Common Judgment in OS No. 613-2009 & OS No. 710-20141
IN THE COURT OF THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAGA REDDY DISTRICT, AT L.B. NAGAR,
TELANGANA STATE.
PRESENT: SRI.Y.GOVINDA REDDY, V Additional District and Sessions Judge, Ranga Reddy District
Tuesday, the Twenty Third day of April, Two Thousand Nineteen [COMMON JUDGMENT IN THE MATTERS OF]
O.S. No. 613 of 2009
&
O.S. No. 710 of 2014
[This is a common judgment delivered in the above two suits since the property involved in both the suits is one and the same, and the parties involved in both the suit are one and the same. O.S. No. 613 of 2009 has been instituted in this Court. And the O.S. No. 710 of 2014 was initially registered as O.S. No. 1745 of 2009 on the file of the I Addl. Senior Civil
Judge of RR District, and the same was transfered as per the orders in
Transfer O.P. No. 680 of 2013 dated 12-6-2013 and it is renumbered as
O.S. No. 710 of 2014]
O.S. NO. 613 OF 2007:
Between: B. Reddenna, S/o.B.Narasimhulu, Age: 59 yrs, Occ: Retd., Service, R/o.10- 2-9/19, Opp: Mahaveer Hospital, A.C. Guards, Hyderabad…Plaintiff
AND
01.Thota Swaroop, S/o.T.Mallaiah, Age: 30 yrs, Occ: Pvt., Employee, R/o.Plot No.13, Sheshchala Colony, West Marredpally, Secunderabad
02.Mirza Maseehudin Baig, S/o.late.Mirza Abdul Raheem Baig, Age: 53 yrs, Occ: Business,
03.Smt.Kareemunisa Begum, W/o.late.Mirza Abdul Raheem Baig, Age: 90 yrs, Occ: Household,
04.Mirza Mohinuddin Baig, S/o.late.Mirza Abdul Raheem Baig, Age: 62 yrs, Occ: Service,
05.Mirza Muniruddin Baig, S/o.late.Mirza Abdul Raheem Baig, Age: 46 yrs, Occ: Business,
Common Judgment in OS No. 613-2009 & OS No. 710-20142
06.Mirza Mazuruddin Baig, S/o.late.Mirza Abdul Raheem Baig, Age: 42 yrs, Occ: Business,
07.Taj Sultana, D/o.late.Mirza Abdul Raheem Baig, Age: 60 yrs,
08.Layeequnnisa Begum, D/o.late.Mirza Abdul Raheem Baig, Age: 55 yrs, Occ: Household,
09.Pafeequnnisa Begum, D/o.late.Mirza Abdul Raheem Baig, Age: 50 yrs, Occ: Household,
10.Safeequnnisa Begum, D/o.late.Mirza Abdul Raheem Baig, Age: 55 yrs, Occ: Household,
Defendants No.3 to 10 are rep. by its GPA Holder Defendant No.2
... Defendants
O.S. NO. 710 OF 2014: ( O.S. NO. 1745 OF 2009 OF I ADDL. SCJ of
L.B. NAGAR)
Between: Thota Swaroop, S/o.Mallaiah, Age: 31 yrs, Occ: Software Engineer, presently R/o.USA., rep. by GPA Holder T.Ravinder, S/o.T.Mallaiah, Age: 36 yrs, Occ: Pvt., Employee, R/o.West Marredpally, Secunderabad
...Plaintiff
AND
B. Reddenna, S/o.Not know to the plaintiff, Age: 60 yrs, Occ: ACP., Retd., R/o.10-2-9/19, Opp: Mahaveer Hospital, A.C. Guards, Hyderabad
...Defendant
This Original Suit in O.S.No.613/2007 has come up before me for final hearing in the presence of M/s.V.H.V.R.R.Swamy, Counsel for the Plaintiff and M/s.C.A.R.Sheshagiri Rao, Counsel for the Defendant No.1 and Sri.A.Ram Mohan Reddy, Counsel for the Defendant No.2 (Defendant No.2 is GPA of the defendant No.3 to 11); and in O.S.No.710/2014 has come up before me for final hearing in the presence of Sri.Ch.Prem Chandan Rao, Counsel for the Plaintiff, and M/s.V.H.V.R.R.Swamy, Counsel for the Defendant and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Court delivered the following:
COMMON JUDGMENT
[1]SUIT PROPERTY:The open house plot measuring 253 Sq.
yards in plot no. 28 in S.No. 98 and 147 of Kothapeta Village, Uppal
Mandalam, L.B. Nagar, RR District, bounded by is the suit property –
Common Judgment in OS No. 613-2009 & OS No. 710-20143
North: plot no. 25; South: Plot no. 22; East: 25 Feet Road; West: Plot no.
27, is the subject matter of the both the suits and the same will be referred to as ‘suit property’.
[2]REFERENCE OF PARTIES HEREINAFTER: B. Reddenna is the the plaintiff in O.S. No. 613 of 2009 and he is the defendant in O.S.
No. 710 of 2014; And Thota Swaroop is the defendant no.1 in O.S. No. 613 of 2009 and he is the plaintiff in O.S. No. 710 of 2014. The defendant no.
