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2014 DIGILAW 877 (AP)

V. Chandramohan v. J. Venkatagopal

2014-07-15

L.NARASIMHA REDDY

body2014
Judgment The 1st respondent filed O.S.No.111 of 2005 in the Court of XII Senior Civil Judge, City Civil Court, Secunderabad, against the appellant (defendant No.1), and respondents 2 and 3 for the relief of declaration of title and recovery of possession of the suit schedule property, being an apartment in the Prakashnagar Area of Secunderabad. Relief of execution of sale deed in respect of the property and re-registration thereof was also claimed. The trial Court decreed the suit through judgment dated 10-12-2009. Aggrieved by that, the 1st defendant filed A.S.No.24 of 2010, in the Court of XXVII Additional Chief Judge, City Civil Court, Hyderabad. The appeal was dismissed through judgment dated 07-02-2014. Hence, this Second Appeal. For the sake of convenience, the parties are referred to, as arrayed in the suit. Briefly stated the contents of the plaint are that the 1st defendant and defendants 2 and 3 constructed independent portions in the premises bearing No.1-8-702 (50/2 RT), admeasuring 166.6 sq.yards, at Prakashnagar, and offered to sell them. The plaintiff stated that he paid the installments for the suit schedule property, aggregating to Rs.2,94,000/- and a sale deed was executed by the G.P.A., i.e. 1st defendant, on behalf of defendants 2 and 3. He further pleaded that since the work was incomplete on certain aspects, he handed over the key to the defendants, since he was residing in U.S. The defendants were said to have been paying rents @ Rs.4,000/-per month to the plaintiff, but when there was irregularity in payment, and when the plaintiff came to know that the 1st defendant is making attempt to sell the property, he made an attempt to secure encumbrance certificate, which, in turn, revealed that the sale deed in favour of the plaintiff was cancelled by the defendants. Elaborating further, he prayed for the relief of declaration of title, recovery of possession, re-registration of the property. Defendants 2 and 3 remained ex parte. The suit was contested by the 1st defendant alone, i.e. present appellant. His case was that the plaintiff contacted him through one, R.S.Murthy and taking advantage of the acquaintance, the plaintiff insisted that a sale deed in respect of the suit schedule property be executed in his favour, to enable him to raise loans and believing him, that he executed sale deed on 22-08-2001. His case was that the plaintiff contacted him through one, R.S.Murthy and taking advantage of the acquaintance, the plaintiff insisted that a sale deed in respect of the suit schedule property be executed in his favour, to enable him to raise loans and believing him, that he executed sale deed on 22-08-2001. It was stated that the sale deed was never intended to be acted upon and the possession of the premises was never delivered to the plaintiff. Sri B. Vijaysen Reddy, learned counsel for the appellant submits that the trial Court has misread the evidence on record and did not take into account, the circumstances under which, the sale deed, Ex.A-1, came to be executed. He submits that the plaintiff was never in possession of the property and Ex.A-1 was only a nominal document. It is also his case that the lower Appellate Court did not appreciate the matter from the correct perspective. Sri V. Hariharan, learned counsel for the respondents, on the other hand, submits that the very fact that the actual owners of the property, who executed the sale deed, viz., defendants 2 and 3, did not contest the matter, discloses that the 1st defendant was not fair in his dealings. He contends that being the GPA, the 1st defendant cannot claim greater interest than his principals. He further submits that once a sale deed is executed in accordance with law, the title in respect of the property stands transferred and a party to the document cannot deny its contents. He further submits that in case the consideration in any sale deed is due, the only course open to the concerned party is to seek remedy under Section 55 of the Transfer of Property Act (for short ‘the Act’) and not to dispute the sale deed itself. As observed earlier, the suit was filed by the sole plaintiff against defendants 1 to 3. The 1st defendant alone contested the suit. On the basis of the pleadings before it, the trial Court framed the following issues for its consideration: 1. Whether the plaintiff is the absolute owner of the suit schedule property? 2. Whether the plaintiff is entitled for vacant possession of the suit schedule property from the defendants? The plaintiff deposed as PW-1 and he filed Exs.A-1 to A-5. The 1st defendant deposed as DW-1 and he filed Exs.B-1 and B-2. Whether the plaintiff is the absolute owner of the suit schedule property? 2. Whether the plaintiff is entitled for vacant possession of the suit schedule property from the defendants? The plaintiff deposed as PW-1 and he filed Exs.A-1 to A-5. The 1st defendant deposed as DW-1 and he filed Exs.B-1 and B-2. The suit was decreed and in A.S.No.24 of 2010, the lower Appellate Court framed only one point for its consideration, viz., whether the judgment and decree of the trial Court is sustainable in facts and law, and the appeal was dismissed. The 1st defendant is not the owner of the property. It was defendants 2 and 3, that have executed Ex.A-1. The participation of the 1st defendant is only in his capacity as GPA of defendants 2 and 3. Even the 1st defendant did not dispute the execution of the sale deed. His contention is that the sale deed was executed on a nominal basis at the request of the plaintiff, to enable him to raise the loans. It is too broad or general a plea, to be countenanced. Neither the plaintiff was proved to be a person in need of money, nor the 1st defendant proved himself, to be a Good Samaritan, waiting for the opportunity to help others, without expecting anything in return. It has already been observed that 1st defendant was not the owner of the property. The plea of the plaintiff, that, being a resident of United States, he left the keys with the defendants for completion of the left over works in the premises; was not even rebutted by defendants 2 and 3. The lack of bona fides on the part of the 1st defendant are evident from the fact that, he unilaterally executed the deed of cancellation of the sale deed, Ex.A-1. It was strongly argued on behalf of the 1st defendant that the plaintiff did not pay any consideration at all, under Ex.A-1. This runs contrary to the recitals in Ex.A-1. It is fairly established principle that no oral evidence can be adduced, to rebut the contents of a document. Exception, if at all, can be in cases where the very execution of the document is disputed. Sections 91 and 92 of the Evidence Act get attracted in situations of this nature. This runs contrary to the recitals in Ex.A-1. It is fairly established principle that no oral evidence can be adduced, to rebut the contents of a document. Exception, if at all, can be in cases where the very execution of the document is disputed. Sections 91 and 92 of the Evidence Act get attracted in situations of this nature. Assuming that there is any pigment of truth in the contention of the 1st defendant, that the consideration mentioned in Ex.A-1, or part of it remained unpaid, the only course open to him was to pursue the remedy under Section 55 of the Act. Being a party to the sale deed, he cannot dispute the transaction. The trial Court and the lower Appellate Court have taken the correct view of the matter. No substantial question of law arises for consideration in this Second Appeal. It is accordingly dismissed. There shall be no order as to costs.