Telangana High Court
Akula Laxmi vs Sukkala Sarala Devi on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL Nos.421 & 426 of 2023
COMMON JUDGMENT:
Since the parties and the subject matter of the property involved in both these Second Appeals are one and the same and hence, they are being heard together and disposed of by common judgment.
2. Second Appeal No.421 of 2023 is filed questioning the judgment and decree, dated 02.06.2023, passed by I Additonal District Judge at Karimnagar in AS.No.129 of 2018, whereunder and whereby the judgment and decree dated 20.02.2018 passed by the Additional Senior Civil Judge, Karimnagar in O.S.No.164 of 2006, was confirmed.
3. Second Appeal No.426 of 2023 is filed questioning the judgment and decree, dated 02.06.2023, passed by I Additional District Judge, Karimnagar in AS.No.146 of 2018, whereunder and whereby the judgment and decree dated 20.02.2018 passed by the Senior Civil Judge, Sircilla in O.S.No.58 of 2005 was confirmed.
4. The defendants in O.S.No.58/2005 have preferred S.A.No.426 of 2023 and the plaintiffs in O.S.164/2006 have preferred S.A.No.421 of 2023.
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LNA, J S.A.Nos.421 & 426 of 2023
5. The brief facts of the case, shorn off unnecessary details, which led to filing of Second Appeal No.426 of 2023, are that O.S.No.58 of 2005 was filed for declaration that the registered sale deed bearing document No.2142/03, dated 10.03.2023 executed by defendant No.3 in favour of defendant Nos.1 and 2 as null and void and not binding on the plaintiff and also for permanent injunction in respect of the suit schedule property.
5.1. It was averred that the plaintiff is the wife of S.Prabhakar Rao who purchased the suit schedule property through registered sale deeds on 02.05.2019 and his name was also mutated in the revenue records.
5.2. The plaintiff averred that she is the absolute owner and possessor of the suit schedule property having inherited the same from her husband by name S.Prabhakar Rao who died on 18.02.1999. That her husband purchased the suit schedule house from B.Janaki Ram, B.Tulasi Ram and B.Nanank Ram under two registered sale deeds in the year 1990 by paying valuable sale consideration and his name was mutated in the municipal records in respect of the suit schedule property. While so, the husband of plaintiff became bed ridden on account of liver damage and while 3 LNA, J S.A.Nos.421 & 426 of 2023 undergoing treatment in the hospital, one G.Laxman who was his close friend, hatched a plan to grab the suit property and obtained the signature of her husband on blank papers and brought into existence the fabricated document purported to have been executed by Prabhakar Rao for sale of suit schedule property in the name of defendant No.3 i.e., G.Padma, who is the wife of G.Laxman. The recitals of the said document goes to show that Prabhakar Rao, to meet his necessities, has agreed to sell the land for Rs.5,00,000/- and on 19.01.1992 an amount of Rs.4,75,000 has been paid as advance sale consideration and the remaining balance of sale consideration will be paid at the time of execution of sale deed. However, there is no recital that Prabhakar Rao has delivered possession of suit schedule property in favour of defendant No.3 therein.
5.3. The plaintiff further averred that without having any right, defendant No.3 has filed O.S.No.10/2000 for specific performance of contract against the plaintiff and her mother-in-law- S.Parvathamma to execute a registered sale deed in her favour by receiving remaining sale consideration of Rs.25,000/-, but in the meanwhile another suit was filed for partition and separate 4 LNA, J S.A.Nos.421 & 426 of 2023 possession of the property including the suit schedule property, against plaintiff and others. While the said suit was pending, defendant No.3 had executed a registered sale deed bearing No.2142/2003 in favour of defendant Nos.1 and 2 in respect of the suit schedule property for Rs.4,41,000/- and the said defendants were put in possession of the suit schedule property. In fact, defendant No.3 has no right to sell the suit schedule property. Furthermore, the suit-O.S.No.10 of 2000 filed by defendant No.3 was dismissed for default, thereby she has lost right over the suit schedule property and the sale deed which was executed by defendant No.3 in favour of defendant Nos.1 and 2 is unenforceable. The defendants are trying to interfere with the peaceful possession of the plaintiff over the suit schedule property. Hence, the suit.
