THE HON’BLE SRI JUSTICE V.SURI APPA RAO SECOND APPEAL No. 998 of 2010 and CIVIL REVISION PETITION No. 4552 OF 2010 Dated 27.06.2014 Between:
Vallabhaneni Mohan Rao .. Appellant And Gogineni Satyanarayana & another .. Respondents THE HON’BLE SRI JUSTICE V. SURI APPA RAO SECOND APPEAL No. 998 of 2010 and CIVIL REVISION PETITION No. 4552 OF 2010 COMMON JUDGMENT:
Since both the second appeal and civil revision petition preferred by the third party claimant are arising out of common suit, at the request of both the counsel, they are clubbed, heard together and are being disposed of by this common judgment.
2. Second Appeal has been preferred challenging the judgment dated 16.07.2010 rendered in A.S.No.522 of 2009 by the V Additional District & Sessions Judge (F.T.C.), Guntur confirming the judgment and decree dated 12.10.2009 in E.A.No.32 of 2008 in E.P.No.364 of 2007 in O.S.No.127 of 2007 on the file of V Additional Senior Civil Judge, Guntur.
3. Civil Revision Petition is filed aggrieved over the in action of the Executing Court in refusing to receive the decretal debt before commencement of auction and in not passing any order on the Memo filed by the Judgment debtor.
4. Facts leading to filing of the present matters, in a nutshell, are as follows:
O.S.No.127 of 2007 was filed before the Principal Senior Civil Judge, Guntur, by the D.Hr. viz., Gogineni Satyanarayana against the J.Dr. viz., Kothapalli Krishna Kumari for recovery of money basing on pro-note and the same was decreed ex parte vide judgment dated 31.07.2007 for a sum of Rs.2,05,680/- together with costs and subsequent interest at 6% per annum on Rs.1,20,000/- from the date of the suit till the date of realization. Pursuant to the same, D.Hr. filed E.P.No.364 of 2004 seeking attachment of properties shown in schedule and the same were allowed.
5. Appellant in S.A.No.998 of 2010 viz., Vallabhaneni Mohan rao, who is the third party to the suit, filed E.A.No.32 of 2008 before the Executing Court seeking to adjudicate his title with reference to the registered sale deed dated 28.06.2006 in respect of the petition schedule property i.e. item No.2 of the schedule property in E.P.No.364 of 2007 on the ground that he purchased the said property from Jagan Mohan Rao under registered sale deed dated 28.06.2006. It is further submitted that the said Jagan Mohan Rao purchased the property from the second respondent in EA and her sons viz 1. Sarath Babu, 3) Krishna Mohan, 3) Venu Madhav for a valid consideration of Rs.50,00,000/- under agreement of sale-cum-GPA dated 24.12.2005.
6. The Executing Court dismissed the said applications on the ground since no possession was delivered to the vendor of the appellants i.e. Jagan Mohan Rao under Ex.P.2, Ex.P.2 cannot be treated as a sale deed and when said Jagan Mohan Rao himself does not possess any right, title or interest over the schedule property, he cannot transfer the same to his vendees i.e. appellants herein.
7. Aggrieved over the same, appellant herein preferred A.S.No.522 of 2009 and the same were also dismissed by the V Additional District & Sessions Judge, Guntur, vide impugned judgment confirming of the order passed by the Executing Court in E.A. Challenging the same, present Second Appeal has been preferred.
8. Subsequent to passing of attachment order in E.P., the J.Dr. filed a memo before the Executing Court seeking to grant permission to deposit the warrant amount into the Court by way of cash. Since no orders are passed in the said memo, C.R.P. has been preferred questioning the in action of the Executing Court.
9. The following substantial questions of law arise for consideration in the Second Appeal:
a) Whether the title conveyed by the Agreement holder on the basis of power of attorney executed by the original owner is not valid and binding even if it construed that the agreement holder had not acquired any subsisting interest in the property?
b) Whether the subsequent attachment of property is not subject to the rights of earlier Agreement holder on the principle enshrined under Section 48 of Transfer of Property Act?
c) When the Agreement of Sale under which the 2nd respondent alienated the property is not challenged whether the subsequent charge created is not subject to the Agreement of Sale?
10. In order to prove the case of the petitioner/appellant in both cases, claimants examined as PW.1 and also examined another witness one T.Jagan Mohana Rao as PW.2 and marked Exs.P.1 and P.2. On behalf of the respondents, decree holder was examined as RW1 and marked Exs.R1 to R.3.
