Medikonda Venkata Murali Krishna vs M/S Venspra Entrprises, ...
2023 Latest Caselaw 2964 AP

          HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                            AND
HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD


                    Appeal Suit No.683 of 2016

JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)


      Aggrieved by the judgment and decree dated 29.06.2016 in

O.S.No.39/2002 passed by the learned III Additional District &

Sessions Judge, Vijayawada, decreeing plaintiff's suit and directing

the defendants to vacate the plaint A and B schedule property and

handover the same to the plaintiff, the 1st defendant filed the instant

appeal.

2.    The facts which led to file this appeal by the 1st defendant are

succinctly thus:


      (a) Admittedly, the plaint schedule property in an extent of

864 square yards with constructions thereon situated in Vijayawada

belongs to one Chirravuru Sundarayya Seetharavamma which she

obtained under a Gift Deed dated 14.10.1921 executed by her

parents towards 'Pasupu Kumkuma'. Her husband is C.Sarveswara

Rao. Seetharavamma died intestate and issueless in the year 1974
                                    2




and consequently her husband C.Sarveswara Rao succeeded her

property. While so, the said C.Sarveswara Rao also died on

13.06.1980. To this extent, the facts are not in dispute.

      (b) While so, as per plaint averments, C.Sarveswara Rao died

issueless and intestate and therefore, Chirravuru Venkata Rao, the

father of 2nd defendant and brother of C.Sarveswara Rao, succeeded

his properties including the plaint schedule property. His further

case is that there arose some disputes among the relations of

C.Sarveswara Rao resulted in filing of suits O.S.Nos.290/1980,

331/1981 and 460/1981 in the Civil Courts, Vijayawada. At the

intervention of elders, the parties compromised and they entered into

a registered Partition Deed dated 12.12.1984. As per the terms of

said partition, C.Venkata Rao got 864 sq. yards and he sold a portion

of the said property to others on 31.03.1981. The remaining portion

of 670 sq. yards of the site with superstructures thereon was sold by

C.Venkata Rao and his son Ramana Murthy / 2nd defendant to the

plaintiff in the year 1996 under four Sale Deeds covered by Ex.A1

to A4. Thus, the plaintiff became the absolute owner of the plaint

schedule property.
                                   3




      (c) While so, 3rd defendant claiming herself as daughter of late

C.Sarveswara Rao born through his third wife Lakshmi and that she

succeeded the estate of C.Sarveswara Rao, filed Pauper suit in

O.P.No.215/1992 on the file of the learned II Additional Senior

Civil Judge, Vijayawada against C.Venkata Rao, his son C.Ramana

Murthy and some others in respect of the plaint schedule property

and sought for recovery of A to D schedule properties in that suit.


      (d) Before filing the suit, the 3rd defendant executed Sale

Agreement dated 24.01.1993 in favour of Devineni Baji Prasad in

respect of plaint schedule property in OP No.215/1992. Thereafter

she executed GPA in favour of one Ayodhya Balakrishna to deal

with the Court litigation in OP No.215/1992. As she was not the

daughter of Sri Sarveswara Rao and she had no chance of

succeeding in the suit, she entered into a compromise with Sri

Venkata Rao and Ramana Murthy through her GPA by taking

substantial amount from them and cancelled the Sale Agreement and

returned the advance amount received from her vendee. Then she

remained absent in Court and O.P.No.215/1992 was dismissed and

the interim injunction petition was also dismissed.
                                   4




      (e) Thereafter, C. Venkata Rao and C.Ramana Murthy sold

the plaint 'A' schedule property in favour of plaintiff in 1996 under

four Sale Deeds covered by Exs.A1 to A4.

      (f) The schedule property consists of ground and first floor.

In a portion of first floor the 3rd defendant was in occupation and she

promised to vacate and hand over to the plaintiff, but she failed to do

so and claimed some more amount from the plaintiff to hand over

the possession. While so, there are several tenants in the ground

floor. The 1st defendant was running Venkataramana Travels in a

portion of the property as a tenant. The plaintiff issued notice dated

26.03.1999 to the tenants to vacate their respective portions except

to the 1st defendant, as at that time, he took initiation to settle the

matter with other tenants to get them vacated. As such the plaintiff

has not taken action against the 1st defendant. The tenants by taking

some amount from plaintiff towards their goodwill handed over their

respective portions to the plaintiff.    Thus the plaintiff obtained

possession of different portions in B schedule from different tenants

under receipts.
                                    5




      (g) While so, the 1st defendant in order to knock away the

plaint schedule property, obtained collusive Sale Deeds from 3rd

defendant in April, 2000 without the knowledge of plaintiff. The 3rd

defendant cannot execute Sale Deeds as she had no right. While so,

the 1st defendant broke open the locks of some of the portions i.e.,

item Nos.1 to 4 which were in occupation of plaintiff on 30.04.2000

and put his own locks. The plaintiff gave complaint to police. The

police registered a case in M.C.No.48/2000 before M.R.O.,

Vijayawada Urban and the M.R.O. without making proper enquiry

wanted to return the keys to the defendant.


