THE HONOURABLE JUSTICE G. SRI DEVI
APPEAL SUIT No.432 of 2016
JUDGMENT:
` The unsuccessful plaintiff in Original Suit No.140 of 2008 on the file of the Principal District Judge, Ranga Reddy District at L.B.Nagar (for short, "the trial Court"), preferred this appeal challenging the judgment and decree, dated 28.03.2016, passed in the said O.S.No.140 of 2008, whereby the suit filed by the plaintiff against the defendants seeking the relief of declaration of his title and possession of the suit schedule properties and to declare the document bearing No.13/2004, dated 01.12.2004, as null and void and not binding on him and for permanent injunction, was dismissed.
Appellant herein is the plaintiff and the respondents herein are the defendants before the trial Court. For the sake of convenience, they are referred to as plaintiff and defendants as arrayed in O.S.
The plaintiff filed the above suit against the defendants for the aforesaid reliefs, alleging therein that the 5th defendant is the original owner and possessor of the suit schedule property and the plaintiff had purchased the same from him by way of registered sale deed, dated 29.06.2000. The plaintiff learnt that the 1st defendant filed O.S.No.5640 of 2001 against the 5th defendant before the II Junior Civil Judge, Hyderabad, for recovery of money and obtained a decree, later initiated execution proceedings in E.P.No.210 of 2003 and on the basis of false and fabricated encumbrance certificate and 2 false affidavit, got attached the suit schedule property, which was by then in the name of the 5th defendant in the revenue records, though the sale deed was executed in favour of the plaintiff. The 1st defendant seems to have brought schedule property for auction in those E.P. proceedings by playing fraud on the Court and without knowledge of the plaintiff. It is further mentioned in the plaint that the plaintiff borrowed money from one P.Prema Latha, who filed a suit in O.S.No.329 of 2007 on the file of the Additional Junior Civil Judge, Ranga Reddy District at L.B.Nagar, for recovery of money and obtained attachment of suit schedule property before judgment in I.A.No.357 of 2007, wherein the 3rd defendant got impleaded himself by claiming that he purchased the said property from the 2nd defendant, who claims to have purchased the same in auction conducted in E.P.No.210 of 2003 in O.S.No.5640 of 2001 and obtained the sale deed vide document bearing No.1760/2005, dated 21.03.2005 and later the sale certificate was issued in his favour. It is also mentioned that the defendants played fraud not only on Court but also on the plaintiff by taking advantage of illegal, improper and fraudulent encumbrance certificate without showing the registered sale transaction between the plaintiff and the 5th defendant vide document No.4734/2000, dated 28.06.2000 and that the 3rd defendant on the basis of the sale deed obtained from the 2nd defendant, tried to interfere with the possession and enjoyment of the plaintiff over the suit schedule property. The plaintiff obtained permission from 3 the Gram Panchayat, Munaganoor Village vide G.P.No.M/01/2007, dated 01.03.2007 and while the plaintiff was making construction, the 3rd defendant tried to cause interference on 11.02.2008, but he was resisted by the plaintiff. The plaintiff came to know about the sale certificate issued in favour of the 1st and 2nd defendants and subsequent sale deed obtained by the 3rd defendant only when the 3rd defendant filed implead petition in O.S.No.329 of 2007, which was filed on 07.03.2007. Since the plaintiff is the lawful owner and possessor of schedule property, the proceedings in E.P.No.210 of 2003 in O.S.No.5640 of 2001 and consequent sale of the property and sale certificate obtained by the 2nd defendant and subsequent sale deed executed by him in favour of the 3rd defendant, are not binding on the plaintiff.
Defendants 2 and 5 remained ex parte.
