Smt.Meenakshi Amma,Gandhinagar vs Thongathi,Hyd And 2 Ors
2022 Latest Caselaw 574 Tel

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       THE HONOURABLE SRI JUSTICE M.LAXMAN

        CITY CIVIL COURT APPEAL No.14 of 2001

JUDGMENT:

1. The challenge in the present appeal is to the judgment

and decree dated 18.07.2000 in O.S.No.211 of 1990 on the

file of the III Senior Civil Judge, City Civil Court at

Secunderabad, whereunder and whereby, the suit filed by the

plaintiff for declaration and recovery of possession and also

consequential injunction directing the defendants to demolish

the unauthorized constructions made over the suit schedule

property was dismissed.

2. The appellant herein is the plaintiff and the respondents

herein are the defendants in the said suit. For the sake of

convenience, the parties hereinafter are referred to as they are

arrayed in the suit.

3. Briefly, the case of the plaintiff is that she is the

absolute owner of plot bearing No.136 in Sy.Nos.61 and 62,

admeasuring 500 square yards, situated at Tirumalagiri

Village, Secunderabad Cantonment (hereinafter, it is referred

to as "suit property"). She purchased the suit property

through a registered sale deed document No.870/1976

(Ex.A-1). After purchase, the she had been enjoying the suit

property being the absolute owner and possessor. While so,

on 03.08.1990, when she went to witness the suit property,

she found that the defendants unauthorisedly occupied the

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suit property and raised construction over it. On enquiry, she

came to know that the defendants obtained building

permission from the Estate Officer by fraudulent means and

raised construction. She also claimed that the original sale

deed of Ex.A-1 was misplaced, as such, she could not file the

original, but filed the certified copy. Originally, the suit was

filed against defendant Nos.1 and 2 and subsequently,

defendant No.3 was impleaded vide order dated 01.10.1991 in

I.A.No.748 of 1991, but no consequential amendment sought

against him.

4. Defendant No.3 was set ex parte. Defendant Nos.1 and

2 filed a written statement claiming that they are the absolute

owners of the suit property having purchased the same under

two sale deeds dated 02.07.1986 (Ex.B-2) and 04.07.1986

(Ex.B-12). The said sale deeds were executed by the plaintiff

through her GPA Holder i.e., defendant No.3. The plaintiff

obtained ULC permission vide proceedings dated 07.11.1985

for sale of the suit property, pursuant to which, the plaintiff

through her GPA Holder has executed the said sale deeds in

favour of defendant Nos.1 and 2. The plaintiff and her GPA

Holder have handed over the original of Ex.A-1 and ULC

proceedings. Subsequently, defendant Nos.1 and 2 have

made an application before the Cantonment Board for

construction. The Cantonment Board has granted building

permission through sanctioned letter dated 11.10.1988.

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Pursuant to the same, they raised construction over the suit

property and prayed to dismiss the suit.

5. On the basis of the above pleadings, the trial Court has

framed the following issues:

"1. Whether the plaintiff is entitled to the relief of declaration of title and recovery of possession as prayed for?

2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for?

3. Whether the plaintiff transferred her title and possession in favour of the defendants and as such plaintiff is not entitled to any relief as contended by the defendants?

4. Whether the suit is barred by limitation?

5. To what relief?"

6. The plaintiff, to support her case, examined P.Ws.1 and

2 and relied upon Exs.A-1 to A-5. The defendants, to support

their case, examined D.Ws.1 and 2 and relied upon Exs.B-1

to B-12.

7. The trial Court, after appreciating the evidence on

record, found that the sale deeds were validly executed by the

plaintiff through her GPA Holder and consequently, the suit

was dismissed. Hence, the present appeal at the instance of

the plaintiff.

8. Heard both sides.

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9. The following points emerge for consideration in this

appeal:

"1. Whether the plaintiff is entitled for declaration of title and recovery of possession?

2. Whether the sale deeds under Exs.B-2 and B-12 are validly executed by the plaintiff?

3. Whether the plaintiff is entitled for mandatory injunction?

4. To what relief?"

Point Nos.1 and 2:

10. Ex.A-1 shows that the plaintiff purchased the suit

property under it and this is not in dispute. It is also not in

dispute that the plaintiff has not produced the original of

Ex.A-1. The plaintiff claims that it was lost when her

husband died in the month of December, 1985 and she could

come to know about the same only after three or four years

thereafter. On the contrary, defendant Nos.1 and 2 say that

the original of Ex.A-1 was handed over to them after the sale

deeds under Exs.B-2 and B-12 were executed in their favour

through the GPA Holder on the strength of GPA Ex.B-3.

