THE HON’BLE SRI JUSTICE C.V. RAMULU A.S. Nos. 1884 of 1992 and 2193 of 1996 COMMON JUDGMENT: A.S. No. 1884 of 1992 is filed by the appellants- defendants against judgment and decree passed in O.S. No. 97 of 1984 on the file of the learned Principal Subordinate Judge in O.S. No. 97 of 1984 dated 17.8.1992 whereunder the suit filed by the plaintiff was decreed holding that he is entitled for possession of the plaint schedule properties.By the said judgment and decree, the defendants were directed to deliver the plaint schedule property to the plaintiff and they were further directed to pay Rs.1530/- each to the plaintiff towards past profits up to the date of the suit and to pay future mesne profits from the date of the suit till the date of delivery, which shall be acquired on a separate application to be filed by the plaintiff. Whereas, A.S. No. 2193 of 1996 is filed by appellants-defendants against the order dated 5.8.1996 in I.A. No. 144 of 1994 in O.S. No. 97 of 1984 on the file of learned Additional Subordinate Judge, Tenali, whereunder the I.A. filed by the petitioner-plaintiff for mesne profits was allowed, holding that he is entitled to mesne profits as ascertained by the Commissioner. Since the parties in both the appeals are the same and the issue involved is identical, both the appeals are disposed of by this common judgment. During the pendency of the appeals, appellant No.1 in A.S. No. 1884 of 1992, who is appellant No.2 in A.S. No. 2193 of 1996, died and his legal representatives were brought on record as appellants 3 to 7. Similarly, respondent No.1-plaintiff also died during pendency of these appeals and respondent No.2 was brought on record as his legal representative. For the sake of convenience, the parties are referred to, as arrayed in the Original Suit. O.S. 97 of 1984 was filed by respondent No.1-plaintiff (since died) for possession of suit schedule property, which is a building situated in 2nd Ward, 3rd Block in T.S. No. 21 of Tenali and for past and future profits against the appellants-defendants. The case of the plaintiff was that the plaint schedule building and the site appurtenant thereto originally belonged to one Konda Panduranga Rao, who sold it under a registered sale deed dated 12.12.1966, to Mathigunta Veerabhadra Rao. Plaintiff purchased the same from Mathigunta Sriramakrishna and others, who are the legal heirs of Veerabhadra Rao, for a valuable consideration of Rs.62,000/- under a registered sale deed dated 4.2.1983. By the date of said purchase, 1st defendant was tenant in southern portion of the suit premises under Veerabhadra Rao and northern portion of the suit building was leased out to 2nd defendant in the year 1974 by Veerabhadra Rao. Both the defendants used to pay the rents to Veerabhadra Rao and after his demise, to his heirs. After purchase, the plaintiff took possession of the vacant site to the east and south of the suit schedule building and demanded the defendants to vacate the suit premises. The defendants did not vacate the suit premises, instead, 1st defendant gave false report to police alleging criminal trespass by the plaintiff in respect of eastern vacant site. They have also filed O.S. 453 of 1973 on the file of District Munsif, Tenali for possession of the adjacent vacant site and brought into existence two spurious sale deeds, one, in respect of southern portion of schedule property by Konda Panduranga Rao in favour of 1st defendant dated 29.11.1983 and another, in respect of northern portion of schedule property in favour of 2nd defendant dated 30.11.1983. According to the plaintiff, they are not valid documents, as Panduranga Rao had no title. As the defendants refused to deliver possession and denied title of the plaintiff, the plaintiff filed suit for possession and past and future profits. He further filed a rejoinder contending that he is a bona fide purchaser for value from an ostensible owner without notice. The defendants have filed written statement and additional written statement denying the averments made in the plaint. It is further asserted by them that the original owner Panduranga Rao, on account of distressing financial conditions, executed a nominal sale deed on 12.12.1966 in favour of Mathigunta Veerabhdra Rao, who is his brother-in-law and the power of attorney agent in respect of plaint schedule property and the site appurtenant thereto. Veerabhadra Rao had no capacity to purchase the said building and he was dependent on Panduranga Rao. In fact, Panduranga Rao was acting as per the guidance and advice of Veerabhadra Rao and he was under the influence of Veerabhadra Rao when he executed nominal sale deed. But, Panduranga Rao alone continued in possession of the property