M.Satyanarayana Murthy Died vs K.Ramalinga Swamy Naidu Died
2023 Latest Caselaw 5152 AP

        THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                  SECOND APPEAL No.1023 of 2005


JUDGMENT:

This Second Appeal is filed aggrieved against the Judgment

and decree in A.S.No.225 of 1998 on the file of VIII Additional

District & Sessions Judge (Fast Track Court), Visakhapatnam dated

22.02.2005 confirming the Judgment and decree in O.S.No.795 of

1996 on the file of Principal Junior Civil Judge, Visakhapatnam,

dated 24.07.1998.

2. The appellants herein are the appellants in the lower appellate

Court and the defendant(s) in the suit. The respondents herein are

the respondents in the lower appellate Court and the plaintiffs in the

suit.

3. The plaintiffs initiated action in O.S.No.795 of 1996 on the file

of Principal Junior Civil Judge, Visakhapatnam, with a prayer to

cancel the registered sale deed dated 06.07.1988, as the same is

obtained by fraud, and for vacant possession of the plaint schedule 2 VGKRJ SA 1023 of 2005

property after evicting the defendant, him men therefrom and the

costs of the suit.

4. The learned Principle Junior Civil Judge, Visakhapatnam

decreed the suit with costs cancelling the Ex.A2 sale deed in favour

of the defendant and the plaintiffs therein are entitled for recovery of

vacant possession of the schedule property after evicting the

defendant therefrom. Aggrieved thereby, the defendant in the above

suit filed the appeal vide A.S.No.225 of 1998 before the first

appellate Court i.e., VIII Additional District Judge (FTC),

Visakhapatnam. The learned VIII Additional District Judge dismissed

the first appeal and confirmed the decree and judgment passed by

the trial court. The unsuccessful appellants/ defendants herein

approached this Court by way of this second appeal.

5. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the suit.

6. The case of the plaintiffs in brief, as set out in the plaint

averments in OS.No.795 of 1996, are as follows:

The first plaintiff is the absolute owner of the site admeasuring

1000 square yards covered by Sub Division No.E3 in S.No.3 in patta 3 VGKRJ SA 1023 of 2005

No.23 of Balayya Sastry Layout. He purchased the same under a

registered sale deed dated 18.06.1958 for valuable consideration

and he was in possession and enjoyment of the same. As there was

a threat of encroachment and as the first plaintiff was residing at

Anakapale, he executed a General Power of Attorney in favour of

the defendant. Since the defendant is not diligently watching, the

first plaintiff sold 300 square yards each to M.Jagannadharao and

A.Krishna on 21.07.1987 and 17.08.1987 and retained the

remaining extent of 400 square yards with a view to construct a

house. In December 1992, the defendant developed an evil idea of

grabbing the remaining property, because of the escalation of prices

of the site, and executed a registered sale dead in favour of one

Vuda Satyanarayana for an extent of 200 square yards covered by

Sub Division No.E-3/3 and also another sale dead in his favour

without the knowledge or consent of the first plaintiff. The plaint

schedule property is the property for which the defendant executed

sale dead in his favour. On enquiries, the plaintiff came to know that

the defendant executed a registered sale deed for an extent of 200

square yards in favour of one Satyanarayana, for which a separate

action is reserved, and another in favour of the defendant himself to 4 VGKRJ SA 1023 of 2005

cause loss and harm to the first plaintiff. The defendant has taken

undue advantage of the power of attorney, played fraud and

obtained sale deed in his favour and as such, the first plaintiff

cancelled the power of attorney dated 30.06.1986 by a registered

instrument dated 27.01.1993. The first plaintiff has informed the

cancelation of the power of attorney and asked the defendant to

vacate and deliver the property under his occupation for which the

defendant claimed as the owner without any manner of right. The

defendant is claiming ownership in respect of the property covered

under registered sale deed dated 06.07.1988 and the defendant

cannot execute the sale deed without the consent of the plaintiff for

benefiting himself unlawfully. Hence, the suit is filed for the

cancellation of the registered sale deed dated 06.07.1988 executed

by the defendant in his favour. It is also further alleged that the

defendant altered the boundaries and the boundaries mentioned in

the sale deed dated 06.07.1988 were in his favour. The first plaintiff

died even by the date of registration of the suit, the plaintiffs 2 to 4

are impleaded as sons of the deceased first plaintiff's brother and

they are the only legal heirs.