      (h) His further case is that the plaintiff initially filed the suit

under Section 6 of the Specific Relief Act. However, subsequent to

the passing of order in M.C.No.48/2000 the 1st defendant trespassed

into plaint 'A' and 'B' schedule property and demolished

constructions standing in all items in 'B' schedule property and won

over the tenants in plaint 'A' schedule property and thereby the

plaintiff had no access even to the plaint 'A' schedule property.

Therefore, the plaintiff got amended the plaint and claimed the relief

of recovery of possession of plaint 'A' and 'B' schedule property by
                                    6




ejecting the 1st defendant and his henchmen and tenants and for

recovery of Rs.1,00,000/- towards the value of structures

demolished by the 1st defendant.

      (i) Initially the suit was filed against 1st defendant and later

the defendants 2 to 4 were added as per orders in I.A.No.577/2009

dated 30.09.2014.    However, the defendants 2 to 4 did not file

counter and they remained ex parte.


3.    The 1st defendant filed written statement opposing the suit

contending that he purchased the plaint schedule property in the

month of April 2000 under exhibits B25 to B29 registered Sale

Deeds from the 3rd defendant as she was in actual possession and

control of the property and the tenants were paying rents to her. The

1st defendant obtained delivery of the plaint schedule property from

her and she requested the other tenants of the plaint schedule

property to pay rents to 1st defendant. The 1st defendant paid house

tax to the plaint schedule property and the electricity connection was

transferred in his name on 13.07.2001.


      (a) After purchase of the plaint schedule property, the plaintiff

threatened him to dispossess and 1st defendant resisted his attempts
                                   7




and gave complaint to the police, Governorpet, Vijayawada on

29.04.2000 and on the next day, the plaintiff along with some rowdy

elements threatened the 1st defendant and damaged his office

property on the ground that a complaint was lodged against him.

The 1st defendant gave another report to the police and they referred

the dispute to the Mandal Executive Magistrate, Vijayawada. After

enquiry in M.C.No.48/2000, the Mandal Executive Magistrate

passed orders declaring that the 1st defendant was in legal possession

of the plaint schedule property. The said order was not challenged,

but the plaintiff filed the present suit which is untenable. The 3rd

defendant, who is the vendor of 1st defendant, alone is the lawful

owner of the plaint schedule property being the daughter of original

owner C.Sarveswara Rao. The Sale Deeds obtained by the plaintiff

are nominal and plaintiff cannot get any right over the plaint

schedule property. Further, in view of the interim injunction orders,

plaintiff's vendor is not entitled to execute the Sale Deeds in favour

of the plaintiff.
                                   8




4.    It should be noted that while the suit O.S.No.39/2002 was

thus pending, the pauper suit in O.P.No.215/1992 filed by 3rd

defendant No.3 herein before the learned II Addl. Senior Civil

Judge, Vijayawada was initially dismissed for default and later on

her application, the O.P. was restored and on payment of court fee, it

was numbered as O.S.No.93/1998 and the said suit after trial was

decreed on 05.02.2013 in favour of the 3rd defendant herein. In the

said judgment, learned II Additional Senior Civil Judge gave a

finding that the 3rd defendant herein was the sole legal heir of Sri

Sarveswara Rao and accordingly, decreed the suit partly directing

the defendants therein to vacate plaint B to D schedule properties.

The suit was dismissed so far as items 1 to 4 of plaint A schedule

properties as the 3rd defendant herein has not claimed relief thereof

in view of her compromise with the concerned defendants therein.

The certified copy of decree and judgment in O.S.No.93/1998 was

marked as Ex.B64 on behalf of the 1st defendant in the present suit.


5.    While so, O.S.No.39/2002 is concerned, the trial Court after

considering the evidence and arguments of both sides gave the

following findings:
                              9




(i) The O.P.No.215/1992 filed by the 3rd defendant was
dismissed for default on 1.2.1996 and later it was
restored by allowing I.A.No.3995/1997 filed by 3rd
defendant.    In the interregnum, C.Venkat Rao and
C.Ramana Murthy (D2) executed Exs. A1 to A4 in
favour of the plaintiff by which time there was no
injunction    order   pending    in   O.P.No.215/1992
restraining them from alienating plaint schedule
property.    Plaintiff's vendor got the plaint schedule
property through registered partition deed under Ex.A5
registered Partition Deed.

(ii)   As per Ex.A10 endorsement dated 19.02.1996
D3 relinquished her right in the Plaint-A schedule in
O.P.No.215/1992 in favour of C.Venkata Rao and his
son (D2) and hence she is not entitled to any right and
title over the said property. Accordingly, she cancelled
the Ex.A8-Sale Agreement, which she earlier executed
in favour of one Baji Prasad and made an endorsement
of Ex.A10 on the reverse of Ex.A8, which was signed
by PW-2 and Baji Prasad. Thus the disputes between
D3 and C.Venkata Rao and Ramana Murthy were
settled and thereafter Venkata Rao and Ramana Murthy
executed Exs.A1 to A4 Sale Deeds in favour of
plaintiff. Further, since Exs.A1 to A4 were executed
after dismissal of O.P.No.215/1992, those Sale Deeds
                                10




cannot be said to be invalid. Therefore, D3 cannot have
better title than plaintiff.

