IN THE COURT OF THE III ADDL. SENIOR CIVIL JUDGE: VIJAYAWADA
PRESENT: SMT G. ANANDI,
III ADDL. SENIOR CIVIL JUDGE, VIJAYAWADA.
Friday, this the 20th day of March, 2020
OS No.849 of 2017
Between:
Rekapalli Umamaheswari, W/o. Venkateswara Rao, aged 58 years, Professional, R/o. Flat NO.302, Basara Apartments, Anand Nagar, Near State Bank of India, Khairatabad, Hyderabad – 500 004. … Plaintiff A N D
1. Paidimarri Venkata Srikanth, S/o. Venkateswarlu, aged 47 years, business,R/o.2360,KommuvariStreet, Satyanarayanapuram,Vijayawada520 011.
2. Desiraja Venkateswara Rao, S/o. Venkata Satyanarayanam aged 65 years, Business, Plot No.17, Anbeston colony, Tarnaka, Hyderabad 500 007.
3. Challa Anuradha, W/o. Prabhakar, aged 45 years, business and properties, Flat No.205, Indira Enclave, Ayodhya nagar, Vijayawada
520 003. .. Defendants.
This suit is coming on 10032020 for hearing before me in the presence of Sri K. Sanjeev, Advocate for plaintiff and of Sri T. Subba Rao, advocate for defendant No.1, Sri JRK Sarma, advocate for defendant No.3 and Sri R. Ramamohana Rao, advocate for defendant No.4 and suit against defendant No.2 dismissed as abated and upon hearing both the counsel and upon perusing the material on record and the matter having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1. This Suit is filed by the plaintiff seeking the relief of declaration of her right over the schedule property, and for consequential relief of permanent injunction restraining defendants from interfering with her peaceful possession and enjoyment of the schedule property.
2.The case of the plaintiff as per the plaint in brief is that
She purchased the schedule property from “The Municipal Teacher’s
Cooperative Building Society Limited”, on 20031982, by way of registered document bearing No.3231/1982 for a valuable consideration of Rs.2,690/ 2 and since the date of purchase the plaintiff, is in the absolute possession and enjoyment of the property. She says that she visited the schedule property on 15102017, with an intention to develop the property and when she was taking measurements of the property, the defendant came to the schedule property at 300 pm, and tried to dispossess the plaintiff, however on her resistance and interference by the family members the defendants left the schedule property threatening to dispossess the plaintiff.
Hence, the plaintiff raising doubt on the proclamation of the defendants, obtained encumbrance certificate from the SRO, and came to know that the schedule property was alienated by defendant No.3 to defendant No.4 on 28122011 under registered sale deed and the sale deed also recited that defendant No.3 purchased the property from defendant No.1 represented by his GPA defendant No.2 on 18112006.
3. The plaintiff says that the “Municipal Teacher’s Cooperative Building
Society Limited” has no manner of right to sell the schedule property to defendant No.1 having sold it to the plaintiff, in the year 1982 and the enquiries made by the plaintiff revealed that, the defendants are habituated land grabbing mafia, by creating sale deeds. She further says that, when she visited the schedule property again on 25102017, at 1100 am, the defendants again came to the schedule property and tried to occupy it but failed in their attempts in view of the interference by the neighbouring owners, as the defendants left the schedule property hurling threats, the plaintiff is constrained to file this suit for declaration and permanent injunction against the defendants.
4. Defendant No.1 through his written statement denying the plaint averments submitted that, the plaintiff is not the absolute owner of the schedule property and in fact it is this defendant who purchased the schedule property from the “Municipal Teacher’s Cooperative Building 3
Society Limited” under registered sale deed dated 531997 bearing document No.603/1997 for a valid consideration of Rs.21,500/ and since then it is defendant No.1 who was in possession of the property. He says that, he executed agreement of salecum GPA vide document No.2918 of 2005 in favour of the 2nd defendant, and the 2nd defendant in turn sold the property to defendant No.3 under document No.14510 of 2006 dated 1811 2006 and delivered the possession of the property to defendant No.3 on the same day, subsequently defendant No.3 sold the property to defendant
No,.4 under sale deed bearing No.3933/2011 dated 28122011 for a sale consideration of Rs.4,83,000/ and since then it is the defendant No.4 who is in possession of the property.
5. This defendant submits that, the sale deed brought into existence by the plaintiff is a created document to defeat the right of the 1st defendant and the other defendants over the plaint schedule property and he also opposed the suit stating that it is not maintainable for nonjoinder of necessary parties. Hence, for the said reasons prayed to dismiss the suit.