Defendant Nos.1 and 2 further say that original of Ex.A-1 and

originals of Exs.B-2 and B-12 were kept with Canfin Homes,

financial institution, for obtaining loan for construction of the

house over the suit property.

11. Defendant Nos.1 and 2 in the written statement have

specifically pleaded that the plaintiff has executed the sale

deeds Exs.B-2 and B-12 through the GPA which was given in

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favour of defendant No.3 under Ex.B-3. The plaintiff did not

choose to file any rejoinder denying the truthfulness of the

claim set up by defendant Nos.1 and 2 with regard to

execution of Exs.B-2 and B-12 sale deeds on the strength of

Ex.B-3 GPA. However, in the course of examination of the

witness, a specific stand has been taken that she has not

executed any GPA in favour of defendant No.3 under Ex.B-3

and the GPA was forged. On the basis of the forged GPA, the

fabricated sale deeds under Exs.B-2 and B-12 were created.

12. The learned counsel representing the appellant/plaintiff

has mainly contended that the trial Court wrongly relied upon

Ex.B-3, copy of GPA, without there being establishment of

requirement of adducing secondary evidence. It is also his

contention that defendant Nos.1 and 2 have raised conflicting

claims with regard to possession of original of Ex.B-3. On

one hand, they say that the original was given to the plaintiff

and on the other hand, they say that the same was returned

to defendant No.3. It is also his contention that defendant

Nos.1 and 2 have not proved Ex.B-3 without there is a

specific denial of forgery of Ex.B-3.

13. The learned counsel has further contended that

defendant Nos.1 and 2 have not produced originals of

Exs.B-2, B-12 and A-1, instead they have produced Ex.B-1,

letter issued by Canfin Homes. According to him, such a

document was not in terms of Bankers' Books Evidence Act,

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1891 (for short, the Act). Therefore, Ex.B-1 cannot be relied

upon to claim the title by defendant Nos.1 and 2 on the basis

of Exs.B-2 and B-12.

14. As seen from the cross examination of D.W.1, the

plaintiff did not deny the fact that defendant Nos.1 and 2

obtained loan from Canfin Homes. It is the specific case of

the plaintiff that on the basis of the fabricated documents by

playing fraud, loan was obtained. When there is no denial of

the factum of obtaining loan and when defendant Nos.1 and 2

set up the plea that the loan was obtained by depositing of

original title deeds as well as link documents, under which

defendant Nos.1 and 2 have purchased the suit property from

the plaintiff represented by her GPA Holder, the only

inference can be drawn that defendant Nos.1 and 2 have kept

the documents with Canfin Homes and truthfulness of Ex.B-1

can be believed. Therefore, the contention of the learned

counsel for the plaintiff that Ex.B-1 cannot be relied upon, as

it is not in terms of the Act.

15. A reading of the definition of "bankers' books" as defined

under Sections 2 and 3 of the Act, it includes ledger,

day-books, cash-books, account-books and all other books

used in the ordinary business of a bank, whether they are

kept in written form or in the category of film or any other

form.

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16. In the present case, possession of original records

relating to title deeds and link documents do not come under

the purview of the Act. Therefore, the requirement of

certification as contended under the Act so as to presume the

truthfulness of Ex.B-1 does not apply.

17. When the loan is not denied by the plaintiff, and when

defendant Nos.1 and 2 claimed that they kept the documents

as a security, those circumstances would support the

truthfulness of Ex.B-1. Therefore, it can be held that the

originals of Exs.A-1, B-2 and B-12 were with Canfin Homes.

18. In the present case, the plaintiff did not challenge the

sale deeds executed under Exs.B-2 and B-12. Without

challenging the said sale deeds, the suit for declaration of title

and recovery of possession was sought. Further, there are no

pleadings in the form of rejoinder to the written statement of

defendant Nos.1 and 2 with regard to their claim that the sale

deeds under Exs.B-2 and B-12 were executed by the plaintiff

through the GPA Holder. In such circumstances, it is to be

seen whether the title of the plaintiff can be declared.

