IN THE COURT OF ADDL. JUDGE-CUM-VI SENIOR CIVIL JUDGE:
CITY SMALL CAUSES COURT: HYDERABAD
Wednesday, the 31 st day of July, 2019
Present: Sri R. Raghunath Reddy, V Senior Civil Judge, VI Senior Civil Judge (FAC) Hyderabad.
O.S.No. 820 of 1995
Between: M. Krishna Moorthy represented by GPA holder M. Hemanth Nag …Plaintiff
And
1. M. Anantharam
2. Smt. Revathy
3. Dr. Kopuravari Lalitha
4. Dr. Kopuravari Venkatramana Prasad (Defendants No.3 and 4 are impleaded as per orders in I.A.No.1157 of 2001 dated 05.09.2001)
5. Smt. Uma Devi Vyas
6. Sri Nandkishore Vyas
7. Sri Prakashchand
8. Paresh Sheth
9. Poornima Sheth (Defendants No.5 to 9 are impleaded as per orders in I.A.No.598 of 2015 dated 06.01.2016) …Defendants
This suit is coming before me on 03.06.2019, 07.06.2019 and 11.06.2019 for final hearing in the presence of Sri V. Hari Haran, Advocate for the plaintiff and of Sri P.V.Sanjeeva Rao, Advocate for defendant No.2, Sri P.Rana Praveer, Advocate for defendants No.3 and 4 and Sri I.V.R.K.Murthy, Advocate for defendants No.8 and 9 and defendants No.1, 5, 6 and 7 remained ex parte and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
The plaintiff, originally, filed this suit against defendants No.1 and 2 only to:
(a) declare that the sale purported to have been effected by defendant
No.1 in favour of defendant No.2 under the registered sale deed 2 of 34 O.S.No.820 of 1995 bearing document No.1325/1991 dated 15.06.1991 registered in the Office of Sub-Registrar, Chikkadpally, Hyderabad is ab initio void, non-est, incompetent and not binding on him insofar as the suit schedule property is concerned;
(b) grant perpetual injunction restraining the defendants, their agents, heirs, representatives, etc., from invading his right in or over the suit schedule property or interfering with his possession and enjoyment, in any manner, thereof;
(c) award past damages, amounting to Rs.1,80,000/-, i.e., at
Rs.3,500/- per month or such other rate to be ascertained for the period from 15.06.1991 to 14.06.1994;
(d) award future damages at Rs.5,000/- per month or at any other rate as may be ascertained for the period from 14.06.1994 till the date of realization;
(e) award future interest both on past and future damages at 1.50% per month;
(f) award the costs of the suit; and
(g) grant such other and further relief or reliefs as the Court deems fit and just in the circumstances of the case.
2.During the pendency of the suit, the plaintiff got impleaded defendants No.3 to 9 and amended the plaint consequently, the details of which will be noticed later.
3.The description of the suit schedule property is the terrace area of the ground floor of the house in the premises bearing municipal H.No.3-6-539/1 and the rear side kitchen, bath room, etc. portion with tin sheets roof, admeasuring 1416.16 sq. feet (157.35 sq. yards equivalent to 130.19 sq. meters) together with rights and interest in the land to the extent of 120 square yards situated at
Himayathnagar, Hyderabad.
3 of 34 O.S.No.820 of 1995
4.The averments made in the original plaint, in brief, are:
(a)The plaintiff and the father of defendant No.1 by name Matooru
Chandra Sekhar Rao are the brothers. Defendant No.1 was adopted by late Sri
Matooru Ranga Rao, who is the junior paternal uncle of the plaintiff. Smt.
Matooru Hymavathy is the wife of Matooru Ranga Rao. The said Matooru
Hymavathy has purchased the house property bearing M.No.3-6-539/1, admeasuring 313 sq. yards, consisting of ground floor, situated at Himayathnagar,
Hyderabad (hereinafter referred to as ‘the house property’) under a registered sale deed bearing document No.28/1953 dated 27.01.1953 registered with the Sub-
Registrar, Mozamjahi Market, Hyderabad from its erstwhile owner Vunnava
Subba Rao and thereby the said property has become her stridhana property. She sold her ownership right, title and interest together with possession over the terrace of the ground floor of the house property i.e., the suit schedule property, to the plaintiff under a registered sale deed bearing document No.878/1984 dated 22.11.1984. Though the sale was in respect of the entire terrace rights over the house property with proportionate right and interest in the land, the same was not mentioned expressly in the sale deed due to inadvertence. On discovering the said omission, the same was got rectified vide registered rectification deed bearing document No.124/1986 dated 30.04.1985. The terrace rights include those over the roof of the rear side kitchen and bath room, etc. The roofing of the rear side portion, at that time, was with tin sheets. It was mutually agreed by the plaintiff and the vendor Matooru Hymavathy that the extent of proportionate right and interest in the land would be of the order of 120 sq. yards and the same was clearly mentioned in the rectification deed. Ever since the date of purchase, the plaintiff is in exclusive possession and enjoyment of the suit schedule property as its absolute owner.
4 of 34 O.S.No.820 of 1995
(b) The vendor - Smt. Matooru Hymavathy died in the year 1985 leaving behind her, her husband Sri Ranga Rao and adopted son i.e., defendant No.1, as her successors. They inherited the house property excluding the property sold to the plaintiff i.e., the suit schedule property. Matooru Ranga Rao died in July, 1990 leaving behind him, defendant No.1 as his successor. Subsequent to conveyance of the suit schedule property to the plaintiff under the sale deed dated 22.11.1984 and rectification deed dated 30.04.1985, Sri Ranga Rao, assisted by defendant
No.1, has proposed to permanently alienate the ground floor of the house property and offered to sell the same to the plaintiff. The plaintiff has agreed to purchase the said property, but, he expressed that he might not be able to pay the entire sale consideration at a time. Then, Sri Ranga Rao assured the plaintiff that he would accommodate in that regard. Then, the plaintiff, Sri Ranga Rao accompanied by defendant No.1, and Sri Matooru Chandra Sekhar Rao, natural father of defendant
No.1 had been to Matooru Narsimha Rao, who is their relative and a senior advocate at Hanamkonda on 12.03.1990 and apprised him about the proposed sale of the property. There, the price for the ground floor of the house property was fixed at Rs.3 lakhs. Sri Matooru Narsimha Rao scribed the sale agreement to the said effect. As per the agreement, the plaintiff has to pay Rs.50,000/- on 12.04.1990 and Rs.1 lakh on 12.10.1990 and on receiving the said amount of Rs.1 lakh, Sri M.Ranga Rao and defendant No.1 shall execute and register the sale deed conveying the property to the plaintiff. It was further agreed that for the balance sale consideration of Rs.1,50,000/-, the plaintiff shall execute a promissory note in favour of Sri M. Ranga Rao and also pay the interest thereon at 6% per annum and that the plaintiff shall pay the said amount on or before 01.07.1991. On 12.04.1990, the parties have assembled in the house of M. Narasimha Rao. There, the plaintiff paid an amount of Rs.50,000/- to Sri M. Ranga Rao towards part 5 of 34 O.S.No.820 of 1995 payment of the sale consideration. On the suggestion of defendant No.1, there were some modifications regarding the modalities of the payment. As per the said modification, the plaintiff should pay the interest on the balance sale consideration of Rs.1,50,000/- at Rs.750/- per month and he should renovate the house within four months from the date of registration. It was further proposed that the interest should be at Rs.1,100/- per month for the period from 01.04.1991. However, the balance sale consideration of Rs.1,50,000/- shall be paid by the plaintiff on or
before 31.07.1991. Further, as per the modified agreement, the plaintiff should
deposit the registered sale deed pertaining to the plots purchased by his wife with
Sri M.Ranga Rao on or before 30.10.1990, on which day, Sri M.Ranga Rao would execute and register the sale deed and convey the property in favour of the plaintiff. If the plaintiff fails to pay the balance sale consideration of Rs.1,50,000/- on or before 31.07.1991, he should convey the absolute rights of the mortgaged plots to Sri M.Ranga Rao. At the request of the parties, Sri M. Narasimha Rao,
Advocate, scribed the said understanding and the same was signed by Sri M.
