Telangana High Court

P.Ramanadham vs Smt.V.Sumathi on 2 May, 2025

     THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

          CITY CIVIL COURT APPEAL No.359 OF 2019

JUDGMENT:

This is an appeal filed by the appellants, being aggrieved by

the judgment and decree, dated 17.04.2019 passed in O.S.No.201

of 2014 by the learned XXVII Additional Chief Judge, City Civil

Court, Secunderabad (for short "the trial Court").

2. The appellant herein is the plaintiff and the respondent is

the defendant before the trial Court. The parties herein are

referred to as they were arrayed in the suit before the trial Court

for the sake of convenience and clarity.

3. The case of the plaintiff is the he is the absolute owner of

the suit schedule property i.e. residential house consisting of

ground floor + two upper floors of house bearing No.1-3-302 (old

No.287) admeasuring 1245 sq.feet constructed on plot

admeasuring 66.08 Sq.yards or 55.25 Sq.Meters situated at

Comsary Bazar, Bowenpally, Secunderabad, having purchased

the same from the defendant through a registered sale deed

bearing document No.1469 of 2013 dated 16.09.2013. It is his

case that originally the defendant being the absolute owner and

possessor of the suit schedule property offered to sell the same to ETD,J CCCA No.359_2019

the plaintiff for a consideration of Rs.14,12,000/- and that the

plaintiff agreed to purchase the same and thus paid an amount of

Rs.14,07,000/- out of the total sale consideration of

Rs.14,12,000/- and that the defendant has executed a registered

agreement of sale -cum - GPA vide document No.1487 of 2010,

dated 22.07.2010 in favour of the plaintiff having received the said

advance amount and also delivered the constructive possession of

the suit schedule property and that the balance sale consideration

of Rs.5,000/- was also paid by the plaintiff and that the defendant

has also acknowledged the same by issuing the receipt. It is his

case that while executing the agreement of sale - cum - GPA the

defendant has agreed to vacate the suit schedule property and

gave it in writing and also that he would get the tenants

occupying the other portions in the suit schedule property to

vacate the premises within a period of six months. It is his

further case that the defendant has undertaken to pay a fixed

amount of Rs.20,000/- per month towards the rent of suit

schedule property until the same is vacated. Thus, the plaintiff is

entitled for rent @ Rs.20,000/- per month from 22.01.2011 and

that the defendant did not pay the agreed rent per month. The

plaintiff has further averred that exercising his authority granted

by the defendant in his favour under registered agreement of Sale

- cum - General Power of Attorney, he got executed the registered ETD,J CCCA No.359_2019

sale deed bearing document No.1469 of 2013 dated 16.09.2013 in

favour of himself, thereby transferring the title of the suit

schedule property in his favour and has also informed the

defendant about the same. It is his case that on 18.09.2013 he

received a legal notice from the defendant contending that the

plaintiff has not paid any sale consideration under the registered

agreement of Sale-cum-GPA, thereafter, the plaintiff issued a reply

notice denying the averments in the said notice issued by the

defendant and asked the defendant to vacate the suit schedule

property within a period of one month from the date of receipt of

the reply notice. But that the defendant has not chosen to vacate

the suit schedule property. Thus, the defendant is liable to pay a

sum of Rs.7,60,000/- to the plaintiff towards unpaid rents from

22.01.2011 to 21.03.2014 and also is liable to pay the mesne

profits @ Rs.20,000/- from the date of suit till vacating the suit

premises. Thus, he filed a suit with the said prayer.

4. The defendant has filed his written statement denying the

averments in the plaint and contended that no consideration has

been passed to the defendant and that she has not issued any

receipt in favour of plaintiff. It is further contended that the

defendant is not liable to pay any mesne profits @ Rs.20,000/-

ETD,J CCCA No.359_2019

and that the plaintiff is not entitled to take possession of suit

schedule property and recover any rents from the defendants.

