THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.12 of 1999
ORDER:
This appeal is filed against the Judgment and decree dated 20.10.1995 in O.S.No.58 of 1985 passed by the learned Sub Court Judge, Karimnagar.
2. The Vavilal Khadi Gramodyoga Prathistan represented by its Member Secretary namely, P.Laxmikantha Rao/plaintiff initially filed the suit in O.S.No.58 of 1985 against the defendants No.1 & 2 for Perpetual injunction and later amended it for Declaration to declare it as the absolute owner of the suit schedule property by cancelling the sale deed dated 11.03.1985, executed by one Laxmi Narayana and Surya Prasad who are sons of one Omkari Veerosa in favour of the defendants No.1 & 2 as null and void.
3. The plaintiff is a registered society established for production of Khadi, Yarn and other Gramodyoga products. Plaintiff is the owner and possessor of the dry land bearing Sy.No.755/2/A measuring 12 guntas of Jammikunta Village (from hereinafter referred as 'suit schedule property). The 2 plaintiff acquired the suit land from the original owner namely Omkari Veerosa S/o. Babushetti on 23.12.1955. From then onwards, plaintiff is in continuous possession of the suit schedule property and established a bone crushing unit in the said suit land by constructing sheds and other necessary structures, but later they have been dilapidated. Plaintiff was also paying land revenue and its possession and ownership was recorded in Pahani Patrikas and other revenue records. The concerned authorities were also issued rythu passbook in favour of plaintiff society under Record of Rights after conducting enquiry. Plaintiff also obtained permission letter No.134/85, dated 12.07.1985 of the Gram Panchayat, Jammikunta for construction of compound wall around the suit land and the said construction work is in progress. The defendants have no right in the suit land and they are land brokers. They did not have license or permission from the competent authorities to act as brokers in the real estate business. Only with an intention to harass the plaintiff and to extract money, they are trying to interfere with their rights and possession deceitfully and forcibly styling themselves as owners. On 01.08.1985, defendants tried to enter into the suit land and take its measurements, but the plaintiff's employees prevented the defendants and to avoid multiplicity of proceedings, they 3 filed suit for injunction. The nature of the suit was altered to the suit for declaration as per the Orders of the trial Court in I.A.No.461 of 1995 dated 29.06.1995.
4. In the written statement filed by the defendants, they stated that the plaintiff is neither the owner nor possessor of the suit land. Plaintiff never purchased the suit land under simple sale deed and they are in possession of the suit schedule property since 23.12.1955. They further stated that documents obtained by the plaintiff are manipulated by the authorities. They also stated that they are the owners and possessors of the suit land. The original owner by name Omkari Veerosa died more than 50 years back and his sons succeeded to his property and mutation was also effected in their name. Hence, they purchased the suit land from his sons namely Laxmi Narayana and Surya Prasad through a registered sale deed dated 11.03.1985 and they were put in possession of the suit land. Since then, Faisal Patti for the year 1984-85 reflects the mutation of their names as per the sale deed. Even in the Pahanies for the year 1984-85 the names of the defendants are shown as owners and possessors of the suit land and Ryotwari passbooks which were prepared in the year 1978-79 also issued to the vendors. As the plaintiff was not in possession of the suit 4 schedule property, the question of interfering does not arise. Therefore, requested the Court to dismiss the suit.
5. The plaintiff examined P.Ws.1 to 3 and marked Exs.A1 to A150 on its behalf. The defendants examined D.Ws.1 to 3 and marked Exs.B1 to B11 on their behalf.
6. The trial Court considering the entire evidence on record, decreed the suit in favour of the plaintiff and restrained defendants No.1 & 2 from interfering with its possession and enjoyment and also declared the sale deed dated 11.03.1985 as null and void and ineffective and it will not bind on the plaintiff. Aggrieved by the said Judgment, the present appeal is preferred.
