Telangana High Court
Cipior Organics Pvt. Ltd vs M/S. Bhavanam Estate Pvt. Ltd on 7 July, 2026
THE HIGH COURT FOR THE STATE OF TELANGANA AT
HYDERABAD
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
CCCA.NO.96 OF 2019
AND
I.A.NO.1 OF 2025 IN/AND CCCA.NO.116 OF 2019
Dated: 07.07.2026
CCCA.No.96 of 2019 and CCCA.No.116 of 2019:
Between:
Cipior Organics Private Limited,
A Company registered under Companies Act,
Represented by its Authorised representative,
Sri N.N.Devarajan S/o. Late Sri N.S.Natarajam,
Aged 50 years, R/o C/o.6-3-348,
Mid Town Complex, B-Block, Road No.1,
Banjara Hills, Hyderabad 500034. ... Appellant - Plaintiff
And
1.M/s.Bhavanam Estate Private Limited,
A Company incorporated under companies Act,
Plot No.15, Harita Apartments,
Kantisikhara Building Road,
Somajiguda, Hyderabad,
Represented by its M.D. B.Govind Reddy
2. Mr.Ravendra Thaper (since Died per Lr's) and three others.
... Respondents - Defendants
[Respondent Nos.3 to 5 - defendant Nos.3 to 5 are brought on record as LRs of
respondent No.2 - defendant No.2 as per orders in I.A.No.443 of 2016, dated
20.09.2016.]
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COMMON JUDGMENT
1.1 These memorandum of appeals are filed under Section 96 r/w
Order XLI Rule 1 r/w Section 151 of Civil Procedure Code (for short
‘CPC‘) assailing the judgment and decree and the counter claim passed
by the learned V Senior Civil Judge, City Civil Court, Hyderabad, in
O.S.No.1736 of 2006 dated 17.12.2018.
1.2 Notice got issued to respondent No.1 in both the appeals is served
but none appeared.
CCCA.No.96 of 2019:
2.1 This appeal is filed by the appellant – plaintiff aggrieved in
allowing the counter claim filed by the respondent Nos.3 to 5 –
defendant Nos.3 to 5, wherein they were declared as owners of the
counter claim schedule property and that the appellant – plaintiff was
directed to vacate and handover the vacant possession of the counter
claim schedule property to them within three months from the date of
decree [17.12.2018].
CCCA.No.116 of 2019:
2.2 This appeal is filed by the appellant – plaintiff aggrieved by the
judgment and decree in O.S.No.1736 of 2006 dated 17.12.2018 passed
by the learned V Senior Civil Judge, City Civil Court, Hyderabad,
wherein the suit filed by the appellant – plaintiff is dismissed without
costs.
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3. For the sake of convenience, the parties will be hereinafter
referred to as plaintiff and defendants as arrayed in O.S.No.1736 of
2006.
4.1 Plaintiff has filed suit for declaration and permanent injunction
under Order VII Rule 1 r/w Section 26 of CPC initially against defendant
Nos.1 and 2.
4.2 The prayer in the suit is:
(i) A decree of declaration be passed in favour of the plaintiff and against
defendant Nos.1 and 2 declaring that the plaintiff is the absolute owner
of the suit schedule property bearing flat No.103, ground floor, Riviera
Apartments, in premises No.6-3-347/9, Dwarkapuri Colony, Panjagutta,
Hyderabad admeasuring 1650 sq.ft of plinth area along with
proportionate undivided share in the land admeasuring 50 sq.yds
equivalent to 41.80 sq.mts,
(ii) permanent injunction be granted in favour of the plaintiff and against
the defendant Nos.1 and 2 restraining them, their agents, servants,
henchmen etc., from interfering in the peaceful possession of the
plaintiff in respect of the suit schedule property in any manner.
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Suit Schedule Property:
5. Flat No.103, ground floor, Riviera Apartments, in premises No.6-
3-347/9, Dwarkapuri Colony, Panjagutta, Hyderabad admeasuring
1650 sq.fts of plinth area along with proportionate undivided share in
the land admeasuring 50 sq.yds equivalent to 41.80 sq.mts are bounded
by North: open area facing 40′ wide road, South: Open area, East: Flat
No.104 and West: Flat No.102.
6. It is stated in the plaint that defendant No.1 is the developer of the
property bearing premises No.6-3-347/9 situated at Panjagutta,
Hyderabad, wherein Riviera Apartments has been constructed. As per
the practice prevailing in 1994 – 1995, defendant No.1 has executed
registered sale deeds in respect of the undivided share of land
commensurate to the flat area in favour of the purchasers of the various
flats in the complex. Plaintiff originally agreed to purchase the flat in the
proposed construction of Riviera Apartments in February, 1994. A
registered sale deed was executed in favour of the plaintiff
on 23.07.1994 by the defendant No.1 for a valid sale consideration for
undivided 1/40th share in 2000 sq.yds of land i.e., 50 sq.yds equivalent
to 41.80 sq.mts within the premises No.6-3-347/9. Plaintiff has also
obtained an agreement for construction dated 18.02.1994 from
defendant No.1 as it is already agreed to purchase the flat in the
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proposed complex. Plaintiff has paid the total consideration on different
dates to defendant No.1 and he issued various receipts to that effect.
Defendant No.1 did not complete the construction as agreed. Originally
in the construction agreement flat No.002 was mentioned, but later on it
was confirmed that it is flat No.103 [suit schedule flat]. Defendant No.1
and its directors were trying to bring third parties to the property,
having aggrieved plaintiff was constrained to file suit in O.S.No.2288 of
2005 against defendant No.1 and its directors on the file of II Senior
Civil Judge, City Civil Court, Hyderabad. After filing the said suit there
were discussions and deliberations and defendant No.1 and its directors
confirmed that they shall not interfere further with the possession of the
plaintiff over the suit flat. After the construction is completed plaintiff
has let out the flat to M/s. Consortium Management Services Private
Limited in the month of June, 2006. Plaintiff surprised to know about
the issuance of notice by defendant No.2 on 07.10.2006 directly to the
tenant of the plaintiff. Plaintiff has issued reply on 12.10.2006 directly
to defendant No.2 and prayed to decree the suit as prayed for.
7. Defendant No.1 remained ex-parte before the Trial Court.
8. Defendant No.2 filed written statement on 08.12.2006 and
contended that he has purchased the suit schedule flat under a
registered sale deed bearing document No.1282 of 2002 dated
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08.07.2002, from defendant No.1. Defendant No.1 company has issued
delivery of possession letter dated 08.07.2002 confirming the delivery of
possession of the said flat to him. After taking possession of the said
flat, he locked the said premises and left to Mumbai. In the first week of
August 2006, he came to Hyderabad and was surprised that the suit
schedule flat was in occupation of M/s.Consortium Management
Services Private Limited, he made his best efforts to get in touch with
defendant No.1 to know as to who has inducted the said company into
the suit schedule flat and thereafter he got issued legal notice on
07.10.2006 to the said company demanding to vacate and handover the
possession of the flat. Plaintiff is nothing to do with the suit schedule
flat and the documents filed by them do not relate to the said flat and
they filed the suit only to grab his flat and prayed to dismiss the same.
9. The learned Trial Court basing on the pleadings of the parties has
framed the following issues:
1. Whether plaintiff is entitled for decree of declaration as prayed
for?
2. Whether plaintiff is entitled for injunction as prayed for?
3. To what relief?
10. Chief executive officer of the plaintiff has filed his chief evidence
affidavit on 15.04.2010 and Exs.A1 to A38 were marked on 10.08.2010.
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When the suit was coming up for cross examination of PW1, learned
counsel for defendant No.2 before the Trial Court has filed a memo on
18.02.2016 stating that defendant No.2 died on 03.06.2012. Defendant
Nos.3 to 5 came on record as LRs of defendant No.2. Plaintiff has filed
his amended plaint on 03.11.2016. On 09.11.2016 defendant No.5 has
filed adoption memo before the learned Trial Court adopting the written
statement filed by defendant No.2. On 07.12.2016 defendant No.3 filed
adoption memo adopting the written statement of defendant No.2. On
22.12.2016 defendant No.4 filed adoption memo adopting the written
statement of defendant No.2.
11. Thereafter the suit was posted for cross examination of PW1
through commissioner. Plaintiff was cross examined by the learned
counsel for defendant Nos.3 to 5 on 22.02.2017 and 28.02.2017,
thereafter the advocate commissioner has filed his report on
01.03.2017. PW2 was examined on 29.06.2017, through him Exs.A39 to
A104 are marked and an advocate commissioner is appointed to record
the cross examination of PW2 by learned counsel for defendant Nos.3 to
5. PW2 was cross examined on 04.08.2017. On 08.08.2017, advocate
commissioner has filed his report, on which date the evidence of the
plaintiff is closed and the suit is posted for defendants’ evidence on
02.08.2017 and 30.08.2017. On 30.08.02017, defendant Nos.3 to 5
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have filed an application to amend the written statement. The
application filed by defendant Nos.3 to 5 seeking leave of the Court to
file additional written statement and counter claim was returned and
thereafter it is resubmitted, which is numbered as I.A.No.912 of
2017. On 29.01.2018, I.A.No.912 of 2017 came to be allowed permitting
defendant Nos.3 to 5 to file additional written statement with counter
claim.
12. Defendant Nos.3 to 5 have filed their additional written statement
separately along with counter claim. In the additional written statement
defendant Nos.3 to 5 stated that defendant No.2 died on 03.06.2012 and
their mother Urmila Thapar also died on 04.06.2011, leaving behind
defendant Nos.3 to 5 as successors and legal heirs of suit schedule flat
and they were brought on record as LRs of defendant No.2 vide orders in
I.A.No.443 of 2016 dated 20.09.2016. It is further stated in the
additional written statement and counter claim of defendant Nos.3 to 5
that they succeeded to the suit schedule property and sought to declare
them as absolute owners of flat No.103, ground floor of Riviera
apartments admeasuring 1800 sq.fts in premises No.6-3-347/9,
situated at Punjagutta, Hyderabad and consequently prayed for an order
of delivery of the property to defendant Nos.3 to 5 by the plaintiff and to
prevent the multiplicity of cases on the same subject matter. In the
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cause of action paragraph they have shown the dates as 03.06.2012
when defendant No.2 died, 04.06.2011 when their mother Urmila
Thapar died, on 20.09.2016 when the orders in I.A.No.443 of 2016 were
passed and on 24.10.2016 when the plaintiff has filed amended fair
copy of the plaint.