5. Based on the above pleadings, the trial Court has framed

the following issues for trial:

"1) Whether the plaintiff is entitled for delivery of possession of suit schedule property?

2) Whether the plaintiff is entitled for recovery of an amount of Rs.7,60,000/- as arrears of rent?

3) Whether the plaintiff is entitled for future mesne profits as prayed for?

4) To what relief?"

6. At the time of trial, plaintiff got examined as PW1 and

Exs.A1 to A10 were marked. On behalf of the defendant, DW1

was examined but no documents were marked.

7. Based on the evidence on record, the trial Court has

dismissed the suit. Aggrieved by the said judgment and decree,

the present appeal is filed.

8. Heard the submissions of both the counsel.

9. The learned appellant counsel has submitted that the

plaintiff is the absolute owner of the suit schedule property and

that the trial Court has failed to appreciate the same. His

contention is that by virtue of agreement of sale-cum-general

power of attorney, dated 22.07.2010 he has absolute power to sell ETD,J CCCA No.359_2019

the property and thus, he has executed a sale deed in his own

favour and thus, he became the absolute owner of the suit

schedule property. He further argued that the trial Court failed to

appreciate the evidence on record with respect to the agreement of

sale and also the sale deed executed in favour of the plaintiff. He

further contended that the trial Court ought to have decreed the

suit by observing the fact that the defendant failed to vacate the

suit premises in spite of entering into an agreement with the

plaintiff. He further argued that the trial Court failed to

appreciate the evidence in a proper perspective and thus, failed to

decree his suit. He therefore, prayed to set aside the judgment

and decree of trial Court by allowing this appeal.

10. The learned respondent, on the other hand, has argued that

the suit filed by the plaintiff is without any basis and that without

there being any title in his favour, he is claiming to be the owner

of the suit schedule premises and that he contended that he has

denied the title of the plaintiff in his written statement and it was

the duty of the plaintiff to file a suit for declaration of title but he

failed to do so. He further argued that in the absence of any title

in his favour the plaintiff cannot claim to be the owner and cannot

claim any rents or mesne profits from the defendants, therefore he ETD,J CCCA No.359_2019

has no right to get the suit premises to be vacated. Hence, he

prayed to dismiss the appeal.

11. Based on the above rival submissions, this Court frames the

following points for consideration:

1) Whether the plaintiff is entitled for delivery of possession and for recovery of arrears of rent?

2) Whether the plaintiff is entitled for future mesne profits?

3) Whether the judgment and decree of the trial Court is sustainable in law and under the facts?

4) To what relief?

12. POINT NOs.1 AND 2:

a) To claim delivery of possession and recovery of arrears of

rent, the plaintiff has to prove in the first instance his entitlement

to recover the same. The plaintiff has filed Exs.A1 to A10. A

perusal of Ex.A1 reveals that it is a sale deed bearing document

No.1469 of 2013 dated 16.03.2013 wherein the vendor is one

V.Sumathi represented by her GPA holder P.Ramanadham,

executed in favour of Sri P.Ramanadham. The contents of the

said sale deed at clause No.E shows that the schedule property

was agreed to be sold for a consideration of Rs.14,12,000/- and

that an amount of Rs.14,07,000/- was received and that the ETD,J CCCA No.359_2019

