Telangana High Court
A.V.G. Krishna Murthy vs K. Gopal Reddy, Died Per Lrs Rr 3 To 5 on 26 June, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
C.C.C.A.Nos.121 & 122 of 2008
COMMON JUDGMENT:
Both these appeals are arising out of the judgment and decree dated
11.03.2008 passed in O.S.No.410 of 2004 by the learned III Additional Chief
Judge, City Civil Court, Hyderabad.
2. C.C.C.A.121 of 2008 is filed by defendant No.4 and C.C.C.A.122 of
2008 is filed by defendants 1 to 3. The respondent No.1 in both the appeals is
the original plaintiff. Since the respondent No.1 – plaintiff died, his legal
representatives are brought on record as respondents 5 to 7 in C.C.C.A.No.121
of 2008 and as respondents 3 to 5 in C.C.C.A.No.122 of 2008.
3. The parties are hereinafter referred as arrayed before the trial court as
plaintiff and defendants 1 to 4.
4. The suit O.S.No.410 of 2004 was filed by the plaintiff seeking the relief
of declaration of title and consequential injunction in respect of the suit
schedule plot bearing No.15 (described as 15A & 15B) in M/s.Vijaya Co-
operative House Building Society (for short “Society”) admeasuring 600 square
yards in Survey Nos.125 and 126 of Yousufguda Village, in Golconda Mandal,
Hyderabad and for perpetual injunction to restrain the defendants or anyone
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claiming through them from interfering with his peaceful possession and
enjoyment of the suit land and to restrain the defendants or anyone claiming
through them from transferring or conveying or encumbering the suit schedule
property in any manner. The suit was originally filed against defendants 1 to 3.
Subsequently, Vijaya Co-operative House Building Society – defendant no.4
was added as a party as per the orders in I.A.No.291 of 2005 dated 27.07.2005.
The plaintiff was a Government Servant. As per the case of the plaintiff,
M/s.Vijaya Co-operative House Building Society (defendant No.4) approached
the Government of Andhra Pradesh requesting the Government to alienate an
extent of Ac.77-14 cents of land situated in Survey Nos.125 and 126 situated at
Yousufguda Village, Golconda Mandal, Hyderabad District. The Government
of Andhra Pradesh acceded to the request of defendant No.4 – Society and after
receiving an amount of Rs.15,47,000/- executed a sale deed dated 13.04.1994 in
favor of the Society. After purchase of the land under the sale deed, the Society
approached the Municipal Corporation of Hyderabad (for short “MCH”)
seeking a layout sanction and the MCH accorded sanction of layout to the
Society. The defendant No.4 Society came into existence only to see that the
Members of the Legislative Assembly (for short “MLAs) as well as the
Members of Parliament (for short “MPs”) were allotted house plots for
construction of houses. After allotting and registering house plots to the MLAs
and MPs, the Society found that there were some excess plots. The Society
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having regard to the assistance given by the plaintiff in getting all the clearances
including the sale deed as well as the layout sanction, requested him to become
a member of the Society and impressed upon the plaintiff that in the event if the
plaintiff become a member of the Society, it would alienate an extent of 600
square yards of land from some of the plots that remained unsold. The said
facility was also extended to similarly situated persons like that of the plaintiff.
Accordingly, the plaintiff became member of the Society by paying a share
capital and admission fee. Pursuant thereto, the Society having received a total
consideration of Rs.1,11,000/- through account payee cheque executed a
registered sale deed bearing document No.4509 of 1994 dated 31.10.1994 in
favor of the plaintiff alienating plot No.15 admeasuring 600 square yards with
the following boundaries viz., North: Plot No.14, South: Plot No.16, East:
40’wide road, West: Plot No.18 and put the plaintiff in physical and vacant
possession of the said plot. Since the date of alienation, the plaintiff was in
peaceful possession and enjoyment of the suit schedule property as its exclusive
owner and possessor. The defendant No. 4 society on 05.03.2001 called upon
the plaintiff to pay a further sum of Rs.25,000/- towards betterment charges.
4.1. The plaintiff further submitted that he approached defendant No.4 –
Society for issuance of a No Objection Certificate (for short “NOC”) to
construct a house on the plot. The defendant No.4 gave NOC on 05.03.2001.
But to the shock and dismay of the plaintiff, the plaintiff noticed for the first
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time that the Society while issuing the NOC described plot No.15 as plot
No.15B for 300 square yards only, whereas the registered instrument under
which the Society alienated the property to the plaintiff was for 600 square
yards. In the said circumstances, the plaintiff filed W.P.No.5995 of 2001. The
High Court admitted the writ and granted an interim order directing the Society
to maintain status quo. The interim order was subsisting till the disposal of the
Writ Petition. By an order dated 19.02.2004, the High Court allowed the Writ
Petition. Assailing the correctness of the said order, the defendant No.4 –
Society preferred Writ Appeal vide W.A.No.972 of 2004. The Division Bench
of this Court by order dated 11.10.2004 allowed the Writ Appeal, but kept the
remedies of the plaintiff open to agitate in accordance with law.
4.2. The plaintiff further submitted that when he applied for NOC to the
defendant No.4 – Society, he came to know about the change in plot number by
sub-dividing the same and thereafter on enquiries made by him, he came to
know that the defendant No.4 – Society executed a deed of cancellation on
31.12.1997 vide document No.458 of 1998 cancelling the sale deed executed in
favor of the plaintiff and thereafter executed sale deed dated 09.10.1998 vide
document No.2441 of 1998 in favor of defendant No.1 transferring the said
property. Thereafter again the defendant No.4 Society executed a deed of
cancellation on 18.10.2000 vide document No.3400 of 2000 cancelling the deed
executed in favor of defendant No.1 and then executed a sale deed dated
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18.10.2000 in favor of defendant No.1 transferring a portion of the suit land
bearing plot No.15A after splitting the same as 15A&15B and on the same date,
the defendant No.4 Society executed another sale deed bearing document
No.342 of 2000 in favor of the plaintiff in respect of other half of the suit land
bearing plot No.15B. The plaintiff also learnt that the defendant No.4 – Society
executed another cancellation of sale deed on 08.03.2001 cancelling the sale
deed executed in favor of the plaintiff on 18.10.2000 vide document No.3402 of
2000 and thereafter transferred plot No.15B in favor of defendant no.2 vide
document No.825 of 2001 and on the same day, the defendant No.4 – Society
executed cancellation of the sale deed vide document No.823 of 2001 cancelling
the sale deed executed in favor of defendant No.2 in respect of plot No.17-A
and by sale deed dated 08.03.2001 vide document No.826 of 2001 transferred
plot No.17-A in favor of the plaintiff.
4.3. The plaintiff further submitted that the defendant No.4 – Society had not
given any notice before execution of any of the above documents, after sale
deed bearing document No.4409 of 1994. The defendant No.4 – Society had no
manner of right, title or interest to cancel the sale deed executed in favor of the
plaintiff or to execute any of the subsequent documents referred above after a
lapse of three years from the date of execution of sale deed in favor of the
plaintiff without notice to the plaintiff. Once the sale deed was executed
transferring, conveying the title by the defendant No.4 – Society, the defendant
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No.4 – Society had no right to deal with the land of the plaintiff. Any
documents executed by the defendant No.4 – Society after executing sale deed
in favor of the plaintiff were null and void and not binding on the plaintiff. The
Society did not give any notice to the plaintiff. The plaintiff did not handover
the possession of the suit land delivered to him to anyone. The documents
executed by the Society subsequent to the sale deed in favor of the plaintiff
were arbitrary, illegal and void and without any notice to the plaintiff. The
plaintiff was not a party to the said documents. He was not bound by any of the
said documents executed by the Society.
4.4. As such, the plaintiff filed the suit seeking the above reliefs showing the
cause of action on 23.11.2004 alleging that the defendants 1 and 2 executed
GPAs-cum-sale agreement in favor of defendant No.3 on 19.11.2004 and put
the 3rd defendant in possession of plot Nos.15A&15B, totalling 600 square
yards and as the Registration Department withheld the said document, the 3rd
defendant Mrs.Subadra filed W.P.No.24668 of 2004 against Sub-Registrar and
Commissioner of Stamps and Registration seeking declaration that keeping her
registered document bearing No.374 of 2004 pending, as illegal and to return
the document, which was allowed on 31.12.2004. Since the plaintiff was not a
party to that Writ Petition, he filed W.A.No.223 of 2005, which was allowed
with an observation that the questions relating to legality and validity of the
transactions could be decided in the pending suit O.S.No.410 of 2004.
