(i). Whether the judgments of the Appellate courts below correct in allow the appeal execute sale deed in favourof plaintiff by the Respondents/ defendants all shares from the share holders/ owners, beyond agreement of all item 1 to 3 which are established his title Ex.B1 and Ex.B9 of plaint schedule property in support of the documentary evidence as property belongs to Hindu ancestral joint property, all the defendants are in possession?
(ii) Whether the agree to perform an agreement of sale of minor property in Ex.B2 sale deed clearly show that while the 5th defendant and son of the 4th defendant were minors, the said property was purchased in their names, plaintiff have any right to deal with the minor’s property without have order from the competent court of law, the property as it no partition effect in the year of 1998 shows Ex.B8 4th defendant and his son filed suit in O.S.No. 812 of 2005?one suit is filed for grant of permanent injunction and another one is suit seeking for specific performance. 2023:APHC:43804
Trial court decreed the injunction suit and dismissed the specific performance suit - but appeal was allowed - SA
held that
it is pertinante to note that Ex. B8 proves the 4" defendant and his son filed OS.812/2005 against the defendants 1 and 5 herein for partition of Item No.1 of agreement of sale along with some other property and the said suit was decreed for partition of subject matter of the suit in two equal shares”
49. Whereas the trial court while answering the issue No.2 in O.S.No.29 of 2007 wherein, it is categorically held that “(4) It is pertinent to note that though it was recited on the top of Ex.A1- agreement of sale that the said document was executed by the defendants 1 and 2, the contents of the document show as if the said document was executed by the first defendant alone. At the second page of Ex.A1-agreement of sale, at the right bottom, wherein the signatures of the vendees naturally appear, the thumb impression said to be that of the second defendant and the signature said to be that of the first defendant were found. In between these two, somebody's signature was also found. That is to say, three persons executed the said Ex.A1-agreement of sale. When confronted, P.W.1, though admitted that there appear three signatures, he could not give out the name of the person who subscribed that middle signature. This being a document said to have been executed by the defendants 1 and 2, there is no need for 28 any other to subscribe his signature besides the defendants. Being custodian of the said Ex.A1-agreement of sale right from the inception of its execution till it was filed into Court, it is for the plaintiff to explain as to when and who subscribed the said signature. This also creates a doubt on the veracity on Ex.A1 - agreement of sale, as to what was the real intention of the parties to the said document and had there ever been any intention of the parties to use the said document as an agreement of sale”.
50. Since the suit filed for specific performance of agreement of sale, the plaintiff must express his readiness and willingness to perform his part of contract till conclusion of the proceedings as a responsibility, but same was not done. Further it is the contention of the plaintiff that he was handed over the possession of the suit schedule property i.e as per Ex.A1 agreement of sale. Whereas the 1st defendant would contend that the brother of the plaintiff has taken the said property on lease. Further the PW-1 was never in possession of the plaint schedule property as a tenant, but claiming possession of the property as per Ex.A1 agreement of sale, but the plaintiff did not shown any revenue records to prove his possession over the plaint schedule property.
51. Therefore, in the absence of any documentary evidence showing the possession of the plaintiff, the trial court relied on the evidence of PWs 1, 6 and 7 for conclusion that the plaintiff has been in possession and enjoyment of the suit schedule property and holding that by the introduction of Ex.A8, the agreement of sale vide Ex.A1 lost its significance and efficacy and the possession of plaintiff over the plaint schedule property cannot be believed. 52. The defendants 1, 4 and 5 in O.S.No. 29 of 2007 has filed a suit for permanent injunction in O.S.No.431 of 2010 contending that the 2nd defendant, who is brother of 1st defendant and plaintiff in O.S.No.29 of 2007 took the plaint schedule property on lease for one year and he fell in arrears of rent, they demanded him to pay the same, he filed a suit for permanent injunction. The trial court has rightly established the facts by relying on both documentary and evidence on record and held that the defendants in suit in O.S.No. 431 of 2010 are not in possession of the suit schedule property and that the plaintiffs are absolute owners of the plaint schedule property. Hence decreed the suit in O.S.No.431 of 2010 and consequently dismissed the suit in O.S.No. 29 of 2007 with clear findings.
1
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THE HON’BLE DR.JUSTICE K. MANMADHA RAO
SECOND APPEAL Nos.135 and 147 of 2023
G SUBBA RAO
Versus
R CHIRANJEEVI
COMMMON JUDGMENT:
Second Appeal No. 135 of 2023 has been filed assailing the
Judgment and Decree dated 20.09.2022, passed in A.S.No.156 of
2016 by the learned VIII Additional District Judge, Ongole (in short
“the first appellate court”) in reversing the Judgment and decree
dated 31.10.2016 in O.S.No.431 of 2010 passed by the learned
Principal Senior Civil Judge, Ongole (in short “trial court)”.
Second Appeal No. 147 of 2023 has been filed assailing the
Judgment and Decree dated 20.09.2022, passed in A.S.No.157 of
2016 by the learned VIII Additional District Judge, Ongole (in short
“the first appellate court”) in reversing the Judgment and decree
dated 31.10.2016 in O.S.No.29 of 2007 passed by the learned
Principal Senior Civil Judge, Ongole (in short “trial court)”.
2. The parties will herein after be referred to as they are
arrayed in the Original Suit for the sake of convenience.
3. Since the facts and issue involved in all the Second
Appeals are one and the same, I find it expedient to decide these
matters by a Common Judgment.
2
4. For the sake of convenience, S.A.No. 135 of 2023 is taken
as leading case.