Defendants 1, 3 and 4 alone contested the suit. The sum and substance of the written statement filed by defendants 1 and 3 is that the claim of the plaintiff that he is absolute owner and possessor of schedule mentioned properties are all false. The plaintiff filed the present suit in collusion with 5th defendant. The suit in O.S. No.329 of 2007 on the file of Additional Junior Civil Judge, R.R. District at L.B.Nagar against the plaintiff by Prema Latha and obtaining of attachment before Judgment in I.A.No.357/2007 are all collusive in nature. When the 3rd defendant filed a petition to implead him in the said suit, the plaintiff therein, Smt. Prem Latha, withdrew it on 4 04.03.2008. It is further submitted that defendants 1 and 5 are the employees in City Civil Court, Hyderabad. 5th defendant was working in Nazarath Section and he conducted private chits. 1st defendant has subscribed five chits and paid a total sum of Rs.4.00 lakhs and when the same was not paid to the 1st defendant, she filed a complaint before the Mirchowk Police Station, for the offence punishable under Section 420 of I.P.C. Basing on the said complaint, Police, Mirchowk registered a case in Cr.No.91 of 2000 and on that 5th defendant filed W.P.No.14674/2001 before this Court and the same was dismissed on 16.06.2005. The 1st defendant also lodged a complaint against the 5th defendant with Chief Judge, City Civil Court, Hyderabad and after thorough enquiry, 5th defendant was removed from service by the Chief Judge, City Civil Court, Hyderabad vide orders, dated 18.02.2003. Against the said removal orders, 5th defendant filed Administrative Appeal before the Registrar (Administration), High Court of Andhra Pradesh and the same was dismissed confirming the orders of the Chief Judge, City Civil Court, Hyderabad. Against the orders passed in the Administrative Appeal, 5th defendant filed W.P. No.2740 of 2007 before the High Court and the same was dismissed for default on 26.03.2008. The advocate, who appeared for the plaintiff, has appeared for 5th defendant in W.P. No.2740 of 2007. The claim of the plaintiff that he purchased the schedule of property from the 5th defendant for valid consideration and possession was also delivered 5 to him and consequently after obtaining due permission from the Gram Panchayath started construction, but he was interfered by the 3rd defendant are all false. When the plaintiff was not in possession of the property, the question of causing interference with his alleged possession by the 3rd defendant does not arise.
The 3rd defendant further pleaded in the written statement that he learnt about the filling of the suit against the 1st defendant by the 5th defendant and obtaining decree and execution proceedings in E.P. No.210 of 2003 on the file of Junior Civil Judge, East and North Court, R.R. District. The suit in O.S.No.329 of 2007 is collusive one and by suppressing the actual facts, the plaintiff got attached the properties before judgment in I.A.No.347 of 2007 and the said suit was subsequently withdrawn on 04.03.2008. The 3rd defendant having purchased the property for a value from the 2nd defendant got impleaded in the suit in O.S. No.329 of 2007 filed against the plaintiff. The alleged permission, dated 01.03.2007 filed by the plaintiff is a created one. The 3rd defendant has purchased the schedule property by registered sale deed bearing document No.1760 of 2005, dated 21.03.2005 for a valid consideration. The 2nd defendant got certificate of sale, dated 08.10.2004 under Order XXI Rule 94 of CPC in E.P. No.210 of 2003 in O.S. No.5640 of 2001 from Principal Junior Civil Judge Court, Hyderabad East and North, R.R. District as he has participated in the auction and he was declared as purchaser of the above said E.P. Schedule property. The plaintiff 6 and Vongeti Praveen Kumar Reddy are in no way concerned with the schedule property, which is in the possession of the 3rd defendant but they are frequently trying to occupy and grab it. Hence, the 3rd defendant filed O.S. No. 124 of 2008 on the file of Principal Senior Civil Judge Court, Ranga Reddy district at L.B. Nagar. The plaintiff and his henchmen came to the suit schedule property on 20.01.2008 and removed one of the pillars erected and again on 26.01.2008 the plaintiff came to the suit schedule property with his men and tried to remove another stone pillar, but it was successfully resisted by the 3rd defendant with the help of his family members and friends. On 27.01.2008 one Vongeti Praveen Kumar Reddy with the help of his men tried to dig some ditches in the schedule property on the North East corner in order to install a new stone pillar, but it was resisted by the 3rd defendant along with his family members. The 3rd defendant approached the Police, who advised him to approach Civil Court. Hence, he filed a suit in O.S. No.124 of 2008 on the file of Principal Senior Civil Judge, Ranga Reddy district at L.B. Nagar. It is the 3rd defendant, who raised the fencing with some pillars around the suit schedule land and in fact part of the land was gifted to his wife and son. The plaintiff filed the present suit only to harass the 3rd defendant and to forcibly occupy the schedule land in order to extract money. The plaintiff has no title or possession over the suit schedule property and as such the suit is devoid of cause of action and hence it is liable to be dismissed. 7
The 4th defendant filed a written statement denying the plaint averments. He took a plea that the dispute is between the plaintiff and defendants 1 to 3 and 5 and the 4th defendant is in no way concerned to the proceedings and as such the suit is liable to be dismissed against the 4th defendant.