(iii)   Further, in O.S.No.93/1998, the 3rd defendant
being the plaintiff has withdrawn her claim in respect
of items 1 to 4 of the plaint schedule property therein.
Since she has not made any claim in respect of the
aforesaid property, the suit was dismissed in respect of
the plaint A schedule property.

(iv)    In O.S.No.93/1998, the trial Court held that the
3rd defendant was the daughter of Sarveswara Rao and
his legal heir. However, as on the date of dismissal of
the O.P.No.215/1992, the 3rd defendant was not
declared as legal heir of Sarveswara Rao and as such
she was not entitled to the property. Hence, during the
period of dismissal of O.P. Sarveswara Rao and his son
Ramana Murthy (2nd defendant) were the legal heirs
and property fell to their share as Class-II legal heirs of
Sarveswara Rao. Above all, the 3rd defendant did not
contest the suit O.S.No.39/2002. If at all Exs.A8 to A10
were not true and correct, 3rd defendant would have
entered the witness box and denied the claim of the
plaintiff.

(v)     The decree in O.S.No.93/1998 has not yet
attained     finality since    one   V.   Rajeswari   filed
                                  11




      I.A.No.370/2013 and prayed to amend the decree and
      same is pending.


      With the above observations, the trial Court decreed

O.S.No.39/2002 and directed the defendants to vacate the Plaint 'A'

and 'B' schedule property and handover the same to the plaintiff.

      Hence, the appeal by 1st defendant.


6.    The Parties in this appeal are referred to as they appeared

before the trial Court.


7.    Heard arguments of Sri M.P.Chandramouli, learned counsel

appearing for Sri P.Hemachandra, counsel for appellant / 1st

defendant    and    Sri   E.V.V.S.Ravi   Kumar,    learned   counsel

representing Smt. Nimmagadda Revathi, learned counsel for

respondent / plaintiff.

8. Severely fulminating the judgment in O.S.No.39/2002,

learned counsel for appellant / 1st defendant argued that the trial

Court totally misred the legal impact of the judgment in

O.S.No.93/1998 (Ex.B64) wherein the 3rd defendant in the present

suit was declared as the daughter of late C.Sarveswara Rao, who is

the owner of the plaint schedule properties. As such under law the

3rd defendant alone is entitled to succeed his estate. Expatiating the

impact of the said judgment, learned counsel would strenuously

argue that the trial Court has not conferred the daughterhood on D3

for the first time through the judgment but only recognized the

already existing fact. Therefore, the decree in O.S.No.93/1998

would relate back to the date when she was born to late Sri

C.Sarveswara Rao and her right to succeed his estate shall be

reckoned from the date of her birth which is a vested right and

enjoyment of the same was only postponed till the death of her

father. Learned counsel lamented that unfortunately the trial Court

has not properly appreciated this legal aspect in right perspective.

He argued that in such misconception, the trial Court erroneously

held as if C.Venkata Rao, the brother of late C.Sarveswara Rao, and

his son Ramana Murthy sold plaint 'A' schedule property in favour

of the plaintiff at a time when O.P.No.215/1992 filed by D3 herein

was dismissed and when no injunction order restraining them from

alienating the property was in operation and most importantly when

at that time D3 was not yet declared as legal heir of Sarveswara Rao

and therefore, exhibits A1 to A4 Sale Deeds executed by them in

favour of the plaintiff are valid. Learned counsel would vehemently

argue that the said finding is erroneous one for the reason, though

O.P.No.215/1992 was not in existence on record, later on the

application of D3 it was restored back and registered as regular suit

O.S.No.93/1998 and after full-fledged trial, it was decreed in favour

of D3 holding that she is the natural daughter of late Sarveswara Rao

and entitled to succeed his estate. Further, Venkata Rao and his son

Ramana Murthy were defendants 1 and 2 in the said suit and though

Venkata Rao died pending suit, Ramana Murthy (D2) initially filed

written statement and opposed the suit and later by filing Ex.A5-

Memo dated 18.09.2002 gave up his contention in the said suit and

reported no objection for granting decree in favour of plaintiff in

respect of item No.1 of plaint 'A' schedule property. In that

backdrop, Exs.A1 to A4 cannot be termed as legally sanctified

documents and they do not confer any right on plaintiff in the suit

property. He would submit that at best those documents can be

termed as "lis pendens" transactions. He placed reliance on T.Ravi

v. B. Chinna Narasimha1 to elucidate the impact of Section-52 of

the Transfer of Property Act.

(a) Nextly learned counsel while carping the observation of

trial Court that as on the date of execution of Exs.A1 to A4 the O.P.

No.215/1992 and injunction order in I.A.No.3690/1992 were not in

force and thereby the Sale Deeds are valid would argue that though

O.P.No.215/1992 was dismissed for default, the injunction order in

I.A.No.3690/1992 was not vacated and hence with the restoration of

O.P.No.215/92, the injunction order shall be deemed to be revived

retrospectively. He placed reliance on the judgment reported in

Vareed Jacob v. Sosamma Geevarghese2.

