IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
APPEAL SUIT No.1036 OF 1995
Between:
B. Venkatarao Naidu and others. --- Appellants And K. Rajaratnam and others. --- Respondents Date of Judgment Pronounced : 28.07.2015
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers may be allowed to see the Judgment? No
2. Whether the copy of Judgment may be marked to Law Reporters/Journals? No
3. Whether Their Lordship wish to see the Fair copy of the Judgment? No HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY APPEAL SUIT No. 1036 OF 1995
JUDGMENT:
The unsuccessful plaintiff in Original Suit No.202 of 1989 on the file of the Court of Principal Subordinate Judge, Ranga Reddy District at Saroornagar, Hyderabad (for short, 'the trial Court'), preferred this Appeal challenging the decree and judgment dated 30.06.1995; wherein the suit filed by the plaintiff, for declaration of title and other reliefs, was dismissed.
2. 1st appellant herein was the plaintiff and the respondents 1 to 3 herein were the defendants before the trial Court. For convenience of reference, the ranks given to the parties in O.S. No.202 of 1989 will be adopted throughout this judgment.
3. During pendency of the Appeal, plaintiff-1st appellant herein died and appellants 2 to 4 herein were brought on record, as his legal heirs, vide order of this Court in A.S.M.P. No.14908 of 1995, dated 12.02.1997.
4. The plaintiff filed the suit against the defendants for declaration of his title to Plot No.558, which is more fully described in the schedule annexed to the plaint, admeasuring 350 Sq. yards in S.No.218/1 of Ramakrishnapuram, Sainikapuri, Malkajgjiri Taluq, Secunderabad and for permanent injunction restraining the 1st defendant and his agents from interfering with his peaceful possession and enjoyment of the schedule property by the plaintiff. Subsequently, the plaintiff got amended the plaint and sought for cancellation of the sale deed dated 26.04.1977 executed by C.T. Ramulu, the then secretary of the 2nd defendant-society, in favour of the 1st defendant, for declaration of his title and deliver vacant possession of the schedule property alleging that late B.V. Naidu, father of the plaintiff, was founder member of the 2nd defendant-society from February 1967, having purchased 3 shares value of Rs.25/- each; the 2nd defendant-society was registered on 22.08.1962 and share certificate No.8, dated 10.02.1967 was issued to late B.V. Naidu on payment of a sum of Rs.625/-, vide receipt No.1192, dated 22.12.1968, towards value of the plot, betterment charges etc., Later, B.V. Naidu was directed to deposit a sum of Rs.500/- by the 2nd defendant-society towards guarantee money and accordingly he deposited the same under receipt No.1429, dated 26.10.1970. On receipt of the guarantee deposit, the 2nd defendant-society issued letter of allotment dated 24.11.1970 with a request to start construction immediately within 15 days from the date of receipt of that letter, failing which the amount deposited towards guarantee will be forfeited.
Late B.V. Naidu, father of the plaintiff, started construction of the schedule property and when the construction reached up to basement level, spent Rs.4,000/- at the work site, the balance of construction could not be completed due to paucity of funds. Accordingly, the said fact was informed to the 2nd defendant-society by late B.V. Naidu; since the date of allotment the said B.V. Naidu was in possession and enjoyment of the property during his life time and later the plaintiff being sole legal heir succeeded the property and continued in possession and enjoyment of the property. B.V. Naidu, died leaving behind him his wife i.e., mother of the plaintiff and the plaintiff as his legal representatives. The plaintiff informed the 2nd defendant-society about death of his father B.V. Naidu by letter dated 25.03.1980, requested the 2nd defendant-society to transfer the plot to his name. Despite several remainders, the 2nd defendant-society did neither choose to give any reply nor transferred the plot in his name; thereupon, the plaintiff filed Arbitration Case No.4 of 1987 on 19.12.1987 before the Divisional Co-operative Officer/Arbitrator, Hyderabad under Section 61(1)(b) of the A.P. Co-operative Societies Act, 1964 against the 2nd defendant-society for registration of Plot No.558, claiming as legal heir of late B.V. Naidu, who was the member of the 2nd defendant-society since 10.02.1967. The 2nd defendant- society filed counter in A.R.C. No.4 of 1987 inter-alia contending that late B.V. Naidu exchanged Plot No.558 with Plot No.451 allotted to the 1st defendant and submitted a joint application dated 23.08.1976 and that the committee approved exchange of Plot No.558 in the name of 1st defendant vide letter dated 02.09.1976 and that Plot No.451 was to be allotted to late B.V. Naidu on payment of Rs.500/- towards guarantee money. As late B.V. Naidu failed to pay the guarantee money, Plot No.451 could not be allotted to him.
