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IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE, MADANAPALLE
Present :: Sri Velamala Naresh, XI Additional District Judge, Piler. FAC II Additional District Judge, Madanapalle
Friday, the Thirtieth (30th) day of July, Two thousand twenty one.
O.S. No. 56 of 2012
Between: K.Mallikarjuna Naidu
.... Plaintiff
And: 1.Thokala Geetha 2.Ratakonda Yerramma
....Defendants
This suit coming on 05.07.2021 before me for final hearing in the presence of Sri G.M.Reddy, advocate for the plaintiff, Sri A.Arun Kumar, advocate for the 1st defendant and of Sri B.Bhujanga Rao, advocate for the 2nd defendant,after perusing the record and the matter having stood over for consideration till today, this court delivered the following :
J U D G M E N T
1. The present judgment arises as a consequence of filing of suit with the following averments by the plaintiff against the defendants seeking passing of decree of declaration followed by prohibitory permanent injunction in his favour and against the defendants for declaring the sale deed dated 4.8.2011 executed by the 2nd defendant in favour of the first defendant as null and void and for restraining the defendants and their deputed men, from, in any manner, interfering into the plaintiff's alleged possession and enjoyment of the suit schedule property apart from awarding costs of the proceedings payable to him by the defendants.
2. The plaint schedule house property of an extent of Ac.497.77 square yards consists of ground and first floor covered by S.No.156/8 of Reddy's colony, Madanapalle was purchased by the plaintiff through a registered sale deed dated 18.10.2006 for a valid sale consideration of Rs.19,75,000/ from his vendor A.Savithri who purchased it from her vendor earlier, in furtherance of 2 the sale deed dated 18.10.2006, the plaintiff became absolute owner cum possessor of the plaint schedule property.
3To avoid his problems and having confidence on the 2nd defendant, on 12.10.2009, the plaintiff executed a registered agreement of sale cum general power of attorney in favour of the 2nd defendant, the said document is almost a void one and as such the 2nd defendant cannot act on the said document either under law or as per the pronouncements of Apex Court.
4Taking advantage of the said registered agreement of sale cum general power of attorney deed dated 12.10.2009 and with an intention to get illegal gain by way of causing illegal loss to the plaintiff, the 2nd defendant sold away the plaint schedule property to the first defendant through a registered sale deed dated 4.8.2011 without the consent and knowledge of the plaintiff and by violating the terms and conditions of the registered agreement of sale cum general power of attorney deed dated 12.10.2009.
5Though it is recited in the registered sale deed dated 4.8.2011 executed by the 2nd defendant in favour of the first defendant as if possession of the suit schedule property was delivered to the first defendant by the 2nd defendant, the 2nd defendant did not deliver possession of it to the 1st defendant as possession of the schedule property has been with the plaintiff and as such the sale deed dated 04.8.2011 mentioned delivery of possession is nothing but paper delivery.
6Despite execution of registered sale deed dated 4.8.2011 by the 2nd defendant in favour of the 1st defendant, the 2nd defendant did not give any amount to the plaintiff.
7The plaintiff after coming to know that the 2nd defendant, without the knowledge and consent of the plaintiff, sold away the plaint schedule property to the first defendant through a registered sale deed dated 4.8.2011, on 27.1.2012, the plaintiff, by filing copy application CA No.4948/2012, obtained certified copy of the sale deed dated 4.8.2011 executed by the 2nd defendant in favour of the first defendant and thereafter the plaintiff approached the 2nd defendant and demanded the 2nd defendant for returning back the actual received sale consideration amount of Rs.2 crores (though the sale deed 3 contained formal sale consideration amount of Rs.29,00,000/) , however the 2nd defendant, by giving evasive replies, declined to pay the sale consideration amount of the said sale deed to the plaintiff though the 2nd defendant is legally bound for giving the sale consideration amount to the plaintiff.
8The plaintiff did not become present when the 2nd defendant executed sale deed dated 4.8.2011 in favour of the first defendant, there is no recital in the sale deed that the 2nd defendant paid the sale consideration amount to the plaintiff, the scribe, attestors and the defendants, by colluding together, brought into existence the registered sale deed dated 4.8.2011 with false recitals, the plaintiff is not a party to the said sale deed and as such the said sale deed dated 4.8.2011 does not bind him.
9 It is the plaintiff who is paying property taxes and electrical consumption charges pertaining to the plaint schedule property to the department concerned, the name of the plaintiff is still in the municipal records to show that he is ownercumpossessor of the plaint schedule property.
10The sale deed dated 4.8.2011 executed by the 2nd defendant in favour of the 1st defendant does not bind the plaintiff since the 2nd defendant did not pay consideration amount of the said sale deed to the plaintiff.
11 The sale deed dated 4.8.2011 executed by the 2nd defendant in favour of the first defendant is in the nature and condition of the affecting the rights of the plaintiff in respect of the plaint schedule property consequently if the said sale deed dated 4.8.2011 is permitted or allowed to be in existence by not cancelling it, the plaintiff would severely be affected which factum forced the plaintiff to file the suit.
12With the said averments the plaintiff requested the court to pass decree of declaration followed by prohibitory permanent injunction in his favour and against the defendants by declaring the sale deed dated 4.8.2011 executed by the 2nd defendant in favour of the 1st defendant to be null and void and by restraining the defendants 1 and 2 and their deputed men from, in any manner, interfering into the possession and enjoyment of the plaintiff in respect of the 4 plaint schedule property apart from awarding costs of the proceedings payable to the plaintiff by the defendants.
13The first defendant, with the following averments, got filed her written statement.
a) The averments of the plaint are absolutely false and the suit is maintainable under neither law nor facts.
b) It is true that the plaint schedule property belonged to A.Savithri from whom the plaintiff purchased it through a registered sale deed dated 18.10.2006.
c) Prior to filing of the suit the plaintiff filed caveat petition before this court and in the said caveat petition the plaintiff, without keeping any reservations and, without disputing the genuineness of the registered agreement of sale cum general power of attorney deed dated 12.10.2009, categorically admitted execution of registered registered agreement of sale cum general power of attorney deed dated 12.10.2009 by him in favour of the 2nd defendant.
d) Though the factual situation stood as narrated in the immediate preceding paragraphs, the plaintiff, by improving his version now pleaded that he executed registered agreement of sale cum general power of attorney deed
dated 12.10.2009 for avoiding problems and by having confidence on the 2nd
defendant however the plaintiff did not plead as to what were his problems and what sort of confidence he had on the 2nd defendant.
e) The plaintiff has neither legal nor factual basis for either treating or terming the registered agreement of sale cum general power of attorney deed
dated 12.10.2009 to be void one.
f) The first defendant, after going through the link documents and after making proper enquiry, purchased the plaint schedule property from the 2nd defendant through a registered sale deed dated 4.8.2011 for valid sale consideration amount of Rs.29 lakhs from its rightful owner the 2nd defendant and as such the first defendant is bonafide purchaser of the plaint schedule property for consideration.