19. In this regard, it is apt to refer to the decision of the

Apex Court in Murugan v. Kesava Gounder (dead) through

LRs.1, wherein it was held as under:

AIR 2019 SC 2696

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"16. This Court in Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, (2001) 6 SCC 534 had noted the distinction between Void and Voidable. In Paragraph No. 22, following has been laid down:-

"22. Thus the expressions "void and voidable" have been the subject-matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."

20. A reading of the said judgment, it is clear that when a

plea of forgery and fabrication is raised in respect of any

document, it is voidable, as the apparent state of affairs is the

real state of affairs and a party who alleges otherwise is

obliged to prove it. If it is proved that the document is forged

and fabricated and a declaration to that effect is given, a

transaction becomes void from the very beginning. This

means, when the document is designated as a voidable since

the apparent state is the real state in the light of the plea

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raised by the plaintiff with regard to fabrication and forgery, it

is necessary for the plaintiff to seek a declaration with regard

to forgery of Exs.B-2 and B-12 and establish that those

documents were executed by forged document under Ex.B-3.

When the burden is on the plaintiff to seek such a relief, no

fault can be found with defendant Nos.1 and 2 in bringing

Ex.B-3 which is a photostat copy of the original GPA. In fact,

the burden is on the plaintiff to establish that Ex.B-3 is the

forged GPA, and basing on it, Exs.B-2 and B-12 documents

were fabricated to claim the title to the property by defendant

Nos.1 and 2. There are other circumstances which indicate

the truthfulness of Ex.B-3.

21. The admission of P.W.1 shows that one of the attestors

i.e., Sudhakar claimed that he might be the friend of his son

i.e., P.W.2. There is also evidence to show that Shiva Lingam

was the friend of plaintiff's husband and he is the attestor to

Ex.B-1 and he was also attestor to one of the sale deeds

pertaining to plot of the plaintiff at Mahendra Hills. This is

also admitted position. He was one of the witnesses to the

sale transaction under Exs.B-2 and B-12. The circumstance

is that the original of Ex.A-1 is in possession of defendant

Nos.1 and 2 which they kept with Canfin Homes. There is a

specific pleading to the effect that there is Urban Land Ceiling

proceeding dated 07.11.1985 obtained by the plaintiff for sale

of the suit property. This permission was obtained by the

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plaintiff herself and subsequently the sale deeds under

Exs.B-2 and B-12 were executed.

22. It is also an admitted fact that till date, the plaintiff has

not instituted any criminal case against the GPA Holder, who

executed the sale deeds representing the plaintiff on the

strength of Ex.B-3. Copy of Ex.B-33 shows that the

document was validated by the Registrar, and basing on the

validation of the GPA, the sale deeds were executed. These

are all circumstances go to show that there is a truth in

execution of Ex.B-3. In fact, the plaintiff denies the very

execution of Ex.B-3 and claimed that Exs.B-2 and B-12 are

fabricated and hence, it is for her to establish such a fact in

the light of the supra stated decision of the Apex Court.

Unfortunately, the plaintiff has not even filed any rejoinder

denying the pleadings of defendant Nos.1 and 2 with regard to

truthfulness of Exs.B-2, B-3 and B-12. Even going by the

evidence also, it is for the plaintiff to establish even in the

absence of pleadings that Ex.B-3 was a fabricated document,

but she has not chosen to do, instead she is blaming on

defendant Nos.1 and 2 alleging that it is for them to establish

that the said documents are valid documents.

23. For the reasons stated supra, the plaintiff has failed to

prove her case. Therefore, her suit must fail and the trial

Court has rightly dismissed the suit in the light of Exs.B-2

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and B-12, so also Ex.B-3. Such findings require no

interference. Accordingly, these points are decided.

Point No.3:

24. In the light of the findings on point Nos.1 and 2, the

plaintiff is not entitled for the relief of mandatory injunction.

Accordingly, this point is decided.

Point No.4:

25. In the result, this appeal is dismissed confirming the

judgment and decree dated 18.07.2000 in O.S.No.211 of 1990

on the file of the III Senior Civil Judge, City Civil Court at

Secunderabad. There shall be no order as to costs.

Miscellaneous petitions, if any, pending, shall stand closed.

________________ M.LAXMAN, J Date: 11.02.2022 TJMR