After considering the respective contentions of the plaintiff and 2nd defendant-society, the Divisional Co-operative Officer/Arbitrator passed an Award in A.R.C. No.4 of 1987 on 09.02.1989 holding that the letter dated 02.09.1976 filed by the 2nd defendant-society is a trumped up document and brought into existence, obviously after filing of the Arbitration Petition by the plaintiff, before the Divisional Co- operative Officer/Arbitrator. The permission granted by the H.U.D.A. in favour of 1st defendant does not confer any title as per Clause 3, nor the conditions of permission implemented within a period of 12 months as specified in the permission from the date of sanction. Therefore, the registered sale deed is illegal and void as it is contrary to the aforementioned reasons.
Late B.V. Naidu, raised construction up to basement level, in compliance of conditions of the letter of allotment in Plot No.558 and dumped material but could not complete the construction on account of lack of funds, however, there was no exchange of Plots between B.V. Naidu and the 1st defendant and the alleged exchange was not approved by the managing committee. Thus, late B.V. Naidu had been in possession and enjoyment of the schedule property till his death on 02.01.1980 and thereafter the plaintiff has been in possession and enjoyment of the same till the date of filing the suit. Thus, the plaintiff and his predecessor in title have perfected their title by adverse possession of the suit schedule property from 10.02.1970.
The 1st defendant after passing the Award dated 09.02.1989, taking advantage of the illegal sale deed executed by the 2nd defendant-society, tried to interfere with the peaceful possession and enjoyment of the suit schedule property. After amendment of the plaint, the plaintiff claimed the relief of cancellation of sale deed dated 26.04.1977 and recovery of possession. The plaintiff further contended that the sale deed executed by 2nd defendant-society in favour of the 1st defendant, conveying the suit schedule property, is illegal, void and without jurisdiction and it is without concurrence and approval of the management of the 2nd defendant-society.
It is further contended that the 1st defendant illegally and forcibly took possession of the schedule property, after passing the Award in A.R.C. No.4 of 1987 and after filing the suit raised compound wall around the suit schedule property, even though the Municipality issued a notice for demolition as it was unauthorized construction. Therefore, the plaintiff sought relief of cancellation of sale deed dated 26.04.1977 executed by the 2nd defendant-society represented by its secretary in favour of the 1st defendant and for delivery of vacant possession of the suit schedule property, after evicting the 1st defendant from the schedule property.
5. The 1st defendant filed written statement denying material allegations made in the plaint inter-alia contending that B.V. Naidu was holding only 3 shares in the 2nd defendant-society under share certificate No.8 and he was allotted the suit schedule property. The 1st defendant denied the alleged raising of construction up to basement level, dumping material worth Rs.4,000/- and that the plaintiff alone is the legal heir of deceased B.V. Naidu, who died on 02.01.1980. The wife of B.V. Naidu and the plaintiff are only the legal heirs, who succeeded the estate and the plaintiff has no right to claim the schedule property. He further denied the contents of Arbitration Petition in A.R.C. No.4 of 1987 while contending that Plot No.451 which was allotted to the 1st defendant was exchanged with B.V.
Naidu for Plot No.558 by submitting a joint application dated 23.08.1976, accepted the same by 2nd defendant-society; in pursuance of the acceptance, a registered sale deed was executed in favour of the 1st defendant on 26.04.1977 and ever since the 1st defendant has been in continuous possession and enjoyment of the suit schedule property; the 1st defendant obtained sanction from Vice- Chairman, Urban Development Authority, Hyderabad on 31.07.1979, constructed a house in the schedule property, has been living in the said house in his own right. The 1st defendant spent thousands of rupees for construction of the house, which fact is within the knowledge of B.V. Naidu, during his life time but B.V. Naidu did not raise any objection for construction of the house. B.V. Naidu after approval of exchange of plot withdrew the guarantee money of Rs.500/- requested the 1st defendant to refund the same. Accordingly, 2nd defendant-society refunded the same for want of payment of guarantee money for Plot No.451, which was allotted by the 2nd defendant-society to B.V. Naidu but the said 2nd defendant-society irrespective of waiting for considerable period, finding no response from late B.V. Naidu allotment of Plot No.451 was cancelled and allotted to Mr. K. Thomas.
The Award passed by in A.R.C. No.4 of 1987, dated 09.02.1989 is an ex parte Award and not based on facts and 1st defendant was not a party to the said Award. The 2nd defendant-society filed an Appeal in C.T.A. No.3 of 1989 before the Munsif Magistrate, East and North, Ranga Reddy District questioning the Award in A.R.C. No.4 of 1987 and the same is pending. The said exchange was approved by the Managing Committee of the 2nd defendant-society and it is as per the bye-laws of 2nd defendant-society. Hence, the exchange cannot said to be illegal.