6. The suit against the defendant No.2 was dismissed as abated.
7. Defendant No.3 through her written statement submitted that, there is no cause of action for the plaintiff to maintain this suit, as this defendant purchased the schedule property from defendant No.2 vide document
No.14510 of 2006 dated 18112006, and since then she is in possession of the property, and that it is this defendant who applied for regularization of the lay out in the year 2008, to the VGTM UDA and the concerned authority after collecting the requisite fees from this defendant regularised the lay out. Hence, she says that, she being a bonafide purchaser of the property, in turn sold it to defendant No.4. Hence, the schedule property now being the property of defendant No.4, and in his possession, this suit for declaration by the plaintiff is not maintainable.
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8. Defendant No.4 through his written statement denying the plaint averments submitted that, he is the absolute owner of the property and he is in possession of it, having purchased the property for a valid consideration of Rs.4,83,000/ from defendant No.3 vide registered sale deed bearing No.3933 of dated 28122011. Hence the claim of the plaintiff basing on a fabricated sale deed to grab the schedule property is not maintainable. Moreover, the Municipal Teacher’s Cooperative Building
Society Limited, is a necessary party to the suit, as such, the suit is not maintainable on the ground of nonjoinder of necessary party. Hence, for the said reasons prayed to dismiss the suit.
9. Basing on the above pleadings the following issues were settled for trial:
1. Whether the plaintiff is entitled for the relief of
declaration of her right to the schedule property?
2. Whether the plaintiff is entitled to the relief of permanent injunction against the defendants as prayed?
3. To what relief?
10. At the time arguments defendant No.4 prayed this court to frame addl.
issues on nonjoinder of necessary parties, and the suit being barred by limitation, for which the remaining parties to the suit including the plaintiff did not object; Hence the following additional issues are framed:
Additional Issues:
1. Whether the suit is bad for non joinder of necessary parties?
2. Whether the suit is barred by limitation?
11. On behalf of plaintiffs PWs 1 to 3 were examined and Exs.A1 to A7 were marked, and on behalf of defendants Dws 1 to 3 were examined and 5
Ex.B1 was marked.
12. Heard both sides.
ISSUE No.1:
13. This Court could understand from the very pleadings that, the schedule property originally belonged to the Municipal Teacher’s Co operative Building Society Limited, because the defendants who have set up an adverse title to that of the plaintiff, more particularly defendant no.1 states that, he also purchased the property from the Municipal Teacher’s
Cooperative Building Society Limited, from whom the plaintiff says to have purchased the property. So, it is an undefiable fact that,the original owner of the schedule property is the Municipal Teacher’s Cooperative Building
Society Limited. Plaintiff says that,she purchased the schedule property way back in the year 1982 itself, under registered sale deed, so the subsequent document in the name of defendant No.1, said to be executed by the same society, is invalid, in view of existence of prior sale deed in her name. As seen from Ex.A1, the sale deed in the name of plaintiff, and Ex.A3 the sale deed in the name of defendant no.1, it could be understood that, they both were executed by the Municipal Teacher’s Cooperative Building
Society Limited only, and surprisingly Ex.A1 was executed by the President and Secretary, whereas Ex.A3 was executed by PresidentcumSecretary by name Pydipati Rama Koteswara Rao, who in fact was the person signed as
Secretary even on Ex.A1. When both the documents are from the same vendor, as the sale deed in the name of PW1 is prior to Ex.A3 sale deed in the name of defendant No.1, it is for defendant No.1 to prove that, his sale deed is valid and that the sale deed in the name of PW1 i.e., Ex.A1 is no more in existence, but defendant No.1 examined as DW3, but for alleging that the sale deed Ex.A1, is a created document did not venture to produce 6 any material to break open the genuineness of original sale deed Ex.A1, so needless to say the mere oral allegations of defendant No.1 is not sufficient to disbelieve the registered document Ex.A1.
14. Added to it, this Court opines that, Ex.A1 being executed in the year 1982, the said document becomes a 38 years old document, so the presumption under Sec.90 of Evidence Act i.e., “presumption as to document 30 years old.” has to be invoked in favour of Ex.A1. When once the presumption under Sec.90 is invoked in respect of Ex.A1, thereby establishing the genuineness of the document in turn establishing the contents of it, then it is for the person who denies the genuineness of the said 30 years old document to prove it to be otherwise.Unless defendant
No.1 establishes by cogent evidence that, by any means Ex.A1 stood cancelled subsequent to which Ex.A3 came to be executed in his name, a registered 30 years old document cannot be disbelieved, for the mere saying of defendant No.1 that it is a fabricated document. Moreover defendant
No.1 being the subsequent purchaser, as he says to have purchased the property in the year 1997, it is for him to verify the title of his vendor before purchasing the property as the legal maxim says “let the buyer be aware.”
