There can be no dispute about the fact that a void contract need not be set aside; whereas a voidable contract has to be set aside. It is useful to refer to Section 31 of the Specific Relief Act as under:- Section 31: When cancellation may be ordered:- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.= “Vitiation due to misrepresentation, fraud or coercion. Onus and burden of proof held lies on party seeking to deny contract on said grounds—Contention that correspondence between parties was only suggestive of negotiation and person who signed documents was not authorised to sign but was improperly induced, hence there was no valid agreement between parties – On facts, held, correspondence exchanged and documents executed between parties indicates that parties had finalised and signed contract. Heavy duty lies upon party who seeks to rescind contract on ground of misrepresentation, fraud or coercion.” Section 17 of the Contract Act defines “fraud” which reads as under:- "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-. (1) the suggestion, as a fact, of that which is not true by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. Section 18 of the said Act deals with misrepresentation, which reads as under:- “Misrepresentation" means and includes- (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of anyone claiming under him; (3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.= “Misrepresentation or mistake of fact or frustration of contract – Loss of right to avoid the contract on the ground of misrepresentation – Mistake of fact when inconsequential – Plea of frustration of contract – Disentitlement to raise – Statement of law innocently made but law subsequently changing – Such statement of law, held, does not constitute misrepresentation – Moreover, in case of misrepresentation the aggrieved party can rescind the contract or seek restitution or affirm the contract without prejudice to its rights to seek damages by way of restitution for the resultant loss – Otherwise, such a party once exercising its option to stand by the contract with the knowledge of misrepresentation would lose its power of avoidance of the Contract”. Further more it was held as under:- Voidability of agreements – Provision regarding – Applicability – Held not applicable to concluded contracts where the party challenging the agreement had voluntarily chosen to implement the contract knowing all the relevant facts and circumstances.”= “Delay and laches – Effect of, on entitlement of relief – Deed for sale of mill executed with the stipulation that part of the price would be paid at the time of registration and the rest on the dates stipulated – Part of sale price paid to vendor accordingly and possession of mill handed over to vendee – Vendee not making further payments – Subsequent to expiry of due dates for payment, vendor issuing notice to vendee for payment of balance amount within the specified time-limit and warning that in case of default the sale deed would stands rescinded – Unexplained long delay (about three years in the present case) in filing suit under Ss.27 and 31, after the said notice, held, disentitled the plaintiff vendor to equitable relief under the said provisions.” “Blameworthy conduct of both the plaintiff and the respondent – Effect – Deed for sale of mill executed with the stipulation that part of the sale price of Rs.2 lakhs would be paid at the time of registration and the balance in instalments as stipulated – Part of sale price paid accordingly and possession of mill handed over to vendee – Vendor presenting income tax clearance certificate on the date of registration but getting the same cancelled before the completiton of the registration process – Later, ITO restoring the ITC but the vendor insisting on issuance of a fresh ITC and thus getting the registration delayed – When fresh ITC issued, vendor making the vendee and the Sub-Registrar aware of the same only after a long period of over one year – At this stage the vendee who was till then prepared to pay the balance amount on receipt of ITC, resiling on the ground of pendencty of a suit filed by a third party in respect of the suit property although that suit had already been dismissed for default – In such circumstances the vendor, held, not entitled to blame the vendee for committing breach of contract by withholding the balance amount – Hence the suit for cancellation of sale deed and recovery of possession rightly dismissed by the trial court.”= under Section 42(1) and (2) the acquisition can be made for any of the purposes of the act. Rule 10 (2) of the A.P. Municipalities (Layout) Rules,1970 reads as under:- “In case the area, for which a layout is sought for, falls in a Master Plan or in a Town Planning Scheme and for which a draft scheme is already furnished by the Director of Town Planning or in a sanctioned Town Planning Scheme or Master Plan, if a portion of his land falls in the area earmarked in such plan for a common public purpose in the interest of general development of that locality, the owner of such land shall transfer such percentage of the area of layout as prescribed in sub-rule(1) free of cost of the Municipality……..” Therefore, it is the obligation of the owner of the property to transfer the land free of cost whereas in cases of master plan under the A.P. Town Planning Act, there can be modification of the plan. = Evidently when once it is to be held that the transaction is not void and the grounds of challenge are on the basis of voidability of the contract, the principles of Article 59 of the Limitation Act applies and it is three(3) years atleast from the knowledge though not from the time of transaction. = Therefore, by Ex.A-18 dated 05-03-1982 the contract was rescinded and the sale deed was intended to be cancelled. = Therefore, viewed from any angle from the date of sale transaction 1979 the suits are hopelessly barred by time and the declaration sought for, cannot be granted. - The relief of permanent injunction with a direction to pay back the consideration is unknown to law and not tenable. - In the result, both Appeal Suits (A.S.Nos.1471 and 1472 of 2002) are allowed, setting aside the common judgment and decree of the lower court and both suits O.S.Nos.559 of 1994 and 78 of 2001 are dismissed with costs through out.

*THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO

+ APPEAL SUIT NOs.1471 & 1472 OF 2002

% 01-04-2011

# Vijayawada Municipal Corporation, Vijayawada rep. by its Commissioner,  Vijayawada.

                                             ….Appellant

                                                                                       

                                                    

Vs.

$ Chagarlamudi Nageswara Rao and another

                                                                               …. Respondents

!Counsel for the Appellant :      Sri V.L.N.G.K.Murthy

Counsel for the Respondents:   Sri T.Subrahmanya Reddy

                             

                             

<Gist :

>Head Note:

? Cases referred:

1. (2011) 1 SCC 167

2. (2010) 5 SCC 104

 3. (2003) 12 SCC 91

4. (2006) 13 SCC 599

5. (2002)   5 SCC 383

6. (2006)  5 SCC 353

7. AIR 2008 S.C.1771

8. AIR 1964 A.P. 360

9. AIR 1972 A.P 96

10. (2007) 10 SCC 448

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

A.S.Nos.1471 and 1472 OF 2002

COMMON JUDGMENT:

Both appeals arise out of the common judgment dated 15-07-2002 in O.S.Nos.559 of 1994 and 78 of 2001 passed by the Principal Senior Civil Judge, Vijayawada.

A.S.No.1471 of 2002 was filed against the judgment in O.S.No.559 of 1994 and A.S.No.1472 of 2002 was filed against the judgment in O.S.No.78 of 2001.  The defendant in both the suits is the appellant herein.

The brief facts of the case are as under:-

 Suit O.S.No.559 1994 was filed for sale proceedings held by the defendant is null and void and for possession of the suit schedule property. The schedule property is shown as Ac.0.30 cents of land equivalent to 1452 square yards situated in Block No.28, Ward No.14, R.S.NO.141/1, Mutyualampadu of Vijayawada town within specified boundaries.

