Andhra Pradesh High Court - Amravati
P.Apparao Rodda vs Slunkara Jagga Rao on 5 November, 2024
APHC010006732004
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY ,THE FIFTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 2137/2004
Between:
P. Appa Rao @ Rodda and Others ...APPELLANT(S)
AND
S Jagga Rao and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. NIMMAGADDA REVATHI
Counsel for the Respondent(S):
1. PETLURI NAGA RAJU
2. A.SAI ROHIT
3. NIMMAGADDA SATYANARAYANA
4. S R SANKU AND KAVITI MURALI KRISHNA
FIRST APPEAL NO: 2138/2004
Between:
P.apparao @ Rodda and Others ...APPELLANT(S)
AND
Slunkara Jagga Rao and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. NIMMAGADDA REVATHI
Counsel for the Respondent(S):
1. A.SAI ROHIT
2. G V S KISHORE KUMAR
3. NIMMAGADDA SATYANARAYANA
The Court made the following:
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT Nos.2137 & 2138 OF 2004
COMMON JUDGMENT:
-
A.S.No.2137 of 2004 under Section 96 of the Code of Civil Procedure
[for short „the C.P.C.‟], is filed by plaintiffs in O.S.No.102 of 1999 against the
decree, dated 11.02.2004 passed in O.S.No.102 of 1999, on the file of VII
Additional District Judge (Fast Track Court), Visakhapatnam.
A.S.No.2138 of 2004 under Section 96 of the Code of Civil Procedure,
is filed by the defendants in O.S.No.150 of 1999 against the decree, dated
11.02.2004 passed in O.S.No.150 of 1999, on the file of VII Additional District
Judge (Fast Track Court), Visakhapatnam.
The trial Court clubbed both these suits and recorded common
evidence in O.S.No.102 of 1999 and pronounced common judgment in both
the suits and therefore common judgment is being pronounced in both these
appeals.
2. The appellants in A.S.No.2137 of 2004 are the plaintiffs in
O.S.No.102 of 1999 and they are the defendants in O.S.No.150 of 1999
whereas the appellants in A.S.No.2138 of 2004 are the defendants in
O.S.No.150 of 1999 and they are the plaintiffs in O.S.No.102 of 1999. All the
parties in two appeals will be referred to as they are arrayed before the Trial
Court.
3. The suit, O.S.No.102 of 1999, is filed by the appellants/plaintiffs for
seeking relief of declaration of title and consequential relief of permanent
injunction restraining the defendants and their men from ever interfering with
the plaint schedule property and also sought for the relief of cancellation of
registered sale deed Ex.B.2, dated 10.07.1978.
4. The plaintiffs in O.S.No.150 of 1999 filed a suit against the
defendants for seeking relief to declare by way of rectification that survey
number of the property covered by registered sale deed, dated 10.07.1978
bearing document No.4283/1978 is in Sy.No.319, but not in Sy.No.315 as
mentioned in the document and the patta number of the said suit property is
2660 but not 563 and also for seeking mandatory injunction directing the
defendants and their men to execute a rectification deed incorporating the
correct Sy.No.319 and also correct Patta No.2660 as prayed in the plaint.
5. The case of the plaintiffs in O.S.No.102 of 1999 i.e., the defendants
in O.S.No.150 of 1999 is as follows:
The 2nd plaintiff/Smt. Peesa Appa Rao @ Aruna is the sister-in-law of
the 1st plaintiff/Sree Peesa Appa Rao @ Rodda. The plaintiffs 1 and 2 are the
owners of the plaint schedule property and it is their ancestral property. They
are in possession and enjoyment of the same. They have been paying taxes
to revenue department. In the year 1981-82 the then Tahsildar,
Visakhapatnam issued ryotwari passbook in favour of the 1st plaintiff after due
enquiry and verification. He also issued a title deed in favour of the 1st plaintiff.
The defendants tried to occupy the plaint schedule property by force on
20.01.1999. The plaintiffs could resist with the intervention of local elders. The
plaintiffs never executed the sale deed, dated 10.07.1978 in favour of the
defendants. The defendants brought up the documents by manipulation. The
plaintiffs never received any sale consideration from the defendants. They
never went to the Sub-Registrar‟s Office to execute the sale deed. They did
not put their thumb marks. The plaintiffs knew the defendants for a long time.
The defendants represented to the plaintiffs that they could secure pattadar
passbook for the plaintiffs and on that pretext the defendants had obtained
some thumb marks of the plaintiffs on some papers stating that they were
necessary to apply for passbook. Accordingly, the 1st plaintiff and the husband
of 2nd plaintiff put their thumb marks on some papers. Subsequent to the filing
of the suit in O.S.No.150 of 1999 by Jagga Rao and Syamala Rao, the
plaintiffs came to know that the papers containing thumb marks of the plaintiffs
were manipulated and they were converted into fraudulent sale deed. The
plaint schedule property has been in possession and enjoyment of the
plaintiffs only.
6. The case of the defendants in O.S.No.102 of 1999 i.e., the plaintiffs
in O.S.No.150 of 1999 is as follows:
The plaint schedule property and some other property to its east are
situated in Sy.No.319. The 1st plaintiff in O.S.No.102 of 1999 and his father
had executed a registered sale deed on 10.07.1978 in respect of the plaint
schedule property for an extent of Ac.1-09 cents in favour of the defendants.
