Gottam Sharadha vs Inugula Srilatha

This Appeal Suit is filed under Section 96 of the Code of Civil Procedure, preferred by the Appellant-Claim Petitioner-Third party against the Order and Decree dated 09.09.2019 passed in E.A.No.3 of 2011 in E.P.No.130 of 2006 in O.S.No.41 of 2005 (hereinafter referred as ‘impugned Order’) by the learned IV Additional District & Sessions Judge (FTC), Warangal.

For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Court below.

The facts of the case, in brief, are as follows:

Originally, one Smt.Inugala Srilatha-plaintiff filed a suit in O.S.No.41 of 2005 against Thottiparambul Devasia Tomy and Vookanti Mahender Reddy-defendants before the learned V Additional District & Sessions Judge, Warangal seeking specific performance of agreement of sale dated 01.07.2005. The said suit was decreed directing plaintiff to deposit the balance amount within one month and defendant No.1 was directed to execute regular sale deed within two months from the date of deposit of the balance amount by the plaintiff and that if defendant No.1 failed to execute regular registered sale deed as directed, plaintiff is at liberty to take necessary steps through process of Court and the suit against defendant No.2 was dismissed. For execution of decree in O.S.No.41 of 2005, the plaintiff filed E.P.No.130 of 2006. The claim petitioner filed E.A.No.3 of 2011 in E.P.No.130 of 2006 in O.S.No.41 of 2005 agitating her interest over the schedule property.

To prove her case, the claim petitioner has got examined PW1 to PW3 and got marked Exs.A1 to A10. On behalf of the respondent, plaintiff in O.S.No.41 of 2005 was examined as RW1 and got marked Exs.B1 to B13 and a document under Ex.C1 was also marked by the learned trial Court.

The learned trial Court after conducting detailed enquiry, considering the oral and documentary evidence available on record and after considering the submissions of both sides, dismissed E.A.No.3 of 2011 in E.P.No.130 of 2006 in O.S.No.41 of 2005 vide its Orders dated 09.09.2019 filed by the claim petitioner. Aggrieved by the same, the claim petitioner-appellant has filed this present Appeal Suit.

Heard both sides. Perused the record.

Now the point for consideration is:

Whether the impugned Order and Decree dated 09.09.2019 passed in E.A.No.3 of 2011 in E.P.No.130 of 2006 in O.S.No.41 of 2005 by the learned IV Additional District & Sessions Judge (FTC), Warangal, is liable to be set aside?

POINT:

It is the case of the claim petitioner is that she is an absolute owner and possessor of the property to an extent of 1350 Sq.yds forming part of Sy.No.550 situated at Waddepally Village, Hanamkonda Town and Mandal, Warangal District. She purchased 500 Sq.yds out of 1350 Sq.yds from Junnuthula Malla Reddy under Registered Sale deed bearing document No.5151 of 2004 dated 28.06.2004, to an extent of 411 Sq.yds under registered sale deed bearing document No.1715 of 2006 dated 01.03.2006 and also purchased 439 Sq.yds from the original pattedar under an oral agreement of sale and paid entire sale consideration and the registration for the said 439 Sq.yds is under progress. She constructed a house bearing No.1-1-114/D after obtaining permission from concerned authorities and got regularized some other property and became owner of entire 1350 Sq.yds and the said property bounded by: East and South: 60 feet wide road, West: Land of Jannuthula Malla Reddy and North: Land of Y.Sunitha and she has been enjoying the same. While so, she came to know through her tenant on 13.09.2010 at about 04:15 PM., persons belonging to decree holder, taken photographs of the above premises. On enquiry, she came to know about the filing of suit in O.S.No.41 of 2005 and about decree passed therein and filing of E.P.No.130 of 2006 against Judgment debtor Nos.1 and 2 for getting execution of the registered sale deed from the said persons. It is her case that her entire property is covered with a compound wall and a gate. Decree Holder is trying to get the sale deed to her property in collusion with Judgment debtor Nos.1 and 2. In fact, schedule property in the suit is totally different from her property. Judgment debtor Nos.1 and 2 and decree holder are no way concerned to her property and they are strangers and third parties to her property. Decree holder obtained the decree to an extent of 680 Sq.yds forming part of Sy.No.542/A and B and 549/A and B of Waddepally, Hanamkonda, with the boundaries of East and South: 60 feet wide road, West: vendor’s land and North: others land. She also obtained bank loan over the house bearing No.1-1-114/D from State Bank of Hyderabad, Subedari Branch, Hanamkonda in the year 2007 and she has been in peaceful possession and enjoyment of the entire land. Thereby, she sought for dismissal of EP by allowing the claim petition.

