THE HON’BLE SRI JUSTICE V.V.S.RAO APPEAL SUIT NO.863 OF 1989 05.08.2010 Between: S.M.A.Khader and others …. Appellants AND K.Rajagopala Prasad died per LRs … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO APPEAL SUIT NO.863 OF 1989 JUDGMENT: Appellants are plaintiffs in O.S.No.100 of 1978 on the file of the Court of the Subordinate Judge, Vijayawada. They instituted said suit against respondents (hereafter called defendants 1 and 2) for possession of items 1 and 2 of suit schedule, namely, plot Nos.91 and 92 respectively comprised in R.S.No.84 of Bhavanipuram in Vijayawada. The suit was dismissed by the Court below holding that the plaintiffs failed to prove their right to seek possession and also on the ground that plaintiffs did not adduce any evidence to show that they have been in possession twelve years prior to institution of the suit. The case of the plaintiffs is as follows. First plaintiff is the son, second plaintiff is the wife and plaintiffs 3 to 5 are daughters of one S.M.Abdul Haq. The father of the first plaintiff S.M.A.Haq purchased the land admeasuring Acs.6.00 in R.S.No.84 under registered sale deed, dated 29.10.1945, on behalf of the firm, M/s.S.M.A.Haq Saheb and Brothers (hereafter called, the firm) in which, he was Managing Partner. Haq died on 18.11.1947. His brother’s son S.M.A.Khuddus and other family members enjoyed the property. One of his daughters Jeenathunnisa Begum filed O.S.No.8 of 1950 on the file of the Court of the Subordinate Judge, Guntur for partition. The suit ended after cash amount was paid to her. Another daughter of Haq also was paid some amount and she relinquished her right under relinquishment deed, dated 26.12.1970. S.M.A.Khuddus died on 04.03.1974. The firm was dissolved and by virtue of alleged family arrangement, plaintiffs 1 to 5 became owners of the property by reason of being legal heirs of S.M.A.Khuddus. The land admeasuring Acs.6.00 was divided into plots. The layout was approved. On 27.12.1955, southern portion of item 2 of suit schedule was sold to M.Elavia by plaintiffs 1 to 5 and S.M.A.Khuddus. The northern portion of the said plot was agreed to be sold to sixth plaintiff under agreement of sale dated 01.07.1978. Under the said agreement, possession was delivered to him. The plaintiffs 2 to 5 also sold other plots. When plaintiff 6 went to the plot of item 2, defendants 1 and 2 objected alleging that under document executed by S.M.A.Khuddus, they sold the plots. Therefore, initially plaintiffs instituted suit for injunction. They also filed interlocutory application for ad interim injunction. When the application was dismissed recording a finding that plaintiffs were not in possession of the property, the suit was amended and relief of possession was claimed. First defendant filed written statement which was adopted by second defendant. The case of first defendant is that under contract of sale dated 30.11.1949, S.M.A.Khuddus, the Managing Partner of the firm, sold an extent of Acs.5.00 in R.S.No.84 for sale consideration of Rs.9,500/- per acre to M/s.Velagapudi Satyanarayana and Company (hereafter called, the VSN firm) and delivered possession. At the time of agreement, an amount of Rs.2,500/- by way of cheque was received by S.M.A.Khuddus and balance sale consideration was paid with interest thereon to S.M.A.Khuddus. It was given by wife of first defendant who was a partner in VSN Company. VSN Company also purchased another Acs.4.00 from one Bommasani Subbaiah. A layout was prepared with 100 plots. After getting approval, plots were sold in 1949. Khuddus and other partners of the firm executed the sale deeds and the sale consideration was received by VSN Company. All the partners of the firm shared sale consideration of Rs.49,000/-. Khuddus and other partners of the firm executed and registered sale deeds in favour of purchasers and sale proceeds were received by VSN Company. The further case of the defendants is that except an extent of one acre, the entire land was sold away by VSN Company in 1949, and that the brother of first defendant Radha Krishnaiah was having half-ana share in VSN Company as benami of first defendant. Therefore, the relinquishment deed was executed on 16.07.1973 by Radha Krishnaiah, by virtue of which first defendant became a partner. The entire land revenue is being paid by first defendant and he has been in exclusive possession. The plaintiffs are estopped from disputing the validity of sales made by VSN Company. By virtue of Section 53 of the Transfer of Property Act, 1882 (TP Act, for brevity), defendants are entitled to retain possession and all the partners of the firm and their successors are bound to execute the sale deeds in favour of VSN Company. The plaintiffs were never in possession of the property after 30.11.1949 and when the sixth plaintiff tried to trespass into the suit land, objection was raised and police report was given. The trial Court having regard to the pleadings framed four issues and subsequently two additional issues were framed. After suit was converted into one for possession, two additional issues were framed and original issue No.1 was deleted. The issues, which were tried, are as follows. (i) Whether the contract of sale, dated 30.11.1949 is true, valid and binding on the plaintiffs; (ii) Whether Section 53-A of the TP Act is a bar for filing of the suit; (iii) Whether the plaintiffs have subsisting title to the suit schedule property and are entitled for possession; and (iv) whether the suit is not in