Ranga Rao, defendant No.1 and the plaintiff.
(c)After the death of Sri M. Ranga Rao in July, 1990, defendant No.1 began a series of efforts of playing fraud on the plaintiff for extracting more money. He has fabricated an agreement of sale deviating from the original agreement of sale dated 12.03.1990 to the effect that the agreed sale consideration is Rs.4 lakhs and an amount of Rs.1,000/- was only paid as earnest money and the balance payable is Rs.3,99,000/-. On coming to know about the alleged sale agreement, the plaintiff filed a suit being O.S.No.417 of 1991 on the file of the
Court of II Additional Judge, City Civil Court, Hyderabad against defendant No.1 herein for specific performance of original agreement of sale dated 12.03.1990 and the said suit is pending. During the pendency of the said suit, defendants No.1 and 6 of 34 O.S.No.820 of 1995 2 have colluded with each other and brought into existence the so called sale deed
dated 15.06.1991 in respect of the entire house property. The plaintiff came to
know about the said sale deed through counter affidavit filed by defendant No.1 in the injunction petition filed in O.S.No.417 of 1991. Thereafter, the plaintiff has obtained certified copy of sale deed executed by defendant No.1 in favour of defendant No.2 and got impleaded defendant No.2 as one of the defendants in
O.S.No.417 of 1991.
(d)Defendant No.2 at the instigation of defendant No.1 is now trying to interfere with the possession and right of the plaintiff over the suit schedule property.
(e)The so-called sale deed executed and registered by defendant No.1 in favour of defendant No.2 in respect of the house property is void ab initio, incompetent, inoperative and not binding on the plaintiff. The plaintiff has been apprehending that the said sale deed, if it is left as it is, may create complications for him insofar as the suit schedule property herein is concerned. Hence, he is compelled to seek to declare the said sale deed as void ab initio, incompetent, inoperative and not binding on him.
(f)The defendants are liable to pay the past and future damages also to the plaintiff.
5.Defendant No.1 was set ex parte on 25.11.1997.
6.Defendant No.2 filed written statement specifically denying the case of the plaintiff. It is stated by her that she was totally unaware of the alleged purchase of the suit schedule property by the plaintiff from Smt. Matooru
Hymavathy and also the alleged agreement of sale dated 12.03.1990 entered by the plaintiff with late Sri Matooru Ranga Rao and that she came to know about the said transactions only after receipt of notices in I.A.Nos.802 and 803 of 1992 in 7 of 34 O.S.No.820 of 1995
O.S.No.417 of 1991. It is further stated by her that the sale deed dated 22.11.1994
through which the plaintiff stated to have purchased the property does not confer any right, title or interest upon 120 sq. yards of undivided share in the house property. It is pleaded by her that after making necessary enquires only about the right, title and interest of defendant No.1 over the house property, she has purchased the said property for a valid sale consideration bona fidely and, therefore, her right over the said property cannot be defeated at the instance of the plaintiff. It is pleaded by her to dismiss the suit with costs.
7.On the basis of the above rival pleadings, the following issues were framed, on 06.03.1998, for trial:
1. Whether the plaintiff is entitled to declare the registered sale deed dated 15.06.1991 as void ab initio, non-est, incompetent and binding on him in respect of the suit schedule property?
2. Whether the plaintiff is entitled for perpetual injunction?
3. Whether the plaintiff is entitled for past and future damages with interest as prayed for?
4. To what relief?
8.On 27.07.2001, the plaintiff filed a petition being I.A.No.1157 of 2001 to implead defendants No.3 and 4 stating that, during the pendency of the suit, defendant No.2 sold a part of the house property to defendant No.3 under a registered sale deed dated 29.03.2001 and another part to defendant No.4 under a registered sale deed dated 30.03.2001. This Court, by order dated 05.09.2001, allowed the said petition ordering the impleadment of defendants No.3 and 4.
9.The plaintiff filed a petition being I.A.No.1602 of 2001 for amendment of the plaint claiming a sum of Rs.3,28,500/- towards the loss caused on account of the demolition of the house property. This Court, by order dated 29.11.2001, allowed the said petition permitting the plaintiff to amend the plaint.
8 of 34 O.S.No.820 of 1995
10. As per the amended plaint filed on 03.12.2001, the case of the plaintiff is that, on 05.04.2001, when he happened to visit the house property he found that it was being broken down and on enquiry he came to know that during the pendency of the suit, defendant No.2 sold the house property in two bits to defendants No.3 and 4, and defendants No.3 and 4 got demolished the existing structure and started constructing a new house therein and that due to demolition of existing house he suffered loss to a tune of Rs.3 lakhs.
11.Based on the above additional pleading of the plaintiff, on 10.12.2001, the following additional issue was framed for trial:
“Whether the plaintiff is entitled to Rs.3,28,500/- together with interest towards loss for demolition of house No.3-5-589/1, Himayathnagar, Hyderabad from the defendants as prayed for?
12.At this stage, defendant No.4 filed written statement and defendant
No.3 filed a memo adopting the same. It is stated by them that they do not have knowledge about the plaintiff purchasing the terrace rights of the house property and entering into an agreement of sale for the ground floor of the house property and that they being the doctors have purchased the house property bona fidely for a valid sale consideration with intent to establish an hospital and that the plaintiff is nothing to do with the schedule house. It is pleaded by them that the plaintiff has no cause of action and that he has not properly valued the reliefs and hence the suit is liable to be dismissed with costs.
13.Based on the above pleadings of defendants No.3 and 4, the following additional issues were framed on 25.02.2002:
1. Whether defendants No.3 and 4 were bona fide purchasers under the sale deed dated 29.03.2001 by document No.1041/2001 and what is the effect of sale deed executed by defendant No.2?
2. Whether the plaintiff is entitled to damages for demolishing the ground floor as pleaded by him?
9 of 34 O.S.No.820 of 1995
14.At this stage, the plaintiff filed I.A.No.598 of 2015 seeking impleadment of defendants No.5 to 9 and consequential amendment of the plaint stating that during the pendency of the suit the house property was transferred from one to another. This Court, by order dated 06.01.2016, allowed the said petition permitting the plaintiff to implead defendants No.5 to 9 and also to carry out the consequential amendments of the plaint. The plaintiff accordingly carried out the amendment and filed a neat copy of the plaint on 29.01.2016.
15.The newly pleaded case of the plaintiff as per the amended plaint filed on 29.01.2016, in brief, is: During the pendency of the suit, defendant No.2 sold the house property in two bits to defendants No.3 and 4 under two different sale deeds and defendants No.3 and 4 sold the said property to defendants No.5 and 6 under two registered sale deeds dated 04.08.2006. Defendants No.5 and 6 together sold the house property to defendant No.7 under a registered sale deed
dated 14.12.2010 and defendant No.7 sold the said property in two bits to
defendants No.8 and 9 under two different registered sale deeds dated 05.09.2011.