(b) Learned counsel further argued that the trial Court erred

in holding that by virtue of Ex.A10 endorsement, D3 relinquished

her right in Plaint-A schedule of O.P.No.215/1992 in favour of

Venkata Rao and Ramana Murthy. He would argue that Ex.A10 is

not a valid document because D3 was not a signatory thereon but

PW2-her GPA was only the signatory. However, under Ex.A7-GPA

document, D3 only gave power to PW2 to execute Sale Deed in

(2017) 7 SCC 342 = MANU/SC/0279/2017

(2004) 6 SCC 378

favour of Devineni Baji Prasad but she did not confer power on

PW2 to enter into compromise with third-parties. He would further

argue that if really D3 entered into a compromise with Venkata Rao

and Ramana Murthy under Ex.A10, certainly all of them would have

produced the same before the Court in O.P.No.215/1992 and sought

dismissal of the O.P. in the light of compromise, but they would not

have allowed D3 to simply remain absent in Court to dismiss O.P.

for default. He thus prayed to allow the appeal.

9. Per contra, while supporting the judgment in O.S.No.39/2002,

Sri E.V.V.S. Ravi Kumar would argue that the plaintiff purchased

the plaint schedule property under Exs.A1 to A4 from C.Venkata

Rao and C.Ramana Murthy and by the dates of the Exs.A1 to A4,

O.P.No.215/1992 and interim injunction in I.A.No.3690/1992 were

not in existence and therefore the Sale Deeds are valid and binding

on D3 and her purchaser i.e., 1st defendant. He argued that the

plaintiff is in possession of the suit properties.

(a) Learned counsel while referring to the background facts

relating to dismissal of O.P.No.215/1992 and its subsequent revival

would argue that the said OP was dismissed for default on

01.02.1996 and thereafter D3 (Plaintiff therein) filed

I.A.No.553/1997 for restoration of the said O.P. which was

dismissed by the Court. Later she filed I.A.No.3995/1997 and

offered to pay the court fee and requested to number the suit. The

said application was allowed on 23.02.1998 and on payment of court

fee the plaint was numbered as O.S.No.93/1998. Learned counsel

would argue that at the first instance due to her absence both pauper

application and plaint were dismissed and subsequently what was

revived was only pauper application and the plaint was not revived

and therefore technically, O.S.No.93/1998 shall be deemed to be not

in existence and judgment in the suit is also not valid. He placed

reliance on Jugal Kishore v. Dhanno Devi (dead) by Lrs3.

(b) Learned counsel further argued that behind the back of

plaintiff, D2 filed Ex.A5 Memo in O.S.No.93/1998 admitting the

claim of the plaintiff in O.S.No.93/1998. The said memo is not

valid because the property was already sold by Venkata Rao and

Ramana Murthy (D2) in favour of plaintiff and gave possession and

hence the said memo has no impact on Ex.A1 to A4.

(1973) 2 SCC 567

(c) Learned counsel further argued that pending her suit

O.S.No.93/1998, the D3 herein executed Exs.B25 to B29 in favour

of D1and as on that date admittedly she was not in possession of

those properties. Hence those Sale Deeds are not legally valid and

consequently D1 cannot claim title and possession through those

documents.

(d) Learned counsel further argued that in O.S.No.39/2002,

D3 remained ex parte and thereby the claim of the plaintiff remained

unchallenged and deemed to have been proved. On the other hand,

the decree in O.S.No.93/1998 is a collusive one as D2 to D4 did not

contest the matter. It is further argued that the effect of Section 52

of the Transfer of Property Act is such that it will not render transfer

pending lis ineffectual. Finally it is argued that D3 has given up her

claim in respect of Items 1 to 4 of A schedule in O.S.No.93/1998

and hence her purchaser i.e., the appellant cannot question Ex.A1 to

A4. He thus prayed to dismiss the appeal.

10. The points for consideration in this appeal are:

1. Whether the 3rd defendant or late C. Venkata Rao and his son C. Ramana Murthy are the legal heirs of late C. Sarveswara Rao to succeed his estate ?

2. Whether the 3rd defendant has valid title to execute Exs.B25 to 29 sale deeds in favour of 1st defendant ?

OR Whether C. Venkata Rao and his son C. Ramana Murthy (2nd defendant) have title to execute Ex.A1 to A4 sale deeds in favour of plaintiff ?

3. Whether the 3rd defendant entered into a compromise through her GPA with C. Venkata Rao and C. Ramana Murthy under Ex.A10 and thereby gave up her claim in suit schedule properties in O.S.No.39/2002 and Plaint 'A' schedule properties in O.S.No.93/1998 ?

11. Points 1 to 3:

As the above points are intertwined, they are taken up

together and answered as below:

At the outset, it should be made clear that the bone of

contention among the parties is in respect of the property in an

extent of 865 sq. yds of site (656 + 119 + 90) with old Madras

Terraced buildings covered by Items 1 to 3 of Plaint-A schedule in

O.S.No.93/1998. Though D3 filed the said suit for other properties

also i.e., item No.4 in 'A' schedule, house, agricultural land and

vacant sites covered by Items B to D, they are not in dispute in the

present suit O.S.No.39/2002. The reason is obvious, as D3 sold the

property covered by Items 1 to 3 under Exs.B25 to B29 Sale Deeds

in favour of D1/appellant claiming as daughter of the original owner

Sarveswara Rao, wherereas C. Venkata Rao and C. Ramana Murthy

(D2) sold the very same property covered by items 1 to 3 i.e., 670

Sq. Yds under Exs.A1 to A4 Sale Deeds in favour of plaintiff and

remaining 195 sq. yds in favour of a third party claiming as brother

of C.Sarveswara Rao. Thus the real duel is between the two

purchasers from the two sets of claimants over the subject property.

