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IN THE COURT OF THE JUNIOR CIVIL JUDGE:: ATMAKUR
Present: Sri P.Rajan Uday Prakash, Junior Civil Judge, Atmakur.
Dated Saturday, this the 29th day of June, 2019.
ORIGINAL SUIT No. 9 of 2012
and
ORIGINAL SUIT No. 130/2012
ORIGINAL SUIT No. 9 of 2012
Nandimalla Nagendra Goud, S/o. Ramanna Goud, Aged about 62 years, Hindu, Agriculturist, R/o. D.No.23/98, Rajaveedhi, Atmakur Village and Mandal,
Kurnool District.....Plaintiff
Versus
1. Shaik Murthuja, S/o. Shaik Khader Basha (Late), Aged about 65 years.
2. Shaik Anwar, S/o. Shaik Murthuja, Aged about 32 years.
3. Shaik Khaja, S/o. Shaik Murthuja, Aged about 30 years.
4. Shaik Rafeeq, S/o. Shaik Murthuja, Aged about 26 years.
Both are Muslims, Agriculturist, R/o. Theruveedhi, Opposite to Theru Lane, Atmakur, Kurnool District. … Defendants
This Suit is coming before me on 27062019 for final hearing in the presence of Sri W.Nagi Reddy, Advocate on behalf of Plaintiff and of Sri M.Murali Mohan and B.Nagesh, Advocates on behalf of Defendants, and upon hearing the counsel for both sides, this Court delivered the following:
ORIGINAL SUIT No. 130 of 2012
1. A.Murthaza, S/o. Ali Saheb, Aged about 65 years, Muslim, Agriculture, R/o. Atmakur Mandal, Kurnool District.
2. Sheik Anwer Hussain @ A.Anwer Hussanaiah, S/o. A.Murthaza, Aged about 28 years, Muslim, Agriculture,
R/o. Atmakur Mandal, Kurnool District.....Plaintiffs
Versus
Nandi Molla Nagendera Goud, S/o. Ramanna Goud, Aged about 55 years, Hindu, Business, R/o. Atmakur Mandal, Kurnool District. … Defendant
This Suit is coming before me on 27062019 for final hearing in the presence of Sri M.Murali Mohan and B.Nagesh, Advocates on behalf of Plaintiffs and of Sri, W.Nagi Reddy, Advocates on behalf of Defendant, and upon hearing the counsel for both sides, this Court delivered the following:
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C O M M O N J U D G M E N T
1.The Suit O.S.No. 9/2012 is filed by the plaintiff seeking permanent injunction restraining the defendants and their men from entering or trespassing or in any way interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property and for costs of the suit. The suit O.S.No.130/12 is filed by the plaintiffs (defendants no.1 and 2 in O.S.No. 9/2012) against the defendant (plaintiff in O.S.No. 9/2012) seeking the relief of specific performance to direct the defendant to register the sale deed in favour of the 2nd plaintiff in pursuance of the sale deed dated 19122011 and for costs of the suit.
2. The averments of the plaint are that :
O.S. 9/2012: The plaintiff is the owner of the plaint schedule property and the same
is his ancestral property. The plaintiff is in enjoyment and possession of the plaint schedule property. The revenue authorities also issued pattadar passbook and title deed passbooks in favour of the plaintiff regarding the plaint schedule property. The plaintiff lost the original pattadar passbook and the original title deed passbook and the revenue authorities issued duplicates of the same. The Tahsildar, Atmakur also issued no.3 adangals for the faslies 1418 to 1421 in favour of the plaintiff for the plaint schedule property. Thus, the plaintiff is having clear, absolute and marketable title over the plaint schedule property. The defendants 2 to 4 are the sons of the defendant no.1 and they do not have any title or right over the plaint schedule property. They tried to trespass into the plaint schedule property on 25012012 and the plaintiff resisted the said attempt. The defendants may repeat the same mischief again. Hence this suit is filed for permanent injunction.
O.S. 130/2012: The defendant was the owner of the suit schedule property and he
agreed to sell the same to the plaintiff no.1 about 12 years prior to 2004 for an amount of Rs.18,000/. The plaintiff no.1 paid the same and the defendant delivered 3 possession of the suit schedule property to the plaintiff then itself. Later, an agreement of sale was executed by the defendant in favour of the plaintiff no.1 on 28082004 wherein the passing of the consideration and the delivery of possession to the plaintiff no.1 were clearly mentioned. The plaintiff no.1 requested the defendant to execute the registered sale deed in his favour since the entire consideration was paid. The defendant postponed the same on one pretext or the other. When the plaintiff no.1 demanded for the registration of the sale deed, the defendant pleaded that a further sum of Rs. 1,00,000/ might be paid to him. After negotiations, it was agreed that a sum of Rs. 62,500/ was to be paid by the plaintiff no.1 in favour of the defendant and the defendant has to execute the registered sale deed in favour of the plaintiff no.2. Accordingly, the sum of Rs. 62,500/ was paid and stamp papers were purchased for the execution of the registered sale deed. A sale deed was drafted on stamp papers and the defendant signed on each and every page of the said deed in the presence of the attestors Mir Hussain and Moses and it was scribed by M.Shafiullah. The photographs of the 2nd plaintiff and the defendant were affixed and both of them signed as per sec 32A of the registration Act. After completion of the execution of the sale deed, the defendant handed over the original pattadar passbook and original title deed passbook to the plaintiffs and the plaintiffs handed over the original agreement of sale dated 28082004 to the defendant. After the execution of the sale deed, the defendant asked the plaintiffs to wait at the SRO
Atmakur. The plaintiffs paid challan for Rs. 5340/ towards stamp duty and registration fee in SBI Atmakur on 19122011. The defendant never turned up and the plaintiffs came to know that the defendant made himself scarce on the promise of a higher consideration by a third party. Hence this suit is filed for specific performance.
