Telangana High Court
Mohammaed Nadeem Ullah Khan vs Mohammed Akber Ali on 29 April, 2024
* THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
+ A.S.No.292 OF 2023
% 29.04.2024
# Between:
Mohammaed Nadeem Ullah Khan
Appellant
Vs.
Mohammed Akber Ali and 2 others
Respondents
! Counsel for Appellant : Ms.K.Annapurna Reddy
^ Counsel for Respondents : Sri R.S.Sravan Kumar
<GIST:
> HEAD NOTE:
? Cases referred :
1. 2017 (5) SCC 345
2. 2022 Live Law (SC) 280
3. (2019) 20 Supreme court Cases 226
4. 2023 LiveLaw (SC) 940
5. 2022 LiveLaw (SC) 963
6. MANU/SC/0508/2020
7. MANU/SCOR/08861/2021
8. MANU/TN/0105/1939
9. MANU/AP/0951/2007
10. MANU/TN/0455/1959
11. MANU/UP/0100/1972
12. MANU/AP/0747/2006
2
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THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
APPEAL SUIT No.292 OF 2023
JUDGMENT:
Aggrieved by the order and decree dated 08.06.2022 in
I.A.No.505 of 2022 in O.S.No.34 of 2022 (hereinafter will be
referred as 'impugned order') passed by the learned Senior Civil
Judge - cum - Assistant Sessions Judge, Sangareddy
(hereinafter will be referred as 'trial Court'), the plaintiff
preferred the present appeal to set aside the impugned order.
2. For the sake of convenience, the parties hereinafter are
referred to as they are arrayed before the trial Court.
3. The brief facts of the case, which necessitated the
plaintiff/appellant to file the present appeal, are that the
plaintiff filed O.S.No.34 of 2022 against defendants seeking
cancellation of two sale deeds dated 16.04.2021 executed by
defendant No.1 in favour of defendant Nos.2 and 3 respectively
and declaring them as null, void and not binding on the plaintiff
and for a consequential perpetual injunction in respect of suit
schedule properties. After receipt of summons, the defendant
filed petition vide I.A.No.505 of 2022 under Order VII Rule 11
read with Section 151 of the Code of Civil Procedure to reject
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the plaint. The brief averments of the affidavit filed in support
of the petition are as under:
i) The suit is not maintainable either in law or on facts as
the plaintiff has no cause of action and the plaintiff has
initiated vexatious litigation only to harass the defendant. The
plaintiff has cleverly drafted the pleadings, which created
illusions of the cause of action, which is not permitted in law.
ii) A suit for cancellation of an instrument will be
maintainable only when filed by the party, who has executed
such a document. But the documents, which plaintiff is
seeking to be cancelled were not executed by the plaintiffs.
Hence, from the pleadings in the plaint, it is clear that the
plaint is barred by law.
iii) The suit is nothing but a vexatious suit initiated only to
create hardships for the petitioner/defendant, who has obtained
the work commencement letter from GHMC authorities. The
real intention of the plaintiff is to stop the construction of the
house in suit schedule house.
b) In reply to the petition averments, the
respondent/plaintiff filed counter, the brief averments of which
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are as under:
i) In recitals of the documents, the defendant mentioned
that he is the absolute owner of the schedule property but he
did not mention as to how he acquired the title. This itself
shows that the defendant played fraud during the Covid-19
pandemic, as the property was under lock and key, he executed
the fictitious sale deeds that are liable to be cancelled by the
Court. The defendant has approached the Court with unclean
hands as he does not have any right to claim that the suit
schedule property belongs to him.
ii) Though it is contended by the defendant that there is no
cause of action, it is very much evident that from the date of
execution of fraudulent sale deeds i.e., 16.04.2021 the cause of
action arose for filing the suit. The plaintiff is the absolute
owner and filed suit for cancellation which is maintainable. In
fact, the defendant is not having any right to claim that he is
the absolute owner of the suit schedule property, hence, he is a
third party to the suit proceedings.
iii) It is stated that the permission by the GHMC authorities
for construction will not give any right or title to the property.
