Telangana High Court
Cheruku Maheshwar vs Smt. Sathvai Anasuya And 7 Others on 2 June, 2021
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao, T.Vinod Kumar
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
Interlocutory Application No.1 of 2021
in
Civil Miscellaneous Appeal No.184 of 2021
and
Civil Miscellaneous Appeal No. 184 of 2021
COMMON JUDGMENT:(Per Hon'ble Sri Justice M.S. Ramachandra Rao) This CMA is filed challenging the order dt.8.3.2021 passed in I.A.No.402 of 2020 in O.S.No.300 of 2020 by the VIII Addl. District Judge, Ranga Reddy District.
2. The Appellant is the plaintiff in the suit.
The case of the appellant/plaintiff in the suit:
3. The appellant had filed the said suit for recovery of possession of the plaint schedule property along with structures, if any, in that property by declaring a Regd. Sale Deed Doc.No.6867/1993 dt.27.8.1993 and the consequential rectification deed, if any, as sham, forged, fabricated, null and void and not binding on him and that it does not confer any right on respondent no. s 1 and 2; to declare a consequential Regd. Sale Deed Doc.No.2112/2018 dt.19.2.2018 executed by respondent no.s 1 and 2 in favor of the respondent no.3 to 5, a Regd. Development Agreement-cum-General Power of Attorney Doc.No.2118/2018 dt.26.2.2018 and a Regd. Supplementary Development Agreement Doc.No.11272/2019 dt.25.10.2019 executed ::2:: MSR,J & TVK,J cma_184_2021 by respondents 3 to 5 in favor of 6th respondent represented by respondent no.7 and 8 as sham, null and void and not binding on the appellant and does not confer any right over respondents 3 to 8 in the plaint schedule property.
4. The plaint schedule property is Ac.0-31 gts in Sy.No.10 situated in Medipally village and Mandal, Peerzadiguda Municipal Corporation, Medchal Malkajgiri District within specified boundaries.
5. The case of appellant / plaintiff is that he is the absolute owner and possessor of Acs.2.03 gts. in Survey No.10 situate at Medipally Village, Medipally Mandal (earlier Ghatkesar Mandal), Medchal Malkajgiri District (earlier Ranga Reddy District), having inherited the same from his ancestors; that pattadar pass books and title deeds were also issued to him; that he sold Ac.0.20 gts. out of total extent of Acs.2.03 gts. in Survey No.10 to one Sri R. Papaiah and he retained ownership and possession of the balance extent of Acs.1.23 gts. in Survey No.10.
6. He alleged that one S. Bhadhraiah's land and his land were adjacent to each other and the 1st respondent is the wife of the said S. Bhadhraiah, and the 2nd respondent is his daughter; that in the end of November, 2019, the respondent nos.6 to 8 were doing dome work in the suit schedule property and when the appellant asked them, they stated that they have taken a Development Agreement from respondent nos.3 to 5 for developing the land purchased by them from respondent nos.1 and 2; that he wanted to verify whether the development work was being done only in S. Bhadhraiah's land and ::3:: MSR,J & TVK,J cma_184_2021 not in his land, and also sought a survey of land in Survey No.10, but the Survey Department did not cooperate and delayed the conduct survey.
7. The appellant further contended that during the survey which was done on 14.08.2020 it came to his notice that development work was being undertaken by respondent nos.6 to 8 in Survey No.10 in the appellant's land, but not in S. Bhadhraiah's land, as he had thought; and when he asked for documents, the respondents refused to give any documents.
8. According to appellant, he then applied for certified copies of documents and was shocked to know that the there is a Sale Deed dt.27.08.1993 in favour of respondent nos.1 and 2 alleged to have been executed by appellant and one Sri Cheruku Srinivas, but the signature of the appellant on the said document was forged; that he did not know about the signature of Sri Cherku Srinivas and that the said person has no land in Survey No.10 or 11; that even the Rectification Deed Document No.1800/2002 was not signed by him, that he could not obtain copy thereof, and that the said document was referred to in the registered Sale Deed dt.19.02.2018 executed by respondent nos.1 and 2 in favour of respondent nos.3 to 5
9. He contended that the Sale Deed dt.19.02.2018 refers to Ac.0.26 gts. in Survey No.10 of Medipally Village and he could not understand how land in survey No.11 has become land in Survey No.10 when this Sale Deed dt.19.02.2018 was brought into existence; and probably under the guise of the Rectification Deed, the Survey ::4:: MSR,J & TVK,J cma_184_2021 number might have been changed by forging the signature of the appellant once again.