5. The appellants herein are the respondents/ plaintiffs and
respondents herein are the appellants/ defendants before the
courts below.
6. Initially suit in O.S.No. 431 of 2010 on the file of trial
court for permanent injunction restraining the defendants, their
men from interfering with the plaintiffs’ peaceful possession and
enjoyment of the suit schedule property, claiming that the plaintiffs
are absolute owners of the plaint schedule property by virtue of
various sale deeds. The 1st plaintiff and his son filed a suit in
O.S.No.812 of 2005 against the plaintiffs 2 and 3 for partition of
Item No.1 therein another an extent of Ac. 1.91 cents situated in
Sy.No.181/1 and 180/2 and the said suit was decreed on
04.07.2005. Later the plaintiffs 1 and 2 effected oral partition
outside of the court and are enjoying item Nos 1 to 3 therein and
another extent of Ac. 1.91 cents. Subsequently there arose
disputes between the 2nd plaintiff and defendants. Therefore the
plaintiffs filed the suit for relief of permanent injunction.
7. The 2nd defendant filed written statement by denying all
material allegations and mainly contended that the plaintiffs 2 and
3
3 executed an agreement of sale deed dated 05.05.2005 in favour
of 1st defendant, having received the entire sale consideration of
Rs. 2,70,000/- agreeing to execute a sale deed and delivered
possession, since then the defendants have been in possession and
enjoyment of the suit schedule property. As the plaintiffs failed to
execute the registered sale deed, the 1st defendant issued legal
notice to the 2nd plaintiff and his mother calling upon them to
execute sale deed, but in vain. The 2nd plaintiff in collusion with
the 1st plaintiff filed O.S.No. 812 of 2005 and obtained exparte
decree in respect of Item No.1 only against the plaintiffs 2 and 3 to
avoid proper registration. Therefore the suit is liable to be
dismissed.
8. Based on the above pleadings, the trial court eventually
framed the following issues for trial:
(1) Whether the Plaintiffs are entitled for permanent injunction as prayed
for?
(2) To what relief?
9. So also, O.S.No.29 of 2007 was filed for specific
performance of the agreement of sale dated 05.05.2005 and for
permanent injunction restraining the defendants therein and
others from in any manner interfering with the plaintiff therein
peaceful possession and enjoyment of the plaint schedule property
4
and contending that the defendants 1 and 2 therein are the
absolute owners of the Item No.1 to 3 of the plaint schedule and
they offered to sell the same to the plaintiff at Rs. 2,70,000/- on
05.05.2005 and having received the entire sale consideration, the
defendants 1 and 2 executed an agreement of sale in favour of the
plaintiff and delivered possession of the suit schedule property,
agreeing to execute the registered sale deed whenever demanded by
the plaintiff. Since then the plaintiff in the suit has been in
possession and enjoyment of the same. The defendants have
evading in registering the document, though registered notices
were sent to them. The defendants 1 and 2 colluded with their
family members and filed a suit through them for grant of
permanent injunction. Though, the plaintiff in the suit has been
cultivating the suit schedule property. Therefore the suit has been
instituted for specific performance and for permanent injunction.
10. Subsequently the 2nd defendant in the suit died and her
legal representatives were brought on record as 3rd defendant and
subsequent to the filing of the suit in O.S.No. 858 of 2006 on the
file the trial court by the defendants 1, 4 and 5 therein for
permanent injunction in respect of the subject matter of this suit,
defendants 4 and 5 were brought on record.
5
11. The 1st defendant filed written statement before the trial
court by denying material allegations and mainly contended that
the defendants are the owners of Ac. 1.08 cents out of Ac. 2.16
cents in Item No.1 and the other land belongs to Gunji Subba Rao
and his right also declared in court. The Item No2 is belongs to son
of 1st defendant, which he got from his grandfather Smt.
Ankamma. The defendants are entitled to Ac. 0.04 cents, out of Ac.
0.08 cents in Item No.3, which was purchased by the 1st defendant
along with his brother under agreement of sale dated 20.05.1988.
With a view to nab the said property, the plaintiff fabricated and
forged the documents.
12. The 4th defendant in the suit also filed written statement
by contending that the 4th defendant purchased Item No.1 of the
suit schedule property along with his brother Smt. Ankamma and
got it registered on 22.05.1984 and the defendants 4 and 5 in the
suit have been enjoying the same jointly.
13. So also, the 5th defendant filed written statement by
contending that he is the absolute owner of the plaint schedule
property and his parental grandfather by name Ankamma
purchased Item No.2 on 07.08.1997 in his favour, when he was a
minor. The revenue authorities have also issued pattadar pass
6
book and title deed in his favour. The suit schedule properties are
not the absolute properties of the defendants 1 and 2 and they
have no right to sell the share of 5th defendant i.e Item No.2.
Therefore the suit is liable to be dismissed.
14. Based on the above pleadings, the trial court eventually
framed the following issues for trial:
(1) Whether the defendants are absolute owners of items of the schedule
property?
(2) Whether the agreement is true, valid and whether the plaintiff was put
in possession of the schedule property under the agreement of sale?
(3) Whether the plaintiff is entitled for permanent injunction as prayed for?
(4) To what relief?
Additional issues:
(1) Whether D4 is the absolute owner of Item No.2 of the schedule
property?
(2) Whether D5 is the absolute owner of the half share in Item No.1 and 3
of the schedule property?
15. The trial court clubbed the suits i.e O.S.No. 29 of 2007
and O.S.No. 431 of 2010 on memo by the parties to the suits and
common evidence was recorded in O.S.No.29 of 2007 and the
witnesses examined on behalf of the plaintiff in O.S.No. 29 of 2007
are referred as PWs and the witnesses examined on behalf of the
defendants as DWs.