The officials of GHMC are in collusion with defendant. A proper
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enquiry in the suit proceedings is required to be conducted to
decide the rightful owners of the suit schedule property. At this
juncture the suit cannot be rejected, hence, the petition filed by
the defendant is liable to be dismissed.
c) The trial Court after considering the rival contentions,
allowed the petition and thereby suit of the plaintiff was
rejected. Aggrieved by the said order and decree, the plaintiff
filed the present appeal to set aside the impugned order.
4. Heard both sides and perused the record including the
grounds of appeal.
5. The two grounds on which the defendant filed the petition
under order VII Rule 11 of the Code of Civil Procedure is that
the plaint is barred by law and that there is no cause of action
for the plaintiff to file the suit. Now, it is to be ascertained as to
whether the suit filed by the plaintiff is hit by the above two
grounds.
6. The contention of the plaintiff is that the paternal
grandmother of the plaintiff by name Smt. Sogra Begum was
the owner and possessor of the suit schedule property and she
constructed house in the year 1946 after obtaining permission
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from the then Jagirdar and paying house tax to the Gram
Panchayat of Ramachandrapuram Village. In the year 1972 on
her application, the Special Officer of the Gram Panchayat
granted permission to her for construction of compound wall for
the house. Aggrieved thereby one Syed Hussain, S/o. Syed Ali,
who was her neighbour filed Appeal No.1991/1971 before the
District Panchayat Officer at Sangareddy. The appellant
questioned in the appeal the right of Sogra Begum over the
vacant site appurtenant to her house and for enclosing it by
constructing compound wall and claimed that the suit which
was in her possession and enjoyment belonged to him but he
could not produce any document in support thereof. The
District Gram Panchayath Officer having found that the site
belonged to the Government and so the rival claims in respect
of the site could be decided only by a competent Court of law
passed order dated 02.07.1972 holding that the site could be
put to use as was done till then. Since then Sogra Begum was
in possession and enjoyment of the site and by virtue of the
order of the District Panchayat Officer, she was permitted to
continue to use the site. Thus, Sogra Begum was in possession
and enjoyment of the house premises including the vacant site
adjoining the house till her death. The plaint schedule house
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property after the death of Sogra Begum devolved upon her
husband Hameed Ullah Khan and after his death, the plaintiff
and his two brothers being sons of Hameed Ullah Khan
succeeded to the property. The plaintiff has been paying the
property tax to the plaint schedule property till date. The
plaintiff in support of his contention relied upon copy of order
dated 02.07.1972 in Appeal No.1991/1971 passed by the
District Panchayat Officer at Sangareddy.
7. It is further contention of the plaintiff that the defendant
Nos.1 to 3 are strangers and they are no way connected with
the ownership and possession of the plaint schedule house but
defendant No.1 colluded with defendant Nos.2 and 3 and
brought into existence sale deeds bearing document Nos.17008
and 17009 of 2021 dated 16.04.2021 in respect of suit schedule
property with an intention to usurp the property of the plaintiff
and his two brothers. It is contended by the plaintiffs that in
both the sale deeds it was mentioned that defendant No.1 is the
absolute owner and possessor of the house property but he did
not mention as to how he acquired the title and possession over
the property. It is further contended by the plaintiff that
though defendant Nos.2 and 3 alleged to have paid
Rs.21,44,000/- and Rs.16,88,000/- respectively to defendant
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No.1, there is no endorsement by the Sub Registrar that the
amounts of sale consideration were paid in cash.