The defendants have been in possession of the said property ever since the
sale deed. The survey number and patta number of the schedule land were
mistakenly mentioned as 315 and 563 respectively in the sale deed instead of
their correct numbers as 319 and 2660. The plaintiffs taking advantage of the
mistake in noting the survey number and patta number tried to sell away the
plaint schedule property. The defendants then got issued a caution notice in
Eenadu Telugu daily. The 1st plaintiff got a reply notice published in Eenadu
daily on 18.02.1999. The plaintiffs tried to trespass into the plaint schedule
property on 15.02.1999.
7. Based on the above pleadings, the Trial Court framed the following
issues:
Issues in O.S.No.102 of 1999:
(1) Whether the plaintiffs have got title to the suit schedule property?
(2) Whether the suit is not maintainable?
(3) Whether the suit is barred by limitation?
(4) Whether M.R.O., Visakhapatnam is a necessary party to the suit?
(5) Whether the plaintiffs are entitled to the declaration that they are
the absolute owners of the property?
(6) Whether the plaintiffs are entitled to permanent injunction
restraining the defendants, their men, agents from interfering
with their peaceful possession and enjoyment of the schedule
property?
(7) Whether sale deed, dated 10.07.1978 is liable to be set aside?
(8) To what relief?
Issues in O.S.No.150 of 1999:
(1) Whether the suit is not maintainable?
(2) Whether the plaintiffs are entitled for declaration as prayed for?
(3) Whether the plaintiffs are entitled to mandatory injunction
directing the defendants, their men, agents and others to
execute rectification deed incorporating the correct Sy.No.319 as
prayed for?
(4) Whether the plaintiffs are entitled to permanent injunction as
claimed?
(5) Whether the valuation of the suit is not correct?
(6) To what relief?
8. Both the suits are tried together and common evidence is recorded in
O.S.No.102 of 1999. During the course of trial in the trial Court, on behalf of
the Plaintiffs in O.S.No.102 of 1999, PW1 to PW3 were examined and Ex.A1
and Ex.A9 were marked. On behalf of the Defendants in O.S.No.102 of 1999,
D.W.1 was examined and Ex.B1 to Ex.B11 were marked.
9. After completion of the trial and on hearing the arguments of both sides,
the Trial Court dismissed the suit in O.S.No.102 of 1999 with costs, and
decreed the suit in O.S.No.150 of 1999 with costs vide its common judgment,
dated 11.02.2004 against which, the present two appeals are filed.
10. Heard Smt. Nimmagadda Revathi, learned counsel for the appellants
and heard Sri Prabhala Rajasekhar, learned counsel for the respondents and
heard Sri N. Naga Raju, learned counsel for implead respondents.
11. The learned counsel for the appellants, Smt. Nimmagadda Revathi,
would contend that the trial Court ought to have decreed the suit, O.S.No.102
of 1999 instead of dismissing the same. She would further contend that the
trial Court ought to have seen that the plaintiffs have not sold any land in
favour of the defendants in Sy.No.319 of Madhuravada village. She further
would contend that the trial Curt ought to have dismissed the suit, O.S.No.150
of 1999 instead of decreeing the same. She would further contend that the
trial Court ought to have seen that the suit, O.S.No.150 of 1999 is barred by
law of limitation. The learned counsel for the appellants, Smt. Nimmagadda
Revathi, would contend that both the appeals may be allowed by setting aside
the common decree and judgment passed by the trial Court in both the suits.
12. Per contra, Sri Prabhala Rajasekhar, learned counsel for the
respondent Nos.1 and 2, would contend that on appreciation of the entire
evidence on record, the learned trial Judge rightly dismissed the suit,
O.S.No.102 of 1999 and rightly decreed the suit, O.S.No.150 of 1999. He
would further contend that there is no need to interfere with the common
judgment passed by the trial Court in O.S.No.102 of 1999 and O.S.No.150 of
1999 and he would further contend that both the appeals may be dismissed.
13. Now the points for determination are as follows:
(1) Whether the appellants/plaintiffs in O.S.No.102 of 1999 are entitled
the relief of cancellation of registered sale deed, dated 10.07.1978 as
prayed for?
(2) Whether the plaintiffs in O.S.No.102 of 1999 are entitled the relief of
declaration of title in the suit schedule property and also permanent
injunction as prayed in the plaint in O.S.No.102 of 1999?
(3) Whether the respondent Nos.1 and 2/plaintiffs in O.S.No.150 of
1999 are entitled the relief claimed that to declare by way of rectification
that survey number of the property covered by the sale deed, dated
10.07.1978 is situated in Sy.No.319 but not in Sy.No.315 as mentioned
in the sale deed and patta number of the said property is 2660 but not
563 and also for seeking mandatory injunction directing the defendants
and their men to execute a rectification deed incorporating the correct
survey number and correct patta number as prayed in the plaint?
(4) Whether the trial Court is justified in dismissing the suit, O.S.No.102
of 1999 and decreeing the suit, O.S.No.150 of 1999?
14. Point Nos.1 and 2 (AS No.2137 of 2004):
(1) Whether the appellants/plaintiffs in O.S.No.102 of 1999 are entitled
the relief of cancellation of registered sale deed, dated 10.07.1978 as
prayed for?