6. Defendant No.1 filed written statement stating that the plaintiff has not inherited the suit schedule property from Prabhakar Rao. In fact, Prabhakar Rao has sold the said property to defendant No.3 by simple sale deed for consideration of Rs.3,00,000/- and said document was validated by collecting sufficient stamp duty Rs.33,000/- by District Registrar Karimnagar. 5
LNA, J S.A.Nos.421 & 426 of 2023 Defendant No.3 has sold the suit schedule property to defendant Nos.1 and 2 for Rs.4,41,000/- and also delivered possession of suit schedule property to them. Later defendant Nos.1 and 2 sold the suit schedule property to defendant Nos.4 and 5 for sale consideration of Rs.4,85,000/- and after receiving full consideration, registered the suit house and therefore, defendant Nos.4 and 5 are in possession of the suit schedule property even after filing the present suit. Hence, prayed to dismiss the suit
7. Defendant No.2 adopted written statement of defendant No.1.
8. Defendant No.3 filed written statement stating that as the husband of plaintiff i.e. S.Prabhakar Rao was in need of money for his treatment, he had sold away the suit schedule property to her for Rs.3,00,000/- and the sale deed is validated by collecting stamp duty by the District Registrar. Defendant No.3 reiterated the contentions of defendant No.1 in the written statement as regards the future transactions in respect of the suit schedule property.
9. Based on the above pleadings, the trial Court framed the following issue for trial:-
"(1) Whether the plaintiff is entitled for declaration and 6 LNA, J S.A.Nos.421 & 426 of 2023 crystal relief of permanent injunction as prayed for? (2) To what relief?"
10. The brief facts of the case, shorn off unnecessary details, which led to filing of Second Appeal No.421 of 2023 are that the plaintiffs are the exclusive owners and possessors of the suit schedule property having purchased the same from one B.Nirmala and S.Sunitha through a registered sale deed. After purchasing of property, they got demolished the old house and obtained permission for construction of the house. It was averred that one G.Padma has sold the suit schedule property through registered sale deed vide document doc. No.2142/2003 in favour of vendors of the plaintiffs. The husband of the defendant-Prabhakar Rao died about 6 years back. The said Prabhakar Rao had sold the suit schedule property to one G.Padma on 19.01.1992 through unregistered sale deed which was impounded by District Registrar by paying stamp duty of Rs.33,000/-. The plaintiffs after purchasing the suit schedule property, have raised compound wall around and are possession of the property and that the defendant along with her men tried to interfere with their peaceful possession. 7
LNA, J S.A.Nos.421 & 426 of 2023
11. The defendant who is plaintiff in O.S.No.58/2005 has filed written statement by reiterating the contents of her plaint in O.S.No.58/2005.
12. Basing on the above pleadings, the trial Court has framed the following issues for trial:-
"(1) Whether the plaintiff is entitled for perpetual injunction as prayed for?
(2) To what relief?"
13. Both the suits were clubbed together and joint trial was conducted. After clubbing the trial Court has determined the following points:
"1. Whether the plaintiffs in O.S.No.58/2005 are entitled for the declaration?
2. Whether the plaintiff in O.S.No.58/2005 is entitled to the relief of perpetual injunction ?
3. Whether the plaintiff in O.S.No.164/2006 is entitled for the relief of perpetual injunction as prayed for
4. To what relief ?"
14. On behalf of the plaintiff, PWs.1 to 4 were examined and Exs.A-l to A-13 were marked. On behalf of the defendants, DWs.1 to 5 were examined and Exs.B1 to 10 were marked. 8
LNA, J S.A.Nos.421 & 426 of 2023
15. The trial Court after perusing the material on record and after hearing both sides, decreed the suit-O.S.No.58 of 2005 vide its judgment dated 20.02.2018. The trial Court categorically observed that the plaintiff has filed the documents of her husband i.e., Exs.A-2 and A-3 to show that her husband purchased the suit property. However, defendant No.3 claimed the suit schedule property on the basis that the husband of the plaintiff alienated the same in her favour by agreement of sale-Ex.A-5. She has filed suit for specific performance of agreement of sale under Ex.A-4, but she has not pressed the said suit. The said agreement of sale is not registered document. Thus, from the facts it is evident that the sale deed was regularized without giving any notice to the parties concerned and without paying the balance amount and without delivery of possession and therefore, it cannot be said that the sale was concluded and thus, defendant No.3 cannot claim absolute rights over the property. Therefore, when the title of defendant No.3 is not proved, the title cannot pass to defendant Nos.1 and 2 though they purchased the suit schedule property from defendant No.3 through registered sale deed. Similarly, defendant Nos.3 and 4, who purchased the suit schedule property from defendant Nos.1 9 LNA, J S.A.Nos.421 & 426 of 2023 and 2, also do not derive any title in respect of the suit schedule property.
