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2015 DIGILAW 69 (AP)

Pachi Pala Dora Swamy v. G. Maharshi

2015-02-11

S.RAVI KUMAR

body2015
Judgment 1. These three appeals are preferred against common judgment dated 23-12-2010 in A.S.Nos.9, 8 & 7 of 2009 on the file of V Additional District & Sessions Judge, Medak at Sanga Reddy wherein common judgment dated 05-12-2008 in O.S.No.588/2002, O.S.No.587/2002 & O.S.No.127/2003 was confirmed. 2. Appellant herein filed O.S.No.127/2003 & O.S.No.588/2002 for the reliefs that registered sale deed dated 24-06-2002 i.e., document No.3815/2002 is null and void and to restrain the respondent herein by way of permanent injunction. Respondents herein filed O.S.No.587/2002 to declare the cancellation deed dated 11-09-2002 under document No.5877/2002 as null and void, to direct District Registrar (Registering Authority), Sanga Reddy, Medak, to cancel the cancellation dated 11-09-2002 under Document No.5877/2002 and a perpetual injunction restraining the appellant herein from interfering with respondent’s peaceful possession and enjoyment of suit schedule property. 3. All the three suits are clubbed and joint trial was conducted and evidence was recorded in O.S.No.587/2002. On behalf of respondent herein, P.Ws.1 to 3 are examined and documents Exs.A1 to A13 are marked and on behalf of appellant herein D.Ws.1 to 5 are examined and documents Exs.B1 to B49 are marked. On a over all consideration of oral and documentary evidence, trial Court decreed O.S.No.587/2002 filed by respondents herein and dismissed the suits in O.S.No.588/2002 & O.S.No.127/2003 filed by appellant herein. Aggrieved by the dismissal of these three suits, the appellant herein filed A.S.No.7/2009 against judgment in O.S.No.127/2003, A.S.No.8/2009 against judgment in O.S.No.587/2002 & A.S.No.9/2009 against judgment in O.S.No.588/2002 and the appellate Court by a common judgment dated 23-12-2010 dismissed all the appeals. Aggrieved by which, these second appeals i.e., S.A.No.729/2011 against judgment in A.S.No.9/2009, S.A.No.753/2011 against judgment in A.S.No.8/2009 & S.A.No.767/2011 against judgment in A.S.No.7 of 2009 are preferred 4. The Parties are hereinafter referred to as arrayed in these appeals for convenience sake. 5. Contentions of both parties in brief are as follows:- 6. According to appellant, he purchased suit property from one P. Madhav Reddy through a registered sale deed dated 25-04-2002 and he was in possession and enjoyment of the said property. Appellant had acquaintance with the respondent since six years prior to the suit as he is in the advertising field, whereas the respondent herein is a movie artist. According to appellant, he purchased suit property from one P. Madhav Reddy through a registered sale deed dated 25-04-2002 and he was in possession and enjoyment of the said property. Appellant had acquaintance with the respondent since six years prior to the suit as he is in the advertising field, whereas the respondent herein is a movie artist. According to appellant, the respondent gained total confidence of the appellant and his wife and made them to believe that the differences between appellant and his wife are due to the schedule property, which is not in accordance with Vastu and convinced them that the schedule property should be sold. The appellant was not interested to sell the property as it was purchased for his personal benefit. Respondent was also present at the time of negotiations with the vendor of the appellant and he is well aware of the fact that it was purchased for a sum of Rs.12,00,000/- and the sale deed was made for Rs.87,000/- only. According to appellant, there was an agreement between himself and the respondent for sale of the property, according to which, the respondent agreed to pay Rs.12,00,000/- within one month from the date of registration and due to the confidence on the respondent, the appellant executed sale deed mentioning the sale consideration as Rs.81,000/-, but the appellant has not received a single pie from the respondent and as the respondent did not pay the sale consideration as agreed, the appellant executed a cancellation deed dated 11-09-2000 under document No.5877/2002, but as he was advised that he should seek for cancellation of the sale deed dated 24-06-2002 under document No.3815/2002, he filed O.S.No.588/2002. It is also contended by appellant though there was a recital in the sale deed as to delivery of possession, no such delivery is effected and as the respondent is contemplating to make a feasible entry on the basis of sale deed, he filed the suit for injunction in O.S.No.127/2003. It is also contended by appellant though there was a recital in the sale deed as to delivery of possession, no such delivery is effected and as the respondent is contemplating to make a feasible entry on the basis of sale deed, he filed the suit for injunction in O.S.No.127/2003. On the other hand, according to respondent, the appellant approached him and offered to sell the suit schedule property as the appellant was in need of money