All these transactions are void ab initio, as, they are hit by lis pendens.The defendants have created the said transactions among themselves only to defeat the right of the plaintiff over the suit schedule property. On 22.08.2015, when the plaintiff was passing through the area of the house property, he was shocked to note that the pillars have been raised to an height of about four floors, which looks like an apartment complex. Then, the plaintiff has obtained the encumbrance certificates and came to know about the above transactions. The above alienations/transactions have taken place during the pendency of the suit and, therefore, they are to be declared as null and void and not binding on the plaintiff.
16.On 23.09.2016, defendants No.8 and 9 filed common written statement vehemently denying the case of the plaintiff, the averments of which, in 10 of 34 O.S.No.820 of 1995 brief, are: The right of the plaintiff was over the terrace of the ground floor only and since the said structure is not in existence, the said right of the plaintiff becomes extinct. Defendants No.8 and 9 have purchased the entire house property bona fidely for a valid sale consideration and got constructed a multi storeyed building over the said property by spending more than Rs.1 Crore. The transaction that has taken place between the plaintiff and his vendor was a money lending transaction only and the said documents were executed only to create some security for repayment of the loan amount. The plaintiff was never in possession of the suit schedule property much less as on the date of filing of the suit and hence the suit in the present form, without seeking the relief of declaration of title and recovery of possession, is not maintainable. Since the property as allegedly purchased by the plaintiff is not in existence, he would not be entitled to the relief of injunction. The plaintiff has no cause of action to file the suit and hence the suit is liable to be dismissed with costs.
17.The right of defendants No.5 to 7 to file written statement was forfeited on 18.10.2016.
18.This Court, on 22.11.2016, framed the following issues for trial:
1. Whether the sale deed executed by the defendants No.2 to 9 are not binding on the plaintiff and are null and void?
2. Whether the Court fee paid by the plaintiff is insufficient after amendment to para No.16(a)(a) of the plaint?
3. Whether the plaintiff is entitled for permanent injunction when defendants No.8 and 9 are in possession of the suit property?
4. Whether the suit is barred by limitation against the defendants No.8 and 9?
5. Whether the plaintiff is liable to seek declaration of his title and the suit is not maintainable without any such relief?
6. Whether the plaintiff is the title holder of the suit schedule property and was in possession of same at any point of time?
11 of 34 O.S.No.820 of 1995
7. Whether the title documents of the plaintiff bearing registration No.878/1984 along with ratification deed dated 30.04.1985 are invalid without there being any sale of undivided share in the land?
8. Whether there is any cause of action against the defendants No.8 and 9 for maintaining the suit by the plaintiff?
9. Whether the defendants are liable to pay mesne profits to the plaintiff from 15.06.1994 and at what rate?
10.To what relief?
19.As per the orders in I.A.No.101 of 2017 dated 01.03.2017, the plaintiff got amended the plaint as regards the payment of court fees for the relief of declaration sought in respect of the sale deeds of defendants No.3 to 9, which was incorporated as per the orders in I.A.No.598 of 2015 dated 06.01.2016.
20.After the above amendment, defendants No.8 and 9 filed additional written statement on 28.03.2017 stating that the relief of declaration of sale deeds executed by and amongst defendants No.2 to 9 as null and void and not binding on the plaintiff ought to have been valued under Section 37 (b) rather than under
Section 24 (d) of the A.P. Court Fees and Suits Valuation Act, as, the said relief is capable of valuation and that since the plaintiff has grossly under valued the reliefs, the suit is liable to be rejected.
21.Based on the above additional pleading of defendants No.8 and 9, on 28.03.2017, the following additional issue was framed:
“Whether the valuation made by the plaintiff in respect of the sale deeds of defendants No.3 to 9 is proper or not for the relief claimed against them?”
22.As noticed above, this Court (my learned predecessors) has framed the issues and additional issues from time to time in view of the impleadment of defendants No.3 to 9 and filing of additional pleadings by the parties. But, there is overlapping of issues. Hence, to have the comprehensiveness and avoid repetition 12 of 34 O.S.No.820 of 1995 of discussion, this Court feels it necessary to consolidate all the issues and the
additional issues framed and they are, therefore, consolidated as under:
1. Whether the plaintiff is entitled for a declaration that the registered sale deed dated 15.06.1991 executed by defendant No.1 in favour of defendant No.2 is void ab initio, non-est, incompetent and not binding on him to the extent of the suit schedule property?
2. Whether the plaintiff is entitled for a declaration that the sale deeds executed by and among defendants No.2 to 9 are null and void and not binding on him to the extent of the suit schedule property?
3. Whether the plaintiff is entitled for Rs.3,28,500/- from the defendants towards the loss for demolishing house No.3-6-539/1, Himayathnagar, Hyderabad?
4. Whether the plaintiff is entitled for perpetual injunction as prayed for?
5. Whether the plaintiff is entitled for past and future damages/ mesne profits as claimed from the defendants?
6. Whether the suit is not maintainable for not seeking the relief of declaration of title of the plaintiff in respect of the suit schedule property and recovery of possession of the said property?
7. Whether the valuation made by the plaintiff in respect of the sale deeds of defendants No.3 to 9 is proper or not for the relief claimed against them?
8. To what relief?
23.On behalf of the plaintiff, PWs.1 to 3 are examined and Exs.A.1 to 45 are marked, whereas, on behalf of defendants No.8 and 9, defendant No.8 is examined as DW1 and Exs.B.1 to B.7 are marked. Defendants No.2 to 4 did not adduce any evidence on their behalf.
24.Heard the learned counsel appearing for the parties and perused the written arguments filed by the learned counsel for the plaintiff.
25. ISSUE No.1: Whether the plaintiff is entitled for a declaration that the registered sale deed dated 15.06.1991 executed by defendant No.1 in favour of defendant No.2 is void ab initio, non-est, incompetent and not binding on him to the extent of the suit schedule property?
13 of 34 O.S.No.820 of 1995
From the pleadings and the evidence adduced by both the parties, the undisputed facts are: Defendant No.1 i.e., Matooru Anantharam, was adopted by
Sri Matooru Ranga Rao and his wife Smt. Matooru Hymavathy. The house property i.e., H.No.3-6-539/1, admeasuring 313 sq. yards, belonged to Smt.
Matooru Hymavathy having acquired the same under a registered sale deed dated 27.01.1953 (Ex.A.6). The said house was consisting of ground floor with open place. Matooru Hymavathy and Matooru Ranga Rao died in 1985 and July, 1990 respectively. The plaintiff filed O.S.No.417 of 1991 (Ex.A.13) on the file of the
Court of II Addl. Judge, City Civil Court, Hyderabad against defendant No.1 herein for specific performance of agreement of sale dated 12.03.1990 (Ex.A.3) stated to have been executed by late Matooru Ranga Rao and Memorandum of
Understanding dated 12.04.1990 (Ex.A.4) stated to have been entered by and between late Matooru Ranga Rao and the plaintiff in respect of the house property excluding the suit schedule property herein. During the pendency of the said suit, defendant No.1 herein sold the entire house property including the suit schedule property herein to defendant No.2 under a registered sale deed dated 15.06.1991 (Ex.A.5). So, the plaintiff got impleaded defendant No.2 herein as defendant No.2 in the said O.S.No.417 of 1991. The Court of II Senior Civil Judge by judgment and decree dated 10.06.1991 (Ex.A.16) decreed the said suit directing defendant
No.1 herein to execute the registered sale deed in favour of the plaintiff and directing defendants No.1 and 2 herein to deliver the vacant possession of the suit schedule property therein within one month on receipt of balance sale consideration of Rs.2,50,000/- together with interest at 18% per annum from the date of agreement till the date of payment. Against the said judgment, the plaintiff filed an appeal being CCCA No.159 of 1999 and defendant No.2 herein filed an appeal being CCCA No.232 of 1999. During the pendency of the said appeals, 14 of 34 O.S.No.820 of 1995 defendant No.2 sold the total house property in two bits to defendants No.4 and 3 herein under registered sale deeds dated 30.03.2001 and 29.03.2001 (Exs.A.20 and
A.21) respectively. Through registered rectification deeds dated 02.08.2005 (Exs.A.27 and A.26), the boundaries in Exs.A.20 and A.21 were rectified.
