When title is claimed through defendants , failure to prove and examination of power of attorney holder to whom the defendant has given power to sale the suit land - is fatal to the case and failure of his possession is also fatal to the case - No declaration and injunction = The plaintiff filed the suit for declaration of his title and permanent injunction in respect of Ac.3-00 in Sy.No.191/30 of Kollur Village, Ramachandrapuram Mandal, Medak District (for short ‘suit schedule property’) and also to declare that the registered sale deed No.29229/2006 dated 01-12-2006 is not binding on him.- it is not in dispute that originally the suit schedule property was allotted to the second defendant following which the Government issued a patta certificate in his name to that extent. It is in dispute that the second defendant appointed Kamalesh Lohade as his General Power of Attorney holder to sell his property by way of executing registered sale deed observing necessary formalities, but the so called power of attorney holder was not examined before Court below. In fact admittedly the General Power of Attorney said to be executed in the name of Kamalesh Lohade was also not filed before the Court below.- the question of conveying the property in favour of the plaintiff as per law is not established, These documents only show the title and possession of the so called vendors of the plaintiff over the schedule property and not otherwise. The plaintiff has not filed any documents of his possession over the property consequent upon the execution of Ex.A-1 sale deed in his favour. So when the plaintiff failed to place necessary evidence to substantiate his claim, accordingly the relief of declaration of title and permanent injunction cannot be granted.

AS 545 / 2012

ASSR 6977 / 2012

PETITIONER RESPONDENT M. ASHOK SRINIVAS   VS B. VAIDYANATH REDDY & ANO PET.ADV. : NIRANJAN REDDY RESP.ADV. :  SUBJECT: DECLARATION DISTRICT:  MEDAK

published in http://164.100.12.10/hcorders/orders/2012/as/as_545_2012.html

HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA

AND

HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

A.S.No.545 of 2012

JUDGMENT: (per Hon’ble Sri Justice G.Krishna Mohan Reddy)

This appeal is filed challenging the judgment and decree dated 15-03-2012 passed in O.S.No.22 of 2009 (OS) on the file of the Court of II Additional District and Sessions Judge (Fast Track Court), Medak at Sangareddy.

2.     The appellant herein is the plaintiff and the respondents herein are the defendants in the suit.  For the sake of convenience, we refer the parties hereinafter as they are arrayed in the O.S.

3.     The plaintiff filed the suit for declaration of his title and permanent injunction in respect of Ac.3-00 in Sy.No.191/30 of Kollur Village, Ramachandrapuram Mandal, Medak District (for short ‘suit schedule property’) and also to declare that the registered sale deed No.29229/2006 dated 01-12-2006 is not binding on him.

4.     It is claimed in the plaint as follows. The plaintiff is the absolute owner and possessor of the suit schedule property having purchased the same under rightful ownership from a family members namely one Satish Khivasara, Dr.K.C.Shivasara, Dr. Asha Khivasara, Sachin Satish Khivasara and Smt. Shifali Satish Khivasara.  In fact the suit schedule property originally belonged to the Government.  The Government of A.P. assigned the land in Sy.No.191 of Kollur Village to several ex-servicemen in the year 1972, whereas Ac.3-00 of land was assigned to one U. Mallaiah, one T. Muralidhar Rao and K. Narsing Rao (second defendant) followed by issuance of necessary patta certificates in their names.  Later they executed three separate General Power of Attorneys bearing document Nos.269/1991, 271/1991 and 270/1993 respectively authorizing one Kamalesh Lohade to sell their lands, receive sale consideration and execute registered sale deeds in favour of third parties in that behalf.  The said Kamalesh Lohade individually entered into an agreements of sale with M/s. Vajra Farms on 23-012-1991, 17-09-1993 and
23-12-1991 respectively whereas both the General Power of Attorneys holder and M/s. Vajra Farms executed registered sale deeds dated 26-05-1994 bearing document No.1825/1994 in respect of Ac.6-00 of land including the suit schedule property in favour of the vendors of the plaintiff i.e., Satish Khivasara,
Dr. K.C. Shivasara, Dr. Asha Khivasara, Sachin Satish Khivasara and Smt. Shifali Satish Khivasara, who sold the schedule property to the plaintiff under registered sale deed dated
04-02-2003 with document No.1060/2003. Accordingly the plaintiff has been enjoying the property.  It is alleged that the first defendant illegally filed an application bearing No.B/175/07 before the Tahsildar, Ramachandrapuram under the provisions of A.P. Rights in Land and Pattedar Passbooks Act to mutate the suit schedule property out of the land admeasuring Ac.6-00 belonging to the plaintiff while enclosing a copy of the registered sale deed bearing document No.29229/2006 dated 01-12-2006 purported to have been executed by the second defendant, but the Tahsildar refused to do so on the ground that the second defendant already alienated Ac.2-00 of land out of the suit schedule property and that was not deleted from the second defendant’s holding vide Memo No.B/175/07 dated 07-05-2007, aggrieved by which the first defendant approached the Joint Collector, Medak District in consequence of which that authority directed the Tahsildar, Ramachandrapuram, to take necessary action in the matter as per G.O.Ms.Nos.1406 and 743 of the Revenue Department.  It is pleaded that the Tahsildar conducted necessary enquiry during which the plaintiff filed an objection before the Tahsildar on 30-05-2008 informing about his purchase of the property and also seeking to mutate the property in his name, but the Tahsildar rejected the plea of the plaintiff and on the other hand ordered for the mutation of the suit schedule property in favour of the first defendant which order of the Tahsildar is erroneous.  According to him the first and second defendants colluded with each other in order to grab the property.  Hence, he filed the suit.

