THE HONOURABLE SRI JUSTICE B.PRAKASH RAO CCCA.Nos.232 and 258 of 2004 JUDGMENT: The appeal in CCCA.No.232 of 2009 is at the instance of the defendants aggrieved against the Judgment and Decree in O.S.No.106/1991, on the file of the V Senior Civil Judge, City Civil Court, Hyderabad where the suit filed by the respondents/plaintiffs for declaration of title was decreed, whereas the other appeal in C.C.C.A.No.258 of 2004 under Section 95 of the Code of Civil Procedure is at the instance of the unsuccessful plaintiffs as against the dismissal of the suit for specific performance of agreement as per the Judgment and Decree in O.S.No.611 of 1996, on the file of the same Court. Suit O.S.No.1 06 of 1991 was filed on the file of V Additional Judge, City Civil Court, Hyderabad by Women’s Cooperative Society and others for declaration of title in respect of land bearing Sy.No.340 (129/30 ld) situated at Road No.12, Banjara Hills, Shaikpet Village, Golconda Mandal, Hyderabad District admeasuring ac.3-13 Gts bounded by 30 ft wide road and land in S.No.129 (old) on the North, Road and land in S.No.129/78 (old 129/18) on the South Road and S.No.129/30 (old) on the East and Road in S.No.129 (old) corresponding to new S.No.403/82 on the West. During the pendency of the above suit, K. Amarender Reddy, 3rd defendant in the about suit, filed in O.S.No.611/96 for specific performance on the file of the V Additional Judge, City Civil Court, Hyderabad contending that there is an agreement of sale dated 25-1-1998 in his favour executed by D.Ramachandra Reddy, 1st defendant in the above suit in respect of land admeasuring ac.3-00 gts for a consideration of Rs.9 lakhs. He was impleaded in O.S.No.106/91 as Defendant No.3 by order dated 20-8- 1996 passed in I.A.No.1449/95 and similarly P.Sanjeeva Parthasarathi was impleaded as defendant No.4 who contended that he purchased an extent of 1190 sq yards equivalent to 994.84 sq mts situated at Narsing Bhavan, Temple Road No.12, Banjaa Hills, Shaikpet village, Golconda, Hyderabad for a total consideration of Rs.1,80,000/- vide document No.1132/89 dated 20-5-1989. P.Narender (D5) claims to have purchased an area of 7260 sq yards of land in S.No.340 (129/30 old) situated at Road No.12, Banjara Hills, Shaikpet village, Golconda mandal, Hyderabad for a sale consideration of Rs.10,00,000/- from K.Amarender Reddy (plaintiff in O.s.No.611/96), GPA holder of D.Ramachandra Reddy under an agreement of sale by order dated 20-8-1996 passed in I.a.No.61/96. In the Court below, both the suits were tried and decided separately though judgments were delivered on the same day. The respondents No.15 to 17 in the Appeal CCC.A.No.232/2004 are Plaintiffs No.15 to 17 in O.S.No.106/1991 impleaded as the legal heirs of plaintiff No.3, Smt. E.Shankaramma as per the order in I.A. No.1758/1995, dted 26-12- 1995. On 14-6-2004 Suit O.S.No.106/1991 filed for declaration of title and perpetual injunction was decreed and the Suit O.S.No.611/1996 was dismissed The brief history of the title of the said property is that, the land originally belonged to Abdulla Pasha. Abfulla Pasha gifted the land to Shak Abdulla in 1342 Fasli (1932) under Ex.A.9. Shaik Abdulla sold the land to Shaik Ahmed Amoodi in 1964 vide registered document No.2357 of 1964 for a consideration of Rs.2,500/-, which is marked as Ex.A.3 (Translation is ex.A.23). Shaik Ahmed Amoodi sold the entire extent in 1966 vide registered document bearing No.420 in favour of Mr.V.V.Rao, Mr.Bhujanga Rao, Mrs. Kishori Bhujanga Rao and E.Shankaramma in equal shares, which is marked Ex.A.4. Mr.V.V.Rao sold his entire extent of 4000 sq yards to Women’s Cooperative Society vide registered document No.35/68, dated 5- 1-1968 under Ex.A.6. Mr.Bhujanga Rao sold his entire share of 4000 sq yards to Women’s Cooperative Society vide registered document No.1823/67, dated 18-6-1967 under Ex.A.5. Mrs.E.Shankaramma sold 2000 sq yards in favour of Women’s Cooperative Society vide registered document 1140/68, dated 15-4-1968 and retained 2000 sq yards under Ex.A.7. After the death of E.Shankaamma her Legal Representatives Mr.E.Amarender Reddy, Mr.E.Venkataam Reddy and Mr.E.Bharat Reddy inherited her property admeasuring 2000 sq yards. They were impleaded as Plaintiffs 15 to 17. Smt Kishoi Bhujanga Rao entered into an agreement of sale with Silent Valley Cooperative Society on 25-6-1981 for 4000 sq yards with an understanding that after obtaining a sanctioned layout 1000 sq yards shall be returned back to her under Ex.A.8. Women’s Cooperative Society purchased an extent of 10,000/- sq yards, which it has registered in favour of Smt.D.Rajyalakshmi an extent of 1000 sq yards, under registered document No.2330/71, dated 27-10-1971 under Ex.A.34, Smt.Saraswathi an extent of 1000 sq yards, vide registered document No.1706/1975, dated 15-6-1975 