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IN THE COURT OF THE SENIOR CIVIL JUDGE AT MEDAK
Present : Ch.Jithendhar,
Senior Civil Judge, Medak
Tuesday, this the 15th day of October, 2024
O.S. No. 13 of 2014
CNR No.: TSME090000010014
Between:
1. Kichannapally Bhoomaiah s/o K.Mogulaiah, age:38yrs, occ.:RTC driver, r/o Chandur (v), Chilipched (m), Medak Dist.
2. Kichannapally Bhavani w/o K.Bhoomaiah, age:32yrs, occ.:housewife, r/o Chandur (v), Chilipched (m), Medak Dist.
... Plaintiffs
AND
1. Sarkari Jagadish s/o Ganesh (died per LRs/D2, 5 & 6)
2. Kummari Mallesham s/o Vittal, age : 40yrs, r/o Chandur (v), Chilipched (m), Medak Dist.
3. Sarkari Shantha w/o S.Jagadish, age : 47yrs, occ.:agriculture, r/o Chandur (v), Chilipched (m), Medak Dist.
4. The Tahsildar, Chilipched mandal, Medak Dist.
5. Sayannagari Keerthi w/o Srinivas, d/o late S.Jagadish, age:34yrs, occ.: housewife, r/o 4-53, Thummalapally (v), Yellapur, Papannapet
(m), Medak Dist.
6. Govindagari Sruthi w/o Veeresham, d/o late S.Jagadish, age:31yrs, occ.: housewife, r/o 12-7-23/9, Janatha Nagar, Moosapet, Hyderabad. (Description of D4 amended as per orders in IA No.62/2023 dtd 28-2- 23) (D5 & D6 are impleaded as LRs of deceased/D1 as per orders in IA No.446/2022 in AS No.32/2017 dtd 10-10-2022) … Defendants Counsel for plaintiff : Sri K.Ravikanth, Advocate Counsel for defendant no.4 : Sri M.Ramulu, Asst.Govt.Pleader Counsel for remaining defendants : Sri V.Pratap Reddy, Advocate
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This case having come before me for hearing from 3-11-23 till 1-10-24, having heard and considered the record till date, this court delivered the following :
JUDGMENT
1.This suit is filed by plaintiffs originally on 14-11-2013 and registered on 18-2-14 for the reliefs of declaration of title & perpetual injunction as to suit schedule property viz., agricultural land of A.2-31gts in sy.no.499/A situated Chilipchedu village and mandal (originally part of Kowdipally mandal) within boundaries – East: Somma Kistaiah land; West: Janimiya land; North: R.Durga Reddy land; South: Vannam Anjaiah land, and for cancellation of regd.sale deed No.5207/2011 and regd.gift deeds
No.1392/2013 dtd 7-3-13 & No.1883/2013 dtd 23-3-13.
2.Plaint averments in brief :
2.1.Original owner of suit schedule land was Naitha Ramaiah.
Plaintiff no.1 purchased it from him through regd.sale deed no.972/2002 dtd 3-4-2002. The same was mutated in his name in revenue records. Since then he was in possession of the said land. Plaintiff no.1 married plaintiff no.2 on 9-12-2001. Later out of love and affection plaintiff no.1 gifted the suit land to plaintiff no.2 through regd.gift deed no.8745/2006 dtd 20-11- 2006. Accordingly it was mutated in her name and she was issued pattadar pass book and title deed. Later they went to Hyderabad for livelihood in 2007.
2.2.But pahani for the year 2006-07 reflected the name of defendant no.1. Defendant no.1 created a false unregistered document,
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produced before defendant no.4 who, in turn without following due procedure and issuing notice to plaintiffs, issued 13B certificate which is invalid. It is illegal and void. Hence, plaintiffs filed application for correction of entries before defendant no.4, who replied that it is not in his hands.
Without proper enquiry and verification of physical possession, defendant no.4 issued 13B certificate to defendant no.1 in violation of law and wrongly mutated suit land in his name.
2.3.Defendant tried to take away the paddy crop from suit land, which attempt was restrained by plaintiffs with difficulty. But defendants threatened to trespass again. Further defendant no.1 executed illegal registered sale deed no.5207/2011 dtd 30-12-2011 for 20guntas of suit land in favor of D2 and executed registered gift deeds no.1392/2013 on 7-3-13 & 1883/2013 dtd 23-3-13 in favor of D3, which are invalid. By these multiple void transactions D1 complicated the problems. These illegal and void transactions came to the knowledge of plaintiffs on 25-6-2013. Hence, plaintiffs filed revision before Joint Collector vide No.F3/2919/2013 for cancellation and rectification of such illegal entries in the name of defendant no.1. As such there is need for restoration of suit land in the name of plaintiff no.2 through plaintiff no.1 in revenue records from 2006-07.
Hence, the plaintiffs are constrained to file this suit.
3.On service of summons to D1 to D3, Sri Jagadish Harkar, Advocate filed vakalath for them on 21-4-14. Suit against D4 was dismissed as not pressed on 10-7-2014. For non-filing of written statement for D1 to D3, their
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right to file the same was forfeited on 10-7-14. On 25-8-14 evidence of PW1 was recorded and ExA1 to A15 were marked as if the same are ex parte proceedings and trial was closed. But later as per orders in IA No.694/14 dtd 3-9-14, written statement for D1 & D3 was taken on record.
4.Written statement of D1 & D3 in brief :
4.1.Plaintiff no.1 purchased suit land from Nyatha Ramaiah through regd.sale deed no.972/2002 dtd 3-4-2002 and the same was mutated in his name. But he was not in possession or cultivation through it.
True facts are as follows. Nyatha Ramaiah initially executed an ordinary sale deed in favor of plaintiff no.1 on 25-2-1998 for a consideration of
Rs.50,000/- and delivered possession of suit land to him. Later plaintiff no.1 sold the suit land to defendant no.1 through ordinary sale deed dtd 24-3- 1999 on Rs.10/- stamp paper in the presence of witnesses for an amount of
Rs.95,000/- and delivered possession of the same. Plaintiff no.2 also signed the same. Through the said document plaintiff no.1 agreed to execute registered sale deed whenever demanded by defendant no.1. As such as on the date of said regd.sale deed dtd 3-4-2002 neither Nyatha Ramaiah nor plaintiff no.1 were in possession of suit land, due to which the said sale deed is invalid.
4.2.But later without having any right or title or possession plaintiff no.1 executed a nominal gift deed no.8745/2006 on 20-11-2006 to cause wrongful loss to defendant no.1, which is invalid document. Hence,
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defendant no.1 approached defendant no.4 for mutation based on ordinary sale deed dtd 24-3-1999. Accordingly, defendant no.4 followed due procedure, issued notices to plaintiff no.1, his vendor/Nyatha Ramaiah and witnesses, enquired properly, collected necessary stamp duty and registration charges, and issued 13B certificate no.C/3018/2007 dtd 25-6- 2007. Hence, the said 13B certificate in favor of defendant no.1 is completely legal and valid. Accordingly, entries were made in the name of defendant no.1 for suit land since 2007.
4.3.However, plaintiffs challenged the said 13B certificate before
Joint Collector vide file no.F3/2919/2013. Plaintiffs were not in possession of suit land since 1999 itself. Suit land was mutated in the name of D1 in 2007. Hence, this suit is barred by limitation. Further D1 sold 20guntas of suit land to D2 in 2011 and gifted remaining suit land to D3/wife of D1 in 2013. Hence, this suit is liable to be dismissed.
5.Basing on the above pleadings, the following issues were framed for trial on 20-7-2015.
1. Whether the plaintiffs are entitled for the relief of declaration ?
2. Whether the plaintiffs are entitled for the relief of cancellation of registered sale deed bearing no.5207/2011 and registered gift deed no.1392/2013 and 1883/2013 ?
3. To what relief ?
6.Later plaintiffs examined PW1 on 11-2-2016 and got marked ExA1 to
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A14. PW2 & 3 were examined later and through PW3 ExA15 to A17 were marked on 8-12-2016. As defendants did not adduce any evidence, the
Court heard arguments and passed judgment on 21-9-2017 partly decreeing the suit in favor of plaintiff no.2 so far as reliefs of declaration of title and cancellation of registered sale deed no.5207/11 and gift deed no.1392/13 & 1883/13, and partly dismissing the suit so far as relief of perpetual injunction is concerned.
7.Aggrieved by the same D1 to D3 filed appeal vide AS No.32/2017 which was allowed by Hon’ble Prl.Dist.Judge, Medak on 22-12-22 setting aside the said judgment & decree and remanding the suit back to this court with certain directions.
8.Material observations of Hon’ble Appellate Court can be noted as follows :
8.1.There is no docket proceedings reflecting whether any summons were issued to D4 to give any opportunity to put forth their submission in the suit.
8.2.Proper issues were not framed for trial in the suit. Though relief of perpetual injunction was claimed, no specific issue was framed in that regard. Despite specific pleadings as to acquisition of right and possession through an ordinary sale deed and lateral 13B proceedings, issue as to whether defendant no.1 acquired any rights over the property through said 13B certificate is not framed.
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9.Directions of Hon’ble Appellate Court in brief are to give defendant no.4 opportunity to submit proper representation in the suit, to frame proper issues for trial, to take up defendants’ evidence and additional evidence for plaintiffs if required, and to dispose of the suit.
10.Clarification on court fee : Suit is filed for declaration of title and perpetual injunction, with relief of cancellation of three registered documents pertaining to suit schedule land. Market value of suit land was
Rs.2,49,750/-. S.24(b) of APCF&SV Act provides that where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property. Half of the market value is Rs.1,24,875/- on which Rs.3,726/- was paid as court fee, which is proper. So far as relief of cancellation of subsequent registered sale deed by D1 to D2 and registered gift deeds by D1 to D3 are concerned plaintiffs are not party to the said documents, and as plaintiffs are claiming title through a separate earlier registered sale deed from original owner, plaintiffs neither need to claim such reliefs nor pay any court fee thereon, as per settled principles and precedents. Still they valued the same on 1/3rd of market value i.e.,
Rs.1,89,500/- as per s.37 of the said Act and paid Rs.4,326/- thereon, however which is not proper as s.37 prescribes payment of court fee on the value of the subject matter of the suit. In fact, cancellation is when plaintiffs are party to the disputed documents and declaration as null and void is when plaintiffs are not party to the said documents. Here plaintiffs are not
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party to the documents which are sought to be canceled. In such case, the valuation made by plaintiffs can be considered proper either u/s 24(a) or
(d) of the said Act.
