1
OS No. 368 of 2007
IN THE COURT OF THE XIV ADDITIONAL DISTRICT JUDGE
RANGA REDDY DISTRICT AT L.B.NAGAR
PRESENT: K.SUDARSHAN ,
XIV ADDL.DISTRICT JUDGE,
RANGA REDDY DISTRICT.
Dated this the 31st day of March, 2022.
O.S.No. 368 of 2007
Between:
1.Qamar Siddiqua (died per LRs)
2.Ahmed Bin Mohammed Basalam Aged 51 Years, Occ: Business R/o. H.No. 23-2-123/20, Panjeshah, Hyderabad.
3.Saleh Bin Mohammed Basalam Aged 46 Years, Occ: Business R/o. H.No.23-2-123/20, Moghalpura, Hyderabad.
4.Idrees Bin Mohammed Basalam Aged 38 Years, Occ: Business R/o. H.No.23-2-123/20, Moghalpura, Hyderabad.
5.Shoeb Bin Mohammed Basalam Aged 33 Years, Occ: Business R/o. H.No.23-2-123/20, Moghalpura, Hyderabad.
6.Omer Bin Mohammed Basalam Aged 29 Years, Occ: Business R/o. H.No.23-2-123/20, Moghalpura, Hyderabad.
7.Haleema Bagegum W/o. Naser Hamza Aged 41 Years, Occ: Household R/o. H.No.9-4-29/17/B, Tolichowki, Hyderabad.
8.Fatima Begum W/o. Abdul Mujeeb Bind Abdul Habeeb Ba Omer Aged 37 Years, Occ: Household R/o. H.No.18-7-212/30/B/21, Jahangir Nagar Talab Katta, Hyderabad.
9.Sadia Begum W/o. Asadullah Bawazir Aged 31 Years, Occ: Household R/o. Sanga Reddy, Hyderabad.
10.Hajera Begum W/o. Sajid Aged 29 Years, Occ: Household R/o. H.No.23-2-123/20, Moghalpura, Hyderabad.
(Plaintiff Nos.2 to 10 added as per Orders in IA No. 718 of 2015 dated 21.01.2016) 2
OS No. 368 of 2007
Plaintiff Nos. 2 to 10 rep. through their GPA Mohd. Bin Salam S/o. Late Salam Bin Ahmed, Aged 50 Years, Occ: Business R/o. 8-2-332/1/B, Road No.3, Banjara Hills, Hyderabad.
... Plaintiffs.
AND
1.M. Krishna Murthy, S/o. M. Bangaru Aged 71 Years, Occ: Retd. BHEL Employee R/o. H.No.1-54, Madinaguda Village Serilingampally Mandal, R.R. District.
2.C. Visweswara Rao, S/o. C. Venkata Ratnam Aged 47 Years, Occ: Business R/o. Flat No.306, Block No.1, CBR Estates Deepthi Sree Nagar, Hafeezpet, Hyderabad.
3.B. Ramesh, S/o. late Bhaskar Rao Aged 45 Years, Occ: Business R/o. Flat No.9, Hema Durga Residency Engineer’s Enclave, Chandanagar, Hyderabad.
4.C. Venugopal Krishna, S/o. C. Venkata Ratnam Aged 44 Years, Occ: Business R/o. Flat No.106, Block No.2 Sri Kalyan’s RBR Complex, Miyapur, Hyderabad.
5.A.V. Balakrishna, S/o. A. Mallikarjuna Rao Aged 42 Years, Occ: Business R/o. Flat No.205, Block No.1, CBR Estates Deepthi Sree Nagar, Hafeezpet, Hyderabad.
6.B. Bhaskara Babu, S/o. B. Venkateshwar Rao Aged 30 Years, Occ: Business R/o. Plot No.129, Hasthinapuri Colony Sainikpuri, Secunderabad.
7.M/s. Sri Vishnu Priya Builders Office at 110, Block B, B. Vijaya Durga Estate Nizampet Road, Kukatpally, R.R. District. Represented by its Managing Partner M. Hari Kishan, S/o. M. Chenna Kistaiah Aged 55 Years, Occ: Business
8.M/s. Proactive Realtors Private Limited having office at Flat No.402, Geetanjali Enclave 12-2-833, Mehdipatnam, Hyderabad Represented by its Director Rajasekhar S/o. late S. Venkata Rao, Aged 49 Years.
9.M/s. Vensiss Ventures Private Limited Represented by its Director Pamidimukkala Mohan Krishna S/o. P. Rama Mohan Rao, Aged 37 Years, Occ: Business 3
OS No. 368 of 2007
R/o. Flat No.304, Jagruthi Towers, Shymlal Buildings Begumpet, Hyderabad.
10.M. Sudhakar S/o. M. Krishna Murthy Aged 39 Years, Occ: Business R/o. H.No.1-54, Madinaguda Village Serilingampally Mandal, R.R. District.
11.M. Prabhakar S/o. M. Krishna Murthy Aged 43 Years, Occ: Business R/o. H.No.1-54, Madinaguda Village Serilingampally Mandal, R.R. District.
12.M. Narsimha Murthy, S/o. Ramalingam Aged 35 Years, Occ: Business R/o. Flat No.308, Reliance Residency Ramakrishna Mutt Road, Hyderabad.
13.N.V. Ramana Reddy, S/o. N.C. Nagi Reddy Aged 40 Years, Occ: Business R/o. KVR Constructions, Vinayak Nagar Proddutur, Cuddapah.
14.Manikonda Anjaneyulu, S/o. M. Nageshwar Rao Occ: Business, R/o. 8-2-24/17/43 Nagarjuna Hills, Panjagutta, Hyderabad.
15.Axis Bank Ltd. Represented by its Authorized Officer M. Challa Bala Subramanyam, S/o. C.P. Hari Sarma Aged 37 years, Occ: Bank Official having addressed for Axis Bank Ltd. Southern recovery cell 192 Karumuthu Nilayam, Second Floor, Anna Salai, Chennai.
16.K. Jagan Reddy, S/o. K. Subhan Reddy Aged 62 Years, Occ: Business R/o. H.No.3-30, Old R.C. Puram Beside SR Chambers, R.C. Puram (M), Medak District.
17.K. Satyanarayana Reddy, S/o. K. Janga Reddy Aged 51 Years, Occ: Business R/o. H.No. 25-35/18, R.R. Nagar Near MRF Colony, R.C. Puram, Medak District.
18.A. Ram Reddy, S/o. A. Bal Reddy Aged 41 Years, Occ: Business R/o. H.No. 13-49, SN Colony R.C Puram (M), Medak Dsitrict.
19.Ch. Rangaiah, S/o. Ch. Janardhan Aged 62 Years, Occ: Retd Employee R/o. H.No. 14-94, Sri Ram Nagar Colony Patancheru (M), Medak District.
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OS No. 368 of 2007
20.M. Mohan Reddy, S/o. G. Narayana Reddy Aged 62 Years, Occ: Business R/o. H.No. 2-105/1/B, R.R. Nagar Colony Chanda Nagar, Hyderabad.
21.G. Malla Reddy, S/o. G. Narayana Reddy Aged 55 Years, Occ: Business R/o. 25-35/3/1/C, R.R. Nagar Colony R.C. Puram (M), Medak District.
(Defendant Nos. 14 to 21 added as per order in IA No. 74 of 2016 dated 13.10.2016)
...Defendants
This suit coming before me for final hearing on 28.02.2022 in the presence of Sri Mohammed Shujauddin, Counsel for plaintiffs and Sri Raja
Sripathi Rao, Counsel for Defendant Nos. 1, 10 and 11, Sri Kondal Reddy,
Counsel for Defendant Nos. 12 and 13, Sri Ramana Dora, Counsel for
Defendant No.15 and Sri K. Papi Reddy, Counsel for defendants Nos. 16 to 21 and other defendants remained ex parte and upon perusal of the material papers on record having stood over for consideration till this day, this court delivered the following:-
J U D G M E N T
1. Initially the suit is filed by the sole plaintiff Smt. Qamar Siddiqua against 13 defendants seeking (i) declaration of the title to the suit scheduled land of Ac.0-28 gts in Sy.No. 76 situated at Madinaguda Village,
Serlingampally Mandal, Ranga Reddy District and within the specified boundaries, (ii) declaration of the alleged unregistered sale deed dated 25.10.1980 executed by Balakrishna Reddy and others in favour of the defendant No.1 and other documents in favour of the defendant Nos. 2 to 13 as not binding and enforceable against the plaintiff, (iii) delivery of vacant possession of the suit scheduled land to the plaintiff by removing the structures, (iv) grant of perpetual injunction restraining the defendants from alienating or otherwise encumbering the suit scheduled land and (v) award of 5
OS No. 368 of 2007
damages @ Rs.50,000/- per month from the date of filing of the suit till the date of delivery of possession of the suit scheduled land.
2(a). The case of the plaintiff as per the original plaint dated 10.04.2007 briefly is that originally the plaintiffs father late Salem Bin Ahmed was the absolute owner and possessor of the land (extent not specified) in
Sy.Nos. 76 to 78 and 86 to 89 situated at Madinaguda Village, Serlingampally
Mandal, Ranga Reddy District, that after his demise the plaintiff and her other brothers and sisters succeeded the said land, that the plaintiff, her mother and her sisters have filed OS No. 23 of 2001 in the Court of the I Addl. Senior
Civil Judge, Ranga Reddy District seeking partition of Ac.9-13 gts of land in
the aforesaid survey numbers, that the plaintiff, her brothers and sisters are in possession and enjoyment of the said land as its absolute joint owners in terms of preliminary decree and final decree dated 06.08.2002 passed in the said suit, that in pursuance of the said final decree, the said suit scheduled land was allotted to the plaintiff, that thus the plaintiff is the absolute owner and possessor of the said land.
2(b). The revenue records of the said land of Ac.0-28 gts stood in the name of the plaintiff father Salem Bin Ahmed and after his demise, the names of the plaintiff, her brothers and sisters have been reflected in the revenue records from 1954 to 2006, that subsequent to the final decree
dated 06.08.2002, the plaintiff intended to develop the said land, but she
being an illiterate purdanashin woman, proceeded with construction of a boundary wall around the said land to safeguard it, that the defendants highhandedly obstructed digging of foundation in the said land on the basis of false and fabricated documents, that the defendants declared to have 6
OS No. 368 of 2007
mutation proceedings of the said land in the name of the defendant No.1 and they falsely claimed the said land denying the title of the plaintiff.
2(c). The plaintiff on such false claim of the defendants, verified through her brothers and well wishers the records and came to know that the defendant No.1 claimed the said land under an alleged document of sale
dated 25.10.1980 and based on the said document, he illegally transferred
the said land in favour of the defendant Nos. 7 to 13. After obtaining the certified copies of the said documents, the plaintiff was surprised to note that the said documents are fabricated by the defendants in order to grab the suit scheduled land of the plaintiff and a false claim. In the alleged document of sale dated 25.10.1980, there is no reference to source of title of the alleged vendors of the defendant No.1. The fabricated documents are not binding and enforceable against the plaintiff.