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g)While purchasing the property by the first defendant, it was represented by the plaintiff and the 2nd defendant that due to inconvenience of the plaintiff in getting alternative accommodation, the 2nd defendant permitted the plaintiff to be a tenant of the schedule house on a monthly rent of
Rs.2500/, on the request made by the plaintiff, the 1st defendant also agreed for continuation of the plaintiff as a tenant of the said house on the earlier lease terms and conditions consequently symbolic possession was given to the first defendant and all the said facts are within the knowledge of the plaintiff.
h) Acting and accepting the terms and conditions of the oral lease transactions, the plaintiff paid monthly rents of the schedule house to the first defendant through the 2nd defendant till June 2012 and thereafter he stopped paying rents to the first defendant consequently the first defendant held negotiations with the plaintiff through the 2nd defendant and elders Prasanna
Kumar and Raju of Madanapalle however the plaintiff, while postponing the issue, abruptly filed the present suit with false averments.
i) The plaintiff is not a rightful owner but tenant under the first defendant of the plaint schedule property and as such the possession of the plaint schedule property held by the plaintiff is not in the capacity of owner but as a tenant.
j) The name of the first defendant stood mutated in the municipal records, she has been remitting the required taxes to the government in furtherance of sale deed dated 4.8.2011 and as such the said sale, being valid one certainly binds the plaintiff who, through registered agreement of sale cum general power of attorney deed dated 12.10.2009, authorized and permitted the 2nd defendant for dealing with the plaint schedule property.
k) The first defendant has suspicion of collusion among the plaintiff and 2nd defendant in filing the present suit with a specific intention of causing loss to the first defendant who is bonafide purchaser of the plaint schedule property for valid consideration.
l) The suit as framed is not maintainable.
m) The plaintiff has no locusstandi in seeking cancellation of the registered sale deed dated 4.8.2011 since the said document holds good till the 6 registered agreement of sale cum general power of attorney deed dated 12.10.2009 is in subsistence having not been cancelled.
n) Without getting cancelled the registered agreement of sale cum general power of attorney deed, the plaintiff cannot seek for the plaint mentioned
principal relief of declaration for declaring the registered sale deed dated
4.8.2011 to be null and void.
o) The reliefs sought in the plaint, being not in accordance with law, or unentertainable.
p) With the said averments, the first defendant requested the court to dismiss the suit with costs.
14. The 2nd defendant, with the following avements, filed her written statement.
a) The averments of the plaint are absolutely false and the suit is maintainable under neither law nor facts.
b) It is true that the plaint schedule property was purchased by the plaintiff through his rightful owner A.Savithri through a registered sale deed
dated 18.10.2006.
c) On 12.10.2009 the plaintiff, having received a cheque bearing
No.735864 dated 12.10.2009 drawn on Indian Bank, Tirupati for a sum of Rs.5 lakhs and a cash of Rs.5 lakhs, from the 2nd defendant, agreed to sell the plaint schedule property to the 2nd defendant and to that effect the plaintiff executed a registered agreement of sale cum general power of attorney deed
dated 12.10.2009 in favour of the 2nd defendant by appointing the 2nd
defendant to be his general power of attorney holder for dealing with the plaint schedule property in accordance with her choice and convenience in all respects and thereby the plaintiff made the defendant No.2 as rightful owner of the plaint schedule property.
d) Since the 2nd defendant became rightful owner of the plaint schedule property in furtherance of registered agreement of sale cum general power of attorney deed dated 12.10.2009, the plaintiff cannot question the sale deed
dated 4.8.2011 executed by the 2nd defendant in favour of the 1st defendant or
any transaction made by the second defendant in favour of anybody in respect of the plaint schedules property.
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e) As the 2nd defendant became absolute owner of the plaint schedule property in pursuance of the registered agreement of sale cum general power of attorney deed to meet her necessities, the 2nd defendant validly sold away the plaint schedule property to the first defendant for valid sale consideration through registered sale deed dated 4.8.2011
f) The contention of the plaintiff that the 2nd defendant did not pay the consideration amount of the sale deed dated 4.8.2011 to him is unsustainable under law in as much as the plaintiff, while executing the registered agreement of sale cum general power of attorney deed, received the total sale consideration amount from the 2nd defendant and empowered the 2nd defendant to deal with the schedule property in the manner she likes.
g) The plaintiff, after execution of registered agreement of sale cum general power of attorney deed in favour of the 2nd defendant, expressed his inability for abrupt vacation of the schedule property and thereby he, in the presence of elders Prasanna Kumar and Raju who are close associates of the plaintiff requested the 2nd defendant to permit him to stay in the schedule property on a monthly rent of Rs.2500/ by assuring that he would vacate the premises on getting alternative accommodation, having confidence on the plaintiff, the 2nd defendant agreed for the request of the plaintiff by permitting him as a tenant of the schedule property on a monthly rent of Rs.2500/, thereafter the plaintiff used to pay monthly rents of the schedule property regularly to her while postponing the issue of vacating the premises on one pretext or the other.
h) For meeting her family necessities, the 2nd defendant sold away the plaint schedule property to the first defendant on 4.8.2011, at that juncture the plaintiff requested both the defendants 1 and 2 to continue him as a tenant of the schedule premises for a couple of months by sjtating that he would vacate the premises on getting alternative accommodation for which the first defendant agreed, consequently the plaintiff continued in physical possession of the plaint schedule property not as owner but as tenant, being inpermissive possession.
8 i ) The plaint schedule property stood mutated in the name of the first defendant in all municipal records and first defendant had been remitting required taxes to the Government.
j) Since the plaintiff lost every right on the plaint schedule property on execution of registered agreement of sale cum general power of attorney, the plaintiff cannot now challenge the sale deed dated 4.8.2011 executed by the 2nd defendant in favour of the first defendant.
k) The sale deed dated 4.8.2011 binds the plaintiff as the said transaction is genuine one and as the plaintiff is nothing to do with the schedule property from the date of his executing registered agreement of sale cum general power of attorney dated 12.10.2009.
l) With the said avements, the 2nd defendant requested the court to dismiss the suit with costs.
15. Thereafter the then presiding officer of the court, on 29.10.2014, framed and settled the following issues.
1.Whether the plaintiff is entitled for the reliefs against the defendants 1 and 2 as claimed for?
2. To what relief?
16. Subsequently, while the matter was coming on for trial, the first defendant by getting filed and allowed IA No.326 of 2015 under Order 8 Rules 6(a) and 9 of CPC on 28.8.2018, filed additional written statement consisting of counter claim with the following avements:
a). While selling the property through a registered sale deed dated 4.8.2011, the 2nd defendant assured the first defendant that the plaintiff is a respectable person and he would vacate the schedule premises on his getting alternative accommodation, consequently, by believing the version of the 2nd defendant, the first defendant took symbolic possession of the schedule property from the 2nd defendant while purchasing it and as such the plaintiff is a tenant of the first defendant in respect of the plaint schedule property on a monthly rent of
Rs.2500/.