2 to 10 in O.S. No. 613 of 2009 are not the parties to the O.S. No. 710 of 2014. For the sake of convenience the parties are hereinafter referred to as they were arrayed in O.S. No. 613 of 2009, which means B. Reddenna, who is the plaintiff in O.S. No. 613 of 2009 will be referred to as ‘Plaintiff/B.
Reddenna’ and the Thota Swaroop, who is the D-1 in O.S. No. 613/2009 and plaintiff in OS 710/2014 is referred to as ‘defendant no.1/Thota
Swaroop’, and the defendant no. 2 in O.S. No. 613 of 2009 is referred to as ‘defendant no.2/ GPA holder of D-3 to D-10’ and the defendant no. 3 to 10 in O.S. No. 613/2009 are referred to as ‘defendant no. 3 to 10’.
[3]PLEADINGS IN O.S. NO. 613 OF 2009:
This is a suit filed by the plaintiff against the defendants seeking declaratiion that the registered sale deed bearing no. 60 of 2004 dated 2-1- 2004 with the SRO of Uppal, RR District in favour of the defendant no.1, is null and void, and grant the relief of perpetual injunction against the defendants.
[4]CASE OF THE PLAINTIFF/B. REDDENNA:The case of the plaintiff is that the suit property originally belonged to the defendant no. 2 to 10. While so, on 25-4-1986 the defendant no. 3 to 10 have executed a
Common Judgment in OS No. 613-2009 & OS No. 710-20144 registered GPA bearing no. 122/1986 (Ex.A1) in favour of the defendant no.2 in respect of the suit property authorising him to deal with the suit property. The defendant no.2, in the capacity of GPA holder of defendant no. 3 to 10, and on behalf of himself, has sold the suit property to the plaintiff/B. Reddenna for a sum of Rs. 40,480 under a registered sale deed bearing no. 9952/1990 (Ex.A2) on 13-8-1990 and delivered possession of the same to the vendee. Since the date of purchase, the plaintiff/B.Reddenna has been in possession of the suit property, and he also raised compound wall aroung the suit property, erected a gate, and wrote his name on the compound wall.
It is the further case of plaintiff/ B. Reddenna that the defendant no.1/Thota Swaroop filed a suit in O.S. No. 1745 of 2009 on the file of I
Addl. Senior Civil Judge of RR District against the plaintiff/B. Reddenna, and sent by post the pleadings and copies of documents to the plaintiff/B.
Reddenna, who is the sole defendant in OS 1749/2009. After seeing those papers, the plaintiff/ B. Reddenna was given to an understanding that the defendant no.2/ on behalf of himself and in the capacity of GPA holder of
D-3 to D-10, has created a sub-agency in the form of GPA under document no. 82/1987 dated 31-1-1987 (Ex.B2) in favour of one Thota Mallaiah in respect of the suit property, and and that the said Thota Mallaiah, in the capacity of sub-agent of defendant no. 2/GPA holder of D3 to D10, is purported to have executed an unregistered sale agreement (ExB4) on 10-9- 1988 in favour of defendant no.1/Thota Swaroop agreeing to sell the suit property for a sum of Rs. 2,50,500, and purported to have delivered possession of the same to the defendant no.1/Thota Swaroop; and that again
Common Judgment in OS No. 613-2009 & OS No. 710-20145 the defendant no.2, on behalf of himself and in the capacity of GPA of D-3 to D-10 have executed a registered sale deed bearing no. 60/2004 (Ex.B3=Ex.A3) dated 2-1-2004 in favour of D-1/Thota Swaroop for a sum of Rs. 2,50,500 in respect of the suit property.
The contention of the plaintiff is that the action of defendant no.2/the
GPA holder of D-3 to D-10, in creating sub-agency under doc. 82/87 (Ex.B2) in favour of Thota Mallaiah is void, since he being an agent can not appoint sub-agent. The further contention of the plaintiff/B. Reddenna is that the sale deed no. 60/2004 (Ex.A3=Ex.B3) dated 2-1-2004 executed by
D-2/ in the capacity of GPA of defendant no. 3 to 10, in favour of the defendant no.1 is nominal since the defendant no.2/ GPA of D-3 to D10, has already sold the suit property on 13-8-1990 under a registered sale deed no. 9952/90 (Ex.A2) to the plaintiff/B. Reddenna. The defendant no.1/Thota Swaroop did not get title and possession of the suit property under those documents. By so saying theplaintiff /B. Reddenna filed this suit seeking the declaration that the sale deed under doc. 60/2004 (Ex.A3=Ex.B3) in favour of the defendant no.1/Thota Swaroop executed by defendant no.2 to 10 is nominal, and also prayed for perpetual injunction.