7
16. During the course of trial PWs-1 to 11 were examined on
behalf of the plaintiffs and Ex.A1 to A8 got marked and on behalf of
the defendants, DWs-1 to 3 were examined and Ex.B1 to B9 were
marked.
17. After elaborate trial, the trial court dismissed the suit in
O.S.No. 29 of 2007 and decreed the suit in O.S.No. 431 of 2010 by
granting permanent injunction restraining the defendants therein
and their men from interfering with the plaintiff’s peaceful
possession and enjoyment of the suit schedule property vide
common judgment dated 31.10.2016.
18. Assailing the said Judgment and decree of the trial court,
the defendants in O.S.No. 431 of 2010 have filed appeal in A.S.No.
156 of 2016 before the first appellate court; so also, plaintiff in
O.S.No. 29 of 2007 have filed an Appeal in A.S.No. 157 of 2016
before the first appellate court.
19. The first appellate court has framed the following points
for consideration in the Appeal:
1. Whether the Decree and Judgment passed by the trial court is factually
and legally sustainable?
2. Is it necessary to interfere with the findings of the trial court with regard
to answers and findings on the issues?
8
20. The First Appellate Court after considering the facts and
circumstances of the case allowed the appeal, while setting aside
the decree and judgment of the trial court in O.S.No. 29 of 2007
and directed the defendants therein to execute the registered sale
deed in favour of the plaintiff within one month from the date of
judgment and granted permanent injunction. Further, dismissed
the suit in O.S.No. 431 of 2010 on merits on 20.09.2022. Assailing
the Judgment of the First Appellate Court, the appellants herein,
the present Second Appeals came to be filed.
21. This court while admitting the Second Appeal has framed
the following substantial question of law in S.A.No. 135 of 2023
and S.A.No.147 of 2003, which are as under:-
(i). Whether the judgments of the Appellate courts below correct in allow
the appeal execute sale deed in favourof plaintiff by the Respondents/
defendants all shares from the share holders/ owners, beyond agreement
of all item 1 to 3 which are established his title Ex.B1 and Ex.B9 of plaint
schedule property in support of the documentary evidence as property
belongs to Hindu ancestral joint property, all the defendants are in
possession?
(ii) Whether the agree to perform an agreement of sale of minor property in
Ex.B2 sale deed clearly show that while the 5th defendant and son of the
4th defendant were minors, the said property was purchased in their
names, plaintiff have any right to deal with the minor’s property without
have order from the competent court of law, the property as it no partition
effect in the year of 1998 shows Ex.B8 4th defendant and his son filed suit
in O.S.No. 812 of 2005?
9
22. Heard Mr. Mr. Sridhar Thummalapudi, learned counsel
for the appellants and Mr. P.V.A.Padmanabham, learned counsel
for the respondents.
23. During hearing learned counsel for the appellants/
plaintiffs in S.A.No.135 of 2023 would contend that the plaintiff
claimed ancestral property without their being undivided shares,
all the defendants are has succeeded the plaint schedule property
from his ancestors, which is not considered by the first appellate
court as per evidence. Since the first appellate court negative
Ex.B1 to B9 and ought to have allow the appeal filed by the
appellants/ plaintiffs for the documents filed by the plaintiff as
Ex.A1 is sham, as there is no proper documents marked on behalf
of the respondents to show that the schedule property belongs to
the defendants and that they are in possession. It is further
contended that the first appellate court without ascertaining any
documents, declaring that the defendants claiming exclusive right,
title, interest and possessory title over the plaint schedule property
as illegal.
24. It is further contended that the trial court rightly pointed
out that Ex.B2 sale deed would show that 5th defendant and son of
the 4th defendant were minors and purchased the property in the
10
name of minors. Therefore other defendants have no manner of
right to deal with the minors’ property. The first appellate court
committed an error in relying on the observations made by the
trial court both facts and law. Therefore the findings of the first
appellate court are based on mere surmises and that the same is
liable to be set aside.
25. During the course of hearing learned counsel for the
appellants placed on record the decision of the Hon’ble Apex Court
in “Bhagyashree Anant Gaonkar v. Narendra @ Nagesh
Bharma Holkar and Another”1 wherein the Hon’ble Apex Court
draws Section 100 of the C.P.C and also discussed various
decisions with regard to framing of substantial question of law in
the appeal and further remand the matter to the High Court for a
fresh consideration after ascertaining whether substantial
questions were framed at the time of admitting the matter and if
not, to frame the substantial question of law on hearing the
learned counsel for the respective parties and thereafter to dispose
of the second appeal in accordance with law.
26. Learned counsel for the appellants draws the attention
of this Court with regard to Section 8 of the Hindu Minority and
Guardianship Act and relied on a decision of the Hon’ble Apex
1
Civil Appeal No. of 2023 in SLP (C) No. 12163 of 2023, dated 07.08.2023
11
Court in “Panni Lal v. Rajinder Singh and Another”2, wherein
the Hon’ble Division Bench held as follows:
“4. Section 8 of the Hindu Minority and Guardianship Act
sets out the C powers of the natural guardian of a Hindu minor.
The natural guardian of a Hindu minor has power, subject to the
provisions of Section 8, to do all acts which are necessary or
reasonable and proper for the benefit of the minor or his estate.
The natural guardian, however, may not without the previous
permission of the court sell any part of the immovable property of
the minor. Any disposal of immovable property which is not
necessary or reasonable and proper for the benefit of the minor
or is without the previous permission of the court is voidable at
the instance of the minor.”
