Telangana High Court

Bheem Alias,Bheemlal Kethawath Alias ... vs Gangadhar Goud on 3 June, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

         THE HONOURABLE DR.JUSTICE G. RADHA RANI

                  SECOND APPEAL No.1519 of 2004

JUDGMENT:

This Second Appeal is filed by the appellant - legal representative of the

defendant aggrieved by the judgment and decree dated 23.06.2004 passed in

A.S.No.5 of 1988 by the District Judge, Nizamabad in reversing the judgment

of the Principal District Munsiff, Nizamabad in O.S.No.64 of 1980 dated

21.08.1987.

2. The parties are hereinafter referred as arrayed before the trial court as

plaintiff and defendants.

3. The plaintiff filed the suit for eviction of the defendant from the suit

schedule plot and hut and to deliver vacant possession of the same to him and

for recovery of Rs.250/- towards use and occupation and future rent @ Rs.50/-

per month from the date of the suit till realization. The case of the plaintiff was

that the defendant was the owner of the plot bearing No.1-26, Ward No.1 at

Sarangapur, Nizamabad measuring 428.44 square yards and the plaintiff

purchased the same from the defendant under a registered sale deed for a

consideration of Rs.500/- on 09.01.1964. The father of the plaintiff paid the

sale consideration to the defendant. On the date of purchase itself, the

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possession of the plot was delivered to the plaintiff. In the month of May, 1964,

the plaintiff applied for construction of house in the suit plot. The Gram

Panchayat, Mallaram accorded permission. In those days, Sarangapur Village

was under the Gram Panchayat, Mallaram. On 25.05.1964, permission was

granted. The father of the plaintiff was the sarpanch at that time. He sanctioned

the permission. The plaintiff erected a hut in the plot and also dug foundation

around the plot and filled it up. The plaintiff was paying taxes to the Gram

Panchayat. The plaintiff was residing at Mallaram Village. Taking advantage

of his absence from the village, the defendant occupied the suit hut and plot two

years ago. The plaintiff demanded him to vacate. The defendant refused to

vacate the plot and hut, as such, the plaintiff got issued a legal notice on

24.12.1979 to the defendant to vacate the plot and hut and also for payment of

rent @ Rs.50/- per month for the period of his illegal occupation. The

defendant gave reply denying the same, as such filed the suit.

4. The defendant filed written statement denying that he sold the plot

bearing No.1-26 in Ward No.1 at Sarangapur Village on 09.01.1964 to the

plaintiff. He stated that the plaintiff manipulated the permission and the same

was not genuine. The father of the plaintiff never erected any hut. The present

number of the plot and the hut was not 1-105 as per the panchayat record. The

defendant never occupied the hut and plot two years back or agreed to vacate

when demanded by the plaintiff. The plot and hut could not fetch a rent of more

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than Rs.10/- per month. The plaintiff had no right to file the suit and maintain

the same. The hut and open land was in his occupation for the past 35 years

continuously, openly and peacefully. The plaintiff lost his title if any to the suit

plot and the defendant had perfected his title over the said land against all

including the plaintiff by adverse possession.

5. Basing on the said pleadings, the trial court framed the issues as follows:

i) Whether the plaintiff purchased the suit site and was in possession of it?

ii) Whether the defendant perfected his title to the suit site by adverse possession?

iii) To what relief the plaintiff is entitled to?

6. The plaintiff got examined PWs.1 to 5 and got marked Exs.A1 to A13.

The defendant got examined DWs.1 to 3 and got marked Exs.B1 to B6.

7. On considering the oral and documentary evidence on record, the trial

court observed that the plaintiff failed to prove the execution of Ex.A1 sale deed

and his possession over the suit schedule property. Even if any title was passed

to the plaintiff by virtue of Ex.A1, it was lost on account of uninterrupted and

continuous possession by the defendant over the suit land and dismissed the suit.

8. Aggrieved by the said dismissal, the plaintiff preferred an appeal. The

said appeal was dismissed on 08.06.1989. Thereafter, the plaintiff preferred

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Second Appeal vide S.A.No.489 of 1989. The said appeal was allowed by the

High Court of Andhra Pradesh by setting aside the judgment and decree of the

First Appellate Court and remanded the matter to the Appellate Court with a

direction to restore the appeal to its original number and to dispose of the same

in accordance with law especially by scrutinizing the evidence of PW.4 in the

light of other facts and circumstances discussed therein.

