution of agreement cum GPA. The General Power of Attorney (GPA) was executed in pursuance to agreement of sale after payment of sale consideration, therefore GPA is coupled with interest in view of Section 202 of Contract Act and it cannot be cancelled unilaterally and it is barred by law. The registered document can be cancelled through a registered cancellation deed and the cancellation by issuance of notice is unknown to law. In the plaint, it was stated that petitioner No.5/defendant No.5 had not been served with notice and it is not returned, therefore GPA of petitioner No.5 is not cancelled. Consequently, the sale deeds executed are valid and the suit is liable to be dismissed. The trial Court has passed a non-speaking and non-reasoned order. It was simply held that the plaint averments discloses the cause of action. Respondents/plaintiffs did not sought any relief against the agreement of sale cum GPA dated 25.05.2016, as such declaration of the sale deed is invalid, erroneous and against the law. The main relief should be regarding agreement of sale cum GPA. As the cancellation of the GPA is not in accordance with law, there is no cause of action. Clever drafting 3 of the plaint by the respondents/plaintiffs created illusory cause of action. The GPA is not cancelled as per law under Section 31 of the Specific Relief Act, as such respondents/plaintiffs could not avail the remedy against the sale deed and thus the trial Court ought to have rejected the plaint. Therefore, requested the Court to set aside the order of the trial Court.
4. Parties herein are referred as plaintiffs and defendants as arrayed before the trial Court in O.S.No.53 of 2017, for the sake of convenience
5. Plaintiffs in their plaint filed in O.S.No.53 of 2017 stated that plaintiff No.1 is the absolute owner and possessor of the land admeasuring Ac.0-38 gts in Sy.No.120/EE and also to an extent of Ac.2-05 gts in Sy.No.122/AA2, situated at Velimela Village, Ramachandrapur Mandal, Sangareddy District, thus the plaintiff No.1 is having a total extent of Ac.3-03 gts. Plaintiff No.2 is the absolute owner and the possessor of the land admeasuring an extent of Ac.0-38 gts in Sy.No.120/A2 and Ac.1-28 gts in Sy.No.122/A2 and thus he is having total extent of Ac.2-26 gts in the said survey numbers. The lands of the plaintiffs together are forming a big plot measuring an extent of Ac.5-29 gts and it is undivided share of plaintiffs in total land of 4 Ac.8-15 gts, which includes the share of their elder brother Manik Reddy. The share of Manik Reddy is measuring an extent of Ac.2-26 gts in these two survey numbers. All three brothers have together sold some extent of land to their parties and some extent of land was covered by the Manjira pipeline road. After deduction, the land remained to the three brothers is Ac.6-00 gts, but more land is appearing in favour of plaintiffs and their elder brother as per revenue records. The land is still in joint possession and enjoyment of plaintiffs and their elder brother.
6. Plaintiffs have offered their undivided share to an extent of Ac.2-00 gts each out of the suit land at the rate of Rs.1,29,00,000/- to the defendants in the month of May, 2016. All the defendants together accepted the plaintiffs offer. On 25.05.2016, plaintiffs and defendants have entered into an agreement of sale in respect of the suit lands. It was agreed between them that the land for sale is only to the extent of Acs.4-00 gts out of the suit land and the sale consideration is Rs.1,29,00,000/- per acre, but taking advantage of illiteracy and ignorance of the plaintiffs, defendants got drafted written agreement of sale cum GPA to the extent of Ac.5-28 gts with specific boundaries instead of showing it as undivided share of 5 plaintiffs and the sale consideration was shown as Rs.30,00,000/- per acre. When it was questioned by the plaintiffs, defendants have stated that they mentioned the same only to save the payment of stamp duty and they had issued cheques for a total consideration of Rs.3,66,00,000/- and executed a Memorandum of Understanding and the photocopy of the same was given to the plaintiffs.
7. It was further stated that defendants have paid only an amount of Rs.1,50,00,000/- to the plaintiffs and got executed agreement of sale cum GPA vide document Nos.11351 and 11352 of 2016 dated 25.05.2016. For the past nine months, plaintiffs requested the defendants to pay the balance sale consideration of Rs.3,66,00,000/-, but defendants paid only Rs.60,00,000, as such plaintiffs terminated the GPA given to the defendants. They got issued notices of termination of GPA through registered post to all the defendants, as such defendants are no more and not authorized to act as attorneys of plaintiffs. Notice to the defendant No.1 was returned with an endorsement unclaimed, notice to the defendant Nos.2 and 4 were served to them on 27.03.2017, notice to defendant No.3 was served to him on 28.03.2017. Notice to defendant No.5 was not yet returned.