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b) After purchasing the property by the first defendant, the plaintiff continued paying agreed monthly rentals to first defendant till June, 2012 and thereafter he stopped paying the rents despite personal and mediation requests made by the first defendant and instead the plaintiff filed the present suit with false averments.
c) Without challenging the registered agreement of sale cum general power of attorney dated 12.10.2009, the plaintiff cannot straight away challenge the sale deed dated 4.8.2011executed by the 2nd defendant in favour of the first defendant.
d) The plaintiff is a defaulter of agreed monthly rentals of the schedule property from June 2012 consequently the first defendant is entitled for recovering the arrears of rents and future rentals of the schedule property apart from eviction of the plaintiff from the schedule property.
e) The plaintiff cannot deny the right and title of first defendant in respect of the schedule property and the plaintiff is not entitled to retain possession of the schedule property as he is willful defaulter in payment of agreed rent.
f) With a view to prolong vacation and handing over of the schedule property to the first defendant, the plaintiff came up with the present suit with all false averments.
g) With the said averments, the first defendant requested the court to uphold her counter claim and pass a decree and judgment in her favour and against the plaintiff by directing the plaintiff to vacate the schedule property and to deliver vacant possession of the same to the first defendant within the stipulated period fixed by the court and by directing the plaintiff for payment of arrears of rents of Rs.75,000/ with interest at 24% p.a. and future rents of
Rs.2500/ per month till handing over vacant possession of the schedule property to the counter claimant apart from awarding costs of the counter claim to her payable by the plaintiff.
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17. In reply to the counter claim of the first defendant, the 2nd defendant reported no additional written statement as seen from the docket order dated 20.6.2018.
18. The plaintiff, in reply to the counter claim of the first defendant, with the following averments, filed rejoinder.
a) The averments of the counter claim of 1st defendant are absolutely false and the counter claim of the first defendant is not maintainable under either law or facts.
b) Valuation of the counter claim is incorrect.
c) The first defendant is not entitled for collection of any kind of rent from the plaintiff.
d) Framing of the counter claim is impermissible under law.
e) The counter claim of the first defendant is hopelessly time barred.
f) The first defendant is not the owner of the plaint schedule property.
g) The 2nd defendant has no right for conveying any manner of right in respect of the plaint schedule property to the first defendant either through sale deed dated 4.8.2011 or otherwise.
h) Filing of the suit on 30.7.2012 by the plaintiff is suffice to show that the registered agreement of sale cum general power of attorney executed by the plaintiff in favour of the 2nd defendant stood ceased and similarly serving of suit summons upon the 2nd defendant shall certainly amount to cancellation of registered agreement of sale cum general power of attorney dated 12.10.2009.
i) The 2nd defendant has no locusstandi for executing sale deed dated 4.8.2011 in favour of the first defendant in respect of the plaint schedule property and as such no manner of right was conveyed by the 2nd defendant in favour of the first defendant in respect of the schedule property.
j) The sale deed dated 4.8.2011 is not only forbidden by law but also a void instrument.
k) The first defendant cannot maintain counter claim against the plaintiff.
l) The plaintiff never agreed and accepted the first defendant to be his land lord in the presence of R.Prasanna Kumar and Raju of Madanapalle, the plaintiff never agreed to pay nor paid rent in respect of the plaint schedule property to either of the defendants.
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m) R.Prasanna Kumar and Raju of Madanapalle are not associates but enemies of the plaintiff.
n) The first defendant never inducted nor allowed the plaintiff as tenant of the schedule property.
o) The plaintiff, purchased the plaint schedule property from his vendor
Savithri through a registered sale deed dated 18.10.2006, since the date of said sale the plaintiff has been in possession and enjoyment of the said property, for his convenience sake, the plaintiff executed registered agreement of sale cum general power of attorney in favour of the first defendant and as such said document is unenforceable, being void document.
p) With the said averments, the plaintiff requested the court to dismiss the counter claim of the 1st defendant with costs.
19. This court, on 25.6.2021, framed additional issues as hereunder:
1. Whether the plaintiff happened to be tenant under the first defendant in respect of the plaint schedule property?
2. Whether the first defendant is entitled for eviction and consequential recovery of possession of the plaint schedule property as sought by the first defendant in her counter claim?.
3. Whether the 1st defendant is entitled to the reliefs of recovery of arrears of rent and future rent as sought in the counter claim by the first defendant?
20. For substantiating his version, the plaintiff apart from getting examined
PWs.2 and 3, got himself examined as PW.1 got marked Exs.A.1 to A.5.
21.For substantiating their version the defendants 1 and 2, apart from getting examined D.Ws.3 and 4, got themselves examined as DWs.1 and 2 respectively and got marked Exs.B.1 to B.9.
22. Arguments of learned counsel for the plaintiff and learned counsel for the defendants 1 and 2 are heard and perused the record in detail.
23. ISSUE NO.1:
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The sought principal relief of the plaintiff is for declaring Ex.A.3 sale deed
dated 4.8.2011 executed by the 2nd defendant in favour of the first defendant to
be null and void and inoperative in the eye of law.
24. Apart from the above mentioned principal relief, the plaintiff sought another relief of prohibitory permanent injunction, not being ancillary to the
principal relief, for restraining the defendants 1 and 2 and their deputed men
fromi in any manneri interfering into his possession and enjoyment of the plaint schedule property.
25. Indisputable facts are that the vacant site of an extent of Ac.497.77 square yards covered by the plaint schedule house property covered by
S.No.156/3 originally belonged to Marpuri Gopal and Marpuri Sreeramulu who sold away the said vacant site to one A.Savithri through Ex.B.3 registered sale deed dated 30.7.1998, the said A.Savithri in turn, after constructing the structure existing in the plaint schedule on the property covered by Ex.B.1, sold away the same to the plaintiff trough Ex.A.1 which is equivalent to Ex.B.2 registered sale deed dated 18.10.2006, the plaintiff executed Ex.A.2 which is equivalent to Ex.B.3 registered agreement of sale cum general power of attorney dated 12.10.2009 in favour of the 2nd defendant and the 2nd defendant in turn, based on Ex.A.2/B3 registered agreement of sale cum general power of attorney dated 12.10.2009, sold away the plaint schedule property to the 1st defendant through Ex.A.3 which is equivalent to Ex.B.4 registered sale deed
dated 4.8.2011.
26. Even in his pleadings, the plaintiff emphatically claimed as if he, with a view to avoid problems and having confidence on 2nd defendant, executed
Ex.A.2/B3 registered agreement of sale cum general power of attorney dated 12.10.2009 in favour of the 2nd defendant, there is no description in the Indian
Stamp Act for a document as an agreement of sale cum general power of attorney and as such the said document dated 10.10.2009 is almost void document enforceability of which is prohibited by 2nd defendant on behalf of the plaintiff, basing on the said registered agreement of sale cum general power of attorney dated 12.10.2009, the 2nd defendant, without the consent and knowledge of the plaintiff and by violating the terms and conditions of 13 registered agreement of sale cum general power of attorney, sold away the plaint schedule property to the 1st defendant through Ex.A.3/B.4 registered sale deed dated 4.8.2011, even after executing the registered sale deed dated 4.8.2011 the 2nd defendant did not give the consideration amount covered by the said sale deed to the plaintiff, the plaintiff obtained copy of the sale deed dt.4.8.2011 on 21.7.2002, thereafter the plaintiff demanded the defendant
No.2 for payment of consideration amount covered by registered sale deed dt 4.8.2011 for which the 2nd defendant , without giving the consideration amount to the plaintiff, continued giving evasive replies.