On the basis of the aforesaid pleadings, the trial court framed the following issues-
1. Whether the plaintiff is absolute owner and possessor of the suit schedule property?
2. Whether the plaintiff is entitled for the declaration of title over the suit schedule property?
3. Whether certificate sale, dated: 08.09.2004 binds the plaintiff or not in respect of schedule of property?
4. Whether the suit is liable for dismissal with exemplary costs?
5. To what relief?
During trial, on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 to A6 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B6 were marked.
The trial Court, on careful consideration of the rival contentions and also the entire material available on record, dismissed the suit. Against the said judgment and decree, the plaintiff filed the present appeal.
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Heard learned Counsel for the appellant, learned Counsel appearing for the 3rd respondent and perused the record.
Learned Counsel for the appellant/plaintiff would submit that the Court below has come to an erroneous conclusion ignoring the settled proposition of law and misdirected itself by relying upon the false and baseless concocted facts. The Court below has completely lost its sight insofar as the right of the plaintiff on the schedule property and came to a wrong conclusion that the plaintiff and the 5th defendant in the suit are colluded with each other and, therefore, it cannot be said that the auction sale as well as the consequential documents are null and void. The findings of the Court below in respect of issue Nos. 1 and 2 are absolutely irrelevant and based on non-application of mind for the following reasons:-
(i) That the 5th defendant in the suit has sold the schedule property to the plaintiff by a registered sale deed bearing document No. 4734/2000 dated 29/06/2000. The plaintiff has become the absolute owner and peaceful possessor since 29/06/2000 in the Schedule Property. The 5th defendant was seized to be the owner of the schedule property from 29/06/2000. The 1st defendant has filed the suit O.S.No.5640 of 2001 against the 5th defendant for recovery of money in the year 2001. It is crystal clear that the 5th defendant was not at all the owner of the schedule property on the date of the filing of the suit against him and as such the schedule property belongs to the plaintiff and there is no cloud in the title of the plaintiff.
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(ii) That the Court below ignored the fact that the schedule property was attached in the E.P. filed by the 1st defendant pursuant to the decree passed in O.S.No. 5640 of 2001 treating the schedule property was in the name of the 5th defendant on the basis of a forged created hand written encumbrance certificate in the name of 5th defendant. In fact by that time, the plaintiff was the absolute owner and possessor of the schedule property and not the 5th defendant. Therefore, it is hit by Order XXI Rule 54 of C.P.C. In the instant case, the property of the third party was attached. There was no application of mind by the Court below and the Court below has attached the plaintiff's property assuming that the property is belonged to the 5th defendant and put into auction sale for the satisfaction of the decree without following due procedure of law. As such the finding of the trial Court is absolutely based on conjectures and surmises and against the known principle of law, which cannot be sustained as no property other than the property of the judgement debtor can be attached for any purpose. The Court below has committed a serious error in examining the facts and circumstance of the case and narrowed down to a wrong conclusion, which calls for the interference of this Court.
