1
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE::
RAJAMAHENDRAVARAM
Present: Smt Velpula Bhavani,
Principal Senior Civil Judge,
Rajamahendravaram.
Monday, the 10th day of April, 2023
O.S. No. 309 of 2016
Between: Association for Promoting Spiritual and Socio-Economic Activities, A Registred Society Regd. No. 571/84, represented by its Secretary Sri V.V.Bhaskara Rao, S/o.Nageswara Rao, Hindu, Aged 40 years, D.No.86-2-17/6, Pragati Marg Street, J.N.Road, Rajahmundry
.... Plaintiff
And
Marisetty Siva Shankar, S/o.Rama Rao, Hindu, Aged 42 years, Business, D.No. 23-3-42, Sajjapuram, Tanuku, Tanuku Municipality, West Godavari District.
.... Defendant
This suit coming on 23.03.2023 for final hearing before me in the presence of Sri G.S.S.Murali Mohan, Advocate for plaintiff and Sri O.N.Krishna, Advocate for defendant and the matter having stood over for consideration till this day this court delivered the following:
J U D G M E N T
The suit is filed by the plaintiff against the defendant for cancellation of registered sale deed dated 30.05.2013 bearing Document No. 2653/2013 in favour of the defendant in respect of the plaint schedule property and to communicate the same to the Sub-Registrar, Tanuku for notifying the cancellation and for consequential prohibitory injunction restraining the defendant from alienating the plaint schedule property and for costs of the suit.
2The brief and relevant facts in the plaint are that the defendant is the transferee of the plaint schedule property from the plaintiff. The plaintiff is the absolute owner of an extent of Ac 1.00 of dry land out of Ac 6.00 remained after sale out of full extent of Ac 21.43 cents in R.S. No.149 of
Palacherla Village, Rajanagaram Mandal, East Godavari District and undivided joint right of extent of 8 sq. Yards near D.No.1-24-6, covered by
R.S. No.85/1 of Tanuku Village, West Godavari District, which are more particularly described in the schedule appended to the plaint as item Nos. 1 and 2 of plaint schedule property.
2 3The plaintiff further submitted that the plaintiff had acquired the title in respect of item No.1 in the year 1985 and in respect of item No.2 on 29.05.2013. As per the authority conferred, the plaintiff had sold the plaint schedule Item Nos. 1 and 2 for Rs.3,40,000/- in favour of the defendant vide sale deed dated 30.05.2013 bearing No.2653/2013. As per the settlement between the plaintiff and the defendant, the plaintiff received an advance amount of Rs.40,000/- prior to sale deed and for the balance sale consideration of Rs.3,00,000/- the defendant promised to issue cheque bearing No.276469 drawn on Syndicate Bank in favour of the plaintiff. After promising to issue cheque, the plaintiff executed and registered the impugned sale deed dated 30.05.2013 in favaour of the defendant. As per the recitals of sale deed, it is specifically agreed that in the event of the cheque bearing dishonoured, the impugned sale deed shall stand cancelled.
4The plaintiff further submitted that the present sale transaction and other transactions between the plaintiff and others were looked after by one
Ch.Ravi Varma on behalf of the defendant. After registration and coming out from Registrar’s office, Tanuku, the defendant informed the plaintiff to give delivery of the cheque after the funds made available in the account in a short time to honour the cheque. Believing the representations of defendant and said Ravi Varma with their knack of persuasion, the plaintiff agreed for such course. Subsequently, on many occasions, when the plaintiff through the President approached the defendant for delivery of the cheque as promised by the defendant, but all the attempts of the President are proved to be of no use. Vexed with the conduct of the defendant, the plaintiff got issued a registered notice to the defendant on 16.06.2014 and the defendant having acknowledged the said notice got issued a reply on 30.06.2014. As the defendant had not paid the sale consideration the plaintiff had not delivered the schedule property as the intention of the both parties is very clear that in the event of failure of payment balance sale consideration, the sale transaction would be cancelled.
3 5The plaintiff further submitted that the defendant played a very confidential trick against the plaintiff in the entire sale transaction. Coming to know the misconduct of the defendant, the plaintiff was obliged to get a publication made in Eenadu paper on 17.06.2014 warning the public at large that the impugned sale transaction in favour of defendant and other transactions became cancelled and that there is exchange of notices in between the plaintiff and defendant in this regard. Since the impugned sale transaction in favour of the defendant is coming in the way of the plaintiff dealing with the schedule property, the plaintiff is obliged to file the present suit to get the sale deed cancelled by decree of the court. Further, as the defendant is making hectic efforts to create and register further documents, the plaintiff is obliged to seek the relief of injunction also as a consequential relief.
