Akula Mallesham vs S. Sarala Devi
2024 Latest Caselaw 830 Tel

Telangana High Court

Akula Mallesham vs S. Sarala Devi on 28 February, 2024

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
             SECOND APPEAL Nos.421 & 426 of 2023

COMMON JUDGMENT:

Since the parties and the subject matter of the property

involved in both these Second Appeals are one and the same and

hence, they are being heard together and disposed of by common

judgment.

2. Second Appeal No.421 of 2023 is filed questioning the

judgment and decree, dated 02.06.2023, passed by I Additonal

District Judge at Karimnagar in AS.No.129 of 2018, whereunder

and whereby the judgment and decree dated 20.02.2018 passed by

the Additional Senior Civil Judge, Karimnagar in O.S.No.164 of

2006, was confirmed.

3. Second Appeal No.426 of 2023 is filed questioning the

judgment and decree, dated 02.06.2023, passed by I Additional

District Judge, Karimnagar in AS.No.146 of 2018, whereunder and

whereby the judgment and decree dated 20.02.2018 passed by the

Senior Civil Judge, Sircilla in O.S.No.58 of 2005 was confirmed.

4. The defendants in O.S.No.58/2005 have preferred

S.A.No.426 of 2023 and the plaintiffs in O.S.164/2006 have

preferred S.A.No.421 of 2023.

LNA, J S.A.Nos.421 & 426 of 2023

5. The brief facts of the case, shorn off unnecessary details,

which led to filing of Second Appeal No.426 of 2023, are that

O.S.No.58 of 2005 was filed for declaration that the registered sale

deed bearing document No.2142/03, dated 10.03.2023 executed by

defendant No.3 in favour of defendant Nos.1 and 2 as null and void

and not binding on the plaintiff and also for permanent injunction

in respect of the suit schedule property.

5.1. It was averred that the plaintiff is the wife of S.Prabhakar

Rao who purchased the suit schedule property through registered

sale deeds on 02.05.2019 and his name was also mutated in the

revenue records.

5.2. The plaintiff averred that she is the absolute owner and

possessor of the suit schedule property having inherited the same

from her husband by name S.Prabhakar Rao who died on

18.02.1999. That her husband purchased the suit schedule house

from B.Janaki Ram, B.Tulasi Ram and B.Nanank Ram under two

registered sale deeds in the year 1990 by paying valuable sale

consideration and his name was mutated in the municipal records

in respect of the suit schedule property. While so, the husband of

plaintiff became bed ridden on account of liver damage and while

LNA, J S.A.Nos.421 & 426 of 2023

undergoing treatment in the hospital, one G.Laxman who was his

close friend, hatched a plan to grab the suit property and obtained

the signature of her husband on blank papers and brought into

existence the fabricated document purported to have been executed

by Prabhakar Rao for sale of suit schedule property in the name of

defendant No.3 i.e., G.Padma, who is the wife of G.Laxman. The

recitals of the said document goes to show that Prabhakar Rao, to

meet his necessities, has agreed to sell the land for Rs.5,00,000/-

and on 19.01.1992 an amount of Rs.4,75,000 has been paid as

advance sale consideration and the remaining balance of sale

consideration will be paid at the time of execution of sale deed.

However, there is no recital that Prabhakar Rao has delivered

possession of suit schedule property in favour of defendant No.3

therein.

5.3. The plaintiff further averred that without having any right,

defendant No.3 has filed O.S.No.10/2000 for specific performance

of contract against the plaintiff and her mother-in-law-

S.Parvathamma to execute a registered sale deed in her favour by

receiving remaining sale consideration of Rs.25,000/-, but in the

meanwhile another suit was filed for partition and separate

LNA, J S.A.Nos.421 & 426 of 2023

possession of the property including the suit schedule property,

against plaintiff and others. While the said suit was pending,

defendant No.3 had executed a registered sale deed bearing

No.2142/2003 in favour of defendant Nos.1 and 2 in respect of the

suit schedule property for Rs.4,41,000/- and the said defendants

were put in possession of the suit schedule property. In fact,

defendant No.3 has no right to sell the suit schedule property.

Furthermore, the suit-O.S.No.10 of 2000 filed by defendant No.3

was dismissed for default, thereby she has lost right over the suit

schedule property and the sale deed which was executed by

defendant No.3 in favour of defendant Nos.1 and 2 is

unenforceable. The defendants are trying to interfere with the

peaceful possession of the plaintiff over the suit schedule property.

Hence, the suit.

6. Defendant No.1 filed written statement stating that the

plaintiff has not inherited the suit schedule property from

Prabhakar Rao. In fact, Prabhakar Rao has sold the said property to

defendant No.3 by simple sale deed for consideration of

Rs.3,00,000/- and said document was validated by collecting

sufficient stamp duty Rs.33,000/- by District Registrar Karimnagar.

