1
OS.No.20/2016, Dt.10-11-2023
S.C.J., Court, Parchur.
IN THE COURT OF THE SENIOR CIVIL JUDGE, PARCHUR. IN THE COURT OF THE SENIOR CIVIL JUDGE, PARCHUR.
Present: Smt. M. Sudha,Present: Smt. M. Sudha,
Senior Civil Judge, Chirala Senior Civil Judge, Chirala
FAC: Senior Civil Judge, Parchur. FAC: Senior Civil Judge, Parchur.
Friday, this the Tenth [10thFriday, this the Tenth [10th] day of November, 2023.] day of November, 2023.
Original Suit No.20 of 2016 Original Suit No.20 of 2016
Between:
1. Kasi Yagneswari Vigneswaramma, w/o.Naghabhushanachari, age 69 years, R/o.Kothapet, Vetapalem mandal, Prakasam District,
2. Kasi Venu Brahmacharyulu, s/o.Nagabhushanachari, age 45 years, R/o.Kothapet, Vetapalem mandal, Prakasam District, . . . . . . Plaintiffs
AND
1. Chouta Dileep, s/o.Mallikarjuna Rao, age 28 years, R/o.D.No.3-11, M.G.H Colony, Chirala Mandal, Prakasam District,
2. Tavva Venkata Srinivasa Rao, s/o.Subba Rao, age 50 years, R/o.Sri Lakshmi Srinivasa Housing Colony, Kothapet, Vetapalem Mandal, Prakasam District, . . . . . . Defendants
This suit came before me for final hearing on 03.11.2023 in theThis suit came before me for final hearing on 03.11.2023 in the presence of Sri P.Surendra, Advocate for plaintiffs and ofpresence of Sri P.Surendra, Advocate for plaintiffs and of Sri Ch.Subba Rao, Advocate for the defendants and upon perusing theSri Ch.Subba Rao, Advocate for the defendants and upon perusing the plaint, written statement and other connected material papers on recordplaint, written statement and other connected material papers on record and having stood over for consideration till this day this Court deliveredand having stood over for consideration till this day this Court delivered the following:the following:
// J U D G M E N T // // J U D G M E N T //
The plaintiffs filed this suit against the defendants for cancellationThe plaintiffs filed this suit against the defendants for cancellation of sale deed dated 03-11-2015 executed by the 1stof sale deed dated 03-11-2015 executed by the 1st defendant in favour defendant in favour of the 2ndof the 2nd defendant on the basis of Agreement of sale with G.P.A., dated defendant on the basis of Agreement of sale with G.P.A., dated 12-12-2008 executed by Plaintiffs in favour of 1st12-12-2008 executed by Plaintiffs in favour of 1st defendant; and to defendant; and to grant consequential injunction in favour of the Plaintiffs restraining thegrant consequential injunction in favour of the Plaintiffs restraining the defendants and their men from ever interfering with the peacefuldefendants and their men from ever interfering with the peaceful 2
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S.C.J., Court, Parchur.
possession and enjoyment of the suit schedule property and for costs ofpossession and enjoyment of the suit schedule property and for costs of the suit.the suit.
2 2. . The brief averments of the plaint are as follows: The brief averments of the plaint are as follows:
a. It is submitted that the plaintiffs borrowed an amount ofa. It is submitted that the plaintiffs borrowed an amount of
Rs.1,01,000/- from the 1stRs.1,01,000/- from the 1st defendant on 12-12-2008 with interest @ 18% defendant on 12-12-2008 with interest @ 18% p.a. Generally some of the financiers in Chirala while lending amountsp.a. Generally some of the financiers in Chirala while lending amounts for interest, the lenders use to get the Regd.Agreement of sale-cum-for interest, the lenders use to get the Regd.Agreement of sale-cum-
G.P.A., for immovable properties from the borrowers. Whileso, the 1stG.P.A., for immovable properties from the borrowers. Whileso, the 1st defendant requested the plaintiffs to give documents in respect ofdefendant requested the plaintiffs to give documents in respect of schedule property, for which, the plaintiffs gave photostat copy ofschedule property, for which, the plaintiffs gave photostat copy of settlement deed bearing document No.818/1970 dated 04-05-1970 ofsettlement deed bearing document No.818/1970 dated 04-05-1970 of the 1stthe 1st plaintiff and there is no photostat copy of pattadar pass book, the plaintiff and there is no photostat copy of pattadar pass book, the original pass book was given to 1storiginal pass book was given to 1st defendant. Then the 1 defendant. Then the 1stst defendant defendant obtained formal agreement of sale cum-G.P.A., on 12-12-2008 for anobtained formal agreement of sale cum-G.P.A., on 12-12-2008 for an extent of Ac.0-61 ½ cents of land in S.No.1369/3 of Swarna village,extent of Ac.0-61 ½ cents of land in S.No.1369/3 of Swarna village,
Karamchedu Mandal. Karamchedu Mandal.
The plaintiffs unable to pay the interest from 12-12-2012 due toThe plaintiffs unable to pay the interest from 12-12-2012 due to lack of income for agricultural land, the 1stlack of income for agricultural land, the 1st defendant had been defendant had been demanding to repay the amount with interest @ 24% p.a., instead ofdemanding to repay the amount with interest @ 24% p.a., instead of agreed rate 18% p.a., else, the agreement of sale with G.P.A., would beagreed rate 18% p.a., else, the agreement of sale with G.P.A., would be activated to sell away the schedule property. While so, the plaintiffs gotactivated to sell away the schedule property. While so, the plaintiffs got issued legal notice to 1stissued legal notice to 1st defendant on 30-10-2015 urging him to grant defendant on 30-10-2015 urging him to grant one month time to discharge the entire balance amount of Rs.1,01,000/-one month time to discharge the entire balance amount of Rs.1,01,000/- with agreed interest at the rate of 18% p.a., but the 1stwith agreed interest at the rate of 18% p.a., but the 1st defendant defendant intentionally got returned the said legal notice. intentionally got returned the said legal notice.
It is further submitted that, the 1stIt is further submitted that, the 1st defendant colluded with 2 defendant colluded with 2ndnd defendant brought into existence of sale deed dated 03-11-2015.defendant brought into existence of sale deed dated 03-11-2015.
Further, the alleged sale deed drafted on five N.J stamps each for Rs.20/-Further, the alleged sale deed drafted on five N.J stamps each for Rs.20/- 3
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S.C.J., Court, Parchur.
on 30-10-2013on 30-10-2013 and registered on 03-11-2015, when the computerized and registered on 03-11-2015, when the computerized stamps are very much available on the date of sale deed on 03-11-2015stamps are very much available on the date of sale deed on 03-11-2015 in Sub-Registrar Office. The execution of alleged sale deed shows thein Sub-Registrar Office. The execution of alleged sale deed shows the date if “30-10-2013”, but the alleged sale deed is of the year 2015 anddate if “30-10-2013”, but the alleged sale deed is of the year 2015 and not 2013. Further, the market value of suit schedule property would benot 2013. Further, the market value of suit schedule property would be not less than Rs.8,00,000/- as per Plaintiffs, but the purchased amountnot less than Rs.8,00,000/- as per Plaintiffs, but the purchased amount mentioned in the alleged sale deed dated 03-11-2015 is Rs.3,08,000/-;mentioned in the alleged sale deed dated 03-11-2015 is Rs.3,08,000/-; and the 1stand the 1st defendant address mentioned in the legal notice dated 30- defendant address mentioned in the legal notice dated 30- 10-2015 and the address mentioned in the alleged sale deed dated 03-10-2015 and the address mentioned in the alleged sale deed dated 03- 11-2015 are one and the same, how the 1st11-2015 are one and the same, how the 1st defendant could return the defendant could return the legal notice with endorsement ‘seven days door locked”, as such, thelegal notice with endorsement ‘seven days door locked”, as such, the returning of legal notice with such endorsement with undoubtedlyreturning of legal notice with such endorsement with undoubtedly maintained the postal department.maintained the postal department.
It is further submitted that, the plaintiffs have been inIt is further submitted that, the plaintiffs have been in un-interrupted possession and enjoyment of suit schedule property andun-interrupted possession and enjoyment of suit schedule property and the defendants are trying to enter into the schedule property under thethe defendants are trying to enter into the schedule property under the guise of alleged created sale deed and by force. In these circumstances,guise of alleged created sale deed and by force. In these circumstances, the Plaintiffs have no option except to knock the doors of this Court.the Plaintiffs have no option except to knock the doors of this Court.
Hence, the suit. Hence, the suit.