6The plaintiff further submitted that the limitation for cancellation of document is to be filed within 3 years from the date of execution, but the limitation for impugned document has fallen during the vacation of summer
May, 2016 and hence the suit was filed on01.06.2016 i.e., reopening delay.
Hence, the suit is filed within time.
7The defendant filed written statement denying all the allegations made in the plaint and further submitted that the plaintiff is not entitled to file the suit on behalf of the society and the suit is not maintainable. The plaintiff has not filed any piece of paper showing the registration of the society and that the defendant came to know that the plaintiff society is not existence and that there are court litigations between the members of the society. The defendant is the absolute owner of the schedule property by virtue of sale deed and, as such, the plaintiff has no right or title or interest over the schedule property in any manner and the sale deed is valid one and its validity cannot be challenged in any manner and more particularly by way of this suit and the suit is not maintainable as per the provisions of the registration act.
4 8The defendant further submitted that the plaintiff did not file any document to show their title over the properties. The plaintiff by suppressing the true transactions happened had filed the suit with ulterior motive and with a view to gain unlawfully in view of skyrocketing of the land prices. The present sale transaction and also other sale transactions in between the plaintiff and others were looked after by one Chekuri Ravivarma on behalf of the defendant, who liaison in the entire impugned sale transaction. The defendant has paid the amount of Rs.3,00,000/- to the plaintiff in the presence of said Ravi Varma and after receiving the same the plaintiff has returned the cheque and so the question of nonpayment of consideration as per the recitals made in the sale deed and the question of cancellation of the document does not arise. The condition regarding cancellation of the sale deed in the event of failure of fulfillment of conditions regarding payment as mentioned in the sale deed are not valid one and the plaintiff has no right to file the suit and at best the plaintiff can file a suit for recovery of balance of sale consideration, if any as alleged in the plaint, if it is true that is nonpayment of money, but not a suit for cancellation of the document.
Hence, the suit is not maintainable under law. The returned cheque is with the said Chekuri Ravi Varma and it was with him only as he has acted as a liaison man in between the plaintiff and the defendant.
9The defendant further submitted that the plaintiff got issued a legal notice on 16.06.2014 and the defendant got issued a reply on 30.06.2014 with true and correct facts. The plaintiff delivered the schedule property and the defendant ha been in possession and enjoyment of the same with absolute rights and title from the date of execution of the document itself.
The present suit is a collusive suit in between the plaintiff and said Chekuri
Ravi varma in order to extract money as the price of land increased and both of them with a malafide intention have filed the present suit. The plaintiff issued a publication in Eenadu on 17.06.2014 warning the public at large 5 that the impugned sale transaction is cancelled in order to reduce the value of the property. The defendant also got issued a publication denying the contents of the paper publication made by the plaintiff. The plaintiff has no right to cancel the registered sale deed and law does not permit this kind of suit. The plaintiff has come to the court by suppressing the factum of receiving entire sale consideration and the present suit is a collusive suit.
The defendant is filing criminal case against the plaintiff and the said Ravi
Varma for cheating him and also going to file a suit restraining the plaintiff from proceeding against the property in any manner. No prudent man will return without receiving the sale consideration and the conduct of the plaintiff itself shows that the plaintiff has come the court with unclean hands.
Hence, the suit is liable to be dismissed.
10Based on the pleadings of both sides, the following issues are settled for trial:
1. Whether the sale deed dated 30.05.2013 vide document No.2653/2013 is liable for cancellation?
2. Whether the plaintiff is entitled for prohibitory injunction from alienating the plaint schedule property?
3. Whether the suit is barred by limitation?
4. To what relief?
11During the course of trial, on behalf of the plaintiff, the President of the
Plaintiff Society is examined as P.W.1 and got marked Exs.A1 to A9. On behalf of the defendant, the defendant himself examined as D.W.1 and he got examined one third party to the proceedings as D.W.2. But, no documents are marked on his behalf.
12Heard both sides. Perused the record.
13ISSUE NO.3: Issue No.3 is taken up first for the sake of convenience.
The main contention of the learned counsel for the defendant is that the suit is barred by limitation as the plaintiff has filed the present suit after lapse 3 years, which is beyond limitation period for filing the suit for 6 cancellation of sale deed. Hence, the suit is liable to be dismissed on the ground of limitation.
14On the other hand, the main contention of the plaintiff is that the suit transaction took place on 30.05.2013. Subsequently, there are exchange of notices between the plaintiff and defendant and also the plaintiff got issued paper publication informing the public at large regarding cancellation of sale deed under Ex.A2. Since the defendant has not complied with the demands of the plaintiff either to re-deliver the cheque or paid the balance sale consideration, the plaintiff is constrained to file the suit for cancellation of the sale deed. The further contention of the plaintiff is that suit for cancellation of sale deed is to be filed within 3 years from the date of its execution. But, in view of intervening of summer civil vacation during the last stage of 3 rd year, the plaintiff has filed the suit on 01.06.2016 i.e., on the reopening day of the courts. Hence, if there is any delay in filing the suit, it is only on account of civil vacation to the courts.