                                    5                            VGKRJ
                                                        SA 1023 of 2005

7. The defendant got filed written statement in OS.No.795 of

1996 denying all the allegations made in the plaint and pleaded that

the plaintiffs 2 to 4 are not the sons nor the legal heirs of the first

plaintiff and they cannot maintain the suit. The suit claim is barred

by limitation, it is false to allege that the defendant got executed a

registered sale deed dated 06.07.1988 by playing fraud on the

deceased-first plaintiff and altered the boundaries. The defendant

filed the suit OS.1276 of 1992 for permanent injunction against the

plaintiffs as they are threatening to dispossess him from the suit

schedule property. There is no cause of action to file the present

suit and the alleged cause of action is incorrect and the court fee

paid is incorrect.

8. On the basis of above pleadings, the learned Principal Junior

Civil Judge, Visakhapatnam settled the following issued for trial:

1. Whether the suit is barred by limitation?

2. Whether the plaintiffs are entitled to seek cancellation of the sale deed and recover vacant possession of the schedule property?

3. To what relief?

                                  6                             VGKRJ
                                                       SA 1023 of 2005

9. In fact, the defendant herein also filed OS.No.1276 of 1992 for

permanent injunction against the brother of the sole plaintiff herein

(later L.Rs of sole plaintiff are added as P2 to P4). OS.No.1276 of

1992 and OS.No.795 of 1996 are clubbed and common evidence

was recorded in OS.1276 of 1992 by the trial Court. The learned

Principal Junior Civil Judge, Visakhapatnam, after conclusion of the

trial, decreed the suit OS.No.1276 of 1992, he is entitled to protect

his possession until he is evicted under due process of law and

decreed the suit in OS.No.795 of 1996. The first appeal is filed

against OS.No.795 of 1996 by the defendant therein. During the

course of trial in the trial Court, the defendant in OS.No.795 of 1996

was examined as PW1 and another witness was examined as PW2

and Ex.A1 to Ex.A5 and Ex.X1 were marked and second plaintiff

was examined as DW1, but no documents were marked on behalf of

DW1.

10. The learned Principal Junior Civil Judge, Visakhapatnam, after

conclusion of trial, on hearing both sides and on consideration of

oral and documentary evidence on record decreed the suit in

OS.No.795 of 1996. Aggrieved thereby, the sole defendant in 7 VGKRJ SA 1023 of 2005

OS.No.795 of 1996 filed the appeal suit in AS.No.225 of 1998

before the VIII Additional District Judge (FTC), Visakhapatnam.

During the pendency of the said appeal, the sole appellant died and

his legal representatives were brought on record and the following

points came up for consideration:

1. Whether the plaintiffs are entitled to seek the cancellation of the registered sale deed dated 06.07.1988 executed by the deceased/first appellant as a GPA holder in favour of himself?

2. Whether the suit filed by the plaintiffs/respondents is barred by limitation?

3. To what relief?

11. The learned Additional District Judge i.e., first appellate judge,

after hearing the appeal, answered point Nos.1 and 2 as above

against the appellants/defendants and in favour of the plaintiffs and

dismissed the appeal and confirmed the decree and judgment

passed by the trial Court in OS.No.795 of 1996. Aggrieved thereby,

the unsuccessful appellants/defendants in OS.No.795 of 1996 filed

the present second appeal.

                                  8                              VGKRJ
                                                        SA 1023 of 2005

12. When the matter was before the composite High Court of

Andhra Pradesh, Hyderabad, the following points relating to

substantial questions of law were framed on 30.09.2015:

1. Whether the Courts below were correct in holding that the suit

filed on 01.12.1995 to set aside the sale deed Ex.A2 dated

06.07.1988 is barred by limitation?

