THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.No.193 of 1994 Date:21.12.2010 Between: Basupalli Lingamaiah (died) Basupalli Dhananjaiah and others. ….Appellants. And: Saggiraju Pedda Soma Raju (died) Basupalli Raghunandam and others …..Respondents. THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.No.193 of 1994 JUDGMENT: This is an appeal filed under Section 96 C.P.C against the judgment and decree passed in O.S.No.13 of 1993 by the District Judge, Ranga Reddy District on 02.12.1993. The appellants herein are the plaintiffs. They have filed the suit for declaration that the plaintiffs 1 and 2 are the sons of Agaiah and to whom the suit schedule land of Acs.3.22 gts., in S.No.25/1 of Petbasheerabad village was assigned. Agaiah was in possession of the suit land and cultivated the same till the date of his death on 16.6.1959, leaving behind plaintiffs 1 and 2 and the 2nd defendant as his heirs. After the death of Agaiah, plaintiffs 1 and 2 and 2nd defendant came into possession of the suit land and continued their possession over the suit land, undisturbed. First plaintiff received a notice dated 04.10.1982, on 29.10.1982 addressed to his late father Agaih, alleging that the suit land has been transferred. Since there has been no assignment or transfer of the suit land either by Agaiah or by plaintiffs 1 and 2, plaintiffs 1 and 2 sent a reply dated 1.11.1982 to the Tahsildar, Medchal denying the sale of the suit land either by their father or by themselves which was received by the Tahsildar on 2.11.1982. On enquiry and after obtaining a registration extract of the Document No.694/65 plaintiffs came to know that a sale deed was executed in December, 1965 by about 25 persons in favour of the Administrative Officer, Cooperative Industrial Estate Limited, Balanagar, regarding Acs.87.15 gts., in S.No.25/1 of Petbasheerabad village in which 2nd defendant is shown as one of the vendors, showing his age as 19 years in the said sale deed. At the time of the sale deed dated 11.12.1965 the 2nd defendant was aged 16 years, as his date of birth was 26.9.1949. The land covered by the said sale deed was non-alienable. This apart, the 2nd defendant alone is incompetent to transfer the said land, as plaintiffs 1 and 2 are also the legal representatives of Agaih. The Plaintiffs 1 and 2 were not aware of the sale deed till the notice dated 04.10.1982 was received from Tahsildar, Medchal. The first plaintiff sent a notice to Administrative Officer, Cooperative Industrial Estate Limited, Balanagar but the same was returned un-served. On enquiry from the villagers and from some other sources, plaintiffs 1 and 2 to learn that the first defendant created certain documents in his favour in respect of the suit land. So, the first plaintiff sent a notice dated 3.6.1983 to the first defendant, through his advocate, which was received on 9.6.1983 by the first defendant. Plaintiffs 1 and 2 came to know that some unscrupulous people, in collusion with the then Patwari, manipulated a sale deed in respect of Acs. 89.00 gts., for a sum of Rs.40,000/- though the market value of the land was not less than Rs.5,000/- per acre by that date. The 2nd defendant informed plaintiffs 1 and 2 that he never went to the registration office nor executed any sale deed or received any consideration. The sale deed allegedly executed by the 2nd defendant along with others on 11.12.1965 is bogus and forged and is not binding on plaintiffs 1 and 2, as they were not parties to the said documents. The Plaintiffs have been in continuous possession of the suit land and their possession was not disturbed at any time. First defendant who received the notice sent by the first plaintiff did not sent any reply. The Plaintiffs 1 and 2 being the legal representatives of Agaiah are entitled to continue in possession of the suit land. Since the first defendant and his representatives are trying to interfere with the possession of the plaintiffs over the suit land, the suit is filed for a declaration that the plaintiffs are the owners of the suit land of Acs.3.22 gts., in Sy.No.25/1 of Petbasheerabad and that the sale deed dated 11.12.1965 is not binding on the plaintiffs and for a decree of perpetual injunction restraining the first defendant and his men from interfering with the possession of plaintiffs over the suit land. The first defendant filed a written statement admitting the assignment of land in favour of B. Agaiah and denied the rest of the allegations and he also denied that B. Agaiah died on 16.6.1959 leaving behind the plaintiffs 1 and 2 and 2nd defendant, and that the plaintiffs 1 and 2 came into possession of the suit land after the death of Agaiah, and he is not aware of the issue of any notice by the Tahsildar, and about the reply said to have been sent by the 1st plaintiff thereto as alleged in the plaint. The suit land measuring Acs.3.22 gts., in S.No.25/1 of Petbasheerabad was assigned to B. Agaiah in the year 1954 along with some others known as Burra Mallaiah and 24 others. Burra Mallaiah and others, including B. Agaih, filed a petition on 28.10.1965 before the Collector, Hyderabad seeking permission under Sec.58-A of Hyderabad Land Revenue Act to sell the lands, assigned to them, in favour of Cooperative Industrial Estate Limited, Balanagar. After following the procedure and collecting the reports from the concerned offices, the Collector, Hyderabad granted permission as sought by the assignees. In pursuance