3 3. . The 2 The 2 nd nd defendant filed his written statement denying the defendant filed his written statement denying the averments of the plaint and the same was adopted by the 1 st averments of the plaint and the same was adopted by the 1 st defendant. The brief averments of the written statement are as defendant. The brief averments of the written statement are as under: under:
a. It is submitted that the 2nda. It is submitted that the 2nd defendant purchased the schedule defendant purchased the schedule property under a registered sale deed dated 03-11-2015 from the 1stproperty under a registered sale deed dated 03-11-2015 from the 1st defendant for valuable consideration and he is the bona fide purchaserdefendant for valuable consideration and he is the bona fide purchaser in good faith. Ever since the date of purchase, he has been in possessionin good faith. Ever since the date of purchase, he has been in possession and enjoyment of the schedule property with the knowledge of theand enjoyment of the schedule property with the knowledge of the plaintiffs. The plaintiffs have no right over the schedule property andplaintiffs. The plaintiffs have no right over the schedule property and 4
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S.C.J., Court, Parchur.
they have no possession or title over the schedule property and the 1stthey have no possession or title over the schedule property and the 1st plaintiff sold the schedule property to the 1stplaintiff sold the schedule property to the 1st defendant under the defendant under the agreement of sale with G.P.A., and the said agreement of sale withagreement of sale with G.P.A., and the said agreement of sale with
G.P.A., and the sale deed dated 03-11-2015 are valid documents underG.P.A., and the sale deed dated 03-11-2015 are valid documents under the law and the plaintiffs have no right to get the said sale deedthe law and the plaintiffs have no right to get the said sale deed cancelled and hence, the plaintiffs are not entitled to claim the reliefcancelled and hence, the plaintiffs are not entitled to claim the relief sought for and prays to dismiss the suit with costs. sought for and prays to dismiss the suit with costs.
4 4. . Basing on the pleadings my learned predecessor in office settled theBasing on the pleadings my learned predecessor in office settled the following issues for trial:following issues for trial:
1. Whether the registered sale deed dated 03-11-2015 is true1.Whether the registered sale deed dated 03-11-2015 is true and valid ? ? and valid
2. Whether agreement of sale cum G.P.A., dated 12-12-20082.Whether agreement of sale cum G.P.A., dated 12-12-2008 is formal as contended by the Plaintiffs ? is formal as contended by the Plaintiffs ?
3. Whether the 23.Whether the 2 nd nd Plaintiff is entitled to cancellation of Plaintiff is entitled to cancellation of registered sale deed dated 03-11-2015 executed by the 1 st registered sale deed dated 03-11-2015 executed by the 1 st defendant in favour of 2 nd defendant in favour of 2 nd defendant, and to the relief of defendant, and to the relief of consequential injunction, as prayed for ? consequential injunction, as prayed for ?
4. To what relief?4.To what relief?
6. 6.At the event of trial, the 2ndAt the event of trial, the 2nd plaintiff – Kasi Venu Brahmacharyulu plaintiff – Kasi Venu Brahmacharyulu is examined as P.W.1 and one Neerukattu Srinivasa Rao and Perniis examined as P.W.1 and one Neerukattu Srinivasa Rao and Perni
Subbarayudu are examined as P.Ws 2 and 3 and got marked Exs.A1 toSubbarayudu are examined as P.Ws 2 and 3 and got marked Exs.A1 to
A.7 on behalf of the plaintiffs.A.7 on behalf of the plaintiffs.
The 2ndThe 2nd defendant-Tavva Venkata Srinivasa Rao is examined as defendant-Tavva Venkata Srinivasa Rao is examined as
D.W.1 and the 1stD.W.1 and the 1st Defendant- Chouta Dileep is examined as D.W 2 and Defendant- Chouta Dileep is examined as D.W 2 and one Nidamanuri Krishna Rao is examined as D.W.3. Exs.B.1 to B.4 areone Nidamanuri Krishna Rao is examined as D.W.3. Exs.B.1 to B.4 are marked on behalf of the defendants. marked on behalf of the defendants.
7 7..During the course of arguments, the learned counsel for theDuring the course of arguments, the learned counsel for the plaintiffs argued that basing on un-possessory Agreement of sale-cum-plaintiffs argued that basing on un-possessory Agreement of sale-cum-
G.P.A., which was obtained for security by the 1stG.P.A., which was obtained for security by the 1st defendant, created defendant, created 5
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S.C.J., Court, Parchur.
sham and nominal documents in favour of the defendant No.2 andsham and nominal documents in favour of the defendant No.2 and prayed the Court to declare the registered sale deed executed by the 1stprayed the Court to declare the registered sale deed executed by the 1st defendant in favour of the defendant No.2 as null and void and alsodefendant in favour of the defendant No.2 as null and void and also grant permanent injunction restraining the defendants 1 and 2 fromgrant permanent injunction restraining the defendants 1 and 2 from interfering with the peaceful possession and enjoyment of the scheduleinterfering with the peaceful possession and enjoyment of the schedule property and sought to decree the suit.property and sought to decree the suit.
Per contra, learned counsel for 2ndPer contra, learned counsel for 2nd defendant argued that the defendant argued that the 22ndnd defendant purchased the schedule property under a registered saledefendant purchased the schedule property under a registered sale deed dated 03-11-2015 from the 1stdeed dated 03-11-2015 from the 1stdefendant for valuabledefendant for valuable consideration and he is the bona fide purchaser in good faith. Ever sinceconsideration and he is the bona fide purchaser in good faith. Ever since the date of purchase, he has been in possession and enjoyment of thethe date of purchase, he has been in possession and enjoyment of the schedule property with the knowledge of the plaintiffs and the plaintiffsschedule property with the knowledge of the plaintiffs and the plaintiffs have no right over the schedule property and they have no title orhave no right over the schedule property and they have no title or possession over the schedule property and the 1stpossession over the schedule property and the 1st plaintiff sold the plaintiff sold the schedule property to the 1stschedule property to the 1st defendant under the agreement of sale with defendant under the agreement of sale with
G.P.A., and the said agreement of sale with G.P.A., and the sale deedG.P.A., and the said agreement of sale with G.P.A., and the sale deed
dated 03-11-2015 are valid documents under the law and the plaintiffsdated 03-11-2015 are valid documents under the law and the plaintiffs
have no right to get the said sale deed cancelled and hence, thehave no right to get the said sale deed cancelled and hence, the plaintiffs are not entitled to claim the relief sought for and prays toplaintiffs are not entitled to claim the relief sought for and prays to dismiss the suit with costs. dismiss the suit with costs.
8 8..Heard both sides. Perused the material on record.Heard both sides. Perused the material on record.
ISSUE NO.1 to 3: ISSUE NO.1 to 3:
9 9..In a suit for declaration, the initial burden always lies on theIn a suit for declaration, the initial burden always lies on the
Plaintiffs to prove that they got right, title, and interest over the PlaintPlaintiffs to prove that they got right, title, and interest over the Plaint schedule property, and the Plaintiffs have to stand on their own legs,schedule property, and the Plaintiffs have to stand on their own legs, and they cannot depend upon the weaknesses of the Defendants’ case.and they cannot depend upon the weaknesses of the Defendants’ case.
It was observed in It was observed in 1999(3) ALT 2010 1999(3) ALT 2010 between between K. Venkatasubba K. Venkatasubba 6
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S.C.J., Court, Parchur.
Reddi ANDReddi AND Bairagi Ramaiah (died) and his LRs Bairagi Ramaiah (died) and his LRs that “ that “the plaintiffthe plaintiff must succeed by establishing his own title, by adducing satisfactorymust succeed by establishing his own title, by adducing satisfactory evidence and he cannot succeed on the weakness of the defendant’sevidence and he cannot succeed on the weakness of the defendant’s case.”case.” 10. As seen from the case of the Plaintiff, the 210. As seen from the case of the Plaintiff, the 2ndnd Plaintiff, who Plaintiff, who examined as P.W.1, which is nothing-but replica of plaint averments,examined as P.W.1, which is nothing-but replica of plaint averments, wherein, he speaks that himself and his mother-1st plaintiff borrowed anwherein, he speaks that himself and his mother-1st plaintiff borrowed an amount of Rs.1,01,000/- on 12-12-2008 from the 1stamount of Rs.1,01,000/- on 12-12-2008 from the 1st defendant-Chouta defendant-Chouta
Dilip to meet the family expenses agreed to repay the same withDilip to meet the family expenses agreed to repay the same with interest 18% p.a. In addition to that, the 1stinterest 18% p.a. In addition to that, the 1st defendant obtained an defendant obtained an agreement of sale-cum-General Power of Attorney under Ex.A.1 inagreement of sale-cum-General Power of Attorney under Ex.A.1 in respect of the schedule property as a security to the promissory noterespect of the schedule property as a security to the promissory note debt. Further speaks that, in fact, the recitals of Ex.A.1-Agreement ofdebt. Further speaks that, in fact, the recitals of Ex.A.1-Agreement of sale- cum- G.P.A. that himself and his mother sold the schedulesale- cum- G.P.A. that himself and his mother sold the schedule property to 1stproperty to 1st defendant for sale consideration is not correct one and defendant for sale consideration is not correct one and himself and his mother in dire need obeyed the demands made by thehimself and his mother in dire need obeyed the demands made by the 11stst defendant, which is prevailing system of private financiers at Chirala. defendant, which is prevailing system of private financiers at Chirala.
