D.V. Satyanarayana Raju, vs M/S. Kmr Estates And Building Pvt. Ltd.,
2024 Latest Caselaw 2417 Tel

Telangana High Court

D.V. Satyanarayana Raju, vs M/S. Kmr Estates And Building Pvt. Ltd., on 27 June, 2024

Author: P.Sree Sudha

Bench: P.Sree Sudha

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

              SECOND APPEAL No.223 of 2024

JUDGMENT:

This second appeal is filed against the Judgment and

decree dated 28.12.2023 in A.S.No.58 of 2019, passed by the

learned VI-Additional District Judge, Ranga Reddy District,

Kukatpally, in which the Judgment and decree dated

25.11.2019 in O.S.No.30 of 2013, passed by the learned

V-Additional Junior Civil Judge, Kukatpally, at Prasanth Nagar,

was confirmed.

2. Appellant filed the suit to declare the registered sale deed

dated 10.12.1982, bearing document No.8513 of 1982, executed

in favour of respondent No.1 by one N.Ramachandra reddy as

null and void and for perpetual injunction in respect of the land

admeasuring Acs.6-17 gts in Sy.No.46 and Acs.3-22 gts in

Sy.No.48, thus in all Acs.10-00 gts, situated at Madinaguda

Village, Serilingampally Mandal, Ranga Reddy District and the

same was dismissed. Aggrieved by the same, the unsuccessful

appellant filed an appeal in A.S.No.58 of 2019 and the same

was also dismissed. Further aggrieved by the same, the present

second appeal is preferred.

3. One D.Chaganlal as owner allegedly executed an

agreement of sale dated 17.02.1978, in favour of one A.A.Rama

Raju. The said A.A.Rama Raju on the basis of such agreement of

sale filed a suit in O.S.No.270 of 1983, for specific performance

of agreement of sale and the same was decreed in terms of

compromise. The said Chaganlal on the basis of alleged decree

passed in O.S.No.270 of 1983, executed a registered sale deed

dated 24.05.1990, for an extent of Ac.1-17 gts of land i.e.,

Ex.No.A11 and another extent of Acs.5-00 gts of land under

registered sale deed dated 17.05.1990, i.e., Ex.No.A15, thus in

all Acs.6-17 gts of land in favour of A.Rama Raju.

4. The said A.Rama Raju in turn sold Ac.1-00 gts of land in

Sy.No.46 under registered sale deed dated 02.03.1995

i.e.,Ex.A12 and another extent of Ac.1-00 gts of land under

registered sale deed dated 13.03.1995, i.e., Ex.A14 to one

D.Dara Singh. The said D.Dara Singh executed and registered

an agreement-cum-General Power of Attorney dated

12.10.1998, in respect of Acs.2-00 gts of land i.e., Ex.A13 in

favour of M/s.Vasantha Estates Limited. M/s.Vasantha Estates

in turn sold the said extent of Acs.2-00 gts of land under

registered sale deed dated 26.08.2006, bearing document

No.17842 of 2006, i.e., Ex.No.A7 in favour of appellant No.1.

5. The said A.Rama Raju sold a further extent of Acs.4-17

gts of land to M/s.Kedia Overseas Limited, under registered sale

deed dated 17.03.2006, bearing document No.6107 of 2006, i.e.,

Ex.No.A19. The said M/s.Kedia Overseas Limited in turn sold

an extent of Acs.2-20 gts of land to one P.C.Reddy, under

registered sale deed dated 12.05.2006, bearing document

No.10899 of 2006, i.e., Ex.No.A16. The said P.C.Reddy in turn

sold an extent of Ac.1-04 gts of land to under registered sale

deed dated 19.07.2006, bearing document No.14922 of 2006 to

one S.Narsimha Reddy and an extent of Ac.0-12 gts of land

under registered sale deed dated 18.05.2006, bearing document

No.11211 of 2006 under Ex.A10 to Dr.Sivarama Krishna Prasad

i.e., appellantNo.2 and Ac.0-21 gts of land under registered sale

deed dated 18.05.2006 bearing document No.11212 of 2006,

under Ex.No.A8 to appellant No.4 and an extent of Ac.0-12 gts

of land under registered sale deed dated 18.05.2006, bearing

document No.11210 of 2006 under Ex.A5 to appellant No.5.