13. The counter claim schedule property is flat No.103, ground floor of
Riviera apartments admeasuring 1800 sq.fts carpet area excluding
common area and balconies along with 1/40th or 50 sq. yds, whichever
is high in 2000 sq.yds, equivalent to 50 sq.yds in premises municipal
bearing No.6-3-347/9 situated at Punjagutta, Hyderabad, bounded
by North: open facing to 40 ft wide road, South: open and corridor, East:
flat No.104 and West: flat No. 102.
14. Plaintiff has filed his written statement to the counter claim filed
by defendant Nos.3 to 5 denying the allegations and further contended
that the counter claim filed by them is barred by limitation.
15. Basing on the additional pleadings, the learned Trial Court has
framed three additional issues, which are as under:
1. Whether defendant Nos.3 to 5 are entitled for a declaration that
they are the owners of the suit/counter claim schedule
property?
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2. Whether defendant Nos.3 to 5 are entitled for possession of the
suit/counter claim schedule property?
3. Whether the counter claim of defendant Nos.3 to 5 is within
limitation?
16. The learned Trial Court after framing the additional issues on
12.06.2018 has observed in the proceeding sheet as under:
After closure of the evidence of the plaintiff and at the stage the defendant evidence, D3
to D5 have come up with counter claim. Hence, it is necessary to give an opportunity to
the plaintiff to produce further evidence, if any, touching the counter claim of D3 to D5.
Therefore, for further evidence of the plaintiff if any, call on 18.06.2018.
17. On 18.06.2018 learned counsel for the plaintiff before the trial
Court has filed a memo reserving the right of the plaintiff to lead
rebuttal evidence after the evidence of defendant Nos.3 to 5 which was
granted by the learned Trial Court.
18. Defendant No.4 is examined as DW1 on 13.07.2018, through her
Exs.B1 to B8 were marked, on the same day she was cross examined by
the learned counsel for the plaintiff before the Trial Court. On
20.07.2018 further evidence of the defendant Nos.3 to 5 was closed and
it was posted for the rebuttal evidence of the plaintiff. On 07.08.2018
learned counsel for the plaintiff before the Trial Court has reported no
rebuttal evidence and thereafter the suit came to be posted for
arguments of the parties on 14.08.2018. Plaintiff has filed an
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allowed and Exs.A105 to A107 were marked overruling the objections
raised by learned counsel for defendant Nos.3 to 5 for marking the
deposition of DW1 in O.S.No.2288 of 2005.
19. The learned Trial Court after hearing both the counsels on record
has dismissed the suit of the plaintiff and allowed the counter claim
filed by defendant Nos.3 to 5 in toto by directing the plaintiff to hand
over the vacant possession of the counter claim schedule property to
defendant Nos.3 to 5 within three months from the date of judgment
[17.12.2018].
20.1 Learned Senior counsel for the appellant – plaintiff submits that
the learned Trial Court erred in disbelieving the contention of the
plaintiff that during 1994 -1995 there was a practice of executing the
sale deed for undivided share of land and a separate agreement for
construction of the flat which the purchaser intended to purchase. The
total sale consideration will be divided into two parts i.e., for the sale of
undivided share of land and for the construction of the flat. In the case
of the appellant – plaintiff they have entered into agreement of sale for
undivided share of land and agreement for construction of flat No.002
on the first floor/ground floor [floor above the stilt] on 18.02.1994. On
23.07.1994 sale deed was executed and registered in favour of the
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renumbered as flat No.103. Payments made by the appellant – plaintiff
after registration of the sale deed are evidenced by receipts issued by the
builder which are towards completion of construction of the flat, parking
place etc. Exs.A27, A34, A36 and A39 were issued in the year 1994 by
mentioning flat number as 103, ground floor together with Ex.A29 – sale
deed, Ex.A37-agreement of construction dated 18.02.1994 and Ex.A2
possession letter clearly shows that the plaintiff is the owner of flat
No.103 of the ground floor.
20.2 The learned Trial Court erred in holding that the appellant –
plaintiff has failed to prove its ownership over the suit schedule flat on
the erroneous premise that the payment receipts are issued by the
developer after the registration of the sale deed [for undivided share of
land] on 23.07.1994 are not true, even though those receipts were
marked and admitted as evidence by a competent Civil Court in the
earlier proceedings relates to flat No.103 towards payment for
construction of the flat, car parking charges etc. It is not the case of
respondent No.2 – defendant No.2 that appellant – plaintiff has not
purchased any flat in Riviera apartments as respondent No.2 –
defendant No.2 stated in his written statement that payments made by
appellant – plaintiff could be towards some other flat. The learned Trial
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Court erred in holding that since respondent No.2 – defendant No.2 is
not a party in O.S.No.2288 of 2005 and he is not bound by the evidence
adduced and the judgment rendered in the suit. In fact, appellant –
plaintiff and respondent No.2 – defendant No.2 claim to have purchased
the suit schedule flat from respondent No.1 – defendant No.1, who is the
party to O.S.No.2288 of 2005. The Managing Director of respondent
No.1 – defendant No.1 Mr.B.Govinda Reddy was examined as DW1 in
the above said suit and his deposition is marked as Ex.A107. The
judgment in O.S.No.2288 of 2005 is marked as Ex.A105 which is
binding on the respondent Nos.2 to 5 – defendant Nos.2 to 5 since they
claim their alleged title through respondent No.1 – defendant No.1. The
learned Trial Court misdirected itself in holding that Exs.A37 agreement
for construction could not have been prior to Ex.A29 sale deed for
undivided share of land. The learned Trial Court ought to have taken
into consideration various clauses in Exs.A29 and A37 which clearly
shows that there was an agreement of sale dated 18.02.1994 prior to
Ex.A29 and that the agreement of sale for undivided share of land
(which is not filed) and agreement for construction both are part of same
package deal. Appellant – plaintiff did not find it necessary to file the
earlier agreement of sale dated 18.02.1994 since Ex.A29 is already filed.
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20.3 The learned Trial Court has unnecessary raised a doubt in
paragraph No.15 of the judgment as to whether the said agreement of
sale is earlier or subsequent to the sale deed under Ex.A29. Clause IV
of the recitals of the agreement of construction dated 18.02.1994 clearly
states that there is a separate agreement of sale dated 18.02.1994. The
learned Trial Court erred in holding that appellant – plaintiff has failed
to file any proof that he is in possession of flat No.103 and ought to have
taken into consideration Exs.A27, A34, A36, A39 issued by respondent
No.1 – defendant No.1 showing flat No.103, electricity bills relating to
flat No.103, municipal tax receipts. Respondent No.1 – defendant No.1
admitted the possession of the appellant – plaintiff and decree has been
passed in pursuance of the said admission in O.S.No.2288 of 2005
[Exs.A105 and A106]. The learned Trial Court erred in holding that
appellant – plaintiff failed to prove as to when they were put in
possession of the property in March 2001 when the last payment was
made to respondent No.1 – defendant No.1 [Ex.A34]. Appellant – plaintiff
as PW1 stated in his evidence that they were put in possession of
the subject flat in the month of March, 2001 which was in semi-finished
condition and after obtaining possession they completed the
construction, let it out to M/s.Consortium Management Services Private
Limited in June, 2006.
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20.4 The learned Trial Court erred in holding that respondent No.2 –
defendant No.2 obtained possession of the suit schedule flat on
08.07.2002 and that respondent Nos.3 to 5 – defendant Nos.3 to 5 are
the owners of the flat being the legal heirs of the deceased respondent
No.2 – defendant No.2, when appellant – plaintiff failed to prove Ex.A29
sale deed.
20.5 The learned Trial Court failed to take into consideration that
respondent Nos.3 to 5 – defendant Nos.3 to 5 miserably failed to prove
their possession over the suit schedule flat at any point of time and
dispossession by the appellant – plaintiff. Merely by saying that on
08.07.2002, respondent No.2 – defendant No.2 was put in possession of
the flat and thereafter locked it and went to Mumbai and came back in
the first week of August 2006 and found M/s.Consortium Management
Services Private Limited in possession of the schedule flat. It cannot be
said that respondent Nos.3 to 5 – defendant Nos.3 to 5 have discharged
the burden placed on them. Respondent No.2 – defendant No.2 also
miserably failed to file any evidence to prove that the appellant – plaintiff
had broke open the lock and entered into flat No.103. Respondent No.2
– defendant No.2 did not make any counter-claim, however respondent
Nos.3 to 5 – defendant Nos.3 to 5 came on record as LRs of respondent
No.2 – defendant No.2 in the year 2016, filed their counter-claim along
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with additional written statement on 19.09.2017 and the learned Trial
Court erred in holding that respondent Nos.3 to 5 – defendant Nos.3 to 5
have proved that they are the owners of the suit schedule flat.
20.6 The learned Trial Court ought to have upheld the title of the
appellant – plaintiff on the basis of Exs.A29 and A37 and various
receipts issued by the builders showing flat No.103, electricity bills,
municipal tax payment receipts, possession letter (Ex.A2). The sale deed
of respondent No.2 – defendant No.2 being much later cannot be
accepted, more so when Managing Director of respondent No.1 –
defendant No.1 has admitted the sale of the subject flat in favor of
appellant – plaintiff. Thereafter judgment and decree came to be passed
under Exs. A105 and A106. Respondent No.1 – defendant No.1
conveniently remained ex-parte in the suit which goes to show that
respondents-defendants in collusion with each other have created the
sale deed in favor of respondent No.2 – defendant No.2 when admittedly
respondent No.1 – defendant No.1 did not have any subsisting right
relating to the suit schedule property. The learned Trial Court failed to
take into consideration Exs.A30 and A31 whereunder the subject
property was given as collateral security for the loan obtained by the
appellant – plaintiff from Vijaya Bank in July 2006.
