THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A.429 OF 2003 & Cross Objections(SR) 7580 of 2004 JUDGMENT: The first defendant in O.S.No.81 of 1994 on the file of the Court of III Additional Senior Civil Judge, City Civil Court, Hyderabad, is the appellant herein. The suit one was filed for declaration of title and possession of the suit schedule property and for damages. The allegations in the plaint go to show that the plaintiff is the absolute owner of the suit schedule property having purchased the same from one Md.Abdul Quadir and others on 10-05-1958 and the premises consists of ground floor and first floor. It was further submitted that the mother of defendant Nos.1 and 2 by name late Smt.Muttavarapu Suseela entered into an agreement of sale in 1976 and executed sale agreement on 24-01-1976 but as it was not enforced, it stood cancelled and the amount was refunded. During the life time of Smt.M.Suseela as the defendants have neglected she was provided accommodation in the ground floor which is the suit schedule property and she died on 03-08-1991 and the defendant Nos.1 and 2 are in possession of the suit schedule property without any authority. Inspite of repeated demands, the defendants have not vacated the premises and therefore they are liable for eviction and damages @ 1500/- per month. The first defendant while filing a written statement made a counter-claim. According to the first defendant, after 24-01-1976 when the plaintiff entered into the agreement with their mother and delivered possession, he has no title to the property. The alleged cancellation of the agreement is not true. The defendant and their parents were residing in the house under the agreement by paying consideration. The claim for damages is not tenable. There is no cause of action to file the suit. Apart from payment of Rs.50,000/- on the date of agreement the balance consideration of Rs.27,500/- was paid to the plaintiff by their mother. The plaintiff avoided to execute the registered sale deed. The plaintiff is the brother-in-law of the first defendant. The suit is filed on baseless allegations. The plaintiff was permitted by the mother of the first defendant to stay in the ground floor and was also permitted to collect the rents from other tenants on the first floor and the plaintiff is account for the same and therefore the counter-claim is made for damages @ 2000/- per month and also a declaration of the title in the entire suit schedule property and for recovery of the first floor portion in occupation of the plaintiff or in the alternative to refund a sum of Rs.77,500/-. For this the plaintiff filed a rejoinder in the form of written statement denying all the allegations and reiterating the allegations in the plaint. It was further pleaded that the agreement dated 24-01-1976 was a nominal one which was never intended to be acted upon and it was only a loan transaction for Rs.50,000/- taken as a loan by the plaintiff, which was repaid. The plaintiff therefore pleaded that the defendants are not entitled for the reliefs prayed for. The loan amount was returned during the life time of the parents of the first defendant. The counter claim is therefore liable to be dismissed. On the basis of the pleadings, the following issues have been framed for trial:- 1. Whether the plaintiff is entitled to an order of eviction against the defendants in respect of the ground floor portion of the property shown in the plaint schedule? 2. Whether the plaintiff is entitled to the damages for use and occupation of the premises at the rate claimed by him? 3. Whether the agreement of sale dated 24-01-1976 executed by the plaintiff in favour of the mother of the defendants is true, valid and binding? 4. Whether the defendants are entitled to the declaration of title as prayed for? 5. Whether the defendants are entitled to possession of the first floor portion of the premises in the counter-claim? 6. Whether the defendants are entitled to the declaration of confirmation of possession as prayed for? 7. Whether the defendants are entitled to a preliminary decree of rendition of accounts? 8. Whether the defendants are entitled to the damages claimed by them? 9. Whether the defendants are entitled to the future profits claimed by him? 10. To what relief? On behalf of the plaintiff PWs.1 and 2 are examined and marked Exs.A-1 to A-9. On behalf of the defendants DWs.1 and 2 were examined and marked EX.D-1. After considering the evidence on record, the learned Senior Civil Judge decreed the suit of the plaintiff and dismissed the counter-claim. He granted damages for Rs.200/- only per month from the date of the suit till delivery of vacant possession subject to payment of court fee. Aggrieved by the said judgment, the first defendant filed the present appeal and the plaintiff has filed Cross Objections for an enhancement of the damages. Now the points that arise for consideration in this appeal are:- 1. Whether the plaintiff is entitled for declaration of title and recovery of possession? 2. Whether the plaintiff is entitled for the enhancement of the mesne profits? 3. Whether the counter-claim of the defendants is valid and entitled to the reliefs as prayed for? 4. To what relief? POINTS:- In this case there is no dispute about the fact that the suit schedule property belongs to the plaintiff. It is also not in dispute that the mother of the defendants is the mother-in-law of the plaintiff. According to the case of the plaintiff, earlier there was an agreement dated 24-01-1976 wherein a sum of Rs.50,000/- was paid but it was subsequently cancelled and however his mother-in-law was allowed to stay in the premises in the ground floor and after her death, the defendants are continuing in possession without any manner of right. On the other hand, it is the contention of the defendants that sale transaction under the agreement dated 24-01-1976 was complete and the total consideration was paid and their mother continued in possession of the property as owner and the plaintiff having been in occupation of the first and second floors and managing the same is liable to account for the amounts. The issue in the suit depends upon the nature of the transaction dated 24-01-1976 though in the plaint the plaintiff has pleaded that it was an agreement of sale subsequently when the counter-claim was made the plaintiff has come forward with the theory that he has taken a sum of Rs.50,000/-as loan for construction of the house and towards that amount the agreement was executed but subsequently the amount of Rs.50,000/- was repaid and the mother of