(2) Whether the plaintiffs in O.S.No.102 of 1999 are entitled the relief
of declaration of title in the suit schedule property and also
permanent injunction as prayed in the plaint in O.S.No.102 of 1999?
15. The case of the plaintiffs in O.S.No.102 of 1999 is that the plaintiffs are
absolute owners of the plaint schedule property and it is their ancestral
property and they are in possession and enjoyment of the suit schedule
property. The case of the defendants in O.S.No.102 of 1999 i.e., plaintiffs in
O.S.No.150 of 1999 is that the suit schedule property and some other property
to its east are situated in Sy.No.319 and the 1st plaintiff and his father and 1st
plaintiff‟s another brother i.e., the husband of the 2nd plaintiff herein had
executed a registered sale deed, dated 10.07.1978 in respect of the plaint
schedule property for an extent of Ac.1-09 cents in favour of the defendant
Nos.1 and 2. The defendants have been in possession and enjoyment of the
said property ever since the sale deed in O.S.No.102 of 1999. They further
pleaded that the survey number and patta number of the suit schedule
property were mistakenly mentioned as 315 and 563 respectively in the sale
deed instead of 319 and 2660 and the plaintiffs taking advantage of the
mistake crept in the sale deed in respect of the survey number and patta
number, the plaintiffs are trying to alienate the suit schedule property and that
they are constrained to file the suit vide O.S.No.150 of 1999 (previously
O.S.No.151 of 1999 in Senior Civil Judge‟s Court, Visakhapatnam,
subsequently it was transferred to District Court and numbered as O.S.No.150
of 1999). The material on record clearly reveals that prior to filing of the suit,
O.S.No.102 of 1999, the defendants herein instituted a suit before the Senior
Civil Judge‟s Court, Visakhapatnam for rectification of survey number and
patta number and after receipt of suit summons in that suit, the plaintiffs
herein filed the suit in O.S.No.102 of 1999 for seeking the relief of cancellation
of registered sale deed said to have been executed in the year 1978 and also
relief of declaration of title in the suit schedule property.
16. The plaintiffs are seeking relief of declaration of title in the suit
schedule property, therefore, the burden is on the plaintiffs to prove their right
and title in the suit schedule property by producing oral and documentary
evidence. The legal position, therefore, is clear that the plaintiff in a suit for
declaration of title could succeed only on the strength of their own title and
that could be done only by adducing sufficient evidence to discharge the onus
on the plaintiffs irrespective of the question whether the defendants have
proved their case or not.
17. It is a trite law that, in a suit for declaration of title, burden always on
the plaintiffs to make out and establish a clear case, for granting such
declaratory relief and weaknesses, if any, of the case set up by the
defendants would not be a ground to grant relief of declaration to the plaintiffs.
18. To prove the case of the plaintiffs, the 1st plaintiff himself examined
as P.W.1 before the trial Court. He reiterated the contents of plaint in his
evidence affidavit as P.W.1. In cross examination he admits that he did not
give any instructions to his Advocate in drafting the plaint and he does not
know who gave instructions to his Advocate for drafting the plaint and he does
not know what is mentioned in the plaint and the thumb mark shown to him in
the plaint is not belongs to him and he did not affix thumb mark on the plaint.
He further admits the thumb mark shown to him in evidence affidavit is also
not belongs to him. He further admits that he is not at all possessed of any
property and he is virtually an insolvent. The above statement on Oath by 1st
plaintiff i.e., P.W.1 itself goes to show that P.W.1 is suppressing the truth.
Furthermore, the above statement on Oath by 1st plaintiff itself goes to show
that 1st plaintiff and his brother sold some property and after death of his
brother, P.W.1 sold the remaining property and now he is virtually an
insolvent.
19. As per the evidence of P.W.2 and P.W.3, the plaintiffs are absolute
owners of the plaint schedule property and it is ancestral property. They
further deposed the plaintiffs never sold the plaint schedule property to
anybody. In cross examination P.W.2 in evidence admits that he owned land
of Ac.0-05 cents at about 2 or 3 furlongs away from the land of P.W.1 and the
land of P.W.1 is vacant and according to him the eastern boundary as land of
Peesa Pydarao. Ex.A.9 filed by the plaintiffs themselves shows that Peesa
Pydarao alienated Ex.A.9 property much prior to giving of evidence by P.W.2
in favour of Sunkara Jagga Rao and Sunkara Surya Prakasa Rao.
Furthermore, he is unable to give the correct boundaries to his own land. He
further admits that he does not know the contents of his chief affidavit and he
does not remember the name of the father name of 1st plaintiff. P.W.3 also
admits in his evidence in cross examination that he has not seen the
defendants and he does not know the contents of his chief evidence affidavit.
He further stated in his evidence that the land of the plaintiffs is about Ac.1-00
cents and that land is vacant as there are no rains. Furthermore, P.W.2 and
P.W.3 admitted in their evidence itself that they do not know the contents of
evidence affidavits. Furthermore, P.W.2 or P.W.3 is not attestor or the scribe
of the registered sale deed relates to the year 1978 against which the
cancellation is sought for by the plaintiffs. Therefore, the plaintiffs failed to
prove their case.