vendor has executed a registered AGPA with possession in favour

of the vendee vide document No.1180 of 2010 and at clause G it is

mentioned that pursuant to the said registered AGPA, the vendee

acting for and on behalf of the vendor is executing the sale deed

favouring himself conveying the schedule property. A perusal of

the signatures reveals that one P.Ramanadham signed for the

vendor as well as vendee. Ex.A2 is the certified copy of registered

agreement of sale-cum-GPA with possession bearing document

No.1185 of 2010 in favor of Sri P.Ramanatham. A perusal of the

schedule annexed to the sale deed also shows the vendor's name

as V.Sumathi executed through its GPA holder

Mr.P.Ramanadham. The contents of the said document reveal

that in pursuance of the said agreement, the vendee/attorney

holder has paid Rs.14,07000/- as advance amount out of the total

sale consideration of Rs.14,12,000/- and that the vendor has

accepted the same and it also bears both the signatures of

Sumathi and Ramanadham. One of the clause in the said

agreement further shows that the attorney holder is empowered to

execute on behalf of the vendor any agreement of sale, sale deed,

receipts of payment to the prospective purchasers. Ex.A3 is an

MOU. The contents show that the first party i.e. Sumathi agreed

to vacate the suit schedule property and get the tenants vacated

within a period of six months and deliver the possession thereon ETD,J CCCA No.359_2019

to the second party ie. P.Ramanadham and it is also agreed to pay

an amount of Rs.20,000/- towards rent of suit schedule property

until the same is vacated, payable by 10th of successive month.

b) In the cross examination of PW1 it is elicited that he knows

the defendant through her husband and he admitted that one

Uma Maheshwar Rao came to him on 22.07.2010 i.e. on the date

of registration of AGPA and that he has taken the original

documents from the defendant. It is elicited from him that he has

not obtained cash receipt for Rs.8,47,000/- from the defendant.

He further admitted that as per Ex.A2/the registered AGPA, the

possession was delivered. A perusal of Ex.A2 reveals that

constructive possession is delivered. He further admitted that the

present suit is filed for delivery of possession and for rents. If at

all the contents of Ex.A2 are true, then the plaintiff must have

been already put in possession, then the question of filing a suit

for delivery of possession does not arise. He admitted that from

the date of Ex.A2 he is not in possession of the suit schedule

property and he further admitted that he filed an application

before the Legal Services Authority at City Civil Court for

settlement of this case and that before DLSA he mentioned that

he purchased the property for Rs.14,07,000/-. He has further

stated that he has not issued any legal notice to the defendant for ETD,J CCCA No.359_2019

payment of rent or for eviction till the year 2014. He further

admitted that Ex.A1 sale deed was obtained by him in his name

pursuant to Ex.A2 and also in Ex.A1 he himself is the vendor and

also vendee and that he has not given any prior notice to the

defendant while executing Ex.A1.

c) It is elicited from DW1 in her cross examination that her

husband has taken her to Dilsukhnagar around 8 to 9 year ago

and that she met the plaintiff for the first time and that her

husband obtained signatures on a paper on which a revenue

stamp was affixed and she does not know the contents of the

document and DW1 has admitted her signatures on Exs.A2, A3

and A10.

d) The contention of the appellant counsel is that when the

defendant has admitted her signature on Exs.A2, A3 and A10, his

contention is proved that the GPA has been executed by the

defendant and also that a Memorandum of Understanding has

been entered between the two parties and he further contends

that the cash receipt under Ex.A10 stands proved. Though DW1

has admitted her signature in Ex.A2, i.e. execution of AGPA in

favour of the plaintiff, the contents therein reveal that he is

empowered to execute on behalf of the vendor, any agreement of

sale, sale deed, receipts of payment to the prospective purchasers ETD,J CCCA No.359_2019

but here the plaintiff has produced Ex.A1 saying that he has the

capacity to transfer the property in to his own name because he

holds the GPA executed by the defendant. The sale by a person in

his own favour is unknown to law.

e) A perusal of Ex.A1 reveals the fact that the plaintiff herein

has executed a sale deed in his own favour by acting as a GPA

holder of the defendant. Thus, he says that by virtue of Ex.A1 he

has become the owner of the property, thus he claims delivery of

possession.