Further speaks that it is well known fact to one and all that the moneyFurther speaks that it is well known fact to one and all that the money lenders lending money for interest, they are getting registeredlenders lending money for interest, they are getting registered agreement of sale-cum-G.P.A., for immovable properties from theagreement of sale-cum-G.P.A., for immovable properties from the innocent borrowers for safety of their finance system and alsoinnocent borrowers for safety of their finance system and also threatened to execute sale deeds etc., with the aid of General Power ofthreatened to execute sale deeds etc., with the aid of General Power of
Attorney. Further speaks that the 1stAttorney. Further speaks that the 1st defendant is money lender and in defendant is money lender and in fact, the alleged agreement of sale-cum-G.P.A., 12-12-2008 is notfact, the alleged agreement of sale-cum-G.P.A., 12-12-2008 is not supported by consideration and its contents are not correct and it wassupported by consideration and its contents are not correct and it was not executed voluntarily with free consent and his will. Further at thenot executed voluntarily with free consent and his will. Further at the time of lending money, 1sttime of lending money, 1st defendant took photostat copy of link defendant took photostat copy of link document, revenue pattadar pass book and original revenue title deeddocument, revenue pattadar pass book and original revenue title deed 7
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etc., from them and prepared the alleged agreement of sale-cum-G.P.A.,etc., from them and prepared the alleged agreement of sale-cum-G.P.A., and those are in the custody of 1stand those are in the custody of 1st defendant. Further speaks that they defendant. Further speaks that they are in possession and enjoyment of the suit schedule property, after theare in possession and enjoyment of the suit schedule property, after the death of his mother he took possession and enjoyment. Further speaks,death of his mother he took possession and enjoyment. Further speaks, as per terms of loan, he paid interest for a period of three years i.e.,as per terms of loan, he paid interest for a period of three years i.e., from 12-12-2008 to 12-12-2011 total amount of Rs.54,540/- to the 1stfrom 12-12-2008 to 12-12-2011 total amount of Rs.54,540/- to the 1st defendant and he is unable to pay the interest from 13-12-2011 due todefendant and he is unable to pay the interest from 13-12-2011 due to lack of considerable income from agricultural lands, as such, he gotlack of considerable income from agricultural lands, as such, he got issued legal notice to the 1stissued legal notice to the 1st defendant under Ex.A.4 on 30-10-2015 defendant under Ex.A.4 on 30-10-2015 urging to grant one month time to discharge the entire balance loan withurging to grant one month time to discharge the entire balance loan with interest of Rs.1,01,000/- principal and due interest @ 18% as per theinterest of Rs.1,01,000/- principal and due interest @ 18% as per the terms of loan under Ex.A.1, which was executed before commencementterms of loan under Ex.A.1, which was executed before commencement of the sale and the same was returned with endorsement ‘7’ days doorof the sale and the same was returned with endorsement ‘7’ days door locked, even he send the same with correct postal address of 1stlocked, even he send the same with correct postal address of 1st defendant. Further speaks that the 1stdefendant. Further speaks that the 1st defendant did not receive Ex.A.4 defendant did not receive Ex.A.4 notice and with the collusion of 2ndnotice and with the collusion of 2nd defendant, he executed sham and defendant, he executed sham and nominal registered document under Ex.A.6 in favour of the 2ndnominal registered document under Ex.A.6 in favour of the 2nd defendant defendant and the said sale deed is not correct one.and the said sale deed is not correct one.
(ii). In support of the Plaintiffs, P.Ws.2 and 3 have supported the(ii). In support of the Plaintiffs, P.Ws.2 and 3 have supported the case of the Plaintiffs. case of the Plaintiffs.
11..11Whereas the case of the 2ndWhereas the case of the 2nd defendant, who examined as D.W.1 defendant, who examined as D.W.1 from his chief-affidavit, he speaks that he purchased the schedulefrom his chief-affidavit, he speaks that he purchased the schedule property from the 1stproperty from the 1st defendant under Ex.A.6 sale deed. Eversince he is defendant under Ex.A.6 sale deed. Eversince he is in possession and enjoyment of the same and plaintiff has no right toin possession and enjoyment of the same and plaintiff has no right to cancel Ex.A.6 sale deed. Further speaks that sale agreement cum G.P.A.,cancel Ex.A.6 sale deed. Further speaks that sale agreement cum G.P.A., under Ex.A.1 is valid document and the plaintiff has no right to soughtunder Ex.A.1 is valid document and the plaintiff has no right to sought the relief of cancellation of Ex.A.6, since he obtained adangal underthe relief of cancellation of Ex.A.6, since he obtained adangal under 8
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Ex.B.2. mee-Seva copy under Ex.B.2 and 1-B Namoona and R.O.R underEx.B.2. mee-Seva copy under Ex.B.2 and 1-B Namoona and R.O.R under
Ex.B.3 basing on Ex.A.6 sale deed from the revenue authorities.Ex.B.3 basing on Ex.A.6 sale deed from the revenue authorities.
(ii). D.W.2, who is the third party to the proceedings by filing his(ii). D.W.2, who is the third party to the proceedings by filing his examination-in-chief, which speaks that the 2ndexamination-in-chief, which speaks that the 2nd defendant purchased the defendant purchased the schedule property under Ex.A.6. Ever since, the 2ndschedule property under Ex.A.6. Ever since, the 2nd defendant has been defendant has been in possession and enjoyment of the same. Further speaks, prior to thatin possession and enjoyment of the same. Further speaks, prior to that the 1stthe 1st defendant purchased the same from the Plaintiff under Ex.A.1. defendant purchased the same from the Plaintiff under Ex.A.1.
(iii). D.W.3 -Chouta Dilip, who is the 1st(iii). D.W.3 -Chouta Dilip, who is the 1st defendant speaks that he defendant speaks that he purchased the schedule property from the plaintiff under agreement ofpurchased the schedule property from the plaintiff under agreement of sale- cum-G.P.A., No.5817/2008 dated 12-12-2008, later he sold thesale- cum-G.P.A., No.5817/2008 dated 12-12-2008, later he sold the schedule property to the 2ndschedule property to the 2nd defendant and 2 defendant and 2ndnd defendant purchased the defendant purchased the schedule property under registered sale deed under Ex.A.6 from him forschedule property under registered sale deed under Ex.A.6 from him for valuable consideration and executed the said sale deed in favour of thevaluable consideration and executed the said sale deed in favour of the 22ndnd defendant, as a owner and G.P.A. holder to the Plaintiff. Further defendant, as a owner and G.P.A. holder to the Plaintiff. Further speaks that he delivered possession to the 2ndspeaks that he delivered possession to the 2nd defendant under the said defendant under the said sale deed as G.P.A., holder, for which, one Nidamanuri Krishna Rao andsale deed as G.P.A., holder, for which, one Nidamanuri Krishna Rao and
Mummalaneni Sai Babu attested the said sale deed. Further speaks, everMummalaneni Sai Babu attested the said sale deed. Further speaks, ever since the 2ndsince the 2nd defendant has been in possession and enjoyment of the defendant has been in possession and enjoyment of the schedule property with the knowledge of plaintiff and the revenueschedule property with the knowledge of plaintiff and the revenue authorities mutated the D.2 name in the revenue records and issuedauthorities mutated the D.2 name in the revenue records and issued pattadar pass book to him.pattadar pass book to him.