20. Ex.B.2 is the registered sale deed, dated 10.07.1978. The material
on record shows that Ex.B.2 is the registered sale deed, dated 10.07.1978.
Ex.B.2 is said to have been executed in favour of Sunkara Jagga Rao and
Sunkara Surya Prakasa Rao i.e., defendants in O.S.No.102 of 1999 (Plaintiffs
in O.S.No.150 of 1999) which is said to have been executed by father of 1 st
plaintiff and husband of 2nd plaintiff. As stated supra, Ex.B.2 is the registered
sale deed, dated 10.07.1978 executed before Sub-Registrar Office,
Visakhapatnam. The case of the plaintiffs herein is that the suit schedule
property is an ancestral property. The recitals in the sale deed goes to show
that the said property is ancestral property and on 10.07.1978 after receipt of
substantial sale consideration of Rs.6,000/- in those days in the year 1978,
they have executed a regular registered sale deed in the office of Sub-
Registrar at Visakhapatnam in favour of defendants in O.S.No.102 of 1999.
21. The execution of the registered sale deed is not totally disputed by
the plaintiffs. The contention of the plaintiffs is that Ex.B.2 registered sale
deed is obtained by way of fraud and misrepresentation by the defendants.
The present suit is filed on 03.03.1999 for seeking relief of cancellation of
registered sale deed, dated 10.07.1978 i.e., after a lapse of 21 years from the
date of alleged registered sale deed. The plaintiffs pleaded in the plaint that
the defendants known to the plaintiffs since long time and the defendants
represented that they know several revenue officials and they can issue
pattadar passbook and for that purpose the defendants obtained some
signatures on some papers representing that those are necessity to applying
pattadar passbook before revenue officials, basing on the representation
without knowing the consequences of the same, the 1st plaintiff and husband
of the 2nd plaintiff put their thumb marks on some papers. P.W.1 deposed in
his evidence that they obtained pattadar pass book and title deed in the year
1999 just prior to filing of the suit and the suit is also filed in the year 1999.
P.W.1 deposed in his evidence that he entrusted that job to one Nanaji for
obtaining pattadar passbooks and title deeds. Furthermore, it is the case of
the plaintiffs herein that they know the defendants since long time. It is not the
case of the plaintiffs herein that there was a rivalry in between both parties
since the date of alleged sale deed relates to the year 1978.
22. In the case on hand, the plaintiffs approached the Court for seeking
cancellation of registered sale deed, dated 10.07.1978 after a lapse of 21
years from the date of registered sale deed, against which the cancellation is
sought for. Unless Ex.B.2 registered sale deed is cancelled, the plaintiffs will
not acquire any title for the selfsame property. It is needless to say that the
burden of proving fraud lies on the person who alleged it.
In the case of Union of India vs. V. Chaturbhai M. Patel & Co.,1 the
Apex Court held that;
"all particulars relating to the fraud must be pleaded and proved and
more suspension is not enough to reach a finding of fraud. The Apex
Court further held that the proof of such fraud must be beyond all
reasonable doubt."
As stated supra, the plaintiffs herein approached the civil Court for
seeking cancellation of registered sale deed relates to the year 1978. As
noticed supra, the suit is instituted in the year 1999, but for the reasons best
known to the plaintiffs, they did not examine the alleged attestors and scribe of
(1976) 1 SCC 747
registered sale deed Ex.B.2. They simply pleaded in the plaint that the said
sale deed obtained by way of fraudulent and by playing fraud by the
defendants. Furthermore, the evidence of P.W.1 goes to show that he does
not give any instructions to his counsel in drafting the plaint and he does not
know who gave instructions to his counsel for drafting plaint and he does not
know what was mentioned in the plaint and thumb marks shown in the plaint
and also his evidence affidavit is denied by P.W.1 on Oath. He further admits
he is virtually insolvent and he is not possessed any of the property. The
evidence of P.W.2 and P.W.3 goes to show that they does not know the
contents of evidence affidavit and as on the date of filing of the suit, the suit
schedule property is vacant. Therefore, the evidence on record fails to prove
that Ex.B.2 registered sale deed was fraudulently obtained by way of playing
fraud and undue influence by the defendants. Unless fraud and undue
influence have been proved, the plaintiffs cannot get the cancellation of
registered sale deed.
As stated supra, in a suit for declaration of title, burden is heavily rests
on the plaintiffs, who approached the civil Court for seeking relief of
declaration of title in the plaint schedule property. As stated supra, the
plaintiffs failed to discharge their burden to prove their title in the suit schedule
property and according to their own case Ex.B.2 registered sale deed was
obtained by the defendants for the selfsame property in the year 1978 by
playing fraud and undue influence. As stated supra, the plaintiffs are not
entitled the relief of cancellation of the registered sale deed because they
failed to prove the alleged undue influence and alleged fraud. The plaintiffs
virtually relied on pattadar passbook and title deed which are said to have
been issued in the year 1999 which is prior to the institution of the suit in the
same year i.e., in the year 1999. As noticed supra, the suit is filed in the year
1999, Ex.A.2 and Ex.A.3 land revenue receipts are dated 10.04.1975 and
04.02.1981 and Ex.A.4 and Ex.A.5 are relates to the year 1999 in which year
the suit is instituted, therefore, no importance will be given to those documents
to prove the title of the plaintiffs. Furthermore, Ex.A.4 and Ex.A.5 are dated
22.01.1999, therefore, all the said revenue receipts are not at all relevant to
prove the title of the plaintiffs. Furthermore, the law is well settled that entries
in a revenue record do not confer any title in respect of suit schedule
immovable property.
