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IN THE COURT OF THE XIV ADDTIONAL DISTRICT JUDGECUM
ADDITIONAL FAMILY JUDGE :: VIJAYAWADA
PRESENT: INDIRA PRIYADARSHINI UNDRU.,
XIV ADDITIONAL DISTRICT JUDGECUM
JUDGE, ADDITIONAL FAMILY COURT, VIJAYAWADA
Friday, this the 29th day of September, 2023
O.S.NO.382/2013
Between:
UppalapuVenkataKrishnaRao, S/o.Venkateswara Rao, Hindu, Aged about: 47 Years, Business, Resident of D.No.311535A, Katurivari Street, Machavaram, Vijayawada4, Krishna District.…Plaintiff
And
1)Gajavalli Venkata Ramesh Bhavani Prasad (Died).
2)Gajavalli Mahalakshmi, W/o.G.Venkata Ramesh Bhavani Prasad, Hindu, Aged about: 51 Years, Properties, Resident of 1479, Namburi Gopal Rao Street, Hanumanpet, Vijayawada.
3)Gajavalli Siddhartha Venkata Satya Ratna Ajay Kumar, S/o.G.Venkata Ramesh Bhavani Prasad, Hindu, Aged about: 33 years, Properties, Resident of 1479, Namburi Gopal Rao Street, Hanumanpet, Vijayawada.
4)Gajavalli Venkata Kodandarama Venkata Lakshmi Vijay Kumar, S/o.G.Venkata Ramesh Bhavani Prasad, Hindu, Aged about 31 Years, Properties, Resident of 1479, Namburi Gopal Rao Street, Hanumanpet, Vijayawada.
5)Kancherla Venkata Murali Krishna (died)
6)Mukthineni Lakshmi Venkateswara Rao, S/o.M.Sri Rama Murthy, Hindu, Aged about: 40 Years, Properties, R/o.Plot No.472, Hanuman Veedhi, Ayyappa nagar, Chowdarypet, Patamata, Vijayawada, Krishna District.
7)Kambhampati Bala Naresh, S/o.Vasantha Rao, Hindu, aged about: 30 years, Properties, R/o.D.No.8197/3, Gannavaram Village and Mandal, Krishna District.
8)Talasila Venkateswara Rao, S/o.Raghavaiah, Hindu, Aged about: 76 Years, Properties, R/o.D.No.541936A, Jayaprakash Nagar, LIC Colony, Vijayawada, Krishna District.
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9)Kambhampati Devendra Rao, S/o.Vasantha Rao, Hindu, Aged about: 28 Years, Properties, R/o.D.No.81978/3, Gannavaram Village and mandal, Krishna District.
10UppalapuVenkateswaraRao,S/o.Late Ganapathi, Hindu, Aged about: 78 Years, Resident of Thippalakatta Village, Kolluru Mandal, Guntur District.
{Defendant No.10 is added as per the orders in IA.No.988/2022 dt.23.01.2023}
11) Kancherla Annapurna, W/o.K.Janakiramaiah, Hindu, Aged about:74 Years, Properties, R/o.D.No.1112355,RoadNo.5,Sri Ramakrishna Puram, Saroor Nagar, Rangareddy District, Hyderabad South, Telangana State.
{Defendant No.11 is added as per the orders of Hon’ble High Court of AP in CRPs.No.2483/2022, 2560/2022 & …Defendants. 2561/2022 dt.23.01.2023}
This Suit is coming before me on 01.09.2023 for final hearing in the presence of Sri Kilaru Jayaram, Advocate for Plaintiff and of Sri CH.Ajay Kumar, Advocate for Defendant No.6, Defendant Nos.2 to 4, 7 to 9 and defendant No.11 were setexparte, Smt.T.V.L. Kiranmai, Advocate for Defendant No.10, D1 and D5 died and the matter having stood over for consideration till this day, this Court made the following:
J U D G M E N T
This Suit is filed for declaration to declare that the Plaintiff is the absolute owner of the Plaint B schedule property and the alleged sale deeds dt.11.10.2011 and 13.06.2012 vide document
No.6201/2011, No.3036/2012 respectively and all other subsequent documents entered and executed in between the defendants are not valid under law and not binding on the plaintiff and for consequential relief of permanent injunction restraining the defendants, their men, agents and followers from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint B schedule property in any manner whatsoever and for recovery of an amount of Rs.40 lakhs from the defendant Nos.1 to 4
Page 3 of 51 and for subsequent interest there on @ Rs.24% per annum from the date of suit till the date of realization and for costs of the Suit.
2.The Nut Shell of the plaint is that:
The owners of the property in an extent of 636 sq. yards of site are that originally the defendants No.1 to 4 are Municipal Ward
No.23. Revenue Ward No.9, Block No.10, NTS No.398, Old
Assessment No.20408. New Assessment No.181371 bearing door
No.27198, situated at Durgaiah Street, Governorpet, Vijayawada, which is clearly described in the schedule annexed to the plaint and herein after referred as the "Plaint ASchedule Property". The defendants No.1 to 4 on 13.10.2006 entered into a development agreement with the plaintiff and another by name Mallikarjuna
Reddy to develop the property and to construct Cellar, Ground, First,
Second and Third Floors in the above said site. Accordingly the plaintiff obtained necessary plans from the Municipal Corporation,
Vijayawada, in the name of the defendants No.1 to 4 by paying all necessary charges to the concerned authorities. Subsequently the plaintiff and the defendants No.1 to 4 came to an understanding to construct fourth floor also in the above said site with a specific understanding that all expenses, fees for construction etc are to be shared by both of them equally. As per the understanding in between the plaintiff and the defendant Nos.1 to 4, the plaintiff and the defendant Nos.1 to 4 have to share 50% each in the constructed area and the plaintiff has to invest all the amounts for the purpose of obtaining permission and to complete the entire construction. As per the terms of the development agreement the defendants No.1 to 4 delivered possession of the Plaint A Schedule to the plaintiff and the plaintiff has completed the construction as per the understanding by paying necessary fees to the Vijayawada Municipal Corporation under Building Regularization Scheme for regularization of the fourth floor which was constructed without prior approval by the
Vijayawada Municipal Corporation. Subsequently the plaintiff and the defendants No.1 to 4, and the partner of the plaintiff
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Mallikarjuna Reddy entered into a Memorandum of Understanding
dated 28.01.2010 and as per the said understanding the plaintiff is
entitled for first and second floors in the above said building towards his share, which is more fully described in the schedule annexed to the plaint and herein after referred to be as "Paint B Schedule" and the defendants No.1 to 4 are entitled for the remaining extent i.e., ground, third and fourth floors in the said building and the cellar portion and terrace of the building has to be shared by the plaintiff and the defendants No.1 to 4 as per the floor ratio. The said
Mallikarjuna Reddy have no manner of right in the site and building since his claim was settled by the plaintiff and the defendants No.1 to 4 and the same was mentioned in the above said Memorandum of
Understanding which was duly acknowledged and signed by the said
Mallikarjuna Reddy. Further the defendants No.1 to 4 agreed to pay an amount of Rs.40 lakhs to the plaintiff which was paid to the defendants No.1 to 4 as security deposit as per the terms of the agreement dated 13.10.2006 and the plaintiff has to complete the unfinished part on or before 31.12.2010 and also provide lift, electricity transformer and generator. It is further agreed in between the plaintiff and the defendants No. 1 to 4 that they are entitled to sell their share of the building i.e., ground, third and fourth floors to any intending purchasers and the plaintiff has to sign on the registered documents as an attestor and it is further recited that the plaintiff is entitled to sell his share of property i.e., 1st and 2nd floors to any third party, in such an event the defendants No.1 to 4 have to execute regular sale deeds in the name of purchasers or their nominees. Subsequently the plaintiff fulfilled his part of obligation under the deeds dated 13.10.2006 and 28.01.2010 except providing generator and electricity transformer well in time.
b)Further averred in the plaint that while the matter stood thus the plaintiff several times requested the defendants No.1 to 4 to execute regular necessary deeds in his favour or in the name of his nominees with regard to the first and second floors which are allotted to his share as per the understanding dated 28.01.2010. The
Page 5 of 51 defendants No.1 to 4 postponed to execute and register necessary deeds with regard to 1 and 2nd floors on some pretext or other by giving formal replies from time to time. Subsequently the plaintiff came to know that the defendants No.1 to 4 even without having any manner of right over the 1 and 2nd floors in the building i.e., Plaint
B Schedule Property fraudulently created and fabricated, collusive, sham and nominal documents in the name of the defendant No.5 particularly in the form of two sale deeds 1)dated 13.06.2012 vide document No.3036/2012 and 2)dated 11.10.2011 vide document
No.6201/2011 registered on the file of Vijayawada East District
Registrar Office.
c) Further submitted that the defendant No.5 in turn executed a Sale Agreement cum General Power of Attorney dated 29.06.2012 bearing document No.3273/2012 registered on the file of
Vijayawada East District Registrar Office, in favour of defendant No.6 in respect of item No.1 of a sale deed dt.19.10.2013 bearing document No.4534/2013 in his favour under the guise of the sale agreement cum GPA dated 29.059 Further the defendant No.5 also created deeds of mortgage in respect of the second floor of the building i.e. Item No.2 of the Plaint B Schedule Property in the name of the dt.02.03.2012 bearing document Nos. No.1064/2012,
No.1065/2012 and defendants No.7, 88, 9 vide documents dated
No.1066/2012 respectively and registered on the file of Vijayawada
East District Registrar Office.
d) Further submitted that in fact the plaintiff never delivered possession of the entire p property to the defendant Nos.1 to 4 and the entire building is in the exclusive possession of the plaintiff only being the builder and developer of the same. All the above said documents are sham, collusive, nominal, fabricated and created by all the defendants with an intention to cause loss to the plaintiff and to defeat his right and claim over the plaint schedule property. The defendants herein taking advantage of the above said collusive and fabricated documents tried to interfere with the possession of the
Page 6 of 51 plaintiff and also threatened him with dire consequences. As the acts of the defendants are high handed and illegal in nature, the plaintiff and his men filed criminal cases against the defendants. The defendant No.6 also filed some false complaints against the plaintiff, his men and relatives. In the said circumstances the plaintiff filed writ petitions before the Hon'ble High Court of Andhra Pradesh. The
Mandal Revenue Officer/Executive Magistrate also initiated proceedings under section 145 (1) of Cr.P.C as MC No.48/2013 against the plaintiff and the defendants.
e)Further submitted that in fact as per the MOU dated 28.01.2010 the defendants No.1 to 4 have to register and execute necessary documents in favour of the plaintiff or his nominees with regard to the plaint B schedule property and also to pay an amount of Rs.40lac which was deposited with them as security deposit. The plaintiff as per the terms of the development agreement and MOU fulfilled his part of obligation by completing the construction in the plaint Aschedule property within the stipulated period. But the defendants without fulfilling their part of obligation to execute and register necessary documents in favour of the plaintiff and to return the security deposit played a fraud against the plaintiff by creating the above said collusive documents. As the said documents are not valid under law and not binding on the plaintiff, the plaintiff ignores the same. As a matter of fact the defendants No.1 to 4 are not entitled to execute any document with regard to Plaint B Schedule property which is allotted to the share of the plaintiff and subject matter of the documents dated 13.10.2006 and 28.01.2010. The documents which are executed by the defendants No.1 to 4 are not valid under law since the agreement in between the plaintiff and the defendants No. 1 to 4 is very much in existence and subsistence by the date of creation of alleged sale deeds. As the defendants colluded with each other and created the above said documents, the plaintiff lost confidence on the defendants No.1 to 4 and got issued a notice
dated 18.04.2013 duly demanding the defendants to execute and
Page 7 of 51 register documents in his favour with regard to the Plaint B Schedule property. Except the defendant No.5, all the defendants received the said notices, but they neither gave reply nor complied with the demand made by the plaintiff. The notice issued to 5th defendant was returned with a false endorsement.
f)Further submitted that as all the defendants colluded with each other and brought the above said collusive documents into existence in order to get some wrongful gain for themselves and to cause loss to the plaintiff and to create a cloud over the right of the plaintiff over the plaint BSchedule property, as the defendants are trying to disturb the possession of the plaintiff and as the defendants
No.1 to 4 failed to return the security deposit amount of Rs.40lacs, the plaintiff is constrained to file the suit for a declaration, to declare that the plaintiff is absolute owner of the Plaint B Schedule property and the sale deeds dated 13.06.2012 and on all subsequent documents entered and executed in between the defendants are null and void and also for permanent injunction restraining the defendants, their men, agents and followers from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint B Schedule property in any manner whatsoever and also for recovery of an amount of Rs.40lacs from the defendants No.1 to 4.