covered by the sale deed. Therefore, Veerabhadra Rao did not acquire any title to the plaint schedule property. As Veerabhadra Rao had no title or possession, the plaintiff has not acquired any title over the plaint schedule property and the site adjacent to it. The document in favour of the plaintiff is not a genuine one and it is only a collusive document without any consideration. Panduranga Rao leased out the plaint schedule property and the site adjacent to it to the defendants in 1974 and the defendants used to pay the rents to Panduranga Rao only. Panduranga Rao executed an agreement of sale on 31.1.1983 for Rs.41,000/- in respect of the plaint schedule property and the site appurtenant thereto, in favour of the defendants. The defendants paid Rs.1000/- as advance. While so, the plaintiff high-handedly dispossessed the defendants on 7.7.1983 from the vacant site on east and south of the suit building with active support of the then Sub- Inspector of Police, II Town Police Station. So, they have filed O.S. No. 453 of 1983 on the file of learned District Munsif, Tenali, under Section 6 of Specific Relief Act. Later, Panduranga Rao and his son executed registered sale deed in favour of 1st defendant for Rs.21,500/- to an extent of 106.36 sq. yards and the zinc sheet shed in it. Panduranga Rao executed another sale deed for the remaining half, in favour of 2nd defendant, for Rs.20,500/-. Therefore, the plaintiff is not entitled for the relief of possession or mesne profits. On the above pleadings, the following issues were settled: 1. Whether the sale deed dated 12.12.1966 is true and valid? 2. Whether the plaintiff has title to the plaint schedule property? 3. Whether the defendants purchased the schedule property and are in possession of the same in their own right? 4. Whether the plaintiff is entitled to the past profits claimed? 5. To what relief? The following additional issues were also framed by the trial Court on 31.7.1986, 7.3.1989 and 1.7.1992 respectively: 1. Whether the sale deed dated 12.12.1966 executed by K.Panduranga Rao and his sons in favour of M. Veerabhadra Rao is a sham and nominal document? 2. Whether M. Veerabhadra Rao was a trustee for K. Panduranga Rao and acted in fiduciary capacity in the management of the properties of K. Panduranga Rao? 3. Whether the plaintiff is a bona fide purchaser for value and without notice and if he is protected? In support of the case of the plaintiff, he was examined as PW-1 he and got examined PWs 2 to 10 and marked Exs.A1 to A- 14. On the other hand, the defendants were examined as DWs 1 and 2 and they got examined DWs 3 and 4 and marked Exs.B-1 to B-27. Exs.X-1 to X-3 were marked by the Court through the witnesses. On a consideration of both oral and documentary evidence available on record, the Court below came to the conclusion that there is no evidence to accept the contention of the defendants that Veerabhadra Rao had no capacity to purchase the suit house and he never paid any consideration to purchase the property in question. Further, the sale deed executed in favour of Veerabhadra Rao by Panduranga Rao is a genuine one and not a nominal one and, therefore, the defendants took plaint schedule building on lease from Veerabhadra Rao but not from Pandurnaga Rao. Veerabhadra Rao was in possession of the property not as a trustee but in his own right as the owner; that the sale deed dated 12.12.1966 is true and valid. As Veerabhadra Rao had title, the plaintiff acquired title to the plaint schedule property by virtue of Ex.A-1 from the heirs of Veerabhadra Rao by purchasing the same, bona fide, for a valuable consideration and the defendants were not in possession of the plaint schedule property in their own right as owners. Thus, the trial Court answered the issues framed by it in favour of the plaintiff and decreed the suit filed by him, holding that the plaintiff is entitled for possession of the plaint schedule properties and directing the defendants to deliver the plaint schedule property to the plaintiff. The trial Court further directed the defendants to pay Rs.1530/- each to the plaintiff towards past profits up to the date of the suit and to pay future mesne profits from the date of the suit till the date of delivery, which shall be acquired on a separate application to be filed by the plaintiff. Subsequently, the plaintiff filed I.A. 144 of 1994 for ascertainment of past and future mesne profits. A Commissioner was appointed to ascertain the said mesne profits and he visited the suit schedule premises, enquired the witnesses on behalf of the plaintiff and the defendants and filed his report. Upon perusal of the said Commissioner’s report, the trial Court held that the petitioner is