THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CCCA MP NOS.153 OF 2009 & 740 OF 2010 AND C.C.C.A.369 OF 2003 JUDGMENT: The first defendant in O.S.No.268 of 1999 on the file of the Court of XIV Additional Chief Judge (F.T.C) City Civil Court, Hyderabad is the appellant herein. The suit was filed for a declaration that the plaintiffs are owners of the suit schedule property and for recovery of the possession of the property and mesne profits. The brief facts for disposal of this appeal are as follows:- The suit schedule property belongs to defendant Nos.3 to 6 and it was given on a development agreement to the second defendant with 55% share to the developer and 45% share to the owners of the property. In pursuance of the development agreement, some flats were constructed and some finished flats were sold by defendant No.2 to defendant Nos.8 and 9 under two registered sale deeds. From defendant Nos.8 and 9 the plaintiffs claim to have purchased the flats (Flat Nos.13 and 414) under two registered sale deeds and claims to have acquired rights in the property. It is the case of the plaintiffs that the development agreement authorizes the second defendant to alienate the property and also there is an accompanying General Power of Attorney (GPA) which was authorizing the second defendant to sell the property. According to the case of the plaintiffs, relying the representation of the second defendant and also being conscious of the terms of the development agreement defendant Nos.8 and 9 have purchased the property under Exs.A-3 and A-4 sale deeds on 31-10-1995 and the plaintiffs in turn purchased the property under Exs.A-1 and A-2 on 30-12-1996 and 28-12- 1996 respectively. It was also their further plea that the defendant Nos.3 to 6 along with first defendant have colluded and brought into existence some documents to defeat their rights and forcibly took possession of the property and therefore the suit was filed for declaration of title and for recovery of the possession. There are several allegations concerning the passing of the consideration and the rights of the defendant Nos.3 to 6 which are not very much germane for a decision on this appeal at this stage. The first defendant filed a written statement and defendant Nos.3 to 6 also filed written statement and the defendant Nos.2, 7 to 9 remained ex parte. As can be seen from the gist of the contentions raised by the first defendant and defendant Nos.3 to 6, the second defendant has no power to alienate the property in favour of defendant Nos.8 and 9 who are no other than the binamidars of the second defendant being employees of the second defendant. Further, it is pleaded that the second defendant has relinquished rights in the partnership agreement in favour of the 7th defendant and consequently the 7th defendant has become the owner of the 55% development share and the defendant No.7 has sold the property to the first defendant along with defendant Nos.3 to 6 and therefore they have become owners of the property and the sale in favour of the plaintiffs is not valid. There is also a contention raised by the defendants about the capacity of defendant Nos.8 and 9 to purchase the property and also the passing of the title to the property. There are other allegations about the real stage of the construction of the building and also whether the alienation can be effected by second defendant without discharging the other obligations under the development agreement. On the basis of the above pleadings the following issues have been framed for trial:- 1. Whether the plaintiffs are entitled for declaration of their title to the plaint schedule properties and for consequential relief of delivery of possession? 2. Whether the plaintiffs are entitled for future damages @ Rs.5,000/- per month for each flat? 3. Whether the two registered sale deeds dated 30-12-1996 and 28-12-1996 in favour of the plaintiffs are binding on defendants? 4. Whether the suit is bad for misjoinder of cause of action? 5. Whether the G.P.A holder of 2nd plaintiff has no right to institute the suit in the present form? 6. Whether this court has no territorial jurisdiction to try the suit? 7. To what relief? On behalf of the plaintiffs, PWs.1 and 2 were examined and marked Exs.A-1 to A-16. On behalf of the defendants Dws.1 and 2 were examined and marked Exs.B-1 to B-8. After considering the evidence on record, the learned XIV Additional Chief Judge, City Civil Court, Hyderabad decreed the suit of the plaintiffs and aggrieved by the said judgment the present appeal is filed. Pending appeal CCCAMP.No.153 of 2009 was filed by the appellant to receive the additional evidence of certain documents mentioned in the list for proper appreciation of the dispute between the parties and CCCAMP No.740 of 2010 was also filed by the plaintiffs in the suit to receive certain documents which are said to be essential for determination of the issue between the parties. The points that arise for consideration are:- 1. Whether the plaintiffs have got title to the suit schedule property? 2. Whether the additional evidence sought to be produced by the appellant and respondents/plaintiffs is relevant and if so it can be received in evidence? 3. Whether the judgment and decree passed by the learned XIV Chief Judge is legal and sustainable? Heard Sri E.Manohar, the learned senior counsel for Appellant and Ms.Manjari S.Ganu the learned counsel for the respondents. POINTS:- There is no dispute about the fact that the property originally belongs to defendant Nos.3 to 6 and the second defendant is the developer who has accepted to take 55% of the property which comes to about ten (10) flats and the owner of the property get 45% share. The case of the plaintiffs is based on the allegations that second defendant has sold the property to defendant Nos.8 and 9 for valuable consideration and from the defendant Nos.8 and 9 they have purchased the property. This being a suit for declaration of title and for recovery of possession of the property, it is essential for the plaintiffs to prove as to how the title was validly derived from the vendor of the property and also to consider as to whether the vendor has got right to convey the title to the plaintiffs, in view of the agreement between the parties. It is the specific case of the plaintiffs that the development agreement and the G.P.A said to have given by the owner to the second defendant specially authorises the second defendant to execute the sale deeds and consequently the valid sale has been effected in favour of defendant Nos.8 and 9 and therefore they derived