The allegations in the plaint goes to show that the father of the plaintiff has inherited the land in Sy.No.141/B and in the partition between the plaintiff, his father and his brother Ramakoteswara Rao, the plaintiff has got Ac.0.30 cents to his share and a registered partition deed was executed on 24-12-1974. The earlier partition deed between the father of the plaintiff and his brothers dated 07-06-1954 was also filed.  

The suit schedule property is behind the railway quarters at Satyanarayana Puram and an extent of Ac.0.50 cents was acquired by the Railways from out of AC.1.40 cents owned by the father of the plaintiff.

 It was further pleaded that after the partition, the property of Ac.0.90 cents was put for sale and in the year 1976 the defendant informed the plaintiff and his father and brother that AC.0.90 cents of land was marked as “P”(park) in the master plan of Vijayawada and further informed that the property should be sold only to the municipality and requested the plaintiff and his other sharers to sell the said land to the defendant. 

Accordingly the plaintiff, his father and other brothers wrote a joint letter on 14-12-1976 offering to sell the land to the defendant as the defendant has informed that there is no other option. 

The plaintiff and his other family member filed a statement under Section 6(1). In the letter dated 06-03-1977 the Director of Town Planning clearly stated that the dereservation of site for public space or acquisition of site by municipality is not agreeable to the Department of Town Planning. 

Thereafter, the defendant addressed a letter to the Government on 28-05-1977. 
The defendant suppressed so many facts and misled the Government by stating that the plaintiffs along with two others are willing to sell the same to the defendant alone. 

Thereafter, a letter was addressed to the Collector to fix the market value for sale of the site by private negotiations.  

In proceedings of the Special Officer and Competent Authority, Urban Land Ceiling (ULC) in its enquiry clearly stated that the father of the plaintiff will be a non-surplus landholder and order was accordingly passed on 09-11-1997 and the same was communicated on 15-11-1977 to the defendant even then the defendant never obliged for the request of the plaintiff to sell the property to outsiders at market value.

The Collector fixed the market value @ 22/- per square yard and the defendant requested the plaintiff and others to give consent letters and to receive the amount of compensation of Rs.30,000/- and the balance will be paid only after getting the grant from the Government. 

Immediately sale deeds were drafted on 23-02-1979 on a non-judicial stamp papers.

Meanwhile, the plaintiff requested the defendant when the site is not public purpose, the site may be deleted from the master plan and further requested that the plaintiff is unwilling to sell the land inevitably to the defendant for throw-away price and requested the Government to delete the schedule property from master plan. 

Accordingly GTOP 69/77 was issued and the land in R.S.No.141/B was deleted from the master plan and it was considered as a residential area. The land in Sy.No.141/P was also marked as “residential area” in G.O.Ms.No.523, dated 25-01-1982. 

The sale deeds were not registered accordingly in the year 1985. 

The defendant in the notices dated 23-11-1981, 09-09-1985 requested the owners of the land to obtain necessary clearance from U.L.C authorities. 
The Urban Land Ceiling Officer has rejected the applications. On 26-07-1985 a notice was issued by the Sub-Registrar stating that the document was kept aside for want of clearance from U.L.C authorities and not registered. 

According to the plaintiff, as the suit schedule property being deleted from the master plan, the proposed sale dated 23-02-1979 stood cancelled and not binding on the plaintiff. 
The defendant also never took steps for getting the document registered. 
There was no alienation in any manner and the plaintiff is the absolute owner of the property.  
It was further pleaded that the brother has sold his share to one Ramakoteswara Rao on 10-05-1987 under possessory agreement of sale and after the death of their father-Tataiah, the legal heirs executed the possessory sale agreement in favour of one Gopalarao on 10-08-1987.

The plaintiff planned to construct apartments in the suit schedule property and the plaintiff was surprised to know that the defendant was making constructions in the schedule site and therefore in view of the urgency notice under Section 685 of the Hyderabad Municipal Corporation Act may be dispensed with. 
The plaintiff is ready and willing to pay back the compensation of Rs.30,000/- along with interest. Hence the suit for declaration and possession of the immovable property.

The defendant has filed a written statement contending that the suit is bad for want of notice under Section 685 of the Act; 

the cause of action for filing of the suit is not valid and the suit is barred by limitation and hit under Section 58 of the Limitation Act.

 It was further pleaded in paras.6 and 7 of the counter-affidavit as under:-

“It is submitted that the plaint schedule land was marked for the public purpose in the Master Plan sanctioned by the Government of Andhra Pradesh.  
As the plaintiff has no option, the plaintiff and Chagarlamudi Tataiah and Chagarlamudi Rama Koteswara Rao offered to sell the plaint schedule land to the defendant.  
The Government of Andhra Pradesh have accorded permission to the defendant to purchase Ac.0-90 cents of land in R.S.No.141/B.  
The plaint schedule property Ac.0-30 cents out of Ac.0-90 cents.  The Collector, Krishna District has issued proceedings on 10.08.1978 according permission to the defendant to purchase the plaint schedule land at the rate of Rs.22/- per square yard.  
Accordingly, the value of the plaint schedule was fixed at Rs.31,944/-. The plaintiff agreed to receive Rs.30,000/- and remaining balance of Rs.1,944/- after the defendant receives grant from the Government of Andhra Pradesh.  The defendant paid Rs.30,000/- to the plaintiff by way of cheque bearing No.D.640747, dated 21.02.1979 drawn on State Bank of India, Governorpet, Vijayawada-2.  The plaintiff delivered vacant possession of the plaint schedule site on 16.02.1979.  The plaintiff has signed the sale deed and same was presented for registration on 20.02.1979 in the office of the Sub-Registrar, Vijayawada.  The Sub-Registrar kept the matter pending registration and requested the defendant by letter dated 26.07.1985 to furnish a clearance certificate from the urban land Ceiling Authorities.  The defendant authorities have served a notice in R.C.G-5-44449/76 dated ……………….. necessary clearance certificate from urban land ceiling authority, Vijayawada and submit the same to the defendant within 15 days from the date of receipt of the notice so as to present in the office of the Sub-Registrar, Vijayawada.  
The plaintiff having acknowledged the said notice and in spite of subsequent requests, the plaintiff has failed to produce the Urban Land Ceiling Certificate from the competent Authority and thereby the sale transaction was pending in the Sub-Registrar’s office, Vijayawada.  
The defendant is in uninterrupted possession and enjoyment of the plaint schedule property from February, 1979.  By the land and uninterrupted possession and enjoyment of the plaint schedule property from February, 1979 by the defendant, its title to plaint schedule property is preferred.  
As the defendant has paid Rs.30,000/- to the plaintiff out of the sale consideration and as the defendant is in uninterrupted possession and enjoyment of the plaint schedule property, the plaintiff is debarred from enforcing any right.