under Ex.A.35, Dr.Sarala Ravikanth to an extent of 903 sq yards, vide Doc.No.391/1982 dated 20-1-1982 under Ex.A.26, Smt.Radha Menon to an extent 909 sq yards, vide document No.387/1982, dated 20-01-1982 under Ex.A.28, Smt.K.Bharathi to an extent of 920 sq yards, vide document No.386/82, dated 20-01-1982 under Ex.A.30, K.Vidyulathamma to an extent of 919 sq yards, vide document No.388/82, dated 20-01-1982 under Ex.A.32, Smt.M.Sahilatha to an extnt of 914 sq yards, vide document No.392/1982, dated 20-1-1982 under Ex.A.24, M.V.Rajasekhar Reddy to an extent of 904 sq yards, vide document No.389/82, dated 20-01-1982 under Ex.A.36, Smt Prema Smitha to an extent of 907 sq yards, vide document No.390/1982, dated 20-1-1982 under Ex.A.38 and Smt.P.Kalpana to an extent of 910 sq yards, vide document No.607/1982 under Ex.A.1. Meanwhile, the Municipal Corporation of Hyderabad sanctioned a lay out vide Permit No.25/layout/8/70. During the trial, the plaintiffs examined PWs.1 to 7 and marked Exs.A.1 to A.39 and on behalf of defendants sole witness DW.1 was examined and Exs.Ab.1 to B.40 were marked. The original document bearing No.420/66 could not be filed as the same was not available as it changed number of hands, and land was sold to number of persons but a certified copy is filed. The said document is ore than 30 years old and a certified copy of the same is sought to be received as secondary evidence under Section 90 of Evidence Act. The entire extent purchased by the 1st plaintiff society is already transferred by way of registered sale deeds in favour of individual members who are plaintiffs’ No. 9 to 18 and possession was handed over to them. While so, the 2nd defendant in the suit O.S.No.106/91 Mr.P.Sri Ramulu, Respondent No.19 in the Appeal projecting himself as the agreement holder of one D.Ramchandra Reddy, 1st defendant therein field an injunction Suit O.S.No.79/88 on the file of III Assistant Judge, City Civil Court, Hyderabad against one B.N.Reddy who is no way concerned with the property and obtained injunction order in I.A.No.14/1988 and on the strength of the same encroached upon the suit schedule property and raised unauthorised structures over a small extent of the suit property on the Northern side illegally without any municipal sanction apart from trying to occupy th entire suit property. The defendants No.1 & 2 set up a claim stating that the 1st defendant acquired the said property under a registered sale deed bearing document No.252, dated 27th Ardi-Baheshth, 1357 Fasli From Abdulla Pasha and contended that they perfected their title by way of adverse possession. On verification from the registration department, it is found that no such sale deed is registered and that it is a bogus claim. The endorsement in Government under Ex.14 issued by Registration Department is as follows: “On 30-10-1989, Smt.V.Radhabayamma, Secretary, Women’s Cooperative Society, Hyderabad made a search application No.1707/1989 under Ex.A.15. The District Registrar, Hyderabad on the said application made the following endorsement: “Search has been made for the above mentioned document: Document Bearing No.252 of 1357 F in favour of D.Ramchandra Reddy was not registered in our office”. The endorsement on the document shows that the document was presented before the Sub-Registrar of City Hyderabad Deccan on this the 26th day of Ardibahisht 1357 Fasli Friday 4:00 PM for the purpose of Registration. It is to be noticed that in the Hyderabad State prior to 26th January, 1950, Friday was observed as the first day of the week and as a weekly holiday. Thereafter, by an enactment No.VIII of 1950 viz., “The Hyderabad Weekly Holiday (substitution of Sunday for Friday) Act, 1950 the weekly holiday was changed from Friday to Sunday. Thus, the document couldn’t have been presented for registration on a holiday as seen from the calendar Ex.A.16-Calendar. The most important factor is that when search was made in the Office of the Sub-Registrar, City, Hyderabad Deccan in the relevant period and no such document was found to be registered and an endorsement to that effect is made by the concerned Officer of the Registration department. The only document bearing No.252 of 1357 Fasli, period pertains to a property belonging to one Mohd Qasim, a Butcher by profession who gifted half portion of the house property situated in Laldarwaza, Balda Farkhunda Buniyad, Myakalbanda, Hyderabad Deccan admeasuring 143 sq yards in favour of his wife Smt. Jahangir under Ex.A.14. Government filed Land Grabbing case No.129/1989 and the same was dismissed on 16-08-1993 as the government could not prove its title and aggrieved by the same review petition was filed and the same was dismissed. The respondents/plaintiffs were not made parties to the said proceedings through the suit O.S.No.106/1991 was filed