Ramalayam Street, Piduguralla, Guntur District v. Sumathi, Wo. V.Jagadish, aged about

Judgment

This is an appeal {itcd by the appellants, being aggrieved by the judgment and decree , dated 17.O4.2019 passed in O.S.No.2Ol of 2Ol4 by the learned XXVII Additional Chief Judge, City Civil

Court, Secunderabad (for short "the trial Court").

2. The appellant hercin is the plaintiff and the respondenL is the defendant before the trial Court. The parties herein are referred to as thcy rvcrc arrayr:d in the suit before the trial Court ibr thc sakc of convcnicncc and claritv.

3. The case of the plaintiff is the he is the absolute owner of the suit schedule property i.e. residential house consisting of ground floor + two uppcr floors of house bearing No.1-3-302 (old No.287) admeasuring 1245 sq. feet constructed on plot admeasuring 66.08 Sq.yards or 55.25 Sq.Meters situated at Comsary Bazar, Bou,enpally, Secunderabad, having purchased the same from the defendant through a registered sale deed bearing document No. 1469 of 2013 dated 16.O9.2013. It is his case that originally the defendant being the absolute owner and possessor of the suit schedule property offered to sell the same to \ ) ETD,J CCCA No.359 2019 the plaintiff for a consideration of Rs. 14,12,O00 I - and that the plaintiff agre<:d to purchase the same and thus paicl an amount o[ Rs. 14,07,000/- out of the total sale consideration of Rs.14,12,OO0/- and that the defendant has executcd a registered agreement of sale -cum - GPA vide document No.1487 of 2010, dated 22.07 .2010 in favour of the plaintiff having re<:eived the said advance amolrnt and a-lso delivered the constructive possession of the suit schedule property and that the balance sale consideration of Rs.5,0O0/-.,vas also paid by the plaintiff and. that the defendant has also acknowledged thc same by issuing the recr:ipt. lt is his case that whiit: executing the agreement of sale - cum - GPA the defendant has agreed to vacate the suit schedule property and gave it in writing and aiso that he would ge t th(-' tenants occupying the other portions in the suit schedulc property to vacate the pre:nises within a period of six months. It is his further case that the defenriant has undertaken to pay a fixed amount of Rs.2O,OOO /- p", month towards the renl. of suit schedule property until the same is vacated. Thus, the plaintiff is entitled for rent @) Rs.2O,OOO/- per month frcm 22.A1.2O I I and that the defendant did not pay the agreed rent per month. The plaintiff has further averred that exercising his authority granted by the defendant in his favour under registered agreenlent of Saie - curn - General Power of Attorney, he got executcd thr-' re gistered 3 ETD,J CCCA No.359 2019 sale deed bearing document No.1469 of 2013 dated 16.09.2013 in favour of himself, thereby transferring the title of the suit schedule property in his favour and has also informed the defendant about the same. It is his case that on 18.O9.2013 he received a legal notice from the defendant contending that the plaintiff has not paid any sale consideration under the registered agreeme nt of Sale-cum-GPA, thereafter, the plaintiff issued a reply notice denying the averments in the said notice issued by the defendant and asked the delendant to vacate the suit schedule property u,ithin a period of one month from the date of receipt of the reply notice. llut that the defendant has not chosen to vacate the suit schedule property. Thus, the defendant is liable to pay a sum of Rs.7,6O,O00/- to the plaintiff towards unpaid rents from

22.OI.2OI\ to 21.03.2014 and also is liable to pay the mesne profits @ Rs.20,O00/- from the date of suit till vacating the suit premises. Thus, he filed a suit with the said prayer.

4. The de lendant has filed his written statement denying the averments in the plaint and contended that no consideration has been passed to the defendant and that she has not issued any receipt in favour of plaintiff. It is further contended that the defendant is not liable to pay any mesne profits @ Rs.20,O00/- \ ETD,J CCCA No.359 2019 and that the plaintiff is not entitled to take posses:;ion of suit schedule prol)erty and recover any rents from the deferLdants.

5. Based on the above pleadings, the trial Court llas framed the following rssues for trial: "1) Whether the plaintiff is cntitled for cleliuery of possession of suit schedule property? 2l Whether the plaintiff is entitled for recovery of an arlount of Rs.7,6O,000/ - as arrears of renti' 3) W hether the plaintiff is entitled for futrLre mesne prrhts as prayed for? To what relieP" 4l

6. At the time of trial, plaintift got examined as PW I and Exs.Al to A10 were marked. On behalf of the defendant, DW1 was examined l)ut no documents were marked-

7. Based on the evidence on record, the trial Court has dismissed the :iuit. Aggrieved by the said judgmenr and decree, tLre present appeal is fiied.