11.After receipt of the record back on remand as such from appeal, defendant no.4 filed written statement as follows. As per s.5B of AP Rights in Land and Pattadar Pass Books Act, 1971 on any orders passed by MRO u/ s.5A(4) appeal shall be filed before RDO within 30days of the date of communication of order. Plaintiffs did not file any such appeal till date.
Plaintiffs’ contention that 13B certificate was issued without issuing notices is false. Plaintiffs filed revision u/s 9 of said Act before Joint Collector vide case No.F3/2919/2013 which was dismissed on 18-12-2014 observing that said revision after 7yrs of orders by the MRO is without any justification and for non-prosecution of the case by plaintiffs. On 31-5-2007 one of the witnesses to the ordinary sale deed dtd 24-3-1999 was recorded who affirmed the sale transaction between plaintiff no.1 & D1. As such plaintiffs contended false to defeat the settled rights of D1. Plaintiffs’ claim as such is totally wrong and baseless. Further plaintiffs filed a writ petition before
Hon’ble High Court against the order of Joint Collector, while this suit is
pending before this Court. Hence, this suit is liable to be dismissed.
12.Further remaining defendants filed additional written statement as follows. D5 & D6 were brought on record as LRs of D1 as per orders dtd 10- 10-2022 in IA No.446/2022 in AS No.32/2017. Suit is barred by limitation.
There is no cause of action. Court fee is insufficiently paid. Suit is bad for
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non-joinder of necessary party/Nyatha Ramaiah through who plaintiff no.1 purchased suit land earlier and sold to D1 on 24-3-1999. Plaintiff no.1 falsely contending to have purchased suit land from Nyatha Ramaiah through regd.sale deed on 3-4-2002, colluding with said Nyatha Ramaiah.
This suit is clearly collusive and fraudulent due to which it is liable to be dismissed.
13.Firstly, D5 & D6 were brought on record in appeal in 2022 as LRs of
D1 on death of D1. D1 died reportedly in 2021. D1 & D3 filed written statement in suit earlier in 2014. There was no objection therein as to court fee or non-joinder of parties. Appellate court observed clearly that there is no pleading in written statement as to court fee paid by plaintiffs. It is law and settled principle that legal representatives cannot go beyond the pleadings of deceased party and bring on record new defenses which were not taken by deceased party that too after the suit was remanded back in appeal. Hence, at the outset, these new defenses of insufficiency of court fee and non-joinder of necessary party cannot be permitted for defendants during this suit disposal after remand back by Hon’ble Appellate court. Still to answer the suit and rival contentions in complete, the said additional written statement is received on record and issues are framed in that regard also.
14.Basing on the above pleadings, the following issues were re-framed for trial on 31-3-2023.
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1. Whether the plaintiffs are entitled for the relief of declaration of title so far as the suit schedule property is concerned as against the defendants herein as prayed for ?
2. Whether the plaintiffs are entitled for the relief of cancellation of registered sale deed no.5207/2011 and regd.gift deeds no.1392/2013 & 1883/2013 as to suit schedule property or part of it allegedly executed by defendant no.1 in favor of defendant no.2 & 3 ?
3. Whether the plaintiffs are entitled to the relief of perpetual injunction as against the defendants so far as suit schedule property is concerned as prayed for ?
4. Whether the suit is barred by limitation ?
5. Whether Nyatha Ramaiah is a necessary party to this suit ? If so, whether this suit is bad for non-joinder of necessary party ?
6. To what relief ?
15.PW3 was examined further and ExA18 was marked. PW4 to 6 were examined for plaintiffs. DW1 was examined for D4 and ExB1 was marked.
DW2 to 5 were examined for D2, 3, 5 & 6 and ExB2 to B26 were marked.
After completion of both sides evidence, heard arguments of both sides’ counsels. Counsel for defendants filed written arguments also. Perused the record.
16.Clarification as to lapses in deposition of PW1 & marking endorsements for plaintiffs’ documents : After such arguments, when suit
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was posted for judgment and while considering the record for judgment, this court observed certain lapses in deposition of PW1 and marking endorsement of documents, due to which the suit was reopened on 28-3-24, the said lapses were put forth to both sides, took steps for rectification of the said lapses, and rearranged documents marked for plaintiffs with fresh and clear endorsements on 16-4-24. I intend to clarify and brief about the same that PW1 was examined in chief on 11-2-16 & in cross on 23-2-16 which needs to be considered. Heard both sides afresh in view of the same.
17.From the above circumstances of the case, I intend to note the chronology of property transactions as contended by plaintiffs and defendants for convenience and proper understanding.
date/PlaintiffsDefendants no.1 to 3, 5 & 6 Year 1998Nyatha Ramaiah was originalNyatha Ramaiah was original owner of suit landowner of suit land 25-2-Plaintiff no.1 purchased suit 1998land from said Nyatha Ramaiah through ordinary sale deed 24-3-Defendant no.1 purchased the 1999same from plaintiff no.1 through ordinary sale deed – plaintiff no.1 undertook to executeregd.saledeed whenever demanded by D1 3-4-2002 Plaintiff no.1 purchased suitNyatha Ramaiah executed land from said Nyatha Ramaiahcolludedregd.saledeed through regd.sale deed No.No.972/2002 dtd 3-4-2002 972/2002 dtd 3-4-2002 (ExA1)(ExA1) in favor of Plaintiff no.1 as to suit land
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date/PlaintiffsDefendants no.1 to 3, 5 & 6 Year 20-11-Plaintiff no.1 gifted suit land to 2006his wife/plaintiff no.2 through regd.gift deed No.8745/2006 dtd 20-11-2006 (ExA2) 25-6-On application of D1 through 2007ordinary sale deed dtd 24-3- 1999, defendant no.4 conducted due enquiry and issued 13B certificate vide Proc. No. C/3018/2007 dtd 25-6-2007 (ExA14/B6) 2011D1 illegally without any rightD1 validly sold 20guntas of it to on suit land sold 20guntas of itD2 through regd.sale deed to D2 through regd.sale deedno.5207/2011 dtd 30-12-2011 no.5207/2011 dtd 30-12-2011(ExA3/ExB2) (ExA3/ExB2) 2013D1 illegally without any rightD1 validly gifted remaining suit on suit land gifted remainingland to his wife/D3 through suit land to his wife/D3regd.gift deeds no.1392/2013 throughregd.giftdeedsdtd 7-3-13 & 1883/2013 dtd 23- no.1392/2013 dtd 7-3-13 &3-13 (ExA16/B3 & A17/B4) 1883/2013dtd23-3-13 (ExA16/B3 & A17/B4) 2013Plaintiffschallenged13B certificate before Joint Collector vide file No.F3/2919/2013 14-11-Plaintiffs filed this suit – but 2013registered on 18-2-2014 18-12-JointCollectordismissed 2014application of plaintiffs due to non-prosecution and as time barred (ExB1) 2015Plaintiffs filed writ petition in
Hon’ble High Court against the
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date/PlaintiffsDefendants no.1 to 3, 5 & 6 Year orders of Joint Collector
18.Plaintiffs claimed suit land through purchase from Nyatha Ramaiah through regd.sale deed in 2002 and lateral intra-gift in 2006. Defendants no.1 to 3, 5 & 6 contended that plaintiff no.1 purchased suit land earlier in 1998 through ordinary sale deed and sold later to defendant no.1 in 1999 through unregistered sale deed undertaking to execute regd.sale deed whenever demanded by D1, but that later plaintiff no.1 in collusion with original owner/Nyatha Ramaiah created a nominal regd.sale deed in 2002 and to defeat the interests of D1 further created a sham regd.gift deed in 2006 in favor of plaintiff no.2, that hence on application by D1 Tahsildar/D4 conducted proper enquiry, collected necessary fees, and issued 13B certificate in favor of D1 in 2007 based on unregistered sale deed dtd 24-3- 1999 as per law through which suit land was mutated in revenue records in the name of D1, that defendant no.1 is in possession of suit land since 1999.
On the other hand plaintiffs denied existence of any such simple sale deeds either in 1998 or 1999. Further plaintiffs challenged 13B certificate as without following due procedure and without proper enquiry with plaintiffs.
On the other hand defendant no.4 supported defendant no.1 so far as issuance of 13B certificate saying that it was issued in due procedure after proper enquiry as per law.
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19.S.58 of Evidence Act provides that admitted facts need not be proved.
Admitted facts from the pleadings above :
19.1.Nyatha Ramaiah was original owner of suit schedule land.
19.2.ExA1 - Nyatha Ramaiah executed registered sale deed no.972/2002 dtd 3-4-2002 in favor of Plaintiff no.1 as to suit schedule land and based on the same said land was mutated in the name of plaintiff no.1 in revenue records since then.
20.Disputed facts from the pleadings above :
20.1.Plaintiff no.1 did not get any possession of suit land through
ExA1 as by that time on 24-3-1999 itself plaintiff no.1 sold it to defendant no.1 and delivered possession of suit land through unregistered sale deed.
20.2.Plaintiff no.1 in collusion with Nyatha Ramaiah created a nominal sale deed vide ExA1 without possession by either of them to defeat the interests of defendant no.1.
20.3.Later plaintiff no.1 without having any right or possession created a sham/nominal registered gift deed no.8745/2006 dtd 20-11-2006 vide ExA2 as to same suit land in favor of his wife/plaintiff no.2 based on which said land was mutated in the name of plaintiff no.2 in revenue records since then.
20.4.Though plaintiff no.1 did not purchase suit land earlier in 1998 and did not sell it to defendant no.1 in1999 through unregistered sale deeds, defendant no.1 created a fake document as such dtd 24-3-1999 and
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defendant no.4 issued 13B certificate illegally based on it without proper enquiry or due procedure, due to which defendants do not have any right on suit land.
20.5.MRO issued 13B certificate by examining plaintiff no.1 and his vendor/Nyatha Ramaiah.
20.6.Consequently plaintiffs challenged the subsequent sale deed and gift deeds executed by D1 in favor of D2 & D3 in 2011 & 2013 as not valid.
20.7.Plaintiff no.2 knows about earlier sale transaction between plaintiff no.1 & defendant no.1 dtd 24-3-1999 as she signed on it.
21.Issue No.5 : Whether Nyatha Ramaiah is a necessary party to this suit ? If so, whether this suit is bad for non-joinder of necessary party ?
21.1.Original ownership of Nyatha Ramaiah is admitted fact.
Plaintiff no.1 contended that he purchased suit land from him through ExA1 in 2002. Defendants no.1 & 3 clearly admitted the said transaction in their written statement in the initial lines itself. But defendant no.1 claimed title through plaintiff no.1 based on earlier simple sale deed in 1999 allegedly regularized by revenue authority in 2007. As such the dispute and litigation is between plaintiff no.1 & defendant no.1, but not with Nyatha Ramaiah.
