Telangana High Court
P.Ramanadham vs Smt.V.Sumathi on 2 May, 2025
THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA
CITY CIVIL COURT APPEAL No.359 OF 2019
JUDGMENT:
This is an appeal filed by the appellants, being aggrieved by the judgment and decree, dated 17.04.2019 passed in O.S.No.201 of 2014 by the learned XXVII Additional Chief Judge, City Civil Court, Secunderabad (for short "the trial Court").
2. The appellant herein is the plaintiff and the respondent is the defendant before the trial Court. The parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity.
3. The case of the plaintiff is the he is the absolute owner of the suit schedule property i.e. residential house consisting of ground floor + two upper floors of house bearing No.1-3-302 (old No.287) admeasuring 1245 sq.feet constructed on plot admeasuring 66.08 Sq.yards or 55.25 Sq.Meters situated at Comsary Bazar, Bowenpally, Secunderabad, having purchased the same from the defendant through a registered sale deed bearing document No.1469 of 2013 dated 16.09.2013. It is his case that originally the defendant being the absolute owner and possessor of the suit schedule property offered to sell the same to ETD,J CCCA No.359_2019 2 the plaintiff for a consideration of Rs.14,12,000/- and that the plaintiff agreed to purchase the same and thus paid an amount of Rs.14,07,000/- out of the total sale consideration of Rs.14,12,000/- and that the defendant has executed a registered agreement of sale -cum - GPA vide document No.1487 of 2010, dated 22.07.2010 in favour of the plaintiff having received the said advance amount and also delivered the constructive possession of the suit schedule property and that the balance sale consideration of Rs.5,000/- was also paid by the plaintiff and that the defendant has also acknowledged the same by issuing the receipt. It is his case that while executing the agreement of sale - cum - GPA the defendant has agreed to vacate the suit schedule property and gave it in writing and also that he would get the tenants occupying the other portions in the suit schedule property to vacate the premises within a period of six months. It is his further case that the defendant has undertaken to pay a fixed amount of Rs.20,000/- per month towards the rent of suit schedule property until the same is vacated. Thus, the plaintiff is entitled for rent @ Rs.20,000/- per month from 22.01.2011 and that the defendant did not pay the agreed rent per month. The plaintiff has further averred that exercising his authority granted by the defendant in his favour under registered agreement of Sale
- cum - General Power of Attorney, he got executed the registered ETD,J CCCA No.359_2019 3 sale deed bearing document No.1469 of 2013 dated 16.09.2013 in favour of himself, thereby transferring the title of the suit schedule property in his favour and has also informed the defendant about the same. It is his case that on 18.09.2013 he received a legal notice from the defendant contending that the plaintiff has not paid any sale consideration under the registered agreement of Sale-cum-GPA, thereafter, the plaintiff issued a reply notice denying the averments in the said notice issued by the defendant and asked the defendant to vacate the suit schedule property within a period of one month from the date of receipt of the reply notice. But that the defendant has not chosen to vacate the suit schedule property. Thus, the defendant is liable to pay a sum of Rs.7,60,000/- to the plaintiff towards unpaid rents from 22.01.2011 to 21.03.2014 and also is liable to pay the mesne profits @ Rs.20,000/- from the date of suit till vacating the suit premises. Thus, he filed a suit with the said prayer.
4. The defendant has filed his written statement denying the averments in the plaint and contended that no consideration has been passed to the defendant and that she has not issued any receipt in favour of plaintiff. It is further contended that the defendant is not liable to pay any mesne profits @ Rs.20,000/-
ETD,J CCCA No.359_2019 4 and that the plaintiff is not entitled to take possession of suit schedule property and recover any rents from the defendants.
5. Based on the above pleadings, the trial Court has framed the following issues for trial:
"1) Whether the plaintiff is entitled for delivery of possession of suit schedule property?
2) Whether the plaintiff is entitled for recovery of an amount of Rs.7,60,000/- as arrears of rent?
3) Whether the plaintiff is entitled for future mesne profits as prayed for?
4) To what relief?"
6. At the time of trial, plaintiff got examined as PW1 and Exs.A1 to A10 were marked. On behalf of the defendant, DW1 was examined but no documents were marked.
7. Based on the evidence on record, the trial Court has dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is filed.
8. Heard the submissions of both the counsel.
9. The learned appellant counsel has submitted that the plaintiff is the absolute owner of the suit schedule property and that the trial Court has failed to appreciate the same. His contention is that by virtue of agreement of sale-cum-general power of attorney, dated 22.07.2010 he has absolute power to sell ETD,J CCCA No.359_2019 5 the property and thus, he has executed a sale deed in his own favour and thus, he became the absolute owner of the suit schedule property. He further argued that the trial Court failed to appreciate the evidence on record with respect to the agreement of sale and also the sale deed executed in favour of the plaintiff. He further contended that the trial Court ought to have decreed the suit by observing the fact that the defendant failed to vacate the suit premises in spite of entering into an agreement with the plaintiff. He further argued that the trial Court failed to appreciate the evidence in a proper perspective and thus, failed to decree his suit. He therefore, prayed to set aside the judgment and decree of trial Court by allowing this appeal.
