Gvpr Engineers Limited vs P. Sri Vidya on 21 October, 2024

[Cites 29, Cited by 0]

Telangana High Court

Gvpr Engineers Limited vs P. Sri Vidya on 21 October, 2024

Bench: P.Sree Sudha

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

         SECOND APPEAL Nos.387 and 388 of 2022

COMMON JUDGMENT:

These appeals are filed against the Common Judgment and decree dated 10.10.2022 in A.S.Nos.11 and 12 of 2009 passed by the learned II-Additional District and Sessions Judge, Sangareddy, in which the Judgment and decree dated 30.12.2008 in O.S.Nos.76 & 90 of 2003, passed by the learned Senior Civil Judge, Sangareddy, was confirmed.

2. Parties herein are referred as plaintiffs and defendant as arrayed before the trial Court in O.S.Nos.76 and 90 of 2003.

3. The brief facts of the case are that initially one P.Sri Vidya and P.Karthik filed separate suits vide O.S.No.76 and 90 of 2003 against one Arjula @ Ponnala Vaishali, for declaration of title and for consequential recovery of possession and for correction of entries in the revenue records in respect of the suit schedule property. Plaintiffs stated that they are absolute owners and possessors of the agricultural land bearing Sy.No.192/A/10, admeasuring Acs.5-19 gts each, situated at Kollur Village, Ramachandrapuram Mandal, Medak District. 2 They purchased the said property from one J.V.Lakshman Rao, through registered sale deed vide document Nos.2812 and 2813 of 1999, dated 12.07.1999. He purchased the land admeasuring Acs.10-38 gts in Sy.No.192/A/10, through registered sale deed bearing document No.585 of 1998, dated 23.02.1998, from one V.Narayana Rao, who is none other than his father-in-law. It is also stated that V.Narayana Rao arranged the sale transaction between plaintiffs and J.V.Lakshman Rao and also attested the sale deed executed by J.V.Lakshman Rao in favour of plaintiffs. He had shown the location of the property to plaintiffs and also assured them that property is free from encumbrances and charges. In the sale deed executed in favour of J.V.Lakshman Rao, the southern boundary of the property was shown as Sy.No.193. When plaintiffs questioned the same, both J.V.Lakshman Rao and V.Narayana Rao represented that it was a mistake and there was no such Sy.No.193 on the southern boundary and they promised that they will rectify the same. Accordingly, they purchased the property and from the date of purchase, they are in peaceful possession and enjoyment of the property.

4. In the third week of May, 2002, plaintiffs faced disturbances from their vendor and some others and they made false claim, as such they filed O.S.Nos.122 and 123 of 2002, for perpetual injunction. Defendant also filed another suit against them and sought for title over the suit schedule property by way of registered sale deed executed in her favour by one A.Satya Prasad, who purchased the property from one K.Sharath Chandra. The said K.Sharath Chandra purchased the suit schedule property from one G.Satyanarayana, who purchased the same from V.Narayana Rao through G.P.A holder V.Padma i.e., wife of V.Narayana Rao, by way of unregistered sale deed. It is stated that the said G.Satyanarayana after purchasing the property, applied for sanction of patta in his name and got the unregistered sale deed validated and also got revenue entries mutated in his name and thus claiming ownership over the suit schedule property. The learned Junior Civil Judge, after hearing the petitions filed by plaintiffs and defendant, passed a Common Order granting injunction in favour of defendant and dismissed the petitions filed by the plaintiffs, against which they preferred C.M.A.Nos.18, 19 and 20, in which it was observed that multiple questions of title are involved and filing a 4 comprehensive suit is appropriate and directed the defendant not to alienate the suit schedule property to third parties.

5. It is further stated that vendor of plaintiffs along with V.Narayana Rao, who is the vendor's vendor of the plaintiffs, in collusion with defendant created several transactions with a mala fide intention to deprive plaintiffs from their ownership and enjoyment over the suit schedule property. They created unregistered sale deed dated 25.05.1996, on a subsequent date to disturb their title. Plaintiffs have filed O.S.No.299 of 2002, for sending the said unregistered sale deed to Forensic Department to find out the exact age of the document. The Forensic Department after due investigation gave a report stating that there is no mechanism to find out the exact date of execution of any document, but stated that the said document was of subsequent date than as shown on the document and this clearly shows that the said document was fabricated by V.Narayana Rao, after selling the property to plaintiffs by J.V.Lakshman Rao and by presenting the same got validated by the Mandal Revenue Officer and made several transactions with several persons and at last to the defendant through a basic document i.e., unregistered sale deed, as such defendant does 5 not possess valid title and flow of title is illegal. Moreover, as per the law the effect of validation of unregistered sale deed will come into operation only from the date of alleged validation, but not before. It is further stated that as on the date of mutation of the schedule property in the name of G.Satyanarayana in the revenue records, the land stood in the name of J.V.Lakshman Rao and the sale in favour of plaintiff was already completed. Without issuing any notice to the plaintiffs, the proceedings of validation were executed on 25.05.1996 and mutation of entries was completed. The defendant has no valid and legal title to the schedule property. Execution of 4 sets of registered sale deeds within a span of two months, substantiate their contention. Defendant grabbed the possession of the suit schedule property under the guise of Orders in O.S.No.122 of 2002, as such they filed suits for declaration and possession and also to declare the entries in the revenue records in the name of defendant as invalid and the plaint was filed on 25.03.2003.

6. In the written statement filed by the defendant through G.P.A holder, she denied all the averments of the plaint and stated that she filed O.S.No.299 of 2000, when plaintiffs tried to interfere with her peaceful possession and enjoyment of the 6 land bearing Sy.No.192 admeasuring Acs.10-38 gts with specific boundaries as shown below:

      North:      Sy.No.192
      South:      Sy.No.192 and Cozy Retreat
      East:       40' internal road
      West:       Sy.No.192 & cozy Retreat

She also stated that she obtained injunction Order against the plaintiffs. The suit was decreed in her favour on 22.07.2003, restraining the plaintiffs from interfering with her peaceful and lawful possession of land in Sy.No.192, admeasuring Acs.10-38 gts. She further stated that G.Satyanarayana has purchased the land from V.Padma, who is the G.P.A holder/wife of V.Narayana Rao, on 25.05.1996. From then onwards, G.Satyanarayana was in possession and enjoyment till it was sold. V.Narayana Rao had executed the registered G.P.A in favour of V.Padma on 14.02.1995. As G.P.A holder, V.Padma sold the property to G.Satyanarayana and he filed an application before the Mandal Revenue Officer, Patancheru, for effecting mutation and to issue pattadar passbooks. Accordingly, on due enquiry, the Mandal Revenue Officer issued pattadar passbooks by Order dated 08.02.2000 and then mutation was effected in the name of G.Satyanarayana. He sold the property to K.Sharath Chadra, through a registered sale deed dated 17.02.2000 and he sold 7 the same to A.Satya Prasad on 16.03.2000, who in turn sold the said property to the defendant on 24.03.2000. After purchasing the property, defendant filed an application before the Mandal Revenue Officer, Patancheru, for mutation of revenue records and as per Order dated 14.06.2000 mutation was effected in her name. She was in exclusive possession and enjoyment of the property with definite boundaries. The land was brought into cultivation and laid fencing and developed by investing huge money, as such plaintiffs knowing fully well about wrong boundaries, claiming right over the property. The boundaries mentioned in the sale deed of the plaintiffs are contrary to the schedule mentioned in the plaint, as such they are not entitled for any relief. Defendant further stated that she was the bona fide purchaser and plaintiffs are no way concerned with the suit schedule property and they have no subsisting title over the property as on the date of filing the suit. Therefore, requested the Court to dismiss the suit.

