1
IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE CUM JUDICIAL
MAGISTRATE OF I CLASS :: PUTTUR.
PRESENT: Smt. S.VENKATA KAVITHA,
Principal Junior Civil Judge cum Judicial Magistrate of I Class.
PUTTUR.
Monday, the 23rd day of November, 2020
O.S.No.157 of 2016
Between:
M/s SRT Infra Projects Pvt.Ltd, Hyderabad,
rep by its Managing Director Sri A. Chenna Reddy .. Plaintiff
And:
1. M.Narasimhulu Naidu
2. M.Prathap ...Defendants
This suit is came up before me on 10112020, for final hearing in the presence of Sri K.G.Prabhakar, Counsel for the Plaintiff and of Sri M.Mohan Raju, Counsel for D.1, whereas D.2 remained exparte on 27.02.2017, on hearing both sides and on perusal of records, having stood over for consideration till this day, this court delivered the following:
J U D G M E N T
1.This suit is filed for declaration of right and title of the plaintiff over the plaint schedule property, to grant permanent injunction restraining the defendants 1 and 2, their men, agents, servants, relatives etc, from in any interfering with his peaceful possession and enjoyment over the plaint schedule property, to declare the decree and judgment in O.S.No. 50/13 dt. 18072013 passed by the Prl.Junior Civil Judge, Puttur and the Regd. Sale deed dt. 17022016 executed by the Prl. Junior civil Judge, Puttur on behalf of the defendants for the said suit schedule property are illegal , collusive and void and they are not binding on the plaintiff and for costs.
2.The brief averments of the plaint are as follows:
a) Originally the plaint schedule property belonged to one
P.Munemma. She bequeathed her properties to her daughter late Gangabayamma under a Will dt. 23101975. Said Gangabayamma died in 1975 or 1976. During her life time, P.Munemma filed a suit in O.S.No. 10/1973 on the file of the court of the Hon’ble Subordinate Judge, Tirupati for declaration of her title in respect of the suit schedule property therein and for permanent injunction. After the death of
P.Munemma, her daughter Gangabayamma came on record as per the Will dt.23101995. The above said suit was decreed on 31031987.
2
The plaint schedule property is one of the properties of P.Munemma. After death of
P.Munemma her daughter Gangabayamma succeeded the plaint schedule property and she was in possession and enjoyment of the plaint schedule property and other properties. No appeal was preferred against the decree and judgment in
O.S.No.10/1973 on the file of Hon’ble Subordinate Judge, Tirupati. In recognition
of possession and enjoyment of the plaint schedule property by Gangabayamma, pattadar pass book and title deed were issued to her under khatha No. 580.
b)Out of love and affection towards her daughter Gangabayamma settled the plaint schedule property in favour of her daughter Padmavathi under a
Registered Settlement Deed dt.23.07.2003 and delivered the possession of plaint schedule property on the same day and since then, Padmavathamma has been in possession and enjoyment of the same and in recognition of her possession and enjoyment over the plaint schedule property, pattadar pass book and title deed were issued to her under patta No.782. The pattadar pass book and title deed issued in favour of P.Padmavathamma were surrendered by the plaintiff to the
M.R.O of Vadamalapeta and obtained pattadar pass book and title deed in its favour. Padmavathamma along with her husband Subramanyam Naidu and her son and daughter have sold the plaint schedule property and other properties to the plaintiff for Rs.4,85,000/ under a Regd. Sale deed dt.26102012 and delivered the possession of the to the plaintiff. Since then the plaintiff has been in possession and enjoyment of the plaint schedule property and other property and the name of
Managing Director of the plaintiff Company was also mutated in the Revenue records. Pattadar pass book and title deed were issued to him. Therefore plaintiff has valid title and it is in possession and enjoyment of the plaint schedule property.
c)Recently plaintiff came to know that D.1 M.Narasimhulu Naidu, S/o
M.Rama Naidu and his son Prathap filed a suit in O.S.No. 50/2013 on the file of
Prl. Junior Civil Judge’s Court, Puttur against Gangabayamma, who is the senior paternal aunt of the said Narasimhulu Naidu by creating an antedated document for specific performance of contract and obtained collusive exparte decree on 18072013 and obtained Regd. Sale deed dt. 17022016 from this court and in fact on the date of execution of sale deed said Gangabayamma was no more and she died on 07122015. The decree and judgment in OS No. 50/2013 and
Registered sale deed dt 17022016 are not biding on the plaintiff.
d)Defendants have no any manner of right, title, interest, possession and enjoyment over the plaint schedule property under the guise of decree and judgment in O.S.No. 50/2013 and Regd. Sale deed dt. 17022016, the defendants are attempting to dispossess the plaintiff from the plaint schedule property for wrongful gain. On 13.07.2016, the defendants along with their men came to the 3 plaint schedule property and attempted to dispossess the plaintiff from the plaint schedule property with the help of neighbours the plaintiff thwarted their illegal attempts and the defendants went away proclaiming that they would dispossess the plaintiff from the plaint schedule property at any cost. Hence, this suit.
3.a) On receipt of summons from this court since D2 did not appear
before this court, this court set him exparte. D.1 made his appearance and filed his
written statement denying the averments made in the accompanying affidavit of the plaint and contended that D1 and D2 are father and son. D1 and one
Gangabayamma entered into an agreement (Oppudala patram) on 11.06.2007 for
Rs.65,000/ agreeing the terms and conditions therein. In pursuance of the said agreement, Gangabayamma agreed to execute a Regd. Sale deed in pursuance of previous sale deed dt. 20061971 executed by her mother in favour of the father of
D.1. Gangabayamma succeeded the properties of her mother in O.S.No. 10/1973 on the file of Subordinate judge’s court, Tirupati under a Registered sale deed dt.
23101975, under document No. 111/1975, S.R.O, Chittoor. Said
Gangabayamma’s mother died on 13111975 and the Gangabayamma was added as a party to the suit in O.S.NO. 10/1973 as per the orders in I.A.No. 618/1975.
Said Gangabayamma got the suit schedule property as per the decree in O.S.No.
10/1973 and she has been in possession and enjoyment of suit schedule property.
The father of D1 is no more. Gangabayamma accepted the agreement of sale dt.20061971 executed by her mother in favour of father of D1. The mother of
Gangabayamma by name P.Munemma also received Rs.14,000/towards advance from the father of D1 and agreed to execute a sale deed after receipt of balance amount. The said Gangabayamma agreed to execute a sale deed in favour of defendants in pursuance of sale agreement executed by her mother and executed a sale accepting the terms and conditions of the same whenever called upon by the defendants. Gangabayamma received a sum of Rs.51,000/ on the date of agreement and in total Rs.65,000/ and agreed to execute a sale deed in favour of defendants in pursuance of terms and conditions of the agreement.