of the said permission accorded to the assignees, including B. Agaiah, the assignees sold the land measuring Acs.89-15 gts., to Cooperative Industrial Estate Limited., Balanagar, Hyderabad under a registered sale deed dated 11.12.1965. The said Cooperative Industrial Estate, Balanagar, Hyderabad in turn sold the said land to Agro Industries Cooperative Society under a registered sale deed dated 1.4.1966 and put the Agro Industries Cooperative Estate in possession of the said land. Agro Industries Cooperative Estate continued in possession of the said land from 01.04.1966 onwards. One V.V.Raman filed a suit in O.S.No.73 of 1972 before the Munisiff Courts at Hyderabad and the trial court did not grant interim injunction, but the appellate court granted an injunction. On the basis of the orders of injunction, V.V. Raman got into possession of the said land. Subsequently, Agro Industries Cooperative Estate Limited filed a suit in O.S.No.19 of 1969 in the court of the Chief Judge, City Civil Court, Hyderabad seeking declaration of title and possession of the lands purchased by it. Both the suits were clubbed together and the Chief Judge, City Civil Court, Hyderabad decreed the suit filed by the Agro Industres Cooperative Society and dismissed the suit filed by V.V. Raman. The first defendant along with two others purchased the suit land and some other lands from the Agro Industries Cooperative Estate Limited under a registered sale deed dated 03.08.1979 and the purchasers were put in possession of the lands purchased by them. Thus, the first defendant entered into possession of the suit land and is paying land revenue to the Government. The sale deed executed on 11.12.1965 is valid, legal and is binding on the plaintiffs. Plaintiffs 1 and 2 and the 2nd defendant lost their title and possession on 11.12.1965. The predecessor in title of the 1st defendant acquired title and possession of the suit land and was in possession from 11.12.1965 and hence the title is perfected by adverse possession also. The Plaintiffs 1 and 2 who are fully aware of the facts and who have applied for a certified copy of the sale deed on 20.06.1966 have kept quiet from 20.6.1986. There is no cause of action to file the suit. The suit is not properly valued for the purpose of court fees. The suit is bad for non- joinder of necessary parties and is barred by resjudicata and limitation. Hence, the suit is to be dismissed with costs. The 2nd defendant has filed a written statement supporting the case of the plaintiffs, contending that B. Agaiah was the owner and possessor of Acs.3.22 gts, in Sy. No.25/1 of Petbasheerabad village which is not transferable and that B. Agaiah died on 16.6.1959 and that plaintiffs 1 and 2 and the 2nd defendant are the heirs to the estate of Late B.Agaih, and that he is not aware of the sale deed executed in favour of the Administrative Officer of the Cooperative Industrial Estate, Balanagar, Hyderabad to an extent of Acs.89.15 gts., in S.No.25/1 and that he was not a party to the said sale deed, and that he never went to the registrar’s office or executed any sale deed or received consideration, and that his date of birth is 20.6.1949, and that he, along with plaintiffs 1 and 2, is in possession of the suit land and was never dispossessed there from and so the suit may be decreed. Basing on the above pleadings, the lower court framed the following issues: 1. Whether the suit land is not transferable? 2. Whether the suit land is validly transferred by D-2? 3. Whether D-2 acquired valid title to the suit land by virtue of his purchase? 4. Whether D-2 perfected his title to the suit land by adverse possession? 5. Whether the suit is bad for non-joinder of necessary parties? 6. Whether the suit is barred by limitation? 7. Whether plaintiffs are entitled for declaration and injunction as prayed from? 8. To what relief? On behalf of the plaintiffs, the 1st plaintiff himself examined as P.W.1 and examined one Eswaraiah as P.W.2 and got marked Exs.A-1 to A-13. In support of the case of the plaintiffs, the 2nd defendant examined himself as D.W.1 and got marked Ex.B-1. 1st defendant examined himself as D.W.2 on his behalf and examined Venkat Narasiah and V.S.Jyothi Raju as D.Ws.3 and 4 and got marked Exs.B.2 to 14 on his behalf. After taking into consideration of the said oral and documentary evidence, the lower court held the issues 1 to 3 and 4 in favour of plaintiff and issues 5 and 6 were held against the plaintiffs and thereby dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is field by the plaintiffs questioning the finding given by the lower court on the issues 5 and 6. Now the points that arise for consideration are: 1. Whether the suit filed by the plaintiffs bad for non-joinder of necessary parties? 