15In the light of the above contentions of both sides, this court has perused the entire material on record. First of all, the limitation for challenging the documents executed by a person and having them declared as null and void would fall under entry 58 of the schedule to the Limitation
Act, 1963. According to which, to cancel or to set aside an instrument is the period is within 3 years. Admittedly, the plaintiff has filed the present suit for cancellation of sale deed under Ex.A2 dated 30.05.2013. Admittedly, the plaintiff has presented the suit before the court on 01.06.2016. The explanation offered by the plaintiff for filing the suit with delay of one day is that due intervention of the summer civil vacation in the month of May, 2016, the suit was filed on the reopening day of the courts. Admittedly, there is no cross-examination on this point by the learned counsel for the defendant. Moreover, the defendant did not made any contra allegations against the explanation offered by the plaintiff.
7 16In the light of these facts and circumstances, this court is of the considered opinion that the plaintiff has presented suit within the period of limitation. Accordingly, the issue No.3 is answered in favour of the plaintiff.
17ISSUE NO.1:The pith and substance in the case of the plaintiff is that the plaintiff is a registered society. The plaintiff society has got by-laws and it has got Office bearers. The plaintiff society is the absolute owner of the schedule properties item Nos 1 and 2 , which were purchased in the year 1985 and 29.03.2013 respectively. In pursuance of the authority conferred on N.V.Pratap Kumar, the President of the plaintiff and authorized Co- signatory of the plaintiff association, by name K.Koteswara Rao, the plaintiff has sold the plaint schedule item Nos. 1 and 2 to the defendant for valuable consideration of Rs.3,40,000/- under Ex.A2 registered sale deed dated 30.05.2013 bearing No.2653/2013. Prior to sale transaction under Ex.A2, the defendant paid an amount of Rs.40,000/- as advance amount and for balance consideration a cheque bearing No. 276469 was issued at the time of registration of the document. In the sale deed, there is a clear and categorical condition that in the event of the cheque being dishonoured, the impugned sale deed shall stand cancelled. One Ch.Ravi Varma had looked after the entire transaction as a mediator. After completion of the transaction and while coming out from the Sub-Registrar Office, Tanuku, the defendant and the said Ch.Ravi Varma informed the plaintiff to return the cheque and the defendant will re-deliver and honour the same in a short time after the funds are available in his account. Due to their knack persuasion, the plaintiff agreed for such course. Subsequently, all the efforts made by the plaintiff to get redelivery of the cheque were became failed.
Hence, the plaintiff got issued Ex.A3 legal notice on 16.06.2014 and the defendant having received the same, got issued reply under Ex.A5 with false allegations. Subsequently, the plaintiff has also issued paper publication informing to the public that Ex.A2 sale deed transaction and other transactions became cancelled. Since the defendant has not followed the 8 specific recital in Ex.A2, the delivery of the schedule property was not effected. Further, since the defendant by playing fraud against the plaintiff has taken the cheque and the same was not redelivered nor paid the consideration, the sale transaction under Ex.A2 is liable to be cancelled.
18On the other hand, the pith and substance in the case of the defendant is that the plaintiff has not filed any piece of document to show his authority to file the present suit. The defendant is the absolute owner of the schedule property by virtue of sale deed and, hence, the plaintiff has no right or title or interest over the schedule property and the validity of the sale deed cannot be questioned by the plaintiff. The plaintiff by suppressing the true transaction has filed the present suit with an ulterior motive in collusion with
Ch.Ravi Varma in view of increase in the land costs. The defendant has paid the amount of Rs.3,00,000/- to the plaintiff in the presence of Chekuri Ravi
Varma and after receiving the same, the plaintiff has returned the cheque and so the question of nonpayment of consideration as per the recitals made in the sale deed and the question of cancellation of the document does not arise. The condition that in the event of failure of fulfillment of condition regarding payment as mentioned in the sale deed is not a valid one and the plaintiff has no right to file the suit and at best the plaintiff can file a suit for recovery of balance of sale consideration, if it is true that the defendant failed to pay the balance sale consideration. Hence, the present suit for cancellation of sale deed is not maintainable under law. The plaintiff has received the entire sale consideration of Rs.3,40,000/- in terms of cash in the presence of Ch. Ravi Varma and then only returned the cheque to Ch.Ravi
Varma and since the transaction was cleared the defendant left the cheque with Ch.Ravi Varma and the said bearing No. 276469 is with Ch.Ravi Varma and it is not in possession of the defendant. Since Ex.A2 transaction is a complete transaction, the plaintiff is not entitled to file the suit for cancellation of sale deed for nonpayment of balance amount. Hence, the suit is liable to be dismissed.