8. The learned counsel for the plaintiff contended that the
trial Court ought to have seen that at paragraph No.5 of the
plaint, the plaintiff has clearly stated the facts as to the cause of
action for filing the suit. As per the averments of the plaint, in
the month of October, 2021 an officer from the Municipal office,
Ramachandrapuram came to the plaint schedule property for
inspection stating that the defendant Nos.2 and 3 have applied
for permission for making construction in the plaint schedule
property and on that the plaintiff by letter dated 27.10.2021
addressed to the Additional Municipal Commissioner raised
objection and opposed for granting of permission for
construction sought for by the defendant Nos.2 and 3. Since
the plaintiff is alleged to be in possession of the suit schedule
property, execution of documents by defendant No.1 in favour
of defendant Nos.2 and 3, who intended to make construction
over the suit schedule property, would certainly cause prejudice
to the plaintiff. In such circumstances, the acts of defendant
No.1 in alienating the suit schedule property without any right,
title and possession in favour of defendant Nos.2 and 3 and the
intention of the defendant Nos.2 and 3 to make construction
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over the suit schedule property would certainly constitute cause
of action for the plaintiff to file the suit. Hence, the plaint filed
by the plaintiff cannot be rejected on the ground of lack of
cause of action.
9. One of the grounds raised by the learned counsel for the
plaintiff is that it is not at all the plea of the defendants that in
view of Section 31 of the Special Relief Act, the suit is not
maintainable and so the plaint is liable to be rejected and
further the question of maintainability of the suit can be
decided only if a plea is taken by the defendants by filing
written statement with the plea that the suit is not
maintainable. The trial Court in the impugned order referred to
Sections 31 and 34 of the Specific Relief Act and made out
distinction between both the sections. It is to be seen that as
per Clause (1) of Section 31 of the Specific Relief Act any person
against whom a written instrument is void or voidable, and who
has reasonable apprehension that such instrument, if left
outstanding may cause him serious injury, may sue to have it
adjudged void or voidable; and the court may, in its discretion,
so adjudge it and order it to be delivered up and cancelled. It is
the contention of the defendant that since the plaintiff is not a
party to the documents, which are being sought to be cancelled,
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the suit is vexatious. The trial Court in the impugned order at
paragraph No.14 observed that even if a person is not a party to
the document, he can maintain a suit for declaration only. As
per Section 34 of the Specific Relief Act, Any person who has
any legal character or any legal rights as to any property by
virtue of title deeds or otherwise may file a suit for declaration
of those rights and for injunction against any person denying or
interested to deny his title to such character or right.
10. There is a distinction between a suit for cancellation of a
deed and a suit for declaration that a document is inoperative
against the plaintiff. A suit for cancellation must be brought by
a person, who was a party to the deed or by a person who is
bound by it in law. However, a person who is neither a party to
the deed nor bound by it does not need to sue for its
cancellation. In a case, where the plaintiff seeks to establish
their title but faces an obstacle due to a deed to which they may
be a party, they must seek the cancellation of the deed. On the
other hand, if the plaintiff seeks to establish their title and is
threatened by a transaction between other parties, their remedy
is to obtain a declaration that the decree, deed, or transaction is
invalid as far as they are concerned. When a person is a party
to the deed, they can overcome the effect of the deed only in a
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manner provided under the Indian Contract Act, especially
when third-party interests are involved. However, when a
person is not a party to the deed but is affected by it in law,
they can seek a declaration that the deed is not binding on
them, as long as no third-party interest is created. The effect of
obtaining a declaration that the sale deed is not binding on the
plaintiff is that the sale deed becomes inoperative, and the
purchaser under the sale deed cannot claim any rights under it.
In the case on hand, the plaintiff has not only sought for
cancellation of the sale deeds but also to declare the said sale
deeds as not binding on him. It is not the case of the
defendants that the sale deeds executed by defendant No.1 in
favour of defendant Nos.2 and 3 are not binding on him. When
the suit documents are effecting the possession of the plaintiff
over the suit schedule property, then certainly the plaintiff has
sufficient cause of action to file the suit.