23. The learned counsel for the appellants placed reliance of Krishna
Mohan Kaul alias Nani Charan Kul and another vs. Pratima Maity and
others2 , wherein the Apex Court held as follows:
"In the instant case the Court was dealing with a case where an old,
ailing illiterate person was stated to be the executants of the settlement
deed and no witness was examined to prove the execution of the deed
or putting of the thumb impression. The plaintiffs challenged the validity
of the settlement deed alleged to be executed by person aged 106
years, placing the onus to prove the execution of deed on the plaintiff
was not proper. The onus to prove the validity of the deed of settlement
would be on the defendant. When fraud, misrepresentation or undue
influence is alleged by a party in a suit, normally, the burden is on him to
prove such fraud, undue influence or misrepresentation. But, when a
person is in a fiduciary relationship with another and the latter is in a
position of active confidence the burden of proving the absence of fraud,
misrepresentation or undue influence is upon the person in the
dominating position, he has to prove that there was fair play in the
transaction and that the apparent is the real, in other words, that the
transaction is genuine and bona fide. In such a case the burden of
proving the good faith of the transaction is thrown upon the dominant
party, that is to say, the party who is in a position of active confidence."
The facts referred in the above case law are the executants was more
than 100 years old at the time of alleged execution of deed in question and he
was paralytic and his mental and physical condition were not in order and he
AIR 2003 Supreme Court 4351
was practically bed ridden with paralysis and though his left thumb impression
was stated to be affixed or the document, there was no witness who could
substantiate that in fact he had put his thumb impression.
In the case on hand it is not the case of the plaintiffs that they are aged
more than 100 years at the time of alleged execution of the deed in question.
As per the plaint averments, in the year 1999 the 1st plaintiff is aged about 55
years and the 2nd plaintiff is aged about 43 years. As noticed supra, the
registered sale deed is said to have been executed in the year 1978, it means
the 1st plaintiff was aged 34 years and the 2nd plaintiff was aged 22 years by
the date of alleged registered sale deed Ex.B.2. In the case on hand it is not
the case of the plaintiffs that they are paralytic and their mental condition and
physical condition were not in order and they were practically bed ridden with
paralysis and their left hand thumb impressions were affixed on the document
by the time practically they were bed ridden with paralysis. Therefore, the
facts and circumstances in the cited decision is not at all applicable to the
present case on hand.
24. The learned counsel for the respondents/defendants relied on Afsar
Sheikh and another vs. Soleman Bibi and others3 wherein the Apex Court
held as follows:
"While it is true that `undue influence', `fraud', `misrepresentation' are
cognate vices and may, in part, overlap in some cases, they are in law
distinct categories, and are in view of Order 6, Rule 4, read with Order 6,
Rule 2, of the Code of Civil Procedure, required to be separately
pleaded, with specificity, particularity and precision. A general allegation
in the plaint, that the plaintiff was a simple old man of ninety who had
reposed great confidence in the defendant, was much too insufficient to
amount to an averment of undue influence of which the High Court could
take notice, particularly when no issue was claimed and no contention
(1976) 2 Supreme Court Cases 142
was raised on that point at any stage in the trial court, or, in the first
round, even before the first appellate court."
The learned counsel for the respondents relied on Kona Kanthamma
vs. Guntamukkala Srinivasa Rao4 wherein the Apex Court held as follows:
"With respect to the substantial question of Law No.2, as above, in view
of the decision of the Supreme Court in Afsar Shaikh v. Soleman Bibi
(supra), the contentions, based on undue influence and
misrepresentation, have to be excluded from consideration, as there is
neither any pleading nor any evidence. In fact, it is not even stated in
the plaint that the respondent herein was in a dominating position with
respect to appellant nor it is stated that he influenced the appellant and
her son to execute the sale deed by using his dominant position. In the
absence of very basic averment to that effect in the plaint, the only
question which needs to be considered is whether the appellant has
established fraud as alleged?"
In the case on hand with regard to fraud and undue influence no
evidence is produced by the plaintiffs and furthermore, as stated supra, the
entries in revenue record does not confer any title in the plaint schedule
property.
25. As stated supra, the alleged fraud and undue influence alleged to
have been played by the defendants in obtaining registered sale deed is not at
all proved by the plaintiffs. Unless the said registered sale deed is cancelled,
the plaintiffs herein cannot get valid title. Furthermore, the evidence of P.W.1
to P.W.3 is not helpful to the plaintiffs, to prove their case because they are
totally denying the contents of chief examination sworn affidavits and the 1st
plaintiff clearly admits in his evidence that he is virtually insolvent and he has
not possessed any part of the immovable property. For the aforesaid reasons,
I am of the considered view that the plaintiffs herein are not entitled to get the
2008 SCC OnLine AP 730
relief of cancellation of registered sale deed and also not entitled the relief of
declaration of title and consequential relief of permanent injunction as sought
in O.S.No.102 of 1999. Accordingly, point Nos.1 and 2 are answered against
the appellants.