for his business purpose and he paid full sale consideration that was referred in the sale deed and the appellant, after receiving the sale consideration, executed sale deed dated 24-06-2002 before the District Registrar, Medak at Sanga Reddy and delivered possession also and since then, he has been enjoying the same as absolute owner without any interruption. According to respondent, the appellant with a malafide intention gave a police complaint to Banjara Hills Police contending that the sale consideration was Rs.12,00,000/- and that the respondent has not paid the said sum to the appellant and thereafter, unilaterally executed cancellation deed on 11-09-2002 under Document No.5877/2002, therefore, he is constrained to seek a declaratory relief of cancellation of document No.5877/2002 and necessary changes in the records of District Registrar, Medak, Sanga Reddy and for permanent injunction as the appellant tried to interfere with the peaceful possession and enjoyment of the schedule property. 7. Heard arguments. 8. Advocate for appellant vehemently argued that it is a clear case of fraud played by respondent herein in obtaining a sale deed from appellant. He further argued that the trial Court and the appellate Court failed to consider oral evidence that was adduced on behalf of the appellant on the ground the same is not permissible as per Section 91 of Indian Evidence Act in view of available documentary evidence. He submitted that when the appellant specifically contended that the terms of the sale deed are not actually intended and the sale consideration as mentioned in the sale deed is not the correct figure so also in respect of recitals of delivery of possession, the appellant produced oral evidence to prove those allegations, but the trial Court and appellate Court failed to consider that oral evidence on the ground that such oral evidence is not permissible in view of Section 91 of Evidence Act. He submitted that findings of trial Court and appellate Court on this aspect is incorrect, therefore, those findings have to be termed as perverse. 9. He further submitted that the appellant has produced a tape recorder conversation, wherein the respondent herein admitted about non-payment of sale consideration etc., and that the cassette is marked as Ex.B48. He submitted that the respondent herein refused to give his sample voice for the purpose of comparison by an expert and on account of his refusal, both the Courts ought to have drawn adverse inference against respondent herein with regard to Ex.B48-cassette, but both the Courts, instead of drawing an adverse inference, gave a finding that the appellant failed to prove the contents of Ex.B48 and this finding is also perverse, therefore, the second appeals are to be allowed. He further submitted that it is a fit case to remand back the cases to the Court below for re-appreciating the oral evidence and to consider the plea of adverse inference or to send the cassette to any laboratory for voice test, for that appellant prayed for a remand. 10. Advocate for respondent submitted that both trial Court and appellate Court have elaborately discussed each and every point urged on behalf of both parties and there are absolutely, no grounds to interfere with the concurrent findings. He submitted though Advocate for appellant contended that there was fraud and misrepresentation, there is no evidence to support the said contention. He further submitted that even in the pleadings also, except making a vague allegation of fraud and misrepresentation, no details are given for the alleged fraud and misrepresentation. He submitted from a reading of the entire pleadings and evidence of the appellant, it is only a case of unpaid sale consideration, which is contra to the material on record. He submitted that it is well established law, without pleadings a party cannot be allowed to let in evidence and when there is no plea as required under Order VI Rule 4 CPC with regard to fraud and misrepresentation, a party is not entitled to let in evidence. He submitted that it is well established law, without pleadings a party cannot be allowed to let in evidence and when there is no plea as required under Order VI Rule 4 CPC with regard to fraud and misrepresentation, a party is not entitled to let in evidence. He further submitted that when a tape recorder evidence is pleaded, the burden is on the person, who pleads it to prima facie prove about recording of such cassette and also about the voice of the persons, but in this case, no such evidence is produced and therefore, the contention that an adverse inference has to be drawn is not tenable. He further submitted that according to appellant, this cassette was recorded in the car of appellant and his driver is examined as D.W.4, but he did not speak anything with regard to the instrument with which it was recorded and so also with regard to voices of the persons and therefore, when the appellant failed to show prima facie requirements, both the Courts rightly ignored it and there are absolutely no incorrect findings in the judgments of the Courts below. He further submitted that trial Court also considered the evidence of D.Ws.3 & 5 and therefore, the objection that the oral evidence is discarded by the trial Court and appellate Court on the ground of inadmissibility as per Section 91 of Evidence Act is incorrect. He submitted that there is absolutely no ground to interfere with the concurrent findings and there is no substantial question of law involved in these second appeals and all the appeals are liable to be dismissed. 