THE HONOURABLE DR.JUSTICE G.RADHA RANI
APPEAL SUIT No.70 of 2023
JUDGMENT:
This Appeal Suit is filed by the appellants - defendants aggrieved by the judgment and decree in O.S.No.351 of 2018 dated 18.07.2022 passed by the II Additional District Judge, Medchal.
2. The respondent - plaintiff filed a suit seeking cancellation of registered Agreement of sale - cum - General Power of Attorney with possession (for short "AGPA") vide document No.3786 of 2014 dated 09.12.2014 executed by him in favour of defendant No.1 registered in the Office of the Sub-Registrar, Shamirpet and to cancel the registered sale deed bearing document No.1370 of 2016 dated 12.05.2016 executed by defendant No.1 as the General Power of Attorney (for short "GPA") holder of the plaintiff in favour of defendant No.2 and for recovery of possession of the suit schedule property from the defendants.
3. The plaintiff contended that he was the owner of the agricultural land in Survey No.35, admeasuring Ac.1-11gts. situated at Thumkunta Village and Gram Panchayat, Shamirpet Mandal, Ranga Reddy District. He sold all that agricultural land admeasuring Ac.1-11gts. in Survey No.35 to the defendant 2 Dr.GRR, J as_70_2023 No.1 and executed a registered Agreement of Sale cum General Power of Attorney with possession vide document No.3786 of 2014 dated 09.12.2014. While registering the above property, the defendant No.1 had shown a photocopy of two demand drafts bearing No.232740 dated 29.11.2014 for an amount of Rs.40,00,000/- drawn on SBH, Thumkunta Branch and another demand draft bearing No.232741 dated 29.11.2014 for an amount of Rs.40,00,000/-. The defendant No.1 promised to give the said DDs after registration, as such, the plaintiff had executed a registered Agreement of Sale cum General Power of Attorney in favour of defendant No.1, though the total consideration was not paid. The plaintiff several times demanded defendant No.1 for the sale consideration. But, the defendant No.1 dodged the matter and postponed the issue on one pretext or other stating that he would sell the property and would give the plaintiff, the money. As such, the plaintiff intended to cancel the AGPA executed in favour of defendant No.1. Without the knowledge of the plaintiff, the defendant No.1 had executed a registered sale deed in favour of his brother i.e. defendant No.2 vide document No.1370 of 2016 dated 12.05.2016 registered at Office of Sub-Registrar, Shamirpet.
4. The plaintiff vexed with defendant No.1, approached the Police, Shamirpet and gave a complaint. The Police as part of investigation addressed a letter to SBI, Thumkunta Branch on 06.06.2018, for which the Chief Manager, SBI, Thumkunta Branch clarified to the Police, Shamirpet that the DDs were 3 Dr.GRR, J as_70_2023 forged and in fact the said DDs were valued only for Rs.400/- but not for Rs.40,00,000/- as shown by defendant No.1. The plaintiff contended that defendant No.1 played a calculated pre-meditated fraud by mentioning that the total sale consideration was already paid by him to the plaintiff and that the same was received and acknowledged by the plaintiff and as such prayed to cancel the registered Agreement of Sale cum GPA, and that the same was not binding on him, since, there was no consideration passed under the said document and further contended that defendant No.1 was not competent to execute the registered sale deed in favour of defendant No.2 and the said deed was also liable to be cancelled as null and void, since the document was brought into existence by defendant No.1 in collusion with defendant No.2 with an intention to de-fraud the plaintiff and the defendant No.1 had no subsisting title to the suit schedule property as on the date of execution and registration of the impugned sale deed.
5. Summons were issued to the defendants and as they remained absent, they were set ex-parte.
6. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A3 in support of his case.
7. The trial court i.e. II Additional District Judge, Medchal on considering the evidence of PW.1 and the documents marked as Exs.A1 to A3, decreed the 4 Dr.GRR, J as_70_2023 suit cancelling the registered Agreement of Sale cum General Power of Attorney vide document No.3786 of 2014 dated 09.12.2014 and the consequent registered sale deed bearing document No.1370 of 2016 dated 12.05.2016 executed by defendant No.1 in favour of defendant No.2.