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3. The contents of the written statement:
O.S. 9/2012: The written statement filed by the defendant no.2 was adopted by the
defendant no.1. The defendants denied all the averments of the plaint and stated that the plaintiff was the owner of the suit schedule property and he sold the same to the defendant no.1 about 20 years ago for an amount of Rs.10,000/ and delivered possession to the defendant no.1. The said transaction was neither reduced to writing nor registered. Later, an agreement of sale was executed by the plaintiff in favour of the defendant no.1 on 28082004 wherein the passing of the consideration and the delivery of possession to the defendant no.1 were clearly mentioned. It was also mentioned that the plaintiff shall execute the registered sale deed whenever required by the defendant no.1. The defendant no.1 has been in peaceful possession and enjoyment of the plaint schedule property for the past 20 years. The defendant no.1 requested the plaintiff to execute the registered sale deed in favour of the defendant no.2 for which the plaintiff agreed and they went to the SubRegistrar office,
Atmakur on 19122011 along with some other persons. A sale deed was drafted on stamp papers at the instance of the plaintiff and the plaintiff signed on each and every page of the said deed and submitted his ration card as well as his photograph.
The defendant no.2 paid challan for Rs. 5340/ towards stamp duty and registration fee in SBI Atmakur on 19122011. In the meanwhile, the plaintiff’s family members came there and picked up a quarrel with the plaintiff. The plaintiff went along with his family members by asking the defendants to wait for some time. The plaintiff never turned up and postponed the issue on one pretext or the other. After completion of the execution of the sale deed, the plaintiff handed over the original pattadar passbook and original title deed passbook to the defendants 1 and 2 and the defendant no.2 handed over the original agreement of sale dated 28082004 to the plaintiff. The plaintiff again obtained duplicates of the same and filed this suit. The 5 plaintiff was not in possession of the suit schedule property on the date of filing of the suit and so, the suit is not maintainable. Hence the suit is liable to be dismissed.
O.S. 130/2012: The defendant denied all the averments of the plaint and stated that
the signature appearing on the draft sale deed alleged to have been executed by the defendant does not belong to the defendant and it is a forged and a fabricated one.
The defendant never agreed to sell the suit schedule property and no amount of consideration was received by him from the plaintiff no.1. As there is no contract between the plaintiff no.1 and the defendant, the suit for specific performance is not maintainable. The plaintiffs colluded with the scribe and the attestors and created the sale deed with an intention to grab the property of the defendant. The suit for specific performance basing on the imagined sale agreement which might have been executed by this defendant 12 years prior to 2004 is absolutely barred by limitation and the suit is liable to be dismissed. The plaintiff no.1 never demanded this defendant at any time for the execution of the sale deed till this defendant filed the suit in O.S. 9/2012. Hence the suit is liable to be dismissed.
4.Basing on the rival contents of both the parties, the following issues were settled for trial.
O.S.9/2012:
1. Whether the Plaintiff is entitled to the relief of perpetual Injunction as prayed for ?
2. Whether the defendant no.1 is in possession of the suit schedule property as per the agreement of sale as claimed by the defendants ?
3. Whether the plaintiff has no locus standi to file the suit as pleaded by the 1 st defendant ?
4. To what relief ?
O.S. 130/2012:
1. Whether the suit is barred by limitation ?
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2. Whether the Plaintiffs are entitled for the relief of specific performance as prayed for ?
3. To what relief ?
5.As per the orders of this court dated 10112016, O.S. 9/2012 and O.S.
130/2012 were clubbed and a common trial was conducted for both the suits. The plaintiff in O.S. 9/2012 i.e., the defendant in O.S. 130/2012 is hereinafter referred to as “the plaintiff” so far as the aspects pertaining to evidence are concerned. The defendants 1 and 2 in O.S. 9/12 i.e., the plaintiffs 1 and 2 respectively in O.S.
130/12 are hereinafter referred to as “the defendant no.1” and “the defendant no.2” respectively so far as the aspects pertaining to evidence are concerned..
6.During the trial, the plaintiff was examined as PW1 and Exs.A1 to A6 were marked and also Exs.B1 to B4 were marked. One Rameswara Reddy was examined as PW2 and one Gangadhara Reddy as PW3. On the other hand, the defendant No.2 was examined as DW1 and Ex.B5 was marked. One Meer Hussain was examined as DW 2, one Abdul Malik as DW3 and one Shafiullah i.e., the document writer as DW4.
7.The gist of evidence of the plaintiff:
7(a).The plaintiff being PW1 filed his examinationinchief affidavit mostly reiterating the contents of the plaint in O.S.No.9/2012 and the contents of the written statement in O.S.No.130/2012.
In his crossexamination, he deposed that he knew the contents of his plaint, examinationinchief affidavit and the pleadings of the defendants and the documents relied upon by them in both the cases. He stated that the photograph affixed on the unregistered sale deed, dated 19122011 was his photograph. Ex.B1 is the photograph of the plaintiff affixed on the unregistered sale deed dated 19122011. He stated that the signature appearing on the opposite side of the photograph in the said unregistered sale deed does not belong to him. He admitted that the copy of the ration 7 card annexed to the said unregistered sale deed was his ration card. Ex.B2 is the photostat copy of the house hold card of PW1 annexed to the said unregistered sale deed. He admitted that in common parlance, the pass port size photographs, ration cards, pattadar passbooks and the title deed passbooks would be given at the time of registration in the Registrar Office. He stated that the unregistered sale deed dated 19 122011 was read over to him. He admitted that in the above said sale deed, it was mentioned that he executed the sale deed in favour of Shaik Anwar Hussain (D2). He denied that the signature subscribed on every page of the said sale deed belongs to him.
He denied that he entered into an agreement of sale on 28082004 that he had received a consideration of Rs.18,000/ 12 years prior to the date of the said agreement from D1 i.e., the father of D2. He admitted that the pattadar passbook and the title deed passbook shown to him belong to him. He added that he lost the said passbooks. Ex.B3 is the pattadar passbook issued in favour of PW1. Ex.B4 is the title deed pass issued in favour of PW1. He stated that he did not mention in the plaint as to how the defendants got his passport size photographs as well as the copy of his ration card. He admitted that he did not mention anywhere that he had given a report to the police stating that his pattadar passbook and title deed passbook were lost.
7(b).One Rameswara Reddy/PW2 filed his examinationinchief affidavit stating that he knew the plaintiff and the plaint schedule property. He stated that the plaintiff has been in possession and enjoyment of the plaint schedule property and that he attended agricultural works now and then in the plaint schedule property at the request of the plaintiff. He stated that the defendants never cultivated or never enjoyed the plaint schedule property.
