Kasula Karunakar Goudand Another vs Kasula Praveen Kumar And Another
2023 Latest Caselaw 3436 Tel

      THE HONOURABLE DR.JUSTICE G.RADHA RANI

                     APPEAL SUIT No.70 of 2023


JUDGMENT:

This Appeal Suit is filed by the appellants - defendants aggrieved by the

judgment and decree in O.S.No.351 of 2018 dated 18.07.2022 passed by the II

Additional District Judge, Medchal.

2. The respondent - plaintiff filed a suit seeking cancellation of registered

Agreement of sale - cum - General Power of Attorney with possession (for short

"AGPA") vide document No.3786 of 2014 dated 09.12.2014 executed by him in

favour of defendant No.1 registered in the Office of the Sub-Registrar,

Shamirpet and to cancel the registered sale deed bearing document No.1370 of

2016 dated 12.05.2016 executed by defendant No.1 as the General Power of

Attorney (for short "GPA") holder of the plaintiff in favour of defendant No.2

and for recovery of possession of the suit schedule property from the

defendants.

3. The plaintiff contended that he was the owner of the agricultural land in

Survey No.35, admeasuring Ac.1-11gts. situated at Thumkunta Village and

Gram Panchayat, Shamirpet Mandal, Ranga Reddy District. He sold all that

agricultural land admeasuring Ac.1-11gts. in Survey No.35 to the defendant

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No.1 and executed a registered Agreement of Sale cum General Power of

Attorney with possession vide document No.3786 of 2014 dated 09.12.2014.

While registering the above property, the defendant No.1 had shown a

photocopy of two demand drafts bearing No.232740 dated 29.11.2014 for an

amount of Rs.40,00,000/- drawn on SBH, Thumkunta Branch and another

demand draft bearing No.232741 dated 29.11.2014 for an amount of

Rs.40,00,000/-. The defendant No.1 promised to give the said DDs after

registration, as such, the plaintiff had executed a registered Agreement of Sale

cum General Power of Attorney in favour of defendant No.1, though the total

consideration was not paid. The plaintiff several times demanded defendant

No.1 for the sale consideration. But, the defendant No.1 dodged the matter and

postponed the issue on one pretext or other stating that he would sell the

property and would give the plaintiff, the money. As such, the plaintiff

intended to cancel the AGPA executed in favour of defendant No.1. Without

the knowledge of the plaintiff, the defendant No.1 had executed a registered sale

deed in favour of his brother i.e. defendant No.2 vide document No.1370 of

2016 dated 12.05.2016 registered at Office of Sub-Registrar, Shamirpet.

4. The plaintiff vexed with defendant No.1, approached the Police,

Shamirpet and gave a complaint. The Police as part of investigation addressed a

letter to SBI, Thumkunta Branch on 06.06.2018, for which the Chief Manager,

SBI, Thumkunta Branch clarified to the Police, Shamirpet that the DDs were

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forged and in fact the said DDs were valued only for Rs.400/- but not for

Rs.40,00,000/- as shown by defendant No.1. The plaintiff contended that

defendant No.1 played a calculated pre-meditated fraud by mentioning that the

total sale consideration was already paid by him to the plaintiff and that the

same was received and acknowledged by the plaintiff and as such prayed to

cancel the registered Agreement of Sale cum GPA, and that the same was not

binding on him, since, there was no consideration passed under the said

document and further contended that defendant No.1 was not competent to

execute the registered sale deed in favour of defendant No.2 and the said deed

was also liable to be cancelled as null and void, since the document was brought

into existence by defendant No.1 in collusion with defendant No.2 with an

intention to de-fraud the plaintiff and the defendant No.1 had no subsisting title

to the suit schedule property as on the date of execution and registration of the

impugned sale deed.

5. Summons were issued to the defendants and as they remained absent,

they were set ex-parte.

6. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A3 in

support of his case.

7. The trial court i.e. II Additional District Judge, Medchal on considering

the evidence of PW.1 and the documents marked as Exs.A1 to A3, decreed the

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suit cancelling the registered Agreement of Sale cum General Power of

Attorney vide document No.3786 of 2014 dated 09.12.2014 and the consequent

registered sale deed bearing document No.1370 of 2016 dated 12.05.2016

executed by defendant No.1 in favour of defendant No.2.

