THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.No. 434 OF 2004 AND Tr. A.S.No. 3637 of 2004 Date of Disposal: 31.5.2010 Between: Atluru Venkata Subba Rao (died) and others …Appellants And Somuri Venkataramaiah and others …Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.No. 434 OF 2004 AND Tr. A.S.No. 3637 of 2004 COMMON JUDGMENT: 1. Two suits OS No. 359 of 1994 and OS No. 443 of 1998 on the file of the I-Addl. Senior Civil Judge, Vijayawada were tried together and disposed of by the impugned common judgment, dated 8.12.2003. A.S.No. 434 of 2004 is filed by the defendants 1, 3, 4, 5 and 13 in O.S.No. 359 of 1994, whereas Transfer AS No. 3637 of 2004 is filed by the plaintiffs in OS No. 443 of 1998. The parties are referred to as they are arrayed in OS No. 359 of 1994. 2. The facts, which are relevant, are as follows, The defendants 7, 9 and 11 are brothers, being the sons of one Basavaiah. Defendant No.8 is the son of defendant No.7 and defendant No. 10 is the son of Defendant No.9. The defendants 7 to 11 were admittedly absolute owners of an extent of Ac.2-33 cents in R.S.No. 377/2 situated at Gunadala village, (now part of Vijayawada Municipal Corporation) which has the following boundaries, North: Nalluri Venkata Subbaiah’s land which was sold to Sanghamitra Co-Operative Building Society; South: Donka (road); East: ……………………………; West: Land of Bandi Koteshwar Rao; The defendants 7 to 11 intended to make plots each admeasuring 0-32.17 cents or 1557 sq. yards and execute sale deeds to various purchasers. The plaintiff-Somuri Venkataramaiah as well as defendants 1 to 5 are purchasers of various plots in the aforesaid land from defendants 7 to 11. Defendant No.6 is said to be a real estate broker who had procured the deal with respect to sale of plots to plaintiff and defendants 1 to 5. 3. There is no controversy with respect to three boundaries on the North, South and East and admittedly the defendants 7 to 11 had carved out five plots to the east of Bandi Koteswar Rao’s land. The plaintiff Somuri Venkatramaiah claims that he purchased plot No.1 which is bounded by the land of Bandi Koteshwar Rao on the west, and defendant No.12 (Chalasani Veeraghavaiah), defendant No.2 (Mikkilineni Subbarao) and defendant No.1 (A.V. Subba Rao) purchased other plot Nos. 2 to 4 respectively on the eastern side of plot No.1. The plaintiff claims that the boundaries given in the suit schedule are in conformity with the boundaries mentioned in his sale deed- Ex.A1, dated 4.8.1984 whereunder the land of Bandi Koteshwar Rao is shown on the western side of his plot, whereas the defendant No.1 (Atluri Venkata Subba Rao) claims that his sale deed dated 10.8.1984-Ex.B2 was rectified under Ex.B3 dated 10.9.1986 and he is the actual owner of the suit schedule land. The main controversy which needs to be resolved is whether the plaintiff Somuri Venkataramaiah is entitled to claim the suit schedule land under the sale deed- Ex.A1 in view of rectification deed- Ex.B3 dated 10.9.1986 and the rectification of plaintiff’s sale deed by rectification deed bearing document No. 3703 of 1986, dated 3.10.1986, as claimed by defendant No.1. Now in this background, the essential averments in the plaint in OS No. 359 of 1994 have to be examined. 4. It is alleged in the plaint that the plaintiff was promised that his plot would be first from the land of Bandi Kotheswar Rao on the western side. Along with him, one Chalasani Veeraraghavaiah (D12 in OS No. 359 of 1994) and Mikkilineni Subba Rao (D2 in OS No. 443 of 1998) also purchased plots 2 and 3 respectively on the eastern side of his plot No.1 with equal dimensions. All the three sale transactions were registered on 4.8.1984 and the plaintiff’s sale deed was marked as Ex.A1. The plaintiff alleged that defendant No.6-broker who arranged the entire transactions had to take the original document of Ex.A1 from the registration office and deliver it to the plaintiff, but he mala fide did not do so, but he is subsequently said to have engineered the rectification deeds whereunder the boundaries of the plaintiff’s plot were unilaterally changed as if the defendant No.1’s plot is located in place of plaintiff’s plot. The plaintiff, therefore, claims that he is the absolute owner of the suit schedule land admeasuring 1557 sq. yards shown as A, B, C and D in the plain annexed to the plaint. It is also alleged that the plaintiff was in exclusive possession till March, 1994, but later some persons, styling themselves to be purchasers of various plots from defendant No.1, claimed the aforesaid land. In April, 1994 the plaintiff received summons in OS No. 375 of 1994 filed by the defendants 1 to 3 before the II-Addl. District Munsiff’s Court, Vijayawada (which was later transferred to the Court of I-Addl. Senior Civil Judge, Vijayawada and re-numbered as OS No. 443 of 1998) seeking perpetual injunction against the plaintiff and another purchaser Mikkilineni Subba Rao. The plaintiff received notices in IA No. 248 of 1994 which was filed for temporary injunction in the said suit. It is also alleged that the plaintiff gave a notice to the said defendants who filed the said suit to furnish him copies of documents referred to by them in the said suit and it was only thereafter that the plaintiff came to know of the so-called rectification deed under which the defendant No.1 was claiming the plaintiff’s land. Thus describing the said rectification deed as collusive, fraudulent, and void ab initio, the plaintiff filed the present suit on the basis of registration extracts of sale deed and the rectification deed and sought for recovery of possession and for permanent injunction in respect of the suit schedule property and also for mandatory injunction directing the defendant No.6 to deliver the original sale deed of Ex.A1 to the plaintiff. 