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20.7 Learned senior counsel to substantiate his contentions has relied
on the decisions in the cases of: (i)T.K.Mohammed Abubucker (dead)
though LRs and others vs. P.S.M. Ahamed Abdul Khader and others 1,
(ii) Ashok Kumar Kalra vs. Wing CDR. Surendra Agnihotri and others 2;
(iii) Ashok Kumar Kalra vs. Wing CDR. Surendra Agnihotri and others 3,
(iv) Duraiswami Reddi vs. Angappa Reddi and another 4 ; (v) Gopaldas
and Company, Mazgaon, Mumbai and others vs. Gopaldas Corporation,
Mumbai and others 5 and prayed to allow the appeals.
21. Learned senior counsel for the respondent Nos.3 to 5 – defendant
Nos.3 to 5 submits that the learned Trial Court has properly appreciated
the facts of the case in right perspective by taking into consideration the
evidence adduced by the parties with that of the documents marked
thereon. Appellant – plaintiff has failed to prove that he is entitled for
declaration and that the respondent Nos.3 to 5 – defendant Nos.3 to 5
have filed their additional written statement with counterclaim with the
leave of the Court and they have proved that they are entitled for
declaration and recovery of possession, the learned Trial Court has
rightly dismissed the suit filed by the appellant – plaintiff and allowed
the counterclaim filed by respondent Nos.3 to 5 – defendant Nos.3 to 5.
1 (2009) 14 SCC 224
2 2020 (2) SCC 394
3 Special Leave to Appeal (Civil) No.23599 of 2018 dated 08.01.2020, of the Hon’ble Supreme Court of India
4 MANU/TN/0085/1945
5 AIR Online 2020 Bom 3075
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Counsel to substantiate his contentions has relied on the decisions in
the cases of (i) Jagdish Chander Chatterjee and others vs Shri Sri
Kishan and others 6 , (ii) Bal Kishan and others vs Om Parkash and
another 7, (iii) Saroop Singh vs Banto and others 8 (iv) Prem Singh and
others vs Birbal and others 9, (v) Sumtibai and others vs. Paras Finance
Co. registered Partnership Firm Beawer (raj.) Through Mankanwar (SMT)
w/o. Parasmal Chordia (Dead) and Others 10 , (vi) Suraj Lamp and
Industries Private Limited through Director vs State of Haryana and
another 11 , (vii) Union of India vs. Vasavi Cooperative Housing Society
Limited and others 12, (viii) Vinod Infra Developers Limited vs Mahaveer
Lunia and others 13, (ix) Hemalatha (D) by LRs. vs Tukaram (D) by LRs
and others 14 , (x) Bayyarapu Narayan Raidu vs Smt. Pagadala
Varalaxmi 15 , (xi) Saved Sirajul Hasan vs. Syed Murtaza Ali Khan
Bahadur and others 16 and prayed to dismiss both the appeals.
22. Learned senior counsel for the appellant – plaintiff has filed his
synopsis. Learned senior counsel for respondent Nos.3 to 5 – defendant
Nos.3 to 5 has filed his written arguments in support of his contentions.
6 (1972) 2 SCC 461
7 (1986) 4 SCC 155
8 (2005) 8 SCC 330
9 (2006) 5 SCC 353
10 (2007) 10 SCC 82
11 (2012) 1 SCC 656
12 AIR 2014 SC 937
13 2025 SCC OnLine 1208
14 2026 INSC 82
15 2013 SCC OnLine AP 267
16 MANU/DE/0315/1991
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23. Heard both sides, perused the material on record.
24. Now, the points for consideration are:
(i) Whether the appellant – plaintiff could able to prove that he
is entitled for declaration of the suit schedule property? If
so,
(ii) Whether he is entitled for permanent injunction restraining
the respondents – defendants, their agents, servants,
henchmen from interfering with his peaceful possession and
enjoyment of the suit schedule flat?
(iii) Whether respondent Nos.3 to 5 – defendant Nos.3 to 5 have
proved that they are entitled for declaration of the
counterclaim schedule property? If so,
(iv) Whether respondent Nos.3 to 5 – defendant Nos.3 to 5 are
entitled to recover the counterclaim schedule property from
the appellant – plaintiff?
(v) Whether the counterclaim filed by the respondent Nos.3 to 5
– defendant Nos.3 to 5 is barred by law?
(vi) Whether the judgment and decree passed by the learned
Trial Court in O.S.No.1736 of 2006 suffers from any
perversity or illegality? If so, does it require interference of
this Court?
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(vii) Whether the learned Trial Court was justified in allowing the
counterclaim filed by the respondent Nos.3 to 5 – defendant
Nos.3 to 5, if so, does it require interference of this court?
25. Plaintiff has filed I.A.No.1 of 2025 in CCCA.NO.116 of 2019 under
Order XLI Rule 27 CPC r/w. Section 151 of CPC seeking leave of the
Court to receive the original agreement of sale dated 18.02.1994
executed by defendant No.1 in favour of plaintiff for purchase of 1/40th
undivided share in the subject land as additional evidence and the same
be marked as Ex.A108.
26. It is stated in the affidavit that the learned Trial Court has
erroneously dismissed the suit while raising a doubt because of non-
filing of the original agreement of sale dated 18.02.1994. In fact the
plaintiff felt that as registered sale deed dated 23.07.1994 under
document No.2667 of 1994 was already on record as Ex.A29, which
refers to the execution of earlier agreement of sale, it was not necessary
to file the original agreement at that stage. Construction agreement
dated 18.02.1994 also refers to the agreement of sale dated 18.02.1994.
It is in these circumstances plaintiff has not felt it necessary to file the
original agreement dated 18.02.1994 during the course of trial. The
learned Trial Court unnecessarily confused itself by making certain
adverse remarks raising doubts about the existence of agreement of sale
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dated 18.02.1994. As an abundant caution and solely with an intention
to assist the court to effectively decide the subject controversy, the
original agreement of sale dated 18.02.1994 has been filed herewith with
an application seeking leave to produce the same as additional evidence.
It would be in the interest of justice that appropriate leave be granted by
receiving the document as additional evidence in the appeal and prayed
to allow the same.
27. Defendants filed counter to I.A.No.1 of 2025 and contended that
the petition is not maintainable at this stage and the plaintiff has not
made out any grounds in the affidavit and prayed to dismiss the same.
28. On reading of Order XLI Rule 27 of CPC which states about
production of additional evidence in Appellate Court (i) the parties to an
appeal shall not be entitled to produce additional evidence, whether oral
or documentary, in the Appellate Court. But if –
a) ….
aa) the party seeking to produce additional evidence establishes that
notwithstanding the exercise of due diligence, such evidence was
not within his knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the decree
appealed against was passed; or
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b) the Appellate Court requires any document to be produced or any
witnesses to be examined to enable it to pronounce judgment, or
for any other substantial cause.
The appellate Court may allow such evidence or document to be
produced or witnesses to be examined.
29. Plaintiff was in custody of the agreement of sale dated 18.02.1994.
His contention in the affidavit is that the recitals of the agreement of
sale dated 18.02.1994 is referred in Ex.A29 sale deed, so also in the
construction agreement [Ex.A37]. It is the grievance of the plaintiff that
the learned Trial Court raised a doubt of non-filing of the original
agreement of sale dated 18.02.1994.
30. Affidavit is silent with regard to the plaintiff’s due diligence in not
filing the agreement of sale dated 18.02.1994 and the affidavit is bereft
of material particulars. There is no whisper in the affidavit what made
the plaintiff to not to file the same. Furthermore I.A.No.1 of 2025 came
to be filed basing on the observations made by the learned Trial Court in
the judgment and decree. Since the affidavit states that agreement of
sale dated 18.02.1994 is already referred in Exs.A29 and A37, the same
will be looked into. There are no merits in the application and the same
is liable to be dismissed and is accordingly dismissed.
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POINT NOs.i and iv:
31. Plaintiff is claiming flat No.103, ground floor, Riviera Apartments
in premises No.6-3-347/9, Dwarakapuri Colony, Punjagutta,
Hyderabad, admeasuring 1650 square feets, along with proportional
undivided share in the land admeasuring 50 square yards equivalent to
41.80 square meters.
32. Defendant Nos.3 to 5 are also claiming flat No.103, ground floor of
Riviera Apartments admeasuring 1800 square feets carpet area
including common area and balconies, along with 1/40th or 50 square
yards whichever is high in 2000 square yards equivalent to 50 square
yards in premises M.No.6-3-347/9, situated at Punjagutta, Hyderabad.
33. Plaintiff and defendant Nos.3 to 5 are claiming flat No.103. The
extent claimed by the plaintiff is 1650 square feets whereas the extent
claimed by the defendant Nos.3 to 5 is 1800 square feets. The
boundaries shown in the plaint schedule and the boundary shown in
the counter claim schedule are one and the same.
34. Defendant No.2 has got issued a legal notice on 07.10.2006
through his counsel to M/s.Consortium Management Services Private
Limited referring to flat No.103 [Ex.A3]. Ex.A3 notice goes to show that
defendant No.2 was delivered possession by possession letter dated
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08.07.2002, on the same day registered sale deed came to be executed
by M/s.Bhavanam Estates Private Limited. The notice states that
defendant No.2 is permanent resident of Mumbai and kept the property
locked and vacant. Paragraph No.4 of the notice states that in or about
the first week of August 2006, defendant No.2 visited the property at
Hyderabad and was shocked to find that M/s.Consortium Management
Services Private Limited is in occupation. Notice further states that on
inquiries made with Mr.Prabhu, defendant No.2 was informed that
Consortium Management Services Private Limited is in occupation of the
property since 15.06.2006 under a lease and license agreement with one
Ms. Girija Reddy and called upon Consortium Management Services
Private Limited to vacate the property and hand over the possession to
defendant No.2 .
35.1 Ex.A1 is the office copy of plaint in O.S.No.2288 of 2005, plaintiff
therein is the appellant herein, which is filed against (i) respondent No.1
– defendant No.1- M/s. Bhavanam Estates Private Limited, represented
by its Managing Director Mr. Bhavanam Govinda Reddy (ii) Mr.Govinda
Reddy, Managing Director of M/s. Bhavanam Estates Private Limited,
(iii) Mrs. Bhavanam Shakeela Reddy, wife of Mr.Bhavanam Govinda
Reddy, Executive Director of M/s. Bhavanam Estates Private Limited.