5.     The first and second defendants filed written statements denying specifically the pleas taken by the plaintiff. 
It is further the claim of the first and second defendants that the second of them was the absolute owner and possessor of the suit schedule property with boundaries North-land of Rajaiah,  South-land of Sambashiva Rao, East-land of Vijayaram and west-land of Joseph in Sy.No.191 whereas the first of them purchased the property from the second of them.  It is denied that the second defendant gave any General Power of Attorney to Kamalesh Lohade for selling the property.  It is also claimed that there is no proper identification of the suit schedule property.  Therefore, it is pleaded that the plaintiff got no right to claim the property. There is no dispute about the proceedings before the revenue authorities noted in the plaint.

6.     The Court below framed and considered the following issues:

i.                    Whether the plaintiff can be declared as the owner of the suit land?

ii.                  Whether the plaintiff is entitled for perpetual injunction in respect of suit land to restrain defendants?

iii.                Whether the sale deed dated 1-12-2006 No.29229/2006 can be declared as not binding on the plaintiffs?

iv.               To what relief?

7.     For the plaintiff he got himself examined as PW-1 and also examined one Ega Shiva Kumar as PW-2, one
Md. Ishaq Ahmed as PW-3 and one N. Joseph as PW-4, and got marked Exs.A-1 to A-17.  For the defendants the first of them got himself examined as DW-1 and also examined one
K. Narasingam as DW-2 and got marked Exs.B-1 to B-18. 
On the other hand Exs.C-1 to C-3 were also marked in addition.

8.     On perusing the pleadings it is not in dispute that originally the suit schedule property was allotted to the second defendant following which the Government issued a patta certificate in his name to that extent. 

 It is in dispute that the second defendant appointed Kamalesh Lohade as his General Power of Attorney holder to sell his property by way of executing registered sale deed observing necessary formalities, but the so called power of attorney holder was not examined before Court below.  

In fact admittedly the General Power of Attorney said to be executed in the name of Kamalesh Lohade was also not filed before the Court below.

9.     In order to dispose of the appeal, the following points are to be determined:

1.                Whether the second defendant issued the General Power of Attorney in favour of Kamalesh Lohade in respect of the suit schedule property whereby that authority sold the property to the plaintiff?

2.                Whether the sale deed dated 01-12-2006 executed in favour of the first defendant by the second respondent is valid and not binding upon the plaintiff?

3.                Whether the plaintiff is entitled to the reliefs of declaration and permanent injunction in respect of the suit schedule property as prayed for?

10.    In fact the points 2 and 3 i.e., whether the sale deed dated 01-12-2006 in favour of the first defendant executed by the second defendant is not binding upon the plaintiff and that the plaintiff is entitled to the relief declaration and permanent injunction in respect of the property, depends upon holding the first point in favour of the claim of the plaintiff.  The plaintiff, who has approached the Court, is burdened with establishing his claims placing necessary evidence before the Court.  He has to stand on his own legs to achieve his object without basing on any laches (if any) on the part of the defendants unless those laches sufficiently establish his claim.

POINT No.1:

        11.    Exs.A-2 to A-4 are the so called General Power of Attorneys bearing Nos.269/1991 dated 23-12-1991, 270/1993 dated 16-09-1993 and 271/1991 dated 23-12-1991 said to have been executed in favour of Kamalesh Lohade respectively. 
In order to conclude that they are genuine documents, there should be clear evidence of the original owners of the properties executing those documents in favour of Kamalesh Lohade.
In other words unless the executants or attestors or scribes of these documents are examined, the proof of these documents cannot be said to be achieved. 

12.    PW-3, a Senior Assistant of the Sub-Registrar office, Sangareddy, through whom Ex.A-3 was issued, deposed that the thumb impression of the executant was obtained at Sl.No.6, page No.88, Volume No.78 and Book No.4 of their office marked as Ex.A-17.  No doubt it is a public document by reason of which it is to be presumed that the thumb impression as that of the executant of it was made, which of course is not sufficient to come to the conclusion that in reality, the person who was shown to have executed the document in fact did so.  PW-3 got no personal knowledge about the execution of the document as his evidence disclosed.  On the other hand the record discloses that after the conclusion of the trial, the plaintiff represented to send Ex.A-3 to handwriting expert or fingerprint expert for opinion along with admitted signatures of the so called executant of the document namely K. Narsing Rao i.e., second defendant, which was allowed, in consequence of which the disputed and admitted signatures of the second defendant were sent to PW-4, who gave his opinion marked as Ex.C-2 whereas relevant specimen thumb mark sheets (2) and comparison chart were marked as Exs.C-1 and C-3 respectively. Further on an application filed by the plaintiff, PW-4 was examined before the Court. 

