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THE COURT OF SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER THE
SCHEDULE CASTES AND SCHEDULED TRIBES (PREVENTION OF
ATROCITIES) ACT, 1989-CUM- V ADDITIONAL SESSIONS JUDGE: MEDAK
AT SANGAREDDY.
PRESENT: Smt. G. Rajani, Spl.Judge for SC/ST (POA) Act Cum-V Addl. District & Sessions
Judge, Sangareddy,
MONDAY, THE 31ST DAY OF DECEMBER, 2018
O.S. NO. 94 of 2012
Between
Vadde Sathyanarayana S/o Gandaiah, Aged about 46 years, Occ:Agriculture, R/o Gundlamachnoor village, Hathnoora mandal, Medak District.
.... Plaintiff
And
1. Vadde Jhanardhan S/o Radhaiah, Aged about 40 years, Occ: ARPC R/o Chekriyal village, Pulkal mandal, Medak District.
2. B. Vijaykumar Aged about 36 years, Occ: Police constable, R/o H.No.2-4-49, Basweshwara nagar, Sangareddy Town, Medak District.
3. Balraj S/o Laxmaiah, Aged about 35 years, Occ: Business, R/o Sangareddy Town, Medak District.
... Defendants
This suit is coming on this day for hearing before me in the presence of
Sri M. Giridhar, Sri B. Sur Reddy, Advocates for the plaintiff and Sri C. Narsing Raj,
Advocate for the defendant No.1 , while defendant Nos. 2 and 3 remained exparte and after hearing, on perusal of the material papers on record and having stood over for consideration till this day, the Court made the following:-
:: J U D G M E N T ::
1. This is a suit filed by the plaintiff against the defendants 1 to 3 for declaration of title, cancellation of registered sale deed vide document 2
No.12281/2011 dated 12.12.2011 and consequential relief of perpetual injunction against the defendants
2.As per the pleadings in the plaint, the case of the plaintiff is that he is the absolute owner and possessor of residential house bearing Municipal door
No.5-1-32/3/D constructed over plot No. 12 in Sy.No.243/A admeasuring 150Sq.
Yards within plinth area of 962 Sq. feet on the ground floor, 962 Sq. feet on the first floor, 962 Sq. feet on the second floor, 200 Sq. feet on the third floor, which comes to total plinth area of 3086 Sq. feet roof covered with RCC situated at
Shanthinagar, Old Kalvakunta, under the Municipal limits of Sangareddy Town,
Medak District ( hereinafter referred as “ the suit schedule property”).
The plaintiff has purchased the suit schedule property through registered sale deed vide document No.7013/2008 dated 19.05.2008 from its original owner Smt. Balamani for valid sale consideration and on the date of sale deed, he was put in physical possession of the suit schedule property. Ever since then, he is in actual and exclusive possession and enjoyment of the suit schedule property. He let out the house portion on monthly rent and regularly collecting the rents from the tenants. The name of the plaintiff is mutated in the
Municipal records and the ownership of the house is changed in the electricity board. The plaintiff has sold away his patta land in Sys.No.910, 911 and 943 admeasuring total extent of Ac.0-30 guntas situated at Ameenpur village,
Patancheru Mandal, Medak District in the year 2007 for a total sale consideration of Rs. 90,00,000/- and with that amount, he wanted to purchase a permanent asset and accordingly, he purchased the suit schedule property for a total consideration of Rs. 46,00,000/-, but the sale deed was registered as per the registered market value for Rs. 21,00,000/- vide document bearing No.7013 3 of 2008 dated 19.5.2008.
The defendant No.1 is distant relative of the plaintiff , working as police constable in Armed Reserve police at Sangareddy. After purchase of the said house, defendant No.1 took one portion for rent from the plaintiff on a monthly rent of Rs. 4,000/- about two years back and started living in the said house along with his wife and children by paying monthly rent regularly to the plaintiff. The defendant No.1 is also collecting monthly rents from other tenants of the plaintiff every month and pay to the plaintiff and thus, he made the plaintiff to believe that he is sincere towards the plaintiff. During the year 2010, the plaintiff has started construction of a new house at Gundlamachnoor village and therefore he required money for completion of the house and decided to avail bank loan by creating mortgage of the title deeds of the suit schedule property from the bank. As he is an illiterate, he does not know any person who help him in getting the loan from bank except defendant No.1. Accordingly, in the month of September, 2011, the plaintiff has approached the defendant No.1 for assistance and he assured to help the plaintiff and took the plaintiff to the bank situated opposite to the District Court building at Sangareddy twice and on his return, the defendant No.1 with dishonest intention made the plaintiff to believe that the bank authorities are refusing to sanction loan to the plaintiff as he is un-emplolyee and he advanced Rs. 3,00,000/- to the plaintiff on one occasion in the second week of November, 2011 and one month thereafter, he again paid Rs. 2,00,000/- and thus in total he paid a sum of Rs. 5,00,000/-. On the date of payment of Rs. 2,00,000/-, the defendant took the plaintiff to
Registration Office, Sangareddy representing that some documents have to be executed in favour of the bank for creation of mortgage of the house of the plaintiff.
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At the Registration Office, the defendant No.1 has introduced two persons, who were new to the plaintiff stating that they are bank officials, brought some papers already prepared and by representing that they are bank mortgage papers, obtained the signatures of the plaintiff on the said papers and the plaintiff under the belief on defendant No.1, has put his signatures on the said papers without knowing their contents. On the same day, the plaintiff has handed over the original sale deed pertains to the suit house, to the defendant no.1 for depositing the same with the Bank. It is further contended that in order to clear the loan availed from the defendant No.1, the plaintiff has availed hand loan of Rs. 6,00,000/- from one Golla Mallesham of Gundlamachnoor village and with that amount, the plaintiff has approached the defendant No.1 and requested him to clear the bank loan and for return of the original sale deeds, but the defendant No.1 with dishonest intention postponed the same on one reason or the other inspite of plaintiff approaching him several times. On 05.07.2012, the plaintiff came to know through his relatives that the defendant
NO.1 has disclosed them that he purchased the house of the plaintiff and on hearing that words, the plaintiff got shocked and immediately approached the
Registration Office, Sangareddy, obtained the documents pertaining to his house and came to know that on 12.12.2011 that is on the date of payment of
Rs. 2,00,000/- , the defendant No.1 having conspired with the defendant Nos. 2 and 3 in collusion with them, had obtained registered sale deed of the suit house in his favour instead of mortgage deed in favour of the bank. The defendant nos. 2 and 3 knowing fully well that the defendant NO.1 has prepared the sale deed without the knowledge of the plaintiff, put their signatures as attesting witnesses for the registered document and the defendant No.1 has already realized the advance amount paid to the plaintiff by creating mortgage 5 of the suit schedule property in favour of the bank.
The defendant No.1 did not even pay single paise to the plaintiff as sale consideration except the hand loan of Rs. 5,00,000/- and the plaintiff has never offered to sell the suit schedule property in favour of the defendant No.1.
After obtaining the certified copies, the plaintiff along with his wife, sons, his brother and other relatives approached the defendant No.1 on 06.07.2012 , enquired as to why he has cheated him by obtaining false sale deed, then in the presence of other members, the defendant No.1 has admitted that he obtained the sale deed without knowledge of the plaintiff and without paying any amount to him towards sale consideration as shown in the alleged sale deed. He further disclosed that the bank authorities have refused to sanction the loan on the name of the plaintiff and since the defendant NO.1 is a government employee, if the documents are in his favour, they will sanction the loan and for that reason, he prepared the sale deed in his favour and he already realized the loan amount by mortgaging the suit schedule property from the bank. When the elders and relatives have advised the defendant No.1 to cancel the alleged sale deed by releasing the house from the charge of mortgage, the defendant No.1 did not cancel the said registered sale deed. Again on 12.07.2012, the plaintiff along with his family members approached the defendant No.1 and requested him to cancel the sale deed by receiving the loan amount, the defendant No.1 with a dishonest intention and evil eye over the suit schedule property, has bluntly refused stating that he had blank signatures of all the family members of the plaintiff on blank papers and also created one forged cash receipt so saying the defendant No.1 openly proclaimed that he never executed the cancellation deed. Therefore, immediately on the same day that is on 12.07.2012, the 6 plaintiff has lodged a written complaint to police Sangareddy Town, but instead of registering a case, they summoned the defendant No.1 to the police station, enquired him before the police, wherein he clearly admitted that he will execute the cancellation deed and on his assurance, the police did not take any action against the defendant No.1, but he failed to keep up his promise and the plaintiff has again approached the police, but they, under the influence of defendant
NO.1 being the employee of same department, did not register any case. Then, he lodged a complaint with higher authorities of the defendant No.1 on 16.07.2012, the SDPO of AR Head quarters, Sangareddy has forwarded the complaint to police Sangareddy Town for taking necessary action. Upon which, the Sangareddy police have registered a case in Cr.No.235 of 2012 against the defendant No.1 for the offence under sections 420, 506 IPC and apprehended him and remanded to judicial custody after enquiry. The defendant No.1 has admitted his guilt that he promised to execute the cancellation deed but with dishonest intention, he is creating hurdles to the plaintiff in enjoying the suit schedule property. Since from the date of taking the portion on rent from the plaintiff, he acted cunningly towards the plaintiff and induced him to deliver the valuable property under the false representation and created the alleged sale deed by conspiring with the defendants 2 and 3 and used the said forged documents as genuine and cheated the plaintiff and bank authorities by taking advantage of the alleged sale deed, filed a suit for perpetual injunction in
O.S.No.167 of 2012 on the file of Prl. Junior Civil Judge, Sangareddy by
misrepresenting the truth and correct facts and obtained exparte temporary injunction.