2(d). Under the said fabricated documents, the defendants encroached and grabbed the suit scheduled land in the 1st week of
January, 2007. On verification of the records with the help of her sons and others, she learnt that the defendant No.1 was claiming rights over the land basing on the alleged proceedings of mutation dated 31.01.2007 issued by the Mandal Revenue Officer, Serlingampally. She preferred an appeal before the Revenue Divisional Officer, Chevella seeking cancellation of the said mutation proceedings. She made several representations to the authorities concerned seeking appropriate action against the defendants, but in vain. After such encroachment, the defendants are enjoying the said land without any right and possession.
Their possession is unauthorized and therefore they are liable to pay 7
OS No. 368 of 2007
damages to the plaintiff at the rate claimed by her, as referred above. The defendants after grabbing the said land, are changing its nature and boundaries in order to cause multiplicity of proceedings. They are also making hectic efforts to transfer and encumber the said land to others.
Hence, the suit.
3. Later the original sole plaintiff Smt. Qamar Siddiqua died and the plaintiff Nos. 2 to 10 are brought on record as her legal representatives as per order dated 21.01.2016 of this court in IA No. 718 of 2015. The plaintiff Nos. 2 to 10 are represented by their GPA holder Mohammed Bin
Salem.
4. Subsequently, the plaintiffs got impleaded the defendant Nos. 14 to 21 in the suit as per order dated 13.10.2016 of this court in IA No. 74 of 2016.
5. After completion of trial and the written arguments were filed from both sides, the plaintiffs filed IA No.438 of 2021, seeking abandonment of their claim to Ac.0-20 gts of land in the suit scheduled land of Ac.0-28 gts and the said petition was allowed by this court by its order dated 22.12.2021. The operative portion of the said order reads as follows:
“In the result, the petition is allowed with costs of Rs.5,000/- (Rupees
Five Thousand Only) and consequently the schedule of property in the plaint of the above said suit as it is shall be retained. However, the petitioners shall file a rough sketch map of the suit scheduled property demarcating the same with different colors for Ac.0-20 gts and Ac.0-08 gts separately and the boundaries of each of such parcel of land shall 8
OS No. 368 of 2007
also be mentioned distinctly. The suit scheduled land shall be mentioned as schedule A, Ac.0-20 gts of land shall be mentioned as schedule B and Ac. 0-08 gts of land shall be mentioned as schedule C.
The petitioners are permitted to abandon their claim for Ac.0-20 gts of land in the suit scheduled land. However, the same shall not prejudice the rights of the contesting defendants.” (Emphasis supplied)
6. In consequence thereof, the plaintiffs got amended their plaint and filed fair copy of amended plaint. As per the said amended plaint, the relevant prayers in the plaint were amended as follows:
“a). To pass a decree by declaring that the plaintiff is the absolute owner of the suit schedule property in Sy.No.76, admeasuring 8
Guntas, situated at Madinaguda Village, Serilingampally Mandal, R.R.
District, as showin the plaint C schedule and as per the plan marked in Red Colour.
c). To direct the defendants or any other person claiming through them to vacate and hand over the peaceful possession and enjoyment of the plaint C schedule property to the plaintiffs by removing the structures.
d). To grant perpetual injunction restraining the defendants from alienating, encumbering, inducing third parties changing the nature of the plaint C schedule property in any manner whatsoever in respect of the plaint C schedule property.”
The plaintiffs also amended the schedule of property in the plaint as follows:
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OS No. 368 of 2007
SCHEDULE A PROPERTY
All that part and parcel of land in Sy.No.76, admeasuring 28, Guntas, situated at Madinaguda Village, Serilingampally Mandal, R.R. District, and bounded by:
North:Sy.No.229/1
South:Sy.No.75 & 77
East:Sy.No. 75
West:Sy. No. 77 & 78
SCHEDULE B PROPERTY
All i.e. part and parcel of land in Sy.No. 76, admeasuring 20 Guntas, situated at Madinaguda Village, Serilingampally Mandal, R.R. District, marked in Green colour and bounded by:
North:Plaint C schedule & Sy.No.77
South:Neighbours property.
East:Sy.No.75 weaker sections.
West:Road.
SCHEDULE C PROPERTY
All i.e. part and parcel of land in Sy.No.76, admeasuring 8 Guntas, situated at Madinaguda Village, Serilingampally Mandal, R.R. District, marked in Red Colour and bounded by:
North:Road.
South:Plaint B schedule property.
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OS No. 368 of 2007
East:Sy.No.75 weaker section and road.
West:Sy.No.77 NSK Bliss land.
The plaintiffs also filed a rough sketch map showing the aforesaid properties.
7(a). The defendant No.1 filed his written statement dated 13.12.2007 alleging that the plaintiff failed to explain the extent of property in each survey number with specific metes and bounds. She did not filed the succession certificate to show that she along with her brothers and sisters are the successors in interest of their deceased father. The said other brothers and sisters and other coparceners of the property of the deceased are not made as parties to the suit, who are necessary parties to it. Hence, the suit bad for non joinder and mis joinder of necessary parties as the suit is for declaration of title of the plaintiff and she claims her title by virtue of succession and hereditary rights. The period of limitation for the suit commences from the date of death of the plaintiffs father and therefore the suit is liable to be dismissed as deemed barred by limitation.
7(b). The impugned judgment and decree dated 06.08.2002 passed in OS No. 23 of 2001 are not valid and binding upon the defendants as the defendant No.1 is in physical possession and enjoyment for more than 25 years and by virtue of registered sale deeds, unregistered compounded sale deeds and by virtue several revenue proceedings. Even otherwise, the defendant No.1 perfected his title by virtue of adverse possession since 25.10.1980, the date of purchase of the suit scheduled land by him.
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The compromise decree dated 06.08.2002 obtained by the plaintiff without making the defendants as a necessary parties and as a result of collusion, fraud on the defendant No.1 and the court, is not valid and binding upon the defendants who are the rightful owners of the said land.
Hence, the said decree is liable to be set aside. The entries in the revenue records do not confer any title and such entries shall be presumed to be true until the contrary is proved and the said presumption is rebutable.
The mutation entries are meant for the purpose of enabling the State to collect the land revenue from the person in possession.
7(c). The suit scheduled land is not a joint family property of the plaintiff as claimed by her. Her father late Salem Bin Ahmed sold the said land along with other properties through a registered sale deed dated 07.05.1965 to Smt. Anasuya Bai. The said Anasuya Bai sold the same to
Smt. S. Narayanamma and N. Rosamma through a registered sale deed
dated 02.01.1978. Both the said women inturn sold the same to
Balakrishna Reddy and others through a registered sale deed dated 12.09.1979. Since the date of purchase of the suit scheduled land by the defendant No.1 through unregistered sale deed dated 25.10.1980, he is in possession and enjoyment of the same as its absolute owner. The revenue authorities in due process of law issued mutation proceedings dated 09.09.2002 under sections 4 and 5 Record of Rights Act, 1971 in his favour. The said document was duly compounded by separate proceedings dated 19.12.2001 under section 42 of the Indian Stamp Act, by the District Registrar, Ranga Reddy District. Accordingly mutation was effected in the pahanies for the year 2003-2004.
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7(d). The plaintiff cannot rely upon the weakness and lacunae in the case of the defendants and she has to establish her claim in the suit. The defendant No.1 having acquired the suit scheduled land as stated above, transferred the same to his sons-defendant Nos. 10 and 11 through registered gift deed dated 26.11.2005 for an extent of 423.33 sq.yds and registered gift deed dated 18.09.2006 for an extent of 544.67 sq.yds respectively. The defendant Nos. 10 and 11 inturn executed a registered development agreement cum general power of attorney dated 18.09.2006 in favour of the defendant Nos. 12 and 13. All the said transfers of the land were made in accordance with law. The plaintiff made false allegations in order to gain wrongfully and to harass the defendants with a dishonest intention. Right to property by birth is not recognized under section 52 of the Muslim Personal Law and sale of the suit scheduled land was made by the plaintiff’s father during his lifetime and hence the said land is no more a part and parcel of the joint family property of the plaintiff. The judgment and decree dated 06.08.2002 are not in accordance with the Muslim Personal Law of succession, administration and inheritance. Hence, the same are not valid and binding on the defendants. The same are obtained by the plaintiff collusive and fraudulently. The defendants are in physical possession of the suit scheduled land for the past 25 years. The revenue proceedings stand good in the name of the defendants and they cannot be challenged after lapse of long time.
7(e). The plaintiff did not establish as to how she came to a conclusion to fix the quantum of damages @ Rs.50,000/- per month in 13
OS No. 368 of 2007
respect of the suit scheduled land. She is liable to pay damages to the defendants for making false claim before the court and playing fraud on it in obtaining the collusive decree. As long as the registered sale deed
dated 07.05.1965 executed by the plaintiff’s father stands good, all such
other registered sale deeds dated 02.01.1978and 12.09.1979 stand good in favour of the title of the defendants. The subsequent transfers of the land thereon cannot be challenged by the plaintiff. Hence, the suit is liable to be dismissed for non joinder and mis joinder necessary parties. The plaintiff and her brother already filed several suits – OS No. 3147 of 2006
in the Court of the Principal Junior Civil Judge, Ranga Reddy District, OS
No. 3111 of 2006 in the Court of the Additional Junior Civil Judge, Ranga
Reddy District, LGC No. 9 of 2007 before the A.P. Land Grabbing Tribunal,
Hyderabad, Appeal No. C/384/2007 before the Revenue Divisional Officer,
Chevella. OS No. 2591 of 2007 in the Court of the Additional Junior Civil
Judge, Ranga Reddy District etc., and the same are pending for
adjudication regarding the suit scheduled land herein. The defendant No.1 has filed his original and certified copies of documents etc., in the aforesaid courts. The defendant No.1 denied the remaining case of the plaintiff and prayed to dismiss the suit. The defendant Nos. 10 to 13 adopted the written statement of the defendant No.1 through a memo
dated 13.12.2007.
8(a). The defendant No.9 M/s. Vensiss Ventures Private Limited,
Hyderabad filed its written statement dated 13.12.2007 alleging that the defendant No.9 – firm has purchased Ac.0-20 gts of land out of the suit scheduled land from its owner – defendant No.8 M/s. Pro-Active Realtors 14
OS No. 368 of 2007
Private Limited through two registered sale deeds dated 24.10.2005 and 02.02.2006. The defendant No.9 admitted the title of the plaintiff’s father to the suit scheduled land. The defendant No.9 further alleged that originally Salam Miya (Salam Bin Ahmed) was the actual owner of Ac.6-33 gts of land in Sy.No.76 and 86 to 89 and Ac.0-28 gts of land in Sy.No.78 of
Madinaguda Village. The said Salam Miya sold the land in favour of Smt.
Anasuya Bai in the year 1965. The said Anasuya Bai sold the land of Ac. 6- 32 gts in favour of Smt. S. Narayanamma and Smt. N. Rosamma in the year 1979. Smt. S. Narayanamma and Smt. N. Rosamma sold Ac.2-00 gts of land in Sy.No. 76 part and 86 part of Madinaguda Village to P.
Balakrishna Reddy and others in the year 1979. From the aforesaid transactions, it is clear that the plaintiff father right over the suit scheduled land was extinguished after sale of the said land to Smt.
Anasuya Bai in the year 1965. Hence, the plaintiff’s claim of ownership over the said land as the legal heirs of Salam Miya is not maintainable in law.
8(b). P. Balakrishna Reddy and others sold the suit scheduled land to the defendant No.1 and the defendant No.1 got his document of title validated by the District Registrar, Ranga Reddy District on 19.12.2001.