[5] CASE OF THE DEFENDANT NO.1: The case of the defendant no.1/Thota Swaroop is that the defendant no. 2 to 10 are the owners of suit property, and that on 31-1-87 they have executed a registered GPA in favour of one Thota Swaroop under document no. 82/1987 (Ex.B2); and that the GPA holder of defendant no. 2 to 10, Thota Mallaiah has executed an agreement of sale (Ex.B4) on 10-9-1988 in favour of defendant no.1/Thota Swaroop, minor by then represented by his mother, Shoba Rani,
Common Judgment in OS No. 613-2009 & OS No. 710-20146 and received a sum of Rs. 2,50,500 as a sale consideration and delivered possession of the suit property to the defendant no.1/Thota Swaroop. But the sale deed could not be obtained due to ban on registration of the land for some time, and it was due to personal inconvenience of GPA holder, Thota
Mallaiah. However, the original owners of suit property, D-2 to D-10 represented by their GPA holder, defendant no.2/Mirja Maseehuddin have come farward and executed a registered sale deed bearing no. 60/2004 (Ex.B3=Ex.A3) dated 2-1-2004 in pursuance of sale agreement, which
GPA holder, Thota Mallaiah has executed on 10-9-1988 (Ex.B4), and fulfilled the formality of registration.
The further case of the defendant/ Thota Swaroop is that ever since the date of sale agreement dated 10-9-1988, the defendant no. 1 has been in possession of the suit property. The defendant no.1/Thota Swaroop obtained construction permission from the L.B. Nagar Municipality under the proceedings no. 3G/BP/273/2006 dated 8-2-2007 and paid a sum of Rs.
39,260 for construction permission and Rs. 5,870 towards development charges, and raised compound wall and put up an iron gate to the property in the month of November, 2007. That when the plaintiff/ B. Reddenna has attempted to interfere with his possession, the defendant no.1/Thota
Swaroop has laid a suit in OS No. 1745/2009 before the I Addl. Senior Civil
Judge, RR District at LB Nagar and got temporary injunction in IA No.
2302 from the District Court and Hon’ble High Court.
The contention of the defendant no. 1/Thota Swaroop is that the sale deed (Ex.A2) dated 18-8-1990 under which the plaintiff/ B. Reddenna purchased, is nominal, since the the suit property was sold to the defendant
Common Judgment in OS No. 613-2009 & OS No. 710-20147 no.1/Thota Swaroop on 10-9-1988 under sale agreement (Ex.B4), and sale deed was executed later on 2-1-2004 in pursuance of sale agreement dated 10-9-1988. Therefore, the plaintiff/B.Reddenna shall be non-suited.
[6]CASE OF THE DEFENDANT NO. 2/MIRZA MASEEHUDDIN
BAIG: This defendant admits that defendant 3 to 10 have execcuted a registered GPA bearing document no. 122/1986 (Ex.A1) in his favor in respect of the suit property, and that he, on behalf of himself and in the capacity of the GPA of defendant no. 3 to 10, has sold the suit property to the plaintiff/B. Reddenna under a registered sale deed bearing no.
9952/1990 (Ex.A2) and delivered possession of the suit property to the plaintiff/B. Reddenna. The further case of this defendant is that the defendant no. 4, one of the principles/owners of the suit property, died on 17-1-1997 and with this the GPA under doc. No. 122/1986 (Ex.A1) has come to an end, and as a result the registered sale deed dated 2-1-2004 under doc. no. 60/2004 (Ex.A3=Ex.B3) which was executed by the defendant no.2, in the capacity of GPA of D-3 to 10, in favour of the defendant no.1 is not valid. By so saying the defendant no.2, GPA holder has prayed to dismiss the suit against him.
[7]ISSUES IN OS NO. 613 OF 2009: This Court has framed the following issues:
ISSUE NO.1: Whether the plaintiff is entitled for declaration of title of the suit property ?
ISSUE NO.2: Whether the sale deed in favour of the defendant no.1 is illegal ?
ISSUE NO.3: Whether the registered sale deed dated 13-8-1990 in favour of the plaintiff is valid ? ISSUE NO.4: To what relief ?
Common Judgment in OS No. 613-2009 & OS No. 710-20148
PLEADINGS IN O.S. NO. 710 OF 2014 ( O.S. NO. 1745 OF 2009 OF I
ADDL. SCJ of L.B. NAGAR) [8]CASE OF THE PLAINTIFF IN O.S. NO. 710 OF 2014:The plaintiff Swaroop herein is the defendant no.1 in the O.S. No. 613 of 2019.
The case of the plaintiff hererin is the same as narrated in para no. 5 hereinbefore. In order to avoid burden to judgment, I refrain to reproduce.
[9]CASE OF THE DEFENDANT IN O.S. NO. 710 OF 2014:The defendant herein is the plaintiff in O.S. No. 613 of 2009. The case of the defendant herein is the same as narrated in para no. 4 hereinbefore. I avoid the repetition.
[10]ISSUES IN O.S. NO. 710 OF 2014 ( O.S. NO. 1745 OF 2009 OF I
ADDL. SCJ of L.B. NAGAR): The learned I Addl. Senior Civil Judge of
RR District, at LB Nagar, has framed the following issues based on the pleadings:
[1] Whether the plaintiff is entitled for perpetual injunction as prayed for ?
[2] To what relief ?
[11] Later, on 12-6-2014, this case was transfered to this Court as per the orders of the Principal District Judge, RR District in Tr.O.P. No. 680 of 2013, and this suit has been re-numbered as O.S. No. 1745 of 2014. Later on 11-8-2016 this Court has ordered to record the common evidence in O.S.
No. 613 of 2009. Accordingly, the parties have led their evidence in O.S.
No. 613 of 2009.