11. Learned counsel for the appellant submitted that the orders of the Courts below against law and facts and unsustainable in law, that the Court below ought not to have sold the entire property at once for recovery of a meager amount and that it is mandatory to sell only such portion of the property which is sufficient for realization of the decretal amount and therefore, the orders under challenge are unsustainable. He also contends that it is obligatory on the part of the Court to stop the sale immediately when the debt due is offered or paid before the sale is knocked down. In support of his contentions he relied on decisions reported in VARANASAYA SANSKRIT VISHWAVIDYALAYA AND
[1] ANOTHER v DR.RAJKISHORE TRIPATHI AND ANOTHER AND
BISHUNDEO NARAIN AND ANOTHER v SEOGENI RAI AND [2] OTHERS .
12. In BISHUNDEO NARAI’s case (2 supra), it was held that:
“In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.”
There is no dispute with regard to the prepositions laid down in those decisions.
13. On the other hand, the learned counsel for the respondents submitted that building which was brought to sale is not partable and as such the entire building was put to auction and that JDr has not raised any objection with regard to conduct of sale or filed any petition before the Court alleging the illegalities in conducting sale and that unless petitioner’s vendor has got title to the property, he cannot convey title to the petitioner, and when the vendor of the claim petitioner has no title in the property the appellant cannot acquire better title than what his vendor has in the property. It is also contended that several creditors also filed criminal cases against the 2nd respondent and her family members alleging that they have cheated them and some of the creditors have also filed cases under N.I.Act against the 2nd respondent and her family members and the same are pending; that there are no grounds to interfere with the impugned orders of the courts below. In support of his contention he relied on VIJAY KUMAR TALWAR v COMMISSIONER OF INCOME
[3]
TAX, DELHI , CCEC&ST, VISAKHAPATNAM v JOCIL
[4]
LIMITED , UNION OF INDIA v IBRAHIM UDDIN AND
[5]
ANOTHER AND SURAJ LAMP AND INDUSTRIES PRIVATE LIMITED (2) THROUGH DIRECTOR v STATE OF HARYANA AND ANOTHER
[6]
, ALAMELU AMMAL v CHINNASWAMY REDDIAR
[7]
, C.ABDUL SHUKOOR SAHEB v ARJI PAPA RAO (DECEASED) AFTER HIS HEIRS AND LEGAL REPRESENTTIVES AND
[8]
OTHERS OTHERS , MARIMUTHU PILLAI v KRISHNA PILLAI AND
[9]
, JAGADISH VAISHNAV vfARPOS LEADING
[10]
CATEROR AND OTHERS , PALLEPU POLESWARI v
[11]
TAMMISETTY NAGESWARA RAO AND OTHERS , VISHWANATH AGARWAL S/O SITARAM AGARWAL v SAU
[12]
SARLA VISHWANATH AGARWAL , GURVACHAN KAUR AND
[13]
OTHERS v SALIKRAM (DEAD) THROUGH LRS. and KUMAR GONSUSAB AND OTHERS v MIYAN URF BABAN AND
[14]
OTHERS .
14. In VIJAY KUMAR TALWAR’s case (3rd supra), it was held that:
“It is manifest from a bare reading of the Section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the Act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. In Sir Chunilal V. Mehta & Sons, Ltd. Vs. Century Spinning and Manufacturing Co. Ltd.1, a Constitution Bench of this Court, while explaining the import of the said expression, observed that: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." It was further observed that:
Similarly, in Santosh Hazari Vs. Purushottam Tiwari28 (AIR 1962 SC 1314 2) a three judge Bench of this Court observed that:
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact Vijay Kumar Talwar vs Commnr. Of Income Tax, Delhi on 6 December, 2010 (1 (2001) 3 SCC 179 1) arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
15. In IBRAHIM UDDIN AND ANOTHER’S case (5th supra), the Supreme Court held that:
“Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI V S.N.Goyal this Court explained the terms “substantial question of law” and observed as under SCC p.103, para 13) 13. … The word ‘substantial’ prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ‘Substantial questions of law’ means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. .. any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. .. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.”
16. In SURAJ LAMP & INDUSTRIES (p) LTD case (6th supra), wherein it was held that:
“We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.”
17. In ALAMELU AMMAL’s case (7th supra), it was held that:
“After hearing the arguments of both sides and on going through the judgment of the lower appellate court, I find that the learned Judge has not property understood the amended provision of Order 21, Rule 58, C.P.C., and the presumption raised under Tamil Nadu Act 15 of 1976 in the case of alienation during the period of moratorium. Further, the learned Judge, as rightly pointed out by the learned Counsel for the appellant, relied on Rukkumani Animal v. Kamachi Animal , and held that such questions can be agitated only by a separate suit either under Section 53 of the Transfer of Property Act or by resorting to the provisions of the insolvency Act and the same cannot be gone into in these proceedings. The decision relied on by the lower appellate Court in Rukkumani Animal v. Kamachi Ammal , was one rendered prior to the amended Act 104 of 1976. But the learned Judge failed to consider the effect of the amended provision of Order 21, Rule 58, C.P.C., in view of Act 104 of 1976. In Southern Steelmet and Alloys v. B.N. Steel , a Bench of this Court held that "the adjudication referred to under Order 21, Rule 58, C.P.C. (as amended in 1976) is not summary and it is the intention of Legislature under the amended C.P.C., that it should be a decision as if rendered in a regular suit resulting in an appelable decree, the fuller examination of the rights of parties has to be held after giving them adequate opportunity to place all relevant materials before the Court so that the court could ultimately decide and adjudicate on all questions including questions relating to title or interest in the property attached." It is clear (from the ratio laid down in the above said decision that) in view of the amended provisions of Order 21, Rule 58, C.P.C., the question of filing a separate suit is barred and all questions relating to title or interest in the property attached have to be decided and adjudicated only in the claim proceedings and not by a separate suit.