9. During the pendency of the Second Appeal 489 of 1989, the defendant

Lambada Ratan died and his legal representatives were brought on record as

respondents 2 to 4. The First Appellate Court on remand of the matter re-

appreciated the evidence of the witnesses particularly that of PW.4, who was

practicing advocate and a notary and that he stated that he knew PW.2

personally. The attesting witnesses and the executant of Ex.A1 document came

to him and he got drafted the sale deed and attested the signature of the

executant. The executant also attested his thumb mark before him, who was

identified by the purchaser and other witnesses and stated about entering the

said document in his register at Serial No.15 dated 09.01.1964. The First

Appellate Court observed that there was no cross-examination on PW.4. In the

absence of the evidence of attesting witnesses, PW.4 was competent to prove

the execution of Ex.A1 document by respondent No.1 (defendant). When the

respondents did not choose to cross-examine PW.4, his evidence became final.

Therefore, the contention of the respondent No.1 that he never executed Ex.A1

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sale deed in favor of the plaintiff could not be believed. The First Appellate

Court also rejected the contention of the respondent No.1 (defendant) that he

perfected his title by way of adverse possession as he failed to file any

documentary evidence to show that he was paying tax to the Gram Panchayat.

The First Appellate Court also observing that the respondent No.1 (defendant)

did not choose to file any application to send Ex.A1 sale deed to fingerprint

expert for comparison of his thumb impression to prove his contention that he

never executed Ex.A1 sale deed in favor of the plaintiff, held Ex.A1 as true,

valid and binding on the respondents (defendants) and decreed the suit by

setting aside the judgment and decree of the trial court dated 21.08.1987 and

also ordered for recovery of rent @ Rs.50/- per month from the date of suit till

the delivery of possession of the suit schedule property.

10. Aggrieved by the said judgment and decree passed by the learned District

Judge, Nizamabad dated 23.06.2004, the legal representative of the defendant

preferred this appeal raising certain substantial questions of law in the grounds

of appeal.

11. This Court on 19.04.2005 admitted the Second Appeal on the following

substantial questions of law raised at Ground No.16:

iv) Whether Ex.A1 is proved as a sale deed by examining any of the attesting witnesses, and there is evidence with regard to the proof of the contents of it?

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v) Whether Ex.A1 sale deed reveals regarding title of the executant / vendor how he got title over the suit land and there is any encumbrance certificate or any relevant link deed of Ex.A1 sale deed. There are no receipts of sale consideration of Rs.500/- covering Ex.A1 sale deed.

vi) Whether the document writer explained the title of the vendor and how he owned the title over it and how he drafted basing on which documents and there are any instructions from the vendor / defendant regarding the title as per the evidence of PW.4, who is document writer and notary advocate. Whether PW.4 followed the Rules of the Registration Act and under Section 55 of the Transfer of Property Act regarding rights and liabilities of buyer / seller?

vii) Whether the plaintiff can purchase the assignment land which belongs to the Government, which is the suit plot?

viii) Whether the plaintiff is entitled to get any relief without proving pleadings under Section 55 of the Transfer of Property Act and Rules of the Registration Act. Whether the suit is liable to prove under the above laws or the suit is liable to be dismissed?

12. Heard Sri Y.S.Yellanand Gupta, learned counsel for the appellant and Sri

G.Anandam, learned counsel for the respondents.

13. Learned counsel for the appellant contended that the contents of Ex.A1

sale deed would not reveal the defendant's title over the suit schedule property

or about the link documents of the suit schedule property. No details were

stated by the plaintiff as to who drafted the Ex.A1 sale deed or any details of the

title of the vendor or as to how the vendor got title over the said plot. The suit

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schedule property was a Government land, as such, the defendant had no right

to execute the said sale deed. The First Appellate Court failed to see that the

documents produced by the plaintiff were fabricated and created as his father

was a sarpanch of the village in those days. None of the attesting witnesses or

their legal heirs were examined to prove the attestation of Ex.A1. PW.4 had not

followed the procedure while drafting the document. He had not stated whether

the vendor was holding any title to the schedule property and the details of the

link documents in Ex.A1. PW.4 stated that the vendor put his thumb impression

before him and he was identified by the purchaser on 09.01.1964. The

executant was not aware that the age of the purchaser was 11 years as on

09.01.1964 and he was a minor, as such, the identification of the executant by a

minor was not admissible in evidence. The document marked as Ex.A1 was

prepared only for the purpose of filing the suit. No link documents or no

encumbrance certificate was filed. The defendant was residing in the suit

schedule property for the past 35 years till 1980. The First Appellate Court had

not appreciated the evidence of PW.4 in a proper perspective. Ex.A1 document

would disclose that the sale consideration was also not paid in full. As per the

sale deed only Rs.300/- was paid. No receipt was filed to show the payment of

the balance sale consideration of Rs.200/-. No evidence was adduced by the

plaintiff with regard to the illegal occupation of the hut by the defendant in

December, 1977. No complaint was given by the plaintiff against the defendant.