2. Whether the Courts below acted perversely in overlooking the

fact that Ex.A2 dated 06.07.1988 is a registered document that

registration is a public notice under Transfer of Property Act,

1882 and so the plaintiff ought to have been presumed to have

knowledge of Ex.A2 even by 1988 and no suit filed on

01.12.1995 is barred by limitation?

13. Point Nos.1 and 2:

Sri N.Vijay, learned counsel for appellants/defendants would

contend that both the courts below erred in decreeing the suit filed

by the plaintiffs and further even though the said Ramalingaswamy

had not given particulars of fraud in the plaint, both the courts below

came to wrong conclusion that the suit was filed on 01.12.1995 to

set aside the sale deed Ex.A1, dated 06.07.1988 is not barred by 9 VGKRJ SA 1023 of 2005

law of limitation and both the courts below acted perversely in

holding that Ex.A2 was obtained by the defendant by playing fraud

on the first plaintiff and without consent or knowledge of the first

plaintiff. With these submissions, the learned counsel would

contend that the judgment of the learned Additional District Judge in

AS.No.225 of 1998 is to be set aside by dismissing the suit of the

plaintiffs.

14. Sri G.Ram Gopal, learned counsel for respondents/plaintiffs

would contend that the GPA holder himself executed a sale deed

Ex.A2 in favour of himself (GPA holder) and he would contend that

the first plaintiff has not executed Ex.A2 sale deed in favour of the

first defendant. He would further submit that the burden of proof is in

significant, the plaintiffs prima facie proved their case, the

defendants have to discharge their burden, but no rebuttal evidence

is adduced by the defendants and he would further contend that the

suit is filed within a period of limitation. With these submissions, the

learned counsel for respondents in the second appeal would

contend that the second appeal is liable to be dismissed.

                                 10                              VGKRJ
                                                       SA 1023 of 2005

15. As stated supra, sole plaintiff died and his L.Rs are brought on

record during the pendency of the suit. The second plaintiff

K.G.Jagannatham Naidu is examined as DW1 in a common trial

conducted by the trial Court in OS.No.1276 of 1992 and OS.No.795

of 1996. As per his evidence he is the second defendant in

OS.No.1276 of 1992 and the second plaintiff in OS.795 of 1996 and

Ramanaidu was his natural father and Ramalinga Swamy was his

fostered father and from his childhood he was brought up along with

his brothers and sisters and he is working in Panchayat Raj

Department from 1993 and he lives with his family at the place of his

work in Vizianagaram District. Ramanaidu and Ramalingaswamy

had individually purchased house sites in Balayyasastry layout and

Ramalingaswamy and Ramanaidu did not look after the house sites

of others. He further deposed in his evidence that his father

Ramanaidu did not sell any part of house site purchased by him in

Balaiahsastry layout and after his demise, himself and his brother

sold part of it and he is not aware whether Ramalingaswamy sold

away any part of his house sites and Ramalinga Swamy informed

him about 6 or 7 months prior to his demise that he executed a

power of attorney in favour of PW1. He further deposed that he is 11 VGKRJ SA 1023 of 2005

not aware whether it was cancelled or not and he also informed that

he filed a civil suit in respect of the house site and PW1 obtained

sale deed without his knowledge and he further deposed that

Ramalingaswamy also informed that a part of the site was sold by

him and for remaining site PW1 obtained sale deed without his

knowledge for that he filed a suit against PW1. On demise of

Ramalingaswamy himself and other respondents have acquired

right over the suit schedule property.