27.Though the market value of the plaint schedule property as on 4.8.2011 was Rs.2 crores and above, both the defendants, by colluding together, fraudulently got mentioned the consideration amount in the sale deed to be
Rs.29 lakhs and as such the 2nd defendant is liable for paying the said amount to the plaintiff and as the plaintiff is not a party to the registered sale deed
dated 04.08.2011, the said document does not bind the plaintiff consequently if
the registered sale deed dt.04.08.2011 remains uncancelled, it would certainly affect the rights of the plaintiff and as a result thereof the said document requires cancellation.
28. The contention of the plaintiff that having confidence on the 2nddefendant he executed Ex.A.2/B.3 registered agreement of sale cum general power of attorney dated 12.10.2009 is bound to be inferred in as much as the relationship among the author and agent covered by a general power of attorney is fiduciary in character.
29. It is needless to make a mention that having agreed that he executed a lawful general power of attorney in favour of his agent, the author (Donor) of the general power of attorney is bound by the recitals of such a general power of attorney till such a general power of attorney is cancelled with the joint voluntary consent of the author (Donor) and agent (Donee) of the general power of attorney or till it is cancelled by a competent court.
30. Though the plaintiff claimed as if he, with a view to avoid some problems, executed Ex.A.2/B.3 registered agreement of sale cum general power of 14 attorney dated 12.10.2009 in favour of the 2nd defendant, the plaintiff astonishingly did not aver any unavoidable circumstances where at he executed the said document in favour of the 2nd defendant though he, beyond his pleadings tried to let in the evidence as if he executed Ex.A.2/B3 in favour of the 2nd defendant for avoiding attachment of plaint schedule property by
Margadarshi Chits Private limited to which he was alleged to have fallen due an amount of nearly Rs.25 lakhs in connection with chit transactions.
31. As referred to in the immediate preceding paragraphs the plaintiff, while specially agreeing execution of Ex.A.2/B.3 in favour of the 2n defendant, could not prove or at least plead any unavoidable circumstances which compelled him for execution of such a document in favour of the 2nd defendant.
32.Even if the contention of the plaintiff that for avoiding his personal problems, the plaintiff executed Ex.A.2/B3 in favour of the 2nd defendant is assumed for a while to be true, yet the said contention cannot be countenanced under law as the said contention is hit by the provisions of Binami Transactions
Prohibitory Act,1988.
33. The advanced contention of the plaintiff being two fold, is self in consisting and contradictory in as much as on one hand the plaintiff claimed as if Ex A.2/B.3 is void document and on the other hand he claimed that as his request for reception of the consideration amount covered by the sale deed
Ex.A.3/B.4 was denied by the 2nd defendant, Ex.A.3/B4 is liable to be declared as null and void.
34. The learned counsel for the plaintiff, while relying on the judgment of
Hon’ble High Court of A.P. Hyderabad reported in 2011(2) ALT 501 (DB) held
in Suraneni Lakshmi Vs. B.Venkata Durga Rao and another wherein the decision delivered court held as “Specific Relief Act,1963 Section 31 – cancellation of document – a person may sue for setting aside of a document under section 31 of the act whether it is void or voidable document – in case of a void document the affected party can ignore it – no need to get it set aside in case of voidable document, party has to seek for its cancellation if he feels that his rights 15 are threatened” contended that in view of the said decision Ex.A.3/B.4 registered sale deed dated 04.08.2011 is to be declared as null and void however this court holds that the said cited decision of the plaintiff’s counsel itself debars the plaintiff from seeking the plaint mentioned primary relief in as much as the plaintiff who is not a party in person to Ex.A.3/B.4 and while claiming the said document to be null and void, yet sought for declaration for declaring Ex.A.3/B.4 to be a null and void document.
35. Either directly or indirectly the plaintiff claimed as if Exs.A.2/B.3 registered agreement of sale cum general power of attorney dated 12.10.2009 executed by him in favour of the 2nd defendant is a avoid document and as such the Exs.A.3/B.4 registered sale deed dated 04.08.2011 which was executed by the 2nd defendant in favour of the first defendant in furtherance of
Exs.A.2/B.3 is null and void.
36. While claiming as narrated supra, the plaintiff did not seek for declaration of Ex.A.2/B.3 to be null and void or for cancellation of such document on any other ground and in addition to the same the plaintiff being PW.1 in his cross examination, vehemently admitted that he did not get cancelled Ex.A.2/B.3 till the date of giving of his evidence.
37. In other words it can be said that Exs.A.2/B.3, having not been cancelled so far, is in subsistence yet and the said document was not sought by the plaintiff for cancellation on any legitimate grounds or for declaration to that effect however this court holds that without getting cancelled and without seeking for declaration for declaring Ex.A.2 and while admitting Ex.A.2/B.3, the plaintiff, by keeping Exs.A.2/B.3 in isolation with Ex.A.3/B.4, cannot seek for the suit mentioned primary relief of declaration for declaring Ex.A.3/B.4 sale deed to be null and void or for its cancellation,.
38. The learned counsel for the plaintiff, while relying on the decision of
Hon'ble Apex Court reported in 2011(06) ALT SC page 1 held in Suraj Lamp
and Industries Pvt Ltd., Vs. State of Haryana and another wherein the decision delivered court held as : "Sale agreement/GOA/Will transactions do not convey any title nor create interest in immovable property", 16 contended that since Ex.A.2/B3 basing on which the 2nd defendant executed
Ex.A.3/B.4 sale deed in favour of 1st defendant is invalid document and the said document cannot confer the 2nd defendant with any right for alienation of the plaint schedule property by the defendant No.2 to the 1st defendant or to anybody else.
39. However the learned counsel for the defendants contended that the decision relied on by the plaintiff's counsel does not attract to the factual matrix in as much as the said cited decision gets prospective effect with effect from 01.10.2011 but not retrospective effect for any general power of attorney transactions which occasioned prior to 11.10.2011 and in as much as
Ex.A.2/B.3 general power of attorney transaction, being of 12.10.2009 which is prior to the cut of date given in the said judgment , does not fall within the protection covered by the said judgment.
40. Admittedly the Hon'ble Apex Court at paras 17 to 19 of the said judgment held as :
17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is submitted that this decision should be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the wellsettled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions may also be used to obtain specific performance or to defend possession under section 53A of Transfer of property act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development transactions has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
19. 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 17 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 stamp duty. Our observations regarding 'SA/GPA/WILL transactions are not intended to apply to such bona fide/genuine transactions”.
