Telangana High Court
Elitom Manne Mallesh vs Elitom Manne Kistaiah And 7 Others on 28 December, 2020
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.AMARNATH GOUD
CMA No.297 OF 2020
JUDGMENT:(Per Sri Justice M.S.Ramachandra Rao)
1. Heard counsel for the appellant and Sri K.Mahipathi Rao, counsel for 7th respondent.
2. This appeal is preferred challenging the order dt.04.12.2019 in IA.No.456 of 2019 in OS.No.112 of 2019 of the Judge, Family Court-cum-VII Additional District Judge, Medak at Sangareddy.
3. The appellant herein is the plaintiff in the above suit.
4. He filed the said suit for partition and separate possession of the suit schedule property into two equal shares and to allot one such share to him and to the 1st respondent; to declare the registered GPA bearing Document No.72/1983 dt.22.09.1983, registered sale deed bearing D.No.3434/1983 dt.1309.1983, registered sale deed bearing D.No.2015/1987 dt.28.01.1987, registered sale deed bearing D.No.43569/2018 dt.05.11.2018 and registered Mortgage deed bearing D.No.6081/2018 dt.11.02.2018 registered at SRO, Sangareddy as null, void and non est in law and not binding on the appellant; and to pass a final decree pursuant to preliminary decree by 2 dividing the suit schedule property with metes and bounds through and advocate commissioner, and to award costs of the suit.
5. The subject matter of the suit is an extent of Acs.2.16 gts in survey No.435 of Sulthanpur Village, Ameenpur Mandal.
The case of the appellant/plaintiff
6. The case of the appellant in the suit was that himself and 1st respondent are brothers and children of one Narsaiah, who was the original pattadar and owner of the above land; that Narsaiah died leaving behind him his two sons, i.e., the appellant and the 1st respondent as his legal heirs; after the death of Narsaiah, appellant and the 1st respondent were in joint possession and enjoyment of the suit schedule property, which was being managed by the 1st respondent as an elder member of the family, and only his name was entered in revenue records as pattadar and possessor in ROR of 1979-80. It is contended by the appellant that this was done behind the back of the appellant and the names of other respondents was also entered in the revenue record on account of collusion between the 1st respondent and the revenue authorities to defeat the appellant's claim. He alleged that the subject 3 land was being cultivated jointly under the management of 1st respondent by constituting a Hindu Undivided Family and the income there from was being divided between them equally and they were not partitioned.
7. Appellant contended that since previous one year, the 1st respondent was neither disclosing the accounts nor giving any share to the appellant, that he demanded the 1st respondent on 24.02.2019 for partition and separate possession but the latter refused and that is why the suit was filed.
IA.No.456 of 2019
8. Along with the suit, appellant filed IA.No.456 of 2019 under Order XXXIX Rules 1 and 2 of CPC for grant of ad- interim injunction restraining the respondents from alienating or creating any charge over the suit schedule property, pending disposal of the suit.
9. On 02.05.2019, an ex-parte ad-interim injunction was granted in favour of the appellant.
10. Alleging that the said order was violated by the 1st respondent, appellant filed IA.No.1285 of 2019 under Order XXXIX Rule 2A of CPC.
4The stand of 7th respondent/7th defendant
11. The 7th respondent filed a counter disputing that the appellant and 1st respondent are own brothers and that they are children of one Narsaiah.
12. He contended that the appellant had no connection with the suit schedule property and the suit was filed with a fabricated story to harass the respondents and others.
13. It is stated that from 1979-80 the names of respondents 2 and 3 were recorded as pattadar and possessor in the place of Kishtaiah S/o Narsaiah ( 1st respondent) ; that faisal patti for the year 1983-84 shows that Kishtaiah executed sale deed bearing No.3434/1983 dt.12.10.1983 through his GPA Holder in favour of respondents 2 and 3; that respondents 2 and 3 are in possession and enjoyment of the subject land as absolute owners and possessors; that they executed registered sale deed document No.2015/1987 dt.27.02.1987 in favour of 4th respondent; that respondents 5 & 6 are the legal heirs of the 4th respondent, who died; that respondents 5 & 6 then executed a registered sale deed for the subject land in favour of the 7th respondent vide document No.43569/2018 dt.5.11.2018 and ever since the purchase, he is in possession and enjoyment thereof.
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14. He stated that for the last 37 years, his predecessors are in possession and enjoyment of the suit schedule property including the 7th respondent and this was known to each and every person of the village including the neighbors of the subject land.
15. According to him, the suit is filed with a malafide intention for wrongful gain and to extract money from the 7th respondent.
