SHYAMALA Vs. RAMBILAS TAPADIA

JUDGEMENT

(1.) The appellants-Defendants 1, 4 and 5 filed the second appeal against the decree and judgement in A.S.No. 140 of 1987 dated 14.6.1990 on the file of the Additional Chief Judge, City Civil Court, Hyderabad in allowing the appeal and setting aside the decree and judgement in O.S.No. 761 of 1977 on the file of the V Additional judge, City Civil Court, Hyderabad. The second appeal was disposed of on 18.1.1999 and thereupon the 1st respondent-plaintiff filed Civil Appeal 760 of 2001 (SLP 8739 of 1999) on the file of the Supreme Court of India and the Supreme Court set aside the decree and judgement in S.A.No. 284 of 1991 and the second appeal was remanded to the trial Court to decide the second appeal on merits after framing substantial questions of law, if any, arises in the case. The brief facts of the case are as follows: Ram Bilas Tapadia, who is the plaintiff, filed O.S.No. 761 of 1977 on the file of the V Additional Judge, City Civil Court, Hyderabad praying for a declaration that he is the absolute owner of the suit property and for possession and also to cancel the sale deed dated 21.3.1974 executed by defendants 2 and 3 in favour of 1st defendant. The plaintiff averred in the suit that he is the absolute owner of the suit premises bearing Municipal No. 1.1.651 having purchased from the 2nd defendant for a consideration of Rs. 20,000/- under a registered sale deed dated 28.4.1972 and the plaintiff was put in possession of the said premises. The 2nd defendant also handed over his title deeds in respect of the suit property and the property was delivered to the plaintiff and the property was mutated in the Municipal records in the name of the plaintiff. In the year 1974, when the 4th defendant on behalf of the 1st defendant was interfering with his possession, O.S.No. 940 of 1974 was filed and temporary injunction was obtained. The plaintiff came to know that 2nd and 3rd defendants have jointly executed a sale deed in favour of the 1st defendant on 21.3.1974 for a sum of Rs. 25,000 transferring the suit property by giving door No.651/1 with the same schedule. 2nd and 3rd defendants committed fraud on the plaintiff and the 1st defendant. Since the 2nd defendant suppressed the fact that he nominally transferred the suit property in favour of 3rd defendant in the year 1971 under an agreement to re-transfer the property and the 2nd and 3rd defendants challenged the plaintiff's title, the plaintiff filed a suit for declaration, consequential possession and to set aside the sale deed dated 21.3.1974.

(2.) The 1st defendant was a minor at the time of filing of the suit and the Court guardian filed written statement on her behalf and subsequently when she attained majority, she filed the written statement denying the averments contained in the plaint. She denied the allegation that the plaintiff is the owner of the suit premises. Since the 1st defendant was a minor and her father was residing in America, 4th defendant was looking after the affairs. The 2nd defendant mortgaged the suit property to one K.Venkayya under a registered sale deed dt. 13.7.1971 and a symbolic possession was given to him and K.V.Subba Rao executed rental agreement in favour of K.Venkayya. K.V.Subba Rao let out the premises to several tenants and subsequently K.V.Subba Rao and K.Venkayya sold the suit property in favour of the 1st defendant under registered sale deed dated 21.3.1974 for a valid consideration and possession was delivered. The 2nd defendant did not execute any sale deed in favour of the plaintiff and the alleged sale deed is a forgery and the same is not valid in law. The plaintiff was never in possession of the property and the property was not mutated in his name. 4th defendant is collecting rents from the tenants. O.S.No. 940 of 1974 was dismissed on 24.8.1977 for default and so far the plaintiff has not taken any steps to get the suit restored. The 1st defendant purchased the suit property on 21.3.1974 and the plaintiff having filed the suit after August, 1977, the suit is barred by limitation. The plaintiff has no right and title and therefore the plaintiff is not entitled to the reliefs prayed for and hence the suit may be dismissed with costs.

(3.) 4th defendant filed written statement denying the averments. Since the 1st defendant was a minor and her father was working in America, 4th defendant was looking after the affairs of the suit property. The 2nd defendant mortgaged the suit property in favour of K.Venkayya under a registered sale deed and a symbolic possession was given to him and subsequently the said K.Venkayya and K.V.Subba Rao executed a registered sale deed dated 21.3.1974 in favour of the 1st defendant and delivered possession. 4th defendant has been managing the affairs and collecting the rents from the tenants. After filing of the suit O.S.No. 940 of 1974, the 2nd defendant informed that he has not executed any sale deed in favour of the plaintiff as claimed by him and the signatures in the said sale deed are not that of K.V.Subba Rao and his thumb impressions were not taken in the said sale deed. The suit is barred by limitation.