HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.368 of 2015
JUDGMENT :
This Second Appeal is arising out of the judgment and decree dated 20.01.2015 in A.S.No.66 of 2006 on the file of III Additional District Judge (FTC-II) at Khammam which is arising out of the judgment and decree dated 21.09.2015, passed in O.S.No.35 of 1996 on the file of Senior Civil Judge, Sathupalli, Khammam.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court. The appellants are the plaintiffs.
3. Initially, the suit was filed by the plaintiffs against defendant Nos.1 to 11 for partition to divide the suit schedule property into two equal shares and allot one such share to the plaintiff and for grant of future mesne profits, with costs. During the pendency of the suit, the defendant No.8 died and his legal representatives were brought on record as defendant Nos.2 to 14 and later defendant No.11 died and his legal representatives were added as defendant No.15 and 16.
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4. The case of the plaintiff is that in the year, 1965, the plaintiff and his junior paternal uncle by name Dalu Ankalu had purchased dry land to an extent of Ac.3-04 gts jointly from one Kona Veera Raghavulu in Sy.No.199 of Atukuru Village in Madhira Mandal through an agreement of sale dated 30.03.1965 and took possession of the said property. The said Dalu Ankalu, who is the close relative of the plaintiff was not having any issues. The wife of Dalu Ankalu is Pitchamma and they were not having any other properties. The plaintiff agreed with Dalu Ankalu to lease the suit schedule property jointly to others and to receive his share and the same continued till the death of his uncle i.e., Dalu Ankalu till 1968. The plaintiff filed a suit against Dalu Pitchamma vide O.S.No.101 of 1982 on the file of Subordinate Judge's Court, Khammam, for partition as she was not cooperating to get the suit land partitioned. Dalu Pitchamma died in the year 1986 during the pendency of the said suit, the legal heirs of Dalu Pitchamma could not be brought on record and as such, the said suit was dismissed for default on 09.03.1988.
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5. Thereafter, the plaintiff filed a petition to set aside the dismissal order vide I.A.No.388 of 1988 and the same was dismissed, for which the plaintiff was constrained to prefer an appeal before the District Court, Khammam vide CMA.No.42 of 1989. The plaintiff also filed I.A.No.1544 of 1989 in O.S.No.101 of 1982 to bring the legal heirs of Pitchamma on to the record along with condone delay petition under Section 5 of the Limitation Act, 1963. The District Court allowed the petition and the 1st defendant in the suit has preferred revision before the High Court of Andhra Pradesh vide CRP.No.3617 of 1991. Further, the plaintiff filed a petition to review the order in I.A.No.388 of 1988 but O.S.No.101 of 1982 was transferred to Subordinate Judge's Court, Sathupalli and the said three Interlocutory Applications vide I.A.No.683 of 1992, I.A.No.684 of 1992 and I.A.No.685 of 1992 in O.S.No.101 of 1982 were dismissed. Being aggrieved by the same, the plaintiff preferred three revision petitions against the said I.As. before the High Court of Andhra Pradesh vide C.R.P.Nos.255 of 1994, 256 of 1994 and 257 of 1994 and the High Court dismissed all the above three revisions vide common order dated 05.07.1996 4 GAC, J S.A.No.368 of 2015 with an observation that a fresh suit for partition was not barred by res-judicata. Therefore, the plaintiff has filed the present suit for partition which is subject matter of O.S.No.101 of 1982.
6. It is the further case of the plaintiff that the 1st defendant is the distant relative of the deceased Dalu Ankalu and Pitchamma. After the death of the Ankalu in the year 1968, his wife Pitchamma brought the 1st defendant to her house and defendant Nos.2 to 11 are the persons, who have purchased part of the suit schedule property. The 1st defendant and Pitchamma during her lifetime got managed to get their names recorded in the revenue records. Inspite of requesting for amicable settlement, Dalu Pitchamma did not cooperate, therefore, the plaintiff filed suit for partition.
7. A detailed written statement was filed by the 1st defendant denying all the allegations made in the plaint including purchase of the property by the plaintiff and Dalu Ankalu in the year, 1965. It is the specific case of the 1st defendant that after the death of Dalu Ankalu, his wife Pitchamma cultivated the land in her own right which was inherited from her husband and that she was in possession of property till 1970. It is further stated that Dalu 5 GAC, J S.A.No.368 of 2015 Pitchamma brought up her grand daughter and her sister by name Anasuya, who is the 1st defendant and the suit schedule land was orally gifted to the 1st defendant out of love and affection. Further, Pitchamma executed a settlement deed in favour of the 1st defendant on 31.12.1981. The revenue authorities have recognized the rights of the 1st defendant and issued pattadar passbooks in her favour. It is the further case of the 1st defendant that the suit schedule land was purchased by late Dalu Ankalu in the year, 1964 and he executed agreement of sale after receiving consideration, which was lost and that the document which is alleged to have been filed by the plaintiff is a forged one and hence, prayed to dismiss the suit.