11. This Court admitted the second appeal treating the following grounds as substantial question of law which are as follows:- “1. Whether the Courts below by misreading the evidence on record as non reading of total evidence have committed error? 2. Whether the Courts below by giving perverse findings did not arrive at the conclusion? 3. Whether mere mention of payment of the sale consideration in a sale deed is sufficient to believe that the sale consideration is in fact paid when there is no other supportive or corroborate evidence on record? 4. 2. Whether the Courts below by giving perverse findings did not arrive at the conclusion? 3. Whether mere mention of payment of the sale consideration in a sale deed is sufficient to believe that the sale consideration is in fact paid when there is no other supportive or corroborate evidence on record? 4. Whether the Courts below can take judicial notice of the fact that the sale consideration mentioned in the sale deed, dated 24.06.2002 is less than the value for which the vendor has purchased the sale property just two months before that under registered sale deed, dated 25.04.2002 to hold that the sale is nominal one and no consideration is passed on to the vendor? 5. Whether a sale deed cannot be cancelled by a vendor unilaterally?” 12. Now the point that would rise for my consideration in these appeals are (1) Whether there are any preserve findings in the judgments of the trial Court and appellate Court, which can be treated as substantial question of law, (2) Whether there are any grounds to remand the case for a reconsideration and (3) To what relief? 13. Point No.1: According to appellant, the respondent herein made him to execute a sale deed on 24-06-2002 and that he has not received any amount from respondent. According to appellant, the respondent herein agreed to pay sale consideration of Rs.12,00,000/- within a month of registration, but he failed to fulfil his promise. 14. As already referred, the evidence is recorded in the suit filed by respondent herein. Out of three witnesses examined on behalf of respondent, P.W.1 is the respondent himself, one Sri Ram Murthy is examined as P.W.2 to prove that the respondent herein is in possession and enjoyment of the suit schedule property and this P.W.2 is looking after land on behalf of respondent from 01-07-2002 on a monthly wage of Rs.750/-. One Chennupati Subba Rao is examined as P.W.3 to prove that respondent herein is in possession and enjoyment of the suit land from 24-06-2002. On behalf of appellant, five witnesses are examined and the appellant himself is examined is D.W.1. P. Eedaiah is examined as D.W.2 to support the contention of appellant that he is in possession of the land even after execution of sale deed in favour of the respondent. On behalf of appellant, five witnesses are examined and the appellant himself is examined is D.W.1. P. Eedaiah is examined as D.W.2 to support the contention of appellant that he is in possession of the land even after execution of sale deed in favour of the respondent. One Ram Mohan Reddy is examined as D.W.3 to prove that actual sale consideration agreed between the appellant and respondent was Rs.12,00,000/-. One L. Venkateshwarlu is examined as D.W.4 who was driver under the appellant to speak about tape recorder. One P. Krishna Reddy was the vendor of the appellant and he is examined as D.W.5. According to appellant’s counsel, both trial Court and appellate Court have not considered the evidence of D.Ws.3 & 5 on the ground that oral evidence is not permissible when documentary evidence is available. But according to Advocate for respondent, the evidence of these two witnesses was considered, but not accepted, because of the recitals of the registered document. As seen from the judgment of the trial Court, learned trial Judge discussed about the evidence of D.W.3 and observed according to evidence of this witness he was present at the time appellant and respondent signing on Ex.A1 i.e., sale deed, and that no objection was raised by either of them. Trial Court also further observed that this D.W.3 had not seen the respondent herein paying any amount to the appellant. For these reasons, trial Court has not taken into consideration the evidence of D.W.3. So far as D.W.5 is concerned, he is the vendor of appellant and according to recitals of sale deed executed by D.W.5 in favour of the appellant, which is marked as Ex.B4, the sale consideration was only Rs.81,000/-, but this witness is examined to support the plea of defendant that actual