Defendants In The Suit Are The vs Unknown
2022 Latest Caselaw 9885 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

                SECOND APPEAL No.748 of 2011

JUDGMENT:

Defendants in the suit are the appellants herein. This

second appeal is filed under Section 100 C.P.C. challenging the

judgment dated 29.03.2011 of learned Judge, Family Court-

cum-Additional District Judge, Ongole in A.S.No.42 of 2008. In

that appeal, the first appellate Court confirmed the judgment of

the learned trial Court/Senior Civil Judge, Kandukur dated

31.03.2008 in O.S.No.37 of 1998. By the time this appeal was

filed there was only one respondent, who was the sole plaintiff

in the suit. During the pendency of this appeal, the sole

respondent died. Thereafter, by virtue of order dated

15.09.2022 in I.A.Nos.1 and 4 of 2022 respondent Nos.2 to 5

were brought on record as legal representatives of the deceased

sole respondent.

2. On 12.07.2011 a learned Judge of this Court admitted

this second appeal on the below mentioned substantial

questions of law:

(a) Whether in a suit for declaration of title and recovery of possession, in the context of there being two sale deeds in favour of the plaintiff and defendant; the original

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owner from whom both of them have purchased, is not a necessary party? and

(b) Whether the title in respect of the suit schedule property can be decided unless the undisputed earlier owner is made as a party?

3. Learned counsel on both sides submitted oral arguments.

4. The above referred substantial questions of law have

arisen in the context of the below mentioned legal proceedings

that took place before the Courts below.

5. Plaintiff in O.S.No.37 of 1998 sued three defendants with

a prayer to declare rights of the plaintiff over the suit schedule

property with a further prayer to put him in possession of the

suit schedule property after evicting defendant Nos.1 and 2 from

the suit schedule property and he also claimed future mesne

profits and costs. An extent of Ac.0.20 cents in Survey No.435

situated in Kanigiri was purchased by the plaintiff from his

original owner namely 'Property Association of Baptist Churches

Private Limited' (for convenience, hereinafter referred to as

'PABC') under a registered sale deed dated 12.01.1981. This

sale deed was executed by Sri Dasari Kotaiah, who was holding

general power of attorney granted to him by Sri B.R.Moses, who

was the president of PABC. Plaintiff gained possession of the

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property and he was enjoying of it. During the subsequent

period plaintiff had come to know that the subsequent president

of PABC stated to have granted a general power of attorney to

one Sri Danthuluri Prakasam. The said general power of

attorney holder sold out Acs.2.00 cents of land in Survey

No.435 to his own elder brother by name Sri Danthuluri

Kondaiah/defendant No.3. By the time the said sale was made,

parties to the transaction knew very well the existing sale deed

in favour of plaintiff. Subsequently, defendant No.3 executed

two registered sale deeds dated 25.09.1997 in favour of

defendant Nos.1 and 2 for different extents of land in the said

survey number. This sale on part of defendant No.3 in favour of

defendant Nos.1 and 2 do not bind on the plaintiff. Having

come to know about these transactions, plaintiff got served a

notice dated 07.10.1997 through his lawyer and the defendants

received it, but they did not give any reply notice. Defendant

Nos.1 and 2 and one Pulla Reddy, who is the husband of

defendant No.1 and father of defendant No.2, together

trespassed into the suit schedule property and occupied it and

constructed a compound wall and all this occurred during the

absence of the plaintiff in the town. It is in these circumstances

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the suit is laid for declaration of title and for recovery of

possession and for mesne profits and costs.

6. Defendant Nos.1 and 2 filed the written statement and

denied the case set up in the plaint. They specifically pleaded

that the vendor, who executed the sale deed in favour of

plaintiff, had no right or title over the property and therefore,

plaintiff did not get any title. The defendants admitted about

purchase of property under two registered sale deeds from

defendant No.3. It is stated that defendant No.3 was holding

valid title and properly conveyed the title to defendant Nos.1

and 2. That these answering defendants have been in

possession of this property and they constructed a compound

wall and two rooms in it. They never trespassed into the land.

On any earlier occasion plaintiff never attempted to seek

recovery of possession of his property.

7. On these rival contentions, the learned trial Court settled

the following issues for trial:

1. Whether the plaintiff purchased the schedule mentioned property under a registered sale deed dated 12.01.1981 from the Property Association of Baptist

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Church (P) Ltd., and is in possession and enjoyment of the same?