Common Judgment in OS No. 613-2009 & OS No. 710-20149 [12]EVIDENCE OF THE PARTIES: The plaintiff/B. Reddenna has examined himself as PW1 and got marked Ex.A1 to A6. He also examined two more witnesses as PW2 and PW3.
Ex.A1is certified copy of registered GPA no. 122.1986 dated 25-4- 1986 executed by D-3 to D10 in favour of D-2/Mirza
Masheeuddin Baig
Ex.A2is certified copy of sale deed no. 9952/1990 dated 13-8-1990 executed by the D2/Mirza Masheeuddin Baig in the capacity of
GPA of D3 to D10.
Ex.A3is certified copy of sale deed no. 60/2004 dated 2-1-2004 executed the D2/Mirza Masheeuddin Baig in the capacity of
GPA of D3 to D10.
Ex.A4is injunction order of I SCJ/LB nagar in I.A. No. 2302/2009 in
O.S.1745/2009
Ex.A5is encumbrances Certificate showing the entry in respect of
Ex.A2
Ex.A6is market value certificate dated 29-9-2009 of the suit property
On behalf of the defendant no.1 he examined himself as DW1, and got marked Ex.B1 to B6. He also examined three more witnesses on his behalf as Dws 2 to 4.
Ex.B1is unregistered GPA executed by D-1/Thota Swaroop in favour of his brother, Thota Ravindra
Ex.B2is registered Irrevocable GPA bearing no. 82/1987 dated 12-10- 1989 under which sub-agency was created in the name of
Thota Mallaih by D2 to D-10 through their GPA/Defenadant no.2
Ex.B3is certified copy of sale deed no. 60/2004 dated 2-1-2004 executed the D2/Mirza Masheeuddin Baig in the capacity of
GPA of D3 to D10.
Ex.B4is unregistered sale agreement dated 10-9-1988 executed by
Thota Mallaiah, the sub-agent of D2, who is GPA of D3 to D- 10
Common Judgment in OS No. 613-2009 & OS No. 710-201410
Ex.B5is EC showing the entry of Ex.A3
Ex.B6is EC showing nil entries [13]ADMITTED FACTS: The admitted facts are – (1) that the defendant no. 2 to 10 are the owners of the suit property, (2) that defendant no.2 to 10 gave GPA to defendant no.2 under Ex.A1 on 25-4-1986 in respect of the entire extent of Ac. 1-18 Guntas in S.No. 98, and AC. 1-15
Guntas in S.No. 147 of Kothapeta Village, out of which plot no. 28 measuring 253 Sq. yards in S.No. 98 and 147 is the suit property.
[14]ANSWER TO ISSUE NO. 3 IN O.S. NO. 613 OF 2009:
ISSUE NO.3: Whether the registered sale deed dated 13-8-1990 (Ex.A2) in favour of the plaintiff is valid ?
[14.a] VALIDITY OF SALE DEED AS IN EX. A2: In order to prove the title to the suit property the plaintiff/B. Reddenna has to prove that he acquired title to the suit property under Ex.A2, sale deed dated 13-8-1990 from D2 to D10. In order to prove the legal competency of his vendors, the plaintiff/B. Reddenna has filed Ex.A1: registered GPA dated 25-4-1986, under which the defendant no. 3 to 10 have given GPA to D-2 to deal with the suit property. The Ex.A2:sale deed under which the plaintiff/Reddenna purchased the suit property is perfectly valid since it was executed by the rightful owners of the suit property. The defendant no.2 has filed his written statement admitting that he, being GPA holder of D2 to D10 and as a co-owner, had executed Ex. A2: sale deed in favour of the plaintiff /Reddenna. The PW2 deposed that he had attested the Ex.A2 sale deed and his evidence is proving the execution of Ex.A2 by defendant no.2. In view
Common Judgment in OS No. 613-2009 & OS No. 710-201411 of admission of defendant no.2 in his written statement as to execution of
Ex A2, and in view of suporting evidence of attester/PW2, I hold that the plaintiff /Reddenna has proved the contents of Ex.A2.
[14.b] Defendant no.2 in his written statement has categorically stated that the sale deed in favour of defendant no.1/Thota Swaroop as in Ex.A3 is not valid for the reason that the defendant no.4, one of the executants of
Ex.A1/GPA, was dead by the date of Ex.A3. DW1/Thota Ravinder, the
GPA of D1, in his cross examination admits that some of the original owners, who gave GPA in favour Masihuddin, died. Sec. 209 of The Indian
Contract Act, 1882 provides that the death of the principal terminates the contract automatically. In view of death of the defendant no.4, the agency created as in Ex.A1 has come to an end, and as a consequence sale deed as in Ex.A3 can be said to have been executed without any authority. PW3 is one of the plot owners of the suit locality, and he deposed that the plaintiff /Reddenna purchased the suit plot and he used to visit the suit property now and then and that he also constructed a compound wall around the suit property. His evidence is lending support to the evidence of plaintiff/Reddenna, and proving that the Ex.A2 is true, valid and acted upon.
For the above discussions I hold that the Ex.A2: sale deed in favour of
the plaintiff is true and valid. The recitals in Ex.A2 is proving the title
and possession of the plaintiff/Reddanna over the suit property.