Point No.3 (AS No.2138 of 2004):
Whether the respondent Nos.1 and 2/plaintiffs in O.S.No.150 of
1999 are entitled the relief claimed that to declare by way of
rectification that survey number of the property covered by the
sale deed, dated 10.07.1978 is situated in Sy.No.319 but not in
Sy.No.315 as mentioned in the sale deed and patta number of the
said property is 2660 but not 563 and also for seeking mandatory
injunction directing the defendants and their men to execute a
rectification deed incorporating the correct survey number and
correct patta number as prayed in the plaint?
26. The claim of the plaintiffs in O.S.No.150 of 1999 is based on Ex.B.2
registered sale deed, dated 10.07.1978. It was contended by the learned
counsel for the appellants herein that the plaintiffs in O.S.No.150 of 1999 did
not adduce any evidence to prove Ex.B.2 registered sale deed except relying
on the evidence of D.W.1 and also Ex.B.2 registered sale deed and also
paper publications. Here the plaintiffs have not sought the relief of declaration
of their right and title in the plaint schedule property. In such a case if they
sought the relief of declaration of title in the plaint schedule property, the
heavy burden rests on the plaintiffs and the plaintiffs herein have to prove their
right and title in the plaint schedule property. Furthermore, Ex.B.2 registered
sale deed is in existence and it is not cancelled by a competent Court of law.
The property sold to the plaintiffs herein i.e., Sunkara people are under the
registered sale deed and the registration itself is a notice to all the public as
per law. The trial Court held by its judgment in para No.20 that;
"D.W.1 deposed on 09.09.2003 during cross examination that Karanam
surveyed the land before purchase and he heard that he was no more.
In fact, he filed the affidavit of Karanam as D.W.2, dated 17.09.2003.
D.W.1 might have made enquiries and came to know about the
availability of Karanam. In the affidavit of Karanam Pilla Srihari Rao it
was mentioned his age was 77 years and with great difficulty he could
attend the Court on that day and by that date 17.09.2003 D.W.1 was not
cross examined and that D.W.2 could not be cross examined by the
learned counsel for the plaintiffs on that day and on subsequent date on
17.10.2003 the cross examination of D.w.1 was completed, but D.W.2
was absent and he could not cross examined. The trial Court further
held in its judgment that even thereafter D.W.2 could not attend the
Court on 22.10.2003 and on 30.10.2003 and D.W.2 physically present
before the Court on 06.11.2003, but he was not cross examined on the
pretext that the plaintiffs‟ counsel was said to be ill and that his cross
examination could not be done by the learned counsel for the
defendants and subsequently on 19.12.2003 it was represented by the
learned counsel for the defendants that D.W.2 was still taking bed rest
and could not attend and ultimately on 30.12.2003 the trial Court had
eschewed the evidence of D.W.2."
The 1st plaintiff by name Peesa Appa Rao deposed that he has not
possessed any property and he is virtually insolvent and he and his brother
sold part of property in the year 1978. Out of the sale proceeds, the 1 st
plaintiff in O.S.No.102 of 1999 performed the marriage of his daughter. The
date of Ex.B.2 registered sale deed is 10.07.1978. As seen from the evidence
of P.W.1 i.e., Peesa Appa Rao, he himself, his brother, and their father sold
away some property after death of his brother and his father, he sold away
other property and now he is insolvent and he did not possess any other
property. In fact, the 2nd plaintiff in O.S.No.102 of 1999 did not enter into the
witness box to deny about the execution of the sale deed by her husband.
27. It was contended by the learned counsel for the appellants before
this Court that the suit in O.S.No.150 of 1999 is barred by law of limitation, in
view of admission of the party i.e., D.W.1 that he was aware by the year 1978
that patta number for the suit property was 2660. It does not mean that the
respondents 1 and 2/plaintiffs were aware of the fact in the year 1978 that
Sy.No.319 is wrongly mentioned as Sy.No.315 in the registered sale deed.
Moreover, it was not pleaded by the appellants in the written statement in
O.S.No.150 of 1999 and so also in the plaint in O.S.No.102 of 1999 that the
suit in O.S.No.150 of 1999 is barred by law of limitation. It is well settled that
in the absence of pleading, evidence if any produced by the parties cannot be
considered. It is also equally well settled that no party should be permitted to
travel beyond its pleading and that all necessary and material facts should be
pleaded by the party in support of the case set up by it. The object and
purpose of the pleading is to enable the other party to know the facts which
was pleaded by the appellants. This preposition is well supported by cretina
of decisions of Apex Court. It is also relevant to say a decision of the Court
cannot be based on grounds outside the pleadings of the parties to the suit.
28. Learned counsel for the appellants placed reliance of Ittyavira
Mathai v. Varkey Varkey and another 5 wherein the Apex Court held as
follows:
"Moreover, the appellants could well have raised the question of
limitation in the High Court in support of the decree which had been
passed in their favour by the trial court. Had they done so, the High
Court would have looked into the records before it for satisfying itself
whether the suit was within time or not. The point now raised before us
is not one purely of law but a mixed question of fact and law. No specific
ground has even been taken in the petition made by the appellant before
the High Court for grant of a certificate on the ground that the suit was
AIR 1964 Supreme Court 907
barred by time. In the circumstances, we decline leave to the appellant
to raise the point of limitation before us."