18. In VISHWANATH AGARWAL’s case (12th supra) it was held that:
“…In Major Singh v. Rattan Singh (Dead) by LRs and others 15, it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.
30. In Vidhyadhar v. Manikrao and another( AIR 1999 SC ) it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board & Ors.17.
19. In GURVACHAN KAUR AND OTHERS’S case (13th supra) it was held that:
“It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate Court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent.”
20. As held in Vidhyadhar’s case (supra )concurrent findings of fact arrived at by the Courts below cannot be disturbed in a second appeal unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. Substantial questions of law means not only substantial question of law of general importance, but also substantial question of law arising in a case as between the parties. Any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Learned counsel for the appellant-claim petitioner however, submits that the claim petitioner purchased the property on 28.06.2006 and he claims title through his vendor Tunuguntla Jagan Mohan Rao under agreement of sale-cum-GPA (Ex.P.2)
21. On perusal of Ex.P.2 dated 24.12.2005 the recitals would go to show that P.W.2 T. Jagan Mohan Rao had purchased the property from J.Dr./Krishna Kumari and her sons Kothapalli Sarath Babu, Kothapalli Krishna Mohan, Kothapalli Venu Madhav, that entire sale consideration was paid under the document Ex.P.2. Admittedly there is no mention in Ex.P.2 that possession of E.P. schedule property was delivered to T.Jagan Mohan Rao by J.Dr and her sons. P.W.2 also did not produce any documents about obtaining the possession of the petition schedule property on the other hand P.W.2 categorically deposed that he did not obtain any mutation proceedings in connection with the property purchased by him under Ex.P.2 in the concerned municipality and not paying any electricity consumption charges. The title to an immovable property flows as per the provisions of Sec.54 of Transfer of Property Act and all the parties are governed under this provision. In order to enforce any right in the property a person should have a legally valid title in terms of Sec.54 of the Transfer of Property Act. The right of the petitioner in this case is much dependent upon the title of his vendor. Unless the petitioner’s vendor has got title to the property, he cannot convey it to the petitioner; simply because there is a sale deed in favour of the petitioner that would not confer any right or title in the property, unless his vendor has got title to the property. Thus, in this case the agreement of sale-cum-GPA it is the document on which the petitioner derives title.
22. The petitioner in his evidence as P.W.1 admitted that Kothapalli Krishna Kumari-J.Dr is his “Viyyaparalu” and his son married the daughter of J.Dr. Krishna Kumari in the year 1995. According to the petitioner his vendor T.Jagan Mohan Rao has obtained G.P.A. cum agreement of sale Ex.P.2 from said Jdr-Krishna Kumari and her sons and in turn said property was purchased by him vide Ex.P1. The petitioner categorically admitted in his evidence that he does not know whether the J.Dr. has delivered the possession to his vendor under G.P.A and he did not attend to the registrar office for registration of Ex.P.1. There is no recital in the sale deed as to delivery of possession in respect of the schedule property. Therefore, the contention of the petitioner that the schedule property was delivered to him on 24.12.2005 cannot be accepted. As stated above, the evidence on record also indicates that property was purchased in the year 2005 itself and he has not taken any steps for mutation of the property nor paid any electricity consumption charges in respect of the schedule property and he has not collected any rents from the tenant who occupied the schedule property. Though the petitioner on evidence deposed that he has no talking terms with J.Dr-Krishna Kumari and her husband, the record however reveals that immediately after execution of sale deed on 28.6.2006 from T. Jagan Mohan Rao, he executed rental agreement in favour of his ‘Viyyanka” K.Murahari Rao husband of J.Dr.-Krishna Kumari agreeing to receive Rs.2,500/- per month, which would falsify the statement of the petitioner. Even the petitioner has not examined any of the attestors; and no documentary evidence was placed before the Court by the petitioner stating that Jagan Mohan Rao (P.W.2) who purchased the item nos.1 and 2 of the property had parted with one crore rupees in the said two transactions by filing debit or credit entry in the account. P.W.2 also admitted in his evidence that he is the managing partner of his firm and there is no resolution to purchase the property on behalf of the firm. Though in G.P.A. cum sale agreement it is mentioned that Rs.2,00,000/- was given in advance without any receipt, when a question was put to him as to why he did not obtain a regular sale deed when he alleged to have paid Rs.50,00,000/- P.W.2 categorically admitted that the building may not be useful for him for his business.