2. Whether the vendor of the plaintiff has no absolute legal right to sell the schedule property?

3. Whether the plaintiff is not entitled to claim any declaration or possession of the schedule mentioned property?

4. Whether the 1st defendant who is mother of the 2nd defendant purchased an extent of 0-099 cents under a registered sale deed dt.25.9.1997 from Danthuluri Kondaiah and put in possession of the same?

5. Whether the 2nd defendant purchased an extent of Ac.0-084 cents under a registered sale deed dt.25.9.1997 and he was put in possession of the same from said Kondaiah?

6. Whether the plaintiff attempted to recover possession of the suit schedule property through mediation which proved futile?

7. Whether there is no cause of action to file this suit?

8. To what relief?

8. PWs.1 to 4 for plaintiff and DWs.1 to 5 for defendants

were examined. Exs.A.1 to A.12 for plaintiff and Exs.B.1 to B.8

for defendants were marked. During trial, an advocate

commissioner was taken out and he filed his report along with a

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plan and photos and negatives and all of them became Exs.C.1

to C.9.

9. On considering the entire evidence on record and after

considering the arguments advanced on both sides, the learned

trial Court held all the issues in favour of the plaintiff and

granted all the reliefs claimed in the suit.

10. As against that, all the three defendants preferred

A.S.No.42 of 2008. The learned first appellate Court on hearing

both sides and on revisiting the evidence on record agreed with

the findings of the trial Court on all the issues and held that

there were no justifiable grounds to interfere with the judgment

of the trial Court. The learned Additional District Judge

dismissed the appeal and confirmed the judgment of the trial

Court.

11. It is as against that, the present second appeal was filed.

12. The following few facts remained undisputed from the

pleadings and evidence and from the findings of the Courts

below.

13. The admitted position on both sides is that the present

property in dispute was owned by PABC. The first transaction

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of sale came in favour of the plaintiff under Ex.A.1-registered

sale deed dated 12.01.1981. It is with reference to Ac.0.20

cents out of Acs.5.20 cents in Survey No.435 of Kanigiri. The

second transaction of sale came in favour of defendant No.3

under Ex.B.5-registered sale deed dated 20.06.1995. This is for

Acs.2.00 cents in Survey No.435, Kanigiri. Ex.A.1-sale deed of

plaintiff was executed by Sri Dasri Kotaiah, who was holding

general power of attorney on behalf of PABC. Certified copy of

resolution of PABC is Ex.A.8 and this resolution is dated

26.06.1979. A Photostat copy of general power of attorney, who

executed Ex.A.1-sale deed in favour of plaintiff, is Ex.A.7. the

property that was purchased by defendant No.3 under Ex.B.5

registered sale deed dated 20.06.1995 was executed by another

power of attorney holder of PABC whose name is mentioned as

Sri Danthuluri Prakasam, who is the very brother of defendant

No.3. The said general power of attorney is not part of the

evidence. Thus, the essential dispute that came up between the

parties is one that was there between plaintiff and defendant

N0.3. Claim of plaintiff covered by Ex.A.1 is only for Ac.0.20

cents. This Ac.0.20 cents is part of Acs.2.00 cents purchased

by defendant No.3 under Ex.B.5. While the original owner is

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PABC each side got conveyances through different power of

attorney holders. Chronologically speaking Ex.A.1 is anterior in

point of time as against Ex.B.5. Ex.A.1 is of the year 1981 and

Ex.B.5 is of the year 1995. The crux of the dispute lies only

there. Before addressing it, a few more aspects need be

recorded.

14. It is from defendant No.3 two registered sale deeds

emanated as per Exs.B.1 and B.2 in the year 1997 for different

extents of land and the plaintiff's Ac.0.20 cents is part of the

property covered by these two conveyances. Undisputedly

defendant Nos.1 and 2 have been in possession of property

covered by Exs.B.1 and B.2. In other words, defendants are

stated to have been in possession of their own property, which

included, as per the allegations in the suit, Ac.0.20 cents of

plaintiff's land covered by Ex.A.1. Though by the pleadings on

both sides existence and execution of the registered

conveyances brought on record by both sides are undisputed,

yet, at the trial both sides examined attestors to these

documents to prove their registered conveyances. Be that as it

may.

