M/S. Avalon Builders Pvt Ltd vs Seri Balreddy
2025 Latest Caselaw 5231 Tel

Telangana High Court

M/S. Avalon Builders Pvt Ltd vs Seri Balreddy on 30 April, 2025

Author: P.Sree Sudha

Bench: P.Sree Sudha

      THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

            CIVIL REVISION PETITION No.983 of 2025

ORDER:

This Civil Revision Petition is filed against the Order dated

07.03.2025 in I.A.No.2827 of 2024 in O.S.No.53 of 2017, passed

by the learned Principal District and Sessions Judge,

Sangareddy.

2. Petitioners herein have filed an application vide

I.A.No.2827 of 2024 in O.S.No.53 of 2017, against the

respondents before the trial Court under Section Order 7 rule

11 of CPC to reject the plaint in O.S.No.53 of 2017. The trial

Court after considering the arguments of both sides dismissed

the application. Aggrieved by the said order,

petitioners/defendants have preferred present revision petition.

3. Learned counsel for the petitioners/defendants herein

mainly contended that respondents/plaintiffs have filed a suit

vide O.S.No.53 of 2017, to declare the registered documents

bearing Nos.5192 and 5193 of 2017, as invalid as they are

executed without sanction and authority and also for injunction

restraining the defendants from interfering with their possession

of the suit land. Respondents/plaintiffs have admitted the

execution of agreement of sale-cum-GPA's bearing document

Nos.11351 and 11352 of 2016 dated 25.05.2016 in para No.5 of

the plaint and they have also admitted the issuance of notice

cancelling the GPA's and it clearly shows the execution of

agreement cum GPA. The General Power of Attorney (GPA) was

executed in pursuance to agreement of sale after payment of

sale consideration, therefore GPA is coupled with interest in

view of Section 202 of Contract Act and it cannot be cancelled

unilaterally and it is barred by law. The registered document

can be cancelled through a registered cancellation deed and the

cancellation by issuance of notice is unknown to law. In the

plaint, it was stated that petitioner No.5/defendant No.5 had

not been served with notice and it is not returned, therefore

GPA of petitioner No.5 is not cancelled. Consequently, the sale

deeds executed are valid and the suit is liable to be dismissed.

The trial Court has passed a non-speaking and non-reasoned

order. It was simply held that the plaint averments discloses the

cause of action. Respondents/plaintiffs did not sought any relief

against the agreement of sale cum GPA dated 25.05.2016, as

such declaration of the sale deed is invalid, erroneous and

against the law. The main relief should be regarding agreement

of sale cum GPA. As the cancellation of the GPA is not in

accordance with law, there is no cause of action. Clever drafting

of the plaint by the respondents/plaintiffs created illusory cause

of action. The GPA is not cancelled as per law under Section 31

of the Specific Relief Act, as such respondents/plaintiffs could

not avail the remedy against the sale deed and thus the trial

Court ought to have rejected the plaint. Therefore, requested

the Court to set aside the order of the trial Court.

4. Parties herein are referred as plaintiffs and defendants as

arrayed before the trial Court in O.S.No.53 of 2017, for the sake

of convenience

5. Plaintiffs in their plaint filed in O.S.No.53 of 2017 stated

that plaintiff No.1 is the absolute owner and possessor of the

land admeasuring Ac.0-38 gts in Sy.No.120/EE and also to an

extent of Ac.2-05 gts in Sy.No.122/AA2, situated at Velimela

Village, Ramachandrapur Mandal, Sangareddy District, thus the

plaintiff No.1 is having a total extent of Ac.3-03 gts. Plaintiff

No.2 is the absolute owner and the possessor of the land

admeasuring an extent of Ac.0-38 gts in Sy.No.120/A2 and

Ac.1-28 gts in Sy.No.122/A2 and thus he is having total extent

of Ac.2-26 gts in the said survey numbers. The lands of the

plaintiffs together are forming a big plot measuring an extent of

Ac.5-29 gts and it is undivided share of plaintiffs in total land of

Ac.8-15 gts, which includes the share of their elder brother

Manik Reddy. The share of Manik Reddy is measuring an

extent of Ac.2-26 gts in these two survey numbers. All three

brothers have together sold some extent of land to their parties

and some extent of land was covered by the Manjira pipeline

road. After deduction, the land remained to the three brothers

is Ac.6-00 gts, but more land is appearing in favour of plaintiffs

and their elder brother as per revenue records. The land is still

in joint possession and enjoyment of plaintiffs and their elder

brother.