          The V.M.C. is its Council Resolution No.578, dated 07.06.1994 has resolved to construct Kalyan Mandapam in 551.11 sq.Mts. in park NO.1 in R.S.No.141/1B of Vijayawada Town. 
The respondent authority has called tenders on 15.03.1994 for construction of Kalyan Mandapam and the work has commenced in the month of August, 1994, an amount of Rs.20,00,000/- was already incurred for raising walls up to roof level and the stage of work is containing for the roof slab work is in progress.”

The plaintiff has taken the sale consideration from the defendant’s authorities in the year 1979 and failed to obtain the clearance certificate and the defendant has been in absolute possession and enjoyment of the property and it has been put to public use.  

The intention of the plaintiff is only to stall the proceedings and therefore the suit is liable to be dismissed.

On the basis of the pleadings, the following issues were framed for trial:-

1.             Whether the plaintiff is entitled for declaration as prayed for?

2.      Whether the suit is not maintainable for want of notice under section 685 of Hyderabad Municipal Corporation Act?

3.            Whether the suit claim is barred by time?

4.            To what relief?

A.S.NO.1472 of 2002

        When the above suit O.S.No.559 of 1994 was pending,
 O.S.No.78 of 2001 was filed by the plaintiff in O.S.No.559 of 1994 and also his brother Ramakoteswara Rao for permanent injunction with regard to an extent of Ac.0.60 cents of land restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property. 
The allegations about the title to the property are repetition of the plaint allegations in O.S.No.559 of 1994. 
 It was pleaded that the defendant’s officials are intending to grab suit schedule property of Ac.0.60 cents and 
on 09-02-2001 and 12-02-2001 when they were personally attending the suit schedule property, the officials of the defendant demanded for possession of the suit schedule property.

        As the defendant is bent upon encroaching the property and also cause interference with possession and enjoyment the suit was filed.

        The defendant filed a written statement repeating the allegations in O.S.No.559 of 1994 mostly. 
Further facts were pleaded disclosing that it is the plaintiffs 1 and 2 that have submitted letters on 14-12-1976, 18-04-1977 and on 17-08-1977 requesting the defendant to take over the property by paying the value of the same as they are in need of money and wanted to come out of financial crisis. Accordingly after correspondence, the Government has permitted and the market value was fixed by the Collector. Subsequently, there was a change in the master plan and the property was deleted from the public purpose and converted into “residential purpose” vide GTP No.6979. 
Infact by letter dated 13-09-1978 the defendant informed the plaintiffs that they are not willing to purchase their property in view of the above modification. 
The plaintiffs have submitted a representation to the Minister for Municipal Administration complaining that the defendant has refused to acquire the land in view of the change of the user and requested the Government to consider their case on “humanitarian grounds” and pursue the defendant to acquire the land for the value fixed by the District Collector.

        The said representation was given by the Minister to the defendant on 22-10-1978 for remarks. Further more another representation was given to the District Collector on 15-09-1978 requesting to persuade the defendant to purchase their land as they are in financial crisis to discharge the loans to a tune of Rs.55,000/-. That representation was also forwarded to the defendant for remarks. 
Therefore, it is the plaintiffs that have been consistently requesting the defendant to purchase the land and on the basis of those representations the Government by G.O.Ms.No.139 (M.A) dated 28-07-1978 permitted to acquire the Ac.0.90 cents of land at the rate fixed by the District Collector. 
The Municipal Council has also accepted for the proposals. The plaintiffs and their father have given the consent letters and received Rs.30,000/- each towards consideration and signed the sale deeds and presented to the Sub-Registrar which were kept pending for want of “Urban Land Ceiling Clearance”.

        The defendant has also requested the plaintiffs to obtain the “U.L.C” clearance. The plaintiffs have delivered the possession of the property and through the sale deeds the defendant has been in possession and enjoyment of the property.

        The defendant developed park and maintaining it since 1992. 
The defendant also constructed watchmen quarters at the northern corner of the park and a compound wall was also constructed on the eastern side and fencing on the remaining three sides to the total extent of Ac.0.90 cents. 

The defendant started construction of a “Kalyana Mandapam” in the part of the remaining site and at that time when the construction has reached roof level 

the second plaintiff has filed O.S.No.559 of 1994 and obtained orders of injunction. 
Meanwhile, the second plaintiff has submitted a representation dated 25-06-1992 with two proposals viz.,
 (1) that the second plaintiff and the first plaintiff are willing to surrender the land in which part the construction was already done by the defendant subject to the condition that “Kalyana Mandapam” should be named after their father-Tataiah; 
(2) They are agreeing to compensate/repay the amount incurred by the defendant for construction of the building including the sum of Rs.90,000/- received by them.

        It was further informed that if any one of the above proposals is acceptable, they are ready to withdraw the suit O.S.No.559 of 1994.

        The defendant did not accept those proposals and was rejected by a letter dated 06-09-1999. 
The second plaintiff has again submitted a detailed representation. The second plaintiff has also submitted the same representation to the Chief Minister and it was forwarded from the office of the Chief Minister to the defendant by a letter dated 09-08-2002 for processing and submitting a detailed report. 

             The defendant has sent a report to the Government as to the rejection of the request earlier in the letter dated 25-06-1999 and the circumstances.

        The defendant pleaded that the defendant has been in continuous possession and enjoyment of the property since 1979. 
The allegation of un-lawful interference and the illegal attempts to take possession of the property are all false. 
    The plaintiffs have approached the court suppressing the real facts. The defendant has provided civic amenities and the value of the land has increased and with a mala fide and bad intention the plaintiffs are trying to get back their land; there is no cause of action to file the suit and the suit is liable to be dismissed.

        On the basis of the above pleadings, the following issues have been framed for trial.

1.       Whether the plaintiff is entitled for permanent injunction as prayed for?

2.       To what relief?

On behalf of the plaintiffs PWs.1 to 3 were examined and marked Exs.A-1 to A18 and on behalf of the defendant DWs.1 to 3 were examined and marked Exs.B-1 to B-22.

After considering the material evidence on record, the learned Senior Civil Judge has passed the following decrees:-

“The suit(O.S.No.559 of 1994) is decreed declaring that the sale proceedings held by the defendant is null and void. The defendant is directed to deliver the vacant possession of the schedule property to the plaintiff within one month from the date of this judgment.

The suit (O.S.No.78 of 2001) is decreed directing the defendants not to interfere with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property on the plaintiffs depositing the advance amount received from the defendant under the original of Exs.B-12 to B14 with interest @ 12% p.a. from the date of Ex.A-18 i.e., 05-03-1982.”