before the disposal of the land grabbing case and the appellants were aware of the claim of the respondents. Before the Land Grabbing Tribunal 1st defendant admitted that he has executed an agreement of sale and GPA in favour of 3rd defendant but later got himself impleaded in case and contested the matter. Defendant No.1 gave a Paper Publication in Deccan Chronicle cancelling the GPA executed in favour of 3rd defendant on the basis on which, 3rd defendant had already sold 7260 sq yards in favour of 5th defendant. The balance of 500 sq yards was in possession of B.Dayakar Reddy who was not a party to the suit, hene their contention that the suit was liable to be dismissed for misjoinder of parties was barred by limitation. On the pleadings of the parties to the suit, the following issues were framed: 1. Whether the plaintiffs are entitled to the decree as prayed for? 2. Whether there are no survey numbers namely 340 corresponding to survey No.129/30 at the spot (old) as claimed by the plaintiff? 3. Whether the defendants have perfected their title by adverse possession over the suit property and their possession has already upheld by the Revenue Courts as well as City Civil Court? 4. To what relief? ADDITIONAL ISSUES: 1. Whether O.S.No.79/88 on the file of the III Assistant Judge is having any effect on this suit? 2. Whether the Revenue authorities decisions have become final as pleaded by the defendants? The documents filed by the plaintiffs and the defendant No.3 clearly go to show that the suit property is in survey No.129/30 corresponding to new survey No.340 admeasuring Ac.3-13 gts at Banjara Hills, Shaikpet Village, Golconda Mandal, Hyderabad. It is contended by the Defendants No.1 and 2 that the Judgment in O.S.No.79/88 and the injunction granted against one B.N.Reddy who is stranger to the property is binding on the plaintiffs. Though it is pleaded that the Judgment in O.S.No.79/1988 is binding on the plaintiffs neither any evidence is adduced nor a copy of the judgment is filed in the Court. The defendant in the suit, B.N.Reddy also filed appeal against the decree passed in the said suit, but the copy of Judgment in the C.M.A. is also not filed in the Court. That suit was filed for injunction, whereas the present suit filed is for declaration of title and possession. Thus, the plaintiffs had no opportunity to defend themselves and as such are not bound by the Judgment or orders in O.S.No.79/88 or C.M.A.No.260 of 1989. The case of the defendants No.1 to 3 is that his vendor the defendant No.1 purchased the suit property under Ex.B.1 dated 27th Ardhibhest 1357 Fasli and further that the suit property originally belonged to Abdulla pasha who sold the same in favour of defendant No.1 under Ex.B.1. On the basis of the said registered document Ex.B.1 the suit property was mutated in the name of defendant No.1 under B.6 by the M.R.O on 18-12-1978. Government filed a land grabbing case L.G.C.No.129/1989 against the defendants 1 to 3 and the said case was dismissed on 16-8-1993 as the government failed to prove its title. The dismissal of the land grabbing case does not confer any title to defendants No.1 to 3 and there is no finding with regard to their possession. The review filed by the Government was also dismissed. The judgment and review order of the Land Grabbing Court is filed and marked as ex.B.3 and B.4. However, the issue before the Land Grabbing Court was the title of the Government. The Government failed to establish its title. The Land Grabbing Court on the basis of the title of original owner Abdulla Pasha found it to be a private property. In any case the plaintiff in O.S.No.106/1991 not being party, the findings do not bind them. The case of the plaintiffs in reply to the above contention of the defendants/appellants is that the registered sale deed, the title document bearing No.252, dated 27th Ardhibhest 1357 Fasli is forged and fabricated document. On the search made in the Registration Department, it has come to light that no such document has been registered in respect of the suit schedule property. The defendants failed to produce a certified copy of the said document. The factum of forgery is evident from the Exs.A.13 to A.18 and Ex.B.1 is brought into existence for the purpose of grabbing the suit schedule property. The mutations in the Town Survey Record, Pahanies, Sethwar, Wasool Baqui Register, Adangal and payment of property tax and electricity bills etc., do not confer title and are all based on Ex.B.1 which is a forged document. The mutation in the name of Defendant No.1 was done believing Ex.B.1 to be a genuine document and the plaintiffs and their predecessors do not have notice of the same. Any other documents like entries in revenue records, tax receipts, bills etc., are of no consequence when the very document Ex.B.1 is a