THE HONOURABLE DR.JUSTICE G.RADHA RANI
APPEAL SUIT No.276 of 2023
JUDGMENT:
This appeal is preferred by the appellants who are the plaintiffs in O.S.No.375 of 2018 aggrieved by the judgment and decree dated 21.03.2023 passed in O.S.No.375 of 2018 by the Principal District & Sessions Judge, Medchal-Malkajgiri District in dismissing the suit filed by them.
2. The case of the plaintiffs was that they filed a suit for declaration of the Agreement of Sale cum General Power of Attorney with possession registered vide document No.4329 of 2009 with the Sub-Registrar Office, Keesara in respect of the suit schedule property as sham, void ab initio, null and void and consequently to call upon the defendant to cancel the said document by executing a registered deed of cancellation and in the event, the defendant failed to cancel the above document seeking the court to do so.
3. The plaintiffs submitted that the plaintiff No.1 was the father and plaintiff No.2 was the mother of plaintiffs 3 to 5. The plaintiff No.4 was residing in Australia after marriage, as such, the plaintiff No.3 was representing plaintiff No.4 vide General Power of Attorney (for short "GPA"). The plaintiffs were the absolute owners of agricultural land totally admeasuring Ac.10-28gts. 2
Dr.GRR, J as_276_2023 falling in Survey Nos.3, 7 and 180 situated at Kundanpally Village, Keesara Mandal, erstwhile Ranga Reddy District and now Medchal District. The plaintiff No.1 was the pattedar of the entire extent and he executed a registered gift deed dated 12.09.2007 in favour of plaintiff No.2 to an extent of Ac.1- 20gts. falling in Survey No.3 and Ac.0-37gts. falling in Survey No.7, total admeasuring Ac.2-17gts. vide document No.11128 of 2007 registered with the Sub-Registrar Office, Shamirpet. Similarly, the plaintiff No.1 executed a registered gift deeds in favour of plaintiff No.3 (Ac.1-14gts. in Survey No.7, Ac.0-30gts. in Survey No.180), plaintiff No.4 (Ac.0-17gts. in Survey No.3, Ac.1-27gts. in Survey No.7) and plaintiff No.5 (Ac.2-23gts. in Survey No.3) vide registered document Nos.6818 of 2007, 6817 of 2007 and 6816 of 2007, all dated 26.05.2007.
4. The plaintiff No.1 as a GPA holder of G.Mannem and Smt.G.Savithri, had executed a registered sale deed dated 12.09.2007 registered as document No.11129 of 2007 alienating an extent of Ac.1-20gts. in Survey No.3. The plaintiffs got their respective names mutated in the revenue records and the title deeds and passbooks were also issued in their favour by the Mandal Revenue Officer. All the plaintiffs together had alienated an extent of Ac.5-00gts. (Ac.4- 03gts. in Survey No.3, Ac.0-37 gts. in Survey No.7) in favour of Smt.Aileni Saritha, W/o.A.Venkateshwar Reddy vide registered sale deed document No.4328 of 2009, dated 29.08.2009 with the Sub-Registrar Office, Keesara. 3
Dr.GRR, J as_276_2023 The said purchaser had taken the original title deeds belonging to all the plaintiffs.
5. The plaintiffs further submitted that on the same date i.e. on 29.08.2009, the plaintiffs jointly executed an Agreement of Sale cum GPA with possession in favour of the defendant to an extent of Ac.5-28gts. (Ac.3-11gts. in Survey No.3, Ac.1-27gts. in Survey No.7, Ac.0-30gts. in Survey No.180) for a total consideration of Rs.47,02,500/-. The said consideration was not paid by the defendant even though the recital in the document would state that the entire consideration was paid and the plaintiffs acknowledged the receipt of the same. The defendant on the very same date i.e. on 29.08.2009, in his own hand writing executed a letter which gives the true and correct understanding between the parties in respect of the transaction recorded in the registered document vide document No.4329 of 2009 termed as Agreement of Sale cum GPA with possession.