41. From the afore mentioned deliverance of the Hon'ble Apex Court it is axiomatic that Ex.A.2/B.3 registered agreement of sale cum general power of attorney dated 12.10.2009, being prior to 11.10.2009 on which date the judgment was delivered by the Hon'ble Apex court, does not get the protection covered by the said judgment as the said judgment has its prospective effect w.e.f.11.10.2011 as specifically held by the Hon'ble Apex court. However the plaintiff can have his remedy as per the Apex court decision's 18th para relevant portion which run as :
We have merely drawn attention to and reiterated the wellsettled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title.
42.The learned counsel for the plaintiff, while relying on the judgment reported in 2019(1) ALT 708 (TS and AP) held in Thammineni Pullaiah and others Vs. G.Muthaiah and others wherein the decision delivered court held as "Reading of document the general principles of interpretation of contract state that the entire document should be read as a whole to understand its true import and effect A word or a sentence cannot be read in isolation to understand the contract The entire document must be read to understand its true meaning and import", contended that Ex.A.2/B3 though contained as registered agreement of sale cum General Power of Attorney it is not a specific natured document but it, being unclarified but ambiguous one, does not confer any manner of right on the 2nd defendant for dealing with the plaint schedule property.
43. However the earned counsel for the defendants contended that Ex.A.2/B3 document, being strictly in accordance with law, is a valid document where under the 2nd defendant was given with absolute rights for dealing with the 18 plaint schedule property in the capacity as not only owner but also agent (donee) for the plaintiff and as such the 2nd defendant has unfetted right for, in any manner, dealing with the plaint schedule property of course subject to the recitals of Ex.A.2/B.3 consequently Ex.A.3/B.4 registered sale deed dated 4.8.2011 executyed by the 2nd defendant in favour of the first defendant is absolutely valid, being in consonance with law.
44.The above mentioned rival contentions of both the counsel warrant for meticulous perusal of Ex.A.2/B3 mentioned relevant recitals which run in
Telugu language thus:
" Naa Swadeena Anubhavamulogala naa Talooku, naa
Swayarjithamaina Eee Krindi schedule dhakala aasthini naa
avasaramula nimithamunnum itharathra aasthulu konugolu cheyu
nimithamunnu, neenu chesiyundu runamulu theerchutakunnu, naaku
paikam agathyaminanduna ee krindi schedule dhakala aasthini
Rs.10,00,000/ lu aksharala padi lakshlu rupayalaku neek
vikrainchutaku dhara yerpatu chesukoni ee dinam neevu naa pera
jaari chesinatuvanti Tirupati Idnain Bank account payee chequye
No.735864 ru thedi 12.10.2009 dwara Rs.5,00,000/ lu aksharala
Aidu lakshalu rupayalunnu mariyu nagaduga Rs.5,00,000/le asharala
aidu lakshala rupayalunnu thisukunnanu. Verasi Rs.10,00,000/ lu
aksharala padi lakshala rupayulu pai reethya neenundi naaku
purthiga muttinadi. Kaavuna gaduvu kalamutho nimithamlekunda
neeperunagani, neevu korinavariperunagani neevu korinavidhamuga
ee krindi schedule dhakala aasthini neenu neeku register cheyinchi
ivvagalavadanu. Induventa neevu naa tharapuna general power of
attorney agentga kooda vundi ee krindi schedle dhakala aasthini
gurinchi neevucheyabovu anni panulunu karyamulanu neene dhagara
undi jaripinatluga oppukunuchunnanu. Neevu cheyabovuy anni
karyamulu panulanu dhruveekarinchutuku kooda nenu siddamuga
unnanu. Neevu naa tharapuna agent, hodalo naa tharapuna
cheyavalasina punulu, naa tharapuna ee krindi schedule dhakala
aasthini neevu itharulaku badugaku ichutaku, naa tharapuna rasidulu
vrainchi ichutaku, naa tharapuna ee krindi schedule dhakala aasthini
haamigavunchi runamulu pondutaku, chupudayaka dasthavejulanu
vrainchi ichutaku, naa tharapuna santhakamulu chesi registration
cheyinchi ichutakunnu, utharothra naa tharapuna second floor
buildingne nirminchutakunnu naa tharapuna eee krindi schedule
dhakala assthini nee istam vachina dharaku neevu itharulaku
vikrainchutaku, krayadhanamu naa tharapuna nagaduga gaani,
D.D.le dhwaragani, pay orderlugaa gani, chequela dwaragani
theesukonuta kunnu, rasidulu vrainchi ichutakunnu, naa tharapuna
19
santhakamulupetti district registrar vaari karyalayamulo gaani leka
sub registrar vaari karyalayamulo gaani naatharapuna santhakamulu
chesi register cheyinchi ichutaku indumoolamuga poorthi adhikaram
nee ichuchunnanu. Indukugani sadaru Aasthini eediname neeku
swadheenam cheyadamainadhi. Itlani evari prodbalam lekunda naa
manorajeena oppi vrainchi ichina agreement of sale cum general
power of attorney dhasthaveju",.
45. The above mentioned relevant recitals of Ex.A.2/B3 rigidly reveal
Ex.A.2/B3 to have contained two natures among which the primary part is agreement of sale whereas later part is irrevocable general power of attorney executed by the plaintiff in favour of the 2nd defendant.
46. The above mentioned relevant recitals of Ex.A.2/B3, while containing passing of agreed sale consideration amount of Rs.10 lakhs from the 2nd defendant to the plaintiff and while not containing it to be sale deed but agreement of sale, does not make the 2nd defendant to be a vendee in as much as for making the sale of contract covered by Ex.A.2/B.3 to be a complete one, the 2nd defendant was required to obtain a registered sale deed in furtherance of the said document and since admittedly the 2nd defendant did not, so far, obtain such a document as mandated under para 18 decision of Hon'ble Apex
Court reported in 2011(06) ALT SC page 1 held in Suraj Lamp and
Industries Pvt Ltd., Vs. State of Haryana and another wherein the decision delivered court held as : "Sale agreement/GOA/Will transactions do not convey any title nor create interest in immovable property", .
47. Barring the factum that Ex.A.2/B.3, in the capacity as sale deed, did not confer the 2nd defendant with any kind of right, there remains the status of the 2nd defendant as general power of attorney to the plaintiff as per in the later part of the said document.
48. Admittedly as referred to in the preceding paragraphs, Ex.A.2/B3 is still in subsistence having not been cancelled by acts of parties or operation of law so far.
49. In view of the substance of the immediate preceding paragraphs
Ex.A.2/B.3 is bound to be held to be a general power of attorney document 20 though not registered conveyance deed falling under section 17 of Indian
Registration Act.
50. In other words it can be said that the recitals of ex.A.2/B3 do not make the 2nd defendant to be a vendee but as of now and based on the circumstances of the case they do establish the 2nd defendant to be general power of attorney agent (donee) of the plaintiff.
51. Therefore this court, while in disagreement with the contention of the learned counsel for the plaintiff, while in agreement with the contention of the learned counsel for the defendants and while holding that the decision cited by the learned counsel for the plaintiff does not attract to the factual matrix, holds that Ex.A.2/B3 still confers the 2nd defendant with absolute right as GPA agent though not as vendee of the plaintiff for dealing with the plaint schedule property.