Defendants No.3 and 4 herein were impleaded as respondents No.3 and 4 in
CCCA No.232 of 1999. The Hon’ble High Court by common judgment dated 21.02.2003 allowed CCCA No.159 of 1999 filed by the plaintiff modifying the judgment and decree under Ex.A.16 directing defendant No.1 herein to return the advance amount of Rs.50,000/- with interest thereon at 12% per annum from the date of suit till the date of realization to the plaintiff and dismissing the CCCA
No.232 of 1999 filed by defendant No.2. Against the said judgment, the plaintiff filed Civil Appeal Nos.8220-8221 of 2003 before the Hon’ble Supreme Court and the Hon’ble Supreme Court by order dated 03.08.2010 (Ex.B.7) dismissed the said appeals. Thereafter, defendant No.3 herein sold 155 sq. yards out of the house property to defendant No.5 under a registered sale deed bearing document
No.3035/2006 dated 04.08.2006 (Ex.A.24) and defendant No.4 sold 158 sq. yards to defendant No.6 under a registered sale deed bearing document No.3036/2006
dated 04.08.2006 (Ex.A.25). Defendants No.5 and 6 have jointly sold the entire
house property to defendant No.7 under a registered sale deed bearing document
No.349/2010 dated 14.12.2010 (Ex.A.28). Defendant No.7, in turn, sold the said property to defendant No.8 and 9 in two bits under two registered sale deeds dated 05.09.2011 (Exs.A.29 and A.30).
26.The case of the plaintiff is that the suit schedule property includes terrace area of the ground floor and undivided share of 120 sq. yards out of total house property admeasuring 313 sq. yards and that he has purchased the suit schedule property under a registered sale deed bearing document No.878/1984 15 of 34 O.S.No.820 of 1995
dated 22.11.1984 from the original owner Smt. Matooru Hymavathy, but, due to
inadvertence, 120 sq. yards was not mentioned in the said sale deed and, therefore, the said Matooru Hymavathy has executed a rectification deed bearing document
No.124/1986 on 30.04.1985 in respect of the said 120 sq. yards and got registered the same on 28.01.1986 and thereby he has become the owner of the suit schedule property, which is a part of the total house property. It is alleged by him that after the death of Smt.Matooru Hymavathy and her husband Matooru Ranga Rao, defendant No.1, being their adopted son, has sold the entire house property to defendant No.2 under a registered sale deed bearing document No.1325/1991
dated 15.06.1991 fraudulently and with intent to deprive his right and interest over
the suit schedule property and hence the said sale deed dated 15.06.1991 is to be declared as null and void and not binding on him to the extent of the suit schedule property.
27.On the other hand, the case of defendant No.2, as seen from her written statement, is that she has purchased the entire house property bona fidely for a valid sale consideration from defendant No.1 and, therefore, the plaintiff cannot seek to declare her sale deed as null and void.
28.The plaintiff in his evidence as PW1 has reiterated his case. Ex.A.1 is original registered sale deed bearing document No.878/1984 dated 22.11.1984 executed by Smt. Matooru Hymavathy in favour of the plaintiff. Ex.A.2 is original registered rectification deed bearing document No.124/1986 executed on 30.04.1985 and registered on 28.01.1986 by Smt. Matooru Hymavathy in favour of the plaintiff. Ex.A.5 is certified copy of registered sale deed bearing document
No.1325/1991 dated 15.06.1991 executed by defendant No.1 in favour of defendant No.2 in respect of the total house property. PW1, during his cross- examination by defendant No.2, denied the suggestion that defendant No.2 16 of 34 O.S.No.820 of 1995 purchased the property by taking all precautionary measures as a prudent purchaser and she came to know about the litigation subsequent to the purchase only and that the purchase made by defendant No.2 under Ex.A.5 is valid and binding on him.
29.PW3 – K. Jayanth Kumar has stated that he is a third party to the suit and a witness to the sale deed bearing document No.878/1984 dated 22.11.1984 and rectification deed No.124/1986 dated 30.04.1985 registered in the Office of
Sub-Registrar at Chikkadpally, Hyderabad and executed by late Smt. Matooru
Hymavathy in favour of the plaintiff. It is further stated by him that Smt. Matooru
Hymavathy has executed the said two documents in the presence of himself and one D. Sampath Kumar and that himself and D. Sampath Kumar have attested the said documents as witnesses.
30.Defendant No.1, who stated to have executed Ex.A.5 – sale deed in favour of defendant No.2, remained ex parte. Defendant No.2 did not choose to enter into the witness box to speak her case.
31.In order to determine the description of the suit schedule property and the right and interest of the plaintiff over the said property, it is necessary to notice the recitals of Exs.A.1 and A.2. The relevant recitals of Ex.A.1 are as under:
“The vendor hereby sells transfers conveys all that terrace area of the ground floor consisting of 1416.16 sq. ft. in premises bearing No.3- 6-539/1, with the right of passage from the road to premises together with the right to use the existing open land in front of the building bearing No.3-6-539/1 and to construct a water sump and the purchaser has got the joint right with the Vendor to use the above said open land for passage together with the proposed terrace portion at the existing tin shed area at the rear of the ground floor, (which construction to be done at purchaser’s cost) and the purchaser to use the above said open land for ingress and egress to the first floor of the purchaser absolutely which is free from encumbrances. The 17 of 34 O.S.No.820 of 1995 vendor does not have any right whatsoever over the terrace area of the proposed first floor to be raised by the purchaser. The purchaser can enjoy the terrace as full absolute owner and also the open terrace thereover.
(1)The Purchaser is given right to construct separate drainage connection lines in the ground floor for the first floor of the building. The construction cost of the front gate must be borne by the Vendor and the purchaser jointly.
(2)The vendor shall have a separate water connection from the first floor.
The sale is free from all encumbrances charges mortgages liens charges etc.”
32.The relevant recitals in Ex.A.2 are as under:
“Whereas by deed of sale dated 22nd day of November, 1984
Registered as Doct.No.878 of 1984 copies in Book No.1 Vol.58 at pages 263 to 268 in the office of the Sub-Registrar, Chikkadpally,
Hyderabad in which there was an omission about a proportionate right in the land while describing the schedule of property in the said sale deed, whereas it is necessary to rectify the said omission.
NOW THIS DEED OF RECTIFICATION WITNESSETH AS
UNDER:
Add the following words in the 1st paragraph of the Schedule of the above sale deed after the words “GROUND FLOOR
ADMEASURING 168.50 sq. ft. (15.67 Sq. Mts.).” “Together with the proportionate indivisible rights in the land to an extent of 120 sq. yards”
2. This document doesn’t enlarge or abridge the rights purported to the said sale deed dated 22nd day of November, 1984 copies in
Book I volume No.58 at pages 263 to 268 registered as document
No.878 of 1984.
3.There is no change in the share of the said property and this deed does not alter boundaries or structure.
18 of 34 O.S.No.820 of 1995
4.No fresh consideration has been paid for this rectification deed to the Vendor.”