…..
7. In the present case, there is no evidence to show that
the father of the respondents was not taking any interest in their
affairs or that they were in keeping and care of the mother to the
exclusion of the father. In fact, his attestation of the sale deed
shows that he was very much existent and in the picture. If he
was, then the sale by the mother, notwithstanding the fact that
the father attested it, cannot be held to be a sale by the father
and natural guardian satisfying the requirements of Section 8.
27. Further, he relied on a decision in “Pemmada
Prabhakar and Others v. Youngmen’s Vysya Association and
Others”3, wherein the Division Bench of the Hon’ble Apex Court
held as follows:
2
(1993) 4 SCC 38
3
(2015) 5 SCC 355
12
“28. It is an undisputed fact that the suit schedule
property is self-acquired property by late Pemmada
Venkateswara Rao as he had purchased the said property vide
sale deed Document No. 5174 of 1970 dated 24-11-1970 from
his vendors. It is also an undisputed fact that the said property
is intestate property. He is survived by his wife, three sons and
three daughters. The said property devolved upon them in view
of Section 8 of Chapter II of the Hindu Succession Act as the
defendants are Class I legal heirs in the suit schedule property.
Undisputedly, the agreement of sale, Ext. A-1 is executed only
by Defendants 1 and 2. The third son, mother and three sisters
who have got equal shares in the property have not executed the
agreement of sale. In view of the matter, the agreement of sale
executed by Defendants 1 and 2 who have no absolute right to
property in question cannot confer any right whatsoever upon
the plaintiffs for grant of decree of specific performance of
agreement of sale in their favour. The said agreement is not
enforceable in law in view of Section 17 of the Specific Relief Act
in view of the right accrued in favour of Defendants 3 to 6 under
Section 8 of the Hindu Succession Act.
28. In “Bhavyanath rep., by Power of Attorney Holder v.
K.V.Balan (dead) through L.Rs”4, wherein the Division Bench of
the Hon’ble Apex Court held as follows:
“20. In this regard there are two aspects which we would
think has not been considered by the High Court. We have
adverted to the statements in the reply notice sent dated
18-3-2008 by the plaintiff. The measurement took place on
16-3-2008. On measurement it appears to have been found that
the extent available with the defendant was 70.950 cents.
However, the plaintiff found that one cent out of the 70.950
cents was not with the defendant and instead was with one
4
(2020) 11 SCC 790
13
Kochammu and half of cent was with somebody else in the
northern side. However, when this was brought to the notice of
defendant, according to plaintiff, he wanted payment on the
basis that he had the whole of 70.950 cents. Therefore, the said
question related to the title of the defendant, a question relating
to the exact extent available for being conveyed. Secondly and
far more importantly, admittedly there was a mortgage over the
plaint scheduled property created in 1983 by the defendant.
Encumbrance certificates produced by the plaintiff has been
relied upon by the trial court to find that the mortgage had not
been cleared. The defendant in his evidence as DW 1 sets up the
case that the mortgage was cleared and release deed was
available with him. It was at his home. On the one hand, the
encumbrance certificates did disclose the mortgage and they did
not reveal the clearing of the mortgage. The defendant on the
other hand, though setting up the case that the debt was paid
off and mortgage was got released but did not choose to produce
the evidence which was in his possession.
21. The High Court has overlooked this aspect and came
to the conclusion that there was no dispute relating to the title.
Under Ext. A-1 agreement, it was incumbent upon the defendant
to convince the plaintiff about the title of the property and other
connected things. No doubt, the plaintiff had made a demand for
the original title deeds relating to the property, as he wanted to
use them for the purpose of taking a loan in connection with his
proposed construction. This we do not think he was entitled
under the contract and if the defendant refused the title deeds
we would not be in a position to blame him. We are, therefore, of
the view that the High Court has fallen into an error in reversing
the finding that the defendant was in breach of his obligations.”
14
29. In “Waheed Baig v. Bangi Lakshmamma and
Others”5 wherein the Division Bench of Hon’ble Apex Court held
as follows:
“22. A copy of the agreement for sale has been filed
before us. This does not refer to any condition that after payment
of installment the lessee can become the owner and the
agreement for sale was to take effect. Since the appellant was
not the owner of the property, he could not have entered into an
agreement to sell a property of which admittedly he was not the
owner. Great emphasis is laid by learned counsel for the
respondents on Section 13 of the Specific Relief Act, 1963 (in
short "the Act'")……”
30. Whereas, learned counsel for the respondents would
contend that Ex.A1 agreement of sale is valid and enforceable. The
plaint schedule property fell to the share of 1st defendant by virtue
of partition as admitted by the 1st defendant. It is further
contended that the claim of half share and preliminary decree are
all result of collusion and fraud. The 1st defendant being natural
guardian has right under Minority and Guardians Act enter into
transaction on behalf of the minor son. Ex.A1 in respect of Item
No.2, minor’s property is voidable at the instance of the minor. The
4th defendant was minor when Ex.A1 Agreement of sale was
executed, when suit was filed but after his becoming major did not
exercise his option of avoidance or descent. The trial court
5
(2008) 14 SCC 435
15
exercised beyond its jurisdiction gone into irrelevant issues of title
of 4th defendant. Therefore, the Second Appeals are liable to be
dismissed.
31. In support of his contention, learned counsel for the
respondents relied on a decision in “Biswanath Charit v.