7. In O.S.No.76 of 2003, P.Srividya was examined herself as P.W.1 and also got examined P.Ws.2 to 5 on her behalf and got marked Exs.A1 to A9. D.Ws.1 and 2 were examined on behalf of the defendant and got marked Exs.B1 to B7 on her behalf. In 8 O.S.No.90 of 2003, P.Karthik was examined himself as P.W.1 and also got examined P.Ws.2 to 6 and got marked Exs.A1 to A16 on his behalf. D.Ws.1 and 2 were examined on behalf of the defendant and got marked Exs.B1 to B7 on her behalf. The trial Court after considering the oral and documentary evidence and also the arguments of both sides, decreed both the suits with costs declaring the plaintiffs as owners of the suit schedule property and held that plaintiffs are entitled for recovery of possession and for rectification of entries in the revenue records. Aggrieved by the said Judgment and decree, defendant in the suit preferred appeals vide A.S.Nos.11 and 12 of 2009. During the pendency of the proceedings, appellant No.2 therein was added as per Orders dated 03.06.2019, passed in I.A.Nos.336, 337, 341 and 342 of 2019. The first appellate Court also considering the arguments of appellant No.2 therein, confirmed the Judgment and decree passed by the trial Court. Aggrieved by the said Judgment and decree, preferred the present seconds appeals with the following substantial questions of law:

 Whether the plaintiffs have discharged the burden of proof in establishing his title?

 Whether suit for declaration of title and recovery of possession is maintainable against appellant/defendant, who has title to a different property than that of the plaintiff?

 Whether the plaintiffs/respondents can maintain suit without establishing disposition by the defendant?  Whether the appellant is bonafide purchaser under Section 41 of Transfer of Property Act, 1882?

 Whether plaintiffs can maintain suit for declaration and possession on the basis of a document which has different boundaries, i.e., different property?

 Whether revenue authorities based on exhibit A7 modify the boundaries or mutation to revenue records under ROR Act modify boundaries of property under Exhibit A7?  Whether plaintiffs can maintain suit without challenging AGPA dated 14.02.1995 and unregistered sale deed dated 25.05.1996?

 Whether plaintiffs can maintain the present suits without declaration that sale deed, Exhibit A7, is for present suit schedule property?

 Whether the terms of registered document can be altered, rescinded or varied by way of parol evidence, in view of second part of proviso (4) to Section 92 of the Indian Evidence Act, 1872?

 Whether witness in a registered document stands in the same footings that of the executants of a registered document?

 Whether the Judgment and decree of the trial Court as well as the first appellate Court is perverse and contrary to the evidence on record?

 Whether the Court can ignore additional documents having material bearing on evidence?

8. Heard arguments of both sides and perused the entire evidence on record.

9. Initially, appeals filed by the defendant were dismissed on 15.02.2010 and the matter was carried in S.A.Nos.826 and 829 of 2010 and this Court by Judgment dated 29.10.2018, remanded the matter to the trial Court for fresh consideration 10 and for disposal on merits and also gave a direction to dispose of the matter within six months from the date of receipt of a copy of the Judgment. Appellant No.2 in A.S.Nos.11 and 12 of 2009, had also approached this Court and filed implead applications. When the matter was remanded, he had withdrawn the applications and filed said applications before the first appellate Court and the same were allowed on 03.06.2019 and he was impleaded. In the above second appeals, defendant has taken following defences:

 Disputing the very identity of the suit schedule property, in view of the discrepancy in the description of boundaries in the sale deed of the plaintiff.  Protection under Section 53A of the Transfer of Property Act, 1882.

 Non-maintainability of suit for non-joinder of necessary and proper parties.

 Subsistence of decree of permanent injunction in favour of the defendant and against the plaintiff granted by the competent Civil Court, from which no leave was obtained by the plaintiff to file the comprehensive suit for declaration.

 Mutation of name of the defendant in the revenue records.

10. Defendant and appellant herein have raised the following points for consideration in the first appeal:

 Whether the plaintiff is entitled for declaration of title in view of the contention of defendant and appellant No.2 that the boundary of the sale deed of the plaintiff under Ex.A8,towards southern side, is different when compared to the boundary of the sale deed of his vendor J.V.Laxman Rao, under Ex.A6, towards 11 southern side and therefore, the property purchased by the plaintiff is different from the property purchased by the vendor of the plaintiff. Thus, the plaintiff did not get any title and declaration of title cannot be granted?  Whether the plaintiff is entitled for recovery of possession, in view of the contention of the defendant and appellant No.2 that the plaintiff was never in the possession of the schedule property and therefore, the relief of recovery of possession cannot be granted?  Whether the plaintiff has not proved her title and the documents relied upon by her are fabricated and that when plaintiff admitted that there is discrepancy in boundary of her sale deed and the sale deed of her vendor and therefore, whether there is requirement of rectification of the error in the document, without which the property cannot be claimed as the same?  Whether the plaintiff is required to make the vendor of the plaintiff as parties and whether the plaintiff proved her title and her sale deed, without relying on the weaknesses in the case of the defendant?

 Whether the correction of entries in the revenue records cannot be done?

 Whether appellant No.2 is bonafide purchaser for valuable consideration, without notice, and therefore, it can avail the benefit of Section 41 of the Transfer of Property Act?

 The specific contention of the learned Counsel for the defendant and appellant No.2 and the averment in the written arguments filed by the defendant is that Ex.B3 unregistered sale deed dated 25.05.1996, under which the General Power of Attorney of original owner V.Narayana Rao sold the subject property to G.Satyanarayana, from whom the title had allegedly flown to the vendors of the defendant and to her finally, under Ex.B7 was validated as per law by the District Registrar concerned, that the validation relates back to the date of execution of the document that 25.05.1996, and therefore, the defendant has prior title to the schedule property and thus the plaintiff cannot claim title over the schedule property. Therefore, the defendant and appellant No.2 is entitled for grant of relief.

11. The learned Counsel for the plaintiffs contended that Ex.A8 was dated 12.07.1999, which was prior to the validation of the unregistered sale deed under Ex.B3, which was done on 07.09.1999, though Ex.B3 was dated 25.05.1996. It is further contended that though the southern boundary under Ex.A8 was different from the southern boundary under Ex.A1, the other three boundaries were tallying and property can be identifiable.

Originally, there was no pleading of the defendant in her written statement disputing the sale deed under Ex.A8 or the sale deed under Ex.A6 and even the boundaries in the sale deed of the defendant under Ex.B7 are showing the same boundaries under Ex.A8. In view of the prior title over the schedule property by the plaintiffs, the appeal filed by the defendant and appellant No.2 is liable for dismissal. He further relied upon several citations, which were extracted before the first appellate Court.

12. The flow of title of the plaintiffs in the suit is simple and straight. Plaintiffs mainly contended that V.Narayana Rao/father-in-law of J.V.Lakshman Rao, executed registered sale deed vide document No.505 of 1998, dated 23.02.1998, in favour of J.V.Lakshman Rao, regarding the land measuring an extent of Acs.10-38 gts in Sy.No.192/A/10 and he in turn vide 13 document Nos.2812 and 2813 of 1999, dated 12.07.1999, executed registered sale deeds to an extent of Acs.5-19 gts each in favour of the plaintiffs. Plaintiffs further stated that the southern boundary in the sale deeds executed in favour of J.V.Lakshman Rao, was shown as Sy.No.193 instead of Sy.No.192 by mistake. Even in the plaint, it was stated that when plaintiffs noticed the mistake and confronted with J.V.Lakshman Rao and V.Narayana Rao, they promised to rectify the same, as such they entered into registered sale deed. Perusal of Ex.A4-sale deed dated 04.03.1997, shows that one D.Ramachandra Reddy, D.Laxmi Narayan Reddy, D.Madhava Reddy, D.Gopal Reddy and D.Niranjan Reddy representing by their G.P.A holder S.Vinod Kumar and by the President of I.E.C.H.B.Society, executed sale deed for an extent of Acs.10-38 gts in Sy.No.192, situated at Kollur Village, Ramachandrapuram Mandal, Medak District, bounded by North-Land in Sy.No.192, South-Land in Sy.No.193, East-Land in Sy.No.192 and West- Land in Sy.No.192. It was mentioned that above five persons/vendors are absolute owners and the President of the Society was the possessor of the suit schedule property, as such V.Narayana Rao, joined in execution of the sale deed for an extent of Acs.10-38 gts out of total extent of Acs.46-38 gts. 14 Whereas, plaintiffs purchased the property under Ex.A1-sale deed dated 12.07.1999, from J.V.Lakshman Rao in Sy.No.192/A/10 with the following boundaries:

       North:      Sy.No.192
       South:      Sy.No.192
       East:       Sy.No.192-internal road
       West:       Sy.No.192

13. The flow of title of the defendant is that V.Narayana Rao, executed registered G.P.A in favour of his wife Padma on 14.02.1995. She executed un-registered sale deed in favour of G.Satyanarayana on 25.05.1996. Later, M.R.O, Patancheru issued pattadar passbook on 08.02.2000 and mutation was effected and the sale deed was validated under RoR Act on 07.09.1999. The said G.Satyanarayana sold the property in favour of K.Sharath Chandra through a registered sale deed dated 17.02.2000 and he in turn sold the land to A.Satya Prasad on 16.03.2000 and he sold the same to the defendant on 24.03.2000 and got his name mutated as per the Orders of the M.R.O, dated 14.06.2000.

14. Initially, both the plaintiffs filed O.S.No.122 and 123 of 2002, for perpetual injunction and defendant filed O.S.No.299 of 2002. The trial Court by a Common Order dismissed the suits 15 filed by plaintiffs and decreed the suit filed by the defendant. Against the said Order, C.M.A.Nos.18, 19 and 20 were preferred and the first appellate Court by Order dated 25.07.2001, advised the parties to file suit for declaration as the issue of title was involved in it and thus they filed suits for declaration.

15. As already stated appellant No.2 i.e., GVPR Engineers Limited, represented by its authorized signatory S.V.Laxmi Devi, was impleaded as appellant No.2 as per Orders in I.A.Nos.336 and 337 of 2019. The flow of title of appellant No.2 is that defendant in the suit sold the property to one Anil Kumar Kishan through agreement of sale cum GPA dated 28.12.2005 vide document No.941 of 2006. He in turn sold the property to Transtroy (India) Ltd., through registered sale deed bearing document No.505 of 2015, dated 09.01.2015. They mortgaged the said property in favour of Andhra Bank, Somajiguda, Hyderabad and the Bank purchased the said property under the provisions of SARFAESI Act and he purchased the same in the auction, as such he is the bona fide purchaser in S.A.Nos.826 and 829 of 2010, filed by the defendant. Appellant No.2 has filed two applications vide I.A.Nos.3 and 4 of 2018 on 22.03.2018, to implead them in the said second appeals, but 16 the same were withdrawn on 20.08.2018. The said appeals were disposed of and remanded the matter to the first appellate Court, as such they filed I.A.Nos.336 and 337 of 2019, seeking to implead them and they were allowed on 03.06.2019 and they were added as appellant in the first appeal. They have also filed I.A.Nos.871, 872, 873 and 874 of 2019, before the first appellate Court to receive additional grounds and additional evidence, but they were dismissed along with the appeals in A.S.Nos.11 and 12 of 2009, as such they preferred the present second appeals. Appellant No.2 stated that M/s.Transtroy India Limited, availed various loans/credit facilities from M/s.Andhra Bank, Specialized Corporate Finance Branch, Raj Bhavan Road, Somajiguda, Hyderabad and defaulted in payments and declared as N.P.A, as such Andhra Bank initiated actions under SARFAESI Act, 2002 and after complying with due statutory procedure, issued a notice of E-auction dated 11.01.2018, under Section 13 of the SARFAESI Act, for recovery of its dues. However, Andhra Bank conducted E-auction on 15.02.2018, and appellant No.2 participated in the auction and paid the entire sale consideration of Rs.33,00,98,650/-. After concluding the sale, sale certificate dated 02.03.2018 was issued in their favour, possession was handed over in their favour vide letter 17 dated 02.03.2018 and Re-conveyance dated 06.03.2018, was also issued to him. They presented the sale certificate and got it registered on 02.03.2018 in the office of the Sub-Registrar, Sangareddy. When they verified the documents, they found that defendant was residing in U.S.A and she sold the property in favour of Anil Kumar Kishan and he in turn sold the same to Transtroy (India) Ltd., represented by Sridhar Cherukuri and also delivered vacant physical possession, as such the purchaser was in exclusive possession and enjoyment of the property with absolute rights. Thereafter, M/s.Transtroy (India) Ltd., mortgaged the property in favour of Andhra Bank and they sold the same in auction proceedings and then they purchased the said property in the auction. They had no notice of the pendency of the suit and appeal. They purchased the property by paying entire sale consideration in good faith and raised the substantial questions of law in the second appeal. Defendant in the suit/appellant No.1 did not prefer second appeal and it is preferred by only appellant No.2.

16. Chronological events of the case are as follows: 18

 On 14.02.1995, V.Narayana Rao executed registered G.P.A in favour of his wife Padma, regarding the land in Sy.No.192 along with other lands under Ex.B2.

 On 25.05.1996, basing on the said G.P.A, Padma sold the land to G.Sathyanarayana under Ex.B3 and on 07.09.1999, it was validated by the District Registrar of stamps on payment of deficit stamp and penalty under Stamp Act.

 On 23.02.1998, D.Ramachandra Reddy and others through GPA holder and V.Narayana Rao, executed the registered sale deed for the land measuring an extent of Acs.10-38 gts, vide document No.585 of 1998 in favour of J.V.Lakshman Rao under Ex.A4.

 On 12.07.1999, J.V.Lakshman Rao sold the land to an extent of Acs.5-19 gts to P.Srividya, through registered sale deed vide document No.2812 of 1999, under Ex.A7 and the remaining extent of Acs.5-19 gts to P.Karthik, through registered sale deed vide document No.2811 of 1999, under Ex.A1.

 On 08.02.2000, the impounded sale deed of G.Satyanarayana was impleaded in the revenue records as per the proceedings of the M.R.O vide proceedings 19 No.B/375/2000 and pattadar passbook was issued in his name.

 On 17.02.2000, G.Satyanarayana sold the said land to K.Sharath Chandra, who is son-in-law of V.Narayana Rao and Padma, vide registered document No.780 of 2000, under Ex.B5.

 On 16.03.2000, K.Sharath Chandra in turn sold the land to Satya Prasad through a registered sale deed vide document No.1284 of 2000, under Ex.B6.

 On 24.03.2000, Satya Prasad in turn sold the said land along with other lands total admeasuring Acs.12-33 gts to the defendant through registered sale deed vide document No.1378 of 2000, under Ex.B7.

 On 14.06.2000, the document was implemented in the revenue records vide M.R.O proceedings No.B/1481/2000, under Ex.B4.

 On 13.06.2000, P.Karthik and P.Srividya filed separate suits for perpetual injunction vide O.S.Nos.122 and 123 of 2000, against their vendor J.V.Lakshman Rao and V.Narayana Rao.

 On 18.10.2000, Ponnala Vaishali/defendant filed a suit vide O.S.No.299 of 2000, against P.Karthik and Srividya, for an extent of Acs.10-38 gts.

 On 09.11.2000, the trial Court has passed a Common Order, dismissing the interim injunction petitions filed by Karthik and Srividya and the interim injunction filed by the Vaishali was allowed.

 On 06.12.2000, P.Karthik and Srividya preferred C.M.A's.

 On 17.09.2001, V.Narayana Rao filed written statement in O.S.Nos.122 and 123 of 2000 and denied the sale made by him to J.V.Lakshman Rao vide document No.585 of 2008.

 On 16/18.11.2001, the Revenue Divisional Officer, Sangareddy, rejected the appeal filed by Karthik and Srividya, against the implementation orders in favour of G.Satyanarayana, by the M.R.O. It was rejected on the ground that Civil suits are pending. The appeal was filed against G.Satyanarayana, P.Vaishali, V.Narayana Rao and J.V.laxman Rao, under Ex.A5.