52.The learned counsel for the plaintiff, while relying on the Judgment of the
Hon'ble High Court of A.P reported in 2015 ALT (Rev.) 154 (DB) held in
D.Ramalingam and another Vs. Special court under A.P. Land Grabbing
(Prohibition) Act,1982 and others wherein the decision delivered court held as: "Sale deeds executed by a party without having any valid title to the property sold are void documents", contended that through Ex.A.2/B3 the 2nd defendant did not get any right for either alienating or at least dealing with the plaint schedule property as the said document being inadmissible one, is void abinitio.
53. The learned counsel for the defendants contented that even in his pleadings the plaintiff admitted to have executed Ex.A.2/B3 voluntarily and uninfluenced by any kind of compelling circumstances in favour of the 2nd defendant and based on the said document, the 2nd defendant being either vendee having paid total agreed sale consideration amount to the plaintiff or at least authorized agent of the plaintiff, has unfetted right for dealing with the plaint schedule property in any manner whatsoever as chosen by her.
54. The learned counsel for the defendants further contended that the 2nd defendant has absolute rights for selling the property to the first defendant 21 even based on the testimony of PW.1 since the plaintiff being PW.1 vehemently admitted in his cross examination that he handed over original of Ex.A.1/B2 to the 2nd defendant at the time of execution of Ex.A.2/B3 which is with the 2nd defendant as it was executed by him in her favour on 12.10.2009, he knew the contents of Ex.A.2/B.3, recitals of Ex.A.2/B.3 were made under his dictation, it is true that it was mentioned in Ex.A.2/B3 that he had necessity of amount to discharge his debts and as such he agreed to sell the plaint schedule property to the 2nd defendant for a sale consideration amount of Rs.10 lakhs, it is true that he received the consideration amount of Rs.10 lakhs from the 2nd defendant at the time of execution of Ex.A.2/B3, it is true that it is recited in Ex.A.2 that he received total sale consideration amount of Rs.10 lakhs for the plaint schedule property from the 2nd defendant and he authorized her to sell the said property by her to third parties on his behalf for a value fixed by her, he has no objection for executing sale deeds by the 2nd defendant to third parties in respect of the plaint schedule property, the said fact was mentioned in Ex.A.2, he studied up to 10th standard, the signatures and thumb marks on Ex.A.2
before the Sub Registrar, Madanapalle, were of him, he has affixed his
signatures and thumb impressions on Ex.A2 by consenting the execution of
Ex.A.2 it is true that 2nd defendant never forced him to execute Ex.A.2/B3 in her favour and he voluntarily executed the said document in her favour with his will and wish and he did not cancel Ex.A.2/B3 so far.
55.But this court, as it held in the preceding paragraphs, holds that while
Ex.A.2/B.3 at best while constituting to be General power of attorney document alone though not sale deed executed by the plaintiff in favour of 2nd defendant, certainly entitles and authorises the 2nd defendant to deal with the plaint schedule property as an authorized agent of the plaintiff.
56. Therefore, this court, while upholding the contention of the defendants and while negating the contention of the plaintiff, holds that the decision cited by the learned counsel for the plaintiff does not attract to the factual matrix.
57.In view of the afore discussion, this court hesitates nothing in holding that the plaintiff is not entitled to seek for the plant mentioned relieves of declaration for declaring Ex.A.3/B4 registered sale deed dt 4.8.2011 executed 22 by the 2nd defendant in favour of the 1st defendant to be null and void and for prohibitory permanent injunction for restraining the defendants and their deputed men from, in any manner, interfering into the possession and enjoyment of the plaintiff in respect of the plaint schedule property and accordingly issue No.1 is answered.
58.ADDITIONAL ISSUE NO.1:
Admittedly the defendants 1 and 2, initially, fled their respective written statements by refuting the claim of the plaintiff and subsequent to filing of his written statement, the 1st defendant, by getting filed and allowed IA
No.326 of 2015 on 28.02.2018, filed additional written statement cum counter claim with the relieves of eviction of the plaintiff from the plaint schedule property for delivering vacant possession of the same to her and for recovery of past and future rents from the plaintiff by claiming as if the plaintiff has been continuing on the schedule property as a monthly tenant on a monthly rent of
Rs.2,500/ under her vendor 2nd defendant who indirectly attorned the said lease to her through Ex.A.3/B.4.
59.Admittedly as seen from the record and as per the version of both the counsel the plaintiff did not prefer any appeal or revision or review as the case may be against the said order dated 28.02.2018 passed in IA No.326 of 2015 where under the 1st defendant was permitted to advance her additional pleadings in the shape of counter claim consequently the said order became final, being undisturbed. However the plaintiff, by relying on the judgment of the Hon'ble Apex Court reported in 2019(6) ALT page 302(SC) held in Ashok
Kumar Kalra Vs. Wing Commander Surendra Agnihotri and others, now started challenging the said order but this court holds that based on either cited judgment or otherwise the plaintiff cannot now question the reception of
additional written statement cum counter claim of the first defendant as he is
impliedly estopped from challenging the same.
60. It is specifically contended by both the defendants that the plaintiff totally parted with the rights in respect of the plaint schedule property in favour of the 2nd defendant and as such delivery of possession of the plaint 23 schedule property was also given to 2nd defendant on 12.10.2009 itself, after execution of Ex.A.2/B3, the plaintiff, by pleading that immediately he cannot get alternative accommodation for his residence, orally took on lease the plaint schedule property from the 1st defendant on a monthly rent of Rs.2500/ in the presence of their common relative cum well wisher R.Prasannakumar and plaintiff's close associate Raju by further assuring that the plaintiff would vacate the premises on his getting alternative accommodation at the earliest, thereafter the plaintiff was continuing as a tenant in the plaint schedule property on a monthly rent of Rs.2500/ by way of regularly paying the agreed rentals to the 2nd defendant, even when the 2nd defendant executed Ex.A.3/B4 registered sale deed dated 04.8.2011 in favour of the 1st defendant, the plaintiff was continuing as a tenant and as such under law the said tenancy shall be deemed to have attorned on the first defendant and apart from that when the 1st defendant attempted to take possession of the plaint schedule property in pursuance of Ex.A.3/B4, the plaintiff requested the first defendant to permit him to continue as a tenant under the earlier terms and conditions consequently the first defendant agreed for the same, as per the said oral lease the plaintiff paid agreed monthly rentals to the first defendant through the 2nd defendant and from June 2012 onwards the plaintiff stopped paying rentals in spite of the demands made by the first defendant personally and through elders
Prasanna Kumar and Raju however abruptly the plaintiff, instead of obliging the terms and conditions of the oral lease, filed the present suit with false averments and as such the plaintiff, being tenant under the first defendant is required to be evicted from the plaint schedule property and to deliver vacant possession of the same to the first defendant apart from paying arrears of rentals of Rs.75000/ with interest at the rate of 24% p.a. and future rent at the rate of Rs.2500/ per month till delivery of the schedule property to the first defendant.