After filing of the Suit, the 5th defendant died leaving behind the defendant No.11 as his legal heir as such defendant No.11 was added as part to the Suit. Hence, the Suit.
3.The averments of the written statement of the Defendant
No.2 are as follows:
It is submitted that the 2nd defendant is wife of the late 1st defendant viz., Gajavalli Venakta Ramesh Bhavani Prasad and the defendant Nos.3 and 4 are their children (children of late 1st and 2nd defendants) and as of now there is no deviation, conflicting interest or differences between the defendants No.2 to 4.
Page 8 of 51 3(b)Further submitted that this suit is not maintainable against these defendants since they are the coowners of the entire building (4 floors) and absolute owners of the site since they are the actual and lawful purchasers of the site for valuable consideration from lawful owners and none has any right to dispute the same. The defendant Nos.2 to 4 has been in joint possession over the plaint schedule property building.
3(c)Further submitted that the averments of the plaint at para No.3 (a) are true but the plaintiff failed to complete the construction as agreed in the Unregistered Development Agreement dt.13.10.2006. Further as per the said agreement any transaction (sale etc.,) buy any of the parties to the agreement supra without the consent of the other is null and void. It is true that this defendant paid huge amount to the partner of the plaintiff i.e., late Dasireddy
Mallikarjuna Reddy while he was alive and it is known to the Plaintiff thereby this Defendant also entitled to the share of late Dasireddy
Mallikarjuna Reddy. Furthermore, this defendant is major share holder along with defendant nos.2 and 3 than the Plaintiff, the plaintiff and this Defendant is in constructive possession of the building along with defendant Nos.2 and 3. However, the plaintiff filed this Suit concealing the true facts and without any respect to
Dharma that to begin a Hindu who has to respect Dharma but failed to do so and filed the Suit for part of the building without mentioning right of this defendant and Defendant Nos.2 and 3.
3(d)Further submitted that at Para No.3 (b) of the plaint are true to some extent and that this defendant is entitled for ground, 3rd and 4th floors as their share but the property was not divided and that this defendant believes Dharma and the words and as such they have not gone for any registration and decided to have registration after completion of the construction and division. As the completion of the building was delayed abnormally and there arose disputes and negotiations and all were of oral and unregistered agreements.
Because of the incompletion of the building, the 4th defendant was forced and coerced by the plaintiff to avail loan from ICICI Bank and
Page 9 of 51 accordingly the 4th defendant availed huge amount from the ICICI
Bank by depositing title deeds and creating simple mortgage and out of the said loan part of the amount was paid to late Dasireddy
Mallikarjuna Reddy and the remaining was utilized for the construction of the building and other payments, yet the building was not fullfledged and no income is derived from it, so the 4th defendant was forced to pay near about Rs.70,00,000/ to ICICI
Bank towards loan. Later the said bank filed OS.No.218/2016 on the file of VII Addl. District Judge, Vijayawada and the same is pending.
3(e)Further submitted that to the knowledge of this defendant, the 5th defendant also passed away and in fact this defendant had no acquaintance with late 5th defendant and the alleged transactions if any has no value, why because, the late 1st defendant and this defendant is week persons and have no money and muscle power and taking advantage of their weakness, the 5th defendant with the aid of muscle men, threatened, coerced, forced and by concealing the facts obtained the alleged sale deeds without passing any consideration and orally stated that he would return the documents soon and thereby those transactions were all sham and invalid under law and came into existence. This defendant including the late 1st defendant failed to take action against late 5th defendant and others due to fear of life, threat since they were put in such stage, even they feared to approach elders or in a court of law or police etc. But however, none entered into the plaint schedule at any point of time till date except the plaintiff and this defendant who are in joint position being coowners, of course the alleged documents were of registered. This defendant has no clear knowledge about the averments of the Para No.3 (c) of the plaint and this defendant denies the same.
3(f)Further submitted that this defendant has no knowledge about the orders of MRO/Executive Magistrate noted in the plaint.
This defendant denied the averments of Para 3 (e) of the plaint and contended that to his knowledge, this defendant has not received any notice. Further denied the averments of para No.3 (f) and contended
Page 10 of 51 that this defendant do not know late 5th defendant much less the defendant Nos.6 to 9 and the question of collusion does not arise and this defendant has knowledge about the alleged documents pressed into service by the defendants much less created by late 5th defendant and thereafter as already stated supra, the property is under mortgage to a bank.
3(g)Further submitted that the question of wrongful gain does not arise to this defendant since they are owners of the site or to say coowners of the building having major share which was admitted by the plaintiff himself in the pleadings at Para NO.3 (a) of plaint. The contents of the written statement filed by the 6th defendant at para No.3 were not tenable since late 5th defendant has no any salable right or other right to execute any document of the property much less for first floor as claimed by the 6th defendant since the alleged sale transaction in favour of the late 5th defendant were off without consideration and came into existence as narrated earlier in the written statement of these defendants. In fact the possession was not delivered either to late 5th defendant and the 6th defendants herein even till date. These defendants and plaintiff are in lawful and constructive possession of the entire building being joint owners. These defendants have no knowledge about the Suit in
OS.No.703/2013 on the file of III Addl. Junior Civil Judge,
Vijayawada and the parties thereon and hence denied the same since these defendants are not parties to the suit and any order passed in that Suit was nonest against this defendant.
3(h) Further submitted that this defendant prayed the court to direct the plaintiff and other defendants not to interfere or middle with the right and possession of this defendant and the defendant nos.2 and 3, else these defendants and the defendant NOs.2 and 3 would suffer irreparable loss and injury which cannot be compensated at a later stage. This defendant reserves his right to file
additional written statement. Hence, he prayed the court to dismiss
the Suit with exemplary costs against this defendant and defendant
Nos.2 and 3 and they are unnecessarily added as parties.
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4.The Defendant Nos.3 and 4 filed a memo and adopting the
Written Statement of Defendant No.2.
5.The Defendant No.6 filed separate written statement is as follows:
This defendant denied the allegations made in the plaint and the plaintiff is put to strict proof of the same. He submitted that this defendant is not aware of the fact that the plaintiff is the builder and entered into Development Agreement with the defendant Nos.1 to 4 and in the said agreement the plaintiff got Bschedule property towards his share etc. This defendant is not aware that whether the defendant Nos.1 to 4 entered into a Development Agreement with the plaintiff and thereafter the said agreement is reduced into writing, that the plaintiff requested the defendant nos.1 to 4 to execute necessary sale deeds in his favour or in the name of his nominees with regard to 1st and 2nd floors which are allotted to the share of the plaintiff as per the MOU dt.28.01.2010, that the defendant Nos.1 to 4 postponed the execution and registration of these 1st and 2nd floors by giving formal replies from time to time and as such this defendant is neither a party to the said transactions in between the plaintiff and the defendant Nos.1 to 4 nor the alleged MOU dt.28.01.2010.
5(b)Further submitted that on 09.04.2012 the 5th defendant offered to sell the 1st floor in plaint Aschedule property i.e., item
No.1 of plaint Bschedule for a valuable consideration of
Rs.92,88,000/ and the offer of this defendant to purchase at that rate was duly accepted by the 5th defendant and even prior to the purchase of the 1st floor by this defendant, this defendant and his father Srirama Murthy and his brother Sai Prasad verified all the documents relating to plaint Aschedule property and also the 1st floor and having satisfied in respect of the title of the property which was conferred by the defendant Nos.1 to 4 in favour of the 5th defendant, this defendant purchased semi constructed 1st floor in plaint Aschedule property for a valuable consideration of
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Rs.92,88,000/ for which the 5th defendant also expressed his willingness and on 29.06.2012 this defendant paid an amount of
Rs.80,00,000/ to the 5th defendant and the 5th defendant executed and registered an Agreement of Sale cum GPA in favour of this defendant on the even date. The balance sale consideration of
Rs.12,88,000/ shall be payable by this defendant to the 5th defendant who is vendor of this defendant within one year from the date of execution and registration of Agreement of Sale cum GPA on or before 29.06.2013. But this defendant paid balance of sale consideration of Rs.12,88,000/ to the 5th defendant on 10.09.2012 and the 5th defendant delivered physical possession of 1st floor shown in Bschedule property to this defendant and the 5th defendant also delivered a receipt evidencing the payment of the entire sale consideration under the Agreement of Sale cum GPA dt.29.06.2012 and delivery of possession of the said 1st floor. Since the date of paying the balance sale consideration to the 5th defendant by this defendant, this defendant is in exclusive possession and enjoyment of the 1st floor in plaint Bschedule property as lawful owner as this defendant is a bonafide purchaser under the Agreement of Sale Cum
GPA dt.29.06.2012, thereafter paying the balance of sale consideration of Rs.12,88,000/ on 10.09.2012 and passing of a receipt.
5(c)Further submitted that this defendant came to know that the plaintiff is anti social element and is in the habit of grabbing the properties by threatening the people one way or other. Likewise the plaintiff created a story of development agreement alleged to have been entered into by the plaintiff with the defendant Nos.1 to 4. This defendant apprehends that the vendor of this defendant in collusion with the plaintiff and defendant Nos.1 to 4 colluded together and brought into existence of the development agreement and thereafter
MOU and filed false Suit against this defendant for a declaration of his title over plaint BSchedule property in respect of the 1st floor is not maintainable in law. This defendant is a bonafide purchaser in respect of 1st floor which was purchased by the 5th defendant from
Page 13 of 51 the defendant Nos.1 to 4 for a valuable sale consideration of
Rs.92,88,000/. The document obtained by this defendant from the 5th defendant is a valid document and the recitals of the said document are acted upon.
5(d)Further submitted that the 5th defendant colluded with the plaintiff who threatens everybody that is having close relations with the naxalites and also because of the abnormal increase in the values of the properties in and around of Vijayawada, the plaintiff along with defendant Nos.1 to 5 created and fabricated the documents which are filed along with the suit, as if the plaintiff is having interest in the plaint ASchedule property. This defendant submitted that he is a bonafide purchaser in respect of the 1st floor in item No.1 of BSchedule property under an Agreement of Sale cum
GPA executed by 5th defendant on 29.06.2012 for a valuable consideration of Rs.92,88,000/and on 29.06.2012 this defendant paid Rs.80,00,000/ at the time of execution and registration and thereafter on 10.09.2012 this defendant paid the balance of sale consideration of Rs.12,88,000/ to the 5th defendant and obtained a valid receipt from the 5th defendant and the 5th defendant also delivered vacant possession of time NO.1 of plaint BSchedule property and this defendant got an interest in the subject property under section 202 of Indian Contract Act and the agency coupled with interest cannot be determined by the principle to the prejudice of such interest and agency coupled with interest as per law is irrevocable and as such the plaintiff is not entitled for the relief as prayed for.