Judgment debtor Nos.1 and 2 remained exparte before the trial Court.

Decree holder filed counter contending that the boundaries will prevail over the survey numbers and extents and the boundaries shown in agreement of sale and plaint and the EP schedule are true and correct and the same are in existence on the spot. Judgment debtor No.2 having failed in earlier proceedings started second round of litigation. In fact, Judgment debtor No.2 issued paper notification on 10.10.2007 in Eenadu Telugu Daily with an intention to defeat his right and also got filed E.A.No.2 of 2008 on the false and frivolous grounds and thereafter, he got issued reply on 13.10.2007 to the paper publication issued by Judgment debtor No.2. Thereafter, petitioner stepped into shoes of Judgment debtor No.2 and filed claim petition. Decree holder ascertained ownership of her vendor and after verification of documents, entered into Agreement of Sale and paid part of the sale consideration and she is a bonafide purchaser. Petitioner with an intention to defeat her right filed the claim petition and claim petitioner is not entitled for the relief and prayed to dismiss claim petition.

It is the contention of the learned counsel for the appellant that the claim putforth by the claim petitioner is bonafide one and that the claim petition filed in EP by third party is to be tried as a suit by following the mandatory provisions of Order XIV Rule 1 and 2 of Code of Civil Procedure (for short ‘CPC’) and duly considering the pleadings and evidence as per the mandatory requirement of Order XX of CPC and that in the absence of identity, availability of EP schedule property at the ground level, without identifying the same with the boundaries mentioned in the schedule property by taking steps to conduct survey and identification with the specified boundaries under the decree and that the decree holder cannot be allowed to proceed against the property of the appellant and sought for allowing this Appeal suit by setting aside the impugned order of the trial Court.

Per contra, the learned counsel for the respondent contended that decree holder ascertained ownership of her vendor and after verification of documents, entered into Agreement of Sale and paid part of the sale consideration and she is a bonafide purchaser and that petitioner is trying to defeat her right and claim petitioner is not entitled for the relief and prayed to dismiss claim petition.

The claim petitioner was examined as PW1 she deposed that everything was under the knowledge of her husband and she got examined her husband as PW2 who reiterated the contents of the claim application and got marked Exs.A1 to A10. Ex.A1-Pahani for the year 2008-2009 it pertains to the land in Sy.No.550 of Waddepally Village and an extent of Ac.2-17 guntas was recorded on the name of Junuthula Malla Reddy as pattedar and the possession column is kept blank. The case of the claim petitioner is that she purchased 500 Sq.yds of open land in the year 2004 and 411 Sq.yds of open land in the year 2006 and in the year 2005 as General Power of Attorney was executed in favour of Judgment debtor No.2 for 1000 Sq.yds of an open land, which shows that by the year 2004 itself, the land in Sy.No.550, which originally belongs to Junutula Malla Reddy, was converted into house plots and sold to different persons, hence the land in Sy.No.550 cannot be considered as an agricultural land in the year 2008, therefore, Ex.A1 which is issued to the agricultural land, is of no use to the claim petitioner to prove her case and the same is only helpful to ascertain the total extent of the land owned by Janutula Malla Reddy from whom claim petitioner is claiming as purchaser of the part of the land in Sy.No.550.