The Mandal Revenue Officer, Serlingampally Mandal issued proceedings of mutation dated 09.09.2002 in favour of the defendant No.1 under the
Record of Rights Act, 1971. The defendant No.1 sold Ac.0-20 gts of land to the defendant Nos. 2 to 6through a registered sale deed dated 09.10.2002. The Mandal Revenue Officer, Serlingampally issued proceedings of mutation in the year 2003 in favour of the said defendants.
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The said defendants raised a compound wall abutting the remaining land.
Ac.0-08 gts of land out of the suit scheduled land is still in occupation of the defendant No.1, who got constructed a house in the said land. The defendant Nos. 2 to 6 sold Ac. 0-20 gts of land to the defendant No.8 M/s.
Proactive Realtors Private Limited, Hyderabad through a registered sale deed dated 24.10.2005. The defendant No.9 purchased Ac.0-20 gts of land out of the suit scheduled land through a registered sale deed in the year 2006. The defendant No.9 is in possession of Ac.0-20 gts of land and after mutation of the land in its favour, the defendant No.9 with an intention to develop the said land, has applied for permission to Hyderabad Urban
Development Authority and Serlingampally Municipality by paying huge amounts towards betterment and other charges. After obtaining permission from the said authorities, the defendant No.9 commenced the construction on the said land.
8(c). The plaintiff due to escalation of the value of the land, has filed the present suit. Similarly the plaintiff along with her brothers malafide filed OS No.790 of 2006 in the court of the Addl. Junior Civil Judge, Ranga
Reddy District seeking grant of perpetual injunction and they have obtained a decree for partition of the land in the Lok Adalat in the year 2001. The defendant No.9 filed OS No. 1639 of 2006 in the court of the
Principal Junior Civil Judge, Ranga Reddy District seeking perpetual
injunction. Both the said suits are pending. Tr.OP No. 798 of 2006 is filed by the defendant No.9 seeking to transfer both the suits to one court for joint trial is pending in the Court of District Judge, Ranga Reddy District is also pending. The plaintiffs being aware of the said pending litigation, are 16
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trying to trespass into the property of the defendant No.9 illegally and threatening defendant No.9 with dire consequences and are harassing the said firm, to withdraw the suits. Tr.OP No. 798 of 2006 was allowed transferring OS No. 1639 of 2006 from the Court of Principal Junior Civil
Judge, Ranga Reddy District to the Court of Addl. Junior Civil Judge, Ranga
Reddy District, where OS No. 790 of 2006 was pending. OS No. 790 of 2006 was filed by the plaintiff and her family members with a malafide intention after 40 years of sale of the land by the plaintiff’s father. The plaintiffs fraudulently colluded and obtained a compromise decree, which is false and baseless. The contention of the plaint is not consistent. The defendant No.9 is a bonafide purchaser of the land. The plaintiffs having failed in their attempts to obtain any right or title or an order in their favour from the courts, have filed several false cases – 1. OS No. 790 of 2006, 2. LGC No. 9 of 2007, and 3. Appeal No. 384 of 2007. The defendant
No.9 denied the remaining case of the plaintiff and prayed to dismiss the same.
9(a). The defendant No.15 Axis Bank Ltd, Chennai filed its written statement alleging that WP No. 40103 of 2015 was filed by the plaintiffs in the High Court, that the same was dismissed, that impleading the defendant
No.15 and its purchasers of the property by the plaintiffs which was mortgaged in favour of the defendant No.15, is deliberate and the suit itself is not maintainable since the property, which is the subject matter of the suit, was already sold under the proceedings of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act) and when the plaintiffs herein already filed SA No. 8 of 2016 before the Debts Recovery Tribunal at 17
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Hyderabad. Since the plaintiffs are questioning the action of the defendant
No.15 initiated under the SARFAESI Act, the suit is not maintainable in view of section 34 of the said Act. The plaintiffs have no right in the mortgaged property and their rights, which are mischievous and invented, are subject to mortgage in favour of the defendant No.15. The plaintiffs cannot question the proceedings initiated by the defendant No.15 under the SARFAESI Act to realize its dues.
9(b). The defendant No.14 mortgaged the property and since he committed default in payment of loan amount, the defendant No.15 issued notice dated 14.05.2013 under section 13 (2) of the SARFAESI Act, and the same was also followed by possession notice under section 13 (4) of the
SARFAESI Act. The plaintiffs though are well aware of the proceedings initiated against the property of the present suit since 2013, tender – cum – auction sale dated 06.11.2015, they did not bother to question the proceedings earlier. It appears that the plaintiffs in collusion with the defendant Nos. 10 and 11, as an afterthought, filed the petition to implead them and also filed WP No. 40103 of 2015 apart from SA No. 8 of 2016. The defendant Nos.10 and 11 in collusion with the plaintiffs, earlier filed OS No.
1557 of 2013 in the Court of the VIII Addl. District Judge, Ranga Reddy District at L.B. Nagar and in an interlocutory application filed therein, obtained stay of all further proceedings initiated by the defendant No.15 under the
SARFAESI Act. Pursuant to dismissal of said IA, the defendant No.15 filed
Crl.MP No. 647 of 2015 before the Chief Metropolitan Magistrate, Hyderabad
and obtained order under Section 14 of the SARFAESI Act, and took possession of the mortgaged property and sold the said property in a public 18
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auction, which was purchased by the defendants Nos. 16 to 21 and a sale certificate dated 31.12.2015 was issued and the same was registered.
9(c). Since the plaintiffs did not file any application before the Debts
Recovery Tribunal, Hyderabad and no orders have been passed thereon, the defendant No.15 issued a sale certificate dated 31.12.2015 in favour of the defendant Nos. 16 to 21 (auction purchasers) and registered the sale certificate on 13.01.2016 and handed over physical possession of the property to them on 14.01.2016 by keeping aside the movables available in the said house at a rented premises. Subsequently the plaintiffs also filed SA
No. 14 of 2016 in the Debts Recovery Tribunal, Hyderabad and the same is pending for adjudication. The defendant No.15 is not a party to the suit and moreover the suit is collusive. Any orders passed in the suit are not binding on the defendant No.15. Any of the transactions in respect of the suit scheduled property are all subject to mortgage in favour of the defendant
No.15. The plaintiffs are no way concerned with the property covered by the sale certificate issued by the defendant No.15 in favour of the defendant Nos.
16 to 21. When the plaintiff is very much aware of the right, interest and title over the suit scheduled property by the defendant Nos. 7 to 9 and mortgaged in favour of the defendant No.15, filing of the suit is a collusion between the parties and cause loss to the defendant No.15. As the possession of the suit scheduled property is already delivered to the defendant Nos. 16 to 21, nothing survived for the plaintiffs to challenge. The defendant No.15 has initiated all the above said steps after following the due process of law under the SARFAESI Act. The defendant No.15 denied the remaining case of the plaintiffs and prayed to dismiss the same.
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10(a). The defendant Nos. 16 to 21 filed their written statement alleging that the present suit is filed by the plaintiffs with the sole object to continue the vexatious dispute over the title of the suit scheduled land and consequently the final beneficiaries, such as the defendant Nos. 16 to 21, to be harassed and thereby to gain wrongfully by the plaintiffs. The present suit is contrary to the directions of the High Court passed in WP No. 39822 of 2015 filed by the defendant Nos. 10 and 11 and WP No.40103 of 2015 filed by the plaintiffs family. The suit is also barred under section 34 of the
SARFAESI Act and Limitation Act etc. Further, the plaintiffs have filed SA No. 8 of 2016 with similar relief, along with IA No. 3318 of 2018 before the Debts
Recovery Tribunal, Hyderabad. Hence, the plaintiffs are not entitled to implead the defendant Nos. 16 to 21 in the suit and the suit is liable to be dismissed. The defendant Nos. 16 to 21 are the absolute owners and possessors of the suit scheduled land.
10(b). As per the information known to the defendant Nos. 16 to 21 from various sources, Salem Bin Ahmed who is the father of the plaintiff, sold away the property covered by the Registered sale certificate dated 30.01.2016 long ago through a registered sale deed dated 07.05.1965 to
Smt. Anasuya Bai. Smt. Anasuya Bai later sold the land to Smt. S.
Narayanamma and N. Rosamma through a registered sale deed dated 02.01.1978. Smt. S. Narayanamma and N. Rosamma together sold the land to Balakrishna Reddy and others through a registered sale deed dated 12.09.1979, who in turn sold the same through an unregistered sale deed
dated 25.10.1980 to the defendant No.1. The defendant No.1 duly
compounded the said unregistered sale deed under section 42 of the Indian
Stamp Act, vide proceedings dated 19.12.2001 of the District Registrar, 20
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Ranga Reddy District. In pursuance thereof, the defendant No.1 got mutation proceedings dated 09.10.2002 from the Mandal Revenue Officer,
Serlingampally. The defendant No.1 being natural father of the defendant
No.10 executed a registered gift settlement deed dated 26.11.2002 for 423.33 sq.yds in part of Sy.No.76 of Madinaguda Village, in favour of the defendant No.10. Later the defendant No.1 also executed a registered gift settlement deed dated 18.09.2006 in favour of the defendant No.11 in respect of the remaining 544.67 sq.yds. The defendant Nos. 10 and 11, thus having rights over 968 sq.yds of land, sold the same to the defendant No.13 through two registered sale deeds, both dated 30.05.2012. Later the defendant No.14 availed mortgage loan from the defendant No.15 – bank for
Rs.4 crore and odd by deposit of title deeds of the said land on 17.07.2012.
Non joinder of the above said purchasers as defendants in the suit, is fatal to the case of the plaintiffs.
10(c). Further, the defendant No.14executed two registered agreements of sale dated 20.07.2012 in favour of the defendant Nos. 10 and
11. In consequence thereof, the defendant Nos. 10 and 11 filed OS No. 200 of 2013 in the Court of Principal District Judge, Ranga Reddy District at L.B.
Nagar seeking specific performance of the said agreements of sale. The defendant Nos. 10 and 11 herein obtained an ex parte decree in the said suit.
Neither Smt. Qamar Siddiqua or her legal representatives or any of the other defendant Nos. 1 to 13 are vested with any right over the suit scheduled property. The defendant Nos. 16 to 21 have applied for issue of certified copy of registered sale deed dated 07.05.1965 executed by Salem Bin Ahmed in favour of Smt. Anasuya Bai to the Sub Registrar, Kukatpally, but a memo
dated 25.04.2016 was issued by him stating that the said certified copy
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cannot be issued as the relevant pages in the register of his office are torn due to wear and tear. However, the sale deed dated 29.12.1977, registered on 02.01.1978, executed by Smt. Anasuya Bai subsequently in favour of Smt.
S. Narayanamma, refers to the property sold by Salem Bin Ahmed in favour of Smt. Anasuya Bai. Both the said documents being executed more than 30 years ago for transfer of the lands, the said documents have more authenticity to rely upon them and in consideration of the rights of the respective beneficiaries of the persons deriving title from them.
10(d). The decree dated 06.08.2002 in OS No. 23 of 2001 is obtained by the plaintiffs by playing fraud on the court as the suit scheduled land was already sold by her father. The preliminary decree and final decree proceedings in OS No. 23 of 2001 shall have no legal authenticity. The same being based on misrepresentation or fraud played by the parties to in OS No.
