Sri. Rachuri Venkat Reddy vs Sri. A. Ashok Reddy
2023 Latest Caselaw 3439 Tel

      THE HONOURABLE DR.JUSTICE G.RADHA RANI

                     APPEAL SUIT No.276 of 2023


JUDGMENT:

This appeal is preferred by the appellants who are the plaintiffs in

O.S.No.375 of 2018 aggrieved by the judgment and decree dated 21.03.2023

passed in O.S.No.375 of 2018 by the Principal District & Sessions Judge,

Medchal-Malkajgiri District in dismissing the suit filed by them.

2. The case of the plaintiffs was that they filed a suit for declaration of the

Agreement of Sale cum General Power of Attorney with possession registered

vide document No.4329 of 2009 with the Sub-Registrar Office, Keesara in

respect of the suit schedule property as sham, void ab initio, null and void and

consequently to call upon the defendant to cancel the said document by

executing a registered deed of cancellation and in the event, the defendant failed

to cancel the above document seeking the court to do so.

3. The plaintiffs submitted that the plaintiff No.1 was the father and plaintiff

No.2 was the mother of plaintiffs 3 to 5. The plaintiff No.4 was residing in

Australia after marriage, as such, the plaintiff No.3 was representing plaintiff

No.4 vide General Power of Attorney (for short "GPA"). The plaintiffs were

the absolute owners of agricultural land totally admeasuring Ac.10-28gts.

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falling in Survey Nos.3, 7 and 180 situated at Kundanpally Village, Keesara

Mandal, erstwhile Ranga Reddy District and now Medchal District. The

plaintiff No.1 was the pattedar of the entire extent and he executed a registered

gift deed dated 12.09.2007 in favour of plaintiff No.2 to an extent of Ac.1-

20gts. falling in Survey No.3 and Ac.0-37gts. falling in Survey No.7, total

admeasuring Ac.2-17gts. vide document No.11128 of 2007 registered with the

Sub-Registrar Office, Shamirpet. Similarly, the plaintiff No.1 executed a

registered gift deeds in favour of plaintiff No.3 (Ac.1-14gts. in Survey No.7,

Ac.0-30gts. in Survey No.180), plaintiff No.4 (Ac.0-17gts. in Survey No.3,

Ac.1-27gts. in Survey No.7) and plaintiff No.5 (Ac.2-23gts. in Survey No.3)

vide registered document Nos.6818 of 2007, 6817 of 2007 and 6816 of 2007, all

dated 26.05.2007.

4. The plaintiff No.1 as a GPA holder of G.Mannem and Smt.G.Savithri,

had executed a registered sale deed dated 12.09.2007 registered as document

No.11129 of 2007 alienating an extent of Ac.1-20gts. in Survey No.3. The

plaintiffs got their respective names mutated in the revenue records and the title

deeds and passbooks were also issued in their favour by the Mandal Revenue

Officer. All the plaintiffs together had alienated an extent of Ac.5-00gts. (Ac.4-

03gts. in Survey No.3, Ac.0-37 gts. in Survey No.7) in favour of Smt.Aileni

Saritha, W/o.A.Venkateshwar Reddy vide registered sale deed document

No.4328 of 2009, dated 29.08.2009 with the Sub-Registrar Office, Keesara.

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The said purchaser had taken the original title deeds belonging to all the

plaintiffs.

5. The plaintiffs further submitted that on the same date i.e. on 29.08.2009,

the plaintiffs jointly executed an Agreement of Sale cum GPA with possession

in favour of the defendant to an extent of Ac.5-28gts. (Ac.3-11gts. in Survey

No.3, Ac.1-27gts. in Survey No.7, Ac.0-30gts. in Survey No.180) for a total

consideration of Rs.47,02,500/-. The said consideration was not paid by the

defendant even though the recital in the document would state that the entire

consideration was paid and the plaintiffs acknowledged the receipt of the same.