7. The appellant/defendant No.1 mainly contended that the trial Court erred in holding the fact that plaintiff is in continuous possession from the year 1955 without any evidence. Ex.A1 is the un-registered sale deed and there is no evidence to prove their possession. The trial Court interpreted the evidence of defendants in erroneous manner and arrived to the wrong conclusion. The issue No.2 was decided erroneously in favour of the plaintiff. Exs.B1 to B11 were not appreciated 5 properly. Therefore, requested the Court to set aside the Judgment of the trial Court.
8. The Superintendent of the plaintiff society was examined as P.W.1 and he stated that he was working in the plaintiff society for the last 40 years. Ex.A1 is the simple sale deed which was marked through him. He stated that at the time of execution of Ex.A1, the society was named as Hyderabad Khadi Samithi and in the year 1967 its name was changed as Metpally Khadi Gramodyog Prathistan and again in the year 1983, its name was changed as Vavilal Khadi Gramodyog Prathistan. The properties and assets of Hyderabad Khadi Samithi were amalgamated into the assets and properties of Vavilal Khadi Gramodyog Prathistan. Ex.A1 was executed in favour of the Secretary, Hyderabad Khadi Samithi namely P.V.Naik and one Swamy Ramanandha Thirtha was its President at that time. He also stated that P.V.Narsimha Rao was the President of Metpally Khadi Gramodyog Prathistan and he is the President of the present society from its inception. Since 1984, one B.Laxmikantha Rao is the Secretary of the society. They purchased the suit schedule property for a total sale consideration of Rs.175/- under Ex.A1 and entry was made in the ledger of Hyderabad Khadi Samithi for the year 1955 in Page 6 No.96 and it was marked as Ex.A2. The property covered under Ex.A1 is Ac.0 - 15 gts at the time of its purchase, but now it is to an extent of Ac.0 -14 gts. The subject property was in Sy.No.755/2/A of Jammikunta village and bounded as follows:
East:- PWD road coming from Jammikunta to Huzurabad. West:- Land of Thota Mallaiah.
North:- Oil mill of Mukka Ramalingam. South:- Rice mill of Chandra Vishwanatham.
After purchasing the property they started Hyderabad Khadhi plying centre for crushing bones for manufacturing fertilizers. In fact, they purchased the land only for the purpose of establishing plying centre. They also constructed sheds and dug a well and made other construction for the said unit. They paid Rs.500/- to Laxmaiah Mastry towards construction of the said charges and entries were made in the ledger for the year 1955 at Page No.98 on 26.12.1955, which was marked under Ex.A3. He also stated about the entries under Ex.A4 and also regarding the land revenue paid under Ex.A5 to A9 and A16.
9. He further stated that their possession was also entered in the revenue Pahanies for the years 1974 to 1982 under Ex.A10 to 15. Ex.A17 is the Rythu Pass book issued by the Mandal Revenue Officer, Jammikunta showing the plaintiff 7 society as the occupant of the suit land. They constructed a compound wall all around the plaint schedule property after obtaining necessary permission and sanctioned plan from the Gram Panchayat. Ex.A18 is the permission letter issued by the Gram Panchayat dated 12.07.1985 along with the sanctioned plan. They paid construction fees under Ex.A19.
10. He stated that Hyderabad Khadi Samithi also purchased another property from Omkari Veerosa under Ex.A20 through a registered sale deed dated 07.05.1959. He stated that Omkari Veerosa was alive till 1969 and he executed Ex.A1 to A20 in their favour. Neither defendants nor the sons of Omkari Veerosa were never in possession of the suit schedule property. The plaintiff has not received any notice from the defendants regarding mutation of entries. During the cross-examination, he stated that the house of Omkari Veerosa was under mortgage to the Hyderabad Khadi Samithi for Rs.8,000/-. There is resolution for setting up of plying centre and it was passed in the year 1955. The entries under Ex.A2 to A4 were made by one Mangamma, who is accountant-cum-Manager in the plaintiff society. He further stated that they filed the order of the permission of Khadi and Village Industries Commission Board, Bombay before the Court. He also stated that plying centre was 8 run for two or three years and later the suit land was kept vacant. He stated that he knows sons of Omkari Veerosa i.e, Laxmi narayana and Surya Prasad. He filed Photographs showing the suit lands and the compound wall under Exs.A21 to A24 and Ex.A25 to A28 are their negatives. They were taken in the year 1985. As the plaintiff is the society, they filed all the documents which are available with them to show the expenses incurred for construction of the compound wall and all the documents were marked through P.W.1.
