On the auspicious occasion of Mahamana Pt. Madan Mohan Malaviyaji’s 152 nd Birth Anniversary, Law School, Banaras Hindu University, Varanasi (U.P.) is going to organize a National Moot Court Competition dated: 28th Feb - 1st March, 2015

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Venue:

Law School

B.H.U. (U.P.)

MAHAMANA MALAVIYA

National Moot Court Competition - 2015

Law School, BHU, Varanasi

28th Feb.-1st March, 2015

RULES AND REGULATIONS

PART-I

TITLE, DATE AND VENUE

Sec. (1) The Mahamana Malaviya National Moot Court Competition 2014, shall be held on 28t Feb.h-1st March, 2015

Venue: Law School, B.H.U., Varanasi, Uttar Pradesh. Prof. B.N. Pandey, HEAD & DEAN, will be the National Administrator.

PART-II LANGUAGE

Sec. (2) The competition shall be held only in the English Language.

PART-III

ELIGIBILITY & TEAM-COMPOSITION

Sec. (3) The competition is applicable for those students who are pursuing LL.B. Three year OR Five year course from any college/institution/university within the territory of the India.

Sec. (4) The team composition, for the competition, shall comprise of either TWO members (being designated as Speakers) OR THREE members (TWO of them shall be designated as Speakers and ONE Researcher).

Provided that a team may however consist of only TWO members in which case, no member shall be designated as Researcher.

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Sec. (5) Any additional member, as mentioned under Sec.4, will not be entitled to local hospitality. He shall also be not entitled to any kind of prize/ award in the competition.

Note (1):- No TEAM COACH shall accompany the participating team in the competition.

Note (2):- if any speaker OR researcher is found taking assistance of any kind of unfair means, the team shall stand disqualified from the competition at any stage.

Sec. (6) The Researcher may be permitted to argue as Speaker in case of illness OR any unforeseen event, the permission of the National Administrator in such case shall be mandatory.

Sec. (7) At any stage of competition Member-Swapping is strictly prohibited (that is any member of a team is requested by another team to plead on their behalf)

PART-IV

ACCOMODATION

Sec. (8) The accommodation shall be provided to the participating teams within the University Campus preferably. The accommodation facility shall be restricted to only Three Members of a particular team, which in any case shall not change. However, no accommodation facility will be rendered to the teams which are within the vicinity of 100K.M. from the Law School B.H.U.

The participating teams are supposed to intimate the details of their arrival and departure as mentioned in Annexure-B.

PART-VREGISTRATION

Sec. (9) The registration of the participating teams, for the Mahamana Malaviya National Moot Court Competition , 2015, shall be on the priority basis, that is, receiving the consent letters of the teams in the order of sending first. The preference of registering the teams shall be in the aforesaid manner

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only. However, the discretion of Dean, Law School, B.H.U., shall be final. The participating teams are kindly requested to send the duly filled registration form latest by 20th January, 2015 and e-mail at mcclawschool.bhu@gmail.com. The maximum number of teams will not exceed 24 (twenty four). The first 24 teams, who have sent their duly filled registration forms, shall be deemed to have been registered for the moot court competition. No alteration shall be made once the teams are registered, the intimation of which shall be confirmed by the moot court committee to the teams registered.

Sec. (10) The teams who are sending through hard copy, the last date for sending the registered form shall be 20th January, 2015.

Sec. (11) The date for accepting registration forms either by post or by e-mail shall not exceed the stipulated date as mentioned aforesaid.

PART-VI MODE OF PAYMENT

Sec. (12) The registration fees for the MOOT COURT COMPTETION shall be payable at State Bank of India, B.H.U. branch, Varanasi in the favour of Mahamana Malaviya National Moot Court Competition, Account No. 32750120587, the mode of payment can be either by way of cheque or bank draft of Rs. 1500.00 (one thousand five hundred rupees only). The cheque/draft must reach along with the registration form at the requisite address. Any delays may kindly be intimated to the Dean, Law School, BHU or mail at mcclawschool.bhu@gmail.com.

PART-VII DRESS CODE

Sec.(13) The members of participating teams in the competition are mandatorily required to dressed up in their formal wear. Dress code shall be Western formals for Gentlemen and Western or Indian formals for Ladies. The teams should make their own provisions to comply with the dress code of the competition.

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Note: Any clarifications regarding the moot court competition shall be adhered by the National Administrator in consultation with the moot court committee, the decision of which shall be final. Any clarifications may kindly be sent at mcclawschool.bhu@gmail.com or may contact at +91-9450244368 (During Office hour only).

PART-VIII

STRUCTURE OF THE COMPETITION

Sec. (14) The formal commencement of the competition shall commence from 28thFebuarary, 2015 with the inauguration and shall conclude with the Valedictory function on 1st March, 2015.

However, the teams are supposed to arrive One Day prior to the commencement of the competition, i.e. on 27th February, 2015. The teams are, in this regard mandatorily comply with Annexure-B of the Rules.

The structure of the competition is classified as herein under mentioned:

1. The Preliminary Rounds 2. The Quarter Final Rounds 3. The Semi Final Rounds4. The Final Round

Note: All rounds, as mentioned above, shall be on the basis of Knock-Out.

Sec. (15) Preliminary Rounds

Sec. (15)(1) The Preliminary rounds shall comprise of Two Rounds of oral arguments subject to the allotment of team codes. In the preliminary rounds, each team shall have to argue twice, once as a petitioner and the other as a respondent. The preliminary rounds shall take place on 28th February, 2015, immediately after the completion of the Inauguration Function that is 11 a.m. sharp. The teams shall be escorted to their respective court rooms on the basis of their draw of lots. The draw of lots shall be done in presence of all the participating team on 27th February, 2015 by the Moot Court Committee, after the Researcher Test.

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Sec. (15) (2) Once the team code and draw of lots is been disclosed to the teams, it shall be the duty of the respective teams as not to disclose their identity. The draw of lots shall comprise of informing the teams as to against which team they would be arguing in the preliminary rounds. On the same day i.e 27th

February, 2015 the “Researcher Test” shall take place at 6 P.M. Only the Researcher, as indicated in the team registration, shall take the researcher test, the speaker can only take the researcher test if the team comprises of two speakers only.

Note: No two Teams will argue against each other more than once in the Preliminary Rounds.

Sec. (15) (3) The winners of the preliminary rounds shall, i.e. total eight teams (8 teams) shall qualify for the Quarter Final Rounds. The Quarter Final Rounds shall take place on 28th February. The Teams qualifying to the Quarter Finals shall be on the basis of Two Rounds of Oral arguments of the Preliminary Rounds.

Sec. 15(4) The Semi final rounds shall comprise of Four teams. The Semi Final rounds shall take place on 1st March, 2015. The winner of the Quarter final rounds shall be declared qualified for the Semi Final Rounds.

Sec. 15 (5) The Final Rounds shall take place on 1st March, 2015. The two teams who stand declared as winners of the Semi Final Rounds shall qualify for the Final Rounds.

Proviso: In case of evaluation of All Rounds the Memorial Marks shall not be included to decide the merit.

Proviso: In case a tie takes place in the Quarter Final, Semi Final or Final Rounds, in that case, the marks of the Preliminary Rounds shall be the basis for deciding the winner.