The learned counsel for the appellants placed another reliance of
Draupadi Devi and another vs. Union of India and others 6 wherein the
Apex Court held as follows:
"That brings us to the issue of limitation. The learned Single Judge held
that the plea of limitation not having been taken in the pleadings
defendants Nos. 1 and 2 should not be allowed to raise the said plea.
We may notice here that under the Code of Civil Procedure, Order VII
Rule 1(e) requires a plaint to state "the facts constituting the cause of
action and when it arose". The plaintiff was bound to plead in the plaint
when the cause of action arose. If he did not, then irrespective of what
the defendants may plead in the written statement, the court would be
bound by the mandate of Section 3 of the Limitation Act, 1908 to dismiss
the suit, if it found that on the plaintiff's own pleading his suit is barred by
limitation. In the instant case, the plaint does not plead clearly as to
when the cause of action arose. In the absence of such pleadings, the
defendants pleaded nothing on the issue."
In the case on hand, the respondents/defendants in O.S.No.102 of 1999
i.e., plaintiffs in O.S.No.150 of 1999 pleaded in the plaint in O.S.No.150 of
1999 in the cause of action para that cause of action to file the suit is in the
month of January when the appellants made attempts to alienate the plaint
schedule property on 31.01.1999 that the plaintiffs have published a caution
notice in Eenadu daily on 15.02.1999 and on 16.02.1999. In cross
examination it was not suggested to the respondent i.e., D.W.1 that the cause
of action mentioned in the plaint is not correct. Further Ex.B.2 registered sale
deed is relates to the year 1978, it seems that the appellants have not made
any attempts to alienate the plaint schedule property previously i.e., prior to
1999. Furthermore, pending suit in the year 1999 the appellants alienated the
suit schedule property and subsequent purchasers are impleaded in the
appeal itself as respondents. It clearly shows that because the respondents is
having apprehension that the appellants may alienate the plaint schedule
(2004) 11 Supreme Court Cases 425
property and a caution notice was given to general public on 31.01.1999 in
Eenadu daily which is evident by Ex.B.3. It seems that from the date of sale
deed i.e., from the year 1978 to 1998 there are no disputes between the
parties in connection with enjoyment of the property. It is also relevant to say
that the 1st plaintiff in O.S.No.102 of 1999 Peesa Appa Rao i.e., appellant
No.1 admits in his evidence in cross examination itself that there are no
disputes in between them since long time and know the respondents. It is not
the case of Peesa people that they are having disputes with the Sunkara
people.
29. The learned counsel for the appellants relied on the decision of
Chalasani Satyanarayana Murthy v. Chalasani Rama Koteswara Rao and
others7 wherein the composite High Court of Andhra Pradesh held as follows:
"The suit was filed in the original Court on 17.09.1996 for rectification of
registered sale deed dated 20.05.1977 insofar as Eastern boundary of
RS No.272/4 is concerned. The suit was filed more than 22 years of
execution of Ex.A.1 sale deed. The 2nd defendant took objection for that
relief on the ground that it is barred by limitation. As per Article 113 of
the Schedule to the Limitation Act, 1963, for a suit for which no period of
limitation is prescribed in the schedule, period of limitation is three years
and time begins to run when the right to sue accrued. In this case, right
to sue accrued to the plaintiff on the date of execution of Ex.A.1 sale
deed i.e., on 20.05.1977. As pointed out earlier, the plaintiff executed
the sale deed with knowledge of contents thereof. Further, as per
evidence of the plaintiff as PW1, the land was measured while delivering
possession of the same after execution of the sale deed. In spite of it,
the plaintiff kept quiet for all these twenty two years. Hence, I find that
the prayer for rectification of Eastern boundary in Ex.A.1 sale deed is
barred by limitation."
2010 (4) ALD 628
The facts in the aforesaid case law are suit was filed more than 22
years of execution of Ex.A.1 sale deed and 2nd defendant took an objection in
the written statement that suit is barred by limitation. Admittedly, no plea is
taken by the appellants herein in the written statement about the limitation
aspect. Furthermore, the cause of action to file the suit by the plaintiffs in
O.S.No.150 of 1999 arose in the month of January, 1999 when the appellants
alienated the plaint schedule property. Further it is not the case of none of the
parties that the boundaries mentioned in Ex.B.2 registered sale deed are
wrong. The plaintiffs are asking the relief of rectification of survey number and
patta number. The plaintiffs are not asking the relief of rectification of
boundaries. The law is well settled that the boundaries will prevail over the
survey number. It is not the case of the appellants that according to them, the
survey number and patta number mentioned in Ex.B.2 registered sale deed
are correct. Even according to Peesa people the correct survey number is
319 but not in Sy.No.315 which is well supported by sale deed filed by the
plaintiffs Ex.A.9.
30. The learned counsel for the appellants relied on a decision of
Joseph John Peter Sandy v. Veronica Thomas Rajkumar and Anr.8
The facts in the said case law are relates to unregistered settlement
deed executed between son and daughter and the said suit is filed for
rectification of settlement deed. Therefore, the facts and circumstances in the
cited decision are different to the instant case.