Damodar Patra and Others”6 wherein it was held as follows:
“9…. We feel no hesitation in agreeing with and accepting
the view that it was competent for the natural guardian to enter
into and execute an agreement for sale as in the present case for
the benefit of the minors and such an agreement will not be void
altogether but only voidable at the instance of the minor if it can
be shown to be not for his benefit. But in our view the mere fact
that the agreement is not void would not by itself render it
straightway specifically enforceable at the instance of the
purchaser by the natural guardian….
….The matter can be, looked at from another angle, namely, that
even where the court grants such a decree and the natural
guardian executes the conveyance in terms of that decree, that
transfer can be set at naught at the instance of the minor merely
on the ground that such transfer is in contravention of subsection (2). No court is expected to pass such an infructuous
decree. But the question still remains what would happen to
such an agreement, particularly when as has been found in the
present case the agreement is within the competence of the
natural guardian and is for the benefit of the minor. Would it
remain an agreement not enforceable in law? In our view the
legal position is that such an agreement is enforceable but only
upon a previous permission being obtained from the court…..”.
6
1982 SCC OnLine Cal 16
16
32. The Hon’ble Apex Court categorically discussed the
scope of Section 100 CPC in “Gurdev Kaur v. Kaki” 7, which
reproduced hereunder:
“70. Now, after the 1976 Amendment, the scope of Section
100 has been drastically curtailed and narrowed down. The
High Courts would have jurisdiction of interfering under Section
100 CPC only in a case where substantial questions of law are
involved and those questions have been clearly formulated in the
memorandum of appeal. At the time of admission of the second
appeal, it is the bounden duty and obligation of the High Court to
formulate substantial questions of law and then only the High
Court is permitted to proceed with the case to decide those
questions of law. The language used in the amended section
specifically incorporates the words as substantial question of
law' which is indicative of the legislative intention. It must be
clearly understood that the legislative intention was very clear
that the legislature never wanted the second appeal to become
'third trial on facts' or 'one more dice in the gamble'. The effect of
the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the
second appeal only when a substantial question of law is
involved;
(ii) The substantial question of law to precisely state such
question;
(iii) A duty has been cast on the High Court to formulate
substantial question of law before hearing the appeal;
(iv) Another part of the section is that the appeal shall be heard
only on that question.”
7
(2007) 1 SCC 546
17
33. In “Sansar Chand v. Swami Vivekanand Adarsh
Vidha Mandir”8, wherein the Division Bench of Hon’ble Apex
Court as follows:
“8……It was also held that a suit must be filed by a minor
in order to avoid the transaction within the period prescribed
under Article 60 of the Limitation Act. The High Court did not
consider the issue of limitation at all in view of its finding on the
effect of a violation of Section 8(2) of the Act. As conclusion of the
High Court on this aspect of matter is unsustainable, the
impugned decision must be set aside”.
34. In “T.S.Bellieraj v. Vinodhini Krishnakumar and
others”9, wherein the Madras High Court followed the decision
cited below, which reproduced hereunder:
“12. In the decision reported in (State of Maharashtra vs.
Pravin Jethalal Kamdar (dead) by LR’s) AIR 2000 SC 1099
wherein in para-6 it was stated thus:-
“6. …..When possession has been taken by the appellants
pursuant to void documents, Article 65 of the Limitation Act will
apply and the limitation to file the suit would be 12 years. When
these documents are null and void, ignoring them a suit for
possession simplicitor could be filed and in the course of the suit
it could be contended that these documents are nullity. In Ajudh
Raj v. Moti S.o Mussadi (1991) 3 SCC 136: (1991 AIR SCW 1576:
AIR 1991 SC 1600) this Court said that if the order has been
passed without jurisdiction, the same can be ignored as nullity,
that is, non- existent in the eyes of Law and is not necessary to
set it aside: and such a suit will be governed by Article 65 of the
8
(2010) 15 SCC 155
9
2005(4) L.W.606
18
Limitation Act. The contention that the suit was time barred has
no merit. The suit has been rightly held to have been filed within
the period prescribed by the Limitation Act.”
35. In “Shub Karan Bubna Alias Shub Karan Prasad
Bubna”10, wherein the Hon’ble Apex Court held as follows:
“19. The three decisions relied on by the petitioner
(referred to in para 4 above) are not relevant for deciding the
issue arising in this case. They all relate to suits for mortgage
and not partition. There is a fundamental difference between
mortgage suits and partition suits. In a preliminary decree in a
mortgage suit (whether a decree for foreclosure under Rule 2 or a
decree for sale under Rule 4 of Order 34 of the Code), the
amount due is determined and declared and the time within
which the amount has to be paid is also fixed and the
consequence of non-payment within the time stipulated is also
specified. A preliminary decree in a mortgage suit decides all the
issues and what is left out is only the action to be taken in the
event of non-payment of the amount. When the amount is not
paid the plaintiff gets a right to seek a final decree for
foreclosure or for sale.
20. On the other hand, in a partition suit the preliminary
decrees only decide a part of the suit and therefore an
application for passing a final decree is only an application in a
pending suit, seeking further progress. In partition suits, there
can be a preliminary decree followed by a final decree, or there
can be a decree which is a combination of preliminary decree
and final decree or there can be merely a single decree with
certain further steps to be taken by the court. In fact, several
applications for final decree are permissible in a partition suit. A
decree in a partition suit ensures to the benefit of all the co-
10 (2009) 9 SCC 689
19
owners and therefore, it is sometimes said that there is really no
judgment-debtor in a partition decree.
21. A preliminary decree for partition only identifies the
properties to be subjected to partition, defines and declares the
shares/rights of the parties. That part of the prayer relating to
actual division by metes and bounds and allotment is left for
being completed under the final decree proceedings. Thus the
application for final decree as and when made is considered to
be an application in a pending suit for granting the relief of
division by metes and bounds.