9 19In order to prove the above case of the plaintiff, the plaintiff Society got examined one Narapureddy Pratap Kumar, its President as P.W.1. He filed his affidavit for examination in chief in support of the case of the plaintiff. He was cross-examined by the learned counsel for the defendant. In the cross- examination, he has stated that at present he is the President of said Society.
He further stated that it is true that there are several court litigations pertaining to plaint schedule property even prior to the execution of Ex.A1.
He further stated that it is true that at the time of selling property to defendant, there are disputes with regard to plaint schedule property and the dispute with K.V.V.Satyanarayana Raju, Chairman, Godavari Engineer. He further stated that as per the Court order the possession of plaint schedule property is with said K.V.V.Satyanarayana Raju at the time of execution of
Ex.A1. He further stated that one Chekuri Ravi Varma is the mediator for the entire transaction of Ex.A2. He has denied the suggestion that the have received the entire sale consideration by way of cash under Ex.A2 through the mediator by name Chekuri Ravi Varma and that they returned the cheque to the said mediator Chekuri Ravi Varma. He further stated that they have given GPA to K.V.V.Satyanarayana Raju prior to execution of Ex.A1. He further stated that it is true that as per the said GPA the said KVV
Satyanarayana Raju has got right and title over the plaint schedule property.
He has denied the suggestion that he has no right to seek the cancellation of the document and that he has to seek charge over the plaint schedule property for unpaid sale consideration.
20One Mamidisetti Veera Venkata Satyanarayana, third party to the suit proceedings is examined as P.W.2. He filed his affidavit for examination in chief in support of the case of the plaintiff. He further deposed that he accompanied with the plaintiff at the time of registration. He further deposed that while coming out from SRO Office, one Chekuri Ravi Varma in his presence represented to P.W.1 that he would give delivery of cheques in respect of sale consideration covered by the documents after funds in the 10 account were made available for honouring the cheques. The respective purchasers of the properties and also said Ravi Varma jointly made such representation to the P.W.1 and the P.W.1 accepted the same. He was cross- examined by the learned counsel for the defendant. In the cross- examination, he has stated that he used to attend the land transactions of
P.W.1 whenever he called him. He further stated that he saw said Ch.Ravi
Varma only on the date of suit sale transaction.
21On the other hand, in order to prove the case of the defendant, the defendant himself examined as D.W.1. He filed his affidavit for examination in chief by reiterating the averments made in the written statement. He was cross-examined by the learned counsel for the plaintiff. In the cross- examination, he has stated that plaintiff society is a registered society. He further stated that P.W.1 is the President of Plaintiff Society. He further stated that it is true that as per by laws of plaintiff society, the said
V.V.Bhaskara Rao has got competence to sue or be sued in this suit. He further stated that it is true that he obtained Ex.A2 sale deed from plaintiff society represented by President, P.W.1 and authorized cosignatory by name
Koteswara Rao. He further stated that the plaintiff society returned the cheque mentioned in Ex.A2 and he paid cash. He cannot say exact date in which he paid cash consideration to plaintiff society under Ex.A2 and he paid within one week. He further stated that they reduced in writing in their accounts books about the above transaction. He further stated that at present cheque is not in his possession as it was torned by him as transaction is completed. He further stated that he knows Ch.Ravi Varma and he used to purchase the properties and sale of properties through him.
He further stated that he has not tried to obtain rectification deed from the plaintiff as cheque was returned.
22One Ch.Ravi Varma, third party to the proceedings is examined as
D.W.2. He deposed before the court that he attended the court on receiving the summons. After completing the transaction the cheque was returned to 11 defendant and the defendant paid cash consideration in his house. He was cross-examined by the learned counsel for the plaintiff. In the cross- examination, he has stated that there is no any documentary evidence to show the return of the cheque to defendant and the defendant paid cash consideration. He further stated that the plaintiff has received the cheque at the time of registration. He further stated that he does not remember the date in which the transaction of returning of cheques and payment of cash consideration by defendant to plaintiff in his house. He further stated that it is true that plaintiff sent mails to him and that he has no responded the said mails. He further stated that within one week from the date of Ex.A2 sale transaction, the defendant paid the cash consideration and taken back the cheques. He further stated that he has not give any advise to both the parties to rectify the sale deed. He further stated that it is true that previously there are criminal cases against him in Tanuku court and out of that one section 420 of IPC case is there. He he further stated that it is true that the total sale consideration covered by sale transaction is of
Rs.80,00,000/-.
23This court has perused the entire oral evidence of P.Ws.1 & 2 and
D.Ws. 1 & 2 coupled with the documentary evidence under Ex.A1 to A9.