LNA, J S.A.Nos.421 & 426 of 2023

Defendant No.3 has sold the suit schedule property to defendant

Nos.1 and 2 for Rs.4,41,000/- and also delivered possession of suit

schedule property to them. Later defendant Nos.1 and 2 sold the

suit schedule property to defendant Nos.4 and 5 for sale

consideration of Rs.4,85,000/- and after receiving full

consideration, registered the suit house and therefore, defendant

Nos.4 and 5 are in possession of the suit schedule property even

after filing the present suit. Hence, prayed to dismiss the suit

7. Defendant No.2 adopted written statement of defendant

No.1.

8. Defendant No.3 filed written statement stating that as the

husband of plaintiff i.e. S.Prabhakar Rao was in need of money for

his treatment, he had sold away the suit schedule property to her

for Rs.3,00,000/- and the sale deed is validated by collecting stamp

duty by the District Registrar. Defendant No.3 reiterated the

contentions of defendant No.1 in the written statement as regards

the future transactions in respect of the suit schedule property.

9. Based on the above pleadings, the trial Court framed the

following issue for trial:-

"(1) Whether the plaintiff is entitled for declaration and

LNA, J S.A.Nos.421 & 426 of 2023

crystal relief of permanent injunction as prayed for? (2) To what relief?"

10. The brief facts of the case, shorn off unnecessary details,

which led to filing of Second Appeal No.421 of 2023 are that the

plaintiffs are the exclusive owners and possessors of the suit

schedule property having purchased the same from one

B.Nirmala and S.Sunitha through a registered sale deed. After

purchasing of property, they got demolished the old house and

obtained permission for construction of the house. It was averred

that one G.Padma has sold the suit schedule property through

registered sale deed vide document doc. No.2142/2003 in favour of

vendors of the plaintiffs. The husband of the defendant-Prabhakar

Rao died about 6 years back. The said Prabhakar Rao had sold the

suit schedule property to one G.Padma on 19.01.1992 through

unregistered sale deed which was impounded by District Registrar

by paying stamp duty of Rs.33,000/-. The plaintiffs after

purchasing the suit schedule property, have raised compound wall

around and are possession of the property and that the defendant

along with her men tried to interfere with their peaceful possession.

LNA, J S.A.Nos.421 & 426 of 2023

11. The defendant who is plaintiff in O.S.No.58/2005 has

filed written statement by reiterating the contents of her plaint in

O.S.No.58/2005.

12. Basing on the above pleadings, the trial Court has framed

the following issues for trial:-

"(1) Whether the plaintiff is entitled for perpetual injunction as prayed for?

(2) To what relief?"

13. Both the suits were clubbed together and joint trial was

conducted. After clubbing the trial Court has determined the

following points:

"1. Whether the plaintiffs in O.S.No.58/2005 are entitled for the declaration?

2. Whether the plaintiff in O.S.No.58/2005 is entitled to the relief of perpetual injunction ?

3. Whether the plaintiff in O.S.No.164/2006 is entitled for the relief of perpetual injunction as prayed for

4. To what relief ?"

14. On behalf of the plaintiff, PWs.1 to 4 were examined and

Exs.A-l to A-13 were marked. On behalf of the defendants, DWs.1

to 5 were examined and Exs.B1 to 10 were marked.

LNA, J S.A.Nos.421 & 426 of 2023

15. The trial Court after perusing the material on record and

after hearing both sides, decreed the suit-O.S.No.58 of 2005 vide

its judgment dated 20.02.2018. The trial Court categorically

observed that the plaintiff has filed the documents of her husband

i.e., Exs.A-2 and A-3 to show that her husband purchased the suit

property. However, defendant No.3 claimed the suit schedule

property on the basis that the husband of the plaintiff alienated the

same in her favour by agreement of sale-Ex.A-5. She has filed suit

for specific performance of agreement of sale under Ex.A-4, but

she has not pressed the said suit. The said agreement of sale is not

registered document. Thus, from the facts it is evident that the sale

deed was regularized without giving any notice to the parties

concerned and without paying the balance amount and without

delivery of possession and therefore, it cannot be said that the sale

was concluded and thus, defendant No.3 cannot claim absolute

rights over the property. Therefore, when the title of defendant

No.3 is not proved, the title cannot pass to defendant Nos.1 and 2

though they purchased the suit schedule property from defendant

No.3 through registered sale deed. Similarly, defendant Nos.3 and

4, who purchased the suit schedule property from defendant Nos.1

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and 2, also do not derive any title in respect of the suit schedule

property.

15.1. The trial Court while dealing with the aspect of

possession of the parties over the suit schedule property observed

as under:-

"In fact, the signature will be obtained on the top or bottom of the words executants, but Ex B-2 shows that after the words executant, after long gap signature was obtained. It clearly shows that the signature was obtained on blank paper and subsequently it was prepared. Further, the signatures of five persons are appearing on the document but the defendants have not examined any of them so they failed to prove the execution of document Ex A-3, they might have filed the tax receipt and miscellaneous receipts but the facts shows that they are creating the documents so only for the purpose of this suit they might have obtained the documents. It is very unfortunate to say that whenever the taxes are paid, the municipality is collecting it and issuing receipts and they are not enquiring about the ownership over the property whether the real owners are paying the property tax or not. The parties by taking advantage of the receipts claiming the rights over the property. This court feels that the defendants failed to produce any such convincing material to show that lawfully they entered into the possession

LNA, J S.A.Nos.421 & 426 of 2023

Further, as per Ex.A-3 when the possession was not delivered and defendant No.3 asked the court to deliver the possession, how can they claim possession over the property. There is no validity to the registered sale deeds of defendants so the plaintiff is entitled to the declaration that the registered sale deed should be declared as null and void."