b)It was further contended that D1 and D2 had been always ready and willing to perform their part of contract as per agreement and M.Gangabayamma had been postponing, then D1 and D2 got issued a legal notice dt. 23082012 and though Gangabayamma received the said notice, she did not comply the same. D1 and D2 filed a suit in O.S.No. 50/2013 against Gangabayamma for execution of sale deed in respect of plaint schedule property and the said suit was decreed on 1807 2013. D1 and D2 also filed E.P.No. 06/2014 in O.S.No. 50/2013 for execution of sale deed as per the decree and Hon’ble court was pleased to execute a Regd. Sale
Deed dt. 17022016 in their favour in respect of plaint schedule property. D1 and 4
D2 also filed E.A.No.88/2016 in EP No.06/2014 in O.S.No. 50/2013 on the file of this court for delivery of plaint schedule property and at that time process server made an endorsement that Gangabayamma died and it is posted for steps. Plaintiff has no right, title and enjoyment over the plaint schedule property and the alleged vendors of the plaintiff had no right, possession and enjoyment over the plaint schedule property. Plaintiff and its vendors created sham, nominal and collusive documents in respect of plaint schedule property and created the alleged settlement deed dt. 23072003 in respect of the plaint schedule property. Plaintiff also created Revenue records , pattadar pass book, title deed for the plaint schedule property suppressing the real facts and misrepresenting the facts, the Revenue authorities knowing fully well about the rights of the defendants and the father of
D.1. Plaintiff has no right to claim the plaint schedule property and file a suit for declaration of its right and title over the suit schedule property. D1 and D2 came to know that Gangabayamma, during her life time executed an unregistered WILL dt.01102015 bequeathing her properties including other properties in
O.S.No.50/2013, in favour of M.Munirathnam Naidu, who is the younger son of
GangaBayamma in a sound disposing state of mind voluntarily. So the said
Munirathnam Naidu succeeded the plaint schedule property and other properties as per will dt. 01102015 and has been in possession and enjoyment of the plaint schedule property after death of Gangabayamma. The Registered Sale Deed dt.17 022016 in pursuance of decree in O.S.No.50/2013 are true, valid and binding on the plaintiff and its vendors. The plaint schedule properties are the subject matter of registered Will dt.23101975 executed by P.Munemma in favour of Ganga
Bayama. This suit is barred by resjudicata and barred by limitation and prayed to dismiss the suit.
4.Based on the pleadings of both the parties the following issues were framed for the purpose of trial.
1. Whether the plaintiff is entitled for declaration of right and title over the plaint schedule mentioned property?
2. Whether the plaintiff is entitled for consequential relief of permanent injunction over the plaint schedule mentioned properties as prayed for?
3. Whether the plaintiff is entitled to declare the decree and judgment in
O.S.No. 50/2013 dt. 18072013 passed by Prl.Junior Civil Judge, Puttur and the
Regd.sale deed dt. 17022016 executed by the Prl.Junior Civil Judge, Puttur on behalf of the defendants is illegal, collusive and void and not binding upon the plaintiff?
4.To what relief?
5
5. To prove the case of the plaintiff’s company, its Managing Director A.
Chenna Reddy, was examined as P.W.1 and examined one G.Ramachandra Naidu and N.Bhaskar Reddy as P.W.s 2 and 3 respectively. Exs. A.1 to A.21 were marked on behalf of plaintiff’s company.
a) To disprove the case of the plaintiff’s company, D.1 himself examined as D.W.1 and he examined one V.Muddukrishna as D.W2. Exs. B1 to Ex.B7 were marked.
6. Heard. Perused the record, besides the material available on record.
7. Issue Nos 1 to 3:
a) It is the case of the plaintiff that originally plaint schedule property belonged to one P.Munemma and she bequeathed her properties to her daughter
Gangabayamma under Ex. A1 and during her life time Munemma filed a suit in
O.S.No. 10/1973 on the file of Hon’ble Addl. Subordinate Judge’s Court, Tirupati
and pending the suit she died in 1975 or 1976 and after the death of Mumemma,
Gangabayamma came on record in O.S.NO. 10/1973 as second plaintiff and the said suit was decreed on 31031987 under Ex. A2 and Ex. A3 and in recognition of the possession and enjoyment of Gangabayamma under patta No. 580, pattadar pass book and title deed were issued in her name and subsequently out of love and affection Gangabayamma settled the plaint schedule property to her daughter
Padmavathamma under Ex. A4 and delivered possession of plaint schedule property on the same day and in recognition of her possession and enjoyment over the suit schedule property, pattadar pass book and title deed were issued to the said
Padmavathamma under patta No. 782 and said Padmavathamma along with her husband and children sold the plaint schedule property and other properties to the plaintiff under Ex. A5 and delivered the possession of the same on the same day and since then the plaintiff has been in possession and enjoyment of plaint schedule property and name of the Managing Director and the plaintiff was also mutated in the Revenue Records and plaintiff came to know that defendants filed O.S.No.
50/2013 on the file of this court against GangaBayamma by creating antedated document for specific performance of contract and obtained exparte collusive decree under Ex. A8 and obtained a Registered Sale Deed from this court and in fact on the date of execution of sale deed Gangabayamma was no more as she died on 07122015 and hence decree and judgment in O.S.No. 50/2013 and registered sale deed are illegal, collusive and void and not binding on the plaintiff.
b)On the other hand it is the contention of D1 and D2 that
Gangabayamma entered into an agreement (Oppudalapatram) under Ex.B1agreeing to execute a regular registered sale deed in pursuance of previous agreement of sale 6
dt. 20061971 executed by her mother Gangabayamma in favor of D.1’s father, and
Gangabayamma succeeded the properties from her mother in O.S.No. 10/1973 on the file of the Hon’ble Addl. Subordinate Judge’s Court, Tirupati under a registered
Will deed dt. 23101975 ( already marked as Ex.A1) and Gangabayamma died on 07122015 and she was added as a party in OS No. 10/1973 and she got the suit schedule property as per the decree in O.S.No. 10/1973 and she had been in possession and enjoyment of the suit schedule property and she also accepted the agreement of sale dt. 20.06.1971 executed by her mother who received Rs.14,000/ as advance and agreed to execute a regular Registered Sale Deed after receipt of balance amount. As Gangabayamma failed to execute a regular registered sale deed in favour of D1 and D2, they issued legal notice under the original of Ex.B5 and though Gangabayamma received the same, since she did not comply the demand made in the legal notice, they filed suit in O.S.No. 50/2013 against Gangabayamma for execution of Registered Sale Deed and the said suit was decreed on 18072013 and the plaintiff and his vendors were never in possession and enjoyment over the plaint schedule property and they created Ex. A.5 and the suit is barred by limitation and the defendant and their vendors have got right, title, possession and enjoyment over the suit schedule properties and prayed for dismissal of the suit.
c)In a suit for permanent injunction it is for the plaintiff to prove his lawful possession and enjoyment over the suit schedule property as on the date of filing of the suit by producing relevant documents. In a suit for declaration of right and title over the plaint schedule property, it is for the plaintiff to prove his right and title by producing relevant documents , over the suit schedule property.
d)To prove its case on behalf of plaintiff’s company its Managing
Director A. Chenna Reddy was examined as P.W.1 and he reiterated the contents of the plaint in his chief examination, Exs. A.1 to A.21 were marked on his behalf. Ex.
A1 is certified copy of Regd. Will dt. 23.10.1975 executed by P.Munemma in respect of the properties of Munemma. Ex. A.2 is a certified copy of decree in O.S.No.
10/1973 dt. 31.03.1987 on the file of Hon’ble court of Addl. Subordinate Judge,
Tirupati and Ex. A.3 is certified copy of its judgment. On perusal of Ex. A.2, during her life time Pemmasani Munemma filed a suit in O.S.No. 10/1973 on the file of the court of Hon’ble Addl. Subordinate Judge, Tirupati as per the orders in I.A.No.
613/1975, dt.22121976 in O.S.No. 10/1973 on the file of the court of Addl.