10. The learned respondent, on the other hand, has argued that the suit filed by the plaintiff is without any basis and that without there being any title in his favour, he is claiming to be the owner of the suit schedule premises and that he contended that he has denied the title of the plaintiff in his written statement and it was the duty of the plaintiff to file a suit for declaration of title but he failed to do so. He further argued that in the absence of any title in his favour the plaintiff cannot claim to be the owner and cannot claim any rents or mesne profits from the defendants, therefore he ETD,J CCCA No.359_2019 6 has no right to get the suit premises to be vacated. Hence, he prayed to dismiss the appeal.
11. Based on the above rival submissions, this Court frames the following points for consideration:
1) Whether the plaintiff is entitled for delivery of possession and for recovery of arrears of rent?
2) Whether the plaintiff is entitled for future mesne profits?
3) Whether the judgment and decree of the trial Court is sustainable in law and under the facts?
4) To what relief?
12. POINT NOs.1 AND 2:
a) To claim delivery of possession and recovery of arrears of rent, the plaintiff has to prove in the first instance his entitlement to recover the same. The plaintiff has filed Exs.A1 to A10. A perusal of Ex.A1 reveals that it is a sale deed bearing document No.1469 of 2013 dated 16.03.2013 wherein the vendor is one V.Sumathi represented by her GPA holder P.Ramanadham, executed in favour of Sri P.Ramanadham. The contents of the said sale deed at clause No.E shows that the schedule property was agreed to be sold for a consideration of Rs.14,12,000/- and that an amount of Rs.14,07,000/- was received and that the ETD,J CCCA No.359_2019 7 vendor has executed a registered AGPA with possession in favour of the vendee vide document No.1180 of 2010 and at clause G it is mentioned that pursuant to the said registered AGPA, the vendee acting for and on behalf of the vendor is executing the sale deed favouring himself conveying the schedule property. A perusal of the signatures reveals that one P.Ramanadham signed for the vendor as well as vendee. Ex.A2 is the certified copy of registered agreement of sale-cum-GPA with possession bearing document No.1185 of 2010 in favor of Sri P.Ramanatham. A perusal of the schedule annexed to the sale deed also shows the vendor's name as V.Sumathi executed through its GPA holder Mr.P.Ramanadham. The contents of the said document reveal that in pursuance of the said agreement, the vendee/attorney holder has paid Rs.14,07000/- as advance amount out of the total sale consideration of Rs.14,12,000/- and that the vendor has accepted the same and it also bears both the signatures of Sumathi and Ramanadham. One of the clause in the said agreement further shows that the attorney holder is empowered to execute on behalf of the vendor any agreement of sale, sale deed, receipts of payment to the prospective purchasers. Ex.A3 is an MOU. The contents show that the first party i.e. Sumathi agreed to vacate the suit schedule property and get the tenants vacated within a period of six months and deliver the possession thereon ETD,J CCCA No.359_2019 8 to the second party ie. P.Ramanadham and it is also agreed to pay an amount of Rs.20,000/- towards rent of suit schedule property until the same is vacated, payable by 10th of successive month.
b) In the cross examination of PW1 it is elicited that he knows the defendant through her husband and he admitted that one Uma Maheshwar Rao came to him on 22.07.2010 i.e. on the date of registration of AGPA and that he has taken the original documents from the defendant. It is elicited from him that he has not obtained cash receipt for Rs.8,47,000/- from the defendant.
He further admitted that as per Ex.A2/the registered AGPA, the possession was delivered. A perusal of Ex.A2 reveals that constructive possession is delivered. He further admitted that the present suit is filed for delivery of possession and for rents. If at all the contents of Ex.A2 are true, then the plaintiff must have been already put in possession, then the question of filing a suit for delivery of possession does not arise. He admitted that from the date of Ex.A2 he is not in possession of the suit schedule property and he further admitted that he filed an application before the Legal Services Authority at City Civil Court for settlement of this case and that before DLSA he mentioned that he purchased the property for Rs.14,07,000/-. He has further stated that he has not issued any legal notice to the defendant for ETD,J CCCA No.359_2019 9 payment of rent or for eviction till the year 2014. He further admitted that Ex.A1 sale deed was obtained by him in his name pursuant to Ex.A2 and also in Ex.A1 he himself is the vendor and also vendee and that he has not given any prior notice to the defendant while executing Ex.A1.
c) It is elicited from DW1 in her cross examination that her husband has taken her to Dilsukhnagar around 8 to 9 year ago and that she met the plaintiff for the first time and that her husband obtained signatures on a paper on which a revenue stamp was affixed and she does not know the contents of the document and DW1 has admitted her signatures on Exs.A2, A3 and A10.