23 of 2001, more particularly none of the subsequent parties including the defendant No.15 are not made as necessary parties to the said suit. The plaintiffs without questioning the earlier 3 registered instruments dated 07.05.1965, 02.01.1978 and 12.09.1979, now presently cannot question either the unregistered sale deed dated 25.10.1980 or any other subsequent documents. The plaintiff has concealed the fact of sale of the suit scheduled land by her father to Smt. Anasuya Bai and filed the present suit. The defendant Nos. 16 to 21 denied the remaining case of the plaintiffs and prayed to dismiss the suit.
11(a). The defendant Nos. 16 to 21 filed their additional written statement dated 24.01.2022. Prior to the impleadment of the defendant Nos.
16 to 21 in the suit, PWs 1 and 2 and DW1 were examined. The plaintiff got 22
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marked Exs. A1 to A16. The defendant Nos. 1, 10 and 11 got examined the defendant No.11 as DW1 and got marked Exs. B1 to B35. After their impleadment, the defendant Nos. 16 to 21 filed their written statement to the extent of the copies furnished or information made available to them, from the reliable sources. The defendant Nos. 16 to 21 thereafter took steps, got recalled PW2 and cross examined, keeping in view of the fact that Ex.A8 in tact and can be relied, to substantiate the case of the defendant Nos. 16 to
21. Thereafter the defendant No.18 was got examined by them as DW2 and got marked Exs. B36 to B42. The defendant No.16 later was examined as
DW3 and got marked Ex.43.
11(b). While so, oral and written arguments were concluded and when the suit is posted for judgment, the plaintiff somehow filed the petitions seeking to reopen, abandoning the claim in the suit and rejection of Ex.A8.
Despite the objection of the defendant Nos. 16 to 21, the 3 petitions were allowed and therefore the defendant Nos. 16 to 21 were constrained to file a petition to reopen and recall PW2 and DW3. In the meanwhile the plaintiffs filed fair copy of amended plaint on 17.01.2022 and at such stage, this court heard the arguments in IA Nos. 8 to 10 of 2022.
11(c). The plaintiffs even after being aware of the fact of developmental activities made in the property purchased by them under Ex.B43 Registered
Sale Certificate dated 13.01.2016, construction of apartment and disbursement of all the flats to the several purchasers, did not refer to any specific relief about the structures, but sought the relief for removal of structures, which does not withstand in law. The plaintiff concealed the earlier sale transactions for the period between 1965 and 1979 coupled with 23
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delivery of possession etc., which transactions took place more than 30 years ago. All the said purchasers are not made parties to the suit. The plaintiffs intentionally concealed the alleged compromise entered by them with defendant Nos. 2 to 9 in respect of Ac. 0-20 gts of land out of the suit scheduled land and no piece of paper is filed either as an interlocutory application or abandoning their claim or as an amended fair copy of the plaint. The alleged compromise entered by the plaintiffs with the defendant
Nos. 2 to 9 referred above and concealment thereof, is unfair and is intended to play fraud on the defendant Nos. 16 to 21. The defendant Nos. 16 to 21 prayed to dismiss the suit.
12. Based on the above said original pleadings, the following issues were framed for trial:
1. Whether the plaintiff is entitled to the declaration of title in respect of Ac.0-28 gts of the schedule property?
2. Whether the document of sale dated 25.10.1980 executed in favour of 1st defendant and documents in favour of defendant Nos. 1 to 13 are binding and enforceable?
3. Whether the plaintiff is entitled to the recovery of possession of the schedule property from the defendants?
4. Whether the plaintiff is entitled to the perpetual injunction prayed for?
5. To what relief?
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13. On 25.01.2022 this court framed the following additional issues:
1. Whether the suit is bad for non joinder of the predecessors in title of the defendant No.1 in respect of the suit A scheduled land i.e.,
Smt. Anasuya Bai and others.
2. Whether the suit is bad for non joinder of purchasers of the flats existing in the suit A scheduled land.
3. Whether the plaintiffs are entitled for declaration of their title to the suit C scheduled land.
4. Whether the plaintiffs are entitled for recovery of possession of the suit C scheduled land from the defendant Nos.16 to 21.
5. Whether the plaintiffs are entitled for grant of perpetual injunction in respect of the suit C scheduled land, as prayed for.
6. Whether the plaintiffs are entitled for damages, as claimed by them.
14. The plaintiffs got examined the plaintiff Nos. 1 and 2 themselves as
PWs 1 and 2 respectively and got marked Exs. A1 to A21 in support of their case. However, Ex.A8 being a xerox copy of the unregistered sale deed dated 25.10.1980, was eschewed by this court by its order dated 21.12.2021 passed in IA No. 437 of 2021. The defendant Nos.1, 10 and 11 got examined the defendant No.11 himself as DW1 and got marked Exs. B1 to B35 in support of their case. Exs. B1 to B35 were eschewed by this court vide its 25
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docket order dated 29.08.2017, but later by its docket order dated 21.02.2022 based on the ratio laid down in R.M. Mallappa, represented by
LRs and others vs R.M. Basappa and others, 2017 SCC OnLine Kar 6714, this court held that Exs. B1 to B35 shall remain on record of the suit, even though the oral evidence of DW1 is eschewed and the said documents can be considered by the court in evidence on behalf of the defendant Nos. 16 to 21, while disposing of the suit. The said docket order dated 21.02.2022 is not challenged by the plaintiffs and therefore it attained finality in law and binding on them. The defendant Nos. 16 to 21 got examined the defendant
Nos. 18 and 16 themselves as DWs 2 and 3 respectively and got marked Exs.
B36 to B43 in support of their case.
15. Heard arguments on both sides. Written arguments are also filed on both sides. Perused the same and also the record of the suit.
16. Issue Nos. 1 to 4 and additional issue Nos. 1 to 6: In view of complexities involved in the suit and the issues being interlinked, it is the bonafide and considered view of this court that the same required to be decided together.
17. It is necessary to keep in mind, as already observed above, that
DW1 was examined in chief on 13.03.2013 and Exs. B1 to B35 were marked through him and later on his failure to appear before the court to face the cross examination the said chief examination was eschewed by this court vide its docket order dated 29.08.2017. Thus, the evidence of DW1 ended with recording of his chief examination only. However, Exs. B1 to B35 are held to be intact on record, for consideration by the court. While so, due to 26
OS No. 368 of 2007
inadvertence of the typist on the bench, a mistake occurred. DW2 was examined in chief partly on 04.02.2020 and his further chief examination was deferred. His further chief examination was recorded on 13.02.2020, but the same was erroneously printed below the chief examination of DW1 dated 13.03.2013. The depositions of DWs 1 and 2 should be perused keeping the aforesaid mistake in mind, otherwise the same may lead to confusion and misunderstanding of the evidence of the said witnesses.
18. In my considered view, issue No.2 is incomplete and therefore in order to give a full meaning to it and to make it understandable, it should be understood as whether the document of sale dated 25.10.1980 executed in favour of the defendant No.1 and the documents executed in favour of the defendant Nos. 1 to 13 are binding on the plaintiffs and enforceable against them. While so, the case of the plaintiffs mainly is that late Salem Bin Ahmed was the absolute owner and possessor of unspecified land in Sy.Nos. 76 to 78 and 86 to 89 situated at Madinaguda Village, on his demise in the year 1995, the plaintiff No.1 and her other brothers and sisters succeeded to the said land, that they filed OS No.23 of 2001 in the Court of the I Addl. Senior Civil
Judge, Ranga Reddy District seeking partition of Ac.9-13 gts of land out of the
aforesaid survey numbers. The said suit was settled before Lok Adalat and thereby Ex.A5 award dated 24.07.2002 was passed. Ex.A6 final decree dated 06.08.2002 was passed and in pursuance of the said final decree, the suit A scheduled land of Ac.0-28 gts fell to the share of the plaintiff No.1 and thus she became the absolute owner and possessor of the said land. ExA7 is the plan attached to the said final decree, showing allotment of land to the parties thereto.
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19. Undisputedly late Salem Bin Ahmed was the original owner and possessor of the suit A scheduled land and both parties claim their rights to the said land through him only. Thus he is the predecessor in title to both the parties in respect of the suit A scheduled land. While the defendants alleged sale of Ac.6-32 gts of land by Salem Bin Ahmed commencing through a registered sale deed dated 07.05.1965 followed by several other transactions, the plaintiff denied all such transactions and their claim is centered around Ex.A6 final decree dated 06.08.2002 passed in OS No. 23 of 2001 referred above, which arose out of Ex.A5 Lok Adalat award dated 24.07.2002 passed in the said suit. Ex.B35 certified copy of the plaint in OS
No. 126 of 2008 shows that the defendant No.1 herein and his 2 sons (defendant Nos. 10 and 11 herein) together filed the said suit in the Court of the District Judge, Ranga Reddy District at L.B. Nagar against the plaintiffs herein seeking declaration of their title to two pieces of land, comprising of the suit C scheduled land herein, and other land by setting aside the Ex.A6 final decree dated 06.08.2002 passed in OS No. 23 of 2001. As seen from
Ecourts portal of Ranga Reddy District, the said suit was dismissed for default of the plaintiffs therein at the stage of trial on 28.01.2020 by this court. PW2 also admitted dismissal of the said suit for default. However, it is wrongly suggested to him the said date as 07.12.2019, instead of 28.01.2020. It is the contention of the plaintiffs that in view of Ex.A5 Lok Adalat award 24.07.2002, followed by Ex.A6 final decree dated 06.08.2002 and dismissal of
OS No.126 of 2008 by this court for default of the plaintiffs therein on
28.01.2020, the said award and final decree attained finality in law.
Consequently, it is further contended by the plaintiffs that the title of the plaintiff to the suit A scheduled land is thus confirmed.
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20. However, it is to be borne in mind that any decree, whether a contested one or a compromise decree like Ex.A5 (award of Lok Adalat) are final and binding on the parties to the proceedings, in which the said decree is passed. To say simply, it does not bind the third parties. That being the settled legal position, the defendants, more particularly the defendant Nos. 1, 10 and 11 from whom the defendant Nos. 16 to 21 claim their rights to the suit C scheduled land herein, admittedly not being parties to Ex.A5 award and Ex.A6 final decree, are not bound by either the said award or decree. In such a case, generally the dismissal of OS No. 126 of 2008 by this court for default of the defendant Nos. 1, 10 and 11 herein, is insignificant in law. It further leads to the conclusion that Ex.A5 award and Ex.A6 final decree are binding on the plaintiffs inter se, but not the defendants. The said award and final decree being the fulcrums, on which the entire case of the plaintiffs rested, having thus collapsed, ordinarily nothing remains for the plaintiffs to contest and to claim rights over the suit A scheduled land.
