Andhra HC (Pre-Telangana)
Naspuri Dharmaiah And Anr. vs Kota Veeraiah @ Dr. V.K. Kota on 22 November, 1993
Equivalent citations: 1993(3)ALT712
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
JUDGMENT P. Venkatarama Reddi, J.
1. The second appeal arises out of the suit filed by the appellants herein for declaration that they are the exclusive owners of the house described in the plaint schedule and for permanent injunction restraining the defendant from interfering with their possession and to direct the Municipality to effect the mutation in the registers. The suit and the appeal thereon were dismissed. Hence, this second appeal.
2. The appellants-plaintiffs claim to have purchased the suit house from the defendant in the year 1978. A xerox copy of the unregistered sale-deed dated 15-4-1978 purportedly executed by the defendant in favour of the plaintiffs was produced before the trial Court. It was alleged that pursuant to the said sale, the appellants-plaintiffs had been in possession and enjoyment of the house since the year 1978. It is also alleged that the defendant was interfering with their possession and hence the suit was filed. The defendant filed a written statement admitting the factum of sale and acknowledging that the plaintiffs are the exclusive owners of the schedule property. He expressed no objection for passing the decree as prayed for.
3. The Courts below declined to grant any relief on the ground that there was nothing to show that the title passed from the defendant to the plaintiffs under the purported sale deed Ex. A-1 or by reason of adverse possession. No proof of possession in the form of tax receipts or any other evidence was filed. There was nothing to show that the defendant interfered with the possession of the plaintiffs. The original of the sale-deed said to have been executed in the year 1978, was not produced. The explanation given is that the original was not traceable. The lower Appellate Court states that even the Xerox copy was taken return of by the plaintiffs. The appellants' Counsel stated before the lower Appellate Court that even the Xerox copy was lost. The lower Appellate Court, therefore, doubted the existence of the original sale-deed. The Municipality, against whom also the relief was sought for, is not made a party. The lower Appellate Court commented that the suit is filed with a iew to avoid the stamp duty and registration charges which has the effect of defrauding the State of the revenue due to it.
4. It is contended by the learned Counsel for the appellants that on the basis of admissions made by the defendant, the judgment should have been rendered in view of Order XII Rule 6 C.P.C. The learned Counsel relied upon various decisions in support of his contention. I do not think that the Courts below erred in law in dismissing the suit and the appeal or that any substantial question arises for consideration in this appeal. On the basis of mere admissions made by the defendant, the decree need not always be granted in terms of the prayer made in the suit. The Court has the duty to see whether the plaintiff is entitled under law to get the relief sought for. The Court should also see whether the suit is collusive meant to defeat the law concerning public revenues, public policy, etc. The Court ought not to pass a decree mechanically based on the admissions or consent of parties. Coming to the facts of the case, obviously the title cannot pass under an unregistered sale-deed, assuming that such sale deed exists. As long back as in 1951, more or less a similar case had arisen before the Hyderabad High Court in Kaisar Vardha v. Manvat Rao, AIR 1951 Hyderabad 63. A Division Bench held:
"Evidently plaintiff is not entitled to patta under the transfer, because the transfer is ineffective under the law of Registration. That being so the mere fact that execution of an ineffective document has been proved by the admission will not complete the defect of title arising under a specific law. It is a well known doctrine of law that consent of parties cannot override a statute."
The existence of the sale deed itself is doubtful as rightly pointed out by the Courts below. Even the alleged xerox copy was taken return of by the appellant for reasons best known to him and it is said to be lost now. If that sale-deed is ignored, even the plea of adverse possession gets dislodged from its foundation. The possession of the plaint schedule house was purportedly delivered pursuant to the alleged sale-deed. When the existence of the sale deed is itself doubtful, the starting point of adverse possession pleaded by the appellant loses its sanctity. There is no iota of evidence in support of the possession hostile to the defendant for a period of 12 years excepting a bare averment in. the written statement admitting the plaintiff's possession. The learned Counsel for the appellants contends that there was no occasion to adduce any evidence in view of the admission made in the written statement, more so when no issues were framed. This is the only an over-simplification of the case. In a collusive suit brought about for the purpose of circumventing the law relating to stamp duty and registration charges, the mere admission made by the defendant cannot be considered to be conclusive and proof positive of the factum of adverse possession. There must be some evidence aliunde in support of the plaintiffs' possession. It must be noticed that the appellants are seeking a relief that they should be declared as the exclusive and absolute owners of the plaint schedule house. They are not asking for a mere injunction against the defendant. Thus, in a case like this where the plaintiffs want a judgment in rem concerning the ownership of suit property, they should not be content with the mere admission of the defendant who is too ready to invite a decree by consent. That apart, the very foundation on which the plea of adverse possession rests is wanting in this case. The plea of adverse possession presupposes that the defendant against whom the relief is sought for, is the true owner of the property and the possession of the plaintiffs is hostile to such true owner. But the appellants failed to produce any evidence to establish that the alleged vendor (defendant in the suit) is the owner of the property having title thereto. The certificate issued by the Municipality a few days prior to the suit and filed along with the plaint does not have much of bearing on the defendant's title to the house. The need to prove that the real ownership vests with the defendant, cannot be said to have been obviated by the mere averments in the plaint and written statement. If that be the case, it is enough if two parties who have nothing to do with the property colluded together and got a decree on the basis of consent and " claim title to the property pursuant to that decree. This would be leading to startling and unjust results. The minimum evidence that is expected to be adduced by the party who seeks a declaration of his exclusive and absolute ownership to the property is to establish that the defendant against whom adverse possession is claimed, is the true owner of the property. On this aspect, the averments in the plaint are sketchy and vague, not to speak of lack of evidence. Thus, the appellants cannot lay undue stress on the admission made by the readily obliging defendant.