16. The sole defendant Satyanarayana Murthy is examined as

PW1 in a common trial conducted by the trial Court in OS.No.1276

of 1992 & OS.No.795 of 1996. As per the evidence of PW1 i.e.,

Satyanarayana Murthy, the plaintiff in OS.No.795 of 1996 is not

entitled to seek cancellation of Ex.A2 sale deed and he has not

obtained it by playing fraud as alleged and he has not misused the

G.P.A. under Ex.A1. He further stated that there is a

correspondence between him and Ramalingaswamy with regard to

execution of Ex.A2 and he is only entitled the suit schedule property

because he is having title to it and PW1 also examined another

witness as PW2.

                                  12                               VGKRJ
                                                         SA 1023 of 2005

17. The admitted facts are that the plaintiff in OS.No.795 of 1996

i.e., Konathala Ramalingaswamy is the absolute owner of the plaint

schedule property in OS.No.795 of 1996 and other property as he

purchased the same under registered sale deed dated 18.06.1958

executed by his vendor Saraswathula Kameswaramma and the

plaintiff with an intention to look after his property, executed a G.P.A.

in favour of the defendant Satyanarayana Murthy on 30.06.1986 as

he used to work in Panchayat Raj Department and staying along

with his family at Anakapalli.

18. The plaintiffs in the suit are seeking cancellation of registered

sale deed dated 06.07.1988 executed by Maddula Satyanarayana

Murthy as G.P.A. holder in favour of Maddula Satyanarayana

himself, the said sale deed is got exhibited as Ex.A2. In Ex.A2 it

was recited that the sale consideration of Rs.36,000/- was received

by the G.P.A. holder in favour of vendor previously. It is pertinent to

note that the G.P.A. holder himself executed Ex.A2 sale deed in

favour of himself. No doubt if Maddula Satyanarana Murthy

obtained sale deed from original owner Ramalingaswamy, the

burden lies on Ramalingaswamy himself to prove that Ex.A2 sale 13 VGKRJ SA 1023 of 2005

deed was obtained by Satyanarayana Murthy by playing fraud and

no consideration was passed. Here it is a peculiar case that the

G.P.A. holder himself executed registered sale deed in favour of

G.P.A. holder himself by mentioning in the said sale deed that the

sale consideration was received by him previously. There is no

whisper in the written statement of the defendant that Ex.A2 sale

transaction is a bonafide transaction and he paid total sale

consideration to Ramalingaswamy Naidu i.e., original owner of the

property. As per the own admissions of defendant Satyanarayana

Murthy in cross examination that they have not obtained a receipt

from Ramalingaswamy Naidu for the amounts paid to him and he

got record to show availability of sale consideration with him by the

date of execution of Ex.A2. The defendant Satyanarayana Murthy

admits in cross-examination that he is having accounts relating to

the property during the period of execution of G.P.A. and its

cancellation in respect of that property. If the plaintiffs are disputing

Ex.A2 sale deed and also disputing that the defendant got executed

Ex.A2 by himself as a G.P.A. holder in favour of himself, nothing

prevented the defendant to produce original accounts, which are

available with him before the Court to prove his defense. But no 14 VGKRJ SA 1023 of 2005

steps are taken by the sole defendant Satyanarayana Murthy to

produce the original accounts which are available with him before

the Court. The plaintiffs are challenging the sale deed Ex.A2, with a

plea that no sale consideration is passed, therefore it is for the

defendant to prove that it is supported with consideration. As stated

supra, because it is a peculiar case that the defendant as a G.P.A.

holder executed sale deed in favour of himself, since the original

owner of the schedule property i.e., Ramalingaswamy Naidu is

disputing the same. The case of Ramalingaswamy Naidu is without

his knowledge the defendant Satyanarayana Murthy, as a G.P.A.

holder, got executed the original sale deed in favour of

Satyanarayana Murthy himself. The contention of the original owner

is subsequently on knowing the entire malafide transactions done by

the Satyanarayana Murthy, the G.P.A. is also cancelled by the

original owner.