It is further contended that the Civil Court has no jurisdiction to cancel any document executed as per bye-laws of 2nd defendant- society and no injunction can be granted while 1st defendant is rightly in possession and enjoyment of the property by constructing a house in the schedule property and that the suit is under valued.
Finally it is contended that in view of pendency of C.T.A. No.3 of 1989 before the Munsif Magistrate, the suit is not maintainable. The claim, if any, is without prejudice to this defendant’s claim under A.P. Co-operative Societies Act as the claim is made beyond 6 years, the suit is liable to be dismissed. There is no contractual obligation between 1st defendant and plaintiff since exchange took place during the lifetime of B.V. Naidu and no cause of action survives after death of B.V. Naidu and finally prayed to dismiss the suit.
6. The 2nd defendant-society filed written statement raising similar pleas in the written statement of 1st defendant. Therefore, to avoid repetition, the following specific contention raised in the written statement of 2nd defendant alone is to be considered.
The 2nd defendant-society specifically contended that by mutual exchange of plots in pursuance of the joint application by B.V. Naidu and 1st defendant the 2nd defendant-society accepted the exchange and therefore it is valid.
7. The 3rd defendant remained ex parte.
8. The 1st defendant filed additional written statement, after amendment of the original plaint, raising a specific contention that C.T. Ramulu was not the President of the managing committee of 2nd defendant-society; the managing committee of 2nd defendant-society never passed resolution either for admission of members or for allotment of plots. The successive managing committee got all the plots allotted and the admission of members after 01.07.1970 was ratified in the general body meeting held on 23.11.1980. The mutual exchange of plots by K. Rajaratnam and late B.V. Naidu was approved and signed by two thirds of the managing committee and thus it is in connection with the bye-laws and that the 1st defendant constructed a house in the schedule property and is in possession and enjoyment of the same. The relief of declaration of title to Plot No.558 is not maintainable and that the civil Court has no jurisdiction to cancel the document, executed as per bye-laws of the 2nd defendant-society.
9. On the basis of above pleadings, the trial Court framed the following issues:
1) Whether B.V. Naidu, was allotted Plot No.558, by the 2nd defendant-society?
2) Whether B.V. Naidu, exchanged Plot No.558 with Plot No.451 allotted to 1st defendant by the 2nd defendant?
3) Whether the Court has no jurisdiction to try the suit as an Appeal preferred before the Munsif Magistrate, East and North, questioning the Award in A.R.C. No.4 of 1987, was pending?
4) Whether the suit is under valued or Court fees paid is insufficient?
5) Whether the suit claim of the plaintiff is time barred under the A.P. Co-operative Societies Act, 1964?
6) Whether the plaintiff is entitled for declaration, permanent injunction against the 1st defendant in respect of Plot No.558?
7) To what relief?
10. During course of trial, on behalf of the plaintiff, PW.1 was examined and Exs.A-1 to A-22 were marked. On behalf of the defendants, DWs.1 and 2 were examined and Exs.B-1 to B-8 were marked.
11. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the trial Court held Issues Nos.1 to 5 in favour of the plaintiff, while answering Issue Nos.6 and 7 in favour of the defendants and dismissed the suit.
12. Aggrieved by the decree and judgment of the trial Court, the plaintiff being unsuccessful, preferred this Appeal raising the following contentions:
a) The trial Court erroneously believed the exchange of Plots between 1st defendant and B.V. Naidu in view of the minutes of the General Body Meeting held on 17.03.1974 and 30.08.1976, vide Exs.A-19 and A-20 where the admission of membership and allotment of plots was restricted but on the dates of resolution the 1st defendant was not a member. Therefore, exchange of plots does not arise but the trial Court committed a grave error in appreciation of evidence with regard to membership of the 2nd defendant-society;
b) The trial Court having held issue No.1 regarding allotment of suit schedule property to B.V. Naidu, in the absence of any cancellation, would have accepted the long continuous possession of B.V. Naidu, during his life time and after his death by the legal representatives but committed an error in holding that the 1st defendant constructed a house in the schedule property;
c) The trial Court ought not to have believed exchange of plots between 1st defendant and B.V. Naidu as 1st defendant was not a member of the 2nd defendant- society and question of allotment of plot to non-members is against the bye-laws but the trial Court did not appreciate Exs.A-19, A-20 and Ex.B-1 in proper perspective, thereby the finding of the trial Court is erroneous;
d) The trial Court considered the alleged admission made by the plaintiff about exchange but the same is not proved by any material and it is contrary to the bye-laws of the 2nd defendant-society; on this ground alone, the trial Court would have accepted the contention of the plaintiff;
e) The plaintiff further contended that the trial Court did not consider the Arbitration Award passed in A.R.C. No.4 of 1987 by the Divisional Co-operative Officer, Hyderabad; in the absence of any cancellation of allotment of suit schedule property by the 2nd defendant- society to B.V. Naidu, plaintiff is entitled to claim declaration of his title as owner of the property but the trial Court committed an error in declining the relief of declaration of title;
f) As the 1st defendant is an unauthorized occupier of the suit schedule property, as the conveyance executed in his favour was not in accordance with the bye-laws, the trial Court ought to have decreed the suit for delivery of vacant possession of the property and apart from that the plaintiff perfected his title by adverse possession. In such case, the trial Court would have granted a decree in favour of the plaintiff instead of dismissing the suit for the reliefs claimed by the plaintiff; and
g) Finally it is contended that the trial Court would have declared that the plaintiff is the owner of the schedule property and the registered sale deed marked as Ex.B-3 as illegal and the same is liable to be cancelled, on appreciation of facts and law and finally prayed to allow the Appeal setting-aside the decree and judgment of the trial Court.