12..12Whatever the contentions coming from both sides, the factWhatever the contentions coming from both sides, the fact remains that there is no dispute that the 1stremains that there is no dispute that the 1st defendant obtained defendant obtained agreement of sale-cum-G.P.A., from the Plaintiffs 1 and 2, wherein, theagreement of sale-cum-G.P.A., from the Plaintiffs 1 and 2, wherein, the recitals shows that the plaintiff executed agreement of sale -cum- G.P.A.,recitals shows that the plaintiff executed agreement of sale -cum- G.P.A., under Ex.A.1 on receipt of total consideration. But the case of theunder Ex.A.1 on receipt of total consideration. But the case of the
Plaintiffs is in nut-shell that Ex.A.1 agreement of sale-cum-G.P.A., is onlyPlaintiffs is in nut-shell that Ex.A.1 agreement of sale-cum-G.P.A., is only executed as a security to the promissory note debt incurred by them toexecuted as a security to the promissory note debt incurred by them to 9
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the 1stthe 1st defendant. However, the validity of Ex.A.1 can be decided in due defendant. However, the validity of Ex.A.1 can be decided in due course. The main point for consideration at this stage, whether the 1stcourse. The main point for consideration at this stage, whether the 1st defendant got right to sell the schedule property to the 2nddefendant got right to sell the schedule property to the 2nd defendant defendant basing on Ex.A.1- Agreement of sale-cum-G.P.A., or whether Ex.A.6 salebasing on Ex.A.1- Agreement of sale-cum-G.P.A., or whether Ex.A.6 sale deed is only nominal and collusive document as raised by the Plaintiff.deed is only nominal and collusive document as raised by the Plaintiff.
13..13As per the contention of the Plaintiffs that 1stAs per the contention of the Plaintiffs that 1st defendant obtained defendant obtained agreement of sale under Ex.A.1 from them towards security for the debtagreement of sale under Ex.A.1 from them towards security for the debt incurred under the promissory note and it is a nominal document, but itincurred under the promissory note and it is a nominal document, but it is agreement of sale without passing of consideration. Whereas, theis agreement of sale without passing of consideration. Whereas, the main case of the 1stmain case of the 1st defendant is that as per the recital of Ex.A.1- defendant is that as per the recital of Ex.A.1-
Agreement of sale, it is clearly recited that plaintiffs not only receivedAgreement of sale, it is clearly recited that plaintiffs not only received the consideration of Rs.1,01,000/- towards sale of schedule property andthe consideration of Rs.1,01,000/- towards sale of schedule property and also recited the 1stalso recited the 1st defendant has given General Power of attorney to sell defendant has given General Power of attorney to sell the property to third parties i.e., once the Plaintiff executed the G.P.A.,the property to third parties i.e., once the Plaintiff executed the G.P.A., over the property covered under Ex.A.1 by receiving total considerationover the property covered under Ex.A.1 by receiving total consideration of cash of Rs.1,01,000/-. They were estopped to raise any disputeof cash of Rs.1,01,000/-. They were estopped to raise any dispute regarding Ex.A.1 to sell the same by the 1stregarding Ex.A.1 to sell the same by the 1st defendant and others. Here defendant and others. Here the crucial recitals of Ex.A.1 agreement of sale-cum-G.P.A., is as follows:-the crucial recitals of Ex.A.1 agreement of sale-cum-G.P.A., is as follows:- “….“….క్ర�యదనం రు� రు.1,01,000/-క్ర�యదనం రు� రు.1,01,000/-� అక్షరము�� అక్షరము�ఒక్ర �క్ష ఒక్ర వె�� ర�పాయ� పూర్తి�గాఒక్ర �క్ష ఒక్ర వె�� ర�పాయ� పూర్తి�గా చెల్లిం��చినం రు�దునం రు మా� ముట్టి నం రు! క్రనుక్ర షెడ్యు�� దాఖ' భూ�మి* + పెర� గా*, చెల్లిం��చినం రు�దునం రు మా� ముట్టి నం రు! క్రనుక్ర షెడ్యు�� దాఖ' భూ�మి* + పెర� గా*, +రు కొర్తినం రు వార్తి పెరనం రు+రు కొర్తినం రు వార్తి పెరనం రు గా* + స్వం0�1 ఖరు2�3 +రు కొర్తినం రుప్పు5డ్యు స్వంక్ర�మమై8నం రు !క్ర�య దస్థా: వెజును వా<��చు�నె యెడల యెడ�గా* + స్వం0�1 ఖరు2�3 +రు కొర్తినం రుప్పు5డ్యు స్వంక్ర�మమై8నం రు !క్ర�య దస్థా: వెజును వా<��చు�నె యెడల యెడ� మైము రెజిస్టె రుమైము రెజిస్టె రుచె��చి ఇవ్వ0వ్వ�సినం రు యెర్పా5Hచె��చి ఇవ్వ0వ్వ�సినం రు యెర్పా5Hఅ�వునం రుJది, అ�వునం రుJది, స్వందరు ఎర్పా5Hస్వందరు ఎర్పా5Hప్ర�కార� +రుప్ర�కార� +రు కొర్తినం రుప్పు5డ్యు మైము స్వం0యముగా వ్వచి2కొర్తినం రుప్పు5డ్యు మైము స్వం0యముగా వ్వచి2ర్తిజిస్వం రు� చె��చి ఇచు2ట� మా� గ� ప్రను� వ్వత్థి:Rర్తిజిస్వం రు� చె��చి ఇచు2ట� మా� గ� ప్రను� వ్వత్థి:Rవ్వ�� మావ్వ�� మా 1రుప్పునం రు1రుప్పునం రుమిముS జనం రురU ప్రవ్వV ఆX అటార్తిJ ఎజ�H� గా *యమి�చఢమై8నం రుది,,మిముS జనం రురU ప్రవ్వV ఆX అటార్తిJ ఎజ�H� గా *యమి�చఢమై8నం రుదిగనుక్ర ఇ�1ట్టి ను�Rగనుక్ర ఇ�1ట్టి ను�R షెడ్యు�� స్వం:�మును + పేర� గా*,,షెడ్యు�� స్వం:�మును + పేర� గా*+రు కోర్తినం రువార్తి+రు కోర్తినం రువార్తిపేర గా* + స్వం0�1 ఖరు2�3 స్వంక్ర�మమై8నం రు !క్ర�యపేర గా* + స్వం0�1 ఖరు2�3 స్వంక్ర�మమై8నం రు !క్ర�య దస్థా� వెజు�ను వా<��చి స్వందరు దస్థా: వెజు�� స్వం�భూ�ధిచినం రు యావ్వ`�దస్థా� వెజు�ను వా<��చి స్వందరు దస్థా: వెజు�� స్వం�భూ�ధిచినం రు యావ్వ`�ఫారము�ను కూడ పూర్తి� చె��చిఫారము�ను కూడ పూర్తి� చె��చి స్వందరు దస్థా: వెజు�పె8నం రునం రు�, స్వందరు దస్థా: వెజు�పె8నం రునం రు�, ఫారము�ఫారము�పె8నం రునం రు� మా 1రుప్పునం రు +రు స్వం�1క్రము� చెసి మా స్థా� నె యెడల +రుపె8నం రునం రు� మా 1రుప్పునం రు +రు స్వం�1క్రము� చెసి మా స్థా� నె యెడల +రు స్వందరు దస్థా� వెజు�నుస్వందరు దస్థా� వెజు�నుర్తిజిస్థా రు ఆఫిసుe దాఖ� ప్రరచి ఒప్పు5దf8 స్వం�1క్రము� చెసి ర్తిజిస్వం రు� చె��చిర్తిజిస్థా రు ఆఫిసుe దాఖ� ప్రరచి ఒప్పు5దf8 స్వం�1క్రము� చెసి ర్తిజిస్వం రు� చె��చి 10
OS.No.20/2016, Dt.10-11-2023
S.C.J., Court, Parchur.