15. Adverting to the above, when any transaction related to immovable property is required by law to be and has been effected by registered instrument, any person acquiring such property shall be deemed to have notice of such instrument as from the date of registration, which is the essence of explanation 1 given under Sec.3 of Transfer of Property Act, so by any stretch of imagination the version of defendant No.1 who merely alleged Ex.A1 to be a fabricated document is neither believable nor can he plead ignorance of about the existence of the document in Ex.A1, as already 7 stated above being the subsequent purchaser of the same property, he is bound to verify the title of the vendor, unless he discharges the said onus, in existence of Ex.A1 his sale deed Ex.A3, a subsequent document cannot be believed.
16. Though defendant No.1/defendant No.3 contends that, he obtained encumbrance certificate for the schedule property before purchasing it, if at all it was true, then the said encumbrance certificate would have disclosed about Ex.A1. So, defendant No.1 saying that now he do not have the encumbrance certificate and did not file it, the only conclusion that can be drawn from such a evidence is that because no encumbrance certificate was obtained, no such document is filed by defendant No.1. Perhaps had he obtained the encumbrance certificate, which would have reflected Ex.A1 transaction, he would not have ventured to purchase the property. Not only
DW3 even DW1 and DW2 also did not produce the encumbrance certificate for the schedule property, and the fallacy of the case is that, DW2 categorically stated that he did not obtain encumbrance certificate for the schedule property before purchasing it, and DW1 who stated that he obtained encumbrance certificate, he also did not file the so called encumbrance certificate into the Court. So, it could be understood that, neither defendant No.1 nor his subsequent vendees ever verified the title of their vendor before purchasing the property.
17. Added to it, defendant No.1 to defendant No.3 simply alleged against the plaintiff that, because her sale deed was not genuine, she did not implead the Municipal Teacher’s Cooperative Building Society Limited as a party to the suit, as impleading the Municipal Teacher’s Cooperative
Building Society Limited, would throw light on the genuineness of Ex.A1 for which the argument of the plaintiff was quite convincing to accept, who 8 says that, when undisputedly the original owner of the schedule property is the Municipal Teacher’s Cooperative Building Society Limited, who had executed sale deed in her favour and when the Municipal Teacher’s Co operative Building Society Limited has not denied her title to the schedule property, and it is the 3rd parties who are denying her title by setting up an adverse title to that of her, what is the need for the plaintiff to implead the
Municipal Teacher’s Cooperative Building Society Limited. This Court opines that, when admittedly Ex.A1 is much prior to Ex.A3, in respect of which this court is bound to invoke the presumption under Sec.90 of
Evidence Act, and it is the burden of the defendants to break open the sale deed, failing which Ex.A1 carries the benefit under Sec.90 of Evidence Act and it being the defendants who would suffer in the event of not able to prove their defence that Ex.A1 is fabricated document, why did not defendant No.1 dared to examine the Secretary of the Municipal Teacher’s
Cooperative Building Society Limited, to speak on his documents if his transaction was true? May be for the reasons explained by the plaintiff, she did not implead the Municipal Teacher’s Cooperative Building Society
Limited. as a party, but it does not prevent the defendant No.1 to implead the Municipal Teacher’s Cooperative Building Society Limited, then why did not defendant No.1 implead them? So, having failed to utilise the opportunity that defendant No.1 had, he in turn alleging against the plaintiff that for nonimpleadment of the Society, as a party to the suit her suit fails appears to be the helm of allegations.
18. Adverting to the above, as seen from Ex.A1 and A3 the person who signed as Secretary on the documents as executant is one and the same person i.e., Pydipati Rama Koteswara Rao, when the existence of Ex.A1 is detrimental to the interest of Defendant No.1, he ought to have atleast summoned the said Secretary or any authorized person from the Municipal 9
Teacher’s Cooperative Building Society Limited, and examine as a witness on his behalf to prove the genuineness of Ex.A3, in which defendant No.1 failed. Neither defendant No.1 proved the defence that Ex.A1 is a fabricated document nor he ventured to examine the Secretary or some unauthorised person of the Society to speak on the genuineness of his transaction under
Ex.A3, in which circumstances this Court has no hesitation to opine that a collusion between the then Secretary and defendant No.1 cannot be ruled out, for the reason, had Ex.A3, in existence of Ex.A1, was not executed by the very same Secretary, it would not have thrived this plaintiff to go in for this litigation.