6. Plaintiffs have offered their undivided share to an extent

of Ac.2-00 gts each out of the suit land at the rate of

Rs.1,29,00,000/- to the defendants in the month of May, 2016.

All the defendants together accepted the plaintiffs offer. On

25.05.2016, plaintiffs and defendants have entered into an

agreement of sale in respect of the suit lands. It was agreed

between them that the land for sale is only to the extent of

Acs.4-00 gts out of the suit land and the sale consideration is

Rs.1,29,00,000/- per acre, but taking advantage of illiteracy

and ignorance of the plaintiffs, defendants got drafted written

agreement of sale cum GPA to the extent of Ac.5-28 gts with

specific boundaries instead of showing it as undivided share of

plaintiffs and the sale consideration was shown as

Rs.30,00,000/- per acre. When it was questioned by the

plaintiffs, defendants have stated that they mentioned the same

only to save the payment of stamp duty and they had issued

cheques for a total consideration of Rs.3,66,00,000/- and

executed a Memorandum of Understanding and the photocopy

of the same was given to the plaintiffs.

7. It was further stated that defendants have paid only an

amount of Rs.1,50,00,000/- to the plaintiffs and got executed

agreement of sale cum GPA vide document Nos.11351 and

11352 of 2016 dated 25.05.2016. For the past nine months,

plaintiffs requested the defendants to pay the balance sale

consideration of Rs.3,66,00,000/-, but defendants paid only

Rs.60,00,000, as such plaintiffs terminated the GPA given to the

defendants. They got issued notices of termination of GPA

through registered post to all the defendants, as such

defendants are no more and not authorized to act as attorneys

of plaintiffs. Notice to the defendant No.1 was returned with an

endorsement unclaimed, notice to the defendant Nos.2 and 4

were served to them on 27.03.2017, notice to defendant No.3

was served to him on 28.03.2017. Notice to defendant No.5 was

not yet returned.

8. On 09.04.2017, defendants erected fencing covering

major part of the suit land and also erected a board stating that

land belongs to them. Plaintiffs never intended to alienate the

suit schedule property. Defendants have mentioned the specific

boundaries in the agreement of sale without the knowledge of

plaintiffs and tried to make impression that they are in

possession of the land. In fact, plaintiffs and defendants agreed

to the actual extent of land which will found after the due

measurement only and not more. When plaintiffs approached

the defendants and questioned regarding erection of the fencing

and name board in the land, defendants stated that they had

already got sale deeds executed in their favour and plaintiffs

need not executed any sale deeds for them and further stated

that they will pay the balance sale consideration whenever they

wish. Plaintiffs never intended to alienate the land claimed by

the defendants. Plaintiffs have verified in the office of sub-

registrar and found that sale deeds bearing Nos.5192 and 5193

of 2017 were executed by the defendants themselves on

28.03.2017 and the stamp paper was purchased on 03.01.2017

and got mentioned that sale deed was executed on 06.01.2017,

which was created by defendants only to show that sale deeds

were executed prior to the termination of their authority under

GPA, as such sale deeds were not valid. Defendants have no

authority to execute the sale deeds. By playing fraud,

conspiracy and to gain wrongfully, defendats executed the sale

deeds, as such plaintiffs are entitled for declaration to declare

the sale deeds as null and void and also entitled for

consequential injunction restraining from mutating the said

documents before any government authority. The cause of

action arose on 28.03.2017. Plaintiffs have filed 16 documents

along with the plaint including the sale deeds and a copy of the

memorandum of understanding and also the notice of

termination of power of attorney dated 24.03.2017. They also

filed certified copy of agreement of sale cum GPA, copy of six

pahanies for the year 1425 fasli and gift settlement deeds and

also certified copy of ROR for 1989-90.