13. During course of argument, learned counsel for the plaintiff- appellant would submit that by the date of Ex.A-1 the 1st defendant was not even a member of the 2nd defendant-society and question of allotment of property to a non-member is against the bye-laws and in such case, exchange of plots between B.V. Naidu and 1st defendant does not arise even if it is approved in the General Body Meeting of the 2nd defendant-society.
It is further contended that the sale deed executed in favour of 1st defendant by 2nd defendant-society marked as Ex.B-3 is illegal for the reason that the suit schedule property was allotted to B.V. Naidu and it was not cancelled at any time by issuing any proceedings. In the absence of cancellation the sale deed marked As.Ex.B-3, B.V. Naidu, the original allottee, alone is entitled to claim rights over it but the trial Court did not accept the same only on the ground that the plaintiff admitted exchange of plots in A.R.C. No.4 of 1987; the Arbitrator under Section 61 of the A.P. Co-operatives Societies Act, directed the 2nd defendant-society to execute registered sale deed and the same is not implemented. Execution of Ex.B-3 and conveying the property in favour of 1st defendant by the 2nd defendant-society is a direct outcome of fraud played by the 2nd defendant-society and it’s secretary but the said fraud was not looked into by the trial Court to decide the rights of the parties. When the allotment of plots to 1st defendant by 2nd defendant-society and execution of sale deed in favour of the 1st defendant for the suit schedule property which was originally allotted to B.V. Naidu is vitiated by fraud, the 1st defendant is entitled to any protection but the trial Court ignored the fraud played by defendants 1 and 2 in obtaining sale deed dated 26.04.1977. Finally it is contended that the Court can mould the relief appropriately and pass decree placing reliance on the decisions of the Apex Court in Meghamala and others Vs. G. Narasimha Reddy and others
[1]
, L.
[2]
Janakirama Iyer and others Vs. P. M. Nilakanta Iyer and others
[3]
and Hill Properties Limited Vs. Union Bank of India and others and requested this Court to pass appropriate decree granting the appropriate reliefs.
14. Per contra, learned counsel for the defendants-respondents would contend that the claim for declaration of title is barred by limitation as the plaint was presented on 26.04.1989 but the sale deed sought to be cancelled was executed on 26.04.1977 and the relief of declaration of title and cancellation is barred by limitation since the claim is beyond 3 years.
The 2nd contention of learned counsel for the defendants- respondents is that the jurisdiction of the civil Court is barred under Section 121 of the A.P. Co-operative Societies Act.
The 3rd contention of the defendants-respondents is that the limitation to set-aside the sale deed is 6 years; the sale deed was executed in 1977 in favour of the 1st defendant but filed the suit in 1989. On this ground also the suit is liable to be dismissed. It is also contended that the plaintiff is not entitled to claim declaratory relief on the basis of the letter of allotment which would not confer or create title in immovable property. Even otherwise, when the sale deed was executed in favour of 1s t defendant by 2nd defendant-society, the plaintiff is not entitled to seek cancellation of sale deed under Section 31 of the Specific Relief Act, 1963; at best, he is entitled to claim declaratory relief under Section 34 of the Specific Relief Act to declare that the sale deed executed by 2nd defendant-society in favour of 1st defendant is invalid but no such relief was claimed; on this ground also the suit is liable for dismissal.
15. Learned counsel for the defendants-respondents drawn the attention of this Court to several evidentiary admissions allegedly made by PW.1 regarding exchange of plots by B.V. Naidu and 1st defendant and that during the life time B.V. Naidu did not question the execution of sale deed in favour of 1st defendant but his son filed Arbitration Case without any basis and since the Appeal in C.T.A. No.3 of 1989 is pending before the District Munsif, East and North, Ranga Reddy District, the same is not binding on the defendants as he is not a party to the said proceedings and finally prayed to dismiss the Appeal.