8. Challenging the said judgment and decree, the defendants preferred this

appeal contending that the trial court could not cancel the AGPA, as the said

AGPA was for consideration coupled with the interest of appellant No.1. The

trial court failed to take note of the fact that not only the respondent No.1 had

received the total sale consideration, but also delivered physical possession of

the property to appellant No.1 through Ex.A1 and subsequently the possession

of the property had gone into the hands of the appellant No.2 through Ex.A2.

The trial court decreed the suit ignoring that the suit for cancellation ought to

have been filed within three years, but the suit was filed after three years nine

months by respondent No.1, as such the suit was time barred. The suit for

cancellation was not maintainable without seeking the further relief of recovery

of possession. The claim of respondent No.1 that he had not received the sale

consideration from appellant No.1 was contrary to his own admission in the

recitals of AGPA, marked as Ex.A1. The trial court had decreed the suit against

the principles of law and prayed to set aside the judgment and decree passed in

O.S.No.351 of 2018 dated 18.07.2022 by the II Additional District Judge,

Medchal-Malkajgiri District.

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9. Heard the learned counsel for the appellants - defendants and the learned

counsel for the respondent No.1 - plaintiff.

10 Perused the record.

11. The judgment in O.S.No.351 of 2018 was passed by the II Additional

District Judge, Medchal, ex-parte. The defendants had not participated in the

trial. They were now seeking to give an opportunity for them to participate in

the trial.

12. The contention of the learned counsel for the respondent No.1 - plaintiff

was that after passing of the decree in O.S.No.351 of 2018, the decree was

communicated to the Sub-Registrar, Shamirpet, Medchal-Malkajgiri District for

taking necessary steps for cancellation of the AGPA, bearing document

No.3786 of 2014 dated 09.12.2014 and subsequently the sale deeds executed by

appellant No.1 in favour of appellant No.2. The Sub-Registrar, after going

through the judgment and decree, cancelled the documents which were executed

in favour of the appellants herein. The appellants tampered the banker's

cheques shown to him at the time of registration of AGPA. The Police,

Shamirpet after registering the criminal case, conducted necessary enquiry and

laid charge-sheet before the XX Metropolitan Magistrate, Medchal. Aggrieved

by the registration of the criminal case, the petitioners and their father filed

Criminal Petition No.10575 of 2022 before this Court to quash the proceedings

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in C.C.No.312 of 2022. This Court after elaborate hearing on both sides,

quashed the proceedings against the accused No.2 i.e. appellant No.2 herein and

directed the trial court to proceed against the appellant No.1 and their father

namely K.Narsing Rao Goud. As on the date of obtaining the Agreement of

Sale cum GPA, the appellants had not paid even a single pie to him. By playing

fraud, they obtained the Agreement of Sale cum GPA in respect of the suit

schedule property. The learned counsel for the respondent No.1 - plaintiff also

contended that the relief of recovery of possession was also sought for by the

plaintiff in O.S.No.351 of 2018 vide I.A.No.28 of 2022 dated 01.04.2022. The

representation made by the appellants in the said regard was not correct.

13. Considering the pleadings of both the parties and as the judgment and

decree passed in O.S.No.351 of 2018 is ex-parte and the appellants - defendants

are now seeking for an opportunity to contest the matter, it is considered fit to

set aside the ex-parte judgment and decree in O.S.No.351 of 2018 dated

18.07.2022 passed by the II Additional District Judge, Medchal, by giving an

opportunity to the appellants - defendants to contest the matter. The parties are

restituted to the stage where they were at the time of filing the suit and the trial

court is directed to dispose of the matter within a period of six (06) months from

the date of receipt of a copy of this judgment.

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14. In the result, the Appeal Suit is allowed setting aside the ex-parte

judgment and decree in O.S.No.351 of 2018 dated 18.07.2022 passed by the II

Additional District Judge, Medchal, giving an opportunity to the appellants -

defendants to contest the matter and the parties are restituted to the stage where

they were at the time of filing the suit and the trial court is directed to dispose of

the matter within a period of six months from the date of receipt of a copy of

this judgment. No order as to costs.

As a sequel, miscellaneous applications pending in this appeal, if any,

shall stand closed.

____________________ Dr. G.RADHA RANI, J Date: 31st October, 2023 Nsk.