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No suit for declaration was filed by the respondent - plaintiff and prayed to

allow the appeal.

14. Learned counsel for the respondent - plaintiff on the other hand

contended that the defendant raising the plea of adverse possession itself would

show that he was admitting the title of the plaintiff. All the substantial

questions of law admitted were pertaining to Ex.A1. There were statutory

presumptions in favor of a registered document. The burden would lie upon the

other side to rebut the said presumption and relied upon the judgments of the

Hon'ble Apex Court in Prem Singh and Others v. Birbal and Others 1 and

Jamila Begum (Dead) through LRs. v. Shami Mohammed (Dead) through

LRs. and Another2 and of the combined High Court of Telangana and Andhra

Pradesh in A.P.Leela v. Nakkala Kishore Yadav 3 .

15. On a perusal of the substantial questions of law which were admitted by

this Court on 19.04.2005, they were all pertaining to the proof of Ex.A1 and

with regard to the appreciation of the evidence of PW.4. It was mandatory that

before a second appeal can be maintained, all conditions mentioned in Section

100 of the Code of Civil Procedure must be strictly fulfilled. '

(2006) 5 SCC 353

(2019) 2 SCC 727

2018 (4) ALD 392

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16. The High Court should be satisfied that the case involves a substantial

question of law, and not a mere question of law. A question of law having a

material bearing on the decision of the case (i.e. a question, answer to which

affects the rights of parties to the suit) will be a substantial question of law, if it

is not covered by any specific provisions of law or settled legal principle

emerging from binding precedents, and involves a debatable legal issue. A

substantial question of law will also arise in a contrary situation, where the legal

position is clear, either on account of express provisions of law or binding

precedents, but the court below has decided the matter, either ignoring or acting

contrary to such legal principle. In the second type of cases, the substantial

question of law arises not because the law is still debatable, but because the

decision rendered on a material question, violates the settled position of law.

17. The Hon'ble Apex Court had enumerated some basic ingredients

constituting a substantial question of law, which are as under:

(1) The question of law on which there is conflict of judicial opinion and not finally decided by Supreme Court, Privy Council; or by Federal Court.

(2) The finding which has been arrived at by court below without any evidence on record.

(3) Inference from or legal effect of proved or admitted facts.

(4) Disregard or non-consideration of relevant or admissible evidence.

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(5) Taking into consideration irrelevant or inadmissible evide.ce

(6) Misconstruction of evidence or document.

(7) Interpretation or construction of material documents.

(8) A question of admissibility of evidence.

(9) Disposal of appeal by First Appellate Court by allowing application to adduce additional evidence by one party without giving opportunity of rebuttal to the other party.

(10) New plea on pure question of law going to the root of the matter.

(11) Rejection of admissible evidence on flimsy ground.

(12) Gross miscarriage of justice.

(13) Biased approach of the court below.

(14) Reversal of finding by First Appellate Court without evidence.

(15) Perverse finding recorded by the courts below.

(16) Inconsistent and contradictory finding of the Court.

(17) When appeal is decided only on equitable ground and without application of mind.

(18) When the Court has no jurisdiction.

18. If a case falls under one or other of the above circumstances, it may give

rise to a substantial question of law.

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19. Though the learned counsel for the appellant contended that the suit

schedule property was a Government land and the appellant - defendant had no

right to execute a sale deed for the Government land, the said plea was not taken

by the defendant in his written statement. No plea was taken by the defendant

and no evidence was adduced by him to show that it was an assigned land to

prove that the defendant could not execute a sale deed for the suit plot.

Admittedly, Ex.A1 is a registered sale deed document. If the suit schedule

property was a Government land, the registrar itself would have taken objection

for the registration of the said document. As such, the question No.vii raised in

the grounds of appeal which was admitted by this Court has no basis.

20. Non-payment of a portion of the sale consideration also would not render

a registered sale deed void nor the same would not provide a valid basis for its

cancellation as per the judgment of the Hon'ble Apex Court in Dahiben v.

Arvindbhai Kalyanji Bhanusali (Gajra) (Died) through LRs. 4 dated:

09.07.2020. As per Section 54 of the Transfer of Property Act, 1882, the

requirement for the actual payment of the entire price at the time of executing

the sale deed is not a mandatory condition for completing the sale. Section 54

of the Transfer of Property Act defines sale as a transfer of owner ship in

exchange for a price paid or promised or part-paid and part-promised.