However, in the Preliminary Rounds, in case the Round Total of the two teams is the same, the team with higher Memorial marks will be credited with a win.

Sec. 15 (6) Evaluation and Time Allocation for All Rounds

i) Preliminary Rounds: 30 minutes for each team

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ii) Quarter Final Rounds: 45 minutes for each teamiii) Semi Final Rounds: 45 minutes for each teamiv) Final Rounds: 60 minutes for each team

PART- IX TEAM CODING

Sec. (16) The teams, participating in the competition, shall be allotted a TEAM CODE subsequent to the conformation of their registration process. It is to be noted, after the allocation of the team code, to the respective teams, shall be subject to strict confidentiality, the violation which may result in the disqualification of such team. The decision of the Moot Court Committee and National Administrator shall be final in this regard.

PART-X

MEMORIAL RULESSec.(17)(1) All teams shall submit Memorials from both sides (Plaintiffs and

Defendants) .

Sec.(17)(2) Requirements of the Memorials All teams must submit typed Memorials for both the sides

fulfilling the following specifications: The Memorial must contain the following parts:

a. Cover Page b. Table of Contents. c. Index of Authorities. d. Statement of Jurisdiction. e. Statement of Facts. f. Issues Involved. g. Summary of Arguments. h. Body of Arguments/ Arguments Advanced. i. Prayer

Sec.(17)(3) The Memorial Cover Page should follow the following colour scheme - Blue for the Plaintiff and Red for the Defendant. Use of decorative cover pages will attract negative marking. The teams are advised to use as far as possible light shades for their cover pages. The Cover page should contain the team code in the top right hand corner followed by the letter ‘P’

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indicating a Plaintiff memorial or the letter ‘D’ indicating a Defendant memorial.

Sec.(17)(4) The Statement of Facts shall not be argumentative. Any argumentative Statement of Facts will attract negative marking. It may however seek to draw necessary inferences from the Facts provided. The Statement of Facts shall not contain any footnotes.

Sec.(17)(5) The Summary of the Arguments should consist of a substantive summary of the Arguments of the Memorial, rather than a simple reproduction of the headings contained in the Arguments. The Summary of Arguments should not contain footnotes.

Sec.(17)(6) Length of the Memorial

a) The Statement of Facts shall not be more than 1200 words including headings.

b) The Summary of Arguments shall not be more than 1200 words including headings.

c) The Body of Arguments/ Arguments Advanced shall not be more than 9000 words including all headings, footnotes, headers and footers.

Sec.(17(7) The Memorials should be typed on ‘.doc’ documents compatible with Microsoft Word 2003 (or higher) only. The page size should be A4; Font shall be ‘Times New Roman’ throughout the document with font size 12 (including headings), 1.5 lines spacing & 1 Inch margin on each side; Footnotes shall be in ‘Times New Roman’ with Font Size 10 and 1.0 spacing. The Participants may use uniform page borders.

Sec.(17)(8) The Memorials shall use The Bluebook: A Uniform System of Citation, on for formatting of all cited authorities.

Sec.(17)(9) The Memorial should be spiral bound only. Any other form of binding will attract negative marking.

Sec.(17)(10) No amendment of the Memorials will be permitted after submission.

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Sec.(17)(11) The identity of the team (except the Team Code) or the names of the participants shall not be disclosed in any part of memorials. Doing so attracts disqualification straight away.

Sec.(17)(12) Marking criteria for the Memorials Each Memorial will be marked out of a total of 100 marks. There will be separate marking for the Plaintiff and Defendant Memorials. The following will be the Marking Criteria and the allocation of marks to each category: S. No. Marking Criteria Marks Allocated

1. Use of Facts and Law 20 2. Proper & Articulate Analysis 20 3. Research 20 4. Formatting and Citation 20 5. Organisation of the Memorial 10 6. Grammar and Style 10

___ Total 100

Sec.(18) Submission of Memorials

Sec.(18)(1) The teams should e-mail one copy of both Memorials attached independently in the same mail to mcclawschool.bhu@gmail.com on or before 23:59 hours, 07th Feburary , 2015. The soft copy should be in ‘.doc’ format only and should be compatible with Microsoft Word 2003 (or higher). The file name should be the Team code followed by the letters ‘P’ or ‘D’ depending on which side the memorial is from. For e.g., if the memorial belongs to Team 1234 and is a Defendant memorial, the file name should be 1234D.

Sec.(18)(2) Four hard copies of each memorial shall be submitted to the college via courier or R.P.A.D on or before 15th February, 2015.

PART-XI

AWARDS

Sec. (19) The competition embraces following awards:

[i] Winners Trophy

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[ii] Runners-Up Trophy

[iii] Best Memorial

[iv] Best Researcher

[v] Best Speaker i.e. Male and Female both.

The National Administrator & Moot Court Committee may also grant any other Prize/Awards to any participants/teams in the competition.

PART- XII

GENERAL CLAUSES

Sec.20 (1)The “Competition” means Mahamana Malaviya National Moot Court Competition, April, 2015.

Sec. 20(2) “Competition Rules” shall mean and refer to the official rules of the competition formulated by the MCC (The rules can be amended form time to time).

Sec. 20 (3) “Clarification” means any clarification, regarding the competition shall be subject to the clarification by the moot court committee OR the National Administrator.

Sec. 20 (4) “MCC” means Moot Court Committee.

Sec. 20 (5) “National Administrator” means The Dean, Law School, Banaras Hindu University,

Sec. 20(6) “School” means Law School, Banaras Hindu University, Varanasi.

Sec. 20 (7) “Rebuttals” shall mean and refer to the set of arguments/challenges that a petitioner shall raise, at the end of the main pleadings, of the counsels for the respondent. This shall be replied to, in the appropriate manner, by the respondent.

Sec. 20 (8) “Unfair Means” means any participant/teams violating any of the provisions of the competition rules shall be deemed to be disqualified.

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ANNEXURE-A

Registration form (Please fill in capital letters)

Undertaking

1. We hereby state that our participation complies with the rules and regulations of the competition.

2. We Certify that the materials submitted/to be submitted are prepared by us and agree to indemnify the organizers, i.e. Law Faculty, Banaras Hindu University for any claim or dispute arising out of the further use and exhibition of these materials.

(All particulars must be given)

Name of the Institution: Email:Phone:

Seal & SignatureHead of the Institution

Name of the team members Signature Speaker No. 1.

1. Speaker No. 1.

2. Speaker No. 2.

3. Researcher

Completed form should reach Administrator by 15th Feburary, 2015 (attach scanned copy by email)At e-mail: mcclawschool.bhu@gmail.com in reference to Mahamana Malaviya National Moot Court Competition, 2015.Postal address: Law school, Banaras Hindu University, Varanasi, Uttar Pradesh. 221005.