15.1. The trial Court while dealing with the aspect of possession of the parties over the suit schedule property observed as under:-
"In fact, the signature will be obtained on the top or bottom of the words executants, but Ex B-2 shows that after the words executant, after long gap signature was obtained. It clearly shows that the signature was obtained on blank paper and subsequently it was prepared. Further, the signatures of five persons are appearing on the document but the defendants have not examined any of them so they failed to prove the execution of document Ex A-3, they might have filed the tax receipt and miscellaneous receipts but the facts shows that they are creating the documents so only for the purpose of this suit they might have obtained the documents. It is very unfortunate to say that whenever the taxes are paid, the municipality is collecting it and issuing receipts and they are not enquiring about the ownership over the property whether the real owners are paying the property tax or not. The parties by taking advantage of the receipts claiming the rights over the property. This court feels that the defendants failed to produce any such convincing material to show that lawfully they entered into the possession 10 LNA, J S.A.Nos.421 & 426 of 2023 Further, as per Ex.A-3 when the possession was not delivered and defendant No.3 asked the court to deliver the possession, how can they claim possession over the property. There is no validity to the registered sale deeds of defendants so the plaintiff is entitled to the declaration that the registered sale deed should be declared as null and void."
15.2. The trial Court further held that the defendants have no locus standi to question the possession of the plaintiff over the suit schedule property when the sale deeds through which they claim possession convey defective title.
15.3. While dealing with O.S.No.164 of 2006, the trial Court observed that as already discussed in O.S.No.58 of 2005, the plaintiff, who is defendant No.3 in O.S.No.58 of 2005, cannot get any valid title over the suit schedule property basing on Ex.A-3 agreement of sale and therefore, no title passed in favour of defendant Nos.1 and 2 and in turn to defendant Nos.3 and 4, and thus, there is no validity to the sale deeds and mutation proceedings. The trial Court has further observed that the plaintiff, who is defendant No.3 in O.S.No.58 of 2005, took inconsistent pleas of ownership on one hand and adverse possession on other hand. Thus, by the aforesaid discussion, the trial Court held that he 11 LNA, J S.A.Nos.421 & 426 of 2023 is not entitled to the relief of perpetual injunction and accordingly, dismissed the suit-O.S.No.164 of 2006.
16. On appeals being filed, the first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record, dismissed the appeals, vide its judgment dated 02.06.2023.
16.1. The first Appellate Court, as regards Ex.B-2-agreement of sale, categorically observed as hereunder:-
"According to D3 she has purchased the suit schedule property under Ex.B2. As I already stated above, Ex.B2 is only an agreement of sale for the suit schedule property but not a complete sale deed. Sec 54 of the Transfer of Property Act.
According to defendant No.3, Ex.B-2 is validated before Collector by collecting stamp duty of Rs.33,000/-. Collecting stamp duty on a unregistered document is different from registration of the document. If the document is registered, said document, at best, will help the party as a shield but not a sword. Unless and until the document is duly impounded, no valid title will be transferred in favour of D3. Even the collector is not having any authority to impound an agreement for sale. Even for a while it is presumed that an agreement of sale deed is registered by District Registrar, even then that document is helpful for 12 LNA, J S.A.Nos.421 & 426 of 2023 D3 as a collateral purpose and basing on the said document. D3 cannot claim title over the property."
17. Heard Sri Vadlakonda Ravi Kumar Reddy, learned counsel for the appellants in both the appeals.. Perused the record.
18. A perusal of the record discloses that both the trial Court and the first appellate Court, basing on the oral and documentary evidence adduced by both the parties, categorically held that defendant No.3 cannot claim title over the suit schedule property basing on Ex.B-2-agreement of sale deed, which is not proved, and further, the sale is not concluded and as such, no title flows to the purchasers from defendant No.3.
19. Learned counsel for appellants argued that the trial Courts rendered the judgments impugned herein without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the judgments passed by the trial Court.
20. However, learned counsel for appellants failed to raise any substantial question of law to be decided by this Court in these Second Appeals. In fact, all the grounds raised in these appeals are 13 LNA, J S.A.Nos.421 & 426 of 2023 factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
21. It is well settled principle by catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
22. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
23. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellants are factual 1 (2007) 1 Supreme Court Cases 546 14 LNA, J S.A.Nos.421 & 426 of 2023 in nature and no question of law much less a substantial question of law arises for consideration in these Second Appeals.
24. Hence, both the Second Appeals fail and the same are accordingly dismissed at the stage of admission. No costs.
25. Pending miscellaneous applications, if any, shall stand closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: 28.02.2024
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