In his crossexamination, he admitted that he did not have any land near the suit schedule property. He admitted that he did not mention as to how he was acquainted with the plaintiff.
8 7(c).One Gangadhara Reddy was examined as PW3 by filing his examination inchief affidavit mostly sailing with PW2. However, since he did not turn up for his crossexamination despite ample opportunities, his examinationinchief was eschewed.
8.The gist of evidence of the defendant:
8(a).The defendant no.2 filed his examinationinchief affidavit as DW1 mostly reiterating the contents of the plaint in O.S.No.130/2012 and the written statement in
O.S.No.9/2012. Ex.B5 is the unregistered sale deed date 19122011.
In his crossexamination, he deposed that the suit schedule property belongs to PW1. He knew the date when his father purchased the land from PW1 but he was unable to remember the same and it was purchased in his childhood. His father got an agreement of sale executed by PW1. He handed over the said agreement of sale to PW1 at the time of registration. The said agreement was executed after a period of 12 years from the date when his father purchased the land in the name of his father. Neither he nor his father issued any notice to PW1 to register the land in their favour. He stated that prior to filing the suit in O.S.No.9/2012, PW1 came to the Registrar office and
before the registration could be carried out, he was taken away by his wife and children.
He stated that he does not have any tax receipts or revenue records to show that either he or any person on his behalf has been in possession of the suit schedule property since 1988. He added that since the property was not registered in their favour, they do not have any revenue records. He added that the pattadar passbook and the title deed passbook were handed over by PW1 to them.
8(b).One Shaik Meer Hussain filed his examinationinchief affidavit as DW2 mostly sailing with DW1.
In his crossexamination, he stated that he was not present at the time of negotiations with regard to the plaint schedule property 12 years prior to the agreement.
He was present at the time of execution of the agreement dated 28082004. He along 9 with PW1, DW1, the defendant no.1, and another person were present at the time of the said execution. He is one of the attestors of the said unregistered sale deed.
8(c). One V.Abdul Malik filed his examinationinchief affidavit as DW3 stating that he knew both the parties and also the facts of the case. He owns a land near the plaint schedule property and in the same survey number of the plaint schedule property.
The defendants have been in peaceful possession and enjoyment of the suit schedule property for the past 20 to 25 years.
In his crossexamination, he stated that the survey number of his land is 1193 and that the land of PW1 is also situated in the same survey number. PW1 informed him 20 years ago that he sold the suit schedule property to the defendant no.1.
8(d).One Shafiullah filed his examinationinchief affidavit as DW4 stating that he scribed the document dated 19122011. The contents of the document were told to him by PW1. The executant of the document(PW1) brought his photograph, ration card, pattadar passbook and title deed passbook. The executant brought the attestors at the time of scribing the document. He saw the attestors. The document was executed in favour of DW1. The document was read over to the executant and thereafter the executant made his signature and received a consideration of Rs. 62,500/. When the document was being taken for registration, the son and wife of PW1 came there and took PW1 with them. PW1 did not turn up till 5 PM on the said date. He scribed an agreement relating to the above transaction in August 2004. After making their signatures on the said unregistered sale deed, PW1 took away the agreement of sale.
In his crossexamination, he stated that he does not remember the exact date of agreement and that it was written in August 2004. The agreement was scribed in favour of the defendant no.1. He stated that the details regarding the said agreement were not mentioned in the document dated 19122011. He admitted that in the document dated 19122011, it was mentioned that the consideration was passed on the 10 same day when the document was scribed i.e., on 19122011. He admitted that it was also mentioned that the possession was given by the executant on the same day when the document was scribed. The parties brought the agreement on the day when the above document was scribed. He added that after making the signatures in the above document, the agreement of sale was taken away by PW1. He stated that it was not mentioned in the document dated 19122011 that the agreement of sale was returned to the executant. The document dated 19122011 was not submitted for registration. He admitted that the parties to the document have to present the document for registration and that the document writers are not concerned with it. He stated that he did not know if PW1 went to the SubRegistrar officer. He stated that the stamp on the document
dated 19122011 was purchased from his own sister by name Noor Jahan Bee.
9.Arguments:
9(a).The learned counsel for the plaintiff argued that Exs.A1 to A6 show the possession as well as the enjoyment of the plaintiff over the plaint schedule property. He further stated that there is no dispute over the title of the plaint schedule property. The delivery of possession as alleged by the defendants had not taken place at all. Moreover, there are no documents in favour of the defendants showing that they have either the possession or the title over the plaint schedule property. He further stated that there is no record for the alleged payment of Rs.18,000/ purported to have been made by the defendants to the plaintiff. He even stated that the suit is barred by limitation. As per the defendants, the plaintiff sold away the plaint schedule property and delivered possession of the same to the defendants 12 years prior to 2004. As per the defendants, in 2004, the plaintiff executed an agreement of sale in favour of the defendants. Moreover, it is alleged that in 2011 the plaintiff agreed to execute a registered sale deed in favour of the defendants for the plaint schedule property. Thus, this suit ought to have been filed within three years from the date of the alleged agreement of sale i.e., within 2007.
However, the same is filed in 2012. Hence the suit is barred by limitation. He stated that 11 there is no basis for claiming specific relief on the agreement of sale. He stated that to claim specific performance, the existence of a contract is necessary. In the present case, there is no contract or agreement executed by the plaintiff in favour of the defendant. He even stated that in the Registration Act, there is a separate procedure prescribed if a party fails to appear for registration. The same was not implemented in this case. He stated that there is no demand notice issued by the defendants for the execution of the registered sale deed. He stated that there is no record to show that the plaintiff had sold or delivered possession of the plaint schedule property some 20 years ago. He stated that the defendants have not mentioned that they are and always have been ready and willing to perform their part of the contract in their pleadings. So, it goes to show that there is no agreement at all as stated by the defendants.