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8. On 09.04.2017, defendants erected fencing covering major part of the suit land and also erected a board stating that land belongs to them. Plaintiffs never intended to alienate the suit schedule property. Defendants have mentioned the specific boundaries in the agreement of sale without the knowledge of plaintiffs and tried to make impression that they are in possession of the land. In fact, plaintiffs and defendants agreed to the actual extent of land which will found after the due measurement only and not more. When plaintiffs approached the defendants and questioned regarding erection of the fencing and name board in the land, defendants stated that they had already got sale deeds executed in their favour and plaintiffs need not executed any sale deeds for them and further stated that they will pay the balance sale consideration whenever they wish. Plaintiffs never intended to alienate the land claimed by the defendants. Plaintiffs have verified in the office of sub- registrar and found that sale deeds bearing Nos.5192 and 5193 of 2017 were executed by the defendants themselves on 28.03.2017 and the stamp paper was purchased on 03.01.2017 and got mentioned that sale deed was executed on 06.01.2017, which was created by defendants only to show that sale deeds were executed prior to the termination of their authority under GPA, as such sale deeds were not valid. Defendants have no 7 authority to execute the sale deeds. By playing fraud, conspiracy and to gain wrongfully, defendats executed the sale deeds, as such plaintiffs are entitled for declaration to declare the sale deeds as null and void and also entitled for consequential injunction restraining from mutating the said documents before any government authority. The cause of action arose on 28.03.2017. Plaintiffs have filed 16 documents along with the plaint including the sale deeds and a copy of the memorandum of understanding and also the notice of termination of power of attorney dated 24.03.2017. They also filed certified copy of agreement of sale cum GPA, copy of six pahanies for the year 1425 fasli and gift settlement deeds and also certified copy of ROR for 1989-90.
9. During pendency of the suit, defendants have filed an application for rejection of plaint. The trial Court after considering the arguments of both sides and also the citations relied upon by them, observed that the documents filed by the plaintiffs are pertaining to the year 2017 and the suit was filed in the same year, as such it cannot be said that suit was barred by limitation. It was further observed that even if it is presumed that there are contradictions in the pleas as taken by the defendant No.5, it cannot be the main ground for rejection of 8 the plaint. In the case on hand cause of action is clearly shown as such it cannot be said that no cause of action was shown and the ingredients of either clause (a) or clause (d) of Order VII were not attracted and accordingly dismissed the application.
10. Perusal of the agreement of sale cum GPA dated 25.05.2016, shows that it was executed for a total extent of Ac.5-28 gts for a total sale consideration of Rs.57,00,000/- and the vendors have paid Rs.50,00,000/- on the same day and the balance amount of Rs.7,00,000/- was agreed to be paid as and when demanded by the plaintiffs/vendors. Vendors have appointed vendees as their GPA in respect of the schedule properties and the vendees have also agreed for the same it was also stated that vendors delivered vacant peaceful possession of the suit schedule property to the vendees. In the GPA, it was stated that as the vendors received major sale consideration executed agreement of sale cum GPA in favour of vendees and they are authorized to sign and execute sale deeds, rectification deeds, ratification deeds, agreement of sale, development agreements etc and they are also authorized to transact with prospective purchasers and to enter into agreement of sale and also to execute registered sale deeds on behalf of the vendors. 9
11. Learned counsel for the respondents/plaintiffs mainly contended that the suit is at the stage of arguments, as such the application filed under Order 7 rule 11 is not maintainable. Learned counsel for the petitioners/defendants contended that the said application can be filed at any stage of the proceedings and relied upon decision of the Hon'ble Apex Court in a case of Patil Automation Private Ltd and Others vs Rakheja Engineers Private Ltd 1, in which it was held that the power under Order 7 Rule 11 is available to the Court to be exercised Suo motu, as such the contention of the respondents/plaintiffs regarding maintainability is not tenable. The counsel for the petitioners/defendants further contended that as per Section 34 of the Specific Relief Act, relief of possession is not asked for and thus, the suit is barred under law of Specific Performance Act. They relied upon decision of the Hon'ble Apex Court in a case of Anathula Sudhakar vs P. Buchi Reddy (Dead) by Lrs and Others 2 in which it was clearly stated that suit was filed only for declaration and the relief of possession was not sought for, as such suit is barred by limitation. It is further contended by the petitioners/defendants that as per the terms of the agreement of sale cum GPA, upon payment of sale consideration 1 2022(10) SCC Para 94.3 2 AIR 2008 SC 2033 10 possession of the property has been delivered to the defendants. This clearly proves that the GPA is coupled with interest, as such Section 202 of contract Act is applicable to the facts of the case. Plaintiffs have no authority to cancel the GPA unilaterally. Plaintiffs stated that out of balance sale consideration of Rs.3,66,00,000/- only Rs.60,00,000/- was paid by the defendants, as such they terminated the GPA given to the defendants by issuing notice of termination through registered post. Therefore, defendants are no more their attorneys and they are not authorized to act as attorneys. Plaintiffs have no right or interest to cancel GPA as it is proposed with interest and the cancellation of the GPA through notice is barred under Section 2 of the Contract Act.