5. The defendant No.1 filed a written statement claiming that the deed of rectification-Ex.B3 was executed about eight years prior to filing of the suit and that the plaintiff was neither in possession of original of Ex.A1 nor that of rectification deed. It is asserted that the plaintiff came to the registration office on the date of registration of Ex.B3-rectification deed and being fully aware of the rectification of Ex.A1, still he filed the present suit on the basis of Ex.A1, without seeking any relief with respect to the rectification deed. So far as the suit in OS No. 443 of 1998 is concerned, it is alleged that the said suit was filed by the defendant No.1 and two purchasers from him, in conformity with the rectification deed and based on the title of the defendant No.1, duly rectified by the rectification deed, the defendant No.1 had made the land into smaller plots and sold the same to various individuals. He, therefore, specifically alleged that the plaintiff was aware of the said transactions, and having kept quiet for over eight years, he is not entitled to file the present suit, as it is barred by limitation. 6. Defendants 2 and 3, who are purchasers from defendant No.1 of different extents of plots, supported and adopted the written statement of defendant No.1. Defendants 4 and 5 also adopted the written statement of defendant No.1. 7. Defendant No.7, one of the original owners, filed a separate written statement which was adopted by the defendants 8 to 11. It is claimed that it is the defendant No.6 who arranged the first three sale deeds dated 4.8.1984, all covering the land to the eastern side of Bandi Koteswar Rao’s land. He made several allegations against the defendant No.6 and he and other owners were asked to attend the Sub- Registrar’s office where defendant No.6 was present with some persons. The defendant No.6 got some documents prepared and procured the signatures of the original owners-defendants 7 to 11. In effect, the said written statement shows that since the defendants 7 to 11 were not aware of the actual events relating to the rectification deed nor about the identity of the parties, they did not want to take the blame on themselves that they did not take proper care to look into the recitals of the documents which were got prepared by defendant No.6-broker. It is specifically stated that these defendants would not deny the title of plaintiff and they would not be parties to the collusive game of defendant No.6-broker. It is also alleged that these defendants are never interested in denying the title of the plaintiff nor are they interested in depriving him of the property conveyed to him, by any sharp practice and they will never be consenting or willing parties to any such fraudulent transactions and as such they denied any collusion with defendant No.6. They prayed that while granting relief to the plaintiff, the suit be dismissed against them. 8. OS No. 443 of 1998, which was filed by the defendants 1 to 3 for perpetual injunction against the plaintiff and his adjacent plot owner, was based upon the sale deed of defendant No.1 and rectification of plaintiff’s sale deed and the subsequent alienations made by defendant No.1, all of which formed part of the plaintiff’s documents in the suit filed by him. 9. Issues framed in OS No. 359 of 1994 are as follows, (1) Whether the plaintiff is entitled for mandatory injunction as prayed for? (2) Whether the plaintiff is entitled for recovery of possession of ‘ABCD’ schedule property as prayed for? (3) To what relief? 10. Then issues framed in OS No. 443 of 1998 are as follows, (1) Whether the plaintiffs are in possession and enjoyment of the plaint schedule property? (2) Whether the plaintiffs are entitled for permanent injunction as prayed for? (3) To what relief? 11. Both the suits were clubbed and tried together and common evidence was recorded in OS No. 359 of 1994. The plaintiff examined himself as PW.1 and his neighbours as PWs. 2 and 3 and marked Exs. A1 to A30. On behalf of defendants, defendant No.1 examined himself as D.W.1, defendant No.7 as D.W.2 and a neighbour as D.W.3 and marked Exs.B1 to B10. 12. On consideration of the evidence on record, the trial Court found that the plaintiff is not bound by the deed of rectification -Ex.B3 which also contains some mistakes and he had no knowledge about the rectification deed. It found that the said rectification deed being void in law, it was not necessary for the plaintiff to seek any relief of cancellation of Ex.B3 and that the vendors-defendants 7 to 11 having executed Ex.A1- sale deed in favour of plaintiff had no legal right to execute any further document such as rectification deed, so as to affect the rights of the plaintiff. Ultimately the trial Court decreed the plaintiff’s suit for possession and dismissed the suit for injunction filed by the defendants 1 to 3. Hence these appeals. 