36. In “S. Sai Reddy v. S. Narayana Reddy and
Others”11, wherein the Hon’ble Apex Court held as follows:
“7. ……When a suit for partition is filed in a court, a
preliminary decree is passed determining shares of the members
of the family. The final decree follows, thereafter, allotting
specific properties and directing the partition of the immovable
properties by metes and bounds. Unless and until the final
decree is passed and the allottees of the shares are put in
possession of the respective property, the partition is not
complete. The preliminary decree which determines shares does
not bring about the final partition. For, pending the final decree
the shares themselves are liable to be varied on account of the
intervening events. In the instant case, there is no dispute that
only a preliminary decree had been passed and before the final
decree could be passed the amending Act came into force as a
result of which clause (ii) of Section 29-A of the Act became
applicable.
37. In “Prema v. Nanje Gowda and Others”12, wherein the
Hon’ble Apex Court held as follows:
11 (1991) 3 SCC 647
20
“16. …..If the rights of the parties to the suit change due to other
reasons, the court seized with the final decree proceedings is not
only entitled, but is duty-bound to take notice of such change and
pass appropriate order.
38. In “Kasturi v. Iyyamperumal and Others”13, wherein
the Hon’ble Apex Court held as follows:
“19. …..Accordingly, it was submitted that the presence of
Respondents 1 and 4 to 11 would be necessary for proper
adjudication of such dispute. This argument which also weighed
with the two courts below although at the first blush appeared to be
of substance but on careful consideration of all the aspects as
indicated hereinearlier, including the scope of the suit, we are of the
view that it lacks merit. Merely in order to find out who is in
possession of the contracted property, a third party or a stranger to
the contract cannot be added in a suit for specific performance of the
contract for sale because Respondents 1 and 4 to 11 are not
necessary parties as there was no semblance of right to some relief
against Respondent 3 to the contract. In our view, the third party to
the agreement for sale without challenging the title of Respondent 3,
even assuming they are in possession of the contracted property,
cannot protect their possession without filing a separate suit for title
and possession against the vendor. It is well settled that in a suit
for specific performance of a contract for sale the lis between the
appellant and Respondents 2 and 3 shall only be gone into and it is
also not open to the Court to decide whether Respondents 1 and 4 to
11 have acquired any title and possession of the contracted property
as that would not be germane for decision in the suit for specific
performance of the contract for sale, that is to say in a suit for
specific performance of the contract for sale the controversy to be
decided raised by the appellant against Respondents 2 and 3 can
only be adjudicated upon, and in such a lis the Court cannot decide
12 (2011) 6 SCC 462
13 (2005) 6 SCC 733
21
the question of title and possession of Respondents 1 and 4 to 11
relating to the contracted property.”
39. In “Nazir Mohamed v. J. Kamala and Others”14,
wherein the Hon’ble Apex Court held as follows:
“28. To be "substantial", a question of law must be debatable, not
previously settled by the law of the land or any binding precedent,
and must have a material bearing on the decision of the case
and/or the rights of the parties before it, if answered either way.
29. To be a question of law "involved in the case", there must be
first, a foundation for it laid in the pleadings, and the question
should emerge from the sustainable findings of fact, arrived at by
courts of facts, and it must be necessary to decide that question of
law for a just and proper decision of the case.
30. …..
31. Whether a question of law is a substantial one and whether
such question is involved in the case or not, would depend on the
facts and circumstances of each case. The paramount overall
consideration is the need for striking a judicious balance between
the indispensable obligation to do justice at all stages and the
impelling necessity of avoiding prolongation in the life of any lis.
This proposition finds support from Santosh Hazari v.
Purushottam Tiwari15.
40. In “Manga Ram v. Har Lal”16, wherein the High Court
of Rajastan at Page No. 538 held as follows:
“The learned Judge also referred to the observation made in Peart
Mohan Shaha v. Durlavi Dassya (4) which did not follow the view
14 (2020) 19 SCC 57
15 (2001) 3 SCC 179
16 1959 SCC OnLine Raj 164
22
expressed in Sayam Ramamoorthi Dhora's case (1). Again turning to
the Evidence Act it was pointed out by the learned Judge that "secs.
41 and 42 draw a distinction between Judgments in rem and
judgments in personam and it seems to me to be clear from the
sections that a Judgment which does not fall within sec. 41 can only
be evidence but cannot be used for the purpose of preventing the
other side from proving facts which he sets up". It was further
observed that "it is not open to us to import considerations as to
convenience in dealing with matters which have been codified and
dealt with by Evidence Act, however attractive the theory may be
and however much one would like to have the principle embodied by
the legislature in the codes". I entirely agree with the view
expressed above. It is clear from what has been discussed above
that sec. 11 C.P.C. would not apply in terms to the present case as
Harlal was not a party to the previous suit for declaration. The
judgment in the previous suit being a judgment in personam, it is
not conclusive under sec. 41 of the Evidence Act and it can only be
evidence under sec. 42 of the Evidence Act.”
41. In “Ganesh Singh v. Hari Singh and Others”17
wherein the High Court of Rajastan held as follows:
“3. The provisions of Sections 41 to 43 of the Act make it clear that
if a judgment of the court is a judgment in rem, it is binding in
subsequent proceedings on that issue though the parties may not be
same. But if it is a judgment in personam, it does not have any
binding effect in subsequent proceedings. This issue was considered
by the Privy Council in Mahomed Saddique Yousuf v. Official
Assignee of Calcutta (1), wherein it was held that in proceedings of
insolvency, an order passed on adjudication is of a binding nature
being a judgment in rem and a person, who may not be a party in
the insolvency proceedings, cannot challenge the said order for the
reason that the order of adjudication was conclusive in nature and
cannot be disputed.