19. Coming to the evidence of PW2 i.e., another witness of the

defendant Satyanarayana Murthy, in a common judgment in

OS.No.1276 of 1992 and OS.No.795 of 1996, he stated in his

evidence that the balance of sale consideration of Rs.54,000/- paid 15 VGKRJ SA 1023 of 2005

to PW1 as agreed and obtained registered sale deed on 17.08.1987

and the original sale deed was given to his employer for obtaining

loan and Ex.X1 is the Xerox copy of the said document and

Ramalingaswamy signed in the same as executant. He further

stated that he requested PW1 to bring the original owner of the site

for making signature on the same sale deed, as it will be convenient

to secure the loans in future. His sale deed is dated 17.08.1987 and

dispute sale deed is dated 06.07.1988, there is a gap of

approximately one year in between his sale deed and Ex.A2 in

question. More over original owner himself executed a sale deed in

favour of PW2. As seen from the recitals of the plaint in OS.No.795

of 1996 which is filed by the sole plaintiff that he realized in the

month of December, 1992 that the defendant i.e., Satyanarayana

Murthy has developed evil idea to grab the plaintiff's property as the

values of the house sites are abnormally increased and he

cancelled the power of attorney dated 30.06.1986 on 27.01.1993 by

executing a sale deed. In cross examination he admits that in the

sale deed it was a clear recital that entire sale consideration was

received by the executant on different dates. The learned counsel

for appellants/defendants would submit that there was a clear 16 VGKRJ SA 1023 of 2005

admission of PW2 in cross examination that he did not pay any

amount to Ramalingeswara Swamy on the date of sale deed and

the same is not disputed in cross examination. As per the document

of Ex.X1 i.e., document of PW2, there was a clear recital that the

entire sale consideration was received by the executant i.e., original

owner on different dates. Therefore, there is no force in the

contention of the counsel for defendant that PW2 paid sale

consideration to PW1 as a GPA holder which is not supported by

Ex.X1.

20. The learned counsel for appellants/defendants would submit

that the fraud has to be specifically pleaded and the particulars of

the fraud is to be stated in the plaint itself. Reliance has been

placed by the learned counsel for defendants in the judgment of

Supreme Court of India in between Ranganayakamma and

another vs. K.S.Prakash (dead) by L.Rs. and others 1. In that

decision it was held that:

"Undoubtedly, Order 6 Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be

(2008) 15 SCC 673 17 VGKRJ SA 1023 of 2005

stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard."

No doubt the particulars of fraud to be given in the plaint itself.

The material on record reveals that initially Ramalingaswamy filed

the suit and during the pendency of the suit he died, his legal

representatives were brought on record and in the plaint itself

original owner Ramalingaswamy made a mention that since he was

residing at Anakapalli on employment purpose, he executed a G.P.A.

in favour of defendant with an intention to look after the property as

there was threat of encroachment in and around the property.

There was an another recital in the plaint itself that since the

defendant has not actively dealing with the public to alienate the

property, the plaintiff executed two separate sale deeds for 300

square yards each on 21.07.1987 and 17.08.1987 in favour of

M.Jagannadharao and A.Krishna and retained the remaining extent

of 400 square yards by himself with a view to construct a house and

the defendant without the knowledge of the plaintiff with an evil idea

to grab the remaining property, as the value of the house sites has

gone up, and consequently executed two registered sale deeds, one 18 VGKRJ SA 1023 of 2005

for 200 square yards in favour of Vuda Satyanarayana and another

sale deed in his favour without the knowledge or consent of the first

plaintiff. In the plaint itself there was another recital that the

defendant has taken undue advantage of the power of attorney and

played fraud and obtained sale deed in his favour and as such, the

first plaintiff cancelled the power of attorney dated 30.06.1986 by a

registered instrument dated 27.01.1993. As stated supra, it is a

peculiar case that the G.P.A. holder himself executed a registered

sale deed in favour of himself, executant and claimant in the

disputed document sale deed are one and the same.

21. A reliance is placed by the learned counsel for the appellants

in the judgment of Supreme Court of India in between Prem Singh

and others Vs. Birbal and others2. In that decision it was held that:

Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions.

Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff

2 (2006) 5 SCC 353 19 VGKRJ SA 1023 of 2005

asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid.