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ANNEXURE - B

TRAVEL PLAN

1. Name of Institution -

2. Arrival Details -

a. Mode of Arrival: Train / Air / Bus _____________________________

b. Train No./Bus No./Flight No. ________________________________

c. Estimated Time of Arrival ____________________________________

3. Departure Details -

a. Mode of Arrival: Train / Air / Bus _____________________________

b. Train No./Bus No./Flight No. ________________________________

c. Estimated Time of Departure__________________________________

4. Any other details:

__________________________________________________________________

__________

__________________________________________________________________

__________

__________________________________________________________________

__________

__________________________________________________________________

_________

(Signature & seal of the Head of the Institution)

Note: This Travel Form must reach Law School, B.H.U. on or before 15th

Feburary, 2015 at 5.30 pm.

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MOOT PROBLEM

That the late Shri Vijay Kalyan along with his sons and daughters as coparceners was in ownership and possession of large plots of land, one of which was the Suit Schedule Property bearing No. 86 in Survey Nos. 38, 39, 40 and 41 admeasuring 222 sq. yards or 185.5 Sq. mts., situated at Chandanagar Village, Serilingampally Municipality, R.R. District in Andhra Pradesh.

That during the life time Shri Vijay Kalyan , his grandson Veer Kalyan S/o. Shri. Vikram Kalyan filed Suit O.S., No. 5060/1987 on the file of the VI Asst. Judge, City Civil Court, Hyderabad for partition of the said joint family properties and the said suit was filed against Shri Vijay Kalyan and his three sons and on the death of Shri Vijay Kalyan on 25.01.1989 his wife and two daughters were impleaded as Defendants in the said Suit as a Legal Representatives of the late Shri Vijay Kalyan. It is pertinent to note that the Suit Schedule Property in the present Petition was also among the Suit Schedule Properties in the above mentioned Partition Suit .

That after an enquiry and an elaborate trial, the Court in the above mentioned Suit O. S. No. 5060 of 1987 passed a Preliminary Decree on 04.09.1992 by fixing the shares of the Plaintiffs and the defendants in the said suit. According to the said decree the parties of the 1st to 3rd part here declared were entitled to 1/4th share each in the plaint schedule properties and parties of the 4th to 6th part were declared entitled to 1/12th share of each and out of the 1/4th share of the party of the first part, the plaintiff in O.S. No. 5060 of 1987 was entitled to 1/4 th share i.e., 1/16th

share in the total plaint schedule properties.

That as the properties in dispute in the above mentioned Suit consisted of several survey numbers and were situated in different villages and the Final Decree proceedings had not yet been initiated for partition of the said properties by metes and bounds and as it also involved the survey of all the lands for division by metes and bounds and as it was taking time, the final decree proceedings were consequently getting delayed.

Therefore, a Family Settlement deed dated 20.10.1994 was drawn by the parties i.e., the wife and children of the late Shri Vijay Kalyan and after discussing at length arrived at a common understanding that pending the Final Decree proceedings it was agreed to allocate and divide among themselves the 59 plots of various dimensions forming part of Sy. Nos. 38, 39, 40 and 41 of Chandanagar Village Layout of which was already approved by the Grampanchayat and which

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were duly demarcated, indicating the boundaries of each part of the land and they are easily available for division by metes and bounds.

Therefore, all the parties by mutual consent agreed to divide the said 59 plots into 6 lots keeping in view the share of each party and the said 59 plots were mutually divided amongst themselves according to each share as per the preliminary decree dated 04-09-1992 in O.S.No 5060 of 1987. The Suit Schedule Property involved in the present was as per the Family Settlement allotted to Vikram Kalyan S/o. The late Shri Vijay Kalyan.

That Vikram Kalyan S/o. Late Vijay Kalyan sold the Suit Schedule Property to U. Veer Shetty vide Registered Sale Deed bearing No.6820 of 1995 dated 31.05.1995 at Hyderabad for a consideration of Rs.66,600/- ( Rupees Sixty Six Thousand Six Hundred only) and that the Petitioner herein agreed to purchase the Suit Schedule Property for the said consideration. There after he has been in absolute and continuous ownership and possession of the suit schedule property since the date of purchase 31.05.1995 vide Registered Sale Deed bearing No.6820 of 1995 dated 31.05.1995 and he has been paying property tax and various other taxes on the said plot of land. That Mr Sekhar Sharma in pursuance of his intention to build a house on the Suit Schedule Property for his residence on 29.05.1997 applied and was sanctioned a loan of Rs.2,00,000/- (Two Lakhs Only) by Vysya Bank Housing Finance Ltd.

That on 20.06.1997 one Manish Sisodia filed a Suit for declaration against Sekhar Sharma being O.S.No. 420 of 1997 in the Court of I Addl. Subordinate Judge, Ranga Reddy District stating that on 12.04.1983 late Shri Vijay Kalyan allegedly sold the Suit Schedule Property to vide Registered Sale Deed dated 12.04.1983 for a total consideration of Rs.11,100/- (Eleven thousand one hundred only) and inter-alia prayed as follows :

i. Pass a decree in favour of the plaintiff and against the Defendant ordering the sale deed bearing document No. 6820/95 executed by Vikram Kalyan and 3 others of District Registrar, Ranga Reddy District dated 31.5.1995 as illegal and void ab initio and unenforceable in the eye of law;

ii. Direct the defendant, his legal heirs, successors, assignees, transferees to deliver the physical, vacant and peaceful possession of the suit schedule property to the Plaintiff:

iii. To grant mesne profits on damage @ Rs.500/- per month from 6.6.21995 till 5.9.1997 amounting to Rs.12,000/- and further continue to pay the damages @ Rs.500/- per month from 6.6.1997 till the date of delivery of possession for enjoying the schedule property as trespassers:

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iv. The defendant may be ordered to pay the costs of the suit; and Pass such other order or orders as deemed fit and proper in the circumstances of the costs.

That Manish Sisodia further contended that he purchased the Suit Schedule Property from one Shri Vijay Kalyan , original owner under a regd. Sale deed dated 12.04.1983 and since then he was in the possession of the property. After purchasing of the property he mortgaged and obtained educational loan facility from Andhra Bank, Koti Branch for sending his son M.S. Sashikant to America for higher education and the original Sale Deed of the Plaintiff is in the above bank therefore, he filed the Certified Copy of the Sale Deed. Due to financial constraints, the Plaintiff could not undertake any construction activity in the purchased Plot No. 86, therefore kept it vacant. He further contended that since the plaintiff/ Respondent is the prior purchaser and obtained possession of the property from the original owner, the subsequent Sale Deed of the Defendant/ Petitioner is not valid and without alternative.

Mr. Sekhar Sharma filed his written statement in O. S. No. 420 of 1997 before the Court of I Addl. Subordinate Judge, Ranga Reddy District at Saroor nagar wherein the Petitioner herein/Defendant contended as follows:

i. The Petitioner/Defendant denied the sale deed of the plaintiff dated 12.04.1993 and it is the positive case of this Defendant that the schedule property is ancestral joint Hindu Family properties of Vijay Kalyan and his sons and daughters as such if any Sale Deed executed by Vijay Kalyan in favour of the plaintiff is not valid without the consent of other coparceners.

ii. The Defendant is in continuous possession to the knowledge of others and on verification of the Defendant, the suit property is free from all encumbrances.

iii. The Defendant applied for construction permission to construct a house on the purchased plot and accordingly, the Municipality sanctioned permissions as per proceedings dated 30.07.1996 and to meet the construction expenses this defendant obtained loan of Rs.2,00,000/- from the Vyas Bank Housing Financing Ltd., Troop Bazar, Hyderabad and completed the constructions as per the Plan approved by the Municipality by spending more than Rs.5,00,000/-.