As seen from the entire record, admittedly, claim petitioner has not filed the sale deed pertains to her purchase of 500 Sq.yds in Sy.No.550 and there is no cogent reason assigned for not filing the same before the trial Court or before this Court as an additional evidence document. In fact, said document can furnish information with regards to ownership, extent purchased and its boundaries to identify the same on ground and to ascertain the names of boundary owners or neighboring land owners. A perusal of Ex.A2-registered sale deed document No.1715 of 2006 dated 01.03.2006 executed by Janutula Malla Reddy in favour of claim petitioner in respect of 411 Sq.yds in Sy.No.550 and the boundaries mentioned in Ex.A2 are East and South: 60 feet road, West land of vendor (Janutula Malla Reddy) and North: plot of G.Sharada, claim petitioner-appellant. Claim petitioner has not stated the details of said northern plot, means whether said northern boundary plot is that of 500 Sq.yds purchased in the year 2004 or 439 Sq.yds claimed as purchased in the year 2004 but got registered in the year 2010 under Ex.A9. When the years of registration is taken into consideration, the sequence of plots comes to 439, 500 and 411, since claim petitioner claimed that she purchased 439 in the year 2004 but got registered in the year under Ex.A9, 500 Sq.yrards under the registered sale deed document No.5151 of 2004 and 411 Sq. Yards in the year 2006 under Ex.A2. A perusal of Ex.A3-original permit obtained by claim petitioner from Warangal Municipal Corporation for construction of house under proceedings No.G2/32136/2006 dated 01.01.2008 for construction of RCC ground floor. A perusal of the sanctioned plan appended to it, the permission was granted to her for construction over an extent of 411 Sq.yds. In Ex.A2 it is mentioned that she purchased an open plot, but in Ex.A3 and its sanction plan shown H.No.1-1-114/D (new) and no details like when she purchased said land, when she constructed house, its extent and plinth area and assignment of such house number by municipality. Moreover, in the plan appended to Ex.A3 there is a specific mention of the boundaries which are same to the boundaries mentioned in Ex.A2 for 411 Sq.yds. Ex.A2-sale deed also appended with a plan with specific dimension of the plot covered under Ex.A2. When the dimension mentioned in the plan appended to Ex.A2 and Ex.A3 plan are considered, the said dimensions are one and the same. The area with shed to which H.No.1-1-114/D was allotted is marked with green ink and same is shown in the plan as "to be removed" and said green marked area also included to total dimensions. As seen from the said plan of Ex.A3, H.No.1-1-114/D is part of 411 Sq.yds covered under Ex.A2 and covered with compound wall on North, South and West and a gate on East as per plan and bore-well is also part of 411 Sq.yds and said details are mentioned in Ex.A3 plan. As per said plan, there is no other land to original owner Junutula Mallreddy or claim petitioner on southern side as 60 feet road is shown as boundary and on northern side there is an open plot of claim petitioner.

Ex.A4-Agreement of sale-cum-General Power of Attorney dated 29.10.2005 executed by Junutula Malla Reddy in favour of Judgment debtor No.2-V.Mahender Reddy in respect of an extent of 1000 Sq.yds in Sy.No.550 and the boundaries mentioned therein are: East and South: 60 feet wide Road, West: vendor's land and North: Land of G.Sharada i.e., claim petitioner. It is the case of the claim petitioner that she purchased 500 Sq.yds from Jannathula Malla Reddy on 28.06.2004 and 411 Sq.Yards on 01.03.2006. Since 1000 Sq.yds covered under Ex.A4 is dated 29.10.2005, the property covered under Ex.A2 is dated 01.03.2006, northern boundary shown to 1000 Sq.yds as open land of Sharada must be 500 Sq.yds or 439 Sq.yds, as she claimed as purchased on 28.06.2004 under the document No.5151 of 2004 and in the year 2004 respectively under an oral agreement as mentioned in Ex.A9 which is of the year 2010. Therefore, there is any amount of doubt as there is no possibility to claim petitioner to purchase any property under Ex.A2 to an extent of 411 Sq.yds, since after 1000 Sq.yds, on south there is 60 feet wide road and North there is land of claim petitioner which may be 500 Sq.yds or 439 Sq.yds.