[14.c] As against this the defendant no.1/Thopta Swaroop contends that that D2, as a GPA of D3 to D10, has created sub-agency in favour of Thota
Mallaiah under Ex. B2 on 31-1-1987; and that in pursuance of Ex.B2,
Thota Mallaiah has executed a sale agreement on 10-9-1988 as in Ex.B4 by
Common Judgment in OS No. 613-2009 & OS No. 710-201412 receiving total sale consideration of Rs. 2,50,000 and delivered possession of the suit property to the defendant no.1; and that later, the principal owners of property i.e., the D2 to D10 have themselves come farward and executed a registered sale deed as in Ex.B3 on 2-1-2004 in his favour in pursuance of sale agreement under Ex.B4. Under the given situation, a confrontation arises between the Ex.A2 and Ex.B3 as to which of the two is earlier.
[14.d] For the sake of quick glance and better comprehension, I may present the documents relied on by the parties, by year-wise as under:
(1) 25-04-1986 - Ex. A1: GPA under which D-3 to D-10 have given
GPA to D-2 (2) 31-01-1987 - Ex. B2: D2 has created sub-agency in favour of
Thota Mallaiah (3) 10-09-1988 - Ex. B4: Thota Mallaiah, sub-agent of D-2/GPA, executed an un-registered sale deed in favour D- 1/Thota Swaroop for sale consideration of Rs.
2,50,500/- and delivered possession of suit property.
(4) 13-08-1990 - Ex. A2: D2 to D10 through GPA/D2 have executed sale deed in favour of B.Reddenna for sale consideration of Rs. 40,480 and delivered possession of suit property.
(5) 02-01-2004 -Ex. A3=Ex.B3: D2 to D10 through GPA/D2 have executed sale deed in favour of D1/Thota
Swaroop for a sum of Rs. 2,50,500 and delivered possession of the suit property.
[14.e] VALIDITY OF SUB-AGENCY UNDER EX. B2: Ex.A1, under which the D-3 to D-10 have given GPA to D-2, a co-owner, is not under
Common Judgment in OS No. 613-2009 & OS No. 710-201413 dispute. The plaintiff/Reddenna would contend that Ex.B2: GPA under which sub-agency was created in the name of Thota Mallaiah is illegal, since Ex. A1 does not confer any power on GPA/D-2 to create sub-agency.
I have perused the contents of Ex.A1: GPA executed by D3 to D10 in favour of D2, a co-owner. The learned counsel for the D1/Thota Swaroop has invited the attention of the Court to page no. 4 at para no. 3 which is extracted as under:
“... That our said attorney is authorised to appoint pairokars, vakils or advocates if necessary and to file petitions, affidavitrs, revisions etc., in a
Court of law if necessary for carrying out the purpose of appointment hereby made”
The Learned Counsel for the defendant no.1 would contend that the word
Pairokar means a GPA. The Learned Counsel for the plaintiff would comment piercingly that Pairokar means a lobbyist, or a broker, or facilitator, who gets the things done in public offices by illegal means. I have searched for the meaning of word ‘Pairokar’ in Google internet and it is found that in Hindi language ‘Pairokar’ means a lobbyist, and in Urdu language ‘Pairokar’ means a ‘Lawyer’. Thota Mallaiah, the sub-agent, gave evidence as DW2 and his evidence is that the D3 to D10 have given
GPA to D2 under Ex.A1, and that the D2, by virtue of his powers under
Ex.A1, has created sub-agency in his favour under Ex.B2. DW2 is a retired
Junior Civil Judge as revealed by him in his cross examination. In the course of his cross examination he has explained that the clause at paragraph no.3 at page no. 4 of Ex.A1 is the source of power for D2 to execute Ex. B2 in his favour. I have already discussed in this paragraph that
Common Judgment in OS No. 613-2009 & OS No. 710-201414 the word ‘pairokars’ is not an agent or sub-agent, but he is a either ‘lobbyist’ or ‘lawyer’.
[14.f] Sec. 190 of Indian Contract Act, 1882 provides as - “An agent cannot lawfully employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may, or, from the nature of the agency, a sub-agent must, be employed." In the case on hand the suit property is a vacant open house plot, and it does not require the services of sub-agent for its maintenance. Thota Mallaiah, the sub-agent, was working in Judicial
Department, and as such one can not expect a Judicial employee can manage the property. The D-2/GPA holder, had no justifiable reason to appoint Thota Mallaiah as a sub-agent to manage the suit property. An
Agent, even in the absence of express authority in the contract, can not appoint sub-agent, but he can do so when the trade custom permits or when the services of sub-agent are indispensable. In the case on hand no justifying reasons are given by GPA/D2 in Ex.B2 to appoint Thota Mallaiah as a sub-agent. The Division Bencch of Hon’ble AP High Court in Ahmed
Bin Syeed and Others Vs. Kamala Bai and Others, 2015 (1) ALT 236
(D.B.) has held that GPA holder in whom confidence is reposed by executants of the GPA has no power to re-delegate the power given to him.