The I. Addl. Senior Civil Judge, R.R. District, Hyderabad on 30.06.2005 passed the Judgment and Decree in O.S. No. 420 of 1997 inter-alia holding as follows:

i. The Sale deed dated 31.05.1995 executed by Vikram Kalyan and his two sons and daughter is illegal, void and unenforceable.

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ii.The Plaintiff is entitled to recovery of the possession of the plaint schedule property

iii. The Plaintiff is not entitled for any damages or mesne profits as claimed. The suit is decreed without cost as prayed for that the sale deed of the defendant dated 31.05.1995 is void and enforceable in the eye of law and the plaintiff is entitled to recover the possession.

A true copy of the Judgment and Decree dated 30.06.2005 is being filed herewith marked as Annexure P-1

Mr Sekhar Sharma filed an appeal on 23.08.2005 filed A.S. No. 119 of 2005 in the Court of III Additional District Judge, (FTC), Ranga Reddy District against the Judgment and Decree passed in O.S. No. 420 of 1997 on the file of I Addl. Senior Civil Judge, R.R. District LB Nagar dated 30.06.2005 on the following grounds:

The Court of III Additional District Judge, (FTC), Ranga Reddy District on 15.07.2011 passed the final Judgment in A.S. No. 119 of 2005 dismissing the Appeal of the Petitioner herein and thereby confirming the Judgment and Decree in O.S. No. 420 of 1997 dated 30.06.2005.

A true copy of the Judgment of the III Additional District Judge, (FTC), Ranga Reddy District dated 15.07.2014 in A.S. No.119 of 2005 is being filed herewith marked as Annexure P-2

That unable to bear the loss of his whole life time savings Mr. Sekhar Sharma on hearing the news of dismissal of his case suffered a major heart attack and took almost about a year to recover. Thereafter recovering he filed S.A. (SR) No. 28412 of 2012 before the Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh challenging the Judgment dated 15.07.2011 in A.S. No. 119 of 2005 of the Court of III Additional District Judge, (FTC), Ranga Reddy District. The Petitioner herein also filed S.A.M.P. No.1777 of 2012, being a Petition for the Condonation of the delay of 231 day in filing S.A. (SR) No. 28412 of 2012.

The Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh vide his Order dated 21.08.2014 (Impugned Order) dismissed S.A.M.P.No.1777 of 2012 for Condonation of delay and as a consequence also dismissed S.A. (SR) No. 28412 of 2012 filed by Mr. Sekhar Sharma herein without considering the case of the Petitioner herein on merits and dismissed the S.A. (SR) No. 28412 of 2012 filed by the Petitioner herein purely on the ground of Delay.

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That Mr.Sekhar Sharma Filed Special Leave Petition 1 of 2015 challenging the impugned orders wherein the Apex court was pleased to Issue notice and post the matter for final hearing after filing of counter affidavit and rejoinder and Sur- rejoinder if required.

Annexure -1

IN THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE: R.R. DISTRICT AT L.B. NAGAR: HYDERABAD

PRESENT: SRI. M. SANTHA RAJU, B.SC. B. L. ADDL. SENIOR CIVIL JUDGE, RANGAREDDY DISTRICT

DATED THIS THE 30TH DAY OF JUNE, 2005

O.S. NO. 420 OF 1997

BETWEEN:

Manish Sisodia …Plaintiff

And

Sekhar Sharma …Defendant

This suit is coming before me for hearing in the presence of Sri M. Sridhar Murthy, Counsel for the Plaintiff and of Sri. K.S.N. Reddy Counsel for the Defendant and upon perusal of material papers on record and the matter having stood over for consideration till this day, this court made the following:

JUDGMENT

The Plaintiff filed the suit against the defendant for declaration to declare that the sale deed bearing No.6820 of 95 dt. 31.5.95 executed by Vikram Kalyan and 3 others in favour of the Defendant is illegal and void ab initio and unenforceable in the eye of law and direct and Defendant and his legal heirs and any other persons to deliver the physical and peaceful possession of the property to the plaintiff and also grant mesne profits or damages at the rate of Rs.500/- per month from 6.6.95 till 5.6.97 amounting to Rs.18,000/- and future mesne profits from the date of the suit till the date of recovery of possession in respect of the schedule property plot No.86 admeasuring 222 sq. yds in S. Nos. 38, 39, 40 and 41 of Chandangar village.

The case of the plaintiff that he purchased the schedule property from one Shri Vijay Kalyan , original owner under a regd. Sale deed dt. 12.4.83 and since then he was in the possession of the property. After purchases of the property he mortgaged and obtained educational loan facility from Andhra Bank, Koti Branch

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for sending his son M.S. Sashikant to America for higher education and the original sale deed of the plaintiff is in the above bank therefore, he filed the CC of the sale deed. Due to financial constraints, the Plaintiff could not undertake any construction activity in the purchased plot No. 86, therefore kept vacant. In the month of May 1997, the close friend of the plaintiff informed him that some constructive activities are taken up by the Defendant and immediately the Plaintiff visited the property and questioned the Defendant about the construction, but he refuse to stop the construction and also produced no document to show this title. Immediately, to know the rights claimed by the Defendant, the Plaintiff obtained Encumbrance Certificate and to the surprise of the plaintiff that Vikram Kalyan and other executed a reg. sale deed in favour of the Defendant on 31.5.95. On that the Plaintiff approached the Serilingampally Municipality where the schedule property is located within the territorial jurisdiction of the above Municipality with a request to stop the defendant to proceed further construction. Though B. Sailaja, daughter of Vikram Kalyan were minor by then no permission was obtained from District Court and then Hindu Minority and Guardianship Act. Therefore the sale deed is void and ab initio and not properly executed. Even there is no mention in the sale deed of the Defendant the flow of the title and got his vendors. Since, the plaintiff is the prior purchaser and obtained possession of the property from the original owner, the subsequent sale deed of the Defendant is not valid and without alternative, the Plaintiff filed this suit.

2. The defendant filed Statement denying the sale deed of the plaintiff dt. 12.4.93 and it is the positive case of this Defendant that the schedule property is ancestral joint Hindu Family properties of Vijay Kalyan and his sons and daughters as such if any sale deed executed by Vijay Kalyan in favour of the plaintiff is not valid without the consent of other coparceners. This Defendant is not aware whether the Plaintiff obtained educational loan for his son after purchase of the property under the obtained disputed sale deed. The Defendant is in continuous possession to the knowledge of others and on verification of the Defendant, the suit property is free from all encumbrances. In the case of co-parcenery, joint Hindu family nagar or kartha of the co-parcenery family can represent the minor and execute the sale deed. The Defendant is in possession of the property for more than the statutory period of 12 years, therefore, the plaintiff over the plaint schedule property were extinguished due to lapse of time, therefore, the plaintiff has no right to seek the relief of cancellation, of sale deed of this defendant. The Defendant applied for construction permission to construct a house on the purchased plot and accordingly, the Municipality sanctioned permissions as per proceedings dt. 30.7.96 and to meet the construction expenses this defendant obtained loan of Rs.2,00,000/- from the Vysya Bank Housing Financing Ltd., Troop Bazar,

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Hyderabad and completed the constructions as per the Plan approved by the Municipality by spending more than Rs.5,00,000/-. Therefore, the suit claims is also barred by limitation and dismiss the suit.