(iii) That the Court below has also given a wrong conclusion while deciding issue No.3. There is no pleading with regard to the fraud between the 5th defendant and the 1st defendant, it is nothing but an imagination without any substantive material before the Court below to come to such conclusion. The transaction between the 5th defendant and the plaintiff 10 is over in the year 2000 by virtue of the sale deed between them i.e., much prior to filing of the suit O.S.No.5640 of 2001, as such the findings are incorrect and based on assumptions and presumptions. Ex.A1- Registered Sale Deed between the 5th defendant and the plaintiff clearly establish the title and possession of the plaintiff, therefore, it cannot be ignored in any circumstances unless it is declared illegal by operation of law. The right, title and interest coupled with possession still remain with the plaintiff and the transaction arises pursuant to the decree in O.S.No.5640 of 2001, E.P.No. 210 of 2003 is void ab initio. The attachment is made on the basis of a false and fabricated encumbrance certificate and as such the finding of the Court below is based on baseless reasons which need to be examined by this Court in right perspective keeping in view of Order XXI Rule 54 of C.P.C.
(iv) Without any basis, the Court below has also come to a wrong conclusion that the plaintiff was not in possession of the schedule property. The inference drawn by the Court below is based on non-appreciation of documents filed by the plaintiff such as Exs.A1 to A5 and more particularly Exs.A1 to A-4 established the ownership and possession of the plaintiff.
It is further submitted that the finding of the trail court with regard to ownership and possession of the plaintiff is absolutely without any basis and, therefore, prayed to set aside the judgment and decree of the trial Court.
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Learned Counsel for the 3rd defendant would submit that Executing Court followed due process of law by paper publication for auction/sale of suit schedule property and the 2nd defendant was declared as successful bidder in the said auction and as such the Executing Court executed sale certificate bearing registered document No:13/2004 dated 01.12.2004 in favour of the 2nd defendant in respect to the suit schedule property. The Court officials followed the sale process, conducted the panchanama, fixed the boundaries and delivered the physical possession of the suit schedule property in favour of the 2nd defendant and after having possession over the suit schedule property, the 2nd defendant enjoyed the same as absolute owner and later, he sold away the suit schedule property to the 3rd defendant by receiving sale consideration and executed registered sale deed bearing document No.1706/2005 dated 21.3.2005. It is further submitted that the plaint contents are silent about the cause of action and the knowledge of existence of the Court sale certificate dated 18.09.2004 and also the sale deed bearing document No.13/2004 dated 01.12.2004. It is further submitted that the suit filed by the appellant/plaintiff is barred by limitation. It is also submitted that the sale deed dated 29.06.2000 executed by defendant No.5 in favour of the appellant/plaintiff is totally a fraudulent transfer only to deceive the borrowers, as defendant No.5 was entitled to pay huge amount to defendant No.1.
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The case of the appellant/plaintiff is that he purchased the suit schedule property from the 5th defendant through Ex.A1, dated 28.06.2000. Admittedly, the 1st defendant lodged a complaint against the 5th defendant stating that the 5th defendant duped her by way of conducting chits. The record further discloses that on 30.06.2000, the wife of the 5th defendant filed I.P.No.14 of 2000. From the above, it is clear that two days prior to filing of the said I.P., the 5th defendant, with a mala fide intention to dupe his creditors and to avoid legal consequences, executed the sale deed in favour of the plaintiff, who is none other than his close relative. Admittedly, though the plaintiff obtained registered sale deed in the year 2000, no possession was delivered to him and that he has not taken any steps to mutate the same till filing of the suit and in this regard, there was no proper explanation from the plaintiff.