21.2.Defendants contended that D4 issued 13B certificate by enquiring as to genuineness of simple sale deed dtd 24-3-1999 with plaintiff no.1, his vendor and witnesses. In such case, to prove whether Nyatha
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Ramaiah sold suit land to plaintiff no.1 on 25-2-1998 through ordinary simple sale deed based on which plaintiff no.1 executed said simple sale deed in favor of D1 on 24-3-1999 and whether to prove any such enquiry by revenue authority in 2007, Nyatha Ramaiah may be considered as a proper witness. He need not be a party to prove the same.
21.3.O.I R.1 & 3 of CPC provide who may be joined as either plaintiffs or defendants. Nyatha Ramaiah, in the circumstances of this suit, is not fitting into any of such persons to be added as a party to this suit. Once sale transaction between Nyatha Ramaiah and plaintiff no.1 in 2002 is admitted, though defendants allege it as a collusive deed, such vendor of plaintiff no.1 do not appear a proper or necessary party to this suit, as defendants are not claiming title through Nyatha Ramaiah but are claiming through plaintiff no.1 only. Accordingly, this issue is answered in negative.
22.Considering the contentions on both sides, I opine it is fit and convenient to discuss first and decide the issues no.1 to 4 later based on such discussion as they are interdependent on each other and to avoid repetition of same discussion.
23.Now to my comprehension the sole question remains to be answered is whether the said 13B certificate issued in favor of D1 was valid as per law and if so whether it prevails over the regd.sale deed through which plaintiff no.1 claimed right over suit land ? As such to discuss the entitlement of title of plaintiffs through issue no.1 framed supra the validity of 13B certificate
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also has to be decided therein itself.
24.Channels of legally considerable transfer of agricultural land through sale :
24.1.There are two channels as such. First is statutory channel i.e., a comprehensive reading of s.54 of Transfer of Property Act & S.17 of
Registration Act mandate that a sale transaction of immovable property worth more than Rs.100/- to be through a registered document and delivery of possession of said property.
24.2.Second is based on public policy though provided in s.5A of AP
Rights in Land and Pattadar Pass Books Act, 1971 (RoR Act). It is generally known fact that such transactions are even done through unregistered and unstamped documents out of ignorance or otherwise. However, as stamp duty and registration are only fiscal & technical issues, to safeguard the interests of genuine purchasers and to create an alternate path for regularization of such otherwise valid transactions, this procedure is provided.
25.Consequences of proof of alleged transactions in pleadings :
25.1.Nyatha Ramaiah being original pattadar/owner of suit schedule land is undisputed/admitted fact. While plaintiffs contend that plaintiff no.1 purchased the same through regd.sale deed from him in 2002, defendants contend that D1 purchased it from plaintiff no.1 through unregistered sale deed in 1999 as plaintiff no.1 purchased it earlier from
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Nyatha Ramaiah in 1998 itself through unregistered sale deed, that later in 2007 D1 was issued 13B certificate based on said unregistered sale deed on proper enquiry in due process of law.
25.2.It is settled principle and as per s.50 of Registration Act registered sale deed prevails over unregistered sale deed. Defendants admitted execution of regd.sale deed by Nyatha Ramaiah in favor of plaintiff no.1 in 2002. So if intervening alleged unregistered sale deed is not there, suit has to be decreed. Hence, proof of said unregistered sale deed dtd 24-3- 1999 and proof of validation of same through 13B certificate in 2007 in due process are material points to be observed.
25.3.Legal maxim - “Nemo dat quod non habet” means no one can confer a better title than what he himself has. So whether Nyatha Ramaiah executed any unregistered sale deed in favor of plaintiff no.1 in 1998 as alleged is a material point. However, considering the s.7 & 41 of Transfer of
Property Act (concept of transfer by ostensible owner), if subsequent alleged unregistered sale deed in 1999 by plaintiff no.1 in favor of D1 is proved satisfactorily as executed with consent or to the knowledge of said Nyatha
Ramaiah, proof of unregistered sale deed in 1998 is immaterial and not needed. Even if unregistered sale deed in 1999 is proved as without consent or knowledge of Nyatha Ramaiah, by admitted subsequent regd.sale deed in 2002, plaintiff no.1 will be estopped from denying conveyance of his right/title through unregistered sale deed executed in 1999 (doctrine of feeding grant by estoppel u/s 43 of said Act) and hence subsequent
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validation in 2007, if proved to be under due process, makes 13B certificate in 2007 prevail over regd.sale deed in 2002.
25.4.Doctrine of ‘feeding grant by estoppel’ : The grant by an incompetent person who makes the other believe that he is competent, the estoppel is fed when the incapacity is removed and he is estopped from claiming his incompetency at the time of initial transfer. S.43 of Transfer of
Property Act is a statutory recognition of this doctrine and provides - “Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.” The section is based on the equitable doctrine that a man who has promised more than he can perform must make good his contract when he acquires the power of performance. But for applying this doctrine in this case as to
ExA14/B6, first it must be proved that there was an enforceable contract prior to that between plaintiff no.1 & D1.
25.5.If facts/transactions till this are decided, the fate of subsequent transactions pleaded between 2007-2014 till filing this suit are consequential as per law. For all subsequent transactions concept of lis pendense applies.
26.Process for regularization/validation of unregistered sale deeds as
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explained in detail by Hon’ble High Court in judgment reported vide
Vallakati Yadagiri & others vs. State of Telangana & others, 2020 SCC
Online TS 194 at paras no.7 to 11 as under :
26.1.Right to property is a valuable right vested in a person and same cannot be taken away/deprived by any means without following the due process of law. Transfer of ownership of immovable property is only with free consent of the person, who claims to be the owner on receiving valid sale consideration or he intends to transfer the property owned by him for any other reason in favor of any other person. The transaction has to be transcribed and signed with free will, which further requires stamp duty and registration as per s.17 & 49 of the Registration Act, 1908. Unless such document is registered it would not affect immovable property and it has no legal validity. Thus, the vendee cannot claim to have acquired right to the said property, unless it is registered.
26.2.S.5-A is introduced into the Act, 1971 to give legal sanctity to otherwise valid sale transaction of agricultural land except registration of the document under the Indian Registration Act, 1908. If a vendee or his successors rely on unregistered sale deed to claim that property was sold to vendee on payment of full sale consideration and possession was vested after execution of the document, but formally document was not registered, he/they can take advantage of the provision introduced in Act, 1971 in the form of S.5-A to seek validation of unregistered sale deed instead of resorting to civil litigation. It is an exception carved out to the mandate of
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S.17 and 49 of the Registration Act. However, it does not relax essential ingredients to register a document which seeks to convey passing of title.
The object and intent of S.5-A of the Act, 1971 is to enable the purchaser of the property to overcome the restriction imposed by S.17 & 49 of the
Registration Act to enjoy the property where there is no dispute on acquisition of property except to the factum of registration of the document as per the Registration Act. Thus, validation/regularization, perforce, require that there was a valid sale transaction with the consent of both parties.
26.3.Two primary requirements to apply the provision in S.5-A of the Act, 1971 are, (1) the person who applies for validation must be in possession of the subject land by virtue of valid alienation or transfer made or effected except registration of the document executed and applies for validation within the time prescribed for a certificate declaring that such alienation or transfer is valid; and (2) issuing notice to the vendor of the property/his successors and persons interested and consideration of their objections and passing orders in their presence.
26.4.R.22 of the Rules made under the Act, 1971 prescribes various modes of issuing notice before accepting the request to validate unregistered sale deed. It also requires notice in Form-XI to alienor/transferor and any other person interested. R.22(3) r/w Form XI presupposes that alienor/transferor is alive and is silent on a situation where alienor/transferor is not alive when such application is made. However, it
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cannot be assumed that after the death of original pattadar his legal heirs need not be heard. Thus, perforce, notice in Form-XI has to be issued to them. Alternatively, they are also the persons interested in the property having succeeded to the original pattadar and therefore, they have to be issued notice in form-XII.
26.5.It is apparent from the statutory scheme, as valuable right to property is sought to be affected in this manner, notice on the vendor/his successors and persons interested is mandatory, and they must be heard
before validating the unregistered sale deed.
27.Further procedure after such enquiry :
27.1.Whereupon such enquiry if Tahsildar finds the sale transaction is valid otherwise, except for registration, he will address Form XIII-A to
Sub-Registrar for valuing the property, fixing the amount equal to registration fees and stamp duty as per law for deposit of the same by purchaser thereon.
27.2.On deposit of such fixed amount by purchaser, Tahsildar exercising powers u/s.5A of RoR Act will validate the unregistered sale deed and issue certificate in Form XIII-B to that effect, and later communicate the same to Recording authority and Sub-Registrar concerned in Form XIII-C for making necessary entries in concerned registers. Later pattadar pass book will be issued in Form XIV.
27.3.An appeal u/s.5B shall lie against such order to the RDO within
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30days of the date of communication of the order. The order thereon is subject to revision u/S.9.
28.Documentary evidence :
28.1.ExA4/cc of Form-1A (RoR) for 1989-90 shows total suit land in the name and possession of Nyatha Ramaiah. ExA5 & A6/cc of pahani for 2000-01 & 2002-03 also show the same. ExA1/regd.sale deed no.972/2002 dtd 3-4-2002 executed by Nyatha Ramaiah in favor of plaintiff no.1 as to suit land. The execution of this document is admitted by both parties. But
D1 contended that this is a nominal and colluded execution as plaintiff no.1 executed unregistered sale deed in favor of D1 in 1999 itself, that as such neither Nyatha Ramaiah nor plaintiff no.1 had possession of suit land as on 3-4-2002.
28.2.According to plaintiffs, based on such document suit land was mutated in the name of plaintiff no.1. ExA7 to A8/cc of pahani for the years 2004-06 show plaintiff no.1 as pattadar and possessor of suit land.
ExA2/regd.gift deed no.8745/2006 dtd 20-11-2006 executed by plaintiff no.1 in favor of plaintiff no.2 as to suit land. Though execution of this document is admitted, defendants alleged that it is sham and invalid document. However, plaintiffs contended that through this document suit land was mutated in the name of plaintiff no.2. But no such mutation proceedings were filed. Even ExA9/cc of pahani for the years 2006-07 show directly change of name from plaintiff no.1 to defendant no.1, but not to the
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name of plaintiff no.2. Pattadar pass book and title deed of plaintiff no.2 are marked as ExA11 & A12 which show suit land in her name. Surprisingly there are certain lapses in them which impress them doubtful viz., said books did not contain patta/khata number on it; those entries were made therein with reference of said gift deed directly and without any reference of mutation proceedings.
