IN THE COURT OF X ADDITIONAL DISTRICT JUDGE :
NARSAPUR
PRESENT:- Sri A.Narasimha Murthy X Additional District Judge, Narsapur.
Wednesday, this the 17th day of June, 2020
O.S.No.14 of 2016
Between:
Jakkam Sri Krishna Bhagavan … Plaintiff
And
1.Sri Adi Kesava Emberumanar Swamy Vari Devasthanam, Represented by its Executive Officer, Narsapur
2.The Assistant Commissioner, Endowments Department, Eluru, West Godavari District
3.The Commissioner, Endowments Department, Andhra Pradesh, Hyderabad … Defendants (Name of Defendant No.1 is amended as per Order dated 3.4.2018 in I.A.No.231/2018)
This Suit coming on 18.3.2020for final hearing before me in the presence of Sri G.Srinivasa Rao, Advocate for the Plaintiff and of Sri G.V.K.Rama Rao,
Advocate for the Defendant No.1 and of Assistant Government Pleader for the
Defendants 2 and 3 and having perused the material papers on record and having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
This is a suit for Declaration of title in the plaint schedule property and for consequential Permanent Injunction restraining the defendants either from trespassing into the plaint schedule property or from interfering with the plaintiff possession and enjoyment of plaint schedule property with costs of the suit on the following averments.
2. The plaint schedule property of Ac.4.78 cents is part of full extent of
Ac.14.71 cents in R.S.No.689 of Kopparru village originally belonged to the 2 defendant No.1. The then Executive Officer of defendant No.1 obtained prior permission from the defendant No.3 for putting the Ac.14.71 cents and other property in an extent of Ac.10.06 cents in R.S.No.724 of Kopparru village for sale in public auction. The defendant No.1 conducted public auction on 30.6.1980.
Polisetti Mutyala Rao participated in the said auction on behalf of joint family business members and figured as a highest bidder for a sum of Rs.60,000/- in respect of Ac.14.71 cents in R.S.No.689. The defendant No.3 confirmed the above auction dated 6.8.1980 stating that the then Executive Officer of the defendant No.1 was directed to get the sale deed registered in the name of highest bidders at the expenses of the purchaser after collecting the entire bid amount. Polisetti Mutyala Rao paid the entire auction amount out of his joint family business funds. The defendant No.1 delivered possession of the above said Ac.14.71 cents to the said Polisetti Mutyala Rao. The said Polisetti Mutyala
Rao and his joint family members i.e., Polisetti Pardha Saradhi, Krishna Murthy,
Plaintiff and one Jakkam Satyavathi executed a Partition List dated 20.8.1980.
As per the said partition list, the plaint schedule property fell to the share of the plaintiff. Subsequently the plaintiff took possession of the schedule property as per the partition list. Since then the plaintiff has been in peaceful possession and enjoyment of the plaint schedule property with absolute rights as owner by paying the taxes. The auction purchaser, Polisetti Mutyala Rao died on 2.7.2002.
The plaintiff along with the other sharers to the above property approached the then Executive Officer of the defendant No.1 in the year 2012 and requested to execute Registered Sale Deeds in favour of the plaintiff and other sharers in pursuance of the partition list dated 2.8.1980. The then Executive Officer of the defendant No.1 executed a registered Sale Deed in favour of the plaintiff in respect of the plaint schedule property on 30.4.2012. Recently he came to know that the defendant No.2 executed an unilateral Cancellation Deed dated 7.4.2015 3 in favour of the defendant No.1 cancelling the registered sale deed dated 30.4.2012. The said Unilateral Cancellation Deed dated 7.4.2015 executed between the defendants 1 and 2 does not bind the plaintiff. Registered Sale
Deed dated 30.4.2012 is a valid and genuine document for valuable consideration. The defendant No.2 has no right to execute any document much less Unilateral Cancellation Deed without following the due process of law. He is the absolute owner of the plaint schedule property and since 1980 the plaintiff has been in peaceful possession and enjoyment. The defendants 1 to 3 have no right to question. The defendant No.1 will not get any title under the Unilateral
Cancellation Deed dated 7.4.2015. The defendant No.1 is trying to occupy the plaint schedule property and take possession of the same highhandedly and illegally without having any right. The plaintiff got issued a registered notice
dated 11.2.2016 to the defendants demanding them to cancel the unilateral
cancellation deed dated 7.4.2015. The defendants having received the registered notice kept quiet. The plaintiff is entitled to the declaration of his title and for the consequential relief of Permanent Injunction. Hence the suit.
3. The defendant No.1 filed written statement denying the averments in the plaint. The brief facts of the written statement of the defendant No.1 are as follows.