 On 25.11.2001, the Common Order of the trial Court dated 09.11.2000, was confirmed and the interim Order 21 in O.S.No.299 of 2000, filed by Vaishali was modified to the extent of restraining her from alienating the property till the disposal of the suit, under Ex.A3 and parties were advised to file suit for declaration.  On 26.03.2003, Karthik and Srividya have filed fresh suits vide O.S.Nos.90 and 76 of 2003, for declaration and recovery of possession and for rectification of entries in the revenue records and they were registered on 24.06.2003. On 09.06.2003, O.S.No.122 and 123 of 2000, were dismissed as withdrawn.

 On 22.07.2003, the suit vide O.S.No.299 of 2000, filed by P.Vaishali was decreed with costs.

 On 12.01.2006, defendant sold the lands measuring an extent of Acs.12-33 gts to Anil Kumar Kishan, through registered agreement of sale cum General Power of Attorney vide document No.941 of 2006.

 On 30.12.2008, the suits vide O.S.Nos.76 and 90 of 2003, filed by Karthik and Srividya were decreed with costs.

 In March, 2009 defendant filed first appeals vide A.S.Nos.11 and 12 of 2009.

 On 15.02.2010, both the appeals vide A.S.Nos.11 and 12 of 2009, were dismissed with costs, confirming the Judgment of the trial Court.

 On 13.08.2010, defendant filed S.A.Nos.826 and 829 of 2010 and obtained stay of execution of the decree until further orders.

 On 12.01.2015, Anil Kumar in turn sold the land to an extent of Acs.10-38 gts to M/s.Transtroy India Ltd., through registered sale deed vide document No.505 of 2015.

 On 24.04.2015, M/s.Transtroy (India) Ltd., mortgaged the property with Andhra Bank vide proceedings No.2968 of 2015.

 On 15.02.2018, GVPR Engineers Limited (GVPREL) purchased the said land through E-auction from Andhra Bank.

 On 02.03.2018, sale certificate was given to GVPREL and it was registered before Sub-Registrar, Sangareddy, on the same day.

 On 06.03.2018, Re-conveyance deed was executed in favour of GVPREL.

 On 29.10.2018, Second appeals were remanded to the first appellate Court for fresh adjudication.  On 05.03.2019, GVPREL has filed two interim applications to permit them to come on record as appellant No.2 and they were allowed on 03.06.2019.  On 17.06.2019, amendment was carried out and neat copy of the appeals was filed. GVPREL has filed another two petitions for receiving additional documents and to permit him to file additional independent grounds, but they were dismissed.

17. Heard arguments of both sides at length. Both the parties filed their detailed written arguments along with several citations. This Court perused both the oral and documentary evidence on record. There is no dispute regarding the fact that V.Narayana Rao was the President of Industrial Employees Cooperative House Building Society Limited, Bandalasguda, Patancheru (I.E.C.H.B.S.L), J.V.Lakshman Rao and Sharath Chandra are his son-in-laws and V.Padma is his wife and all of them are family members. The remaining parties are strangers to their family.

18. Initially, two separate suits were filed by Karthik and Srividya for injunction against J.V.Lakshman Rao and V.Narayana Rao. V.Narayana Rao filed written statements in both the suits on 17.09.2001 and denied the execution of the sale deed in favour of his son-in-law and stated regarding the execution of G.P.A in favour of his wife and supported the flow of title in favour of defendant. He specifically stated that plaintiffs were not in possession of the property and stated that defendant was only in possession of the suit schedule property, but subsequently both the suits were withdrawn by the plaintiffs. Though they filed suits for declaration, the said suits were filed against the defendant/Vaishali, but not against their vendor or vendor's vendor. The said objection was taken in the written statement filed by the defendant and also stated that suits are bad in law for non-joinder of necessary parties. Even then no steps were taken by the plaintiffs for adding them as defendants. The defendant/Vaishali has also filed a suit vide O.S.No.299 of 2000, against Karthik and Srividya for perpetual injunction. As Karthik and Srividya remained ex-parte, suit was decreed in her favour.

19. V.Narayana Rao as President of (I.E.C.H.B.S.L) and possessor of the suit schedule property, signed on the document dated 04.03.1997, which was executed in favour of J.V.Lakshman Rao. Prior to that, he himself executed G.P.A in favour of his wife on 14.02.1995 in the capacity of President and also in his individual capacity regarding the properties in certain survey numbers mentioned therein and it includes Sy.Nos.192 to 199 of Kollur village. He executed irrecoverable G.P.A in favour of his wife. He stated that he is the owner and possessor of the lands in said survey numbers and also as the President of the Society authorized her to sell house sites, executed sale deeds, sent them for registration, signed the documents to effect mutation, to receive compensation, to appeal before R.D.O and to cancel the earlier registered documents if there is any change of layout or boundaries and to appeal before any Court to law. If at all, he is the owner of the above lands owns in his individual capacity, he is always at liberty to execute G.P.A in favour of his wife, but surprisingly he mentioned in the G.P.A that he also executed the G.P.A in the capacity of President of the Society. In any Society, President alone is authorized to do the above acts and he cannot execute the G.P.A by delegating the powers to his wife. There is no such 26 resolution by the Society, as such the competency of V.Narayana Rao, in executing G.P.A in favour of his wife in the capacity of the President is doubted, but it was never questioned by any parties at any point of time. In the G.P.A, he stated that he is the owner and possessor of the said properties, as such in his individual capacity, he authorized his wife through G.P.A, but as the President of the Society, he has no powers to authorize his wife to discharge above duties. That is why, when sale deed was executed by five other persons through G.P.A holder as absolute owners of the property in favour of plaintiffs' vendor, he also signed on it as President/possessor.

20. Though in the written statement dated 17.09.2001, V.Narayana Rao denied the execution of the sale deed in favour of J.V.Lakshman Rao, he has not taken any steps to cancel the document. Moreover, when the property was sold by J.V.Lakshman Rao in favour of Karthik and Srividya, he attested the said documents, this clearly shows that J.V.Lakshman Rao sold the property to plaintiffs with his consent and knowledge. The sale deed in favour of J.V.Lakshman Rao was executed in the year 1997 and he sold 27 the property in favour of plaintiffs in the year 1999 i.e., after two years. As per the sale deed, it was executed for Acs.10-38 gts out of Acs.46-38 gts. In the evidence of P.W.5 in O.S.No.75 of 2009, who is M.R.O of Ramachandrapuram, he stated that as per records Industrial employees House Building Society is the pattedar and possessor in respect of land in Sy.No.192 admeasuring Acs.153-27 gts as per pahanies of the years 1996- 97 and 1995-96. This shows that vendors in Ex.A4 are the absolute owners of the land measuring an extent of Acs.46-38 gts and sale deed was executed only for Acs.10-38 gts. The learned Counsel for the plaintiffs contended that Sy.No.192 itself is consisting of Acs.153-27 gts in total, as such the question of southern boundary as Sy.No.193 does not arise, but it was wrongly mentioned in the sale deed by inadvertence.