28.3.ExA13/wedding card of plaintiffs show their marriage on 10- 12-2001 at Medak. ExA18/14 photos and 1 CD are filed to prove continuous possession of plaintiffs over suit land till date. They are marked subject to objection as to admissibility. Though later a certificate is filed submitting compliance of s.65B of Evidence Act, the same is not in proper form and content is not in accordance with said provision. Though the same is filed as formality, it is not strict compliance of said provision. The person who issued said certificate is not the person who took photos, who is the owner/possessor of the device through which photos were taken, he was not at all present at the time of capturing of said photos. The person who issued said certificate is not examined due to which there is no opportunity to other side to cross examine as to said certificate.
28.4.Coming to proof of ExA18, though they were marked through
PW3, she apparently is not a proper witness as she admitted that she do not know who captured such photos, when they were captured. They admittedly and apparently did not contain any board or mark as to survey number. If time stamp option is activated in mobile device, every photo taken on it will
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contain a stamp of date and time of such device at the time of said taking of such photo. But except two or three photos, there is no time stamp along with date. The said option works to mark date and time along with, but not date alone. The printing of date on such photos is apparently appearing to be not automated, but as added later. So though the certificate is given that they are not tampered, they appear otherwise. Though admittedly the persons appearing in ExA18 are plaintiff no.1 and his family members, there is no proper or reliable proof to show that the land therein is suit land itself.
28.5.Though PW4 identified land in ExA18 to be plaintiffs’ land, he is not a proper witness to prove ExA18 as he admitted that he was not there in said photos. On the other hand DW2 clearly denied that ExA18 are pertaining to suit land and alleged them to be created. DW4 & DW5 also denied the land in ExA18 to be suit land. Hence, I reasonably opine that
ExA18 are not proved properly.
28.6.ExA14/true copy of Form 13B dtd 25-6-2007 issued in favor of
D1 by Tahsildar (ExB6/original) as to suit land. This is the proceedings which is mainly challenged by plaintiffs as illegal and invalid. However, defendants contended that through this proceedings suit land was mutated in the name of D1. ExB7/Form 13C is issued based on ExB6. ExA9/cc of pahani for the year 2006-07 show entry of name of D1 as pattadar and possessor of suit land as purchaser. ExA10/ExB14/cc of pahani for the year 2007-08 show D1 as pattadar and possessor of suit land. ExB23 & B24/cc of pahani for the year 2008-10 also show the same. ExB15/ExB25/cc of pahani
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for the year 2010-11 show the same.
28.7.ExA3/true copy of regd.sale deed no.5207/2011 dtd 30-12- 2011 (ExB2/original) executed by D1 in favor of D2 as to part of suit land.
ExA15/meeseva copy of encumbrance certificate which shows transactions till this. ExA16/cc of regd.gift deed no.1392/2013 dtd 7-3-13 (ExB3/original) executed by D1 in favor of D3 as to part of remaining suit land. ExA17/cc of regd.gift deed no.1883/2013 dtd 23-3-13 (ExB4/original) executed by D1 in favor of D3 as to remaining suit land. Though execution of these documents is admitted, plaintiffs alleged that these are sham and invalid transactions.
28.8.Based on ExB2, ExB5/mutation proceedings dtd 8-2-12 were issued issued in favor of D2. ExB9/pattadar pass book of D2 and
ExB10/new pattadar pass book-cum-title deed of D2 were issued for part of suit land. Similarly ExB11/pattadar pass book of D3 was issued. ExB12 & 13/meeseva copies of RoR form-1B for the year 2018-19 show respective parts of suit land accordingly in the name of D2 & D3. ExB16 to ExB20/cc of pahani for the year 2014-20 show respective extents of lands in the names of D2 & D3 as pattadars and possessors. ExB21/online copy of Dharani land search details also show the same. ExB22/meeseva copy of pahani for the year 2023 also show the same as to D3.
28.9.ExB1/attested copy of orders of Joint Collector in
No.F3/2919/2013 dtd 18-12-2014 shows the dismissal of revision filed by
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plaintiff no.1 challenging Form 13B certificate dtd 25-6-2007 issued in favor of D1 by Tahsildar (ExA14/ExB6) as to suit land, as time barred and for non-prosecution despite opportunities. ExB8 is the cc of counter affidavit filed by D4 herein before Hon’ble High Court in WP No.11678/2015 filed by plaintiff no.1 challenging the said 13B certificate and dismissal of revision by Joint Collector. The contents of ExB8 are same as that of written statement filed by D4 in this suit. They amount to pleadings, but not proof.
29.Admissibility, proof and evidentiary value of ExB26 :
29.1.One P.Jaganmohan Reddy was examined as DW3 and he deposed that plaintiff no.1 executed ordinary sale deed in favor of D1 on 24- 3-1999 as to suit land for a consideration of Rs.95,000/- in the presence of witnesses, that he is one of such witnesses with A.Malla Reddy and others, that plaintiff no.1 having received sale consideration delivered possession of suit land to D1, that later when D1 approached Tahsildar for validation/regularization of said ordinary sale deed Tahsildar conducted an enquiry wherein Tahsildar recorded his sworn statement on 31-5-2007, that later by collecting necessary stamp duty and registration fee Tahsildar issued 13B certificate to D1. A xerox copy of the said statement allegedly given by
DW3 before Tahsildar during such proceedings was confronted to witness and witness admitted that it is his statement and identified his signature thereon, which was marked as ExB26 subject to objections by learned counsel for plaintiff.
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29.2.As we know relevancy, admissibility, mode of proof and proof are different concepts of evidence. In the present suit, as already noted supra, in order to decide the title of plaintiff no.2 the prime question/fact in issue which is material to decide is whether defendant no.1 acquired any rights over the property through said 13B certificate ? As already noted supra, one of the primary requirements for proper validation u/S.5-A of the
Act, 1971 is issuing notice to the vendor of the property/his successors and persons interested and consideration of their objections and passing orders in their presence.
29.3.So if really an enquiry is made by Tahsildar before issuing
ExA14/B6 in 2007 as such, the evidence of DW3 of his being a witness to document and his giving a statement before Tahsildar to that extent are relevant to prove/disprove the said enquiry/proceedings. Though DW3 has two level role as witness to unregistered sale deed in 1999 and as a witness in enquiry by Tahsildar in 2007, the objections during marking was primarily on the ground that it is a xerox copy, that unless original is proved to be lost/misplaced secondary evidence cannot be admitted, and that DW3 not being the officer who recorded is not proper witness to mark it. As such it is clear that his giving oral evidence was not objected, but marking a xerox copy of his own earlier statement before Tahsildar admitted by him was objected.
29.4.When 13B certificate was duly issued is in question, his giving a statement as to unregistered sale deed during such enquiry by concerned
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official is obviously relevant fact. Though initially admissibility of said copy into evidence as ExB26 was decided as an admission u/s 58 of Evidence Act, learned counsel for plaintiffs rightly argued during suit arguments that s.58 is applicable only in case of parties but not other persons. However, so far as confrontation of xerox copy of his own earlier statement as such for identification by person making such statement and for identification of his own signature thereon is an admission by DW3, who is a third/uninterested party, whose statement is relevant otherwise than as an admission as per s.21 & 33 of Evidence Act. However, as already noted proof of its contents is a different aspect.
29.5.Learned counsel for plaintiff relied on judgment reported vide
Shalimar Chemical Works Ltd. vs. Surendra Oil and Dal Mills & others, (2010) 8 SCC 423 and submitted that a xerox copy of a document cannot be admitted into evidence subject to objection of proof and admissibility, and that admissibility issue cannot be left open by the court for lateral decision.
29.6.Firstly, admitting a document by itself will not amount to proof of its contents. Secondly, ExB26 is marked as to a relevant fact but not directly with reference to a fact in issue. As DW3 admitted that he earlier made a statement before Tahsildar, DW3 himself will be the best and direct person to admit or deny its making as such as per S.60 of Evidence Act. As the proper custodian is revenue officials, a copy of it was confronted and marking for a mere reference of his admission as to making of such statement earlier it is necessary. Further a reference of such copy can be
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used to confront or identify as his earlier statement by the witness as per s.159 of Evidence Act.
29.7.Hence, it is clearly noted that such xerox copy is admitted only to record and prove only to the extent of his admission of making a statement as such earlier before revenue authority. Obviously, proof of its contents is a matter to be discussed with reference to law as to secondary evidence and it will be discussed in due course hereunder.
30.Oral evidence :
30.1.Plaintiff no.1 was examined as PW1 and his chief examination is nothing but repetition of plaint contents in the form of an affidavit. He clearly denied to have purchased suit land from Nyatha Ramaiah in 1998 and to have sold it to D1 in 1999 through unregistered sale deeds. He stated that he purchased it from Nyatha Ramaiah only through ExA1 in 2002. He stated that he married plaintiff no.2 on 9-12-2001 and later gifted suit land to her through ExA2 in 2006. He contended that in 2007 13B certificate was issued illegally based on an invalid and fabricated unregistered sale deeed without verification and without following due process. PW1 clearly denied that before issued such 13B certificate/ExA14/ExB6 no notice was issued to plaintiffs, physical possession was not verified, revenue records were ignored.
30.2.During cross examination PW1 admitted that there was an agreement to sell between him and Nyatha Ramaiah 10months prior to
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ExA1 and that there was another agreement to sell 7months prior to ExA1.
PW1 stated that D1 also signed as witness on ExA1. But when ExA1 is confronted he himself admitted that it did not contain signature of D1 as a witness on it. Though he added that D1 identified signature of his vendor/Nyatha Ramaiah, there is nothing reliable to prove presence of D1 at the time of its registration. He clearly denied that Tahsildar issued notice to him before issuance of ExB6 in favor of D1 in 2007.
30.3.Plaintiff no.2 was examined as PW3. She briefly corroborated
PW1 speaking about ExA1 & A2 only. She affirmed that she is in possession of suit land since 2006 through ExA2. She clearly denied her husband’s execution of unregistered sale deed in favor of D1 as to suit land in 1999 and delivery of its possession through it, that she married plaintiff no.1 prior to 1999 and not in 2001, that she as such signed said unregistered sale deed in 1999 as a witness thereon as wife of plaintiff no.1.
30.4.The sum and substance of chief examination of PW2 to 6 in brief is that plaintiff no.1 purchased suit land through ExA1 on 3-4-2002 from Nyatha Ramaiah, that since then plaintiff no.1 was in possession of suit land, that later the same was mutated in his name, that he gifted the suit land to his wife/plaintiff no.2 through ExA2 on 20-11-2006, that accordingly suit land was mutated in her name and she was issued pattadar pass book and title deed also, that the plaintiffs as such are in possession and enjoyment of suit land which defendants were interfering with without any right or interest.