33.From the above recitals of Ex.A.1, it is obvious that Smt.Matooru
Hymavathy, who was admittedly the owner of the house property, has sold the terrace area of the ground floor to an extent of 1416.16 sq. feet including the proposed terrace area at the existing area at the rear side of the ground floor admeasuring 168.50 sq. feet to the plaintiff with a right to the plaintiff to get constructed first floor over the said terrace and he shall have absolute right over the open terrace thereover. In Ex.A.2, the recitals of which are noticed above, it is mentioned that there was an omission about the proportionate right in the land while describing the schedule property in Ex.A.1 – sale deed and, therefore, that necessitated to add the words “together with the proportionate indivisible rights in the land to an extent of 120 sq. yards”. It is, thus, obvious that the plaintiff has acquired the right, title and interest over the terrace of the ground floor including undivided interest in the land to an extent of 120 sq. yards. Exs.A.17, A.31 and
A.43 – encumbrance certificates reflect the transactions under Exs.A.1 and A.2.
Through Ex.A.7 – letter Matooru Ranga Rao, husband of late Smt. Matooru
Hymavathy, has permitted the plaintiff to get dug a bore well at the north-east corner of the house with his own costs. The Hon’ble High Court in the Judgment in CCCA No.159 of 1999 and CCCA No.232 of 1999 (Ex.A23), to which defendant No.2 herein is a party, held that Smt. Matooru Hymavathy executed a registered sale deed dated 22.11.1984 (Ex.A.1 herein) conveying the terrace rights in favour of the plaintiff herein covering an area of 1114.96 sq. feet and thereafter executed a rectification deed dated 28.01.1986 (Ex.A.2 herein) conveying the proportionate undivided share in the land to an extent of 120 sq. yards. The said judgment of the Hon’ble High Court has become final, as, defendant No.2 did not 19 of 34 O.S.No.820 of 1995 challenge the same. All these circumstances improbablise that defendant No.2 has purchased the house property, in which the suit schedule property is a part, bona fidely by taking all necessary precautions.
34.It is a fact that the validity of Ex.A.5 – sale deed through which defendant No.2 stated to have purchased the house property from defendant No.1 fell for consideration before the Court of II Senior Civil Judge, City Civil Court,
Hyderabad in O.S.No.417 of 1991. The said sale deed was marked as Ex.A9 in the said suit. Issue No.2 in the said suit was framed as “whether the sale deed dated 15.06.1991 (Ex.A.5 herein) in favour of the defendant No.2 is not hit by the bar of lis-pendece?” The Court answered the said issue against defendant No.2 vide judgment dated 10.06.1999 (Ex.A.16) holding that the purchase of the property by defendant No.2 under sale deed dated 15.06.1991 (Ex.A5 herein) is hit by lis pendens under Section 52 of the Transfer of Property Act. The Hon’ble High Court by its judgment dated 21.02.2003 in CCCA No.159 of 1999 and CCCA No.232 of 1999 (Ex.A.23) upheld the above findings of the Court of II Senior Civil Judge,
City Civil Court, Hyderabad and the same has become final. Therefore, defendant
No.2 is estopped from contending again that she has bona fidely purchased the house property for a valid sale consideration after taking all necessary precautions and, therefore, the said purchase cannot be set aside at the instance of the plaintiff.
35.It is a fact that defendant No.1 filed a petition being CMP No.20358 of 2000 before the Hon’ble High Court to condone the delay caused in filing the appeal against the judgment passed by the Hon’ble High Court in CCCA No.159 of 1999 and CCCA No.232 of 1999 and the said petition was dismissed by the
Hon’ble High Court on 29.11.2000. The certified copy of said order is marked as
Ex.A.18. The relevant portion of the said order reads as follows:
20 of 34 O.S.No.820 of 1995 “The petitioner-appellant has filed this appeal after the period of limitation. The only ground agitated in this application is that his interest and the interest of respondent No.2 were same and ultimate beneficiary was respondent No.2, therefore he and respondent No.2 had an arrangement that respondent No.2 will file an appeal on his behalf also. He has also stated that since the whole consideration was not paid to him, he had advised respondent No.2 to spend the money needed for filing of the appeal and deduct it from the consideration money due to him.”
36.From the above order of the Hon’ble High Court, it is obvious that defendant No.1 did not receive the entire sale consideration from defendant No.2.
If that be so, there would be no substance in the case of defendant No.2 that she has purchased the house property bona fidely for a valid sale consideration.
37.From Exs.A.1 and A.2, it is obvious that the plaintiff has purchased the suit schedule property from its original owner Smt. Matooru Hymavathy.
Admittedly, defendant No.2 has purchased the house property, in which the suit schedule property is a part, under Ex.A.5 – sale deed during the pendency of
O.S.No.417 of 1991 filed by the plaintiff. The Court of II Senior Civil Judge, City
Civil Court, Hyderabad by its judgment dated 10.06.1999 (Ex.A.16) held that the purchase of the house property by defendant No.2 is hit by the doctrine of lis pendens and the same was confirmed by the Hon’ble High Court in its judgment under Ex.A.23. The encumbrance certificates i.e., Exs.A.17, A.31 and A.43, reflect the transactions under Exs.A.1 and A.2. As is evident from Ex.A.18, defendant No.1 did not receive the entire sale consideration from defendant No.2.
As noticed above, defendant No.1 remained ex parte and defendant No.2 did not choose to enter into the witness box to speak her case. In the circumstances, it can be held that the purchase of the house property, in which the suit schedule property is a part, by defendant No.2 under a registered sale deed dated 15.06.1991 21 of 34 O.S.No.820 of 1995 (Ex.A.5) is hit by the doctrine of lis pendens and, therefore, the same is to be declared as null and void and not binding on the plaintiff to the extent of the suit schedule property. This issue is answered accordingly in favour of the plaintiff and against defendant No.2.
38. ISSUE No.2: Whether the plaintiff is entitled for a declaration that the sale deeds executed by and among defendants No.2 to 9 are null and void and not binding on him to the extent of the suit schedule property?
The plaintiff is seeking to declare the sale deeds executed by and among defendants No.3 to 9, to the extent of the suit schedule property, as null and void and not binding on him on the ground that they are hit by Section 52 of the
Transfer of Property Act. It is a fact that during the pendency of CCCA No.159 of 1999 and CCCA No.232 of 1999, which arose out of the judgment and decree
dated 10.06.1999 passed by the Court of II Senior Civil Judge, City Civil Court,
Hyderabad in O.S.No.417 of 1991 (Ex.A.16), defendants No.3 and 4 have purchased the total house property in two bits under Exs.A.21 and A.20 – sale deeds. It is also a fact that defendant No.3 sold her property to defendant No.5 under a sale deed dated 04.08.2006 (Ex.A.24) and defendant No.4 sold his property to defendant No.6 under a sale deed dated 04.08.2006 (Ex.A.25); that defendants No.5 and 6 have jointly sold the entire house property to defendant
No.7 under a registered sale deed dated 04.12.2010 (Ex.A.28) and defendant No.7 sold the said property to defendants No.8 and 9 in two bits under two registered sale deeds dated 05.09.2011 (Exs.A.29 and A.30). It is, thus, obvious that the above alienations of the house property among defendants No.3 to 9 have taken place during the pendency of this suit and now the said property is lying in the hands of defendant No.9. The origin for all these transactions is sale of the house property by defendant No.1 in favour of defendant No.2 under a registered sale deed dated 15.06.1991 (Ex.A.5), which was held to be hit by doctrine of lis 22 of 34 O.S.No.820 of 1995 pendens by the Court of II Senior Civil Judge by its judgment dated 10.06.1999 in
OS.No.417 of 1991 (Ex.A.16) and confirmed by the Hon’ble High Court in its
judgment dated 21.02.2003 in CCCA No.159 of 1999 and CCCA No.232 of 1999 (Ex.A.23). So, all the alienations to the extent of the suit schedule property herein by and among defendants No.3 to 9 also would be hit by doctrine of lis pendens.