time? During the trial, plaintiffs examined first plaintiff as P.W.1 and marked Exs.A.1 to A.8. Defendants 1 and 2 deposed as D.W.1 and D.W.2 besides examining D.W.3 to D.W.9. They marked Exs.B.1 to B.42. Exs.X.1 to X.5 were also marked. Ex.A.1 is the registration extract of sale deed executed by Mukkamala Durgamma in favour of S.M.A.Haq Saheb and Ex.A.2 is the relinquishment deed executed by Fakrunnisa Begum, S.M.A.Khuddus and others. Ex.B.2 is the sale agreement executed by S.M.A.Khuddus in favour of VSN Company and Ex.B.3 is layout for R.S.No.84. Exs.B.6 to B.22 are cist receipts issued by village munsif in favour of D.W.1 and Exs.B.31 to B.34 were registered sale deeds executed by S.M.A.Khuddus and others in favour of third party purchasers. On considering evidence, the trial Court recorded findings which are as follows. (i) Ex.B.2, agreement of sale, dated 30.11.1949 executed by S.M.A.Khuddus and other partners of the firm is true, valid and binding on the plaintiffs; (ii) the defendants were in possession of the suit schedule property and at no point of time, plaintiffs entered into possession nor asserted title over the property. Therefore, their right to claim the property got extinguished under Section 27 of Limitation Act, 1963 and that the defendants cannot claim benefit of Section 53-A of the TP Act. Counsel for appellants (plaintiffs) contends that in the absence of a registered title deed in favour of VSN Company, the plaintiffs continued to be the owners and after the Benami Transactions (Prohibition) Act, 1988, they cannot claim title over the property. He would urge that first defendant cannot represent VSN Company even if the relinquishment deed was executed by his brother which is Ex.B.24, dated 16.07.1973. Nextly, he contends that having held that defendants were not entitled to any benefit under Section 53-A of TP Act, the Court below ought to have concluded that plaintiffs alone are in possession of the property. According to learned counsel, when plaintiffs or their predecessors were executing the sale deeds, it is highly improbable, that the sale consideration was received by VSN Company or its partners. Lastly, he contends that Ex.B.2 is a void agreement opposed to public policy and therefore, the same ought not to have been recognized by the Court below. The counsel for the appellants 1 and 2 submit that Ex.B.2 agreement was executed by S.M.A.Khuddus and other partners on 30.11.1949 and VSN Company prepared a layout for the land covered by agreement as well as another extent of Acs.4.00 of land purchased from Bommasani Subbaiah. All the plots were sold by 1949 and S.M.A.Khuddus and other partners executed the sale deeds. Therefore, the appellants are estopped from claiming any title or possession of the property. They would urge that the suit agreement of the plaintiffs is based on a family arrangement and no document was produced as to how the property of the firm came to be devolved on the plaintiffs, who are admittedly not partners either after the death of Haq or after death of father. They also submit that the suit was barred by limitation and plaintiffs were never in possession of the property twelve years before filing the suit. The evidence of P.W.1 is self-serving statement. There is no corroboration. The suit is filed in 1978 whereas VSN Company purchased land under Ex.B.2 in November, 1949. By that time, plaintiffs 1, 3 to 5 were either minors or not even born. Therefore, even if she is Pardanashin lady, evidence of second plaintiff would have been much enlightening. The self-serving evidence of P.W.1 that there is family arrangement after death by S.M.A.Khuddus in 1974 is of no avail. In the absence of any such document of family arrangement, the relinquishment deed, Ex.A.2 by itself cannot be of any assistance to plaintiffs. Further, they failed to produce any evidence to show that they have been in possession of the property after death of S.M.A.Khuddus on 04.03.1974. Therefore, plaintiffs’ case stands not proved. Insofar as evidence of defendants is concerned, D.W.1, first defendant has a direct stake in VSN Company. His wife and his brother are indisputably partners. After execution of Ex.B.24, relinquishment deed by his brother Radha Krishnaiah, D.W.1 became partner and he has produced the sale deeds Exs.B.1 to B.34 executed by S.M.A.Khuddus and others in favour of third parties. In addition, Exs.B.7 to B.22, which are cist receipts, would show that it is D.W.1 who is paying cist for the entire land till 1958, and therefore, on probabilities, the case of the defendants stands proved. When S.M.A.Khuddus or the firm represented by him, was in possession of the land, it is ununderstandable as to why D.W.1 paid cist. From this, an inference can be drawn that the firm sold the land to VSN Company under Ex.B.2 and handed over possession. D.W.1 being the partner went on paying the cist till all the plots were sold. This only shows that after agreement of sale, Ex.B.2, on 30.11.1949, the firm represented by S.M.A.Khuddus or plaintiffs were never in possession of the property or having lost the possession, the suit filed on 11.04.1978 is clearly barred under Article 65 of the Limitation Act. The trial Court has considered the questions of fact and law, and applied the law correctly after considering the evidence on record. This Court is convinced that no interference is called for. The appeal fails and is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. _______________ (V.V.S.RAO, J) 05.08.2010 pln