Another reliance is placed by the learned counsel for the

appellants/ defendants in between Jamila Begum (dead) through

L.Rs. Vs. Shami Mohammad (dead) through L.Rs and another3.

In that decision it was held that:

Sale deed dated 21.12.1970 in favour of Jamila Begum is a registered document and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law.

In Prem Singh and Others v. Birbal and Others, (2006) 5 SCC 353, it was held as under:-

"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the

(2019) 2 SCC 727 20 VGKRJ SA 1023 of 2005

presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."

In the case on hand, the recitals of Ex.A2 goes to show that

the disputed registered sale deed was executed by sole defendant

Satyanarayana Murthy as G.P.A. holder executed in his favour.

There is no recital in the sale deed that entire sale consideration of

Ex.A2 was paid to original owner Ramalingaswamy. As stated

supra, there is no whisper in the written statement of the defendant

that Ex.A2 sale transaction is a bonafide transaction and he paid

total sale consideration to Ramalingaswamy i.e., original vendor. As

per the own admissions of the defendant Satyanarayana Murthy in

cross examination that they have not obtained any receipt from

Ramalingaswamy for the amounts paid to him and he got record to

show the availability of the sale consideration with him by the date of

execution of Ex.A2. Another important point is that the defendant

has not placed any evidence to show that Ex.A1 power of attorney is

acted upon. The recitals of Ex.A1 is not there in Ex.X1 sale deed.

The Ex.X1 sale deed is executed by the original owner himself in

favour of PW2.

                                     21                                 VGKRJ
                                                              SA 1023 of 2005

22. The learned counsel for appellants/defendants would submit

that the suit is barred by law of limitation. The case of the first

plaintiff is that he is having knowledge about execution of Ex.A2 sale

deed by the defendant himself as G.P.A. holder in favour of GPA

holder himself in the month of December, 1992. The suit is filed on

01.12.1995. Therefore, the suit is filed within three years of

knowledge of original plaintiff. The recitals of the plaint goes to

show that the first plaintiff is having the knowledge of Ex.A2 sale

deed in the month of December 1992. The first plaintiff filed the suit

on 01.12.1995. No evidence is placed by the defendants to show

that the first plaintiff is having knowledge prior to December 1992

itself. A reliance is placed by the plaintiffs in between Machineni

Chokka Rao and others Vs. Sattu Sattamma 4. In that decision it

was held that:

"The right over an immovable property will get extinguished as can be seen from Section 27 of the Act only after the expiry of the period prescribed for filing the suit for possession as per Articles 64 and 65 of the Act. Therefore, if the period falls short of the requisite period of 12 years the right over an immovable property will not get

2006 (1) ALD 116 22 VGKRJ SA 1023 of 2005

extinguished. When the person has a right over an immovable property which right is not extinguished as yet, he can lay the suit in respect of an immovable property even praying for the relief of declaration at any time within the period of 12 years at the end of which, his right would get extinguished. When we consider this clear mandate contained in Section 27 of the Act, it becomes manifest that a declaratory relief in respect of an immovable property can be sought for at any time within the period of 12 years after which the right will get automatically extinguished, notwithstanding the fact that Article 58, the residuary Article for filing declaratory suits, prescribes a period of three years limitation. Thus, when we look at the scheme of the Act, the above view seems to be plausible and reasonable qua the contrary view sought to be canvassed."

Another reliance is placed by the plaintiffs in between

Suraneni Lakshmi VS B. Venkata Durga Rao and another5. In

that decision it was held that :

In fact, it is the consistent view of the courts with regard to void documents. In this case, the document as such is not void since it was executed by the plaintiff but the challenge is on the ground that it was not out of free will

2011 (2) ALT 501 (D.B) 23 VGKRJ SA 1023 of 2005

and it was by fraud and coercion. The suit was filed by the plaintiff for a declaration of his title to the property and injunction. It is needless to say that while considering the relief in any suit the court has to consider the allegations in the plaint and grant relief. If in substance, the allegations in the plaint clearly goes to show that as to how the documents were obtained and not enforceable being vitiated and a declaration is sought for title, the court has to take into consideration such allegations while granting the relief and a declaration if granted by the court is substantially a declaration about the binding nature and validity of the sale transactions.