10. He further contended that in view of the above, the respondent nos.1 and 2 did not derive any right, title or interest over the suit schedule property in Survey No.10 and the subsequent purchasers, ie., respondent nos.3 to 5 also did not derive any right, title or interest over the same, and consequently, the Development Agreement dt.26.02.2018 and Supplementary Agreement said to have been entered into by respondent nos.3 to 5 in favour of respondent nos.6 to 8 has no legal sanctity. He further alleged that respondents had entered into his property of extent Ac.0.31 gts. without any right or title by forging his signature and fabricating the documents and the documents relied upon by respondents are not binding on him. IA No.402 of 2020
11. Along with the suit he filed I.A.No.402 of 2020 under Or.XXXIX R.1 and 2 CPC for a temporary injunction restraining the respondents from alienating the plaint schedule property to any one in any manner or create charge over the said property pending disposal of the suit.
12. The appellant reiterated the contents of the plaint and alleged that the respondents are making hectic efforts to alienate part of the plaint schedule property.
::5:: MSR,J & TVK,J
cma_184_2021
The stand of the respondent no.1 in the IA.
13. The 1st respondent contended that she purchased Ac.0.26 gts. from the appellant and Cherku Srinivas under a registered Sale Deed dt.27.08.1993 and possession of the property was delivered to her and her daughter. According to her, the appellant and Cherku Srinivas came forward to correct Survey No.11 mentioned in the Sale Deed dt.17.08.1993 as Survey No.10 by stating that the land would fall in Survey No.10, that respondent nos.1 and 2 believed them and agreed to it, and thereafter, a registered Rectification Deed dt.02.03.2002 was executed correcting the survey number, but keeping the boundaries unaltered.
14. Thereafter, a road was formed on the Northern side by the 1st respondent's husband S. Bhadhraiah and so, the Northern boundary was described as 'Road' in the Sale Deed dt.19.02.2018 executed by respondent nos.1 and 2 and registered in favour of respondent nos.3 to 5.
15. It was also contended that respondent nos.3 to 5 entered into a registered Development Agreement - cum - General Power of Attorney dt.26.02.2018 with respondent nos.6 to 8 to develop the land into residential apartments and the entire construction is completed except certain finishing works.
16. The 1st respondent further alleged that the appellant had set up claim in respect of Acs.1.23 gts. in Survey No.10 of Medipally village without disclosing the above facts and also the fact that the land was ::6:: MSR,J & TVK,J cma_184_2021 already divided into plots and sold to third parties; and the appellant's plea that he came to know about the location of the subject land only on 14.08.2020, cannot be accepted. She further denied that the Sale Deed dt.27.08.1993 or the Rectification Deed dt.02.03.2002 are fabricated documents. According to her, the suit is barred by limitation and the cause of action is created artificially, and the suit is akin to a speculative litigation.
The stand of the respondent no.3-8 in the IA.
17. The 3rd respondent filed a counter on his behalf and on behalf of respondent nos.4 to 8 supporting the contentions of respondent nos.1 and 2.
18. It was contended that building permission from the Hyderabad Metropolitan Development Authority was obtained on 02.01.2019 for construction of stilt plus five upper floors; that the 6th respondent planned construction of a building with 55 apartments; that the construction of the entire building was complete in all respects and respondent nos.3 to 6 also sold 6 flats to purchasers and further made agreements in respect of 20 flats with prospective purchasers; that the construction had commenced and was in progress for two years, and the appellant who was resident of the same village was fully aware of the same but never did anything while such construction was in progress, and the 6th respondent had invested crores of rupees and apartments were also purchased by third parties.
::7:: MSR,J & TVK,J
cma_184_2021
19. He alleged that the appellant filed the suit belatedly without having any right or title over the suit schedule property; and that the appellant had approached the Court with unclean hands and suppressed material facts, and is therefore disentitled to any relief.
20. Before the Court below the appellant marked Ex.P1 to P7 and the respondents marked Ex.R1 to R14.
The order of the Court below:
21. By order dt.8.3.2021, the Court below dismissed IA.No. 402 of 2020.
22. The Court below referred to the contentions of parties and held that the appellant could not clarify several important points in his Interlocutory Application and in the course of arguments.