No notice under Section 80 CPC is issued to any of the defendants and as such the suit is not maintainable under law. An extent of Ac.14.71 cents in
R.S.No.689 of Kopparru village including the plaint schedule property and other extent of Ac.10.06 cents in R.S.No.724 was sold in public auction as per the proceedings of defendant No.3. Mutyala Rao participated in the auction in his individual capacity only and not on behalf of any joint family business. Under
Law no benami transaction is allowed. Mutyala Rao who was the highest bidder was also duly informed by this defendant by notice dated 18.8.1980 to pay the 4 balance amount within 15 days of the receipt of the said notice and get the sale deed duly executed and registered, failing which action would be taken as per the auction conditions. The said Mutyala Rao also received the said notice. The said Mutyala Rao was the tenant of this defendant in respect of the said Ac.14.71 cents, even prior to the auction sale and he continued to be in possession even after sale. But this defendant never delivered possession to the said Mutyala
Rao in his capacity as highest bidder. As per the auction conditions, possession of the property would be delivered only after due execution and registration of the sale deed. Partition List dated 20.8.1980 does not bind on this defendant.
The alleged partition list is not true and valid and it is brought into existence for the purpose of this suit. This defendant issued registered notice dated 1.12.1980 to the said Polisetti Mutyala Rao informing him that he paid only an amount of Rs.27,000/- and that unless the balance amount is paid within 7 days after receipt of the said notice and get proper sale duly executed and registered by this defendant, the bid would be cancelled and property would be put to re- auction and the amount paid already would be forfeited. The said Polisetti
Mutyala Rao received the said notice 10.2.1980, but he neither issued any reply nor paid the amount within 7 days. Polisetti Mutyala Rao never did any business at all and there was no joint family property. The plaintiff was not a member of the joint family of late Mutyala Rao. The plaintiff is not the highest bidder and he never paid any amount and he has nothing to do with the plaint schedule property. The plaintiff never paid any taxes prior to the sale deed alleged to have been obtained on 30.4.2012. Polisetti Mutyala Rao died on 2.7.2002. By that date, Mutyala Rao did not get any sale deed duly executed and registered in his favour. The Executive Officer of this defendant-temple has no authority at all to execute any sale deed in favour of the plaintiff or anyone, excepting the highest bidder. So the sale deed dated 30.4.2012 alleged to have been obtained 5 by the plaintiff from the then Executive Officer of this defendant is not valid under law and the said sale deed was executed without any authority and against the rules. The bid amount was paid by deceased Mutyala Rao in installments by 5.7.1982 only which is after more than 2 years of the auction and it is in violation of auction conditions. The plaintiff does not get any title over the plaint schedule property. The then Executive Officer of this defendant-temple
Allu Venkata Durga Bhavani executed and registered sale deeds in favour of three persons separately for a total extent of Ac.10.71 cents out of Ac.14.71 cents in R.S.No.689 of Kopparru village, without obtaining permission from the
Department. The plaintiff is one of the said three persons who obtained the sale deed in respect of the plaint schedule property in his favour. The highest bidder violated the auction conditions. Further he failed to respond the legal notice, as such the highest bidder is deemed to have relinquished his rights over the property. The highest bidder has no legitimate right to partition the property and apportion the shares. The plaintiff and others prevailed upon the said
Executive Officer to execute and registered the sale deeds in favour of the plaintiff and the other two persons. The then Executive Officer is fully aware that what she was doing was wrong. The plaintiff gave the indemnity bond
dated 22.3.2012 under took unconditionally to abide by all the actions of
Endowment Department including the cancellation of the sale deed which is to be executed by the Executive Officer. On such promise and undertaking given by the plaintiff, the then Executive Officer executed and registered the sale deed
dated 30.4.2012 in favour of the plaintiff. Assistant Commissioner, Eluru i.e.,
defendant No.2 in pursuance of the orders of the Commissioner, Endowments
Department in his RC.No.L2/5402/2014, dated 9.1.2015 cancelled the said deed
dated 30.4.2012 in favour of the plaintiff in respect of the plaint schedule
property by executing the registered Cancellation Deed dated 7.4.2015. The 6 cancellation deed is valid and binding on the plaintiff. By virtue of the cancellation deed the earlier sale deed dated 30.4.2012 becomes void and inoperative and the said sale deed does not confer any title in favour of the plaintiff over the suit property. The payment of tax or issue of pattadar passbook or any other entry in revenue records do not confer any title. The plaintiff is only a trespasser. The plaint schedule property is the endowment property and governed by the provisions of Hindu Religious and Charitable
Endowment Act Act and this defendant is taking action for recovery of possession by taking appropriate proceedings under the Act. The plaintiff is not entitled for declaration of title and for consequential injunction. This defendant requested to dismiss the suit with costs.
4. The defendant No.2 filed written statement denying the averments in the plaint. The defendant No.3 filed Memo adopting the written statement of defendant No.2. The brief facts of the written statement of the defendant No.2 are as follows.
As per the Rule 26 (k) (l) of the A.P. Rules under the Registration Act, 1908 the Endowments Department can execute the cancellation deed, cancelling the earlier sale deed when the property belongs to the endowments Department.