The defendant on the very same date i.e. on 29.08.2009, in his own hand writing

executed a letter which gives the true and correct understanding between the

parties in respect of the transaction recorded in the registered document vide

document No.4329 of 2009 termed as Agreement of Sale cum GPA with

possession.

6. The defendant herein in the letter cum declaration dated 29.08.2009

executed on a Rs.100/- non-judicial stamp paper, had categorically mentioned

that since the extent of Ac.5-28gts. could not be located on the ground and the

same had to be located by the vendors after due survey and only upon locating

the same and showing the same to the vendee, the amount of Rs.35,00,000/-

would be paid as consideration per acre by the vendee to the vendors and the

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document Agreement of Sale cum GPA with possession was just a nominal

document to record the transaction in a registered instrument.

7. The plaintiffs submitted that the said document was not only a nominal

document but also a sham document, as the recitals of the said document were

contrary to the actual understanding of the contract which was entered into by

the parties and recorded by the defendant in his own hand writing in the letter

cum declaration. Even after making various attempts, they could not get a

comprehensive survey done either through the Mandal Surveyor or through the

Director of Survey of Survey and Settlements. Therefore, the plaintiffs

requested the defendant to take up the task by himself to locate the land and

thereafter further transaction could be made and converted into a regular sale

deed. The defendant agreed to do so, but was dodging the matter on one pretext

or other. Till date, no survey was conducted and the land was not located as

agreed upon. As the plaintiffs and defendant were unable to locate the land,

which was the subject matter of the Agreement of Sale cum GPA with

possession, the plaintiffs had called upon the defendant to cancel the said

document, so that the plaintiffs could search for other alternatives. The

defendant refused to act upon the request made by the plaintiffs. He neither was

able to get the survey done or locate the land over the ground. Therefore, the

plaintiffs lost all their hopes and having waited for more than nine years, were

constrained to approach the Court to seek cancellation of the said document

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dated 29.08.2009 executed and registered in favour of the defendant as

Agreement of Sale cum GPA with possession registered as document No.4329

of 2009 dated 29.08.2009 with Sub-Registrar Office, Keesara.

8. The judgment of the trial court would disclose that summons were issued

to the defendant and a publication was also given, but, inspite of that, the

defendant failed to appear before the court and as such he was set ex-parte.

9. The plaintiff No.3 was examined as PW.1 and Exs.A1 to A7 were marked

on behalf of the plaintiffs.

10. On considering the oral and documentary evidence adduced by the

plaintiffs, the trial court raised certain suspicions observing that generally the

person who executed the document was supposed to purchase the stamp paper.

But, in the above case, the stamp paper was sold to plaintiff No.1, as per Ex.A7

and there was a gap of four days in purchase of stamp paper and execution of

document, which was not explained by the plaintiffs. The signature of the

executant on Ex.A7 and the signature of the purchaser on Ex.A6 appeared to be

different and as none of the witnesses to the documents marked as Ex.A6 and

A7 were examined, dismissed the suit.

11. Aggrieved by such dismissal, the plaintiffs preferred this appeal

contending that the learned Judge ought to have re-opened the matter if there

was any doubt in the mind of the court and could not have passed the judgment

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and decree on the basis of surmises and conjectures without even putting the

plaintiffs on notice with regard to the queries in the mind of the court. The

learned Judge failed to understand that the court was passing an ex-parte

judgment and decree and there was no pleading whatsoever which was raised by

the defendant in respect of Ex.A7. The learned Judge passed the impugned

judgment and decree giving various findings without there being a specific issue

framed. The judgment and decree impugned was passed contrary to well settled

principles of law and prayed to set aside the judgment and decree dated

21.03.2023 passed in O.S.No.375 of 2018 on the file of the Principal District

and Sessions Judge, Medchal-Malkajgiri District.

12. Notice was served on the respondent. But, the same was returned as un-

claimed. Hence, considering the same as deemed service, the respondent was

set ex-parte.