8. Challenging the said judgment and decree, the defendants preferred this appeal contending that the trial court could not cancel the AGPA, as the said AGPA was for consideration coupled with the interest of appellant No.1. The trial court failed to take note of the fact that not only the respondent No.1 had received the total sale consideration, but also delivered physical possession of the property to appellant No.1 through Ex.A1 and subsequently the possession of the property had gone into the hands of the appellant No.2 through Ex.A2. The trial court decreed the suit ignoring that the suit for cancellation ought to have been filed within three years, but the suit was filed after three years nine months by respondent No.1, as such the suit was time barred. The suit for cancellation was not maintainable without seeking the further relief of recovery of possession. The claim of respondent No.1 that he had not received the sale consideration from appellant No.1 was contrary to his own admission in the recitals of AGPA, marked as Ex.A1. The trial court had decreed the suit against the principles of law and prayed to set aside the judgment and decree passed in O.S.No.351 of 2018 dated 18.07.2022 by the II Additional District Judge, Medchal-Malkajgiri District.
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9. Heard the learned counsel for the appellants - defendants and the learned counsel for the respondent No.1 - plaintiff.
10 Perused the record.
11. The judgment in O.S.No.351 of 2018 was passed by the II Additional District Judge, Medchal, ex-parte. The defendants had not participated in the trial. They were now seeking to give an opportunity for them to participate in the trial.
12. The contention of the learned counsel for the respondent No.1 - plaintiff was that after passing of the decree in O.S.No.351 of 2018, the decree was communicated to the Sub-Registrar, Shamirpet, Medchal-Malkajgiri District for taking necessary steps for cancellation of the AGPA, bearing document No.3786 of 2014 dated 09.12.2014 and subsequently the sale deeds executed by appellant No.1 in favour of appellant No.2. The Sub-Registrar, after going through the judgment and decree, cancelled the documents which were executed in favour of the appellants herein. The appellants tampered the banker's cheques shown to him at the time of registration of AGPA. The Police, Shamirpet after registering the criminal case, conducted necessary enquiry and laid charge-sheet before the XX Metropolitan Magistrate, Medchal. Aggrieved by the registration of the criminal case, the petitioners and their father filed Criminal Petition No.10575 of 2022 before this Court to quash the proceedings 6 Dr.GRR, J as_70_2023 in C.C.No.312 of 2022. This Court after elaborate hearing on both sides, quashed the proceedings against the accused No.2 i.e. appellant No.2 herein and directed the trial court to proceed against the appellant No.1 and their father namely K.Narsing Rao Goud. As on the date of obtaining the Agreement of Sale cum GPA, the appellants had not paid even a single pie to him. By playing fraud, they obtained the Agreement of Sale cum GPA in respect of the suit schedule property. The learned counsel for the respondent No.1 - plaintiff also contended that the relief of recovery of possession was also sought for by the plaintiff in O.S.No.351 of 2018 vide I.A.No.28 of 2022 dated 01.04.2022. The representation made by the appellants in the said regard was not correct.
13. Considering the pleadings of both the parties and as the judgment and decree passed in O.S.No.351 of 2018 is ex-parte and the appellants - defendants are now seeking for an opportunity to contest the matter, it is considered fit to set aside the ex-parte judgment and decree in O.S.No.351 of 2018 dated 18.07.2022 passed by the II Additional District Judge, Medchal, by giving an opportunity to the appellants - defendants to contest the matter. The parties are restituted to the stage where they were at the time of filing the suit and the trial court is directed to dispose of the matter within a period of six (06) months from the date of receipt of a copy of this judgment.
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14. In the result, the Appeal Suit is allowed setting aside the ex-parte judgment and decree in O.S.No.351 of 2018 dated 18.07.2022 passed by the II Additional District Judge, Medchal, giving an opportunity to the appellants - defendants to contest the matter and the parties are restituted to the stage where they were at the time of filing the suit and the trial court is directed to dispose of the matter within a period of six months from the date of receipt of a copy of this judgment. No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 31st October, 2023 Nsk.