23. It observed that appellant suppressed important fact that he sold out his land in Survey No.10 adjacent to the suit land by converting the said land into plots; that the said sales took place in the year 2003 to 22 different persons, and this was not denied by the appellant in the course of his arguments. It further observed that appellant was thus aware of the suit land, its location and extent very minutely at that time itself, and the contention of appellant that he was not aware of the construction taking place in his land till 2020 is prima facie not believable.
24. It also observed that recitals in the Sale Deed Ex.P.1 dt.27.08.1993 and the Rectification Deed dt.02.03.2002 indicate that ::8:: MSR,J & TVK,J cma_184_2021 in the former document the Survey No.11 was wrongly mentioned and it was corrected as Survey No.10 by the later document.
25. It also observed that the Sale Deed dt.27.08.1993 was executed 27 years ago, and it cannot, at this stage, be brushed aside on the simple allegation that it is a forged one.
26. It also recorded a prima-facie finding that signatures and the documents in the Vakalat and the plaint appear to be similar to that of signature on the Sale Deed dt.27.08.1993.
The CMA
27. Challenging the said order in IA 402 of 2020, the appellant has filed the instant Appeal.
28. Heard Sri T.P.Acharya, Counsel for the Appellant and Sri Srinivas Velagapudi for the respondent No.1-8.
29. Counsel for the Appellant contended that the there is no dispute that the appellant is the owner and possessor of the land in Sy.No.10, 11 and 17 of Medipally Village; that the respondent No.1 has forged the appellant's signature and created a Regd.sale deed dt.27.8.1993 (Ex.R1=Ex.P1) as if the appellant had sold land admeasuring Ac.0-26 gts in Sy.No.11 of Medipally village; that later this Sy.No. in Ex.P1 sale deed was rectified by the respondent no.1 as 'Sy.No.10' by allegedly executing the rectification deed Doc.No.1800 of 2002 dt.2.3.2002 (Ex.R-3); that respondent No.1 had created the rectification deed dt.2.3.2002 by forging appellant's signatures and got it registered as Doc.No.1800/2002 changing the Sy.No. as '10' ::9:: MSR,J & TVK,J cma_184_2021 instead of '11' which does not create any right, title or interest in favor of respondent no. 1 in regard to the land in Sy.No.10 of Medipally village. According to him, the other documents were executed subsequently and once the rectification deed is set aside, they automatically would stand nullified.
30. The counsel for the respondent contended that there was no forgery or fabrication of Ex.P1 or Ex.R3 and it was the appellant and Cheruku Srinivas who executed these documents before the concerned Sub-Registrar, that the appellant kept quiet all these years and after the land was given for development by the respondents, and 2 years after construction was commenced in the land, they are raising these disputes almost 20 years after executing Ex.P1 and R3 documents by falsely alleging that they are forgeries. He also pleaded that suit claim is hopelessly barred by limitation.
The consideration by the Court
31. We have considered the respective contentions.
32. We may point out that Ex.P1 = Ex.R1 was allegedly executed by the appellant and Cheruku Srinivas in favor of the 1st respondent on 27.8.1993. Land in Sy.No.11 admeasuring Ac.0.26 gts within specified boundaries was conveyed therein.
33. Later Ex.R3 was allegedly executed by the appellant and Cheruku Srinivas substituting Sy.No.10 for Sy.No.11 in the regd. sale deed dt.27.11.1993.
::10:: MSR,J & TVK,J
cma_184_2021
34. But it is important to note that there was no change made in the boundaries of the land sold.
35. In this suit filed in 2020, it is for the first time being contended by appellant that these documents are forged documents.
36. It is settled law that registration of a document is public notice of the transaction affecting immovable property comprised therein.
37. In Dattatreya Shanker Mote v. Anand Chintaman Datar1, the Supreme Court held :
"28. Reference to Section 27(b) of the Specific Relief Act, 1877 (corresponding to Section 19(b) of the new Specific Relief Act, 1963) would furnish the answer. The old Act had provided certain illustrations, but the new Act has deleted them. Section 27(b) of the old Act is in the following terms:
"27. Except as otherwise provided by this chapter, specific performance of a contract may be enforced against --
(a) * * *
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract."
The illustrations given in respect of clause (b) of Section 27 of the old Specific Relief Act are all cases of sale or out and out transfer of land. It is apparent from this clause that even a subsequent transfer is subject to a contract under which a right to obtain a transfer of specific property has been created. If a subsequent purchaser takes the risk of not ensuring himself of any prior rights in respect of the property to be purchased by him, he cannot be said not to have acted in good faith.