11. The learned counsel for the plaintiff relied upon a
decision in Kuldeep Singh Pathania v. Bikram Singh Jarya 1,
wherein the Honourable Supreme Court observed that under
order VII Rule 11 of the Code of Civil Procedure only pleadings
1 2017 (5) SCC 345
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of plaintiff form basis for decision of Court but not rebuttal
made by the defendant or any material produced by the
defendant. As seen from the impugned order, the trial Court
has not passed by the impugned order based on the rebuttal
made by the defendant or any material produced by the
defendant, as the defendant has not adduced any pleadings on
his behalf before the trial Court. Hence, the above said decision
is not helpful to the plaintiff.
12. It is the contention of the learned counsel for the plaintiff
that while considering an application under Order VII Rule 11
of the Code of Civil Procedure, the Court has to go though the
entire plaint averments and cannot reject the plaint by reading
only lines and ignoring the other relevant parts of the plaint. In
support of the said contention, the learned counsel for the
plaintiff relied upon a decisions in Sri Biswanath Banik and
another V. Smt. Sulanga Bose and others 2 and
Shaukathussain Mohammed Patel v. Khatunben
Mohmmedbhai Polara 3. Even for the sake of arguments if we
presume that the suit is not maintainable as the plaintiff is not
a party to the suit documents, which are sought to be cancelled,
2 2022 Live Law (SC) 280
3 (2019) 20 Supreme court Cases 226
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in view of the principle laid down in the above said decision, it
is to be seen that the plaintiff has filed the suit not only for
cancellation of the sale deeds declaring that the said sale deeds
are not binding on plaintiff but also for perpetual injunction.
Since the plaintiff has filed the suit for perpetual injunction, the
cause of action alleged to have taken place on the date on which
the possession of the plaintiff is sought to be interfered. It is
settled law that the plaint cannot be rejected in part as
observed by the Honourable Supreme Court in Kum. Geetha
and others v. Nanjundaswamy and others 4. It is settled
law that the plaint cannot be rejected merely because the
plaintiff is not entitled for any relief as observed by the
Honourable Supreme Court in Gurdev Singh v. Harvinder
Singh 5. If the plaintiff is not entitled for any relief, then
certainly suit is liable to be dismissed but the same cannot be
rejected by invoking Order VII Rule 11 of the Code of Civil
Procedure.
13. It is pertinent to note that aggrieved by the impugned
order, earlier the plaintiff has preferred CMA No.333 of 2022,
which was allowed by this Court but in view of the review
4 2023 LiveLaw (SC) 940
5 2022 LiveLaw (SC) 963
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petition filed by the defendant, the order passed in CMA No.333
of 2022 was set aside on the ground that CMA is not
maintainable.
14. On the other hand the learned counsel for the defendant relied
upon an authority in Dahiben v. Arvindbhai Kalyanji Bhanusali
(D) through LRs and others 6, wherein the Honourable Supreme
Court observed that while considering an application under Order
VII Rule 11 of the Code of Civil Procedure the Court must be vigilant
against any camouflage or suppression, and determine whether
litigation is utterly vexatious and an abuse of process of the Court.
In the above said decision, there was no limitation to file the suit and
that apart the cause of action shown by the plaintiffs therein was
illusory. But in the case on hand the suit is not barred by any
limitation and moreover the cause of action shown by the plaintiffs is
appearing not to be illusory.
15. Further, the learned counsel for the defendant relied upon an
authority in K. Akbar Ali v. K. Umar Khan and others 7, wherein
the Honourable Supreme Court observed as under:
"7. In any case, an application under Order VII Rule 11 of the
CPC for rejection of the plaint requires a meaningful reading of the
6 MANU/SC/0508/2020
7 MANU/SCOR/08861/2021
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plaint as a whole. As held by this Court in ITC v. Debts Recovery
Appellate Tribunal reported in AIR 1998 SC 634, clever drafting
creating illusions of cause of action are not permitted in law and a
clear right to sue should be shown in the plaint. Similarly the Court
must see that the bar in law of the suit is not camouflaged by
devious and clever drafting of the plaint. Moreover, the provisions of
Order VII Rue 11 are not exhaustive and the Court has the inherent
power to see that frivolous or vexatious litigations are not allowed to
consume the time of the Court."