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30.5.PW2, being independent witness, corroborated plaintiffs’ contentions and stated that plaintiffs are in peaceful possession of the same through those transactions. But during cross examination he admitted that he is not a witness either to ExA1 or ExA2, that he do not know the boundaries of the land referred therein, that he had not seen mutation proceedings in respect of plaintiffs respectively. Then on what basis he corroborated plaintiffs as such with reference to said transactions in 2002 and 2006 is not explained. Hence, his evidence does not inspire confidence and did not appear reliable.
30.6.The evidence of PW4 to 6 was almost similar to that of PW2.
PW4 affirmed continuous possession of plaintiffs till date saying that he sprays fertilizers and pesticides on crops over suit land at request of plaintiffs, that in July 2022 plaintiffs raised paddy crop therein. PW5 stated that he had 3acres of land near suit land on its northern side, that for the last 10yrs he was providing water to suit land from his borewell. But during cross examination when specifically asked he stated that except stating about giving of water to plaintiffs’ land he deposed nothing else and that he do not know what was written in his chief examination affidavit as it is in
English. Surprisingly during cross examination PW6 also stated that he do not know English and that his chief examination affidavit was got prepared by plaintiff no.1, that he did not witness the land transactions either in 2002 or 2006. While suit land is at Chilipched Shivar, PW6 stated that it is at
Chandur Shivar. As such the evidence of PW5 & 6 was not inspiring
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confidence.
30.7.DW1/present Tahildar of Chilipched deposed that Chilipched mandal was carved out of Kowdipally mandal during reorganization of revenue mandals during 2016-17, that presently suit land comes within jurisdiction of Tahsildar, Chilipched. DW1 stated that though appeal could be filed within 30days of ExB6 plaintiffs did not prefer the same, that they filed revision long after 7yrs without justification and as plaintiffs did not pursue the same despite opportunity the said revision also was dismissed on 18-12-14. DW1 stated that as plaintiffs challenged the unregistered sale deed on a Rs.10/- stamp paper dtd 24-3-1999, one of the witness thereon i.e., P.Janardhan Reddy was examined on 31-5-2007 basing on whose affirmation the validity of said sale deed was certified by issuing 13B certificate in favor of D1 in 2007.
30.8.During cross examination, DW1 stated that generally they issue notices to all the concerned parties before regularizing simple sale deeds, that they issue 13B certificates after thorough enquiry with village leval officials and after physical inspection only, that as per their record ExB6 was issued in favor of D1 after conducting local panchanama verifying physical possession of D1.
30.9.Further he stated that as concerned record is not available with his office he cannot say whether plaintiff no.1’s name was mutated based on
ExA1 since 2002-03 in place of Nyatha Ramaiah, that he do not even know
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whether plaintiff no.2’s name was mutated based on subsequent gift vide
ExA2 since 2006, that he do not have any record to say the details of application filed by D1 for mutation of his name for suit land, that he did not file the said panchanama on which basis ExB6 was issued to D1.
However he stated that they filed it in Hon’ble High Court. DW1 admitted that there is no record available in their office to say that during 13B proceedings notice was issued to plaintiff no.1, that there is no record available in their office to show sale transaction between Nyatha Ramaiah and plaintiff no.1 on 25-2-1998, that there is even no record available in their office to show sale transaction between plaintiff no.1 and defendant no.1 on 24-3-1999, that there is no record available to show that neighboring land owners/possessors were enquired before issuing ExB6.
30.10.DW2/D3 deposed that her husband/D1 died on 5-5-2021. Her chief examination is repetition of their written statement in the form of an affidavit. She stated that originally Nyatha Ramaiah was pattadar and possessor of suit land, that plaintiff no.1 purchased the same from him through unregistered sale deed on 25-2-1998 for Rs.50,000/- and took possession of the same, that later plaintiff no.1 sold it to D1 through unregistered sale deed on 24-3-1999 for Rs.95,000/- in the presence of witnesses and delivered possession, that later plaintiff no.1 & Nyatha
Ramaiah colluded with each other and executed ExA1 on 30-4-2002, that on such date neither of them have title or possession of suit land, that hence D1 filed application before Tahsildar for validation of unregistered sale deed
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dtd 24-3-1999 who on proper enquiry and collection of stamp duty and registration fee issued 13B certificate in favor of D1 on 25-6-2007 vide
ExB6.
30.11.DW2 further stated that the said 13B certificate was not challenged till date, that later D1 executed ExB2 to B4 in favor of D2 & D3 in whose favor mutation was done respectively vide ExB5, B9 to B11, that the same is reflected in pahanies for the years from 2014 till date, that as such the gift vide ExA2 by plaintiff no.1 to plaintiff no.2 is not valid, that during 13B proceedings notices were issued to plaintiffs, that as such this suit is clearly barred by limitation.
30.12.During cross examination, DW2 admitted that she do not know the boundaries of suit land as she is illiterate, that Nyatha Ramaiah is not alive at present, that she do not know whether there is any document to show the sale transaction on 25-2-1998 between Nyatha Ramaiah & plaintiff no.1, that she filed a document to show the sale transaction on 24-3-1999 between plaintiff no.1 & defendant no.1. When specifically questioned she stated that they paid Rs.90,000/- at the time of sale in 1999.
30.13.DW3 stated that plaintiff no.1 executed ordinary sale deed on 24-3-1999 in his presence. But such oral evidence is excluded by s.91 & 92 of Evidence Act as original sale deed dtd 24-3-1999 which is in writing was not filed and got marked into evidence. During cross examination he admitted that he do not have any document to show such transaction, but
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stated that Malla Reddy scribed said deed in 1999.
30.14.DW4/southern neighbor of suit land corroborated defendants’ contentions saying that as plaintiff no.1 sold suit land to D1 about 24yrs back D1 was in possession since then, that D1 during his life sold 20guntas of suit land to D2 and later gifted remaining suit land to D3 since when they were in possession of the respective land parts till date. During cross examination he admitted that he is close to D1 as they both were active members of Mudiraj Sangam in their village.
30.15.The evidence of DW5 is similar to that of DW4. Though he claimed to be adjacent cultivator, he did not specify on which side of suit land his land is situated. Surprisingly during cross examination he stated that his land is on northern side of suit land, that he do not know what was typed in his chief examination affidavit, that he cannot say the survey number and other details of land purchased by D1 from plaintiff no.1, that he was not present at the time of said transaction, that he heard about it through D3. Though D1 lived till 2021, he did not hear it from D1. Hence, his evidence appears to be hearsay and tutored, due to which it is not reliable.
31.Whether the said 13B certificate issued in favor of D1 was valid as per law and if so whether it prevails over the regd.sale deed through which plaintiff no.1 claimed right over suit land ?
31.1.Two primary requirements to apply the provision in S.5-A of
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the Act, 1971 are, (1) the person who applies for validation must be in possession of the subject land by virtue of valid alienation or transfer made or effected except registration of the document executed and applies for validation within the time prescribed for a certificate declaring that such alienation or transfer is valid; and (2) issuing notice to the vendor of the property/his successors and persons interested and consideration of their objections and passing orders in their presence.
31.2.As discussed supra though Nyatha Ramaiah being original pattadar and possessor of suit land is admitted fact, there is no documentary evidence to prove the unregistered sale transaction on 25-2-1998 between him and plaintiff no.1. There is nothing reliable on record to believe the same except the bare pleadings of defendants. DW1 & 2 admitted the same that they do not have any document as to said sale transaction. Neither party herein filed even the pahani for the year 1998-2000 to show the name of plaintiff no.1 as possessor at least. ExA5 & A6/cc of pahani for 2000-01 & 2002-03 show total suit land in the name and possession of Nyatha Ramaiah itself. In such case there is nothing to hesitate that the alleged sale transaction dtd 25-2-1998 is not proved.
31.3.Now coming to unregistered sale transaction dtd 24-3-1999 between plaintiff no.1 and D1, defendants contended that it is in writing and based on the same only ExB6 was issued in 2007 in favor of D1. S.103 of the said Act provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. So initial
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burden of proof of alleged fact of existence of intervening ordinary sale deed on 24-3-1999 is on defendants only. If its validity as a sale deed, except for registration, is proved properly, then validity of its subsequent validation under RoR Act can be discussed.
31.4.S.54 of Transfer of Property Act mandates a registered document as to sale transaction. S.61 to 65 of Evidence Act provide that documents must be proved through primary evidence, except where secondary evidence is admissible under certain prescribed circumstances.
Original sale deed dtd 24-3-1999 was not filed. Learned counsel for defendants submitted that as per procedure under S.5A of RoR Act r/w 22 of Rules thereunder whenever application is filed for validation of simple sale deed Tahsildar will conduct enquiry on its validity with interested persons, collects deficit stamp duty and registration fees and on satisfaction of valid sale transaction certificate in form-13B will be given and the document will not be returned, that procedure prescribed in s.5A of RoR Act and R.22 of Rules thereunder do not contain anything as to return of original document along with such certificate.
31.5.Firstly, though not specified, where under such procedure only a certificate as to validation is being issued the provisions infer return of such ordinary sale deed along with such certification. Secondly, assuming generally they will not be returned, in such case certified/true copy of same should have been procured from revenue officials and filed, but the same was not done by defendants. S.104 of Evidence Act provides that the burden
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of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. Accordingly, to prove proper issuance of 13B certificate defendants need to prove existence of valid ordinary sale deed on 24-3-1999 as contended. No circumstance is pleaded to bring the defendants’ case under any of the circumstances provided in s.65 of Evidence Act to lead secondary evidence. Further as noted even secondary evidence, except oral evidence that it existed, is not adduced.
31.6.S.91 of Evidence Act provides that when the terms of a contract, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions here in before contained. S.92 of Evidence Act precludes oral evidence when the terms of any such contract or other disposition of property, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
31.7.To see whether there was any valid sale transaction on 24-3- 1999 as alleged between plaintiff no.1 and D1, in view of the above said provisions either the original document or permissible secondary evidence
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could have been produced, and no oral evidence can be admitted to prove the same. But except oral evidence in the form of DWs, there is no documentary evidence is adduced to prove its terms or contents. In case of immovable property the land details, consideration, parties details, terms of agreement, delivery of possession are material points to look into, but due to absence of any admissible document in that regard, I reasonably opine that even the validity of alleged unregistered sale transaction dtd 24-3-1999 is not proved properly.