16. It is also asserted that the appellant was not in joint possession as per his own pleadings and as such he ought to have paid Court Fee under Section 34(1) of the AP Court Fees and Suit Valuation Act, 1956, but instead, Court Fee of only Rs.200/- was paid under Section 34(2) of said Act. The order of the Court below
17. In the Court below, the appellant marked Exs.P1 to P19 and respondents marked Exs.R1 to R14.
18. By common order dt.04.12.2019, IA.No.s 456 and 1285 of 2019 were both dismissed by the Court below.
19. It noted that as per Ex.P4 ROR for the year 1979-80, the names of the 1st respondent and other respondents were reflected in the possession column, that documents filed by the respondents show that the suit schedule 6 property has been converted into plots, but the appellant is asserting that it is agricultural land. It held that the appellant suppressed the facts about conversion of land from agricultural to non-agriculture.
20. It then stated that Narsaiah executed a GPA document bearing No.72/1983 in favour of one Ramaswamy, who executed registered sale deed bearing document No.3434/1983 dt.12.10.1983 in favor of respondents 2 and 3; and thereafter the names of respondents 2 and 3 were mutated in the revenue records and were reflecting in the pahani Ex.P6 for the year 1985-
86.
21. It further observed that subsequent to the above transaction, respondents 2 and 3 sold the land in favour of 4th respondent vide regd.sale deed document No.2015/1987 dt.20.01.1987, and thereafter 4th respondent also got mutated his name in the revenue records as pattadar and possessor as can be seen from Ex.R11 pahani for the year 1989-90.
22. It further held that 4th respondent's LRs executed a registered sale deed in favour of 7th respondent in 2018.
23. It observed that since the date of mutation of property in the name of respondents 2 and 3, and 7 subsequently in the name of 4th respondent and 7th respondent, neither the appellant nor the 1st respondent raised any dispute for almost 37 years, but suppressing all these transactions, the appellant had filed the suit by raising false pleas and he did not come to the Court with clean hands. It therefore held that appellant had not made out any prima facie case or balance of convenience and he was not entitled to any relief.
The present Appeal
24. Assailing the same, this Appeal is filed. Contentions of the appellant
25. It is the contention of the counsel for the appellant that the Court below did not consider Exs.P1 to P19 marked on behalf of the appellant; that the findings of the Court below that appellant had suppressed facts about conversion of land from agriculture to non-agriculture or about lack of joint possession by the appellant is not correct; that the appellant was not aware of the conversion proceedings at all, which occurred behind his back. He also contended that Ex.R2 registered GPA bearing document No.72/1983 dt.22.09.1983 is non est in the eye of law and the said GPA could not have been executed by Narsaiah in favour of Ramaswamy. He alleged that Exs.R1 8 to R4 are not binding on him and that entries in revenue records do not confer any title on the 1st respondent or any other respondents.
26. Counsel for 7th respondent supported the order of the Court below and refuted the contentions of the counsel for appellant.
Consideration by the Court:
27. Admittedly, Ex.R2 GPA is a registered document bearing No.72/1983 executed by Narasaiah in favour of one Ramaswamy and the said Ramaswamy had executed Ex.R1 registered sale deed bearing document No.3434/1983 in favour of respondents 2 and 3 on 12.10.1983, and thereafter in 1987, respondents 2 and 3 executed registered sale deed bearing document No.2015/1987 dt.20.01.1987(Ex.R3) in favour of 4th respondent. Thereafter 4th respondent died and respondents 5 & 6 executed Ex.R4 registered sale deed on 05.11.2018 in favour of 7th respondent.
28. As rightly held by the Court below, the pahani Ex.P6 for 1985-86 showed the names of respondents 2 and 3, as pattadars and possessors after 1983, and Ex.R11 pahani for 1989-90 showed the possession of the 4th respondent in the possession column.
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29. It is settled law that registration of a document is constructive notice of the transaction affecting immovable property comprised therein.
30. 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 10 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."
31. 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 2 (1999) 5 SCC 222, at page 233 11 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 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)
32. So as per Explanation I to Sec.3 of the Transfer of Property Act, 1882, appellant is deemed to have constructive notice of the sale deeds Exs.R1, R3 and R4. Therefore, the appellant cannot prima facie take the stand that he had no knowledge of these documents.
33. A perusal of these documents also indicates that the land was not agricultural land and had been converted into non-agricultural land/plots and that possession of the 12 property had not been with the appellant at least from 1983.
34. So the appellant did not come to the Court with clean hands as he had suppressed the conversion of agricultural land into non-agricultural land and wrongly pleaded that he was in joint possession when he was not at all in possession since 1983 and the pahanies indicated the possession of the predecessors of the 7th respondent from 1983 onwards. He cannot pay a mere Rs.200/- invoking Sec.34(2) of the A.P.Court Fees and suit Valuation Act,1956 and ought to have paid it under Sec.34(1) of the said Act..
35. Therefore, we do not find any error in the order passed by the Court below and so the CMA is accordingly dismissed. The interim order granted in IA No. 3 of 2020 in this appeal on 8-9 -2020 stands vacated. No order as to costs.
36. Miscellaneous petitions pending, if any, shall also stand dismissed.
____________________________ M.S.RAMACHANDRA RAO, J _______________________ T.AMARNATH GOUD, J Date: 28-12-2020 Note: Issue CC by tomorrow.
B/o(gra)