8. Heard the submissions of both the counsel

9. The learned appellant counsel has submitted that the plaintiff is the absolute owner of the suit schedule property and that the trial (lourt has failed to appreciate the sarne. His contention is that by virtue of agreement of sale-cum-general power of attorne]', dated 22.O7.201O he has absolute power to sell ,/ -/ 5 ETD,J CCCA No.359 2019 the property and thus, he has executed a sale deed in his own favour and thus, he became the absolute owner of the suit schedule property. He further argued that the trial Court failed to appreciate the evidence on record with respect to the agreement of sale and also the sale deed executed in favour of the plaintiff. He further contended that the trial Court ought to have decreed the suit by observing the fact that the defendant failed to vacate the suit premises in spite of entering into an agreement with the plaintiff. He further argued that the trial Court failed to appreciate the evidence in a proper perspective and thus, failed to decree his suit. He therefore, prayed to set aside the judgment and decree of trial Court by allowing this appeal. lO. The learned respondent, on the other hand, has argued that the suit hled by the plaintiff is u,ithout any basis and that without there being any title in his favour, he is claiming to be the owner of the suit schedule premises and that he contended that he has denied the title of the plaintiff in his written statement and it was the duty o[ the plaintiff to lile a suit for declaration of title but he failed to do so. He further argued that in the absence of any title in his favour the plaintiff cannot claim to be the owner and cannot claim any rents or mesne profits from the defendants, therefore he 5 ETD.I CCCA No.359 2019 has no right to get the suit premises to be vacated. Hence, he prayed to disrniss t1le appeal. I1. Based c,n the above rival submissions, this Court frames the following points for consideration: 1) Whether the plaintiff is entitled for <lelivery of possession and for recovery of arrcars of rent? 2l Whether the plaintiff is entitled for futtrre mesne profits? 3) Wl-rether the judgment and decrcc ol' the trial Ccurrt is sustainable in law and under th,: facts? 4) To rvhat relief.) 12 POINT NOs.1 AND 2: a) To claim delivery of possession and recoven' of irrrears of rent, the plaintrff has to prove in the lirst instance his erLtitlement to recover the same. The plaietiff has fileC Exs.A I to AlO. A perusal of Ex.Al reveals that it is a sale deed bearing clocument No. 1469 of 2Ol3 dated 16.03.2O13 wherein the vr:ndc,r is one V-sumathi represented by her GPA holder P.R:rmanadham, executed in favr>ur of Sri P.Ramanadham. The content-s of thc said sale deed at clause No.E shows that the schedule properq was agreed to b,: sold for a consideration of Rs. 14,12,OOO/- and that an amount of Rs. 14,07,OO0/- was received and that the ,/ ./ ETD,] CCCA No.359 2019 vendor has executed a registered AGPA with possession in favour of the vendee vide document No. 1 180 of 2010 and at clause G it is mentioned that pursuant to the said registered AGPA, the vendee acting for and on behalf of the vendor is executing the sale deed favouring himself conveying the schedule property. A perusal of the signatures reveals that one P. Ramanadham signed for the vendor as well as vendee. Ex.A2 is the certified copy of registered agreement of sale-cum-GPA with possession bearing document No.l185 of 2010 in favor of Sri P.Ramanatham. A perusal of the schedule annexed to the sale deed also shows the vendor's name as V.Sumathi executed through its GPA holder Mr.P.Ramanadham. The contents of the said document reveal that in pursuance of the said agreement, the vendee/attorney holder has paid Rs.14,O7O0O/- as aclvance amount out of the total sale consi4eration of Rs. 14,12,OOO /- aod that the vendor has accepted the same and it also bears both the signatures of Sumathi and Ramanadham. One of the clause in the said agreement further shows that the attorney holder is empowered to execute on behalf of the vendor any agreement of sale, sale deed, receipts of payment to the prospecdve purchasers. Ex.A3 is an MOU. The contents show that the first party i.e. Sumathi agreed to vacate the suit schedule property and get the tenants vacated within a period of six months and deliver the possession thereon )'a 8 ETD,] CCCA No.l59 2019 to the seconrl party ie. P.Ramanadham and it is also agreed to pay an amount of Rs.20,0OO/- towards rent of suit schedule property until the sanre is vacated, payable by 10th of successive month. b) In the :ross examination of PWI it is elicited th;at he knows the defendar t through her husband and he admittr:d that. one Uma Maheshwar Rao came to him on 22.07.2O1O i.e . on the date of registration of AGPA and that he has taken the original documents from the defendant. It is elicited from him that he has not obtaincd cash receipt for Rs.8,47,00O/ - from r hc dcfendant. He further admitted that as per Ex.A2/the registered AGPA, the possession was delivered. A perusal of Ex.A2 rcveals that constructive possession is delivered. He further adnritt:d that the present suit is filed for delivery of posscssion and ftrr rcnts. If al all the conten ts of Ex.A2 are true, then the plaintiff .lust have been alreadv t,ut in possession, then the question of filing a suit for delivery of possession does not arise. He admitted that from the date of Ez.A2 he is not in possession of the suit schedule proper[r and ire further admitted that he filed an application before the Ler4al Services Authority at City Civil tlourt for settlement of this case and that before DLSA he mentioned that he purchascd the property for Rs. 14,O7,OO0/-. Hr: has further stated that hc has not issued any legal notice to the defendant for ,/ ,/ 9 €TD,I CCCA No.3s9 2019 payment of rent or for eviction till the year 2014. He further admitted that Ex.Al sale deed was obtained by him in his name pursuant to Ex.A2 and also in Ex.Al he