3. On the basis of the above proceedings, the following issues were framed for trial.

i. Whether the Plaintiff is entitled to declaration of the sale deed dt. 31.5.95 executed by Vikram Kalyan and 3 others is illegal void and unforceable?

ii. Whether the Plaintiff is entitled for recovery of possession of the schedule property?

iii. Whether the plaintiff is entitled to mesne profits as prayed for? iv. To what relief?

4. On behalf of the Plaintiff, the Plaintiff himself examined, as PW1. One more witness examined as PW2 and marked Ex.A.1 to A12. On behalf of the Defendant, the Defendant examined as Dw.1 and 2 more witnesses were examined as DWs 2 and 3 and marked Ex.B1 to B7.

1. Issue No.1: The positive case of the plaintiff that he purchased plot No. 86 from Vijay Kalyan, the original owner. Ex.A.1 is CC of sale deed dt. 12.4.83 for total consideration of Rs.1110/- and Ex.A5 is the original sale deed corresponding to Ex.A.1 and the Plaintiff also paid house tax and also tax to the Revenue Dept., after his purchase and obtained construction permission from the Grampanchayat under Ex.A8 in the year 1994 by submitting a plan under Ex.A9. On the other hand, the Defendant is relying on Ex.B1 sale deed which is now in dispute and main contention between the parties is that Vikram Kalyan, son of Vijay Kalyan, the vendor of the plaintiff and the sons and daughters of Vikram Kalyan jointly sold the same schedule property in the year 1995 for a consideration of Rs.66,600/- and since then he is in possession of the property and obtained construction permission under Ex.B2 dt. 30.3.96 by submitting a plan and the Municipality permitted the Defendant to construct a house. In order to proceed with the constructions and to complete the same this defendant obtained loan from Vysya Bank and to show the same, Ex.B3 filed by the defendant that the Bank sanctioned Rs.2,00,000/- loan and he is paying tax to the concerned Municipality under Ex.B5 to B7.

In this connection the ld. Counsel for the Plaintiff draw the attention of the Court that the Defendant is claiming that the schedule property is the

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ancestral joint Hindu Family property, is the ancestral joint Hindu Family property, therefore, Vijay Kalyan alone has no right to sell the property to the plaintiff under Ex.A.1 corresponding to Ex.A5. Therefore, the burden lies on the Defendant to show that the schedule property is ancestral property and the vendors of the Defendants also share-holders of the property. On the other hand, the vendor of the plaintiff represented to the plaintiff that he is the absolute owner of the property and verifying all the facts in respect of the property, the plaintiff purchased the property and Vikram Kalyan one of the vendors of the Defendant is the attestor of Ex.A5 original sale deed of the Plaintiff and the vendor of the Defendant knows that the property was already sold but in collusion between Vikram Kalyan and Defendant Ex.B1 was brought into existence and the Defendant encroached the property without the knowledge of the Plaintiff and started construction.

The Defendant taken a plea that Vijay Kalyan was died prior to Ex.A5, dt. 2.4.1983 and Vikram Kalyan was not the attestor of Ex.A5. On the other hand to support the case of the plaintiff besides the evidence of plaintiff, the plaintiff examined PW2, who acted as mediator and identified the Plot No. 86 and he recommended Plot No. 86 to purchase the same by the Plaintiff. On the other hand, PW.1, denied the suggestions that Vikram Kalyan never signed on Ex.A1 corresponding to Ex.A5, the original sale deed. Admittedly, the same suggestion was not put to PW1 that Vikram Kalyan never attested Ex.A5, the original sale deed. Admittedly, the same suggestion was not put to PW.1 that Vikram Kalyan never attested Ex.A5, the original sale deed. Admittedly the same suggestion was not put to PW 1 that Vikram Kalyan never attested Ex.A5 original sale deed, but PW.1 explained that after verification of the pahanies pertaining to schedule property, he satisfied and also he got acquainted with Vijay Kalyan through mediators including PW2, he accepted for purchase of the property. The Ld. Counsel for Defendant high lightened the admission made by PW1 that he was not present at the time of registration but it is not a material fact. Since Ram Chandra Reddy was executed a Sale deed in favour of the plaintiff, his presence is required before the Registrar and it is natural to expect the presence of the vendee also. However, the mere admission of PW1 that he was not present at the time of registration is not a ground to say that Ex.A1 sale deed is not a valid piece of document.

Admittedly, neither the plaintiff nor the Defendant filed the death certificate of Vijay Kalyan and Vikram Kalyan died 3 or 4 years back as admitted by DW1 in his evidence. Therefore, the Defendant lost the opportunity to examine Vikram Kalyan to admit or deny his signature on

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Ex.A5 and also the signature of Vijay Kalyan. On the other hand his sons vendors 2 and 3 of Ex.B1 are majors by then and they are available. Therefore the Defendant is at liberty to examine them as witnesses either to identify the signature or Vikram Kalyan or to speak the death of Vijay Kalyan being their grand-father even prior to Ex.A5. But the same is not done by the Defendant only examined DW2 and DW3 who are also purchased some house plots in the suit survey numbers under regd. Sale deeds. Therein DW2 is the person purchased plot Nos. 93 and 94 from Vikram Kalyan but neither DW2 nor DW3 filed their sale deeds to prove that they purchased Plot No. 87, 93 and 94. However, both the witnesses admitted that Vijay Kalyan was died.

The plaintiff filed Encumberance Certificate under Ex.A2 for 3 years from 1.6.95 to 15.6.97 and on the other hand Ex. B1 is dated 31.5.95 and by then Ex.B1 was executed by Vikram Kalyan prio to 1.6.95. Ex.B10 is the Encumberance Certificates for a period of 1.1.82 to 27.6.95 whereunder only the names of Vijay Kalyan and Plaintiff reflected as vendor and vendee of schedule property in the year 1983 under the regd. Sale deed. Even the Defendant also filed Encumberance Certificate under Ex.B4 for 2 years, from 19.2.96 to 9.7.97 which is showing NIL encumberance. Admittedly after Ex.B1 there are no sales in respect of the schedule property as admitted by both the parties.

The plaintiff also not chosen to examine another attestor by name Mahadev. When once it is the case of the plaintiff that Vikram Kalyan was one of the attestor, who was no more and as per the admission of DW 1 he was died after filing of the suit. When once the Vikram Kalyan family executed Ex.B1 in favour of the Plaintiff it the plaintiff intends to examine the other family members of Vikram Kalyan, no useful purpose will be served but it is more important that advantage to the case of the Defendant to speak that their grandfather was died much prior to ex.A5. In this connection the ld. Counsel for plaintiff draw the attention of the court and also Sec. 73 of Indian Evidence Act to compare the signature of Vikram Kalyan on Ex.B1 with Ex.A1 that both are very much similar that Vikram Kalyan is the person attested Ex.A5. Once Vikram Kalyan one of the attestor of Ex.A5, it is in his knowledge that his father sold the schedule property to plaintiff. Therefore, the sale deed executed by Vikram Kalyan including his family members is not valid.