The Commissioner, Endowments Department never gave authority to the then
Executive Officer to execute and register any Sale Deed in favour of the plaintiff, after lapse of nearly 32 years since the bid was confirmed. The earlier orders issued by the Commissioner was to execute and register sale deed in favour of the highest bidder Polisetti Mutyala Rao, after collecting the entire bid amount within the stipulated period. No orders were issued by the Commissioner to split the property and execute separate Sale Deeds in favour of different persons.
The sale deed dated 30.4.2012 does not confer any title in favour of the plaintiff in respect of the plaint schedule property and the said Sale Deed was also 7 cancelled by executing the Cancellation Deed dated 7.4.2015 and the plaintiff is not entitled to question the cancellation deed. The plaintiff failed to comply with the requirement under Section 80 CPC and failed to issue notice to the defendants 2 and 3 and as such the suit is not maintainable under law. This defendant and defendant No.3 are Government employees. As per Order 27
Rule 5-A, the Government shall be joined as a party to the suit and as such this suit is not maintainable under law. No injunction can be granted against the true owner. This defendant requested to dismiss the suit with costs.
5. Basing on the above pleadings, the following issues are settled for trial.
1)Whether the suit is not maintainable?
2)Whether the plaintiff is a member of Joint Family of Mutyala
Rao?
3)Whether Cancellation Deed dated 7.4.2015 is not valid and not binding on the plaintiff?
4)Whether the plaintiff is entitled to Declaration as prayed for?
5)Whether the plaintiff is entitled for consequential Permanent
Injunction as prayed for?
6)To what relief?
6. During the course of trial in the suit, the son of the plaintiff- Jakkam
Kasi, Ravi Venkateswara Rao and Chinimilli Rama Krishna are examined as
P.Ws.1 to 3 and documents Exs.A.1 to A.9 are exhibited in the evidence of
P.W.1. Moka Arun Kumar, the Executive Officer of Defendant No.1 Temple and
Chimakurthy Durga Prasad, Assistant Commissioner of Endowments i.e., defendant No.2 are examined as D.Ws.1 and 2 and documents Exs.B.1 to B.6 are exhibited in the evidence of D.W.1.
7. Heard the arguments of learned counsel for the plaintiff and learned counsel for the defendant No.1 and Assistant Government Pleader for the defendants 2 and 3.
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8. ISSUE NO.2:- It is the pleading of the plaintiff and evidence by
P.W.1 that Polisetti Mutyala Rao participated in the public auction of the schedule property conducted by defendant No.1 on 30.6.1980 on behalf of joint family which consists of Mutyala Rao, plaintiff and three others and entire auction amount was paid out of joint family business funds. It is also the case of the plaintiff that as per the partition list dated 20.8.1980 executed among these persons, schedule property fell to the share of the plaintiff. It is the pleading and evidence of defendants that Polisetti Mutyala Rao being a tenant of the entire extent of Ac.14.71 cents including the plaint schedule and participated in the auction in his individual capacity and not on behalf of joint family members.
It is also their contention that there was no joint family business or funds and
Mutyala Rao never did any business and plaintiff is not a member of joint family of Polisetti Mutyala Rao. The defendants also denied about the alleged partition list dated 20.8.1980 and plaintiff and others have no right to partition of the said property which belonged to defendant No.1 temple.
9. As the defendants denied the plaintiff and Polisetti Mutyala Rao as members of joint family, the burden heavily lies upon the plaintiff to prove the same. Admittedly the plaintiff is not examined in the suit and only his son is examined as P.W.1 and also examined two other witnesses. P.W.1 categorically admitted in his cross-examination, the family of Polisetti Mutyala Rao and his family are not joint family members and there is no partnership deed or accounts to show that there was joint business as alleged in the plaint. P.W.1 pleaded ignorance when he is questioned about the alleged partition list dated 20.8.1980.
10. It is pertinent to note that the plaintiff did not choose to file alleged partition list dated 20.8.1980 to take into consideration of plea of the plaintiff that himself and Mutyala Rao consists of joint family. As per Sections 91 and 92 of Indian Evidence Act, no evidence shall be given for proof of terms of any 9 document which was reduced into writing. As such the plaintiff is precluded from adducing any oral evidence with regard the alleged partition list.
Consequently there is no material on record to prove about execution of alleged partition list dated 20.8.1980 among himself, Polisetti Mutyala Rao and two others in respect of the plaint schedule property.