fictitious document. Further the status reports filed vide Ex.B.39 and B.40 by the defendants are also fabricated documents as they do not bear the seal and signature of the issuing authority. Defendants did not take possession of the property until the issuance of Ex.B.6 i.e., 1978 though Ex.B.1 is of 1357 Fasli (1947). It is common case of the parties that Abdulla Pasha is the original owner through whom both the parties are claiming title. The Defendant No.1 claims that he purchased the said property from Abdullah Pasha under the so called registered sale deed bearing No.252, dated 27th Ardhibhest 1357 Fasli, Ex.B.1 and Defendant No.2 claims that he has an agreement from 1st defendant but the said contention is rejected on considering the oral and documentary evidence and on the basis of Ex.A.13 to A.18, Ex.B.1 is held to be forged document and further it was held that Ex.A.3 to A.9 establishes the title of plaintiff 1 to 4 and 15 to 17 and vide Ex.A.1 and A.2 and Exs.A.24 to A.30 the title of plaintiffs 5 to 14 and Exs.A.11 and A.12 along with Ex.A.19 to A.22 apart from other exhibits the possession of the plaintiff, respondents herein was upheld. The trial Court elaborately discussed respective contentions of the parties taking into consideration oral and documentary evidence and decreed the suit with costs holding that the plaintiffs are the owners and possessors of the suit land and that the structures unauthorizedly raised by the defendants were directed to be removed and the defendants were restrained from interfering with the peaceful possession of the plaintiffs over the suit land. The appeals came to be decided by the Divisiion Bench consisting learned Judges Justice D.S.R.Varma and Justice D.Appa Rao, as they then were. The learned Judge D.S.R.Varma allowed the appeals while Justice D.Appa Rao dismissed the same. The learned Judge Justice D.S.R.Varma on the validity of the gift by Abdullah Pasha in favour of Shaik Abdullah, found fault for failure on the part of the plaintiffs to prove gift by that Abdulla Pasha gifted the property in favour of Shaik Abdulla by marking the said gift and also held that for want of registration the said gift is not valid. Further, that the proceedings of the Mandal Revenue Office in this behalf where under basing on the said gift mutation was implemented are of no legal consequence. It is submitted that the sale by Amoodi who is purchaser from Shaik Abdulla in 1964 vide registered document No.2357 of 1964 for a consideration of Rs.2,500/- under Ex.A.3, and at this distance of time to expect subsequent purchasers to produce the proof of the gift is asking for impossible. On the other hand, best evidence has been placed which is ex.A.9 judgment in LGC.No.129/1989. Further under the Mohammedan Law an oral gift can be acknowledged in writing and the same does not require registration. The gift can be oral. That apart the claim of the Appellants is solely based upon the alleged title of D1 Ramachandra Reddy which is a fictitious document as already submitted above. As regards the validity of Ex.B.1, it has to be noticed that the custodian of Records namely the Registration Department categorically gave a reply to the search application that no such document was ever registered in their Office and the document No.257/57 F relates to some other property. In the light of this it can safely presumed that no sale deed bearing No.252, dated 27th Ardhibhest 1357 Fasli was registered by Abdullah Pasha in favour of Defendant No.1 document and the document filed in the court is forged and fabricated document. Secondly 27th Ardhibhest 1357 happens to be a Friday and a public holiday in the State of Hyderabad at the relevant period. The calendar of the said year 1357 Fasli is also filed in the court and marked as ex.A.16. therefore, when the very title of D.1 is not proved and the Ex.B.1 sale deed is a fictitious document, the question of Appellants having any claim, over the suit property in O.S.No.106/1991 filed by the plaintiffs, Respondents in the Appeal or claiming any relief in the Suit O.S.No.611/1996 after a lapse of 5 years does not arise. It is submitted that Plaintiffs in O.S.No.106/1991 sought for a comprehensive relief for declaration of title and perpetual injunction and in support of their claim have filed all the registered sale deeds and Revenue Records except for the link document of their vendor Shaik Ahmed Amoodi bearing document No.420 of 1966 as the same was misplaced due to various transactions as the entire extent was sold in favour of several persons. All the other documents pertaining to the title of the plaintiffs were filed and both documentary and oral evidence was led to prove their title and possession. The defendant No.3 filed the suit O.S.No.611/1996 after a lapse of 5 years though they were