6. The appellants furthers contended that they acquired an

extent of Acs.4-19.10 gts out of Acs.6-17 gts of Madinaguda

Village, Serilingampally Mandal, Ranga Reddy District. The suit

is filed for cancellation of registered sale deed dated 10.12.1982

i.e., Ex.A4, which pertains to Acs.10-00 gts of land in Sy.No.46

& 48 of Madinaguda village, Serilingampally Mandal, Ranga

Reddy District. They further contended that they are in peaceful

possession and enjoyment of the suit property and constructed

a compound wall.

7. Respondent No.1 contended that D.Chaganlal sold an

extent of Acs.6-17 gts of land to Ramachandra Raju under

registered sale deed dated 17.10.1978 i.e., Ex.B1. The said

D.Chaganlal executed and registered sale deed dated

17.10.1978 i.e., Ex.B1 in favour of Ramachandra Raju much

earlier to the filing of the suit in O.S.No.176 of 1981. The said

D.Ramachandra Raju, acquired a valid title and possession over

the said extent of Acs.6-17 gts of land in Sy.No.46 of

Madinaguda Village, Serilingampally Mandal, Ranga Reddy

District. The sale deed dated 17.10.1978, was executed on the

same date and produced for registration before Sub-Registrar in

the year 1982 as document No.8513 of 1982. The sale deed

takes its effect from the date of its execution irrespective of date

of its registration.

8. Respondent No.1 further pleaded that D.Ramachandra

Raju sold the said extent of Acs.6-17 gts of land in Sy.No.46 to

respondent No.1 under registered sale deed dated 18.11.1995

bearing document No.9310 of 1996, i.e., Ex.B2. He is in

continuous possession and enjoyment of suit property ever

since the date of purchase, his name was also recorded as

pattadar and possessor in the pahanies i.e., Exs.B4 to B16. He

constructed a compound wall around the said property and

erected two gates and two rooms. He also obtained a power

supply connection vide Service No.1200212861 and paying the

consumption charges regularly.

9. Appellants contended that Ex.B1 sale deed executed by

D.Chaganlal in favour of D.Ramachandra Raju was executed on

17.10.1978, but the same was registered on 10.12.1982, during

the pendency of the suit in O.S.No.176 of 1981, filed by A.Rama

Raju against D.Chaganlal. Therefore, the same is subject to lis

pendens. The O.S.No.176 of 1981, was decreed in terms of

compromise. The sale deed dated 17.10.1979 is not effective

from the date of its execution, but the same is effective from the

date of its registration i.e., 10.12.1982 and therefore, the same

is hit by the compromise decree passed in O.S.No.176 of 1981,

as per lis-pendens. They also contended that the validity of the

sale deed from the date of its registration, but not from

execution, but the trial Court as well as the appellate Court

erred in Law by holding that the sale deed is valid from the date

of execution and therefore lis-pendens is not applicable and

such substantial question of law arises in the present second

appeal for determination. They relied upon the Judgment of the

Hon'ble Supreme Court between Ram Saran Lall and others

Vs.Mst.Domini Kuer and others, 1 in which it was observed

that the aspect of completion of registration of a deed is

primarily dealt therein and held that the registration stands

completed only as mandated under Section 61 of the

Registration Act. However, such position was clarified

subsequently by the Hon'ble Supreme Court in Kanwar Raj

Singh Vs.Gejo and others, 2 in which in para No.8, the earlier

constitution Bench Judgment in Ram Saran Lall, was

considered and further held as follows:

1963 SCC Online SC 146

(2024) 2 SCC 416

"8. We do not think that the learned Attorney General's contention is well founded. We will assume that the learned Attorney General's construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct. Section 47 of the Registration Act does not, however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of Section 47, the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore, we do not think that the sale in this case can be said, in view of Section 47, to have been completed on 31.01.1946. The view that we have taken of Section 47 of the Registration Act, seems to have been taken in Tilakdhari Singh Vs.Gour Narain, 3 we believe that the same view was expressed in Nareshchandra Datta Vs.Gireeshchandra Das, 4 and Gobardhan Bar Vs.Guna Dhar Bar, 5

9.The constitution Bench held that Section 47 of the Registration Act does not deal with the issue when the sale is complete and held that Section 47 applies to a document only after it has been registered, and it has nothing to do with the completion of the sale when the instrument is one of sale. It was also held that once a document is registered, it will operate from an earlier date, as provided in Section 47 of the Registration Act. Every sale deed in respect of property worth more than Rs.100/-

is compulsorily registerable under Section 54 of the Transfer of Property Act. Thus, a sale deed executed by the vendor becomes an instrument of sale only after it is registered. It only deals with the question of when the sale is complete; it does not deal with the issue of the date

1920 SCC Online Pat 283

1935 SCC Online Cal 146

1940 SCC Online Cal 113

from which the sale deed would operate. Section 47 of the Registration Act does not deal with the completion of the sale; it only lays down the time from which a registered document would operate."