9(b).The learned counsel for the defendant argued that the said provision under the Registration Act applies only if the document is presented before the SubRegistrar which has not happened in the present case. He stated that the possession of the plaint schedule property was handed over to the defendants. He argued that in pursuance of the proviso to section 49 of the Registration Act, it is not imperative upon a party to produce a registered document. He stated that an unregistered document may be received as evidence of a contract in a suit for specific performance. Thus in the present case, the said unregistered sale deed is an indication of a contract, even though it might not be a contract and the same is sufficient to claim the relief of specific performance. He stated that in the crossexamination of PW1, Exs.B1 and B2 were admitted by PW1 to belong to him. He stated that PW1 even admitted that the pattadar passbook and the title deed passbook i.e., Exs.B3 and B4 respectively belonged to him. In the unregistered sale deed/Ex.B5, it is specifically mentioned that the delivery of property was handed over to the defendants. Thus the plaintiff is not in possession of the plaint schedule property. The plaintiff ought to have prayed for the relief of cancellation of unregistered sale deed and the recovery of possession which has not happened in the present case.
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Hence the relief of a bear injunction without the aforesaid reliefs is not maintainable. He stated that the original pattadar passbook and the title deed passbook were handed over by the plaintiff to the defendants and the plaintiff filed the suit with the aid of duplicate pattadar passbook and duplicate title deed passbook. This amounts to the suppression of material facts and so the plaintiff is not entitled to the equitable relief of injunction. He stated that the period of limitation starts from the refusal of the performance i.e., from 19122011 and so, the suit is within limitation. He stated that the part of the defendants in the contract or agreement has already been performed. The only unperformed part of the contract is on behalf of the plaintiff i.e., the execution of the registered sale deed. So there is no necessity to state that they have been ready and willing to perform their part of the contract.
He also filed written arguments stating that the photograph affixed on the unregistered sale deed, dated 19122011 as well as the copy of ration card annexed to the said deed were admitted by PW1 as his own. PW1 even admitted that in common parlance, the pass port size photographs, ration cards, pattadar passbooks and the title deed passbooks would be given at the time of registration in the Registrar Office. PW1 even admitted that in the unregistered sale deed it was mentioned that PW1 executed the sale in favour of DW1. PW1 even admitted that the pattadar passbook and the title deed passbook which are in the possession of the defendants belong to him and that they pertain to the suit schedule property. PW1 admitted that he had not mentioned anywhere as to how the defendants got his pass port size photograph as well as the copy of his ration card. He further stated that it is clear from the evidence of DW1 that the wife and children of PW1 forcibly took PW1 away from the Registrar office. DW2 clearly deposed about the passing of consideration as well as PW1 signing the unregistered sale deed. DW3 stated that the defendants have been in possession over the plaint schedule property for the past 20 years. The evidence of DW4 with regard to the consideration being passed as well as the signatures of PW1 remains unchallenged.
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He further stated that basing on the evidence of DW1 and DW2 as well as DW3, it is clear that the defendants have been in enjoyment and possession of the plaint schedule property even prior to the agreement of sale. He stated that upon a perusal of the original title deed passbook, original pattadar passbook, passport size photo as well as the copy of ration card coupled with the original sale deed wherein there is a clear recital with regard to the delivery of possession by PW1 to the defendants, it is clear that the defendants were in possession of the suit schedule property as on the date of filing of the suit but not the plaintiff. He further stated that the plaintiff ought to have sought the further relief of the cancellation of the unregistered sale deed which has not happened.
Hence the plaintiff has no locus standi to file the suit. According to him, the cause of action arose on 19122011 when PW1 evaded the process of registration. He stated that the sale deed is the evidence of contract for sale and it is enforceable from the date of denial to present it for registration.
9(c).The learned counsel for the plaintiff filed reply arguments stating that as per the version of the defendants, they have handed over the original agreement of sale without having the property registered in their name. This contention is irrational and unbelievable.
10.The learned counsel for the plaintiff relied upon :
1) ALT 2012 (2) 665 A.P. H.C., wherein it was stated that a person who is in settled possession of property is entitled to the relief of injunction irrespective of proving his title or not.
2) 2017 (2) ALT 468, wherein it was held that the principle “possession follows title” applies usually when the property is a vacant property which is incapable of being possessed all the time.
3) ALT 2017 (2) SC 40, which states that in calculating the period of limitation for specific performance, a period of three years is required to be counted from the date 14 fixed for performance or if no date is fixed, when the refusal of the performance is noticed.
4) ALT 2012 (4) 659 A.P. H.C., wherein it was held that the Courts have no discretion in granting specific performance unless the plaintiff specifically pleads that he has been and is ready and willing to perform his part of the contract.
5) 2011 ALT (2) SC 50 Para 16, wherein it was held that as a rule that relief not founded on pleadings should not be granted. Therefore the decision of a case cannot be based on grounds outside the pleadings of the parties.
6) 2011 (3) ALT 137 A.P. H.C., wherein it was held that where the execution of agreement of sale is denied, mere proof of signature of the executant is not sufficient.
Person relying upon such document must further establish that the executant affixed his signature after knowing the contents thereof.
7) 2012 (3) ALT 5, wherein it was held that the demand for specific performance is to be made within 3 years from the date of agreement.
10(a).The learned counsel for the defendant relied upon :
1) 2010 INSC 267, where it was held that the proviso to section 49 enables a party to adduce an unregistered sale deed as evidence and the same can be received and marked in a suit for specific performance.
2) Ayyadaevara Seshagiri Rao Vs. Kante Sreenivasa Rao in SA No.124/2012 where it was held that nonexamination of neighboring land owners to show possession results in the suit for injunction being dismissed on the principle that ‘without possession no injunction should be granted’.
3) AIR 1992 Delhi 197: suppression of a material fact by itself is a sufficient ground to decline the discretionary relief of injunction.
4) CRP No.3035/2010: when two alternative remedies are available i.e., one under the Registration Act and the other before the Civil Court, the plaintiff is entitled to 15 approach the Civil Court and there is no need to exhaust the remedy available under
Registration Act.
5) 1999 INSC 247, wherein it was held that when the vendor declines to appear
before the SubRegistrar the situation contemplated under section 77 of the Act would
arise. It is only on presentation of a document that the other circumstances would arise.