Aggrieved by the said common judgment, 
the present appeals are filed.

Heard Sri V.L.N.G.K.Murthy, the learned Senior Counsel for the appellant and Sri T.Subrahmany Reddy, the learned Senior Counsel for the respondents.

Now the points that arise for consideration are:-

(1)            Whether the declaration about the sale transaction given by the lower court is legal?

(2)            Whether the direction given by the lower court for refund of the money paid towards consideration is legal?

(3)            Whether the relief of permanent injunction granted by the lower court is legal?

(4)            Whether there is any fraud or misrepresentation of any fact played by the defendant in inducing the plaintiffs to sell their property?

POINTS:-

The learned Senior Counsel Sri V.L.N.G.K.Murthy representing the appellants contends that the whole approach of the lower court in dealing with the case is against the pleadings, evidence, law, the principles of equity and the estoppel.  
According to him, 
the suit is hopelessly barred by time and 
the remedy of the plaintiffs is not known to law and 
there is neither inducement nor misrepresentation or fraudulent act on the part of the defendant and
 the lower court has consciously avoided to look into several correspondence of the parties whereunder it was the plaintiffs that forced the sale transaction on the defendant. 
Since the value of the property has gone up, the speculative suit has been resorted to even when the Government has also not accepted the request of the plaintiffs and unfortunately the lower court made out a case which was not pleaded or established by the plaintiffs. 
His contention is that having obtained the “ULC” exemption on the basis that the property was reserved for “park” and consequently having made the defendant to acquire the same, the plaintiffs cannot turn round and say that the plaintiffs were mislead by the subsequent events of dereserving the area and making it as a residential area.

On the other hand, Sri T.Subrahmanya Reddy, the learned Senior Counsel on behalf of the plaintiffs repeated the contentions before the lower court and according to him but for the representation that the land was earmarked for “park” in the master plan and that it was not alienable to others and for the defendant alone it can be sold, the plaintiffs would not have entered into the sale transaction and consequently the sale is vitiated.
 According to him the question of the application of Urban Land Ceiling Act does not arise as the plaintiffs were declared as non-surplus land owners and the material suppression of the fact was de-notification of the acquired land to residential purpose by the time the sale transaction has taken place. 
According to him the lower court has considered the case in right perspective and there is no possession of the defendant over the suit schedule property and consequently the decree is legal.

In view of the rival contentions of both parties, it is useful at the outset to see as to on what grounds the lower court has accepted the claim of the plaintiffs. Infact the lower court itself felt that the pleadings are vague and the evidence let in by both the parties are not strictly in accordance with each other and relying on a decision reported in AIR 1987 SC 1242 proceeded to decide about the validity of the sale transaction. 
Having found that the pleadings are not clear, the lower court has definitely placed much of the burden on the defendant rather than the plaintiffs. Infact some of the findings of the lower court deserves to be extracted below.

In page.11 of the judgment the lower court found as follows:-

“Since the land is demarcated in the master plan for public purpose as rightly put by the defendant in the written statement, the plaintiff has no option but to offer the land for sale to the defendant. There is long correspondence on this aspect. Initially the defendant did not agree to purchase this land. But some how and as rightly being put by the learned counsel for the defendant on the pressure of the plaintiff and his family members, ultimately the defendants agreed to purchase this property.”

Further in continuation of the same, in page.12 it was found as under:-

“The situation as it stands now is that the title of the schedule property is not transferred in the name of the defendant. No attempts are made by the defendant authorities to get the sale deed executed in their favour in respect of the schedule property.”

At page 16 the learned Senior Civil Judge found that there is no free consent and the object is not lawful as the plaintiffs intended to sell the property only because it is marked for public purpose in the master plan, which is with an intention to avoid and circumvent the law. Therefore, the contract is not valid. 
The lower court during further course of discussion in page.17 found that the defendant has not taken any steps to get the sale deeds obtained inspite of notice by the Sub-Registrar. 
Sofar as the possession is concerned, the learned Senior Civil Judge found that the recitals in the sale deeds would not disclose that the plaintiff and his family members delivered possession of the property. 
The learned Senior Civil Judge in page.18 also found that the sale deeds refer to the purpose of sale being for residential quarters and the element of mischief and misrepresentation made by the defendant and his authorities is evident. 
The lower court also took into consideration that from the evidence of DW.1 the defendant had informed the plaintiffs that the land was converted into “park” to “residential” use and the plaintiffs can apply for a lay-out. Therefore, this shows that there is no delivery of possession.

Before considering the tenability of the judgment of the learned Senior Civil Judge, 

it is to be mentioned that no declaration was sought about the sale transaction with regard to AC.0.60 cents of land except Ac.0.30 cents of land involved in O.S.No.559 of 1994. 

Further more any declaration about the cancellation of a document or instrument including a contract of sale or a sale agreement is covered by the provisions of Section 31 of the Specific Relief Act which deals with void and voidable contracts.  

There can be no dispute about the fact that a void contract need not be set aside; whereas a voidable contract has to be set aside. It is useful to refer to Section 31 of the Specific Relief Act as under:-

Section 31: When cancellation may be ordered:-

(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

Therefore, granting of a declaration under Section 31 is discretionary and such a declaration is necessary only if there is any cloud or threat to the title of the person. 
But such declarations may not arise in cases where the party has received the consideration and executed the agreement or sale deed though not registered since there is nothing as a cloud on the title of the individual.

The law with regard to avoidance of a contract being void or voidable is well settled. The party who seeks to challenge the transaction has to plead and prove the particulars of the fraud, coercion and mis-representation. 
In this connection it is useful to refer to the decision reported in Alva Aluminium Limited, Bangkok Vs. Gabriel India Limited([1]) whereunder it was held as under:-

“Vitiation due to misrepresentation, fraud or coercion. 
Onus and burden of proof held lies on party seeking to deny contract on said grounds—Contention that correspondence between parties was only suggestive of negotiation and person who signed documents was not authorised to sign but was improperly induced, hence there was no valid agreement between parties – On facts, held, correspondence exchanged and documents executed between parties indicates that parties had finalised and signed contract. Heavy duty lies upon party who seeks to rescind contract on ground of misrepresentation, fraud or coercion.”

Section 17 of the Contract Act defines “fraud” which reads as under:-

 "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-.

(1) the suggestion, as a fact, of that which is not true by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent.

Section 18 of the said Act deals with misrepresentation, which reads as under:-

        “Misrepresentation" means and includes-

(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of anyone claiming under him;

(3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.