sale consideration was Rs.12,00,000/-, but it was recited as Rs.81,000/- for the purpose of stamp duty which is contra to the recitals of document for that reason, the trial Court has not considered the evidence of this witness. As seen from the documents-Exs.A1 & B4, the time gap between these two documents is hardly two months, which means the appellant, within two months of his purchase, sold away this property to respondent herein. In both these documents, rate of the land per cent is one and the same. As seen from the documents-Exs.A1 & B4, the time gap between these two documents is hardly two months, which means the appellant, within two months of his purchase, sold away this property to respondent herein. In both these documents, rate of the land per cent is one and the same. When two registered documents confirmed a particular fact, any oral evidence contra to that established fact is inadmissible unless those recitals are on account of fraud or misrepresentation. Though Advocate for appellant vehemently contended that the respondent herein played fraud on the appellant in obtaining sale deed under Ex.A1, there is no specific pleading giving necessary details for alleged fraud or misrepresentation in the plaint. As rightly pointed out by Advocate for respondent as per Order VI Rule 4 CPC, it is incumbent on the plaintiff to give particulars like dates and fats necessary in respect of plea of fraud or misrepresentation. Under Order VI Rule 4, it is mandatory for the plaintiff to give particulars in respect of plea of fraud or misconduct with dates. It is not open to a party to introduce any particulars relating to plea of fraud or misconduct other than those pleaded in the plaint. Now it has to be seen what are the particulars that are given in the plaint with reference to alleged fraud or misrepresentation. A plain reading of the plaint would show except making a bald allegation that respondent herein played fraud on the appellant herein and made misrepresentation, no other details are given. According to appellant, after realising the fraud and misrepresentation, he has executed a cancellation deed, which is marked as Ex.B5. Even in the cancellation deed, there is absolutely no allegation of any fraud or misrepresentation. A reading of contents of Ex.B5 would only show that it is a case of non- payment of agreed sale consideration. 15. Advocate for appellant relied on the following decisions in Smt. Gangabai v. Smt. Chhabubai (AIR 1982 SUPREME COURT 20), R. Janakiraman v. State of Tamil Nadu, through CBI, SPE, Madras (2006 (2) ALT (Crl.) 62), Kaliaperumal v . A reading of contents of Ex.B5 would only show that it is a case of non- payment of agreed sale consideration. 15. Advocate for appellant relied on the following decisions in Smt. Gangabai v. Smt. Chhabubai (AIR 1982 SUPREME COURT 20), R. Janakiraman v. State of Tamil Nadu, through CBI, SPE, Madras (2006 (2) ALT (Crl.) 62), Kaliaperumal v . Rajagopaland another (2009 (4) SCJ 721) & Yerram Krishna Rao v. Muttamalla Narasamma (died) per L.R ( 2009 (2) Alt 631 (D.B.), to support his argument, that the trial Court and appellate Court were wrong in not considering the oral evidence adduced on behalf of the appellant on the ground that such evidence is prohibited under Section 92 of the Indian Evidence Act. But the purport of the above decisions is that oral evidence is admissible to show that the document between the parties was never intended to operate and some other agreement not recorded in the document was entered into and when recitals of the document are ambiguous surrounding circumstances, conduct of parties can be assessed from the oral evidence. The principle laid down in these decisions is not in dispute, but they cannot be applied to the case on hand for the simple reason that oral evidence of D.Ws.3 & 5 was considered but not accepted in view of the specific terms in the document. Therefore, the contention of the appellant that the findings of the trial Court and appellate Court have to be treated as perverse cannot be accepted. I have verified findings of the trial Court and appellate Court with reference to oral and documentary evidence of both parties and on such comparison, I am of the considered view that both the Courts have correctly appreciated evidence and the findings are based only on the basis of evidence and there is no perversity while appreciating the evidence or giving findings on the basis of such evidence. On a scrutiny of the material, I am of the view that findings of both the Courts are based on sound reasoning and there is absolutely no perversity in the findings of the Courts below. On a scrutiny of the material, I am of the view that findings of both the Courts are based on sound reasoning and there is absolutely no perversity in the findings of the Courts below. The trial Court by considering decisions of this Court, wherein it was held that a party cannot be permitted to plead that a consideration recited in a document is not the real consideration but more was paid, for the purpose of evading stamp