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35.2 It is stated in Ex.A1 that the plaintiff is the sole and absolute
owner and possessor of Flat No.103, Riviera Apartments, admeasuring
1650 square feets. At the time of inception of the project it is numbered
as flat No.2 on the ground floor and subsequently assigned flat No.103.
Defendant No.2 therein is the Managing Director and defendant No.3
therein is the Executive Director of defendant No.1. Defendant No.1
therein represented by defendant No.2 executed agreement of sale dated
18.02.1994 and agreed to sell 1/40th share of the land comprising 2000
square yards equivalent to 1672.32 square meters. Subsequently
registered sale deed came to be executed in favor of the plaintiff on
23.07.1994, vide registered document No.2667 of 1994 in respect of
1/40th share. Original agreement of construction is also executed on
18.02.1994. Defendants therein have handed over the flat without
completing the same as per the agreed specifications, without agreed
facilities, amenities and special features in the last week of April 2005.
The defendants therein trespassed into the same and committed other
illegal acts, thereby plaintiff has lodged a complaint before Police
Station, Banjara Hills, Hyderabad.
35.3 The prayer in O.S.No.2288 of 2005 – Ex.A1 is to grant perpetual,
injunction restraining the defendants therein, their employees, agents,
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servants, or any other person acting or claiming through or under them
and also claimed amounts for pending works.
35.4 Ex.A2 is the letter of delivery of possession issued by defendant
No.1, which reads as under:
BHAVANAM ESTATES PRIVATE LIMITED
Plot No. 134, 6-3-347/9, Dwarakapuri Colony, Punjagutta, Hyderabad.
Tele. No. 55525558.
__________________________________________________________________________
DELIVERY OF POSSESSION
This is to confirm the delivery of possession of Flat No 103 (1st Floor) in
RIVIERA APARTMENTS, in fully finished condition and to the satisfaction
of Smt. C.Girija Reddy and K.Amarender Reddy. All the obligations /
liabilities of the Builder / Developer, and all the right of the apartment
owner, arising out of all or any previous agreements whether oral or in
writing shall stand cancelled with this letter. The matters have been
comprised and there shall be no claims in future by M/s. Bhavanam
Estates Pvt. Ltd. And M/s. Cipior Organics Pvt. Ltd.
Sd/-
OWNER/ALLOTTEE M/S Bhavanam Estates Pvt. Ltd.
Sd/-
(B. Govinda Reddy)
Managing Director.
Ex.A5 is the original electricity bill dated 11.06.2006. Ex.A13 is the
original electricity bill dated 06.10.2006. Ex.A94 is the original
electricity bill dated 02.04.2015. Ex.A96 is the certified copy of
electricity bill dated 05.05.2015. Ex.A98 is the certified copy of
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electricity bill dated 02.10.2015. Ex.A102 is the certified copy of
electricity bill dated 02.12.2015. All the above said bills shows the
name of the plaintiff for flat No.103. Exs.A95, A97, A99, A101 and A103
are the corresponding receipts for Exs. A94, A96, A98, A100 and
A102.
35.5 Exs.A6 and A7 are the original receipts dated 04.07.2006, Ex.A8
is the original receipt dated 08.08.2006 and Ex.A9 is the original receipt
dated 07.09.2006 issued by Riviera Apartment Owner’s Welfare
Association, in favor of Consortium Management Services for the month
of June, July, August and September 2006, showing the flat number as
103.
35.6 Exs.A40 to A84 are the receipts issued by Riviera Apartments
Owner’s Welfare Association in the name of the plaintiff showing the flat
No.103, towards maintenance charges for different months.
35.7 Exs.A11 and A38 are the same documents which is the extract of
minutes of meeting dated 12.01.2005 authorizing Sri K.Amarendra
Reddy, director hereby authorized to lodge civil, criminal complaints on
behalf of the company. Ex.A12 is the true copy of certificate of
incorporation and MOA of the plaintiff.
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35.8 Ex.A14 is the written statement filed by M/s.Bhavanam Estates
Private Limited represented by its Managing Director, Mr.Bhavanam
Govinda Reddy in O.S.No.2288 of 2005 on 17.09.2007. It is stated
therein that the defendants delivered vacant possession of flat No.103 to
the plaintiff in full finished condition and to the satisfaction of the
plaintiff and with specific understanding that all previous agreements
whether oral or in writing shall stand cancelled.
35.9 Exs.A15 to A27 are the payment receipts dated 21.02.1994;
27.02.1994; 10.03.1994; 04.03.1994; 16.04.1994; 31.02.1994;
23.07.1994; 23.07.1994; 26.07.1994; 20.10.1994; 14.11.1994;
27.05.1995 and 18.10.1994 issued by defendant No.1 in favour of the
plaintiff for purchasing a flat in Riviera Apartments. Ex.A27 receipt
shows that defendant No.1 has received amount of Rs.50,000/- from the
plaintiff towards the full payment of car parking for flat No.103 at
Riviera Apartments, Dwarakapuri Colony, Hyderabad.
35.10 Ex.A28 is the letter addressed by the plaintiff to the
Managing Director of defendant No.1 dated 27.05.1995. The letter
subject states that release of payment against our flat. The letter further
states that as per the agreement, the flat has to be ready by 31.12.1994
for possession. The completion of work has been delayed by nearly five
months and the investment was totally blocked, there was loss of
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interest on their investment. There is lot to be done in the flat including
sanitary fittings, electricity and water connections, telephone
connection, windows and doors. Letter further states that they are
releasing the payment of Rs.50,000/- by way of cheque assuming that
the flat will be ready within fortnight with all the amenities for
possession.
35.11 Exs.A32, A33 and A35 are the part payment receipts dated
23.02.2001 and 22.03.1994 issued by defendant No.1 in favor of
plaintiff for purchase of flat at Riviera Apartments. Ex.A34 is part
payment receipt issued by B.Govinda Reddy for flat No.103 of Riveira
Apartments in favour of the plaintiff.
35.12 Ex.A36 is the letter dated 19.10.1994 issued by defendant
No.1 signed by its executive director in favor of the plaintiff. The letter
states that ‘with reference to your agreement dated 18.02.1994, they
have completed the brick work of flat bearing No.103 and sought for
payment of fifth installment amount of Rs.65,000/-.’
35.13 Ex.A29 is the certified copy of registered sale deed dated
23.07.1994 executed by defendant No.1 through its Managing Director,
Sri Bhavanam Govinda Reddy in favor of the plaintiff. The schedule of
the property is undivided 1/40th share in 2000 square yards equivalent
to 50 square yards or 41.806 square meters be it a little more or less
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and the boundaries thereon with old building almost fully demolished
bearing MCH.No.6-3-347/9, Panjagutta, Hyderabad. The boundaries
are North: 30 feet wide public road, Panjagutta to Banjara
Hills, South: neighbors property, East: neighbors property and West:
land of Nizam’s Institute of Medical Sciences/Specialities. It is
mentioned in paragraph No.d at internal page No.4 that whereas the
vendee approach the vendor for sale of 1/40th undivided portion of
schedule property and the vendors have agreed on mutually acceptable
terms and conditions set out herein and the vendee paid full
consideration to the vendors as per the agreement of sale and agreement
of construction between the parties.
35.14 Ex.A30 is the copy of Form 8 whereunder plaintiff has
deposited his title deeds for equitable mortgage with letter of gaurantee.
Ex.A31 is the certified copy of certificate of registration of mortgage
under Section 132 of Companies Act 1956.
35.15 Ex.A37 is the agreement of construction dated 18.02.1994
executed by defendant No.1 by its Managing Director Sri Bavanam
Govinda Reddy in favor of the plaintiff. Clause 1, 2, 3, 5, 6, 8, 9 and 11
are important, which reads as under:
1. The purchaser having agreed to purchase under separate
agreement of sale the 1/40th undivided share of the land comprising the
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developer shall construct for him flat No.2 on the first floor with a super
built up area of 1650 sq.ft and the schedule B property as part of the
complex to be named “RIVIERA” on land comprising the schedule A
property.
2. The total consideration that the purchaser has agreed to pay to
the developer for the construction is Rs.6,24,250/-(Rupees Six lakhs
twenty four thousand two hundred and fifty only) payable as per the
schedule of payments vide I hereof.
3. Flat No.2 in the ground floor is intended for commercial use as
described in the schedule B shall be as per the specifications set out in
annexure I hereto.
5. The developer shall construct the building in accordance with the
plans which have been shown to the purchaser and the developer reserves
the right to make such modifications as may be necessary at its sole
discretion so long as the total super built up area deliverable to the
purchaser is not diminished. The developer also reserves the right to
construct two penthouses over the terrace of the sixth floor (either ground
or cellar being reserved parking) and to earmark for the exclusive use of all
owners of the flats proposed, one half of the terrace over the topmost floor,
computed as below, with the remaining half being earmarked for the
exclusive use of the two penthouses to be constructed as above, the
terraces over the penthouses to belong exclusively to the owners of the
respective penthouses. For computation of the half area of the terrace, area
of each penthouse built ог to be built shall be excluded.
I. Whereas the Developer has duly purchased an undivided 29/40th
or 72.5% share in the property described in the schedule “A” below by and
under a sale deed dated 27th November 1992 registered as document no:
3110 of 1992 in Book I volume 1954 at pages 89 to 194 at the office of the
Sub-Registrar, Hyderabad and has done so with the objective of
development of the said property for construction of a complex of
apartments, penthouses and commercial units. (11/40th or 27.5%
undivided share in the schedule “A” property has been simultaneously
purchased by registered sale deeds by other persons from the owners, as
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apartments in the complex to be constructed by the developer therein.)II. WHEREAS the purchaser is an individual, desirous of owing an
apartment/commercial unit in the complex to be developed and named
“RIVIERA”.