15.2. The trial Court further held that the defendants have

no locus standi to question the possession of the plaintiff over the

suit schedule property when the sale deeds through which they

claim possession convey defective title.

15.3. While dealing with O.S.No.164 of 2006, the trial

Court observed that as already discussed in O.S.No.58 of 2005, the

plaintiff, who is defendant No.3 in O.S.No.58 of 2005, cannot get

any valid title over the suit schedule property basing on Ex.A-3

agreement of sale and therefore, no title passed in favour of

defendant Nos.1 and 2 and in turn to defendant Nos.3 and 4, and

thus, there is no validity to the sale deeds and mutation

proceedings. The trial Court has further observed that the plaintiff,

who is defendant No.3 in O.S.No.58 of 2005, took inconsistent

pleas of ownership on one hand and adverse possession on other

hand. Thus, by the aforesaid discussion, the trial Court held that he

LNA, J S.A.Nos.421 & 426 of 2023

is not entitled to the relief of perpetual injunction and accordingly,

dismissed the suit-O.S.No.164 of 2006.

16. On appeals being filed, the first Appellate Court, being the

final fact-finding Court, re-appreciated the entire evidence and the

material available on record, dismissed the appeals, vide its

judgment dated 02.06.2023.

16.1. The first Appellate Court, as regards Ex.B-2-agreement

of sale, categorically observed as hereunder:-

"According to D3 she has purchased the suit schedule property under Ex.B2. As I already stated above, Ex.B2 is only an agreement of sale for the suit schedule property but not a complete sale deed. Sec 54 of the Transfer of Property Act.

According to defendant No.3, Ex.B-2 is validated before Collector by collecting stamp duty of Rs.33,000/-. Collecting stamp duty on a unregistered document is different from registration of the document. If the document is registered, said document, at best, will help the party as a shield but not a sword. Unless and until the document is duly impounded, no valid title will be transferred in favour of D3. Even the collector is not having any authority to impound an agreement for sale. Even for a while it is presumed that an agreement of sale deed is registered by District Registrar, even then that document is helpful for

LNA, J S.A.Nos.421 & 426 of 2023

D3 as a collateral purpose and basing on the said document. D3 cannot claim title over the property."

17. Heard Sri Vadlakonda Ravi Kumar Reddy, learned

counsel for the appellants in both the appeals.. Perused the record.

18. A perusal of the record discloses that both the trial Court and

the first appellate Court, basing on the oral and documentary

evidence adduced by both the parties, categorically held that

defendant No.3 cannot claim title over the suit schedule property

basing on Ex.B-2-agreement of sale deed, which is not proved, and

further, the sale is not concluded and as such, no title flows to the

purchasers from defendant No.3.

19. Learned counsel for appellants argued that the trial Courts

rendered the judgments impugned herein without proper

appreciation of the evidence and the first Appellate Court also

committed an error in confirming the judgments passed by the trial

Court.

20. However, learned counsel for appellants failed to raise any

substantial question of law to be decided by this Court in these

Second Appeals. In fact, all the grounds raised in these appeals are

LNA, J S.A.Nos.421 & 426 of 2023

factual in nature and do not qualify as the substantial questions of

law in terms of Section 100 C.P.C.

21. It is well settled principle by catena of decisions of the Apex

Court that in the Second Appeal filed under Section 100 C.P.C.,

this Court cannot interfere with the concurrent findings on facts

arrived at by the Courts below, which are based on proper

appreciation of the oral and documentary evidence on record.

22. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that

the High Court sitting in Second Appeal cannot examine the

evidence once again as a third trial Court and the power under

Section 100 C.P.C. is very limited and it can be exercised only

where a substantial question of law is raised and fell for

consideration.

23. Having considered the entire material available on record

and the findings recorded by the trial Court as well as the first

Appellate Court, this Court finds no ground or reason warranting

interference with the said concurrent findings, under Section 100

C.P.C. Moreover, the grounds raised by the appellants are factual

(2007) 1 Supreme Court Cases 546

LNA, J S.A.Nos.421 & 426 of 2023

in nature and no question of law much less a substantial question of

law arises for consideration in these Second Appeals.

24. Hence, both the Second Appeals fail and the same are

accordingly dismissed at the stage of admission. No costs.

25. Pending miscellaneous applications, if any, shall stand

closed.

                         __________________________________
                           JUSTICE LAXMI NARAYANA ALISHETTY
Date:     28.02.2024
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