16. Considering rival contentions and perusing oral and documentary evidence including the decree and judgment under challenge, the points that arise for consideration are:
1) Whether the plaintiff is entitled for declaration of title to the schedule property, based on letter of allotment, marked as Ex.A-3?
2) Whether the plaintiff is entitled to a decree for cancellation of sale deed dated 26.04.1977, executed by C.T. Ramulu?
3) Whether the suit is barred by limitation?
4) Whether the suit claim of the plaintiff is barred under the provisions of A.P. Co-operative Societies Act, 1964?
5) Whether the plaintiff is entitled for recovery of possession?
17. The trial Court framed as many as 7 issues but did not frame any issue with regard to cancellation of sale deed and no finding was recorded. On the other hand, the trial Court held issue Nos.1 and 3 in favour of the plaintiff holding that 2nd defendant-society allotted plot No.558 to late B.V. Naidu and that the Civil Court has got jurisdiction. The finding on issue Nos.1 and 3 were not challenged before this Court either by filing a Cross-appeal or Cross-objections by defendants. Therefore, these two findings do not call for interference of this Court.
18. POINT No.1: The plaintiff claimed the relief of declaration of title only basing on the allotment letter dated 24.11.1970, marked as Ex.A-3. The defendants did not dispute the allotment of suit schedule property bearing Plot No.558 to the father of plaintiff under Ex.A-1 but contended that the suit schedule property was exchanged with the 1st defendant for Plot No.451. However, due to failure of the plaintiff to pay guarantee amount, exchange of plots between 1st defendant and B.V. Naidu was cancelled, thereby he is not entitled to claim any declaration.
19. Assuming for a moment that late B.V. Naidu was allotted plot No.558 by issuing letter Ex.A-3 it is only a tentative allotment subject to executing a registered sale deed by 2nd defendant-society, since the value of immovable property is more than Rs.100/- and such transfer is to be affected only by executing a registered conveyance. At best, the letter of allotment marked as Ex.A-3 may confer a right on the father of plaintiff to seek specific performance of contract of sale or enforcement of the terms of Ex.A-3 but the plaintiff instead of filing a suit for appropriate remedy for enforcement of terms of Ex.A-3 or to specific performance of agreement of contract, sought the relief of declaration of title under Section 34 of Specific Relief Act, 1963 but such relief cannot be granted based on Ex.A-3 letter of allotment since no title was transferred to late B.V. Naidu during his life time or even after his death to the plaintiff. On this ground alone the plaintiff is disentitled to a declaratory relief.
20. When the plaintiff approached the Court seeking an equitable and discretionary relief of declaration under Section 34 of Specific Relief Act, it is for him to establish that his father is the owner of the property by virtue of Ex.A-3 or acquired title to the property in any modes of acquisition by adducing satisfactory and cogent evidence. In the present case, the plaintiff except adducing evidence to establish that Plot No.558 was allotted to late B.V. Naidu during his life time under Ex.A-3 nothing was brought on record to establish his title to the property. Moreover, his endeavour is only to disprove the exchange between 1st defendant and late B.V. Naidu and produced documentary evidence to show that the 1st defendant was not even a member of the 2nd defendant-society by the date of alleged exchange. However, the said fact is irrelevant for deciding the present controversy.
21. In a suit for declaration, it is for the plaintiff to approach the Court with clean hands otherwise not entitled to claim equitable and discretionary relief of title under Section 34 of Specific Relief Act.
22. In a recent decision of the Apex Court in U.P. Avas Evam
[4]
Vikas Parishad and others Vs. Om Prakash Sharma , the Apex Court had an occasion to deal with similar issue but with slightly different facts and held that on the basis of knocking the auction in favour of the highest bidder, the bidder is not entitled to claim the relief of declaration of title. In the facts of the above decision, the 1st defendant invited applications from the public for auction of the property and the plaintiff became highest bidder but the bid was subject to confirmation by the authorities concerned, however, the bid was not confirmed by the authorities and therefore cancelled the bid.