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15. The need for the plaintiff to seek declaration of his title

and to seek recovery of possession occasioned because the

defendants not only occupied his property but also telling him

that the conveyances executed by general power of attorney in

favour of plaintiff was invalid since the said GPA holder had no

power to convey the title. During the discussion, the learned

trial Court adverted to this aspect of the matter and negatived

the contentions of defendants and held the aspect in favour of

the plaintiff. The main question on which both at the suit as

well as in the first appeal as well as in the second appeal the

controversy raised is based on another important document

which is Ex.B.4. In the appendix of evidence of the judgment of

the learned trial Court this Ex.B.4 is referred as certified xerox

copy of award on the file of High Court of Madras. It seems that

in a company petition certain contempt applications came to be

filed before the Hon'ble High Court of Judicature at Madras and

it was in that context Justice K.Punnaiah/retired Judge of High

Court of Andhra Pradesh was appointed as a sole arbitrator and

the learned Judge-Arbitrator held a very detailed enquiry and

finally passed an award on 17.07.1991. A copy of that award is

Ex.B4 and that is made part of the record in this second appeal

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by the appellants. Learned counsel on both sides made

reference to these very set of papers. Page No.147 of it is

relevant. At the bottom of this page properties at Kanigiri

belonging to PABC and the various sale deeds and agreements

for sale were earlier considered concerning these properties and

the conclusions are referred at that page. Be it noted that the

claim of plaintiff based on Ex.A.1 sale deed is that

the said conveyance was executed by Sri Dasari Kotaiah holding

GPA from PABC. In Ex.B.4 award at page No.147 a reference is

made to these conveyances made by said Sri Dasari Kotaiah

pertaining to Kanigiri Village and there it is mentioned that the

conveyances executed by him are void. Thus, this finding that

was recorded by learned sole arbitrator in the year 1991

concluded that conveyances entered by Kotaiah (it must include

Ex.A.1 dated 12.01.1981) is void. It is based on this a valiant

argument of appellants and the very eloquent submissions of

the learned counsel for appellants rest. Without looking into

any other aspect, if only goes by what is just now referred above

the immediate logical conclusion would be that Ex.A.1 was

invalid and therefore plaintiff had no title. The legal issue could

not be as simple as the logic purports to allude. This point of

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importance was considered by the learned trial Court. At para

No.15 of the judgment of the trial Court, the learned Senior Civil

Judge mentioned that the entire Ex.B.4 is not useful since

defendants failed to produce before him making that award a

rule of the Court as required under law. Therefore, he excluded

Ex.B.4 from consideration. Be it noted, either before the first

appellate Court or before this Court learned counsel for

appellants did not raise any legal controversy on that

observation. It could not have been raised since the entire

proceedings of the sole arbitrator pertain to a period when the

Arbitration Act, 1940 was in force. Though the said enactments

stood repealed and in its place the Arbitration and Conciliation

Act, 1996 came into force, that new legislation was not available

by the time Ex.B.4 award was made. As per Section 14 and 17

of the Arbitration Act, 1940, the award of an arbitrator does not

attain legality and enforceability until it was filed into the Court

and the Court accepts it and makes it rule of Court and passes

a decree in terms of it. The fact that appellants/defendants

were able to file only the award and not the rule of the Court

makes one to think that the award never became rule of Court.

In such event Ex.B.4 had no legal sanctity. At the most Ex.B.4

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is only some sort of an opinion about the validity or otherwise of

conveyances executed by Sri D.Kotaiah executant of Ex.A.1 in

favour of plaintiff. Such opinions cannot form basis while

deciding a suit of title. Therefore, two Courts below were

completely right in excluding Ex.B.4 and then deciding the

dispute. At this juncture, I must also record the submissions of

the learned counsel for respondents who drew my attention to

the very same page No.147 in Ex.B.4 and referred to the entry

made in the last column, which shows that though the

conveyances made by Kotaiah were held invalid what was

mentioned by arbitrator there is that the title holder has to file a

suit for recovery of possession. Learned counsel for

respondents submit that merely because somebody was telling

that Ex.A.1-registered sale deed is void it does not become so

until someone chose to avoid that document. In the alternative,

learned counsel submits that under Ex.A.1 possession was

there with plaintiff and the award in Ex.B.4 recognizes that and

the original title holder was advised to file a regular suit and

seek for recovery of possession of the property. Learned counsel

states that so far no such suit was ever filed by the original

owner. Therefore, the title and possession held by the plaintiff

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was never challenged by the very original owner. It is to be

recorded here that it is not the case of the appellants that any

such suits were filed and properties were recovered as against

the present deceased respondent No.1/plaintiff in the suit. As

long as that did not occur the assertions of right and possession

claimed by plaintiff cannot be disputed. Moreover, the invalidity

of GPA was not established by adducing any evidence other

than by way of Ex.B4.