III. WHEREAS pursuant to the sale by the owners of the schedule A
property in favour of the developer herein, the developer has entered into a
separate agreement of sale with the purchaser herein for sale to the
purchaser, of an undivided 1/40th or 2.5% share of the total land
comprising the schedule A property (which share of the total land
comprises 1/29th or 3.4483% undivided share of the extent purchased by
the developer) and is now entering into this agreement of construction,
both together forming parts of one package deal.IV. WHEREAS the purchaser has approached the developer for sale to
him/her of 1/40th undivided share in the schedule “A” property and the
same has been agreed to between developer and the purchaser under a
separate agreement sale dated 18.2.1994, and also for construction of the
property described in the schedule j below and hereinafter for brevity
referred to as the schedule “B” property comprising residential
apartment/commercial unit, in the complex proposed, with the
understanding that neither of the two agreements shall be capable of
cancellation without simultaneous automatic cancellation of the other
inasmuch as, a stated above, both constitute parts of one package deal a
transaction.
v. WHEREAS the developer has shown to the purchaser and the
purchaser has scrutinized, all documents and papers in possession of
developer, pertaining to the schedule A property and the rights of the
developer to develop the same, enter into this agreement and the ancilliary
agreement of sale in favour of the purchaser, etc.
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6. The purchaser agrees that he will have an undivided 1/40th share
in the land comprising the schedule A property and will not have or claim
any exclusive rights in respect of any specified area of the land.
8. The purchaser shall have no rights of possession in respect of the
schedule B property or any part thereof until full payment is made to the
Developer of all dues under this agreement as well as under the agreement
of sale.
9. The developer agrees that the construction shall be completed in all
aspects as per the specification and the said flat no.2 on the ground floor
and parking delivered on or before 31.12.2024 to the purchaser. In the
event of delay thereafter, for any reasons attributable to default on the part
of the developer, being factors within its control, the developer agrees to
pay to the purchaser compensation for the delay at the rate of Rs.2/-
(Rupees two only) per month per sq.ft. of carpet area of the schedule B
property till such time as the schedule B property is ready for delivery, the
payments for the concerned month’s delay being made on or before the
expiry of the fifth day of the succeeding month.
11. The purchaser agrees and undertakes that the purchaser shall not be
entitled to object to any inconvenience that will be caused on account of
any other construction being carried out in the schedule A property on any
part thereof at any time including the gathering of men and materials,
erecting of scaffolding, etc., laying of electric supply lines, etc., drainage
and other pipes, conduits, cable T.V. cables, telephone and other cables,
construction of sumps, overhead tanks, and other building activity, and/or
due to dust, noise and the like.
Schedule A and B are mentioned in the agreement of construction but
they do not find place in the document.
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35.16 Exs.A85, A88, A89 and A92 are the property tax demand
notices dated 22.06.2009, 31.07.2010, 13.05.2011 for door No.6-3-
347/9/103. Exs.A86, A87, A90 and A91 are the provisional receipt for
cheque showing the name of the plaintiff with house No.6-3-347/9/103.
Ex.A93 is the acknowledgment card of Southern Power Distribution
Company of Telangana Limited in the name of the plaintiff for service
connection No. A5018942.
35.17 Ex.A105 is the certified copy of judgment in O.S.No.2288 of
2005 dated 31.03.2009 wherein the suit filed by the plaintiff in
O.S.No.2288 of 2005, was decreed in part granting the relief of
permanent injunction restraining the defendants therein, their
employees, agents from interfering with the peaceful possession and
enjoyment of the suit schedule property.
36. Ex.106 is the decree in O.S.No.2288 of 2005 dated 31.03.2009.
The schedule property is flat No.103 on the ground floor of Riviera
Apartments municipal bearing No.6-3-347/9 admeasuring 1650 sq.fts.
Ex.A107 is the certified copy of deposition of B.Govinda Reddy,
Managing Director of defendant No.1. The relevant portion of the
deposition is as under:
‘I received amount under receipts [Exs.A2 to A15, A17 to A20 marked in
O.S.No.2288 of 2005]. It is true that the amount covered under the said
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2001 construction was completed and possession of the schedule flat was
delivered to the plaintiff.’
37.1 Chief Executive Officer of the plaintiff is examined as PW1 – C.
Sanjay Reddy. His evidence is the same with that of the original plaint
averments. Witness was cross-examined on 22.02.2017 by the learned
counsel for defendant Nos.3 to 5. He stated that Ex.A1 does not contain
the signature of the plaintiff or the counsel for the plaintiff. Ex.A2 does
not contain the date of delivery of possession. Ex.A10 does not reflect
flat number. Suit is filed for flat No.103 ground floor. Witness adds that
the ground floor is above the parking lot on the stilt and it is taken as
first floor. The possession of the suit schedule property was given in the
month of March 2001 to the plaintiff. Ex.A38 does not specifically
authorize him to give evidence in the present suit. Witness adds that
Ex.A38 is a general authorization. The schedule of property mentioned
in the plaint and its boundaries with that of Ex.A29 sale deed are
different. Witness adds that Ex.A29 is executed in the year 1994. He do
not remember whether he has filed any document to show that the
construction of the flat subsequent to Ex.A29. In Ex.A30 – Form 8,
property mentioned as flat No.103 in first floor and whereas in the plaint
schedule property mentioned as flat No.103 ground floor. Witness adds
that the ground floor is located on the stilt above the parking lot, hence
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it is designated as first floor. Ex.A37 agreement of construction was
executed prior to Ex.A29 sale deed. Ex.A37 is not a registered
document. As per Ex.A37, flat number given for construction is flat
No.2 on the first floor. Witness adds that flat No.103 was assigned after
building approval. He has not filed agreement of sale executed between
the developer and the plaintiff as referred in Ex.A37. There is document
subsequent to Ex.A37 executed between the developer and the plaintiff,
i.e., Ex.A29. There is no other agreement executed between the
developer and the plaintiff after Ex.A37.
37.2 Witness further stated in his cross-examination that Govinda
Reddy was the Managing Director of defendant No.1 and he executed
Ex.A20. Ex.A20 does not disclose the mode of payment, i.e, by way of
cash or cheque. Ex.A20 does not reflect the suit schedule flat No.103.
Plaintiff has not filed any document to show that Mr.Govinda Reddy was
the Managing Director of defendant No.1 company. Witness adds he has
filed Ex.A20. Plaintiff’s name is not mentioned in Exs. A15 to A19 and
A21 to A25. Witness adds that it is mentioned as M/s.Cipior Organics.
All the payments under Exs.A15 to A19 and A21 to A26 are by way of
cheques and flat No.103 is not mentioned therein. Plaintiff paid total
amount of Rs.7,31,750/- towards agreement of sale and agreement of
construction to defendant No.1. Ex.A27 does not disclose the amount
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paid by way of cash or cheque. Format of Exs.A20, A27, A32, A33, A34
and A35 are different from that of Exs.A15 to A19 and A21 to A26.
Signatures on Exs.A26 and A27 are different. Ex.A28 does not contain
the suit schedule flat No.103. Ex.A34 does not contain the name of
defendant No.1. Ex.A35 does not show the registration charges are
towards flat No.103. Witness adds that they are towards registration of
the suit property. He is not a witness to Ex.A36. It is not mentioned in
Exs.A6 to A9 as to whether flat No.103 is situated in ground floor or first
floor. Exs.A32, A33 and A35 does not mention the flat No.103.
37.3 PW1 was further cross-examined on 28.02.2017 wherein he stated
that Exs.A29 and A37 do not mention the flat No.103 and the plaintiff
has filed criminal case against defendant No.1. Plan annexure to the
plaint is not marked. Parties to the documents and description of the
documents are not mentioned in the list of plaint documents at serial
Nos.4 to 19 of the amended fair copy of the plaint. Consortium
Management Services Private Limited were the tenants of the plaintiff
from 2006 for a period of 4 to 5 years. He do not remember the exact
year when they have vacated the property. He has not filed rental deed
or rental receipts to show that Consortium Management Services Private
Limited are the tenants of the plaintiff. Witness adds that he has filed
Exs.A6 to A9 which are the maintenance receipts issued by the
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association showing the payment of maintenance charges by the tenant.
He do not recollect what was the rent paid by the tenant initially and
they used to pay by way of cheque and sometimes by way of cash. At
present there is no tenant in the suit schedule property. PW1 denied the
suggestion that tenant is not in possession of the suit schedule property
as on the date of filing of the suit. He also denied the suggestion that
defendant No.2 has purchased the suit schedule property from
defendant No.1 through registered sale deed bearing document No.1282
of 2002 dated 08.07.2002 and that the possession was delivered vide
letter of delivery of possession dated 08.07.2002 confirming the delivery
of possession. He also denied the suggestion that suit schedule property
was not sold to the plaintiff and no such construction was made by
them, that is the reason why he did not file any documents as proof of
the said construction. He denied the suggestion that plaintiff has filed
the suit in collusion with defendant No.1.
38.1 PW2 – N.N.Devarajan is the Assistant Manager (Legal) of the
plaintiff, his evidence is that plaintiff is in possession of the flat No.103
and they were paying maintenance charges maintained by Riviera
Apartments Owners Welfare Association and they were also paying
municipal taxes, electricity bills. Plaintiff is in possession of the suit
schedule property since 2001 and continued to be in possession of the
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same. Defendant No.2 was never in possession of the suit schedule
property and possession was never delivered to him by defendant No.1.
Learned VI Senior Civil Judge, City Civil Court, has decreed the suit in
O.S.No.2288 of 2005 vide judgment and decree dated 31.03.2009
restraining the defendant No.1 and its directors from interfering with the
peaceful possession of the plaintiff over the suit schedule property,
specifically held that the plaintiff is in possession of the suit schedule
property.
38.2 PW2 was cross-examined by learned counsel for defendant Nos.3
to 5 on 04.08.2017. He stated that he has not filed the original of
Ex.A39 in the case and it does not bear any date. Plaintiff has not filed
the bank statement evidencing that the cheque Ex.A39 has been
encashed. Exs.A70 and A71 signatures are different from each other.
Witness adds that they have been signed by different persons. Ex.A70 is
signed by Mr.Chandy and Ex.A71 is signed by G.Sreemannarayana as
secretary of the welfare association. Ex.A71 is signed by
G.Sreemannarayana for secretary. Receipts under Exs.A42 to A84 do
not bear the revenue stamps and there is no official seal of welfare
association on the said receipts. In Ex.A65 there is a note by the
association for enhancement of maintenance from Rs.1,200/- per month
to Rs.1,500/- per month with effect from July 2012. Plaintiff has not
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filed any bank statements to show encashment of the cheques. All the
payments of maintenance made to the welfare association were through
cheques only. Exs.A40 to A84 are prescribed as receipts but not as pre-
receipts. Plaintiff is in occupation of the suit schedule property and they
are storing the records. O.S.No.4162 of 2009 on the file of XII Junior
Civil Judge, City Civil Court, Hyderabad is filed by T. Srinivas Yadav
seeking injunction and it is at the stage of arguments. The suit was
originally filed against the owner of flat No.104 and they got impleaded
in the said suit.