Thereupon, the highest bidder approached the Court seeking a decree for declaration of title and the matter reached up to Apex Court and finally the Apex Court concluded that basing on the bid in favour of the plaintiff, in the open auction, when it was subject to approval, he is not entitled to claim a declaratory relief. Though the facts are slightly different from the facts of this case, the letter of allotment is only a tentative allotment and unless the property is transferred by executing a registered conveyance as per the provisions of the Registration Act, no title will pass to the plaintiff and B.V. Naidu was only an allottee and on the strength of such allotment letter, the plaintiff is disentitled to claim the declaratory relief. If such declarations are granted, the party who entered into an agreement can avoid payment of stamp duty and registration expenses and obtain a decree through Court by filing suits; such practice would cause serious loss to the State Exchequer. Therefore, the plaintiff is not entitled to claim the relief of declaration of ti tle. Accordingly, the point is held in favour of the defendants- respondents and against the plaintiff-appellant
23. POINT No.2: The defendants in the written statements and additional written statements specifically raised a contention that the suit claim is barred by limitation as the suit was filed beyond 3 years from the date of right to issue accrued for the first time both for the relief of declaration and for cancellation but the trial Court did not frame any issue with regard to the plea of limitation. However, during course foe haring, learned counsel for the defendants-respondents specifically pointed out the question of limitation and drawn the attention of this Court to certain admissions both in the plaint and in the evidence of PW.1 to substantiate his contention that the suit is barred by limitation.
24. As per the averments of the plaint, the schedule property was allotted to the plaintiff under Exs.A-3 and later, he deposited the guarantee amount as required under the bye-laws, started construction, raised up to basement level, the said original allottee B.V. Naidu died on 02.01.1980; thereupon, the plaintiff requested to transfer the shares and plot in his favour but the 2nd defendant-society denied allotment of plot to the plaintiff. He also filed A.R.C No.4 of 1987 on 09.02.1989 and obtained an Award but no purpose was served. I n Para 6 clause (iii) of the plaint, the plaintiff specifically pleaded that the registration of the schedule property in favour of Rajaratnam on 26.04.1977 by way of registered sale deed has no legal validity. Therefore, it is clear from the recitals in Para 6 of the plaint a document conveying title to the schedule property was executed on 26.04.1977. In the oral evidence of PW.1, he made certain admissions with regard to denial of his right to claim allotment of Plot No.558 i.e., suit schedule property. In the examination-in-chief of PW.1, at page No.3 he admitted that his father filed an application before the 2nd defendant-society for exchange of Plot No.558 belonging to his father with Plot No.451 of the 1st defendant. After the General Body meeting held in 1974, he never revoked back on the allotment of plots and admitting of new members and in the next sentence PW.1 contended that no mutual exchange of plot took place between his father and 1st defendant and while admitting that 1st defendant occupied Plot No.558 forcibly after award in A.R.C No.4 of 1987 was passed in his favour.
25. In the cross-examination of PW.1, at Page No.7, he further admitted that he filed a suit for cancellation of the sale deed executed by 2nd defendant-society in favour of the 1st defendant and for delivery of vacant possession of the property and further admitted that his father and 1st defendant made a representation to the society for mutual exchange of plots on 23.08.1976 under Ex.B-1. All these admission would clinchingly establish that there was exchange of plots between B.V. Naidu, father of the plaintiff and 1st defendant but the contention of the plaintiff is that by the date of the said exchange, the 1st defendant was not a member and produced Exs.B.19 and B.20 in support of his contention. In any view of the matter, it is not necessary to decide exchange of plots. The 2nd defendant-society denied the right of the plaintiff or his father B.V. Naidu to obtain registered sale deed for Plot No.558 on the date of execution of a registered sale deed under Ex.B-3 in favour of 1st defendant and it is a public document and therefore on the date of execution of registered sale deed on 14.03.1977 itself the right to sue accrued for the first time to the father of the plaintiff to file a suit for declaration of title and after his death to the plaintiff, who succeeded the estate of deceased B.V. Naidu. By the date of filing A.R.C. No.4 of 1987, the right of the plaintiff was denied then only the plaintiff approached the Arbitrator under Section 61 of the A.P. Co-operative Societies Act. Therefore, the right to sue first accrued on 26.04.1977 itself.
26. The limitation for seeking the relief of declaration under Article 54 of the Limitation Act, 1963 is 3 years which runs from the date when the right to sue first accrued. In the present case, the right to sue first accrued on the date of execution of the registered sale deed in favour of 1st defendant by 2nd defendant-society but the suit was filed in the year 1989 i.e., beyond 3 years. Therefore, the suit for declaration is hopelessly barred by limitation.
27. The 2nd relief claimed by the plaintiff is cancellation of registered sale deed executed by 2nd defendant-society in favour of 1st defendant dated 26.03.1977. The limitation for cancellation of a registered document, as per Article 59 of the Limitation Act, is 3 years from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set-aside or the contract rescinded first become known to him. Here, the document is a registered instrument of conveyance marked as Ex.B-3 and the limitation for such cancellation is 3 years under Article 59 of the Limitation Act. When the document is a registered document, registration itself is a notice about execution of document. Therefore, the suit shall be filed within 3 years from the date of registration for cancellation of Ex.B-3 under Section 31 of the Specific Relief Act but here the suit was filed long after expiry of 3 years period. On this ground also the suit for cancellation of Ex.B-3 under Section 31 of Specific Relief Act is not maintainable. Accordingly, the point is held in favour of the defendants-respondents and against the plaintiff-appellant.