13. Mr. P. Srinivas, learned counsel appearing for the appellants, in both the appeals, contended that Ex.A1 which is the basis of the suit filed by the plaintiff-Somuri Venkatramaiah is not the original document admittedly and further the certified copy of the sale deed-Ex.A1 itself contains a note that this document is rectified by a document No. 3703 of 1986, dated 10.9.1986, and according to him, the plaintiff had obtained Ex.A1 on 10.12.1987 and he was aware of the boundaries in Ex.A1 having been altered by the said rectification deed and in spite of the express knowledge of the plaintiff from 1987 onwards, the present suit, which was filed only on 20.7.1994, is clearly barred by limitation, as the plaintiff had not approached the court within three years of knowledge of rectification deed. He also submitted that the plaintiff has not sought any relief with regard to and against the said rectification deed and as such in the absence of any such relief, the plaintiff is not entitled to question the said rectification deed and it continues to be binding on the plaintiff. He also submitted that while on issue No.1 the trial Court has discussed the evidence as well as statutory rules under the Registration Act, but has abruptly closed the discussion without giving any finding on issue No.1. He also submits that based on the rectification deed-Ex.B3, several consequential rectification deeds were also executed, but none of the vendees including the plaintiff have objected. He has drawn the attention of the court to the written statement as well as evidence to show that several persons including the plaintiff attended the registration office at the time of registration of rectification deed. He submits that the suit for mere possession is not maintainable without substantive relief being claimed by the plaintiff in respect of rectification deed and in any case the plaintiff should have filed the suit under Section 31 of the Specific Relief Act for cancellation of the rectification deed and according to him, the said rectification deed is only voidable, but not void. The learned counsel for the appellants has relied upon the following decisions of the Supreme Court in support of his contentions. 14. In Ramti Devi Vs. Union of India [1] the Supreme Court held that under Article 59 of the Limitation Act, 1963 a suit for cancellation of an instrument must be filed within three years from the date when the plaintiff first comes to know of such instrument. 15. In State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others [2] the Supreme Court discussed the meaning of ‘void’ and ‘voidable’ documents and the learned counsel contends that Ex.B3-rectification deed in this case is only voidable. 16. In Dhurandhar Prasad Singh Vs. Jai Prakash University and others [3] the Supreme Court approved the law laid down by Lord Denning, M.R. and laid emphasis on the following extract thereof, “This question was examined by Court of Appeal in the case of R. v. Paddington Valuation Officer and another, Exparte Peachey Property Corporation, Ltd. [1965] 2 All Eng. LR 836 where the valuation list was challenged on the ground that the same was void altogether. On these facts, Lord Denning, M.R. laid down the law observing at page 841 thus:- "It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. In the present case the valuation list is not, and never has been, a nullity. At most the first respondent-acting within his jurisdiction-exercised that jurisdiction erroneously. That makes the list voidable and not void. It remains good until it is set aside." 17. I n Balavant N. Viswamitra and others Vs. Yadav Sadashiv Mule (deceased by L.Rs.) and others [4] the Supreme Court has considered the question as to whether a decree passed by the trial court can be said to be ‘null’ and ‘void’ and in paragraph-9 it held, “9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null' and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such detect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.” 18. Almost all the decisions referred to by the learned counsel for the appellants relate to administrative orders and in that context the Supreme Court has examined the question as to whether the said orders are held to be void or voidable. The said aspect has little relevance, when the instruments affecting the right to property are to be considered and adjudicated. 19. Then the learned counsel for the appellants has placed reliance on a decision of the Supreme Court reported in Prem Singh and others Vs. Birbal and others [5] which is primarily with reference to Article 59 of the Limitation Act, 1963 as well as Section 31 of the Specific Relief Act, 1963. It is no doubt true that Section 31 refers to void and voidable documents, but in paragraph-16 of its judgment the Supreme Court held, “When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.” 