In view of this citation, the Ex.B2 is legally not valid, and by doing this act the GPA as in Ex.A1 comes to an end. As per Sec. 202 of Contract Act, provides that where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. In the
Common Judgment in OS No. 613-2009 & OS No. 710-201415 case on hand no consideration was paid by Thota Mallaiah and no interest in the suit property was created to him under Ex.B2 [14.g] The learned counsel for the D-1/Thota Swaroop took me to the orders passed by the Hon’ble High Court in C.R.P. No. 643/2011 which was preferred against the orders in I.A. No. 2302/2009 in O.S. No. 1745 of 2009 of I Addl. Senior Civil Judge, LB Nagar. The said Civil Revision
Petition was disposed of with an observation that the sale deed as in Ex.A2 in favour of the plaintiff /Reddenna, without cancelling the the GPA as in
Ex.B2 in favour of Thota Mallaiah, which was executed by the original owners, i.e., D 2 to D10, is not valid. With respect to the Hon’ble High
Court, I humbly opine that the Division Bench judgment of Hon’ble AP
High Court in Ahmed Bin Syeed and Others Vs. Kamala Bai and Others, 2015 (1) ALT 236 (D.B.) holds that creation of sub-agency by GPA without consent of principal is void. When Ex.B2 is steriled on the provisions of
Section 190 of Indian Contract Act and the principle of law in Ahmed Bin
Syeed (referred to above) of Division Bench Judgment Ex.B2 becomes invalid document. From the above discussions, I hold that the Ex.A1
does not confer any powers on D2/GPA holder of D3 to D10 to create
sub-agency in respect of the suit property, and as such creation of sub-
agency under Ex.B2 in favour of the Thota Mallaiah is not valid.
[14.h] VALIDITY OF SALE AGREEMENT OF SALE UNDER
EX.B4: Even assuming that Ex.B2, sub-agency in favour of Thota Mallaiah is taken as legally valid, now let me proceed to examine whether the facts and circumstances surrounding to the Ex.B4: un-registered sale agreement
dated 10-9-1988 purported to have been executed by Thota Mallaiah in
Common Judgment in OS No. 613-2009 & OS No. 710-201416 favour of D1/Thota Swaroop, is true and genuine, or it was fabricated.
Defendant no.1 did not choose to enter into witness box, and he gave evidence through his brother, Thota Ravinder (DW1). In order to prove the
Ex.B4, the D1/Thota Swaroop has examined the DW2/Thota Mallaiah, the executant of Ex.B4, DW3/Thota Shobha Rani, the mother of D1, and
DW4/R. Satyanarayana, the attester of Ex.B4. The DW2 is the father and the DW3 is the mother of D1/Thota Swaroop. As on 10-9-1988 the D1 was a minor and his mother, Shobha Rani (DW3) representing the him has entered into Ex.B4 with her husband (DW2). The DW2/Thota Mallaiah has executed Ex.B4 in favour of his minor son, Thota Swaroop being represented by his mother, Shobha Rani. The transaction covered by the
Ex.B4 is purely among the family members. The Ex.B4 reads that Thota
Shobha Rani, the mother and natural guardian of minor-purchaser, has paid a sum of Rs.2,50,500 towards the sale price and took delivery of possession of suit property under Ex.B4. Thota Shobha Rani as DW3 testified that she paid sale consideration of Rs. 2,50,500 by taking from his father. The value of suit property as in mentioned Ex.B4 is Rs. 2,50,500 as on 10-9-1988; whereas value of suit property as mentioned in Ex.A2: sale deed as on 13-8-1990 is only Rs. 40,480. When the value of the property was Rs.
40,480 as on 13-8-1990, the taking of sale agreement for Rs.2,50,500 on 10- 9-1988 for abnormally high value is an indication that Ex.B4 was fabricated with an intention to match the sale consideration amount with the sale consideration mentioned in Ex.B3: sale deed where the value is mentioned as Rs. 2,50,500. I am constrained to hold that Ex.B4 was fabricated with an intention to make it compatiable with the Ex.B3/sale deed in which the
Common Judgment in OS No. 613-2009 & OS No. 710-201417 value of property is mentioned as Rs. 2,50,500. If at all D1/Thota Swaroop has purchased the suit property under Ex.B3, in pursuance of sale agreement as in Ex.B4, naturally there should have been a mention in Ex.B3 about Ex.B4. This is a strong circumstance to hold that the Ex. B3 and Ex.
B4 have no nexus with each other. The recitals in both the Ex.B4/sale agreement and the Ex.B3/sale deed are not compatiable and rather they are inconsistent with each other. There is a mention in Ex.B4 that the property was delivered and sale consideration was paid under it on 10-9-1988 itself, and there is a similar mention in Ex.B3 that the delivery of property was effected and sale consideration was paid on 2-1-2004. These two documents are inconsistent as to the date of delivery of possession and payment of consideration by the D1/Thota Swaroop. In order connect the
Ex.B2 to Ex.B4, the learned counsel for the D1/Thota Swaroop has filed a citation in Koka Jagannadha Rao Vs. Pillarisetti Raghava Rao, LAWS (APH) 1963 48 to canvass the legal proposition that the transaction of sale would take its effect from the date of its execution, but not the date of registration. In the reported case the document executed on earlier date was sale deed and the same document was presented for registration. But in the case on hand the document executed earlier and the document presented registration are different, and further the earlier sale agreement (Ex.B4) was not referred to in the sale deed (Ex.B3). It is for this reason I hold that the
Ex.B4 can not be read in conjoint with the Ex.B3. Section 47 of the
Registration Act provides that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.