title to the property. It is the contention of the counsel for the appellant that the whole approach of the lower court in determining the issue is not proper and instead of determining as to whether a title has been validly conveyed by the second defendant to defendant Nos.8 and 9, the entire reasoning given by the lower court goes to show about the capacity of the purchase by the first defendant and payment of the consideration under different sale deeds and also come to a conclusion that there is a doubt about the mode of payment said to have been effected by the first defendant to defendant Nos.3 to 6. According to him, it is first to be established by the plaintiffs that there was a valid agreement to convey the property by the builder. It is contended by the learned counsel for the appellant that the plaintiffs have failed to file the development agreement or G.P.A which is said to be authorising the second defendant to execute the sale deeds. In fact the learned Chief Judge has drawn a presumption about the existence of G.P.A on the ground that it was a registered G.P.A and it must be in the custody of the developer, as it was not produced it shall be taken as a true document. In fact when the contention was raised by the appellant that there is no valid right for the second defendant to execute a sale deed to convey the title to defendant Nos.8 and 9, it is for the plaintiffs to have filed the development agreement and also the concerned authorisation to execute the sale deeds. But unfortunately the plaintiffs have not filed those documents before the lower court which are very much essential for determination of the real issue between the parties. In the absence of such documents and in fact when defendant Nos. 3 to 6 who are owners of the property are also disputing the right of the second defendant to alienate the property, then it is much more essential for the plaintiffs to have produced those documents and to have proved the existence of G.P.A which is a registered document. It is very easy to understand that a registered G.P.A could be summoned from the Registrar’s Office, if at all there is any such document authorising the alienation by the party. It is also well settled when a written document is said to be existing, the party relying upon it has to produce the document and there is no scope for raising a presumption. The registration of a document may raise a presumption of existence of a document but the contents thereof cannot be inferred without looking into the document. Therefore, as matter stands, the essential fact that the second defendant has got authority to alienate the property in favour of defendant Nos.8 and 9 is not established and a contemporaneous G.P.A with regard to development agreement is also not filed before the court. In order to substantiate the contentions raised by the appellant, additional evidence is sought to be filed before the court showing that the development agreement between the parties does not authorise execution of a sale deed by the second defendant though it may authorise entering into a transaction for sale under an agreement and receipt of consideration or create the charge over the property. According to the counsel for the appellant, the restriction on the second defendant for such a right is only to see that the owner of the property is not put to detriment because according to him if the builder sells 55% of his share and leaves 45% of the property unfinished, then the looser will be owner of the property and such an agreement and term is valid and enforceable and any violation of such clause in the agreement cannot create any rights in favour of the purchasers. The purchasers should have also been aware of the terms in the development agreement. In fact if these circumstances are to be taken into consideration, these are legal aspects coupled with facts which have to be established by the party. It is also to be noted whether such term is waived by the owners of the property or whether they have ratified the actions of the second defendant can only be inferred from the evidence of the parties and it is quite clear that both parties have not gone into trial on these aspects to establish their respective claims in the property. Therefore, the whole approach adopted by the learned Chief Judge in deciding the matter ignores the basic contractual obligation entered into between the parties and the judgment passed by the learned Chief Judge cannot be sustained and it is a case where the evidence sought to be received as an additional evidence on behalf of the appellant is very much essential and necessary to resolve the real disputes between the parties. These documents in fact should have been filed by the plaintiffs who have come to the court to establish the title and no blame can be made on the defendants for not filing the documents before the court as the burden of proof was squarely on the plaintiffs. Therefore, in view of the above circumstances there can be no latches attributable to the appellant in not filing the document before the court. The counsel for the respondents wants to file the documents to prove the legality of the transaction between the plaintiffs and the vendors and therefore it is felt that both parties should be given a fresh opportunity to adduce evidence on all aspects. Since the matter is being remanded to the lower court, all these documents can be filed before the lower court by recalling the witnesses and marking them. If the parties are interested in adducing any further evidence or filing documents, they are also at liberty to produce such evidence and documents. Accordingly, the judgment and decree of the lower court is set aside and the CCCA.M.P.Nos.153 of 2009 and 740 of 2010 are closed with a direction that the documents can be filed before the lower court and it shall be received by the lower court subject to stamp duty and penalty if any. The documents which are filed before this court shall be transmitted to the lower court. The points are accordingly answered. In the result, the Appeal Suit is allowed and the judgment and decree dated 16-09-2003 in O.S.No.268 of 1999 on the file of the court of XIV Additional Chief Judge, City Civil Court, Hyderabad is set aside and the matter is remanded to the lower court to dispose of the case without being influenced by the observations made above and the lower court is directed to dispose of the suit within a period of six (6) months from the date of receipt of a copy of this judgment. No order as to costs. _______________________ N.R.L.NAGESWARA RAO,J 15-02-2011 TSNR