21. Appellant No.2 mainly contended that the property purchased by J.V.Lakshman Rao and the suit schedule property are totally different and thus plaintiffs are not entitled for declaration of title. The learned Counsel for the plaintiffs contended that in the sale deed under Ex.A1, the prior sale deed document No.585 of 1998 dated 23.02.1998, was mentioned and also the names of the persons, who executed the sale deed 28 in favour of their vendor and the vendor's passbook No.441463 was also mentioned in it. Moreover, both the plaintiffs purchased Acs.5-19 gts each of them and Sy.No.192/A/10 was also mentioned and thus the argument of appellant No.2 is not tenable. J.V.Lakshman Rao sold the property of Acs.10-38 gts, which was purchased by him from V.Narayana Rao under Ex.A4. Plaintiffs also stated in their plaint that they questioned regarding variation of the survey number of southern boundary at the time of purchasing the property. Both J.V.Lakshman Rao and V.Narayana Rao, assured to rectify it, but later in view of differences among themselves, they did not come forward to rectify the same. He further argued that it only amounts to misdescription of the suit schedule property and there is no dispute regarding the identity of the property. He further contended that V.Narayana Rao attested their sale deeds and thus he has knowledge of the execution of the sale deed in their favour. Counsel for the appellant No.2 stated that mere attestation of the documents would not amounts to admission of contents of the documents, but the Counsel for the plaintiffs relied upon the decision of the Madras High Court, in the case of Kanakavalli Ammal Vs.Ulaganatha Pillai, 1 in which it 1 1977 TNLJ 174 29 was held that "it is an accepted principle of law that mere attestation of a document would not by itself impute knowledge of the contents or the recitals therein. But this principle cannot be taken to be axiomatically true, for there are attestation and attestations and they vary in accordance with the circumstances and facts of each case. If in a given case the attestation by a person interested in the property which is dealt with under the challenged document attests it under circumstances and events which would impute knowledge of the recitals therein, then the said attestor having approbated the document and the transaction by such an active participation and involvement, cannot reprobate later to suit her or his convenience." Plaintiffs argued that there was relationship between Narayana Rao and Lakshman Rao as father-in-law and son-in-law. In view of their relationship, attestation of Narayana Rao in their sale deed amounts to knowledge of the contents of the document to him.

22. Learned Counsel for the appellant No.2 contended that in a suit for declaration, burden rests on the plaintiffs and it is for them to prove their case by duly adducing oral and documentary evidence as per the decision of the Hon'ble Apex 30 Court in the case of Anil Rishi Vs.Gurbaksh Singh, 2 in which it was held as follows:

"A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways:

(i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later;

(ii) to make that of establishing a proposition as against all counter evidence; and

(iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."

Learned Counsel for the plaintiffs contended that previously they filed suit for injunction and as per the advice of the first appellate Court, they withdrawn the same and filed comprehensive suit for declaration, as such it will not amount to res-judicata. He relied upon the decision of erstwhile High Court of Judicature of Andhra Pradesh, Hyderabad, in the case of R.V.S.Vara Prasad and others Vs.Dr.V.Ramdas, 3 in which it was held that "according to Section 11, in order to attract the principle of res judicata the matter in subsequent suit shall be 2 Civil Appeal No.2413 of 2006 3 2003 (3) ALD 566 (DB) 31 directly and substantially in issue in the former suit between the same parties litigating under the same title and finally decided by such Court. The earlier suit was for an injunction simplicitor. The present suit for declaration of title and recovery of possession of the property.

23. The main contention of the plaintiffs is that registered sale deed was executed in their favour, though G.P.A was executed by V.Narayana Rao in favour of his wife and she executed unregistered sale deed in favour of Satyanarayana and it got validated subsequently i.e., on 07.09.1999. Though the execution of the sale deeds relates back to the date of execution, the date of validation relates back only from the date of its validation and thus their sale deed was prior in time and it is a registered sale deed and more so their vendor was in possession of the suit schedule property as per the pahanies under Exs.A8 and A9, for the years 1997-98 and 1998-99.

24. It is not the contention of the defendant in the suit that the documents under Exs.A1 and A4 are fabricated and forged and she never stated that sale consideration was not passed during the execution of the sale deed. Her main contention is 32 only regarding the variation of the southern boundary of the document i.e., Exs.A1 and A4. The learned Counsel for the plaintiffs stated that they explained the same as per Section 95 of the Indian Evidence Act.

25. In the written arguments filed by the appellant No.2, they summarized the arguments of the plaintiffs' Counsel and also extracted the discussion of the first appellate Court. Apart from their flow of title, they further stated that when defendant disputed the identity of the property, plaintiffs ought to have taken steps for rectification of the boundaries, as they failed to do so, adverse inference can be drawn against them. Even as per the admission of the plaintiffs, in their evidence they are not certain or definite about the boundaries covered under Ex.A1 and thus they are not entitled for relief of declaration. In a comprehensive suit filed for declaration, plaintiffs failed to implead the vendor vendor's vendor, as such suit is not maintainable for non-joinder of necessary parties. Appellant No.2 also contended that defendant is in possession and enjoyment of the property from 1996 through Exs.B3 to B7 and also mutated her name in the revenue records and the title of the defendant's vendor is 33 traced out from Ex.B3-sale deed dated 25.05.1996, which was prior to Ex.A1. Ex.B3 was validated by the District Registrar, as such defendant is entitled for protection under Section 53-A of the Transfer of Property Act, 1882. V.Narayana Rao gave G.P.A in favour of his wife on 17.09.1995. Basing on the said G.P.A, she executed unregistered sale deed under Ex.B3 and it was also regularized by the Registrar, as such V.Narayana Rao is bound by the said sale transaction and he cannot subsequently execute the sale deed in the name of his son-in-law. Moreover, plaintiffs were never in possession of the suit schedule property. It was further stated that by Order dated 22.07.2003 in O.S.No.299 of 2000, the possession of the defendant was declared as legal possession. The present suits were filed for recovery of possession, as such cancellation of the injunction decree by virtue of recovery of possession is not permissible. Plaintiffs did not examine their vendor to clarify regarding mistake of the southern boundary and mainly stated that discrepancy is out of mistake. As per Section 20 of the Contract Act, when mistake is on both sides, the agreement is void, as such sale deed executed by J.V.Lakshman Rao in favour of plaintiffs is void and no title will pass to the plaintiffs. Plaintiffs contended that as per Section 95 of the Indian 34 Evidence Act, they explained the details of all boundaries and it is untenable and it is not permissible to lead parole evidence contrary to the registered document under Section 92 proviso (4) of the Indian Evidence Act.

26. Learned Counsel for appellant No.2 in his written arguments contended that second appeal was admitted on the following substantial questions of law:

a) Whether the trial Court and first appellate Court failed to appreciate that the suit for declaration of title and recovery of possession is maintainable against the defendant who claimed that he has got title to a different property?

b) Whether the appellant is a bonafide purchaser under Section 41 of Transfer of Property Act?

c) Whether the revenue authorities can modify the boundaries or effect mutation under ROR Act on the basis of Ex.A7?

d) Whether the plaintiff can maintain the suit without challenging GPA dated 14.02.1995 and un-registered sale deed dated 25.05.1996?

e) Whether the terms of the registered document can be altered, rescinded or varied by way of parol evidence, in view of 2nd part of proviso (4) to Section 92 of the Indian Evidence Act, 1872?

27. Apart from above substantial questions of law, appellant No.2 has filed additional substantial questions of law as mentioned below along with a memo dated 22.11.2022: 35

a) Whether suit as it is maintainable where plaintiff is seeking declaration of title by modifying the boundaries?

b) Whether both the Courts misread and misinterpreted a document of title i.e., Ex.A1 read with other documents and the boundaries of the suit with the boundaries of Ex.A4?

c) Whether the attestation of sale deed of plaintiff by vendors' vendor is a proof of contents of the documents or amount to rectification alleged of the document?

d) Whether attestation of documents acts as estoppels as to the contents of the documents or not?

e) Whether respondent No.1 is entitled to recovery of possession having suffered a decree in O.S.No.299 of 2000?

28. Learned Counsel for the appellant No.2 contended that mere attestation of the document, there is no presumption that attesting witness of the document must be assumed to be aware of its contention nor would create estoppel, it only establishes that the signature of the executing party has been attached to the document in the presence of attesting witness. It was also pointed out that both the Courts stated that title to both the parties arrived from vendors, but the vendors in Ex.A4 and vendors in Ex.B3 are entirely different. He further emphasized that the burden of proof of title rests upon plaintiffs in a suit for declaration. He also stated that appellant No.2 is the bona fide purchaser, they purchased property in a Bank Auction and further pointed out that plaintiffs filed suits for declaration on 26.03.2003 and they withdrawn the injunction suits on 09.06.2003 i.e., three months 36 after filing of the declaration suits. It is also pointed out that mutation proceedings of J.V.Lakshman Rao are not filed before the Court. Moreover, the property mutated in the name of J.V.Lakshman Rao consisting of southern boundary as Sy.No.193, whereas property sold to plaintiffs consists of southern boundary as Sy.No.192. It is further stated that as on the date of filing of the suits, defendant was in possession of the suit schedule property, as such it is for the plaintiffs to prove that defendant was not the owner of the suit property as Section 110 of the Indian Evidence Act.