11. P.W.3 who is examined on behalf of the plaintiff categorically stated in his cross-examination that the plaintiff and Mutyala Rao do not belong to one family. The plaintiff did not explain as to how he is related to Polisetti Mutyala
Rao. Though there is no limit to the number of persons to whom Hindu Joint
Family consists of, but in view of specific denial by the defendants, it is for the plaintiff to prove that he is a member of joint family along with Polisetti Mutyala
Rao. But the plaintiff failed to adduce cogent evidence that himself and Polisetti
Mutyala Rao belonged to Hindu Joint Family and there is a common ancestor for them. Thus this court is of the considered opinion that the plaintiff utterly failed to prove that himself and Polisetti Mutyala Rao belong to Hindu Joint Family and they executed the partition list. Hence this issue is answered against to the plaintiff and in favour of the defendants.
12. ISSUES NOS.1, 3 AND 4:- The learned counsel for the plaintiff argued that the plaint schedule property which is an extent of Ac.4.78 cents is part of extent of Ac.14.71 cents in Kopparru Village belonged to defendant No.1 temple. There was no income to the schedule property and as such defendant
No.1 put the same for public auction with the permission of defendant No.3 on 30.6.1980. Polisetti Mutyala Rao on behalf of the joint family participated in the public auction and became successful bidder and defendant No.3 confirmed the auction on 6.8.1980 and Mutyala Rao paid entire bid amount from out of joint family funds. As per the partition list executed between the joint family members, schedule property fell to share of plaintiff and he came into possession 10 and enjoyment of the schedule property and continuing in possession. After confirmation of sale, defendant No.1 did not demand any rent and did not put schedule property for auction of leasehold rights. Polisetti Mutyala Rao died on 2.7.2002 and subsequently plaintiff and along with other sharers approached
Executive Officer of defendant No.1 in the year 2012 to execute the registered
Sale Deeds as per the partition list dated 20.8.1980.
13. It is further argued that the then Executive Officer of defendant No.1 temple executed Ex.A.2 registered sale deed on 30.4.2012 in favour of the plaintiff who has paid land revenue to the schedule land under Exs.A.3 and A.4.
But subsequently defendant No.2 executed cancellation deed dated 7.4.2015 under original of Ex.A.5 cancelling sale deed dated 30.4.2012 without any manner of right. He further urged that the defendants ought to have filed the suit for cancellation of the sale deed. Without filing the suit and issuing any notice simply they executed cancellation deed dated 7.4.2015 unilaterally which is not valid and binding on the plaintiff.
14. It is further submitted that in order to prove possession and enjoyment of the plaintiff, he has examined neighbours to the schedule property as P.Ws.2 and 3 who categorically deposed about the possession of the plaintiff in the schedule property which is also admitted by the defendants from the date of the auction. The defendants are depending upon Ex.B.6 indemnity bond which is not valid and not filed along with the written statement and as such the plaintiff is entitled to relief of declaration of his title and for consequential injunction sought for in the suit.
15. The learned counsel for the plaintiff further urged that Ex.B.6 indemnity bond is not mentioned in the cancellation deed dated 7.4.2015.
D.W.1 admitted in cross-examination that Register No.43 is maintained in every
Temple and schedule property was not mentioned in the said Register as it was 11 auctioned. Further no auction for leasehold rights of the schedule property was conducted. The legal heir of Polisetti Mutyala Rao has not issued any notice to defendants that they have got right in the schedule property to deny the right of the plaintiff. Mere filing of indemnity bond is not a proof and the then Executive
Officer having knowledge about the indemnity bond was not examined by the defendants. Neither defendant No.1 nor its Officials visited the schedule property and did not pay any taxes from the year 1980 and thus defendant No.1 lost its rights in the schedule property. The defendants 2 and 3 are not
Government Officials and the Endowment Department is not a Government and no notice under Section 80 CPC is necessary as contended by the defendants and he requested to decree the suit.
16. The learned counsel for the defendant No.1 submitted that Polisetti
Mutyala Rao was a tenant in an extent of Ac.14.71 cents of land in Kopparru village including the schedule land which belong to defendant No.1 temple and orders were issued to conduct auction by defendant No.3. Accordingly auction was conducted for sale for entire extent of the property on 30.6.1980 and bid was knocked down in favour of Polisetti Mutyala Rao being highest bidder for sum of Rs.60,000/-. As per the terms and conditions of the auction, Mutyala Rao has to pay the amount in lump sum within 15 days of date of confirmation of bid by defendant No.3. If the auction purchaser does not pay the amount, defendants have got right to forfeit the amount. Polisetti Mutyala Rao has not paid the auction amount within 15 days of letter dated 18.8.1980 or Ex.B.4 notice dated 1.12.1980 to pay balance amount. But without any right, Mutyala
Rao paid amount in installments by 5.7.1982. Thus auction conditions in Ex.B.1 are not complied by the auction purchaser.