the defendants has given a declaration under Ex.A-4 about nature of the transaction and therefore the defendants cannot claim any right. A reading of the plaint shows that there was no elaboration of the nature of the agreement dated 24-01-1976 but it is very clear that it has become infructuous and was cancelled and the money was returned to the mother of the defendants during her life time. According to the plaint, she was allowed to continue in the premises as the defendants have neglected her. Therefore, the allegations in the plaint do not in any way show that a sale transaction subsisted and it was a plea of cancellation of the same. Assuming to be true that in fact the sale under Ex.D-1 it was a sale agreement, still the question is whether the said agreement was cancelled or whether it was subsisting till the date of death of the mother of the defendants. In fact the plaintiff relies upon Ex.A-4 declaration said to have been given by the mother of the defendants dated 06-05-1988 whereunder she reiterated the contention of the plaintiff that the amount of Rs.50,000/- was given as a loan and towards that the sale agreement was executed and the amount was repaid and the agreement was cancelled. To support Ex.A-4 declaration independent evidence of PW.2 who is an Advocate and who is known to the family was examined and he specifically spoke about the contents in Ex.A-4. Therefore, it is quite clear that the plaintiff had paid a sum of Rs.50,000/- received under the agreement or as a loan and the agreement was cancelled. Even otherwise the mother of the defendants is said to have died on 03-08-1991. From 1976 onwards there is nothing to show that the mother of the defendants has exercised rights of ownership about the property and claimed as owner. There is nothing on record to show that the balance of sale consideration was paid by her. Even though the defendants have taken a plea on this aspect, the lower court rightly found that there is no proof of payment of balance of sale consideration of Rs.27,000/- and odd. The above conduct of the mother of the defendants clearly supports the contention of the plaintiff that the agreement was cancelled. Further more, even after the alleged agreement, it is the plaintiff that is said to have made construction of the second floor by spending the money. Even as per the own showing of the defendants, it is the plaintiff that is collecting the rents for the first and second floors during the life time of their mother and after the death of their mother no suit was filed for specific performance of contract or for declaration of title. If really the property was sold away by the plaintiff and the mother of the defendants was the owner of the property, she would not have permitted the plaintiff to make further construction and collect the rents and managing the property. It is quite possible that the deceased being no other than the mother-in-law might have been allowed to stay in the ground floor and the defendants continued thereafter in possession. As such when once the agreement of sale relied on by the defendants is not enforceable having been cancelled or having been abandoned, the defendants cannot seek any relief of declaration of title to the property, though a vague attempt was made claiming protection under section 53-A of the Transfer of Property Act. It is quite clear that such a plea is not open since it is not the claim of the defendants that they were always ready and willing to perform the contract and they have failed to prove that the contract was subsisting and the plea of payment of balance of sale consideration is not proved. There is no mutation in the name of the defendants or their mother. If really the title has passed to the defendants or their mother for several years, the plaintiff would not have been allowed to manage the property. The learned counsel for the appellant has relied on the following decisions which have no application to the facts of the case:- 1. Kondaveti Francis Vs. M.Ludramma and others ([1]) 2. Vinod Kumar Arora Vs. Surjit Kaur ([2]) 3. Kashi Nath(dead) through Lrs. Vs. Jaganath([3]) 4. Shrimant Shamrao Suryavanshi and Anr. Vs. Pralhad Bhairoba Suryavanshi by Lrs. And Ors.([4]) 5. Piru Charan Pal and Anr Vs. Minor Sunilmoy Nemo and Anr.([5]) The claim of adverse possession also can have no application since the title of the plaintiff is admitted and enforcement of the contract is pleaded as counter-claim. The learned Senior Civil Judge has rightly found that the contention of the defendants is not tenable and their possession if any is permissive and there is evidently no material to show that the defendants asserted title by themselves to the knowledge of the real owner though a will is said to have been executed by the mother of the defendants have not filed the same. The defendants at no point of time gave a notice for execution of a registered sale deed. The suit was filed in 1994 and the mother of the defendants is said to have died in 1991 and there is nothing to show that the mother of the defendants enjoyed the property with a hostile title to the knowledge of the plaintiff. The defendants therefore also cannot derive any title by adverse possession. In fact the evidence of DWs.1 and 2 is also of not much value since they are not associated with Ex.D-1 and by the date of giving evidence in 2002 the first defendant was aged “39” and by 1976 his knowledge cannot be inferred as he is too young. DW.2 is also another brother and by the date of giving evidence, he is “48” when he was examined in 2002 and by 1976 his age is also very less. In view of the circumstances, the evidence of PW.2 and Ex.A-4 assumes importance and the claim of the plaintiff has to be accepted. The appellant therefore has no right in the property and the counter- claim is not maintainable and the lower court rightly rejected the claim of the appellant and decreed the suit. Sofar as the relief of mesne profits granted by the lower court challenged in the Cross Objections is concerned, the lower court seems to have taken into consideration the relationship between the parties and I do not find any reason to interfere with the above order of the lower court. Therefore the appeal as well as Cross Objections are liable to be dismissed. The points are answered accordingly. In the result, the Appeal as well as Cross Objections are dismissed. Each party do bear their own costs. _______________________ N.R.L.NAGESWARA RAO,J 30-04-2011 TSNR [1] 2000 (3) ALD 130 [2] AIR 1987 S.C. 2179 [3] (2003) 8 SCC 740 [4] (2002) 3 SCC 676 [5] AIR 1973 CAL 1