21. In order to avoid repetition of the facts and the rival contentions, it is necessary to keep in mind the flow of title to the land of Ac.6-32 gts, which includes the suit A scheduled land herein, which originally belonged to late
Salem Bin Ahmed. At the same time, it is equally necessary not to lose sight of the fact that though chief examination of the defendant No.11 as DW1 was eschewed by this court by its docket order dated 29.08.2017 for his failure to face the cross examination, based on the ratio laid down in R.M. Mallappa, represented by LRs and others vs R.M. Basappa and others, 2017 SCC OnLine
Kar 6714, this court by its subsequent docket order dated 21.02.2022 held that Exs. B1 to B35, which were marked through him in his chief examination, shall remain on record of this suit and the same can be considered by this 29
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court in evidence on behalf of the defendant Nos. 16 to 21 while disposing of the suit. For the sake of ready reference, the relevant portion of the said judgment is extract below:
“7. Further, even while referring to the document at Ex.D17, the learned counsel for appellant had brought to the notice of this Court that the person through whom aforesaid documents are marked though adduced evidence in chief did not tender himself for cross-examination, therefore, his evidence is to be eschewed. However, it is seen that though the oral evidence of DW.2 may be eschewed, but the documents, which are certified copies of another proceedings in
RKCA.46/1988-89, being public documents cannot be ignored despite the fact that the oral evidence of the person through whom aforesaid documents are marked is eschewed, will not lose the relevance to be relied on in the proceedings before the court below…..”
22. The defendant Nos. 10, 11 and 14 indirectly exhibited their dishonesty. The defendant No.1 having allegedly purchased the suit A scheduled land of Ac.0-28 gts, gifted the same to his 2 sons – defendant
No.10 vide Ex.B31 registered gift settlement deed dated 26.11.2005 to an extent of 423.33 sq.yds and defendant No.11 vide Ex. B32 registered gift settlement deed dated 18.09.2006 to an extent of 544.67 sq.yds. (totaling to 968 sq.yds) together constituting the suit C scheduled land herein. In turn, the defendant Nos. 10 and 11 together sold the said property as H.No.1-54 to the defendant No.14 vide Exs. A19 and A20 registered sale deeds, both dated 30.05.2012. The defendant No.14 availed loan of Rs. 4 crores by mortgaging the said property to the defendant No.15 – bank by deposit of the title deeds of the said house vide registered memorandum of deposit of title deed dated 30
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17.07.2012. The defendant No. 15 – bank, on default committed by the defendant No.14 in discharge of the said loan, initiated proceedings under the SARFAESI Act, against the said property and sold the same in public auction, wherein the defendant Nos. 16 to 21 purchased the same vide
Ex.B43 registered sale certificate dated 13.01.2016. While the transfer of the suit C scheduled land from the defendant No.1 being so commencing from 26.11.2005 and culminating in Ex.B43 sale certificate dated 13.01.2016, the real face of the defendant Nos. 10, 11 and 14 can be seen from other set of transactions initiated by them inter se. As per the contesting defendants, the transactions of transfer of Ac.6-32 gts of land, which includes the suit A scheduled land herein, belonging to the original owner late Salem Bin Ahmed commenced from registered sale deed dated 07.05.1965 and ended by
Ex.B43 registered sale certificate 13.01.2016 (concerning the suit C scheduled property), except one unregistered sale deed dated 25.10.1980 allegedly executed by Balakrishna Reddy and others in favour of the defendant No.1 (vide Ex.A8, which is later struck off). The period of said registered transactions of property is for more than 50 long years. No doubt, the transactions of sale from Ex.A19 and A20 registered sale deeds, both
dated 30.05.2012 onwards took place during the pendency of the present
suit. Therefore, all the said transactions of the said period are governed by the principle of lis pendens under section 52 of the Transfer of Property Act, 1882.
23. The defendant Nos. 10 and 11 in respect of the suit C scheduled land. Having acquired the said land from their father (defendant No.1) vide
Exs. B31 and B32 registered gift settlement deeds dated 26.11.2005 and 18.09.2006 respectively, executed Ex.A15 (Ex.B33) registered development 31
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agreement cum general power of attorney dated 18.09.2006 in favour of the defendant Nos. 12 and 13. However, they subsequently executed Ex.B34 registered cancellation deed dated 30.05.2012, cancelling Ex.A15 development agreement.
24. It is borne by record that the defendant Nos. 10 and 11, on the same date of execution of Ex.B34 registered cancellation deed dated 30.05.2012, had sold the suit C scheduled property (H.No. 1-54) to the defendant No.14 vide Exs.A19 and A20 registered sale deeds, both dated 30.05.2012. The defendant No.14 having availed a loan of huge amount of
Rs. 4 crores vide registered memorandum of deposit of title deeds dated 17.07.2012 from the defendant No.15 – bank, within no time had again executed Ex.A21 unregistered agreement of sale dated 20.07.2012 in favour of the defendant Nos. 10 and 11 for a meager sum of Rs.50,00,000/- only. It is recited therein that the defendant Nos. 10 and 11 have paid the entire sale consideration to the defendant No.14. The huge difference between the loan amount availed by the defendant No.14 from the defendant No.15 – bank and the total sale consideration mentioned in Ex.A21 agreement of sale, is also an apparent indication of the falsity of the said transaction. No reason is whispered and brought on record by any of the defendant Nos. 10, 11 and 14 for not executing a registered sale deed in their favour, on the same day, when the total sale consideration was allegedly paid in toto. Another astonishing fact to be seen from the said agreement of sale is that nothing is mentioned as to the time or period of the delivery of possession of the said house, which is contrary to the normal practice of the terms incorporated in an agreement of sale. It is surprising to note that it is further recited therein that the said property is free from all encumbrances, mortgages etc., and 32
OS No. 368 of 2007
litigation. Admittedly the defendant Nos.10, 11 and 14 being parties to the present suit, are well aware of the present suit and the said agreement of sale is knowingly entered by them during the pendency of the said suit.
Further, in the presence of registered memorandum of deposit of title deeds
dated 17.07.2012 executed in favour of the defendant No.15 – bank, which
can be easily known from an encumbrances certificate of the suit C scheduled property, the said recitals in the said agreement of sale are a blatant lie. By making such false recitals knowingly, the said defendants have willfully played fraud not only on the defendant No.15 – bank, but also on this court. The malafides of all of them is explicit from such recitals as well as their act of entering into the said agreement of sale that by hook or cook all of them wanted to overcome the mortgage loan created as a charge on the suit C scheduled house and gain wrongfully. Such act is nothing but causing loss to the public money, which is provided as huge amount of loan by the defendant No.15 – bank to the defendant No.14.
25. It is well settled in law that mere execution of an agreement of sale, the purchaser does not get title to the immovable property. By such agreement, the purchaser merely becomes an agent for the principal (vendor). The collusive acts of the defendant Nos. 10, 11 and 14 did not end with by entering into Ex.21 agreement of sale itself. The defendant Nos. 10 and 11 again collusively filed OS No. 200 of 2013 vide Ex.A18 certified copy of the plaint, in the Court of Principal District Judge, Ranga Reddy District against the defendant No.14 seeking specific performance of the said agreement of sale. It is evident from Ex.A17 judgment dated 29.11.2013 of the said suit that the defendant remained ex parte therein and thereby the said suit was decreed ex parte. It is not the case of any of the said 33
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defendants that the decree therein was sought to be executed by the defendant Nos. 10 and 11 till now, though almost 8 ½ years time has lapsed by now from the date of said decree. Nothing prevented the defendant Nos.
10 and 11 from filing the execution petition, seeking execution of the said decree. Nothing more need to be said about the aforesaid collusive acts of the defendant Nos. 10, 11 and 14. However, it is relevant to observe that the said collusive acts among the said defendants which commenced by the execution of Ex.A21 agreement of sale dated 20.07.2012, would not lend any support to the case of the plaintiffs in respect of the suit C scheduled house.
On the other hand, the same lends support to the case of the defendant Nos.
15 to 21.
26. SA No. 14 of 2016 (re-registered as SA No. 263 of 2018 before the Debts Recovery Tribunal -II, Hyderabad) under section 17 of the
SARFAESI Act was filed by the defendant Nos. 10 and 11 against the defendant No.15 – bank and others before the Debts Recovery Tribunal - I,
Hyderabad seeking to set aside the auction sale and Ex.B43 registered sale certificate dated 13.01.2016 issued in favour of the defendant Nos.
16 to 21 and other related reliefs. The said Securitization Application was dismissed by the said Tribunal vide Ex.B41 order dated 15.03.2019.
27. According to Section 3 of the Transfer of Property Act, 1882, a person is said to have notice of a fact, which he would have known, but for his “gross negligence” or “willful abstention from making an enquiry or search” does not know. However, it is such knowledge which a person with ordinary prudence ought to have known. In view of the said presumption, the plaintiffs cannot feign ignorance of or casually deny the said registered 34
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transactions of the said property. The plaintiff No.1 is alleged to be an illiterate purdanashin woman. Admittedly the plaintiffs Nos. 2 to 10 are represented by the plaintiff No.2 as their GPA holder. Admittedly the plaintiff
No.1 is the elder sister of the plaintiff No.2. It is significant to observe that the plaintiff No.1 as PW1 in her cross examination dated 02.10.2011 admitted that all the documents filed by her (originally she being the sole plaintiff in the suit) were applied for and obtained by PW2 (plaintiff No.2). She categorically further admitted that he knows everything and for the past 10 to 15 years, he is looking after each and every aspect of the property and she is putting her signatures after she was explained. The said period of 10 to 15 years relates back to the years 1995 to 2001. It means that PW2 is instrumental in all the affairs of her including the litigation. When her said admission was questioned to PW2, he admitted in his cross examination
dated 17.03.2012 that he was instructed by PW1 to look after and follow up
the cases in the revenue proceedings since she is a purdanashin woman.
While so, the presumption under section 3 of Transfer of Property Act, 1882 regarding a registered instrument being as referred above, PW2 in his further cross examination dated 06.03.2020 admitted that prior to filing of the present suit, the plaintiffs did not make any attempt to obtain an encumbrance certificate of the suit A scheduled land. This goes to show that the plaintiff No.1 whose affairs were being looked after by PW2, who is admittedly a businessman by profession, did not act diligently and prudently.
PW2 acting for PW1 therefore can be said to have knowledge of all the registered transactions which preceded filing of the present suit.
28. In view of legal presumption of knowledge of all the registered transactions of Ac.6-32 gts of land which originally belonged to late Salem 35
OS No. 368 of 2007
Bin Ahmed, wherein the suit A scheduled land herein is a part and parcel, attributable to PW1, who is admittedly assisted by PW2, ought to have referred to all such registered transactions in the plaint. However, the plaintiff
No.1 initially and the plaintiff Nos. 2 to 10 subsequent to the death of plaintiff
No.1 and being brought on record as her legal representatives, did not make any attempt to whisper about such transactions. PW2 stated in his cross examination that the transferees of the said land preceding the alleged purchase of the suit A scheduled land by the defendant No.1, had already died. There is no record to show that the said prior transferees had died prior to filing of the suit. There is no averment in the plaint to the said effect. Even if the said statement is taken to be true, then also it may be a justification for the plaintiff/s for not suing the deceased persons, but the plaintiff/s atleast ought to have referred to such registered documents in the plaint.
29. The plaintiff No.2 as PW2 admitted in his further cross examination
dated 06.03.2020 that the suit A scheduled land is in an extent of Ac.0-28
gts, that his office is situated by the side of the said land, that therefore he visited the said land in the past, but he does not remember the boundaries of the said land. It is further admitted by him that there was a complex namely
Mythri Apartment in Ac.0-20 gts of land (suit B scheduled land), out of it and in the remaining Ac.0-08 gts of land (suit C scheduled land), the defendant
Nos. 16 to 21 got constructed another complex about 3 years ago. It is also his admission that the defendant No.15 – bank had auctioned the said suit C scheduled property. He admitted other registered transactions which took place during the pendency of the suit.
