HON’BLE SRI JUSTICE C.V. RAMULU Second Appeal No.207 of 2010 JUDGMENT: This Second Appeal filed under Section 100 of C.P.C., is directed against the judgment and decree made in A.S. No. 73 of 2007, dated 10.10.2009 on the file of the learned V Additional District Judge, Nellore, wherein the judgment and decree made in O.S. No. 376 of 2004, dated 9.4.2007 on the file of the II Additional Senior Civil Judge, Nellore was confirmed. The appellant is the plaintiff. The respondents are the defendants. The case of the plaintiff is that the 1st defendant purchased an extent of 18¾ ankanams of site, part of Plot No.2 of lay out of Ac.6.43 cents of and in patta No. 43, New Survey No. 40/1, which is described as plaint ‘A’ Schedule property. She purchased the same from Sarvepalli Subbaramaiah under registered sale deed dated 1.10.1980. The said property is shown as ‘ABCD’ in the plaint plan. Thereafter, an extent of 14¼ ankanams was settled in favour of his wife, (the first defendant) by her husband, Sri Sk. Abdul Rahiman on 4.10.1990, which is also a part of plot No.2 in the same Survey No. 40/1, patta No. 43 under settlement deed dated 4.10.1990. This 14¼ ankanams site is abutting the property purchased by the 1st defendant on the North. Thus, for a total extent of 33 Ankanams (i.e., 18¾ ankanams purchased by D1 under Registered deed dt. 1.10.1980 plus 14¼ ankanams got by D1 from settlement deed executed by her husband dated 4.10.1990), the first defendant became the owner. The total 33 ankanams is referred as ‘BCEF’ in the plaint plan. The first defendant has been in possession and enjoyment of the same. Thereafter, the first defendant got constructed a two portioned building in ‘BCEF’ site, which is shown as P,Q,B1,B2 in the rough sketch leaving space on East, West and North. Subsequently, the first defendant sold away 19½ ankanams of site with 8 ankanams of building with a passage measuring 1¼ ankanams of site on the eastern side for ingress and egress from the said property as F, B ,B1, Q1, C1, E, F into first cross road, Jyothinagar under registered sale deed to Sannareddy Sudheer Kumar Reddy and Smt. S. Bhargavi and delivered possession of the said property to them on the said date. The portion of the building therein sold by the first defendant is shown as Q,Q1,C2,P in the rough sketch. After sale of the said property, the first defendant was in possession and enjoyment of the balance extent of 12¼ ankanams of site, which is shown as Q1,B1,C,C1,Q1 in the rough sketch with portion the building therein shown as Q1,B1,B2,C2. While so, the first defendant offered to sell 12 ankanams 67 square feet and plaintiff agreed to purchase the said extent of site, which is shown as Q1,B1,C and C1 in the rough sketch with the building therein as Q1,B1,B2,C2,Q1 for a total sum of Rs.1,00,000/-. For the above said purpose, the first defendant executed an agreement of sale in favour of the plaintiff on stamped paper on 25.4.1996 on receiving Rs.95,000/- as an advance towards the sale consideration from the plaintiff and agreed to execute a registered sale deed on payment of balance sale consideration of Rs. 5,000/- by the plaintiff. However, due to insufficiency of stamps, the plaintiff produced the said agreement of sale before the Revenue Divisional Officer, Nellore under Stamp Act and got it impounded by paying the stamp duty and penalty and the plaintiff took possession of the said property on 25.4.1996. Since then, she has been in possession and enjoyment of the same. Subsequently, the plaintiff purchased the site shown as F,B,B1,Q1,C1,E,F with building therein shown as Q,Q1,C2,P,Q in the rough sketch under registered sale deed dated 10.8.2000 for a sum of Rs.2,55,000/- from Sannareddy Sudheer Kumar Reddy and Sannareddy Bhargavi. Thus, plaintiff came in possession and enjoyment of the entire building shown as Q,B1,B2,P,Q. Recently, the plaintiff learnt that taking advantage of original sale deed dated 1.10.1980, the first defendant colluded with the second defendant and created promissory notes in favour of second defendant with ante date and made some part payment endorsements on 15.10.1996 and also deposited the title deed dated 1.10.1980 in her favour. However, due to non-payment of the above said debt, second defendant got