duty, document was taken for a lesser amount, discarded the contention of appellant and I am of the view that trial Court was perfectly correct in doing so. 16. The other contention of the appellant is that tape recorder cassette-Ex.B48 was not considered by the Court below and both Courts failed in drawing adverse inference with regard to this document. According to appellant, the respondent participated in a shooting of Priyanka Tele Serial at Chandra Rajeshwara Rao Old Age Home, Kondapur on 06-08-2002 and that he got the conversation recorded in his car on that date. Respondent herein denied to have gone to Old Age Home for shooting of Priyanaka Tele Serial on 06-08-2002 and also denied of any such conversation that took place between himself and the appellant in the car. From the record, it appears that Ex.B48-audio cassette was played in the open Court at the time of cross-examination of respondent and that the respondent denied his voice in the cassette and contended that his voice was mimicked. D.W.4 driver of the appellant deposed as the appellant was not having sufficient proof regarding the undertaking given by the respondent, the appellant planned to record the voice of the respondent on tape and accordingly in August, 2002, a mike was arranged in the car for recording and on that day, the appellant and respondent went to Old Age Home at Kondapur and both of them sat in the car and their conversation was recorded in the car and that he had listen to the said tape, while returning back. From the evidence of this witness, it is clear that he was not physically present when the conversation took place in the car and that he only heard the cassette. Though this Ex.B48 was very much available in the Court, this was not played to D.W.4 during his evidence to identify the voice. From the evidence of this witness, it is clear that he was not physically present when the conversation took place in the car and that he only heard the cassette. Though this Ex.B48 was very much available in the Court, this was not played to D.W.4 during his evidence to identify the voice. Nowhere, D.W.4 stated that this Ex.B48 contains the voice of respondent herein. As seen from the record, an application was filed on behalf of the appellant to send Ex.B48-cassette to an Expert for identifying the voice and that application was dismissed by the trial Court and this Court in the revision, modified that order and directed the trial Court to send the cassette for expert opinion provided the respondent herein gives his sample voice for comparison voluntarily. According to material on record, the respondent did not give his voice on the ground that the appellant has not complied the prima facie requirement. Now the contention of the Advocate for appellant is since the respondent did not give his voice for comparison, an adverse inference has to be drawn against the respondent and the contents of Ex.B48-cassette are to be accepted. The trial Court, by considering a decision of Hon’ble Supreme Court in Yusfufalli Esmail Nagree v. The State of Maharashtra (AIR 1968 SUPREME COURT 147), wherein the Hon’ble Supreme Court observed that the time, place and accuracy of the recording, must be proved by competent witness besides identification of voices and only on such prima facie proof, the genuineness of cassette has to be dealt with. Here, D.W.4 who was examined to prove this Ex.B48 has not identified the voices of the individuals that were in Ex.B48-cassette and there is no prima facie proof of the time and accuracy of the recording and also the details of the instrument with which it was recorded. Considering these aspects, the trial Court observed that the appellant failed to prove the authenticity of this Ex.B48 and on that ground discarded it. I do not find any wrong in the findings of the trial Court or appellate Court in respect of Ex.B48 and both the Courts have correctly appreciated evidence on record. As rightly pointed out by Advocate for respondent’s, there are absolutely no grounds to interfere with the concurrent findings. I do not find any wrong in the findings of the trial Court or appellate Court in respect of Ex.B48 and both the Courts have correctly appreciated evidence on record. As rightly pointed out by Advocate for respondent’s, there are absolutely no grounds to interfere with the concurrent findings. So on a scrutiny of the entire material, I am of the view that there are no grounds to remit back the case for fresh consideration, therefore, the request of the appellant’s counsel is negatived. 17. As rightly pointed out by Advocate for respondent there is no substantial question of law involved and all the grounds urged are in respect of factual aspects as such all the appeals shall fail. On a scrutiny of entire material, I am of the considered view that there are no grounds to interfere with concurrent findings and appeals are liable to be dismissed. 18. Accordingly, appeals are dismissed with costs. 19. As a sequel, miscellaneous petitions, if any, pending in these Second Appeals, shall stand dismissed.