30. The material on record before this court shows that the defendant 36
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No.1 having allegedly purchased the suit A scheduled land of Ac.0-28 gts vide unregistered sale deed dated 25.10.1980 from Balakrishna Reddy and others, besides, gifting the suit C scheduled land of Ac.0-08 gts to his sons (defendant Nos. 10 and 11) vide Exs. B31 and B32 registered gift settlement deeds dated 26.11.2005 and 18.09.2006 respectively, had sold the suit B scheduled land of Ac.0-20 gts (remaining land) to the defendant Nos. 2 to 6 vide Ex.A9 registered sale deed dated 09.10.2002. The defendant Nos. 2 to 6 had allegedly executed Ex.A10 registered agreement of sale cum general power of attorney dated 18.06.2004 in respect of the said suit B scheduled land in favour of the defendant No.7 (M/s. Vishnu Priya Builders, Kukatpally,
Ranga Reddy District). The defendant Nos. 2 to 6 represented by their agent – defendant No.7, had sold the suit B scheduled land to the defendant No.8 vide Ex.A11 registered sale deed dated 24.10.2005. Later the defendant No.8 (M/s. Proactive Realtors Private Limited, Hyderabad) had sold the said land to the defendant No.9 (M/s. Vensiss Ventures Private Limited, Hyderabad). Later on the defendant No.9 had sold the said land to M/s. Mythri Constructions,
Hyderabad through a registered sale deed dated 11.02.2008. It appears that the said M/s. Mythri Constructions, Hyderabad had constructed Mythri
Apartment in the said land, the existence of which apartment is admitted by
PW2 in his cross examination, as observed herein above.
31. PWs 1 and 2 either stated ignorance or denied the execution of the registered sale deeds which are against their interest. However, as already observed above, in view of the presumption of knowledge of the said transactions arising against the plaintiffs, PWs 1 and 2 cannot be heard to say otherwise. Further, when the office of PW2 was admittedly situated by the side of the suit A scheduled land, the said transactions as well as 37
OS No. 368 of 2007
developments therein including raising of the structures and existence thereof can be said to be within his knowledge. The plaintiffs through PW1 having initially got marked Ex.A8, which is a photostat copy of unregistered deficiently stamped sale deed dated 25.10.1980 allegedly executed by
Balakrishna Reddy and others in favour of the defendant No.1 in respect of the suit A scheduled land, was later on struck off by this court, at the instance of the plaintiffs. Therefore, now it cannot be looked into. The plaintiffs have even denied the execution of an alleged registered sale deed
dated 07.05.1965 by late Salem Bin Ahmed in respect of Ac.6-32 gts of land
in Sy.No.76 etc., in favour of Smt. A. Anasuya Bai. Those two alleged registered sale deeds are not made available before this court by the defendants.
32. It is the specific case of the plaintiffs that the defendant No.1 is claiming the property under the alleged document of sale dated 25.10.1980.
Some other registered documents executed in favour of the defendants were also referred in the plaint, alleging them to be fabricated one. Ex.B39 proceedings of mutation dated 09.09.2002 allegedly issued in favour of the defendant No.1 mutating the ownership of suit A scheduled land in favour of the defendant No.1 in the revenue records by the Mandal Revenue Officer,
Serlingampally Mandal, is also referred in the plaint and it is alleged that the defendant No.1 is also claiming rights to the said land basing on the said mutation proceedings. As seen from Ex.B39 proceedings, mutation was ordered to be given effect from the year 2003-2004.
33. Undisputedly DW2 has made an application dated 24.03.2016 to the District Registrar, Ranga Reddy District seeking certified copy of alleged 38
OS No. 368 of 2007
registered sale deed dated 07.05.1965 and thereupon Ex.B36 memo dated 24.03.2016 was issued to him stating that the said certified copy cannot be issued as the pages in the relevant register were torn due to wear and tear.
Ex.B38 is also another similar memo issued by the District Registrar, Ranga
Reddy District to DW2 of even date. PW2 in his cross examination dated 14.02.2022 admitted that he too filed an application for issue of certified copy of the said registered sale deed, but he was told that the original record of the said sale deed was torn, therefore not available and that he was issued a memo to the said effect by the Sub Registrar. Admittedly he did not filed the said memo before this court. His evidence goes to show that
Ex.B36 memo dated 24.03.2016 filed by the defendant Nos. 16 to 21 is a correct one. Ex. B29 is also a similar memo dated 12.02.2013 issued by the
District Registrar, Ranga Reddy District to DW1 on his application dated 12.02.2013. In such inevitable situation, which is beyond the control of the defendants and such other purchasers of the suit A scheduled land, which includes B and C scheduled lands, the said purchasers cannot be blamed for no fault of them. In such a situation, the execution of the alleged missing registered instruments can be proved by production and proof of other available record, relating to the said transactions. In the instant case, the same is done by the defendants. The said ancillary record is the only record even for the court to adjudicate the dispute. Any person like the defendants herein cannot be compelled to produce and prove a specific document, which is not available despite due diligence of the parties.
34. Accordingly Ex.B37 (Ex.B1) registered sale deed dated 02.01.1978, is produced by the defendants in support of their case. The said document being a registered one and more particularly the one purportedly executed 39
OS No. 368 of 2007
and got registered by Salem Bin Ahmed, original owner and possessor of
Ac.6-32 gts of land, in favour of Smt. A. Anasuya Bai, 23 years earlier to the filing of OS No. 23 of 2001 by the plaintiffs, cannot be brushed aside lightly.
The said land includes the suit A scheduled land herein also. Though it is stated by PW2 that by the time of filing of the said suit, the alleged predecessors in title of the said land from Smt. A. Anasuya Bai to
Balakrishna Reddy and others had died, in the presence of the said registered instruments, the plaintiffs to claim their right, title and possession over the said land etc., in the said suit, ought to have sued the legal representatives of the said purchasers. The said purchasers, if alive, and in case of their death, their surviving legal representatives, ought to have been sued by the plaintiffs in the present suit. In the aforesaid context, though the said suit was suit for partition of the land therein, the said purchasers and their surviving legal representatives become the proper and necessary parties to it. Admittedly, they were not made parties to it. Same is the case with the present suit also in respect of the alleged vendors of the suit A scheduled land to the defendant No.1. Therefore, the suit is bad for non joinder of proper and necessary parties, now to the limited extent of the suit
C scheduled property.
35. Similar to Ex.B1 (Ex.B37) registered sale deed dated 02.01.1978 executed in favour of Smt. Anasuya Bai, in both Exs.B31 and B31 registered gift settlement deeds dated 26.11.2005 and 18.09.2006 executed by the defendant No.1 in favour of his sons (defendant Nos. 10 and 11) in respect of the suit C scheduled property, there is a reference to source of title of the defendant No.1. The said recitals, as in Ex.B1 registered sale deed, are significant for the reason that by the date of execution of the said two gift 40
OS No. 368 of 2007
settlement deeds, the present suit was not instituted and any of the defendants herein were not parties to OS No. 23 of 2001, wherein Ex.A6 final decree dated 06.08.2002 was passed. The defendants herein not being parties to the said suit, they cannot be said to be aware of the proceedings in the said suit. As the present suit was not instituted by the time of execution of two gift deeds in favour of the defendant Nos. 10 and 11 by the defendant No.1, the defendant Nos. 1, 10 and 11 cannot be alleged to have collusively brought into existence the said gift deeds, anticipating the present litigation in future. In both the said registered gift settlement deeds, there is a clear reference to unregistered sale deed dated 25.10.1980, proceedings of validation dated 19.12.2001 of the District Registrar, Ranga
Reddy District in respect of the said sale deed and Ex.B39 proceedings of mutation dated 09.09.2002 issued by the Mandal Revenue Officer,
Serlingampally Mandal, as source of title of the defendant No.1. Thus, the defendant Nos. 16 to 21 could prove the acquisition of title to the suit A scheduled land by the defendant No.1 vide unregistered sale deed dated 25.10.1980, by way of ancillary evidence.
36. In Ex.B1 registered sale deed dated 02.01.1978, there is a specific recital to the effect of Smt. Anasuya Bai to have purchased the said land from Salem Bin Ahmed vide registered sale deed dated 07.05.1965. The significant fact to be considered at this juncture is that admittedly Salem Bin
Ahmed died in the year 1995. During his lifetime he did not dispute the execution of said registered sale deed as well as an unregistered sale deed
dated 25.10.1980 in favour of the defendant No.1. Admittedly and
apparently, during the lifetime of said Salem Bin Ahmed itself, the revenue records were mutated in favour of the respective purchasers commencing 41
OS No. 368 of 2007
from Smt. Anasuya Bai. In Exs.B8 to B20 true copies of pahanies for the period between the years 1974-75 and 1999-2000, the name of Salem Miya (suggestive of Salem Bin Ahmed) was recorded as pattadar, but in the column of occupation, names of the above said purchasers are recorded.
PW2 admitted in his cross examination dated 14.02.2022 that in Exs. A1 to
A4 pahanies for the period between the years 1999-2000 and 2002-2003, the possession of the defendant No.10 was recorded. In fact, it is recorded in them as the defendant No.1. It appears that due to some inadvertant error in the deposition it was recorded as referring to the name of the defendant
No.10. He also further admitted that there is a reference to the registered sale deed dated 07.05.1965 in Ex.B37 (Ex.B1) registered sale deed dated 02.01.1978, which is executed in favour of Smt. S. Narayanamma by Smt.
Anasuya Bai. Though the name of Salem Bin Ahmed was recorded as pattadar, the nature of possession or occupation of the said purchasers is specifically mentioned as in the capacity of purchaser. Indirectly, it goes to show that the said occupiers had purchased the land and thereby continued to be in possession in such capacity, but the entries in the ownership column continued to be recorded as earlier in the name of Salem Bin
Ahmed. The names of the said purchasers are recorded in the column relating to the person who is actually cultivating the land. This consequently goes to show that the said purchasers came into possession of their respective lands by virtue of purchase on the date of their sale deeds. This further goes to show that the said Salem Bin Ahmed lost possession of the lands sold by him on the date of said sales itself. In such a case, the claim of continued possession of the plaintiffs over the said land at the time of filing of OS No. 23 of 2001 and thereafter till their alleged dispossession in the first week of January, 2007 (on encroachment by the defendants), is thus 42
OS No. 368 of 2007
false and contrary to the record. PW1 in her cross examination stated her ignornace whether the defendants herein are in physical possession of the suit A scheduled land herein by the time of passing of Ex.A5 award dated 24.07.2002 and Ex.A6 final decree dated 06.08.2002. No reason is assigned by the plaintiffs anywhere and at any time as to why said Salem Bin Ahmed acquiesced in such mutations in the revenue records. When Salem Bin
Ahmed himself knowingly did not raise his little finger against such transactions and mutations during his lifetime, in the considered view of this court, It is not within the mouth of the plaintiffs to dispute the same, that too after lapse of several decades of execution of the disputed sale deeds. The continuity of recording the name of late Salem Bin Ahmed in the revenue records as pattadar of the said land, after its sale, either before or after his death, is only can be treated as a nominal entry. The plaintiffs cannot be permitted to take undue advantage of continuation of such entries wrongly.
