THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.406 OF 2003 Date: 27-07-2011 Between: Mamidipalli Raja Bhoomaiah and others .. Appellants And Mamidipalli Pedda Gangaram and others .. Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.406 OF 2003 JUDGMENT: The defendants in O.S.No.21 of 1987 on the file of the Senior Civil Judge, Jagtial are the appellants herein. The suit was filed for declaration of the title of the 1st plaintiff over the suit schedule property to an extent of Ac.2-07 guntas of land in Sy.No.1236/1 to 3 and for possession of the same and for cancellation of the decree in O.S.No.221 of 1984 dated 09.05.1984 passed by the District Munsiff, Metpalli and also further relief that the sale deeds executed by the 1st defendant in favour of the defendants 2 to 6 are not binding. The allegations in the plaint go to show that the plaintiff is the owner of the schedule property and his name was entered in the pahanies from the year 1961-62 to 1983-84. The 1st plaintiff entered into an agreement of sale with the plaintiff No.2 to sell the schedule land and received an advance of Rs.16,000/- in cash and delivered possession of the vacant land. A general power of attorney was also executed on 24.01.1987. The plaintiff No.2 went to the schedule land on 27.01.1987 in order to make the plot and defendants 1 to 6 objected claiming title and possession purported to be suffered and relied on the decree in O.S.No.221 of 1984 against the 1st plaintiff. The 1st plaintiff immediately rushed to the Court and obtained the copy of the decree along with plaint, written statement. The 1st plaintiff was never served with any notice or summons in the above suit. He never engaged a lawyer by name Shankar Rao and he did not give his vakalat. The 1st defendant by impersonation got it filed. The plaintiff No.1 did not sell the land to 1st defendant on 10.06.1988 orally for Rs.95/- and did not deliver possession. Taking advantage of the fact that the plaintiff had heart- attack in May, 1984, the suit was filed with false allegations and obtained the decree in O.S.No.221 of 1984. The 1st defendant has illegally occupied the property and sold the same in favour of the defendants 2 to 6 and hence the suit. The 1st defendant filed written statement contending that the plaintiff is not the owner of the schedule property and the alleged agreement of sale with the 2nd plaintiff is also denied. There is no fraud in the decree in O.S.No.221 of 1984. The allegations that the 1st plaintiff suffered heart-attack is also disputed. The reliefs claims by the plaintiffs are not tenable. It is was pleaded that the 1st defendant and the 1st plaintiff are the brothers and there is another brother by name Bhoomaiah. Their father Pedda Ramaiah was the owner and it was his self-acquired property. During the year 1952, there was a oral partition and a family arrangement was arrived it. The suit land was allotted to the 1st defendant and at that time the 1st defendant was a minor. Their father died on 19.06.1968 and executed a registered will deed during his life time confirming the above family arrangement. The defendant further pleaded that in the year 1968, the plaintiff No.1 agitated for the suit land and demanded a sum of Rs.95/-. On 10.06.1968, the said amount was paid. On 01.05.1984 the 1st defendant and plaintiff No.1 approached one Sri Kameshwara Murthy, Advocate to obtain a common consent decree and, therefore, the suit O.S.No.221 of 1984 was filed and the plaintiff No.1 filed a consent written statement through the Advocate Sri N.Shankar Rao. The plaintiff No.1 admitted the possession and enjoyment of the property. Therefore, the decree is valid. The defendant further claimed that for his necessities, he sold the part of the lands to the other defendants and received consideration. The suit is, therefore, liable to be dismissed. The 7th defendant filed a written statement supporting the claim of the plaintiff and claims to have purchased the part of the property, which, in turn, was sold to the 8th defendant. The 8th defendant filed a memo adopting the written statement of the 7th defendant. The 9th defendant filed written statement claiming that part of the land was purchased from the 1st defendant on 14.08.1986 for a valuable consideration and the plaintiff is not entitled for the reliefs prayed for. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the decree dated 09.05.1984 in O.S.No.221 of 1984 against the plaintiff No.1 on the file of the District Munsiff Court, Metpalli is void, illegal and is liable to be cancelled as pleaded by the plaintiffs? 2. Whether Katkam Chandraiah and Smt.Vasam Sharada are proper and necessary parties to the suit as pleaded by the defendants? 3. Whether the plaintiff No.1 has title to the suit schedule ‘A’ land and was in possession thereof within 12 years before the date of filing of suit? 4. Whether the plaintiff No.1 is entitled for declaration of his title to the suit schedule ‘A’ land and for recovery of possession thereof as prayed for? 5. Whether the plaintiff No.1 is entitled for relief of cancellation of the decree dated 09.05.1984 in O.S.No.221 of 1984 on the file of District Munsiff, Metpalli as prayed for? 6. To what relief? The following additional issue was framed on 06.12.1990: Whether defendant No.8 is a bonafide purchaser of the suit land in Sy.No.1236/2 to an extent of 273 sq. yards from defendant No.7? or whether the sale of this property by D-7 to D-8 is hit by doctrine of lis pendens? The following additional issues were framed on 15.04.1991: 1. Whether the defendant No.1 sold land in Sy.No.1236/1 to an extent of 968 sq. yards on 14.8.1986 for Rs.19,500/- to defendant No.9 under registered sale deed? 2. Whether the defendant No.9 is bonafide purchaser for valid consideration? On behalf of the plaintiffs, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-26 and on behalf of the defendants, D.Ws.1 and 2 were examined and marked Exs.B-1 to B-27. After considering the material and the evidence on record, the learned Senior Civil Judge, Jagtial decreed the suit of the plaintiffs and aggrieved by the said judgment and decree, the present appeal is filed. The points that arise for consideration are: 1. Whether the plaintiff is entitled for declaration prayed for? 2. Whether the plaintiff is entitled for the relief of possession? 