5(e)Further submitted that this plaintiff is never possession and enjoyment of the entire schedule property under the MOU dt.28.01.2010 and even now the plaintiff is not in physical possession and enjoyment of the plaint schedule property as alleged by the plaintiff in the suit as well as in I.A. The 5th defendant at the time of agreement of sale cum GPA and thereafter regular sale deeds represented that he verified the title of the defendants 1 to 4 and
Page 14 of 51 thereafter this defendant along with his father who purchased 1st floor and 3rd floor in the plaint schedule property duly verified the genuineness of all the documents and having satisfied with the sanctity, this defendant purchased item No.1 of plaint Bschedule property. Hence, the allegation of the plaintiff that the sale deed which is in the name of this defendant is sham, nominal and collusive document is purely a tissue of falsehood, only to show and gain sympathy that the plaintiff is having a right over the plaint schedule property.
5(f) Further submitted that this defendant filed a Suit in
OS.No.703/2013 on the file of III Addl. Junior Civil Judge,
Vijayawada against the 5th defendant for granting permanent injunction restraining him, his men, agents, representatives etc., from interfering with this defendant’s peaceful possession and enjoyment of the plaint schedule property along with common easement rights like lift, stair case and common areas in the ground floor as well as cellar in any manner whatsoever and in the said suit this defendant also filed IA.No.513/2013 for Temporary Injunction orders on 01.11.2013 and the said orders are in force.
5(g)Further submitted that the plaintiff filed two petitions to implead him in suit i.e., OS.No.703/2013 and also in the petition for temporary injunction and the said two petitions were dismissed on merits and the plaintiff did not prefer any appeal or other proceedings against the said orders. This defendant submits that himself and his father Srirama Murthy filed W.P.M.P.No.716/2014 and the Court while deciding some other WPMPs including the above one filed by this defendant and his father, passed orders dt.25.03.2014 modifying its orders dt.19.08.2013 passed in
WPMP.No.29728/2013 making it clear that this defendant and his father cannot be prevented from gaining access to the 1st and 3rd floors of the building and later the Hon’ble High Court observed that exparte interim order passed on 19.08.2013 in the above said
WPMP.No.29728/2013 stands modified. This defendant title over the
Page 15 of 51 plaint Bschedule item NO.1 property has been taken into consideration by the Hon’ble High Court and this defendant’s vendor i.e., 5th defendant colluded with the plaintiff and they are scheming ways and methods to disentitled this defendant over the schedule property and to cause wrongful loss to him and thereby to gain and bargain wrongfully for themselves. Hence, he prayed the court to dismiss suit with costs.
6.The Defendant Nos.7 to 9 filed a separate written statement is as follows:
These defendants denied the allegations made in the plaint and the plaintiff is put to strict proof of the same. These defendants have objection for the word “created” in Para: C of the plaint. The 5th defendant approached the 7th defendant on 03.11.2010 pleading that he needed a loan of Rs.20,00,000/ in order to discharge the loans taken by him on the property comprised in Municipal Block No.12 and Door No.12545A of Garuda Enclave Apartment and also Flat
No.504 of Fifth floor of Guaruda Enclave at Tadepalli. At that time when the 7th defendant asked for a security, the 5th defendant offered to mortgage the above noted property and after satisfying the genuineness of property and believing his words, the 7th defendant lent a sum of Rs.20,00,000/ and obtained a Registered Mortgage
Deed from the 5th defendant under doc.No.8214/2010 as security for the said loan. In spite of demands, the 5th defendant did not repay the said loan. Hence, the 7th defendant after issuing a legal notice filed a Suit in OS.No.56/2013 on the file of II Addl. District Judge at
Guntur which concluded in an exparte decree and now the execution is pending.
6(b)Further submitted that apart from the above loan the 5th defendant also borrowed an amount of Rs.36,00,000/ from the 7th defendant on 02.03.2012 mortgaging the property of a joint undivided site of 44.45% = 56.54 sq. yards out of joint undivided site of 127.2 sq.yards (1/5th) out of total immoveable property of 636 sq.
yards of site within municipal ward NO.23, Revenue Ward No.9,
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Block No.10, NTS No.398, old Asst. No.20408, New Asst.No.181371,
D.No.27198 and situated within the Vijayawada Municipal
Corporation Area at Durgaiah Street, Governorpet, Vijayawada under
Doc.No.1064/2012 in spite of demands, the 5th defendant did not discharge the said loan and hence the 7th defendant got issued a
Regd. Notice to the 5th Defendant on 27.04.2012 and hence D7 filed a
Suit in OS.No.81/2014 in II Addl. District Judge, Vijayawada and the same is pending and the said loan was not yet discharged.
6(c)Further submitted that 5th defendant also borrowed a loan of Rs.15,00,000/ from the 8th defendant and one Alla Madhavi on 24.11.2010 mortgaging the property of 69.05 sq.yards out of the total extent of 1693.15 sq.yards situated at Tadepalli of Guntur
District, comprised by D.No.52/5 and RS.No.114/B2 together with
Flat No.301 of Garuda Construction Enclave under construction (second floor) and executed a Regd. Mortgage Deed on 24.11.2010 under Doc.No.8683/2010 of Mangalagiri Sub Registry. As the 5th
Defendant failed to discharge the above loan the 8th defendant got issued a Registered Legal demand Notice to D5, but the D5 failed to discharge the loan. Hence, the 8th defendant filed a Suit in the Court of Prl. District Judge, Guntur in OS.No.57/2013 and the same is pending for trial.
6(d)Further submitted that the 5th defendant also borrowed a loan of Rs.15,00,000/ from the 8th defendant on 02.03.2012 and mortgaged the property of 23.557 sq. yards out of the joint undivided 1/5th immoveable property joint site of second flood of an extent of 18.52% = 23.557 sq. yards of site out of the joint undivided 1/5 immoveable property 127.2 sq.yards out of total immoveable property of 636 sq. yards site with municipal ward NO.23, Revenue
Ward No.9, Block No.10, NTS No.398, old Asst. No.20408, New
Asst.No.181371, D.No.27198 and situated within the Vijayawada
Municipal Corporation Area at Durgaiah Street, Governorpet,
Vijayawada under Doc.No.1065/2012 in spite of demands, the 5th defendant did not discharge the said loan and hence the 8th
Page 17 of 51 defendant got issued a Regd. Notice to the 5th Defendant on 27.04.2012 stood returned as “Intimation” and hence D8 filed a Suit in OS.No.89/2014 on the file of VII Addl. District Judge, Vijayawada and the same is pending.
6(e)Further submitted that the 5th defendant also borrowed a loan of Rs.30,00,000/ on 02.03.2012 from the 9th defendant mortgaging the property of an extent of joint undivided 37.03% immoveable property = 47.1 sq. yards joint site out of the total undivided 1/5 share of 127.2 sq.yards out of total 636 sq.yards situated within the Vijayawada Corporation at Durgaiah Street,
Governorpet, within municipal ward NO.23, Revenue Ward No.9,
Block No.10, NTS No.398, old Asst. No.20408, New Asst.No.181371,
D.No.27198 and situated within the Vijayawada Municipal
Corporation Area at Durgaiah Street, Governorpet, Vijayawada under
Doc.No.1066/2012 in spite of demands, the 5th defendant did not discharge the said loan and hence the 9th defendant got issued a
Regd. Notice to the 5th Defendant on 27.04.2012 and hence D7 filed a
Suit in OS.No.80/2014 in II Addl. District Judge, Vijayawada and the same is pending and the said loan was not yet discharged.
6(f)Further submitted that the registered mortgage deeds in favour of these defendants are valid documents and the plaintiff cannot ask for a declaration to declare them as invalid. The 5th defendant might have colluded with the plaintiff and other defendants and got filed this suit to defeat the transactions. These defendants are not necessary parties to the Suit. These defendants reserved their right to file additional written statement if necessary.
Hence, the defendant Nos.7 to 9 prays the court to dismiss the Suit with costs.
7.The Defendant No.10 filed a separate written statement is as follows:
The defendant No.10 denied the material allegations made in the Suit and the Plaintiff is put to strict proof of the same. He
Page 18 of 51 submitted that the 5th defendant in this Suit executed a sale deed on 01.07.2014 in favour of this defendant and sold to him the entire 2nd floor in the building with a plinth area of 4250 sq.feet, common area of 250 sq. feet and parking area of 720 sq.feet together with 1/5th undivided joint share of site in plaint A schedule property. The said sale deed is duly registered in the office of Gunadala S.R.O as
Document No.4076/2014.
7(b)Further submitted that this defendant purchased the property for a valid sale consideration of Rs.1,52,10,000/ and he came into possession of the said property. Since then he has been in absolute possession and enjoyment thereof. This defendant paid the entire sale consideration through bank only and as such he is a bonafide purchaser of the property.
7(c)Further submitted that recently he came to know about the pendency of this suit and got impleaded as 10th defendant in this suit vide Order dt.21.01.2023 in IA.No.988/2022. This defendant reserves her right to file additional written statement as and when necessary. Hence, this defendant prayed the court to pass necessary orders protecting the interest of this defendant in the plaint schedule property.
8.On perusal of the plaint averments, written statements of defendants Nos.2, 6,7 to 10 and other material papers on record, my learned Predecessor in office framed the following issues for trial:
i) Whether the Plaintiff is entitled for declaration that he is the absolute owner of plaint B schedule property and that sale deeds dated: 11.10.2011 and 13.06.2012 vide doc.No.6201/2011, No.3036/2012 respectively and all other subsequent documents entered and executed in between defendants are not valid law and not binding on plaintiff.
Page 19 of 51 ii) Whether the plaintiff is entitled for permanent injunction restraining defendants from ever interfering with peaceful possession and enjoyment of plaint over plaint “B” schedule property?
iii) Whether the Plaintiff is entitled for recovery of Rs.40 lakhs with subsequent interest thereon 24% per annum from date of suit till date of realization from defendant Nos.1 to 4?
iv) To what relief?
9.After hearing both sides my learned Predecessor in office framed the following additional issues for trial:
i)Whether D7 to D9 are necessary parties or whether there is any cause of action is there against them for filing of this Suit or not?
ii) Whether the Plaintiff is entitled for injunction even
though D2 to D4 are in joint possession over the plaint schedule property along with plaintiff or not?
iii) To what relief?
10.During the course of trial, P.Ws.1 and 2 are examined and
Exs.A1 to 23 are marked on behalf of the plaintiff. D.W.1 was examined and Exs.B1 to B7 are marked on behalf of the defendants.
11.Heard both sides and perused the record.
12.The learned counsel for the Plaintiff filed the following case law in support of his case:
1. In the case of Yellapu Uma Maheswari And another Vs.
Buddha Jagadheeswara Rao and others, reported in (2015) 16
Supreme Court Cases 787, wherein it was held that:
“In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties
Page 20 of 51 by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B21 and B 22 for collateral purpose subject to proof and relevance.”
2. In the case of Suraj Lamp & Industries Pvt. Ltd., Vs.
State of Haryana And Another, reported on 11 th October, 2011,
wherein it was held that:
“We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stampduty.Ourobservationsregarding `SA/GPA/WILL transactions' are not intended to apply to such bonafide/genuine transactions.”