11. They addressed a letter under Ex.A142 regarding the construction of the plying centre and requested the head office to train their employees namely D.N.Chary and it is endorsed by the Secretary under Ex.A42 on 29.12.1955. He admitted that compound wall was constructed after obtaining injunction Order and Exs.A30 to A126 are relating to the expenditure for the construction of the compound wall. He stated that they are in possession of the minutes books and resolutions and other records to shows about the merger of Hyderabad Khadi Samithi and Metpally Khadi Gramodyog Prathistan into the present society. He stated that head office of Metpally Khadi Gramodyog Prathistan was situated at Metpalli and the head office of Vavilal Khadi Gramodyog Prathistan was situated at Vavilal and both 9 the societies were registered under the Registration of Societies Act. The head office of the Hyderabad Khadi Samithi and Bhagyanagar Khadi Samithi was situated at Hyderabad. He further stated that Khadi and Village Development Commission will provide funds for all these Khadi samithies and watch the activities of the Khadi Samithies and they purchased the suit land with the permission of the Khadi Commission. Subsequently, the Hyderabad Khadi Samithi was divided into three units i.e., Bhagyanagar Khadi Samithi, Metpalli Khadi Gramodyog Prathistan and Martwadi Khadi Gramodyog Samithi. Later, Metpalli Khadi Gramodyog Prathistan was divided into two units i.e., Metpalli and Vavilal Khadi Gramodyog Prathistan and the suit land came into the area of operation of Vavilal Khadi Gramodyog Prathistan.
12. P.W.2 is the mason, who worked for the construction of a shed for bone crushing unit along with others. The shed was constructed in 14 Guntas, situated by the side of Huzurabad road, but the bone crushing factory was run for only 2 or 3 years. He constructed the compound wall in the year 1985. He stated that the suit schedule property is in possession of the plaintiff society. He filed Ex.A29 receipt in the cross- examination. He stated that the shed was constructed in the 10 year 1956 and the dimensions of the shed are 18 x 4 yards. Some machinery was also installed in the shed.
13. P.W.3 is the hand writing and finger print expert who was practicing since 1971. He verified the signatures on Ex.A1 and A20 under Optical instruments, ultraviolet and infrared radiation and after assigning the reasons, submitted the final report under Ex.143. He came to the conclusion that the signature in Ex.A1 and A20 were written and signed by one and the same person and also enclosed the relevant document under Ex.A144 to A146 along with his report.
14. D.W.1 is the second defendant in the suit. He stated that originally land belongs to Omkari Veerosa, but he died 40 years back. Later his sons inherited the property and their names were also mutated in the revenue records. On 11.03.1985, they purchased the suit land under registered sale deed under Ex.B6 and later their names were mutated in Faisal Patti for the year 1984-85 under Ex.B1. He also filed Pahanies for the year 1980-83, 1984-85 under Exs. B2, B3 and B4 and also filed original Passbook under Ex.B5. They purchased the suit land for Rs.10,000/- and on payment of sale consideration took possession of the land. One Mohan Reddy and Narsaiah were 11 the attesters of the registered sale deed. The plaintiff society took the building and two acres vacant land from Omkari Veerosa in the year 1955 and established plying centre in that vacant land. They never cultivated the suit land.