The Defendant not chosen to examine Veerender and Ashok who are the sons of Vikram Kalyan or his daughter Sailaja and also attestors of Ex.B1, as contended by the ld. Counsel for the plaintiff under Section 73 of

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Indian Evidence Act the court can compare the signature of disputed and admitted them though there are authorities that the court cannot play any role of expert to compare the signature. On the other hand, considering the facts and circumstances of the case and after comparing the signatures of Vikram Kalyan in the column of attestor of Ex.A5 and the signature of the Vikram Kalyan on all the pages of Ex.B1 are very much similar to the naked eye including the plan appended to Ex.A5. Once Vikram Kalyan attested Ex.A5 original document, without hesitation, it can be said that Vijay Kalyan his father sold the schedule property to plaintiff with the knowledge of Vikram Kalyan. Therefore, Ex.A5 is a valid document.

The Plaintiff also filed documents to prove that he obtained construction permission from the then Grampanchayat under Ex.A9 to A8 dt. 9.1.94 and submitted a plan under Ex.A9 which is approved by the Grampanchayat, Chandanagar pertaining the plaintiff to construct a house in Plot No. 86 within a period of 12 months from dt. 9.1.84 but the plaintiff failed to proceed the construction, for that he explained that due to paucity of funds, he could not proceed the construction. The Defendant also filed Ex.B2 construction permission dt. 30.6.96 that the Municipality, Serilingpally permitted the Defendant to construct a house on Plot No. 86 and also approved the plan submitted by the Defendant. To take up the construction the Defendant also obtained loan from Vysya Bank Housing Finance Ltd.

According to Plaintiff his friend Parvatha Rao informed him that in the month of May, 1977 that Defendant was making construction on the suit plot therefore, the questioned and Defendant by visiting the suit plot and also submitted an application to Serilingampally Municipality under Ex.A3 dt. 16.6.97. On the other hand, the Plaintiff admitted that he filed the suit after 12 years of purchasing of the property. But the Defendant taken a plea that there is no action on the part of the plaintiff for statutory period of 12 years, therefore, he is not entitled for any relief. According to plaintiff the property was purchased in the year 1983 and the sale deed Ex.B1 was for the year 1995 about 12 years and for the first time the plaintiff questioned the Defendant in the year 1997, the questioned the defendant in the year 1997 the question statutory period of 12 years commencing from the date of Ex.B1 in the year 1995, therefore, the question of statutory period of 12 years that the plaintiff kept quite does not arise, since there is no claim by any third party including the Defendant prior to Ex.B1. It is the case of the plaintiff that it is the absolute property of Vijay Kalyan and on the other hand the Defendant is claiming that the Schedule property is the ancestral Hindu Joint Family property. For that the Defendant not filed any

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documents. For a moment, if the schedule property is the ancestral property, after the death of Vijay Kalyan, Vikram Kalyan being the son of his sons and daughters being grandchildren are entitled to inherit the property. On the other hand, no recitals in Ex.B1 that the schedule property is the ancestral property inherited by the vendors. However, it is clear from ex.B.1 that it is absolute property of the vendors. Though the burden lies on the Defendant that he has to prove that the schedule property is the ancestral Hindu Joint Family property and Vikram Kalyan and his family members also share – holders of the property and further failed to produce any evidence that Vijay Kalyan alone had no right to alienate the property.

Admittedly, on the application filed by the plaintiff herein in I.A.No. 1384 / 97 a Commissioner was appointed to note down the physical features and accordingly, the Commissioner submitted his report. However, either the plaintiff or the Defendant has no chance to examine the said Commissioner by name Rajiv Reddy who died in an accident during the pendency of the suit. However, the report of the Commissioner and the evidence collected by him forms part of the record. The Commissioner taken type photos of the construction under Ex.A11 bunch of photos and also Ex.A12 bunch of photos and the defendant stopped they construction and there are also pillars on the first floor. In this connection the ld. Counsel for the plaintiff draw the attention of the Court that the Defendant filed an undertaking memo to permit him to proceed with the construction with a condition that in case if the plaintiff succeeds in the suit, the defendant shall not claim or demand the costs of the construction material and forego the expenditure incurred by him and admittedly, the Defendant filed the said memo on 19.06.00. Even the Defendant admitted in his evidence that he filed an application in I.A. No. 471/ 00 seeking permission for completion of the construction and also given an undertaking by filing a memo that in the event of losing the suit he shall not claim or demand the costs and he will demolish the construction without claiming equities. Basing on the undertaking memo given by the plaintiff, the court permitted the defendant to proceed with the construction and the construction was already completed, as per the order dt. 12.07.00.So it can be said that the defendant proceed with construction in spite of the objections raised by the plaintiff and pendency of the suit at his own risk and the same is conceded by the defendant in a fair manner. Though the plaintiff failed to proceed with the construction in spite of obtaining permission from the then Grampanchayat and Vikram Kalyan vendor of the defendant was one of the attestors of Ex.A5, therefore, Vikram Kalyan has no right again to sell the property knowingly that the property

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already sold to plaintiff and the sale deed of defendant dt. 31.1.1995 is not valid in the eye of law and it comes under second sale after selling the property to the plaintiff. Though Vikram Kalyan died it is for the Defendant to take steps against the other vendors for selling the property suppressing the previous of sale deed under Ex.A5 in favour of plaintiff. Accordingly, this issue is answered that the sale deed under Ex.B1 dt. 31.5.95 executed by Vikram Kalyan and his two sons and daughter is illegal, void and unenforceable.

2. Issue No.2. In view of the findings of Issue No.1, the plaintiff became the true purchaser of the schedule property from Vijay Kalyan and possession was also delivered. The subsequent sale deed under Ex.B1 and possession of the Defendant and construction of the house therein at his own risk, does not entitled to the defendant to continue in possession. On the other hand the plaintiff is entitled for recovery of possession. So far the construction made by the Defendant is concerned, by incurring the lakhs of rupees even including taking loan from the Vysya Bank Housing Finance Ltd., the Defendant is not entitled for any costs from the plaintiff for the building constructed by the Defendant because of the defendant himself voluntarily came forward and filed a memo dt. 12.7.00 that in the event of the suit is decreed in favour of the plaintiff, he would demolish the construction without claiming equities. Therefore, it is for the Defendant to settle the matter with the plaintiff for the construction of the house in the schedule property, but the court is unable to pass any order giving direction to plaintiff to pay the value of the building constructed by the Defendant in the schedule property. Accordingly the issue is answered that the plaintiff is entitled to recovery of the possession of the plaint schedule property.

3. Issue No.3. So far as this issue is concerned, whether the plaintiff is entitled for mesne profit the plaintiff claimed mesne profits of Rs.18,000/- at the rate of Rs.5,000/- per annum from 6.6.95 to 5.6.97 and also damages at the same rate from 6.6.97 till delivery of property. On the other hand the plaintiff has not produced by evidence that the defendant made the land not fit for any construction and on the other hand, the defendant constructed a pacca building in the property. Further the plaintiff has not produced any evidence that he is getting some income on the property even from 6.6.97 onwards. Admittedly, up to 6.6.97 the Defendant is in possession of the property.