3. In the case of Dr.S.M.Suresh Vs. G.P.Vamana Rao,
reported in 2005 (3) CCC 300 (Kar.), wherein it was held that:
“In this appeal, it is strenuously contended by Sri M.B. Naragund that the suit was solely based upon the unregistered document, when the said document is not marked, the Court had no jurisdiction to have granted any relief in terms of the document. Nextly, it is argued that the terms of the document are in essence a mortgage transaction, despite non registration, it is incumbent on the plaintiff to file a
Page 21 of 51 suit for redemption and not a suit for possession. The order of the trial Court in not permitting the plaintiff to pay the duty and penalty is illegal. It is within the jurisdiction of the Civil Court to collect the duty and penalty in respect of insufficiently stamped document when produced in evidence. Therefore it is necessary that the trial Court should have accepted payment of the duty and penalty. The defendant admits all the terms of the document in his written statement. Therefore, on the basis of the admitted facts and terms, it cannot be said that the Court has no jurisdiction to grant relief, when the document is not marked. The contention that the transaction in question is a mortgage, despite nonregistration the plaintiff has to file suit for redemption is an untenable argument. Otherwise, to hold an unregistered document as a mortgage would amount to negating the provisions of Section 17 of the Registration Act. The document unless it is registered cannot create any interest in the immovable property as per the provisions of Section 17. Therefore, the possession of the defendant should be construed only as permissive possession. The present suit for possession is perfectly is in accordance with law. It is impermissible to contend that the plaintiff should file a suit for redemption when there is no legal mortgage.”
13. In the case of Ravinder Kaur Grewal and others Vs. Majit
Kaur and others, reported in 2020 (5) ALD 114 (SC), wherein it
was held that:
(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration.
(3) If the decree were not to attract any of the clauses of subsection (1) of Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration.
Page 22 of 51 (4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the “subjectmatter of the suit or proceeding”, clause (vi) of subsection (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.”
14.The learned counsel for the Defendant No.6 also relied the following case laws:
1) In the case of Dhananjezhiyan and Others Vs. Kuppu and
others, reported in SA.No.1423 of 2008 and M.P.No.1 of 2008
decided on 07.01.2020, wherein it was held that:
25. It is a case where a proverbial person chasing two rabbits ending up catching none. The plaintiffs, who laid the suit, as could be seen from the averments of the plaint, premised their entire case on the basis of Ex. A1,
dated 08.01.1988, which was admittedly an
unregistered and unstamped document, which rightly was held to b invalid by both the Courts below. Although serious arguments were advanced on behalf of the appellants/plaintiffs that the said document Ex. A1 could be relied upon for collateral purpose, as Courts have held so, such arguments did not merit serious consideration of this Court for the simple reason that the title emanates, as far as the plaintiffs are concerned, only from Ex. A1 document. Therefore, if at all any reliance the plaintiffs. Therefore, by no stretch of legal standards, the said document Ex. A1 could be relied upon for collateral purpose. Such arguments advanced on behalf of the plaintiffs/appellants is misconceived and incorrect and have to be brushed aside.
26. Even otherwise, it is an admitted fact that one of the parties to the documentEx. A1 (Muchalika), viz., the first defendant/Chinnammal, had not signed the document Ex. A1. Therefore, the said document is incomplete and cannot be admissible in evidence. In
Page 23 of 51 fact, Ex. A1 is not a document in the eye of law at all. In the said circumstances, the judgments and decrees of the Courts below, dismissing the claim of the plaintiffs, cannot be held as illegal or incorrect, warranting interference by this Court.
2) In the case of A.N.Nagarajaiah, Vs. B.Aravind reported in
Write Petition No.26406 of 2012 decided on 07.02.2014 of
Karnataka High Court, wherein it was held that; “In the instant case, the agreement of sale is dated 27.6.2005 There is a recital to the effect that possession was delivered to the first defendant. But, the said agreement for sale is not registered. Therefore, the said agreement of sale shall have no effect for the purpose of Section 53A. The defendant cannot rely on the said document and contend that he was in possession of the schedule property on the date of sale in favour of the plaintiff. In the sale deed in favour of the plaintiff there is a recital that possession has been delivered to him on the date of sale. On proper appreciation of these facts, both the Courts below have rightly come to the conclusion that the plaintiff has made out prima facie case of lawful possession and granted temporary injunction in his favour. Therefore I do not find any merit in the arguments canvassed on behalf of the petitioner. Hence, the Writ Petition is dismissed.”
3) In the case of V.Dharma Reddy and Others Vs. S.Hariram,
reported in Civil Revision Petition NO.2501 of 2004 decided on
30.07.2004 of High Court of Andhra Pradesh at Hyderabad,
wherein it was held that:
“Reverting to the facts of the present case, the saledeed has already been executed, and, it is not in dispute that the stamp duty for the entire transaction was paid. The question as to whether the agreement of sale, of which, the secondary evidence is sought to be adduced, is true or not is a matter to be considered in the evidence. Once a saledeed was executed for the transaction, any agreement of sale preceding it ceases to hold the character of instrument as defined under Section 2(14) of the Indian Stamp Act, whereby, it shall not be liable to be subjected to the levy of stamp duty. That being the case, its admissibility cannot be objected to.
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The question as to whether the alleged agreement of sale was in fact executed between the parties and whether its contents are true can certainly be gone into by the trial Court. It shall always be open to the petitioners to raise any objection in that regard.”
15.ISSUE NO: 1 in Main Issues:
This suit is filed for declaration to declare the plaintiff is the absolute owner of the Plaint “B” schedule property and the sale deeds vide doc.6201/11 dt.11.10.2011 and Sale deed vide doc.No.3036/2012, dt.13.06.2012 and all other subsequent documents entered and executed in between the defendants are not valid under law and not binding on the plaintiff and for consequential relief of permanent injunction restraining the defendants, their men, agents and followers from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint “B” schedule property and for recovery of Rs.40 lakhs from the defendant Nos.1 to 4 with subsequent interest on Rs.40 lakhs at the rate of 24% per annum from the date of suit till the date of realization.
16.Admittedly, the defendants 1 to 4 are owners of the plaint schedule properties consisting of Aschedule, Bschedule (item Nos.1 and 2). The defendants 1 and 2 are husband and wife, the defendant
Nos.3 and 4 are their children. The plaint schedule building is situated in an extent of 636 square yards of site.
17.To substantiate the case of the plaintiff, he himself examined as P.W.1 and got marked Ex.A1 to A25. During his chief examination, he reiterated the plaint averments. During the cross examination by the counsel for the defendant No.6, he stated that as per Ex.A24 Unregistered Development Agreement dt.13.10.2006 he is entitled 50% of the entire construction, two years time is agreed to completed the construction as per Ex.A24 and he had constructed plots within the period of eight months. He denied that he did not complete the construction within time stipulated under Ex.A24. He further stated that he paid Rs.40 lakhs to Defendant Nos.1 to 4 i.e.,
Page 25 of 51 on the date of Ex.A24 paid Rs.20 lakhs and subsequently paid
Rs.20 lakhs. He admitted that as per Ex.A1 and A2 the construction was not completed. The witness voluntarily said that the incomplete construction means, there was no Generator, Lift and
Transformer because it is a commercial complex. He denied that there were no windows, doors and flooring by the date of Ex.A2 and
A3. He admitted that defendant No.5 executed sale deed for the second floor in favour of his father and fourth floor in favour of his mother. He denied that no windows, doors and flooring were finished by the year 2012. He admitted that in the sale deed executed by defendant No.5 in favour of his father, mother respectively in respect of second and fourth floors it is mentioned that in complete construction. He denied that Ex.A24 was created subsequently to the above said registered sale deed by colluding with defendant Nos.1 to 4. He further stated that he does not know about the loans availed by the Defendant Nos.1 to 4 from ICICI Bank, Vijayawada on 30.06.2008 and also doesn’t know they defaulted from the year 2012 and there is a charge over the property with ICICI Bank. He admitted that Ex.A25 is not impounded. He denied that Ex.A25 also required registration. He admitted that as per Ex.A25, Defendant Nos.1 to 4 was shown as owners of the property, but defendant No.1 and 2 only signed. He further denied the case of Defendant No.6.
18.The defendant No.6 was examined as D.W.1. In his chief affidavit he reiterated written statement averments. In para no.8 of the chief affidavit he stated that he and his father Sriram Murthy filed W.P.M.P.No.716/2014 and the Hon’ble court while deciding some other W.P.M.P.No.29728/2013, WP.No.20758/2013, WP.No.
24507/ 2013 and WP.No.39405/2013 including Writ Petition filed by him and his father the Hon’ble High Court of A.P passed orders on 25.03.2014 in common that “therefore all I needed to do was to clarify the interim orders passed by me on 19.08.2023 in
WPMP.No.2978/2013, making it clear that respondent No.3 and 4 in
WP.No.24167/2013 viz., Sri Mukthineni Srirama Murthy and
Sri Mukthneni Lakshmi Venakteswara Rao can’t be prevented from
Page 26 of 51 gaining access to the first and third floors of the building, consequently the Exparte interim order passed on 19.08.2013 stands modified. The respondent Nos.3 and 4 in WP.No.24167/2013 have right of access to the common corridor and common spaces and common stair cases for the purpose of either reaching or utilizing the building laying in the first and third floor similarly they can’t be deny access to the cellar portion for using the common areas/spaces provided therein.” D.W.1 further contended that his title over plaint
BSchedule item No.1 property has been taken into consideration by the Hon’ble High Court. His vendor i.e., defendant No.5 colluded with the plaintiff and they are scheming ways and methods to disentitle him over the schedule property and to cause wrongful loss to him and thereby gain and bargain wrongfully for themselves.
Further submits that the suit documents i.e., development agreement dt.13.10.2006 said to be entered between defendant Nos.1 to 4 the plaintiff and his alleged partner, the MOU dated; 28.01.2010 said to have been entered between the defendant Nos.1 to 4, the plaintiff and his partner or invalid and illegal document. The plaintiff is the absolutely not entitled for the relief of declaration and permanent injunction. In support of his contention got marked
Ex.B1 certified copy of registered sale deed dt.01.07.2014 bearing
Doc.No.4076/2014 executed by defendant No.5 in favour of father of the plaintiff for second floor of the BSchedule property. Ex.B2 certified copy of registered sale deed dt.01.07.2014 bearing
Doc.4077/2014 executed by defendant No.5 in favour of plaintiff’s mother Uppuluru Manikyamma for fourth floor of the schedule property. Ex.B3 is copy of orders passed by the Hon’ble High Court of A.P. in WPMP.No.716/2014 in WPMP.No.29728/2013,
WP.No.24167/ 2013 and WP.Nos.20768, 24507 and 39405/2013.
During the crossexamination by the plaintiff, he categorically deposed that he purchased Item No.1 of plaint Bschedule property on 19.07.2013. They entered into sale agreementcumGPA on 29.06.2012 by the date of sale agreement cumGPA the construction was not yet completed. It is consisting of G+ 4 floors. ItemNo.1 of B
Page 27 of 51 schedule property is first floor, at present ground floor is in the name of mother of the plaintiff and second floor is in the name of father of plaintiff viz., Venkateswara Rao, 3rd floor is in the name of M.Vijaya,
W/o.Sai Prasad and the 4th floor is under the control of Defendant
Nos.1 to 4. He further stated that may be building plan was approved in the year 2006. The plaintiff is not builder of the said building.
Defendant No.5 obtained sale deed on 13.06.2019 from Gadgavalli
Family i.e., Gadagavalli Mahalakshmi, G.Vijaya Kumar and G.Ajay
Kumar and another and he could recollect the names of four persons. He does not know about the disputes between the plaintiff and defendant Nos.1 to 4. He doesn’t know whether there is any development agreement between plaintiff and defendant No.1 to 4.