ఇచు2టకూనుJ, ఇచు2టకూనుJ, స్వందర్పాసి:* గుర్తి�చి ఏవె8i కొరు స్వందర్పాసి:* గుర్తి�చి ఏవె8i కొరు వ్వ�వ్వహరము� వ్వచిkనం రుయడ� ప్లీ�డర�ను *యమి�చివ్వ�వ్వహరము� వ్వచిkనం రుయడ� ప్లీ�డర�ను *యమి�చి వ్వకా'� � ఇచుmటకూనుJ, , వ్వకా'� � ఇచుmటకూనుJర్పాజి ప్రడ్యుట�నుJ, , ర్పాజి ప్రడ్యుట�నుJఅప్లీ5� చెయుటకూనుJ, , అప్లీ5� చెయుటకూనుJస్వందర్పాసి:* గుర్తి�చి *ర0హిం�చవ్వ�సిస్వందర్పాసి:* గుర్తి�చి *ర0హిం�చవ్వ�సి వ్వp2వ్వp2స్టె��ర్తిట్టి డీడీ�, స్టె��ర్తిట్టి డీడీ�, మారు5 స్వంవ్వరr మర్తియుమారు5 స్వంవ్వరr మర్తియుయావ్వ1��యావ్వ1��వ్వ�వ్వహరము�వ్వ�వ్వహరము�+రు మా 1రుప్పునం రు+రు మా 1రుప్పునం రు *ర0హిం�చుట� గాను ఇ�దు3 +� మేము అధికార� ఇవ్వ0డమై8నం రుది. .” *ర0హిం�చుట� గాను ఇ�దు3 +� మేము అధికార� ఇవ్వ0డమై8నం రుది”
On reading of recitals of Ex.A.1, there is no recital that Ex.A.1 is formalOn reading of recitals of Ex.A.1, there is no recital that Ex.A.1 is formal document and it was executed by the plaintiff in favour of the 1stdocument and it was executed by the plaintiff in favour of the 1st defendant towards security of promissory note debt incurred by themdefendant towards security of promissory note debt incurred by them earlier. Further, it discloses that Plaintiffs received the entireearlier. Further, it discloses that Plaintiffs received the entire consideration of Rs.1,01,000/- from the 1stconsideration of Rs.1,01,000/- from the 1st defendant. Further, after defendant. Further, after receiving of sale consideration, 1streceiving of sale consideration, 1st defendant was given G.P.A., on behalf defendant was given G.P.A., on behalf of the plaintiffs to sell the schedule property to others. If necessary, onof the plaintiffs to sell the schedule property to others. If necessary, on behalf of plaintiffs, the 1stbehalf of plaintiffs, the 1st defendant was given right to execute the defendant was given right to execute the documents before the Registrar office and gave authority to act ondocuments before the Registrar office and gave authority to act on behalf of the Plaintiffs including to sign on documents on their behalf.behalf of the Plaintiffs including to sign on documents on their behalf.
Therefore, once the plaintiffs executed Ex.A.1 in favour of the 1stTherefore, once the plaintiffs executed Ex.A.1 in favour of the 1st defendant, how they say that Ex.A.1 is formal document. At this stage,defendant, how they say that Ex.A.1 is formal document. At this stage, when I consider the cross-examination of P.W.1, he admits that “It iswhen I consider the cross-examination of P.W.1, he admits that “It is true myself and my mother executed Ex.A.1 in favour of the 1sttrue myself and my mother executed Ex.A.1 in favour of the 1st defendant”. Further the 2defendant”. Further the 2ndnd defendant purchased the plaint schedule defendant purchased the plaint schedule property from the 1stproperty from the 1st defendant under registered sale deed vide Ex.A.6 defendant under registered sale deed vide Ex.A.6 and schedule property was mutated in the name of the 2ndand schedule property was mutated in the name of the 2nd defendant. defendant.
Further Ex.A.1 was not recited that Ex.A.1 executed as a security for theFurther Ex.A.1 was not recited that Ex.A.1 executed as a security for the amount borrowed from the 1stamount borrowed from the 1st defendant under the promissory note. No defendant under the promissory note. No where in the entire pleadings of plaint, it is pleaded that consideration ofwhere in the entire pleadings of plaint, it is pleaded that consideration of
Ex.A.1 was not passed. Therefore in Ex.A.1, the plaintiffs entered intoEx.A.1 was not passed. Therefore in Ex.A.1, the plaintiffs entered into agreement of sale and in later part they entered into General Power ofagreement of sale and in later part they entered into General Power of
Attorney by giving power to the 1stAttorney by giving power to the 1st defendant to enter into agreement of defendant to enter into agreement of sale with third parties and to execute sale deeds and do all the acts onsale with third parties and to execute sale deeds and do all the acts on 11
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S.C.J., Court, Parchur.
behalf of the Plaintiffs. Therefore, there is no clause in Ex.A.1 contrary tobehalf of the Plaintiffs. Therefore, there is no clause in Ex.A.1 contrary to one another. In fact, both agreement of sale and General Power ofone another. In fact, both agreement of sale and General Power of
Attorney are two different parts of sale document, but not differentAttorney are two different parts of sale document, but not different clauses in the same document. Hence, the contention of the Plaintiff thatclauses in the same document. Hence, the contention of the Plaintiff that they executed Ex.A.1 in connection with debt amount under promissorythey executed Ex.A.1 in connection with debt amount under promissory note cannot be acceptable one. In Ex.A.1, plaintiffs have given power tonote cannot be acceptable one. In Ex.A.1, plaintiffs have given power to the defendant to sell away the property and to do all acts on theirthe defendant to sell away the property and to do all acts on their behalf, when such power is given, it is not known as to how the plaintiffsbehalf, when such power is given, it is not known as to how the plaintiffs has got cause of action for filing the plaint when they came to knowhas got cause of action for filing the plaint when they came to know about the defendants attempting to sell away the property coveredabout the defendants attempting to sell away the property covered under Ex.A.1. In fact, the power of attorney under Ex.A.1 was executedunder Ex.A.1. In fact, the power of attorney under Ex.A.1 was executed by the plaintiff only for such purpose. It is pertinent to mention here thatby the plaintiff only for such purpose. It is pertinent to mention here that the executants of Ex.A.1 are mother and son. When Ex.A.1 was executedthe executants of Ex.A.1 are mother and son. When Ex.A.1 was executed by the Plaintiffs with their free will-filing of this suit by the plaintiffs isby the Plaintiffs with their free will-filing of this suit by the plaintiffs is totally contrary to the contents of Ex.A.1. totally contrary to the contents of Ex.A.1.
(ii). But coming to the evidence part, P.W.1 has given total go-bye(ii). But coming to the evidence part, P.W.1 has given total go-bye to the contents of Ex.A.1. At this juncture, it is necessary to observe theto the contents of Ex.A.1. At this juncture, it is necessary to observe the conduct of the plaintiffs. These facts would establish that the plaintiffsconduct of the plaintiffs. These facts would establish that the plaintiffs have not approached the Court with clean hands. The suit is filed forhave not approached the Court with clean hands. The suit is filed for cancellation of Ex.A.6 sale deed. P.W.1 once admitted himself that thecancellation of Ex.A.6 sale deed. P.W.1 once admitted himself that the 22ndnd defendant purchased the schedule property under registered sale defendant purchased the schedule property under registered sale deed under Ex.A.6, how can he say that the 2nddeed under Ex.A.6, how can he say that the 2nd defendant is not a bona defendant is not a bona fide purchase of schedule property from the 1stfide purchase of schedule property from the 1st defendant. So far as the defendant. So far as the possession of Plaintiffs for the schedule property as relied by thepossession of Plaintiffs for the schedule property as relied by the plaintiffs i.e., P.Ws 2 and 3, they both simply stated that at first P.W.2 inplaintiffs i.e., P.Ws 2 and 3, they both simply stated that at first P.W.2 in chief, he speaks that the Plaintiff is in possession and enjoyment ofchief, he speaks that the Plaintiff is in possession and enjoyment of schedule property without any interruption, but in his cross-examination,schedule property without any interruption, but in his cross-examination, he is unable to say atleast the boundaries of schedule property and hehe is unable to say atleast the boundaries of schedule property and he 12
OS.No.20/2016, Dt.10-11-2023
S.C.J., Court, Parchur.
has no any proof that he attended agricultural works in the schedulehas no any proof that he attended agricultural works in the schedule property. In such a case, how his evidence can reliable one. Particularlyproperty. In such a case, how his evidence can reliable one. Particularly to believe that the plaintiffs have been in possession and enjoyment ofto believe that the plaintiffs have been in possession and enjoyment of the schedule property without any interruption including the plaintiffsthe schedule property without any interruption including the plaintiffs this year raised paddy crop. PW3 also in his cross-examination he isthis year raised paddy crop. PW3 also in his cross-examination he is unable to say the Survey Number of the schedule property and he failedunable to say the Survey Number of the schedule property and he failed to file any proof to show that he got landed property nearer to scheduleto file any proof to show that he got landed property nearer to schedule property. So by mere saying that he got landed property nearer toproperty. So by mere saying that he got landed property nearer to schedule property unless he filed any proof as stated in his chiefschedule property unless he filed any proof as stated in his chief evidence that he is the neighborer to the schedule property cannot beevidence that he is the neighborer to the schedule property cannot be acceptable one. So his evidence that the Plaintiff is in possession ofacceptable one. So his evidence that the Plaintiff is in possession of schedule property including this year i.e., 2022 cannot be acceptableschedule property including this year i.e., 2022 cannot be acceptable one. Once the evidence of P.Ws 2 and 3 appears they are plantedone. Once the evidence of P.Ws 2 and 3 appears they are planted witnesses and deposed false in support of plaintiffs.witnesses and deposed false in support of plaintiffs.