It is further contended that even after the alleged sale deed to cheat the plaintiff he is paying monthly rents to the plaintiff regularly and even paid the 7 rent for the month of July, 2012 and under the guise of false and fabricated sale deed, got mutated his name in municipal records and the Municipal authorities without conducting any enquiry, on the very next day of filing application, issued proceedings without following the mandatory provisions of law. The alleged sale deed is sham and nominal document and not supported by any valid sale consideration, delivery of possession and the same is not acted upon and the defendant cannot get any valid right or title over the suit schedule property. The value of the suit house is more than Rs. 60,00,000/-. Since the plaintiff is initiating legal proceedings and filed criminal complaint, the defendant No.1 bore grudge and taking undue advantage of the alleged sale deed and mutation proceedings and sanction of mortgage loan, seriously trying to alienate the suit schedule property in favour of third parties and defendant No.1 and his family members are threatening the tenants demanding them to pay monthly rents to defendant NO.1 or else to vacate the suit house. On 05.08.2012, the plaintiff went to the suit property for collecting the rents from his tenants , at that time, the wife and brother-in-law of the defendant No.1 tried to interfere with the plaintiff’s possession and enjoyment saying that the plaintiff is no manner of right or title over the suit schedule property, by denying the title of the plaintiff for the first time. The defendant No.1 is working in police department,having muscle power and the defendants made up their minds to grab the valuable property of the plaintiff at any cost and with that intention they have created all false and fabricated documents. The plaintiff is innocent, illiterate person and not in a position to protect his valuable property from the evil designs of the defendants and therefore, this suit for declaration and cancellation of sale deed and perpetual injunction is filed.
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3.On service of summons, defendant Nos. 2 and 3 have remained exparte.
4.The defendant No.1 has filed written statement denying all the plaint averments and further stated that the plaintiff was the owner of the house bearing No. 5-1-32/3/D described in the suit schedule and he admits that the plaintiff has purchased the suit schedule property by registered sale deed vide document No.7013 of 2008 and was in possession of the same by letting out the house portions. But,he denied the allegations in Para No.3 and he denied the allegations that he sold the property in Ameenpur for a consideration of Rs.
90,00,000/- and purchased the suit schedule property for Rs. 46,00,000/-, but in fact, this defendant has purchased the suit schedule property for Rs.
21,00,000/-. While admitting that the plaintiff is a distant relative of this defendant and the defendant is working as police constable in Armed Reserve police at Sangareddy and took one portion of the suit schedule property on rent from the plaintiff about three months prior to execution of sale deed by the plaintiff in favour of the defendant he denied that he took the portion about two years back on rent and he also denied regarding collection of rents from the tenants and paying the same to the plaintiff. He also denied the contents of
Para Nos. 5, 6, 7, 8, 9 and 10 to 14 of the plaint and further stated that there is no cause of action arose on 05.08.2012 and that this defendant is in possession of the suit schedule property ever since the date of execution of sale deed by the plaintiff in his favour. The plaintiff is liable to pay the Court fee for recovery of possession and this suit is liable to be rejected for non payment of Court fee for recovery of possession. It is further contended by the defendant No.1 that he is the absolute owner and possessor of the suit schedule property consisting three floors, admeasuring 150Sq. Yards in Sy.No. 243/A of Shanthinagar, Old 9
Kalvakunta, Sangareddy. He further stated that he purchased the suit schedule property by way of registered sale deed vide document NO. 12281 of 2011
dated 12.12.2011, registered at Sub Registrar Officer, Sangareddy from the
plaintiff and the plaintiff has delivered the original title deed, document bearing
No. 7031/2008 and also possession of suit schedule property to this defendant on the same day and from the date of purchase, the defendant No.1 is in continuous possession and enjoyment of the suit schedule property and he applied for mutation to the Municipal authorities and the Municipal
Commissioner, Sangareddy has also mutated the suit schedule property in the name of this defendant and issued mutation certificate and he obtained loan from State Bank of Hyderabad branch Sangareddy by mortgaging the suit schedule property and depositing the original sale deed.
It is further contended that on 14.07.2012 the plaintiff came to the suit schedule property with his henchmen and demanded to cancel the registered sale deed No. 12281 of 2011 executed by him in favour of this defendant saying that he is getting offers to buy the suit property at higher prices, but the defendant has refused to cancel the sale deed. Though the plaintiff and his henchmen have tried to interfere with the peaceful possession of the defendant, he resisted his illegal acts and he left that place along with his henchmen pronouncing that he will dispossess the defendant and therefore, this defendant filed O.S.No.167 of 2012 on the file of Junior Civil Judge at
Sangareddy against the plaintiff. The plaintiff has no right over the suit schedule property as he already sold the same to this defendant, who purchased it legally by way of registered sale deed in December, 2011. The plaintiff has no manner of right, interest or title in order to interfere with this defendant’s possession.
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It is further contended that the plaintiff has approached the caste elders and the caste elders have pressurized this defendant to settle the matter out of the Court, otherwise this defendant will be out casted and under the fear of out caste, this defendant has approached before the caste panchayath on 3.11.2012 at Hyderabad and before the caste elders, the plaintiff has agreed that he sold the suit house in favour of this defendant for Rs.
20,00,000/- and his family members are pressurizing for cancellation of sale deed. The caste elders have advised and reduced their advise into writing to return the sale consideration to the defendant and to execute the cancellation deed. The plaintiff has executed a document that he sold the suit house for Rs.
20,00,000/- and the same is in possession of the defendant and he will return the sale consideration. The caste elders have obtained document from this defendant to the effect that on receipt of sale consideration from the plaintiff, the defendant should execute registered sale deed in favour of the plaintiff. This defendant under the pressure of caste elders and under the fear of outcasting him and coercion, has signed on the papers without application of the mind and the caste elders did not give time to think over and discuss with his family members and they obtained the signatures of this defendant in a hurried manner under the influence of the plaintiff and the so called documents are not binding on the plaintiff and therefore, he prays to dismiss the suit with exemplary costs, in the interest of justice.
5.Basing on the above pleadings, my learned predecessor has settled the following issues for trial :
1. Whether the plaintiff is the absolute owner and possessor of the suit schedule property that is house bearing Municipal door No.5-1-32/3/D situated at Shanthinagar, Old Kalvakunta, under the limits of Sangareddy Town, 11
Medak District?
2. Whether the defendant NO.1 got executed the registered sale deed vide document NO.12281/2011 dated 12.12.2011 by playing fraud on the plaintiff as alleged?
3. Whether the plaintiff is entitled to pass a decree for cancellation of registered sale deed document NO.12281/2011, dated 12.12.2011 as null and void?
4. Whether the plaintiff is entitled for perpetual injunction against the defendants 1 to 3 restraining them, their men, servants and agents from interfering with the lawful possession and enjoyment of the plaintiff over the suit schedule property and from alienating, creating further charge or changing the nature of the suit schedule property?
5. To what relief?
6.On behalf of the plaintiff, the plaintiff got examined himself as
P.W.1 and also examined P.Ws. 2 and 3 and marked Exs. A.1 to A.21. On behalf of the defendants, defendant No.1 got examined himself as D.W.1 and the defendant No.2 as D.W.3 and another witness namely Pandari as D.W.2 and got marked Exs. B.1 to B.10 in support of defendants case.