d) The contention of the appellant counsel is that when the defendant has admitted her signature on Exs.A2, A3 and A10, his contention is proved that the GPA has been executed by the defendant and also that a Memorandum of Understanding has been entered between the two parties and he further contends that the cash receipt under Ex.A10 stands proved. Though DW1 has admitted her signature in Ex.A2, i.e. execution of AGPA in favour of the plaintiff, the contents therein reveal that he is empowered to execute on behalf of the vendor, any agreement of sale, sale deed, receipts of payment to the prospective purchasers ETD,J CCCA No.359_2019 10 but here the plaintiff has produced Ex.A1 saying that he has the capacity to transfer the property in to his own name because he holds the GPA executed by the defendant. The sale by a person in his own favour is unknown to law.
e) A perusal of Ex.A1 reveals the fact that the plaintiff herein has executed a sale deed in his own favour by acting as a GPA holder of the defendant. Thus, he says that by virtue of Ex.A1 he has become the owner of the property, thus he claims delivery of possession.
f) A perusal of Ex.A2 reveals that the constructive possession is delivered to the plaintiff. If that is the case there will not be any necessity for the plaintiff to claim delivery of possession again. A perusal of the oral evidence reveals that the defendant is a house wife and she is not aware of the dealings with regard to any real estate or any business transaction. Thus, she has time and again stated in her evidence that her husband knows about the transactions but she does not know anything. It is further elicited from her that her husband has taken her to a place at Dilsukhnagar and that her signatures were obtained on a stamp paper, therefore, mere admission of the defendant on the said documents do not entitle the plaintiff to prove the genuinity of Ex.A1. When the genuineness of Ex.A1 is under a cloud, this ETD,J CCCA No.359_2019 11 Court cannot hold that the plaintiff is entitled to delivery of possession from the defendant and further it cannot be held that the plaintiff can recover arrears of rent from the defendant.
g) The learned appellant counsel has relied upon a judgment of the Hon'ble Supreme Court in Shakeel Ahmed v. Syed Akhlaq Hussain 1, wherein it was held that the unregistered agreement to sell by itself is a document which is not enforceable in law. However, its only admissibility would be for collateral purposes and not for claiming any rights thereunder of ownership in a Court of law. Though the appellant counsel has relied upon this decision, it does not aid the case of the appellant in any way. In the absence of any genuine registered document in his favour, he cannot claim to be the owner of the property, nor he can claim any possession of the property.
h) The learned respondent counsel relied upon a case in Anathula Sudhakar vs. P.Buchi Reddy 2, wherein it was held that if two persons claimed to be in possession of the vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. In the present case, the plaintiff failed to establish his title, 1 2023 INSC 1016 2 MANU/SC/7376/2008 ETD,J CCCA No.359_2019 12 in fact he failed to claim declaration of title while the defendant is in possession of the suit schedule property. Therefore, it can be safely held that the plaintiff does not succeed to claim recovery of possession in the absence of any title while the defendant is in possession of the suit schedule property.
i) The learned respondent counsel further relied upon a case in Daggubati Ranganayakulu v. Polini Venkata Subbaiah and others 3, wherein it was held that a suit for mere possession can be successfully pursued, if only there does not exist any dispute as to the title, or prior possession recognized by law. If there is any cloud on the title, vis-à-vis the property sought to be recovered, it becomes difficult for the court to grant relief, and the controversy would drift into the one of declaration of title. Any failure, in this regard, is prone to have its own effect, upon the permissibility of granting the relief of mere recovery of possession. The said ratio squarely applies to the present case, wherein there is a cloud on title of the plaintiff, he failed to claim any declaration of title and in the absence of any title he cannot seek recovery of possession.
3 MANU/AP/0551/2007 ETD,J CCCA No.359_2019 13
j) The defendant has denied the averments of the plaint in clear terms in her written statement and further has stated that the defendant is the owner of the suit schedule property and has denied to have executed all the documents and receipts as alleged in the plaint. When such a denial was there in the written statement, it was the duty of the plaintiff to amend his suit for declaration of title, which is not done. Instead of filing a suit for declaration of title, he filed a suit for recovery of possession. Further his own document goes against him, the genuinity of Ex.A1 is under question, if at all possession was delivered under Ex.A2 the question of seeking for delivery of possession does not arise. Thus, it is held that the plaintiff could not prove his case. Therefore, he is not entitled to seek delivery of possession, arrears of rents or future mesne profits from the defendant. Point Nos.1 and 2 are answered accordingly.
13. POINT NO.3:
In view of the reasoned findings arrived at point Nos.1 and 2, it is held that the judgment and decree passed by the trial Court are found to be well reasoned and hence, they are held to be sustainable in law and under the facts and circumstances of the case.
ETD,J CCCA No.359_2019 14
14. POINT NO.4:
In the result, the appeal is dismissed upholding the judgment and decree, dated 17.04.2019 passed in O.S.No.201 of 2014 by the learned XXVII Additional Chief Judge, City Civil Court, Secunderabad. No costs.
Miscellaneous Applications, if any, pending in this appeal shall stand closed.
___________________________ TIRUMALA DEVI EADA, J Date:02.05.2025 ns