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5. The defendants 1 to 3 filed separate written statements but with similar
pleadings. They contended that the land in Survey Nos.125 and 126 in an
extent of Ac.77-14 cents of Yousufguda Village was alienated in favor of
M/s.Vijaya Co-operative House Building Society (defendant No.4) with a view
to provide house sites to the MLAs and MPs including former members. In the
amendment order itself, it was mentioned that the MLAs or MPs alone were
eligible and entitled for allotment of plots in the said land. To that extent, the
Government of Andhra Pradesh issued G.O.Ms.No.694 dated 05.12.1994 duly
prescribing certain guidelines for allotment of plots. The plaintiff was neither
an MLA or an MP nor a former MLA or an MP. As such, he was not eligible
and entitled for allotment of plot. As per bye-laws, more particularly bye-law
No.5 of the Society, the plaintiff was not eligible for allotment of plot. On
verification of records of the Society, the Registrar of Co-operative Societies
found that some plots were allotted to the individuals, who were not eligible and
entitled for allotment of plots in the land alienated to the Society. The plaintiff
was one among whom the allotment was made in violation of conditions made
in G.O.Ms.No.694. As per the Society bye-laws, an individual, who was not an
MLA or MP, was not entitled for allotment of plot. An individual who was
having residential house / plot in Hyderabad was also not entitled for allotment
of plot. The plaintiff was having a house in Hyderabad. As such, on both the
grounds, he was not entitled for allotment of plot by the Society. On finding the
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same, the Registrar of Societies issued an order directing the Society to cancel
the allotment made in favor of individuals, as those allotments were not in
consonance with the conditions laid down in G.O.Ms.No.694 dated 05.12.1994,
otherwise action would be initiated against the Society as per law. In view of
the above, the Society cancelled the plots already allotted and cancelled the sale
deeds executed in favor of individuals, who were not entitled including the
plaintiff. With a view to help the individuals in whose favor, the plots were
already registered and who were ineligible, the Society called them including
the plaintiff and defendants 1 and 2 and informed them about the order of the
Registrar of Societies. The Society further resolved to allot 300 square yards
each in their favor with a fond hope that the Society could convince the
Registrar of Co-operative Societies on the same. The plaintiff was never in
possession of plot No.15. Infact, after allotment of the same to defendants 1
and 2 as plot Nos.15A and 15B, they obtained permission from the MCH and
constructed a room and a compound wall in the said plots. The Municipal
Corporation also mutated the names of defendants 1 and 2 against the said plots.
The contention of the plaintiff that he was in possession had no basis and the
same was concocted only for the purpose of the case.
5.1. The defendants 1 to 3 further contended that M/s.Vijaya Co-operative
House Building Society was a necessary party and the suit was liable to be
dismissed, as the plaintiff had not impleaded the Society. They further
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contended that the suit was barred by limitation, as the plaintiff was questioning
the cancellation of sale deed dated 31.12.1997 in the year 2004. They denied
the contention of the plaintiff that the Society had not given any notice to him.
They contended that the Society had convened a meeting of all the individuals,
who were allotted plots in violation of the guidelines laid down in the G.O. and
that the society had cancelled the sale deed executed in favor of the plaintiff as
per the policy decision of the Government that the plots situated in Survey
Nos.125 and 126 of Yousufguda Village should not be allotted to any persons
other than the MLAs or MPs or former members.
5.2. The defendants 1 to 3 further contended that on cancelling plot No.15, the
Society sub-divided plot No.15 into two plots viz., 15A and 15B and executed
sale deed alienating plot No.15A to an extent of 300 square yards in favor of
defendant No.1 vide registered sale deed document No.3401/2000 dated
18.10.2000 and plot No.15B to an extent of 300 square yards in favor of the
plaintiff on 18.10.2000 vide registered sale deed document No.3402/2000. The
plaintiff had requested the Society to allot another plot in lieu of plot No.15B
and also requested defendant No.2 for exchange of plot. On considering his
request, the Society cancelled the sale deed document No.3402/2000 vide
cancellation deed No.824/2001 dated 08.03.2001. The defendant No.2 was
allotted plot No.17A by the Society vide registered sale deed document
No.2139/1998 dated 09.10.1998. The said plot No.17A was also to an extent of
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300 square yards. On the request of the management of the Society, the
defendant No.2 agreed for mutual exchange of plots between the plaintiff and
himself. The plaintiff agreed for change of plots, as the same was in
consonance with his request made to the Society. As the plaintiff and defendant
No.2 agreed for exchange of plots, the Society vide cancellation deed Nos.823
of 2001 and 824 of 2001 executed registered cancellation deeds on 08.03.2001.
After execution of cancellation deed dated 08.03.2001, the Society executed
registered sale deed document No.826 of 2001 dated 08.03.2001 alienating plot
No.17A in an extent of 300 square yards in favor of the plaintiff and the
plaintiff was in possession and enjoyment of plot No.17A. They further
contended that as per the Government Orders, the plaintiff was not eligible for
allotment of plot and in any event he was not eligible for allotment of two house
plots i.e. plot No.15 & plot No.17A, as claimed by him. Initially, the Society
allotted plot No.101 and 305 in favor of defendants 1 and 2 respectively in an
extent of 600 square yards each, however, the Society cancelled the registered
sale deeds in view of the observation of the Registrar of the Societies and
allotted plot Nos.15A & 15B. They further contended that knowing fully well
about the execution of cancellation deed No.458 of 1998 dated 08.01.1998
cancelling the sale deed document No.4509/1994, the plaintiff kept quiet for a
long period and started litigating the matter by filing W.P.No.5995 of 2001
before the High Court. The High Court by its order dated 09.02.2001 allowed
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the Writ Petition. Aggrieved by the orders in Writ Petition, M/s.Vijaya Co-
operative House Building Society (defendant No.4) preferred Writ Appeal
No.972 of 2004. At the stage of admission of the Writ Appeal, the High Court
by its order dated 01.07.2004 suspended the operation of the order passed in
W.P.No.5995 of 2001. The original suit filed by the plaintiff was barred by
limitation and the same was liable to be dismissed for non-joinder of necessary
party. As the plaintiff was claiming title through the Society, the Society was a
proper and necessary party to the suit. The defendants constructed small rooms
in the plots allotted to them and they were in possession and enjoyment of the
plots since execution of the sale deeds in their favor. By the time of plaintiff
filing W.P.No.5995 of 2001 and obtaining status quo as on 03.04.2001, the
defendants 1 and 2 were in possession and enjoyment of the said plots. As
such, the status quo order in the said Writ Petition would not create any right or
title over the said plots in favor of the plaintiff. As the Division Bench of this
Court by its order dated 13.10.2004 in W.A.No.972 of 2004, set aside the orders
passed in the Writ Petition, the contention of the plaintiff adverting to granting
status quo orders that he was in possession of plot No.15 had no legal force and
the same was misleading. The defendants 1 and 2 executed registered GPAs –
cum – sale deed on 19.11.2004 in favor of defendant No.3 and received an
amount of Rs.20.00 lakhs by handing over possession of plot Nos.15A & 15B to
defendant No.3. On coming to know about the execution of the sale deed, the
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plaintiff who worked as Registrar of Stamps and Registration influenced the
Sub-Registrar to see that the registered deed was not handed over to defendant
No.3. Questioning the action of Sub-Registrar, the defendant No.3 preferred
W.P.No.24668 of 2004 and the High Court directed the respondents in the said
Writ Petition to release the registered document executed on 19.11.2004 with
regard to plot Nos.15A & 15B. Aggrieved by the said orders in the Writ
Petition, the plaintiff filed Writ Appeal No.93 of 2005. The Division Bench of
the High Court dismissed the Writ Appeal filed by the plaintiff at the stage of
admission. Therefore, the sole ground that the plaintiff was in possession and
enjoyment of the said plots was false, frivolous and invented for the purpose of
obtaining the orders in the suit and prayed to dismiss the suit.