17 2002 SCC OnLine Raj 473
23
42. In “S.P.Chengalvaraya Naidu (dead) by L.Rs v.
Jagannath (dead) by L.Rs and Others”18 wherein the Hon’ble
Apex Court held as follows:
“5. ……The principle of “finality of litigation” cannot be pressed to
the extent of such an absurdity that it becomes an engine of fraud in
the hands of dishonest litigants. The courts of law are meant for
imparting justice between the parties. One who comes to the court,
must come with clean hands. We are constrained to say that more
often than not, process of the court is being abused……
6……A litigant, who approaches the court, is bound to produce all
the documents executed by him which are relevant to the litigation.
If he withholds a vital document in order to gain advantage on the
other side then he would be guilty of playing fraud on the court as
well as on the opposite party”.
43. In “Periyanayagam v. Rajendran and Others”19
wherein the Madras High Court held as follows:
“5. ……
"A valid agreement is one which is fully operative in
accordance with the intent of the parties. A void agreement is one
which entirely fails to receive legal recognition or sanction, the
declared will of the parties being wholly destitute of legal eiticacy. A
voidable agreement stands midway between these conal and not
asilty, but its on of snie detect in its origin it is liable to be destroyed
or cancelled at the option of one of the parties to it. On the exercise
of this power, the agreement not only ceases to have any efficacy,
but is deemed to have been void ab initio. The avoidance of it relates
back to the making of it. The hypothetical or contingent efficacy
18 (1994) 1 SCC 1
19 1988-1- L.W
24
which has earlier been attributed to it wholly dis-appears, as if it
had never existed. In other words, a voidable agreement is one
which is void or valid at the election of one of the parties to it."
…..
It is thus seen from the passages above that the avoidance or
repudiation by a minor whatever be its form, renders the transaction
so repudiated void since its inception. It would also be useful in this
connection to refer to the observation of the Full Bench of this Court
in Ramaswami Iyengar v. Ranga Chariar20. Though that case
related to the question of court fee with reference to the provisions of
Court-fees Act, VII of 1870, the Full Bench considered the question
whether, under the substantive law by which the party is governed,
he is bound to sue for a declaration of cancellation in respect of
transactions to which the plaintiff is made a party…..”
…..
“The above extracted observations of the Full Bench
referring to two other earlier decisions clearly establish that an
election to avoid may as well be by instituting an action to recover
possession of the property. It would, therefore in my view suffice if
the transaction-under Ex.B1 is avoided by the institution ofl the suit
for recovery of possession”.
44. Perused the record.
45. It is the contention of the learned counsel for the
appellants that the trial court has rightly came to a conclusion
how the agreement is forged one, the signature and also the dates
of the agreement Ex.A1. It is further contended that PW-1
admitted that the three signatures and also could not give the
20 51 L.W.11= 1940 -1 MLJ 32 (FB)
25
name of the person, who subscribed the middle signature, which
are the latches in the agreement, but the same was not proved by
way of evidence, but the first appellate court went wrong notion
and simply set aside the judgment of the trial court without given
valid reasons.
46. As per Ex.A7 shows that the 4th defendant is having half
share in Item No.1 of plaint schedule property, so also the trial
court also held that the 4th defendant is the absolute owner of the
half share of Item No.1 and 3; the 5th defendant is the absolute
owner of the Item No.2 of plaint schedule property. The defendants
1 and 2 have got nothing to do with the same.
47. Whereas it is the contention of the respondents that the
plaint schedule property consists of three items and the entire
land fell to the share of 1st defendant only by virtue of partition
deed dated 27.06.1998 between 1st defendant and 4th defendant,
but the said document was not filed, though admitted the
partition. Further during the cross examination of DW-1 he
admitted that he and his brother Ankamma partitioned the
properties under partition deed dated 27.06.1998 and Item No.1 to
3 fell to his share. The first appellate court held that considering
the evidence of PWs 1 to 4 coupled with Ex.A1 and also
26
admissions of DW-1 find that the defendants 1 and 2 are entitled
to execute Ex.A1 agreement of sale in favour of the plaintiff in
respect of Item No.1 to 3 of the plaint schedule.
48. Further the first appellate point out with regard to
finding of the trial court that “the 5th defendant and son of 4th
defendant are entitled for equal shares subject matter of the sale
deed is also beyond the scope of suit and it is not sustainable. As
discussed above the title of the defendants cannot be declared in a
suit for specific performance filed by the plaintiff and the court has
to see whether the plaintiff proved the execution of Ex.A1, I find the
conclusion of the trial court that the contents of Ex.A1 agreement of
sale do not show that the defendants 1 and 2 under took to prevail
over the vendor under Ex.B1 and that he would also join the
execution of sale deed it shows by the date of execution of Ex.Al
plaintiff does not even though the nature of execution of Item No.3 of
plaint schedule is also not based on the evidence on record. There is
no such presumption under law that whenever any transaction is
based on agreement the said fact would be recited in subsequent
agreement. In my considerable opinion it is for the plaintiff to face
the consequences if the defendants 1 and 2 have no right to execute
the registered sale deed in his favour. But refusing specific
performance on the ground that the persons who are not parties to
27
Ex.A1 is having right over the plaint schedule property is not proper.