19. Though defendants relied on Ex.B1, to establish that DW3 is the owner of plaint schedule property, when in Ex.A1 there is a categorical mention that vide proceedings No.385/81, dated 29081981 Society obtained approved lay out from Nunna Gram Panchayat, what sanctity can be attached to Ex.B1 obtained by defendant No.3. As rightly argued by plaintiff when the schedule property is already in approved layout, what is the necessity to obtain regularisation again from VGTM UDA. Moreover, as per clause (6) of Ex.B1, the regularisation of lay out/plot does not
confer ownership on the applicant or alter the ownership of the land
itself, in the light of such an averment what sanctity can be attached to
Ex.B1?
20. Hence, this Court in view of the discussions made above, arrives at a conclusive opinion that, the plaintiff’s document Ex.A1 in whose favour the benefit under Sec.90 of Evidence Act is invoked has to be believed to be a genuine document, being prior to the document of defendant No.1, and cannot be doubted for the reason of mere allegation by defendant No.1, that it is a fabricated document, when the burden on the plaintiff to prove that 10
Ex.A1, is a genuine document stood discharged by the very fact that the sale deed in the name of the plaintiff is a 30 years old registered document.
So, now the burden is heavily on defendant No.1, who has to disprove the said document and establish that Ex.A3, is valid despite the existence of
Ex.A1, in which he failed. When this Court opines that defendant No.1, himself has no right over the plaint schedule property by virtue of Ex.A3, needless to say the subsequent sale deeds Ex.A5 and A6 have no legal sanctity. In view of defendant No.l failing in discharging his burden, the judgments relied upon by him reported in:
i) AIR 1982 Calcutta 251, State of West Bengal vs. Subimal Kumar Mondal and another
ii) 2002 (2) ALT 466 Sajana Granites vs. Madras representing by it’s
partner Parvathareddy Jayarami Reddy and another vs. Mandava
Srinivasa Rao
iii) 2007 (5) ALT 510, Mohammed Ibrahim and another vs. Mohammed
Abdul Razzak, have no relevancy to the suit on hand as the principle held in the said judgments does not aid the defendants, as the burden of proof laid on plaintiff was successfully discharged by her and it is the defendants who have failed in discharging their burden, unlike in the above referred cases.
Similarly the principle held in AIR 2017 Patna 169, also has no relevancy to the case on hand. Hence, not discussed. This Court thereby concludes that by virtue of Ex.A1 it is the plaintiff who is the absolute owner of the property. Accordingly, this issue is answered in favour of plaintiff.
Addl. Issue No.1:
21. This Court while discussing under Issue No.1 itself opined that, there is no necessity to implead the Municipal Teacher’s Cooperative 11
Building Society Limited, as a party to the suit. So, reiterates the same under this issue also, because “a necessary party is a person who ought
to have been joined as a party and in whose absence no effective
decree could be passed at all by the Court.” In this suit it is not the situation where a decree cannot be passed by this Court, in the absence of
Municipal Teacher’s Cooperative Building Society Limited, who is admittedly the original owner of schedule property, at the most in the light of existence of Ex.A1 and A3 by the same Society, may be the party at sufferance would have examined some proper person from the Municipal
Teacher’s Cooperative Building Society Limited, to speak on Ex.A1 and A3.
So, at the cost of repetition this Court observes that, Ex.A1 being a prior document to Ex.A3, that too which carries the presumption under Sec.90 of
Evidence Act, it is for the defendant No.1 to prove that transaction under
Ex.A3 is true, for which it may necessiate him to examine the Secretary or any authorised person of the Society as a witness on his behalf, but does not obligate the plaintiff to implead the Municipal Teacher’s Cooperative
Building Society Limited as a party to the suit. Accordingly, this issue is answered against the defendants.
Addl. Issue No.2:
22. PW1 categorically stated that, when she went to the schedule property on 15102017, the defendants objected her, there upon raising doubt she enquired and came to know about the sale deeds Exs.A3 to A5 in the name of defendants No.1,3 and 4, as such, to protect her right over the property, she immediately filed this suit, which is also in the year 2017, then where does the question of suit being hit by limitation does arise, as she approached the Court immediately on knowing the adverse claim made by defendants. Accordingly, this issue is also answered against the defendants.