He does not know whether plaintiff and defendant No.1 to 4 entered into Memorandum of understanding. He further stated that he knows the pleadings of the plaintiff, he knows the plaintiff filed
Development agreement dt.13.10.2006 and Memorandum of understanding dt.28.01.2010 and gone through the contents of those documents. He admitted that it is recited in the documents that the plaintiff was the builder and Defendant No.1 to 4 are landlords of the property and that as per Ex.A25 Memorandum of
Understanding builder is entitled for 1st and 2nd floors and landlords entitled ground, third and fourth floors and that terrace and cellar will be shared by landlord and builder equally. He further stated that he doesn’t know date of death of defendant No.5 and his legal heirs.
He does not know whether during the life time of defendant No.5 executed mortgage deed in respect of schedule property. He admitted that the plaintiff filed the said mortgage deed before this court. He further admitted that there are criminal cases pending between him and plaintiff. He has filed Writ Petition before the Hon’ble High court of A.P against the Criminal cases. He admitted that section 145 proceedings were issued on some period on schedule property. By the date of registration of sale deed in his favour defendant No.1 is alive. He admitted that Defendant Nos.1 to 4 didn’t sign in his document. He further admitted that defendant No.5 didn’t sign on
Page 28 of 51
Ex.A7. He further admitted that after execution of sale agreement in his favour by defendant No.5, he was due of sale consideration of
Rs.12,88,000/ and he did not filed any documentary evidence to show that he has paid balance of sale consideration. He admitted that there is no recital in Ex.A7 on what date and what mode of payment he paid balance sale consideration. Item No.1 of Bschedule delivered to him on 10.09.2012, unless verify the document he can’t say whether there is a recital in the sale deed that possession was delivered to him. There is no separate registered document for the delivery of possession of item no.1 of Bschedule property. There is no electricity power facility in item No.1 of schedule property and till date he didn’t pay tax to item No.1 of Bschedule property. The witness adds he applied for that. He admitted that he didn’t file any document to show that he applied for that. He admitted that the builder didn’t sign in his sale deed and the sale deed in the name of defendant No.5. In the year 2013 he got knowledge about the disputes between the landlord and builder. Before registration of property under Ex.A7, no paper publication was given and called for objections. He admitted that till date Item no.1 of Bschedule is vacant. The witness adds entire building is vacant as there is no
NOC. Though one Sumathi filed Suit and Writ Petition stating that she has been residing in the ground floor but it is a false statement and she is not residing in the ground floor. He doesn’t know whether the Hon’ble High court of A.P passed orders in her favour. He further denied the case of plaintiff.
19.The defendant No.10, examined as D.W.2. In his chief affidavit, he reiterated the written statement averments. In support of his case, he got marked Ex.B4 certified copy of registered sale deed bearing doc.4076/2014 dt.01.07.2014 SRO Gunadala executed by defendant No.5 in his favour, Ex.B5 certified copy of registered discharge receipt No.4908/2015 dt.03.09.2015 executed by
Khambapati Bala Naresh, S/o.Vasantha Rao in favour of defendant
No.5. Ex.B6 certified copy of registered discharge receipt
No.4909/2015 dt.03.09.2015, SRO Gunadala, executed by
Page 29 of 51
Khmabapati Devendara Rao in favour of defendant No.5. Ex.B7 certified copy of registered discharge receipt No.4910/2015 dt.03.09.2015, S.R.O Gunadala, executed by Talasila Venkateswara
Rao in favour of defendant No.5. During the crossexamination by the counsel for the plaintiff, except denials nothing was elicited. The learned counsel for the defendant No.6 did not choose to cross examine the witness.
20.The Plaintiff seeking relief of declaration to declare him as absolute owner of the plaint Bschedule property and further to declare the sale deed vide doc.No.6201/2011 dt.11.10.2011, sale deed vide doc.no.3036/2012 dt.13.06.2013 and all other subsequent documents executed in between the defendants are not valid and not binding on the plaintiffs. The plaintiff mainly based on Ex.A24 un registered development agreement dt.13.10.2006 and Ex.A25
Memorandum of Understanding dt.28.01.2010 between the plaintiff, his partner viz., Mallikarjuna Reddy and defendant Nos.1 to 4/owners of the property. On perusal of contents of Ex.A24 and
Ex.A25 documents both are creating right and title over the immoveable property, they are compulsorily registered under section 17 of Registration Act. For the sake of convenience Section 17 of
Indian Registration Act reextract below:
17. Documents of which registration is compulsory.—
(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—
(a) instruments of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) nontestamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
Page 30 of 51 24 [(e) nontestamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the 25 [State Government] may, by order published in the 26 [Official Gazette], exempt from the operation of this sub section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
27 [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of subsection (l) applies to—
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v)28 [any document other than the documents specified in subsection (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court 29 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subjectmatter of the suit or proceeding]; or
(vii) any grant of immovable property by 30 [Government]; or
(viii) any instrument of partition made by a RevenueOfficer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or 31 [(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
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(xi) any endorsement on a mortgagedeed acknowledging the payment of the whole or any part of the mortgagemoney, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or RevenueOfficer. 32 [Explanation.—A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. State Amendments Andhra Pradesh: In section 17,—
(a) in subsection (1),—
(i) for clause (d) the following shall be substituted, namely:— “(d) leases of immovable property;”
(ii) after clause (e) but before the proviso, the following clauses shall be inserted, namely:— “(f) any decree or order or award or a copy thereof passed by a civil court on consent of the defendants or on circumstantial evidence but not on the basis of any instrument which is admissible in evidence under section 35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed produced by the plaintiff where such decree or order or award purports or operate to create, declare, assign, limit, extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property; and
(g) agreement of sale of immovable property of the value of one hundred rupee and upwards;”
(b) in subsection (2),—
(i) in clause (v), for the words “any document not in itself creating”, the words “any document except an agreement of sale as mentioned in clause
(g) of subsection (1) not in itself creating”, shall be substituted,
(ii) in clause (vi), for the words “any decree or order of a court”, the words “any decree or order of a court, not being a decree or order or award falling under clause (f) of subsection (1)”, shall be substituted,
(iii) the Explanation shall be omitted. [Vide Andhra Pradesh Act 4 of 1999 (w.e.f. 141999)]. Gujarat: In section 17,—
(i) in subsection (1), after clause (a), insert as under:— “(aa) instruments which purport or operate to effect any contract for transfer of any immovable property;”
(ii) after subsection (1), insert as under: “(1A) The provisions of section 23 shall apply to an instrument referred to in clause (aa) of subsection (1) and executed before the commencement of the Registration (Gujarat Amendment) Act, 1982 as if in that section for the words “from the date of its execution” the words, figures and letters “from the 1st March, 1982” has been substituted.”
(iii) in subsection (2), delete Explanation. [Vide Gujarat Act 7 of 1982, sec. 2 (w.e.f. 18121981)]. Kerala: In subsection (2) omit clauses (ix) and (x). [Vide Kerala Act 7 of 1968, sec. 2 (w.e.f. 2221968)]. Maharashtra: In sub section (2), in clause (x),— (a) after the words and figures “Agriculturists’
Page 32 of 51
Loans Act, 1884”, insert “or under the Bombay NonAgriculturists’ Loans Act, 1928”;
(b) for the words “under that Act”, substitute “under either of those Acts”. [Vide Maharashtra Act 19 of 1960, sec. 2 (w.e.f. 24101960)]. Pondicherry: In subsection (3), for the words “the first day of January, 1872”, substitute the words “the 9th day of January, 1969”. [Vide Pondicherry Act 17 of 1970, sec. 2 (w.e.f. 1111970)]. Rajasthan: In section 17(2) at the end of clause (xii), substitute “or”, insert clause (xiii) as under: “(xiii) any instrument referred to in subsection (5) of section 89.” [Vide Rajasthan Act 16 of 1976, sec. 2 (w.e.f. 1321976)].
(a) in subsection (1), after clause (e) and before the proviso, the following clauses shall be added, namely:— “(f) agreement to sell immovable property possession whereof has been or is handed over to the purported purchaser;
(g) irrevocable power of attorney relating to transfer of immovable property in any way;” and
(b) in subsection (2), the existing Explanation shall be omitted. [Vide Rajasthan Act 18 of 1989, sec. 2 (w.e.f. 1891989)]. Tamil Nadu: In section 17, in subsection (1), after clause (e), the following clause shall be added, namely:— “(f) instruments of agreement relating to construction of multi unit house or building on land held by several persons as referred to in clause (i) under Article 5 of Schedule I to the Indian Stamp Act, 1899 (2 of 1899).” [Vide Tamil Nadu Act 38 of 1987, sec. 3 (w.e.f. 111988)]. Uttar Pradesh: In section 17,—
(a) in subsection (1)—
(i) in clauses (b) and (e) omit the words “of the value of one hundred rupees and upwards”,
(ii) after clause (e), insert as under— “(f) any other instrument required by any law for the time being in force, to be registered”,
(iii) Omit proviso.
(b) in subsection (2)—
(i) in clause (v), after the words “any document” occurring in the beginning, insert the words “other than contract for sale”, and omit the words “of the value of the one hundred rupees and upwards”,
(ii) omit Explanation.
(c) in subsection (3), after the words “by a will“, insert the words “and an instrument recording adoption of a child executed after the first day of January, 1977”. [Vide Uttar Pradesh Act 57 of 1976, sec. 32 (w.e.f. 11 1977)]. COMMENTS
(i) An instrument of gift of immovable property requires registration under this Act, whatever be the value of the property; Charan v. Sucha, (1921) 4 Lah LJ 7.
(ii) The words 'create', 'limit' or 'extinguish' and 'right', 'title' or 'interest' imply a definite change of legal relation to the property by an expression of will embodied in the document. The word 'declare' is ejusdem genesis with the words 'create', 'assign' or 'limit'. It implies a declaration of will, not a mere statement of a fact; Sakharan v. Madan, (1881) 5 Bom 232 approved by Privy Council in Bageshwari Charan v. Jagarnath Kuari, (1931) 59 IA 130, wherein it stated: "The distinction is between a mere recital of a fact and something which in itself creates a title." When it is necessary to determine whether an instrument other than a deed of gift purports or
Page 33 of 51 operates to create an interest of the value of Rs. 100 or upwards in immovable property within the meaning of section 17(1)(b) the test of value is the consideration stated in the instrument; Nana v. Anant, (1877) 2 Bom
353. A deposit of title deeds with the creditor by the debtor with the intent to create a security implies in law a contract between the parties to create a mortgage and no registered instrument is required under section 59 of the Transfer of Property Act as in other case of mortgage. But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential in the creation of the mortgage. In such a case the document which constitutes the bargain regarding security requires registration under section 17 of the Act as a non testamentary instrument creating interest in immovable property where the value is Rs. 100 or upwards; United Bank of India Ltd. v. Lakhram Sonaram & Co., AIR 1965 SC 1591. An instrument of partition of immovable property requires registration as it declares an interest in immovable property provided, however, the value of the interest so declared is Rs. 100 or upwards; Siromoni v. Hemkumar, AIR 1968 SC 1299. But a writing which merely states that there has in time past been a partition is not a declaration of will but a mere statement of fact and it does not require registration; Venkataraju v. Yudhkondalu, AIR 1958 AP 147.
(iii) The term 'consideration' used in this clause is a technical term. It implies that the person to whom the money is paid himself declares, limits or extinguishes his interest in immovable property in consideration of such payment; Shidlingapa v. Chenbasapa, (1819) 4 Bom 235. A lease for one year containing an option to the tenant to revenue for a further period of one year or any other term is not a lease for a term exceeding one year and does not requires registration under this clause; Boyd v. Kreig, (1890) 17 Cal 548 dissenting from; Bhobani v. Shibnath, (1886) 13 Cal 113. A lease for the life of the lessee is a lease for a term exceeding one year as it entitles the lessee to hold for more than one year if he lives so long. It is not a lease terminable at the end of a year or at the option of the lessor. It therefore requires registration; Parstrotam v. Nana, (1893) 18 Bom 109.