37. Ex.B21 to B28 are the original receipts etc., for payment of electricity charges, telephone charges (landline of BSNL) and property tax in respect of H.No. 1-54 (suit C scheduled property herein). They are in the name of the defendant No. 1 and relate to the period from 1999 to 2012. It is true that such receipts cannot be taken as proof of ownership of the said property. However, they are the proof of nature of the said property and its possession by the person concerned. Ex.A27 receipt for payment of property tax dated 15.11.1999 being relating to the period much earlier to arising of the dispute between the rival parties herein, more particularly even before institution of OS No. 23 of 2001, shows the real fact and falsifies the claim of the plaintiffs and brings to light the clever litigative strategy adopted by the plaintiffs (in all probability on legal advise) with a malafide intention to gain 43
OS No. 368 of 2007
back the land which is sold by the ancestor of the plaintiffs in due process of law.
38. While Ex.B21 to B28 original receipts etc., filed by the defendant
Nos. 1, 10 and 11 show the existence of a house (H.No. 1-54) as early as in the year 1999, it is a fact that the defendant No.1 has executed Exs. B31 and 32 registered gift settlement deeds dated 26.11.2005 and 18.09.2006 in favour of his sons – defendant Nos. 10 and 11, showing the properties therein as open plots. It appears that the defendant Nos.1, 10 and 11 did so with an intention to avoid payment of higher stamp duty, as is usually done by many people in registered transactions. The said documents show the existence of the house in the suit C scheduled land, which is a part and parcel of the suit A scheduled land, allegedly purchased by the defendant No.1 from Balakrishna
Reddy and others through an unregistered sale deed dated 25.10.1980. In such a case, it is unimaginable and thus is false for the plaintiff No.1 to contend in OS No. 23 of 2001 her family members were in joint possession and ownership of the suit scheduled land therein. To say simply, as on the date of filing of the present suit and even much earlier date to, the plaintiffs were not in possession and enjoyment of the suit A scheduled land.
39. For any reason, more particularly in view of striking off unregistered sale deed dated 25.10.1980 (earlier marked as Ex.A8 through PW1) allegedly executed by Balakrishna Reddy and others in favour of the defendant No.1 in respect of the suit A scheduled land, if it is taken that the defendant No.1 did not acquire valid title to the said land, then also as this court held that Salem
Bin Ahmed, who is the original owner and possessor of the said land and other land (Ac.6-32 gts), lost his title and possession over the land sold by 44
OS No. 368 of 2007
him to Smt. Anasuya Bai through a registered sale deed dated 07.05.1965, from the date of said sale, Smt. Anasuya Bai initially and in succession to her and others, the defendant No.1 and the said possession being followed by the defendant Nos. 16 to 21 by virtue of Ex.B43 registered sale certificate dated 13.01.2016 till now, the defendant Nos. 16 to 21 can be said to have perfected their title to the suit C scheduled property by being in adverse possession.
40. As per the defendants, at the instance of the defendant No.1, the
Mandal Revenue Officer, Serlingampally issued Ex.B39 proceedings of mutation dated 09.09.2002 based on the alleged unregistered sale deed
dated 25.10.1980, under which the defendant No.1 purchased the suit A
scheduled land from Balakrishna Reddy and others and the same was validated by the District Registrar, Ranga Reddy District under section 42 of the Indian Stamp Act, on 19.12.2001. Challenging Ex.B39 proceedings of mutation dated 09.09.2002 referred above, the plaintiff No.1 has preferred
Appeal No. C/384/2007 before the Revenue Divisional Officer, Chevella.
Ex.B30 is the order dated 08.01.2008 passed therein, whereby the appeal was dismissed and with an observation that the plaintiff No.1 was given liberty to approach the civil court, if necessary and in case of success in the said suit, she was given liberty to approach the recording authority for correction of the entries in the revenue records in her favour. During oral arguments, it is submitted on behalf of defendant Nos. 16 to 21 by their counsel that against Ex.B30 order dated 08.01.2008, the plaintiff No.1 preferred revision before the Joint Collector -II, Ranga Reddy District and the Joint Collector disposed of the same on 07.05.2011 directing the parties to approach the Civil Court.
45
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41. As admitted by PW2 WP No. 40103 of 2015 was filed by the plaintiffs seeking to stay the auction of the suit C scheduled property to be held on 10.12.2015 by the defendant No.15 – bank. Similarly the plaintiffs also filed SA No. 8 of 2016 (re-registered as SA No. 160 of 2017) before the Debts Recovery Tribunal, Hyderabad. The plaintiffs filed IA No. 3318 of 2018 an impleading petition therein to implead the defendant Nos. 16 to 21 in the said appeal and the same was dismissed by the said Tribunal vide Ex.B40 order dated 27.12.2019. The said dismissal was not challenged by the plaintiffs and thereby it attained finality in law. It is seen from Ex.B40 order dated 27.12.2019 that the defendant Nos. 16 to 21 became the successful bidders therein. The plaintiffs filed IA No. 713 of 2016 on 28.01.2016 seeking impleadment of the defendant Nos. 16 to 21 in SA No. 160 of 2017. The said petition was dismissed as not pressed by the plaintiffs on 22.02.2018, as could be seen from Ex.B42 docket order
dated 22.02.2018 passed in SA No. 160 of 2017. Thereafter they filed IA
No. 4630 of 2018 for restoration of IA No. 713 of 2016. However, IA No.
4630 of 2018 was dismissed for default of the plaintiffs on 14.03.2019.
42. The defendant No.16 as DW3 admitted in his cross examination that prior to purchase of the suit C scheduled property by the defendant
Nos. 16 to 21 in the auction conducted by the defendant No.15-bank, they did not get published any notice in the newspapers calling for objections, if any. Such admission of DW3 is of no use to the case of the plaintiffs for the reason that Proviso to Rule 3 (1), Rule 8 (2) and Proviso to Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002 provide for publication of notices as required therein in local newspapers and thus, the plaintiffs had 46
OS No. 368 of 2007
ample opportunity of knowing about the proposed sale of the suit C scheduled property in public auction conducted by defendant No.15 bank on 10.12.2015. Even otherwise also, admittedly the plaintiffs have filed
WP No. 40103 of 2015 and SA No. 8 of 2016 before the fora concerned
seeking necessary reliefs against the said sale of property, but they were finally unsuccessful.
43. Sections 34 and 35 of the SARFAESI Act, are relevant for the present suit and the same read as under:
“34. Civil court not to have jurisdiction.—No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 (51 of 1993).
35. The provisions of this Act to override other laws.—The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.”
It is already held above by this court that Ex.A5 Lok Adalat Award and the resultant Ex.A6 final decree dated 06.08.2002 passed in OS No. 23 of 2001 filed by the plaintiffs, binds the parties to it only, but not the defendants herein, who are admittedly not parties to them. Therefore, the same cannot be said as final in law against the defendants herein. The 47
OS No. 368 of 2007
plaintiffs as well as the defendant Nos. 10 and 11 had filed Securitization
Applications before the Debts Recovery Tribunal – I, Hyderabad challenging the public auction of the suit C scheduled property herein held by the defendant – Bank and both the said applications ended against the said applicants. That being so, in view of section 34 of the SARFAESI Act, the present suit is not maintainable. Further, in view of the section 35 of the said Act, the provisions of the said Act prevail over other laws.
44. The suit A scheduled land of Ac.0-28 gts in Sy.No.76 of
Madinaguda Village comprises of both suit B and C scheduled properties i.e. Ac.0-20 gts and Ac.0-08 gts respectively, shown in the rough sketch map filed by the plaintiff through a memo dated 24.01.2022. As already observed above by this court, though the suit is filed by the plaintiff No.1 originally seeking the reliefs in respect of the suit A scheduled land of
Ac.0-28 gts in Sy.No. 76 of Madinaguda Village, later the plaintiffs filed IA
No. 438 of 2021 seeking abandonment of their claim to the suit B scheduled property of Ac.0-20 gts and the said petition was allowed by this court by its order dated 22.12.2021. As per the plaintiffs, by virtue of the said abandonment, the plaintiffs are not in possession of the same and the purchasers of the flats in Mythri Apartments constructed by M/s.
Mythri Constructions are in possession of the same. Thereafter, the plaintiffs’ claim being restricted to the suit C scheduled property of Ac.0- 08 gts only, in view of the aforesaid discussion, this court holds that the defendant Nos. 16 to 21 are in possession of the flats got constructed by them from the date of issue of Ex.B43 registered sale certificate dated 13.01.2016 issued by the defendant No.15 – bank. Thus, the suit of the 48
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plaintiffs fails in toto.
45. In Somagutta Erapa Reddy (died) and others vs Palapandla
Chinna Gangappa and others, 2001 SCC OnLine AP 1322 (DB), referring to section 33 of the Evidence Act, 1872, it is held that the evidence of a witness who was examined in chief, but died without being cross examined, cannot outright the excluded, that weight or probative value of the said evidence depends on the facts of each case and that if the witness is purposefully withheld or his examination is postponed, the said evidence is inadmissible. Relying upon the said judgment, it is submitted on behalf of the plaintiffs that the evidence of DW1 who failed to appear for his cross examination, cannot be considered. This court is in agreement with the said proposition of law and accordingly did not consider his chief examination. However, this court relying upon R.M.
Mallappa, represented by LRs and others vs R.M. Basappa and others, 2017
SCC OnLine Kar 6714, considered the public documents i.e. Exs. B1 to B35 which included the originals as well as certified copies only, in the present case. As already observed above, the plaintiffs did not challenge the docket order dated 21.02.2022 of this court, wherein this court decided to consider the said documents in evidence. Therefore, the said order attained finality in law and is binding on them. Even otherwise, it is to be borne in mind that
DW1 is not the witness produced by the defendant No.16 to 21 and the said witness is not withheld intentionally by the defendant Nos. 16 to 21 from facing the cross examination. Therefore, the defendant Nos. 16 to 21 cannot be faulted for such failure of DW1. Hence, no adverse inference can be drawn against the defendant Nos.16 to 21 from such failure of DW1 (Sri
Venkateswara Oil Company, Tirupathi vs Guduru Jalaja Reddy and others, 49
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2001 SCC OnLine AP 1059).
46. The plaintiffs placed reliance upon the judgment made in S.P.
Chengalvaraya Naidu (dead) by Lrs vs Jagannath (dead) by Lrs and others,
AIR 1994 SC 853, in support of their case. In the said case, the Apex Court considered the effect of a litigant playing fraud on court and obtaining a decree in his favour by withholding a vital document relevant to the litigation.
In the said case, it is observed as follows:
“1. "Fraud-avoids all judicial acts, ecclesiastical or temporal" observed
Chief Justice Edward Coke of England about three centuries ago. 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 eyes of law.
Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
…..………...