6. On its impleadment, the defendant No.4 filed written statement
contending that notice under Section 126 of the AP Co-operative Societies Act,
1964, which was mandatory before institution of the suit, was circumvented .
No statutory notice as mandated under the Act was issued by the plaintiff. No
application was even filed by the plaintiff seeking leave of the Court for
dispensing with the mandatory procedure. The suit was liable to be dismissed
for want of procedural illegality. The allegation of the plaintiff that for the first
time he came to know about the cancellation of sale deeds executed in his favor
only in the year 2001 that too on receipt of No Objection Certificate by
defendant No.4, was a blatant lie. Infact the plaintiff was very much aware
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about the cancellation of sale deeds executed in favor of other members
including the plaintiff in the month of December, 1997 itself. The sale deeds
were cancelled as they were not MLAs or MPs. As such, the present suit
questioning the cancellation of sale deeds dated 31.12.1997 was barred by
limitation. The contention of the plaintiff that the defendant No.4 had not given
any notice to the plaintiff was not true and correct. Infact, the defendant No.4
had convened a meeting of all the individuals, who were allotted the plots
contrary to the guidelines laid down in G.O. The contention of the plaintiff that
the defendant No.4 had no manner of right, title or interest to cancel the sale
deed executed in favor of the plaintiff was not true and correct. Infact, it was
the policy decision of the Government that the plots situated in Survey Nos.125
and 126 of Yousufguda Village should not be allotted to any others other than
the MLAs or MPs or former members. The allegation that the defendant having
regard to the assistance given by the plaintiff in getting all the clearances
including the sale deed as well as layout sanction, requested the plaintiff to
become a member of the defendant No.4 Society was not true and correct. The
fact remained that upon the request of the plaintiff, the defendant considered the
same along with the request of other individuals and allotted plot No.15 and
thereafter cancelled the sale deed in view of the objections raised by the
Registrar of Co-operative Societies. On cancelling plot No.15, the defendant
No.4 Society sub-divided plot No.15 into two plots viz., plot No.15A and plot
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No.15B and executed sale deed alienating plot No.15A to an extent of 300
square yards in favor of defendant No.1 vide registered sale deed document
No.3401/2000 dated 18.10.2000 and plot No.15B to an extent of 300 square
yards in favor of the plaintiff on 18.10.2000 vide registered sale deed document
No.3402/2000. Thereafter, due to the reasons best known to the plaintiff, the
plaintiff requested the defendant No.4 Society to allot another plot in lieu of plot
No.15B and also requested the defendant No.2 for exchange of plot.
6.1. The defendant No.4 further submitted that the defendant No.2 was
allotted plot No.17A by the Society and the Society executed sale deed
document No.2139/1998 dated 09.10.1998 alienating an extent of 300 square
yards to defendant No.2. On considering his request besides mutual oral
acceptance between the defendant No.2 and the plaintiff, the defendant No.4
Society cancelled the sale deed document No.3402/2000 vide cancellation deed
No.824/2001 dated 08.03.2001. The defendant No.4 further submitted that the
defendants 1 and 2 had already constructed small rooms in the plots allotted to
them respectively and they were in possession and enjoyment of the plots since
the execution of sale deeds in their favor. The plaintiff was allotted plot
No.17A. The defendants 1 and 2 later executed registered GPAs-cum-sale deed
on 19.11.2004 in respect of defendant No.3 on receipt of sale consideration of
Rs.20.00 lakhs duly handing over possession of plot Nos.15A and 15B to the
defendant No.3. The contention that the plaintiff was in possession and
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enjoyment of the said plots was false, frivolous and invented for the purpose of
obtaining orders in the suit and prayed to dismiss the suit. He also further raised
the contentions similar to that of defendants 1 to 3 with regard to the conditions
laid down for allotment of plots and the plaintiff not being an MLA or MP was
not entitled for allotment of plot and that he was also having a residential house
/ plot in Hyderabad. As such, on both the conditions, he was not entitled for
allotment of the plot.
7. A rejoinder was filed by the plaintiff to the written statements filed by
defendants 1 to 3 as well as that of defendant No.4 contending that the property
was not sold to the plaintiff on any conditions and the plots were allotted to the
plaintiff and 7 others including the defendants 1 and 2, who were not the
legislators. G.O.Ms.NO.694 was issued subsequent to the sale deed executed in
favor of the plaintiff. Therefore, his eligibility for allotment could not be
affected by that G.O. He was never called for any meeting and was never
informed about the decision of the Society to cancel the sale deed executed in
his favor. He never knew about the cancellation of his sale deed till ‘No
Objection Certificate’ was given by the Society mentioning plot No.15B for 300
square yards only. With regard to the plea of limitation, the plaintiff contended
that soon after issuance of No Objection Certificate, he filed Writ Petition and
after final disposal of the Writ Appeal only, he filed the suit and as such the
period consumed for prosecuting the Writ Petition and Writ Appeal is liable to
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be excluded under Section 14 of the Limitation Act, 1963 and claimed that the
suit was filed within time.
8 Basing on the said pleadings, the trial court framed the issues as follows:
i) Whether the plaintiff is eligible for allotment of plots in terms of
G.O.Ms.NO.694 dated 05.12.1994?
ii) If so, whether the sale deed in favor of the plaintiff was valid and confers title
on him?
iii) Whether the suit was filed in time?
iv) Whether the plaintiff was the absolute owner of the suit schedule property?
v) Whether the plaintiff was entitled to permanent injunction, as prayed for?
vi) To what relief?
9. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A36
in his favor. The defendants 1 to 4 were examined as DWs.1 to 4. Exs.B1 to
B5 were marked through DW.1, Exs.B6 and B7 were marked through DW.3,
Exs.B8 to B14 were marked through DW.4.
10. On considering the oral and documentary evidence on record, the learned
III Additional Chief Judge, City Civil Court, Hyderabad decreed the suit in
favor of the plaintiff declaring him as the absolute owner of plot No.15 and also
granted perpetual injunction in his favor along with costs of the suit.
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11. Aggrieved by the said judgment and decree, the defendants 1 to 3 and
defendant No.4 preferred these two appeals separately.
12. Heard Sri Srinivasa Rao Bodduluri, learned counsel representing Sri
B.Adinarayana, learned counsel for the appellant – defendant No.4 on record in
C.C.C.A.No.121 of 2008 and Sri L.Ravi Chander, learned Senior Counsel
representing Sri Mayur Mundra, learned counsel for the appellants – defendants
1 to 3 on record in C.C.C.A.No.122 of 2008 and Sri S.Malla Rao, learned
counsel representing the respondents – the Legal Representatives of plaintiff in
both the matters.
13. Learned counsel for the appellant – defendant No.4 contended that by
virtue of Section 61 of the AP Co-operative Societies Act, 1964, the suit was
not maintainable in a Civil Court. No notice as contemplated under Section 126
of the AP Co-operative Societies Act, 1964 was issued before instituting the
proceedings by the plaintiff and the suit was liable to be dismissed for non-
compliance of the statutory mandate. The conclusion of the trial court that
Ex.A20 notice was issued to the Registrar of Co-operative Societies under
Section 126 of the Act, was erroneous. The suit was ex-facie barred by time.