(2020) 7 SCC 366

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21. The Hon'ble Apex Court in Vidhyadhar v. Manikrao and Another 5,

held that:

"The expression 'price paid or promised or part- paid and part-promised' would indicate that the actual payment of the entire price at the time of executing the sale deed is not an indispensable condition for the completion of the sale. Even if the full price is not paid, but the document is executed and subsequently registered, the sale is deemed complete and the title passes to the transferee under the transaction. The absence of payment for a part of the sale price does not compromise the validity of the sale. Once the title to the property has been transferred, even if the remaining sale consideration is not paid, the sale cannot be invalidated on the said basis. For a sale to be recognized, the parties must have the intention to transfer ownership of the property, agreeing to pay the price either immediately or in the future."

22. Thus, this Court does not find any merit with regard to the contention of

the learned counsel for the appellant raised in substantial question No.viii.

23. The First Appellate Court is the final court on facts. The Hon'ble Apex

Court in several cases held that the High Court had no jurisdiction to entertain a

(1999) 3 SCC 573

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second appeal on the ground of erroneous finding of fact, however gross or

inexcusable; the error might seem to be.

24. In Madamanchi Ramappa and Another v. Muthalur Bojjappa 6, the

Hon'ble Apex Court observed that:

"It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavor to avoid."

25. Ex.A1 is a registered document and it carries with it a presumption that it

was validly executed and it was for the party, who was challenging the

genuineness of the transaction to show that the transaction was not valid in law.

1963 SCR 673

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26. Thus, the burden would lie upon the defendant who was challenging the

genuineness of the transaction under Ex.A1 to show that the said transaction

was not valid. But the defendant failed to cross-examine PW.4, an advocate and

notary who stated about the executant executing the document in his presence

and affixing his thumb impression on it and the executant was identified by the

witnesses as well as PW.2. The evidence of PW.4 was not challenged by way

of cross-examination with regard to the execution of Ex.A1 document and the

appellant - defendant also did not choose to file any application to send Ex.A1

sale deed to fingerprint expert for comparison of his thumb impression to prove

that he had not executed Ex.A1 sale deed in favor of the plaintiff.

27. The judgment of the Hon'ble Apex Court in Prem Singh and Others v.

Birbal and Others (cited supra), held that:

"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption."

28. The Hon'ble Apex Court in Jamila Begum (Dead) through LRs. v.

Shami Mohammed (Dead) through LRs. and Another (cited supra) also

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reiterated the same principle. In the said case also, the Advocate who prepared

the sale deed was examined and the Hon'ble Apex Court held that:

"19. On the contrary, the appellant-defendant has examined Advocate Ahmad (DW-3) who has prepared the sale deed and the scribe of sale deed dated 21.12.1970. At the time of writing the sale deed, Advocate Ahmad (DW-3) was having Bar experience of nine years. In his evidence, DW-3 - Shri Ahmad has stated that on the instruction of Wali Mohd., he had prepared the sale deed and that sale deed was validly executed by Wali Mohd. out of his free will and consent. As pointed out by the trial court, DW-3

- Advocate Ahmad was personally knowing Wali Mohd. and that being the scribe of the sale deed, Ex.75 Kha. contains the signature of DW- 3 - Shri Ahmad, Advocate.

20. The trial court upon consideration and weighing the evidence of Advocate Ahmad (DW-3) and Dr. Wasim (PW-5) held that ".......the evidence of Shri Ahmad, Advocate is comparatively more acceptable and believable."

Upon appreciation of oral evidence, when the trial court has recorded the findings that the evidence of Advocate Ahmad (DW-3) is credible and acceptable, in our considered view, the first appellate Court and the High Court ought not to have interfered with the findings recorded by the trial court; more so, when the sale deed dated 21.12.1970 was a registered document. The first appellate Court and the

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High Court were not right in holding that the sale deed Ex.75 Kha. (21.12.1970) was not validly executed."

29. In the present case also, on considering the evidence of PW.4, the First

Appellate Court recorded its findings with regard to the credibility and

acceptability of the evidence of PW.4 and also observed that there was no cross-

examination on the said witness. As such, this Court does not find any merit in

the contention of the learned counsel for the appellant or any substantial

questions of law arising in this matter for allowing the second appeal.

30. In the result, the Second Appeal is dismissed confirming the judgment of

the First Appellate Court in A.S.No.5 of 1988 dated 23.06.2004.

No order as to costs.

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