2. Whether the suit is barred by limitation? Point No.1: The learned counsel for the appellants has pleaded that the 1st defendant has not pleaded specifically as to how the suit is barred for non-joinder of necessary parties and who are the necessary parties to the suit and the said averments in the written statement are bald and no specific reasons were assigned for such a plea, as such the said plea of the 1st defendant is not sustainable. He further pleaded that it is for the plaintiffs to add the proper and necessary parties to the suit and the parties cannot be added at the instance of the defendants. In support of his contention, he relied upon a decision rendered in Mumbai International Air Port Private Limited v. Regency Convention Centre and Hotels Private Limited and others[1] wherein the Apex Court has considered who is the necessary and proper party to the proceedings and held that: “The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But, that general rule is subject to the provisions of Order 1 Rule 10(2) CPC by which the court is given the discretion to add as a party, any person who is found to be a necessary party or property party.” The Apex Court further held: “A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. A “necessary party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all mattes in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.” The learned counsel for the 1st respondent, on the other hand, has pleaded that since the plaintiffs are seeking for declaration that the sale deed dated 11.12.1965 is not binding on the plaintiffs and the parties in whose favour the said sale deed was executed are proper and necessary parties to the suit and the lower court has rightly observed that the suit schedule property is the assigned land of late Agaiah and it has became the self acquired property of late Agaiah and as such all his legal heirs are entitled to succeed to the property and the said Agaiah is having two daughters along with his wife as on the date of his death and hence they are also proper and necessary parties to the suit. In support of his contention, the learned counsel for the 1st respondent relied upon a decision rendered in Chintala Uday Shankar and others v. Subedar Saheb Choultry, Trust Board, Rajahmundry, East Godavari District and others[2] wherein the Apex Court has held that: “The suit is not filed for recovery of possession and without filing the suit for possession, as admittedly the suit property is not in possession of the plaintiff, the suit filed for declaration that the sale deeds obtained by the defendants are null and void and are liable to be set aside without impleading their vendors and persons, who are in possession, is not maintainable.” In view of the above two decisions relied upon by the appellants counsel it has to be examined as to whether the appellants have impleaded the proper and necessary parties to the suit. According to the plaintiffs, they came to know that in December, 1965 about 25 persons have executed a sale deed in favour of the Administrative Officer of Cooperative Industrial Estate, Balanagar, Hyderabad regarding Ac. 87.15 gts., in Survey No.25/1, Pethbasheerbad village. According to the defendants, late B. Agaiah obtained permission from the District Collector, Hyderabad under Section 58-A of Hyderabad Land Revenue Act to sell the assigned land in favour of Cooperative Industrial Estate, Balanagar, Hyderabad. In the said sale deed, the 2nd defendant acted as the agent of late Agaiah and executed a sale deed in the name of the Cooperative Industrial Estate, Balanagar, Hyderabad and in turn the Cooperative Industrial Estate, Balanagar, Hyderabad has executed a sale deed dated 1.4.1966 in favour of the Agro Industries Cooperative Society and the said society has been in possession of the said land. Therefore, the said sale deed dated 11.12.1965 was executed in favour of Cooperative Industrial Estate, Balanagar, Hyderabad by D-2 in respect of the suit schedule property out an extent of Ac.87.15 gts. Now the appellants are seeking for the said sale deed dated 11.12.1965 is not binding on them. The said sale deed is marked as Ex.A-5. As per the said sale deed, the defendants and 24 others are the vendees and they sold the property in favour of Cooperative Industrial Estate, Balanagar, Hyderabad but none of them were made as parties to the present suit. According to the 1st defendant himself and along with others have purchased the suit schedule property from the Agro Industries Cooperative Society Limited under the registered sale deed dated 03.08.1979 and the said Agro Industries Cooperative Society Limited has purchased the said land from the Cooperative Industrial Estate, Balanagar, Hyderabad. Therefore, the 1st defendant has acquired the title over the suit schedule property from his predecessors but none of them are made a parties to the suit. Since the appellants are seeking indirectly for cancellation of the sale deed dated 11.12.1965 and thereby the vendors and vendees of the said document are affected parties and subsequent purchasers of the said property are also affected parties and as such they are proper and necessary parties to the suit. Therefore, as per the decision relied upon by the learned counsel for the appellants since they are proper and necessary parties to the suit. Apart from the above said contention, the lower court has observed that the late Agaiah was assigned with the said suit schedule property and after his death, the plaintiffs 1 and 2, defendant No.2 who are his sons and his daughters and wife who are alive as on the date of his death, are also entitled to succeed to the suit schedule property and so they are also proper and necessary parties to the suit. The appellants have not disputed about the said Agaiah is having two daughters and his wife as on the date of his death. Therefore, for the suit for declaration of the title over the suit schedule property, they are also proper and necessary parties. In view of the amendment to C.P.C to Order I Rule 9, non-joinder of necessary parties fatal to the maintainability of the