In the decision reported in Shanti Budhiya Vesta Patel and Others Vs. Nirmala Jayprakash Tiwari and others([2]) it was held that in cases where coercion or fraud is alleged, it must be sorted out with full particulars. The burden is on the person who alleges such fraud or coercion. 
It is also useful to refer to another decision in Ganga Retreat & Towers Ltd., and another Vs. State of Rajasthan and others([3]) which has got a bearing mostly to the facts of this case and the Supreme Court observed as under:-

        “Misrepresentation or mistake of fact or frustration of contract – Loss of right to avoid the contract on the ground of misrepresentation – Mistake of fact when inconsequential – Plea of frustration of contract – Disentitlement to raise – Statement of law innocently made but law subsequently changing – Such statement of law, held, does not constitute misrepresentation – Moreover, in case of misrepresentation the aggrieved party can rescind the contract or seek restitution or affirm the contract without prejudice to its rights to seek damages by way of restitution for the resultant loss – Otherwise, such a party once exercising its option to stand by the contract with the knowledge of misrepresentation would lose its power of avoidance of the Contract”.

        Further more it was held as under:-

        Voidability of agreements – Provision regarding – Applicability – Held not applicable to concluded contracts where the party challenging the agreement had voluntarily chosen to implement the contract knowing all the relevant facts and circumstances.”

In Reliance Salt Ltd., Vs. Cosmos Enterprises and another ([4]), it was held that fraud which vitiates the contract must have a nexus with the acts of the parties prior to entering into the contract.
 Further more, it will be apt to refer to a judgment in Lalit Kumar Jain and another Vs. Jaipur Traders Corporation Pvt. Ltd.,([5]) 
whereunder it was held as under:-

“Delay and laches – Effect of, on entitlement of relief – Deed for sale of mill executed with the stipulation that part of the price would be paid at the time of registration and the rest on the dates stipulated – Part of sale price paid to vendor accordingly and possession of mill handed over to vendee – Vendee not making further payments – Subsequent to expiry of due dates for payment, vendor issuing notice to vendee for payment of balance amount within the specified time-limit and warning that in case of default the sale deed would stands rescinded – Unexplained long delay (about three years in the present case) in filing suit under Ss.27 and 31, after the said notice, held, disentitled the plaintiff vendor to equitable relief under the said provisions.”

“Blameworthy conduct of both the plaintiff and the respondent – Effect – Deed for sale of mill executed with the stipulation that part of the sale price of Rs.2 lakhs would be paid at the time of registration and the balance in instalments as stipulated – Part of sale price paid accordingly and possession of mill handed over to vendee – Vendor presenting income tax clearance certificate on the date of registration but getting the same cancelled before the completiton of the registration process – Later, ITO restoring the ITC but the vendor insisting on issuance of a fresh ITC and thus getting the registration delayed – When fresh ITC issued, vendor making the vendee and the Sub-Registrar aware of the same only after a long period of over one year – At this stage the vendee who was till then prepared to pay the balance amount on receipt of ITC, resiling on the ground of pendencty of a suit filed by a third party in respect of the suit property although that suit had already been dismissed for default – In such circumstances the vendor, held, not entitled to blame the vendee for committing breach of contract by withholding the balance amount – Hence the suit for cancellation of sale deed and recovery of possession rightly dismissed by the trial court.”

        It is further useful to refer to a decision reported in Prem Singh and others Vs. Birbal and others ([6]) 
whereunder it was held that with regard to voidable transaction Article 59 of Limitation Act would be applicable and even in case of void deed of sale if the plaintiff is in possession of the property, the suit for declaration that the deed is not binding upon him can be filed but, however, if he is not in possession of the property in a suit for possession and the limitation period under Article 65 of Limitation Act would be applicable.

        The counsel for the respondents contends that the provisions of Urban Land Ceiling Act are not applicable and therefore advantage which is said to have been got by the plaintiffs is not real. 
The defendant has got un-due advantage. This contention of the counsel for the respondents cannot be accepted in view of the fact that a declaration has been filed by the plaintiffs and evidently the Urban Land Ceiling authorities has passed Ex.A-7 order holding that there is no surplus land by the plaintiffs’ family and taking into consideration the fact that Ac.0.90 cents of the disputed land was earmarked in the master plan as a “park” and therefore, it cannot be treated as a vacant land and as such it was excluded and the family is held to be non-surplus land owners. Ex.A-8 is the order communicated to the defendant by the U.L.C. authority consequent on Ex.A-7 order. Ex.A-7 is dated 09-11-1977 and Ex.A-8 is dated 15-11-1977. Therefore, it is quite clear that the family of the plaintiffs has got advantages by virtue of deleting this extent from the holding as it was earmarked for “park” in the master plan. Evidently, it appears that as the plaintiffs alienated the property of this extent, Ex.A-17 notice dated 21-04-1979 was given by the U.L.C. authorities about the advantage got by the family but the alienation in favour of the defendant is said to be for “residential quarters” and as such there is a proposal for revision of the earlier order. Therefore, the plaintiffs are aware of the scope and limitation of the U.L.C. Act and the plaintiffs have filed the declaration and the contention that the provisions of U.L.C. Act are not applicable, cannot be considered.

        The question before the court is that whether the transactions entered by the plaintiffs under the sale deeds Exs.B-12 to B-14 can be said to be vitiated by fraud or mis-representation. 
It is not as though that the plaintiffs are not aware of the fact that AC.0.90 cents of land was earmarked for the purpose of “park” in the master plan.
 Even in a case of lay out made by a private party for alienation of the land, the reservation of the land for a particular purpose, cannot be changed when once the lay out was approved. 
But in cases where a particular reservation was made in the master plan under the Town Planning Act or under the Urban Area Development Act, there can be a dereservation of the land which was earlier reserved for any particular purpose. 
Therefore it is not absolute. If the plaintiffs are not aware of this procedure, then it is a different matter. 
The plaintiffs are well aware about the master plan and the remedies open thereunder as can be seen from the correspondence.
 In order to be victims of fraud or mis-representation the consequence of the act of the fraud or misrepresentation should necessarily benefit the party who practised the fraud or mis-representation. 
It is to be noted when once the property is reserved for a “park” even without purchase of the same, the defendant has got every right to manage that property for the purpose for which it was reserved and in other words it vests for the management in favour of the defendant. 
There is no need for the defendant to part with consideration and purchase the property and to make fraudulent misrepresentation to the plaintiffs. 
In fact by the act of alienation it is the plaintiffs that are benefited by getting the consideration by acquisition of the land which is provided under the statute and it cannot be said that there was suppression of the fact or misrepresentation.