39.As held by the Hon’ble Bombay High Court in Digambarrao
Hanmantrao Deshpande v. Rangrao Raghunathrao Desai reported in AIR 1949
Bombay 367, cited by the learned counsel for the plaintiff, rule of res judicata prevails over the doctrine of lis pendens and that once a judgment is duly
pronounced by a competent Court in regard to the subject matter of the suit in
which the doctrine of lis pendens applies, that decision is res judicata and binds not only the parties thereto, but, also the transferees pendente lite from them.
Therefore, as rightly contended by the learned counsel for the plaintiff, the judgment of the Court of II Senior Civil Judge under Ex.A.16 declaring the purchase of the house property by defendant No.2 as hit by doctrine of lis pendens and confirmed by the Hon’ble High Court by its judgment dated 21.02.2003 under
Ex.A.23 operates as res judicata against defendants No.3 to 9 also, as, they are the transferees pendente lite from defendant No.2.
40.It is contended by the learned counsel for defendants No.8 and 9 that under Exs.A.1 and A.2 the plaintiff has right over the terrace of ground floor only and since the said ground floor is already demolished, his right over the said terrace became extinct and hence he cannot seek to declare the sale deeds of defendants No.3 to 9, more particularly of defendants No.8 and 9, as null and void.
It is further contended by him that defendants No.8 and 9 have purchased the house property bona fidely after taking necessary precautions and for a valid sale considerationand, therefore, the sale deeds of defendants No.8 and 9 cannot be 23 of 34 O.S.No.820 of 1995 declared as null and void at the instance of the plaintiff. This Court is unable to accept these contentions. As noticed above, from Exs.A.1 and A.2, it is obvious that the plaintiff has purchased the right over the terrace of the ground floor as well as indivisible right over the land to an extent of 120 sq. yards from Smt.
Matooru Hymavathy, who was, admittedly, the owner of the house property.
Further, in Ex.A.43 – encumbrance certificate, which was filed by defendant No.8
before the Greater Hyderabad Municipal Corporation for permission to construct
the house, the transactions under Exs.A.1, A.2 and A.5 are reflected. That means, defendants No.8 and 9 have got knowledge that the plaintiff has some interest over a part of the house property purchased by them. But, in spite of that they have purchased the entire house property including the suit schedule property.
Therefore, their case that before buying the house property they have taken all precautions and after satisfying that there are no encumbrances only they have purchased the said property bona fidely is not tenable.
41.Another thing to be noted is that right from the beginning the transactions under Exs.A.1 and A.2, based on which the plaintiff is claiming right, title and interest over the suit schedule property, are being reflected in the encumbrance certificates. But, either defendant No.1 or defendant No.2 or the other subsequent purchasers did not challenge the said transactions. As long as
Exs.A.1 and A.2 remain unchallenged, any of the subsequent purchasers of the suit schedule property would not derive any right, title or interest over the said property.
42.It is further contended by the learned counsel for defendants No.8 and 9 that Ex.A.2 is not properly stamped and, therefore, the same would not confer any right or interest upon the plaintiff in an extent of 120 sq. yards. A suggestion was also put to the plaintiff/PW1, through whom Ex.A.2 was marked, 24 of 34 O.S.No.820 of 1995 to the said effect. But, it is not in dispute that Ex.A.2 is a registered document. It is mentioned in the said document that it is executed in continuation of Ex.A.1 – sale deed and that no fresh consideration has been paid for this rectification deed to the vendor. It is, thus, obvious that through this document the existing right of the plaintiff over the property was only confirmed for no consideration. However, it bears an endorsement in file No.2446/SP/85 dated 21.08.1986 made by the
District Registrar, Hyderabad to the effect that an amount of Rs.500/- towards the deficit stamp duty and an amount of Rs.20/- towards penalty i.e., totally Rs.520/-, have been levied and collected from the plaintiff. In the circumstances, this Court does not find any substance in the contention of the learned counsel for defendants
No.8 and 9 that Ex.A.2 is not properly stamped and, therefore, the same would not confer any right, title or interest upon the plaintiff in an extent of 120 sq. yards.
43.It is also contended by the learned counsel for defendants No.8 and 9 that the Hon’ble High Court in its judgment in CCCA No.159 of 1999 and
CCCA.No.232 of 1999 dated 21.02.2003 (Ex.A.23) held that the plaintiff is not entitled for the relief of specific performance of agreement of sale dated 12.03.1990 (Ex.A.3) and understanding dated 12.04.1990 (Ex.A.4) stated to have been executed by late Matooru Ranga Rao and the said judgment of the Hon’ble
High Court has become final, as, the civil appeals filed by the plaintiff against the said judgment have been dismissed by the Hon’ble Supreme Court by its judgment
dated 03.08.2010 (Ex.B.7) and, therefore, the said judgment of the Hon’ble High
Court operates as res judicata against the plaintiff and hence this suit is not maintainable. It is true that the Hon’ble High Court by its judgment dated 21.02.2003 (Ex.A.23) declined to grant the relief of specific performance of
Ex.A.3 – agreement of sale and Ex.A.4 – understanding to the plaintiff and the said judgment has become final. But, it is to be noted that Ex.A.3 – agreement of 25 of 34 O.S.No.820 of 1995 sale and Ex.A.4 – understanding were in respect of a property at house No.3-6- 589/1 excluding the suit schedule property herein. Further, it is to be noted that the
Hon’ble High Court did not refuse to grant the relief of specific performance on
the ground that the execution of Exs.A.3 and A.4 was not proved, and the Hon’ble
High Court refused to grant the said relief on the ground that the plaintiff failed to prove his readiness and willingness to perform his part of contract. Therefore, the judgment of the Hon’ble High Court under Ex.A.23 does not preclude the plaintiff from seeking to declare the sale deeds by and among the defendants to the extent of the suit schedule property as null and void and not binding on him.
44.The learned counsel for defendants No.8 and 9 while placing reliance on two judgments of the Hon’ble Supreme Court in Keshavlal Lallubhai
Patel v. Lalbhai Trikumlal Mills Ltd., reported in AIR 1958 Supreme Court 512 and Salar Jung Sugar Mills Ltd. Etc. v. State of Mysore reported in 1972 (1)
Supreme Court Cases 23 contended that there is vagueness and uncertainty in the contents of Exs.A.1 and A.2 and, therefore, no evidence can be admitted to remove the said vagueness and uncertainty. This Court is unable to accept this contention of the learned counsel for defendants No.8 and 9. The recitals of Exs.A.1 and A.2 are already noticed above. There is no vagueness, ambiguity or uncertainty in the contents of the said documents. Smt. Matooru Hymavathy through Ex.A.1 – sale deed sold the terrace rights of the ground floor and through Ex.A.2 - rectification deed conveyed indivisible right in an extent of 120 sq. yards of land to the plaintiff. The same was recognized by the Hon’ble High Court also in its judgment under Ex.A.23. Further, the plaintiff did not adduce any oral evidence contrary to the contents of Exs.A.1 and A.2 as well as the pleadings. Hence, the above contention of the learned counsel for defendants No.8 and 9 is not tenable.