9. During pendency of the suit, defendants have filed an

application for rejection of plaint. The trial Court after

considering the arguments of both sides and also the citations

relied upon by them, observed that the documents filed by the

plaintiffs are pertaining to the year 2017 and the suit was filed

in the same year, as such it cannot be said that suit was barred

by limitation. It was further observed that even if it is presumed

that there are contradictions in the pleas as taken by the

defendant No.5, it cannot be the main ground for rejection of

the plaint. In the case on hand cause of action is clearly shown

as such it cannot be said that no cause of action was shown

and the ingredients of either clause (a) or clause (d) of Order VII

were not attracted and accordingly dismissed the application.

10. Perusal of the agreement of sale cum GPA dated

25.05.2016, shows that it was executed for a total extent of

Ac.5-28 gts for a total sale consideration of Rs.57,00,000/- and

the vendors have paid Rs.50,00,000/- on the same day and the

balance amount of Rs.7,00,000/- was agreed to be paid as and

when demanded by the plaintiffs/vendors. Vendors have

appointed vendees as their GPA in respect of the schedule

properties and the vendees have also agreed for the same it was

also stated that vendors delivered vacant peaceful possession of

the suit schedule property to the vendees. In the GPA, it was

stated that as the vendors received major sale consideration

executed agreement of sale cum GPA in favour of vendees and

they are authorized to sign and execute sale deeds, rectification

deeds, ratification deeds, agreement of sale, development

agreements etc and they are also authorized to transact with

prospective purchasers and to enter into agreement of sale and

also to execute registered sale deeds on behalf of the vendors.

11. Learned counsel for the respondents/plaintiffs mainly

contended that the suit is at the stage of arguments, as such

the application filed under Order 7 rule 11 is not maintainable.

Learned counsel for the petitioners/defendants contended that

the said application can be filed at any stage of the proceedings

and relied upon decision of the Hon'ble Apex Court in a case of

Patil Automation Private Ltd and Others vs Rakheja

Engineers Private Ltd 1, in which it was held that the power

under Order 7 Rule 11 is available to the Court to be exercised

Suo motu, as such the contention of the respondents/plaintiffs

regarding maintainability is not tenable. The counsel for the

petitioners/defendants further contended that as per Section 34

of the Specific Relief Act, relief of possession is not asked for

and thus, the suit is barred under law of Specific Performance

Act. They relied upon decision of the Hon'ble Apex Court in a

case of Anathula Sudhakar vs P. Buchi Reddy (Dead) by Lrs

and Others 2 in which it was clearly stated that suit was filed

only for declaration and the relief of possession was not sought

for, as such suit is barred by limitation. It is further contended

by the petitioners/defendants that as per the terms of the

agreement of sale cum GPA, upon payment of sale consideration

2022(10) SCC Para 94.3

AIR 2008 SC 2033

possession of the property has been delivered to the defendants.

This clearly proves that the GPA is coupled with interest, as

such Section 202 of contract Act is applicable to the facts of the

case. Plaintiffs have no authority to cancel the GPA unilaterally.

Plaintiffs stated that out of balance sale consideration of

Rs.3,66,00,000/- only Rs.60,00,000/- was paid by the

defendants, as such they terminated the GPA given to the

defendants by issuing notice of termination through registered

post. Therefore, defendants are no more their attorneys and

they are not authorized to act as attorneys. Plaintiffs have no

right or interest to cancel GPA as it is proposed with interest

and the cancellation of the GPA through notice is barred under

Section 2 of the Contract Act.