Subordinate Judge, Tirupati, the daughter of Pemmasani Munemma by name
Gangabayamma was added as the legal heir of the deceased plaintiff Pemmasani
Munemma and the said suit in O.S.No. 10/1973 on the file of Addl. Subordinate
Judge, Tirupati was decreed in favour of Gangabayamma in respect of the following
properties; 7
1)Survey NumberExtent
1)13 0.60 cents
2)16/15.40 cents
3)19/71.96 cents
4)19/50.04 cents
5)15/21/4th share in the well
6)14/93/4th share in the well and Kasmikalva Water rights
Kayam village accounts
Sy.No. 114/1 0.38 cents
Sy.No. 109/3 – 1.27 cents
Chinthakalva Village accounts:
1. The three tiled houses with a portion of terraced measuring East to West 13 yards
South to North 23 yards vacant site on Southern side measuring South to West 9 yards , South to Srinivasulu Reddy, West by Sandhu Dhari , and vacant site of D.2,
South by : lands of Killari Subba Naidu and
North by: Raja veedi.
2. Vacant site measuring East to West 15 yards , North to South 30 yards bounded on the East by – Temple, West – vacant site of K.Srinivasulu Naidu and D.2 and others, South – Raja Veedhi, North – the house of R. Munaswamy.
2)Schedule of Additional written statement of D.2
Chittoor District – Puttur Taluk, Pattiputtur group Pachikalva village accounts;
Survey NumberExtent
1)13 0.60 cents
2)16/15.40 cents
3)19/71.96 cents
4)19/50.04 cents
5)15/21/4th share in the well 3/4th share in the well and Kasmikalva Water rights
Kayam village accounts
Sy.No. 114/1 0.38 cents
Sy.No. 109/3 – 1.27 cents
Chinthakalva Village accounts:
1. The three tiled houses with a portion of terraced measuring East to West 13 yards
South to North 28 yards vacant site on Southern side measuring South to West 9 yards , South to North 16 yards , bounded on 8
East House of E. Srinivasulu Naidu
West Sandhu Dari and Vacant site of D.2.
South lands of Killari Subba Naidu
North Rajaveedhi ii) The vacant site measuring East to West 15 yards, North to South 30 yards bounded on the ;
East Temple
West vacant site of E. Srinivasulu Naidu and D.2.
South Raja veedhi
North House of P.Munaswamy
3)A schedule of D.3’s written statement;
Chittoor District , Puttur taluk, Pathiputtur group, Pachikalva village accounts;
Survey NumberExtent
1)13 0.60 cents
2)16/15.40 cents
3)19/71.96 cents
4)19/50.04 cents
5)15/21/4th share in the well 3/4th share in the well and Kasmikalva Water rights
Kayam village accounts
Sy.No. 114/1 0.38 cents
Sy.No. 109/3 – 1.27 cents
Chinthakalva Village accounts:
1. The three tiled houses with a portion of terraced measuring East to West 13 yards
South to North 28 yards vacant site on Southern side measuring South to West 9 yards , South to North 16 yards , bounded on
East House of E. Srinivasulu Naidu
West Sandhu Dari and Vacant site of D.2.
South lands of Killari Subba Naidu
North Rajaveedhi ii) The vacant site measuring East to West 15 yards, North to South 30 yards bounded on the ;
East Temple
West vacant site of E. Srinivasulu Naidu and D.2.
South Raja veedhi
North House of P.Munaswamy 9
SCHEDULE – II
Sy.No. 109/3 – 0.50 cents two portioned tiled house which is situated within the following boundaries;
East house of E. Srinivasulu Naidu
South land of Krishnama Naidu
West house of Munaswamy
North Rajaveedi
Chintakalva village in Sy.No. 16/1 an extent of Ac. 4050 Sq.Mtrs and bounded on the
East – Temple and house of P.Lakshmamma
South Rajaveedhi
West sandhu
North land of E. Srinivasulu Naidu
PLAINT SCHEDULE – A
1.Chittoor District – Puttur Taluk – No. 19 , Pathiputtur group ,
Pachikalva village accounts;
Sy.No. Extent
1. 130.85 cents
2.16/1250 cents
3.16/5187 cents
4.20/1242 cents
5.21/21.25 cents
6.21/50.28 cents
7.22/70.30 cents
8.15/10.54 cents with 1/3rd right in the well and pumpset
9.19/61.09 cents
i) with 1/3rd right in the well in S.No. 15/8 and pump set ii) with 1/3rd right in the well in S.No. 15/2 and pump set boundaries for item no. 1 S.No. 13 – 0.85 out of 312
East Kasimkalva
West land of Kanipakam Munaswamy
South lands of Pedda Munaswamy Naidu
North land of P.Subramanyam Naidu and others
Boundaries for item nos 2 and 3. S.No. 16/1 – 2.50 out of 8.02 and 16/5; 187 out of 559 cents East by lands of plaintiffs and defendants in S.No. 20/1, West by the land of Karnam Venkatasubbaraya Pillai, South by the land of P.L.Subramanyam
Naidu and others ( defendants 2 to 4 and 7) and north by the land of
P.Ramachandra Naidu (D1) , boundaries for item no. 4, Sy.No. 20/1; 142 out of 10 396 cents, East by the lands of P.Subramanyam Naidu and others , West by lands of P.Ramachandra Naidu , South by the Channel and North by the lands of E.
Senthamma.
Boundaries for item No. 5, Sy.No. 21/2 – 1.25 out of 2.57 cents – East by the
Waste lands of Chinthalakalva village; West – P.Subramanyam Naidu and others ,
South and North by the lands of Kilari Narayanaswamy Naidu.
Boundaries for item No. 9, Sy.No. 19/6 – 109 cents out of 336
East by land of M.Rama Naidu, West by land of K.Santhamma , South by land of Pokala Subbaiah and North by lands of R. Subba Naidu.
II. Kayam village accounts;
Entire extent guntas 7000
Present S.No. 109/3 dry 130 out of Ac. 394 bounded on
East the Veravakalva, West by Neerukalva (Channel), South by lands of
P.Subramanyam Naidu & others and North by land of P.Ramachandra Naidu.
S.No. 112/3, 020 out of Ac. 0.08 cents, Sy.No. 112/1 , 041 cents out of Ac.
0.82 cents
Bounded on North P.Subramanyam Naidu & others what by the hillock of mannati gundlu, South – P.Ramachandra Naidu & East by Neerukalva (Channel).
S.No. 91/1, Ac. 200 cents out of Ac. 3.80 cents bounded on East by the lands of P.Subramanyam and others , West by land of P.Ramachandra Naidu, South by Vaddigari Vanka and North by land of Killari Chengama Naidu.
S.No. 103/2, Ac. 3.00 cents out of Ac. 778 bounded on
East by P.Subramanyam Naidu and others, West by lands of P.Ramachandra
Naidu, South by Nallakattava and North by Vaddagirivanka.
S.No. 106/1 , Ac. 1.09 cents out of Ac. 292 bounded on
East by land of Kilari Narayanaswamy Naidu, West by Varavekalava (Supply
Channel) South by the lands of P.Ramachandra Naidu and North by land of
P.Subramanyam Naidu and others .
III)Bramhanapattu Village accounts:
Entire extent guntas 2200
S.No. 205/1, Ac. 120 cents out of Ac. 4.00 cents (mango garden) bounded on East by lands of Kuppa Munaswamy, West by Mango Garden of P.Ramachandra Naidu, ,
South & North – Kasimkalva.
Sy.No. 220/5 , Ac. 1.14 cents out of Ac. 2.34 cents bounded on
East by land of Pokala Chengaiah and others, West – the land of Pasala 11
Munaiah, South by lands of P.Ramachandra Naidu, North by Kasimkalva ,
S.No. 208, Ac. 0.23 cents
IV Chintakalva Village
1. The three tiled houses with a portion of terraced and measuring East to
West 13 yards , South to North 28 yards vacant site and Southern side measuring
North to West 9 yards, South to North 16 yards, The above tiled houses etc., and vacant site bounded on East by house of P.Srinivasulu Naidu, West – by tiled houses of D.1 to D4 and D7, South by the lands of Killari Subba Naidu and North by
Rajaveedhi.