5. Another curious part of the case is that the occasion for filing the suit is said to be the interference by the defendant in view of the strained relations. But there is not even an averment in the written statement to that effect. In the very nature of things, such plea cannot be true. If there was such enmity and interference, the defendant would not have, within one week after the filing of the suit, filed a written statement admitting the material averments and expressing no objection for the relief sought for by the plaintiffs. As observed by the lower Appellate Court, the facts of the case unmistakably point to the conclusion that the suit has been laid with a view to circumvent the law relating to provisions of law of Stamp Duty and Registration. It is difficult to say that this finding of fact reached by the Court below is perverse or baseless. The Court cannot be made use of to achieve an unlawful objective.
6. The learned Counsel for the appellant cited the judgment of this Court in M. Lakshmidevamma v. The Land Acquisition Officer, for the proposition that the purchaser under an invalid or void sale could remain in adverse possession and acquire a valid title on the expiry of 12 years from the date of sale by virtue of Section 27 of the Limitation Act. There is no quarrel with the proposition enunciated in the said decision. But as I already pointed out, the acquisition of title by adverse possession is not established in the instant case merely on the strength of the so-called admission made by the defendant in the written statement. The learned Counsel then cited various decisions, viz., K. Venkata Subrahmanyam v. K. Krishna Murthy, 1986 (2) APLJ 272, Sobha Singh v. Pirthesingh, AIR 1951 Nagapur 259 and Nagindas v. Dalpathram, in support of the proposition that the admitted facts need not be proved and a decree can be granted on the basis of the facts admitted in the pleadings, without any further trial. But I do not think that the proposition spelt out in these decisions have any application to the facts of the present case. As observed earlier, the admission made by the defendant cannot form the basis of a decree declaring the appellants as the absolute owners of the property having regard to the fact that the ownership of the maker of the admission itself has not been established by an iota of evidence. Moreover, the intrinsic worth of the admission and the true purpose of admission can be legitimately taken into account by the Court while considering the question whether decree should be passed in terms of admission under Order 12 Rule 6. I do not think that any of the judgments aforementioned would run counter to this cardinal principle that has to be applied and adopted.
7. The learned Counsel for the appellant referred to the decisions in Vishram Arjun v. L. Sankaraiah, AIR 1957 A.P. 784 and Ponnusatni v. Kailasam, AIR 1947 Madras 422 and contended that the . original document need not be produced and the execution thereof need not be proved irrespective of the fact whether the original document was insufficiently stamped or not, when there is no dispute about its execution. This principle again has no application in the present case where the document itself-either original or Xerox copy (initially filed) is not forthcoming and no convincing reasons are given for taking return of the document and not filing it again in the appeal. the admission of the execution of the document by the defendant for his own reasons does not really help the appellants when the very existence of the document is in doubt.
8. The learned Counsel for the appellants then relied upon the judgment of the Allahabad High Court in Manager, Bettiah Estate v. Bhagwati Saran Singh, . At paragraph 21, it was observed:
"When an issue is decided as preliminary issue the Court must confine itself to the issue raised in the pleadings and should not enter into the factual controversy behind the said issue which unfortunately has been done in the instant case. There was no clear plea in defence as to why the suit was not maintainable. No law was cited which barred the suit. In these circumstances issues could not have been decided as preliminary issues."
I do not think that the above case which relates to framing of a preliminary issue has any bearing on the facts of the present case. The learned Counsel then submitted that without framing the issues and giving opportunity to adduce evidence, the appellants cannot be expected to adduce any evidence. There is an obvious fallacy in this argument. If the issues were not framed and the trial was not conducted, it was only because the appellants themselves maintained the position that there was no triable issue and no evidence need be recorded in the face of the admission of the defendant. If really there was denial of opportunity, the said complaint should have been voiced before the appellate Court. It is not the case of the appellants even before the appellate Court that they could have proved the facts stated in the plaint by adducing evidence, if such opportunity was given. This objection raised at the stage of second appeal has no substance. In fact, no question of law based on this argument has been formulated for consideration.
9. Before I close the case, I would like to refer to the fact that after the case was partly heard, a petition to record the compromise under Order XXIII Rule 3 CPC has been filed. In that compromise memo, the defendant sought for a decree to be passed declaring the appellants as the absolute owners by virtue of acquisition of title by adverse possession and to mutate the names in the property registers of the Municipality. I have rejected this petition (vide order passed in CMP 14431/93 today). The filing of the so called compromise memo even at the stage of admission would further indicate that the suit is nothing but a collusive one meant to circumvent the provisions relating to stamp duty and registration.
10. In view of the foregoing discussion, I do not find any merit in this second appeal and the second appeal is dismissed at the stage of admission.