31.8.D1 & D3 initially in their written statement pleaded that on 24- 3-1999 plaintiff no.1 executed ordinary sale deed on Rs.10/- stamp paper in favor of D1 as to suit land for an amount of Rs.95,000/- having received the said amount and delivered possession. But during cross examination when specifically questioned about payment of consideration DW2/D3 stated that they paid only Rs.90,000/- at that time. So such inconsistency and contradiction impresses reasonable doubts as to payment of full consideration.
31.9.Then as earlier alleged ordinary sale transaction in 1998 between Nyatha Ramaiah & plaintiff no.1 is not proved, the consent or knowledge of Nyatha Ramaiah while executing ordinary sale deed in 1999 is a material point. But there is nothing on record even in the form of oral evidence to impress that Nyatha Ramaiah consented or signed on the said unregistered sale deed in 1999. When plaintiff no.1 himself do not have any valid title or interest or possession over suit land as on 24-3-1999, he cannot
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be presumed to have transferred any better title or interest or legal possession of suit land to D1 through it.
31.10.Even revenue records prior to 2002 as noted supra show the name of Nyatha Ramaiah only both as pattadar and possessor. Defendants contended and DW2 specifically deposed that plaintiff no.2 signed said unregistered sale deed dtd 24-3-1999 as a witness as wife of plaintiff no.1.
But there is sufficient proof in the form of ExA13 to prove the marriage of plaintiffs on 9-12-2001. When in 1999 plaintiffs are not married, there is nothing to believe said contention that plaintiff no.2 being wife of plaintiff no.1 signed the same. Except the self-serving oral testimony of DW2, there is no reliable evidence to prove the contention of defendants in this regard.
31.11.Unfortunately, though defendants did not file at least the copy of said unregistered sale deed dtd 24-3-1999, plaintiffs while filing the suit itself filed attested copy of it obtained from revenue officials along with plaint. As such though it is available on record, both parties ignored to get it marked into evidence. Though specifically on 2-4-2024 & 16-4-24 the same is brought to the notice of both parties by this Court, they did not choose to take any steps to get it marked into evidence.
31.12.However, I reasonably and strongly opine that it is a material document to look into to analyze the validity of such document, though law does not permit so as it is unmarked document, in the interests of justice and to record proper legal opinion as to its validity and to record my opinion
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why it was ignored as such by defendants specifically. Hence, to do proper justice and to prevent abuse of statutory process, as per s.151 CPC, I intend to mark it as ExC1 herewith for reference only. It is to be noted that it is clearly an attested copy issued by Tahsildar, Kowdipally along with several other documents pertaining to said 13B proceedings in 2007 viz., along with
Form-11, 12, ExB26, 13A, challan copy etc., which are filed along with plaint clearly mentioning in list of documents.
31.13.If ExC1 is properly proved, it clearly disproves the defendants contentions and clearly proves that such document was manipulated materially as to year portion of its date of execution. On perusal of ExC1, the date portion every where on it was manipulated from ‘2004’ to ‘1999’ clearly and apparently. The date stamp of stamp vendor also was changed with pen from ‘2004’ to ‘1999’. The document content started with ‘తార� నా� సం�వత్స�ర చై�త్స�'. Though year in numbers were manipulated as such apparently, the concerned party ignored manipulation of the Telugu year thereon. As per
Telugu calendar, year 1999 is ‘ప్ర�మా� నా� సం�వత్స�ర', year 2004 till ugadi on 21-3-2004 is ‘సం�భా� నా� సం�వత్స�ర', and after 21-3-2004 it is ‘తార� నా� సం�వత్స�ర చై�త్స�మాసం�'. As such 24-3-1999 cannot be ‘తార� నా� సం�వత్స�ర' and 24-3- 2004 only is ‘తార� నా� సం�వత్స�ర'. The same clearly impresses that it might have been executed in 2004 and that is why the signature of plaintiff no.2 as wife of plaintiff no.1 with surname as ‘K.’ visible on such document which is possible. Under the wrong impression or advise that if validated it will come into force only from the date of execution, to make it prior to ExA1 in 2002
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the said year from 2004 to 1999 might have been manipulated to claim false
before revenue officials. Unfortunately they ignored Rule 22(5)(ii) which
clearly provides that said Form 13B certificate even if issued to the alienee or the transferee declares that alienation or transfer is valid from the date of issue of certificate only, which in the present case does not validate it from back date i.e., 24-3-1999, but from 25-6-2007 only.
31.14.From these circumstances of ExC1, I reasonably opine that this is the reason why defendants clearly ignored to produce documentary evidence as to said unregistered sale deed basing on which they contended that 13B certificate was issued. Illustration (g) of S.114 of Indian Evidence
Act provides that the court may presume that the evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. As such an adverse inference can be safely drawn against the defendants they did not produce such evidence only to avoid these all manipulations on their part to get unlawful validation certificate.
31.15.Even if ExB26 is perused the same does not contain any statement of DW3 as to when exactly said unregistered sale deed was executed. S.2(g) of Contracts Act provides that an agreement not enforceable by law is said to be void and S.2(h) provides that an agreement enforceable by law is a contract. S.10 of the Act provides that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Here free consent of parties to the
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terms of agreement is crucial. There is nothing on record to show that such correction as to year in such document was made with free consent of plaintiff no.1. Plaintiffs completely denied execution of the said document itself, leaving apart said correction. Even defendants did not utter any word about such correction and directly pleaded that it was executed on 24-3- 1999. S.62 of Contracts provides that any alteration to the contract shall be with agreement of parties thereto. There is nothing on record to show that such alterations as to year on document was made with consent or knowledge or agreement of plaintiffs. As such there is nothing reliable to opine that plaintiff no.1 executed any such document in favor of D1 on 24- 3-1999 and even if executed there are several unexplained lapses which make it void agreement.
31.16.Coming to due process of issuance of Form 13B certificate in favor of D1 in 2007, firstly D1 shall apply for validation within the time prescribed for a certificate declaring that such alienation or transfer is valid.
Where there is no time prescribed, it is generally considered as within reasonable time. But in the present case though allegedly document was executed on 24-3-1999, D1 admittedly applied for validation in 2007, which does not appear within reasonable time. Though DW1/D4 stated that plaintiffs did not appeal against ExB6 within 30days of prescribed time, he was silent as to this unreasonable delay in D1 filing application for validation from 1999 to 2007, which raises adverse inference that due procedure might not have been followed.
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31.17.Next Tahsildar is supposed to verify possession of the applicant, issue notice to the vendor of the property/his successors and persons interested and consider their objections. Admittedly, all the pahanies till 2007 as discussed supra contained the name of plaintiff no.1 only as pattadar and possessor. Defendants contended that Tahsildar concerned issued notices to plaintiff no.1, his vendor/Nyatha Ramaiah and after examining them only ExB6 was issued in favor of D1. Plaintiffs denied any issuance of such notice to them. Though in the form of ExB26 at least some record to show that one witness was examined during such enquiry, there is nothing to show that either plaintiff no.1 or Nyatha Ramaiah was examined therein. There is no reliable document to show that any notice as such was issued to either of them by Tahsildar concerned.
31.18.While DW1 stated that one of the witnesses to unregistered sale deed i.e., P.Janardhan Reddy was examined, DW3/P.Jaganmohan
Reddy stated that he gave a statement as such before Tahsildar during enquiry in 2007. Though ExA9 & A10 show change of name in pahani for 2006-07 directly from plaintiff no.1 to D1, ExA11 & A12 were issued by the same Tahsildar (on comparison of signatures thereon) who issued
ExB6/A14 in the name of D1, which impresses mutation of suit land in the name of plaintiff no.2 based on ExA2 in 2006 itself prior to such application for validation by D1. Hence, as on the date of such application plaintiff no.2 is interested person to who Tahsildar is supposed to issue notice in Form-XII as per Rules. But even as per D4 or other defendants, plaintiff no.2 neither
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was issued any notice as such nor she was considered as an interested person during such enquiry.
31.19.DW1 did not speak of any local panchanama or physical inspection as to possession during chief examination, when specifically questioned during cross examination he stated that as per record ExB6 was issued after conducting local panchanama as to physical possession of D1.
On the other hand he himself admitted that his office do not have any record pertaining to such enquiry in this case as to ExB6. Then how he stated about said panchanama or possession is not explained. No such panchanama recorded by the then Tahsildar is filed to prove it. Prescribed form of Form-XIIIB prescribes annexing of such panchanama or sketch to it, and where it is not available the clear description of the land. ExB6 shows that sketch is annexed to it, but no such sketch is found therewith. There is nothing on record to show that Tahsildar examined at least adjacent cultivators/owners to confirm such possession.
31.20.R.22A under RoR Act provides that an Appeal against every order of the Mandal Revenue Officer u/s.5A(4) of the Act shall lie to the
Revenue Divisional Officer in writing within a period of sixty days, from the date of communication of order. Prescribed format of Form-XIIIB also prescribes communication of a copy of such order to person interested. But though plaintiffs were interested persons in the land, there is nothing on record to show that a copy of ExB6/A14 was communicated to plaintiffs herein. ExB6 do not show anything as such.
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31.21.As such the alleged proceedings conducted by Tahsildar for issuing ExB6/A14 in 2007 were suffering with grave infirmities and procedural lapses. When such infirmities go to the root of the matter, and when substantive right in property being affected, in the absence of relevant documents to justify that proper procedure was followed before validating unregistered sale deed and issuance of 13-B certificate, the certificate issued is bad in law and invalid. These infirmities/illegalities would cast enough doubts on the entire exercise stated to have been undertaken by the
Tahsildar, which renders ExB6/A14 invalid.
31.22.Even considering ExB6 was issued in 2007, as already noted supra the said exercise validates the unregistered sale deed from the date of issuance of said certificate but not from the date of deed. As on the said date of application or 13B certificate, when plaintiff no.1 is not owner of the property, he cannot be presumed to have transferred any better rights to D1 even under such exercise. When plaintiff no.2 is owner of the property in 2006-07, no valid title can be said to have passed from plaintiff no.1 to D1 through invalid ExB6/A14 in 2007.
31.23.Consequentially, this question is answered in negative.
32.Possession :
32.1.Plaintiffs claimed possession over suit land till date. But as discussed supra, revenue records/pahanies show otherwise possession in the name of D1 since 2007 and later D2 & D3 as on the date of filing this suit.
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However pahanies till 2002 show Nyatha Ramaiah/original pattadar as possessor of suit land. Between 2002-06 pahanies showed plaintiff no.1 as possessor of suit land. Though D1 claimed possession since 1999 through unregistered sale deed, neither said sale transaction nor delivery of possession through it were proved as discussed supra.