The record further discloses that the 5th defendant used to run private monthly chit business and the 1st defendant joined as subscriber in five chits totalling Rs.4,00,000/- and the 5th defendant did not pay the chit amount after completion of the chit period. Though the 1st defendant made repeated requests to pay the chit amount, but the 5th defendant failed to pay the same. The 1st defendant came to know that the 5th defendant cheated not only her but also several other colleagues, as such, the 1st defendant filed complaint before P.S.Mirchowk, which was registered as a case in Crime No.91 of 2000. Aggrieved by the registration of the said 13 crime, the 5th defendant filed W.P.No.14674 of 2001 before this Court, which was dismissed on 16.06.2005. Further, the 1st defendant also lodged a complaint before the Chief Judge, City Civil Court, Hyderabad, against the 5th defendant. After conducting de novo enquiry, the Chief Judge, City Civil Court, Hyderabad, removed the 5th defendant from service and against the said removal the 5th defendant filed W.P.No.2740 of 2007 before this Court and the same was dismissed. The record further discloses that the advocate, who filed the present suit on behalf of the appellant/plaintiff and the advocate, who filed W.P.No.2740 of 2007 on behalf of the 5th defendant, is one and the same. Hence, the trial Court has rightly held that the plaintiff and the 5th defendant are hand in glove with each other and brought into existence the Ex.A1-sale deed in order to keep away from the proceedings that were likely to be initiated against the 5th defendant.
Further, as seen from the material available on record, the 1st defendant filed O.S.No.5640 of 2001 against the 5th defendant for recovery of money and the same has been decreed. For execution of the decree, the 1st defendant filed E.P.No.210 of 2003 and brought the suit schedule property into auction. The 2nd defendant was the auction purchaser. After obtaining the Sale Certificate from the Executing Court, the 2nd defendant sold away the suit schedule property in favour of the 3rd defendant and executed the registered sale deed, dated 21.03.2005, which was marked as Ex.B5. 14
Further in the cross-examination, the plaintiff admitted that the 3rd defendant filed O.S.No.124 of 2008 against the plaintiff and another and the plaintiff had contested the said suit, but there was no explanation from the plaintiff as to why he filed a separate suit subsequent to the suit filed by the 3rd defendant for the same property though he was contesting the suit filed by the 3rd defendant. The prayer in the present suit is for cancellation of the sale certificate, dated 08.09.2004 issued by the competent civil Court in favour of the 2nd defendant, who was the auction purchaser in E.P.No.210 of 2003. Admittedly, the present suit is filed four years after issuance of the sale certificate, as such, the trial Court has rightly held that the suit is barred by limitation.
The contention of the plaintiff is that the defendants wantonly played fraud not only upon the Court but also on plaintiff taking advantage of illegal, improper and fraudulent encumbrance certificate without showing the registered sale deed transaction, between the plaintiff and the 5th defendant. Order VI Rule 4 of C.P.C. obligates the plaintiff to disclose the particulars of fraud, misrepresentation etc. Mere asserting that Ex.B-5 was obtained by playing fraud or deception is not useful to the plaintiff as there is no factual foundation in the pleadings and supported by any evidence.
Further, the 5th defendant from whom the plaintiff said to have purchased the suit schedule property remained ex parte and the 15 plaintiff did not chose to examine him. Further, the plaintiff did not challenge the sale certificate issued in favour of the 2nd defendant by the competent civil Court. The trial Court has rightly held that the sale deed under Ex.A1 by the 5th defendant in favour of the plaintiff is result of fraud and there was no delivery of possession and that the plaintiff without having possession of the property filed the present suit. The judgment of the trial Court is based on sound legal principles and there is no perversity or illegality in the said findings.
In view of the foregoing discussion, I find no ground warranting interference with the findings recorded by the trial Court and the Appeal Suit deserves to be dismissed.
Accordingly, the Appeal Suit is dismissed confirming the judgment and decree dated 28.03.2016 passed in O.S.No.140 of 2008 on the file of the Principal District Judge, Ranga Reddy District at L.B.Nagar. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________ JUSTICE G.SRI DEVI 24.03.2021 gkv/Gsn.