Ex.A4 sale deed was cancelled under Ex.A5 dated 31.12.1997. Without
challenging the cancellation of sale deed, the present suit filed only for relief of
declaration of title, was not maintainable. The suit was barred by time and the
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same was liable to be dismissed. The finding of the trial court that the
respondent – plaintiff was entitled for the benefit of Section 14 of the Limitation
Act, 1963 was erroneous. The plaintiff failed to plead the said exclusion and
failed to satisfy the requirements of Section 14 of the Limitation Act, 1963 to
claim such exclusion. Hence, the conclusion of the trial court on the said aspect
was erroneous. The contention of the plaintiff that he was not aware of the
cancellation deed dated 31.12.1997 and he learnt about the same only when he
was given ‘No Objection Certificate’, could not be accepted in the absence of
any reliable evidence. The trial court erred in relying on the contention of the
plaintiff and failed to consider the other oral evidence on record. The trial court
failed to notice that the appellant Society was formed only to cater to the needs
of MLAs and MPs as is evident from bye-law 5-B of Ex.B13. The very
admission of the plaintiff as member of the Society was illegal and
consequently allotment of plot and execution of conveyance were un-
sustainable from inception. The trial court wrongly concluded that the plaintiff
had absolute title to the suit property. The trial court failed to consider the GOs
marked under Exs.B8 and B11 and that the very admission of the plaintiff as
member of the Society was illegal. The conclusion of the trial court was by
misreading the GOs. As such, the same was erroneous. The trial court erred in
concluding that the Registrar of Co-operative Societies did not direct
cancellation of the plot and that no document was filed, but failed to notice that
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under Ex.B14, the Deputy Registrar passed the order, which was lost sight off
by the trial court. The trial court decided the suit as if it was a regular sale deed
cancelled by the vendor and that it could not be unilaterally cancelled, but failed
to consider the mandatory provisions under the AP Co-operative Societies Act,
1964. Mandatory notice was required to be issued to the Registrar before
institution of the suit, but not after institution of the suit. The Society would
need to protect the rights of its members. As the plots were wrongly allotted to
the plaintiff and defendants 1 and 2, as a compromise, alternate plots which
were lesser in extent were allotted to them. Both the conditions, allotting the
plots to MLAs and MPs and one should not have any house were mandatory.
The said conditions were never waived. Plot No.15 was divided into two sub-
plots and the plaintiff was allotted plot No.15B. At the request of both
defendant No.2 and the plaintiff as they exchanged the plots, the plaintiff was
allotted plot No.17A. The plaintiff, who did not want plot No.17A, wanted his
title to be declared for plot No.15 entirely. Admittedly, the name of the plaintiff
was not mutated in the records. All the transactions were done with the
knowledge of all the parties, but not behind their back. The plaintiff by
ignoring all the facts, was insisting for a non-existing plot. The claim of the
plaintiff that he was not aware of re-allotment of plot No.17A was falsified by
the evidence of DWs.1 and 2. Before filing the suit, the plaintiff filed
W.P.No.5995 of 2005 seeking injunction not to alienate plots 15A & 15B.
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Already re-allotment was done by that time. The land belonged to the Co-
operative Society and the allotment was cancelled by the Registrar of Co-
operative Societies. The plaintiff and defendants 1 to 3 being members of the
Society had to approach the Registrar under Section 61 of the AP Co-operative
Societies Act for resolving the disputes between them. They could not
approach the Civil Court under Section 61(a). As such, the suit itself was not
maintainable. As the said aspect would go to the root of the matter, the same
could be taken even at the stage of appeal. The plaintiff was not deprived of
any property. Only through an internal arrangement, re-allotment was done. As
defendants 1 and 2 sold away their plots to defendant No.3, all the said
arrangements could not be disturbed at this length of time. The trial court failed
to understand the matter within the framework of Co-operative Societies Act,
1964 and prayed to allow the appeal.
14. Learned Senior Counsel appearing for the appellants – defendants 1 to 3
in C.C.C.A.No.122 of 2008 while adopting the arguments of the learned counsel
for the appellant in C.C.C.A.No.121 of 2008, supplemented his arguments. The
appellant No.2 died and as it was reported that there were no legal
representatives to him, the appeal was abated against appellant No.2 – defendant
No.2.
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ccca_121 & 122_2008
14.1. Learned Senior Counsel mainly contended that the suit was barred by
limitation. The plot allotted to the plaintiff was cancelled under Ex.A5 dated
31.12.1997. Since the year 1997, the plaintiff did not file the suit till 2004. The
suit for declaration ought to have been filed within three years from the date
when the right to sue would first accrue. The cancellation deed came into
existence on 31.12.1997, as such the suit ought to have been filed on or before
30.12.2000, but the plaint was presented in the year 2004, as such the suit was
barred by limitation. Section 14 of the Limitation Act, 1963 was not applicable,
as it would apply only when a right remedy was pursued in a wrong Court. But
not when a wrong remedy was pursued in a wrong Court. Pursing the remedy
of Writ Petition would not entitle the plaintiff to invoke Section 14 of the
Limitation Act, 1963. The observations of the High Court in Writ Appeal that
the plaintiff could pursue his remedies would not erase the effect of bar of
limitation. Even excluding the period covered by the writ proceedings, the suit
was barred by limitation. The suit filed for a mere declaration without seeking
for cancellation of sale deeds executed in favor of defendants 1 and 2 was not
sustainable. The petition for impleadment of defendant No.4 as a party to the
suit was filed in the year 2005 and the same was ordered in July, 2005. As
such, the suit was properly instituted only in July, 2005, which was far beyond
the limitation period. If the suit was filed immediately after disposal of the Writ
Appeal, the said argument could be considered. But, it was filed six months
22
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after the Writ Appeal was allowed. It was the duty of the Court to examine the
aspect of limitation. A right would be accrued to the defendant after the period
of limitation was completed. No explanation was even sought for condonation
of delay. The plaintiff accepted plot No.17A at his own request. As such, his
rights in plot No.15 were waived. He could not claim both plots in 17A and 15.
The plaintiff did not even whisper about allotting plot No.17A in his plaint and
prayed to allow the appeal.
15. Learned counsel for the respondent – LRs of plaintiff in both the appeals
on the other hand contended that the impugned judgment was a well considered
one and would not call for interference on facts and law. The main ground of
challenge was about the GOs and their application, which led to the ineligibility
of the plaintiff and others for allotment of plots. The defendant No.4 on one
hand contended that the plaintiff and defendants 1 and 2 were ineligible for
becoming members of the Society and for allotment of plots and that forced the
Society to cancel the sale deeds, but on the other hand, allotted plot No.17A to
the plaintiff and divided plot No.15 into sub-plots of 300 square yards each as
15A and 15B and executed sale deeds in favor of defendants 1 and 2, who were
stated to be ineligible. There was no explanation for that act of the Society.
The Society never followed the conditions of allotment. The Society admittedly
collected membership fee from the plaintiff, which would mean that the plaintiff
was admitted to membership, even though the Society very well knew about the
23
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ccca_121 & 122_2008
ineligibility. The admissions made by the defendants in their cross-examination
were fatal to their case. The defendant No.4 being admittedly in possession of
material documents withheld them from producing in the Court, which led the
Court to draw an adverse inference that no such documents were available.
Ex.A4 sale deed of the plaintiff was cancelled unilaterally by defendant No.4.
Once the title was transferred, the cancellation of allotment would not make the
sale deed automatically illegal. No suit was filed by the Society for cancellation
of the document under the provisions of Specific Relief Act, 1963. The Society
having admitted the plaintiff to membership and having collected the price as
consideration for the land and having transferred the title in plot No.15 to the
plaintiff under Ex.A4 sale deed could not unilaterally cancel the sale deed. The
court below rightly observed that the defendant No.4 was estopped from
contending about the ineligibility of the plaintiff to obtain the sale deed. There
were absolutely no merits in the contentions of the learned counsel for the
appellants / defendants 1 to 4 in both the appeals to impugn the well considered
judgment and findings of the learned III Additional Chief Judge, City Civil
Court, Hyderabad and relied upon the following citations:
1. Latiff Estate Line India Limited v. Hadeeja Ammal&
Others 1.
2. Satya Pal Anand v. State of Madhya Pradesh and Others 2.
1
2011 0 Supreme (Mad) 725
24
Dr.GRR, J
ccca_121 & 122_2008
3. P.A.Hamsa v. The District Registrar General & Others 3.
4. Sasikala; Prabadevi; Muniyandi; R.Sasikala; Azhagesan v.
Revenue Divisional Officer – cum – Sub Collector & Others4.
5. R.Monisha (minor) represented by her mother & guardian
Ezhilarasi, Tiruvannamalai v. The Sub-Registrar,
Tiruvannamalai& Others 5.
6. Consolidated Engineering Entreprises v. Principal Secretary,
Irrigation Department 6.