24In the written statement the defendant has questioned the capacity of the plaintiff in filing of the suit. But, the during the course of cross- examination, he has categorically admitted the plaintiff is a registered society and that P.W.1 is president of Plaintiff society. He further stated that it is true that he obtained Ex.A2 sale deed from the plaintiff society represented by President, P.W.1 and authorized co signatory by name
Koteswara Rao. On the other hand, though, the counsel for the defendant has cross-examined by the P.W.1 at length, nothing was elicited from the
P.W.1 to prove the contention of the defendant that the plaintiff has no capacity to the file the suit.
12 25On the other hand, the learned counsel for the plaintiff has relied upon a decision reported in (1982) AIR (AP) 138 between Andhra Pradesh
Kuruma Sangham Society Vs. Mirza Ayanutullah Baig, wherein, the
Hon’ble High Court of Andhra Pradesh was pleased to hold at Para No. 5 as
follows:
“5. ….. It must be noted that thses objections which are of technical nature of touching upon the merits of the matter justice of the cause should not be light –heartedly entertained by the courts in civil litigation”. 26Further, the petitioner has also filed Ex.A6 Memorandum of
Association, by-laws of the petitioner under Ex.A7 and list of office bearers of the Ex.A8. In the light of the admissions made by the defendant and also in the light of the decision referred by the counsel for the plaintiff and also in the light of the documentary evidence under Exs.A6 to A8, this court is of the considered opinion that the there is no force in the contention of the defendant. Hence, the suit plaintiff can maintain the present suit.
27Now coming to the case facts of the present case. The first and foremost question to be decided by this court whether Ex.A2 is a complete transaction or not and the title and possession were transferred to the vendee in view of Section 54 of Transfer of Property Act in the back drop of recital in Ex.A2 to the effect that “in the event of the cheque being dishonoured, the impuged sale deed shall stand cancelled”.
28A careful perusal of Ex.A2 sale deed, wherein, at Page No.4, after boundaries to the property, it was recited as follows:
“అఅఅఅ అఅఅఅ అ అఅఅఅఅఅఅఅ అఅఅఅఅఅఅ అఅఅ అఅఅఅఅఅ అఅఅఅఅ అఅఅఅ అఅఅఅఅ అఅ అఅఅ అఅఅఅ అఅఅఅఅఅఅ అఅఅఅ అ అఅఅఅఅఅ అఅ అఅఅఅ అఅఅఅఅఅఅఅఅఅ అఅఅఅఅఅఅ అఅఅఅఅ.” 29A further perusal of Ex.A2, the total consideration under it is for
Rs.3,40,000/-. It is an admitted fact that the defendant has paid an amount of Rs.40,000/- to the plaintiff prior to entering into Ex.A2 sale deed. At the time of registration of Ex.A2 sale deed, the defendant got issued a cheque bearing No. 276469 pertaining to Syndicate Bank for balance sale consideration of Rs.3,00,000/-. But, in view of above recital, the intention of 13 the parties is very clear that in the event of cheque referred under Ex.A2 has not been honoured, Ex.A2 would become cacelled deed.
30In the decision between VIDHYADHAR V/S MANKIKRAO, reported in 1999 LawSuit(SC) 316 of Hon’ble Apex Court, wherein, their lordships were pleased to hold at Para No. 37 as follows:
[37] The real test is the intention of the parties. In order to constitute a "sale," the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in praesenti or in futuro. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence of record.
31This court has perused the said decision with great respect. In the instant case, in view of clear recital in Ex.A2, unless, the balance amount was cleared through the cheque referred under Ex.A2, the sale deed would not be enforced and it is to be treated as cancelled.
32At this juncture, the learned counsel for the defendant has submitted that Ex.A2 is a complete transaction. He further submitted that the general phenomena is that the title and possession to the property will pass to the vendee on registration of the sale deed with effect from the date of execution of the sale deed. He further submitted that Ex.A2 was duly executed and registered before the Sub-Registrar, Tanuku, hence, the title along with possession were automatically vested with the defendant. Even in the event of non-payment of balance price, if any, for a moment it is presumed, the remedy available to the plaintiff is to file a suit for recovery of balance amount, but not the suit for cancellation.
33In this regard, it is apposite to refer the decision of the Hon’ble Apex
Court, in the decision between JANAK DULARI DEVI & ANR V/S KAPILDEO
RAI & ANR Reported in 2011 Law Suit(SC) 439, wherein, their lordship were pleased to hold at Para No.10 as follows:
10. Where the sale deed recites that on receipt of the total consideration by the vendor, the property was conveyed and possession was delivered, the clear intention is that title would pass and possession would be delivered only on payment of the entire sale consideration. Therefore, where the sale deed recited that on receipt of entire consideration, the vendor was conveying the property, but the purchaser admits that he has not paid the entire consideration (or if the vendor proves that the entire sale consideration was not paid to him, title in the property would not pass to the purchaser”.