7. The High Court, in our view, fell into patent error. The short question
before the High Court was whether in the facts and circumstances of
this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High
Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the 50
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parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
8. The facts of the present case leave no manner of doubt that
Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal
Sowcar. He purchased the property in the court auction on behalf of
Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the court….. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other 51
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side then he would he guilty of playing fraud on the court as well as on the opposite party.” (Emphasis supplied)
47. The observations made and the ratio laid down by the Apex Court in
S.P. Chengalvaraya Naidu (dead) by Lrs vs Jagannath (dead) by Lrs and others, AIR 1994 SC 853 referred above and relied upon by the plaintiffs, in fact, apply with full force against the plaintiffs themselves. This is so because, in the present case, it is seen that the plaintiffs have filed OS No. 23 of 2001, a suit for partition of the suit A scheduled land herein and other land belonging to the undisputed original owner Salem Bin Ahmed and obtained
Ex.A5 award of Lok Adalat dated 24.07.2002 and Ex.A6 final decree dated 06.08.2002, whereby the suit A scheduled land herein was allotted to the share of the plaintiff No.1 herein. Avoiding the broadening this judgment, for the elaborate discussion of the facts and evidence herein above, it is suffice to observe that the plaintiff No.1 initially and other plaintiffs herein who came on record as her legal representatives on her death, intentionally did not whisper about the registered sale deed dated 07.05.1965 executed by Salem
Bin Ahmed selling Ac.6-32 gts of land, out of Ac.9-13 gts of land (subject matter of OS No. 23 of 2001), to Smt. Anasuya Bai and said Salem Bin Ahmed lost title and possession of the suit A scheduled land herein on 07.05.1965 itself, the plaintiffs herein suppressed the said fact in OS No. 23 of 2001 (as well as in the present suit, by falsely alleging that the defendants herein encroached into the said land in the first week of January, 2007) and without making the subsequent purchasers of the said land including the defendants herein as parties to both the suits and thus by playing fraud, obtained Ex.A5 award, and A6 final decree. Therefore, the said award and final decree obtained by playing fraud on the said fora, are non-est in law and the same 52
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can be challenged by the aggrieved parties in any proceedings including collateral proceedings. The defendants herein, more particularly the defendant Nos. 16 to 21, though did not make a counter claim against the plaintiffs herein, challenged the same alleging fraud and putforth their defence successfully.
48. On behalf of the plaintiffs, reliance is placed on the Judgments made in Uppari Muthamma and others vs Special Tribunal, Hyderabad and others, 1997 SCC OnLine AP 433 (DB); Modem Rajamouli vs Modem Roshaiah and others, 2000 SCC OnLine AP 246; Mohd. Kareemuddin Khan (died) and others vs Syed Azam, 1996 SCC OnLine AP 523 (DB) and Bakaram Jangaiah and others vs Gunde Laxmamma (died) by Lrs., 1998 SCC OnLine AP 864. In the said cases, it is held that any transfer of land without obtaining permission under section 47 of the A.P. (Telangana Area) Tenancy and
Agricultural Lands Act, 1950 is not valid. In the present case, it is nobody’s case that the suit A scheduled land is a tenancy land. On the other hand, it was the patta land of late Salem Bin Ahmed belonging to and possessed by him exclusively, initially governed by the Andhra Pradesh Rights in Land and
Pattadar Pass Books Act, 1971. Due to undisputed change of the said land into urban apartments, it is no more an agricultural land and therefore the provisions of the said Act do not apply now to the said land. Therefore, the said case law does not come to the aid of the case of the plaintiffs.
49. The judgment made in Aradada Radhabai and others vs
Kokkirigadda Lakshmi and others, 2019 SCC OnLine AP 44, is relied upon by the plaintiffs to buttress the contention that the unregistered sale deed dated 25.10.1980 allegedly executed by Balakrishna Reddy and others in favour of 53
OS No. 368 of 2007
the defendant No.1 in respect of the suit A scheduled land (being not brought on record as required by law), it cannot be relied upon by the defendants to prove their possession as a collateral purpose. The fact remains that the defendants did not bring the said document on record before this court as required by law and they did not get it marked as a document in support of their case. On the other hand, it is the plaintiff No.1 herself, who during her chief examination, got a photostat copy of such document as Ex.A8 and later on the same was struck off from evidence, at the instance of the plaintiffs, which is already discussed above by this court. When the said document proper is not at all on record before this court, the question of looking into it as evidence for the collateral purpose of proving the possession of the defendant No.1 does not arise. However, this court independent of the said document (not being on record), considered the other registered documents and evidence as ancillary documents or evidence and proceeded to adjudicate the suit. Therefore, the said judgment also does not help the case of the plaintiffs. For all the aforesaid discussion, these issues are answered in favour of the defendant Nos. 16 to 21 and against the plaintiffs.
50. Issue No.5: As all other issues and additional issues in the suit are already answered by this court in favour of the defendant Nos. 16 to 21 and against the plaintiffs, the suit of the plaintiffs fails in toto and the same is liable to be dismissed. Accordingly the suit is dismissed with costs against the defendant Nos. 16 to 21.
51. In the result, the suit is dismissed in respect of the suit C scheduled property and the suit is already dismissed in respect of the suit
B scheduled property as shown in the rough sketch map filed by the 54
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plaintiffs through a memo dated 24.01.2022, in view of abandonment of claim of the plaintiffs thereto and order of this court in IA No. 438 of 2021
dated 22.12.2021. The plaintiffs shall pay costs of the suit to the
defendant Nos. 16 to 21.
Typed to my dictation by the Typist, corrected and pronounced by me in the open court on this the 31st day of March, 2022.
XIV ADDL. DISTRICT JUDGE,
RANGA REDDY DISTRICT.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF S : FOR DEFENDANT Nos.1, 10 and 11 :
PW1: Qamar Siddiqua DW1: M.Prabhakar (Eschewed PW2: Mohd. Bin Salam by docket order dated 29.08.2017)
FOR DEFENDANT Nos. 16 to 21:
DW2: A.Ram Reddy
DW3: K.Jagan Reddy
EXHIBITS MARKED
FOR PLAINTIFF S :
Ex.A1: True copy of the adangal pahani for the year 2002-2003.
Ex.A2: True copy of the adangal pahani for the year 2001-2002.
Ex.A3: True copy of the adangal pahani for the year 2000-2001.
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Ex.A4: True copy of the adangal pahani for the year 1999-2000.
Ex.A5: Certified copy of the award passed in O.S.No.23/2001 by the
Hon’ble Lok Adalat, R.R.District, dated 24-07-2002.
Ex.A6: Certified copy of the final decree passed in O.S.No.23/2001 on the file of Hon’ble 1st Addl. Senior Civil Judge, R.R.District, dated 06-08- 2002.
Ex.A7: Certified copy of the plan attached to the Final decree passed in
O.S.No.23/2001.
Ex.A8: Xerox copy of the document of sale dated 25-10-1980.
(Eschewed as per order in IA No. 437 of 2021 dated 21.12.2021)
Ex.A9: Certified copy of registered sale deed dated 09-10-2002.
Ex.A10: Certified copy of the registered agreement of sale cum G.P.A.
dated 18-06-2004.
Ex.A11: Certified copy of the registered sale deed dated 24-10-2005.
Ex.A12: Certified copy of registered sale deed datedm 19-01-2006.
Ex.A13: Certified copy of the registered gift settlement deed dated 26-11-2005.
Ex.A14: Certified copy of the registered Gift settelement deed dated 18-09-2006.
Ex.A15: Certified copy of the registered Development Agreement – cum-
G.P.A.dated 18.09.2006
Ex.A16: Market value certificate (26 and 28 guntas under survey No.76).
Ex.A17: Certified copy of judgment dated 29-11-2013 passed in OS
No.200/2013 on the file of the Principal District Court, Ranga
Reddy District.
Ex.A18: Certified copy of plaint in OS No.200/2013.
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Ex.A19: Certified copy of registered sale deed dated 30.5.2012.
Ex.A20: Certified copy of registered sale deed dated 30.05.2012.
Ex.A21: Certified copy of unregistered agreement of sale dated 20-07-2012.
FOR DEFENDANT S :
Ex.B1: Certified copy of registered sale deed Dt.29-12-1977.
Ex.B2: Certified copy of registered sale deed Dt.12-09-1979.
Ex.B3: Certified copy of registered sale deed Dt.09-10-2002.
Ex.B4: Certified copy of registered sale cum GPA, Dt.18-06-2004.
Ex.B5: Certified copy of registered sale deed Dt.24-10-2005.
Ex.B6: Certified copy of registered sale deed Dt.19-01-2006.
Ex.B7: Certified copy of registered sale deed Dt.11-02-2008.
Ex.B8: Certified copy of pahani patrika for year 1974-75.
Ex.B9: Certified copy of pahani patrika for year 1985-86.
Ex.B10: Certified copy of pahani patrika for year 1986-87.
Ex.B11: Certified copy of pahani patrika for year 1987-88.
Ex.B12: Certified copy of pahani patrika for year 1988-89.
Ex.B13: Certified copy of pahani patrika for year 1989-90.
Ex.B14: Certified copy of pahani patrika for year 1993-94.
Ex.B15: Certified copy of pahani patrika for year 1994-95.
Ex.B16: Certified copy of pahani patrika for year 1995-96.
Ex.B17: Certified copy of pahani patrika for year 1996-97.
Ex.B18: Certified copy of pahani patrika for year 1987-98.
Ex.B19: Certified copy of pahani patrika for year 1998-99.
Ex.B20: Certified copy of pahani patrika for year 1999-2000.
57
OS No. 368 of 2007
Ex.B21: Original Electricity bill, Dt.12-05-2011.
Ex.B22: Original receipt pass by E-seva, Dt.19-05-2011.
Ex.B23: Original Electricity Bil Dt.23-10-2012.
Ex.B24: Original receipt passed by E.seva, Dt.11-11-2012.
Ex.B25: Original Telephone bill Dt.05-09-2007.
Ex.B26: Original Receipt passed by B.S.N.L. Dt,.26-10-2007.
Ex.B27: Original Property tax, Dt.15-11-1999.
Ex.B28: Original Property tax, Dt.18-01-2012.
Ex.B29: Original Memo issued by Joint Sub-Registrar, Dt.12-02-2013.
Ex.B30: Original orders passed by RDO Chevella Division Appeal
No.C/384/07, Dt.08-01-2008.
Ex.B31: Certified copy of registered gift deed Dt. 26-11-2005.
Ex.B32: Certified copy of registered gift deed Dt. 18-09-2006,
Ex.B33: Certified copy of registered development of agreement of sale cum GPA , Dt.18-09-2006.
Ex.B34: Certified copy of cancellation of development agreement of sale cum GPA , Dt.30-05-2012.
Ex.B35: Certified copy of Plaint in OS No.126 of 2008 on the file of V Addl.
District Sessions Judge, FTC R.R.District filed by Defendant 1,10 and 11.
Ex.B36: Certified copy of letter of Jt. Sub-Registrar-I, R.R.District.
Ex.B37: Certified copy registered sale deed dated 02.01.1978 along with
English translation.
Ex.B38: Letter issued by Jt.Sub-Registrar-I, R.R.District.
Ex.B39: Certified copy of proceedings of mutation dated 09-09-2002.
Ex.B40: Certified copy of Order of the Debts Recovery Tribunal-II at 58
OS No. 368 of 2007
Hyderabad in IA.No.3318 of 2018 in SA. No.165 of 2018 dated 27-12-2019.
Ex.B41: Certified copy of Order of the Debts Recovery Tribunal-II at
Hyderabad in SA No.263 of 2018 dated 15-03-2019.
Ex.B42: Certified copy of docket order of the Debts Recovery Tribunal-II at
Hyderabad in SA.No.160 of 2017 dated 22-02-2018.
Ex.B43: Certified copy of registered sale certificate Dt.13.1.2016.
XIV ADDL. DISTRICT JUDGE,
RANGA REDDY DISTRICT.