The learned counsel for plaintiffs/respondents would submit

that the suit is filed within a period of limitation. The recitals in the

plaint clearly goes to show that the original owner Konathala

Ramalingaswamy executed Ex.A1 G.P.A. on 30.06.1986 in favour of

sole defendant Maddula Satyanarayana Murthy to look after his

property affairs including the plaint schedule property as he used to

reside with his family members on employment purpose at

Anakapalli. Another contention of the first plaintiff is that since he is

a government employee, working at Anakapalli and used to stay at 24 VGKRJ SA 1023 of 2005

Anakapalli, he got executed Ex.A1 to look after the properties of the

first plaintiff.

23. On the other hand, the defendant contended that Ex.A4 and

Ex.A5 addressed by the Ramunaidu shows that the Ramunaidu is

having knowledge of Ex.A2 sale deed even by the month of

November, 1992. If really both brothers Ramalingaswamy and

Ramunaidu have lived in joint there was no necessity to the original

owner of the property to execute the G.P.A. in favour of third party.

The Ramunaidu is not a party to either Ex.A1 or Ex.A2, therefore,

the knowledge of Ramunaidu cannot be attributed to

Ramalingaswamy, moreover Ex.A4 and Ex.A5 postcard and letter

alleged to have been written by Ramunaidu was not shown to DW1

in cross-examination for proving that those are executed by

Ramunaidu. The original owner of the property i.e., executant of the

G.P.A. died within a short period, subsequent to filing of the suit, his

L.Rs were added on record. Second plaintiff is examined as DW1.

As per his own evidence, he has no personal knowledge about

Ex.A2. The defendant is disputing the knowledge of the plaintiff,

therefore, it is for the defendant to adduce rebuttal evidence. Here, 25 VGKRJ SA 1023 of 2005

the plaintiff alleged that he is having knowledge of sale deed in the

month of December, 1992 and suit is filed on 01.12.1995 i.e., within

three years from the date of knowledge of original plaintiff. Therefore,

it is for the defendant, who pleads that the suit is barred by time, to

allege and prove a knowledge prior to the period from which time

begins to run. But the defendant failed to establish that prior to

December, 1992 itself Ramalingaswamy is having knowledge about

Ex.A2 sale deed dated 06.07.1988. As stated supra it is a peculiar

case that after obtaining a G.P.A. to look after the property, the

Power of Attorney holder himself executed a registered sale in

favour of himself.

24. The Apex Court in a case of Srihari Hanumandas Totala Vs.

Hemant Vithal Kamat6 categorically stated that whether the suit is

barred by any law or not must be determined from the statements

made in the plaint and it is not open to decide the issue on the basis

of any other material including the written statement filed in the case.

As per article 58 of the schedule of Limitation Act, in a suit for

declaration where article 56 and 57 do not apply, the plaint should

(2021) 9 SCC 99 26 VGKRJ SA 1023 of 2005

be filed within a period of 3 years when the right to first accrues.

Section 17 of Limitation Act deals with the effect of fraud or mistake

reads as under:

(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or I the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which--

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud 27 VGKRJ SA 1023 of 2005

and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order: Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.

25. The general principle, which also manifest itself in Section 17

of the limitation Act, is that every person is presumed to know his

own legal right and title in the property and if he does not take care

of his own right and title to the property, the time for filing the suit

based on such a right of title to the property is not prevented from

running against him. The provisions of Section 17(1) embody 28 VGKRJ SA 1023 of 2005

fundamental principles of justice and equity viz., that a party should

not be penalized for failing to adopt legal proceedings when the

facts or the documents have been willfully concealed from him and

also that a party who had acted fraudulently should not be given the

benefit of limitation running in its favour by virtue of such frauds.