14 34This court has perused the said decision with great respect. In the above decision their lordships were observed that when it was admitted that the vendee has not paid the entire consideration as per the recitals in the document, the title in the property not pass to the purchaser. Admittedly, in the instant case, as per the recital in Ex.A2, the intention of the parties is very clear that in the event the cheque issued by the defendant was not
honoured, the sale would become cancelled. So, it is clear that by the date of
Ex.A2, as per the intention of the parties, total consideration was not paid by the vendee to the vendor. Hence, this court is of the considered opinion that the title will not follow to the purchaser, though, a registered document was executed between the parties.
35The learned counsel for the plaintiff has relied upon a decision between
Bishundeo Narain Rai (dead) by Lrs and others Vs. Anmol Devi and
others, reported in AIR 1998 SUPREME COURT 3006, wherein, the
Hon’ble Apex court hold at Para No. 11 as follows:
“11. ..... A combined reading of Section 8 and 54 of the Transfer of Property Act suggests that though on execution and registration of a sale deed, the ownership and all interests in the property pass to the transferee, yet that would be on term and conditions embodied in the deed indicate the intention of the parties. It follows that on execution and registration of a sale deed, the ownership title and all interests in the property pass to the purchaser unless a different intention is either expressed or necessarily implied which has to be proved by the party asserting that title has not passed on registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely, from the averments in the sale deed itself or by other attending circumstances subject, of course, to the provision of Section 92 of Indian Evidence Act.” 36This court has perused the said decision with great respect. In the light of the above clear position of law laid by the Hon’ble Apex Court, in the decision supra, the intention of the parties should be gathered from the recitals of the document and also the intrinsic evidence adduced by both parties to prove the flow of title and possession in favour of the purchaser after execution of the deed. In the instant case, admittedly, there is a clear recital in Ex.A2 to the effect that in the event the cheque was not honoured, the sale would become cancelled. Hence, till it is proved either the said cheque was honoured or the said cheque was compensated in terms of other 15 way, the sale deed would not become a complete transaction and no rights were vested with the defendant.
37In the light of the above law laid by the Hon’ble Apex Court in the above decisions, the contention of the defendant that on execution on Ex.A2 sale deed, the title and possession are vested with the defendant and the plaintiff cannot file the suit for cancellation of document cannot be accepted.
38At this juncture the learned counsel for the defendant has submitted that though, initially, a cheque was issued, but subsequently, the consideration of Rs.3,00,000/- was paid by the defendant by way of cash in the presence of D.W.2 and upon payment of cash consideration only, the cheque was delivered to the defendant by the plaintiff. He further submitted that the D.W.2 has categorically admitted that in his presence the defendant has paid cash to the plaintiff at his house.
39On the other hand, the learned counsel for the plaintiff has submitted that after taking the cheque from the plaintiff, the defendant did not choose to redeliver the cheque nor paid the balance sale consideration. All the efforts made by the plaintiff to get redelivery of the cheque became futile.
Further, the mail sent to D.W.2 under Ex.A9, who is the mediator and in whose presence the alleged payment said to have been made, kept silent on receiving the mail sent after receiving Ex.A9 mail. The further contention of the plaintiff that the defendant did not produce any piece of document
before the court to show that balance sale consideration was paid by way of
cash. In order to gain wrongfully, the defendant has taken the plea of cash payment as an afterthought.
40In the light of the above rival contentions of both sides, since the plaintiff has disputing about the receipt of balance sale consideration by way of cash, the burden is on the defendant to prove the alleged payment of balance sale consideration by way of cash. Admittedly, in the instant case, there is no piece of documentary evidence produced by the defendant to 16 prove the alleged payment of cash. However, the defendant has adduced the oral evidence D.Ws. 1 and 2 to prove the payment of cash consideration.
41Before parting with the discussion on this point, it is just and necessary to refer some admitted facts in the case, which are at the time of registration of Ex.A2, the defendant in order to pay the balance sale consideration, he issued a cheque bearing No. 276469 for Rs.3,00,000/-. In fact, the same was recited in Ex.A2 that balance sale consideration was made by way of cheque bearing No.276469 by the defendant.