2. The vacant site measuring South – West 15 yards South to North 30 yards bounded on
East by temple, West by the Vacant site of E.Srinivasulu Naidu &
P.Subramanyam Naidu and others , South by Street and North by the house of
Pogala Munaswamy.
3. The vacant site; the well and 1/3rd right in the electric pump set attached to the said well measuring East to West – 20 yards , South to North – 40 yards bounded on;
East by the vacant site of P.Subramanyam Naidu and others , West by land of
Kilari Narayanaswamy Naidu and others, South by Street and North by land of E.
Sreenivasulu Naidu.
SCHEDULE B
Chittoor District – Puttur Taluk No. 19, Pathiputtur group, Pachikalva village accounts;
Sy.NumbersExtent
1. 133.12 cents
2.16/1802 cents
3.16/5559 cents
4.20/1396 cents
5.21/2257 cents
6.21/50.28 cents
7.22/70.30 cents
8.15/10.54 cents
9.19/63.36 cents
10.19/50.04 cents item 10 to 12 added as per orders in
I.A.No. 279/87 dt. 26.02.1987.
11.19/71.96 cents
12.14/90.03 cents 12
S.Kayam village accounts
Survey NumbersExtent
1.109/33.94 cents
2.112/30.98 cents
3.112/10.82 cents
4.91/13.80 cents
5.103/27.78 cents
6.106/12.92 cents
Brahmanapattu Village Accounts
Sy.No.Extent i.205/14.00 cents Mango garden ii.220/52.34 cents.
4.Chintakalva village, Sy.No. 208, Ac. 0.23 cents.
i. The three tiled houses with a portion of terraced and measuring East to
West 13 yards, South to North 28 yards , vacant site and Southern side measuring
South to West 9 yards, South to North 16 yard, the above tiled houses etc., and vacant site bounded on
East by house of E. Sreenivasulu Naidu, West by tiled house of D1 to D4 &7 ,
South by lands of Kilari Subba Naidu and North by Rajaveedhi.
ii.The vacant site measuring East to West 15 yards, South and North 30 yards, bounded on East by temple, West by vacant site of E. Srinivasulu Naidu, and
P.Subramanyam Naidu and others, South by Street and North by house of Pogala
Munaswamy.
Iii. The vacant site the well and 1/3rd right in the electric pump set attached the said well measuring East to West 20 yards, South to North 40 yards bounded on East by vacant site of P.Subramanyam Naidu and others , West by lands of Kilari Narayanaswamy Naidu and others, South by Street and North by land of E. Sreenivasulu Naidu.
iv. A tiled house terraced house, zinc sheet, roofed shed within the site measuring 15 yards East to West and 28 yards , North to South bounded on East by the plaintiff’s houses on the West ; the pathway leading to pathing uter on the
South – lands of plaintiff and on the North – Raja veedhi.
v. The vacant site measuring East to West 25 yards, and Northt to South 30 yards bounded on East by house of Kuppa Rangaiah on West by the house of
Narappa Naidu, North by Rajaveedhi and on south by the lands of Pogala
Munaswamy etc.
13 vi. The vacant site measuring 20 yards East to West, 40 yards North to
South , bounded on East by vacant sites and E. Srinivasulu Naidu and plaintiff and on West vacant site of plaintiff, on North by the land of Govindappa Naidu and on
South by Rajaveedhi.
e)On perusal of Ex. A2 the plaintiff by name Gangabayamma in O.S.No.
10/1973 on the file of Addl. Subordinate Judge, Tirupati got declaration over the properties of additional written statement of D1 and D2, “A”schedule of D.3’s written statement more fully described in Schedule I , in respect of the declaration of possession against defendants 12 & 13 therein for the “B” schedule properties of written statement of D.12, specifically described in two items were granted. In schedule of Additional written statement of D.1 in O.S.No. 10/1973 on the file of
Hon’ble Addl.Subordinate Judge, Tirupati in the schedule, in Kayam village
accounts the plaint schedule property in the present suit is categorically mentioned.
By virtue of Ex. A2 and Ex. A3 Gangabayamma had right over the suit schedule property in the present case.
f)Ex. A4 is the Regd. Gift settlement deed dt.23072003 executed by
Gangabayamma in favour of her Padmavathamma, the schedule properties mentioned Ex. A4 are as follows;
g)An extent of Ac. 0.38 cents or 0.152 hectors in Sy.No. 114/1 in Kayam village, Vadamalpeta Mandal and bounded on;
East – land of Subramanyam Naidu,
South land of P.Ramachandra Naidu,
West – Dari (Bata) ,
North – land of Ramachandra Naidu
By virtue of Ex. A4, Padmavathamma got absolute title over the plaint schedule property since Ex.A4 is validly executed by Gangabayamma who got right under Ex.A2 and A3 to execute Ex. A4.
h)Ex. A5 is the original Regd. Sale deed dt.26102012 executed by
P.Padmavathamma and others in favour of the plaintiff’s company, in respect of plaint schedule properties and other properties. Since Ex. A4 was validly executed in favour of P.Padmavathamma under Ex. A4, it can be said that Ex. A5 was validly executed in favour of the plaintiff’s company herein by P.Padmavathamma under
Ex. A5 for valid consideration. Hence, the plaintiff’s company has got right, title and possession over the plaint schedule property under Ex. A5. Exs.A.6 and A.7 which are pattadar pass book and title deed issued in favour of P.W.1 who is the
Managing Director of the plaintiff’s company show the possession and enjoyment of the plaintiff’s company over the plaint schedule property.
14
i)Exs. A8 and A.9, are the certified copies of decree and judgments in
O.S.No. 50/2013 dt. 18072013 on the file of Prl.Junior Civil Judge, Puttur and
they disclose that defendant therein i.e., M.Gangabayamma who executed Ex. A4 validly in favour of Padmavathamma was set exparte and based on the exparte evidence of plaintiffs therein who are the defendants herein, exparte judgment was passed and based on that this court executed a regular registered sale deed in favour of the defendants herein in respect of the plaint schedule property on behalf of M.Gangabayamma. On one hand the flow of title right from Ex. A1 to Ex. A5 was validly flown in favour of plaintiff’s company, from its vendors. On the other hand Exs. A8 and A9 disclose that the executant under Ex. A4 was set exparte and exparte decree was passed in favour of defendants herein by this court. Therefore it can be said that the decree and judgment in O.S.No. 50/2013, dt. 18072013 on the file of this court is not legally valid in the eye of law. Exs. A10 to Ex. A16 show that the plaintiff’s company is in possession and enjoyment of the suit schedule property.
j)P.W.1 was cross examined stating that this suit is filed by a private limited company, himself and his wife are two Directors, he has not filed bylaws and registration certificate of company with list of Directors, the plaintiff’s company was constituted in the year 2012, Exs. A.6, A.7, A10 to Ex. A16 are all in his name and not in the name of plaintiff’s company, Ex. A5 is sale deed in the name of plaintiff’s company etc., which are no way helpful to disprove the case of the plaintiff. Though P.W.1 admitted in his cross examination that there is reference about Ex. A.1 Will in Ex. A4 settlement deed that settler got the property under
Ex. A1 Will and in Ex. A4 – Settlement deed there is no reference of Ex. A2 and
Ex. A3 which are decree and judgment, it cannot be said that Ex. A5 was not validly executed in favour of plaintiff’s company in respect of plaint schedule property, since under Ex.A.2 which is certified copy of decree in O.S.No.10/1973,
Gangabayamma was declared as the title holder of the plaint schedule property.