13. Heard the learned counsel for the appellants.

14. The learned counsel for the appellants argued on the same lines as raised

in the grounds of appeal and relied upon the judgment of the Hon'ble Apex

Court in Bachhaj Nahar v. Nilima Mandal and Others 1, wherein it was held

that:

"8. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by

AIR 2009 SC 1103

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relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:

(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.

(ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

(iii) A factual issue cannot be raised or considered for the first time in a second appeal.

Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure."

15. As seen from the record, the contention of the plaintiffs was that the

plaintiff No.1 was the absolute owner of the agricultural land totally

admeasuring Ac.10-28gts. in Survey Nos.3, 7 and 180 situated at Kundanpally

Village, Keesara Mandal, erstwhile Ranga Reddy District, and at present

Medchal District and alienated an extent of Ac.5-00gts. in favour of Smt.Aileni

Saritha W/o.A.Venkateshwar Reddy vide registered sale deed dated 29.08.2009

registered as document No.4328 of 2009 with the Sub-Registrar Office, Keesara

and on the same day executed an Agreement of Sale cum GPA with possession

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in favour of defendant to an extent of Ac.5-28gts. i.e. (Ac.3-11gts. in Survey

No.3, Ac.1-27gts. in Survey No.7, Ac.0-30gts. in Survey No.180) for a total

consideration of Rs.47,02,500/-.

16. The recitals of the documents would disclose that the sale consideration

was paid by the defendant. But, on the very same date, the defendant had

executed a letter cum declaration on a Rs.100/- non-judicial stamp paper

mentioning that since the extent of Ac.5-28gts. could not be located on the

ground, the amount of Rs.35,00,000/- would be paid as consideration per acre

only upon locating the same and showing the same to the vendee by the vendor

and the document, Agreement of Sale cum General Power of Attorney with

possession was just a nominal document only to record the transaction.

17. The registered Agreement of Sale cum GPA which was sought to be

cancelled at present was marked as Ex.A6 and the letter cum declaration alleged

to have been executed by the defendant on the same date stating that the amount

was not paid and the same would be paid only upon locating the property, was

marked as Ex.A7.

18. The defendant admittedly was set ex-parte. As such, there were no

pleadings contrary to the case set up by the plaintiffs. The learned Principal

District and Sessions Judge, Medchal-Malkajgiri District on considering the

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said document, found certain discrepancies as noted above and as such

disbelieved the case of the plaintiffs.

19. The contention of the plaintiffs was that if the court had any doubt in its

mind, it would have re-opened the matter and sought for clarification from the

plaintiffs. But, without seeking any such clarification from the plaintiffs, basing

on surmises and conjectures, had passed the judgment.

20. This Court also agrees with the contention of the appellants - plaintiffs

that no opportunity was given by them to answer the queries that arose in the

mind of the court and the observations of the court were based upon its

imagination rather than on the facts of the case. The defendant would have

contended the matter if he was opposing the claim of the plaintiffs, but the

defendant remained silent even after receipt of summons and after publication

of notice as well as receipt of notice in the appeal, which would clearly disclose

that he was not interested to proceed with the matter. No issues were framed in

this case as the defendant remained ex-parte. All necessary facts should be

pleaded by the parties in support of the case set up by them. It is imperative for

the parties to state the essential material facts to dispose of the case. The Court

ought to have given an opportunity to the plaintiffs to clear the doubts in its

mind rather than passing the judgment on imagination. As such, it is considered

fit to remand the matter to the trial court by setting aside the judgment of the

Principal District and Sessions Judge, Medchal-Malkajgiri District in

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O.S.No.375 of 2018 dated 21.03.2023 and to pass judgment on merits after

giving an opportunity to the plaintiffs to clear the doubts raised in the mind of

the court.

21. In the result, the Appeal Suit is allowed remanding the matter to the trial

court by setting aside the judgment of the Principal District and Sessions Judge,

Medchal-Malkajgiri District in O.S.No.375 of 2018 dated 21.03.2023 and to

pass judgment on merits after giving an opportunity to the plaintiffs to clear the

doubts raised in the mind of the court. 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.