(iv) Subsection 2(i) of section 17 merely provided that nothing in sub section 1(b) applied to a composition deed, but that did not mean that if a document required registration under another enactment, it was valid without registration; Govind Ram v. Madan Gopal, (1944) 721.A 76: AIR 1945 PC 74.
(v) A consent decree purporting to create a gift requires registration under section 17(1)(a) and is not exempt from registration under section 17(2)(vi); Kauleshwari v. Surajnath Rai, AIR 1957 Pat 456.
(vi) The only test under the present clause is whether the receipt purports to extinguish the mortgage. If it does, it requires registration, but not otherwise. A receipt for payment of money under a mortgage (other than an endorsement on a mortgagedeed) issued by a mortgage mentioning not only the payment of the full mortgage amount but also the extinction of mortgage requires registration; Gurdial Singh v. Kartar Singh, AIR 1964 Punj 141. A deed of adoption as distinguished from an authority to adopt does not require registration; Vishwanth Ramji v. Rahibai, AIR 1931 Bom 105: 128 IC 901.
Page 34 of 51
21.I relied on the Judgment of Hon’ble High Court of A.P
reported in 2013 (5) ALD page: 490 in Golla Dharmanna Vs.
Sakari Poshetty and others, wherein it was held that:
“I am also unable to accept the contention of the counsel for Petitioner that because the requisite stamp duty and penalty has been paid by petitioner, in view of section 35 (A) of Indian Stamp Act, 1899, the said document should have been admitted in evidence by the trial court. This contention of the petitioner is misconceived because an objection as to the admissibility of a document on the ground that it is not stamp or not properly stamped in accordance with provisions of the Indian Stamp Act, 1899 is different fundamentally from an objection to the admissibility of a document on the ground that it is unregistered. Merely because Stamp Duty and Penalty have been paid and the provisions of the Indian Stamp Act, 1899 have been complied with, it would not automatically make the said document admissible in evidence, if as per law the said document require to be registered.”
However, it is settled legal position that the consequences of nonregistration of a particular document does not operate a total bar to look into the documents as the proviso to section 49 itself carves out two examples, therefore it can be used for collateral purpose. I placed reliance below mentioned citation of Hon’ble High
Court of A.P reported in 2010 (3) ALT 165, in the case of
Lakshmi Narasamma and 5 others Vs. N.Venkata Reddy and 21
others, their lordship held that:
“In the event of stamp duty together with penalty being paid, the document may be looked into for collateral purpose subject of course to proof and relevancy”.
22.In the instant case the above said documents were marked as
Exs.A24 and Ex.A25 as per the Orders of Hon’ble High Court in
CRP.No.6736/2018 for Collateral Purpose. Among them Ex.A24 was
sent to the District Registrar, Vijayawada for impounding and the
District Registrar collected Deficit Stamp Duty and Penalty as required under Indian Stamp Act. Whereas, Ex.A25 Memorandum of Understanding dt.28.01.2010 were not impounded as it is a
Page 35 of 51 document such a nature that it establishes a relationship between the parties who will ultimately through Memorandum of
Understanding are likely to be get into a formal agreement or in other words a contract with each other about future action based on
Ex.A24 Unregistered development agreement. Furthermore, the agreements under Exs.A24 and Ex.A25 are in between one
Mallikarjuna Reddy, Plaintiff and defendant Nos.1 to 4 only. The 1st defendant was died during the pendency of the suit, defendant Nos.2 to 4 who are legal heirs of the 1st defendant had already on record and filed their written statements, admitted the execution of Ex.A24 and Ex.A25 agreements. It is very clear from the pleadings of defendant Nos.2 to 4 that they entered into agreement under
Ex.A24 and A25 with the plaintiff and said Mallikarjuna Reddy and the terms and conditions and agreements were acted upon and partly enforced by the parties. As stated supra, the defendant Nos.2 to 4 remained silent spectators without adducing any oral or documentary evidence. Though the defendant Nos.6 to 10 expressed their no knowledge about the agreements under Ex.A24 and Ex.A 25 but it was established during the course of trial that the said fact within the knowledge of defendant Nos.2 to 10.
23.As discussed supra, it is remained undisputed that the defendant Nos.1 and 2 who are husband and wife, defendant nos.3 and 4 who are their children are absolute owners of plaint A and B schedule properties and entered into development agreement with second party i.e., one Dasireddy Mallikarjuna Reddy, S/o.Dasireddy
Ramireddy and the Plaintiff on 13.10.2006. As per Ex.A13 agreement the defendant Nos.1 to 4 obtained approved plans from
Municipal Corporation, Vijayawada on 03.04.2007 for construction of Stilt, Ground + Three floors under the enclosed plan. It is also recited in condition No.2 that if they want to construct another floor/4th floor unauthorizedly they have to share the construction costs and obtained approval from Municipal Corporation. Further as per the understanding between them, the plaintiff and another partner have to complete the construction within 12 months from
Page 36 of 51 the date of Plan approved by the Municipal Corporation, Vijayawada.
In case construction was not completed within the time fixed as in condition No.2, the both parties has to follow the condition No.3 of the Development Agreement. Further as per the understanding between them, they have to share 50% each in the construction area i.e., the 1st party entitled 50% undivided share and 2nd party entitled 50% undivided share. Further they agreed to sell their respective shares as mentioned in column No.4 of the development agreement.
It was further agreed that if the plaintiff or the defendant Nos.1 to 4 wants to sell their shares of the building to any intending purchasers, the plaintiff has to sign as attestor on the registered documents. Further when the plaintiff is intended to sell his share of property, the defendant Nos.1 to 4 who are original owners have to execute regular sale deeds in the name of purchasers or their nominees. Further the shares allotted to the first party and 2nd party recited in subsequent document i.e., understanding agreement letter dt.28.01.2010 (Ex.A25). As per Ex.A25, understanding agreement, ground floor, third floor, fourth floor were allotted to first party i.e., defendant Nos.1 to 4 and first and second floors allotted to 2nd party i.e., Plaintiff and another partner viz., Mallikarjuna Reddy. Therefore, from the terms and conditions under Ex.A24 Development agreement dt.13.10.2006 and Ex.A25 unregistered undertaking agreement dt.28.01.2010, first and 2nd plots were allotted to the plaintiff. It is pertinent to note that under Ex.A25 Memorandum of understanding agreement among the parties, it is specifically mentioned that the plaintiff and defendant No.1 to 4 settled the payments/claim to Mallikarjuna Reddy and the said Mallikarjuna
Reddy have no manner of right in the site and building. Further
Ex.A25 bears the signature of Mallikarjuna Reddy therefore it is remained undisputed. In the instant case, there is no sufficient evidence adduced by the plaintiff to show whether construction was completed and NOC was issued by Municipal Corporation,
Vijayawada. However, after filtering the evidence adduced by both parties it is established that most of the construction was completed
Page 37 of 51 by the date of filing of the Suit except fitting of Transformer and
Generator but none were occupied the building. The plaintiff by adducing oral and documentary evidence established that by virtue of Ex.A24 and Ex.A25 agreements the B schedule property was allotted and the Plaintiff, defendant Nos.1 to 4 are in exclusive possession over the entire schedule property. As discussed supra, and in view of the legal position referred above to grant the relief of declaration of right and title of the plaintiff over the Bschedule property basing on unregistered documents its registration would be paramount importance. Therefore, those documents can be used for collateral purpose to the extent of possession of the plaintiff over the
B schedule property. Thus, the plaintiff is not entitled the relief of declaration his right and title over the B schedule property.
24.Another claim of the Plaintiff is that the sale deeds vide document No.6201/2011, dt.11.10.2011 and sale deed vide document No.3036/2012, dt.13.06.2012 and all other subsequent documents entered and executed in between the defendants are not valid and not binding on the plaintiff.
25.The Plaintiff/PW.1 pleaded and categorically deposed before this court that he fulfilled his part of obligation under Ex.A24 and
A25, except providing Generator and Electricity Transformer well in time. While thus, though he requested the defendant Nos.1 to 4 to execute regular necessary deeds in his favour or in the name of nominees with regard to first and second floors which are allotted to him towards his share as per understanding agreement dt.28.01.2010 (Ex.A25) but the defendant Nos.1 to 4 postponed to execute and register necessary deeds in respect of plaint BSchedule property. Subsequently he came to know that defendant Nos.1 to 4 without having any matter of right over the plaint Bschedule property fraudulently created and fabricated collusive sham and nominal documents in the name of defendant No.5 in the form of two sale deeds i.e., Ex.A1 Registered sale deed vide doc.No.6201/2011 and Ex.A2 Registered sale deeds vide doc.No.3036/2012 dated:
Page 38 of 51 13.06.2012. The defendant No.5 in turn executed Ex.A3 registered agreementcumG.P.A vide doc.No.3273/2012 dated: 29.06.2012 in favour of 6th defendant in respect of item no.1 of plaint schedule property. In turn the defendant No.6 himself created Ex.A7 registered sale deed dt.19.10.2013 vide doc.No.4534/2013 in his favour under the guise of sale agreementcumGPA dt.29.06.2012.
Further the defendant No.5 also created mortgage deeds in respect of 2nd floor of the building i.e., item no.2 of plaint schedule property in the name of defendant Nos.7 to 9 under Ex.A4 to A6 mortgage deeds dt.02.03.2012. Regarding these allegations, P.W.1 was cross examined at length by the counsel for the defendant No.6. On perusal of the entire evidence of PW.1 he stands on his pleadings and denied the case of defendant No.6. As sated supra, 1st defendant was died, the defendant No.2 filed his written statement and the same was adopted by defendant Nos.3 and 4. Though the defendant
Nos.2 to 4 filed written statement but they did not contest the Suit.
On perusal of the pleadings of defendant No.2 who executed Ex.A1 and A2 sale deeds in favour of defendant No.5 along with defendant
Nos.1,3 and 4 admitted the contention of the plaintiff for some extent and stated that they are entitled for ground, third and fourth floors towards their share but property was not divided and he believes
Dharma and the words and as such they have not gone for any registration and decided to have registration after completion of construction and division, as the completion of building was delayed abnormally and the disputes arose and negotiations were taken place and they entered into oral agreements. He further submitted that to his knowledge the defendant No.5 was passed away and he had no acquaintance with defendant No.5 and the alleged transactions if any, has no value and they are weak persons, no money power, muscle power and taking advantage of their weakness the defendant
No.5 with the aid of muscle men threatened, coerced, forced and by concealing the facts obtained the alleged sale deeds without passing any consideration and orally stated that he would return the documents soon and thereby those transactions were all sham and
Page 39 of 51 invalid under law. Further submitted that he and 1st defendant failed to take action against the defendant No.5 and others due to fear of life, threat since they were put it such stage, even they fear to approach elders or in Court of law or Police etc. However, none were entered into the plaint schedule property at any point of time till date except the plaintiff and this defendant who are in joint possession being coowners. When coming to the case of defendant No.6 who is contesting party, he contended that he is not aware of any agreements between the plaintiff and defendant nos.1 to 4 in respect of development of Aschedule property and the share of the plaintiff in Aschedule property. He categorically and vehemently submitted that the defendant No.5 offered to sell first floor in plaint Aschedule property i.e., item no.1 of Plaint B Schedule for a valuable consideration of Rs.92,88,000/ and the same was accepted and
before purchasing he and his father and his brother verified all the
documents relating to Plaint A schedule property and also the 1st floor of A schedule property and having satisfied in respect of the title which was conferred by the defendant NOs.1 to 4 in favour of the defendant No.5 under Ex.A1 and A2 registered sale deeds. He purchased semi constructed first floor in plaintA schedule property for the above said consideration. He paid part of the sale consideration of Rs.80,00,000/ on 29.06.2012 and the defendant no.5 executed and Ex.A3 registered agreement of salecumG.P.A in his favour. The balance sale consideration of Rs.12,88,000/ shall be payable within one year from the date of Ex.A3, but he paid balance sale consideration on 10.09.2012 and defendant No.5 delivered physical possession and delivered a receipt evidencing the payment of entire sale consideration and since then he has been in exclusive possession and enjoyment of 1st floor in Bschedule property as a lawful owner. During the crossexamination of D.W.1, it was elicited that till date he has not been paying Taxes to item No.1 of B schedule property, though D.W.1 stated that he applied for that but not filed any relevant document before this court. Further he categorically admitted Ex.A7 does not bear the signature of the
Page 40 of 51 defendant No.5 who is vendor and that there is no recital in Ex.A7 registered sale deeds that he paid balance of sale consideration of
Rs.12,88,000/ to the defendant No.5. Therefore from the own admissions of defendant No.6/D.W.1, he unilaterally created Ex.A7
Registered Sale deed in his favour. Further D.W.1 did not choose to prove transaction under Ex.A7 by adducing oral and documentary evidence.