32.2.Pahanies since 2007 contained name of D1 as pattadar and possessor which entry was made based on ExB6, but it is opined and held as invalid as issued without due procedure. Though a panchanama as to possession was conducted allegedly during such enquiry, no such panchanama is proved with reliable evidence. Where ExB6 is held as invalid issued without due procedure, the changed entries in pahanies through it cannot be safely relied on to prove physical possession subsequently. As D1 himself is not held to get any valid title or possession through ExB6, neither
D2 nor D3 can be said to have acquired any better title or possession from him due to which even the entries in the name of D2 & D3 in pahanies from 2011 and 2013 respectively cannot be believed.
32.3.On the other hand though ExA18 is filed, it is already opined not of reliable help to prove plaintiffs’ possession over suit land. Plaintiffs themselves pleaded that they went to Hyderabad for livelihood in 2007.
They did not state whether they returned to Chilipched, if so when exactly they returned as such, to claim continued possession over suit land. They did not at least mention what they did with suit land when they shift to
Hyderabad for livelihood as such in 2007. However, considering the
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discussion supra, plaintiffs are held to have better title than defendants over suit land and it is settled proposition that possession follows title, due to which general presumption of possession is in favor of plaintiffs themselves.
Though as stated supra the evidence of PW2, 5 & 6 was not inspiring confidence, PW4 was corroborating PW1 & 3 as to their claim of possession.
32.4.Though DW2 claimed possession over part of suit land, she admitted that she do not know the boundaries of suit land. Without knowing the boundaries, her claim of physical possession over it itself is doubtful. The evidence of DW3 & DW5 were opined supra as unreliable for various reasons. As such DW4 alone, being adjacent cultivator, corroborated the possession of D2 & D3, but his being close to D1 as being active member of their caste association along with D1 impresses motive for such corroboration towards interested person. On the other hand though contended possession of part of suit land by D2, he did not choose to enter witness box to depose about his version of this case on oath and did not even choose to depose at least about his possession as such. His intentional ignorance as a witness raises adverse inference that he may not be in possession as such of any part of suit land.
32.5.Hence, I am of considerable opinion that the balance of evidence shall bend towards plaintiffs’ contention of possession over suit land.
33.Limitation :
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33.1.As per Art.64 & 65 of Limitation Act, limitation for suit for possession of immovable property based either on previous possession or based on title is 12yrs. The present case is not for possession as plaintiffs are claiming continuous possession till filing of suit. Present suit is for declaration of title and perpetual injunction based on registered gift deed contending subsequent 13B certificate of D1 as illegal & invalid. Hence, as per Art.58 & 59 of Limitation Act, limitation for this suit is 3yrs from when right to sue first accrued and when the facts entitling such right to sue first become known to them.
33.2.Plaintiffs pleaded that defendant tried to take away the paddy crop from suit land, which attempt was restrained by them with difficulty, but that defendants threatened to trespass again. PW4 to 6 deposed that defendants now and then tried to interfere with the possession of plaintiffs over suit land. Plaintiffs further contended that the illegal and void transactions made by D1 in 2011 & 2013 came to the knowledge of plaintiffs on 25-6-2013. PW1 & 3 deposed the same.
33.3.A person with valid title with settled possession cannot generally be presumed to roam around revenue and registration offices to monitor transactions over his land. It is only when something negative occurs with his possession anyone will enquire as to such records to protect his title or possession legally or procedurally. Though mandated communication of orders to interested person, there is nothing to prove any such communication of ExB6 to plaintiffs in 2007 by Tahsildar. Selling to
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others is fine, but gifting to wife/D3 when nothing is wrong with D1 itself raises reasonable doubts. The possibility of defendants interfering with plaintiffs’ possession taking those transactions in 2011 & 2013 as advantage cannot be discarded. So there appears nothing to doubt the plaintiffs coming to know about those transactions and even about ExB6 on 25-6-2013. If so the suit appears reasonably within limitation.
33.4.D1 & D3 contended that plaintiffs were not in possession of suit land since 1999 itself, that suit land was mutated in the name of D1 in 2007, and hence that this suit is barred by limitation. From the documents marked and evidence adduced as discussed supra I already opined that there is nothing reliable to believe such parting of possession by plaintiff no.1 from 1999 itself. In fact the evidence on record led to a conclusion that plaintiff no.1 became owner and possessor of suit land only since 2002.
Further though suit land was mutated in favor of D1 in 2007 itself, the said mutation itself is opined and held as invalid and without due procedure. The same was not communicated to plaintiffs at all. There is nothing to believe that plaintiffs knew at that time itself about such proceedings or certificate in favor of D1. A person with valid title and settled possession needs justice and a person getting invalid orders based on a manipulated document cannot be given weight.
33.5.Learned counsel for plaintiffs relied on judgment reported vide
Pallav Sheth vs. Custodian & Ors, 2001(7) SCC 549 wherein it is held that
S.17 of Limitation Act provides that where, in the case of any suit for which
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a period of limitation is prescribed, the knowledge of the right or title on which the suit is founded is concealed by the fraud of the defendant or his agent, the period of limitation shall not begin to run until the plaintiff has discovered the fraud, with reasonable diligence, further that a party should not be penalized for failing to adopt legal proceedings when the facts or material necessary for him to do so have been wilfully concealed from him, that a party who has acted fraudulently should not gain the benefit of limitation running in his favor by virtue of such fraud. In my considered opinion this proposition is aptly applicable to this suit circumstances.
33.6.Hence, I am of considerable opinion that the balance of evidence shall bend towards plaintiffs’ contention of suit being within limitation.
34.Prime arguments of learned counsel for plaintiffs in nutshell :
34.1.Person is competent to transfer any property only if he has subsisting right, title or interest in it. When plaintiff no.1 purchased suit land in 2002, how can he sell the same to D1 in 1999. Legal maxim – Nemo dat quod non habet – applies.
From the discussion supra, I reasonably agree with this argument.
34.2.ExA14/B6 i.e., 13B certificate was issued without enquiry with plaintiffs which itself makes it invalid.
From the discussion supra, I reasonably agree with this argument.
34.3.If simple sale deeds are true, why the same could not be
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produced to prove the same remained unexplained.
From the discussion supra, I reasonably agree with this argument.
34.4.D1 is attestor for registration of ExA1, which implies D1 knows about it and did not dispute such registration before competent authority.
From the discussion supra, I reasonably opine that plaintiffs failed to prove
D1 being an attestor for registration of ExA1.
34.5.DW1 is not proper witness to speak about genuineness of
ExA14/ExB6 – 13B certificate, as he did not issue the same and admittedly do not have any record to speak about it.
From the discussion supra, I reasonably agree with this argument.
34.6.There is no evidence at all to prove that notice was issued to plaintiffs during enquiry to issue 13B certificate by Tahsildar concerned.
From the discussion supra, I reasonably agree with this argument.
34.7.Possession follows title – better title has to be seen first and then possession shall be deemed following title.
From the discussion supra, I reasonably agree with this argument.
34.8.If D1 truly purchased in 1999, why mutation was not done till 2007, remained unexplained.
From the discussion supra, I reasonably agree with this argument.
34.9.If 13B certificate is genuine, why only records of revenue proceedings pertaining to 2002-2007 that too pertaining to this suit were
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missing as stated by DW1/D4.
From the discussion supra, I reasonably agree with this argument.
34.10.Admission of witness cannot be taken as admission u/s 58 of
Evidence Act which speaks of admission by party in the litigation.
During discussion supra, this aspect is explained in detail.
34.11.Learned counsel for plaintiffs relied on judgment reported vide
Balwant Singh vs. Daulat Singh, 1997 Lawsuit (SC) 843 wherein it is held that mutation of a property in revenue record does not create or extinguish title, and argued that mere mutation in favor D1 through ExB6 does not divest plaintiffs of their title and possession over suit land, that when ExB6 is proved as illegal/invalid plaintiffs shall be deemed to have continued possession as they became owner and possessor since 2002.
35.Prime arguments of learned counsel for defendants no.2, 3, 5 & 6 in nutshell :
35.1.Plaintiffs, knowingly about the unregistered sale deed dtd 24- 3-1999 having signed it in favor of D1, are denying the same.
From the discussion supra, I reasonably disagree with the same as I with detailed reasons opined that said document is not proved and appeared manipulated.
35.2.Plaintiffs know about 13B proceedings, but denying the same to grab the land in view of land price hike.
From the discussion supra, I reasonably disagree with this argument.
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35.3.Plaintiffs did not seek the relief of cancellation of 13B certificate or rectification of revenue entries, without which this suit is not maintainable. Unless 13B certificate is set aside title of plaintiffs cannot be declared. Learned counsel for defendants relied for this argument on judgments reported vide Shaik Bikkam Ali @ Gulam Mohd.Sarvar vs. Wali
Pasha & others, 2012 (5) ALD 670 and B.Anitha vs. State of Telangana, dtd 9-1-23 in WP No.29962/2021.
Where the parties herein claimed title through different documents respectively i.e., ExA1 and ExB6, when plaintiffs prayed for declaration of title the prime issue between them is challenging each other’s document as such, and hence it cannot be said that plaintiffs did not challenge 13B certificate. In these circumstances it is enough that plaintiffs claim their title and they need not seek another relief of declaration/cancellation of defendants’ document as such. An invalid/illegal document need not be prayed specifically to be declared as such, while claiming relief of title.
Further whether Tahsildar conducted proper enquiry or not was answered supra in negative.
Learned counsel for plaintiffs also relied on this judgment dtd 9-1-23 to submit that it is held therein that with limited nature of powers conferred upon a Recording Authority, such a stupendous task of framing an issue on limitation aspect becomes almost impossible for Recording authority, but that Joint Collector dismissed revision of plaintiffs on the same ground.
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35.4.When the validity of 13B certificate is pending before Hon’ble
High Court, plaintiffs cannot challenge the same again before this Court.
This suit is filed in 2013 for declaration of title and said writ petition is filed in 2015 challenging the order of Joint Collector in December 2014. There is no stay of this suit. So I reasonably disagree with this argument.
35.5.Plaintiffs did not summon concerned record from D4 and failed to discharge the initial burden of proof lying on them, as unless otherwise is proved revenue entries shall be presumed true as per RoR Act.
When plaintiffs claimed title based on their own documents i.e., ExA1 and later ExA2 the said initial burden on plaintiffs is to prove the same but not to disprove the document of defendants. On the other hand when D1 relied on ExB6 to claim title the burden of proving the same is on him. Further from the discussion supra, I reasonably opine and hold that the defendants failed to prove ExB6 as issued in due procedure and as valid.
35.6.When D4 clearly stated that as records are filed before Hon’ble
High Court, why plaintiffs failed to file certified copies of the same.