61. Admittedly though the 2nd defendant pleaded oral lease in her written statements, the plaintiff, by not filing any rejoinder on the said contention of the 2nd defendant, did not dispute the said advanced oral lease claim of the 2nd defendant however this court feels and holds that the said contention of the plaintiff, while certainly estopping the plaintiff from disputing the said 24 contention, compels the court to assume or infer the plaintiff to have admitted the said advanced contention of the 2nd defendant.
62. Admittedly the 2nd defendant, being DW.2, in her examination in chief, specifically pleaded her alleged oral lease with the plaintiff on a monthly rent of Rs.2500/ and her attorning the said leas upon the first defendant on execution of Ex.A.3/B.4.
63. Despite the existence of the afore referred to factual situation the plaintiff, by failing in giving at least a suggestion to DW.2 alleging that on execution of
Ex.A.2/B3, he did not take the plaint schedule property on oral lease from 2nd defendant on a monthly rent of Rs,.2500/, he has been residing in the plaint schedule property as absolute owner of the same irrespective of existence of
Ex.A.2/B3, there is no need for him for paying monthly rent to the 2nd defendant, he did not pay rent as such to the 2nd defendant, he did not agree and accept to be a tenant under the first defendant after execution of Ex.A.3/B4, there is no need for him to pay monthly rent to first defendant and as such he never paid the rent to her and there was never any oral or otherwise lease transaction among him and the second defendant initially and among him and 1st defendant later, did not refute or dispute D.W.2's evidence affidavit mentioned oral lease transaction.
64. In view of the afore referred to factual situation, this court infers the plaintiff to have no grievance at the 2nd defendant's evidence affidavit mentioned oral lease transactions which factum in turn constitute the plaintiff to be tenant under the 2nd defendant for the plaint schedule property.
65. Admittedly the 1st defendant, being DW.1, in his examination in chief, specifically pleaded her alleged oral lease with the plaintiff on a monthly rent of Rs.2500/ from the date of Ex.A.3/B4 as 2nd defendant/DW.2 attorned the earlier existing lease of her with the plaintiff to her.
66.Despite existence of the afore referred to factual situation the plaintiff, by failing in giving at least a suggestion to DW.1 alleging that on execution of
Ex.A.2/B3, he did not take the plaint schedule property on oral lease from 2nd 25 defendant on a monthly rent of Rs,.2500/, the said alleged lease of the 2nd defendant with the plaintiff did not attorn to the 1st defendant, he has been residing in the plaint schedule property as absolute owner of the same irrespective of existence of Ex.A.2/B3 and Ex.A.3/B4, there is no need for him for paying monthly rent to the 2nd defendant and similarly the 1st defendant, he did not pay rent as such to both the defendants, he did not agree and accept to be a tenant under either the 2nd defendant or the first defendant at any point of time after execution of Ex.A.1/B.3 and Ex.A.3/B4 and there is no need for him to pay monthly rent to first defendant and as such he never paid the rent either to first defendant or 2nd defendant and there was never any oral or otherwise lease transaction among him and the defendants did not refute or dispute D.W.1's evidence affidavit mentioned oral lease transaction.
67. DW.3 Sidhayya Naidu and DW.4 Prasanna Kumar, in their evidence affidavits specifically pleaded as if the oral lease transaction among the plaintiff and the 2nd defendant on a monthly rent of Rs.2500/ took place before them on the date of Ex.A.2/B3 but while cross examining the said witnesses
D.W.3 and DW.4, the plaintiff, by not refuting or at least disputing the oral lease transaction pleaded by DW.3 and DW.4, either directly or indirectly agreed the said transaction to be true.
68.From the above material parts of evidence of D.Ws.1 to 4, this court holds that the plaintiff is holding possession of the plaint schedule property as tenant being in permissive possession after executing o Ex.A.2/B3 .
69.Adding to the above the decision cited by the learned counsel for the first defendant reported in 2009 (sup) AIR (SC) 1550 held in Vimal Chand
Ghevarchand Jain Vs.Ramakant Eknath Jajoo wherein the decision delivered court held as : owner selling his property – sale deed duly executed and registered owner giving symbolic possession but not physical possession – in such a situation a legal fiction is created in terms whereof the owner becomes dispossessed and regains possession in a different capacity namely as a licensee – purchaser entitled to maintain suit for recovery of possession in since as soon as deed of sale is registered, the title passes to the vendee and the vendor in terms of the 26 stipulations made in the deed of sale is bound to deliver the possession of the property sold failing which the vendor is liable for damages”, certainly makes the plaintiff to be a licensee under the first defendant.
70.Since this court in the preceding paragraphs believed and concluded the plaintiff to be a tenant under the 2nd defendant soon after execution of
Ex.A.2/B3, though there is no specific attornemnt of tenancy by the 2nd defendant in favour of the first defendant through Ex.A.3/B4, it does not effect the first defendant’s right of eviction of plaintiff from the schedule property for a consequential recovery of vacant possession of the same and for arrears of rents etc., attached to the said property as has been held by the Hon’be High
Court of AP reported in 2016(3) ALD 408 (DB) held in Rajhmundry
Diagnostic Laboratories private limited, Rajahmundry and another Vs. Dr
Chandrasekhar Sompalle and another wherein the decision delivered court held as “ Since attornment is not necessary under section 109 of Transfer of
Property Act, tenant cannot dispute the right of transferee in maintaining the suit for eviction or rent on the ground that there is no jural relationship of tenant and landlord between them and purchasers of property.
71.The earned counsel for the 2nd defendant, while relying on the judgment of Hon’ble Apex court reported in 2020(6) ALD 246 (SC) held in Rattan
Singh and others Vs Nirmal Gill and others contended that as per the cited judgment and the provisions of Law of evidence there is heavy burden on the plaintiff and plaintiff alone for producing tangible evidence to show that there existed no such relationship except fiduciary alone among him and the 2nd defendant in connection with Ex.A.2/B3 however this court holds that the said cited decision does not fall for consideration in as much as admittedly the plaintiff did not challenge the correctness or otherwise of Ex.A.2/B3 to which he is a party.
72. The learned counsel for the 2nd defendant and similarly the learned counsel for the plaintiff relied on the judgment reported in 2017(4) ALD 12
held in Ediga Chandrasekhar Gowd and another Vs. State of Andhra
Pradesh and others wherein the decision delivered court held as to the enforceability of agreement of sale cum irrevocable General Power of Attorney however this court holds that the said cited decision does not fall for 27 consideration since admittedly Ex.A.2/B3 was not put to challenge by either of the parties to the litigation.
73. The learned counsel for the plaintiff, while relying on section 32 of A.P.
Buildings (Lease, rent and eviction) Control (Amendment) Act, 2005, contended that even if it is assumed that the plaintiff is tenant under the 2nd defendant initially and thereafter under the first defendant, not this court but the designated court under the provisions of the said Enactment gets jurisdiction over the counter claim mentioned relieves sought by the 1st defendant.