38.3 PW2 was recalled as per the orders in I.A.No.528 of 2018 dated
07.09.2018 for marking of documents i.e., Exs.A105 to A107.
38.4 In his cross-examination he stated that he is not aware that the
decree under Ex.A106 was passed after compromise between the parties
to the suit. He has not filed sale deed relating to the suit schedule
property in O.S.No.2288 of 2005. Witness adds that at that time sale
deed was pledged with Vijaya Bank, Haridwar Branch. In Ex.A37 clause-
1, it is mentioned as flat No.2 on the first floor. Witness adds that flat
No.2 is in the ground floor as mentioned in clause-3. The property in
respect of Ex.A37 and the property covered by Ex.A105 are one and the
same. As per Exs.A105 and A106 the schedule property is flat No.103 in
ground floor. Witness adds that flat No.002 has been changed to flat
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No.103. He has not filed any document either in O.S.No.2288 of 2005 or
in O.S.No.1736 of 2006 to show that flat No.002 has been changed to
flat No.103. Witness adds that the builder tentatively given numbers as
flat Nos.001, 002 and 003 etc. He has not filed the possession, delivery
letter in O.S.No.2288 of 2005. Witness adds that the said letter was
pledged with Vijaya Bank, Haridwar branch. Ex.A2 was given in March
2001, it does not bear any date. He denied the suggestion that Ex.A2 is
not a letter of delivery of possession and it is only confirmation of
delivery of possession. Ex.A2 does not specifically say when possession
was delivered. PW2 denied the suggestion that after filing the criminal
case against defendants in O.S.No.2288 of 2005, they have illegally
occupied the suit schedule property. He do not remember when the
criminal case was withdrawn. He also denied the suggestion that sale
deed does not say whether it is flat No.002 or flat No.103, whether it is
in ground floor or in first floor. Witness adds that the sale deed is in
respect of undivided share of land. He also denied the suggestion that
they have colluded with defendant No.1 and filed the suit and they are
not in possession of the suit schedule property.
38.5 PW2 was recalled for marking the documents vide orders in
I.A.No.528 of 2018 dated 07.09.2018 and he was examined further in
chief on 26.10.2018 by that time additional written statement and
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counter claim filed by defendant No.3 to 5 were already on record, in
spite of it there is no suggestion to the witness with regard to the
pleadings in the counter claim.
39. Ex.B1 is the certified copy of registered sale deed bearing
document No.1282 of 2002, dated 08.07.2002 which is executed by
defendant No.1 by its Managing Director B.Govinda Reddy in favor of
defendant No.2. In internal page No.6 of Ex.B1 the total sale
consideration fixed is Rs.7,00,000/- and it is mentioned in paragraph
No.4 of internal page No.6 that defendant No.2 has paid Rs.2,00,000/-
by way of cheque No.034751 dated 30.09.1993 and Rs.2,00,000/- by
way of cheque No.034752 on the same date and an amount of
Rs.3,00,000/- is paid by way of D.D.No.668687 dated 08.07.2002 i.e, on
the date of execution of sale deed dated 08.07.2002. The schedule
property is shown as flat No.103 on ground floor of Riviera Apartment,
admeasuring 1800 square feets. Ex.B2 is the delivery of possession
letter dated 08.07.2002 confirming the delivery of flat No.103 to
defendant No.2.
40.1 Defendant No.4 is examined as DW1, her evidence is similar to the
written statement and the counter claim.
40.2 In her cross examination she stated that except the suit schedule
flat her father did not buy any other property in Hyderabad. Except
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Exs.B1 to B3 and B8, she has no other document to show that her
father has purchased the suit schedule flat and exercised his right over
the said flat as its owner. She do not know whether her father has
entered into any agreement of sale with defendant No.1 earlier to the
alleged purchase of the suit flat under Ex.B1. She do not know whether
her father has disclosed the transaction under Ex.B1 in his income tax
returns or before any other government authorities. She do not know
whether her father has obtained electricity service connection in respect
of the suit flat. She do not know whether her father has mutated his
name as owner in the municipal corporation records. She do not know
whether her father has paid any property tax in respect of the suit
schedule flat, maintenance charges to the association of the apartment.
Except Exs.B1 and B2 she has no other document to show that her
father was given possession of the suit schedule flat on 08.07.2002. She
do not know that as on 08.07.2002 plaintiff was in possession of the
suit schedule flat. She do not know that her father was not given
possession of the suit schedule flat on 08.07.2002. She do not know
that earlier to 1993 to 1994 there was a practice that the
developers/owners used to register the sale deeds in respect of
undivided share in the land and after construction of the building the
flats were used to be conveyed to the purchaser by the letter of delivery.
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According to her M/s. Consortium Management Services Private Limited
is in possession of the suit schedule flat as on date.
40.3 DW1 further stated in her cross examination that plaintiff was in
possession of the suit schedule flat as on the date of filing the suit.
Plaintiff is also in possession of the suit schedule flat as on the date
[13.07.2018]. She did not verify from her father as to how the plaintiff
came into possession of the suit schedule flat. It may be true that the
plaintiff is paying the property tax, maintenance charges, electricity
consumption chargers to the respective authorities in respect of the suit
schedule flat. She do not remember whether her father has informed her
that in first week of August 2006, when he went to Hyderabad, he found
the suit schedule flat in occupation of M/s. Consortium Management
Services Private Limited. DW1 denied the suggestion that herself and
defendant Nos.3 & 5 are not entitled for counter claim properties, on the
other hand plaintiff is entitled for the relief claimed in the suit.
41.1 In T.K. Mohammed Abubucker1, Supreme Court held at paragraph
No.13 which reads as under:
13. Though title to an immovable property is usually established by tracing
it for a period of thirty years, many a time, the search and tracing is
restricted to a minimum period of twelve years, presumably with reference
to Articles 64 and 65 of the Limitation Act, 1963. Further, where the title is
traced to a grant or transfer by the Government or a statutory development
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is not taken prior to such transfer/grant, even if such transfer/grant is
within twelve years.
41.2 In Ashok Kumar Kalra2, a three-judge bench of the Supreme Court
of India answered a crucial legal reference concerning the interpretation
of Order VIII Rule 6A of the CPC and observed at paragraph No.20 which
reads as under:
20. We sum up our findings, that Order VIII Rule 6A of CPC does not put
an embargo on filing the counter-claim after filing the written statement,
rather the restriction is only with respect to the accrual of the cause of
action. Having said so, this does not give absolute right to the defendant to
file the counter-claim with substantive delay, even if the limitation period
prescribed has not elapsed. The court has to take into consideration the
outer limit for filing the counter-claim, which is pegged till the issues are
framed. The court in such cases have the discretion to entertain filing of
the counter-claim, after taking into consideration and evaluating inclusive
factors provided below which are only illustrative, though not exhaustive:
i. Period of delay.
ii. Prescribed limitation period for the cause of action pleaded.
iii. Reason for the delay.
iv. Defendant's assertion of his right.
v. Similarity of cause of action between the main suit and the
counterclaim.
vi. Cost of fresh litigation.
vii. Injustice and abuse of process.
viii. Prejudice to the opposite party.
ix. and facts and circumstances of each case.
x. In any case, not after framing of the issues.
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After the reference is answered the matter is sent back to the
appropriate bench.
41.3 The Honorable Supreme Court in Ashok Kumar Kalra3 vide order
dated 08.01.2020 observed as under:
A counter-claim was filed after the issues were framed, the said counter-
claim cannot be filed as per the law laid down by this judgment.
Consequently, the Special Leave Petition is dismissed. However, it will be
open for the petitioner to file a fresh suit based on the cause of action in
the counter – claim if it is otherwise permissible in law.
41.4 In The Duraiswami Reddi4, High Court of Madras held at
paragraph No.2, which reads as under:
The law gives four months’ period for registration and if the document is
registered within that date, the subsequent transferee cannot be heard to
say that as he got his document without notice, and during this period
allowed to the earlier transferee, got his own document registered he must
be deemed to be a bona fide purchaser for value. Such a plea, if allowed,
would lead to much fraud. If a later document registered earlier is to prevail
over an earlier document registered later it would always be easy for the
vendor and the later purchaser to enter into a transaction within the time
given for registration of the earlier document and get the new deed
registered immediately and thus defeat the purchaser under the earlier
deed. The correct proposition is set down in the following short passage in
Mulla’s Indian Registration Act under Section 47:
If there is a competition between registered documents relating to the same
property, the document executed first in order of time has priority over the
other, though the former document may not have been registered until
after the latter.
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paragraph Nos.19 and 27, which reads as under:
19. The restriction imposed upon legal heirs, who are required to take
up a defence limited to their character as legal representatives, under
Order XXII Rule 4(2) of CPC, would not, for instance, permit the legal
representative to take up defences inconsistent or independent with the
original defendant’s defence, if any, and/or file a counter-claim along with
his written statement, if a counter-claim had not already been filed by the
original defendant.
27. It is clear as daylight that a defendant, who is impleaded as legal
representative of the deceased- defendant, is entitled to take up a defence
and such pleas and defence can be taken up only by filing a written
statement. Whether such a written statement is in addition to the written
statement filed by the original defendant or whether it is a written
statement sought to be filed by the legal representatives after the suit was
directed to be heard as an undefended suit, is not material. Even if the
original defendant had not filed a written statement, as in the present case,
the legal representatives – defendant nos.5(a) to 5(c) cannot be deprived of
their right to file a written statement. It is another matter altogether as to
the contentions that can be taken up by defendant nos.5(a) to 5(c), that will
be open for consideration at an appropriate time; provided a written
statement is filed. The plaintiffs’ attempt to thwart the filing of the written
statement cannot be sustained for those reasons. In this view of the matter,
I am of the opinion that defendant nos.5(a) to 5(c), in the present case, are
entitled to file their written statements notwithstanding the order dated
22nd March 2019, which directs the suit to proceed undefended against
defendant nos.1, 3, 4 and 5.