26 of 34 O.S.No.820 of 1995
45.The learned counsel for defendants No.8 and 9 contended that merely because defendants No.8 and 9 have purchased the house property during the pendency of the suit the same would not automatically become void or inoperative. He, in support of this contention, relied on a judgment of the Hon’ble
Supreme Court in Vinod Seth v. Devinder Bajaj reported in (2010) 8 SCC 1. The
Hon’ble Supreme Court, at para 42, of the said judgment held as under:
“It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit.”
46.It is true that as held by the Hon’ble Supreme Court in the above decision, Section 52 of the Transfer of Property Act will not render a transaction relating to the suit property during the pendency of the suit void. But, the Hon’ble
Supreme Court held that such transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit. In this case, as noticed above, defendant No.1, who has sold the house property to defendant
No.2, was not having alienable right to the extent of the suit schedule property herein and further he has sold the said property to defendant No.2 during the pendency of O.S.No.417 of 1991, in which the said property was the subject matter and, therefore, it was held to be hit by doctrine of lis pendens.
Consequently, the alienations made by and among defendants No.2 to 9 would be invalid. On the other hand, through Exs.A.1 and A.2, the plaintiff is able to 27 of 34 O.S.No.820 of 1995 establish his right, title and interest over the suit schedule property. So, the purchase of the house property, in which the suit schedule property herein is a part, would be subject to the decision in this suit to the extent of the suit schedule property.
47.It is lastly contended by the learned counsel for defendants No.8 and 9 that the Hon’ble High Court while disposing of CCCA No.159 of 1999 and
CCCA No.232 of 1999 by its judgment dated 21.02.2003 (Ex.A.23) gave liberty to the plaintiff to work out the remedies for demolishing the building where under he has purchased undivided extent of terrace rights, but, the plaintiff, instead of initiating proceedings to get demolished the building, has filed this suit for totally a different relief and hence the suit is not maintainable. It is true that the Hon’ble
High Court in the above judgment gave liberty to the plaintiff to work out remedies for demolishing the building where under he has purchased undivided extent of terrace rights. But, as rightly contended by the learned counsel for the plaintiff, such liberty granted by the Hon’ble High Court would not take away the right of the plaintiff to seek declaration of the sale deeds executed by and among defendants No.2 to 9 to the extent of the suit schedule property as null and void and not binding on him. So, this contention is also not tenable.
48.For the reasons recoded supra, this Court holds that the sale deeds executed by and among defendants No.8 and 9 are to be declared as null and void and not binding on the plaintiff to the extent of the suit schedule property. This issue is, therefore, answered in favour of the plaintiff and against the defendants.
49. ISSUE No.3: Whether the plaintiff is entitled for Rs.3,28,500/- from the defendants towards the loss for demolishing house No.3-6-539/1, Himayathnagar, Hyderabad?
The plaintiff got introduced a prayer for damages of Rs.3,28,500/- by way of amendment stating that on 05.04.2001 he found that the defendants have razed 28 of 34 O.S.No.820 of 1995 the entire building and the said act of the defendants caused loss to a tune of
Rs.3,28,500/- to him. The plaintiff/PW1 and his son as well as GPA holder i.e.,
PW2, have stated so in their evidence. But, it is to be noted that as per Exs.A.1 and
A.2, the right of the plaintiff over the suit schedule property is inseparable and intact though the building is demolished. So, the claiming of compensation/damages for demolishing the existing structure would not be adequate and permissible. Further, the plaintiff, except pleading that he has sustained the loss to a tune of Rs.3,28,500/-, did not state specifically the nature of loss sustained or get assessed the same through any mode. In the circumstances, this Court holds that the plaintiff would not be entitled to the damages claimed.
This issue is, therefore, answered against the plaintiff and in favour of the defendants.
50. ISSUE No.4: Whether the plaintiff is entitled for perpetual injunction as prayed for?
The plaintiff is seeking injunction restraining the defendants, their agents, heirs, representatives, workmen, servants, etc., from invading his right in or over the suit schedule property or interfering with his possession and enjoyment over the said property in any form or manner whatsoever. But, it is to be noted that, admittedly, the entire house property including the suit schedule property went into the hands of the defendants and defendant No.8 got constructed a multi storied building in the said property. Thus, the right of the plaintiff over the suit schedule property is already invaded and further, admittedly, he is not in possession and enjoyment of whole or any part of the suit schedule property.
Another thing to be noted is that the suit schedule property is unidentifiable and inseparable from the total house property. So, the question of any of the defendants again invading the right of the plaintiff over the suit schedule property or interfering with his possession and enjoyment over the said property does not 29 of 34 O.S.No.820 of 1995 arise. Hence, it is impermissible to grant injunction in favour of the plaintiff and against the defendants. This issue is answered accordingly against the plaintiff and in favour of the defendants.
51. ISSUE No.5: Whether the plaintiff is entitled for past and future damages/mesne profits as claimed from the defendants?
The plaintiff is claiming the past damages at Rs.5,000/- per month for the period from 15.06.1991 to 14.06.1994, amounting to Rs.1,80,000/-, and also the future damages at Rs.5,000/- per month from the defendants. As noticed in issues
No.1 and 2, the plaintiff has right, title and interest over the suit schedule property.
Admittedly, the possession of the said property was changed from one to one and now the same is in the hands of defendants No.8 and 9. So, the plaintiff would be entitled to the damages/mesne profits at some rate from the defendants, who have been enjoying the suit schedule property. But, the plaintiff did not adduce any evidence to determine the rate of damages/mesne profits. Hence, it is left open to be determined on a separate application under Order XX Rule 12 of the Code of
Civil Procedure. This issue is answered accordingly.
52. ISSUE No.6: Whether the suit is not maintainable for not seeking the relief of declaration of title of the plaintiff in respect of the suit schedule property and recovery of possession of the said property?
Defendants No.8 and 9 in their written statement took a plea that the plaintiff is not in possession of the suit schedule property and, therefore, he ought to have filed the suit for declaration of his title over the suit schedule property and for possession of said property, but, he has filed this suit totally for a different relief and hence the same is not maintainable. The learned counsel for defendants
No.8 and 9 also during the course of arguments, while placing reliance on a judgment of the Hon’ble Supreme Court in Executive Officer, Arulmigu
Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran reported in AIR 2017
Supreme Court 1034, contended that this suit in the present form, without seeking 30 of 34 O.S.No.820 of 1995 the relief of declaration of title and recovery of possession of the suit schedule property, is not maintainable. The Hon’ble Supreme Court in the said case held that the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable. But, in the instant case, admittedly, the suit schedule property is a part of the entire house property and it is inseparable from the total property. Further, as noticed above, the plaintiff has undivided right, title and interest over the suit schedule property, which is a part of the entire house property. It is no doubt true that the plaintiff is not in physical possession of the suit schedule property. But, since he has right, title and interest over the suit schedule property, it can be taken that he is in constructive possession over the said property along with the physical possession of the defendants. Therefore, the suit cannot be said to be bad for not seeking the relief of declaration of title of the plaintiff over the suit schedule property and possession of the said property. This issue is, therefore, answered against defendants No.8 and 9 and in favour of the plaintiff.
53. ISSUE No.7: Whether the valuation made by the plaintiff in respect of the sale deeds of defendants No.3 to 9 is proper or not for the relief claimed against them?