17. He further argued that the plaintiff is not the auction purchaser and he is not a legal representative of Polisetti Mutyala Rao and he is only third 12 party. No orders are issued by defendant No.3 to execute sale deed in favour of the plaintiff who is a third party. But as per the version of the plaintiff, schedule property which is extent of Ac.4.78 cents was allotted to the plaintiff as per the partition list which was not filed and no evidence was adduced for the alleged partition list. Even as per the contention of the plaintiff, the then Executive
Officer obtained Ex.B.6 indemnity bond from the plaintiff undertaking to abide by the actions of Endowment Department including the cancellation of the sale deed. The then Executive Officer had no manner of right to execute Ex.A.2 sale deed in favour of plaintiff. As the previous Executive Officer erroneously executed the sale deed, the defendant No.2 executed the cancellation deed cancelling the Ex.A.2 sale deed which is valid and binding on the plaintiff.
18. It is further urged that proviso to Rule 26(k) of A.P. Rules under
Registration Act, 1980, Endowment Department can unilaterally cancel the document and defendant No.2 is empowered and competent to cancel the earlier sale deed. Further no orders were given by defendant No.3 for splitting the entire extent of Ac.14.71 cents into plaint schedule land and two other extents and defendants did not deliver possession of the schedule property to auction purchaser Polisetti Mutyala Rao who was continuing in possession as a tenant under defendant No.1. Thus no title is passed to the plaintiff under Ex.A.2 sale deed which is not valid and it is also cancelled by subsequent cancellation deed
dated 7.4.2015 and he requested to dismiss the suit.
19. The learned Assistant Government Pleader for defendants 2 and 3 argued that the plaintiff is not examined in the suit, only his son is examined as
P.W.1. An adverse inference has to be drawn against the plaintiff for not examining him and evidence of P.W.1 is not substitute to the evidence of the party to the suit. No document is filed by the plaintiff to show that the defendants delivered possession of the schedule property to Polisetti Mutyala 13
Rao. Prior permission of defendant No.3 is necessary for alienation of the endowment property and permission was only granted under Ex.B.2 to execute sale deed in favour of Polisetti Mutyala Rao who did not fulfill the auction conditions and thus he did not obtain sale deed. He further submitted that the defendants 2 and 3 are Government employees as per Section 3 of A.P.
Charitable and Hindu Religious Institutions and Endowments Act, 1987and they are public officers. As per Order 27 Rule 5-A CPC when a suit is instituted against a public officer in their official capacity the Government shall be joined as a party to the suit. But the Government is not added as a party to the suit and on that ground suit is liable to be dismissed.
20. The learned Assistant Government Pleader further argued that notice under Section 80 CPC is mandatory before filing the suit against the defendants 2 and 3 who are public officers. Further no petition was filed under Section 80(2) CPC before filing the suit by the plaintiff for granting leave to file the suit without issuing notice under Section 80 CPC. On that ground also, the suit filed by the plaintiff is not maintainable and it is liable to be dismissed and he relied on decisions reported in 1. 2009(4) Civil Court Cases 812 (Delhi) between
K.A.Paul Vs. K.Natwar Singh & Ors., 2. 2001(2) Civil Court Cases 336
(Orissa) between Simanchal Padhy Vs. State of Orissa & Ors., and 3.
1993 (Suppl.) Civil Court Cases 681 (Karnataka) between State of
Karnataka Vs. Eastern Medicals.
21. The son of the plaintiff is examined as P.W.1 who reiterated the averments in the plaint. The plaintiff examined P.Ws.2 and 3 who are residents of Kopparru village in which plaint schedule property is situated who supported the version of plaintiff. Documents Exs.A.1 to A.9 are exhibited in the evidence of P.W.1. The Executive Officer of defendant No.1 temple is examined as D.W.1 14 and defendant No.2 is examined as D.W.2 on behalf of defendants. Documents
Exs.B.1 to B.6 are exhibited in the evidence of D.W.1.
22. It is the contention of the plaintiff that he took possession of the plaint schedule property in pursuance of the partition list dated 20.8.1980 and since then he has been continuing in possession and subsequently obtained
Ex.A.2 registered sale deed on 30.4.2012 executed by the then Executive Officer of defendant No.1 temple and he has been paying land revenue under Exs.A.3 and A.4 tax receipts. Without any manner of right defendant No.2 executed original of Ex.A.5 cancellation deed on 7.4.2015 unilaterally cancelling Ex.A.2 sale deed. The defendant No.1 neither exercised any right nor ownership over the plaint schedule property since date of auction. The plaintiff is having right and title which is subsisting as per Ex.A.2 sale deed and as such suit is filed for declaration of his title and for consequential injunction.
23. It is the evidence of D.Ws.1 and 2 that Polisetti Mutyala Rao who was tenant of the entire extent of Ac.14.71 cents failed to pay the bid amount within 15 days of receiving information of confirmation of sale being highest bidder as per auction conditions and plaintiff is not the highest bidder and he did not pay any bid amount. The defendant No.3 did not authorize the then Executive
Officer to execute sale deed in favour of the plaintiff who is a third party. The plaintiff by misleading the then Executive Officer of defendant No.1 obtained
Ex.A.2 sale deed after giving undertaking as per Ex.B.6 indemnity bond undertaking to abide all the actions of Endowment Department including the cancellation of the sale deed. As per the Rules under the Registration Act, defendant No.2 executed the cancellation deed cancelling the invalid sale deed and plaintiff has no right in the schedule property or he is entitled to any relief in the suit.