26.As discussed supra, it is established that under Ex.A24 and
Ex.A25 Bschedule property allotted to the plaintiff who is builder towards his share. Further as per the pleadings of the plaintiff and defendant Nos.2 to 4, they are in joint possession of entire
Aschedule building as cosharers as construction was not yet completed fully and NOC was not issued in their favour.
Furthermore, the defendant Nos.2 to 4 who are original property owners, pleaded that defendant No.5 obtained Ex.A1 and A2 sale deeds by using force and those transactions were all sham and involve and no sale consideration was passed. Therefore, it is burden on the defendant Nos.5 and 6 to prove that the defendant Nos. 1 to 4 were having right to execute Ex.A1 and A2 sale deeds in favour of defendant No.5. The defendant No.5 was remained Exparte and his
Legal Heir Defendant No.11 also remained exparte. Therefore, it is burden on the 6th defendant to prove and establish that his vendor/5th defendant is having right and title over the plaint
Bschedule property to execute Ex.A1 and A2 sale deeds in favour of the defendant No.5. There is no material evidence before this
Court that defendant No.5 is bonafide purchaser. The defendant
No.6 did not choose to examine any of the legal heirs of defendant
No.5 to prove the transaction under Ex.A1 and A2. Furthermore, the own admissions of D.W.1 clearly shows that Ex.A7 does not bare the signature of defendant No.5 and the entire consideration under Ex.A7 was not passed and it is not valid document under law.
Except the oral testimony of D.W.1, there is no material evidence placed before this court to prove the transaction under Ex.A3 and
A7. Further the contention of the plaintiff that defendant No.5
Page 41 of 51 created Ex.A4 to A6 Mortgage deeds in the name of defendant
Nos.7 to 9 in respect of Item No.2 Bschedule property is remained unrebutted because though Defendant Nos.7 to 9 filed written statement by admitting execution of Ex.A4 to A6 Registered
Mortgage deeds in their name by defendant No.5 but not adduced any oral and documentary evidence to prove the genunenity of the those documents. Therefore, the plaintiff by adducing oral and documentary evidence well established that the plaint Bschedule property was allotted to his share under Ex.A24 and Ex.A25 and the plaintiff and Defendant No.1 to 4 were in possession of entire
A & B schedule property by virtue of Ex.A24 and Ex.A25.
Therefore, the transactions under Ex.A1 sale deed dt.11.10.2010 and Ex.A2 sale deed dated 13.06.2012 and all other subsequent documents in respect of plaint Bschedule property are not valid and not binding on the plaintiff. Accordingly Issue No.1 is partly allowed.
27.ISSUE NO:2 In main issue and Issue No.2 in additional issue:
As discussed in issue No.1, the plaintiff is being builder and the defendant Nos.1 to 4 owners of the plaint schedule property have been in possession of entire plaint A & B schedule property being co sharers by virtue of Ex.A24 unregistered development agreement and Ex.A25 Memorandum of understanding of agreement dt.28.01.2010. Furthermore, defendant No.6 in his cross examination categorically admitted that NOC was not issued as entire construction was not completed. There is no material evidence placed before this Court to show that any of the parties other than the plaintiff and defendant Nos.1 to 4 are in physical possession of
Plaint schedule property. It is well settled law that no Injunction should be granted against the cosharers. The plaintiff is entitled for the relief of Permanent Injunction against Defendant Nos.1 to 4. In the instant case, the defendant Nos.1 to 4 is not disputing the possession of plaintiff over the B schedule property further they
Page 42 of 51 contended that defendant No.5 by playing force, fraud obtained
Ex.A1 and A2 sale deeds and those sale deeds are not valid as no sale consideration was passed under Exs.A1 and A2. Further he stated that they could not initiate legal proceedings against the defendant No.5 and others as they have no money and muscle power. The plaintiff by adducing oral and documentary evidence established that the defendants 5 to 11 tried to interfere into his possession over B schedule property by creating number of documents without having any right over the schedule property.
Therefore, the plaintiff is entitled equitable relief of permanent injunction against the defendant Nos. 5 to 11. Accordingly this
issue is partly allowed in favour of the plaintiff and against the
defendant Nos.5 to 11.
28.Issue No.3 in main issues:
The plaintiff contended that as per the Ex.A25 Memorandum of Understanding. The defendant Nos.1 to 4 have to execute and register necessary documents in his favour or his nominees with regard to the plaint B schedule property and also to pay an amount of Rs.40,00,000/ which was deposited by the plaintiff with the defendant Nos.1 to 4 as a security deposit. He further contended that the plaintiff as per the terms of development agreement and understanding agreement fulfilled as a part of his obligation by completing the construction in the plaint A schedule property within the stipulated time, but the defendant Nos.1 to 4 without fulfilling their part of obligation by executing necessary documents in his favour and return the security deposit, played fraud against the plaintiff. Regarding these allegations the defendant Nos.3 to 4 simply denied those allegations and did not offer any explanation or not placed their plea on those allegations. On perusal of evidence placed
before this court, most of the construction was completed except
Electric Transformer and Generator was not yet provided by the date of filing of the Suit. As per Exs.A24 and A25 documents it is obligation on the part of the defendant Nos.1 to 4 to execute and
Page 43 of 51 register necessary documents in favour of the plaintiff in respect of plaint B schedule property. The plaintiff has to file a separate Suit for Specific Performance of contract under Ex.A24 and A25 for getting necessary documents over Bschedule property in his favour.
Regarding alleged deposit of Rs.40 lakhs towards security with the defendant Nos.1 to 4, the only document before this court is Ex.A25 understanding agreement. On perusal of the contents in Ex.A25, it is specifically recited that defendant nos.1 to 4 agreed to repay security deposit of Rs.40 lakhs to the plaintiff without any interest.
The defendant Nos.1 to 4 did not adduce any oral or documentary evidence to disprove the claim of the plaintiff. Therefore, the case of the plaintiff remained unrebutted he is entitled for recovery of security deposit of Rs.40,00,000/ with interest @ 12% per annum from the date of filing of the Suit till the date of decree and 6% from the date of decree till the date of realization. Accordingly this point
is answered in favour of the plaintiff and against the defendant
Nos.1 to 4.
29.Issue No.1 in Additional Issue framed on 27.07.2019:
The defendant Nos.7 to 9 is necessary parties to the suit because in the above issues as it is proved that the defendant No.5 obtained Ex.A1 and A2 registered sale deeds from the defendant
Nos.1 to 4 without passing of consideration and by using force, coercion and by playing fraud. Therefore, the subsequent documents executed in favour of defendant Nos.6 to 9 under Exs.A3 to A6 also proved as not genuine documents and those documents are created by the defendant No.5 by playing fraud against defendant Nos.1 to 4.
Accordingly this point is answered in favour of the plaintiff and
against the defendant Nos. 7 to 9.
30.Issue No.4 in main issue and additional issue No.3:
In the result, the suit is decreed partly with costs in favour of the Plaintiff and against the defendant Nos.1 to 11 by declaring the sale deed vide document No.6201/2011, dt.11.10.2011 and sale
Page 44 of 51 deed vide document No.3036/2012 dt.13.06.2012 and all other subsequent documents entered and executed between the defendant
Nos.1 to 11 are not valid in law and not binding on the plaintiff.
Further the remaining relief of declaration, declaring that the plaintiff is the absolute owner of plaint B schedule property is hereby dismissed.
The Plaintiff is entitled for Permanent injunction against the defendants 5 to 11, their men and followers from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint B schedule property in any manner whatsoever and the relief of permanent injunction against the defendant Nos.1 to 4 is dismissed.
Further the Plaintiff is entitled for recovery of Security deposit of Rs.40,00,000/ from the Defendant Nos.1 to 4. The Defendant
Nos.2 to 4 (D1 died) are directed to pay the security deposit amount of Rs.40,00,000/ to the plaintiff together with interest at the rate of 12% per annum from the date of Suit till the date of decree and at the rate of 6% per annum from the date of decree till date of realization on the security amount of Rs.40,00,000/.
Directly typed to my dictation by the Stenographer Gr.III of this court, corrected and pronounced by me, on this the 29th day of September, 2023.
Sd/Indira Priyadarshini Undru, XIV Addl. District Judge, CUMJudge, Addl. Family Court, Vijayawada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR PLAINTIFF
P.W.1: Uppuluri Venkata Krishna Rao.
WITNESSES EXAMINED FOR DEFENDANTS
D.W.1: M.Lakshmi Venkateswara Rao.
EXHIBITS MARKED FOR PLAINTIFF:
Ex.A1: Certified copy of the sale deed document No.6201/211 dt.11.10.2011.
Ex.A2: Certified copy of the sale deed document No.3036/12,
dt:13.06.2012.
Page 45 of 51
Ex.A3: Certified copy of the Sale agreementcumG.P.A. document No.3273/2012.
Ex.A4: Certified copy of the Mortgage deed bearing doc.No.1064/2012 in favour of defendant No.7 dt.02.03.2012.
Ex.A5: Certified copy of Mortgage deed bearing doc.No.1065/2012 in favour of defendant No.8, dt.02.03.2012.
Ex.A6: Certified of the Mortgage deed bearing doc.No.1066/2012 in favour of defendant No.9 dt.02.03.2012.
Ex.A7: Certified copy of the Sale deed bearing doc.No.4534/2013 executed by the defendant No.6 in his favour.
Ex.A8: Certified copy of CRLP.No.5409/2013 in MC.No.48/2013 on the file of Hon’ble High Court.
Ex.A9: Certified copy of Writ Petition No.26359/2013 on the file of
Hon’ble High Court.
Ex.A10: Certified copy of the Writ Petition No.24507/13 of Hon’ble High Court.
Ex.A11: Certified copy of the Writ Petition NO.24167/13 of Hon’ble High Court.
Ex.A12: Certified copy of the Writ Petition No.20768/13 of Hon’ble High Court.
Ex.A13: Copy of Approved Plan of Municipal Corporation of Vijayawada along with endorsement.
Ex.A14: Office copy of the legal notice got issued by the Plaintiff to the defendants dt.18.04.2013.
Ex.A15: Postal acknowledgment of defendant No.1.
Ex.A16: Postal acknowledgment of defendant No.2.