Common Judgment in OS No. 613-2009 & OS No. 710-201418
The Apex Court in Ram Saran Lall And Others Vs. Mst. Domini Kuer
And Others, 1961 AIR 1747 held that under Section 47 of Registration
Act, the crucial test for determining the time from which the registered document was to have effect or be deemed to be completed, was the intention of the parties.
[14.i] In the case on hand the recitals of the Ex.B3/sale deed dated 2-1- 2004 shows that the parties intended that the deed should be effective from the date of execution but not from the date of Ex.B4/sale agreement dated 10-9-1988. It is the case of the D1/Thota Swaroop that consideration was paid and possession was taken under Ex.B4 on 10-9-1988, and that sale deed under Ex.B3 was taken as a legal formality at later date. But this version is not found in the recitals of the Ex.B3. On any event Ex.B4 is a fabricated one. Further, Ex.B4 has not seen the light of the day after its execution. If at all it was in existence, he would have filed suit for specific performance from 10-9-1988, or he would have produced before the GHMC
Authorities to seek construction permission. The long silence on the part of the D1/Thota Swaroop in not taking sale deed in pursuance of Ex.B4, would throw a light of suspecion on it. The reason offered by the D1/Thota
Swaroop for not taking sale deed is that there was a ban on registration in respect of the suit property, but no piece of document is filed in this regard.
Another reason for non-registration as offered by D1/Thota Swaroop is that because of busy of the GPA/Thota Mallaiah with his employment and frequent transfers from the date of Ex.B4, the sale deed could not be taken.
These reasons are not satisfactory since those are not proximate to the
Common Judgment in OS No. 613-2009 & OS No. 710-201419 reality. For the above reasons I hold that Ex.B4 is a fabricated document, and that Ex.B4 was not executed as on 10-09-1998.
[14.j]VALIDITY OF SALE DEED UNDER EX.A3 (=EX.B3):
The case of D1/Swaroop is that he took possession of the suit property and paid entire sale consideration to his vendor, Thota Mallaiah, the sub-agent, on 10-9-1988 under Ex. B4/sale agreement, and later he took registered sale deed as in Ex.B3 on 2-1-2004 from the D2 to D10, the original owners of suit property. The plea of D1/Thota Swaroop that he took possession of the property on 10-9-1988 under Ex.B4 is contrary to the recital of Ex.B3:
registered sale deed, which reveal that the possession was delivered on 2/1/2004. The D-1/Thota Swaroop is prohibited to plead contrary to his own registered sale deed as in Ex.B3, since it is impermissible U/Sec. 91 of The Indian Evidence Act, which says that the party to a registered document shall not plead contrary to the recital therein. Hence the
D1/Thota Swaroop is not permitted to rely on Ex.B4/sale agreement to compute his possession over the suit property from 10-9-1998. In veiew of it it must be taken that the D1/Thota Swaroop has taken possession of the property only on 2-1-2004, and by such date the original owners of the suit property i.e., the D3 to D10 being represented by GPA/D2, who is a co- owner of suit property, have executed the sale deed as in Ex.A2 in favour of the plaintiff on 13-8-1990 and parted with the suit property. Hence the sale of the same property on later date on 2-1-2004 under Ex.B3, can not convey any title to the purchaser, and that the sale deed of D1/Thota Swaroop is a nominal one. Further as revealed by the D-2 in his written statement that the D-7 died on 17-1-1997. But the D-2 has executed Ex.3 sale deed in
Common Judgment in OS No. 613-2009 & OS No. 710-201420 favour of the D1/Thota Swaroop representing the dead person. It is settled law that with the death of the principal, the GPA will automatically terminate unless the legal heirs execute a fresh one in the place of earlier one. In the case on hand upon the death of D-4, his legal representatives will succeed his interest in the suit property. But the legal representatives did not join in execution of Ex.A3: sale deed in favour of the D1/Thota
Swaroop. It is for this reason I hold that the sale deed as in Ex.A3 in
favour of D1/Thota Swaroop is a nominal one, and further it is not valid
for not taking the concurrence of LRs of D-4 in execution of Ex. A3.
[15] For the above discussions, I hold that the sale deed in favour of the plaintiff as in Ex.A2 is true, valid and binding on the defendants, and as such this issue no.3 is answered in favour of the plaintiff/Reddenna and against the D1/Thota Swaroop and D2 to D4.
[16] ANSWER TO ISSUE NO. 1 IN OS NO. 613 0F 2009:
ISSUE NO.1: Whether the plaintiff is entitled for declaration of title of the suit property ?
While answeing the issue no. 3 at para no. [14.a] and [14.b] of this judgment I have held that the sale in favour of the plaintiff/Reddenna is true and valid, and that the plaintiff has acquired title to and possession over the suit property. The original owners of suit property i.e., D-3 to D-10 have given GPA under Ex.A1 on 25-4-1986 to their co-owner (D-2), and such authority for D2 continued till he sold the suit property to the plaintiff under Ex. A2 on 13-8-1990. The creation of sub-agency under Ex.B2 on 31-1-1987 by D2/GPA holder of D3 to D10, is legally not valid as held by me at para [14.f] while answering the issue no.3. I have also held that the
Common Judgment in OS No. 613-2009 & OS No. 710-201421
Ex.B4: unregistered sale deed in favour of the D1/Thota Swaroop is a fabricated one, and that the Ex.A3=Ex.B3 sale deed in favour of the
D1/Thota Mallaiah is a nominal since the suit property was already sold by the D2 to D10 to plaintiff/Reddenna under Ex.A2, while answering issue no. 3 at para [14.h] and [14.i]. For the above reasons I hold that the
plaintiff has acquired valid legal title to the suit property, and thus this
issue no. 1 is answered in favour of the plaintiff/Reddenna and against
the defendant no. 1 to 10.
