HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO C.C.C.A.No.50 of 2004 and C.C.C.A.No.25 of 2006 Date: 11-04-2011 C.C.C.A.No.50 of 2004: Between: K. Anasuya Devi and others ……. Appellants and Ahmed Mohiuddin Khan and others ……. Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO C.C.C.A.No.50 of 2004 and C.C.C.A.No.25 of 2006 COMMON JUDGMENT: (Per BPR, J) Both the appeals, one at the instance of the plaintiff and the other at the instance of the defendants, are filed against the same judgment and decree, dated 27-09-2003 in O.S.No.116 of 2001 along with counter claim on the file of the IX Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad. The parties are referred to as they are arrayed in the Court below. The plaintiff has filed the suit for recovery of Rs.10,69,195/- being the principal and interest, and for costs, wherein the defendants have come forth with a counter claim, and both of them were taken up together and disposed of. Heard both sides. The suit claim at the instance of the plaintiff relates to a transaction, which has resulted in pursuance of an agreement of sale, dated 19-01-1998, which is marked as Ex.B-1. The plaintiff claims to be the absolute owner and possessor of the building bearing No.3-4-885/3 admeasuring to 225 square yards situated at Barkathpura of Hyderabad. In pursuance of the said agreement of sale, the plaintiff claims that she has received an advance of Rs.2,00,000/- and the same was acknowledged by a receipt in Ex.B-2. Further a sum of Rs.2,00,000/- was also received under Ex.B-3, receipt. Finally the sale transaction took place on 13-07-1998 under Ex.B-4, the registration extract of which was marked as Exs.A-1 and A-19. According to the plaintiff, in terms of the sale deed, a sum of Rs.10,00,000/- was paid to her, however, since some portions were in occupation of the tenants, a sum of Rs.3,00,000/- was withheld by the purchaser agreeing to pay the same at a later point of time, for which the cheque was issued and the same was bounced on presentation in the bank subsequently. Hence, the defendants are liable for the said amount. Further the defendants have agreed to pay the income tax payable on sale consideration, but the plaintiff was forced to pay the same to a tune of Rs.4,58,465/- which is refundable by the defendants and the same is also accordingly liable to be discharged by the defendants. Hence, the total claims of the suit amount comes to Rs.10,69,195/-. In the written statement, it was contended that the claim of the plaintiff is wholly unsustainable. Further the claim as sought to be made out is in terms of certain additional terms, which have been added at pages 6 and 7, and those terms are not part of the original sale deed, but they are inserted through additional page 6(a) without the consent of the defendants and therefore, these terms would not in any way bind them and hence no liability arises. Further the liability of payment of property tax and income tax is also denied. Hence, the entire suit claim is liable to be rejected. Whereas, by way of counter claim, the defendants claimed a sum of Rs.5,36,000/- along with interest towards the expenditure, which has been incurred for the purpose of evicting the tenants, and also for payment of the property tax etc. Hence, the suit claim is liable to be rejected and the claim of the defendants has to be decreed. With these and other allegations as contained in the respective pleadings, the Court below framed the following issues for consideration: 1. Whether the plaintiff is entitled to recover an amount of Rs.10,69,195/- from the defendants with interest at 18% PA with costs as prayed for? 2. Whether the plaintiff is entitled to create a charge over the suit schedule property for the suit amounts and recognition of her lien as prayed for? 3. Whether D2 is entitled for recovery of counter claim of Rs.6,69,185/- and damages as prayed by her? 4. Whether the defendant has incurred expenses of Rs.9,36,000/- as pleaded by him? and whether this amount can be given set off? 5. Whether the plaintiff has committed breach of agreement Dt. 19-1-98 as pleaded by the D2? 