7. M.P.Steel Corporation v. Commissioner of Central Excise7.
8. M/s.LaxmiSrinivasa R and P Boiled Rice Mill v. State of
Andhra Pradesh & Another8.
9. Nade Ali Mirza and Others v, Mrs.Khalida Mohammed
SalimDawawala and Others 9.
10. M.R.Gupta and Others v. Luxmi Co-operative Group
Housing Society Limited and Others 10.
11. M.VenkataRamana v. A.P. Co-operative Tribunal,
Hyderabad and Others11.
2
2016 (10) SCC 767
3
2011 0 Supreme (Ker) 676
4
2022 AIR (Mad) 323
5
2023 0 Supreme (Mad) 2137
6
(2008) 7 SCC 169
7
(2015) 7 SCC 58
8
2022 0 Supreme (SC) 1164
9
2016 1 ALD 318
10
AIR 2022 (P & H) 183
11
2010 (4) ALD 500
25
Dr.GRR, J
ccca_121 & 122_2008
12. V. Shravan Kumar v. Lt. Col.S.B.Sharma 12.
13. M.Lakshminarayana v. A.P. Co-operative Tribunal,
Vijayawada 13.
14. Executive Officer, A/M.Dhandayuthapaniswami
Devasthanam v. Palaniappa Pulipanipathira Swamigad (died)
& Others14.
15. Gurunath Manohar Pavaskar and Others v. Nagesh
Siddappa Navalgund & Others15.
16. Narain Singh v. InduGowla 16.
17. Ganapuram Bramaramba v. Anneparthy
Anantharamaiah17.
16. Now the points for consideration in these appeals are:
1) Whether the suit is maintainable in view of Section 61 of the AP Co-
operative Societies Act, 1964?
2) Whether there is non-compliance of issuing notice under Section 126 of the
AP Co-operative Societies Act, 1964?
3) Whether the suit is barred by limitation?
4) Whether the cancellation of sale deed by defendant No.4 is legal and does it
affect the title of the plaintiff in the suit schedule property viz., plot No.15?
12
2011 1 ALD 385
13
2023 (3) ALT 128
14
2024 2 CTC 785
15
AIR 2008 SC 901
16
1990 1 BLJ 675
17
2004 (2) ALD 718
26
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5) Whether the plaintiff is in possession of the suit property, if so, whether he is
entitled for the relief of perpetual injunction, as prayed for?
17. POINT No.1:
Whether the suit is maintainable in view of Section 61 of the AP Co-
operative Societies Act, 1964?
Learned counsel for the appellant in C.C.C.A.No.121 of 2008 contended
that the suit was not maintainable in a Civil Court by virtue of Section 61 of the
AP Co-operative Societies Act, 1964, as the plaintiff was a member of the
appellant – Society and so also the other defendants and dispute between the
members with regard to allotment of plots was the business of the Society and
would fall within the jurisdiction of Registrar and as such the suit was not
maintainable before the Civil Court.
18. The contention of the learned counsel for the respondents – LRs of
plaintiff was that such a plea of bar of jurisdiction by the Civil Court should be
specifically taken in the written statement and should be raised at the earlier
stage of proceedings, raising it for the first time at the stage of appeal should not
be permitted.
19. Admittedly, the said plea was not taken by defendant No.4 in his written
statement. The same was taken for the first time in this appeal. Exclusion of
jurisdiction of a Civil Court must generally be specifically pleaded in the
27
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written statement and raised at the earlier stage of the proceedings. Raising it
for the first time at the stage of appeal is generally not permitted unless it is a
pure question of law apparent on the face of the record. If such plea was not
raised at the earliest, as the trial court would proceed under the assumption that
it had jurisdiction, the same would lead to wastage of judicial time. The said
jurisdictional objections if required evidence regarding facts, the same could not
be permitted to be raised for the first time in the appeal. Only if the lack of
jurisdiction is apparent on the face of the record, being a pure question of law, it
can be raised at any stage including in the appeal.
20. Section 61 of the AP Co-operative Societies Act, 1964 is under Chapter-8
under the heading ‘Settlement of disputes’. Section 61 of the Act deals with
disputes which may be referred to the Registrar. It is extracted for better
understanding of the subject.
“61. Disputes which may be referred to the Registrar:-
[(1)Notwithstanding anything in any law for the time being in force, if any
dispute touching the constitution, management or the business of a society,
other than a dispute regarding disciplinary action taken by the society or its
committee against a paid employee of the society, arises-
(a)among members, past members and persons claiming through members,
past members and deceased members; or
(b)between a member, past member or person claiming through a member,
past member or deceased member and the society, its committee or any
officer, agent or employee of the society; or
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(c)between the society or its committee, and any past committee, any officer,
agent or employee, or any past officer, past agent, or past employee or the
nominee, heir or legal representative of any deceased officer, deceased agent
or deceased employee of the society; or
(d)between the society and any other society.
Such dispute shall be referred to the Registrar for decision.
Explanation: – For the purposes of this sub-section a dispute shall include –
(i) a claim by a society for any debt or other amount due to it from a member,
past member, the nominee, heir or legal representative of a deceased member,
whether such debt or other amount be admitted or not ;
(ii) a claim by surety against the principal debtor where the society has
recovered from the surety any amount in respect of any debt or other amount
due to it from the principal debtor as a result of the default of the principal
debtor whether such debt or other amount due to be admitted or not ;
(iii) a claim by a society against a member, past member, or the nominee, heir
or legal representative of a deceased member for the delivery of possession to
the society of land or other immovable property resumed by it for breach of
the conditions of assignment or allotment of such land or other immovable
property ;
(2) If any question arises whether a dispute referred to the Registrar under this
section is a dispute touching the constitution, management or the business of a
society, such question shall be decided by the Registrar.
(3) Every dispute relating to, or in connection with, any election to a
committee of a society shall be referred for decision to the Tribunal having
jurisdiction over the place where the main office of the society is situated,
whose decision thereon shall be final.]
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(4) Every dispute relating to, or in connection with any election [shall be
referred under] sub-section (3) only after the date of declaration of the result
of such election.]
21. A reading of the above provision would show that certain classes or types
of disputes arising between certain classes of persons alone can be referred to
the Registrar. It is also clear that only a dispute touching the constitution,
management or the business of a society can be referred to the Registrar.
22. The High Court of Andhra Pradesh in V.Shravan Kumar v, Lt.
Col.S.B.Sharma (cited supra), while considering the scope of Section 61 of the
AP Co-operative Societies Act, 1964, held that a dispute relating to specific
performance of contract in respect of an immovable property cannot be termed
as a dispute falling within the purview of Section 61(1). It also considered the
Division Bench judgment of the AP High Court in M. Venkata Ramana v.
Andhra Pradesh Co-operative Tribunal (cited supra), which was also relied
by the learned counsel for the respondent – plaintiff in this case, wherein it was
held that:
“…the genuineness or otherwise of the sale deeds, the identity and nature of
the land in dispute, whether the alienations are liable to be set aside and the
sale deeds are liable for cancellation, and whether the constructions made by
the petitioners on the disputed land are liable to be demolished or not, are all
matters, which are outside the scope of Section 61 of the Act, as they do not
relate to ‘business of the society’, which can be referred to and adjudicated
upon by the Arbitrator. When once, the sale deeds are executed and registered,
title in the property covered by the sale deeds gets legally transferred in favor
30
Dr.GRR, J
ccca_121 & 122_2008of the vendees and even the vendor cannot unilaterally cancel the same. In
case the transaction is found to be illegal and beyond the authority of the
society, necessary recourse has to be taken to the provisions of the Specific
Relief Act, which provides for cancellation of documents and decrees.”
and observed that:
“12. The issue raised in this writ petition is squarely covered by the ratio laid
down in the above decision and therefore the conclusion of the Tribunal below
that the Arbitrator had no jurisdiction to entertain the dispute relating to
specific performance of Agreement of Sale cannot be found fault with.”
23. In M.R.Gupta and Others v. Luxmi Co-operative Group Housing
Society Limited and Others (cited supra), the Punjab and Haryana High Court,
while considering whether the jurisdiction of the Civil Court is barred in view
of Section 102 read with Section 128 of the Haryana Co-operative Societies Act
(22 of 1984) observed that nothing was stated in Section 128 of the Act that
jurisdiction of Civil Court will be barred, if suit is filed where plea of fraud is
taken.