However, it is important to remember that section 17 does not defer

the starting point of limitation, because the defendant has committed

a fraud. Section 17 does not encompass all kinds of frauds, but

specific situations covered by clause (a) to (d) to Section 17 (1) of

Limitation Act. Section 17 1(b) and (d) encompass only that

fundamental documents or acts of concealment of documents which

have the effect of suppressing knowledge entitling the party to

pursue his legal remedy. Once a party becomes aware of

antecedents facts necessary to pursue legal proceedings, the period

of limitation commences. Therefore, in the event that plaintiff makes

out a case that falls within any one or more of four clauses to sub

section 1 to section 17 of Limitation Act, the period of Limitation for

filing the suit shall not began to run until the plaintiff or applicant has

discovered the fraud/ mistake or could with reasonable diligence

have discovered it or if the document is concealed till the plaintiff 29 VGKRJ SA 1023 of 2005

has the means of producing the concealed document or compelling

its production a fortiori.

26. Diligence is a word of common parlance means attention,

carefulness and persistence in efforts of doing something. The Apex

Court in Chander Kanta Bansal Vs. Rajinder Singh Anand7 case

in reference to proviso to Order 6 Rule 17 of the Code defined

diligence as according to Oxford Dictionary, the work diligence

means careful and persistent application or effort.

27. On considering the entire material on record, I am of the

considered view that the ambit and conditions of Section 17 (1) of

the Limitation Act which is to protect rights of a party defrauded from

lapse of time till he remains in ignorance of the fraud or with

reasonable diligence could have discovered the fraud. Section 17(1)

does not assist a person, who merely shuts his eyes in-spite of

circumstances requiring him to ascertain facts on which he would

have discovered the fraud. Section 17(1) of the Limitation Act saves

rights of the party defrauded from lapse of time as long as the party

is not yet fault on his own account. In a recent decision of the Apex

7 (2008) 5 SCC 117 30 VGKRJ SA 1023 of 2005

Court in Rajpal Singh Vs. Soroj (deceased) through L.Rs and

another which was decided by Apex Court on 18.05.20228, it was

held that "the suit seeking cancellation of the sale deed was

required to be filed within a period of three years from the date of

knowledge of the sale deed. Relief for possession is a

consequential prayer and the substantive prayer was of cancellation

of the sale deed and therefore, the limitation period is required to be

considered with respect to the substantive relief claimed and not the

consequential relief. When a composite suit is filed for cancellation

of sale deed as well as for recovery of possession, the limitation

period is required to be considered with respect to the substantial

relief of cancellation of the sale deed, which should be three years

from the date of knowledge of the sale deed sought to be cancelled".

The facts in the cited decision squarely applicable to the present

facts of the case.

28. As stated supra, the first plaintiff is having knowledge of sale

deed in question in the month of December, 1992 itself and the suit

was filed on 01.12.1995 for cancellation of the sale deed as well as

(2022) SCC online SC 638 31 VGKRJ SA 1023 of 2005

recovery of possession, which is within the period of limitation. For

the foregoing reasons, I am of the considered view that the suit is

filed within a period of limitation.

29. Having regard to the overall facts and circumstances, I am of

the considered view that Ex.A2 sale deed is brought into existence

by the defendant without the knowledge of original owner/sole

plaintiff. The defendant/G.P.A. holder himself got executed a

registered sale deed in favour of G.P.A. holder himself. Therefore,

the learned trial Judge and first appellate Judge rightly appreciated

the evidence and legal principles and rightly dismissed the suit and

appeal. Therefore, the findings of the Courts below are to be held in

accordance with law and there are no merits in the present appeal.

30. In the result, the second appeal is dismissed. There shall be

no order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall stand closed.

________________________________ V.GOPALA KRISHNA RAO, J Dated: 20.10.2023.

Sj
                        32                           VGKRJ
                                           SA 1023 of 2005







     HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO




           SECOND APPEAL No.1023 of 2005


                     20.10.2023

sj