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24. On perusal of the pleadings and evidence, the following are the admitted facts between the parties to the suit. The defendant No.1 is the
Temple represented by Executive officer and defendant No.2 is Assistant
Commissioner, Endowment Department and defendant No.3 is the
Commissioner, Endowment Department. It can be inferred from the material on record that one Polisetti Mutyala Rao was cultivating tenant of total extent of
Ac.14.71 cents in R.S.No.689 of Kopparru village including the plaint schedule property of Ac.4.78 cents. It is also admitted fact that public auction was conducted on 30.6.1980 for sale of entire extent of Ac.14.71 cents in which the cultivating tenant Polisetti Mutyala Rao participated in the auction and he was declared as highest bidder for sum of Rs.60,000/-. It is also not in dispute that the said bid was confirmed by defendant No.3 on 6.8.1980 as per proceedings under Ex.B.2. As per condition No.7 in Ex.B.1 auction conditions, the auction purchaser has to pay the balance bid amount after deducting the security deposit amount within 15 days of receiving information of confirmation of bid and obtain registered sale deed and then only possession would be delivered to him.
25. It is neither pleaded nor deposed by P.W.1 as to when the bid amount of Rs.60,000/- was paid by Polisetti Mutyala Rao. As the plaintiff did not controvert the pleading and evidence of defendants, it can be inferred from the version of the defendants that the bid amount was paid by Mutyala Rao in installments by 5.7.1982, two years after the date of the auction. It is also not in dispute that Polisetti Mutyala Rao died on 2.7.2002. Though the plaintiff contended that himself and Polisetti Mutyala Rao consists of joint family, the plaint schedule property fell to his share under alleged Partition List dated 20.8.1980, no cogent evidence is adduced in this regard to accept the said contention. It is also pertinent to note that there is no whisper either in the pleading or chief-examination of P.W.1 that Polisetti Mutyala Rao was a 16 cultivating tenant under defendant No.1 by the date of auction. But the said fact is admitted by P.Ws.1 to 3 in their cross-examination that he was a cultivating tenant even prior to the date of auction. Thus the factum of Mutyala Rao being a cultivating tenant of entire extent of Ac.14.71 cents including the plaint schedule property was suppressed by the plaintiff and it is a material suppression.
26. Admittedly the plaintiff is not examined in the suit and his son who is
General Power Attorney holder of the plaintiff under Ex.A.1 is examined as
P.W.1. It is pertinent to note that P.W.1 was only entitled to represent on behalf of the plaintiff by recognizing him as General Power of Attorney holder but no permission was accorded to him to give evidence on behalf of the plaintiff as per order of the Court dated 25.9.2018 in I.A.No.535/2018. But contrary to that
P.W.1 mentioned in his chief-examination affidavit that he was permitted to depose on behalf of the plaintiff. The said aspect is nothing but circumventing the order of the court and approaching the court with unclean hands. Now it is to be seen whether the evidence of P.W.1 is substitute to the evidence of plaintiff. It is held by Hon’ble High Court reported in 1. 1993 (3) ALT 428
between Kanakapudi Bharathi and another Vs. Authority under Section
50 of A.P. Shops and Establishments Act-cum-Labour Officer,
Machilipatnam and another in which Hon’ble High Court held in para No.5 as follows.
“Power of Attorney Holder of a party can appear only as a
witness in his personal capacity to speak about the facts
which are within his personal knowledge about the case,
but, he cannot appear as a witness on behalf of a party in
the capacity of that party. Testimonial compulsion is the
very foundation of the Law of Evidence for without such
compulsion every refusal to give evidence will render
administration of justice impossible. It is not a legal fetish.
It is a necessity and also the general rule. The petitioner
cannot stay back without entering into witness box and
subjecting themselves to cross-examination by the second
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respondent. Further, even if the petitioners are unable to
appear in Court, a Commissioner for recording their
evidence may be taken out under the relevant provisions of
the Code of Civil Procedure.”
27. It is also held by Hon’ble High Court in decision reported in 2004 (3)
ALD 547 between S.Padmavathamma Vs. S.Sudha Rani and others in
Para No.2 as follows.
“A General Power of Attorney of such party, merely because
of such power would not become a substitute to the party
and so he is incompetent to depose about the facts which
are within the exclusive personal knowledge of the party.
Therefore, the Trial Court holding that a Power of Attorney
is not a substitutive for his principal, and cannot speak
about the facts which are within the personal knowledge of
the party, needs no interference.”