[17] ANSWER TO ISSUE NO. 2 IN OS NO. 613 0F 2009:
ISSUE NO.2: Whether the sale deed in favour of the defendant no.1 is illegal ?
While answering the issue no.3, I have discussed this issue at para [14.i and j] the validity of Ex.A3 in favour of the D1/Thota Swaroop and held that it is nominal and that it was executed by the D2 to D10 after parting with the suit property to the plaintiff/Reddenna U/Ex.A2. This issue no. 2 is
answered in favour of the plaintiff and against the defendant no. 1 to
10.
[18]ANSWER TO THE ISSUE NO.4 IN O.S. NO. 613 OF 2009:
ISSUE NO.4: To what relief ?
In view of my answers in respect of the issue no. 1 to 3, the plaintiff is declared as owner of the suit property, and consequently perpetual injunction is granted in favour of the plaintiff and aganist the defendants no. 1 to 10 restraining their men and agents from interfering with the possession of the suit property over the suit property. The defendants shall also pay the costs to the plaintiff.
Common Judgment in OS No. 613-2009 & OS No. 710-201422 [19] ANSWER TO ISSUE NO. 1 IN O.S. NO. 710 OF 2014:
ISSUE NO. 1: Whether the plaintiff is entitled for perpetual injunction as prayed for ?
The D-1 in OS No. 613 of 2009 is the plaintiff herein. While answering the issues in O.S. No. 613 of 2009, this issue has been discussed and decided in para [14.j] holding that the sale deed as in Ex.B3=A3 is nominal one and that it does not convey any rights to its purchaser.
Therefore, I answer this issue against the plaintiff herein Thota Swaroop, who is the D1 in OS No. 613 of 2009, and in favour of the defendant/Reddenna in OS 710 of 2014 herein, who is the plaintiff in OS
No. 613 of 2009.
[20]ANSWER TO ISSUE NO. 2 IN OS NO. 710 OF 2014:
In view of my finding in respect of issne no.1 in O.S.No.710/2014, the suit of Thota Swaroopa plaintiff in OS 710 of 2014 is hereby dismissed with the costs of other side.
Typed by me and pronounced by me in the Open Court on this Tuesday, the Twenty Third day of April, Two Thousand Nineteen
V ADDITIONAL DISTRICT & SESSIONS JUDGE
RANGAREDDY DISTRICT AT LB NAGAR
APPENDIX OF EVIDENCE
WITESSES EXAMINED
On behalf of the Plaintiff/s:
PW1 B. Reddenna
PW2 A.Madhavreddy
PW3 M.V.Rama Rao
On behalf of the Defendant/s:
DW1 T.Ravindra
Common Judgment in OS No. 613-2009 & OS No. 710-201423
DW2 T.Mallaiah
DW3 T.Shoba Rani
DW4 R.Satyanarayana
EXHIBITS MARKED
On behalf of the Plaintiff/s:
Ex.A1Certified copy of registered GPA no. 122.1986 dated 25-4- 1986 executed by D-3 to D10 in favour of D-2/Mirza
Masheeuddin Baig
Ex.A2Certified copy of sale deed no. 9952/1990 dated 13-8-1990 executed by the D2/Mirza Masheeuddin Baig in the capacity of
GPA of D3 to D10.
Ex.A3Certified copy of sale deed no. 60/2004 dated 2-1-2004 executed the D2/Mirza Masheeuddin Baig in the capacity of
GPA of D3 to D10.
Ex.A4Injunction order of I SCJ/LB nagar in I.A. No. 2302/2009 in
O.S.1745/2009
Ex.A5Encumbrances Certificate showing the entry in respect of
Ex.A2
Ex.A6Market value certificate dated 29-9-2009 of the suit property
On behalf of the Defendant/s:
Ex.B1Unregistered GPA executed by D-1/Thota Swaroop in favour of his brother, Thota Ravindra
Ex.B2Registered Irrevocable GPA bearing no. 82/1987 dated 12-10- 1989 under which sub-agency was created in the name of
Thota Mallaih by D2 to D-10 through their GPA/Defenadant no.2
Ex.B3Certified copy of sale deed no. 60/2004 dated 2-1-2004 executed the D2/Mirza Masheeuddin Baig in the capacity of
GPA of D3 to D10.
Ex.B4Unregistered sale agreement dated 10-9-1988 executed by
Thota Mallaiah, the sub-agent of D2, who is GPA of D3 to D- 10
Ex.B5EC showing the entry of Ex.A3
Common Judgment in OS No. 613-2009 & OS No. 710-201424
Ex.B6EC showing nil entries
V ADDITIONAL DISTRICT & SESSIONS JUDGE
RANGAREDDY DISTRICT AT LB NAGAR