It is pertinent to note that Ex. B8 proves the 4" defendant and his
son filed OS.812/2005 against the defendants 1 and 5 herein for
partition of Item No.1 of agreement of sale along with some other
property and the said suit was decreed for partition of subject
matter of the suit in two equal shares”.
49. Whereas the trial court while answering the issue No.2
in O.S.No.29 of 2007 wherein, it is categorically held that “(4) It is
pertinent to note that though it was recited on the top of Ex.A1-
agreement of sale that the said document was executed by the
defendants 1 and 2, the contents of the document show as if the
said document was executed by the first defendant alone. At the
second page of Ex.A1-agreement of sale, at the right bottom,
wherein the signatures of the vendees naturally appear, the thumb
impression said to be that of the second defendant and the
signature said to be that of the first defendant were found. In
between these two, somebody's signature was also found. That is to
say, three persons executed the said Ex.A1-agreement of sale.
When confronted, P.W.1, though admitted that there appear three
signatures, he could not give out the name of the person who
subscribed that middle signature. This being a document said to
have been executed by the defendants 1 and 2, there is no need for
28
any other to subscribe his signature besides the defendants. Being
custodian of the said Ex.A1-agreement of sale right from the
inception of its execution till it was filed into Court, it is for the
plaintiff to explain as to when and who subscribed the said
signature. This also creates a doubt on the veracity on Ex.A1 -
agreement of sale, as to what was the real intention of the parties to
the said document and had there ever been any intention of the
parties to use the said document as an agreement of sale”.
50. Since the suit filed for specific performance of agreement
of sale, the plaintiff must express his readiness and willingness to
perform his part of contract till conclusion of the proceedings as a
responsibility, but same was not done. Further it is the contention
of the plaintiff that he was handed over the possession of the suit
schedule property i.e as per Ex.A1 agreement of sale. Whereas the
1st defendant would contend that the brother of the plaintiff has
taken the said property on lease. Further the PW-1 was never in
possession of the plaint schedule property as a tenant, but
claiming possession of the property as per Ex.A1 agreement of
sale, but the plaintiff did not shown any revenue records to prove
his possession over the plaint schedule property.
29
51. Therefore, in the absence of any documentary evidence
showing the possession of the plaintiff, the trial court relied on the
evidence of PWs 1, 6 and 7 for conclusion that the plaintiff has
been in possession and enjoyment of the suit schedule property
and holding that by the introduction of Ex.A8, the agreement of
sale vide Ex.A1 lost its significance and efficacy and the
possession of plaintiff over the plaint schedule property cannot be
believed.
52. The defendants 1, 4 and 5 in O.S.No. 29 of 2007 has
filed a suit for permanent injunction in O.S.No.431 of 2010
contending that the 2nd defendant, who is brother of 1st defendant
and plaintiff in O.S.No.29 of 2007 took the plaint schedule
property on lease for one year and he fell in arrears of rent, they
demanded him to pay the same, he filed a suit for permanent
injunction. The trial court has rightly established the facts by
relying on both documentary and evidence on record and held that
the defendants in suit in O.S.No. 431 of 2010 are not in
possession of the suit schedule property and that the plaintiffs are
absolute owners of the plaint schedule property. Hence decreed
the suit in O.S.No.431 of 2010 and consequently dismissed the
suit in O.S.No. 29 of 2007 with clear findings.
30
53. After close scrutiny of the judgment of the first appellate
court, this Court finds that the first appellate court has not
applied its mind in right perspective. The view taken by the trial
court and first appellate court are different. Therefore there was a
confusion to deal with the issues. Further the first appellate court
discussed the issues beyond jurisdiction. Therefore, I find
impropriety and irregularity in the judgment of the first appellate
court and that the same is liable to be set aside.
54. Both the counsel relied on catena of decisions of various
High Courts and also Hon’ble Apex Court substantiate of their
respective pleas. In the instant case, the decisions relied on by the
learned counsel for the appellants are applicable to the facts of the
case. Whereas, learned counsel for the respondents mainly relied
on the aspect of framing of substantial question of law and
submitted a case law. Since the suits were clubbed together and
common evidence was recorded by the trial court. Therefore the
issues framed and the evidence recorded in the suit would become
common in both the suits and there is no need or necessity to
frame further issues in any manner. Once the parties agrees to
decide the suits by common judgment by conducting joint trial
with regard to same subject matter, question of framing additional
issues does not arise. The learned counsel for the respondents
31
would contend that as there is vast difference with regard to issues
involved in both the suits, since one suit is filed for grant of
permanent injunction and another one is suit seeking for specific
performance. Therefore independent issues have to be framed to
avoid conflict findings. The said plea can be agitate before the trial
court only, but not in Second Appeal, if they have any objections.
But the in the instant case, the parties and also the suit schedule
property is one and same and that the suit decided by a common
judgment by the trial court at the request of both the parties.
Therefore the contention of learned counsel for the respondents as
referred above cannot be looked into at this stage. If such pleas
allowed, any amount of prejudice will be caused to the parties;
more so, there is no end for the litigation.
55. In view of the foregoing discussion, this Court is inclined
to setting aside the common judgment of the first appellate court
by confirming the judgment of the trial court.
56. In the result, the Second Appeals are allowed, by a
Common Judgment. There shall be no order as to costs.
32
As a sequel, miscellaneous applications pending, if any,
shall also stand closed.
___________________________________
DR.JUSTICE K. MANMADHA RAO
Date: 24.11.2023.
KK
33
THE HON’BLE Dr.JUSTICE K. MANMADHA RAO
SECOND APPEAL Nos.135 and 147 of 2023
Date: 24.11.2023.
KK