When burden to prove proceedings which led to ExB6 on defendants, plaintiffs cannot be blamed for not filing its copies. In fact though they filed attested copies along with plaint, they ignored to get them marked into evidence. In my considered opinion when defendants know that they were filed before Hon’ble High Court why they did not file certified copies of the same is also not explained properly.
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35.7.When validation was applied based on ordinary sale deed, the same will not be returned as per procedure and only 13B certificate will be issued for change of entries as to ownership.
This is already discussed supra and opined otherwise.
35.8.Witness of ordinary sale deed gave a statement before revenue authority and if he confirms the same it is admission u/s 19 & 20 of
Evidence Act and is relevant and can be proved.
35.9.Plaintiffs’ non-mentioning of exact date & time of interference by defendants itself is vague and clever drafting to bring the suit within limitation and creation of cause of action.
Generally nobody can be presumed to be interested in litigation to note down or remember the interference incidents as such until it aggravated. So mere non-mention of exact date or time of interference cannot be opined as uncertainty by itself. The case facts have to be looked in entirety.
35.10.As per S.6 & 6A of RoR Act the entry in record of rights shall be presumed to be true until contrary is proved and title deed issued by authorized authority has equal evidentiary value as to title with that of title documents under Transfer of Property Act.
From the discussion supra, I reasonably opine that there is reliable evidence to prove contrary to validity of ExB6.
35.11.Learned counsel for defendants relied on Anathula Sudhakar vs. P.Buchi Reddy, (2008) 4 SCC 594 and submitted that Hon’ble Court held
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that to claim permanent injunction plaintiffs must establish lawful possession over suit property, that where a cloud is there as to title and plaintiff do not have possession a suit for declaration and possession is the remedy.
The proposition is absolutely true, but plaintiffs when claiming to be in possession with proper title, the same judgment says that the remedy is a suit for declaration of title and permanent injunction, the proof of the same is subject to trial and decision of the Court.
35.12.Learned counsel for defendants relied on judgments reported vide Uppara Anjinappa & others vs. T.Khasim Sab (died per LRs), 2018 SCC
Online Hyd 2078; Union of India & Ors vs. Vasavi Co-op.Housing Society, 2014(2) SCC 269; Rajasthan RTC vs. Bajranglal, 2014(4) SCC 693 to argue that the Hon’ble Courts held that in a suit for declaration of title plaintiff must prove their title and possession with clear pleadings and sufficient evidence by their own, that they cannot depend on the weakness of defendants’ case.
The proposition is true, but the pleadings and evidence on both sides is discussed in detail supra.
36.Issue no.1 : Whether the plaintiffs are entitled for the relief of declaration of title so far as the suit schedule property is concerned as against the defendants herein as prayed for ?
From the discussion and conclusions arrived supra, there is
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reasonable and reliable evidence to hold and accordingly I opine and hold that plaintiffs have better title through ExA1 & A2 over suit land, that there is sufficient material to opine ExB6/A14 as invalid and issued without following due procedure. Accordingly, this issue is answered in affirmative.
37.Issue no.2 : Whether the plaintiffs are entitled for the relief of cancellation of registered sale deed no.5207/2011 and regd.gift deeds no.1392/2013 & 1883/2013 as to suit schedule property or part of it allegedly executed by defendant no.1 in favor of defendant no.2 & 3 ?
From the discussion and conclusions arrived supra, as ExA14/B6 in favor of D1 is held as invalid document, through such document he cannot claim better title as against plaintiffs, these subsequent transactions shall stand as invalid transactions consequently. As issue no.1 is answered in favor of plaintiffs, this issue also is answered in affirmative in favor of plaintiffs.
38.Issue no.3 : Whether the plaintiffs are entitled to the relief of perpetual injunction as against the defendants so far as suit schedule property is concerned as prayed for ?
38.1.Injunction restraining interference generally will be granted, if any right or interest over and settled legal possession of specific property is established as on the suit date, prior to it and till date by approaching the court with clean hands and bona fide, to protect such right or interest or possession by the process of law. Hence, possession over specific property is
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the core point to be observed.
38.2.In civil suit the proof can be based on preponderance of probabilities. Considering the discussion as to possession supra, I opine that the evidential balance shall reasonably bend in favor of plaintiffs. From the discussion and conclusions arrived supra, as continued possession is reasonably opined in favor of plaintiffs, in view of decisions arrived as to issue no.1 & 2, this issue also is answered in affirmative in favor of plaintiffs.
39.Issue No.4 : Whether the suit is barred by limitation ?
From the discussion supra as to limitation at para no.33, this issue is answered in negative.
40.Issue no.6 : To what relief ?
In view of discussion and decision arrived as to issues no.1 to 5, this court opines that the plaintiffs are entitled to the reliefs as prayed for.
41.In the result, the suit is decreed in favor of plaintiffs, with costs.
Accordingly, the plaintiff no.2 is declared as owner of suit schedule property. Defendants and the persons on their behalf or claiming through them are hereby perpetually restrained from interfering with the possession and enjoyment of plaintiffs over suit schedule land, in any manner, except under due process of law. Further the regd.sale deed b.no.5207/2011 and regd.gift deeds No.1392/2013 dtd 7-3-2013 and No.1883/2013 dtd 23-3- 2013 executed by D1 in favor of D2 & D3 as to suit schedule property herein are declared as invalid and not binding on plaintiffs.
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Typed, corrected and pronounced by me in open court on this the 15th day of October, 2024.
Senior Civil Judge,
Medak Appendix of evidence Witnesses examined For Plaintiffs : PW1 : K.Bhoomaiah – Plaintiff no.1 PW2 : V.Janardhan – independent witness PW3 : K.Bhavani – Plaintiff no.2 PW4 : Ch.Manaiah PW5 : Naathi Bagaiah PW6 : M.Sangameshwar For Defendant no.4 : DW1 : Mohammad Musadiq – Defendant no.4 For Defendants no.2, 3, 5 & 6 : DW2 : S.Shanta – Defendant no.3 DW3 : P.Jaganmohan Reddy DW4 : Vanam Anjaiah – neighboring owner DW5 : Md.Taher Exhibits marked For Plaintiffs : Exhibit througDate ofDescription of document hmarking
ExA1/PW111-02-16Original regd.sale deed b.no.972/2002 dt 3-4-2002
ExA2/PW111-02-16regd.gift deed b.no.8745/2006 dt 20-11-2006
ExA3/PW111-02-16True copy of regd.sale deed b.no.5207/2011 dtd 30-12-2011
ExA4/PW111-02-16Copy of Form-1A (RoR) for the year 1989-90
ExA5/PW111-02-16cc of pahani for the year 2000-01
ExA6/PW111-02-16cc of pahani for the year 2002-03
ExA7/PW111-02-16cc of pahani for the year 2004-05
ExA8/PW111-02-16cc of pahani for the year 2005-06
ExA9/PW111-02-16cc of pahani for the year 2006-07
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ExA10 /PW111-02-16cc of pahani for the year 2007-08
ExA11 /PW111-02-16Pattadar pass book of plaintiff no.2
ExA12 /PW111-02-16Title deed of plaintiff no.2
ExA13 /PW111-02-16Marriage card
ExA14 /PW111-02-16Attested copy of Form-13B dtd 25-6-2007
ExA15 /PW38-12-16Meeseva copy of encumbrance certificate dtd 12- 12-2012
ExA16 /PW38-12-16Cc of regd.gift deed b.no.1392/2013 dtd 7-3-13
ExA17 /PW38-12-16Cc of regd.gift deed b.no.1883/2013
ExA18 /PW311-4-2314 photos along with CD & certificate u/s 65B
For Defendant no.4 : Exhibit througDate ofDescription of document hmarking
ExB1/DW121-7-23Attested copy of orders in Case No.F3/2919/2013 of Joint Collector dtd 18-12-14
For Defendants no.2, 3, 5 & 6 : Exhibit througDate ofDescription of document hmarkin g
ExB2/DW24-8-23Original regd.sale deed no.5207/2011 dtd 30-12-11 by D1 in favor of D2
ExB3/DW24-8-23Original regd.gift deed no.1392/2013 dtd 7-3-13 by D1 in favor of D3
ExB4/DW24-8-23Original regd.gift deed no.1883/2013 dtd 23-3-13 by D1 in favor of D3
ExB5/DW24-8-23Mutation proceedings no.AR/52/2012 dtd 8-2-12
ExB6/DW24-8-2313B certificate No.C/3018/2007 dtd 25-6-2007 along with copy of challan no.2079 dtd 8-6-2007
ExB7/DW24-8-2313C proceedings No.C/3018/2007
ExB8/DW24-8-23Cc of counter affidavit by D4 filed before Hon’ble High Court in WP No.11678/2015 dtd 21-7-15
ExB9/DW24-8-23Pattadar pass book of D2 with patta no.849
OS No. 13/2014.. 63 of 63..Jt. Dt: 15-10-2024
ExB10 /DW24-8-23New Pattadar pass book-cum-title deed of D2 with khata no.849
ExB11 /DW24-8-23Pattadar pass book of D3 with patta no.636
ExB12 /DW24-8-23Meeseva copy of RoR 1B dtd 6-2-2018 of D2
ExB13 /DW24-8-23Meeseva copy of RoR 1B dtd 12-1-2019 of D3
ExB14 /DW24-8-23True copy of pahani for the year 2007-08 of D1
ExB15 /DW24-8-23True copy of pahani for the year 2010-11 of D1
ExB16 /DW24-8-23True copy of pahani for the year 2014-15 of D2 & D3
ExB17 /DW24-8-23True copy of pahani for the year 2015-16 of D2 & D3
ExB18 /DW24-8-23True copy of pahani for the year 2016-17 of D2 & D3
ExB19 /DW24-8-23True copy of pahani for the year 2017-18 of D2 & D3
ExB20 /DW24-8-23True copy of pahani for the year 2019-20 of D2 & D3
ExB21 /DW24-8-23Dharani portal extract online copy
ExB22 /DW24-8-23True copy of pahani for the fasli year 1423 of D3
ExB23 /DW24-8-23True copy of pahani for the year 2008-09 of D1
ExB24 /DW24-8-23True copy of pahani for the year 2009-10 of D1
ExB25 /DW24-8-23True copy of pahani for the year 2010-11 of D1
ExB26 /DW315-9-Xerox copy of earlier statement of DW3 dtd 31-5- 232007
For Court : ExhibitthroughDescription of document
ExC1Judgment atAttested copy of unregistered sale deed on ten rupees parastamp paper allegedly executed on 24-3-1999 (filed no.31.12along with plaint on 14-11-13 at sl.no.15 of list of documents)
Senior Civil Judge,
Medak