defending the comprehensive suit field by the Plaintiffs in O.S.No.106/1991. The learned Judge Justice D.Appa Rao differed with the learned Judge Justice D.S.R.Varma and held that the plaintiff in O.S.No.611/1996 could not prove his title in spite of the fact that independently formulated the following issues and dismissed the appeals holding that in spite of the fact that the present plaintiff was a party to O.S.No.106/1991, he did not choose to file the suit for five years. For the first time, he filed the suit on 20-01-1996 basing on A-3 agreement of sale dated 25-01-1988 alleged to have been executed by E-1 and D-2 in his favour. The defendants 3 to 18 in O.S.No.106/1991 contended that D-1 has no title over the property, in order to convey it, the plaintiff did not choose to examine himself. Instead relied on Ex.A-9 judgment in LGC No.129/1989 and Ex.A.10 deposition of D.1 in the said proceedings, which shows that the matter relates to 3838 sq meters forming part of T.S.No.18/P and 21, Ward No.12, Block K, correlating to Sy.No.403/Part. Under A-3, the property that was sold was Acs.3-00 in Sy.No.129/30. Importantly, defendants No.3 to 18 in O.S.No.106/1991 are not parties to the said proceedings. The Land Grabbing Court opined that there were tampering of the record. Since the defendants were not parties, there was no occasion for them to place the material on record to show that the sale deed was fabricated. The learned Judge Justice D.Appa Rao further held that “This is a curious case where D-1, the so-called owner of the property having purchased under Ex.A.1 did not execute agreement of sale in favour of plaintiff. A perusal of Ex.A-3 show that the 2nd defendant executed the agreement of sale in favour of the Plaintiff. Importantly, the fact that he executed Ex.A.3 along with D-2 was not made a mention in Ex.A.2. this is glaring since this document is subsequent to Ex.A.3. The receipt Ex.A.4 was taken which shows that passing of advance amount is colourable. Cheque was never presented in the bank. Equally, there is no proof that cash was paid. This shows that D-1 and D-2 with collusion of plaintiff had created Exs.A-1 and A-2 in order to defeat the rights of D-3 and D-8. The deposition of a witness cannot be believed, where the defendants are not parties to the said proceedings. They have no opportunity to cross-examine. Evidently, the proceedings are altogether different. They belong to a different land. D-3 to D-18 are not the parties to the land grabbing proceedings. Therefore, the deposition of Ex.A-10 cannot be relied by the plaintiffs in order to prove his so called agreement. Further, the Learned Judge held that assuming Ex.A-10 could be relied, D-1 deposed that he did not execute any sale deed or agreement with anyone else from the date of purchase till the date of execution of agreement in favour of Plaintiff. I over rules execution of agreement in favour of D-2. Simply by taking signature of D-12 on Ex.A-3 does not confer any right to the plaintiff or for that matter for D-2. As the stamp duty paid was insufficient, got it impounded from the District Registrar under Indian Stamp Act on 30-4- 1996, just before filing of the suit. The signature of D-3 was obtained on Ex.A-3. This is highly unnatural. The recitals in Exs.A-2 and A-3 are mutually contradictory. They do not constitute agreement of sale in favour of plaintiff. PW-1 could not explain as to these glaring discrepancies. The plaintiff did not allege anywhere that D-2 in fact was the owner. When Exs.A- 1 and A-2 falsify the story put forward by the plaintiff, the question of granting relief of specific performance will not arise. It is submitted that D-2 filed Xerox copy of sale deed in favour of D-1. the original was said to have been filed in the other suit. Though he undertook to file a registration extract of sale deed, he did not file it. This is relevant in view of the fact that the defendants contend that it was a fabricated and forged. The learned Judge held that since the grant of decree under Section 20 of the Specific Relief Act, 1963 rests in the discretion of the Court and cannot be claimed as a matter of right. It cannot be said that in every case wherever there is a valid contract or subsisting agreement, a decree for specific performance ought to be passed. It is a discretionary relief to be granted by the Court equitably depending upon the fact and circumstances of each case. Where trial court has exercised its discretion in one way, an appellate Court will not interfere unless it be established that the discretion has been exercised perversely, arbitrarily or against judicial principles. In the light of the facts, the plaintiff would not be entitled to any relief, particularly, the relief of specific performance. I have closely perused the entire evidence in this case