24. The jurisdiction of a Civil Court is excluded only when there is an
express bar under the statute. Section 9 of CPC provides that Civil Courts have
jurisdiction unless expressly or impliedly barred. The Hon’ble Apex Court in
Dhulabhai and Others v. The State of Madhya Pradesh 18 held that Civil
Court’s jurisdiction is barred only when special Tribunal / authority has
exclusive jurisdiction and adequate remedies are provided under it.
18
(1968) 3 SCR 662
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25. In Veerender Jain v. Alaknanda Co-operative Group Housing Society
Limited and Others 19, the Hon’ble Apex Court held that disputes relating to
cancellation of allotment by a Housing Society may go to Registrar, but
disputes involving registered sale deeds and title lie before the Civil Court.
26. In Zoroastrian Co-operative Housing Society Limited v. District
Registrar Co-operative Societies (Urban) 20, the Hon’ble Apex Court held that
the disputes between members fall within the Registrar’s jurisdiction but
property title disputes need to be decided by Civil Courts.
27. In the present case, since the Society has cancelled a registered sale deed
and as the dispute involves cancellation of registered sale deed, declaration of
title and possession, the appropriate forum is only the Civil Court. The
Registrar or the Co-operative Tribunal deals with disputes concerning the
internal affairs of the Society such as allotment, cancellation before execution of
the sale deed or disputes strictly under the bye laws. If the dispute was with
regard to the improper allotment of plots, the same can be decided by the
Registrar. But once a registered sale deed exists and the same was cancelled by
the Society, the dispute regarding its validity shall be filed before the Civil
Court. As such, this Court does not find any merit in the contention of the
learned counsel for the appellant in C.C.C.A.No.121 of 2008 that the
19
(2013) 9 SCC 383
20
(2005) 5 SCC 632
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jurisdiction before the Civil Court is barred under law in view of Section 61 of
the Co-operative Societies Act, 1964.
28. POINT No.2:
Whether the suit is maintainable in view of non-compliance of issuing
notice under Section 126 of the AP Co-operative Societies Act, 1964?The other contention raised by the learned counsel for the appellant in
C.C.C.A.No.121 of 2008 was that no notice was issued by the plaintiff to the
appellant – defendant No.4 under Section 126 of the AP Co-operative Societies,
Act, 1964 before instituting the proceedings. Only during the pendency of the
proceedings, a notice was issued under Ex.A20 to the Registrar of Co-operative
Societies Act. The conclusion of the trial court that the said notice would
satisfy the requirement of Section 126 of the Act, was erroneous. Ex.A20
notice would not satisfy the mandate of Section 126 of the Act and that the suit
was liable to be dismissed on the said ground.
29. The appellant – defendant No.4 had taken such a plea in his written
statement that the suit was bad for non-issuance of a statutory notice under
Section 126 of the AP Co-operative Societies Act, 1964. The appellant –
defendant No.4 Society was impleaded by the plaintiff during the pendency of
the suit basing on the objection taken by the defendants 1 to 3 as to non-joinder
of Society as necessary party. The respondent – plaintiff issued a notice under
33
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Ex.A20 during the pendency of the suit and after expiry of 60 days filed an
application to implead the Society as per I.A.No.291 of 2005. The same was
allowed by the trial court by order dated 27.07.2005. The said order was not
challenged and it became final. The respondent – plaintiff got filed the notice
issued to the appellant – defendant No.4 as Ex.A20 and the postal
acknowledgment in proof of sending the notice to the appellant – defendant
No.4 as Ex.A21. Ex.A21 would disclose that the same was served on the
appellant – defendant No.4 on 29.11.2004.
30. Learned counsel for the appellant – defendant No.4 had not denied the
service of notice on defendant No.4 or that the appellant – defendant No.4 was
impleaded as party in the suit after expiry of 60 days, the period required for
issuance of a statutory notice under Section 126 of the Co-operative Societies
Act, 1964.
31. Section 126 of the AP Co-operative Societies Act, 1964 prescribes that:
“126. Notice necessary in suits-
No suit shall be instituted against a society or any of its officers in respect of
any act touching the constitution, management or the business of the society
until the expiration of sixty days next after notice in writing has been delivered
to the Registrar, or left at his office stating the cause of action, the name,
description and place of residence of the plaintiff and the relief which he
claims and the plaint shall contain a statement that such notice has been so
delivered or left.”
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ccca_121 & 122_2008
32. The object of issuing statutory notice before instituting the suit was to
give the authorities, time to consider the claim and to avoid litigation to enable
pre-litigation settlement. Issuing notice after filing the suit or during the
pendency of the suit, technically might not be proper compliance with the
statutory requirement. However, if no prejudice is caused to the Society by
such Act, the Courts would ordinarily lean to substantial compliance over
technical objections.
33. The Hon’ble Apex Court in State of Punjab v. M/s.Geeta Iron & Brass
Works Limited 21, held that the statutory notice provisions are intended to give
the authority time to consider the claim. Technical defects should not invalidate
the proceedings if the object is substantially achieved. In Ghanshyam Dass &
Others v. Dominion of India & Others22, the Hon’ble Apex Court held that
requirement of notice was to prevent surprise, not to obstruct the justice. The
Courts should have liberal approach if no prejudice is caused. Wherein a notice
was served during the pendency of the suit and Society was impleaded after
expiry of statutory period, several High Courts condoned the irregularity in the
interest of justice, especially when no prejudice was caused to the Society. As
the appellant – Society (defendant No.4) was given full opportunity to defend
the case after being impleaded and there was no deliberate evasion of the
statutory requirement and no actual prejudice was shown to have caused to the
21
(1978) 1 SCC 68
22
(1984) 3 SCC 46
35
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Society due to the late impleadment in the suit, issuing notice during the
pendency of the suit can be considered as substantial compliance. As the object
of issuing notice was complied and the Society was not prejudiced and got a fair
chance to contest the suit and no injustice is caused to it, technical lapses in
issuing the notice or timing of impleadment can be condoned. As such, this
Court considers that there is no merit in the contention of the learned counsel
for the appellant that the suit was not maintainable in view of non-compliance
of issuing notice under Section 126 of the AP Co-operative Societies Act, 1964.
As the judgment of the trial court also would disclose that a finding was
recorded on the said aspect though no specific issue was framed in the said
regard, no prejudice was caused to the appellant – defendant No.4.
34. POINT No.3:
Whether the suit is barred by limitation?
Learned counsel for the appellant/s in both the appeals contended that the
suit was ex facie barred by time, admittedly, Ex.A4 sale deed dated 31.10.1994
in favor of the respondent – plaintiff was cancelled vide Ex.A5 dated 31.12.1997
and the same remained un-challenged. The suit was filed on 25.11.2004 for
declaration of title. Hence, the same was barred by time and as such the suit
was liable to be dismissed.
36
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ccca_121 & 122_2008
35. Issue No.3 was framed by the trial court on this aspect and the same was
answered holding that the plaintiff could invoke the benefit of Section 14 of the
Limitation Act, 1963 and the time consumed in filing the Writ Petition and Writ
Appeal could be excluded.
36. The contention of the learned counsel for the appellant/s was that even by
the date of filing the Writ Petition by the respondent – plaintiff itself, the suit
was barred by limitation. As the suit was filed seeking declaration of title, it had
to be filed within three years from the date of cancellation of the registered sale
deed by defendant No.4. The registered sale deed of the respondent – plaintiff
marked under Ex.A4 was cancelled under Ex.A5 on 31.12.1997. As such, the
suit had to be filed on or before 30.12.2000. The institution of the suit on
25.11.2004 was barred by time.