filed the suit in O.S. No.138 of 1998 on the file of the learned Principal Senior Civil Judge, Nellore and obtained ex-parte preliminary decree on 14.12.1999 and also ex parte final decree on 14.12.1999. Thereafter, got filed E.P. No.18 of 2002 to bring the 18¾ ankanams site, shown in plaint A-schedule covered by the sale deed dated 1.10.1980 for sale, concealing the sale of an extent of 6½ ankanams of site, made by her in favour of Sannareddy Sudheer Kumar Reddy and S. Bhargav., The plaintiff is not a party to any of the said proceedings. Having come to know of the said events, plaintiff filed E.A. No.682 of 2002 in E.P. No.18 of 2002 in O.S. No.138 of 1998 in the Court of the learned Principal Senior Civil Judge’s Court, Nellore seeking declaration of plaintiff’s title and termination of E.P. proceedings. But, the said petition was dismissed for default. The said property was auctioned on 3.3.2004 by confirming the sale on 14.6.2004 and sale certificate was issued on 24.8.2004. So the third defendant is not entitled for the said property and he cannot seek delivery of possession of the same under the guise of sale certificate. The first defendant has been avoiding to perform her part of the agreement of sale, even though the plaintiff was always ready and willing to perform her part of the said contract. Hence, the suit is filed for above said pleas. The second defendant filed his written statement. The third defendant filed a memo adopting the written statement of the second defendant, as his own. In the written statement, the second defendant denied all the allegations mentioned in the plaint, except those which are specifically admitted therein. According to the second defendant, Sarvepalli Subbaramaih sold 18¾ ankanams of vacant site to the first defendant under registered sale deed dated 1.10.1980 and delivered possession. Abdul Rehaman who is the husband of the first defendant was the owner of 14¾ ankanams as he purchased the same under registered sale deed dated 26.8.1980. He gifted the said site to the first defendant under registered settlement deed dated 4.10.1990. Thus, the first defendant became absolute owner of a total extent of 33 ankanams. The first defendant has constructed a two-portioned building in the said site. Subsequently, first defendant sold 14¾ ankanams of site with a building and also 5¼ ankanams of site out of 18¾ ankanams to Sannapareddy Sudheer Kumar Reddy and Bhargavi under registered sale deed dated 22.4.1996. The first defendant retained the remaining extent of 12¼ ankanams out of the said 33 ankanams. It was further stated that the first defendant borrowed Rs.40,000/- on 25.11.1993 and Rs.40,000/- on 21.8.1995 from second defendant and executed promissory notes in her favour, agreeing to repay the same with interest at the rate of 24% per annum, compoundable at the end of every year. For the said purpose, the first defendant has deposited title deed dated 1.10.1980 in favour of the second defendant towards collateral security and created equitable mortgage over the site of 18¾ ankanams. As the first defendant failed to pay the amount, the second defendant filed a suit in O.S.No.138 of 1999 on the file of the learned Principal Senior Civil Judge’s Court, Nellore and obtained preliminary decree dated 14.12.1999 by granting redemption period till 14.6.2000 and due to non-compliance of the preliminary decree within the redemption period, final decree was passed on 9.10.2001. Hence, second defendant filed E.P.No.18 of 2002. During the pendency of the said E.P., the plaintiff filed petition in EA No.682 of 2002 under Section 47 of the Civil Procedure Code to declare her as absolute owner of E.P. schedule mentioned property and for termination of E.P. Proceedings. But the said petition was dismissed on 6.1.2004. The E.P. schedule mentioned property was sold in a public auction on 3.3.2004 and the third defendant became the highest successful bidder for a sum of Rs.3,75,000/-. Learned Principal Senior Civil Judge’s Court, Nellore on 14.6.2004, confirmed the said sale and sale certificate was also issued in favour of third defendant on 12.8.2004. The said E.P. is pending disposal for delivery of possession of the said property to the third defendant. He further submitted that to stall