Ex.A17: Postal acknowledgment of defendant No.3.
Ex.A17: Postal acknowledgment of defendant No.4.
Ex.A18: Postal acknowledgment of defendant No.5.
Ex.A19: Postal acknowledgment of defendant No.6.
Ex.A20: Postal acknowledgment of defendant No.7.
Page 46 of 51
Ex.A21: Postal acknowledgment of defendant No.8.
Ex.A22: Postal acknowledgment of defendant No.9.
Ex.A24: Development agreement dt.13.10.2006.
Ex.A25: Memorandum of agreement dt.28.01.2010.
EXHIBITS MARKED FOR DEFENDANTS
Ex.B1: Certified copy of Registered sale deed dt.01.07.2014 vide doc.No.4076/2014 executed by Kancharla Venkata Muralikrishna (D5) in favour of Uppaluru Venkateswrar Rao (Plaintiff’s father) for 2nd Floor of B Schedule property.
Ex.B2: Certified copy of registered sale deed dt.01.07.2014 vide doc.No.4077/14 executed by Kancharla Venkata Murali Krishna (D5) in favour of Uppaluru Manikyamma (Plaintiff’s mother) for 4th floor of B schedule property.
Ex.B3: Copy of orders passed by the Hon’ble High Court of A.P in W.P.M.P.No.716/14 in W.P.M.P.No.29728/2013 in W.P.No. 24167/13 and W.P.No.20768, 24507 and 39405/13.
Ex.B4: Certified copy of Registered sale deed NO.4076/14 dt.01.07.2014 S.R.O Gunadala executed by the 5th defendant in favour of this defendant (D10).
Ex.B5: Certified copy of Registered Discharge Receipt No.4908/15 dt.03.09.15 SRO Gunadala executed by Khambampati Kancharla Murali Krishna (D5).
Ex.B6: Certified copy of Registered Discharge Receipt No.4909/15, dt.03.09.15, S.R.O, Gunadala executed by Khambhampati Devendra Rao, S/o.K.Vasantha Rao in favour of Kancharla Murali Krishna (D5).
Ex.B7: Certified copy of Registered Discharge Receipt No.4910/15 dt.03.09.2015 S.R.O. Gunadala executed by Talasila Venkateswara Rao, S/o.Talasila Raghavaiah in favour of Kancharla Murali Krishna (D5).
Sd/Indira Priyadarshini Undru, XIV Addl.District Judge, CUMJudge, Addl.Family Court, Vijayawada.
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IN THE COURT OF THE XIV ADDTIONAL DISTRICT JUDGECUM
ADDITIONAL FAMILY JUDGE :: VIJAYAWADA
PRESENT: INDIRA PRIYADARSHINI UNDRU.,
XIV ADDITIONAL DISTRICT JUDGECUM
JUDGE, ADDITIONAL FAMILY COURT, VIJAYAWADA
Friday, this the 29th day of September, 2023
O.S.NO.382/2013
Between:
UppalapuVenkataKrishnaRao, S/o.Venkateswara Rao, Hindu, Aged about: 47 Years, Business, Resident of D.No.311535A, Katurivari Street, Machavaram, Vijayawada4, Krishna District.…Plaintiff
And
1)Gajavalli Venkata Ramesh Bhavani Prasad (Died).
2)Gajavalli Mahalakshmi, W/o.G.Venkata Ramesh Bhavani Prasad, Hindu, Aged about: 51 Years, Properties, Resident of 1479, Namburi Gopal Rao Street, Hanumanpet, Vijayawada.
3)Gajavalli Siddhartha Venkata Satya Ratna Ajay Kumar, S/o.G.Venkata Ramesh Bhavani Prasad, Hindu, Aged about: 33 years, Properties, Resident of 1479, Namburi Gopal Rao Street, Hanumanpet, Vijayawada.
4)Gajavalli Venkata Kodandarama Venkata Lakshmi Vijay Kumar, S/o.G.Venkata Ramesh Bhavani Prasad, Hindu, Aged about 31 Years, Properties, Resident of 1479, Namburi Gopal Rao Street, Hanumanpet, Vijayawada.
5)Kancherla Venkata Murali Krishna (died)
6)Mukthineni Lakshmi Venkateswara Rao, S/o.M.Sri Rama Murthy, Hindu, Aged about: 40 Years, Properties, R/o.Plot No.472, Hanuman Veedhi, Ayyappa nagar, Chowdarypet, Patamata, Vijayawada, Krishna District.
7)Kambhampati Bala Naresh, S/o.Vasantha Rao, Hindu, aged about: 30 years, Properties, R/o.D.No.8197/3, Gannavaram Village and Mandal, Krishna District.
8)Talasila Venkateswara Rao, S/o.Raghavaiah, Hindu, Aged about: 76 Years, Properties, R/o.D.No.541936A, Jayaprakash Nagar, LIC Colony, Vijayawada, Krishna District.
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9)Kambhampati Devendra Rao, S/o.Vasantha Rao, Hindu, Aged about: 28 Years, Properties, R/o.D.No.81978/3, Gannavaram Village and mandal, Krishna District.
10UppalapuVenkateswaraRao,S/o.Late Ganapathi, Hindu, Aged about: 78 Years, Resident of Thippalakatta Village, Kolluru Mandal, Guntur District.
{Defendant No.10 is added as per the orders in IA.No.988/2022 dt.23.01.2023}
11) Kancherla Annapurna, W/o.K.Janakiramaiah, Hindu, Aged about:74 Years, Properties, R/o.D.No.1112355,RoadNo.5,Sri Ramakrishna Puram, Saroor Nagar, Rangareddy District, Hyderabad South, Telangana State.
{Defendant No.11 is added as per the orders of Hon’ble High Court of AP in CRPs.No.2483/2022, 2560/2022 & …Defendants. 2561/2022 dt.23.01.2023}
1)This Suit is filed for declaration to declare that the Plaintiff is the absolute owner of the Plaint B schedule property and the alleged sale deeds dt.11.10.2011 and 13.06.2012 vide document No.6201/2011, No.3036/2012 respectively and all other subsequent documents entered and executed in between the defendants are not valid under law and not binding on the plaintiff and for consequential relief of permanent injunction restraining the defendants, their men, agents and followers from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint B schedule property in any manner whatsoever and for recovery of an amount of Rs.40 lakhs from the defendant Nos.1 to 4 and for subsequent interest there on @ Rs.24% per annum from the date of suit till the date of realization and for costs of the Suit.
2)The Value of the Suit for the purpose of Court Fee and jurisdiction being the 1/2 of Market Value of item Nos.1 and 2 of BSchedule Property is Rs.2,05,97,500/. On which Court of Rs.1,06,526/ + Rs.1,04,426/ is paid u/s.24 (b) of A.P.C.F & S.V. Act.
The Value of the relief of recovery of Rs.40,00,000/. On which a C.F of Rs.42,426/ is paid under section 20 of A.C.F & S.V. Act.
Total Value of Suit is Rs.2,45,97,500/. Total Court Fee is paid Rs.2,53,378/ (Rs.1,06,526/ + Rs.1,04,426/ + Rs.42,426/).
3)Cause of Action for the Suit arose on 13.10.2006 when the defendant Nos.1 to 4 entered into development agreement with the plaintiff and his partner and on all subsequent dates when the
Page 49 of 51 plaintiff obtained all necessary permissions from the Corporation Authorities by paying all necessary charges and on all subsequent dates when the plaintiff made the construction in the Plaint A schedule property as per the terms of the development agreement and completed the same on 28.01.2010 when the plaintiff and his partner and the defendant Nos.1 to 4 entered into Memorandum of understanding, in which the plaintiff B schedule property was allotted to the plaintiff exclusively and wherein the defendant Nos.1 to 4 agreed to return the deposit amount of Rs.40 lakhs and on all subsequent dates when the plaintiff fulfilled his part of work under the development agreement and MOU and demanded the defendants Nos.1 to 4 to execute and register necessary documents in favour of the Plaintiff or his nominee and to return the security deposit amount of Rs.40 lakhs and on all subsequent dates when the defendant Nos.1 to 4 failed to fulfill their part of obligation under the development agreement and MOU and on all subsequent dates when all the defendants colluded with each other and brought some sham and fabricated documents into existence and tried to disturb the possession of the plaintiff over the plaint schedule property and on all subsequent dates when the defendant Nos.1 to 4 failed to honour the terms of MOU and on 18.04.2013 when the plaintiff got issued a notice to all the defendants and when the defendants received the said notice and failed to comply with the demand of the plaintiff and where the development agreement dated: 13.10.2006 and the MOU
dated: 289.01.2010 was entered and where the suit schedule
property is situated at Vijayawada which are all within the jurisdiction of this Court.
4)Plaint presented on: 10122013.
This Suit is coming before me on 01.09.2023 for final hearing in the presence of Sri Kilaru Jayaram, Advocate for Plaintiff and of Sri CH.Ajay Kumar, Advocate for Defendant No.6, Defendant Nos.2 to 4, 7 to 9 and defendant No.11 were setexparte, Smt.T.V.L. Kiranmai, Advocate for Defendant No.10, D1 and D5 died and the matter having stood over for consideration till this day, this Court DOTH ORDER AND DECREE AS FOLLOWS:
i)that the Suit be and the same is hereby decreed partly with costs in favour of the Plaintiff and against the defendant Nos.1 to 11 by declaring the sale deed vide doc.No.6201/2011, dt.11.10.2011 and sale deed vide doc.No.3036/2012 dt.13.06.2012 and all other subsequent documents entered and executed between the defendant Nos.1 to 11 are not valid in law and not binding on the plaintiff; ii)that the relief of declaration, declaring that the plaintiff is the absolute owner of Plaint B Schedule property be and the same is hereby DISMSISED;
Page 50 of 51 iii)that the plaintiff is entitled for Permanent Injunction against the defendant Nos.5 to 11, their men and followers from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint B schedule property in any manner whatsoever; iv)that the relief of Permanent Injunction against the defendant Nos.1 to 4 be and the same is hereby DISMISSED;
v)that the Plaintiff is entitled for recovery of Security deposit of Rs.40,00,000/ from the defendant Nos.1 to 4 and the defendant Nos.2 to 4 (defendant No.1 died) are directed to pay the security deposit amount of Rs.40,00,000/ to the plaintiff together with interest at the rate of 12% per annum from the date of Suit till the date of decree and at the rate of 6% per annum from the date of decree till the date of realization on the security amount of Rs.40,00,000/; and vi)that the defendant Nos.1 to 11 do also pay to the Plaintiff a sum of Rs.4,55,414/ (Four Lakhs Fifty Five Thousand Four Hundred and Fourteen Only) towards costs of the Suit, and to bear their own costs of Rs.Nil. (No bill of costs filed)
(SCHEDULE ATTACHED TO DECREE)
Given under my hand and the seal of this court this the 29th day of September, 2023.
Sd/ Indira Priaydarshini Undru, XIV Addl. District Judge, CumJudge, Addl. Family Court, Vijayawada.
MEMORANDUM OF COSTS
For Plaintiff For Defendants 1.Stamp on Vakalath. 2.00 2.Stamp on Plaint. 2,53,37800 3.Stamp on petitions. 5000 4.Stamp on process & 1,38400 witness bata.
5. Stamp on documents 10000
6. Advocate’s fee Sr.1,50,00000 Junior 50,00000
7. Writing & Typing charges 50000 Total:4,55,414.00 No bill of costs filed Note: The parties should apply as soon as possible for the return of all exhibits, which they may wish to preserve, as the record will be liable to be destroyed after three years from the date of decree or order.
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Sd/Indira Priyadarshini Undru, XIV ADJCUM AFC,VJA.