11. O.S. 9/2012:
Issue Nos.2 and 3 :
2. Whether the defendant no.1 is in possession of the suit schedule property as per the agreement of sale as claimed by the defendants ?
As per the version of the defendants, the plaintiff sold the suit schedule property to the defendants some 12 years prior to 2004 for consideration and delivered the possession of the property then itself. This means that the defendants have been in possession of the suit schdedule property since approximately 1992. However, this transaction was not reduced to writing. Regardless of this fact, the defendants were put into possession of the suit schedule property according to them. An agreement of sale was executed by the plaintiff in favour of the defendant no.1 on 28082004 wherein the passing of the consideration as well as the delivery of the suit schedule property to the defendant no.1 were mentioned. Apart from this, as per the version of DW3, his land is situated in the same survey number wherein the suit schedule property is situated and the defendants have been in continuous possession and enjoyment of the suit schedule property for the past 20 years. The defendants have not put forth any documentary evidence to show that they have been in possession of the suit schedule property either prior to the execution of the agreement of the sale dated 28082004 or in pursuance of the said agreement of sale. The reason given by the defendants is that since the suit schedule property was not registered in their names, they do not have any revenue records to show that they have been in possession of the plaint schedule property. Thus, the contention that the plaintiff delivered the possession of the suit schedule property to 16 the defendant no.1 12 years prior to 2004 is not supported by any other piece of evidence. Thought the oral testimony of DW3 mentions the same, the said oral testimony alone is not sufficient to prove that the defendant no.1 has been in possession of the suit schedule property prior to the agreement of sale or in pursuance of the said agreement. Moreover, it is not made out that the defendants were or ever have been in possession of the suit schedule property at any point of time. Accordingly, the defendants failed to prove that the defendant no.1 has been in possession of the suit schedule property in pursuance of the agreement of sale dated 28082004 or at any time prior to it. Thus, the issue no.2 is answered against the defendants.
3. Whether the plaintiff has no locus standi to file the suit as pleaded by the 1 st defendant ?
With regard to issue no.3, the contention of the defendants is that since the plaintiff has already sold the suit schedule property to them for a consideration and even delivered possession of the suit schedule property to them some 12 years prior to 2004, the plaintiff has no locus standi to file a suit for permanent injunction for the mere reason that the plaintiff is not in possession of the suit schedule property. The defendants contended that the plaintiff was not in possession of the suit schedule property on the date of filing of the suit. Moreover, the defendants contended that they have been in continuous possession and enjoyment of the suit schedule property for the past 20 years.
It is well settled that the burden lies on the plaintiff to prove that he is in possession of the suit schedule property on the date of the filing of the suit to seek the relief of permanent injunction. In the case at hand, the plaintiff relied upon Exs.A3 to A6 to show that he is in possession of the suit schedule property. A perusal of the said exhibits i.e.,
Exs.A3 to A6 shows that the plaintiff is in possession of the suit schedule property when the suit was filed. That being the case, when the plaintiff has discharged the initial burden of proving his possession over the suit schedule property, the onus is on the defendants to show that the plaintiff is not in possession of the suit schedule property.
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This has not happened in the present case. Moreover, in pursuance of the answer to issue no.2, it is evident that the defendants have failed to prove that the defendant no.1 is in possession of the suit schedule property. As such, this court is of the opinion that the plaintiff in fact has locus standi to file the suit. Hence this issue is answered against the defendants.
Issue No.1:
1. “Whether the Plaintiff is entitled to the relief of perpetual injunction as prayed for?”
To prove that he is entitled to the relief of permanent injunction, the plaintiff relied upon fasli 1418/Ex.A1, fasli 1419/Ex.A2, fasli 1420/Ex.A3 and fasli 1421/Ex.A4. All these documents show that the plaintiff is in possession of the suit schedule property as on the date of filing of the suit. This contention of the plaintiff that he is in possession of the suit schedule property coupled with the aforesaid documentary evidence remained unchallenged by the defendants. Though the defendants contented that the plaintiff was not in possession and that they were in possession of the suit schedule property, no evidence has been adduced to corroborate the said contention.
Hence this court is of the opinion that the plaintiff is entitled to the relief of permanent injunction as prayed for. This issue is answered in favour of the plaintiff.
O.S. 130/2012:
Issue nos.1 and 2:
1. Whether the suit is barred by limitation ?
The content of the plaintiffs is that the defendant sold the suit schedule property to the plaintiff no.1 about 20 years prior to 2012 for valuable consideration and delivered the possession of the property to the plaintiffs then itself. However, the said sale was neither reduced to writing nor was it registered. Subsequently, on 28042004, an agreement of sale was entered into between the parties wherein the passing of the 18 consideration and the delivery of possession to the plaintiff no.1 by the defendant were clearly mentioned. The plaintiff no.1 requested the defendant to execute the registered sale deed in favour of the plaintiff since the entire consideration was paid. Despite the requests of the plaintiffs, the defendant postponed the execution of the sale deed. When the plaintiff no.1 demanded for registration of the sale deed, the defendant pleaded that a further sum of Rs. 1,00,000/ might be paid to him. Later, it was agreed that a sum of
Rs. 62,500/ was to be paid by the plaintiff no.1 in favour of the defendant and the defendant has to execute the registered sale deed in favour of the plaintiff no.2.
Accordingly, the sum of Rs.62,500/ was paid and stamp papers were purchased for the execution of the registered sale deed. A sale deed was drafted on stamp papers and the defendant signed on each and every page of the said deed in the presence of the attestors
Mir Hussain and Moses and it was scribed by M.Shafiullah. After completion of the execution of sale deed, the defendant handed over the original pattadar passbook and original title deed passbook to the plaintiffs and the plaintiffs handed over the original agreement of sale dated 28082004 to the defendant. After the execution of the sale deed, the defendant asked the plaintiffs to wait at the SRO Atmakur. The plaintiffs paid challan for Rs. 5340/ towards stamp duty and registration fee in SBI Atmakur on 1912 2011. The plaintiff never turned up and the plaintiffs came to know that the defendant made himself scarce on the promise of a higher consideration by a third party.