Though he further admitted that in Ex. A1 the suit survey number 114/1 which is an extent of Ac. 0.38 cents was not referred, as per Ex. A2, Gangabayamma who executed Ex.A4 in favour of her elder daughter Padmavathamma, got the suit schedule property and subsequently the said Padmavathamma who got right over the plaint schedule property by virtue of Ex. A4 executed Ex.A5 in favour of plaintiff’s company. Mere admissions of P.W1 in Ex. A1 the survey no. 114/1 was not referred does not mean that the vendor of the plaintiff’s company did not have any right over the plaint schedule property. Since no appeal was preferred against the decree and judgment against Ex. A2 and Ex. A3 they became final. Under the originals of Ex. A2 and Ex. A3, the decree and judgment in OS No. 10/1973 were 15 passed declaring the properties mentioned in Ex. A2 in favour of Gangabayamma.
Though D.1 and his father Rama Naidu are not the parties in O.S.No. 10/1973 on the file of the court of Additional Subordinate Judge, Tirupati, it cannot be said that
Gangabayamma, who executed Ex.A4 in favour of her daughter Padmavathamma in respect of suit schedule property, who inturn executed Ex. A5 in favour of plaintiff’s company had no title over the suit schedule property. Though he pleaded ignorance whether a separate suit was filed by Gangabayamma before the Hon’ble court of Senior Civil Judge, Puttur for declaration and delivery of the suit schedule property against D1 and others was dismissed and against the said judgment
GangaBayamma preferred an appeal in A.S.No. 77/1998 on the file of Hon’ble
X ADJ Court, Tirupati and the same was also dismissed, it is for the defendants to disprove the case of the plaintiff by producing relevant documents. No piece of document was filed before this court that Gangabayamma filed a separate suit
before the court of Hon’ble Senior Civil Judge, Putur for declaration and delivery of
possession against D1 and others and same was dismissed and she preferred an appeal in AS.No. 77/1998 on the file of Hon’ble X ADJ Court, Tirupati and the same was dismissed. In the form of a question, learned defence counsel posed to P.W.1 that whether he knows that one P.Munemma executed an agreement of sale dt.20061971 in favor of father of D1 herein in respect of plaint schedule property for which he pleaded ignorance. However no such agreement of sale dt.20061971 is produced before this court. Though he pleaded his ignorance that
Gangabayamma was added as 2nd plaintiff in O.S.No. 10/1973, dt.25121976. On perusal of Ex. A2 and Ex. A3 it is apparent that after the death of her mother
Gangabayamma was added as plaintiff in the above said suit in O.S.No. 10/1973.
P.W.1 denied a suggestion that decree and judgment in O.S.No. 50/13 on the file of this court are valid decree and judgment and sale deed in pursuance of the decree is also valid document and he has no right, title and possession over the plaint schedule property and Ex. A.67, A7, A10 to A.16 are created documents in collusion with Revenue officials.
k)Plaintiff examined one G.Ramachandra Naidu who is attestor of Ex.A4 as P.W.2, who deposed that late M.Ganag Bayamma had executed a Registered
Settlement Deed dt. 23.07.2003 in favour of her daughter P.Padmavathamma and under the said settlement deed the plaint schedule property was settled to in favour of Padmavathamma. Late Gangabayamma put her thumb impressions in the
Registered Settlement Deed in his presence and in the presence of one
E.Nagabhushanam. He signed the Registered Settlement Deed as first attestor and
E.Nagabhushanam signed as second attestor and one P.Ramakrishna Pillai scribed
Ex. A4. P.W.2 was cross examined stating that in Ex. A4, there is any reference 16 with regard to Ex. A1 Will, he does not know the execution of Will, he cannot say that Sy.No. 114/1 is mentioned in Ex. A1 or not, His wife filed a suit for partition on the file of the court of Hon’ble Senior Civil Jude, Puttur against Gangabayamma,
Venkatrama Naidu and his family regarding the properties situated in Kammapalli village etc., which are no way helpful to disprove the contents of his chief examination, since his chief examination is to the extent of his standing as first attestor of Ex. A4. No helpful information was elicited from the cross examination of P.W.2 that he is not an attestor of Ex. A.4. Therefore of execution of Ex. A4 is validly proved.
l)Plaintiff also examined one Nagabushanam Reddy one of the attestors of Ex. A5 as P.W.5 , who in his chief examination deposed that on 26102012 the plaintiff’s company purchased the plaint schedule property along with another property for valid consideration of Rs. 4,85,000/ under a Regd. Sale deed and he attested the said sale deed and one K.Mirmaiah also attested the said deed and since the date of said sale deed plaintiff has been in possession and enjoyment of the plaint schedule property. P.W.3 was cross examined stating that he is not an attestor in settlement deed dt. 27032003 (Ex. A4) and the same is no way relevant to his chief examination, since his chief examination is to the extent of his presence at the time of execution of Ex. A5 in favour of plaintiff’s company. He denied a suggestion that Ex. A5 is a created document for the purpose of this case without right,title, possession and enjoyment of vendors. This court also does not see any force in the said contention raised by learned defence counsel that Ex. A5 is created document for the purpose of this case, since Ex. A5 was executed by one
Padmavathamma, who had right over the plaint schedule property by the date of execution of Ex. A5 by virtue of Ex. A4. On overall perusal of the cross examination of P.Ws 1 to 3, no useful information and contrary information from the case of the plaintiff, in support of the case of the defendants was elicited to disprove the case of the plaintiff to prove the possession of D.1 and D.2 over the suit schedule property.
m)To disprove the case of the plaintiff, D1 himself was examined as
D.W.1 and he reiterated the contents of his written statement in his chief examination. Exs. B1 to Ex.B7 were marked. Ex.B1 is Oppudalapatram (Agreement
dt. 11062007) alleged to have been executed between D1 and D2 herein on one
hand and M.Gangabayamma or the other. Admittedly Ex. A1 is Un Registered document and the same has no value in the eye of law, unless and until it is proved by producing sufficient evidence. Ex.B2 is a certified copy of affidavit filed on behalf of the plaintiff in O.S.No. 10/1973 on the file of the court of Hon’ble
Additional Subordinate Judge, Tirupati which discloses that Gangabayamma was
impleaded as the 2nd plaintiff in O.S.No.10/1973 and she intends to amend the 17 plaint to avoid unnecessary complications and further proceedings. In view of passing of decree and judgment under the Ex. A2 and Ex. A3, Ex.B2 has no legal santity to look into, since Ex.B2 is part and parcel of the record in O.S.No. 10/1973 on the file of the court of Additional Subordinate Judge, Tirupati. Ex.B3 is a computerized copy of 1(B) namoona (ROR) dt. 24052012 and Ex.B4 is a computerized copy of No. 3 Adangal/ pahani dt.24052012 are of course, in the name of M.Gangabayamma, they are for the year 2012, pertaining to the suit schedule property. Ex.B5 is a copy of legal notice dt. 23.08.2012 issued to
Gangabayamma calling upon her to execute a regular Registered Sale Deed in terms of the alleged agreement of sale dt. 11.06.2007. Ex.B6 is acknowledgement of
Gangabayamma and the same shows that M.Gangabayamma acknowleded the receipt of original under Ex.B5. Ex.B7 is original Regd. Sale deed executed in favour of D1 and D2 herein by this court on behalf of M.Gangabayamma.