Hence it has to be seen whether the 3rd defendant or C. Venkata Rao

is the legal heir of late C. Sarveswara Rao to claim his estate.

12. Admittedly, the disputed property and other properties

mentioned in O.S.No.93/1998 originally belonged to

C.S.Seetharaavamma which she obtained under a Gift Deed dated

14.10.1921 executed by her parents towards 'Pasupu Kumkuma'.

Seetharaavamma died intestate and issueless in the year 1974 and

consequently C. Sarveswara Rao succeeded her property and later he

also died intestate on 13.06.1980. To this extent there is no dispute.

13. While so, the plaint pleadings would show that immediately

after the death of C. Sarveswara Rao, D3 had not emerged on the

scene claiming his estate as daughter. Her case is that she was a

minor by then. Be that as it may, as per plaint allegations C.

Venkata Rao (D1) claimed the estate of Sarveswara Rao as his

brother and there were some disputes between him and other

relatives of Sarveswara Rao resulted in some suits and ultimately a

compromise was entered into between C. Venkata Rao & Ramana

Murthy on one hand and T.Lakshmi Kumari and V. Rajeswari (D3

and D4 in O.S.No.93/1998) on the other and all of them executed

Ex.A5-Partition Deed dated 12.12.1984. The plaintiff's case is that

as per the terms of the said partition C. Venkata Rao got 864 sq. yds

of site with constructions and the said property is covered by items 1

to 3 of plaint schedule in O.S.No.93/1998. There are some tenants

in the said property. Out of the same, he sold around 194 sq yds of

site to some third-party under Sale Deed dated 31.03.1981. The

remaining property of 670 Sq. Yds with superstructures was sold by

C. Venkata Rao and C. Ramana Murthy (D2) to plaintiff in the year

1996 under Exs.A1 to A4 Sale Deeds and the said property is the

plaint schedule property in O.S.No.39/2002.

(a) In the meanwhile, claiming herself as the daughter of

C.Sarveswara Rao, D3 filed pauper O.P.No.215/1992 on the file of

the learned II Additional Senior Civil Judge, Vijayawada for

ejectment of D1 to D38. In the said suit she impleaded C.Venkata

Rao, C. Ramana Murthy, Lakshmi Kumari and V. Rajeswari as

defendants 1 to 4 and the tenants and some others as D5 to D38. It

is the case of plaintiff that pending said O.P., D3 entered into a

compromise through her GPA (PW-2) with C. Venkata Rao and C.

Ramana Murthy under Ex.A10 endorsement, whereunder, she gave

up her right in the plaint schedule property in favour of C. Venkata

Rao and Ramana Murthy for some monetary consideration and as a

consequence, she consciously remained absent in O.P.No.215/1992

and thereby said OP was dismissed for default on 01.02.1996. As C.

Venkata Rao became full fledged owner of subject property, he sold

the same to plaintiff under Ex.A1 to A4 as stated supra. It is the

further case of the plaintiff that contrary to Ex.A10-endorsement, D3

filed restoration application in O.P.No.215/1992 and paid Court fee

and got numbered the plaint as O.S.No.93/1998 and prosecuted the

same and obtained a decree. However, in the said suit she gave up

her claim in respect of items 1 to 4 of A-schedule therein (i.e., the

present plaint schedule properties) and therefore, decree was passed

only in respect of other properties.

(b) The plaintiff thus precisely contends that in view of

agreement under Ex.A10 and dismissal of suit O.S.No.93/1998

concerning to Plaint-A schedule therein, D3 lost her right in the

present plaint schedule property though she was declared as

daughter of C. Sarveswara Rao. Further, since O.P.No.215/1992

and interim injunction were not in force by the dates of Exs.A1 to

A4, those Sale Deeds are legally valid.

14. We gave our anxious consideration to the impugned judgment

and arguments of either side.

(a) Having regard to the chronology of events discussed

supra, the crucial question is, what is the impact of judgment in

O.S.No.93/1998 on Exs.A1 to A4 Sale Deeds. We perused Ex.B64-

CC of judgment in O.S.No.93/1998. As stated supra, C.Venkata

Rao, his son Ramana Murthy, T.Lakshmi Kumari and V.Rajeswari

are defendants 1 to 4 in the said suit apart from other defendants

who are said to be the tenants and others. D1 died pending the suit

and D2 to D4 filed written statements opposing the claim of D3.

However, D2 filed Ex.A5-Memo dated 18.09.2002 in the said suit

and gave up his contest in respect of item No.1 of the plaint A

schedule.

(b) Be that as it may, the trial Court framed issue No.9 as to

whether the claim of plaintiff (D3) as daughter of late C.Sarveswara

Rao and whether the alleged marriage between him and one Laxmi

in 1965 are true. The trial Court elaborately discussed oral and

documentary evidence in Paras 26 to 32 of its judgment and

ultimately held that the plaintiff (D3) is the daughter of Sarveswara

Rao and granted decree in her favour in respect of plaint B to D

schedule mentioned properties while dismissing the suit in respect of

other items. Neither before the trial Court in O.S.No.39/2002 nor

this Court, any material is produced to show that the judgment in

O.S.No.93/1998 was either set aside or modified. It is claimed that

D4 filed a petition to amend the decree but in that regard also no

material is produced to show about the fate of the said petition.