So, as per the plaintiffs, the sale of the suit schedule property took place about 12 years prior to 2004. However, the agreement pertaining to the suit schedule property was entered into in the year 2004 according to them. Thus, it may be inferred that since the sale had actually taken place prior to the agreement according to the plaintiffs herein, the agreement was only meant to be reduce the same into writing. The averments of the plaint also state that in the agreement, the passing of the consideration and the delivery of possession were clearly mentioned and it was also stated that the defendant should execute the registered sale deed as and when demanded by the 19 plaintiff no.1. It is pertinent to note that the said agreement of sale, which is the pivotal document in the present case has not been adduced as evidence. The reason given is that after the execution of the sale deed, the said agreement was handed over to the defendant and the defendant handed over the original title deed passbook and the pattadar passbook of the suit schedule property to the plaintiffs herein. The said original title deed passbook and the original pattadar passbook have been adduced as evidence on behalf of the plaintiffs. The defendant himself admitted that the said original pattadar passbook and the title deed passbook belong to him. This fact corroborates the version of the plaintiffs that the aforesaid documents were handed over to them by the defendant and they handed over the agreement of sale dated 28082004 to the defendant after the execution of the sale deed. Moreover, the defendant admitted that the photograph appearing on the unregistered sale deed/ Ex.B5 and the photocopy of the ration card annexed to the said sale deed belongs to him. He also admitted that he had not mentioned as to how the plaintiffs came into possession of the said documents that belong to him. He stated that he had not given any complaint or report to the police with regard to the said fact. All the aforesaid facts do give rise to a cloud of uncertainty around the version of the defendant with regard to the unregistered sale deed/ Ex.B5.
Moreover, as per the evidence of DW2(examined on behalf of the plaintiffs herein), he stated that he was present at the time of execution of the agreement of sale dated 2808 2004. He is one of the attestors of the unregistered sale deed/ EX.B5. One more crucial aspect to support the case of the plaintiffs is the evidence of DW4(examined on behalf of the plaintiffs herein). DW4 stated that he scribed the document dated 19122011.
The contents of the document were told to him by the defendant herein. The executant of the document i.e., the defendant herein brought his photograph, ration card, pass book and title deed. The defendant himself brought the attestors at the time of scribing the document. The document was executed in favour of the plaintiff no.2 herein. The document was read over to the executant and thereafter the executant made his 20 signature and received consideration of Rs.62,500/. When the document was being taken for registration, the son and wife of the defendant herein came there and took him with them. Moreover, the agreement of sale relating to the above transaction was scribed by DW4 himself in August 2004. After making their signatures in the unregistered sale deed, the defendant herein took away the agreement. He further stated that the agreement of sale was scribed in favour of the plaintiff no.1 herein. He stated that the details regarding the said agreement were not mentioned in the document dated 1912 2011. He admitted that in the document dated 19122011, it was mentioned that the consideration was passed on the same day when the document was scribed. He admitted that it was also mentioned that the possession was given by the executant on the same day when the document was scribed. The parties brought the agreement on the day when the above document was scribed. He added that after making the signatures in the above document, the agreement was taken away by PW1. He stated that it was not mentioned in the document dated 19122011 that the agreement was returned to the executant.
So far as the evidence of the plaintiff no.2 herein is concerned, the only thing elicited in his crossexamination was that they have not issued any notice to the defendant for the execution of the registered sale deed and that they do not have any documents to show that they had been or are in possession of the suit schedule property.
Till this juncture, the plaintiffs have put forth all the necessary elements to substantiate their case. They have successfully showed that they are in possession of the original pattadar passbook and original title deed passbook of the suit schedule property.
They are in possession of a document i.e., the unregistered sale deed containing the photograph of the defendant as well as the copy of the ration card of the defendant annexed to it. They have successfully examined one attestor and the scribe of the unregistered sale deed on their behalf to prove their case.
21
However, the thing to be considered is that the details regarding the agreement of sale dated 24082008 are no where mentioned in the unregistered sale deed/Ex.B5. No explanation whatsoever has been offered in this regard. When the unregistered sale deed/Ex.B5 is purported to have been executed in pursuance of the agreement of sale dated 24082008, there ought to have been a recital to that effect in
Ex.B5, which has not happened in the present case. Moreover, the case of the plaintiffs is that the passing of consideration and the delivery of possession of the suit schedule property was already carried out 12 years prior to 2004. The fact mentioned in Ex.B5 that the consideration was passed on the day of the execution of Ex.B5 i.e., on 1912 2011 and that the possession of the suit schedule property was also delivered on the same day i.e., on 19122011 is in contrast with the aforesaid version of the plaintiffs.
The plaintiffs have stated that the defendant demanded an extra amount of RS. 62,500/ for executing the sale deed in their favour. While this may account for the fact mentioned in Ex.B5 with regard to the passing of the consideration of RS. 62,500/ on the same day, the fact regarding the delivery of possession on the same day as mentioned in Ex.B5 still remains unexplained. So, the cloud of uncertainty regarding the delivery of possession still remains.
The other pivotal aspect to be considered is that the agreement of sale
dated 24082004, which is the quintessential document to the entire case of the
plaintiffs has not been adduced as evidence. The reason given is that it was handed over to the defendant after he executed the unregistered sale deed. According to the plaintiffs, the details regarding the passing of the consideration as well as the delivery of possession of the suit schedule property to them by the defendant 12 years prior to the said agreement of sale were mentioned in the said agreement. DW2 was present at the time of the execution of the said agreement whereas according to DW4, he scribed the said agreement. It is provided under Section 63(5) of the Indian Evidence Act that “oral accounts of the contents of a document given by some person who has himself seen it” 22 constitutes secondary evidence. However, such secondary evidence is admissible only when the party seeking to rely upon it satisfies the court with regard to the fulfillment of the conditions specified in Sec 65 of the Act. In the present case, except the oral evidence put forth by the DW1 and DW4 there is no other evidence to show that the agreement of sale was handed over to the defendant herein. Even putting aside this fact, the only details regarding the contents of the said agreement of sale put forth by the plaintiffs are that the passing of the consideration and the delivery of possession of the suit schedule property to them by the defendant were mentioned in the said agreement.