himself is the vendor and also vendee and that he has not given any prior notice to the defendant while executing Ex.A1. c) It is elicited from DWl in her cross examination that her husband has taken her to Dilsukhnagar around 8 to 9 year ago and that she met the plaintiff for the first time and that her husband obtained signatures on a paper on which a revenue stamp was affixed and she does not know the contents of the document and DWl has admitted her signatures on Exs.A2, A3 and A10. d) The contention of the appellant counsel is that when the defendant has admitted her signature on Exs.A2, A3 and AlO, his contention is proved that the GPA has been executed by the defendant and also that a Memorandum of Understanding has been entered between the two parties and he further contends that the cash receipt under Ex.A1O stands proved. Though DWI has admitted her signature in Ex.A2, i.e. execution of AGPA in favour of the plaintiff, the contents therein reveal that he is empowered to execute on behalf of the vendor, any agreement of sale, sale deed, receipts of payment to the prospective purchasers \ \ 10 CCCA No.359 2019 but here the plaintiff has produced Ex.Al saying that he has the capacity to transfer the property in to his own name because he holds the GPA executed by the defendant. The sale by a person in his own favorrr is unknown to law. e) A perur;al of Ex.Al reveals the fact that the pla;ntiff herein has executed a sale deed in his own favour by actinll as a GPA holder of the rlefendant. Thus, he says that by virtue of Ex.A1 he has become tlle owner of the property, thus he claims delivery of possessior-r. 0 A p€rlrSe.l of Ex.A2 reveals that the constructjve 1>ossession is delivered to the plaintiff. If that is the case there wili not be any necessity for thc plaintiff to claim delivery of possession again. A perusal of the oral evidence reveals that the defendant is a house wife and she is not aware of the dealings with regarci to any real estate or any' bu siness transaction. Thus, she has time and again stated in her evidence that her husband knows about the transactions but she does not know anything. It is further elicited from her that her husband has taken her to a place at Dilsukhnagar and that her signatures were obtained on ,a stamp paper, therefore, mere admission of the defendant on the said documents do not entitle the plaintiff to prove the genuiniry of Ex.Al. When the genuineness of Ex.A1 is under a clotrd, this ,/ ./ -/ 11 ETD,.I CCCA No.359 2019 Court cannot hold that the plaintiff is entitled to delivery of possession from the defendant and further it cannot be held that the plaintiff can recover arrears of rent from the defendant. g) The learned appellant counsel has relied upon a judgment of the Hontrle Supreme Court in Sho.keel Ahmed v. Sged Akhlaq llussainl, wherein it was held that the unregistered agreement to sell by itself is a document which is not enforceable in law. However, its only admissibility would be for collateral purposes and not for claiming any rights thereunder of ownership in a Court of law. Though the appellant counsel has relied upon this dccision, it does not aid the case of the appeliant in any way. ln the absence of any genuine registered document in his favour, he cannot claim to be the owner of the property, nor he can claim an1, possession of the property. h) The learned respondent counsel relied upon a case in Anathulq. Sudhakar us. P.Buchi ReddgP, wherein it was held th:rt if two pcrsons claimed to be in possession of the vacant site, one who is able to establish title thereto will be considered to be in ^ possession, as against the person who is not able to establish ) titte. ln the present case, the plaintiff failed to establish his titte, J '2023 rNSC 1016 ' MaNu/sc/z:zslzoos 12 ETO,J CCCA No.359 2019 in fact he failed to claim declaration of title while the defendant is in possession of the suit schedule property. Therefore, it can be safely held that the plaintiff does not succeed to clain: recovery of possession irr the absence of any title while the defendant is in possession of the suit schedule property. i) The lea.-ned respondent counsel further relied upon a case in Daggubati Rangano:gakulu o. Polinl Venko:ta Subba:lah and others3, u,herein it was held that a suit for mere possession can be succer;sfully pursued, if only there does rlot exist any dispute as to he title, or prior possession recogniz:d oy law. If there is anJi cloud on thc title, vis-d-vis the property sought to be recovered, it bccomcs difficult for the court to grant relief, and the controversy rvould drift into the one of declaration of title. Any failure, in this regard, is prone to have its own effect, upon the permissibility ol granting the relief of mere recovery of possession. The said 1s1i6 5,1uarely applies to the present case, wherein there is a cloud on titlo of the plaintiff, he failed to claim any de:laration of title and in the absence of any title he cannot seek recovery of possession. 3 MANU /AP/O551/2OA7 1l ETO,J CCCA No.359 2019 j) The defendant has denied the averments of the plaint in clear terms in her written statement and further has stated that the defendant is the owner of the suit schedule property and has denied to have executed all the documents and receipts as alleged in the plaint. When such a denial was there in the written statement, it was the duty of the plaintiff to amend his suit for declaration of titte, which is not done. Instead of fiting a suit for declaration o[ title, he hled a suit for recovery of possession. Further his own document goes against him, the genuinity of trx.A I is undcr question, if at all possession was delivered under Ex.A2 the question of seeking for delivery ol possession does not arisc. Thus, it is held that the plaintiff could not prove his case. Thercfore, lrc is not cntitled to seek delivery of possession, arrears of rents or future mcsne profits from the defendant. Point Nos. I \ t and 2 are ansu.ercd accordingly.