        In fact as can be seen from the several correspondence between the parties it was the plaintiffs that were almost beseeching the defendant and the Government to purchase the property for consideration to discharge the debts or to de-reserve the property for the purpose of private alienation. 
It is also to be noted that at all times the defendant was not inclined to purchase the property but for the pressure and repeated representations of the plaintiffs. In fact this is the finding recorded by the lower court without any ambiguity. Added to that the letters written by the plaintiffs clearly shows the conduct of the plaintiffs. 
Ex.A-3 is the letter dated 14-12-1976 which reads as under:-

“That we have rights over the land situated in D.No.141/1RU Satyanarayana Puram, behind Railway Quarters, Vijayawada measuring to an extent of 1.40 cents out of Ac.6.38 cents and out of this AC.1.40 cents the Railway authorities acquired an extent of Ac.0.50 cents and the remaining AC.0.90 cents was earmarked as “P” in the Master Plan. As such, the said land was not purchased by anybody. That we are in debt of about Rs.25,000/- to the other persons.  As per the “P” Mark in the master plan, we have no objection in case Municipal authority may take our land.  That except the above property, there was no other property in our name. as such, we have no other option to clear of the above said debts. Hence we request you to delete our land from the “P” mark in the Master Plan and facilitate us to sell away our property to clear of our debts or even purchase our land as per the market value of the land i.e., Rs.22/- per square yard in the year 1964 in which Sri Chagarlamudi Venkateswara Rao and E.Hanumantha Rao and E.Gandhi have sold the land in this number and make the payment of the said acquisition to us to clear of the debts which will protect our family status. But infact, the present market value of this land is at Rs.26/-(Rupees twenty six) per square yard. Hence we hereby inform you that if you do not choose any of the above options, we will be put to much mental agony from our debtors and not only that the prestige of our family will be badly affected.”

        This is the voluntary offer made by the plaintiffs consciously and for that a reply was given under Ex.A-4 dated 08-03-1977 by the Director of Town Planning that there is no possibility of dereservation. 
Infact under Ex.B-1 dated 18-04-1977, the plaintiffs made again a request referring to the earlier Ex.A-3 letter. Ex.B-2 is another request dated 17-08-1977. Thereafter under Ex.B-3 dated 28-02-1978 the Government has permitted the defendant to acquire the disputed land at the market rate to be fixed by the District Collector for the purpose specified in the master plan of Vijayawada Municipality.

        Accordingly, the Collector has issued Ex.B-4 proceedings dated 10-08-1978 exercising the power under Section 42(2) of A.P. Municipalities Act permitting the defendant to acquire the AC.0.90 cents of land @ 22/- per square yard but in spite of it the defendant did not move actively in the matter and thereafter on 22-10-1978 a representation was given to the Minister for Municipal Administration with a copy marked to the Secretary. 
It is useful to refer to some of the contents which reiterated the earlier correspondence and the voluntary nature and the obligations made by the plaintiffs and the consequential proposal for acquisition accorded by the Collector as per the statute. 
A part of the letter is being extracted for the purpose of better appreciation:-

        “Later, as per the above orders, we have requested the Commissioner, Vijayawada Municipality to pay the suitable consideration by taking the possession of our land and we have also submitted the documents and E.Cs relating to our land.  Then, the Commissioner, Municipality Vijayawada has also got the survey of the land.

          Then, the Municipal Commissioner, Vijayawada inspected our land and vide his letter R.C.G.44449/76, dt.13-09-78 informed us to apply for lay-out of the land, as the Director, Town Planning suggested our land for “De-reservation” in his G.T.P.No.69/77 and also informed that the Municipality is not willing to acquire the land.

          We are very much surprised to see the above orders and also we were kept in dark. The Municipality, Vijayawada taken two years of time for saying these simple words. In the beginning itself, if the Municipality expresses its opinion in such a fashion, we will be left to our fate. After taking all the risk, and troubles, and after incurring lot of expenditure, we are now bringing these facts to your notice, as all the doors were closed to us, except this one. In these circumstances, we request your goodselves to see that necessary orders are issued for not repeating this situation to any body and also request you to take a lenient view in humanity manner in this regard by ordering necessary enquiry in this matter and also to do justice for us, by using your exclusive powers order to acquire our land as per the previous Government Orders by the Municipality as per the market value fixed by the District Collector.”

        This representation unequivocally shows that the plaintiffs are aware that proposals were sent for dereservation and they were asked to apply for lay out. But in spite of it the plaintiffs persisted for sale of the property and to acquire the land belonging to them as per the market value fixed by the District Collector. This was endorsed to the defendant. Under Ex.B-7 another representation was made for acquisition of the land. This is dated 15-09-1978. Thereafter necessary money was released by the Government on 15-01-1979 under Ex.B-9 and under Ex.B10 consent letters were called from the plaintiffs on 16-02-1979 and on the same day consent letters was given by the plaintiffs under Ex.B-11. Consequently, the sale deeds were executed on 23-02-1979 and were presented to the Sub-Registrar for registration. Therefore, from 1976 till 1979 the plaintiffs are pursuing their case for acquisition of the land by paying the market value to relieve themselves of the debts incurred by them and also being aware of the fact that it was reserved for “park” and also proposals for dereservation were pending with the Government. The plaintiffs got the money. One fails to understand as to what is the fraud or misrepresentation practised by the defendant on the plaintiffs in inducing them to part with the property. There is absolutely no advantage gained by the defendant by virtue of the acquisition or the sale in its favour. In fact the lower court has not referred to any document relating to this acceptance and made an observation as if the sale was not voluntary and that there was suppression of fact. It is to be remembered that as per law the fraud or misrepresentation should have been practised at the time when the contract was entered into. The fact that when the contract was entered into the land was reserved for “park” is known to the plaintiffs and they wanted dereservation and it was negatived. The repeated correspondence referred to above shows that the plaintiffs are dealing with the defendant being fully aware of the factum of the reservation and subsequent rejection of the request for dereservation. Further more as has been referred above in Ex.B-6, the representation to the Municipal Minister the plaintiffs were informed that the Municipality is not interested in acquiring the land as it was pending for dereservation and the plaintiffs were directed to apply for obtaining a lay-out. In fact these are the proceedings dated 13-09-1978 issued by the defendant and which were admitted by PW.1. Therefore, by the date of sale transaction it is quite clear that the land was under consideration of dereservation and the plaintiffs still insisted for the acquisition.

        Even otherwise in the representation made to the Chief Minister and also to the Municipal Commissioner in 1999 two proposals were made by the plaintiffs even after filing of the suit. 
The proposals are as under:-

1)       My brother and Myself are willing to surrender the land in which the part construction was already done by the V.M.C. Vijayawada subject to the condition that the Kalyana Mandapam should be named after by my late father Sri Ch.Tathaiah.

2)       We are agreeing to compensate/repay the amount incurred by the Municipal Corporation Vijayawada for construction of building including the amount of Rs.90,000/- received at the time of unregistered sale agreement, to retain the land in our favour.

Hence it is futile for the plaintiffs to contend that there was suppression of fact or fraud.