It is pertinent to note that the details regarding the time limit, if any, fixed in the said agreement of sale for the registration of the sale deed in favour of the plaintiffs by the defendant have not been put forth by the plaintiffs. If the said agreement of sale had been put forth before this court, it would have been possible to ascertain if any time limit for the registration of the sale deed was fixed and if so, the period of time so fixed. When the said agreement of sale is not put forth, and there is not even a single shred of evidence pertaining to the time limit fixed for the registration (if any), this court cannot come to an opinion if any time limit was fixed or not. The burden is on the plaintiffs to prove the contents of the agreement of sale upon which they intend to rely upon. When the plaintiffs fail to adduce any evidence to show if any such time limit was fixed or not, this court cannot come to an opinion with regard to the said fact due to the lack of evidence. Article 54 of the Limitation Act states that the period of limitation for specific performance of a contract is three years. These three years are to be calculated from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has noticed that the performance has been refused. The learned counsel for the plaintiffs herein stated that the period of limitation in the present case has to be calculated from the date of refusal of the performance as mentioned in the second part of Article 54 i.e., from 19 122011, the date when the defendant herein evaded the registration of the sale deed.
So, the suit is filed within limitation. However, the second part of the aforesaid Article 23 comes into operation only when there is no fixed date for the specific performance of the contract. Only in the absence of any such fixed date, the period of limitation commences from the date when the refusal of the performance has been noticed. In the present case, the plaintiffs have not even mentioned if there was any date fixed or not for the registration of the sale deed in the agreement of sale dated 24042008. The agreement of sale dated 24042008 has not been adduced as evidence and in view of this, there is no evidence with regard to the contents of the said agreement of sale. Thus this court cannot form an opinion with regard to the time limit, if any, fixed in the said agreement of sale. In such a case, when the plaintiffs are claiming the benefit under the later period of limitation as provided in the second part of the Article 54, which is operative only when the first part i.e., the fixing of a time period was not carried out, the burden is on the plaintiffs to prove that no time period was fixed for the execution of the registered sale deed. Only in such a case where no time period for the performance is fixed, the period of limitation will commence from the date of refusal of performance, The plaintiffs have not adduced any evidence to show if any time period was fixed or not.
There is not even a whisper in either the pleadings or the evidence of the plaintiff with regard to the aspect of time limit, if any, fixed in the said agreement of sale. When it is uncertain as to whether any time limit was fixed or not, it cannot be said that no time limit was fixed and that the period of limitation will commence from the date of refusal of performance. The burden is on the plaintiffs to prove that they are entitled to the claim the period of limitation as provided under the later part of Article 54. As such, since the plaintiffs have failed to prove that they are entitled to the benefit of the period of limitation as provided in the later part of Article 54, this court is of the opinion that the suit is not within the period of limitation. Hence this issue is answered against the plaintiffs and in favour of the defendant.
24
2. “Whether the Plaintiffs are entitled for the relief of specific performance as prayed for ?”
It must be noted that the plaintiffs are in possession of the original pattadar passbook and the original title deed passbook of the defendant. Moreover, the said unregistered sale deed/ Ex.B5 contains the photograph of the defendant as well as the photocopy of the ration card of the defendant annexed to it. Moreover, the plaintiffs have examined the scribe as well as the attestor of the said unregistered sale deed/Ex.B5. The inaction of the defendant in taking steps to regain his original pattadar passbook as well as his original title deed and his failure in explaining as to how they came into the possession of the plaintiffs in the first instance is no doubt an important aspect to be considered. However, it is not incumbent upon the defendant but rather upon the plaintiffs to prove their case. It is well settled that the plaintiff cannot prey on the weakness of the defendant to establish or substantiate his own case. In the present case, since the plaintiffs failed to prove that the present suit for specific performance is within the period of limitation, this court is of the opinion that the plaintiffs are not entitled to the relief of specific performance as prayed for. Hence this issue is answered against the plaintiffs and in favour of the defendant..
12. Result:
Issue No.4 in O.S 9/2012 :
4. To what relief ?
In the result, in view of the finding in Issue nos.1 to 3, since the plaintiff is able to establish his possession over the plaint schedule property as on the date of filing of the suit, he is entitled to the relief of permanent injunction restraining the defendants and their men from entering or trespassing or in any way interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property. Hence, the suit is decreed with costs.
25
Issue No.3 in O.S 130/2012 :
3. To what relief ?
In the result, in view of the finding in Issue nos.1 and 2, since the plaintiff failed to prove that the suit was filed within the period of limitation, he is not entitled to the relief of specific performance as prayed for. Hence the suit is dismissed without costs.
Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open Court on this the 29 th day of June, 2019.
JUNIOR CIVIL JUDGE,
ATMAKUR.
Appendix of Evidence
Witnesses examined
For Plaintiff For Defendants
PW1 : Nandimall Nagendra GoudDW1 : Shaik Anwar PW2 : Allur Rameswara Reddy DW2 : Shaik Meer Hussain PW3 : Singareddy Gangadhar Reddy (Eschewed)DW3 : V.Abdul Malik DW4 : Shafiullah
Exhibits Marked
For Plaintiff :
Ex.A1 : Duplicate pattadar passbook issued by Tahsildar, Atmakur
Ex.A2 : Duplicate Title deed pass book issued by RDO, Kurnool
Ex.A3 : No.3 Adangal issued by Tahsildar, Atmakur for the Fasli 1418
Ex.A4 : No.3 Adangal issued by Tahsildar, Atmakur for the Fasli 1419
Ex.A5 : No.3 Adangal issued by Tahsildar, Atmakur for the Fasli 1420
Ex.A6 : No.3 Adangal issued by Tahsildar, Atmakur for the Fasli 1421
For Defendants :
Ex.B1 : Photograph of PW1
Ex.B2 : Photostat copy of house hold card of PW1
Ex.B3 : Pattadar pass book issued in favour of PW1
Ex.B4 : Title deed issued in favour of PW1
Ex.B5 : Unregistered sale deed, dated 19122011 along with photocopy of challan issued by Stamp Duty Collection Accourtn, Registration and Stamps Department. (Ex.B5 marked subject to objection as to admissibility of the document by the learned counsel for the plaintiff)
JUNIOR CIVIL JUDGE,
ATMAKUR.