6. The defendant herein in the letter cum declaration dated 29.08.2009 executed on a Rs.100/- non-judicial stamp paper, had categorically mentioned that since the extent of Ac.5-28gts. could not be located on the ground and the same had to be located by the vendors after due survey and only upon locating the same and showing the same to the vendee, the amount of Rs.35,00,000/- would be paid as consideration per acre by the vendee to the vendors and the 4 Dr.GRR, J as_276_2023 document Agreement of Sale cum GPA with possession was just a nominal document to record the transaction in a registered instrument.
7. The plaintiffs submitted that the said document was not only a nominal document but also a sham document, as the recitals of the said document were contrary to the actual understanding of the contract which was entered into by the parties and recorded by the defendant in his own hand writing in the letter cum declaration. Even after making various attempts, they could not get a comprehensive survey done either through the Mandal Surveyor or through the Director of Survey of Survey and Settlements. Therefore, the plaintiffs requested the defendant to take up the task by himself to locate the land and thereafter further transaction could be made and converted into a regular sale deed. The defendant agreed to do so, but was dodging the matter on one pretext or other. Till date, no survey was conducted and the land was not located as agreed upon. As the plaintiffs and defendant were unable to locate the land, which was the subject matter of the Agreement of Sale cum GPA with possession, the plaintiffs had called upon the defendant to cancel the said document, so that the plaintiffs could search for other alternatives. The defendant refused to act upon the request made by the plaintiffs. He neither was able to get the survey done or locate the land over the ground. Therefore, the plaintiffs lost all their hopes and having waited for more than nine years, were constrained to approach the Court to seek cancellation of the said document 5 Dr.GRR, J as_276_2023 dated 29.08.2009 executed and registered in favour of the defendant as Agreement of Sale cum GPA with possession registered as document No.4329 of 2009 dated 29.08.2009 with Sub-Registrar Office, Keesara.
8. The judgment of the trial court would disclose that summons were issued to the defendant and a publication was also given, but, inspite of that, the defendant failed to appear before the court and as such he was set ex-parte.
9. The plaintiff No.3 was examined as PW.1 and Exs.A1 to A7 were marked on behalf of the plaintiffs.
10. On considering the oral and documentary evidence adduced by the plaintiffs, the trial court raised certain suspicions observing that generally the person who executed the document was supposed to purchase the stamp paper. But, in the above case, the stamp paper was sold to plaintiff No.1, as per Ex.A7 and there was a gap of four days in purchase of stamp paper and execution of document, which was not explained by the plaintiffs. The signature of the executant on Ex.A7 and the signature of the purchaser on Ex.A6 appeared to be different and as none of the witnesses to the documents marked as Ex.A6 and A7 were examined, dismissed the suit.
11. Aggrieved by such dismissal, the plaintiffs preferred this appeal contending that the learned Judge ought to have re-opened the matter if there was any doubt in the mind of the court and could not have passed the judgment 6 Dr.GRR, J as_276_2023 and decree on the basis of surmises and conjectures without even putting the plaintiffs on notice with regard to the queries in the mind of the court. The learned Judge failed to understand that the court was passing an ex-parte judgment and decree and there was no pleading whatsoever which was raised by the defendant in respect of Ex.A7. The learned Judge passed the impugned judgment and decree giving various findings without there being a specific issue framed. The judgment and decree impugned was passed contrary to well settled principles of law and prayed to set aside the judgment and decree dated 21.03.2023 passed in O.S.No.375 of 2018 on the file of the Principal District and Sessions Judge, Medchal-Malkajgiri District.
12. Notice was served on the respondent. But, the same was returned as un- claimed. Hence, considering the same as deemed service, the respondent was set ex-parte.