15. In the cross-examination, D.W.1 stated that he did not know exactly when Omkari Veerosa died, but he knows the possessors of the suit schedule land and he stated that he paid Rs.5,000/- and defendant No.1 paid Rs.5,000/- to the vendors. He further stated that except himself, defendant No.1 and Laxmi Narayana none else were present at the time of negotiations. He further stated that original sale deed has not been filed before the Court, they filed certified copy of the sale deed and also the letter given by the District Court regarding missing of the original document. He also admitted that suit land is originally possessed by Omkari Veerosa and it is his ancestral property. Ex.B6 is the Certified Copy of the registered sale deed dated 11.03.1985, Ex.B7 is the Certified Copy of the Faisal Patti for the year 1977-78 and the cancellation Order issued by Gram Panchayat was filed under Ex.B8. It was suggested to him in the cross-examination that original is not filed as the signatures of attesters and vendors were forged and impersonated before the Sub-Registrar at the time of execution, but he denied the same. 12
16. D.W.2 is the son of Omkari Veerosa namely Laxmi Narayana. He along with his brother Surya Prasad executed the sale deed in favour of defendants. He clearly stated that his father died in the year 1963. He also stated that suit schedule property was in their possession at the time of death of their father and later their names were mutated in the revenue records and they were cultivating the suit lands through one Chandraiah. They never sold the property in favour of the Khadi Board and plaintiff society never constructed a shed for establishing bone crushing factory and they sold the property only in the year 1985 for an amount of Rs.10,000/- under Ex.B6 and delivered the possession on the same day. He stated that one Mohan Reddy and Narsaiah attested the sale deed.
17. In the cross-examination, he stated that he is having one brother and four sisters. His mother died subsequent to the death of his father, but his sisters and brothers are alive. His father knows reading and writing Telugu and he used to sign in Telugu, he can identify hand writing and signature of his father. The hand writing in Ex.A1 and the signature of the executant slightly differs from the hand writing and signature of his father. He stated that no one identified him or his brother as the executant before the Sub-Registrar and he did not know who 13 purchased the stamp papers and he did not go to Jammikunta at the time of delivery of the suit land to the defendants. He was born in the year 1933. His family members left Jammikunta in the year 1959 and settled in Hanumakonda. He admitted that plaintiff society has an intention to establish bone crushing unit and established the same in the land which was sold by his father through a registered sale deed, but he cannot say the extent of the land sold by his father to the society through the registered sale deed. He also stated that the property was sold for Rs.33,000/- through a registered sale deed, which was marked under Ex.A20 and the same was executed by his father and brother and it was attested by him. His father signed as the guardian of his minor brother Surya Prasad. Ex.A20(a)(b)(c) are the signatures of his father on each page of Ex.A20.
18. He further stated that they have not partitioned the suit schedule property after the death of his father. All the properties left by his father are ancestral joint family properties, in which he, his brother, mother and all his sisters have got rights, but his sisters have not executed the sale deed in favour of the defendants along with them. He further stated that Ex.10 was misplaced before the District Court and they gave a memo under Ex.B11 dated 23.03.1995. He further stated that unless 14 the original Ex.B6 is shown to him, he cannot say whether it contained his signature and that of Surya Prasad as executors. He also admitted that it is possible to get Xerox copy of the hand writing and signatures which were not in the original document by keeping white paper at the time of the Xerox.
19. The trial Court initially framed six issues and later three additional issues were framed. The plaintiff society in the suit mainly contended that it is the owner and possessor of the suit schedule property and it purchased the same from Omkari Veerosa on 23.12.1955 under Ex.A1 and it also purchased some other properties under Ex.A20 from the same person for establishing plying centre and filed original documents before the Court. He also filed the permission letter obtained from the Gram Panchayat for construction of the compound wall. Initially plaintiff filed suit for injunction, but later amended it as the suit for declaration of sale deed dated 11.03.1985 as null and void. D.W.2 is the son of Omkari Veerosa. He stated that his father died in the year 1963. They have ancestral joint family properties, but they have not partitioned the properties either during the life time of his father or after his death. His mother died subsequent to the death of his father, but his four sisters and brother were alive. Admittedly, father of D.W.2 executed the 15 registered sale deed in favour of plaintiff society on 23.12.1955 and he also executed another sale deed dated 07.05.1959 during his life time under Ex.A20 (it is in Urdu language) and the translation of the said sale deed has not been filed before the Court and he was alive till 1963. D.W.2 stated that he was born in the year 1933 and as on the date of execution of Ex.A1, he was aged about 23 years, as such he can very well understand regarding the transactions made by his father in favour of the plaintiff society, but he never raised any objections during his life time either after execution of Ex.A1 in the year 1955 or after execution of Ex.A20 in the year 1959 and kept quiet without demanding for any partition during his life time. Even afterwards, they kept quiet for another 22 years and executed a registered sale deed in favour of defendants for the same suit schedule property and denied the execution of the sale deed made by his father to the plaintiff society under Ex.A1 and A20.