20. The aforesaid judgment clearly goes against the contention of the learned counsel for the appellant and ultimately it has to be seen as to whether Ex.B3-rectification deed is void or voidable at the instance of the plaintiff. If it is the former, the objection as to the plaintiff having not claimed any relief with regard to Ex.B3 would pale into insignificance, as the document which is void ab initio would be a nullity and no relief would be necessary to claim its cancellation. 21. Reliance is also placed on a decision of the Supreme Court reported in M. Meenakshi and others Vs. Metadin Agarwal (D) by L.Rs and others [6] and particularly paragraph- 17 thereof, which is as follows, “The competent authority under the 1976 Act was not impleaded as a party in the suit. The orders passed by the competent authority therein could not have been the subject-matter thereof. The Plaintiff although being a person aggrieved could have questioned the validity of the said orders, did not chose to do so. Even if the orders passed by the competent authorities were bad in law, they were required to be set aside in an appropriate proceeding. They were not the subject matter of the said suit and the validity or otherwise of the said proceeding could not have been gone into therein and in any event for the first time in the Letters Patent Appeal.” 22. That was also a case where Urban Land Ceiling Authorities passed statutory orders which were not questioned and it was held that such order cannot be said to be void. The facts and legal position therein are quite different from the one arising in the present case. 23. Lastly the learned counsel for the appellants has relied upon a decision reported in P. K. Palanisamy Vs. N. Arumugham and another [7] where the Supreme Court was considering the distinction between void and voidable orders particularly with reference to the administrative orders and it held in para-25, “It is now a well settled principle of law that an order passed by a court having jurisdiction shall remain valid unless it is set aside. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors. : AIR1996SC906 , it is stated: 8. In Halsbury's Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31, it is stated, thus: If an act or decision, or an order or other instrument is invalid, it should, in principle be null and void for all purposes: and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a Court of competent jurisdiction. Until its validity is challenged, its legality is preserved. In the Judicial Review of Administrative Action De Smith, Wolf and Jowell, 1995 edition, at pages 259- 260 the law is stated, thus: The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows: (1) All official decisions are presumed to be valid until set aside of otherwise held to be invalid by a court of competent jurisdiction. Similarly, Wade and Forsyth in Administrative Law, Seventh edition -1994, have stated the law thus at pages 341-342: ...every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well- known passage Lord Radcliffe said: An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. This must be equally true even where the brand of invalidity is plainly visible : for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed put repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects. {See also Baljinder Singh v. Rattan Singh : 2008(11) SCALE 198 } 24. Mr. M.R. K. Chowdhary, learned senior counsel appearing for the respondents contended that the rectification deed-Ex.B3 is not an instrument under the Stamp Act and there is no provision which deals with such a document. He also contended that Section 31 of the Specific Relief Act is not attracted as Ex.B3-rectification deed does not create interest or liability and availment of the said remedy is not obligatory and consequently he contends that Article 59 of the Limitation Act has no application. He further contended that the rectification deed-Ex.B3 being unilateral, the plaintiff is not bound thereby. Further on facts, the learned senior counsel contended that while the sale deeds of the plaintiff and two other purchasers are dated 4.8.1984, the sale deed-Ex.B2 in favour of the defendant No.1 was registered on 11.10.1984, though it is dated 10.8.1984 and thus the defendant No.1 acquired title to the property covered by Ex.B2 much after the plaintiff’s title under Ex.A1 dated 4.8.1984 and in addition, there were some blanks in the sale deed which were filled up on the date of registration i.e., on 11.10.1984 and therefore the entire transaction including delivery of possession of property under Ex.B2 was actually concluded only on 11.10.1984. The learned senior counsel further submits that more than two months anterior to Ex.B2, Ex.A1-sale deed was executed in favour of the plaintiff and he was put in possession of the suit schedule property and the recital in the document of defendant No.1 i.e., Ex.B2 about the delivery of possession and passing of title cannot be with reference to the suit schedule land belonging to the plaintiff, as the said property did not remain with the vendors to be conveyed to defendant No.1. He also points out that the remaining land of the vendors was only towards east of the plaintiff’s plot and other two contiguous plots sold to other purchasers and the plot of the defendant No.1 under Ex.B2 can only be towards east of these three