13. Heard the learned counsel for the appellants.
14. The learned counsel for the appellants argued on the same lines as raised in the grounds of appeal and relied upon the judgment of the Hon'ble Apex Court in Bachhaj Nahar v. Nilima Mandal and Others 1, wherein it was held that:
"8. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by 1 AIR 2009 SC 1103 7 Dr.GRR, J as_276_2023 relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.
(ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the first time in a second appeal.
Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure."
15. As seen from the record, the contention of the plaintiffs was that the plaintiff No.1 was the absolute owner of the agricultural land totally admeasuring Ac.10-28gts. in Survey Nos.3, 7 and 180 situated at Kundanpally Village, Keesara Mandal, erstwhile Ranga Reddy District, and at present Medchal District and alienated an extent of Ac.5-00gts. in favour of Smt.Aileni Saritha W/o.A.Venkateshwar Reddy vide registered sale deed dated 29.08.2009 registered as document No.4328 of 2009 with the Sub-Registrar Office, Keesara and on the same day executed an Agreement of Sale cum GPA with possession 8 Dr.GRR, J as_276_2023 in favour of defendant to an extent of Ac.5-28gts. i.e. (Ac.3-11gts. in Survey No.3, Ac.1-27gts. in Survey No.7, Ac.0-30gts. in Survey No.180) for a total consideration of Rs.47,02,500/-.
16. The recitals of the documents would disclose that the sale consideration was paid by the defendant. But, on the very same date, the defendant had executed a letter cum declaration on a Rs.100/- non-judicial stamp paper mentioning that since the extent of Ac.5-28gts. could not be located on the ground, the amount of Rs.35,00,000/- would be paid as consideration per acre only upon locating the same and showing the same to the vendee by the vendor and the document, Agreement of Sale cum General Power of Attorney with possession was just a nominal document only to record the transaction.
17. The registered Agreement of Sale cum GPA which was sought to be cancelled at present was marked as Ex.A6 and the letter cum declaration alleged to have been executed by the defendant on the same date stating that the amount was not paid and the same would be paid only upon locating the property, was marked as Ex.A7.
18. The defendant admittedly was set ex-parte. As such, there were no pleadings contrary to the case set up by the plaintiffs. The learned Principal District and Sessions Judge, Medchal-Malkajgiri District on considering the 9 Dr.GRR, J as_276_2023 said document, found certain discrepancies as noted above and as such disbelieved the case of the plaintiffs.
19. The contention of the plaintiffs was that if the court had any doubt in its mind, it would have re-opened the matter and sought for clarification from the plaintiffs. But, without seeking any such clarification from the plaintiffs, basing on surmises and conjectures, had passed the judgment.
20. This Court also agrees with the contention of the appellants - plaintiffs that no opportunity was given by them to answer the queries that arose in the mind of the court and the observations of the court were based upon its imagination rather than on the facts of the case. The defendant would have contended the matter if he was opposing the claim of the plaintiffs, but the defendant remained silent even after receipt of summons and after publication of notice as well as receipt of notice in the appeal, which would clearly disclose that he was not interested to proceed with the matter. No issues were framed in this case as the defendant remained ex-parte. All necessary facts should be pleaded by the parties in support of the case set up by them. It is imperative for the parties to state the essential material facts to dispose of the case. The Court ought to have given an opportunity to the plaintiffs to clear the doubts in its mind rather than passing the judgment on imagination. As such, it is considered fit to remand the matter to the trial court by setting aside the judgment of the Principal District and Sessions Judge, Medchal-Malkajgiri District in 10 Dr.GRR, J as_276_2023 O.S.No.375 of 2018 dated 21.03.2023 and to pass judgment on merits after giving an opportunity to the plaintiffs to clear the doubts raised in the mind of the court.
21. In the result, the Appeal Suit is allowed remanding the matter to the trial court by setting aside the judgment of the Principal District and Sessions Judge, Medchal-Malkajgiri District in O.S.No.375 of 2018 dated 21.03.2023 and to pass judgment on merits after giving an opportunity to the plaintiffs to clear the doubts raised in the mind of the court. 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.