Telangana High Court

Kurichetti Janardhan Rao vs Kurichetti Panduranga Rao on 18 January, 2023

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.210 of 2014

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree dated 22.11.2013, in A.S.No.39 of 2010 on the file of the I

Additional District Judge, Khammam, which is arising out of the

judgment and decree dated 09.11.2009 passed in O.S.No.70 of

2003 on the file of the Principal Senior Civil Judge, Kothagudem.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court. The appellants are the plaintiffs.

3. Initially, the suit is filed by the plaintiffs for cancellation of

transaction that took place between defendant No.1 and the

husband of defendant No.2, vide registered sale deed bearing

document No.3245/88 dated 25.11.1988, which is sham and

nominal and for grant of perpetual injunction restraining defendant

No.2 from interfering with the peaceful possession and enjoyment

of the plaintiffs over the suit schedule property. The brief facts of

the plaint are that all the three plaintiffs are the sons of the 1st

defendant and they along with defendant No.1 are the absolute

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owners and possessors of the suit schedule property. Initially, the

father of the defendant No.1 by name Janardhan was the absolute

owner and possessor of the suit schedule property as he purchased

the same vide registered sale deed in the year 1963. In the year,

1978, the said Janardhan died leaving behind the plaintiffs and

defendant No.1 as his legal heirs and successors and after his death,

plaintiffs and defendant No.1 became joint owners of the suit

schedule property. It is the further case of the plaintiffs that the

defendant No.1 was addicted to bad habits and as such, they were

maintaining all the affairs of the family and the defendant No.1 was

living separately. In the 2nd week of January, 2003, the defendant

No.2 along with his henchmen, came to the suit schedule property

and enquired about rights of the plaintiffs and tried to interfere with

their peaceful possession for which the plaintiffs resisted the 2nd

defendant. But the 2nd defendant threatened the plaintiffs

contending that her husband purchased the suit property from

defendant No.1 vide registered sale deed bearing document

No.3245/88 dt.25.11.1988 and after the death of her husband, she

being the sole legal heir, got rights over the property. It is the

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specific recital in the plaint that defendant No.1 colluded with

defendant No.2, in order to deprive the rights of the plaintiffs over

the suit property and created the sale deed which is sham and

forged and therefore, it has to be cancelled.

4. Defendant No.1 remained ex-parte. Defendant Nos.2 to 5

have filed separate written statement denying all the allegations of

the plaint. It is contended that the suit schedule property was sold

by the 1st defendant in favour of her husband under a registered

sale deed. According to the 2nd defendant, K.Janardhan who is the

father of the 1st defendant purchased the property and after his

death, the 1st defendant being his adopted son succeeded the

property and sold the said property to several persons including the

husband of defendant No.2, for valid consideration of

Rs.1,80,000/- and since then, they were in possession and

enjoyment of the same. It is the further contention that the 2nd

defendant in order to set up a retail outlet dealership of IBP

company applied to its Regional Manager for sanction and

establishment and accordingly she applied for permission to the 4th

respondent, to make constructions who inturn accorded permission

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by receiving requisite fee of Rs.3,900/- dated 07.03.2003.

Thereafter, the 2nd defendant has fixed a barbed wire, constructed a

thatched room and obtained electricity connection from the

electricity department in the suit schedule property.

5. Further, defendant No.1 also executed a document dated

13.11.1992 in favour of Dr.Jhansi Laxmi transferring 1370 sq.yards

of site @ Rs.70/- per sq.yard and the said document was attested by

the 2nd plaintiff. Moreover, the defendant No.1 also sold 300

sq.yards to one Smt.Umarani vide document No.3247/88 dated

26.11.1988 for valid consideration of Rs.45,000/-. It is the specific

contention in the written statement that the plaintiffs cannot file a

suit for cancellation of sale deed without declaration of title over

the suit schedule property and the suit is barred by limitation, as

they did not file the suit within 3 years after plaintiffs attaining

majority. It is further contended that the plaintiffs did not make

any allegations against defendant Nos.3 and 4 and therefore, their

inclusion as parties amounts to mis-joinder.

6. Considering the pleadings, the trial Court has framed the

following issues:-

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"1. Whether the plaintiffs are entitled for cancellation of registered sale deed dated 25.11.1998?

2. Whether the plaintiffs are entitled for the relief of perpetual injunction?

3. To what relief?"

7. On behalf of the plaintiffs, P.W.1 was examined and Exs.A-

1 got marked. On behalf of the defendants D.W.1 was examined

and Exs.B-1 to B-8 were got marked.

8. On considering the oral and documentary evidence, the trial

Court has come to a conclusion that the pleadings of the plaintiffs

are self contradictory and it is an admitted fact that the 1st

defendant made sales under Exs.A-7 and B-8 in favour of one

M.Umarani and Dr.Jhansi Laxmi. Further, the plaintiffs did not

file any suit against those vendors, but filed a suit against defendant

No.2 alone and furthermore, the finding of the Court that it is not

open for the plaintiffs to allege that defendant No.1 made the sale

under Ex.A-1 to the husband of defendant No.2, as a sham and

nominal transaction without consideration, in order the meet the

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expenses of his bad vices and accordingly, dismissed the suit of the

plaintiffs.

9. Being aggrieved by the same, an appeal was preferred by the

plaintiffs vide A.S.No.39 of 2010 on the file of I Additional

District Judge at Khammam.

10. After considering the oral and documentary evidence and

arguments of the appellants and respondents, the 1st appellate Court

has framed the following points for consideration:-

"1. Whether the judgment and decree in O.S.No.70/2003 dated 09.11.2009 on the file of Principal Senior Civil Judge, Kothagudem is to be set aside or not?

2. Whether the suit is decreed or not, if so, to what relief?"

11. Considering the oral and documentary evidence on record,

the 1st appellate Court has dismissed the appeal confirming the

judgment of the trial Court.

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12. Being aggrieved by the same, the present Second Appeal is

preferred by the plaintiffs raising the following substantial

questions of law:-

"a) Whether the Courts below can render findings contrary to the recitals in sale deed Ex.A-1 in view of Section 92 of the Indian Evidence Act, 1872?

b) Whether non-filing of the suit for cancellation of sale deeds in Exs.B-7 & B-8 by the plaintiffs, operates a bar for granting relief in the present suit for cancellation of the sale deed in Ex.A-1/B-6?

       c)    Whether the judgment and decree of the
            Courts       below in dismissing the suit
            holding that the    plaintiffs did not adduce
            evidence as to whether     the     suit   schedule
            property is self acquired or       ancestral

property having regard to the recitals in Ex.A-1 showing it to be ancestral property, is justified in law as being perverse?

d) Whether the judgment and decree passed by the Courts below are sustainable in law when the defendant No.1 who is father of the plaintiffs cannot alienate the joint family properties when sons are majors?

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e) Whether the dismissal of suit by the Courts below is justified without deciding as to the entitlement and succession of the plaintiffs to the suit schedule property along with their father/defendant No.1?"

13. Heard the learned counsel for the appellants and learned

counsel for the respondents. Perused the entire record.

14. On perusal of the entire record, it is evident that both the

Courts below have given concurrent findings on the facts. Further,

no substantial question of law involved in the present case. The

evidence before the Court below is that the defendant No.1 and the

plaintiffs are the members of joint family and the property belongs

to joint family. Admittedly, defendant No.1 has sold the property

not only to defendant No.2 but also to one Uma Rani and Jhansi

Laxmi which is not disputed by the plaintiffs and the 2nd plaintiff is

one of the attestor to the said documents. It is evident from the

record, that the suit is filed only against the defendant No.2 and