26
IN THE COURT OF THE JUNIOR CIVIL JUDGE:: ATMAKUR
Present: Sri P.Rajan Uday Prakash, Junior Civil Judge, Atmakur.
Dated Saturday, this the 29th day of June, 2019.
ORIGINAL SUIT No. 9 of 2012
Between :
Nandimalla Nagendra Goud, S/o. Ramanna Goud, Aged about 62 years, Hindu, Agriculturist, R/o. D.No.23/98, Rajaveedhi, Atmakur Village and Mandal,
Kurnool District.....Plaintiff
Versus
1. Shaik Murthuja, S/o. Shaik Khader Basha (Late), Aged about 65 years.
2. Shaik Anwar, S/o. Shaik Murthuja, Aged about 32 years.
3. Shaik Khaja, S/o. Shaik Murthuja, Aged about 30 years.
4. Shaik Rafeeq, S/o. Shaik Murthuja, Aged about 26 years.
Both are Muslims, Agriculturist, R/o. Theruveedhi, Opposite to Theru Lane, Atmakur, Kurnool District. … Defendants
This Suit is filed by the Plaintiff seeking permanent injunction restraining the defendants and their men from entering or trespassing or in any way interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property and for costs of the suit.
Plaint presented on 03022012, and Numbered on 03022012.
J.V. of Rs.10,000/ and the fixed C.F. of Rs.786/ is paid u/s.26(c) of A.P.C.F. &
S.V.Act, 1956.
The cause of action for the Suit arose at Atmakur Village and Mandal, on 2501 2012 when the defendants highhandedly tried to enter into the plaint schedule land, which is within the jurisdiction of this Court.
This Suit is coming before me on 27062019 for final hearing in the presence of
Sri W.Nagi Reddy, Advocate on behalf of Plaintiff and of Sri M.Murali Mohan and
B.Nagesh, Advocates on behalf of Defendants, this Court doth order and decree as follows:
DECREE
1)That the Suit be and the same is hereby decreed in favour of the plaintiff ; 27
2)That the defendants and their men are hereby restrained from entering or trespassing or in any way interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property by way of permanent injunction ; and
3)That the defendants do pay to the plaintiff a sum of Rs.3,138/ towards the costs of the suit.
Given under my hand and seal of this Court, this the 29 th day of June, 2019.
JUNIOR CIVIL JUDGE,
ATMAKUR.
MEMO OF COSTS
DescriptionFor PlaintiffFor Defendants Rs. Rs. Stamp on Vakalat0200200
Stamp on Plaint78600
Advocate Fee200000200000
Process25000
Writing &Type charges1000010000
Total 313800 210200
J.C.J., ATMAKUR.
SCHEDULE
Property situated in Atmakur Village, Atmakur Mandalam, Atmakur Sub
Registration District, Kurnool District.
Survey No. Extent Cist Name of the land
1193 Ac. 468 Pyki Rs.1.25 Ps. Siddepalli Dova Chenu
Ac. 125 Dry
Boundaries :
East : Lands of Ibrahim and Murthuja
West: Land of Narasaiah Goud
North : Siddepalli Road
South : Mustepalli Road
J.C.J., ATMAKUR.
28
IN THE COURT OF THE JUNIOR CIVIL JUDGE:: ATMAKUR
Present: Sri P.Rajan Uday Prakash, Junior Civil Judge, Atmakur.
Dated Saturday, this the 29th day of June, 2019.
ORIGINAL SUIT No. 130/2012
Between :
1. A.Murthaza, S/o. Ali Saheb, Aged about 65 years, Muslim, Agriculture, R/o. Atmakur Mandal, Kurnool District.
2. Sheik Anwer Hussain @ A.Anwer Hussanaiah, S/o. A.Murthaza, Aged about 28 years, Muslim, Agriculture, R/o. Atmakur Mandal, Kurnool District.
....Plaintiffs
Versus
Nandi Molla Nagendera Goud, S/o. Ramanna Goud, Aged about 55 years, Hindu, Business, R/o. Atmakur Mandal, Kurnool District. … Defendant
This Suit is filed by the Plaintiffs seeking the relief of specific performance to direct the defendant to register the sale deed in favour of the 2nd plaintiff in pursuance of the sale deed dated 19122011 and for costs of the suit.
Plaint presented on 19102012, and Numbered on 19102012.
J.V. of Rs.62,500/ and the fixed C.F. of Rs.2,706/ is paid u/s.20 and 39 of
A.P.C.F. & S.V.Act, 1956.
The cause of action for the Suit arose at Atmakur Village and Mandal, on 1912 2011 when the defendant signed on the sale deed after receipt of further higher demanded sale consideration of Rs.62,500/ and taken back the original agreement of sale and when the defendant handed over two pass books along with copy of Ration card and when the defendant got filed O.S.No.9/2012 on the file of this Court seeking permanent injunction, which is within the jurisdiction of this Court.
This Suit is coming before me on 27062019 for final hearing in the presence of
Sri M.Murali Mohan and B.Nagesh, Advocates on behalf of Plaintiffs and of Sri, W.Nagi
Reddy, Advocates on behalf of Defendant, this Court doth order and decree as follows:
29
DECREE
1) That the Suit be and the same is hereby dismissed ; and
2) That each party do bear their own costs.
Given under my hand and seal of this Court, this the 29 th day of June, 2019.
JUNIOR CIVIL JUDGE,
ATMAKUR.
MEMO OF COSTS
DescriptionFor PlaintiffFor Defendants Rs. Rs. Stamp on Vakalat0200200
Stamp on Plaint270600
Advocate Fee357500357500
Process10000
Writing &Type charges1000010000
Total 648300 367700
J.C.J., ATMAKUR.
SCHEDULE
Survey No. 1193 Extent : Ac. 125 cents
All that part and parcel of an extent of Ac.125 cents, 0.56 hectors by
name Siddepalli Dova Chenu Patta No.2141 and Title Deed No. 613531 within the
boundaries of :
East : Land belongs to Dewan Shah
West: Siddepalli Rastha
North : Musthapalli Rastha
South : Land belongs to Pullareddy
J.C.J., ATMAKUR.