20. P.W.1 is the employee of the society, from the beginning he was examined to mark several documents in support of their contention and he was cross-examined at length by the learned Counsel for the defendants, but his evidence was unshaken during his cross-examination and inspires the confidence of the 16 Court. So also, plaintiff examined P.W.3, hand writing expert to prove the hand writing and signature of Omkari Veerosa on Ex.A1 and A20 and he clearly stated that the said hand writing and signatures on both the documents are of the one and the same person. Therefore, this Court finds no reason to disbelieve the contention of the plaintiff regarding execution of sale deed in their favour way back in the year 1955 and 1959 respectively. Of course, when Ex.A1 was filed before the Court, the said document was impounded and the relevant Stamp Duty was paid, therefore the validity of the sale deed cannot be questioned now. Even D.W.2 admitted during his cross-examination regarding Ex.A20, though he could not say the extent of land, he stated that his father signed the document in his own capacity and also as the guardian of his brother and he signed it as an attester and it was executed for Rs.33,000/-. Apart from that he also admitted regarding Ex.A1 and stated that society has an intention to establish bone crushing unit and they established the same in the land which was sold by his father. This clearly shows that knowing pretty well about the execution of the document in favour of the plaintiff society, with an ulterior motive, he along with his brother executed the registered sale deed in favour of the defendants in the year 1985 to defeat the interest of the plaintiff society. 17
21. Admittedly, the possession was also handed over to the society immediately after the execution of Ex.A1 and they constructed a shed for establishing bone crushing unit and they examined P.W.2, Mason who constructed the same along with his team. The society has also filed the receipts and vouchers regarding the payment made to him for construction of the bone crushing unit. Admittedly, the plying centre was constructed for running bone crushing unit, but it was run only for two or three years and later it came to dilapidated condition. The Photographs along with negatives were also filed and they were taken in the year 1985, but the trial Court disbelieved the Photographs on the ground that the plaintiff could not examine the Photographer. The defendants objected the said Photographs on the ground that compound wall was not visible in the said Photographs. Admittedly, the construction of the compound wall was made just prior to the filing of the suit in the year 1985 and it was completed after filing of the suit in view of the injunction Orders granted by the trial Court. Therefore, on that ground, the said Photographs cannot be disbelieved. The plaintiff society also filed relevant land receipts and Pahani Patrikas to prove their possession. 18
22. P.W.1 gave the details of the status and name of the society in detail in his evidence and further stated that the assets and properties of the society initially established were merged in the present society. He filed the resolutions and minutes books in support of his contention. The plaintiff society purchased the property in the year 1955 and another property from the same person in the year 1959 and they were in possession of the said property. They came to know about the registration of the execution of the registered sale deed in favour of the defendants by the sons of Omkari Veerosa only in the year 1985. When they tried to interfere with the property basing on the said sale deed, initially they filed suit for injunction and then amended the same as suit for declaration to cancel the said registered sale deed. The trial Court considering the entire evidence on record, rightly decreed the suit and restrained the defendants from interfering with the rights, possession and enjoyment of the plaintiff society and also declared the said sale deed executed by the sons of Omkari Veerosa in favour of the defendants as null void, ineffective and not binding on the plaintiff society. Even then the defendant No.1/appellant filed an appeal in the year 1999 before this Court and the same was kept pending for nearly 24 years to deprive the rights of the 19 plaintiff society. Therefore, this Court finds that it is just and reasonable to dismiss the appeal with costs.
23. In the result, the appeal is devoid of merits and is dismissed with costs confirming the Judgment of the trial Court in O.S.No.58 of 1985 dated 20.10.1985.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 06.04.2023 tri 20 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No. 12 of 1999 DATED: 06.04.2023 TRI