Therefore, we have to assume that the judgment and decree in

O.S.No.93/1998 have attained finality.

15. The operative sphere of judgment in O.S.No.93/1998 is

concerned, in our view, a declaratory relief of a legal status of a

party will operate retrospectively unless the judgment restricts its

operation to a particular date or prospectively. For instance, a

declaration that the plaintiff is wife, son or daughter of the defendant

would mean their legal status should be from the date of marriage,

date of their birth respectively and not from the date of decree.

Similarly, a negative declaratory relief of a legal status would mean

there was never such legal relationship among the parties but not

from the date of decree alone. Thus, logically speaking the existence

or non-existence of a legal status between the parties relates to its

occurrence in the past and Court by way of declaration only

recognizes such existence or non-existence of legal status with

retrospectivity, but it will not be conferring such status for this first

time by way of decree.

(a) In Samar Kumar Roy (D) through L.R. (Mother) v.

Jharna Bera4, the plaintiff filed civil suit for a declaration that the

defendant was not his legally married wife and for a permanent

injunction restraining her from claiming as his wife and disturbing

him at his office. Pending suit, the plaintiff died and his mother

filed petition to be impleaded as legal representative of the plaintiff.

The said petition was allowed and against the said order a revision

was filed by the defendant and the High Court set aside the

impleadment order on the ground that after the death of plaintiff, no

right to sue survived in favour of plaintiff's mother. Aggrieved, the

mother filed Civil Appeal before Supreme Court. It was argued that

the suit was filed basically for a declaration of a legal character and

not for dissolution of marriage under the Special Marriage Act, 1954

or the Hindu Marriage Act, 1955 and therefore, the cause will

survive even after the death of the plaintiff. The Apex Court was

engaged with the issue, whether the suit can be maintainable at the

behest of the legal representative of the deceased plaintiff. The

Apex Court has sought to draw a distinction between the reliefs

MANU/SC/1181/2017 = AIR 2018 SC 334

which can be claimed under the Special Marriage Act or Hindu

Marriage Act and the reliefs that can be claimed under Section 34 of

the Specific Relief Act. It was observed that under the aforesaid

special statutes, suit could be instituted to anull or dissolve the

marriage or for restritution of conjugal rights or judicial suppression.

However, it does not purport to bar the jurisdiction of the Civil

Court to file a suit under Section 34 of the Specific Relief Act for a

declaration of legal character of an alleged marriage and the

exclusion of jurisdiction of the Civil Courts in that regard cannot be

readily inferred. Referring to its own decision in Yallawwa v.

Shantavva [MANU/SC/0016/1997 = (1997) 11 SCC 159] the Apex

Court held that the personal cause of action dies with the person but

all the rest of causes of action which have an impact on proprietory

rights and social legal status of the parties cannot be said to have

died with such a person.

(b) It is true that the above decision has not directly dealt with

the aspect of retrospective operation of a decree dealing with the

legal status of a person. However, the logical inference that can be

drawn is that in the above decision if a decree is ultimately granted

in favour of the LR holding that there was no legal marriage

between the parties, it would mean there was never such a marriage

at any point of time but not from the date of decree alone. So, in the

instant case also, the judgment and decree in O.S.No.93/1998 relates

back to the date of birth of D3 as per Ex.A1-birth certificate.

Running the risk of pleonasm, the trial Court only recognized her

legal status as daughter of Sarveswara Rao as having been born in

1968 under the decree.

16. With the above proposition of law, when the claims of the

parties are tested, as on the dates of the exhibits A1 to A4 Sale

Deeds, the D3 being the daughter of Sarveswara Rao, she was the

actual owner of the subject properties but not C.Venkat Rao and his

son and therefore, they had no right to convey title in favour of the

plaintiff. However, they claimed title on two main grounds which,

in our view, are not legally and factually formidable to countenance.

17. Firstly, on the ground that after filing O.P.No.215/1992, the

D3 through her GPA entered into a compromise with C.Venkat Rao

and his son and gave up her claim in subject properties on receiving

monetary consideration and in terms thereof she consciously

remained absent and thereby, the trial Court dismissed

O.P.No.215/1992 for default. Later her GPA and D.Baji Prasad

together made Ex.A10 endorsement dated 19.02.1996 on the reverse

of Ex.A8-Sale Agreement which she earlier executed in favour of

Baji Prasad. Thereafter, Venkat Rao and his son who became full

owners sold the subject property to plaintiff under Exs.A1 to A4.