The lower court has taken the view that the sale transactions are void as they are against the statute.

 The land was sold for construction of the staff quarters which is not the intendment of the master plan and as such the sale deeds are void. As already stated at the outset all the three (3) sale deeds are not challenged, only the plaintiff in O.S.No.559 of 1994 alone challenged the sale.  
In order to consider this aspect it is to be noted that the lower court has referred to the contents in          
  Exs.B-12 to B14 sale deeds whereunder it was stated as under:-

        “Whereas the Municipal Council of Vijayawada Municipality has agreed to purchase the aforesaid land of 90 cents for utilizing the same for constructing quarters for public health workers, as per council resolution No.52, dated 15-04-1978 and council resolutions Nof.1665, dated 19-12-1978.”

This the lower court has taken as a vitiation of the transaction.

This is not at all correct.
 The above statement shows that on 15-04-1978 a resolution was passed by the Council for construction of the quarters for public health workers in Ac.0.90 cents and there is said to be another resolution on 19-12-1978. 
It is only a reference to the fact but it is not a fact about the purpose of purchase of the property. 
It cannot be forgotten that after the alleged resolution on 15-04-1978 only the Collector has given permission for purchase of the property by the defendant as per the offer of the plaintiffs. 
In fact the purpose of permission under Ex.B-3 issued by the Government authorising the Collector for acquisition is only for the purpose specified in the master plan. 
Consequently, on 10-08-1978 the property was permitted to be acquired by the defendant under Ex.B-4 by the orders of the Collector. 
Therefore, it is the orders of the Government under Ex.B-3 and the order of the Collector under Ex.B-4 which governs the purpose of acquisition and not the resolutions passed by the Council and even if such resolutions are mentioned in the sale deeds they cannot have any effect in view of the specific purpose for which the land was sought to be acquired.  
Added to that the fact that the purpose of acquisition was proved to be only for the purpose of maintaining a “park” cannot be disputed in view of the circumstances that a “park” was established in the schedule property and it was in the name of “Gadde Venkata Ramanaiah Udyanavanam”. 
Infact a Commissioner was appointed while the appeal is pending and the Advocate Commissioner has also noted the identification of this and the name of the above person. 
Merely because the park is not properly maintained, it cannot be taken as a case where the purpose of acquisition is defeated. 
Infact for the public purpose only the “Kalyanamandapam” was sought to be constructed and there is no construction of any staff quarters which the resolution of the defendant is said to have proposed. 
The lower court has found fault with the defendant for not filing expenditure about the construction of “kalyanamandapam” or maintenance of “park”. 
Infact when DW.1 was cross-examined it was suggested to him that they have spent only Rs.4 lakhs and inflated expenditure was given to grab the property. 
It is also in the evidence of DWs.1 to 3 that “park” is being maintained by the Horticulture Department. The evidence of DW.3 shows that the Corporation wanted to construct a “Kalyanamandapam” and the grant was given by the M.L.A. 
Infact even the representation made by the plaintiffs after filing of the suit also shows that there was construction and they are prepared to pay the cost of the construction. 
Evidently, the construction could not be completed because of the suit and the injunction. When these are facts disclosed in the evidence of parties, the finding of the court that there is no evidence of investment or maintenance of “park” cannot be accepted. 
Infact, the finding of the court that there was no delivery of possession to the defendant and that the plaintiffs are in possession cannot be sustained. 
 Evidently, the suit O.S.No.559 of 1994 was filed for recovery of possession of Ac.0.30 cents of land. Evidently, all the three (3) sale deeds were executed on the same day and it is difficult to believe that one vendor has delivered possession of the property and the others have retained the possession of the property having all of them received the consideration. The lower court tried to give importance about the non-delivery of possession referring to the evidence of DW.1 to the effect that the defendant asked the plaintiffs to obtain the lay-out as the land was converted from “park” to “residential use”. Infact this statement of DW.1 only relates to the letter dated 13-09-1978 which was said to have been received by the plaintiffs and referred to in Ex.B-6. It cannot be forgotten that after this letter only the sale deeds were executed on 23-02-1979. The documents Exs.B-12 to B-14 clearly shows that possession was delivered and all rights of title and enjoyment are conveyed. 

It is a concluded transaction of conveyance of title and all rights except that the plaintiffs have to receive the balance of consideration of Rs.1944/-, after the said amount is received as a grant from the Government, there is no reservation to the effect that till the said amount is paid, the document will not be registered or that title has not passed. If the parties wanted to be a sale agreement, it is a different matter. The contents in Exs.B-12 to B-14 clearly shows that it is a concluded contract between the parties and there was conveyance of title also though the registration was not done, evidently, as the ULC certificate is required to be produced by the plaintiffs.

Therefore, by any sound reasoning it is difficult to believe that the plaintiffs have not parted with the possession of the property. 

Added to that it has to be noted that even by the date of the suit, the plaintiffs have no possession from their own showing. 

According to the evidence of PW.1 and Ex.A-15 which is an agreement of sale executed on 10-05-1987 by one of the plaintiffs in O.S.No.78 of 2001, his share of Ac.0.30 cents was said to have been sold to one Veeramachaneni Rama Koteswara Rao for a consideration of Rs.1,50,000/- and possession was also delivered. 

On the same day PW.1 is also said to have executed another agreement of sale. Therefore, by the date of filing of suit O.S.No.78 of 2001 the plaintiffs could not have been in possession of the property.

 In fact in this agreement Ex.A-15 the sale deeds executed in favour of the defendant were not at all referred. The lower court has also failed to take into consideration this aspect of the case. It is pertinent to note that Ex.A-15 even does not show that the sale transaction in favour of the defendant is ignored or the contract is rescinded. 

From the above circumstances, it is quite clear that the plaintiffs have not approached the court with clean hands and truth and their conduct does not vitiate the sale transaction.

The finding of the lower court that after issuance of the notice from U.L.C. authorities in 1985, no steps were being taken by the defendant is another fallacy.  

Infact the defendant has done what all is to be done and Urban Land Ceiling clearance has to be obtained by the plaintiffs and the registration has to be effected then only. Infact Ex.A-12 was the notice issued by the U.L.C. authorities on 23-11-1981 for appearance. 

Infact at no point of time the plaintiffs have taken the pains of explaining to the ULC authorities that they have not violated any statutory provisions and that there can be no refusal of ULC permission and that the alienation in favour of the defendant is only for public purpose as ordered by the Collector. If these facts are brought to the notice of ULC authorities there could not have been any problem in getting the certificate.

 Probably it is the wanton behaviour on the part of the plaintiffs to delay the registration and avoid their obligations, may be to litigate and also being aware of the proceedings initiated for dereservation of the land even before the alleged sale. 