28. POINT Nos.3 & 5: When the suit is filed for declaration of title and recovery of possession, the limitation is 12 years but not 3 years. If it is a suit for declaration only Article 58 is applicable but here the suit was filed for both the reliefs of declaration of title and recovery of possession. Therefore, Article 65 of the Limitation Act would apply to the instant suit. When the plaintiff is claiming to be in possession and enjoyment of the property, and allegedly dispossessed 1st defendant after passing of Award in A.R.C. No.4 of 1987 on 09.02.1989, it is for him to establish that he was in possession and enjoyment till 1989. The plaintiff except ipse dixit did not produce any piece of evidence to prove that his father was in possession and enjoyment of the property during his life time and after his death he was continuing in possession and enjoyment of the suit schedule property. In the absence of proof of his possession, the 1st defendant who purchased the property and raised construction is deemed to have been in possession and enjoyment of the property. Apart from that, the oral evidence of DW.1 coupled with Exs.B-6 to B-8 would clinchingly establish that the 1st defendant obtained permission from H.U.D.A. and obtained approved plan under Ex.B-8 for raising construction and, accordingly, raised construction in the suit schedule property. Ex.B-6 is the letter dated 02.11.1976 and Ex.B-7 is the permission issued by H.U.D.A. dated 31.07.1979 for constructing house in the Plot No.558. If Ex.B-8 is accepted, the plaintiff is out of possession, as on the date of Ex.B-8 the 1st defendant constructed house in the schedule property after obtaining necessary permission from the concerned authorities but the suit was filed in the year 1989. Ex.B-3 was executed on 14.03.1977. Even assuming that the 1st defendant is in possession and enjoyment of the property basing on Ex.B-3, still the suit for recovery of possession is barred by limitation as the suit was filed on 26.04.1989 i.e., beyond the period of limitation.
29. The plaintiff though contended that he is in possession and enjoyment of the property till passing of Award in A.R.C. No.4 of 1987 did not produce any evidence. On the other hand, the evidence produced by the defendants clinchingly establishes that the plaintiff was out of possession by the date of filing suit. On the other hand, the 1st defendant established that he is in possession and enjoyment of the property from the date of Ex.B-3. Therefore, the claim of the plaintiff is hopelessly barred by limitation for all the reliefs of declaration of title and recovery of possession and also cancellation of Ex.B-3.
30. A feeble attempt was made by the plaintiff to prove that he perfected his title by adverse possession making a vague allegation in the plaint that he perfected his title by adverse possession as his father was in possession and enjoyment of the property from the date of allotment of property under Ex.A-3 dated 24.11.1970 and after his death the plaintiff is in continuous possession and enjoyment of the property without any interruption by anybody but failed to plead and prove that he is in continuous possession and enjoyment of the property uninterruptedly claiming hostile title against the defendants.
31. In one of the oldest judgments of Privy Council in Secretary of
[5]
State for India Vs. Debendra Lal Khan , the Privy Council observed that the ordinary classical requirement of adverse possession is that it should be “nec vi, nec clam, nec precario” and the possession required must be adequate in continuity, in publicity and in extent to show that possession is adverse to the competitor.
32. Thus, the three requirements mentioned in the above judgment are sine-qua-non to defend the claim of the plaintiff basing on the adverse possession, but here there is absolutely no pleading and evidence to establish those 3 requirements.
33. The plaintiff also claimed recovery of possession both on the strength of title and on the strength of perfection of his title by adverse possession. His claim is totally based on Ex.A-3 letter of allotment which shows that the schedule property was allotted to his father B.V. Naidu but no registered sale deed was executed in his favour, which is required for transfer of the property to the plaintiff. In the absence of transfer of title vesting of title on the plaintiff does not arise. I have discussed about the right of the plaintiff in the earlier points and held that the plaintiff is not entitled for declaration of title and as such in the absence of proof of title the plaintiff is not entitled to claim recovery of possession on the strength of title. Therefore, he is disentitled to claim recovery of possession under Section 5 of the Specific Relief Act, as he failed to prove perfection of title by adverse possession. Accordingly, the points are held in favour of the defendants- respondents and against the plaintiff-appellant.