42.1 In Jagdish Chander Chatterjee6, Supreme Court observed at
paragraph No.10, which reads as under:
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10. Under sub-clause (ii) of Rule 4 of Order XXII of the Civil Procedure Code
any person so made a party as a legal representative of the deceased,
respondent was entitled to make any defence appropriate to his character
as legal representative of the deceased – respondent. In other words, the
heirs and the legal representatives could urge all contentions which the
deceased could have urged except only those which were personal to the
deceased. Indeed this does not prevent the legal representatives from
setting up also their own independent title, in which case there could be no
objection to the court impleading them not merely as the legal
representatives of the deceased but also in their personal capacity avoiding
thereby a separate suit for a decision on the independent title.42.2 In Bal Kishan7, Supreme Court observed at paragraph No.3 which
reads as under:
Order XXII Rule 4 of the Code of Civil Procedure, 1908 provides that where
one of two or more defendants dies and the right to sue does not survive
against the surviving defendant or defendants alone, or a sole defendant or
sole surviving defendant dies and the right to sue survives, the court, on an
application made in that behalf, shall cause the legal representative of the
deceased defendant to be made a party and shall proceed with the suit.
Since the action in this case related to property, the right to sue did survive
and the Rent Controller was right in bringing the legal representative of the
deceased Musadi Lal on record. Sub-rule (2) of Rule 4 Order XXII
authorises any person who is brought on record as the legal representative
of a defendant to make any defence appropriate to his character as legal
representative of the deceased defendant. The said sub-rule authorises the
legal representative of a deceased defendant or respondent to file an
additional written statement or statement of objections raising all pleas
which the deceased tenant had or could have raised except those which
were personal to the deceased defendant or respondent.
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under:
28. The statutory provisions of the Limitation Act have undergone a
change when compared to the terms of Articles 142 and 144 of the
Schedule appended to the Limitation Act, 1908, in terms whereof it was
imperative upon the plaintiff not only to prove his title but also to prove his
possession within twelve years, preceding the date of institution of the suit.
However, a change in legal position has been effected in view of Articles 64
and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-
respondents have proved their title and, thus, it was for the first defendant
to prove acquisition of title by adverse possession. As noticed hereinbefore,
the first defendant-appellant did not raise any plea of adverse possession.
In that view of the matter the suit was not barred.
42.4 In Prem Singh9, Supreme Court observed at paragraph No.27
which as under:
27. There is a presumption that a registered document is validly
executed. A registered document, therefore, prima facie would be valid in
law. The onus of proof, thus, would be on a person who leads evidence to
rebut the presumption. In the instant case, Respondent 1 has not been
able to rebut the said presumption.
42.5 In Sumtibai10, Supreme Court observed at paragraph No.8, which
reads as under:
8. Every party in a case has a right to file a written statement. This is in
accordance with natural justice. The Civil Procedure Code is really the
rules of natural justice which are set out in great and elaborate detail. Its
purpose is to enable both parties to get a hearing. The appellants in the
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strange if they are not allowed to take a defence. In our opinion, Order XXII
Rule 4(2) CPC cannot be construed in the manner suggested by learned
counsel for the respondent.
42.6 In Suraj Lamps and Industries Private Limited11, Supreme Court
observed at paragraph Nos.18, 23 and 24 as under:
18. It is thus clear that a transfer of immovable property by way of sale can
only be by a deed of conveyance (sale deed). In the absence of a deed of
conveyance (duly stamped and registered as required by law), no right, title
or interest in an immovable property can be transferred.
23. Therefore, an SA/GPA/will transaction does not convey any title nor
creates any interest in an immovable property. The observations by the
Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841] ,
that the “concept of power-of-attorney sales has been recognised as a mode
of transaction” when dealing with transactions by way of SA/GPA/will are
unwarranted and not justified, unintendedly misleading the general public
into thinking that SA/GPA/will transactions are some kind of a recognised
or accepted mode of transfer and that it can be a valid substitute for a sale
deed. Such decisions to the extent they recognise or accept SA/GPA/will
transactions as concluded transfers, as contrasted from an agreement to
transfer, are not good law.
24. 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 recognised or
valid mode of transfer of immovable 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 recognised as deeds of title, except to the limited extent of
Section 53-A 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
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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.
42.7 In Vasavi Cooperative Housing Society Limited12 Supreme Court
observed at paragraph No.15 as under:
The legal position, therefore, is clear that the plaintiff in a suit for
declaration of title and possession could succeed only on the strength of its
own title and that could be done only by adducing sufficient evidence to
discharge the onus on it, irrespective of the question whether the
defendants have proved their case or not. We are of the view that even if the
title set up by the defendants is found against, in the absence of
establishment of plaintiff’s own title, plaintiff must be non-suited.42.8 In Vinod Infra Developers Limited13, matter partings to rejection of
plaint. Hence, the same is not applicable to the case facts.
42.9 In Hemalatha14, Supreme Court observed at paragraph No.31 as
under:
It is a settled position of law that a registered Sale Deed carries with it a
formidable presumption of validity and genuineness. Registration is not a
mere procedural formality but a solemn act that imparts high degree of
sanctity to the document. Consequently, a Court must not lightly or
casually declare a registered instrument as a “sham”
42.10 In Bayyarapu Narayan Raidu15, High Court of AP, observed
at paragraph No.20 as under:
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20.When it is not necessary as per the provisions of the Limitation Act,
1963 twelve years from the date of his dispossession, it is not necessary to
decide the issue when the plaintiff was dispossessed from the plaint
schedule property. Therefore, in my opinion, the lower appellate court erred
in remanding the matter to the trial court to frame and decide the issue
“when the plaintiff was disposed from the plaint schedule property”. When
there is no plea of adverse possession raised by the defendant, there is also
no need to decide the issue whether the suit is barred by limitation.42.11 In Saved Sirajul Hasan16, High Court of Delhi, observed that
“legal representative had the right to make the defense and to file
written statement.”
43. It is apt to refer Order VIII Rule 6 (A)(1) and Order VIII Rule 9 of
CPC, which reads as under:
6A. Counter-claim by defendant.–(1) A defendant in a suit may, in addition
to his right of pleading a set-off under rule 6, set up, by way of counter-
claim against the claim of the plaintiff, any right or claim in respect of a
cause of action accruing to the defendant against the plaintiff either
before or after the filing of the suit but before the defendant has delivered
his defence or before the time limited for delivering his defence has
expired, whether such counter-claim is in the nature of a claim for
damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of
the jurisdiction of the court.
9. Subsequent pleadings.–No pleading subsequent to the written
statement of a defendant other than by way of defence to set-off or counter-
claim shall be presented except by the leave of the Court and upon such
terms as the Court thinks fit; but the Court may at any time require a
written statement or additional written statement from any of the parties
and fix a time of not more than thirty days for presenting the same.
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44. Ex.A37 is the agreement of construction dated 18.02.1994
executed by and between defendant No.1 and plaintiff. The recitals goes
to show that developer shall construct flat No.2 on the first floor with a
super built up area of 1650 sq.fts. Clause – 3 of the agreement states
that flat No.2 in the ground floor is intended for commercial use as
described in the schedule – B as per the specifications set out in
annexure – II. Clause IX of the construction agreement states that the
construction shall be completed in all aspects as per specifications on
flat No.2 on the ground floor with parking on or before 31.12.1994.
Payment schedule is shown in annexure – I. It is to be noted here that in
clause V sub clause 4 it is mentioned that purchaser has approached
the developer for sale to him/her i.e., 1/40th undivided share in
schedule “A” property and the same has been agreed to between the
developer and the purchaser under a separate agreement of sale dated
18.02.1994. Agreement of sale is dated 18.02.1994 and agreement of
construction is on the same day.
45. Ex.A29 is the sale deed of the plaintiff dated 23.07.1994. In
internal page No.5 there is a reference to an agreement of sale and
agreement of construction between the parties.
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46. Ex.A27 receipt dated 18.10.1994 goes to show that full payment
for car parking is made for flat No.103. Under Ex.A28 plaintiff addressed
letter to defendant No.1 through executive director that flat has to be
ready by 31.12.1994 for possession. Ex.A36 letter dated 19.10.1994 is
issued by defendant No.1 to plaintiff stating that brick work of flat
bearing No.103 is completed. Prior to executing Ex.A29 sale deed dated
23.07.1994 plaintiff has entered into agreement of sale and agreement of
construction on 18.02.1994 itself which is reflected in Ex.A29 so also in
Ex.A37 with regard to agreement of sale. As per Ex.A3 – legal notice got
issued by defendant No.2 to M/s.Consortium Management Services
Limited wherein he stated that after purchase of the property under
Ex.B1 he locked the same as he being the permanent resident of
Mumbai and when he came to Hyderabad in first week of August 2006
he was shocked to find that M/s.Consortium Management Services
Limited was in possession. As per Ex.B1 defendant No.2 sale deed is
dated 08.07.2002, there is no record to show that what has transpired
between 2002 to August 2006. Defendant Nos.3 to 5 have not filed any
document except Exs.B1 and B2 to show that possession of flat No.103
was delivered to defendant No.2 by Riviera apartments.
47. As stated supra M/s.Consortium Management Services Limited
was in occupation of flat No.103 and Riviera apartment owners’ welfare
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association have got issued Exs.A6 to A10 in respect of flat No.103.
Plaintiff has also paid maintenance charges to Riviera Apartment
Owners’ welfare association which are evident from Exs.A40 to A84
showing the name of the plaintiff with flat No.103. Exs.A15 to A27, A32,
A35 and A39 are of the year 1994 of different dates and different months
showing the payments made by plaintiff to defendant No.1. Ex.A29 sale
deed came to be executed in favour of the plaintiff with regard to
undivided 1/40th share.
48. Ex.A2 confirms the delivery of possession of flat No.103 to the
plaintiff. Though date is not mentioned in Ex.A2 but possession of the
flat No.103 is given to the plaintiff by defendant No.1, in pursuance of
which plaintiff and his tenant have paid Riviera apartment owners’
welfare association maintenance charges
49. Ex.A107 is the deposition of B.Govinda Reddy managing director
of defendant No.1. In his cross examination in O.S.No.2288 of 2005 he
stated that amount covered under the receipts pertains to construction
of flat No.103 in Riviera apartments. In 2001 construction was
completed and possession of the schedule flat was delivered to the
plaintiff. Though learned counsel for defendant Nos.3 to 5 has raised
objection with regard to marking of Ex.A107 the learned Trial Court has
rejected the same and got marked the deposition.
