IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE R.KANTHA RAO A.S.Nos.986 of 1998 and 987 of 1998 10.02.2010. A.S.No.986 of 1998:- Between:- M.Indira Vani .. Plaintiff/ Appellant And M/s.New Wave Securities and Industrial Credits Ltd. having its registered office at Hyderabad, represented by its Director – V.Someswara Rao and two others. ..Defendants/Respondents And A.S.No.987 of 1998:- Between:- M.Indira Vani .. Defendant/Appellant And M/s.New Wave Securities and Industrial Credits Ltd. having its registered office at Hyderabad, represented by its Director – V.Someswara Rao. ..Plaintiff/Respondent COMMON JUDGMENT:- The appeal–A.S.No.986 of 1998 arises out of the decree and Judgment passed in O.S.No.736 of 1996 and A.S.No.987 of 1998 arises out of the decree and Judgment passed in O.S.No.357 of 1996 on the file of the Principal Senior Civil Judge, Rangareddy. The learned trial Judge disposed of those suits by a common Judgment dated 15.04.1998 since both the suits are between the same parties and issues involved for consideration are also the same. By his common Judgment, the learned trial Judge decreed O.S.No.357 of 1996 filed by M/s.New Wave Securities and Industrial Credits Limited and dismissed O.S.No.736 of 1996 filed by Smt M.Indira Vani. 2. Feeling aggrieved, Smt M.Indira Vani, plaintiff in O.S.No.736 of 1996 preferred these two appeals. Since the two appeals arise out of the common Judgment involving the common questions of law and fact between the same parties, they are being disposed of by the following common Judgment: 3. For the sake of convenience, the parties will be referred to as the plaintiff and defendants as they were originally arrayed in O.S.No.736 of 1996. 4. The first defendant filed O.S.No.357 of 1996 for recovery of possession of the schedule mentioned property, which consists of three floors but subsequently, restricted the relief only to the ground floor portion by seeking amendment, which is allowed by the trial Court. 5. O.S.No.736 of 1996 is filed by the plaintiff. The contention urged by the first defendant is that Smt Indira Vani executed an agreement of sale in favour of the first defendant having agreed to sell the plaint schedule property for a total consideration of Rs.8,00,000/- on 20.05.1994 and subsequently, she executed a power of attorney dated 28.05.1994 in favour of defendant No.2, who is the Managing Director of defendant No.1, authorizing him to obtain the sale deed and subsequently, defendant No.2 executed a registered sale deed in favour of defendant No.1 firm on 01.05.1996 and obtained possession of the entire schedule premises and in turn, handed over the possession to defendant No.1 firm. It is submitted that the brother-in-law of the plaintiff-J.Sivanagi Reddy was in possession of the property on the ground that the plaintiff executed an agreement of sale in his favour. The defendants, with a view to amicably settle the dispute, paid a sum of Rs.1,75,000/- and obtained possession from him. It is further submitted that one B.Ramchandra Reddy, having obtained a decree against the plaintiff in O.S.No.170 of 1996, got attached the suit schedule properties for an amount of Rs.2,75,000/-. To avoid any dispute with the said Ramachandra Reddy, the defendants paid an amount of Rs.1,00,000/- to him. 6. According to the defendants, on 01.06.1996, the plaintiff occupied the ground floor by falsely contending that she did not sell the suit schedule property to the defendants and she also refused to vacate the same and under the said circumstances, defendant No.1 instituted O.S.No.357 of 1996 against the plaintiff. 7. On the other hand, it is the contention of the plaintiff, who filed O.S.No.736 of 1996, that she obtained loan of Rs.1,50,000/- from defendant No.2 and executed a promissory note in favour of defendant No.2 agreeing to repay the amount with interest at 36% p.a. Defendant No.2 obtained a general power of attorney from the plaintiff in respect of the suit schedule property vide document No.728/94 dated 28.05.1994 against security for the amount borrowed and he also obtained her signatures on blank stamp papers and white sheets. The defendants, with a fraudulent intention and in utter disregard of the terms, created a sale deed dated 01.05.1996 vide document No.2088/96. The market value of the schedule mentioned property is more than Rs.25,00,000/-. She never intended to sell the said property for a paltry sum of Rs.4,90,000/- by authorizing defendant No.2 and therefore, the sale deed dated 01.05.1996 said to have been executed by defendant No.2 got executed by fraud and accordingly, she sought for declaration to that effect and also sought to set aside the sale transaction under the sale deed dated 01.05.1996. 