12. The contention of the petitioners/defendants is basing on

the agreement of sale cum GPA. As registered sale deeds were

executed, it can be cancelled only by registered cancellation

deeds, but not by issuance of notice. The cancellation is not as

per law and the present suit is against law and against Specific

Relief Act. They relied upon the decisions of Hon'ble Apex Court

in Chandrama Singh & Others vs Mirza Anis Ahmad 3 and

2011 SCC Online All 528

also on Mahesh Pakhare vs A.S. Gopal & Others 4. It is

further contended that plaintiffs are not party to the documents

and they could not simply ask for relief of declaration and they

have to seek the relief of cancellation of the sale deed as per the

decision of the Hon'ble Apex Court in the case of Hussain

Ahmed Chowdry and others vs Habibur Rahman 5, in which

it was held as follows:-

"29. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed under Section 31 of the Act, 1963. But if a non-executant seeks annulment of a deed, he has to only seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him.

The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and B' - two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and non est/ illegal and he is not bound by it. Admittedly, the Plaintiff being executant of the sale deed has to necessarily file a suit for cancellation of the sale deed, therefore, the suit for declaration is barred under the law of Specific relief act."

13. It was further contended that the main intention of the

plaintiff to file the suit is to declare them as owners, as such

2011 SCC Online AP 925

(2025) SCC Online SC 892

plaintiffs ought to have filed suit for cancellation of the sale

deeds but not for declaration. In this regard,

petitioners/defendants relied upon the very same Judgment as

stated above in Hussain Ahmed (supra), in which it was held

as follows:

"33. In fact, it is logically impossible for a person who is not a party to document or to a decree to ask for its cancellation. This is clearly explained by Wadsworth, J., in the decision rendered in Vellaya Konar (Died) & Anr. v. Ramaswami Konar & Anr., reported 1939 SCC OnLine Mad 149, thus: "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 declaration. But when he is seeking to establish a title and finds himself threatened by a 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."

14. Learned Counsel for petitioners/defendants further

contended that the suit was filed by creating non-existing cause

of action. Plaintiffs have created a cause of action by allegedly

cancelling the agreement of sale cum GPA by issuing notice,

which is per se illegal as a registered document can be cancelled

by registered document only. As such issuing notice, created a

cause of action for filing the suit is not tenable under law. That

apart, plaintiffs have admitted the execution of agreement of

sale cum GPA, as such they cannot cancel only GPA and keep

the agreement of sale subsisting, thus by cancelling the GPA by

issuance of notice, created a false cause of action. The entire

document of agreement of sale cum GPA has not been

cancelled, thereby, suit was filed by clever drafting without

seeking the foundation relief of cancelling the agreement of sale

cum GPA and thus the plaint is liable to be rejected.

15. Admittedly, plaintiffs executed agreement of sale cum GPA

and later cancelled the GPA unilaterally. As per the terms of the

agreement of sale cum GPA, possession of the suit schedule

property was already handed over to the petitioners/defendants

and they are enjoying the same, as such respondents/plaintiffs

ought to have filed suit for cancellation of the agreement of sale

cum GPA and also for delivery of possession. Even though the

suit is decreed, as there is no relief of delivery of possession, it

cannot be enforced. Petitioners/defendants further stated that

there is no document to prove that the agreement is renewed

and there is no declaration by a Court that agreement stood

renewed automatically on exercise of option for renewal by the

petitioners/defendants. The basis for claiming the relief of

injunction is a subsistence of renewed agreement. As they filed

suit for injunction without claiming declaration as to their

subsisting rights under a renewed agreement, the suit is barred

by limitation. Perusal of the plaint clearly shows that it was a

clever drafting without seeking relief of recovery of possession

and cancellation of agreement of sale cum GPA. Moreover, GPA

is not cancelled as per provisions of law under Section 31 of

Specific Relief Act, as such plaintiffs could not avail the remedy

against the sale deeds. Therefore, the trial Court erred in

dismissing the application.

16. In the result, the present Civil Revision Petition is allowed

by setting aside the Order of the trial Court dated 07.03.2025

passed in I.A.No.2827 of 2024 in O.S.No.53 of 2017. There shall

be no order as to costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATE: 30.04.2025 tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

CIVIL REVISION PETITION No.983 of 2025

DATE: 30.04.2025

TRI