31. The learned counsel for the appellants relied on a report of
Advocate-Commissioner. The learned counsel for respondents placed
reliance of Committee of Management Anjhuman Intezamia Masajid,
Varanasi vs. Rakhi Sing and others 9 wherein the Apex Court held as
follows:
AIR 2013 Supreme Court 2028
(2023) 11 SCR 108
"In terms of Order XXVI Rule 10, the Commissioner has to submit a
report in writing to the court. The report of the Commissioner and the
evidence taken by him constitute evidence in the suit and form a part of
the record. However, the court and, with its permission, any of the
parties may examine the Commissioner personally in open court
touching any of the matters referred to him or mentioned in the report or
as regards the report including the manner in which the investigation has
been made. The court is also empowered to direct such further inquiry if
it is dissatisfied with the proceedings of the Commissioner. The
evidentiary value of any report of the Commissioner is a matter to be
tested in the suit and is open to objections including cross-examination.
A report of the Commissioner does not by and of itself amount to a
substantive finding on matters in dispute and is subject to the process of
the court during the course of the trial."
In the case on hand, the report of the Advocate-Commissioner is a
matter to be tested in the suit before the trial Court and the Advocate-
Commissioner is not at all examined as a witness before the trial Court to test
the report of Advocate-Commissioner.
32. The learned counsel for the respondents placed another reliance of
Gerela Kalita and another vs. Dharmeswar Saikia and others 10 wherein
the Assam High Court held as follows:
"Section 31 of the Specific Relief Act has to be read:
"When, through fraud or a mutual mistake of the parties, a contract
or other instrument in writing does not truly express their intention,
either party, or his representative in interest, may institute a suit to
have the instrument rectified; and if the Court finds it clearly proved
that there has been fraud or mistake in framing the instrument, and
ascertain the real intention of the parties in executing the same, the
Court may in its discretion rectify the instrument so as to express that
AIR 1961 Assam 14
intention, so far as this can be done without prejudice to rights
acquired by third persons in good faith and for value."
This section, therefore, permits a suit to have the instrument rectified if
there has been a mutual mistake of the parties or where fraud has been
committed. In either case, the section permits institution of a suit for
correction of an error."
In the present case it is not the case of both parties that survey number
and patta number mention in Ex.B.2 registered sale deed is correct and due to
mutual mistake of both parties the mistake of survey number and patta
number were mentioned in Ex.B.2 registered sale deed. It is a fact that due to
mutual mistake of both parties in Ex.B.2 registered sale deed relates to the
year 1978, the survey number and patta number were wrongly mentioned in
the sale deed. Furthermore, the evidence on record clearly reveals that the
relationship in between both the parties are cordial prior to 1999 as per the
own statement of Peesa people i.e., P.W.1. The respondents/plaintiffs in
O.S.No.150 of 1999 are not asking relief of rectification of boundaries in the
sale deed. As stated supra, the law is well settled that the boundaries prevail
over the survey number. Further the mistake of survey number did not
invalidate the conveyance of title to the respondents. It is not the case of
none of the parties that Ex.B.2 registered sale deed schedule property is
situated in Sy.No.315, the material on record reveals that Ex.B.2 property is
situated in Sy.No.319 and the survey number is wrongly mentioned as 315
and patta number is also wrongly mentioned. If wrong survey number of 315 is
not rectified as Sy.No.319 certainly, it will effect the rights of the third parties in
the properties situated in Sy.No.315. As stated supra, the appellants herein
are not entitled the relief of cancellation of Ex.B.2 registered sale deed.
Therefore, the mistake in the survey number and patta number did not
invalidate the conveyance of title to the respondent Nos.1 and 2. Furthermore,
it is not the case of both parties that the boundaries mentioned in Ex.B.2
registered sale deed are incorrect. Further if survey number and patta number
in Ex.B.2 are not rectified by seeing the technicalities, the mutual mistake
committed by both parties in Ex.B.2 registered sale deed will not be rectified
and the litigation will not be ended.
33. For the aforesaid reasons, I am of the considered view that the
respondent Nos.1 and 2/plaintiffs in O.S.No.150 of 1999 are entitled the relief
of rectification of survey number and patta number and also mandatory
injunction and permanent injunction as prayed in the plaint.
Point No.4:
Whether the trial Court is justified in dismissing the suit,
O.S.No.102 of 1999 and decreeing the suit, O.S.No.150 of 1999?
34. For the aforesaid reasons decree and common judgment passed by
the trial Court in both the suits in O.S.No.102 of 1999 and 150 of 1999 are
perfectly sustainable under law and it requires no interference, resultantly,
both these appeals are liable to be dismissed.
35. In the result, both the appeals, A.S.No.2137 and 2138 of 2004 are
dismissed confirming the decree and common judgment, dated 11.02.2004
passed in O.S.No.102 of 1999 and O.S.No.150 of 1999, by the VII Additional
District Judge (Fast Track Court), Visakhapatnam. Considering the
circumstances of the case, I order each party do bear their own costs in the
appeals.
As a sequel, miscellaneous petitions, if any, pending in the Appeals
shall stand closed.
_________________________
V. GOPALA KRISHNA RAO, J
Date: 05.11.2024
PGR
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT Nos.2137 and 2138 of 2004
Date: 05.11.2024
PGR