29. The appellant No.2 argued regarding substantial question of law that under the amended Section 100 C.P.C, a party aggrieved by the decree passed by the first appellate Court has no absolute right of appeal. He can neither challenge the decree on a question of fact or on a question of law. The second appeal lies only when the High Court is satisfied that the case involves a substantial question of law. The word 'substantial' as qualifying 'question of law', means and conveys of having substance, essential, real, of sound worth, important considerable, fairly arguable. A substantial question of law should directly and substantially affect the rights of the parties. 37 A question of law can be said to be substantial between the parties if the decision in appeal turns one way or the other on the particular view of law. But, if the question does not affect the decision, it cannot be said to be substantial question between the parties. Recording a finding without any evidence on record; disregard or non-consideration of relevant or admissible evidence; taking into consideration irrelevant or inadmissible evidence; perverse finding are some of the questions, which involve substantial questions of law. Further, the interpretation of document which goes to root of title of property, if the document of title is misread or misinterpreted with the other documents and the identification of suit land also gives rise to substantial question of law. Non-examination of core issue by first appellate Court, failed to adjudicate on the core issue is also a substantial question of law. It is submitted that in support of the said contention, the appellant No.2 is relying on the decisions i) Achintya Kumar Saha Vs.Nanee Printers and others, 4 ii) Narayan Sitaramji Badwaik (Dead) through legal representatives Vs.Bisaram and others, 5 iii) P.Chandrasekharan and others Vs.S.Kanakarajan and 4 (2004) 12 SCC 368 5 2021 (15) SCC 234 38 others 6, and stated that they made out substantial question of law regarding mis-construction of the document and wrong application of principles of law and also perverse finding.

30. Counsel for the appellant No.2 further stated that plaintiffs' vendor purchased the property on 04.03.1997 under Ex.A4 and he gave specific boundaries of the said sale deed and also the sale deed under Ex.A1 and further gave boundaries of Ex.B3 dated 25.05.1996 and the suit schedule property boundaries and submitted that there is dispute regarding identity of the suit schedule property. He also stated that boundaries mentioned in Ex.A1 and Ex.A7 are different and vendors in Ex.A1 sale deed and vendors in Ex.B3 sale deed are different, claiming from different source. J.V.Lakshman Rao cannot convey the property to plaintiffs other than the property purchased by him. The mutation proceedings of J.V.Lakshman Rao were not filed before the trial Court and there was no such pleading in the plaint. Plaintiffs stated that mistake was explained under Section 95 of the Indian Evidence Act, as such there was understanding minds between plaintiffs' vendor and plaintiffs. Moreover, plaintiffs' vendor was having 6 2007 (5) SCC 669 39 only one land and he proved the same by placing Ex.A6. He further argued that in any dispute regarding identification of the property, boundaries will prevail, but in this case dispute is regarding boundaries only, but the plaintiffs did not file any proceedings of the revenue authorities regarding the allotment of sub-division number and not filed Tonch map and also mutation proceedings. It is for the plaintiffs to prove the title for possession of the suit schedule property and it is for the Court to decide whose title is better title between the two, as both of them came from a common owner V.Narayana Rao. He further argued that unless the property with reference to which declaration sought clearly identified, plaintiffs are not entitled for decree as one of the boundaries is not tallying with link documents of the plaintiffs, therefore any amount of evidence will not cure the said discrepancy until the said discrepancy is not ratified.

31. Counsel for the appellant No.2 further stated that the finding of the trial Court that both the parties claiming title from the common owner is perverse without any basis and thus the substantial questions of law under 26 (a) and 26 (e) are established. It is contended regarding special pleading like 40 misrepresentation, undue influence, fraud, etc., that it requires the details of how the mistake was committed and when such mistake was identified. Except the submission of the plaintiffs, there is no other evidence regarding their submission that they issued notice to the vendor calling upon him to rectify the survey number and boundary, as such they are not entitled for discretionary relief of declaration. Under substantial questions of law in 26 (c) and 26 (d), it is argued that defendant was in possession of the property from 1996 by virtue of Exs.B3 to B7 and revenue records were also mutated in her favour. The Registering Officer under Section 4(2) of ROR Act, registered a document relating to a transaction in land such as sale shall intimate the Mandal Revenue Officer, in which the property is situate of such transaction then under Section 5(1) of the ROR Act, the Mandal Revenue Officer amend the revenue records of rights in accordance with such determination, but both the Courts erred in finding that pahanies under Exs.A8 to A14 and Ex.A7 clearly shows the physical possession of the plaintiffs and their vendor over the suit schedule property. Plaintiffs have not challenged the G.P.A dated 14.02.1995 and also the unregistered sale deed dated 25.05.1996, as such they are not entitled for 41 declaration regarding substantial questions of law under 27(a) and 27 (b). Both the Courts wrongly interpreted regarding the sale deeds under Exs.A1 and A4. This Court can interfere with the finding of the trial Court on fact when there was misreading of the evidence or so perverse that no reasonable person of ordinary prudence could take the said view. Appellant No.2 mainly contended that the plaint boundaries under Exs.A1 and A4 are not tallying with the plaintiffs' sale deeds and the said fundamental flaw was not gone by both the Courts. Regarding substantial questions of law under 27(c) and 27(d) i.e., attestation of documents by V.Narayana Rao on the sale deeds of the plaintiffs, it is submitted that he was not a party and he was not the owner of the plaintiffs' vendor and also argued that attestor has no knowledge of the contents of the documents and finally requested the Court to allow the present second appeal.

32. In the written arguments filed by the plaintiffs, they stated regarding the point whether plaintiffs discharged burden of proof and that the written statement must deal specifically each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer 42 the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted in such event, the admission itself being proof, no other proof is necessary. They also stated regarding the execution of Exs.A1 and A4 that denials are formal, but not specific and it cannot be simply stated that they were never executed, as they are registered documents. It is not the contention of the defendant that the said documents are forged and fabricated, as such the execution of the sale deeds should be taken as admitted and the admissions requires no proof. They further stated regarding non-existence of Ex.A1 and non-payment of sale consideration. They stated that there was no Cross- examination on these two points. The dispute is only regarding difference of boundaries. They relied upon the decision of this Court in the case of R.Khemka and others Vs.M/s.Deccan Enterprises Pvt. Ltd., Secunderabad, 7 in which it was held that "it is well established rule of evidence that a party should put to each of his opponents witness so much of his case as concerns that particular witness. If no such questions are put the Court may presume that the witnesses version has been accepted." Moreover, in Ex.A1 it was mentioned that 7 1997 (6) ALD 594 43 vendee has already paid the total sale consideration of Rs.1,26,000/- to the vendors and it was acknowledged by them.