42In the written statement, the specific contention of the defendant is that he has paid the amount of Rs.3,00,000/- to the plaintiff in the presence of Chekuri Ravivarma after some time and after receiving the same, the plaintiff has returned the cheque. Whereas, in the reply notice under Ex.A5 issued by the defendant, it was categorically mentioned that after coming out from SRO Office, the defendant stated that he would deliver the cheque after funds were made ready in his account for honouring the cheque. In fact, the specific case of the plaintiff is that after coming out from Sub-Registrar
Office, the defendant has taken the cheque back by stating that he would re- deliver the cheque after the funds were arranged in his account. Thereby, it is an admitted fact that the cheque referred under Ex.A2 was taken back by the defendant after completion of the transaction. But, after filing of the suit, in the written statement, the defendant has totally changed his version that after receipt of cash consideration, the cheque was returned by the plaintiff. These facts clearly show that the defendant has taken two different and contra pleas regarding when the cheque was actually returned to the defendant by the plaintiff or when the balance sale consideration was paid by way of cash.
43Now coming to the oral evidence adduced by the defendant. During the course of cross-examination of D.W.1, he has categorically stated that he cannot say exact date on which he paid cash consideration to plaintiff society under Ex.A2 and he paid within one week. D.W.2 has also stated in 17 his cross-examination he does not remember the date on which the transaction of returning cheque and payment of cash consideration by the defendant to plaintiff in his house. He further stated that within one week from the date of Ex.A2 sale transaction the defendant paid the cash consideration and taken back the cheque.
44A careful perusal of the above admissions of D.Ws. 1 and 2, it is clear that there is no evidence to prove the payment of cash consideration by the defendant and returning of the cheque by the plaintiff. Further, the payment of cash consideration was made within one week from Ex.A2 sale transaction. But, a careful perusal of the written statement and the chief examination affidavit of D.W.1 coupled with the reply notice contents under
Ex.A5, he has nowhere stated when the payment of cash consideration was made. Thereby, it is clear that only during the course of cross-examination of D.Ws. 1 and 2,for the first time, it came to light that the cash payment was made within one week.
45It is appropriate to mention here the decision between DARISI
MASTHANAMMA V/S MANDIGA RAMA KRISHNA reported in 2006
LawSuit(AP) 38 of Hon’ble High Court of Andhra Pradesh, wherein, their lordship were pleased hold at Para No.23 as follows:
[23] Coming to the decisions relied upon by the learned Counsel for the respondent in Shaik Nurbi (supra), a learned Single Judge, after referring to and relied upon the number of Supreme Court judgments, came to the conclusion "It is settled principle of law that even for raising a new plea on the basis of the provision of law it must have its foundation in the pleadings and in the absence of pleading in the plaint even though evidence is adduced by the party it cannot be looked into for the reason that the opposite party could not have any opportunity to contradict the above said pleading. When a pleading is raised in the plaint, the plaintiff has to adduce evidence in support of it. If the Court accepts the new plea based on a legal provision of law to meet the fair plea and to give an opportunity to the opposite party the matter has to be remitted to the original Court for a fair re-trial of the matter to give an opportunity to the opposite party." 46This court has perused the said decision with great respect. In fact, it is settled law that no party is permitted to travel beyond its pleadings. It is also settled law that any amount of evidence without there being any pleading cannot be considered by the court in the light of the principles laid down in the above decision. Hence, the subsequent plea that the balance 18 sale consideration was paid within one week after completion of Ex.A2 transaction cannot be looked into that too when the defendant has failed to prove the same by adducing any cogent and convincing evidence.
47In fact, there are different versions in the case of the defendant regarding when the cheque was returned by the plaintiff and when the defendant has made payment by way cash and also in the light of the above settled position of law, the oral evidence of D.Ws. 1 and 2 that too without producing any documentary evidence evidencing the payment of cash consideration is not at all helpful to prove that the defendant has paid the balance consideration by way of cash.
48Not only this, during the course of cross-examination of D.W.1 he has categorically admitted that they reduced into writing in their account books about the above transaction. Admittedly, the amount of Rs.3,00,000/- is not a small amount. If really, the defendant has made the balance consideration by way of cash and if really, the same was reduced into writing in his account books, the defendant ought to have produced the same before the court to prove that he has made the cash payment of Rs.3,00,000/- to the plaintiff.
49Not only this, in the written statement of the defendant, the defendant has specifically stated that the defendant has left the cheque with Ch.Ravi
Varma and the said cheque bearing No. 276469 is with Ch.Ravi Varma and the defendant is not in possession of that document. Whereas, during the course of cross-examination of D.W.1, he has stated that at present the cheque was not in his possession as it was torned by him as the transaction is completed. Thereby, the version of the defendant in his written statement and his evidence before the court are contradicting to each other. Whereas,
D.W.2 during his cross-examination he has stated that the defendant paid the cash consideration and has taken back the cheque. So, according to the
D.W.2, the defendant himself has taken the cheque after payment of alleged cash. Thereby, the version of the defendant is not clear, who received the 19 cheque after payment of alleged cash consideration either the defendant or the said Ch.Ravi Varma.