8. Defendant Nos.2 to 11 also filed a written statement denying all the allegations made in the plaint. The recitals of the written statement would disclose that they are not parties to the suit i.e., O.S.No.101 of 1982 on the file of Senior Civil Judge's Court, Khammam and further defendant No.2 purchased an extent of 443 sq.yards from defendant No.1 under a registered sale deed and since then, defendant No.2 is in peaceful possession and enjoyment 6 GAC, J S.A.No.368 of 2015 of the suit schedule property. Likewise, defendant No.3 purchased the land to an extent of 852 sq.yards on 19.08.1983 through an agreement of sale from the 1st defendant and later defendant No.1 executed registered sale deed in favour of defendant No.3 on 03.06.1985. Further, defendant Nos.4 to 6 are the brothers, who purchased Ac.0-20 gts of land from defendant No.1 under registered sale deed dated 10.08.1990 and as such, they are all in peaceful possession and enjoyment of the property. Further, defendant Nos.7 to 10 are brothers and they purchased the land to an extent of Ac.1-00 gts from defendant No.1 on 12.12.1990 vide registered sale deed. It is further stated that the defendant Nos.2 to 11 were made parties to the suit, only to harass them and that neither the plaintiff nor defendant No.1 have any right over the suit schedule property which was in their possession.
9. Basing on the pleadings, the trial Court has framed the following issues:-
"1. Whether the plaintiff is entitled for partition and separate possession (1/2) share as prayed for?
2. Whether the plaintiff is entitled for future profits?7
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3. Whether the defendant Nos.2 to 11 were unnecessary parties to the suit and thereby the suit is bad for mis-joinder of parties?
4. Whether there is no cause of action to file the suit?
5. Whether the sale deed, dated 12.12.1990 is valid and binding on the plaintiff?
6. To what relief?"
10. On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 and A-3 were marked and on behalf of the defendants D.Ws.1 to 7 were examined and Exs.B-1 to B-29 were marked.
11. Basing on the oral and documentary evidence, the trial Court has dismissed the suit with a finding that the plaintiff is entitled for partition of suit schedule property into two equal shares and future mesne profits and as such, suit is dismissed.
12. Being aggrieved by the same, the unsuccessful plaintiff preferred an Appeal vide A.S.No.66 of 2006, before the III Additional District Judge (FTC-II) at Khammam. In view of the death of one of the appellant, appellant Nos.3 to 9 were brought on record as legal heirs of appellant Nos.1 and 2. At the same time, respondent No.17 was also brought on record as legal 8 GAC, J S.A.No.368 of 2015 representative of the 4th respondent in the appeal. On hearing the contentions of both the parties, the appellate Court has framed the following points for consideration:-
"1. Whether the plaintiff and late D.Ankalu purchased the suit land jointly under Agreement of Sale, dated 30.03.1965 as pleaded in the plaint?
2. Whether the plaintiff is entitled for partition of suit property into two equal shres and to allot one such share to the plaintiff?
3. Whether the plaintiff is entitled for future profits?
4. Whether the defendants No.2 to 11 are necessary parties to the suit?
5. Whether there is no cause of action to file suit?
6. Whether the judgment under appeal is not sustainable under law?
7. To what relief?"
13. After considering oral and documentary evidence on record, the appellate Court has dismissed the appeal confirming the judgment and decree in O.S.No.35 of 1996 on the file of Senior Civil Judge Court, Sathupalli, dated 21.09.2005. \ 9 GAC, J S.A.No.368 of 2015
14. Being aggrieved by the said judgment and decree of the 1st appellate Court, the present Second Appeal is filed raising the following substantial questions of law:-
"2. Whether the learned Appellate Court is justified in rejecting the claim of the appellants on the ground that Ex.A-1 Agreement of sale is unregistered as required under Section 17 of the Registration Act even though the said document was already marked in the evidence?
3. Whether the learned Appellate Court is justified in disposing of the appeal without formulating proper points for consideration as contemplated under Order-41, Rule 31 CPC?
4. Whether the suit document Ex.A-1 is compulsory registerable even though the said document is dated 30.03.1965?
5. Whether both the Courts failed to appreciate that in the absence of Ex.A-1, there is no other document to claim any right or title even for the defendants?
6. Whether the learned Appellate Court is justified in rejecting the claim of the appellants even though no documentary evidence is produced by the respondents to show that Dalu Ankalu purchased the land exclusively from Veera Raghavaiah, in which event the Court below ought to have appreciated the fair plea of the 10 GAC, J S.A.No.368 of 2015 appellants stating that the said property was purchased jointly, hence suit for partition is maintainable?
7. Whether both the Courts erred in appreciating the evidence and pleadings on record while rejecting the suit claim?"
15. On perusal of the substantial questions of law, it is evident that they all are related to fact findings of both the Courts below but not on law.
16. Heard the learned counsel for the appellants. Perused the record.
17. Learned counsel for the appellants contended that both the Courts below have rejected the claim of the appellants on the ground that the agreement of sale is unregistered and registration is required as per Section 17 of the Registration Act. It is further contended by the counsel for the appellant that the said document was marked in evidence, there is no necessity to reject the agreement of sale.