Admittedly D1 and D2 filed a suit in O.S.No. 50/2013 on the file of this court against one Gangabayamma in respect of the plaint schedule property and obtained an exparte decree and in pursuance of the same a Registered Sale Deed in their favour was executed in E.P.No. 06/2014 by this court on behalf of Gangabayamma.
In his cross examination D.W.1 admitted that one Gangabayamma is the mother of
Padmavathamma. One Pemmasani Munemma is the mother of one
Gangabayamma. Munemma died in October, 1997, Gangabayamma died on 07.12.2015. As admitted by D.W.1 Gangabayamma died on 07.12.2015 whereas
Ex.B7 was executed in favour of D1 and D2 herein in respect of suit schedule property by this court on behalf of Gangabayamma was on 17.02.2016 i.e., subsequent to the death of Gangabayamma. He further categorically admitted that a petition was filed to implead Gangabayamma after death of P.Munemmma in
O.S.No. 10/1973 and for the said petition, his father filed his counter and in the
said counter he did not state with regard to the alleged agreement of sale (Oppudalapatram) dt. 11.06.2007 and he voluntarily stated as on the filing of counter, the alleged agreement of sale was not in existence. Gangabayamma was added as 2nd plaintiff in O.S.No. 10/1973 as per the orders in I.A.No. 613/1975, dt.
22.12.1976. Ex.B1 is dated 11062007. Therefore there is no chance for the existence of Ex. B1 by the date of filing of counter in I.A.No. 613/1975 by the father of D.1. With regard to genuineness of Ex.B1, the admission of D.W.1 in his cross examination that (Oppudalapatram) was executed after 37 years, the alleged agreement of sale the stamps used for execution of agreement of sale were purchased from S.R.O office in court premises , Tirupati, it appears that his father purchased two stamps worth of Rs.50/ each and his father purchased the said stamps in 1968 and Oppudalapatram was executed in 1971, go to show that 18 defendants failed to prove Ex.B1 in their favour. He further admitted the alleged unregistered agreement sale deed of the year 1971 was not marked as an exhibit in
O.S.No. 50/2013. He further admitted in Ex.B5 legal notice, he did not mention
with regard to alleged unregistered agreement of sale deed in 1971. He further admitted that he did not issue any legal notice with regard to execution of sale deed in pursuance of unregistered agreement of sale deed 1971. As admitted that in
Ex.B2 there is no reference with regard to unregistered sale deed of the year 1971 goes to presume that there was no any unreigstered agreement of sale of the year 1971. Further he categorically admitted that Munemma executed Will(Ex.A1) bequeathing her properties in favour of her daughter Gangabayamma. However he immediately voluntarily stated that including their properties except the plaint schedule property the Will was executed. Further he admitted that in Ex.B1 there is no reference with regard to Will that P.Munemma executed a Will bequeathing all her properties except the property covered under Ex.B.1. His further admission that under Ex.B.1, the possession of the property was not handed over to the defendants goes against the case of the defendants and in favour of plaintiff. Though he stated that an unregistered agreement of sale was executed in the year 1971, the alleged document of 1971 was not produced before this court. He pleaded his ignorance with regard to delivery of possession and settling of suit schedule property by
Gangabayamma in favour of her daughter Padmavathamma under Ex.A4, as discussed supra Ex. A4 was validly executed in favour of Padmavathamma by her mother Gangabayamma. Though he denied a suggestion that since the date of Ex.
A4 Padmavathamma had been in possession and enjoyment of the suit schedule property, since, it is mentioned in Ex.A4 that possession of the suit schedule property was delivered to Padmavathamma, it is deemed that Padmavathamma had been in possession and enjoyment of the suit schedule property since the date of execution of Ex. A4 in her favour till she executed Ex. A5 in favour of plaintiff’s company. Though he denied a suggestion that Gangabayamma executed Ex. A4 in 2003, she has no right to execute Ex.B1 in 2007 over the same property, even if it is presumed, if it is true Gangabayamma executed Ex.B1 in 2007 subsequent to Ex.A4 in favour of Padmavathamma, Ex.B1 carries no legal santity. Though he denied another suggestion that Gangabayamma never executed Ex.B1, it is for the defendants to prove ExB1 , but they failed to prove it.
n)Defendants examined one V.Muddukrishnaiah as D.W.2, who in his chief examination deposed that he is a 3rd party to the proceedings, he knows the suit schedule property, Gangabayamma and D1 and D2 entered into
Oppudalapatram on 11062007 for Rs.65,000/ agreeing the terms and conditions of the same and in pursuance of the said Oppudalapatram Gangabayamma agreed 19 to execute a Registered sale deed in favour of defendants in pursuance of the previous agreement of sale dt. 11062007 executed by her mother late
P.Munemma in favour of the father of D.1 by name Rama Naidu, said
Gangabayamma’s mother Munemma died in 1975, he is the first attestor of
Oppudalapatram, one late Munirathanam was the other attestor, that one
Harikrishna prepared Oppudalapatram that Gangabayamma put her thumb impression in all sheets of Oppudalapatram in their presence that there are corrections made by the scribe of document and also endorsed “Hamsapaadi” that the contents of said Oppudalapatram were read over by the scribe and after understanding the contents, defendants signed and Gangabayamma affixed her
L.T.I, that the defendants filed a suit in O.S.No.50/2013 for execution of sale deed in pursuance of Oppudalapatram, that after the decree of the said suit, defendants filed E.P for execution of sale deed, that as per the orders of the Hon’ble Court sale deed was presented for registration, he was also present on the date of registration and signed as 1st witness and one Bhaskar signed as 2nd witness , that court officer was also present for execution of sale deed on behalf of the Hon’ble Court and registered sale deed in favour of defendants on behalf of Judgment debtor by the
Hon’ble court was affected in their presence, that defendants have got right and
title what so ever in the plaint schedule property and plaintiff and his vendors have no right , title, possession and enjoyment over the plaint schedule property.
o)In his cross examination D.W.2 admitted that Gangabayamma is an illiterate nobody asked Gangabayamma to execute Ex.B1 , no documents were referred at the time of execution of Ex.B1, it is not mentioned in Ex.B1 that the contents of Ex.B1 were read over to Gangabayamma etc., would go to disprove the case of the defendants, since Ex.B1 was not proved legally. When Ex. A4 was confronted to D.W.2, he admitted that the said Ex.A4 was executed in favour of
Padmavathamma in respect of suit schedule property. Though he pleaded ignorance with regard to delivery and possession of the plaint schedule property and other properties by Gangabayamma in favour Padmavathamma under Ex.A4, as discussed supra Ex. A4 was validly executed in favour of Padmavathamma in respect of plaint schedule property and other properties and since the date of execution of Ex. A4 Padmavathamma had been in possession and enjoyment of the plaint schedule property. He further pleaded ignorance that Padmavathamma and her husband and children sold the plaint schedule property and other properties to the plaintiff’s company under Ex. A5 sale deed and delivered the possession and enjoyment of the same. Though he denied the suggestion that Gangabayamma executed a settlement deed in favour of her daughter Padmavathamma and also delivery of possession of the same and said Gangabayamma had no right to execute 20 subsequent documents over the plaint schedule property covered under settlement deed, Ex. A4 established that it was executed in favour of Padmavathamma. Ex.A4 is dated 23072003 and Ex. B.1 is dated 11062007 which is subsequent date after the execution of Ex. A4 in favour of Padmavathamma. Since Ex. A4 is a Registered document, when it is weighed legally on par with Ex. B1 which is unregistered document, Ex.B1 carries no legal value and it has no value in the eye of law.