The substantial question of law which is sought to be raised

with regard to effect of a registered document from the date of

execution, but not from the date of registration is no more

res-integra. The appellants therefore failed to make out any

substantial question of law in the above appeal.

10. Admittedly, D.Chaganlal had executed the sale deed i.e.,

Ex.B1 prior to O.S.No.176 of 1981, which was filed for specific

performance as the sale deed i.e., Ex.B1 was prior to the suit

and title rights and possession stood transferred from the date

of its execution. D.Ramachandra Raju acquired a valid title over

the suit property. Admittedly, A.Rama Raju did not make

D.Ramachandra Raju as a party in O.S.No.176 of 1981, though

the title stood transferred and vested in him prior to the suit. In

other words, D.Chaganlal had no subsisting title as on the date

of institution of the suit in O.S.No.176 of 1981, therefore, no

effective decree can be passed against D.Chaganlal, as he had

no title as on the date of filing of the suit. On this aspect, the

law is well settled that to pass a proper form of decree, the

subsequent purchaser is a necessary party for conveyance of

title as held in Durga Prasad Vs.Deep Chand, 6 at para 42,

which reads as follows:

"First we reach the position that the title to the property has validly passed from the vendor and resides in the subsequent transferee. The Sale to him is not void but only voidable at the option of the earlier "contractor". As the title no longer rests in the vendor it would be illogical from a conveyancing point of view to compel him to convey to the Appellant unless steps are taken to re-vest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him," and further held that "In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the Appellant and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the Appellant."

The Hon'ble Apex court reiterated the law laid down on this

aspect in (2019) 3 SCC 520 at para 38 and 39 as follows;

"The question arose before this Court in Durga Prasad v. Deep Chand as to what form of decree should be passed in the case of specific performance of contract where the suit property is sold by the Respondent ie the owner of the suit property to another person and later he suffers a decree for specific performance of contract directing him to transfer the suit property to the Appellant in terms of contract."

"Where there is a sale of the same property in favour of a prior and subsequent transferee and the subsequent transferee has, under the conveyance outstanding in his favour, paid the purchase-money to

AIR 1954 SC 75

the vendor, then in a suit for specific performance brought by the prior transferee, in case he succeeds, the question arises as to the proper form of decree in such a case. The practice of the courts in India has not been uniform and three distinct lines of thought emerge. According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone. According to Supreme Court, the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. He does not join in any special covenants made between the prior transferee and his vendor all he does is to pass on his title to the prior transferee".

It is clear from such settled law that the Compromise Decree

passed in O.S No.176 is not a proper form of Decree and

therefore the Sale Deed obtained by the Vendors of the

Appellants on the basis of such Decree is not valid. The

Appellants therefore did not derive any title from A. Rama Raju.

The Appellants failed to establish their title over the suit

property.

11. The suit filed by the Appellant for mere cancellation of

Sale Deed & Perpetual Injunction without seeking Declaration of

Title is not maintainable. The attention is drawn to the plaint

wherein the appellants/plaintiffs clearly stated in para 11 as

follows:

"The plaintiffs further submit that the defendants are claiming the title through one D Ramchandra Raju who alleged to have purchased the land admeasuring Ac.6- 17 gts., in Sy.no.46 and land admeasuring Ac.3-22 gts., in Sy.no.48 vide document no.8513/1982 dated 10-12- 1982, registered on the file of Joint Sub-Registrar."

From this averment in the plaint, it is clear that the Appellants

are aware that the Defendants have set up a rival title against

them even prior to institution of the suit but failed to seek the

relief of Declaration of Title. It is settled law that a suit for

Injunction and Cancelation of Sale Deed is not maintainable

without seeking Declaration of Title. This court held in 2013

SCC Online AP 914 at para 34 that without the relief of

Declaration of Title such a suit is not maintainable.