A perusal of Ex.A7-Proceedings of KUDA dated 12.03.2010 and it is also appended with a plan. This document is filed stating that she got regularized part of the property. There is no mention of details of extent which was regularized by KUDA and even not mentioned the details of the sale deed to ascertain which sale deed property was got regularized. It is mentioned in Ex.A7 that an open plot to an extent of 418.05 Sq.mtrs in Sy.No.550 was regularized. In the plan appended to Ex.A7, it is specifically mentioned that total area as 500 Sq.yds or 418.5 Sq.mtrs was got regularized under G.O.Ms.No.902 dated 31.12.2007 under LRS No.109/2010 vide File No.C1/944/2009 under Ex.A7. In Ex.A7 claim petitioner has not specifically mentioned that she got regularized the 500 Sq.yds which was purchased under registered sale deed document No.5151 of 2004 and no title document is appended to it and even details of the title are not mentioned in Ex.A7. Therefore, the proceedings under Ex.A7 are obtained to the 500 Sq.yds which she purchased in the year 2004 and it is not her case that she purchased 500 Sq.yds twice in the same survey number. It is her case that she purchased 500 Sq.yds, 411 Sq.yds and 439 Sq.yds only in Sy.No.550.

As per Ex.A7 plan there is no possibility to purchase any land by claim petitioner in the year 2006 either on north or south of 500 Sq. Yards, since on north of 500 Sq.Yards there is land of third party Y.Sunitha and on south there is a land of 439 Sq. Yards already purchased by Claim-petitioner from same vendor in the 2004 under an oral agreement of sale and got registered the same under Ex.A9. If Ex.A2 and A3 taken into consideration there is no possibility for existence of 439 Sq. Yards and to purchase the same in the year 2004 under an oral agreement of sale and getting registered under Ex.A9 in the year 2010, since as per Ex.A7 on northern side 500 Sq. Yards is shown. A perusal of Ex.A9-Sale deed bearing document No.8036 of 2010, there is no mention of the boundaries prevailed to 439 Sq.yds in the year 2004 and the boundaries mentioned therein are existing boundaries as on the date of execution of the document. A perusal of Ex.A8-village map shows that the property claimed by decree holder in Sy.No.542 and 549 and the same are adjacent to each other and adjacent to part of property covered in Sy.No.550.

As seen from the above documents i.e., Exs.A2 to A4, A7 and A9 the boundaries are contrary to each other and that the property claimed by the claim petitioner is not in existence to the total extent claimed within the boundaries as claimed by claim petitioner.

Furthermore, as seen from the record, the original suit was filed in the year 2005 and claim petitioner alleged to have purchased the property in the year 2006 vide sale deed document No.1715 of 2006 dated 01.03.2006. Thus the claim petitioner alleged to have purchased the property during the pendency of the suit and it attracts ‘lis pendens’ and it is hit by Section 51 of the Transfer of Property Act (for short ‘the Act’). Section 51 of the Act says that any transaction during the pendency of the suit or proceeding by third parties would be subject to outcome of the suit. However, any transaction during the pendency of the suit and with prior permission of the Court is permissible.

It is apt to extract Order 21 Rule 58 (5) of CPC which reads as under:

“Where a claim or an objection is preferred and the Court, under the proviso to sub-rule, refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.”

It is not the case of the claim petitioner that she purchased the property by obtaining permission from the concerned Court. It is the contention of the claim petitioner that she is not aware of the suit proceedings until her tenant informed to her husband. Therefore, exception to Section 51 of the Act to enter into any transaction with the permission of the Court is not available to the claim petitioner. Thus, the claim petitioner shall rely upon the result of the suit, wherein execution proceedings are being carried on based on the decree passed in O.S.No.41 of 2005. As discussed supra, she failed to file sale deed showing purchase of property which was being claimed by her in claim petition, enabling the Court to analyze and verify the ownership, boundaries and extent of the property. Therefore, viewed from any angle, the claim petitioner failed to prove her claim.

As seen from the impugned Order, the trial Court has discussed all the aspects meticulously and came to correct conclusion and this Court is of the considered opinion that no inference is required by this Court and this Appeal Suit is liable to be dismissed.

In the result, this Appeal Suit is dismissed. There shall be no order as to costs.

Pending Miscellaneous Petitions, if any, shall stand closed.