Therefore any document executed based on Ex.B1 has obviously no legal value and cannot be looked into.
p)On perusal of written statement at para no. 4, D1 admitted that the plaint schedule property belonged to one Pemmasani Munemma and she executed registered sale deed (Ex. A1) in favour of her daughter Gangabayamma.
Admittedly Gangabayamma was impleaded as 2nd plaintiff in O.S.No. 10/1973 and the same was decreed and by virtue of the decree and judgment in O.S.NO.
10/1973 on the file of Additional Subordinate Judge, Tirupati under the originals of
Exs. A2 and A3 Gangabayamma got the suit schedule property and she had been in possession and enjoyment of the suit schedule property. Succeeding the plaint schedule property by Gangabayamma had executed a registered gift deed in favour of her daughter Padmavathamma under Ex. A4 , inturn the said Padmavathamma executed a Regd. Sale deed in favour of plaintiff’s company under Ex. A5.
q)The case of the defendants that they obtained Oppudalapatram under
Ex.B1 from Gangabayamma. On perusal of judgment in O.S.No. 10/1973 on the file of Hon’ble Additional Subordinate Judge, Tirupati Ex.A1 WILL clearly disclosed and the same was proved. To prove the possession and enjoyment of the plaintiff’s company over the suit schedule property Exs.. A6 to Ex. A17 were filed and they establish the possession and enjoyment of the plaintiff’s company over the suit schedule property since the date of Ex. A.5.
r)In his cross examination D.W.1 stated that Gangabayamma is the younger sister of his mother but she is dead enemy and there are around 70 cases between him and Gangabayamma. In view of the above statement of D.W1 it can be presumed that out of enmity Ex.B1 was brought into existence and it was created. Hence, decree and judgment in O.S.No. 50/2013 on the file of this court, based the alleged oppudalapatram are illegal and void.
Learned counsel for plaintiff relied on a decision reported in 2014 (4) ALT 45 in a case between Nandyala Koti Reddy Vs Bheemavarapu Ramakrishna and others wherein it was held as follows; “ the plaintiff has admittedly purchased the plaint schedule property from 21 the first defendant under Ex. A1 Regd. Sale deed dt. 29-4-1986. Although second defendant pleaded that he purchased the plaint schedule property from the plaintiff under an agreement of sale dated 05-01-1994 , he did not even file the alleged agreement of sale. In my event, u/s 54 of the transfer of property Act, title to property cannot pass under an agreement of sale unless there is a registered sale deed executed by the plaintiff in favour of second defendant. The second defendant in his evidence also stated that first defendant had executed an agreement of sale in his favour but he did not choose to give the date of execution of the said agreement of sale. He also did not file it. Having sold the plaint schedule property to plaintiff under Ex. A1, the first defendant had no right, title or interest in the plaint schedule property which he could have conveyed under an agreement of sale to second defendant. Therefore, I hold that plaintiff has title to the plaint schedule property”.
The above said law is applicable to the present case facts since title to property cannot passed under an agreement of sale U/s 54 of Transfer of property act unless there is an registered sale deed executed. Having executed Ex. A4 in favour of Padmavathamma the right, title and possession were transferred in favour of Padmavathamma inturn since she executed Ex. A5 in favour of plaintiff’s company her title was transferred in favour of the plaintiff’s company. In view of sequence of Exs. A1 to Ex. A5 , Ex.B1 is not legally valid, since this deed subsequent the execution of order.
s)To prove their possession defendants produced Exs.B3 and Ex.B4 which are 1(B) namoona (ROR) and Adangal which stands in the name of
Gangabayamma. Ex.A4 is Regd .Gift settlement deed dt. 23072003 subsequent of execution of Ex. A4 in favour of Padmavathamma, the name of Padmavathamma has to come on Revenue record. If at all the name of settler is not mutated , it does not mean that defendants are in possession and enjoyment of the suit schedule property. Since, they are relying on unregistered document Ex. B1 which is subsequent document of Ex.A4. Learned counsel for plaintiff’s company relied on a decision reported in AIR 2012 ALLAHABAD page 173 in a case between
Chaudhary Ramesar Vs Smt. Prabhawathi Phool Chand wherein it was held as follows; “clear recital in gift deed that donor was transferring his possession over his bhumidari land and that gift had been accepted by donee – Recital in gift deed entitling donee to get her name mutated in revenue records raised presumption about acceptance of gift by donee – Donee entered into possession of land on day of execution of gift deed – even otherwise assuming that actual physical possession remained with donor father then also gift could not have been invalidated considering relationship of father and daughter , acceptance of gift proved.
The above said case law is applicable to the present case facts by accepting
Ex. A4 Gangabayamma delivered her possession, right and title over the plaint schedule property in favour of her daughter Padmavathamma. Since Ex.B3 and 22
Ex.B4 are in the name of Gangabayamma it cannot be said that Gangabayamma was in physical possession and enjoyment of the suit schedule property by the dates of Ex.B3 and Ex.B4. Since actual, physical possession remained with the donor i.e.,
Padmavathamma since the date of execution of Ex.A4.
t)Defendants filed a suit in O.S.No. 50/2013 based on a unregistered sale deed under Ex.B1 alleged to have been executed by Gangabayamma on 11.06.2007 in pursuance of alleged agreement of sale deed dt. 11062007. The suit in O.S.No. 10/1973 was filed by defendants in 1973, Ex.B1 was alleged to have been on 11062007, in pursuance of the alleged agreement of sale dt. 20061971.
Therefore defendants filed a suit in O.S.No. 50/2013 about 40 years after the date of alleged agreement of sale and Ex.B1 was executed about 36 years after the alleged agreement of sale deed dt. 20061971. However the alleged agreement of sale deed was not produced before this court. If really the mother of
Gangabayamma by name Pemmasani Munemma executed a agreement of sale in favour of father of D.1, on 20061971 defendants occupied and remained passive without taking steps for more than 40 years. Therefore right to claim production u/s 43 (A) of transfer of property act would not be available to the defendants.
u)Learned defence counsel argued that since P.W.1 is not competent person on behalf of plaintiff’s company , this suit is not maintainable. On perusal of documents filed on behalf of plaintiff, Ex. A17 is a resolution dt. 27072016 authorizing the Managing Director (P.W1) by the plaintiff’s company to file a case.
Through Ex. A17, P.W.1 was duly authorized by plaintiff’s company to file this suit.
Ex. A18 is memorandum of Association, Ex. A19 is certified copy of articles of association of the plaintiff’s company. By virtue of Ex. A17 to 21, it cannot be said that P.W.1 is not a competent person to file the present suit and the suit is not maintainable. Learned counsel for plaintiff argued that even there are procedural defects in a suit which cannot go to the roof of the case, the same shall not defeat the case. In support of his contention, he relied on a decision reported in AIR 1997
SC Page 3 in a case between United Bank of India Vs V.Naresh Kumar and others, wherein it was held as follows; “ Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
He further relied on another decision reported in AIR 2001 at page 126 in a 23 case between Shalimar Chemical works Ltd., Vs Surender Oil and Dal mills & others wherein it was held as follows; “ It is to be noted in this regard that the power of attorney was issued on the basis of resolution passed by board of Directors. When once it is mentioned in the power of attorney that it is supported by resolution of the power of Directors, then it would not appropriate for trial court to find the Directors was not properly authorized and there was no resolution. Obviously the trial court did not look to the contents of the power of attorney and thus rendered an aronus finding. On this ground I have necessarily to reject the finding of the lower court and hold that suit was validly instituted by a competent person who has been authorized by the company in this regard. When once the resolution was passed authorizing the Managing Director to give power of attorney in favour of power of attorney no further resolution is necessary in this regard”
The above two decisions are applicable to the present case facts, since P.W..1 is competent and has right to file the present suit by virtue of Exs. A17 to Ex. A19.