13. POINT NO.3: ln view of the reasoncd findings arrivd at point Nos. 1 and 2, it is held that the judgment and decree passed by the trial Court are found to be wetl reasoned and hence, they are held to be sustainable in taw and under the facts and circumstances of I he casc- \ t I I I i 14 ETD,J CCCA No.l59 2019 t4. POrNT !IO.4: In the result, the appeal is dismissed upholding the judgment and decree, dated 17.O4.2O19 passed in ().S.No.2O1 of 2OL4 by the learned XXVII Additional Chief Judge, City Civil Court, Secunclerabad. No costs. Miscellaneous Applications, if any, pendir-rg in this appeal shall stand ckrscd. S I)/- ,q.V.S.PRASAD _--4 To, //TRUE COPY// :SE(;TION OFFICER

1. The XXVII Additional Chief Judge, City Civil Court, at Secunderabad.(with records, if any) I

2. One CC to Sri N. Bhasker Rao, Advocate IOPUC] 3- One CC to Sri Venkatesh Deshpande, Advocate [OPUC] 4. Two CD Copies VH/PSI. w- uti:lJ f.r.lr rE,r' I rt\rt I \r\r\rt\ r DATED: 0210ti,12025 1t\h S o I IU i'J ? 10t1 1s6 \*fur,ggj (.) JUDGMENT+IIECREE CCCA.No.359 of 2019 DISMISSING THE APPEAL WITHOUT COSTS LD IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY, THE SECOND DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE TIRUMALA DEVI EADA clTY CIVIL COURT APPEAL NO: 359 OF 2019 Between: P. Ramanadham, S/o. P. Papaiah, aged about 52 years, Occ.Business, R/o. H.No. 3-85, Ramalayam Street, Piduguralla, Guntur District. ...APPELLANT/PLAINTIFF AND Smt. V. Sumathi, Wo. V.Jagadish, aged about 47 years, Occ.Housewife, R/o. H.No. 1-3-302, Comsary Bazar, Bowenpally, Secunderabad. ...RESPONDENTS Appeal filed under section 96 of CPC against the Judgment and Decree daled 17104120 19 passed in OS No. 201 of 2014 on the file of XXVII Additional Chief Judge, City Civil Court, at Secunderabad. These appeals coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Court and the material papers in the case and upon hearing the arguments of Sri N. Bhasker Rao, Advocate for the Appellant and of Sri Venkatesh Deshpande, Advocate for the Respondent. /t This Court doth Ord,:r and Decree as follows:

1. That the appr;al be and hereby is dismissed upholding the judgment and decree, daled 17.04.2019 passed in O.S.No. 201 of 2014 by the learned XXVII Additional Chief Judge, City Civil Court, Secunderabacl; and

2. That there sha I be no order as to costs in this appeal. //TRUE COPY// \ \ SECTION OFFICER To, 1 . The XXVll Addilional Chief Judge, City Civil Court, at Secunderabad 2. Two CD Copies VH/PS], TP HIGH COUR'I- DATED: 0210512025 DECREE CCCA.No.359 of 2019 DISMISSING']'HE APPEAL WITHOUT COSTS