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Therefore, the plaintiff is not entitled for any damages or mesne profits as claimed. Accordingly this issue is answered.

4. In the result the suit is decreed without costs as prayed for that the sale deed of the defendant dt. 31.5.95 is void and unenforceable in the eye of law and the plaintiff is entitled to recover the possession from the defendant.

Dictated to the personal assistant transcribed by her, corrected and pronounced by me in the open court on this the 30th day of June, 2005.

Sd/-

I.Add. Senior Civil Judge

Ranagareddy District

ANNEXURE-2

IN THE COURT III ADDITIONAL DISTRICT JUDGE

(FTC), RANGA REDDY DISTRICT

Present: Sri G.V. Krishnam Raju, B.Com, M.L.

III Additional District Judge,

Ranga Reedy District

Friday, this the 15th day of July, 2011

OS No. 119 of 2005

Between :

Sekhar Sharma Appellant/Defendant

And

1. Manish Sisodia died par LRs2. V.M.Lalitha3. M.S.Srikanth

4. Shashikanth …Respondent/Plaintiffs

Against: Judgment and Decree passed in OS.No. 420 of 1997 on the file of I Additional Senior Civil Judge, RR District LB Nagar dt: 30-06-2005

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Between:

Manish Sisodia Plaintiff

And

Shekhar Sharma Defendant

This appeal is coming on 29-04-2011 before me for hearing in the presence of Sri K.S.N. Reddy Counsel for the appellant; and of Sri M.Srredhar Murthy Counsel for Respondent; and upon perusal of the material papers on record and the case having been heard and stood over for consideration till this day, this court delivered the following judgment:

J U D G M E N T

The appellant/defendant preferred this appeal against the judgment and decree passed by the I Additional Senior Civil Judge, Ranga Redy District in OS No. 420 of 1997 dated 30-06-2006 and the factual matrix leading to the filing of the appeal is as follows:

(i). The Plaintiff filed the suit in OS NO. 420 of 1997 for declaration to declare the sale deed bearing No. 6820 of 1995 dated 31-05-1995 executed by Vikram Kalyan and three others as illegal and void ab initio and unenforceable and for delivery of possession of the property and for mesne profit @ Rs. 18,000/- in respect of the schedule property and the case of the plaintiff as seen from the plaint are as follows:

Case of the plaintiff from the plaint averments:

a) The plaintiff submits that he purchased the plaint schedule property Plot No. 86 admeasuring 225 square yards in Survey Nos. 38 to 41 of Chandanagar Village, Rajendranagar Taluq, Ranga Reddy District from B.Ram Chandra Reddy under registered sale deed dated 12-04-1983 and since then he has been in possession of the property.

b) The plaintiff further submits that he mortgaged the property and obtained education loan from Andhra Bank, Koti to send his son M.S. Sashikant to United States of America for higher education. He further submits that due to financial constraints, he could not undertake any construction activity and left the plot vacant and during May, 1997 one of the close friend of the plaintiff informed him that construction activities are carrying out in the schedule property by the third parties and the

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plaintiff visited the schedule property and questioned the defendants and the defendant did not produced any document.

c) The plaintiff further submits that the plaintiff obtained encumbrance certificate and found that Vikram Kalyan and other executed sale deed in favour of the defendant on 31-05-1995. The plaintiff approached Commissioner, Serilingampally Municipality and requested to stop the construction. The plaintiff submits that though B.Sailaja daughter of Vikram Kalyan was minor, no permission was obtained from the District Registrar for sale and the sale is void.

d) The plaintiff further submits that there is no mention about how the title comes to vendors in the deed of the defendant. The plaintiff submits that the sale deed of the defendant is void and as such the plaintiff is entitled for declaration that the sale deed bearing document No.6820 of 1995 is liable to be declared as null and void and not binding on the plaintiff and also for recovery of possession.

(ii) Case of the defendant from the written-statement:

a) The defendant written statement contending that the schedule property is the ancestral property and joint family property of Vijay Kalyan and his sons and daughter and the sale by Vijay Kalyan alone in favour of the plaintiff is not valid without consent of the coparcenors. The defendant submits that he was not aware of the plaintiff obtaining educational loan, mortgaging the schedule property. The defendant submits that from the date of purchase he had continuous possession and knowledge of one and all for more than statutory period of 12 years and the rights of the plaintiff over the plaint schedule property were extinguished due to lapse of time and the plaintiff is not entitled to seek the cancellation of the sale deed.

b) The defendants further submits that he obtained municipal permission and was proceeding with the construction and also obtained loan from Vysya Bank Housing Finance Limited and completed the construction as per approved plaint issued by the municipality dated 30-07-1996 and the suit claim is barred by time and submits that the suit of the plaintiff is liable to be dismissed.

2. The trial court on the basis of the above pleadings settled the following issues for trial:

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1) Whether the plaintiff is entitled to declaration of the sale deed dated 31-05-1995 executed by Vikram Kalyan and three other as illegal, void and enforceable?

2) Whether the plaintiff is entitled for recovery of possession of the schedule property?

3) Whether the plaintiff is entitled to mense profits as prayed for?4) To what relief?

3. During the trail the plaintiff examined himself as P.W-1 and further P.Ws 2 to 3 and marked ExA-1 to A-12. The defendant examined himself D.W-1 and further D.Ws-2 and 3 and marked Exs.B-1 to B-7.

4. On conclusion of the trail, the trail court heard both sides and appreciated the oral and documentary evidence adduced by both the parties to the suit, decreed the suit party for declaration and recovery of possession, but declining the relief of mense profits. aggrieved by the judgment and decreed of the trail court the defendant preferred this appeal contending inter alia that the plaintiff failed to prove the execution of the registered sale deed and the initial burden to prove the documents is on the plaintiff heavily, but the trail court failed to appreciate the documents and the evidence adduced by the defendant and the plaintiff has not examined the attestor of the sale deed of Ex.A-1-cc of sale deed and ExsA-1 to 10 are fabricated and the trail court wrongly came to the conclusion that the signature of Rama Reddy on ExA-1 –cc of sale deed and Ex.B-1- sale deed dated 31-05-1995 are similar and the trail court failed to consider that the rights of the plaintiff over the schedule property were extinguished after lapse of 12 years and the judgment and decree of the trail court is unsustainable and the same is liable to be set aside.

5. During the pendency of the appeal, the original plaintiff died and his legal heirs who are respondents 2 to 4 were brought on records as per order in IA No. 1626 of 2008 dated 30-06-2008.

6. This court heard both sides.

7. This court heard both sides, during hearing of the appeal.

8. The point that arises for consideration are:

1) Whether the sale deed obtained by the defendant vide document No.6820 of 1995 dated 31-05-1995 executed by Vikram Kalyan and three other in favour of the defendant is valid and binding on the plaintiff?

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2) Whether the plaintiff is entitled for declaration recovery of possession as prayed for?

3) Whether the judgment and decree of the trail court is sustainable?

4) To what relief?