1
(1974) 2 SCC 799, at page 817
::11:: MSR,J & TVK,J
cma_184_2021
But there may be instances where he has notice or but for his carelessness would have had notice of the prior charge and nonetheless has obtained a transfer, such as where the charge-holder is in possession of that property, or where the charge is registered but no inspection is taken of the Register of Charges, mortgages and transfers. If he has such a notice either by registration or by property being in the possession of the person who has dealt with it first or otherwise, then even the fact that he has a registered document and the right created in the property is only by a simple contract does not avail him."( emphasis supplied)
38. Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev2, the Supreme Court explained this principle in the following terms:
"40. Now the rectification deed is a registered document. The agreement by the Sankhalas with the builder is dated 16-7-1994 and it specifically refers to the deed of rectification (dated 18-6-1992). The Jains' agreement of sale dated 19-8-1994 with the builder no doubt omits to refer to the rectification deed and says that there are only some "claims" of the Lokrams. But the Sankhalas were obviously more truthful. Now if the agreement of the Sankhalas had put the builder on notice of the rectification deed specifically, as stated earlier, it is prima facie clear that the builder had actual notice and was obliged to enquire into its details. Thus there is actual notice. There is also constructive notice inasmuch as the rectification deed is a registered deed and Section 3 of the Transfer of Property Act comes into play.
41. Under Section 3 of the Transfer of Property Act, "a person is deemed to have notice" of a fact when he actually knows that fact or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I thereto says:
"Explanation I.--Where any transaction relating to immovable property is required by law to be and has been 2 (1999) 5 SCC 222, at page 233 ::12:: MSR,J & TVK,J cma_184_2021 effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration...."
42. Inasmuch as the rectification deed is a registered deed, it is deemed to be notice to the builder in view of Section 3 of the Transfer of Property Act."( emphasis supplied)
39. So as per Explanation I to Sec.3 of the Transfer of Property Act, 1882, the appellant is deemed to have constructive notice of the sale deed Ex.P1 executed on 27.8.1993 as well as the rectification deed Ex.R3 dt.2.3.2002 in favour of respondent no.1 since they are both registered documents.
40. Next, the Pahani for 1996-97 (Ex.R-8) shows the respondent no.1 as owner of land in Sy.No.11 of Medipally village. This was prior to the execution of Ex.R3 rectification deed. But Ex.R8 also corroborates prima-facie the sale of land by the appellant to respondent no.1 in Sy.No.11, and the plea of the appellant that he never executed Ex.P1=R1 sale deed on 27.8.1993 prima facie does not appear to be correct.
41. Also the Court below has given a prima-facie finding, after comparing the signature on Ex.P1 with the vakalat and plaint, that signatures of the appellant on the vakalat and plaint are similar to the signatures purporting to be those of the appellant in Ex.P1.
42. So the plaint filed in 2020, prima-facie seeking setting aside of these documents, appears to be barred by limitation.
::13:: MSR,J & TVK,J
cma_184_2021
43. It is the case of the respondents that on 2.1.2019, they obtained Ex.R9 building permission BA No.13/2018-19 from the Hyderabad Metropolitan Development Authority for construction of Stilt + 5 floors and that construction was commenced immediately. Ex.R10- CD was filed with photos of the stage of construction along with the counter affidavit.
44. But the suit is filed in December, 2020 almost 22 months after such construction commenced. This also shows that the appellant did not act bona fidely. He ought to have immediately approached the Civil Court for appropriate relief, but did not do so and waited till the construction reached an advanced stage.
45. In this view of the matter, we are not inclined to interfere with the order passed by the Court below dismissing IA.No.402 of 2020. However any alienation made by the respondents shall abide by the result of the suit.
46. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs.
47. We direct that the Court below shall decide the suit uninfluenced by the observations/findings made in it's order dt.8.3.2021 in IA.No.402 of 2021 or in this order passed in the Civil Miscellaneous Appeal.
48. Interlocutory Application No.1 of 2021 in Civil Miscellaneous Appeal No.184 of 2021 is allowed.
::14:: MSR,J & TVK,J
cma_184_2021
49. Pending miscellaneous petitions, if any, in this Appeal shall stand dismissed. No costs.
____________________________ M.S.RAMACHANDRA RAO, J _______________________ T. VINOD KUMAR, J Date: 02-06-2020 Ndr