37. As per Article 58 of the Schedule to the Limitation Act, 1963, the
limitation period for filing a suit for declaration of title is three years. The said
period begins when the right to sue first accrues i.e. when the cause of action for
the declaration first accrues. Thus, if a person’s title to a property is challenged,
the right to sue for the declaration of their title accrues when the challenge is
made. As per the contention of the plaintiff, he came to know about the Society
cancelling the sale deed registered in his favor only when a No Objection
Certificate was issued to him describing the plot as 15B and showing the extent
37
Dr.GRR, J
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as 300 square yards on 05.03.2001. Immediately, thereafter he filed
W.P.No.5995 of 2001 before the High Court of Andhra Pradesh and the said
Writ Petition was admitted and an interim order of status quo was also granted
and the said order was subsisting till the disposal of the Writ Petition. The said
Writ Petition was disposed of by order dated 19.02.2004. Assailing the
correctness of the said order, the appellant – defendant No.4 filed W.A.No.972
of 2004 and the Division Bench of the High Court by order dated 11.10.2004
allowed the Writ Appeal with certain observations granting liberty to him to
agitate his rights in accordance with law. As such, the said period consumed in
filing the Writ Petition and Writ Appeal shall be excluded under Section 14 of
the Limitation Act, 1963.
38. As per the admitted facts, the sale deed was executed by defendant No.4 –
Society in favor of the plaintiff for plot No.15 on 31.10.1994. The said deed
was cancelled vide cancellation deed marked under Ex.A5 dated 31.12.1997.
No document was filed by defendant No.4 – Society showing any notice of such
cancellation was given to the plaintiff or that the plaintiff was a party to the
cancellation deed. The series of sale and cancellation deeds and bifurcation of
plot No.15 into 15A and 15B and alienation of plot No.17-A in place of plot
No.15 are unilateral acts of the defendants. No where it was shown that the
plaintiff had notice thereof and he was a party to the said transactions. Except
saying that the plaintiff was informed and that a Society meeting was convened
38
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ccca_121 & 122_2008
and a decision was made to cancel the transactions and to execute another sale
deed, no evidence was produced by defendant No.4 – Society by way of
producing the Minutes of meetings or acknowledgment of notices, etc., No
books of resolutions were produced by DW.4 / defendant No.4 though they
were admittedly available in the office of defendant No.4. Thus, the defendant
No.4 or DW.4 failed to show that they had given any notice to the plaintiff with
regard to cancellation of the sale deed registered under Ex.A4. The plaintiff
was not a party to any of the said documents. As such, it cannot be considered
that he was having knowledge of Ex.A5. Ex.A14 is the receipt dated
05.03.2001 for Rs.25,000/- issued by defendant No.4 received from the plaintiff
towards developmental charges and Ex.A15 is the No Objection Certificate
dated 05.03.2001 issued by defendant No.4 in favor of the plaintiff giving no
objection to apply for permission to construct house in plot No.15B. As the
plaintiff was contending that he got knowledge about the cancellation of the sale
deed only on seeing that the plot was shown as 15B instead of plot No.15, he
must be presumed to have knowledge of the same only from the said date, when
no contrary evidence was produced by the defendants.
39. The Hon’ble Apex Court in Consolidated Engineering Enterprises v.
Principal Secretary, Irrigation Department and Others (cited supra) held
that:
39
Dr.GRR, J
ccca_121 & 122_2008“21. Section 14 of the Limitation Act deals with exclusion of time of
proceeding bona fide in a court without jurisdiction. On analysis of the said
Section, it becomes evident that the following conditions must be satisfied
before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings
prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in good
faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or
other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same
matter in issue and;
(5) Both the proceedings are in a court.
22. The policy of the Section is to afford protection to a litigant against the bar
of limitation when he institutes a proceeding which by reason of some
technical defect cannot be decided on merits and is dismissed. While
considering the provisions of Section 14 of the Limitation Act, proper
approach will have to be adopted and the provisions will have to be interpreted
so as to advance the cause of justice rather than abort the proceedings. It will
be well to bear in mind that an element of mistake is inherent in the invocation
of Section 14. In fact, the section is intended to provide relief against the bar
of limitation in cases of mistaken remedy or selection of a wrong forum. On
reading Section 14 of the Act it becomes clear that the legislature has enacted
the said section to exempt a certain period covered by a bona fide litigious
activity. Upon the words used in the section, it is not possible to sustain the
interpretation that the principle underlying the said section, namely, that the
bar of limitation should not affect a person honestly doing his best to get his
case tried on merits but failing because the court is unable to give him such a
trial, would not be applicable to an application filed under Section 34 of the
Act of 1996. The principle is clearly applicable not only to a case in which a
40
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litigant brings his application in the court, that is, a court having no
jurisdiction to entertain it but also where he brings the suit or the application in
the wrong court in consequence of bona fide mistake or law or defect of
procedure. Having regard to the intention of the legislature this Court is of the
firm opinion that the equity underlying Section 14 should be applied to its
fullest extent and time taken diligently pursuing a remedy, in a wrong court,
should be excluded.
24. We may notice that in similar circumstances the Division Bench of this
Court in State of Goa vs. Western Builders [2006 (6) SCC 239] has taken a
similar view. As observed earlier the intention of the legislature in
enacting Section 14 of the Act is to give relief to a litigant who had
approached the wrong forum. No canon of construction of a statute is more
firmly established than this that the purpose of interpretation is to give effect
to the intention underlying the statute. The interpretation of Section 14 has to
be liberal. The language of beneficial provision contained in Section 14 of the
Limitation Act must be construed liberally so as to suppress the mischief and
advance its object. Therefore, it is held that the provisions of Section 14 of the
Limitation Act are applicable to an application submitted under Section 34 of
the Act of 1996 for setting aside an arbitral award.
31. To attract the provisions of Section 14 of the Limitation Act, five
conditions enumerated in the earlier part of this Judgment have to co-exist.
There is no manner of doubt that the section deserves to be construed liberally.
Due diligence and caution are essentially pre-requisites for attracting Section
14. Due diligence cannot be measured by any absolute standards. Due
diligence is a measure of prudence or activity expected from and ordinarily
exercised by a reasonable and prudent person under the particular
circumstances. The time during which a court holds up a case while it is
discovering that it ought to have been presented in another court, must be
excluded, as the delay of the court cannot affect the due diligence of the
party. Section 14 requires that the prior proceeding should have been
prosecuted in good faith and with due diligence. The definition of good faith
as found in Section 2(h) of the Limitation Act would indicate that nothing
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shall be deemed to be in good faith which is not done with due care and
attention. It is true that Section 14 will not help a party who is guilty of
negligence, lapse or inaction. However, there can be no hard and fast rule as to
what amounts to good faith. It is a matter to be decided on the facts of each
case. It will, in almost every case be more or less a question of degree. The
mere filing of an application in wrong court would not prima facie show want
of good faith. There must be no pretended mistake intentionally made with a
view to delaying the proceedings or harassing the opposite party. In the light
of these principles, the question will have to be considered whether the
appellant had prosecuted the matter in other courts with due diligence and in
good faith.”
40. In M/s.MP Steel Corporation v. Commissioner of Central Excise
(cited supra), the Division Bench of the Hon’ble Apex Court held that:
35. …the principle of Section 14 would apply not merely in condoning delay
within the outer period prescribed for condonation but would apply de hors
such period for the reason pointed out in Consolidated Engineering above,
being the difference between exclusion of a certain period altogether
under Section 14 principles and condoning delay. As has been pointed out
in the said judgment, when a certain period is excluded by applying the
principles contained in Section 14, there is no delay to be attributed to the
appellant and the limitation period provided by the concerned statute continues
to be the stated period and not more than the stated period. We conclude,
therefore, that the principle of Section 14 which is a principle based on
advancing the cause of justice would certainly apply to exclude time taken in
prosecuting proceedings which are bona fide and with due diligence pursued,
which ultimately end without a decision on the merits of the case.
41. In M/s.Laxmi Srinivasa R and P Boiled Rice Mill v. State of Andhra
Pradesh and Another (cited supra), the Hon’ble Apex Court held that Section
14 is applicable even for the time period spent in filing the Writ Petition.
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42. Thus, the Hon’ble Apex Court recognized that time spent bonafide in
pursuing a Writ Petition before the High Court can be excluded under Section
14 while calculating limitation for filing a civil suit. The Hon’ble Apex Court
time and again held that Section 14 is based on principles of justice and applies
to various proceedings in civil suits. The only condition to attract Section 14 as
per the statute and case law was that the party prosecuted the previous
proceedings with good faith and the present proceeding is filed promptly after
disposal of the earlier one.