16. Referring to Ex.B.4 the submission of the learned counsel

for appellants is that plaintiff must come to Court with clean

hands and he suppressed Ex.B.4. Having considered this

submission and having gone through the evidence on record, I

find that there is no material on record to think that the plaintiff

who held the title deeds since 1981 and who filed the suit in

1998 knew anything about Ex.B.4 arbitration proceedings. One

who does not know a fact cannot said to be a person concealing

a fact. Not knowing a fact is different from concealment of a

fact. Therefore, plaintiff cannot be attributed with suppression

of any material fact.

17. Learned counsel for appellants submit that the law has

always been clear that one who claims title has to prove title by

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his own evidence and he should never bank upon the

weaknesses in the case of defendants. This proposition is

undisputed. However, the record available here does not

indicate any contrary approach on part of Courts below. They

considered Ex.A.1 and all the witnesses concerning Ex.A.1 and

they considered Ex.B.4 and excluded Ex.B.4 for valid reasons

and then concluded that the title was with the plaintiff. Since

defendants also hold their claims on registered conveyances of

subsequent periods, they deserved consideration and therefore,

Courts below considered the evidence and I have not seen from

the judgments of Courts below anywhere any inclination on part

of the Courts below in granting the relief to plaintiff by utilizing

any infirmities in the title of the defendants. Therefore, this

contention of the learned counsel for appellants has to be

negatived.

18. Learned counsel for appellants submit that such erudite

award of a retired and esteemed Judge of this Court must have

become a rule of law by now and therefore, the judgments of the

Courts below should be upset. This ambitious argument cannot

be considered since no one knows about what other legal

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proceedings took place concerning the award. What is not

available cannot be termed to be available and what was not

done cannot be presumed to have been done. If the award

became rule of law, it was always within the competence of

these appellants who were asserting it to produce that. Though

the litigation commenced in the Courts below in the year 1998,

though 24 years lapsed from then till now and though nearly

three decades elapsed from the date of award/Ex.B.4, these

appellants have not filed a document indicating that the award

became rule of Court. It must therefore be considered that it

never became rule of the Court. Therefore, this argument of the

learned counsel for appellants is negatived.

19. Coming to the judgment of the first appellate Court, there

is one point that is argued by the learned counsel for

appellants. A reading of the judgment of the appellate Court

does not indicate any interlocutory applications pending before

it. However, the record placed before me shows that these

appellants who were also appellants before the first appellate

Court filed I.A.No.345 of 2010 in A.S.No.42 of 2008 under Order

XLI Rule 27 read with Section 151 C.P.C. seeking to produce

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additional evidence in the form of eight documents, which are

mentioned below:

1. Dt.06.05.2004: Decree and Judgment in O.S.No.188/96 on the file of the Junior Civil Judge Court, Kanigiri.

2. Dt.24.11.2008: Decree and Judgment in O.S.No.73/97 on the file of the Junior Civil Judge Court, Darsi.

3. Dt.24.11.2008: Decree and Judgment in O.S.No.74/97 on the file of the Junior Civil Judge Court, Darsi.

4. Dt.1.09.2008: Judgment in A.S.No.18/04 on the file of Senior Civil Judge, Kandukur set asiding the Decree and Judgment in O.S.No.36/98 on the file of the Junior Civil Judge, Kanigiri.

5. Dt.26.06.1979: Resolution copy passed by the PABC, Madras.

6. Dt.01.07.1995: Deed of Association marked as Exhibit in O.S.No.74/97 on the file of the Junior Civil Judge, Darsi.

7. Dt.19.07.1991: Award passed by the Hon'ble High Court of Madras in C.P.31/1980.

8. Dt.03.03.2010: Encumbrance Certificate No.550 issued by the Sub-Registrar, Kanigiri.

20. One could see order dated 29.03.2011 in that I.A.No.345

of 2010 wherein the learned first appellate Court recorded as

below:

"Since main appeal is disposed of, this petition is closed."