7.ISSUE NO.1:
This issue relates to whether the plaintiff is the absolute owner and possessor of the suit schedule property.
The contention of the plaintiff is that he is the absolute owner and possessor of the suit schedule property which he purchased from one Smt.
Balamani for a valid sale consideration by virtue of a registered sale deed vide document No.7013/2008 dated 19.05.2008 from its original owner Smt.
Balamani and on the date of sale deed itself the plaintiff was put in peaceful possession of the suit schedule property and ever since then the plaintiff has been in the exclusive enjoyment of the suit schedule property and let out the house portions for monthly rents and regularly collecting the rents from the 12 tenants and the name of the plaintiff was mutated in the Municipal records and ownership of the house is changed in the Electricity Board.
8.To substantiate this issue, the plaintiff while he got examined himself as P.W.1 marked Ex.A.1 which is the certified copy of sale deed vide document No. 7013 of 2008 dated 19.05.2008. The plaintiff in his chief examination also has reiterated the same. As seen from Ex.A.1, the certified copy of sale deed, it is the registered sale deed executed by the vendor of the plaintiff namely Smt. K. Balamani in favour of the plaintiff on 19.05.2008 for a valid sale consideration of Rs. 21,20,000/- and within the boundaries mentioned in the schedule of the sale deed which is a RCC roofed house bearing No.5-1- 32/3/D on open plot bearing No. 12 in Sy.No. 243/A admeasuring 150 Sq. yards or 124 Sq. meters, consisting of constructed house at Shanthinagar, Old
Kalvakunta, Sangareddy Town which also clearly shows the source of title of the said Balamani that she purchased the same vide document No. 3959/2005
dated 07.04.2005 of Registrar Office, Sangareddy Mandal, Medak District. The
description of the property in the suit schedule and the boundaries as mentioned in Ex.A.1 sale deed along with sketch map and parties to the sale deed exactly tallied with the suit schedule property which the plaintiff claims to be the absolute owner. There is no controversy regarding the purchase of the suit schedule property by the plaintiff under Ex.A.1 during the cross examination of P.w.1 also. Therefore, Ex.A.1 and the evidence of P.W.1 clearly establishes that the plaintiff is the absolute owner of the suit schedule property which he has purchased under Ex.A.1 and as per Ex.A.1, there is no doubt that the plaintiff is the absolute owner of the suit schedule property. Therefore, this issue is answered accordingly in favour of the plaintiff.
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9.ISSUE NOS. 2 AND 3:
These two issues are inter related and therefore they are discussed together for the sake of convenience.
Issue No.2 relates to whether the defendant No.1 got executed the registered sale deed vide document No. 12281 of 2011 dated 12.12.2011 by playing fraud on the plaintiff and issue No.3 relates to whether the plaintiff is entitled for a decree of cancellation of the registered sale deed No.12281 of 2011 dated 12.12.2011 as null and void.
The main contention of the plaintiff and the stand is that the defendant No.1 by playing fraud upon the plaintiff when he approached the defendant No.1 for loan amount for construction of a new house in
Gundlamachnoor village and when he was in need of money for completion of the said house,he has decided to take bank loan by creating mortgage of the title deeds of the suit schedule property, as he is illiterate, he sought help of defendant NO.1 by approaching him for assistance, upon that the defendant
No.1 has assured to help him and took him to a bank situated opposite to
District Court complex, Sangareddy twice and with a dishonest intention made the plaintiff to believe that the bank authorities are refusing to sanction the loan to him as the plaintiff is an unemployee and therefore, the defendant No.1 has advanced an amount of Rs. 3,00,000/- on one occasion in the second week of
November, 2011 and one month thereafter, he again paid Rs. 2,00,000/- and thus paid total of Rs. 5,00,000/- and on the date of payment of Rs. 2,00,000/-, the defendant No.1 took him to the Registrar Office, Sangareddy by representing that some documents have to be executed in favour of the Bank for creation of mortgage of the house and introduced two persons stating that they are the bank officials, brought some papers already prepared representing 14 that they are bank mortgage papers, obtained his signatures on the said papers and by believing the defendant No1., the plaintiff has put his signature on the above said two papers without knowing the contents and on the same day, he has handed over the original sale deed pertains to the suit house to defendant
No.1 for depositing the same with the bank. Thereafter, when he availed hand loan of Rs. 6,00,000/- from one Golla Mallesham of Gundlamachnoor village and brought the defendant No.1 to clear the bank loan and return back the original sale deeds, the defendant NO.1 with a dishonest intention postponed the same on one reason or the other and the plaintiff has approached the defendant NO.1 several times and on 05.07.2012, he came to know through his relatives that the defendant No.1 has disclosed them that he has purchased the suit house from the plaintiff and on knowing the same, when he approached the
Registrar Office at Sangareddy and obtained the documents pertaining to his house, he came to know that on 12.12.2011 that is on the date of payment of
Rs. 2,00,000/-, the defendant NO.1 conspired with defendant Nos. 2 and 3 and in collusion with them, has obtained the registered sale deed of the suit house in his favour instead of mortgage deed in favour of the bank and defendant Nos.
2 and 3 knowing fully well that the defendant NO.1 has prepared the sale deed without the knowledge of the plaintiff, put their signatures as attesting witnesses on the said document and the defendant NO.1 has already realized his amount advanced to the plaintiff by creating mortgage of the suit schedule property in favour of the bank, which itself clearly shows the dishonest intention of the defendant NO.1 in cheating the plaintiff by playing fraud upon him and as the plaintiff being an illiterate person, could not realize that he signed on registered sale deed and therefore, he along with his wife, sons, brother and relatives approached the defendant No.1 on 06.07.2012 and enquired about the false 15 sale deed obtained by cheating in the presence of family members, he admitted about obtaining the sale deed without his knowledge and without paying any consideration to the plaintiff as shown in the sale deed. Then the matter is placed before the elders and relatives and they advised the defendant nO.1 to cancel the alleged sale deed by releasing the house from the charge of mortgage, but the defendant NO.1 did not cancel the alleged sale deed and again on 13.07.2012, when the plaintiff approached him along with his family members and requested defendant NO.1 to cancel the said sale deed, he developed dishonest intention and with an evil eye, bluntly refused stating that he has already obtained the signatures of the plaintiff and his family members on the blank papers and also created one forged cash receipt and openly proclaimed that he will never execute cancellation deed and therefore, the plaintiff has lodged a written complaint before the police, Sangareddy Town on 13.07.2012, but the police instead of registering the case, summoned the defendant No.1, enquired him where upon the defendant NO.1 had admitted that he will execute the cancellation deed and gave assurance in the presence of police and therefore, the police did not take any action. Later, as the defendant NO.1 has failed to keep up his promise, he again approached the police, but at the influence of defendant NO.1 being the employee of the same department, they did not register any case. Then he lodged a complaint with higher authorities of defendant NO.1 on 16.07.2012 and the SDPO of AR Head
Quarters forwarded the same to police Sangareddy Town for necessary action, upon which Crime No. 235 of 2012 was registered against defendant No.1 for the offence under sections 420 and 506 IPC and the police have also apprehended D.1 and remanded him to judicial custody after enquiry. The defendant NO.1 has admitted his guilt and promised to execute the 16 cancellation deed but with dishonest intention without executing the cancellation deed, he is creating hurls in enjoying the suit schedule property taking advantage of the alleged sale deed and he also filed a suit in O.S.No.167 of 2012 for perpetual injunction on the file of Prl. Junior Civil Judge, Sangareddy by misrepresenting the true and actual facts and obtained exparte injunction and even after the alleged sale deed, which was obtained by playing fraud, the defendant No.1 has paid monthly rents till July, 2012 under the guise of fabricated sale deed and he got mutated his name in Municipal records and the
Municipal authorities without conducting any enquiry on the very next day of filing of application, issued Proceedings without following the mandatory provisions of law and therefore, the alleged sale deed is a sham and fabricated document. The suit house values more than Rs. 60,00,000/-. As the plaintiff has lodged a criminal complaint, he bore grudge and tried to alienate the suit schedule property, upon which, he filed this suit.