3. Whether the judgment and decree passed by the learned Senior Civil Judge, Jagtial is legal and sustainable? POINTS 1 to 3: Before proceeding with the decision in this case, it is useful to refer that pending the appeal a compromise petition was filed by the appellants and also the 1st respondent-plaintiff in A.S.M.P.No.14401 of 2004 to record the compromise on the ground that the plaintiff and the 1st defendant have compromised the matter and the plaintiff has agreed to forego all the rights in the property and also the Will executed by the father in favour of the appellant No.1 was also confirmed and the plaintiff is said to have received Rs.50,000/- from the appellants. The claim against the 2nd respondent was not pressed. The said compromise was recorded in A.S.M.P.No.14401 of 2004 and accordingly the appeal was allowed as the 2nd respondent was said to be not a necessary party. However, A.S.M.P.No.15480 of 2004 was filed by the 2nd respondent in this appeal contending that the compromise on the ground that all the parties to the suit was not made as parties and the 2nd respondent claims that during the pendency of the suit a registered sale deed was obtained and it was not brought to the notice of the Court and, therefore, the compromise is to be set aside. On the same grounds the said application in A.S.M.P. No.15480 of 2004 was allowed and consequently it has necessitated now to decide about the rights of the parties. After the death of the 1st respondent, his legal representatives also filed a memo supporting the alleged compromise by the plaintiff No.1. Therefore, the point for consideration is whether the 2nd respondent has derived any rights from the 1st plaintiff and as to whether the decree granted by the lower Court is legal and sustainable. It is to be noted that the allegations in the plaint itself go to show that the 2nd respondent, who is the 2nd plaintiff in the suit, is only a purchaser under an agreement of sale and also a General Power of Attorney holder. Therefore, any registered sale deed, which was said to be executed during the pendency of the suit is only hit by the principles of lis pendens and it will not bind any of the other parties. The 2nd respondent will get title to the property only if the suit of the 1st plaintiff is to be allowed. The learned counsel for the 2nd respondent sought to contend that the documents filed on behalf of the plaintiff and exhibited before the lower Court and the reasoning given by the lower Court clearly go to show that the decree passed by the lower Court is legal and sustainable. However, it is to be noted that cases of this nature where a declaration is sought by the plaintiff with regard to the title, the burden is on the plaintiff to prove the title. It is also necessary to establish the fraud, which is said to have been practiced on the 1st plaintiff by the positive evidence and by positive pleading. The learned counsel for the appellant relied upon the following decisions touching on these aspects: 1. S.P.Chengalvaraya Naidu v. Jagannath[1] 2. Sajana Granites, Madras v. Manduva Srinivasa Rao and others[2] 3. Vintec Electronics Private Ltd. v. HCL Infosystems Ltd.[3] 4. Savithramma v. H.Gurappa Reddy and others[4] 5. Narayanan v. Official Assignee, Rangoon[5] It is the specific case of the plaintiff that he did not engage any Advocate by name Shankar Rao and he did not give his vakalat or written statement and they are all fabricated at the time when he was said to be sick. The lower Court has taken into consideration the report of an hand-writing expert, which is marked as Ex.A-25, whereunder the disputed finger prints of the 1st plaintiff are said to have been compared with the vakalat and written statement in the suit in O.S.No.221 of 1984. It is preliminary that such type of evidence is not admissible without examining the expert and, therefore, reliance on Ex.A-25 by the lower Court is not valid. According to the claim of the plaintiff, the decree in O.S.No.221 of 1984 was obtained within a period of three days even without service of the summons and as such it shows an element of fraud. The lower Court also found fault for not taking the registered documents into consideration. It is to be noted that the suit is of the year 1984 and in Telangana area such type of decrees are only advised in most of the places on the parties to any transaction. Therefore, merely because, a consent decree is obtained and that too it was disposed of within a short time, there cannot be any doubt about the genuineness of it keeping particularly in view of the practice prevalent in the area. There is no reason given by the plaintiff for not examining the persons from the office of Shankar Rao or Shankar Rao himself. It is to be noted that