entitled to the mesne profits as ascertained by the Commissioner, vide order dated 5.8.1996 in I.A. No. 144 of 1994. Aggrieved by the said judgment and decree dated 17.8.1992 in O.S.No. 97 of 1984, appellants-defendants filed A.S. No. 1884 of 1992 and aggrieved by the order dated 5.8.1996 in I.A. No. 144 of 1994, they have filed A.S. 2193 of 1996. Sri K. Suresh Reddy, learned counsel appearing for the appellants-defendants, strenuously contended that the judgment and decree passed by the trial Court is contrary to the evidence available on record. The trial Court failed to see that the sale deed dated 12.12.1966 under ExA-2 is nominal, sham and fictitious transaction, not intended to be acted upon and, in fact, it was never acted upon and no consideration was passed under Ex.A-2 and, therefore, the title never passed on to the transferee M. Veerabhadra Rao and it remained with K. Panduranga Rao only. There are no details of the promissory notes which were said to have been discharged. The decree debt mentioned in Ex.A-2 sale deed relates to the decree debt obtained by Tenali Municipality for arrears of tax and it was never paid by the transferee but it was discharged subsequently by the transferor himself through the tenants. Had the transaction been real, there would have been mutation in the Municipal records, but there was no such mutation and the name of the transferor alone continued to be on record as the owner. The transferee under Ex.A-2 sale deed i.e. M. Veerabhadra Rao is none other than the brother-in-law of the transferor Panduranga Rao and he alone was looking after the properties of the transfer as his General Power of Attorney holder. Merely because the mortgage deed dated 12.12.1966 appeared to be real, it does not mean that the impugned sale deed Ex.A-2 is also real. The recitals in Ex.A-11 would clinchingly show that Veerabhadra Rao could not have paid the consideration in Ex.A-2 sale deed and the consideration mentioned thereunder is not at all real. Since the title remained all through with Panduranga Rao only and the plaintiff was not a bona fide purchaser, the trial Court erred in decreeing the suit and directing the appellants-defendants to pay mesne profits as ascertained by the Commissioner. Hence, the judgment and decree and the order passed in the I.A. are liable to be set aside. On the other hand, Sri V.S.R. Anjaneyulu, learned counsel appearing for the respondents, supported the judgment and decree and the order passed in the I.A., by the trial Court and contended that except stating that Ex.A-2 is sham, nominal and fictitious, the defendants have not adduced any convincing evidence in support of their case. On the other hand, the evidence adduced on behalf of the plaintiff clinchingly established the fact that the sale deed executed in favour of Veerabhadra Rao by Panduranga Rao is a genuine one and not a sham, nominal and fictitious one, that he was in possession of the property as rightful owner and the plaintiff acquired title to the plaint schedule property by virtue of Ex.A-1 from the heirs of Veerabhadra Rao by purchasing the same, bona fide, for a valuable consideration. Therefore, on an elaborate consideration of both oral and documentary evidence available on record, the trial Court rightly decreed the suit and ordered for mesne profits and no grounds are made out by the appellants in these appeals to set aside the same and, therefore, the appeals may be dismissed. I have given my earnest consideration to the respective submissions made by the learned counsel appearing on either side and perused the entire material made available on record. From the arguments advanced by the learned counsel appearing on either side, the following points emerge for consideration: 1. Whether the sale deed dated 12.12.1966 executed by K. Panduranga Rao and his sons in favour of M. Veerabhadra Rao is sham, nominal and fictitious document or it is true and valid? 2. Whether M. Veerabhadra Rao was trustee for K. Panduranga Rao and acted in fiduciary capacity in management of the properties of K. Panduranga Rao? 3. Whether the plaintiff has title to the plaint schedule property, if so, whether he is entitled to mesne profits as claimed by him? 4. Whether the defendants purchased the schedule property and are in possession of the same in their own right? 