10.The plaintiff as P.W.1 while narrating all the above facts, has marked the alleged sale deed as Ex.A.2, which is the certified copy of sale deed vide document NO. 12281/2011 dated 12.12.2011 and Ex.A.3 certified copy of mortgage deed vide document NO.8762/2012 and Ex.A.4 certified copy of F.I.R in Cr.NO.235 of 2012 of P.S. Sangareddy Town and Ex.A.5 certified copy of
Encumbrance Certificate issued by the Sub Registrar Office, Sangareddy,
Ex.A.6 copy of notice dated 18.07.2012 issued by the defendant NO.1, which is the exparte ad-interim injunction order in O.S.No.167 of 2012. The above evidence of P.W.1 categorically shows that he is the absolute owner of the suit schedule property which he purchased under a registered sale deed from one
Smt. K. Balamani in the year 2008.But the issue is whether he has sold away 17 the suit schedule property in favour of defendant NO.1 under a valid sale transaction and for a valid sale consideration. The contention of the plaintiff is that in fact he approached the defendant No.1 for a loan and the defendant
No.1 has himself led them by taking into bank and obtaining signatures in the bank under the guise of mortgaging the said property and obtained his signatures on the sale deed and also obtained the original title deeds of the plaintiff in respect of the suit schedule property for the purpose of mortgaging to the bank, but later it came to his knowledge that the document on which the defendant No.1 has obtained his signature is not the mortgage deed but it is a sale deed pertaining to the suit schedule property in favour of the defendant
NO.1 and therefore, he prays to cancel the sale deed as the same is obtained by defendant NO.1 by playing fraud upon him.
11.On the contrary, the contention of the learned counsel for the defendant NO.1 is that the defendant NO.1 has never cheated nor played fraud upon the plaintiff nor obtained any sale deed without the knowledge of the plaintiff and the cross examination of the plaintiff as P.W.1, clearly shows that the plaintiff is well versed in the transaction relating to the execution of the registered sale deed and also financial transactions in respect of the immoveable properties as he admitted that he himself has negotiated the sale with one Raju in respect of his ancestral property and other properties, he purchased and executed the registered sale deed in the Registrar Office,
Sangareddy for a sale consideration of Rs. 90,00,000/- by himself preparing the said sale deed at Registrar Office, Sangareddy and therefore, the contention of the plaintiff that he has no knowledge about the sale deed and the same was obtained by playing fraud upon him and cheating him, is false and nothing but blatant lie and he himself sold the suit schedule property to the defendant No.1 18 for a valid sale consideration of Rs. 21,00,000/- and also issued a receipt under
Ex.B.1 and as such the contention of the plaintiff that he has no knowledge about the registered sale deed by which he sold the suit schedule property in favour of the defendant NO.1, is false and he categorically admitted during the cross examination that Ex.B.1 document which contains his signature, thumb impression which is a notarized receipt issued by the plaintiff in the presence of two witnesses and also executed Ex.B.2 declaration affidavit along with his wife and two sons and therefore, he cannot claim that he has no knowledge about the execution of sale deed and also issuance of Exs. B.1 and B.2 in favour of the defendant No.1 and his contention that Ex.A.1 is obtained by playing fraud upon him under the guise of mortgage deed is false and therefore, the defendant NO.1 has purchased the suit property for a valid sale consideration and the plaintiff is not entitled for any relief sought and the suit is liable to be dismissed. In support of his contention, the learned counsel for the plaintiff has submitted the following rulings:
1. CRP No. 4587/2013 dated 03.01.2017 between Bagyalakshmi and others (petitioners) Vs. Kanagaraj and others ( respondents), wherein the Hon’ble High Court of Madras held as follows:
“That his presence should be necessary to enable the Court to
effectually and completely adjudicate upon and settle all the questions
involved in the suit, Impleadment of third party cannot be allowed to
change the character or the nature of the suit filed for specific
performance of an agreement for sale. When the plaintiff in the suit for
specific performance of the agreement for sale is the ‘ dominos litus’ he
cannot be forced to add parties, against whom he does not seek any
relief, unless it is a compulsion of the rule of law.
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Therefore, in all the above consideration of the records and
judgments produced by either parties, I am of the firm opinion that in a
suit for specific performance, the validity of the sale agreement alone is to
be decided. A party to the agreement, against whom no claim is made, is
not entitled to be impleaded.
Apart from this, in a suit for specific performance of a contract for
sale the lis between the purchaser and the vendor shall only be gone into
and it is also not open to the court to decide whether the third party have
acquired any title and possession of the contracted property as that
would note be germane for decision in the suit for specific performance of
the contract for sale. Therefore, all the above judgments cited supra were
made clear that a third party or a stranger to a contract cannot be added
as a party to a suit for specific performance. The scope of a suit for
specific performance could not be enlarged to convert the same into a
suit for title and possession. A third party or a stranger to the contract
could not be added so as to convert a suit of one character into suit for a
different character. Therefore, this Court does not find any irregularity or
illegality in the order in I.A.NO.381 of 2013 in O.S.No. 760 of 2009
warranting interference by this Court. Accordingly, this civil revision
petition is liable to be dismissed.
2.Civil Appeal Nos. 6656-6657 of 2010 between Meghmala
and others Appellants Vs. Narasimha Reddy and others Respondents,
wherein the Hon’ble Supreme Court held as follows:
The Special Court after appreciating the evidence, vide
Judgment and order dated 4.11.1997 came to the conclusion that the
appellant/applicant was the owner of the suit land and that the
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respondents had no right, title or claim over the suit land. They had
forcibly occupied the land and they were land grabbers, thus, they were
liable to be evicted and orders for that purpose were passed.
The respondents, being aggrieved by both the orders, filed
Writ Petition Nos. 19962 and 19963 of 2006, which have been allowed by
the High Court vide impugned judgment and order dated 26.04.2007
directing the Special Court to decide both the applications afresh on
merit, as in the opinion of the High Court, the applications required
certain inquiry on factual matters and the claim of the respondents could
not have been rejected merely on the determinations and attaining finality
of orders in earlier proceedings. Hence, these appeal.
3. Civil Appeal No. 1723 of 2008 between Smnt. Badami ( deceased) by her L.Rs. Appellants Vs. Bhali respondents wherein the Hon’ble Supreme
Court held as follows:
“ The singular question that arises for consideration in this
appeal by way of special leave under Article 136 of the Constitution of
INdia is whether the judgment and decree dated 27.11.1973 passed by the
learned Sub Judge, Kaithal in Civil Suit NO.1422 of 1973 is to be declared
as a nullity being vitiated by fraud and manifest illegality being wrist
large and thereby the claim of right, title and interest and possession
based on the said judgment and decree by the respondent-plaintiff in the
subsequent suits, namely, Civil Suit No.401 of 1984 and Civil Suit No.784
of 1984 which have been decreed and got affirmance by a composite
order passed by the Additional District Judge, Kurukshetra in Civil Appeal
NO.19/13 of 1987 and Civil Appeal No.18/13 of 1986 and further gained
concurrence by the learned single Judge of the High Court of Punjab and
Haryana at Chandigarh in R.S.A Nos. 2001 of 1988 and 2002 of 1988, it is
bound to collapse and founder.
In the said case, it was clearly stated that the Courts of law are
meant for imparting justice between the parties and one who comes to the
Court, must come with clean hands. A person whose case is based on
falsehood has no right to approach the Court. A litigant who approaches
the Court, is bound to produce all the documents executed by him which
21
are relevant to the litigation. If a vital document is withheld in order to
gain advantage on the other side he would be guilty of playhing fraud on
court as well as on the opposite party.
In Laxaurs Estate Ltd., V. Beasley (19)Lord Denning observed
at pages 712 and 713,No. Judgment of a Court, noo rder of a Minister can
be allowed to stand if it has been obtained by fraud. Fraud unravels
everything. In the same judgment Lord Parker LJ observed that fraud
vitiates all transactions known to the law of however high a degree of
solemnity.
Yet in another decision Hamza Haji v. State of Kerala and
another (20) it has been held that no court will allow itself to be used as an
instrument of fraud and no cruelty, by way of rule of evidence and
procedure, can allow its eyes to be closed to the fact it is being used as
an instrument of fraud. The basis principle is that a party who secures
the judgment by taking recourse to fraud should not be enable to enjoy
the fruits thereof.
4. Civil Appeal No.3535 of 2006 dt: 18.08.2006 between Hamza
Haji Petitioner Vs. State of Kerala and another wherein the Hon’ble Supreme
Court held as follows:
“ Where fraud is involved, it has been held, in some cases,
that a remedy at law by appeal, error, or certiorari does not preclude relief
in equity from the judgment. Nor, it has been said, is there any reason why
a judgment obtained by fraud cannot be the subject of a direct attack by
an action in equity even though the judgment has been satisfied.” “The position was reiterated by the same High Court in
Esmile-Ud-Din Biswas and another Vs. Shajoran Nessa Bewa and others
(132 INDIAN CASES 897) it was held that it must be shown that fraud was
practiced in relation to the proceedings in the Court and the decree must
be shown to have been procured by practicing fraud of some sort upon
the Court”.