12. The contention of the petitioners/defendants is basing on the agreement of sale cum GPA. As registered sale deeds were executed, it can be cancelled only by registered cancellation deeds, but not by issuance of notice. The cancellation is not as per law and the present suit is against law and against Specific Relief Act. They relied upon the decisions of Hon'ble Apex Court in Chandrama Singh & Others vs Mirza Anis Ahmad 3 and 3 2011 SCC Online All 528 11 also on Mahesh Pakhare vs A.S. Gopal & Others 4. It is further contended that plaintiffs are not party to the documents and they could not simply ask for relief of declaration and they have to seek the relief of cancellation of the sale deed as per the decision of the Hon'ble Apex Court in the case of Hussain Ahmed Chowdry and others vs Habibur Rahman 5, in which it was held as follows:-
"29. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed under Section 31 of the Act, 1963. But if a non-executant seeks annulment of a deed, he has to only seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him.
The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and B' - two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and non est/ illegal and he is not bound by it. Admittedly, the Plaintiff being executant of the sale deed has to necessarily file a suit for cancellation of the sale deed, therefore, the suit for declaration is barred under the law of Specific relief act."
13. It was further contended that the main intention of the plaintiff to file the suit is to declare them as owners, as such 4 2011 SCC Online AP 925 5 (2025) SCC Online SC 892 12 plaintiffs ought to have filed suit for cancellation of the sale deeds but not for declaration. In this regard, petitioners/defendants relied upon the very same Judgment as stated above in Hussain Ahmed (supra), in which it was held as follows:
"33. In fact, it is logically impossible for a person who is not a party to document or to a decree to ask for its cancellation. This is clearly explained by Wadsworth, J., in the decision rendered in Vellaya Konar (Died) & Anr. v. Ramaswami Konar & Anr., reported 1939 SCC OnLine Mad 149, thus: "When, the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void 'in toto', and his suit is in substance a suit for the cancellation of the decree or deed even though it be framed as a suit for declaration. But when he is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or that deed cancelled 'in toto'. That is a thing which can only be done by parties to the decree or deed or their representatives. His proper remedy therefore in order to clear the way with a view to establish his title, is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must therefore sue for such a declaration and not for the cancellation of the decree or deed."
14. Learned Counsel for petitioners/defendants further contended that the suit was filed by creating non-existing cause of action. Plaintiffs have created a cause of action by allegedly 13 cancelling the agreement of sale cum GPA by issuing notice, which is per se illegal as a registered document can be cancelled by registered document only. As such issuing notice, created a cause of action for filing the suit is not tenable under law. That apart, plaintiffs have admitted the execution of agreement of sale cum GPA, as such they cannot cancel only GPA and keep the agreement of sale subsisting, thus by cancelling the GPA by issuance of notice, created a false cause of action. The entire document of agreement of sale cum GPA has not been cancelled, thereby, suit was filed by clever drafting without seeking the foundation relief of cancelling the agreement of sale cum GPA and thus the plaint is liable to be rejected.
15. Admittedly, plaintiffs executed agreement of sale cum GPA and later cancelled the GPA unilaterally. As per the terms of the agreement of sale cum GPA, possession of the suit schedule property was already handed over to the petitioners/defendants and they are enjoying the same, as such respondents/plaintiffs ought to have filed suit for cancellation of the agreement of sale cum GPA and also for delivery of possession. Even though the suit is decreed, as there is no relief of delivery of possession, it cannot be enforced. Petitioners/defendants further stated that there is no document to prove that the agreement is renewed 14 and there is no declaration by a Court that agreement stood renewed automatically on exercise of option for renewal by the petitioners/defendants. The basis for claiming the relief of injunction is a subsistence of renewed agreement. As they filed suit for injunction without claiming declaration as to their subsisting rights under a renewed agreement, the suit is barred by limitation. Perusal of the plaint clearly shows that it was a clever drafting without seeking relief of recovery of possession and cancellation of agreement of sale cum GPA. Moreover, GPA is not cancelled as per provisions of law under Section 31 of Specific Relief Act, as such plaintiffs could not avail the remedy against the sale deeds. Therefore, the trial Court erred in dismissing the application.
16. In the result, the present Civil Revision Petition is allowed by setting aside the Order of the trial Court dated 07.03.2025 passed in I.A.No.2827 of 2024 in O.S.No.53 of 2017. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 30.04.2025 tri 15 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CIVIL REVISION PETITION No.983 of 2025 DATE: 30.04.2025 TRI