5. To what relief? Point Nos. 1 to 4: The bone of contention of the learned counsel for the appellants is that Ex.A-2 sale deed is sham, nominal and fictitious one and on account of distressing financial conditions, Panduranga Rao executed a nominal sale deed in favour of Veerabhadra Rao, no consideration was passed under Ex.A-2 and M. Veerabhadra Rao acted as trustee for K. Panduranga Rao; he acted in fiduciary capacity in the management of properties of K. Panduranga Rao and no title passed to Veerabhadra Rao and, therefore, the plaintiff was not a bona fide purchaser for value; on the other hand, the appellants-defendants have purchased the schedule property for a valuable consideration and are in possession of the same in their own right and, therefore, the judgment and decree passed by the trial Court is contrary to the evidence available on record. However, as seen from the record, the evidence of Panduranga Rao himself as DW-3 discloses that he had no family troubles by the date of sale deed. Even with regard to financial conditions, except the mortgage decree debt of T. Narasimham and the arrears of tax due to municipality, there is no other evidence to show that Panduranga Rao was in such distressed financial condition which alone compelled him to sell away the property. Therefore, the contention of the appellants that Panduranga Rao executed the sale deed nominally to avoid the debts is far from the evidence available on record. The contention of the appellants that no consideration was paid by Veerabhadra Rao under Ex.A-2 sale deed is also contrary to the evidence available on record, in as much as, Ex.A-2 shows that the property was sold for Rs.5,000/- and the said amount was paid in instalments by Veerabhadra Rao to Panduranga Rao for the purpose of discharging the debts. Though Panduranga Rao denied in his evidence that Veerabhadra Rao paid the said amount and stated that he borrowed amount from Nagothi Venkatrao and his another brother- in-law Harinathababu to discharge those debts, he failed to adduce any evidence to show that he borrowed the amounts from those persons to discharge the debts. The other ground of attack by the defendants was that Veerabhadra Rao had no means to purchase the property and that he had no property at all. However, the same was dispelled by Ex.A-10 sale deed, under which Veerabhadra Rao sold his property to Marella Veeraswamy on 30.11.1960 for a consideration of Rs.4,000/-. Further, under Ex.A-9 sale deed dated 10.5.1961, Veerabhadra Rao sold some other property in favour of Chennupati Bhushaiah for Rs.2,000/- and on 14.10.1963 he sold some property for Rs.3,600/- and the said amounts were received by Veerabhadra Rao in cash. In fact, on 12.12.1966 itself Panduranga Rao executed another registered mortgage bond for Rs.13,000/- in favour of Veerabhadra Rao, relating to the property adjacent to the suit property, which is marked as Ex.A-11 and admitted by Pandurangarao Rao as DW-3. The said property was subsequently sold to one Alapati Satyavathi under registered sale deed Ex.A-10, in which also it was admitted that the said property was mortgaged to Veerabhadra Rao and the said Satyavathi was asked to discharge the said mortgage debt by paying the amount to the legal heirs of Veerabhadra Rao. On the same day, the wife and the son of Veerabhadra Rao executed registered receipt of discharge of mortgage debt after receiving the consideration under Ex.A-13. Though the defendants contended that the said mortgage was also nominal, they have not examined any witness to show that no amount was paid to the son and the wife of Veerabhadra Rao and that the mortgage deed was nominal one. On the other hand, the son and the wife of Veerabhadra Rao, who were examined as PWs 8 and 9, categorically stated that they have received the amount from Satyavathi and executed Ex.A-13 registered receipt. Therefore, the contention of the appellants-defendants that Veerabhadra Rao had no means to purchase the suit property is contrary to the evidence available on record. Further, the evidence of PW-2, who is an independent witness and was in possession of the suit building by the date of Ex.A- 2 sale deed dated 12.12.1966 as tenant from 1960 to 1974, categorically discloses that he used to pay rent of Rs.60/- per month. Panduranga Rao and Veerabhadra Rao used to collect the rent from him and that Veerabhadra Rao purchased the plaint schedule premises 5 to 6 years after he joined as tenant. He further stated that Veerabhadra Rao used to collect rent from him after he purchased the said premises. He further categorically deposed that 1st defendant stated to him subsequently that he had taken the suit house on lease from Veerabhadra Rao. The evidence of PW-2 that 1st defendant stated to him that he had taken suit premises on lease from Veerabhadra Rao is further supported by PW-8 who stated that the defendants took the plaint schedule building for rent from Veerabhadra Rao. Further, 2nd defendant admittedly installed 5 H.P. motor in the plaint schedule property for which the consent of owner is necessary. But, he admitted that he did