22 “It is the settled proposition of law that a judgment or decree
obtained by playing fraud on the Court is a nullity and non est in the eye
of law. Such a judgment/decree by the first court or by the highest court
has to be treated as nullity by every court, whether superior or inferior. It
can be challenged in any court even in collateral proceedings”.
“ Fraud in deed, in the sense of a Court of Equity, properly
includes all acts, omissions and concealments which involves a breach of
legal or equitable duty, trust, or confidence, justly reposed, and are
injurious to another, or by which an undue and unconscientious
advantage is taken of another”.
“ Fraud must be actual positive fraud, a meditated and
international contrivance to keep the parties and the Court in ignorance of
the real facts of the case, and obtaining that decree by that contrivance”.
“This Court in Bhaurao Dagdu Paralkar Vs. State of
Maharashtra and Others (2005 (7) SCC 605) held that “ Suppression of a
material document would also amount to a fraud on the Court”.
5. First Appeal No.209 of 2008 with First Appeal No.215 of 2008
dt: 27.05.2007 between Raju Khalkho and others Vs. Sukra Munda and
others , wherein the Hon’ble Jharkhand High Court held as follows:
“ Fraud is a generic term which embraces all the multifarious
means which human ingenuity can devise and are resorted to by one
individual to gain an advantage over another by false suggestions or by
suppression of the truth. Fraud can be an affirmative cause of action or an
affirmative defense. The basis of fraud is depriving someone of his lawful
right, interest, or properly by fraudulent means. In the legal sense, fraud is
defined as an international perversion of truth for the purpose of inducing
another in reliance upon it to part with some valuable thing belonging to
him or to surrender a legal right”.
23
12.Therefore, he prays that in view of the above rulings and also admissions of the plaintiff, it is clear that Ex.A.1 is a registered sale deed executed by the plaintiff well within his knowledge and he cannot claim that the same is obtained by cheating and playing fraud and hence, the suit is liable to be dismissed.
13.While the contention of the learned counsel for the defendant No.1 that the plaintiff has executed the registered sale deed with full knowledge under the valid sale consideration and sold away the suit property in favour of the defendant NO.1 is as above, it is crucial to note regarding the admissions of
D.W.1 during his cross examination and also the recitals of Ex.A.1 sale deed under which the plaintiff allegedly sold the suit schedule property in favour of the defendant NO.1 and also the genuineness and validity of the receipts under
Exs. B.1 and B.2 and also the documents under Exs. A.11 to A .17 in the form of memorandum of understanding in the presence of village elders. Now, coming to the admissions of D.W.1 during his cross exclamation and suggestions made to P.W.1 during the cross examination are concerned, it is suggested to P.W.1 during the cross examination that he received Rs.
21,57,500/- from D.1 on the date of putting his signature on Ex.B.1, which he categorically denied. Further, while admitting during his cross examination that his wife and two sons have also signed on the declaration affidavit after his signature under ExB.2, P.W.1 has further stated that the signatures of his wife and sons are obtained as they also have to know about the receipt of cash of
Rs.3,00,000/- and he denied the suggestion that they have signed on Ex.B.2 as they have knowledge of receipt of Rs. 21,57,500/- cash and also acknowledging the registration of Ex.A.2. These admissions of P.W.1 and answers elicited during his cross examination that the signatures of his wife and sons are 24 obtained as they also have to know about the receipt of cash of Rs. 3,00,000/-, clearly shows that the signatures of plaintiff, his wife and sons were obtained in relation to the receipt of cash of Rs. 3,00,000/- but not in relation to their knowledge for receipt of Rs. 21,57,500/- cash and also acknowledging the receipt of Ex.A.2, which clearly shows that the alleged declaration and affidavit under Ex.B.2 does not pertain to the cash transaction of Rs. 21,57,500/- by the plaintiff from the defendant NO.1, but it pertains to the cash receipt of Rs.
3,00,000/- which clearly indicates the innocence and illiteracy of plaintiff in respect of transactions and also clearly establishes that himself and his wife and sons have signed in relation to cash receipt of Rs.3,00,000/- ( probably towards the alleged mortgage deed towards loan) but not towards the sale consideration for the sale of suit schedule property for Rs.21,57,500/0 as alleged by the learned counsel for the defendant No.1 and also as contended by the defendant NO.1.
14. It is further admitted by the plaintiff during his cross examination that even after execution of Ex.A.2, D.1 is collecting rents from the tenants and even till July, 2012, he was collecting rents for the plaintiff as contended in his chief affidavit. Therefore, the contention of the learned counsel for the defendant No.1 that the plaintiff is no way concerned with the suit schedule property after execution of Ex.A.2, cannot be accepted.
15.Now, it is also pertinent to read Ex.A.1 sale deed under which the plaintiff has purchased the suit property from one Balamani. Ex.A.1 shows that the plaintiff has purchased the suit property from one Balamani on 19.05.2008 for a valid sale consideration of Rs. 21,20,000/- whereas Ex.A.2 alleged sale deed shows that the vendee has already paid total sale consideration of Rs.
25 21,57,500/- by way of cash to the vendor before execution of this sale deed, which is acknowledged by the vendor. At this juncture, it is pertinent to note that the plaintiff has purchased the suit property under Ex.A.1 for a consideration of
Rs. 21,20,000/- in the year 2008 and if he is really selling the said property in the year 2011 after a gap of three years, definitely there will be some hike in the value of the property, but it will not be and cannot be sold in a margin of Rs.
37,500/- by a person, who purchased the same property and who sold the same subsequently. It is common sense that a person who purchases the property for a value of Rs. 21,20,000/- would sell the same at lease for a considerable profit but not for a marginal profit of Rs. 37,500/-. Therefore, the contention of the learned counsel for the defendant that the plaintiff has sold the property purchased by him in the year 2008 for Rs. 21,20,000/- in favour of the plaintiff for Rs. 21,57,500/- after a gap of three years appears to be ridiculous.
Further, as seen from the recitals of Ex.A.2 it reads that “the vendor has delivered the vacant and peaceful possession of the schedule property and hereby conveyed to the vendee and further declares that henceforth it will be lawful for the vendee to occupy and enjoy the schedule property as his absolute property”, which clearly indicates that there is no date on which the alleged possession of the suit schedule property is delivered to the defendant No.1.
Further, as seen from Ex.A.1, the sale consideration of Rs. 21,57,500/- was allegedly paid by the defendant No.1 to the plaintiff by way of cash for which there is no recital in the sale deed regarding the source of income or mode of paying cash to the plaintiff by the defendant No.1 and it is ridiculous to contend that he paid such a huge amount to the plaintiff without entering into any agreement of sale prior to the purchase and obtaining any receipt for the same prior to the execution of registered sale deed. Ex.A.2 sale deed is silent 26 regarding the date of payment and also the date whether any agreement of sale was entered into between the plaintiff and defendant No.1 and also regarding the date on which the cash was paid and the date on which the alleged cash receipt under Ex.B.1 was issued by the plaintiff to the defendant NO.1.