34. POINT No.4: One of the contentions raised by the defendants- respondents in the written statements is that for setting-aside the document executed by the 2nd defendant-society which is governed by the provisions of A.P. Co-operative Societies Act, the suit shall be filed within 6 years but it was filed after 6 years. In such case, the suit is barred by limitation under Section 61 of the A.P. Co-operative Societies Act. The trial Court framed an issue on this aspect which is Issue No.5, which was decided against the plaintiff and in favour of the defendants. The said finding is now challenged in this Appeal raising various contentions in general.
35. Undisputedly, the 2nd defendant is a housing co-operative society governed by the provisions of A.P. Co-operative Societies Act. According to Section 61 of the A.P. Co-operative societies Act read with Rule 49 of the Rules framed there under the suit shall be filed within 6 years questioning the action taken by the society. The proviso to Sub-rule 2 of Rule 49 of A.P. Co-operative Societies Rules, 1964 framed under A.P. Co-operative Societies Act is as follows:
“Provided that a dispute arising between the parties mentioned in Clause (a) of sub-section (1) of Section 61, shall, where the dispute relates to any act or omission on the part of the society or its committee, or any past committee, any past officer, past agent or past employee, or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society be referred to the Registrar within six years from the date on which the act or omission with reference to which the dispute arose, had occurred.”
36. In the present suit, the plaintiff sought declaration of title for the schedule property bearing Plot No.558 and for recovery of possession while cancelling the sale deed dated 26.04.1977, marked as Ex.B-3 executed by 2nd defendant-society in favour of 1st defendant while contending that the 1st defendant was not a member and thereafter allotment of Plot No.451 to him and the alleged exchange of plot between B.V. Naidu and 1st defendant is false and ratification of such exchange by the committee in the years 1975-1979 but only on 24.12.1979 it was ratified. Therefore, there cannot be any mutual exchange of Plot 558 and 451 by B.V. Naidu and the 1st defendant. It is further contended that the above ratification on 24.12.1979 after lapse of 4 years is void under law and illegal and the action of the then secretary of the society in executing the registered sale deed for the schedule property on 26.04.1977 in favour of 1st defendant on behalf of the managing committee of the 2nd defendant-society is arbitrary and capricious. Therefore, the sale deed is void and liable to be set- aside.
37. From the pleadings it is evident that the dispute between the plaintiff and defendants in this suit is directly touching the business and management of the society. Therefore, it comes within the ambit of Section 61 of A.P. Co-operative Societies Act. The exchange of plot No.558 by B.V. Naidu and 1st defendant for plot No.451 and its alleged ratification by the then secretary of the 2nd defendant-society, execution of sale deed in the course of its business is directly an act touching the management. Therefore, such suit shall be filed within 6 years from the date of allotment. 6 years from the date of allotment as provided under Rule 49 of the Rules framed under the Act expired long prior to filing of the suit. Therefore, the claim of the plaintiff except the relief of declaration of title to the schedule property and recovery of possession on the ground of adverse possession is barred by limitation under Rule 49 of A.P. Housing Co-operative Societies Act.
38. The trial Court based on the pleadings and evidentiary admissions concluded that the claim of the plaintiff for cancellation of sale deed Ex.B-3 is barred by Section 61 read with Rule 49 of the Rules framed there under and this finding even after reappraisal of entire material would not call for interference of this Court. Therefore, I find that the claim of the plaintiff for cancellation of Ex.B-3 is hopelessly barred by limitation. Accordingly, the point is answered in favour of the defendants-respondents and against the plaintiff-appellant.
39. In view of my foregoing discussion, the plaintiff miserably failed to establish his title to the property as title was not transferred to him in any of the modes of transfer of title or acquired title in recognized modes of acquiring title including perfection of title by adverse possession and thus failed to establish his claim for recovery of possession on the strength of title and also on the strength of long continuous possession of perfecting his title by adverse possession and similarly in view of the legal bar the plaintiff is disentitled to claim cancellation of sale deed under Ex.B-3. Hence, I find no error in the decree and judgment passed by the trial Court warranting interference of this Court, consequently dismissal of the suit by the trial Court is totally in accordance with law.
In the result, the Appeal Suit is dismissed confirming the decree and judgment dated 30.06.1995, passed in Original Suit No.202 of 1989 by the learned Subordinate Judge, Ranga Reddy District at Saroornagar, Hyderabad.
In consequence, miscellaneous petitions, if any, pending in this Appeal, shall stand dismissed. No order as to costs.
Date: 28-07-2015.
Dsh M. SATYANARAYANA MURTHY, J HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY 102 30072015, 05082015
APPEAL SUIT No. 1036 OF 1995
Date. 28-07-2015
DSH
[1] (2010) 8 SCC 383
[2] AIR 1962 SC 633
[3] (2014) 1 SCC 635
[4] 2013 (5) SCC 182
[5] AIR 1934 PC 23