74. The amended A.P. Rent Control act specifically tells that the provisions of
A.P rent control Act attract to a lease transaction of a building 15 years after its completion or its substantial renovation crossing 75% of the structure or rent of the lease hold structure does not exceed Rs.2500/ if such structure is situated in other areas other than municipalities and Rs.3500/ in the areas covered by the municipalities.
75. As seen from the record and as admitted by the parties, the plaint schedule property is situated within the limits of Madanapalle municipality however unfortunately both the parties are not conscious of the fundamental principles of Rent Control Act in advancing their pleadings and as such the 2nd defendant did not specifically plead as to how her counter claim mentioned relieves suit to the present suit in stead of Rent control case and similarly the plaintiff did not claim in his pleadings as to how the first defendant is debarred from seeking the counter claim mentioned relieves in the present suit but despite existence of failure of both parties in establishing as to whether or not, the counter claim of first defendant falls within the ambit of a suit, yet there existed some material in the record with which the matter in controversy can legitimately be resolved.
76.The plaint schedule property now contained a structure however it is not pleaded by both the parries as to when the structure was constructed and finished but Ex.B.1 the link document of the vendor of the plaintiff, being dated 30.7.1998, while disclosing sale transaction pertaining to vacant site alone, 28 establishes that by the date of Ex.B.1 no kind of structure was in existence on the property covered by Ex.B.1.
77. Ex.A.1/B2 sale deed dated 18.10.2006 where under the plaintiff purchased the property from his vendor Savithri discloses existence of the plaint schedule mentioned structure on the vacant property covered by Ex.B.1.
78. In view of the afore mentioned two factors, it is axiomatic that by 30.7.1998 the property was vacant whereas by 18.10.2006 the property contained the plaint schedule mentioned house which factum in turn tells that subsequent to 30.7.1998 and prior to 18.10.2006 the plaint schedule mentioned structure was got constructed and finished.
79. Admittedly, the suit was filed on 30.7.2012 which is 14 years prior to
Ex.B.1 consequently even if it is assumed that on the next day of Ex.B.1 the structure was got constructed on the property it leaves a fact that age of the plaint schedule mentioned structure did not cross 15 years.
80. In view of the afore mentioned observation this court holds that as the age of the plaint schedule structure did not cross the age of 15 years as on the date of filing of the suit, not the Rent control but this civil court got jurisdiction on the counter claim mentioned subject which has direct nexus with the plaint schedule property.
81. In view of the afore observations, this court holds that the plaintiff happened to be tenant under the first defendant in respect of the plaint schedule property subsequent to Ex.A.3/B.4 dated 4.8.2011 and accordingly
additional issue No.1 is answered.
82. ADDITIONAL ISSUE No.2:
This court while answering additional issue No.1, concluded the plaintiff to be tenant under the first defendant in respect of the plaint schedule property on a monthly rent of Rs.2500/.
29
83. Though the 1st defendant specifically claimed as if the plaintiff committed default in paying the agreed monthly rentals of Rs.2500/ to her by the plaintiff, the plaintiff, while concentrating on denial of title of the defendants in respect of the plaint schedule property, did not refute or dispute the said advanced contention of the first defendant and thereby the plaintiff either directly or indirectly admitted to be a defaulter in paying the agreed monthly rental of Rs.2500/ to the first defendant from June 2012 onwards.
84. In view of the afore mentioned factual situation and since the plaintiff, without challenging Ex.A.2/B3, malafidely denied the title of first defendant in respect of the plaint schedule property, he is bound to be evicted from the plaint schedule property for enabling the first defendant to get vacant possession of the same and accordingly additional issue No.2 is answered.
85.ADDITIONAL ISSUE NO.3:
In view of the specific observations given in additional issues 1 and 2 this court is left at particular legal arena where from this court cannot go further than to hold that the first defendant is entitled to recover the arrears of rent without interest and future rent from the plaintiff as sought in the counter claim and accordingly additional issue No.3 is answered.
86.ISSUE NO.2:
In view of the specific observations given in issue No.1 and additional issues 1 to 3, the suit of the plaintiff gets negation whereas the counter claim of the first defendant gets upholding.
87. In the result this court, while dismissing the suit of the plaintiff with costs, decrees the claim of the defendant No.1 with costs, by ordering the plaintiff to get himself evicted from the plaint schedule property and to handover vacant possession of the same to the first defendant and to pay arrears of rent amount of Rs.75,000/ to first defendant within 6 months from to day failing which the 1st defendant would be at liberty to get evicted the plaintiff from the plaint schedule property and recover arrears of rent under 30 due process of law and by also ordering the plaintiff to pay future rents of plaint schedule property to the first defendant at the rate of Rs.2,500/ per month reckonable from the date of counter claim till the date of delivery of plaint schedule property to the first defendant.
Dictated to the Stenographer, transcribed by her, corrected and pronounced by
me in open court, this the 30th day of July, 2021.
XI Additional District Judge, Piler FAC II Additional District Judge, Madanapalle.
APPENDIX OF EVIDENCE
Witnesses examined
For Plaintiff: For Defendants: PW.1:K.Mallikarjuna NaiduDW.1:T.Geetha PW.2:B.Manohar Reddy DW.2:R.Yerramma PW.3:M.Chandrasekhar Rao DW.3:Y.Siddaiah Naidu DW.4:R.Prasanna Kumar
Exhibits marked on behalf of the plaintiff: Ex.A.1: Dt.18.10.2006:Certified copy of sale deed executed by A.Savithri in favour of plaintiff.
Ex.A.2: Dt.12.10.2009:Certified copy of agreement of salecumgeneral power of attorney executed by the plaintiff in favour of 2nd defendant.
Ex.A.3: Dt.04.08.2011:Certified copy of registered sale deed executed by 2nd defendant in favour of 1st defendant.
Ex.A.4: : Electricity bill 1 number.
Ex.A.5: : House tax receipt 1 number.
Exhibits marked on behalf of the defendants:
Ex.B.1: Dt.30.07.1998 : Link document executed by M.Gopalu and M.Sreeramulu in favour of A.Savithri.
Ex.B.2: Dt.18.10.2006: Registered sale deed executed by A.Savithri in favour of plaintiff.
Ex.B.3: Dt.12.10.2009 :Registered agreement of salecumgeneral power of attorney executed by plaintiff in favour of 2nd defendant.
Ex.B.4: Dt.04.08.2011:Registered sale deed executed by 2nd defendant in 31 favour of 1st defendant.
Ex.B.5: House tax receipt
Ex.B.6: Bunch of property tax receipts issued in favour of 1st defendant.(2 nos).
Ex.B.7: Ownership certificate issued by Municipal commissioner in favour of 1st defendant.
Ex.B.8: Proceedings bearing No.ROC/2418/A/2012/129 dated 22.9.2012 for water tap connection for D.1.
Ex.B.9: Income tax verification form with annexure of 1st defendant filed
before IT(Range2), Tirupati.
XI A.D.J. PLR
FAC II ADJ, MPL.