P.W.2 on the one hand deposed that he had no talking terms with J.Drs family and entered into alleged rental agreement with the husband of the J.Dr. All the above circumstances would clearly indicate that the alleged sale deeds were appears to have been executed nominally to defraud the large number of creditors in order to defeat the ratable rights of the creditors. On adjudication of the evidence on record, as rightly held by the lower appellate Court, PW.2 could not get any proprietary rights in the property from his vendor. That being the factual position the vendor of the claim petitioner has no title in the property. When he himself had no title the petitioner/appellant cannot claim or acquire any better right. Both the Courts below therefore, came to right conclusion that agreement of sale-cum-GPA cannot confer any title or interest in the property to PW.2, that is to convey the same to PW.1, consequently, the petitioner did not acquire any title in the property by virtue of Ex.P.1 sale deed, though it is registered one. Therefore, it follows that the vendor of the claim petitioner has no title in the property and when he himself had no title, the appellant-petitioner cannot acquire better title than what his vendor had in the property. In my view, the concurrent findings of facts arrived by the Courts below are based on proper appreciation of evidence on record. I therefore, do not see any substantial questions of law in the appeal.
23. The other contention of the appellant that no separate possession need to be given, cannot be accepted as Ex.P.2 is a GPA- cum-agreement of sale and the evidence goes to show that there are tenants in the petition schedule property. Moreover, Ex.P.2 GPA is for consideration of Rs.50,00,000/-. The recitals go to show that the vendor had agreed to sell the property on a bill contract of Rs.50,00,000/- and also received the total consideration amount by way of cheque. Thus this is not merely a power of Attorney and in Ex.P.2 no where it is stated that J.Dr had delivered possession of the property to the GPA either on the date of the agreement of sale or at any time. Ex.P.2 shows that the JDr herself retained possession as is seen from this document; that she authorized PW.2 to deliver possession to the prospective purchaser on her behalf. Thus, the argument of learned counsel for the appellant does not stand to reason in view of the clear recitals in the document. Learned counsel for the respondents submitted that the second respondent/JDr and her family indebted to several creditors amounting to Rs.15 to 17 crores and to screen away the properties beyond the reach of creditors they have brought into existence of the General Power of Attorney-cum-sale a fraudulent transaction to defeat the rights of the creditors.
24. Considering the above circumstances of the case, I am of the view that the Courts below on proper appreciation of entire evidence on record came to correct conclusion and the same needs no interference by this Court. Accordingly, I do not see any merits in this second appeal and the same is dismissed being merit less.
25. It is however, submitted that there were more number of creditors amounting to Rs.15 to Rs.17 crores, therefore the contention of the petitioner that only such portion of the property which is sufficient to realize the decretal amount does not stand consideration. Apart from that according to the respondents the memo dated 30.09.2010 was not filed before the court within the time and it was filed after the auction was conducted. It is also clear that the memo do not contain the name of the court, date of filing or any endorsement and it has been filed after sale was conducted and the presiding officer had no opportunity to pass any order at the time of auction. Therefore, when once the memo was not brought in time, no orders were passed after the auction by the Presiding Officer. Therefore, the presiding officer has rightly not considered the memo and there are no grounds to interfere with the same.
26. For the above reasons and in view of dismissal of the Second Appeal, I do not see any illegality, irregularity or error of jurisdiction in the Civil Revision Petition. Therefore, I do not see any reasons to interfere with the judgment and order passed by the Courts below.
27. In view of the facts and circumstances above, the second appeal and civil revision petition are dismissed. Interim orders granted earlier stands vacated. There shall be no order as to costs.
28. Miscellaneous petitions if any pending in the appeal and revision shall stand closed.
V.SURI APPA RAO,J Dated: 27.06.2014 Sur/kvrm THE HON’BLE SRI JUSTICE V.SURI APPA RAO SECOND APPEAL No. 998 of 2010 and CIVIL REVISION PETITION No. 4552 OF 2010 DATED: 27.06.2014
[1] AIR 1977 SC 615
[2] AIR 1951 SC 280
[3] (2011)1 SCC 673
[4] (2011) 1 SCC 681
[5] (2012)8SCC 148
[6] (2012) 1 SCC656
[7] AIR 1989 MADRAS 311
[8] AIR 1963 SC 1150
[9] AIR 1929 MADRAS 704
[10] 2002(5)ALD 72
[11] 2012(1) ALD 442
[12] (2012)7 SCC 288
[13] (2010) 15 SCC 530
[14] 2008(5)ALD 72 (SC)