(a) We carefully scrutinized Exs.A7 to A10 and the evidence

of PW2 in this context. Ex.A7 is the registered G.P.A. dated

29.01.1993 executed by D3 in favour of PW2, wherein she stated

that Court litigations in O.P.No.215/1992 and RCC No.46/1998

were pending and in order to meet the Court expenses, she executed

Ex.A8 - Sale Agreement dated 29.01.1993 in favour of D.Baji

Prasad in respect of plaint schedule property and therefore, in order

to look after the Court litigation and after disposal of the same, in

order to receive the balance amount from Baji Prasad and to execute

a regular Sale Deed in his favour or any person of purchaser' s

choice, she was appointing PW2 as her GPA on her behalf. Since

there were tenants in the schedule property, she also gave power to

PW2 to recover rents from them and evict her tenants and attend the

concerned offices and submit necessary documents and plans.

(b) While so, Ex.A8 is the Sale Agreement dated 29.01.1993

executed by D3 in favour of Baji Prasad in respect of the plaint

schedule property.

(c) Then Ex.A9 is another agreement dated 29.01.1993

executed between D3, her GPA and Baji Prasad mentioning therein

that pursuant to the Ex.A8-Sale Agreement, the GPA of D3 will

execute registered Sale Deed in favour of Baji Prasad.

(d) While so, Ex.A10 is purported to be an endorsement

dated 19.02.1996 made on the reverse of Ex.A8-Sale Agreement by

PW2 and D.Baji Prasad, wherein it is stated that D3 after filing

O.P.No.215/1992 entered into a compromise at the instance of the

mediators and well wishers and she remained absent in Court and

thereby O.P.No.215/1992 and injunction orders were dismissed for

default and D3 gave up her claim in respect of A schedule property

in favour of C.Venkata Rao and thereafter, Venkata Rao and his son

sold the schedule property in favour of the plaintiff herein and from

out of the sale consideration, the advance amount given by D.Baji

Prasad under Ex.A8 was refunded to him and Ex.A8 was cancelled

and so also Ex.A7-GPA was cancelled. PW2 in his evidence

deposed in support of Ex.A10 endorsement.

(e) Now, on the strength of aforesaid oral and documentary

evidence, the plaintiff claims that D3 gave up her right in the plaint

schedule property and therefore, Exs.A1 to A4 are valid documents

as they were executed by full-fledged owners. We are unable to

countenance this contention. There are a number of suspicious

circumstances shrouded Ex.A10. Firstly, it is an unregistered

document purportedly endorsed on the reverse of Ex.A8. In

essence, the said document spells, D3 relinquished her rights in the

plaint A schedule property. Therefore, it requires registration.

Secondly, as per Ex.A7, the GPA was given power only to execute

registered Sale Deed in favour of D.Baji Prasad but no authority was

given to him to enter into agreements, and compromises with third-

parties. It is not known how he endorsed on Ex.A10. Thirdly, D3

was not a signatory on Ex.A10. Fourthy, if really D3 entered into

compromise with C.Venkat Rao and gave up her claim, nothing

prevented them to execute an agreement in that regard and file

before Court in O.P.No.215/1992 to give a quietus to the legal

battle. Contrary to it, her mere absence and consequent dismissal of

O.P. long before Ex.A10 endorsement will not render

trustworthiness to Ex.A10.

(f) Fifthly, in the plaint averments of O.S.No.39/2002, though

the plaintiff avouched that D3 gave up her rights due to compromise

with Venkata Rao, curiously he did not mention about Ex.A10

endorsement. The conspicuous absence of averments on a crucial

document manifests that Ex.A10 was broughtforth subsequently to

suit the case of plaintiff and his vendors. We do not think that the

evidence of PW2 will clear the cloud cast over the genuinity of

Ex.A10. No doubt, after being impleaded in O.S.No.39/2002, D3

remained ex parte and did not contest the suit. However, her

absence will not render strength to Ex.A10 because long prior to her

impleadment in O.S.No.39/2002, she already sold the plaint

schedule property to the 1st defendant / appellant under Exs.B25 to

B29 Sale Deeds. As she had no substiting rights in the suit property,

her absentism will not add strength to Ex.A10. So, Ex.A10 cannot

be believed to be a genuine document.

18. The second ground is that as on the date of exhibits A1 to A4,

O.P.No.215/1992 and injunction order in I.A.No.3690/1992 were

not in force and hence, C.Venkata Rao being the class II heir of

Sarveswara Rao can validly execute Exs A1 to A4. This argument

can be heard only to be rejected. It is true on the dates of Exs.A1 to

A4, O.P.No.215/1992 and injunction order therein were not in force.

However, it must be noted, O.P. was dismissed for default of D3 but

no final order was passed on merits. Therefore, the Sale Deeds

executed by Venkata Rao and his son shall be construed as subject

to final result in O.P.No.215/1992. Therefore, mere dismissal of

O.P. and injunction petition for default cannot be construed as

conferring right on Venkata Rao to alienate the suit properties. In a

given case, after dismissal of plaintiff's suit for declaration and

possession of a property and before filing appeal, if the defendants

alienate the said property, such alienation will be susceptible to the

final outcome in the appeal. Thus, Exs.A1 to A4 are subservient to

doctrine of lis pendens enunciated in Section 52 of the Transfer of

Property Act. The principle envisaged in Section 52 of the Transfer

of Property Act is in accordance with equity, good conscience or

justice because a status quo has to be maintained in respect of the

property till the final disposal as otherwise a chaotic situation will

prevail leading to multiplicity of proceedings. In T.Ravi (1 supra),

the Apex Court while discussing the doctrine of lis pendens referred

the judgment in Jagan Singh (Dead) through LRs v. Dhanwanti5,

wherein it was observed thus:

19. The broad principle underlying section 52 of the T.P. Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed, as held in Krishanaji Pandharinath Vs. Anusayabai AIR (1959) Bom 475 (emphasis supplied). In that matter the respondent (original plaintiff) had filed a suit for maintenance against her husband and claimed a charge on his house. The suit was dismissed on 15.7.1952 under order IX, Rule 2, of Code of Civil Procedure 1908, for non-payment of process fee. The husband sold the house immediately on 17.7.1952. The respondent applied for restoration on 29.7.1952, and the suit was restored leading to a decree for maintenance and a charge was declared on the house. The plaintiff impleaded the appellant to the darkhast as purchaser. The appellant resisted the same by contending that the sale was affected when the suit was dismissed. Rejecting the contention the High Court held in para 4 as follows:-

".......In section 52 of the Transfer of Property Act, as it stood before it was amended by Act XX of 1929, the expression "active prosecution of any suit or proceeding" was used. That expression has now been omitted, and the Explanation makes it abundantly clear that the 'lis' continues so long as a final decree or order has not been obtained and complete satisfaction there of has not been rendered. At

2012 (2) SCC 628 = MANU/SC/0046/2012

page 228 in Sir Dinshah Mulla's "Transfer of Property Act", 4th Edition, after referring to several authorities, the law is stated thus: "Even after the dismissal of a suit a purchaser is subject to 'lis pendens', if an appeal is afterwards filed." If after the dismissal of a suit and before an appeal is presented, the 'lis' continues so as to prevent the defendant from transferring the property to the prejudice of the plaintiff, I fail to see any reason for holding that between the date of dismissal of the suit under Order IX Rule 2, of the Civil Procedure Code and the date of its restoration, the 'lis' does not continue.

In the light of above jurisprudence, there can be no demur that the

alienations made by Venkata Rao and his son under Exs.A1 to A4

are hit by doctrine of lis pendens. In that view, whether interim

injunction order in I.A.No.3690/1992 was in force or not by the

dates of Exs.A1 to A4 and whether it was revived with the revival of

O.P.No.215/1992, pales into insignificance and we do not delve on

that aspect.

19. Learned counsel for the respondent Sri E.V.V.S.Ravi Kumar

argued that the 3rd defendant has given up her claim in respect of

items 1 to 4 of plaint A schedule in O.S.No.93/1998 and the trial

Court accordingly dismissed her claim and granted partial decree in

respect of other properties and therefore, exhibits B25 to B29 Sale

Deeds executed by her in favour of 1st defendant have no legal

sanctity. We are afraid this argument is not correct for the reason

that the 3rd defendant, who inherited estate of her father, has

executed exhibits B25 to B29 in favour of 1st defendant in the year

2000 itself and conveyed valid title. Long thereafter, she gave up

her claim in items 1 to 4 of the plaint A schedule for whatever

reason. It should be noted that as on the date of giving up her claim

and dismissal of the suit in respect of the plaint A schedule, the 3rd

defendant had no legal title over the said property as she already

conveyed the same in favour of the 1st defendant. Therefore, partial

dismissal of the suit O.S.No.93/1998, in our view, had no adverse

impact on the validity of Sale Deeds covered by Exs. B25 to B29.

20. Incidentally Sri E.V.V.S.Ravi Kumar argued as if only pauper

application was revived but not the plaint and therefore,

O.S.No.93/1998 has no legal existence. This argument has no teeth

for the reason that I.A.No.3995/1997 filed by D3 was allowed

permitting her to deposit Court fee and thereafter plaint was

registered as O.S.No.93/1998. Hence, the aforesaid argument and

the judgment in Jugal Kishore (3 supra) cannot be considered.

21. In the light of above discussion, the points for consideration

are answered as below:

(a) Point No.1 is concerned, by virtue of the judgment in

O.S.No.93/1998, the 3rd defendant is held as a legal heir of late

C.Sarveswara Rao to succeed his estate as his daughter.

(b) Point No.2 is concerned, the 3rd defendant has valid title to

execute Ex.B25 to 29 Sale Deeds in favour of 1st defendant and

consequently C.Venkat Rao and his son have no title to execute

Ex.A1 to A4 Sale deeds in favour of plaintiff.

(c) Point No.3 is concerned, Ex.A10 cannot be treated as a

valid and genuine document and the same will not adversely affect

the rights of 3rd defendant in respect of suit schedule property.

Thus, on a conspectus of facts, evidence and law, the

judgment of the trial Court in O.S.No.39/2002 is not sustainable

either on facts or in law and liable to be set aside.

22. Accordingly, A.S.No.683/2016 is allowed and the judgment

dated 29.06.2016 in O.S.No.39/2002 passed by the learned III

Additional District & Sessions Judge, Vijayawada, is set aside and

as a consequence the suit O.S.No.39/2002 is dismissed. No costs.

As a sequel, interlocutory applications pending, if any, shall

stand closed.

_________________________ U. DURGA PRASAD RAO, J

____________________________ G.RAMAKRISHNA PRASAD, J 09.05.2023 KRK/MVA