16. In the above said decision, the case is based on general
power of attorney and it was observed that in the absence of
valid power of attorney, no right will accrue to the plaintiff, as
such there is no cause of action for the plaintiff to file suit
against first defendant. But in the case on hand, there is no
such instance, more particularly, when the plaintiff herein has
clearly mentioned the cause of action based on which the suit
was filed against the defendants.
17. The learned counsel for the defendant relied upon an
authority in Vellayya Konar and others v. Ramaswami Konar
and others 8, wherein the High Court of Madras observed as
under:
"When the plaintiff seeks to establish a title in himself and
cannot establish that title without removing an insuperable
obstruction such as a decree to which he has, been a party or a
deed to which he has been a party, then quite clearly he must get
that decree or deed cancelled or declared void in toto and his suit
is in substance a suit for the cancellation of the decree or deed
even though it be framed as a suit for a declaration. But when he
is seeking to establish a title and finds himself threatened by a
8 MANU/TN/0105/1939
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decree or a transaction between third parties, he is not in a
position to get that decree or that deed cancelled in toto. That is a
thing which can only be done by parties to the decree or deed or
their representatives. His proper remedy therefore, in order to
clear the way with a view to establish his title is to get a
declaration that the decree or deed is invalid so far as he himself
is concerned and he must therefore sue for such a declaration and
not for the cancellation of the decree or deed."
18. In Tekulapally Veera Reddy and others v. Tekulapally
Narayana Reddy 9 the High Court for the erstwhile State of
Andhra Pradesh observed as under:
"9. Admittedly neither of the plaintiffs were the executor or
party to Ex. B1 and none of them asked for any declaration of
their title to suit property apart from asking for simple relief of
cancellation of Registered Sale Deed dated 1-9-1983 executed by
late Sri Ram Reddy in favour of the defendant (Appellant). In
those circumstances the suit of the plaintiff ought to have been
dismissed in toto by the both the Courts below."
19. As stated supra, the plaintiff has filed the suit not only for
cancellation of the sale deed but also sought to declare the said
sale deeds not binding on him and apart from seeking perpetual
injunction. Hence, the above said decision is not helpful to the
defendants.
20. The learned counsel for the defendant further relied upon
an authority in Muppudathi Pillai v. Krishnaswami Pillai and
others 10 wherein the High Court of Madras observed as under:
"14. The provisions of Section 39 make it clear that three
conditions are requisite for the exercise of the jurisdiction to cancel
an instrument : (1) the instrument is void or voidable against the
plaintiff; (2) plaintiff may reasonably apprehend serious injury by
9 MANU/AP/0951/2007
10 MANU/TN/0455/1959
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the instrument being left outstanding ; (3) in the circumstances of
the case the Court considers it proper to grant this relief of
preventive justice. On the third aspect of the question the English
and American authorities hold that where the document is void on
its face the Court would not exercise its jurisdiction while it would
|it it were not so apparent. In India it is a matter entirely for the
discretion of the Court. '
15. The question that has to be considered depends on the
1st and 2nd conditions set out above. As the principle is one of
potential mischief, by the document remaining outstanding, it
stands to reason the executant of the document should be either
the plaintiff or a person who can in certain circumstances bind
him. It is only then it could be said that the instrument is voidable
by or void against him. The second aspect of the matter
emphasises that principle. For there can be no apprehension if a
mere third party asserting a hostile title creates a document. Thus
relief under Section 39 would be granted only in respect of an
instrument likely to affect the title of the plaintiff and not of an
instrument executed by a stranger to that title.