50On marshalling the above evidence of D.Ws. 1 and 2, their evidence is not consisting and corroborating with each other on material aspects of the case. Further, the defendant in order to strengthen his case, he made improvements to his version after issuing reply notice under Ex.A5. Thereby, it is clear that the defendant is not speaking truth and his entire case is mingled with afterthoughts. Hence, this court is of the considered opinion that oral evidence of D.Ws. 1 and 2 is not at all helpful to prove the alleged payment of cash consideration.
51The learned counsel for the plaintiff has submitted in view of clear recital in Ex.A2 to the effect that “in the event of dishonour of the cheque, the sale deed would be cancelled” the defendant ought to have obtained any rectification deed, if really, the defendant has made the alleged cash payment. He further submitted that no prudent person will keep such recital in force, though, the entire consideration was paid.
52The record reveals that the defendant is doing finance and real estate business. So, it is clear that defendant has knowledge about the sale transactions and financial transactions. If really, the defendant has paid the entire sale consideration as alleged by him, definitely he ought to have obtained the rectification deed to prove that he made the balance sale consideration by way of cash instead of cheque as mentioned in the sale deed under Ex.A2.
53It may be mentioned here that the simple rule is whenever there is change or modifications in the recitals mentioned in a document subsequent to its execution, the parties should get rectification deeds by incorporating the said changes or modifications in order to avoid future litigation and to safeguard their rights over the property. But, in the instant case, the recital in Ex.A2 are against to the interest of the defendant and the contention of the defendant is that he made the balance sale consideration by way of cash 20 instead of cheque, if that is so, the defendant ought to have obtained any rectification deed to that effect. But, for the reasons best known to the defendant, though, he is having knowledge about the sale transactions, he did not move his little finger to get rectification deed of Ex.A2 sale deed. The attitude of the defendant in not obtaining the rectification deed speaks volumes about his defence in the present case.
54The learned counsel for the defendant has lastly contended that for a moment it is presumed that the defendant has not paid the balance sale consideration even then the plaintiff is not entitled to file the suit for cancellation of the sale deed, but the remedy available to the plaintiff is to file a suit for recovery of money or charge over the schedule property for the balance sale consideration.
55At this juncture, it is to be noticed here that the law of land is very clear even if entire sale consideration was not paid it would not be a ground for cancellation of the sale deed, but the said principle is applicable when the title and possession were actually delivered to the purchaser. In the instant case, the plaintiff has filed the present suit mainly relying on the recitals under Ex.A2, which are mentioned supra. According to which, in the event of the cheque was not honoured the sale deed would be cancelled.
56As already discussed supra, the defendant did not obtain any rectification deed to show that he has paid the balance sale consideration by way of cash. Further, the defendant failed to prove with cogent and convincing evidence that he has paid the balance sale consideration by way of cash. Thereby, the recitals under Ex.A2 are remained unchanged. If that is so, as per the recitals in Ex.A2, the plaintiff is entitled to cancel the sale deed under Ex.A2. Accordingly, Issue No.1 is decided in favour of the plaintiff.
57ISSUE NO.2: In the light of the discussion on Issue No.1 holding that the Ex.A2 is liable to be cancelled, the plaintiff is entitled for the prohibitory injunction restraining the defendant from alienating the schedule property.
21 58ISSUE NO.3: In the result, the suit is decreed with costs, for cancellation of the registered sale deed dated 30.05.2013 bearing document
No.2653/2013 in favour of the defendant in respect of the plaint schedule property. Communicate the same to the to Sub-Registrar, Tanuku for notifying the cancellation. Consequential prohibitory injunction is granted restraining the defendant from alienating the plaint schedule property.
Typed to my dictation by the Stenographer (Grade II), corrected and
pronounced by me in the open Court, this the 10th day of April, 2023.
Principal Senior Civil Judge,
Rajamahendravaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff: P.W.1 : N.Venkata Pratap Kumar P.W.2 : Mamidisetti Veera Venkata Satyanarayana
For Defendant: D.W.1 : Marisetty Siva Shankar D.W.2 : Ch.Ravi Varma
DOCUMENTS MARKED
For Plaintiff: Ex.A1/: Photostat copy of the byelaws of the society Ex.A2/30.05.2013: Certified copy of the sale deed bearing No. 2653/2013 Ex.A3/16.6.2014 : Office copy of the legal notice issued by the plaintiff Ex.A4/23.6.2014 : Postal acknowledgement from the defendant Ex.A5/30.6.2014 : Reply notice got issued by the defendant Ex.A6/: CC of Memorandum of Association of plaintiff association Ex.A7/: CC of Bye laws of plaintiff Ex.A8/: True copy of list of office bearers Ex.A9/: G-mail message copy.
For Defendant : Nil.
PSJC