16.Now, coming to the admissions made by D.W.1 during his cross examination, he categorically admitted that he has not mentioned in his chief affidavit or written statement that his father has agricultural land and they get income from the lands and that the plaintiff has informed the same that the house is in his name and he has not seen the document to know in whose name the construction permission stands, the plaintiff has informed that initially the plot was in the name of Venkata Subbaiah and from the name of Venkata
Subbaiah, it was changed to Balamani and from Balamani, he got and from him, defendant No.1 got it and he has not filed the house documents in the
Court, which clearly shows the intention of the defendant No.1 in gathering the information from the plaintiff regarding the house details which clearly shows the dishonest intention developed by the defendant NO.1 by these admissions in his cross examination. Further, he also admitted that he did not obtain permission from his department prior to purchasing the house property from the plaintiff though he is a government employee and all the service rules are applicable to him and that he has not made any paper publication prior to purchase of the house calling for any objections and he has not taken any legal opinion prior to purchase of the house and at the time of purchase, the plaintiff has brought the original sale deed of the house and he has not obtained any certificate from the Municipal officials prior to purchase of the property to know in whose name the house is registered and that he did not mention in the 27 written statement and also in his chief affidavit the source of amount from purchasing the suit house. These admissions of D.W.1 clearly show that he is a government employee, he allegedly purchased the suit property under Ex.A.2 without obtaining permission from his department and without even making any paper publication prior to purchase of the house calling for any objections and without even taking any legal opinion which clearly shows the hasty nature of defendant NO.1 in getting Ex.A.2 sale deed executed in his favour and it clearly indicates the dishonest intention and cheating nature of defendant No.1 and it appears that he did all these things hastily by creating the sale deed under the guise of creating mortgage deed for the purpose of obtaining loan from the bank, to the plaintiff giving him an impression that the original documents of the plaintiff are kept in bank for the purpose of mortgage loan. Further, the admissions of D.W.1 that he did not mention regarding the source of income for purchasing the house property and also not showing the purchase of house in income tax returns and also not filing the income tax returns though he contends that he has shown the amount of Rs. 21,57,500/- paid to the plaintiff in his income tax returns, clearly show that he has not paid the such consideration to the plaintiff. Further, though he contends that he sold his landed property in the village for the purpose of suit property, he clearly admitted that he did not file any proof for the said sale transaction under which he sold the land and got
Rs. 21,57,500/- in order to pay the same towards sale consideration to the plaintiff. He further admitted that the plaintiff has given a complaint to AR
Superintendent of police against the defendant that he has falsely registered his house in his name by cheating him and a case is registered in Sangareddy ( T) police in Cr.No.235 of 2012 and that the police have also enquired the tenants of the plaintiff namely Wife of Jangaiah, Pushpamma and Narasimha Reddy 28 and recorded their statements and after registration of crime No.235 of 2012, he was suspended from service and a departmental enquiry was conducted and the police have also examined the Field Officer of the bank in relation to that case and the police have also filed charge sheet against him in Cr.No.235 of 2012 and Ex.A.19 is the certified copy of charge sheet along with statements,
F.I.R and remand Case Diary in Cr.No.235 of 2012 and further stated that he does not know whether Vijay Kumar/Defendant No.2 herein was examined as a witness by the police in that case. At this juncture, it is pertinent to note that these admissions of D.W.1 during the cross examination clearly show registration of crime against defendant NO.1 in regard to cheating committed by him and also fraud played by him on the plaintiff and also regarding examination of defendant NO.2 Vijay Kumar as a witness in that case.
17.As seen from Ex.A.19 which is the certified copy of charge sheet along with statements of the witnesses, it clearly shows that the said Vijay
Kumar was also examined as a witness by the police and he gave a statement against the accused/defendant No.1 that he was taken to the bank by the defendant No.1 along with another person namely Balraj and signed as a witness for the purpose of mortgage and from the State Bank of Hyderabad,
Sangareddy branch, Field Officer also went to the house of the plaintiff and later, Rs. 3,00,000/- at one time and Rs 2,00,000/- at one time were paid to the plaintiff in his presence and thereafter, he came to know that D.1 has got the suit property registered by making him to believe that he is taking him for the purpose of mortgage and obtained his signatures, which clearly shows that the defendant No.1 has not only cheated the plaintiff under the guise of mortgage by taking him to the bank and has also obtained a registered sale deed without 29 his knowledge as if he purchased the suit property from the plaintiff for a valuable sale consideration.
18.As discussed by me above, the sale consideration as mentioned in
Ex.A.1 and the sale consideration as mentioned in Ex.A.2 clearly shows the value as mentioned in both the documents is nothing but a difference of Rs.
37,500/- which is ridiculous and highly improbable to believe that the plaintiff has purchased the suit schedule property for a sale consideration of Rs.
21,20,000/- and sold the same to the defendant No.1 for a sale consideration of
Rs. 21,57,500/-. Therefore, the admissions of D.W.1 during the cross examination clearly establish that the transaction under which the plaintiff was allegedly taken and made to sing is not a mortgage deed but only a registered sale deed which was allegedly got executed by the defendant No.1 by suppressing the same taking advantage of illiteracy and innocence of the plaintiff. Further, the memorandum of understanding and the notarized documents executed in the presence of elders, which are marked as Exs. A.11 to A.14 also clearly show that there is a counseling and mediation with respect to the suit property between the plaintiff and defendant NO.1 under which the defendant No.1 has agreed to execute a cancellation deed for Ex.A.2. D.W.1 during his cross examination has categorically admitted his signatures on Exs.
A.12 and A.13. As seen from Exs. A.12 and A.13, they are in the form of agreement of undertaking executed by the plaintiff as well as the defendant
NO.1 and the signatures on Ex.A.12 and Ex.A.13 are categorically admitted by
D.W.1 during his cross examination, but he contends that the signatures were obtained forcibly, but though he claims that his signatures were obtained forcibly on the said documents, he did not file any proof to show that he took steps for 30 the said act that he gave a police complaint or notice for obtaining his signatures on the said documents forcibly which clearly indicates that he is not speaking truth. He also admitted that Exs. A.14 and A.15 are the xerox copies of the same documents which are sent for impounding along with covering letter of this Court vide Dis. No.1025/2016 dated 12.09.2016 and Ex.A.16 is the covering letter. Exs. A.14 and A.15 are marked subject to objection raised by the learned counsel for the defendants. Though the said documents are marked subject to objection, it is pertinent to note that the defendant No.1 has admitted that Ex.A.16 is the covering letter of this Court under which the original documents of Exs. A.14 and A.15 are sent for impounding through this Court, since the said documents are misplaced in the revenue office and they are not returned by the impounding authorities, when xerox copies of the same which are in the Court record with covering letter are confronted to D.W.1, he admitted the same. Therefore, such objection as raised by the learned counsel for the defendants in this regard cannot be sustained.
19.At this juncture, the learned counsel for the defendant No.1 has also submitted the rulings shown below;
1. 2014 0 Supreme ( AP) 428 between Kurella Venkata Satyavathi Vs.
Kanyamayini Devender Yadav, wherein it is held as follows:
“ An individual, however, high intellectual he may be,may not gain
the confidence of the other person within a short span of time. The
fiduciary relationship between two individuals always depends upon
relation by blood, by friendship and some times by operation of law such
as ward and guardian, trustee etc.
In a sale transaction of one of the parties to the document is in a
31
dominant position to other party, then the Court can suspect the
bonafides of the transaction. Taking into consideration the facts and
circumstances of the case, the plaintiff is not a week person so as to act
as per the directions of the defendant. Even assuming that the plaintiff
has some family problems, she can capable of solving the problems by
taking the advice and help of her husband. Domestic problems are
common in a family lift. The problems of the plaintiff as mentioned in the
plaint by itself are not sufficient to blindly believe the words of the
defendant, who is a stranger to their family. The material placed before
this Court is not sufficient to arrive at a conclusion that the defendant is
in a dominant position to gain unlawful advantage by influencing the
plaintiff at the time of execution of the sale deed. By any stretch of
imagination, it cannot be presumed that fiduciary relationship was existed
or subsisted between the plaintiff and the defendant as on22.11.2006.
In the light of the foregoing discussion, we have no hesitation
to hold that the facts of the case on hand will fall outside the purview of
Section 111 of the Indian Evidence Act.
The gist of the plaint is that the defendant obtained the sale
deed by playing fraud on her. A perusal of the plaint, at a glimpse, gives
an impression that the plaintiff is a defrauded party. Before adverting to
the findings of the trial Court on the plea of fraud, it is apposite to refer to certain precedents in order to resolve the lis involved in this case.
I. Bharat Dharma Syndicate Ltd Vs. Harish Chandra ( AIR 1937
PC 146) wherein the ratio laid down is that the person who alleges the
fraud has to give full particulars of allegations which he intended to
prove.
32
ii. A.L.N. Narayana Chettyar V.Official Assignee, High Court Rangoon ( AIR
1941 PC 93) wherein the principle enunciated is that fraud of any nature,
like any other charge of a criminal offence whether made in civil or
criminal proceedings, must be established beyond reasonable doubt”.
2. AIR 1976 SC 712 between Union of India, appellant Vs. M/s
Chaturbhai M. Patel and Co. Respondent, wherein it is held as follows:
“ It is well settled that fraud like any other charge of a criminal
offence whether made in civil o criminal proceedings, must be established
beyond reasonable doubt; per Lord Atkin in A.L.N. Narayan Chettyar Vs.
Official Assignee, High Court Rangoon, AIR 1941 PC 93. However
suspicious may be the circumstances, however strange the coincidences,
and however grave the doubts, suspicion alone can never take the place
of proof”.