not obtain any consent letter from Panduranga Rao. If really Panduranga Rao was the owner as claimed by him, nothing prevented him to obtain consent letter from the said Panduranga Rao and produce the same as a piece of evidence in the Court. But, he did not do so. In this regard, records were called for and PW-7 the Town Planning Supervisor was examined, through whom the application made by DW-1 for installing the said machinery was marked as Ex.X-1 and the consent letter of Veerabhadra Rao was marked as Ex.X-2. The signatures on those documents were compared with that of DW-1 and Veerabhadra Rao and were found to be the same. Thus, the fact that Veerabhadra Rao gave consent letter in 1974 further strengthens the case of the plaintiff that Veerabhadra Rao is the owner and he leased out the schedule premises to the defendants. On the other hand, absolutely no evidence is adduced by the defendants to show that they have paid rents to Panduranga Rao at any point o time. As rightly pointed out by the trial Court, if really the sale deed in favour of Veerabhadra Rao was sham, nominal and fictitious, there was no necessity for them to pay the rents to the heirs of Veerabhadra Rao, after his death, since it is not even the case of the defendants that after Veerabhadra Rao, his heirs also acted as agents to Panduranga Rao. No scribe or the attestors of Ex.A-2 were examined to show that Ex.A-2 was sham, nominal and fictitious. Therefore, it cannot be said that the sale deed dated 12.12.1966 is sham, nominal and fictitious and that Veerabhadra Rao was a trustee for K. Panduranga Rao and acted in fiduciary capacity in the management of the properties of K. Panduranga Rao and that the defendants have taken the suit house on lease from Panduranga Rao but not from Veerabhadra Rao. In view of clinching evidence available on record to hold that Veerabhadra Rao was not in possession of the property as trustee but he was holding the property in his own right and that Ex.A-2 sale deed dated 12.12.1966 is true and valid, it has to be now seen whether the plaintiff has acquired title to the plaint schedule property. Ex.A-1 is the sale deed dated 4.2.1983 under which plaintiff is said to have purchased the plaint schedule property from the son and the widow of Veerabhdra Rao for a valuable consideration of Rs.62,000/-. The son and the widow of Veerabhadra Rao (vendors) were examined as PWs 8 and 9 and the attestors of the said sale deed were examined as PWs 3 and 6 and all of them categorically deposed that plaint schedule property was sold to the plaintiff as pleaded by him. Therefore, the sale deed in favour of plaintiff is true. Since Veerabhadra Rao had title as discussed above, plaintiff acquired title to the plaint schedule property by virtue of Ex.A-1 from the heirs of Veerabhadra Rao. Though the defendants have contended that they have purchased the plaint schedule property from Panduranga Rao under Ex.B-5 agreement of sale deed dated 31.1.1983 and subsequently obtained sale deeds on 30.11.1983 and 29.11.1983 under Exs.B-6 and B-27 respectively, it is glaring that all those sale deeds are subsequent to the sale in favour of the plaintiff. More over, they are not valid in view of the evidence available on record that Panduranga Rao had no title to the plaint schedule property subsequent to conveying the same to Veerabhadra Rao on 12.12.1966. Therefore, it cannot be said that the appellants-defendants are in possession of the plaint schedule property in their own right as owners. Thus, the plaintiff had acquired title to the plaint schedule property. In view of the conclusion that plaintiff has title to the plaint schedule property and it is not the case of the defendants that they have paid rents or profits to the plaintiff, the trial Court rightly held that the plaintiff is entitled for past and future mesne profits and accordingly directed the defendants to pay Rs.1530/- each to the plaintiff towards past profits up to the date of the suit and to pay future mesne profits from the date of the suit till the date of delivery, which shall be enquired on a separate application to be filed by the plaintiff. Accordingly, the plaintiff filed I.A. No. 144 of 1994 in O.S. No. 97 of 1984 for ascertainment of mesne profits. A Commissioner was appointed to ascertain the mesne profits. The said Commissioner visited the suit schedule premises and enquired the witnesses on behalf of the plaintiff and the defendants and filed his report. Though the defendants have raised objection to the report filed by the Commissioner stating that the amount arrived by the Commissioner is not correct and he has not properly appreciated the evidence, the Court below took into consideration the fact