The plaintiff by way of amendment introduced the relief to declare the sale deeds executed by and among defendants No.2 to 9 (Exs.A.20, A.21 and A.24 to
A.30) during the pendency of the suit to the extent of the suit schedule property as null and void and not binding on him by valuing each sale deed at Rs.10,000/- and paying the requisite Court fees thereof under Section 24(d) of the A.P. Court Fees and Suits Valuation Act, 1956. Defendants No.8 and 9 in their written statement took a plea that the plaintiff ought to have valued the said relief of declaration on the face value of the documents/sale deeds and paid the Court fees thereof under
Section 37(1) of the A.P. Court Fees and Suits Valuation Act, 1956, but, he did not 31 of 34 O.S.No.820 of 1995 do so and hence the suit is liable to be dismissed. This Court is unable to accept this case of defendants No.8 and 9. Section 37 of the A.P. Court Fees and Suits
Valuation Act deals with the payment of court fees for cancellation of decrees, instruments, etc. But, the plaintiff is not seeking to cancel the subject sale deeds.
He is only seeking to declare the said sale deeds as null and void and not binding on him. Further, he is not a party to the said sale deeds. It is, however, to be noted that he has valued the relief of declaration that Ex.A.5 – sale deed executed by defendant No.1 in favour of defendant No.2 is null and void and not binding on him on its face value and paid the court fees thereof. The subsequent sale deeds by and among defendants No.2 to 9 originated from the transaction under Ex.A.5 – sale deed. So, the plaintiff need not have paid any separate court fees for declaring the subsequent sale deeds as null and void and not binding on him. However, he has valued those sale deeds notionally at Rs.10,000/- each and paid the court fees thereof under Section 24(d) of the A.P. Court Fees and Suits Valuation Act, which, as rightly submitted by the learned counsel for the plaintiff, is sufficient. This
Court, therefore, holds that the valuation made by the plaintiff in respect of the sale deeds of defendants No.3 to 9 is proper and correct. This issue is answered accordingly in favour of the plaintiff and against the defendants.
54.During the course of hearing, the learned counsel for the plaintiff requested the Court to mould the relief and order for demolition of the construction raised by the defendants over the subject property. This Court is unable to accede to this request of the learned counsel for the plaintiff. It is a fact that defendants No.8 and 9 have constructed the building by spending huge amounts. If the said construction is ordered to be demolished, defendants No.8 and 9 would be put to great financial loss and injury. However, since the plaintiff has right and interest over the suit schedule property, which is a part of the 32 of 34 O.S.No.820 of 1995 property over which defendants No.8 and 9 have constructed the building, he may be entitled to work out his equities by initiating appropriate proceedings subject to law of limitation and other laws.
55. ISSUE No.8: In the result, the suit is decreed in part;
(a)declaring the sale deeds and rectification deeds executed by and among defendants No.1 to 9 i.e., Exs.A.5, A.20, A.21 and A.24 to A.30, as null and void not binding on the plaintiff to the extent of the suit schedule property; and
(b) directing the defendants to pay the past mesne profits/damages for the period from 15.06.1991 i.e., date of Ex.A.5 – sale deed, till 14.06.1994 and future mesne profits/damages from the date of suit till the date of payment to the plaintiff at the rate to be determined on a separate application under Order XX Rule 12 of the Code of Civil Procedure.
The suit, insofar as the reliefs of injunction and damages is concerned, is dismissed.
Having regard to the facts and circumstances, both parties are directed to bear their own costs.
Dictated to the Personal Assistant and after transcribed by him, corrected
and pronounced by me in the open Court, on this the 31st day of July, 2019.
Sd/-
V Senior Civil Judge VI Senior Civil Judge (FAC) City Small Causes Court Hyderabad.
Appendix of evidence
Witnesses examined
For the plaintiff: For defendants No.8 and 9:
PW1 M. Krishna MoorthyDW1 Paresh Sheth PW2 Matooru Hemanth Nag PW3 K. Jayanth Kumar For defendants No.2 to 4: -None-
Documents marked for the plaintiff:
Ex.A.1 Original sale deed dated 22.11.1984 Ex.A.2 Original rectification deed dated 30.04.1985 Ex.A.3 Sale agreement dated 12.03.1990 33 of 34 O.S.No.820 of 1995
Ex.A.4 Understanding dated 12.04.1990 Ex.A.5 CC of sale deed dated 15.06.1991 Ex.A.6 CC of sale deed along with translation from Urdu to English Ex.A.7 Permission letter Ex.A.8 Original sale agreement dated 12.04.1990 Ex.A.9 CC of order of IG & R & S dated 12.03.1991 Ex.A.10 CC of legal notice dated 06.05.1991 Ex.A.11 CC of written statement filed by D1 in O.S.No.417 of 1991
Dated 01.10.1991
Ex.A.12 CC of written statement filed by D2 in O.S.No.417 of 1991
Dated 01.10.1992
Ex.A.13 CC of amended plaint in O.S.No.417 of 1991 dt.24.9.1992 Ex.A.14 CC of deposition as PW1 in O.S.No.417 of 1991 Ex.A.15 CC of deposition as DW1 in O.S.No.417 of 1991 Ex.A.16 CC of judgment in O.S.No.417 of 1991 dt.10.06.1999 Ex.A.17 CC of encumbrance certificate dated 03.02.2000 Ex.A.18 CC of order CMP.No.20358 of 2000 dated 29.11.2000 Ex.A.19 Death Certificate of PW1 dated 30.01.2001 Ex.A.20 CC of sale deed dated 30.03.2001 Ex.A.21 CC of sale deed dated 30.03.2001 Ex.A.22 Valuation Certificate dated 18.11.2001 Ex.A.23 CC of High Court Judgment in CCCA.No.159 of 1999 and CCCA.No.232 of 1999 dated 21.02.2003 Ex.A.24 CC of sale deed dated 04.08.2006 Ex.A.25 CC of sale deed dated 04.08.2006 Ex.A.26 CC of rectification deed dated 02.08.2006 Ex.A.27 CC of rectification deed dated 02.01.2006 Ex.A.28 CC of sale deed dated 14.10.2010 Ex.A.29 CC of sale deed dated 05.09.2011 Ex.A.30 CC of sale deed dated 05.09.2011 Ex.A.31 CC of encumbrance certificate dated 22.08.2015 Ex.A.32 CC of encumbrance certificate dated 24.08.2015 Ex.A.33 GPA dated 24.08.2015 Ex.A.34 Office copy of complaint to GHMC dated 21.04.2016 Ex.A.35 Original photos 38 numbers along with CD Ex.A.36 Police complaint along with acknowledgement dt.19.09.2016 Ex.A.37 Copy of the permit order along with plan Ex.A.38 Letter by the Public Information Officer, GHMC Ex.A.39 CC of the plaint Ex.A.40 Application copy dated 07.09.2018 Ex.A.41 Letter dated 10.10.2018 Ex.A.42 CC of statement of encumbrance on property dt.21.08.2014 Ex.A.43 CC of statement of encumbrance on property dt.22.08.2014 Ex.A.44 CC of building application along with Annexure-A Ex.A.45 CC of application for building permission
Documents marked for defendants No.8 and 9:
Ex.B.1 Paper publication in Hindi Milap dated 17.05.2011 Ex.B.2 Paper publication in Deccan Chronicle dated 17.05.2011 Ex.B.3 Encumbrance certificate dated 05.03.2011 Ex.B.4 Encumbrance certificate dated 11.03.2011 34 of 34 O.S.No.820 of 1995
Ex.B.5 Loan sanction agreement from HDFC Ltd. Ex.B.6 Common judgment by the Hon’ble High Court of A.P.,
Dated 21.02.2003
Ex.B.7 CC of order in Civil Appeal No.8220 and 8221 of 2003 on the file of Hon’ble Supreme Court of India dt.03.08..2010
For defendants No.2 to 4: -Nil-
Sd/-
V Senior Civil Judge VI Senior Civil Judge (FAC) City Small Causes Court Hyderabad. Mohan Rao *