3. 2004 (5) ALD 18 between Punuru Venkata Reddy appellant Vs.
Punuru Vijayalakshmi respondent, wherein it is held as follows:
“ D.W.1 also had taken a stand that the consideration recited in
Ex.A.1 is not the real consideration but something more was paid but for
the purpose of evading the stamp duty the sale deed was taken for lesser
amount. When the recitals of the document Ex.A.3 are clear and
categorical, this oral evidence cannot be given much weight, especially in
the light of the bar imposed by Section 91 and 92 of the Indian Evidence
Act, 1872”.
4. 1968 0 Supreme (Raj) 111 between Narayan – Appellant Vs. The
Chamber of Commerce Ltd., Kishangarh – respondents, wherein it is held as follows:
“ In Gangamoyi Devi Vs.Troluckhya Nath Chowdhry (2). it was
observed by the Privy Council that registration is a solemn act to be
performed in the presence of a competent official appointed to act as
Registrar, whose duty it is to attend the parties and see that proper
persons are competent to act and are identified to his satisfaction and
things done in his presence will be presumed to have been done duly and
33
in order. Consequently, the admission of the executant before the
Registrar must be deemed to have been proved by the endorsement of the
Registrar in view of the Provisions of Secs. 59 and 60.
It must now be regarded as a settled law ever since the
decision of their Lordships of the Privy Council in Gopal Das Vs.Sri
Thakurji (Supra) that evidence of due registration is itself evidence of
execution against the parties”.
5. AIR 1999 SC 1823 BETWEEN Pavan Kumar Gupta- Appellant
Vs. Rochiram Nagdeo – Respondent, wherein it is held as follows:
“ The clear pleading of the plaintiff is that he purchased the suit
property as per Ex.P.11- sale deed. Burden of proof cannot be cast on the
plai8ntiff to prove that the transaction was consistent with the apparent
tenor of the document. Ex.P.11- sale deed contains the recital that sale
consideration was paid by the plaintiff to Narain Prasad the transferor.
Why should there be a further burden of proof to substantiate that recitals
in the document are true? The party who wants to prove that the recitals
are untrue must bear the burden to prove it”.
6 2012 (3) ALD PAGE 327 between Lakkoji Mohana Rao Vs. Lakkoji
Viswanadham and others wherein it is held as follows:
“A)REGISTRATION ACT, 1908, Sections 17 and 49 -Stamp Act,
1899, Section 35:-A document purported to have been agreed upon as a
partition deed after the suit against the petitioner is allowed as the result
was held not to have satisfied and arrived as a compromise out of the
Court before the elder, it cannot be received in evidence as it is contrary
to Section 35 of the Act. The underlying principles examined.
Section 35 of the Indian Stamp Act is very clear and creates a clear
bar and therefore unstamped document is inadmissible in evidence for
any purpose. Admittedly, the alleged document i.e., partition deed is
chargeable with duty. In view of the settled legal position i.e., the bar
engrafted under section 35 of the Indian Stamp Act is an absolute bar and
therefore the document cannot be used for any purpose unlike the bar
contained in Section 49 of the Registration Act”.
34
7. AIR 1978 SUPREME COURT (SC) 1393 between Ram Rattan
( dead) by legal representatives, Appellants Vs. Bajrang Lal wherein it is
held as follows:
“RIGHT TO WORSHIP BY TURN IS IMMOVABLE PROPERTY
GIFT OF WHICH CAN BE MADE BY REGISTERED INSTRUMENT –
Instrument not duly stamped admitted in evidence subject to objection –
effect -Right to worship an idol by turn – held to be immovable property –
as held in the case of Ram RattanVs. Bajrang Lal, AIR 1978 SC 1393,
when the document was tendered in evidence by the plaintiff while in
witness box, objection having been raised by the defendants that the
document was inadmissible in evidence as it was not duly stamped and
for want of registration, it was obligatory on the learned trial judge to
apply his mind to the objection raised and to decide the objection in
accordance with law. Tendency sometimes is to postpone the decision to
avoid interruption in the process of recording evidence and, therefore, a
very convenient device is resorted to, or making the document in
evidence subject to objection. This, however would not mean that the
objection as to admissibility on the ground that the instrument is not duly
stamped is judicial decided; it is merely postponed. In such a situation at
a later stage before the suit is finally disposed of it would none the less be
obligatory upon the Court to decide the objection. If after applying mind to
the rival contentions the trial Court admits a document in evidence.
Section 36 of the Act would come into play and such admission cannot be
called in question at any stage of the same suit or proceeding on the
ground that the instrument had not been properly stamped. The Court,and
of necessity it would be trial Court before which the objection is taken
about admissibility of document on the ground that it is not duly
stamped, has not judicially determine the matter as soon as the
document is tendered in evidence and before it is marked as an exhibit in
the case and where a document has been inadvertently admitted without
the Court applying its mind as the question of admissibility, the
instrument could not be said to have been admitted in evidence with a
view to attracting Section 36, as also held in Javer Chand Vs. Pukhraj
35
Surana, AIR 1961 SC 1655. The endorsement made by the learned trial
judge that “ objected, allowed subject to objection”, clearly indicates that
when the objection was raised it was not judicially determined and the
document was merely tentatively marked and in such a situation this
Section would not be attracted.
When the document was tendered in evidence by the plaintiff
while in witness box,objection having been raised by the defendants that
the document was inadmissible in evidence as it was not duly stamped
and for want of registration, it was obligatory upon the learned trial judge
to apply his mind to the objection raised and to decide the objection in
accordance with law. Tendency sometimes is to postpone the decision to
avoid interruption in the process of recording evidence and, therefore, a
very convenient device is resorted to, of marking the document in
evidence subject to objection.
The endorsement made by the learned trial Judge that”
objected, allowed subject to objection”, clearly indicates that when the
objection was raised it was not judicially determined and the document
was merely tentatively marked and in such a situation S.36 would not be
attracted”.
8. 2017 0 AIR (SC) 1034 between Executive Officer, Arulmigu
Chokkanatha Swamy Koil Tgrust Virudhunagar – appellant Vs. Chandran
and others – Respondents, wherein it is held as follows:
“ In the present case, the plaintiff having been found not to be
in possession and having only sought for declaratory reliefs, the suit was
clearly not maintainable and has rightly been dismissed by the trial Court.
IN this context the reference is made to the judgment of this Court
reported in Ram Saran and Anr. Versus Smt. Ganga Devi AIR 72 SC 2685 ,
wherein Para 1 and 4 following was stated:
1. This is a plaintiffs’ appeal by special leave. Ram Saran and
Raghubir Saran, the plaintiffs are brothers. They jointly owned suit
property with Chhabili Kuer widow of Lalita Prasad. After the death of
Chhabili Kuer on February 8, 1971, Ganga Devi the defendant in the suit
came forward as the legal representative of Chhabili Kuer and got the
mutation effected in her name in the place of the deceased Chhabili Kuer.
IN 1958, the plaintiffs brought this suit for a declaration that they are the
36
sole owners of the suit properties. They did not claim possession either of
the entire or even any portion of the suit properties.
4. We are in agreement with the High Court that the suit is hit by
Section 42 of the Specific Relief Act. As found by the fact finding Courts,
Ganga devi is in possession of some of the suit properties. The plaintiffs
have not sought possession of those properties. They merely claimed a
declaration that they are the owners of the suit properties. Hence, the suit
is not maintainable.
36. The plaintiff, who was not in possession, had in the suit claimed
only declaratory relief along with mandatory injunction. Plaintiff being out
of possession, the relief of recovery of possession was a further Lorelei
which ought to have been claimed by the plaintiff. The suit filed by the
plaintiff for a mere declaration without relief of recovery of possession
was clearly not maintainable and the trial Court has rightly dismissed the
suit. The High Court neither adverted to the above finding of the trial
Court nor has set aside the above reasoning given by the trial Court for
holding the suit as not maintainable. The High Court in exercise of its
jurisdiction under section 100 C.P.C could not reversed the decree of the
courts below without holding that the above reasoning given by the
Courts below was legally unsustainable. We, thus, are of the view that the
High Court committed error in decreeing the suit”.
The above rulings as contended by the learned counsel for the defendants are not applicable to the facts and circumstances of this case since
D.W.1 has categorically admitted the said documents when confronted to him that they are the same documents sent for impounding and they are the xerox copies of the said documents which are sent for impounding under the covering letter of this Court under Ex.A.16. Therefore, the objections raised by the learned counsel for the defendants regarding the admissibility of Exs. A.14 and
A.15 in view of the admission of D.W.1 and also since the said documents are sent by covering letter of this Court under Ex.A.16 to the impounding authorities, cannot be sustained and does not suit the ratio decidedness of the 37 above rulings.