f) A perusal of Ex.A2 reveals that the constructive possession

is delivered to the plaintiff. If that is the case there will not be any

necessity for the plaintiff to claim delivery of possession again. A

perusal of the oral evidence reveals that the defendant is a house

wife and she is not aware of the dealings with regard to any real

estate or any business transaction. Thus, she has time and again

stated in her evidence that her husband knows about the

transactions but she does not know anything. It is further elicited

from her that her husband has taken her to a place at

Dilsukhnagar and that her signatures were obtained on a stamp

paper, therefore, mere admission of the defendant on the said

documents do not entitle the plaintiff to prove the genuinity of

Ex.A1. When the genuineness of Ex.A1 is under a cloud, this ETD,J CCCA No.359_2019

Court cannot hold that the plaintiff is entitled to delivery of

possession from the defendant and further it cannot be held that

the plaintiff can recover arrears of rent from the defendant.

g) The learned appellant counsel has relied upon a judgment

of the Hon'ble Supreme Court in Shakeel Ahmed v. Syed

Akhlaq Hussain 1, wherein it was held that the unregistered

agreement to sell by itself is a document which is not enforceable

in law. However, its only admissibility would be for collateral

purposes and not for claiming any rights thereunder of ownership

in a Court of law. Though the appellant counsel has relied upon

this decision, it does not aid the case of the appellant in any way.

In the absence of any genuine registered document in his favour,

he cannot claim to be the owner of the property, nor he can claim

any possession of the property.

h) The learned respondent counsel relied upon a case in

Anathula Sudhakar vs. P.Buchi Reddy 2, wherein it was held

that if two persons claimed to be in possession of the vacant site,

one who is able to establish title thereto will be considered to be in

possession, as against the person who is not able to establish

title. In the present case, the plaintiff failed to establish his title,

2023 INSC 1016

MANU/SC/7376/2008 ETD,J CCCA No.359_2019

in fact he failed to claim declaration of title while the defendant is

in possession of the suit schedule property. Therefore, it can be

safely held that the plaintiff does not succeed to claim recovery of

possession in the absence of any title while the defendant is in

possession of the suit schedule property.

i) The learned respondent counsel further relied upon a case

in Daggubati Ranganayakulu v. Polini Venkata Subbaiah

and others 3, wherein it was held that a suit for mere possession

can be successfully pursued, if only there does not exist any

dispute as to the title, or prior possession recognized by law. If

there is any cloud on the title, vis-à-vis the property sought to be

recovered, it becomes difficult for the court to grant relief, and the

controversy would drift into the one of declaration of title. Any

failure, in this regard, is prone to have its own effect, upon the

permissibility of granting the relief of mere recovery of possession.

The said ratio squarely applies to the present case, wherein there

is a cloud on title of the plaintiff, he failed to claim any declaration

of title and in the absence of any title he cannot seek recovery of

possession.

MANU/AP/0551/2007 ETD,J CCCA No.359_2019

j) The defendant has denied the averments of the plaint in

clear terms in her written statement and further has stated that

the defendant is the owner of the suit schedule property and has

denied to have executed all the documents and receipts as alleged

in the plaint. When such a denial was there in the written

statement, it was the duty of the plaintiff to amend his suit for

declaration of title, which is not done. Instead of filing a suit for

declaration of title, he filed a suit for recovery of possession.

Further his own document goes against him, the genuinity of

Ex.A1 is under question, if at all possession was delivered under

Ex.A2 the question of seeking for delivery of possession does not

arise. Thus, it is held that the plaintiff could not prove his case.

Therefore, he is not entitled to seek delivery of possession, arrears

of rents or future mesne profits from the defendant. Point Nos.1

and 2 are answered accordingly.

13. POINT NO.3:

In view of the reasoned findings arrived at point Nos.1 and

2, it is held that the judgment and decree passed by the trial

Court are found to be well reasoned and hence, they are held to

be sustainable in law and under the facts and circumstances of

the case.

ETD,J CCCA No.359_2019

14. POINT NO.4:

In the result, the appeal is dismissed upholding the

judgment and decree, dated 17.04.2019 passed in O.S.No.201 of

2014 by the learned XXVII Additional Chief Judge, City Civil

Court, Secunderabad. No costs.