On perusal of written statement of defendants and the chief examination of D.W1 no where it was pleaded by the defendants that P.W.1 has no right to file the present suit , therefore any amount of evidence without pleadings cannot be looked into. At this stage it is pertinent to refer to a judgment reported in AIR 2020
BOMBAY 107 in a case between New India Assurance Co.Ltd., Vs M/s Sesa Goa
Ltd., Goa wherein it was held as follows; “In so far as the first point of determination is concerned, it is an admitted position that no such objection to the institution of the suit was ever taken by the Appellant in their , otherwise detailed, written statement. Order VIII, Rule 2 of the CPC, provides that the defendant must raise by his pleading, all matters which show the suit not to be maintainable. If objection to the non-maintainability of the suit were to be raised by the appellant their written statement in the first place or even by amending the written statement, the Respondent would have had an opportunity to meet with such objection. The mere fact that some questions were posed to Mr. C.D. Chitnis (P.W1) in the course of his cross examination , is not sufficient to conclude that the respondent was not taken by surprise or was not likely to be taken by surprise. Order 8, Rule 2 CPC, as noted earlier , inter alia, provides that the defendant must raise by his pleading all matters which show the suit not to be maintained and all grounds of defence , if not raised , would be likely to take the opposite party by surprise , or would raise the issues of fact, not arising out of the plaint. Ordinarily, therefore, the appellant ought not to be allowed to raise such objection at the appellate stage”.
In view of above decision defendants have no right to raise their defence during the evidence that P.W.1 has no right to file the present suit, since, they ought to have raised their objections in their written statement.
v)By going through the evidence of P.Ws. 1 to 3 coupled with Exs. A1 to 24
Ex.A21 on one hand and the evidence of D.Ws.1 and 2 coupled with Ex.B1 to Ex.B6, on the other hand and in view of above discussion it is very clear that the defendants 1 and 2 having knowledge of execution of Registered Settlement Deed dt.23072003 under Ex. A4 and registered sale deed in favour of plaintiff’s company under Ex. A5 created Ex. B1 to ExB6 and filed a false suit in
O.S.No. 50/2013 and therefore the plea of resjudicata is not applicable to the
present case and plaintiff could prove its case to declare the registered sale deed
dt. 17022016 executed by this court on behalf of defendants in O.S.No. 50/2013
is illegal, collusive and void. Accordingly, this point is answered in favour of plaintiff against the defendants.
w)Learned counsel for defendants relied on the following decisions;
1) 2019 (2) ALT 7 (SC),
2) 2017(2) ALT 611
3) AIR 2009 (SC) 951
4) AIR 2009 SC 1389
5) AIR 2009 SC 1766 6)2016 (1) ALT 550
7) 1997 (4) ALT 583
This court has gone through the above case laws and they are not applicable to the present case facts on hand.
8.Issue No.4:
In view of the discussion, the issues nos 1 to 3 and since they are answered in favour of plaintiff’s company, this suit has to be decreed in favor of the plaintiff’s company as prayed for.
9.In the result, the suit is decreed with costs in favour of the plaintiff declaring him as absolute owner of the plaint schedule property by restraining the defendants, their men, agents, servants , relatives etc., from in any way interfering with the peaceful possession and enjoyment of the plaint schedule property by way of permanent injunction and also declaring the decree and judgment in O.S.No.
50/2013 dt. 18.07.2013 and Registered sale deed dt. 17.02.2016 executed by this court on behalf of the defendants are not binding on the plaintiff.
Dictated to Stenographer and after his transcription, corrected and
pronounced by me in the open court, this the 23rd day of November, 2020.
Principal Junior Civil Judge cum
Judl. Magistrate of I Class, Puttur.
25
APPENDIX OF EVIDENCE
Witnesses examined for
Plaintiff: Defendants:
PW1 : A.Chenna Reddy D.W.1 M.Narasimhulu Naidu PW2: G.Ramachandra NaiduD.W.2 V.Muddukrishnaiah PW3: N.Bhaskar Reddy
Exhibits marked on behalf of the For Defendants:
plaintiff :
Ex.A1 : Certified copy of Regd. Will dt.Ex.B1 : Oppudalapatram (agreement) 23.10.1975 executed by Pemmasani
dt. 1162007 .
Munemma in favour of Gangabayamma
Ex.A2 : Certified copy of decree in O.S.No.Ex.B2 : Certified copy of affidavit 10/1973 dt. 31031987 on the file of filed on behalf of the plaintiffs in
Hon’ble Addl. Subordinate Judge, Tirupati
O.S.No. 10 of 1973 on the file of
Hon’ble Sub Ordinate Judge, Tirupati
Ex.A3 : Certified copy of judgment inEx.B3 : Computerized copy of 1(B)
OS.No. 10/1973 dt. 31031987 on the file
namoona (ROR) dt. 24052012 of Hon’ble Addl. Subordinate Judge, Tirupati obtained through mee seva . Ex.A4 : Regd. Gift settlement deed dt. 23Ex.B4 : Computerized copy of No.3 072003 executed by M.Gangabayamma in Adangal / Pahani, dt. 24052012 favour of P.Padmavathamma obtained through mee seva. Ex.A5 : Regd. Sale deed dt. 26102012Ex.B5 : Office copy of legal notice dt. executed by P.Padmavathamma and others 23082012 along with postal receipt in favour of plaintiff. Ex.A6 : Pattadar pass book issued to theEx.B6 : One served postal P.W.1 acknowledgement Ex.A7 : Title deed issued to the P.W.1Ex.B7 : Registered sale deed
dt. 17022016 vide Doc.No.
711/2016. Ex.A8 : Certified copy of decree in O.S.No. 50/2013 dt. 18072013
Ex.A9 : Certified copy of judgment in
O.S.No. 50/2013, dt. 18072013.
Ex.A10 : Computerized 1B namoona dt. 25112017 obtained through Mee Seva
Ex.A11 : computerized pattadar adangal/ pahani dt. 25112017 for fasali 1422 obtained through mee seva . Ex.A12 : Computerized pattadar adangal/ pahani dt. 25112017 for fasali 1423 obtained through mee seva .
26
Ex.A13 : Computerized pattadar adangal/ pahani dt. 25112017 for fasali 1424 obtained through mee seva . Ex.A14 : Computerized pattadar adangal/ pahani dt. 25112017 for fasali 1425 obtained through mee seva . Ex.A15 : Computerized pattadar adangal/ pahani dt. 25112017 for fasali 1426 obtained through mee seva . Ex.A16 : Computerized pattadar adangal/ pahani dt. 25112017 for fasali 1427 obtained through mee seva . Ex.A17 : Resolution dt. 27072016 of S.R.T infra projects (P) Limited.
Ex.A18 : Certified true copy of memorandum of association of SRT Infra projects Private Limited , Hyderabad dt. 20 072012 issued by the Assistant Registrar of Companies , Hyderabad. Ex.A19 : Certified true copy of articles of association of SRT Infra projects Private Limited , Hyderabad dt. 20072012 issued by the Assistant Registrar of Companies , Hyderabad. Ex.A 20 : Attested copy of extract of the minutes book of the plaintiff company namely SRT Infra projects private limited , Hyderabad. Ex.A21 : The attested copy of minutes book of the plaintiff company namelySRT Infra projects private limited , Hyderabad.
PJCJ cum JMFC, Puttur
Fair Judgment in O.S.No. 157 of 2016, dt. 23-11-2020