20.Further, the admissions of D.W.1 during the cross examination that the police have also enquired the tenants of the plaintiff namely wife of
Jangaiah, Pushpa and Narasimha reddy and recorded their statements clearly show that the contention of the plaintiff that he has let out the suit property to the defendant No.1 as well as some other tenants on rent is fortified and the contention of the defendant that he has purchased the suit property under the registered sale deed for a valid sale consideration and he is in possession as absolute owner of the suit property from the date of his purchase, cannot be sustained and cannot be believed. Since the beginning, it is the contention of the plaintiff that he has let out the suit property to the defendant NO.1 as well as to some other tenants and the suggestion made to P.w.1 that he did not examine any tenants in this case, cannot be sustained since the defendant No.1 himself has admitted during his cross examination as D.W.1 regarding the names of the tenants living therein along with defendant No.1 in the suit property.
21.Further, the defendant No.2 the said Vijay Kumar, who is shown as one of the defendants in this case, who claims to be one of the attestors to the mortgage deed, as contended by the plaintiff’s counsel and the said Vijay
Kumar remaining exparte after receipt of summons from this Court and appearing before this Court as a witness on behalf of defendant NO.1 clearly shows that the defendant No.2 who is a police constable and colleague of
D.W.1 being influenced by D.1 has deliberately remained exparte, having given his statement before the police under Ex.A.19 charge sheet and denying his signatures and denying regarding execution of mortgage deed by defendant 38
NO.1 before the bank and also the registration authority, itself clearly shows that the defendant No.2 is won over by the defendant NO.1 and deliberately did not appear before this Court even after receipt of summons and remained exparte and gave evidence in support of D.W.1 being a colleague of D.W.1.
Therefore, the evidence of defendant NO.2 as D.W.3 cannot be believed.
22.Though the defendant No.1 has examined one T. Pandari as
D.W.2, who is allegedly purchased the property of defendant No.1 by registered sale deed in Sy.No. 474 for a sale consideration of Rs. 5,00,000/-, during the cross examination he clearly admitted that he has not filed any registered document for the land purchased in his name in Sy.No.474 or any mutation proceedings or the documents that the said property registered in his name in the month of March, 2013, clearly shows that the alleged transaction is no way concerned with the suit transaction or payment of consideration for the suit transaction that is subsequent to the alleged sale deed that is Ex. A.2 for the defendant to say that he has adjusted money for sale consideration from out of the sale amount received from D.W.2. Therefore, the evidence of D.W.2 is also cannot be relied upon. In view of my above discussion and the admissions of
D.W.1 and other witnesses on behalf of the defendant No.1 during their cross examination and the documents therein clearly establish that the alleged sale deed under Ex.A.2 said to have been executed by the defendant No.1 is not genuine document and the same is obtained by playing fraud on the plaintiff, for which the defendant No.1 has also faced departmental enquiry and kept under suspension after registering the crime in Cr.No.235 of 2012 on the complaint given by the plaintiff and the said sale deed is not a valid document and the same is collusive document and outcome of cheating and fraud played upon the 39 plaintiff. Therefore, Ex.A.2 sale deed cannot be relied upon and it is not genuine document and the plaintiff is able to establish that the alleged sale deed is obtained by playing fraud and therefore he is entitled for cancellation of the said document and the same is null and void and the plaintiff is entitled for a decree for cancellation of the said sale deed. Hence, these two issues are answered in favour of the plaintiff as against the defendants.
23.ISSUE NO.4:
This issue relates to whether the plaintiff is entitled for perpetual injunction against the defendants 1 to 3 restraining them, their men, servants and agents etc., from interfering with the lawful possession and enjoyment of the plaintiff over the suit schedule property and from alienating, creating further charge or changing the nature of the suit schedule property.
The defendant No.1 has failed to establish his possession over the suit schedule property and even according to his admissions there are tenants in the suit property, whose names he referred in his cross examination and even though he claims the possession, as per the recitals under alleged sale deed is not legal possession and the same is not supported by any valid, legal document and the defendant No.1 cannot claim any right or possession over the suit property since it lacks valid and legal document.
On the contrary, the documents filed by the plaintiff under Ex.A.1 and also the other documents that is Exs. A.2 to A.21 clearly establish that the defendant No.1 has obtained Ex.A.2 sale deed by playing fraud upon the plaintiff and cheated him without any valid sale consideration and without there being any legal and valid transaction and the possession of the plaintiff is legal possession and it is substantiated by Ex.A.1. Therefore, the plaintiff is entitled 40 for grant of perpetual injunction as against the defendant Nos. 1 to 3. Hence, this issue is answered accordingly.
24.ISSUE NO. 5: To what relief:
In the result, this suit is decreed, with costs by declaring the plaintiff as the absolute owner and possessor of the suit schedule property.
Further, the registered sale deed vide document No.1 12281/2011
dated 12.12.2011 is hereby cancelled and declared as null and void. Further,
perpetual injunction is granted in favour of the plaintiff restraining the defendants 1 to 3, their men, servants, agents on their behalf from alienating, creating further charge or changing the nature of the suit schedule property and also restraining the defendants and their men, agents etc., from interfering with the lawful possession and enjoyment of the plaintiff over the suit schedule property.
The suit is decreed accordingly as above, with costs.
Dictated to Stenographer, transcribed by her, corrected and pronounced by me in the
open Court on this the 31 st day of December, 2018.
Spl.Judge for SC/ST (POA) Act Cum-V Addl. District & Sessions
Judge, Sangareddy,
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF
P.W-1 : Vadde Sathyanarayana P.W.2: Bonguru Venkateshwar Rao P.W.3: Golla Mallesham
DEFENDANT: D.W.1: Vadde Janardhan D.W.2: T. Pandari D.W.3: Baitha Vijay Kumar 41
DOCUMENTS MARKED FOR
PLAINTIFFS
Ex.A.1: C.C. of sale deed document NO.7013/2008 dated 19.05.2008 Ex.A.2: C.C. of sale deed No.12281/2011, dated 12.12.2011 Ex.A.3: C.C. of mortgage deed No.8762/2012 Ex.A.4: C.C. of F.I.R in Cr.NO.235/2012 of P.S. Sangareddy Town Ex.A.5: C.C. of Encumbrance Certificate Ex.A.6: Notice dated 18.07.2012 issued by defendant No.1 Ex.A.7: C.C of F.I.R in Cr.No.9/2016 of P.S. Sangareddy Town Ex.A.8: Set of notices for departmental enquiry Ex.A.9: office copy of the complaint dated 13.3.2013 Ex.A.10: Order dt: 17.4.2013 of Human Rights Commission in HRC no. 1222/2013, dt: 17.04.2013 Ex.A.11: 1 -B (ROR) dated 13.09.2017 Ex.A.12:Agreement dated 3.11.2012 Ex.A.13: Agreement dated 3.11.2012 Ex.A.14: Xerox copy of agreement dated 3.11.2012 Ex.A.15: Xerox copy of agreement dated 3.11.2012 Ex.A.16: Covering letter of this Court dasted 12.09.2016 Ex.A.17: Pahani for the land in Sy.No. 472 Ex.A.18 Pahani for the land in Sy.No.474 Ex.A.19 :C.C of charge sheet in Cr.No.235 of 2012 of P.S. Sangareddy Town Ex.A.20: C.C of stay order in Criminal Revision Case No.2068/2015 dated 05.10.2015 Ex.A.21: Copy of Cash receipt for Rs. 21,57,500/-
DEFENDANTS:
Ex.B.1: Cash receipt for Rs. 21,57,500/- Ex.B.2 Declaration dt: 19.12.2011 Ex.B.3: Sanction letter of SBI dt: 24.4.2017 Ex.B.4: Original pattedar pass book Ex.B.5: Set of (2) original title deed books Ex.B.6: Set of C.C of (2) pahanies for the year 2017 Ex.B.7: Set of CC of (2) pahanies for the year 2011 Ex.B.8: C.C. of Form NO.IB Certificate for the year 2017 Ex.B.9: Signature of D.W.2 on Ex.B.1 Ex.B.10: Signature of D.W.3 on Ex.A.2
Spl. Judge for SC/ST (POA) Act Cum-V Addl. District & Sessions Sangareddy.