the E.P. Proceedings, the first defendant has created an agreement of sale, dated 25.4.1996 in favour of plaintiff and got filed EA No.682 of 2002 and also got filed the suit through the plaintiff. The agreement of sale pressed into service by the first defendant through the plaintiff was only created with a view to harass the defendants 2 and 3. The plaintiff is not entitled for the reliefs claimed herein, as she is intending to help the first defendant and also wants to acquire plaint B schedule property on account of the fact that she purchased part of ‘A’ schedule property under registered sale deed dated 18.8.2000. It is further pleaded that the cause of action pleaded by the plaintiff is false. The plaintiff has filed the suit even without giving any notice to the first defendant. The suit claim is time barred and the suit is not maintainable. On the basis of the above pleadings, the following issues were framed: 1. Whether the plaintiff is entitled for declaration as prayed for ? 2. Whether the defendants 1 and 3 are liable to execute and register a sale deed conveying the plaint ‘B’ schedule property in favour of the plaintiff as prayed for ? 3. To what relief ? On behalf of the plaintiff, P.Ws. 1 to 4 were examined and Exs. A1 to A22 were marked. On behalf of the defendants, D.W.1 was examined and no documentary evidence was adduced. Ex.X1 was also marked. After a detailed consideration of the entire evidence on record, the trial Court decreed the suit in respect of ‘A’ schedule property, but, however, dismissed the suit with regard to ‘B’ schedule property. Aggrieved thereby, the plaintiff carried the matter in appeal, in A.S. No. 73 of 2007 before the V Additional District Judge, Nellore. The lower appellate after perusing the judgment of the trial Court as well as the other material placed before it, came to The conclusion that the trial Court has not committed any error in dismissing the suit in respect of the ‘B’ schedule property, which was subject matter of the appeal and thus dismissed the appeal by confirming the judgment and decree of the trial Court. Aggrieved thereby, the present Second Appeal is filed. Learned counsel for the appellant has strenuously contended that the trial Court as well as the appellate Court have grossly erred in not taking into consideration Exs.A8 to A20, which are the property tax receipts, while deciding the issue relating to ‘B’ schedule property, which clearly show that the appellant was in possession and enjoyment of the same. In support of this contention, learned counsel relied upon the judgment rendered by the Supreme Court in Dilbagrai Punjabi Vs. Sharad Chandra & Others[1] and has drawn the attention of this Court to para-5 of the said judgment, which reads thus: “The court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. Such was the situation in the present case.” Likewise, the learned counsel also relied upon a reported judgment of the Supreme Court in Budhwanti Vs. Gulab Chand Prasad & Others[2], wherein it was held thus: “It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding.” Therefore, it cannot be said that neither there is any patently erroneous finding recorded by the trial Court nor by the lower appellate Court. Further, though the Court is under obligation to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, this Court is under obligation to set aside that finding. Further, the decisions relied upon by the learned counsel for the appellant have no application to the present case on hand. Even though, according to the learned counsel for the appellants, the only relevant evidence to show that the appellant was in possession and enjoyment of the ‘B’ schedule property was the evidence let in under Exs. A8 to A20, which are nothing but property tax receipts, but, the same cannot be said to be substantial evidence to prove the same and they were rightly ignored by both the Courts below. Therefore, I am of the opinion that no question of law, much less any substantial question of law arises for consideration in this Second Appeal. The Second Appeal is devoid of merits and is liable to be dismissed. It is accordingly dismissed. No costs. _______________ C.V. RAMULU,J DATE: 28th April, 2010 pnb [1] AIR 1988 SC 1858 [2] AIR 1987 SC 1984(1)