18. Admittedly, the suit is filed for partition.
Section 17 of the Registration Act, 1908 envisages as under: 11
GAC, J S.A.No.368 of 2015 "17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees."
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19. It is important to note that if the value of the property is more than Rs.100/- relating to any immovable property, such document thereby, be compulsorily registered as per Registration Act. Admittedly, Ex.A-1 is the agreement of sale, which is an unregistered document which can be marked as 'exhibit' only for the purpose of evidence, but it cannot be acted upon and rights cannot be accrued. Ex.A-1 has to be compulsorily registered, in order to claim right of title.
20. The present suit is filed by the plaintiffs for partition basing on Ex.A-1 which is an unregistered document. Therefore, the plaintiffs cannot accrue any right over the property basing on unregistered document. Without accruing right over the property, the plaintiffs cannot seek for partition of suit schedule property. Therefore, both the Courts below are right in rejecting the claim of the appellants as he is not the rightful owner of the said property. Further, the plaintiffs have also failed to prove that they were in possession and enjoyment of the suit schedule property as owners having purchased the property under Ex.A-1. 13
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21. On perusal of Ex.A-1, agreement of sale, it is evident that it is executed on a stamp paper of Rs.1.50 ps. If at all, the plaintiff claims that he purchased the land under Ex.A-1 sale deed, he is in possession of the property, Ex.A-1, sale deed is to be compulsorily registered under Section 17 of the Registration Act. In the absence of registration, no title can be passed to the plaintiff under Ex.A-1.
22. It is the contention of the 1st defendant that the she is the absolute owner of the property and further sold the property to other defendants under registered sale deeds. It is the further case of the defendants that grand-daughter of Pitchamma's sister by name Anasuya was adopted as a pastor child since Pitchamma has no issues. Further, Pitchamma performed the marriage of 1st defendant and due to love and affection, given the suit schedule property as a oral gift, in the year, 1970 and later executed settlement deed in favour of the 1st defendant on 31.12.1981 and since then, the 1st defendant is in possession and enjoyment of suit schedule property without any obstruction. Ex.B-7 is the settlement deed executed by Pitchamma in favour of the 1st defendant.
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23. Admittedly, the suit is filed in the year, 1996 and after going through the recitals of the written statement, the plaintiff has not filed any rejoinder disputing the registered settlement deed Ex.B-7. Further, the plaintiff has not made any effort to amend the pleadings to declare the settlement deed as null and void. It is also important to note that the plaintiff has filed O.S.No.101 of 1982 on the file of Subordinate Judge's Court, Khammam against Dalu Pitchamma for partition and the same was dismissed for default and as per the observations of the High Court, fresh suit for partition was not barred by res-judicata, the present suit was filed. Admittedly, the other defendants are not parties to O.S.No.101 of 1982. If once the property is not in the hands of 1st defendant and it has been transferred to other defendants by way of regular sale deed, the suit cannot be maintainable for partition against other defendants.
24. In a suit for partition, it is for the plaintiff to establish his right, first over the property and then seek for the relief of partition. Except Exs.A-1 to A-3, no other documents are filed before the Court to prove that the plaintiff has right over the property. 15
GAC, J S.A.No.368 of 2015 Exs.A-2 and A-3 are no way helpful for the plaintiff to prove his right and further Ex.A-1 cannot declare the right of the property as it is an unregistered document which is compulsorily registerable under Section 17 of the Registration Act.
25. As per Section 17 of the Registration Act, Ex.A-1 should be compulsorily registerable though it is dated 30.03.1965, as the Act clearly discloses that any document subsequent to 1964 shall be compulsorily registerable.
26. It is one of the substantial questions of law raised by the appellant that the 1st appellate Court has not followed Order 41 Rule 31 of CPC.
Order 41 Rule 31 of CPC reads as follows:-
"Contents, date and signature of judgment:-The judgment of the Appellate Court shall be in writing and shall state:-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
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27. On perusal of the judgment of the 1st appellate Court, it is evident that it is in writing, contained points for determination, the decision thereon with reasons. The judgment also discloses that the appellate Court confirmed the findings of the trial Court and it was signed and pronounced by the Judge, therein. Therefore, the contention of the learned counsel for the appellant that the judgment of the 1st appellate Court is not as per Order 41 Rule 31 of CPC, is not tenable.
28. Second Appeal is of the year, 2015 and it underwent numerous adjournments and still coming up for admission.
29. It is pertinent to mention that there is limited scope under Section 100 of CPC while dealing with the appeals by the High Courts. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, only then, this Court can interfere with the orders of the Courts below. On perusal of the entire material on record, this Court is of the considered view that the orders of the Courts below are not perverse and there is no misreading of evidence, and therefore in the absence of substantial question of law, it is not proper to interfere with the concurrent fact 17 GAC, J S.A.No.368 of 2015 findings of the Courts below. Therefore, the Second Appeal deserves to be dismissed.
30. In the result, the Second Appeal is dismissed at the stage of admission confirming the judgment and decree dated 20.01.2015 in A.S.No.66 of 2006 on the file of III Additional District Judge (FTC-II) at Khammam. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 01.11.2022 dv