28. As per the above ratios, P.W.1 who is Power of Attorney Holder of his father i.e., plaintiff in the suit is not entitled to give evidence on behalf of plaintiff. Thus P.W.1 is incompetent to depose the facts which are within exclusive personal knowledge of the plaintiff. As such the testimony of P.W.1 is not useful to establish the case of the plaintiff in the suit. It is pleaded at one stage of the plaint that Polisetti Mutyala Rao paid the entire auction amount. At another stage it is pleaded that the plaintiff paid the bid amount from out of his joint business funds. Thus there are inconsistent versions taken by the plaintiff with regard to payment of bid amount. The plaintiff did not deny defendants 2 and 3 being a Government employees as envisaged under Section 3 of A.P.
Charitable and Hindu Religious Institutions and Endowments Act, 1987 and they are public officers. As such Government is required to be made as a party to the suit as per mandate of Order 27 Rule 5-A CPC. But the plaintiff did not choose to implead Government as a party to the suit. Thus on that ground also, the suit is bad for non-joinder of necessary party.
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29. It is the specific contention of the plaintiff that the defendants without filing the suit for cancellation of the sale deed dated 30.4.2012 unilaterally executed the cancellation deed which is not valid and binding on the plaintiff and the plaintiff is continuing in possession and enjoyment of the schedule property by paying land revenue. It is settled proposition of law that mere payment of land revenue or issuing of passbooks do not confer any right and title to the property as these are not documents of title. The plaintiff was neither a tenant of defendant No.1 temple nor participated in the public auction conducted by defendant No.1 on 30.6.1980.
30. The plaintiff is relying on Ex.A.2 sale deed for seeking Declaration of his title over the plaint schedule property. In this case neither the plaintiff nor any of the witnesses are examined to prove the contents of Ex.A.2 sale deed that it was validly executed and binding on defendants. Mere filing of Ex.A.2 sale deed in the evidence of P.W.1 by itself do not establish the right and title of the plaintiff in the plaint schedule property. No material is brought on record by the plaintiff that any order was issued by defendant No.3 authorizing the then
Executive Officer of the defendant No.1 temple to execute Ex.A.1 sale deed in favour of the plaintiff that too for plaint schedule extent of Ac.4.78 cents which is only part of total extent of Ac.14.71 cents which was sold in public auction to
Polisetti Mutyala Rao. It is not known as to how the plaint schedule extent came to be mentioned in Ex.A.2 sale deed in favour of the plaintiff when there is no specific order to split the entire extent of Ac.14.71 cents.
31. Further the plaintiff did not deny about execution of Ex.B.6 indemnity bond on 22.3.2012 in favour of defendant No.1 temple undertaking to abide by the actions of Endowment Department including cancellation of the sale deed. If really the plaintiff was having any right to obtain valid sale deed, there was no need and necessity for him to execute Ex.B.6 indemnity bond on 22.3.2012 19
before obtaining Ex.A.2 sale deed from defendant No.1 in respect of the plaint
schedule property. The factum of execution of Ex.B.6 indemnity bond by the plaintiff presupposes that the plaintiff was having sufficient knowledge that the sale deed to be obtained by him has no validity and force of law. The plaintiff is mainly questioning the right of defendant No.2 in execution of cancellation deed
dated 7.4.2015 cancelling sale deed dated 30.4.2012. At this stage, it is
necessary to mention Rule 26(k) of A.P. Rules under the Registration Act, 1980.
(k)(i) The registering officer shall ensure at the time of presentation for Registration of cancellation deeds of previously registered deed of conveyances on sale
before him that such cancellation deeds are
executed by all executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied Civil or High Court or State or Central Government annulling the transaction contained in the previously
registered deed of conveyance on sale.
Provided that the registering officer shall dispense
with the execution of cancellation deeds by executant and
claimant parties to the previously registered deeds of
conveyances on sale before him if the cancellation deed is
executed by a Civil Judge or a Government Officer
competent to execute Government orders declaring the
properties contained in the previously registered
conveyance on sale to be Government or Assigned or
Endowment lands or properties not registerable by any
provision of law.
32. Admittedly the schedule property belonged to defendant No.1 temple which is an Endowment land and as per the Proviso to Rule 26 (k) of A.P. Rules under the Registration Act, 1908, the Government Officer is competent to execute the cancellation deed unilaterally for which the plaintiff cannot question the right of defendant No.2. In view of Ex.B.6 indemnity bond dated 22.3.2012 executed by the plaintiff in favour of defendant No.1 temple and also as per power vested with the defendant No.2 under the above rule, the cancellation deed dated 7.4.2015 was executed by defendant No.2 cancelling the Ex.A.2 sale 20 deed dated 30.4.2012. Thus the plaintiff cannot claim any right and title over the plaint schedule property to seek equitable relief of declaration.