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21. Thus, the date of the judgment in first appeal and the

date of order in that I.A.No.345 of 2010 came to be passed on

the same day. This makes it clear that while the application for

production of additional evidence was pending before the

learned first appellate Court and while the law ordains him to

hear and decide that application along with the first appeal he

did not do it. That is certainly a legal defect in the judgment of

the first appellate Court. It is in the light of this defect the

appellants before me made an alternative prayer for remanding

the case to the Courts below for fresh consideration. If one does

not go by any merits of the case and does not consider the facts,

law and justice and considers only the procedure, one has to

necessarily agree with the very strong submission made by the

learned counsel for appellants. However, one also has to

consider that a litigation that has been pending in the Courts

for a quarter century should go back to Court below for a fresh

hearing. It is here one should consider, before taking a

decision, the submission of the learned counsel for respondents.

Learned counsel for respondents submit that out of eight

documents mentioned in I.A.No.345 of 2010 document No.5 is

already on record as Ex.A.8 and document No.7 is award on

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record as Ex.B.4. On facts this is admitted by the learned

counsel for appellants also. Thus, the first appellate Court had

on its record those two documents already available and

therefore, to that extent the considerations rendered by the first

appellate Court cannot be faulted.

22. Coming to the other documents, the suit was filed in the

year 1998. Document No.8 is encumbrance certificate of the

year 2010. The question before the Courts below and here is

not one as to who is a bona fide purchaser and who is not.

Since documents by way of registered conveyances were already

executed by parties, only thing that was left open to the Courts

is to decide which document held the field. Therefore, an

encumbrance certificate obtained after 12 years of litigation

serves no purpose. Now the other documents are merely

judgments of certain trial Courts at Kanigiri and Darsi. It is

admitted by learned counsel on both sides before me that those

judgments are not between the parties to the litigation. Learned

counsel for appellants submit that the case argued by him

based on Ex.B.4 was accepted by the Courts in those judgments

and therefore, they should have been received in evidence. The

judgment of the trial Court in the litigation at hand is dated

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31.03.2008. Document No.1 is dated 06.05.2004 and therefore,

it must have been available with the appellants long prior to

conclusion of the suit. He did not choose to file that before the

trial Court. The other documents are of the year November,

2008 and September, 2008. No one has knowledge as to what

was the evidence made available in those Courts and what were

the respective contentions of parties in those proceedings.

Evidence of another case and conclusions of another trial judge

can never become subject matters for consideration for any

other judge while considering another set of evidence.

Therefore, the flaw in the approach of the first appellate Court

in the case at hand when it ignored to give its judicial

consideration in the application for additional evidence moved

before it by the first appellant therein by itself has not resulted

in any prejudice to the persons who proposed for additional

evidence. It shall be recorded that before this Court there is no

demonstration as to how the appellants were prejudiced for

non-consideration of those proposed documents by the first

appellate Court. It seems that even if all these documents were

admitted by the first appellate Court, the result could not have

been otherwise. Therefore, this Court concludes on this point

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saying that the procedural lapse has in no way dented the

substantial justice and did not cause prejudice to the appellants

herein. Therefore, this contention of the appellants is negatived.

23. The suit is only for declaration of title and for recovery of

possession. The substantial question of law raised is that the

original owner was not made a party. It is argued that original

owner was a necessary party and the plaintiff having not

impleaded him is not entitled for the relief. In support of this,

neither provision of law nor precedent is brought to my notice

by the learned counsel for appellants. Neither Specific Relief

Act nor any other enactment is showed to me to think that in a

dispute of title between two parties the vendors to both parties

or either of the parties is a necessary party. The vendor could be

an important witness, but could not be said to be a necessary

party to the proceedings since he has no title with him now and

has no direct interest in the issues in the suit. Even in the

absence of the vendor, the title between the parties has to be

decided and whatever is decided is a decision that binds the

parties to the proceedings. An effectual decree can be passed

even in the absence of the vendor of either of the parties.

Therefore, it cannot be said that the constitution of the suit is

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bad and no relief can be granted to respondent No.1/plaintiff

vide Hardeva v. Ismail1. Therefore, the contention raised is

incorrect. Points are answered against the appellants.

24. In the result, this Second Appeal is dismissed with costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 28.12.2022 Ivd

AIR 1970 Raj 167 (FB)/ 1969 SCC onLine Raj 37

Dr. VRKS, J S.A.No.748 of 2011

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

SECOND APPEAL No.748 of 2011

Date: 28.12.2022

Ivd