fraud is quite different from forgery. If it is a fraud on the Court, it is a different thing and if it is a forgery of the vakalat and written statement, etc. it is a different thing. The question of utmost importance is whether the plaintiff No.1 has gone to the office of Shankar Rao and gave the vakalat and consent written statement. Shankar Rao is the best person to speak about it and except the interested testimony of the P.W.1, who is the plaintiff, no other witness was examined to prove the circumstances or otherwise that he did not sign on the vakalat or the written statement. Further, it is to be noted that there was no plea as to what was the need for the 1st defendant to fabricate the said document. Evidently, the decree was passed in O.S.No.221 of 1984 on 09.05.1984 and the suit under this appeal was filed in the month of March, 1987 and the suit appears to be within a period of three years. Though the plaintiff, who claims that he had heart attack at the relevant time of filing of the vakalat in the Court, no doctor was also examined to prove the above facts except filing some medical prescriptions under Exs.A-1 to A-6 dated 16.11.1987. They do not reflect for the relevant period of May, 1984. The lower Court found that the decree is a collusive one. Even from the admission of the 1st defendant, this finding cannot be accepted because there is a difference between a collusive decree and a consent decree and also a fraudulent decree. If it is a case of collusive decree, then naturally the contention of the 1st plaintiff has to be taken into consideration and the observation of the lower Court that with some ulterior purpose a decree, which is collusive, is obtained and, therefore, it is not valid, cannot establish the truth of the claim of the plaintiff. The lower Court also accepted the contention of the defendant that the alleged illness of the 1st plaintiff was not proved. No reason was given for non-examination of Shankar Rao as found by the lower Court in the para 9 of the judgment and the learned counsel for the plaintiff was satisfied to rely upon the circumstances. The lower Court has also taken into consideration ridge characteristics, etc. and found that there are strong circumstances that the thumb impressions are forged one. The learned Judge has not given any reasons about his expertise and capability to give an opinion about the genuineness of the finger-prints. The evidence, therefore, adduced on behalf of the 1st plaintiff is insufficient and except Ex.A-25, which is relied upon by the lower Court, there is no other material evidence to prove that the finger prints or the thumb impressions does not belong to the 1st plaintiff. The fact that the 1st defendant and his alienees are in possession of the property is not in dispute. Therefore, even if the partition pleaded by the 1st defendant is not proved under Ex.B-27, still possession has to be taken into consideration. It is not in dispute that earlier there was a partition of joint family property but there was no partition deed. The family arrangement, according to the 1st defendant, was in 1952-53. The 1st plaintiff only relied upon the entries in the Records of Rights and also some tax receipts, which, evidently do not confer any title when admittedly, possession is not there for the 1st plaintiff. Evidently, after the decree, the name of the 1st defendant is shown as person in possession and Exs.A-18 to A-22 show for a period from 1961 to 1964 the name of the 1st plaintiff was shown. There is no revenue records filed continuously to show the possession and enjoyment from 1961. The 1st plaintiff, as P.W.1, claimed that he has got the property in partition about 40 years back and the lower Court has also found that he has not given the date of partition and except the village account showing the name as pattedar in one of the suit survey numbers, there is no other document evidencing his ownership of the land. Even otherwise, it is a case of the 1st defendant that an agreement was executed for a sum of Rs.95/- and on the basis of that the consent decree was obtained. Even assuming to be for a moment that the 1st plaintiff was the owner of the property by virtue of the sale, on the basis of which the consent decree was obtained, the 1st defendant become owner of the property. Therefore, even apart from the genuineness of the will, the very fact that this decree was passed on the basis of an agreement of sale clearly establishes that the 1st defendant is the owner of the property. There is absolutely no material to show that the decree obtained in O.S.No.221 of 1984 is a fraudulent one and even once such a decree is not fraudulent one, the 2nd defendant does not get any rights in the property and consequently if there is a sale deed in his favour, it will not confer any rights and that too when the sale transaction has taken place during the pendency of the suit. Therefore, in view of the above circumstances, I find that the judgment and decree passed by the learned Senior Civil Judge, Jagtial is not legal and sustainable. Therefore, the Appeal Suit is allowed setting aside the decree of the lower Court in O.S.No.21 of 1987 dated 10.02.2003. The suit of the plaintiffs is dismissed. There shall be no order as to costs. ________________________ N.R.L.NAGESWARA RAO, J 27-07-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.406 OF 2003 Date: 27-07-2011 MR [1] (1994) 1 SUPREME COURT CASES 1 [2] 2002 (1) ALT 466 A.P. [3] 2007 AIR SCW 7015 [4] AIR 1996 KARNATAKA 99 [5] (28) A.I.R. 1941 PRIVY COUNCIL 93