33. As discussed above, defendants 2 and 3 are public officers discharging their duty in the official capacity as envisaged under Section 80
C.P.C. The plaintiff got issued Ex.A.6 notice on 11.2.2016 and filed the suit on 22.3.2016 within one month. In this regard it is relevant to mention the citations relied on by the learned Assistant Government Pleader put in K.A.Paul’s Case cited supra in which Hon’ble High Court of Delhi held in Para No.17 as follows.
“The suit against Defendants 2 and 3 should fail for yet
another reason. Section 80(1) CPC makes it mandatory for
prior notice to be issued before instituting a suit against
any holder of a public office in his official capacity. Both
Defendants 2 and 3 were at the relevant point of time
holders of public offices. They continued to hold public
offices at the time of filing the suit.”
34. Hon’ble High Court of Orissa in Simanchal Padhy’s Case cited supra held in Para No.8 as follows.
“The language of section 80 is express explicit and
mandatory and admits of no implication or exception. A
suit not complying with its provision is not entertainable by
any Court. Therefore, the suits filed by the opposite party
deserve dismissal being incompetent for want of notice
under section 80, C. P. C. Both the suits are accordingly
dismissed.”
35. Hon’ble High Court of Karnataka in State of Karnataka Vs.
Eastern Medicals Case cited supra held in Para No.31 as follows.
“From the aforesaid Decisions it follows that without giving
a notice of two months under Section 80 of the C.P.C. no
suit against the Government or the public officers can be
instituted or maintained. As such, it was incumbent upon
the plaintiff to prove that the notice under Section 80 of
the C.P.C. was served upon the State Government.”
36. Admittedly no mandatory notice under Section 80 Civil Procedure
Code was issued by the plaintiff before filing the suit. Taking into consideration 21 of the above ratios, it is inevitable that without giving a notice of two months under Section 80 CPC, no suit against the Government or the public officers can be instituted. Thus the suit filed by the plaintiff without issuing notice under
Section 80 CPC or filing any petition under Section 80(2) CPC seeking leave to file the suit without issuing mandatory notice, the plaintiff has to be non-suited on that ground alone.
37. The plaintiff approached the court with suppression of material facts of Polisetti Mutyala Rao was tenant of the schedule land. Further an adverse inference has to be drawn for non-examination of the plaintiff in the suit. In the light of the above discussion in the foregoing paras and as per the evidence and material on record, the plaintiff failed to prove his right and title to the schedule property and cancellation deed dated 7.4.2015 is not valid and not binding on him. Further the suit is not maintainable for non-issuance of mandatory notice under Section 80 CPC. Therefore the plaintiff is not entitled to seek relief of
Declaration claimed in the suit. Hence these issues are answered against to the plaintiff and in favour of the defendants.
38. ISSUE NO.5:- As the plaintiff is not entitled to primary relief of
Declaration as per finding in the issues decided supra, he is also not entitled to
Consequential Injunction claimed in the suit. Hence this issue is also answered against to the plaintiff and in favour of the defendants.
39. ISSUE NO.6:- In view of the findings and observations in issues 1 to 5 decided supra, the suit of the plaintiff is liable to be dismissed with costs.
40. In the result, the suit is dismissed with costs.
Dictated to the Stenographer Grade-I, transcribed and typed by her, corrected
and pronounced by me in open Court, this the 17th day of June, 2020.
Sd/- A.Narasimha Murthy,
X ADDITIONAL DISTRICT JUDGE,
NARSAPUR.
22
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF : FOR DEFENDANTS :
P.W.1 : Jakkam Kasi D.W.1 : Moka Arun Kumar
P.W.2 : Ravi Venkateswara Rao D.W.2 : Chimakurthy Durga Prasad
P.W.3 : Chinimilli Rama Krishna
DOCUMENTS MARKED
FOR PLAINTIFF :
Ex.A.1/Dt.03-07-2018 : Original General Power of Attorney of Jakkam Kasi. Ex.A.2/Dt.30-04-2012 : Original Sale Deed. Ex.A.3/Dt.05-08-2014 : Land tax receipt. Ex.A.4/Dt.01-03-2016 : Land tax receipt. Ex.A.5/Dt.07-04-2015 : Certified copy of Cancellation Deed of Sale deed. Ex.A.6/Dt.11-02-2016 : Office copy of registered legal notice. Ex.A.7/Dt. -- : Postal acknowledgement of D.1. Ex.A.8/Dt. -- : Postal acknowledgement of D.2. Ex.A.9/Dt. -- : Postal receipt.
FOR DEFENDANTS :
Ex.B.1/Dt.30-06-1980 : Auction conditions. Ex.B.2/Dt.06-08-1980 : Sale confirmation order. Ex.B.3/Dt. -- : Letter of Devasthanam. Ex.B.4/Dt.01-12-1980 : Letter by Executive Officer. Ex.B.5/Dt.10-12-1980 : Postal acknowledgement. Ex.B.6/Dt.22-03-2012 : Indemnity Bond.
Sd/- A.Narasimha Murthy,
X A.D.J,
NSP.