"As regards the contention of the counsel for the appellant that it was incumbent upon the Appellant to also seek the relief of declaration of title in addition to seeking the relief of recovery of possession is concerned, the decision of the apex court in Anathula Sudhakar is clear. In the said case, the Supreme Court declared:

"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

13.1. Where an Appellant is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Respondent, a suit for an injunction

simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

13.2. Where the title of the Appellant is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

13.3. Where the Appellant is in possession, but his title to the property is in dispute, or under a cloud, or where the Respondent asserts title thereto and there is also a threat of dispossession from the Respondent, the Appellant will have to sue for declaration of title and the consequential relief of injunction.

13.4. Where the title of the Appellant is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the Appellant will have to file a suit for declaration, possession and injunction.

14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the Respondent or challenge to the Appellant's title raises a cloud on the title of the Appellant to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the Appellant has clear title supported by documents, if a trespasser without any claim to title oran interloper without any apparent title, merely denies the Appellant's title, it does not amount to raising a cloud over the title of the Appellant and it will not be necessary for the Appellant to sue for declaration and a suit for injunction may be sufficient. Where the Appellant, believing that the Respondent is only a trespasser or a wrongful claimant

without title, files a mere suit for injunction, and in such a suit, the Respondent discloses in his defense the details of the right or title claimed by him, which raise a serious dispute or cloud over the Appellant's title, then there is a need for the Appellant, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. Hema File the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not of title."

The concurrent findings of the court below with regard to failure

of the appellants in establishing title and possession are

sustainable. As there are concurrent findings of facts with

regard to possession of the property, the same does not warrant

any interference except in exceptional circumstances and there

are no such circumstances in the present case. The Apex Court

held in 2020 4 SCC 659 at para 25 and 28 as follows;

"25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan (Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343], it was held that findings of the fact could not have been interfered within the second appeal:

12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in

the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392], this Court held:

'It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'

14. In Navaneethammal v. Arjuna Chetty [Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166], this Court held:

'Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.'

15. And again in Taliparamba Education Mallisseri Illath M.N. (Taliparamba Education Society v. Moothedath Society v. Moothedath Mallisseri Illath M.N., (1997) 4 SCC 484), this Court held:

'5.... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible."

28. Recently in another judgment in State of Rajasthan v.

Shiv Dayal [State of Rajasthan v. Shiv Dayal, (2019) 8 SCC 637: (2019) 4 SCC (Civ) 203], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by the learned Judge Vivian Bose, J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar (Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26: AIR 1943 Nag 117], AIR Nag para 43)."

It is submitted that appellants do not have any locus to seek a

decree to seek cancellation of sale deed dated 17.10.1978 i.e.,

Ex.B1, as null and void.

12. The registered sale deed dated 17-10-1978 i.e., Ex.B1

which is sought to be canceled is an ancient document and

therefore gives rise to a statutory presumption. The said

Late.D.Chaganlal, executed the Registered Sale Deed dated

17- 10-1978 bearing Document No. 8513 of 1982, i.e., Ex.B1 in

favour of Sri.D.Ramachandra Raju. Admittedly, this Sale Deed

was executed on 17- 10-1978. The suit is filed on 21-11-2012. It

is therefore submitted that by the date of filing of the suit the

said sale deed is more than 34 years old. In this regard it is

submitted that the Sale Deed under challenge is an ancient

document as per Section 90 of Evidence Act and presumption is

available with regard to its due execution, registration. It is also

held in 2014(2) ALT 245;

"Since it is a thirty year old document, presumption under Section 90 of the Evidence Act, 1872 operates and it has to be accepted as a genuine document also."

It is submitted that apart from that a presumption is available with regard to a registered sale deed in favour of respondent as held by the Hon'ble Supreme Court in a case reported in 1991(1) SCC 715;

" The legislature being alive to such situations has already provided in Section 47 of the Registration Act that it shall operate from the time from which it would commence to operate if no registration thereof had been required or made and not from the time of its registration. Thus in our view the vendee gets rights which will be related back on registration from the date of the execution of the sale deed and such rights are protected under Order XXXVIII Rule 10 CPC read together with Section 47 of the Registration Act."

Therefore, this Court finds that this is not a fit case for

admission and thus dismissed at the stage of admission. There

shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

_________________________ JUSTICE P.SREE SUDHA

DATE: 27.06.2024 tri