33. Learned Counsel for the plaintiffs submitted that admitted facts need not be proved as per Section 36 of the Indian Evidence Act. He further stated that plaintiffs got examined P.Ws.1 and 2 and got marked Exs.A1 and A4 to prove their case and the existence of the sale deeds was not disputed by the defendant. The only defence taken by the defendant is that there is discrepancy in the boundaries. He also stated that the trial Court has observed that the sale deed executed by J.V.Lakshman Rao in favour of plaintiffs was not in dispute. He further stated that mere registration of the document will not confer any title or right. V.Narayana Rao is the original owner and it is not in dispute that he executed sale deed in favour of J.V.Lakshman Rao. The only dispute is that the property sold by V.Narayana Rao to J.V.Lakshman Rao, is different and separate as there is discrepancy in the southern boundary. He relied upon the decision of the erstwhile High Court of Andhra Pradesh, Hyderabad, in the case of Dr.Yadla Ramesh Naidu Vs.Sub-Registrar, Sabbavaram, 44 Vishakapatnam District and others, 8 in which it was held that "mere registration by itself will not confer any title or right in the property so transferred on the transferee unless the transferor is rightful and lawful owner of the property". He further stated that additional evidence application filed by appellant No.2 was dismissed as such written statement filed by the defendant cannot be looked into. It is also stated that plea of maintainability has raised at the stage of second appeal and it should have been raised in the written statement. The Hon'ble Apex Court in the case of Deepak Tandon and another Vs.Rajesh Kumar Gupta, 9 in which it was held that "it is settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was therefore framed and no finding was recorded either way by the trial Court or first appellate Court such plea cannot be raised by the party for the first time in third Court." He further argued that as per Section 34 of the Registration Act, there is a presumption of execution of a sale deed by the person whose name is shown in the sale deed and it is the duty of the Registrar to verify the genuinity of the person, who is signing on the document.

8 2009 (1) ALD 337 9 AIR 2019 SCC 924 45

34. Regarding another point that is whether the suit for declaration of title and recovery of possession is maintainable against the defendant who has title to a different property than that of plaintiffs, learned Counsel for plaintiffs stated that the property under Ex.A1 is the same property with that of vendors' sale deeds under Exs.A4 and A6 in O.S.Nos.76 and 90 of 2003 respectively and it will not make transaction under Ex.A1 invalid. Plaintiffs explained the discrepancy as per Section 95 of the Indian Evidence Act and even in the registered sale deed the details of previous sale particulars were mentioned. Plaintiffs after purchasing the land obtained sub-Division number and also mutated their names in the revenue records. The said sub-Division number was also mentioned in Ex.A1 and thus it is clear that vendor of the plaintiffs sold the property purchased by him to the plaintiffs and he has no other properties in his name except the suit schedule property under Ex.A1. V.Narayana Rao, who is the original owner i.e., father-in-law of the vendor attested Ex.A1. In view of the relationship between both the parties, it is clear that vendor's vendor has knowledge of the contents of the document.

35. The learned Counsel for the plaintiffs contended that there is no compulsion of seeking rectification of a mistake only through a registered rectification deed or by way of filing a suit for rectification of document. He relied upon the decision of the Bombay High Court-Nagpur Bench, in the case of Sabhaji Vs.Nawalsingh and others, 10 in which it was held that "in such a case a party is entitled to succeed upon a construction of a conveyance itself without the necessity of having to take proceedings by way of a separate suit for rectification of the deed as a court is competent to give effect to what was indisputably the real agreement between the parties without driving the plaintiff to a separate suit for rectification." He further stated that the combined effect of Section 92(a) proviso-1 and Section 31 of Specific Relief Act is to entitle either party to a contract either plaintiff or defendant to protect his right by proving a mistaken contract and it only amounts to misdescription of the suit property and did not affect the identity of the property sold by them. He also contended that the entire document should be read as a whole to understand its true import and effect. A word or a sentence cannot be read in isolation to understand the contract. The documents under Ex.A1-sale 10 AIR 1928 Nagpur 4 47 deeds and their link documents cannot be read separately. The property covered under Exs.A1, A4, B3 and B5 to B7 are same. Regarding another issue i.e., whether plaintiffs can maintain suit without establishing disposition by the defendant, it is stated that the name of J.V.Lakshman Rao was reflected in the pahanies as owner and possessor. In the meanwhile, G.Satyanarayana got mutated his name in the revenue records. Defendant purchased the property from her predecessor and got physical possession of the property through the Order of the Court, as such now plaintiffs were not in possession of the property. Plaintiffs were also specifically directed not to alienate the property till the disposal of the suit in a Common Order of the C.M.A's. Plaintiffs established their possession under Exs.A1, A8 and A9 and it was grabbed by the defendant, as such they filed suit for recovery of possession and it is maintainable.

36. Regarding whether appellant is a bona fide purchaser under Section 41 of the Transfer of Property Act, learned Counsel for the plaintiffs relied upon the decision of the Hon'ble Apex Court in the case of Jote Singh (dead) by Lrs Vs.Ram 48 Das Mahto and others, 11 in which it was held that "it is also well understood that neither the provisions of Section 41 nor that of Section 43 of the Act are available for the benefit of auction purchasers, for these provisions coming to rescue of the transferees from Ostensible owners or of transferees who purchased the property in good faith from unauthorized person who subsequently acquire interest in the property transferred. These two provisions logically get engaged in voluntary transfers and not in involuntary transfers like auction sales. Appellant No.2 contended that they purchased the property in Bank Auction in a good faith and thus Section 52 of the Transfer of Property Act and doctrine of lis pendens is not applicable to them, but the learned Counsel for the plaintiffs stated that the principle of lis pendens certainly applicable to the present case. He mainly contended that as per revenue records like Pahanies as on the date of mortgage or auction sale do not show that property stands in the name of mortgager. The property still stands in the name of original defendant. The mortgage transaction in favour of Bank was not in accordance with the law as no Bank shall sanction loan by accepting the mortgage of any agricultural land unless it 11 AIR 1996 SC 2773 49 stands in the name of mortgager, but appellant No.2 purchased the same without verifying the said fact, as such they are not a bona fide purchaser and they have not exercised due diligence before purchasing the property and thus they cannot escape from the doctrine of lis pendens under Section 52 of the T.P.Act and cannot get any protection under Section 41 of T.P.Act.

37. Regarding the point whether revenue authorities based on Ex.A7 modified the boundaries or mutation to the revenue records under ROR Act, learned Counsel for the plaintiffs stated that originally the name of vendor of plaintiffs appeared in the revenue records i.e., pahanies for the years 1997-98 and 1998-99 and later it was deleted. There is no certificate under Section 5A issued in favour of Satyanarayana. In the absence of same, Satyanarayana or the defendant cannot get any title regarding the suit schedule property. He relied upon the decision of the erstwhile High Court of Andhra Pradesh, Hyderabad, in the case of Mettu Pentaiah (D) by L.Rs and another Vs.P.Veeraiah (D) by L.Rs and others, 12 in which it was held that "the unregistered sale deeds validated 12 AIR 2007 AP 284 50 under Section 5A will be validated only from the date of such certificate". He further stated that sale entered by Satyanarayana was subsequent to the title of the plaintiffs, as such he is not entitled for any relief. Plaintiffs have preferred an appeal before the R.D.O against the Order of M.R.O, but R.D.O directed them to approach a Civil Court on 18.11.2001 and the same was marked as Ex.A5 in O.S.No.90 of 2003.

38. Regarding the point that whether plaintiffs can maintain the suit without challenging the GPA dated 14.02.1995 and unregistered sale deed dated 25.05.1996, plaintiffs stated that through G.P.A no person will get any title and an unregistered sale deed executed through G.P.A will not transfer any title, as such it need not be challenged. Regarding the point whether the plaintiffs can maintain the present suit without declaration that sale deed under Ex.A7 is for the present suit schedule property, plaintiffs stated that the trial Court and the first appellate Court concurrently declared the title of the plaintiffs, as such the question of law is not valid and not maintainable. Regarding the point whether the terms of registered document can be altered, rescind, or varied by way of parol evidence in view of second part of proviso (4) to Section 92 51 of the Indian Evidence Act, plaintiffs stated that one cannot question the contents of a written document orally, but while admitting that what is contained in the document is true, a party can explain the circumstances and about the mistake of expression to bring real purport the parties agreed to, as such the question of law raised is not maintainable. Regarding the point whether a witness in a registered document stands in the same footing that of an executants of a registered document, plaintiffs stated that their vendor's vendor i.e., V.Narayana Rao, was an attestor of Ex.A1, therefore he or anyone claiming through him cannot go back and take another plea against Ex.A1, as he is estopped by conduct.