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50. Learned senior counsel has also raised similar objection in the
appeal in his written arguments contending that it is barred under
Section 33 of the Indian Evidence Act. The learned Trial Court has
already decided the said issue.
51.1 As per Ex.B1 the property claimed by defendant No.2 is flat
No.103 admeasuring 1800 sq.fts. Delivery of possession was given on
08.07.2002. There is no explanation from defendant Nos.3 to 5 why the
property was kept locked right from 08.07.2002 to 07.10.2006 [date of
issuing legal notice] when defendant No.2 came down to Hyderabad in
the month of August, 2006. DW1 admitted in her cross examination
that she has not filed any document except Exs.B1 and B2.
51.2 Learned senior counsel for defendant Nos.3 to 5 submits that
Ex.A14 – written statement is filed by defendant No.1 in O.S.No.2288 of
2005 after the execution of Ex.B1- sale deed dated 08.07.2002 in favour
of defendant No.2. Ex.B1 is neither challenged by defendant No.1 and
the plaintiff. It is to be noted here that Ex.A27 receipt dated 18.10.1994,
Ex.A34 – receipt dated 01.03.2001 and Ex.A36 – letter dated 19.10.1994
shows the flat No.103, which receipts were issued by defendant No.1 in
favour of the plaintiff. The above said receipts are in the year 1994 and
2001 much prior to Ex.B1. Hence the contention of the senior counsel is
negatived.
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52. Defendant Nos.3 to 5 have filed their counter claim with the leave
of the Court with additional written statement, which permission is
accorded by the learned Trial Court in I.A.No.912 of 2017 dated
29.01.2018 by which time PW1 and PW2 were cross examined. After
filing of the counter claim by defendant Nos.3 to 5, they have not
recalled PW1 and PW2 to put forth their defence that they are entitled
for declaration and recovery of possession. PW1 and PW2 were not cross
examined by learned counsel for defendant Nos.3 to 5 in respect of the
counter claim schedule property except the evidence of DW1. Though
PW2 was recalled for marking Exs.A105 to A107, even then defendant
Nos.3 to 5 failed to put any questions with regard to the defence taken
by them in their additional written statement and counter claim.
53. The learned Trial Court has misread the evidence of the parties
and drawn an adverse inference against the plaintiff for not filing the
agreement of sale dated 18.02.1994.
54. The admissions made by the managing director of defendant No.1
in O.S.No.2288 of 2005 under Ex.A107 is sufficient to come to a
conclusion that flat No.103 was delivered to the plaintiff which is
supported with Riviera apartment owner’s welfare association receipts
towards maintenance (Exs.A6 to A9, A40 to A84) with that of the
property tax and electricity bills (Exs.A5, A13, A94, A96, A98, A100 and
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A102) Furthermore the suit filed by the plaintiff in O.S.No.2288 of 2005
in respect of Falt No.103 came to be decreed under Exs.A105 and A106.
Though defendant No.2 is not a party to the said suit in view of the
admission made by the managing director of the defendant No.1, when
the property is delivered to the plaintiff in the year 2001 with regard to
flat No.103, it is the defendant Nos.3 to 5, to explain how Ex.B1 came
into existence. Though there is a discrepancy with regard to mentioning
of flat numbers in Ex.A37, the receipts filed by the plaintiff shows that
flat No.103 is delivered to him by the defendant No.1 in the ground floor.
55.1 T.K.Mohammed Abubucker1 is not applicable to the case on hand
as the facts are distinguishable from the facts of the present case.
55.2 The decision in Duraiswami Reddi4 is not applicable to the case on
hand in view of the fact that Ex.A29 sale deed dated 23.07.1994 is in
respect of undivided 1/40th share in 2000 sq.yds equivalent to 50 sq.yds
or 41.806 sq.mts in MCH.No.6-3-347/9. Ex.B1 sale deed dated
08.07.2002 is in respect of Flat No.103.
56.1 Since plaintiff is holding registered documents in his favour under
Ex.A29 for undivided 1/40th share in 2000 sq.yds in H.No.6-3-347/9
and defendant Nos.3 to 5 are holding Ex.B1-sale deed in respect of Flat
NO.103. Both the above said documents are registered sale deeds, hence
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the decisions in Prem Singh9 and Hemalatha14 are not applicable to the
case on hand as the facts are distinguishable.
56.2 Suraj Lamp and Industries Private Limited11 is not applicable to
the case on hand as the facts are distinguishable.
57. Plaintiff and defendant Nos.3 to 5 are claiming their title through
defendant NO.1. Plaintiff could able to prove title over the suit schedule
property with the evidence of PW1, PW2, Exs.A27, A29, A34, A36, A105
– A107 and other documents i.e., Exs.A6-A9, A40 to A84 with that of
electricity bills i.e., Exs.A5, A13, A94, A96, A98, A100 and A102.
Defendant Nos.3 to 5 failed to prove their title, hence Vasavi Co-
operative Housing Society Limited12 goes against defendant Nos.3 to 5
case.
58. This Court is of the view that the learned Trial Court has misread
the evidence of PW1, PW2 with that of the documents marked thereon.
The learned Trial Court has not appreciated the evidence in proper
perspective by taking into consideration the documents marked on
behalf of the plaintiff with that of the admissions made by the managing
director of the defendant No.1 under Ex.A107 and erroneously came to a
conclusion that the plaintiff failed to prove his case and that he is not
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entitled for declaration and allowed the counter claim filed by defendant
Nos.3 to 5.
59. As stated supra, no suggestion is put by learned counsel for
defendant Nos.3 to 5 before the learned Trial Court to PW1 and PW2
about the counter claim schedule property and they have not cross
examined PW1 and PW2 on the said aspect. Taking into consideration
the totality of the circumstances, this Court is of the view that the
judgment and decree passed by the learned Trial Court and in allowing
the counter claim filed by defendant Nos.3 to 5 suffers from perversity
and illegality and the same are liable to be set aside and are accordingly
set aside. Hence points are answered accordingly.
Point No.v:
60. The learned Trial Court in paragraph No.28 of its judgment
observed that counter claim filed by defendant Nos.3 to 5 is within time
as per Article 65 of the Limitation Act and the learned Trial Court
further observed that the plaintiff company did not specify as to how the
counter claim of defendant Nos.3 to 5 is barred by limitation, the period
of limitation to file suit for recovery of possession of the property is 12
years and therefore, the counter claim filed by defendant Nos.3 to 5 on
19.09.2017 is within the prescribed period of limitation from the date
when the defendant No.2 noticed that M/s. Consortium Management
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Services Private Limited is in occupation of the schedule flat in the first
week of August, 2006.
61. At the cost of repetition, defendant No.5 has filed adoption memo
on 09.11.2016, defendant No.3 has filed adoption memo on 07.12.2016
and defendant No.4 has filed adoption memo on 22.12.2016 adopting
the written statement filed by defendant No.2.
62. The learned Trial Court has returned the additional written
statement and counter claim filed by defendant No.3 on 30.11.2017
raising office objection as:
1. —-
2. State how the counter claim is maintainable after the issues are settled
and after trial is commenced.
63. Counter claim came to be received by the learned Trial Court on
29.01.2018 by allowing I.A.No.912 of 2017. On close reading of Order
VIII Rule 6(a) of CPC it states that a defendant in a suit may in addition
to his right of pleading a set-off, under Rule 6, set up, by way of
counter-claim against the claim of the plaintiff, any right or claim in
respect of cause of action accruing to the defendant against the plaintiff
either before or after the filing of the suit but before the defendant has
delivered his defence or before the time limited for delivering his defence
has expired, whether such counter claim is in the nature of a claim for
damages or not.
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64. Written statement of defendant No.2 is filed on 08.12.2006, issues
came to be framed on the same day.
65. In Ashok Kumar Karla2 [Three Judge Bench of the Supreme Court
on reference] has held that the restriction is only with respect to the
approval of cause of action, it does not give absolute right to the
defendant to file counter claim with substantive delay, even if the
limitation period prescribed has not elapsed. The Court has to take into
consideration the outer limit for filing counter claim which is pegged till
the issues are framed.
66. In Ashok Kumar Karla3 the Supreme Court held that counter
claim cannot be filed after issues are framed. The above said judgment
is squarely applicable to the case on hand. The decision in Gopaldas
and company5 is not applicable to the facts of the case as facts differ.
67. The decision in Jagdish Chander Chatterjee6, Bal Kishan7, Saroop
Singh8, Sumtibai10, Bayyarapu Narayan Raidu15 and Saved Sirajul
Hasan16 are distinguishable from the facts of the present case and they
are not applicable to the case on hand.
68. Counter claim filed by defendant Nos.3 to 5 is with a substantive
delay. The learned Trial Court failed to look into the outer limit for filing
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counter claim which has to be pegged till the issues are framed. Hence
point is answered accordingly.
Point Nos.vi & vii:
69. In view of the reasons in point Nos. i to iv the judgment and
decree passed by the learned Trial Court in dismissing the suit filed by
the plaintiff and allowing the counter claim filed by defendant Nos.3 to 5
in O.S.No.1736 of 2006 dated 17.12.2018 suffers from perversity and
illegality, the same are liable to be set aside and are accordingly set
aside. Hence points are answered accordingly.
70. In the result CCCA.No.96 of 2019 and CCCA.No.116 of 2019 are
allowed and the judgment and decree passed by the learned V Senior
Civil Judge, City Civil Court, Hyderabad, in O.S.No.1736 of 2006 dated
17.12.2018 and in allowing the counter claim filed by defendant Nos.3
to 5, are set aside. Consequently the suit filed by the plaintiff is decreed
as prayed for and the counter claim filed by defendant Nos.3 to 5 is
dismissed.
71. I.A.No.1 of 2025 is also dismissed without costs.
Interim orders if any stands vacated. Miscellaneous petition/s if
any stands closed.
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_______________________________________
JUSTICE B.R.MADHUSUDHAN RAO
07.07.2026
Dua