Therefore, if anybody has enriched under the transaction, it is the plaintiffs that have got money from the defendant and were having full knowledge of the facts and circumstances in the transaction. The learned counsel for the respondents relied upon Ex.A-8 which declared that the family of the plaintiffs are non-surplus holders. 

This document they could have as well produced before the registering authority but it was not done so. 

Under Ex.A-17 they were informed that the exclusion of Ac.0.90 cents was for the reason as it was reserved for a “park” and if there is any incorrect statement in the sale deeds, the plaintiffs should have approached for by giving clarification.

 It is the silence of the plaintiffs in not pursuing the obligation and no fault can be made against the defendant.

Further more by the time of transaction evidently the Municipalities Act was applicable and under Section 42(1) and (2) the acquisition can be made for any of the purposes of the act. Rule 10 (2) of the A.P. Municipalities (Layout) Rules,1970 reads as under:-

“In case the area, for which a layout is sought for, falls in a Master Plan or in a Town Planning Scheme and for which a draft scheme is already furnished by the Director of Town Planning or in a sanctioned Town Planning Scheme or Master Plan, if a portion of his land falls in the area earmarked in such plan for a common public purpose in the interest of general development of that locality, the owner of such land shall transfer such percentage of the area of layout as prescribed in sub-rule(1) free of cost of the Municipality……..”

       

Therefore, it is the obligation of the owner of the property to transfer the land free of cost whereas in cases of master plan under the A.P. Town Planning Act, there can be modification of the plan. 

Under the provisions of Acquisition and Transfer of Immovable Properties Rules,1967 under A.P. Municipalities Act any immovable property can be acquired for public purpose.

        In this case, evidently, 

the purpose of acquisition is for the “park” and even though the plaintiffs cannot alienate to third parties and for all purposes the maintenance of the park or amenities vests with the Municipality, the plaintiffs themselves have voluntarily and repeatedly pressed the Municipality to purchase the property and have entered into the transaction and consequently received the consideration.

 Infact, there is no material to come to a conclusion that there was any deviation of the purpose for which the land was purchased.

 Even inspite of the fact that the property was dereserved subsequently the Municipality was maintaining the “park” and intended to construct a “kalyanamandapam” for public purpose. 

It cannot be said that the property was acquired for construction of the quarters for sanitary works. 

The transaction is neither void nor against the provisions of the statute.

The learned counsel for the respondents relied upon

 the decision reported in Bhikhubai Vithlabhai Patel & Ors Vs. State of Gujarat & Anr([7]) about the procedure of modification into the development plan by the State. 

In this case evidently the dereservation was made on the recommendations of the Council and on the repeated representations of the plaintiffs. 

The decision reported in The Municipal Council, Masulipatnam Vs. G.Krishna Rao([8]) relied on by the counsel for the respondents has also no application to the facts of this case. 

So also the decision reported in Municipal Corporation of Hyderabad Vs. T.V.Sarma([9]) relating to the question  of notice under Section 685 is also not being considered very much relevant at this stage when title to the property is being in dispute. 

The decision reported inLachhman Dass Vs. Jagat Ram and others([10]) relied on by the counsel for the respondents with regard to property rights and also the cases of fraud cannot also apply to this case since in view of my finding that there is no fraud or misrepresentation and there was a conscious and voluntary transaction on the part of the plaintiffs.

Evidently when once it is to be held that the transaction is not void and the grounds of challenge are on the basis of voidability of the contract, the principles of Article 59  of the Limitation Act applies and it is three(3) years atleast from the knowledge though not from the time of transaction. 

In this connection it is useful to see that under Ex.A-18 dated 05-03-1982 the plaintiffs have given an application to the defendant which is voluntary and reads as under:-

“That you have taken a letter from us stating that our land measuring to an extent of Ac.0.90 cents which was earmarked as “P” in the Master Plan, Vijayawada situated in D.No.141/1 of Satyanarayanapuram, behind Railway quarters, Vijayawada and the same is to be sold to the Municipal Authorities only and we were restricted to sell the same to any other third persons. The above said Ac.0.90 cents was the part of the land out of our Ac.1.40 cents from which an extent of Ac.0.50 cents was taken by the Railway Department. Apart from this, the above said land was deleted from the Master Plan as per the orders inG.O.Ms.No.52/M.,A. dated 25-1-1982. But out father Ch.Tataiah had expired on 09-12-1981. After the demise of our father, we our family members have decided to get partition of the properties of our late father. That as the above referred land was not in the Master Plan, there is no need for us to sell the land to your authorities only. That in order to facilitate us in partitioning the properties, we are ready to repay the advance amount as paid by you. As such, we request you to take back your advance amount immediately and return our document at the earliest possible.”

Therefore, by Ex.A-18 dated 05-03-1982 the contract was rescinded and the sale deed was intended to be cancelled. 

This is date fixed by the lower court for refund with interest. 

It is to be mentioned that this notice was given even before the notice was given by the ULC authorities under Ex.A-12 and subsequently only the notice under Ex.A-13 dated 09-09-1985 was given by the defendant on the directions given by the Sub-Registrar directing the plaintiffs to get the ULC certificate. 

Even then also they have not moved in the matter. 

The suit O.S.No.559 of 1994 was filed on November 1994 and suit O.S.No.78 of 2001 was filed on February 2001. 

Therefore, viewed from any angle from the date of sale transaction 1979 the suits are hopelessly barred by time and the declaration sought for, cannot be granted.  

The relief of permanent injunction with a direction to pay back the consideration is unknown to law and not tenable. 

It is needless to say that except declaration of one sale transaction by PW.1, the other two sale transactions are not sought to be avoided and therefore, the plaintiffs are bound by those transactions. The judgment and decree passed by the learned Senior Civil Judge is without considering the facts, law or evidence and statements in certain documents which have no bearing and inconsistent with his own findings about the conduct of the plaintiffs and the nature of the transaction.       

 Accordingly, the judgment and decree is liable to be set aside. The points are therefore answered accordingly.

        In the result, both Appeal Suits (A.S.Nos.1471 and 1472 of 2002) are allowed, setting aside the common judgment and decree of the lower court and both suits O.S.Nos.559 of 1994 and 78 of 2001 are dismissed with costs through out.

_______________________

N.R.L.NAGESWARA RAO,J

01-04-2011

Note:

L.R. Copy to be marked: YES

(B/o)

TSNR

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[1] (2011) 1 SCC 167

[2] (2010) 5 SCC 104

[3] (2003) 12 SCC 91

[4] (2006) 13 SCC 599

[5] (2002)   5 SCC 383

[6] (2006)  5 SCC 353

[7] AIR 2008 S.C.1771

[8] AIR 1964 A.P. 360

[9] AIR 1972 A.P 96

[10] (2007) 10 SCC 448