39. Regarding the point whether the Judgment and decree of both the Courts is perverse and contrary to the evidence on record, plaintiffs stated that it is contended only at the appellate stage. It is a settled law that without pleading before the trial Court additional pleas cannot be taken at appellate stage. Regarding the point whether the Court can ignore additional documents filed by appellant No.2, plaintiffs stated that it is a settled law that without there being a pleading or justifiable reason for not filing the documents which were 52 available during the trial before the trial Court permission to file them at the level of first appellate Court shall not be granted. Unless justifiable cause is shown, the petition under Order 41 rule 27 cannot be entertained. They also stated that it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such pleading is therefore framed and no finding was recorded either by way of trial Court or first appellate Court such plea cannot be allowed to be raised by a party for the first time in third Court in an appeal. They further stated that any amount of evidence without pleadings cannot be accepted. Defendant never took a plea on maintainability in the written statement. Defendant did not question the maintainability of the suit in the trial Court. In fact, suit was filed as per the advice of the first appellate Court and thus requested the Court to dismiss the present appeal.

40. V.Narayana Rao without any competency executed the registered G.P.A in favour of his wife regarding the land allotted to the society and it includes Sy.No.192. Though he has knowledge of the execution of the registered sale deed by D.Ramachandra Reddy and others in favour of his son-in-law 53 on 04.03.1997, he kept quiet and also included the said survey number in the G.P.A. When his wife sold it in favour of Satyanarayana, through un-registered sale deed, litigation crept up between the defendant and plaintiffs and the reason for the entire litigation is the mischief done by V.Narayana Rao and his family members. Admittedly, registered sale deed was executed in favour of plaintiffs by J.V.Lakshman Rao, two years after the execution of the registered sale deed in his favour, whereas G.P.A holder executed the sale deed in favour of Satyanarayana and then in favour of Sharath Chandra and again in favour of Satya Prasad and then in the name of defendant within a span of two or three months. Though defendant argued that there is no time limit for execution of the sale deeds, the very conduct of vendors of the defendant in execution of the sale deeds one after another appears to be abnormal.

41. Now, it is to be decided whether the appellant No.2 is a bona fide purchaser or not. Their title starts from the defendant. Defendant executed agreement of sale in favour of Anil Kumar in the year 2005 and he in turn executed sale deed in favour Transtroy India Pvt. Ltd., in the year 2015 and then the property was mortgaged. It was argued by the plaintiffs that the 54 mortgager name was not mentioned in pahanies as on the date of mortgage, but still Andhra Bank granted huge amount without verifying the basic factors, brought the sale of property in auction under SARFAESI Act. Appellant No.2 purchased the property in the said auction sale. Defendant during the pendency of the case before the trial Court executed the registered sale deed and it is hit by Section 52 of the T.P Act, as such the next successor will not get any right over the said property and so also appellant No.2 who purchased the property in auction purchase will not get any right or title over the suit schedule property, but they came on record at the second appellate stage and raised all the contentions which are already raised before the first appellate Court, on the ground that they were not considered. Though defendant did not prefer second appeal, they preferred the second appeal and contested the same. Appellant No.2 purchased the property without verification. Merely because the property sold in an auction, it cannot be said that he will get right over the property. The entire flow of title to appellant No.2 itself is suspicious and manipulated, as such it cannot be said that he is a bona fide purchaser and purchased the property in good faith. 55

42. Though appellant No.2 stated that they participated in the auction and they are the highest bidder, sale certificate was issued in their favour and it was also registered, the said facts will not protect their rights. The main contention of the appellant No.2 is that there were differences in the southern boundary of the plaintiffs and their vendor. In this case, there are several discrepancies. Even the name of mortgager was not mentioned in the said documents and they themselves stated that on verification of the documents after issuance of the sale certificate they came to know that defendant executed agreement of sale to Anil Kumar and he in turn sold to the Company and they mortgaged it. Appellant No.2 is a Company incorporated under the Companies Act and it is for them to verify all the documents before purchasing the property and it is for the purchaser who should make all the enquiries before purchasing the property, as per principle of caveat emptor (let the buyer beware), but appellant No.2 failed to do so, as such it cannot be said that they are bona fide purchasers for a valuable consideration in good faith.

43. Now it is for this Court to see whether the discrepancies in the boundaries of the sale deed executed in favour of 56 J.V.Lakshman Rao and in favour of plaintiffs, goes to the root of the case. Plaintiffs clearly explained that it is a mistake by inadvertence and explained as required under Section 95 of the Indian Evidence Act, therefore this Court finds that it is not fatal to the case of the plaintiffs. Plaintiffs contended that V.Narayana Rao had not sold any other property to J.V.Lakshaman Rao except this property and the entire extent of the property in Sy.No.192 is Acs.153-27 gts. In fact, the vendors of J.V.Lakshman Rao are having Acs.46-38 gts, but sold only Acs.10-38 gts. V.Narayana Rao signed on the document as possessor and President of the Society, but still executed G.P.A for the said survey number in favour of his wife, as such the said G.P.A is not valid and thus the documents executed by her in pursuance of the G.P.A are also not valid in the eye of law. Therefore, the question of the sale deed executed in favour of Satyanarayana is prior in point of time does not arise. Moreover, it is only unregistered sale deed. Though V.Narayana Rao in the written statement disputed the execution of the sale deed in favour of J.V.Lakshman Rao, he has not taken any steps for cancellation of the said sale deed and he has not deposed evidence on behalf of the defendant. 57

44. Appellant No.2 contended that plaintiffs instead of filing suit against their vendor, vendor's vendor, filed suit against defendant. Plaintiffs in the plaint clearly stated that when defendant tried to encroach into the property, they initially filed suit, by the time of filing the suit for declaration the property was already transferred in the name of the defendant and it is not in the hands of V.Narayana Rao or his wife, as such they filed suit declaration against the defendant. Plaintiffs in the suit also challenged the Order of the M.R.O before the R.D.O, but he advised them to approach a Civil Court as the matters are already pending before the Civil Courts. Even in Ex.A1, the details of document No.585 of 1998 were mentioned. J.V.Lakshman Rao sold his property to Karthik and Srividya under Exs.A1 and A4 respectively. Though they initially filed suit for injunction, later filed suits for declaration and they were allowed by the trial Court and also confirmed by the first appellate Court. When defendant in the suit preferred first appeal, appellant No.2 came on record, but they withdrawn the interlocutory application for impleadment in the second appeal and filed another application before the first appellate Court and they were allowed and the first appellate Court considering the arguments of both sides, discussed several points at length in 58 detail and admissions of the witnesses were also extracted while arriving to the conclusion. There is no dispute regarding the fact that Ramachandra Reddy and others are the absolute owners of the property and they executed a registered sale deed in favour of J.V.Lakshman Rao for an extent of Acs.10-38 gts and he in turn executed two registered sale deeds in favour of plaintiffs. It is patently clear that to deprive plaintiffs from enjoying the suit schedule property V.Narayana Rao executed G.P.A in favour of his wife and also she in turn executed unregistered sale deed and the said sale deed was sent to the F.S.L to know about the age of the document. In the F.S.L report it was mentioned that "it is found that there are discrepancies in the recorded date of sale of the stamp paper in question indicating that the actual sale of document could have taken place subsequent to the date actually recorded in the said questioned document." It was validated at a later point of time and the certificate of validation was not filed before the Court. However, there was endorsement on the sale deed regarding validation of the sale deed, as such non-filing of the certificate will not have any impact on the proceedings. Both the trial Court and the first appellate Court discussed all the points at length basing on the oral and documentary evidence and also considered all the citations and 59 held that plaintiffs are entitled for declaration of title and also for recovery of possession and for rectification of the entries and this Court finds no reason to interfere with the said Order.

45. In the result, the present second appeals are dismissed confirming the concurrent findings of both the first appellate Court and the trial Court. There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

_________________________ JUSTICE P.SREE SUDHA DATE: 21.10.2024 tri

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