13.    PW-4 deposed that he examined and marked the disputed thumb impression as ‘D’ and also marked the specimen left hand thumb impression as ‘S’ for the facility of scanning, that on examination and comparison it was found that the disputed left thumb impression of K. Narsingam marked as ‘D’ on document No.270 on page No.88 of Thumb Impression Register, volume No.78 of the Sub-Registrar office, Sangareddy, Medak District, was not identical with the admitted left thumb impression marked as ‘S’ of K. Narsingam obtained on a plain sheet of paper in the open Court on 19-09-2011.  According to him the reason to come to that conclusion was because of difference in the formation of the patterns, that to substantiate his opinion he prepared comparison chart with the help of enlarged scanned copies of signatures and specimen copies of fingerprints, that ten ridge characteristics which marked with red ink lines were not collectively occurring in their same nature and relative position in the specimen left thumb impression marked as ‘S’ and that he found that the thumb impression marked as ‘D’ and ‘S’ were not identical with each other. He was
cross-examined at length, but it was not rebutted.

14.    Learned counsel for the plaintiff would contend that the Court below failed to appreciate the matter with regards to the question of General Power of Attorney properly, but he has failed to substantiate as to how the evidence of PW-4 coupled with the contents of his opinion could be prevailed upon to uphold the claim of the plaintiff.  The Court below having properly examined the evidence of PW-4 coupled with the documents marked in that behalf rightly upheld that the plaintiff failed to substantiate his claim of execution of the power of attorney in favour of Kamalesh Lohade by the second defendant who categorically denied it.

POINT Nos.3 and 2:

        15.    In view of the result arrived under the point No.1 to the effect that the question of conveying the property in favour of the plaintiff as per law is not established, 

the consequent question of declaration of title to the property in favour of the plaintiff basing upon that document is also not established.  

Apart from that in order to grant the relief of permanent injunction in respect of the property in favour of the plaintiff, there should be clear evidence of the plaintiff’s possession over property by virtue of the sale deed said to be executed in his favour.  

The plaintiff got marked, apart from marking the sale deed in his favour as Ex.A-1, 

Exs.A-6 and A-7 original pattadar passbook and 

original title deed of Sathish Khivasara, 

Ex.A-8 and A-9 original Pattadar passbook and original title deed of Asha Khivasara, 

Ex.A-10 and A-11 original pattadar passbook and original title deed of Sachin Sathish Khivasara, 

Ex.A-12 and A-13 original pattadar passbook and original title deed of Shifali Sathish Khivasara. 

These documents only show the title and possession of the so called vendors of the plaintiff over the schedule property and not otherwise. 

The plaintiff has not filed any documents of his possession over the property consequent upon the execution of Ex.A-1 sale deed in his favour.

16.    On the other hand, the first defendant got marked 

Ex.B-1 original sale deed with document No.29229/2006,
Ex.B-2 mutation orders of the Joint Collector dated 14-05-2008, 

Ex.B-3 copy of the relevant Setwar, 

Ex.B-4 Pattadar passbook, Ex.B-5 title book, 

Ex.B-6 CC of ROR for the year 1979-80,
Ex.B-10 CC of pahani for the year 2008-09, 

Ex.B-11 CC of pahani for the year 2010-11, 

Ex.B-13 original ration card of K. Narsingam for the years 1992 to 1995 issued in 1992,
Ex.B-14 CC of encumbrance certificate vide No.2911 dated 07-02-2011, 

Ex.B15 CC of Encumbrance certificate No.2827 dated 05-02-2011, 

Ex.B-16 CC of Faisalpatty for the year 1980-81, 

Ex.B-17 CC of encumbrance certificate vide No.27168 dated 27-09-2007 and Ex.B-18 CC of Khuski Naksha (village map of Kollur village), to uphold his claim.  

Thereby sufficient oral and documentary evidence was placed before the Court below to endorse the claim of the first and second defendants which also tend to falsify the claim of the plaintiff of purchasing the property validly and also his consequential possession of the property.

17.    So when the plaintiff failed to place necessary evidence to substantiate his claim, accordingly the relief of declaration of title and permanent injunction cannot be granted. 

18.    The Court below elaborately examined the evidence recorded and rightly held the issues against the plaintiff. There is absolutely no reason to interfere with the verdict of the Court below.  Eventually the appeal is liable to be dismissed.

19.    In the result, the appeal is dismissed without costs.

_________________

ASHUTOSH MOHUNTA, J

_____________________

G. KRISHNA MOHAN REDDY, J

Date: 05-10-2012

YCR