suit. Therefore, the suit is bad for non-joinder of necessary parties. Accordingly, the point No.1 is answered. Point No.2: The learned counsel for the first respondent has pleaded that the suit is barred by limitation. The learned counsel for the appellants has pleaded that the suit schedule property was assigned in favour of late Agaiah and he died on 16.06.1959 and after his death, the plaintiffs and D-2 have succeeded the said property as his legal heirs and they have received a notice dated 4.10.1982 from Thasildar, Medchal on 29.10.1982 and then only they came to know about the alienation of the said property and subsequently after verification they came to know about a Document No.694/65 was executed by 25 persons including the defendant No.2 in favour of the Administrative Officer, Cooperative Industrial Estate Limited, Balanagar for an extent of Ac.87.15 gts., in Sy. No.25/1 of Petbasheerabad. According to the learned counsel for the appellants, the appellants have come to know about the alienation only on 29.10.1982 and as such the suit filed on 22.10.1983 is within the period of limitation. He further pleaded that the cause of action for filing the present suit is arose only on 29.10.1982 and the limitation is three years from the date of cause of action as per Article 58 of Limitation Act. In support of his contention, he relied upon a decision rendered in Daya Singh v. Gurdev Singh[3] wherein the Apex Court held that: “The only question, therefore, to be decided is whether the mere existence of an adverse entry in the revenue records had given rise to cause of action as contemplated under Article 58 or it had accrued when the right was infringed or threatened to be infringed. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.” Therefore, in view of the above said decision and in view of Article 58 of the Limitation Act, the limitation starts from the date of accrue of the cause of action. According to the plaintiffs, the cause of action arose for them on 29.10.1982 when they have received the notice from the Thasildar dated 4.10.1982 on 29.10.1982 alleging about alienation of the suit schedule property in favour of third parties and seeking for cancellation of the assignment issued in favour of late Agaiah. The learned counsel for the first respondent, on the other hand pleaded, has pleaded that the plaintiffs have come to know about the registered sale deed dated 11.12.1965 in the year 1966 itself as they have obtained certified copy of the same on 20.06.1966. He further pleaded that the registered sale deed was executed on 11.12.1965 by 25 persons in favour of Administrative Officer, Cooperative Industrial Estate Limited, Balanagar in respect of Ac.87.15 gts., in Sy. No.25/1 including the suit schedule property and the said society in turn sold the same to the Agro Industries Cooperative Society by registered sale deed dated 01.04.1966 and they were put in possession of the suit schedule property and in turn Agro Industries has sold the land in favour of 1st defendant and others under a registered sale deed dated 03.08.1979 and they were put in possession of the said land and they are in possession of the said land as on the date of filing of the suit and they are paying the land revenue and the plaintiffs are lost their possession on 11.12.1965 itself and when they have lost the possession and they were not in possession from 11.12.1965 itself, as such the suit filed by them for declaration and injunction is not maintainable without seeking for any relief of recovery of the possession. With regard to the knowledge of the plaintiffs about registered sale deed dated 11.12.1965, the defendants examined one V.S. Joyothi Raju, employee of the Sub Registrar Office, Medchal as D.W.4 and according to him Ex.B-12 is the certified copy of the sale deed dated 11.12.1965. Ex.B-12 was issued by their office on 20.12.1966. Ex.B-12 is the certified copy of the Document No.694/65 dated 11.12.1965. As per the translation filed by the counsel for the 1st respondent with regard to the Urdu words mentioned on the said document, the stamp paper was purchased on 20.6.1966 by one Lingaiah son of Agaiah and he purchased the said stamp paper for his own use. The counsel for the 1st respondent pleaded that the said Lingaiah son of Agaiah is appellant No.1 herein and as such they have got knowledge about the execution of the sale deed dated 11.12.1965 in the year 1966 itself. From the above document Ex.B-12 and the evidence of D.W.4, it is clear that the certified copy of the sale deed dated 11.12.1965 was obtained by the appellant No.1 on 20.6.1966 itself. Therefore, he has got knowledge of the execution of the said document in the year 1966 itself. As such the contention of the counsel for the appellant No.1 that they came to know about the alleged alienation of the suit schedule property on 29.10.1982 cannot be accepted. More over, the counsel for the 1st respondent has pleaded that when the documents are registered in Sub Registrar’s office itself is a notice to all the parties. In support of his contention, he relied upon Section 3 of the Transfer of Property Act (in short, the T.P. Act). Section 3 of the T.P. Act deals with interpretation clause immovable property, instrument, attested, registered, attached to the earth, actionable claim in Explanation-1. As per Explanation-1, “where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in such property shall be deemed to have notice of such