21. In the case on hand, the defendant No.1 in collusion with
defendant Nos.2 and 3 alleged to have not only created sale
deeds but also applied for permission of construction and based
on the application of the defendant Nos.2 and 3, an officer from
Municipal Office came for inspection of the suit schedule
property. In such circumstances, more particularly, when the
defendants are making attempts for construction over the suit
schedule property, which is in possession of the plaintiff, it
cannot be said that plaintiff cannot reasonably apprehend
serious injury by the instrument being left outstanding.
22. In Debi Prasad and others v. Maika and others 11 the
11 MANU/UP/0100/1972
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High Court of Allahabad (Lucknow Bench) observed that
possessory title does not entitle any person for decree of
cancellation of written instrument unless requisite conditions
under the section are satisfied. However, at paragraph No.5 of
the said decision it was observed that when the plaintiff is
seeking to establish that he is being threatened by a decree or a
transaction between third parties, his proper remedy is to get a
declaration that the decree or deed is invalid so far as he
himself is concerned. Similarly in Yanala Malleshwari and
others v. Ananthula Sayamma and others 12 the High Court
for the erstwhile state of Andhra Pradesh observed as under:
"32. The law, therefore, may be taken as well settled that
in all cases of void or voidable transactions, a suit for cancellation
of a deed is not maintainable. In a case where immovable
property is transferred by a person without authority to a third
person, it is no answer to say that the true owner who has
authority and entitlement to transfer can file a suit under Section
31 of the Specific Relief Act for the simple reason that such a suit
is not maintainable. Further, in case of an instrument, which is
void or voidable against executant, a suit would be maintainable
for cancellation of such instrument and can be decreed only when
it is adjudicated by the competent Court that such instrument is
void or voidable and that if such instrument is left to exist, it
would cause serious injury to the true owner."
23. Even for the sake of arguments, if we presume that the
suit is not maintainable as the plaintiff is not a party to the suit
documents, which are sought to be cancelled, the suit cannot
12 MANU/AP/0747/2006
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be rejected because it is settled law that a plaint cannot be
rejected in part, as the plaintiff has filed the suit not only for
declaring the sale deeds not binding on him but also for
perpetual injunction. Furthermore, as per the principle laid
down in Tekulapally Veera Reddy case (supra), this Court is of
the opinion that the suit of the plaintiff is in conformity with
three ingredients of Section 31 of the Specific Relief Act.
Moreover, the facts of the case in the above said decisions relied
upon by the learned counsel for the defendant are entirely
different from the facts of the case on hand, therefore, the
principle laid down in the above said decisions cannot be made
applicable to the facts of the case on hand. Though the trial
Court has made some observations in the impugned order with
regard to relief of cancellation of sale deeds, there is no whisper
at all on the aspect of other relief sought by the plaintiff in the
suit i.e., relief of declaring the said sale deeds not binding on
him and also for perpetual injunction. Thus, it can be said
that the trial Court has rejected the plaint in part i.e., only to
the extent of relief of cancelling the sale deeds.
24. Thus, viewed from any angle, the trial Court ought not to
have rejected the plaint of the plaintiff as the impugned order
did not satisfy any of the ingredients incorporated under Order
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VII Rule 11 of the Code of Civil Procedure. The plaintiff could
successfully establish that the plaint is not liable for rejection
under any of the grounds prescribed under Order VII Rule 11 of
the Code of Civil Procedure. Hence, the impugned order is
liable to be set aside.
25. In the result, this appeal is allowed and the impugned
order and decree dated 08.06.2022 in I.A.No.505 of 2022 in
O.S.No.34 of 2022 passed by the learned Senior Civil Judge -
cum - Assistant Sessions Judge, Sangareddy is set aside. The
learned Senior Civil Judge - cum - Assistant Sessions Judge,
Sangareddy shall restore O.S.No.34 of 2022 to its original
number and proceed in accordance with law. There shall be no
order as to costs.
As a sequel, pending miscellaneous applications, if any,
shall stand closed.
_______________________________
JUSTICE M.G. PRIYADARSINI
Date: 29.04.2024
Note: LR Copy to be marked.
B/o. AS