8. Basing on the rival contentions, the learned trial Court framed the following issues in O.S.No.736 of 1996: 1) Whether the plaintiff is entitled to seek declaration and for cancellation of the sale deed dated 01.05.1996 bearing document No.2088/96 executed by defendant No.2 in favour of defendant No.1? 2) Whether the plaintiff is entitled for the injunction sought for? 3) To what relief? In O.S.No.357 of 1996, the following issues are framed for trial: 1) Whether the plaintiff is entitled for recovery of possession of suit schedule property by evicting the defendant there from? 2) Whether the sale deed dated 01.05.1996 is valid and enforceable against the defendant? 3) Whether the Court fee paid is sufficient? 4) To what relief? 9. Both the suits were tried jointly and during the course of trial before the Court below, nobody has been examined on behalf of the plaintiff and no documents were marked whereas D.Ws.1 to 3 were examined on behalf of the defendants and Exs.B-1 to B-12 were marked. 10. Upon considering the entire oral and documentary evidence adduced by the defendants, the trial Court answered all issues in favour of the defendants and accordingly, dismissed O.S.No.736 of 1996 filed by the plaintiff and decreed O.S.No.357 of 1996 filed by defendant No.1 as prayed for. 11. I have heard the learned counsel appearing for the plaintiff as well as the defendants. 12. Sri B.Viswanadha Reddy, learned counsel appearing for the plaintiff would contend that having received the entire sale consideration, absolutely, there is no necessity for the plaintiff to execute the registered general power of attorney in favour of defendant No.2 authorizing him to execute a registered sale deed and the defendants would have insisted for executing a registered sale deed. Further, general power of attorney has no reference to the agreement of sale. Defendant No.1, being a Private Limited Company, ought to have filed statements of account showing the receipt of sale consideration and therefore, the decree and judgment passed by the trial Court is liable to be set aside. In the alternative, it has been contended that since the judgment was rendered without affording any opportunity to the plaintiff, the matter may be remitted for trial afresh, after setting aside the judgment passed by the trial Court. 13. On the other hand, Sri Y.V.Ravi Prasad, learned counsel appearing for the defendants would contend that as indicated by the trial Court in its judgment, several opportunities have been provided to the plaintiff to adduce her evidence including the one which was provided by the Division Bench of this Court in C.M.A.No.457 of 1997 and C.M.A.(SR)No.14068 of 1997 and now, after a lapse of thirteen years, it is not open for the plaintiff to contend that the matter has to be remanded to the trial Court, for fresh disposal as regards the merits of the case. The learned counsel would submit that the plaintiff executed general power of attorney in favour of defendant No.2. The plaintiff gave a notarized affidavit in favour of the defendants admitting the entire sale transaction. The notarized affidavit and power of attorney were attested by one G.J.Reddy, who is no other than the husband of the plaintiff, and absolutely, the case of the plaintiff has no legs to stand and both the appeals are liable to be dismissed. 14. Basing on the rival contentions, the following points arise for determination in these two appeals: 1) Whether the plaintiff is entitled for declaration that the sale deed dated 01.05.1996 executed by defendant No.2 in favour of defendant No.1 is vitiated by fraud and mis-representation and consequently, for cancellation of the same and consequential injunction? 2) Whether Ex.B-8-Agreement of sale and Ex.B-9-General power of attorney were genuine? 3) Whether the defendants are entitled for recovery of possession of the suit schedule property by evicting the plaintiff from the ground floor portion of the suit schedule property? 4) Whether there are any valid grounds to remand the suits to the trial Court for fresh disposal? 5) To what relief? 