14..14Coming to D.W.1’s evidence, who is the 2ndComing to D.W.1’s evidence, who is the 2nd defendant thoroughly defendant thoroughly scrutinized, once he ascertained that the plaintiffs have no right over thescrutinized, once he ascertained that the plaintiffs have no right over the schedule property, so also possession and title of schedule property asschedule property, so also possession and title of schedule property as purchased the same from the 1stpurchased the same from the 1st defendant and the plaintiffs have no defendant and the plaintiffs have no right to file suit for cancellation of sale deed Ex.A.6. So also, Ex.A.1 isright to file suit for cancellation of sale deed Ex.A.6. So also, Ex.A.1 is valid one eliciting certain aspects with regard to payment of moneyvalid one eliciting certain aspects with regard to payment of money given by him to the 1stgiven by him to the 1st defendant towards sale deed under Ex.A.6. There defendant towards sale deed under Ex.A.6. There is no specific denial from plaintiff that he is not a bona fide purchaseris no specific denial from plaintiff that he is not a bona fide purchaser under Ex.A.6 sale deed. Coming to another cross-examination of D.W1under Ex.A.6 sale deed. Coming to another cross-examination of D.W1 by the Plaintiffs’ side that he has not shown the Government value in hisby the Plaintiffs’ side that he has not shown the Government value in his income tax returns and his remaining amount is unaccounted money isincome tax returns and his remaining amount is unaccounted money is concerned, even he simply shown the government value in his incomeconcerned, even he simply shown the government value in his income tax returns and remaining amount is unaccounted money as deposed bytax returns and remaining amount is unaccounted money as deposed by
D.W.1 is questioning only his conduct, but not specifically deniedD.W.1 is questioning only his conduct, but not specifically denied 13
OS.No.20/2016, Dt.10-11-2023
S.C.J., Court, Parchur.
consideration under Ex.A.6. Therefore in view of both defendants 1 andconsideration under Ex.A.6. Therefore in view of both defendants 1 and 2 got rectification deed for Ex.A.6 by rectifying Ex.A.6 under Ex.B.12 got rectification deed for Ex.A.6 by rectifying Ex.A.6 under Ex.B.1 registered rectification deed dated 29-07-2022 for the sale deed. Soregistered rectification deed dated 29-07-2022 for the sale deed. So also, the specific suggestion made by the Plaintiffs on D.W.1 to say thatalso, the specific suggestion made by the Plaintiffs on D.W.1 to say that 11stst defendant got registered his schedule property in his favour through defendant got registered his schedule property in his favour through the plaintiffs, attestors of Ex.A.6, for which there is no denial from thethe plaintiffs, attestors of Ex.A.6, for which there is no denial from the plaintiffs’ side. If so, at any cost D.W.1’s evidence, though cross-plaintiffs’ side. If so, at any cost D.W.1’s evidence, though cross- examined by the Plaintiffs nothing is disturbed.examined by the Plaintiffs nothing is disturbed.
(ii). Coming to the evidence of D.W.2, he speaks execution of(ii). Coming to the evidence of D.W.2, he speaks execution of
Ex.A.6, to discard his evidence, though Plaintiffs cross-examined him, heEx.A.6, to discard his evidence, though Plaintiffs cross-examined him, he categorically admitted that the Plaintiffs signed on Ex.A.6. Therefore,categorically admitted that the Plaintiffs signed on Ex.A.6. Therefore,
D.W.2 evidence is also shows that plaintiffs have got knowledge aboutD.W.2 evidence is also shows that plaintiffs have got knowledge about
Ex.A.6 executed by the 1stEx.A.6 executed by the 1st defendant in favour of the 2 defendant in favour of the 2ndnd defendant. As defendant. As such, his evidence is very much helps the defendants’ case particularlysuch, his evidence is very much helps the defendants’ case particularly with regard to execution of Ex.A.6 sale deed and its registration tookwith regard to execution of Ex.A.6 sale deed and its registration took place at S.R.O., Chirala. So also, D.W.3, who is the 1stplace at S.R.O., Chirala. So also, D.W.3, who is the 1st defendant, whose defendant, whose evidence has testified that in chief-examination speaks with regard toevidence has testified that in chief-examination speaks with regard to 22ndnd defendant purchased the schedule property under Ex.A.6, so also, he defendant purchased the schedule property under Ex.A.6, so also, he obtained Ex.A.1 from the plaintiffs. Further speaks about delivery ofobtained Ex.A.1 from the plaintiffs. Further speaks about delivery of possession of schedule property as General Power of Attorney holder.possession of schedule property as General Power of Attorney holder.
Ever since the 2ndEver since the 2nd defendant is in possession and enjoyment of schedule defendant is in possession and enjoyment of schedule property. But in his entire cross-examination except he admits thatproperty. But in his entire cross-examination except he admits that
Ex.A.1 is non-possessory agreement-cum-General Power of Attorney,Ex.A.1 is non-possessory agreement-cum-General Power of Attorney, there is nothing elicited to discard his evidence. If at all the contention ofthere is nothing elicited to discard his evidence. If at all the contention of the plaintiffs, 2ndthe plaintiffs, 2nd defendant created Ex.A.1 without passing of defendant created Ex.A.1 without passing of consideration. As such, the entire cross-examination there is nothingconsideration. As such, the entire cross-examination there is nothing elicited from this witness in support of plaintiffs case. Even for argumentelicited from this witness in support of plaintiffs case. Even for argument sake, D.W.3 admits that Ex.A.1 is non-possessory agreement of sale-sake, D.W.3 admits that Ex.A.1 is non-possessory agreement of sale- 14
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S.C.J., Court, Parchur.
cum- G.P.A., once the recitals on Ex.A.1, perused, the plaintiffs exeuctedcum- G.P.A., once the recitals on Ex.A.1, perused, the plaintiffs exeucted the G.P.A., in favour of the 1stthe G.P.A., in favour of the 1st defendant to register the schedule defendant to register the schedule property to others on behalf of the plaintiffs, accordingly, once the 1stproperty to others on behalf of the plaintiffs, accordingly, once the 1st defendant paid total consideration of Rs.1,01,000/- to the plaintiffs underdefendant paid total consideration of Rs.1,01,000/- to the plaintiffs under
Ex.A.1, how can the plaintiffs go back the recitals of Ex.A.1 i.e., in viewEx.A.1, how can the plaintiffs go back the recitals of Ex.A.1 i.e., in view of entire rights given by the plaintiffs to the 1stof entire rights given by the plaintiffs to the 1st defendant to get defendant to get registered the schedule property, the plaintiffs cannot go back to theregistered the schedule property, the plaintiffs cannot go back to the recitals of Ex.A.1. As such, the contention of the Plaintiffs that Ex.A.1 isrecitals of Ex.A.1. As such, the contention of the Plaintiffs that Ex.A.1 is only nominal document cannot be acceptable one. only nominal document cannot be acceptable one.
