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Saturday, August 16, 2014

suit 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. - Appeal was also dismissed - Second Appeal - their lordships held that a Def. No.1/General power of attorney holder can not cancelled the Reg. Sale Deed executed by /Def.2 and 3 real owners infavour of plaintiff unilaterally with out the knowledge of plaintiff who is out of India - Nominal Sale deed can not be pleaded against the recitals of sale deed as per sec.91,92 of Indian Evidence act - only remedy of defendants is under sec.55 of T.P.Act - No bonafides on the plea of defendants - second appeal was dismissed = Second Appeal No.406 of 2014 15-07-2014 V. Chandramohan..appellant J. Venkatagopal and others..Respondents = 2014- July- Part - http://judis.nic.in/judis_andhra/filename=11789

 suit 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. - Appeal was also dismissed - Second Appeal - their lordships held that a Def. No.1/General power of attorney holder can not cancelled the Reg. Sale Deed executed by /Def.2 and 3 real owners infavour of plaintiff unilaterally with out the knowledge of plaintiff who is out of India - Nominal Sale deed can not be pleaded against the recitals of sale deed as per sec.91,92 of Indian Evidence act - only remedy of defendants is under sec.55 of T.P.Act - No bonafides on the plea of defendants - second 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.

      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.
2014- July- Part - http://judis.nic.in/judis_andhra/filename=11789
THE HONBLE MR JUSTICE L. NARASIMHA REDDY          

Second Appeal No.406 of 2014

15-07-2014

V. Chandramohan..appellant

J. Venkatagopal and others..Respondents

Counsel for the appellant: Sri B. Vijaysen Reddy,

Counsel for the Respondents     : Sri V. Hariharan

<GIST:

>HEAD NOTE:  

?Cases referred

THE HONBLE MR JUSTICE L. NARASIMHA REDDY          

Second Appeal No.406 of 2014

ORDER:

      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.  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.  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.

      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.
_______________________  
L. NARASIMHA REDDY, J.    
Dt.15-07-2014.

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