15. POINT NO.1:- Since the execution of the sale deed dated 01.05.1996 as well as Ex.B-9-power of attorney are not in dispute, the burden to establish that the said documents have been obtained under different circumstances, by fraudulent means, is on the plaintiff. But the plaintiff did not enter the witness box to establish the same and there is no oral or documentary evidence adduced by the plaintiff. As could be seen from the Judgment of the trial Court, the suit filed by the plaintiff was posted for trial on 21.08.1997 whereupon an adjournment was sought on the ground that a revision was preferred before the High Court challenging the direction issued by the trial Court to examine the plaintiff herself in the first instance. Thereafter, as indicated by the learned trial Court in its Judgment, between 21.08.1997 and 02.02.1998, as many as fourteen adjournments were granted to the plaintiff but she could not adduce any evidence on her behalf. Ultimately, the High Court issued direction to dispose of the matter within a period of six months. But the plaintiff did not choose to adduce any evidence and on that, the trial Court closed her evidence in O.S.No.736 of 1996 and thereafter, the evidence of the defendants was recorded and the plaintiff, despite taking several adjournments both by oral requests and by applications, did not even choose to cross examine D.Ws.1 to 3. After closing the evidence of the defendants, the matter was posted for arguments on 01.04.1998. Though subsequently, the plaintiff filed applications seeking permission to adduce evidence on her behalf, they were dismissed by the learned trial Court on merits taking into consideration the conduct of the plaintiff. Therefore, the plaintiff failed to discharge her burden to prove her contention regarding the circumstances under which the power of attorney and the sale deed were executed and therefore, she is not entitled for a decree, as rightly held by the trial Court and thus, this point is answered against the plaintiff. 16. POINT NO.2:- The defendants, besides examining D.Ws.1 to 3, marked Exs.B-8 and B-9. D.W.1 is defendant No.3. D.W.2 is defendant No.2, who is the Managing Director of defendant No.1 company. D.W.3 is the Manager of the company, who worked till November, 1996 and as per his evidence, he used to look after the affairs of defendant No.1. The witness categorically spoke about the execution of the agreement of sale(Ex.B-8) and power of attorney (Ex.B-9) by the plaintiff and execution of the sale deed dated 01.05.1996 by defendant No.2 in favour of defendant No.1 company. The crucial aspect which is required to be considered in this case is whether Sri G.J.Reddy, who is no other than the husband of the plaintiff, is the attestor of the notarized affidavit executed by the plaintiff which is marked as Exs.B-7 and B-9-general power of attorney. The said fact is not disputed by the plaintiff. Further, Ex.B-10-registered document, Ex.B-11-link document and Ex.B-12-tax receipt are in possession of the defendants and the defendants could be able to file the said documents. In their affidavit, which is marked as Ex.B-7, the plaintiff had categorically spoken to the fact of executing the agreement of sale as well as execution of the power of attorney authorizing defendant No.2 to execute the sale deed in favour of defendant No.1, and receiving the entire sale consideration. If at all it is the version of the plaintiff that all the said documents are not genuine and were obtained altogether under different circumstances, she ought to have atleast entered the witness box to put forth her version. By her non-examination, an adverse inference has to be drawn against her version that if she entered the witness box, she would not have withstood the cross examination touching the genuineness of all the documents filed by her and attested by her husband. 17. POINT NO.3:- For the reasons mentioned in Point No.1, the defendants are, therefore, not entitled for recovery of possession, which was rightly held by the learned trial Court. 18. POINT NO.4:- For the above reasons, I absolutely see no justification to remand the matter to the trial Court. If at all after a period of thirteen years, the matter is remanded to the trial Court, it is nothing but abuse of process of law. 19. POINT NO.5:- For the foregoing reasons, I absolutely see no merits in both the appeals and accordingly, dismiss them. 20. In the result, both the appeals are dismissed with costs. _________________ R. KANTHA RAO ,J 10th February 2010 AMD