Coming to the decision of our Hon’ble Apex Court in DamodharComing to the decision of our Hon’ble Apex Court in Damodhar
Narayana Sawale (D) VERSUS Narayana Sawale (D) VERSUS Shri Tejro Bajirao Mhaske reported Shri Tejro Bajirao Mhaske reported in LAWS (SC) 2023 5 24, relied onin LAWS (SC) 2023 5 24, relied on, , by the counsel for theby the counsel for the
Defendants, wherein the facts are analyzed that the defendants 1 and 2Defendants, wherein the facts are analyzed that the defendants 1 and 2 sold the schedule property in favour of the plaintiff under sale deed andsold the schedule property in favour of the plaintiff under sale deed and plaintiff was put in possession, subsequently, 2ndplaintiff was put in possession, subsequently, 2nd defendant, who sold defendant, who sold the same for discharging his debts, he has no right to disturb thethe same for discharging his debts, he has no right to disturb the plaintiffs’ possession. In the above appeal, the Plaintiff died his L.Rs areplaintiffs’ possession. In the above appeal, the Plaintiff died his L.Rs are added, so also after the death of 1stadded, so also after the death of 1st defendant originally 2 defendant originally 2ndnd defendant defendant during pendency of second appeal, L.Rs were added, the 1stduring pendency of second appeal, L.Rs were added, the 1st defendant defendant stated that after execution of sale deed himself and 2ndstated that after execution of sale deed himself and 2nd defendant parted defendant parted with possession of suit and then 2ndwith possession of suit and then 2nd defendant distrubing the possession defendant distrubing the possession of Plaintiff. However, 2ndof Plaintiff. However, 2nd defendant contention is the sale deed under defendant contention is the sale deed under
Ex.128 sham document. Therefore, the Plaintiff is not entitled for anyEx.128 sham document. Therefore, the Plaintiff is not entitled for any relief basing on Ex.A28, as such, sale deeds were executed without anyrelief basing on Ex.A28, as such, sale deeds were executed without any intention to effect of sale. Here admitted fact is that execution andintention to effect of sale. Here admitted fact is that execution and registration is not disputed. Since it is a registered document, but theregistration is not disputed. Since it is a registered document, but the dispute is only with regard to nature of transaction i.e., once it is adispute is only with regard to nature of transaction i.e., once it is a registered one, title, right and interest is in favour of vendee on the landregistered one, title, right and interest is in favour of vendee on the land 15
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involved therein, the burden heavily lies on 2ndinvolved therein, the burden heavily lies on 2nd defendant it should not defendant it should not reflect the true nature of transaction. Once the intention of the partiesreflect the true nature of transaction. Once the intention of the parties reflected in Ex.A.28 and nothing reflecting contrary intention not to passreflected in Ex.A.28 and nothing reflecting contrary intention not to pass title or ownership in the present event impliedly, there is the oraltitle or ownership in the present event impliedly, there is the oral evidence on 2ndevidence on 2nd defendant cannot be override the registered document defendant cannot be override the registered document under Ex.B.128 sale deed, consequently, the appeal is allowed and setunder Ex.B.128 sale deed, consequently, the appeal is allowed and set aside the judgment dated 30-10-2015. In the present case also, once theaside the judgment dated 30-10-2015. In the present case also, once the plaintiffs sold the schedule property to the 1stplaintiffs sold the schedule property to the 1st defendant under defendant under
Agreement of sale-cum-G.P.A., including the right to sell the property onAgreement of sale-cum-G.P.A., including the right to sell the property on behalf of the principal by virtue of Ex.A.1, 1stbehalf of the principal by virtue of Ex.A.1, 1st defendant sold the same to defendant sold the same to 22ndnd defendant under Ex.A.6. The Plaintiffs cannot dispute the nature of defendant under Ex.A.6. The Plaintiffs cannot dispute the nature of transaction under Ex.A.1 and Ex.A.1 is a registered one. Though thetransaction under Ex.A.1 and Ex.A.1 is a registered one. Though the plaintiffs disputes that Ex.A.1 is nominal even the burden lies on theplaintiffs disputes that Ex.A.1 is nominal even the burden lies on the plaintiffs, they did not discharge their plea, as such, this decision is veryplaintiffs, they did not discharge their plea, as such, this decision is very much helps the defendants’ case. much helps the defendants’ case.
Coming to the decision of our Hon’ble Apex Court in Suraj LampComing to the decision of our Hon’ble Apex Court in Suraj Lamp & Industries Private Limited Vs. State of Haryana and another & Industries Private Limited Vs. State of Haryana and another decided on 11-10-2011 in Special Leave Petition © No.13917 of decided on 11-10-2011 in Special Leave Petition © No.13917 of 2009 relied by the counsel for the Plaintiffs, wherein the Hon’ble2009 relied by the counsel for the Plaintiffs, wherein the Hon’ble
Supreme Court held that Power of attorney is creation of an agencySupreme Court held that Power of attorney is creation of an agency whereby the grantor authorized the grantee to do the acts specifiedwhereby the grantor authorized the grantee to do the acts specified therein, on behalf of granter, which when executed will be binding ontherein, on behalf of granter, which when executed will be binding on the grantor as if done by him. It is also held that the agent deries a rightthe grantor as if done by him. It is also held that the agent deries a right to use his name and all acts, deeds and things done by him and subjectto use his name and all acts, deeds and things done by him and subject to the limitations held in the sale deed, the same can be read as if doneto the limitations held in the sale deed, the same can be read as if done by the donor. It is further held that a power of attorney holder mayby the donor. It is further held that a power of attorney holder may however execute a deed of conveyance in exercise of the power grantedhowever execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of granter. Inunder the power of attorney and convey title on behalf of granter. In 16
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view of this particular observation by the Hon’ble Supreme Court, the 1stview of this particular observation by the Hon’ble Supreme Court, the 1st defendant herein who is the attorney holder of the plaintifs as per Ex.A.1defendant herein who is the attorney holder of the plaintifs as per Ex.A.1 has the power to convey title of the property under Ex.A.1 on behalf ofhas the power to convey title of the property under Ex.A.1 on behalf of the Plaintiffs. the Plaintiffs.
The Hon’ble Supreme Court in the said decision further held thatThe Hon’ble Supreme Court in the said decision further held that the General Power of Attorney transaction does not convey any title inthe General Power of Attorney transaction does not convey any title in order to create any interest in an immovable property on the grantee.order to create any interest in an immovable property on the grantee.
Therefore, under Ex.A.1, the defendant will not convey any title over theTherefore, under Ex.A.1, the defendant will not convey any title over the property covered by Ex.A.1, but he can convey the title to the others onproperty covered by Ex.A.1, but he can convey the title to the others on behalf of the Plaintiff. It is further held in the said decision by the Hon’blebehalf of the Plaintiff. It is further held in the said decision by the Hon’ble
Supreme Court that they can continue to be treated as existingSupreme Court that they can continue to be treated as existing agreements of sale and nothing prevents effected parties from gettingagreements of sale and nothing prevents effected parties from getting registered deeds of conveyance to their title. These observations areregistered deeds of conveyance to their title. These observations are made with regard to the attorney holder but not with regard to the rightmade with regard to the attorney holder but not with regard to the right of the attorney holder to convey the property on behalf of the originalof the attorney holder to convey the property on behalf of the original owner/grantor. The Hon’ble Supreme Court further held that if suchowner/grantor. The Hon’ble Supreme Court further held that if such
General Power of Attornerys are entered before the day of the saidGeneral Power of Attornerys are entered before the day of the said judgment, they may be relied upon to apply for regularization ofjudgment, they may be relied upon to apply for regularization of allotments or leases by the concerned development authorities. In paraallotments or leases by the concerned development authorities. In para 19 of the said Judgment, the Hon’ble Supreme Court further held that19 of the said Judgment, the Hon’ble Supreme Court further held that the observations made in the said judgment are not intended to in anythe observations made in the said judgment are not intended to in any way affect the validity of sale agreement and power of attorneyway affect the validity of sale agreement and power of attorney executed in genuine transactions. An example was also given in the saidexecuted in genuine transactions. An example was also given in the said paragraph by the Hon’ble Supreme Court that a person may give powerparagraph by the Hon’ble Supreme Court that a person may give power of attorney to his spouse, son, daughter, brother or sister or a relative toof attorney to his spouse, son, daughter, brother or sister or a relative to manage his affairs or to execute a deed of conveyance and a personmanage his affairs or to execute a deed of conveyance and a person may enter into a development agreement with a land developer ormay enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructingbuilder for developing the land either by forming plots or by constructing 17
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apartment buildings and in that behalf execute an agreement of saleapartment buildings and in that behalf execute an agreement of sale and grant power of attorney empowering the developer to executeand grant power of attorney empowering the developer to execute agreements of sale or conveyances with regard to individual plots ofagreements of sale or conveyances with regard to individual plots of land or undivided shares or agreement of sale in the land and that theland or undivided shares or agreement of sale in the land and that the observations made in the said judgment are not intended to apply suchobservations made in the said judgment are not intended to apply such bona fide or genuine transactions. Therefore, in view of the saidbona fide or genuine transactions. Therefore, in view of the said judgment of the Hon’ble Supreme Court, it is quite clear that G.P.A.,judgment of the Hon’ble Supreme Court, it is quite clear that G.P.A., transactions which are bona fide or genuine will not affect by the saidtransactions which are bona fide or genuine will not affect by the said decision of Hon’ble Supreme Court in Suraj Lamp’s case. decision of Hon’ble Supreme Court in Suraj Lamp’s case.
15..15In this regard, this Court fortifies the decision of our Hon’ble ApexIn this regard, this Court fortifies the decision of our Hon’ble Apex
Court in Prem Singh and Ors Vs Birbal and OrsCourt in Prem Singh and Ors Vs Birbal and Ors reported in reported in 2006 (5) 2006 (5)
SCC 353. Wherein it was held that “there is a presumption that aSCC 353. Wherein it was held that “there is a presumption that a registered document is validly executed. A registered document,registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus,therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. Inwould be on a person who leads evidence to rebut the presumption. In the instant case, Plaintiffs have not been able to rebut the saidthe instant case, Plaintiffs have not been able to rebut the said presumption though it is the burden of the plaintiffs to rebut the presentpresumption though it is the burden of the plaintiffs to rebut the present suit that Exs.A1 and A6 were not validly executed.suit that Exs.A1 and A6 were not validly executed.