9. Point Nos. 1 to 3: (As point Nos.2 and 3 are defendant on the outcome of Point No.1 point 1 to 3 are discussed together)

The learned counsel for the appellant vehemently contented during the hearing of the appeal that the plaintiff failed to prove the execution of Ex.A-1 by examining witness and in the absence of proof of Ex.A-1, the title of the plaintiff is not proved to the plaint schedule property and the defendant proved his title to the schedule property through Ex.B-1 to B-7 and the judgment passed by the trail court is untenable and in respect of his contentions he relied on the decision reported in AIR 1954 SC 526 in a case between Moran Mar Basselios Cathollicos and another vs. Most Rev. Mar Poulose Athanasius and others wherein, the Hon’ble Apex court held that:

“The Plaintiff in ejectment suit must succeed on the Strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere destruction of the defendant’s title in the absence of establishment of his own title carries the plaintiff nowhere.”

10. The learned counsel for the appellant further relied upon the decisions laid down by the Hon’ble High Court in 1999 (2) ALT 624 in a case between A.Ramloo and other vs., G.Sreeramachandra Murthy and others and ALT 1977 532 in a case between Kanchi Subbamma and others vs., Mannepalli Penchalaiah where in the Hon’ble High Court held similarly as laid down in AIR 1954 SC 526 stated supra:

11. The learned counsel for the appellant further relied upon the decision reported in 1977 (2) ALT 625 (D.B) in a case between Mohd. Kareemuddin Khan and others v. Syed Azam, wherein, it is laid down that:

“The sale deed executed in 1961-62 without obtaining permission of Tahsildar when Section 47 of A.P. (T.A) Tenancy and Agricultural lands act, 1950 was in force and for which no validation obtained from Tahsildar under Section 50-B is not valid.

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12. The evidence of P.W-1 and Ex.A-1 to A-12 clearly establish that the plaintiff is the 1st purchaser of the schedule property as far as 12 years prior to the purchase of the defendant. P.W-2 is the person who categorically deposed that Ram Chandra Reddy executed the sale deed and his son Vikram Kalyan attested the same. Thus, by examining P.W-1 and 2 and making Ex.A-1-cc of sale deed; Ex.A-2 encumbrance certificate; Ex.A-3-cc of representation to the Commissioner; Ex.A-4-cc of sale deed dated 6820 of 1995, Ex.A-5-cc of sale deed dated 12-04-1983, Ex.A-6 and A-7-receipts, Ex.A-8 municipal demand notice. Ex. A-9-sanction plan. Ex.A-10-encumbrance certificate. Ex.A-11 and A-12-bunch of photos with negatives reveal that there are constructions made by the defendant in the schedule property. The case of the defendant reveals that he purchased the schedule property only in the year 1995, but he claims that he has perfected his title through adverse possession though his sale deed is invalid.

13. The evidence of D.W-1 to 3 reveals that the defendant purchased the schedule property only in the year 1995. If the defendant has obtained the encumbrance certificate, he would have definitely came to know that the schedule property was already sold. The defendant categorically admitted that prior to the purchase of the said property he has not obtained encumbrance certificate and no notice was given to the public. D.W-1 admitted that one of his vendor Vikram Kalyan is the sons of Vijay Kalyan. D.W-1 categorically admitted that in the year 1997 he came to know from the plaintiff that he purchased the suit property from Vijay Kalyan. D.W-1 further admitted that he did not know the date of death of Vijay Kalyan and he further admitted that he has not stated in the written statement that Vijay Kalyan died prior to 1983. D.W-1 admitted that he came to know that his vendor Vikram Kalyan died about three and four years back. D.W-1 admitted that in the year 1997 the plaintiff came to him and requested to stop further and he further admitted that the plaintiff has also obtained injunction order preventing him for making further construction in the suit property. D.W-1 admitted that the Advocate Commissioner was appointed to note down the stage of construction and submit report. He further admitted that the Advocate Commissioner took the photographs which are Ex.A-11. He further admitted that Ex.A-12 in bunch of 19 photographs taken by the Advocate Commissioner at the time of second visit. He further admitted that the plaintiff filed IA.NO.1384 of 1997 to punish him for disobedience of injunction. D.W-1 further admitted that he gave undertaking memo stating that in the even of loosing in the suit, he would demolish the construction made in the suit at his own costs without claiming equities. Thus, the admissions on the part of D.W-1 reveal that Vijay Kalyan was alive by the date of execution of the sale deed in favour of the plaintiff and the defendant raised false contention that Vijay Kalyan died prior to 1983.

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14. The defendant examined D.W-2 who is another purchaser of the schedule property and the evidence of D.W-2 is not useful to the defendant to sustain his sale deed. Even the evidence of D.W-3 is that the defendant purchased the property in the year 1995 from the legal heirs of Vijay Kalyan. The evidence of D.W-3 reveal that the defendant purchased the suit plot in the year 1995 and construction house, even it is not denied by the plaintiff. Thus the evidence of D.W-3 is also not much useful for the case of the defendant.

15. The document filed by the plaintiff under Ex.A-1 to A-12 and the evidence of P.W-1 and 2 establish that the plaintiff is prior purchaser of the suit plot under valid sale deed executed by the original owner Vijay Kalyan. The defendant purchased the same plots subsequently after 12 years in the year 1995 and is claiming the rights in the schedule property.

16. Under the rule of ‘nemo dat quod non habet’, no one can convey a better title than he had reveal that the plaint schedule property having sold by Vijay Kalyan i.e., the vendor of the defendant has no right to alienate the same in the year 1995 and as such, the defendant sale deed is not valid and binding on the plaintiff and even as per the memo filed by the defendant that in the event of losing the case, he would demolish the construction made in the suit at his own cost, without claiming equities show that the defendant at his own peril constructed the house. Viewed from any angle, the defendant sale deed is void instruction and the plaintiff is entitled for declaration to declare the sale deed of the plaintiff as void instruction and not binding on the plaintiff and once the sale deed of the defendant is declared void, the plaintiff is entitled for recovery of possession of the suit schedule property.

17. This court perused the judgment and decree of the trial court and it is on proper lines. The defendant/appellants failed to make out any case to interfere with the decree and judgment of the trial court. The citations relied upon by the learned counsel for the appellant are not applicable to the facts of this case in view of the categorical admission of the defendant as D.W-1 that in the year 1997 he came to know from the plaintiff that he purchased the suit property from Vijay Kalyan died about three or four year back and in view of his further admission that in the year 1997 the plaintiff came and requested him to stop further construction in the suit property clearly reveal that the defendant is only a subsequent purchaser of the same plot which was sold about 12 years back to the plaintiff and the defendant has no case at all in this appeal and the decree and judgment of the trail court is sustainable and point 1 to 3 are answered accordingly against the appellants.

18. Point No.4:

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In view of my findings on Point Nos. 1 to 3, the appeal of the appellant fails and the same is liable to be dismissed.

In the result, the appeal of the appellant/defendants is dismissed with costs by confirming the judgment and decree of the trial court.

Dictated to the Personal Assistant, transcribed by him corrected and pronounced by me in open Court on this the 15th Day of July, 2011.

III ADDITIONAL DISTRICT JUDGE

(FTC) RANGA REDDY DISTRICT

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