6. To what relief? During the course of trial, the plaintiff examined PWs.1 and 2 and got marked Exs.A-1 to A-20. Whereas the defendants examined DW-1 and got marked Exs.B-1 to B-4. Considering the entire material and the evidence on record, the Court below decreed the suit partly for a sum of Rs.5,94,000/- with proportionate costs and further awarded interest at 12% simple per annum from the date of suit till the date of realization with a charge over the suit schedule property, however rejected the counter claim holding that the defendants are not entitled to claim the same. Hence, these appeals, one by the plaintiff and the other by the defendants. Having heard the learned counsel and on perusal of the material on record, the ultimate question, which boils down for consideration in these two appeals, is as to whether the claims as set forth by the plaintiff and defendants respectively is wholly sustainable. Coming to the aspect of counter claim, which has been dealt by the Court below itself, the same was rejected on various grounds especially since it was filed not along with the written statement, but filed later on 19-12-2001 and whereas the written statement was filed on 15-11-2001. Further, though it was held that the Court fee as paid by the defendants is correct in respect of the counter claim made by them for a sum of Rs.5,36,000/-, however the entire counter claim coming under various sale deeds as put forth by the defendants was negatived mainly on the ground that no material or any evidence is produced in support of the claim or to prove the same. In regard to the property tax, no tax receipts have been produced and with regard to the amount, which is alleged to have been spent towards regularization of the first floor, again no piece of paper is produced, apart from there being total lack of any material in regard to other expenses as pointed out by the defendants. We have perused the entire evidence and the material on record and found that even though once again similar such reiteration is being made by the defendants in their appeal in C.C.C.A.No.25 of 2006, however having regard to the fact that even at this stage, apart from total lack of any piece of evidence in the Court below, there is no material produced to support the same, as rightly held by the Court below, in the absence of any such material, it is difficult to sustain the claim. Hence, we are in entire agreement with the finding of the Court below that the defendants are not entitled to the amounts as set up in the counter claim. So far as the suit amount is concerned, it is seen that there is no dispute in regard to the transaction between the parties which preceded by an agreement of sale and ultimately culled out into Ex.B-4, sale deed. The plaintiff claims the amount as per the terms contained in the sale deed itself. There is no dispute that these terms are part of the document, but however it shows that certain pages have been added. However, the fact remains that apart from the depositions, which have been produced on behalf of the plaintiff by PW-1 etc., it is a registered document and it is not the case that those papers, which are stated to be additional or added thereto, were not forming part of the document at the time of registration. On a reading of the clauses in the sale deed, it clearly shows that the liability certainly goes with the defendants. Even though it is the case of the defendants that page 6(a), which has been added according to the plaintiff with the consent of both parties, is an affixed one to the original sale deed, but there is nothing on record from the defendants side to cast any such doubt as to the very existence of the page or the same being part of the original document. The Court below has also taken into account the evidence of DW-1 which virtually admits the due execution and also the necessary amends which have been made to the original document. Therefore, as rightly pointed out, page 6(a) cannot be said to be any such insertion or addition or affixture later to the original document. Once it is to be held that it is a part of the document, necessarily the terms are governed in between the parties which do spell out the claim as set by the plaintiff. Except such a bald and sweeping defense plea, nothing else has been pointed out on behalf of the defendants in support of the counter claim which has already been negatived by the Court below and also in this Court. In view of the aforesaid circumstances and also the reasons as rightly given by the Court below, with which we are in entire agreement, nothing much has been made out in these appeals by either of the parties to show that the findings of the Court below are in any way erroneous or are not supported by any cogent evidence and the material on record. Hence, we hold that the Court below was right in allowing the suit claim in part in consonance to the proof as can be culled out from the documents produced by the plaintiff, and rejecting the part thereof, and also we are in entire agreement with the rejection of the counter claim set up by the defendants. In view of the aforesaid reasons, we do not find any merits in either of the appeals. Both the appeals are, accordingly, dismissed. However, in the circumstances, no order as to costs. _________________ B. PRAKASH RAO, J ______________________ N.R.L. NAGESWARA RAO, J Date: 11-04-2011 YCR