(ii). In these circumstances, once the recitals of Ex.A.1 coupled(ii). In these circumstances, once the recitals of Ex.A.1 coupled with cross-examination of P.W.1, so also the evidence of D.Ws 1 to 3with cross-examination of P.W.1, so also the evidence of D.Ws 1 to 3 clearly go to show that the contention of the plaintiffs that Ex.A1 isclearly go to show that the contention of the plaintiffs that Ex.A1 is formal one cannot be acceptable one and it is valid agreement of sale-formal one cannot be acceptable one and it is valid agreement of sale- cum-General Power of Attorney by virtue of Ex.A.1, 1stcum-General Power of Attorney by virtue of Ex.A.1, 1st defendant sold defendant sold the schedule property to 2ndthe schedule property to 2nd defendant through G.P.A., on behalf of his defendant through G.P.A., on behalf of his
principal [plaintiffs] in the capacity of G.P.A. So also, plaintiffs have alsoprincipal [plaintiffs] in the capacity of G.P.A. So also, plaintiffs have also
failed to prove their possession over the schedule property. Further, thefailed to prove their possession over the schedule property. Further, the 22ndnd defendant obtained sale deed under Ex.A.6 from the 1 defendant obtained sale deed under Ex.A.6 from the 1stst defendant, so defendant, so also, obtained Ex.B.1 rectification deed. The contention of the 1stalso, obtained Ex.B.1 rectification deed. The contention of the 1st 18
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defendant that the 2nddefendant that the 2nd defendant purchased the schedule property as a defendant purchased the schedule property as a bona fide purchaser under Ex.A.6 rectification deed, thereafter, hebona fide purchaser under Ex.A.6 rectification deed, thereafter, he obtained revenue records in his name under Ex.B.2- mee-Seva copy ofobtained revenue records in his name under Ex.B.2- mee-Seva copy of adangal, Ex.B.3- mee-Seva copy of R.O.R, 1-B namoona in his name,adangal, Ex.B.3- mee-Seva copy of R.O.R, 1-B namoona in his name, which was not disputed by the plaintiffs. Non-disputing of revenuewhich was not disputed by the plaintiffs. Non-disputing of revenue records under Exs.B.2 and B.3 in favour of the 2ndrecords under Exs.B.2 and B.3 in favour of the 2nd defendant, the 2 defendant, the 2ndnd defendant is in possession over the schedule property cannot bedefendant is in possession over the schedule property cannot be doubted. As such, the relief sought by the plaintiffs for cancellation ofdoubted. As such, the relief sought by the plaintiffs for cancellation of
Ex.A.6 cannot be acceptable one. Since this Court hold that the saleEx.A.6 cannot be acceptable one. Since this Court hold that the sale deed executed by the 1stdeed executed by the 1st defendant in favour of the 2 defendant in favour of the 2ndnd defendant is true defendant is true and also valid. So also the agreement of sale-cum-G.P.A., under Ex.A.1 isand also valid. So also the agreement of sale-cum-G.P.A., under Ex.A.1 is not a formal one and the plaintiffs are not entitled for cancellation ofnot a formal one and the plaintiffs are not entitled for cancellation of sale deed dated 30-10-2015. This Court already held that the plaintiffs issale deed dated 30-10-2015. This Court already held that the plaintiffs is not in possession and enjoyment of the schedule as on the date of filingnot in possession and enjoyment of the schedule as on the date of filing of this suit, on the other hand, 2ndof this suit, on the other hand, 2nd defendant is in possession and defendant is in possession and enjoyment of the schedule property not only basing on Ex.A.6, he alsoenjoyment of the schedule property not only basing on Ex.A.6, he also relied upon Ex.B1 rectification deed and Exs.B.2 and B.3 revenue recordsrelied upon Ex.B1 rectification deed and Exs.B.2 and B.3 revenue records amply proves that the 2ndamply proves that the 2nd defendant’s possession over the schedule defendant’s possession over the schedule property, as such, the plaintiffs are not entitled for consequential reliefproperty, as such, the plaintiffs are not entitled for consequential relief of Permanent Injunction against the defendants. Hence, this Court heldof Permanent Injunction against the defendants. Hence, this Court held that Issues 1 to 3 are negatived to the Plaintiffs and in favour of thethat Issues 1 to 3 are negatived to the Plaintiffs and in favour of the defendants.defendants.
ISSUE NO : 4 To what relief?ISSUE NO : 4 To what relief?
16. . 16In the result, the suit is dismissed without costs.In the result, the suit is dismissed without costs.
Dictated to Stenographer, transcribed by him, corrected andDictated to Stenographer, transcribed by him, corrected and
pronounced by me in the open court on this the 10thpronounced by me in the open court on this the 10th day of November, day of November,
2023.2023.
Sd/-M.Sudha Sd/-M.Sudha
SENIOR CIVIL JUDGE, SENIOR CIVIL JUDGE,
PARCHUR. PARCHUR.
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APPENDIX OF EVIDENCE APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR WITNESSES EXAMINED FOR
PLAINTIFFS :PLAINTIFFS :
PW.1 : Kasi Venu Brahmacharyulu - [2ndPW.1 : Kasi Venu Brahmacharyulu - [2nd Plaintiff], Plaintiff],
PW.2 : Nerukattu Srinivasa Rao; PW.2 : Nerukattu Srinivasa Rao;
PW.3: Perni SubbarayuduPW.3: Perni Subbarayudu
DEFENDANTS : DEFENDANTS :
DW1 : Tavva Venkata Srinivasa Rao [2ndDW1 : Tavva Venkata Srinivasa Rao [2nd defendant], defendant],
DW.2 : Nidamanuri Krishna Rao; DW.2 : Nidamanuri Krishna Rao;
DW.3 :Chota Dileep.DW.3 :Chota Dileep.
DOCUMENTS MARKED FOR DOCUMENTS MARKED FOR
PLAINTIFFS : PLAINTIFFS :
Ex.A1/-- Certified copy of agreement of sale-cum-G.P.A., executed by Ex.A1/-- Certified copy of agreement of sale-cum-G.P.A., executed by the Plaintiff in favour of the 1stthe Plaintiff in favour of the 1st defendant; defendant;
Ex.A2/-- Registered Dhakal deed dated 04-05-1970;Ex.A2/-- Registered Dhakal deed dated 04-05-1970;
Ex.A3/-- R.O.R title deed in the name of Yagneswaramma; Ex.A3/-- R.O.R title deed in the name of Yagneswaramma;
Ex.A4/-- Office copy of legal notice dated 30-10-2015; Ex.A4/-- Office copy of legal notice dated 30-10-2015;
Ex.A5/-- Returned notice postal cover dated 09-11-2015;Ex.A5/-- Returned notice postal cover dated 09-11-2015;
Ex.A6/-- Certified copy of sale deed executed by D.1 in favour of D.2 Ex.A6/-- Certified copy of sale deed executed by D.1 in favour of D.2
dated 30-10-2013; dated 30-10-2013;
Ex.A7/-- Un-registered Will dated 03-09-2016. Ex.A7/-- Un-registered Will dated 03-09-2016.
DEFENDANTS : :DEFENDANTS
Ex.B1/-- Registered rectification deed dated 29-07-2022 vide document Ex.B1/-- Registered rectification deed dated 29-07-2022 vide document No.6489/2022 to the sale deed No.5350/15 dated 30-10-2015; No.6489/2022 to the sale deed No.5350/15 dated 30-10-2015;
Ex.B2/-- mee-Seva Copy of Adangal dated 11-08-2022 in respect of the Ex.B2/-- mee-Seva Copy of Adangal dated 11-08-2022 in respect of the schedule property; schedule property;
Ex.B3/-- mee-Seva Copy of R.o.R, 1-B Namuna dated 11-08-2022 in Ex.B3/-- mee-Seva Copy of R.o.R, 1-B Namuna dated 11-08-2022 in respect of the schedule property; respect of the schedule property;
Ex.B4/-- Certified copy of non-possessory sale agreement-cum-G.P.A., Ex.B4/-- Certified copy of non-possessory sale agreement-cum-G.P.A., executed in favour of Chouta Dileep[D.W.3] by the Plaintiffs executed in favour of Chouta Dileep[D.W.3] by the Plaintiffs
dated 12-12-2008. dated 12-12-2008.
Sd/-M.Sudha Sd/-M.Sudha
SENIOR CIVIL JUDGE, SENIOR CIVIL JUDGE,
PARCHUR. PARCHUR.
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