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Tuesday, May 5, 2015

Suit for Declaration and Cancellation of Registered sale deed as no actual consideration was passed - Trail Court dismissed the suits - Their Lordships 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, -hence sec.91 of Evidence Act not applies to the set of facts - Their Lordships further held that Tape Recorded Evidence - 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. - No Grounds - Appeal was dismissed - 2015 Telangana & A.P. msklawreports

 

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. 
 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.
.
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. 
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.


 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. 
 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
Honble Supreme Court in Yusfufalli Esmail Nagree
wherein the Honble 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 respondents, 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 appellants
counsel is negatived.- 2015 Telangana & A.P. msklawreports

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