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Issue No.2:
23. Defendants No.1,3 and 4 examined as DW3, DW1 and DW2 respectively, pleaded that on purchasing the property they were in possession of the property till alienated, and now finally it is
DW2/Defendant No.4 who is in possession of the property, pleading so they themselves have not filed any document in proof of their possession of the schedule property, but still allege against the plaintiff saying that, she is not in possession of the property, as no proof of possession is filed by her and also , by taking advantage of the plaintiff’s evidence, who for many questions put to her in the cross examination stated that, she do not know.
But looking at the evidence of PW1, it could be understood that, as everything was looked after by her husband PW 2, she had no personal knowledge about the subsequent alienations or the physical structure of the schedule property that existed as on the date of filing of the suit.
Perhaps both the parties to the suit stand on the same footing as not able to produce evidence sufficient to establish their defence of possession of plaint schedule property. when admittedly the schedule property is a vacant site situated in Panchayat area, wherein no tax will be levied on vacant site, what evidence can the defendants expect the plaintiff to produce to prove her possession for that matter the vice versa.
24. However, as per the plaint schedule, it is a vacant site, but coming to the cross examination of PW2, it was elicited that, there is a compound wall surrounding the schedule property, which DW2/defendant No.4 claims to have constructed. The defendants argue that, because the plaintiff is not in possession of the property, she do not know that there is a compound wall, as it was constructed by DW2/defendant No.4 who is now in the possession of the property, and that is the reason why, the compound wall 13 was not disclosed even in the plaint schedule. Further, both PW1 and PW2 categorically stated that, they do not know whether there is gate for the schedule property or not, and DW2 contends that he after constructing the wall put up a gate and that is the reason why both PWs 1 and 2 have no knowledge about the gate erected by him, which itself shows that it is
DW2/defendant No.4 who is in possession of the property. But this court opines that, even for the erection of compound wall and gate either the plaintiff or DW2, but for their oral assertions did not produce any evidence when DW2 wants this Court believe his version that, he has put up a gate at the plaint schedule property, why did not he even produce photographs of the schedule property, to show that indeed a gate is erected at the schedule property. In which event the mere oral evidence of DW2 does not convince this court to believe him who made much endeavour to establish
before this Court that he is in possession of the property. But this court
opines that, when the settled principle of law is “possession follows title”, and as this Court had categorically held under Issue No.1 that, by virtue of Ex.A1 it is the plaintiff who is the absolute owner of the schedule property, as per which document the possession is shown to be delivered to
PW1 under Ex.A1 on the same day, undoubtedly the possession of the property by PW1 since then has to be accepted. In which circumstances, the very act of defendants, in setting up an adverse title to that of the plaintiff, is itself sufficient to substantiate the contention of the plaintiff that, under the guise of sale deeds Exs.A3 to A5 the defendants are interfering with her possession of the property. So, in these circumstances protecting the possession of the schedule property by the plaintiff, from the illegal interference of the defendants is just and proper. Accordingly, this issue is also answered in favour of the plaintiff.
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25. In the result, the suit is decreed with costs declaring the plaintiff to be the absolute owner of the plaint schedule property and permanent injunction is granted, restraining the defendants from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff.
Dictated to the Stenographer, transcribed and typed by her, corrected and
pronounced by me in the open Court, this the 20th day of March, 2020.
III ADDL. SENIOR CIVIL JUDGE,
VIJAYAWADA.
APPENDIX OF EVIDENCE
(Witnesses examined for)
PLAINTIFF: DEFENDANTS:
PW 1: Rekapalli Umamaheswari DW1: Ch. Prabhakar PW 2: Rekapalli Venkateswara Rao DW2: Ch. Ramakrishna Srinivas PW 3: PV Rama Rao DW3: P.V. Srikanth
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1:Original sale deed, dated 20031982 bearing document No.2231/1982 executed by Municipal Teachers Cooperative Society in favour of plaintiff. Ex.A2:Encumbrance certificate Ex.A3:Certified copy of sale deed,531997 vide document bearing No.603/1997 executed by Municipal Teachers Cooperative Society in favour of defendant No.1. Ex.A4:Meseva copy of agreement of salecumGPA, dated 1903 2005 bearing document No.2918/2005 executed by defendant No.1 in favour of Defendant No.2. Ex.A5:Meseva copy of registered sale deed, dated 18112006 vide document No.14510 executed by defendant No.1 in favour of defendant No.3. Ex.A6:Meseva copy of registered sale deed, dated 28122011 vide document No.3933/2011 executed by defendant No.3 in faovur of defendant No.4. Ex.A7:Registration extract of sale deed, dated 20031982.
FOR DEFENDANTS:
Ex.B1 : Proceedings of the Vice Chairman, VGTM UDA, Vijayawada,
dated 18072011.
III ASCJ/VJA.,