43. On a perusal of order in W.A.No.972 of 2004 marked under Ex.A18
dated 11.10.2004, this Court held that the dispute between the appellant and the
Writ Petitioner was required to be resolved in a properly constituted common
law proceeding and dismissed the Writ Appeal granting liberty to the parties to
avail such remedies as may be available to them in law and advised the court to
consider the matter on its own merits un-influenced by the observations made in
the order passed by the learned Single Judge as well as the observations made
by them in the Writ Appeal.
44. Thus, the Writ Appeal was not decided on merits. Ex.A17 would
disclose that the plaintiff filed the Writ Petition in the year 2001 immediately
after having notice of denial of his title to plot No.15 by the defendants on
05.03.2001. The said Writ Petition was disposed of on 19.02.2004 and the
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W.A.No.972 of 2004 was finally disposed of on 11.10.2004 under Ex.A18
granting liberty to the plaintiff to canvass the claim in the Civil Court. The
plaint was filed on 25.11.2004. As such, the plaintiff prosecuted the Writ
Petition with due diligence and good faith on the same cause of action and filed
the present suit on 25.11.2004 promptly after disposal of the Writ Appeal on
11.10.2004. Thus, the time spent bonafide in prosecuting the Writ Petition and
Writ Appeal can be excluded under Section 14 of the Limitation Act, 1963 and
the suit cannot be held to be barred by limitation.
45. POINT No.4:
Whether the cancellation of sale deed by defendant No.4 is legal and
does it affect the title of the plaintiff in the suit schedule property viz.,
plot No.15?
Admittedly, the plaintiff was allotted property in plot No.15 admeasuring
600 square yards by defendant No.4 Society and got registered Ex.A4 sale deed
in his favor. As per the written statement filed by defendants 1 to 4, the in-
eligibility of the plaintiff for allotment of the plot was based on the following
facts:
a) That the Government sold the land of Ac.77-14 cents with a view to allot
house plots to MLAs and MPs only.
b) The Government issued G.O.Ms.No.694 dated 05.12.1994 prescribing
guidelines for allotment of plots to MLAs and MPs only.
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c) The bye laws of the Society do not permit allotment of plots to the
persons who are already having the house property.
d) The sale in favor of the plaintiff under Ex.A4 was cancelled with his
consent only.
46. The Secretary of the defendant No.4 Society was examined as DW.4. He
filed his evidence affidavit stating that the land bearing Survey Nos.125 and 126
to an extent of Ac.77-14 cents situated at Yousufguda Village was initially
alienated in favor of M/s.Vijaya Co-operative House Building Society with a
view to provide house plots to the MLAs and MPs including former members.
In the allotment order itself, it was mentioned that the MLAs and MPs alone
were eligible and entitled for allotment of plots in the said land. The
Government of Andhra Pradesh issued G.O.Ms.No.694 dated 05.12.1994 duly
prescribing certain guidelines for allotment of plots. The plaintiff was neither a
MLA nor MP, as such he was not eligible and entitled for allotment of plot. On
verification of records the Registrar of Co-operative societies found that some
plots were allotted to the individuals who were not eligible and entitled for
allotment of plots in the land alienated. The plaintiff was one among whom the
allotment was made in violation of conditions made in the G.O.Ms.No.694
dated 5-12-1994. As per the bye laws of the defendant no. 4 society an
individual who was not a MLA or MP was not entitled for allotment of plot and
also an individual who was having residential house plot in Hyderabad was not
entitled for allotment of plot. The Plaintiff was having house in Hyderabad, as
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such on both grounds he was not entitled for allotment of plot. On finding the
same the Registrar of Societies issued an order directing the defendant No.4
society to cancel the allotments already made in favor of individuals, as those
allotments were not in accordance with conditions laid down in G.O.M.S. No.
694 dated 5-12-1994, otherwise action would be initiated against the defendant
no 4 society as per law. In view of the above, the defendant Society cancelled
the plot already allotted and also cancelled the sale deed executed in favor of the
individuals, who were not eligible and entitled, including the plaintiff.
46.1. He further submitted that he informed the individuals including the
plaintiff personally about the Registrar’s order and that it was necessary to
cancel their sale deeds. With a view to help the individuals in whose favor the
plots were already registered, the Managing Committee of the defendant No.4
Society decided to allot 300 square yards each in their favor with a fond hope
that the Society could convince the Registrar of Co-operative Societies on the
same. On cancelling plot No.15, the defendant No.4 Society sub-divided plot
No.15 into two plots i.e. plot Nos.15A & 15B and executed sale deeds
alienating plot No.15A to an extent of 300 square yards in favor of defendant
No.1 vide sale deed No.3401 of 2000 dated 18.10.2000 and plot No.15B to an
extent of 300 square yards in favor of the plaintiff vide sale deed No.3402 of
2000 dated 18.10.2000. Thereafter, due to reasons best known to the plaintiff
and defendant No.2, the plaintiff requested the defendant Society to allot
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another plot in lieu of plot No.15B and also requested defendant No.2 for
exchange of plot. The defendant No.2 was allotted 17-A by the Society. The
Society executed sale deed alienating plot No.17-A to an extent of 300 square
yards to defendant No.2. On considering the request of the plaintiff and mutual
oral exchange between the second defendant and plaintiff, the defendant No.4
Society cancelled the sale deed No.3402 of 2000 vide cancellation deed No.824
of 2001 dated 08.03.2001. On request of the defendant Society, the defendant
No.2 agreed for mutual exchange of plots between them. As the plaintiff and
defendant No.2 agreed for exchange of plots, the Society vide cancellation deed
Nos.823 of 2001 and 824 of 2001 executed registered cancellation deeds on
08.03.2001. After execution of cancellation deed dated 08.03.2001, the Society
executed registered sale deed document No.826 of 2001 dated 08.03.2001
alienating plot No.17-A in favor of the plaintiff. As per the Government
Orders, the plaintiff was not eligible for allotment of plot and in any event he
was not eligible for allotment of two house plots i.e. plot No.15 and plot
No.17-A, as claimed by him.
47. In his cross-examination, DW.4 admitted that he was the founder
Secretary of the Society and one Kamatam Rami Reddy was the President of the
Society. As per the bye laws, the Secretary was the overall supervising
authority and he was responsible for its executive and administrative functions.
He admitted that he executed the sale deed in favor of the plaintiff under Ex.A4.
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He admitted that to his knowledge, during his tenure, there was no resolution
authorizing the President to execute a cancellation deed, cancelling the sale
deed executed in favor of the plaintiff and further admitted that to his
knowledge, no notice was issued to the plaintiff before execution of cancellation
of Ex.A5. He admitted that he represented the Society in Ex.A1. Ex.A1 was
the certified copy of the sale deed dated 13.04.1994, wherein the Government
executed the sale deed in favor of the M/s.Vijaya Co-operative House Building
Society for Ac.77-35 cents. He admitted that in Ex.A1, no conditions were
imposed by the Government as to the allotment of the property. Thus, these
admissions made by DW.4 were contrary to his evidence affidavit in the chief
examination.
48. He stated that he could not say whether the Society had filed any G.O.
showing that the Government prohibited the Society from allotting the plots to
any others except MLAs and MPs. But after going through the documents, he
admitted that Ex.B9 was the said G.O. Ex.B9 was G.O.Ms.No.1077 dated
29.11.1991. In para 2 of the said G.O., it was specified that the allotment of
plots should be subject to the following conditions:
i) All those members or their spouses who had obtained any house plot from
Government land either directly or through a Co-operative Society should be
ineligible for allotment.
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ii) The allottee should be prohibited to alienate, transfer or dispose of the plot
allotted for a period of 15 years.
49. Thus, this G.O. does not have the condition of allotment of plots to MLAs
and MPs alone. G.O.Ms.No.694 dated 05.12.1995 was marked as Ex.B12.
DW.4 in his evidence affidavit stated the said G.O. was dated 05.12.1994, but
Ex.B12 would disclose that it was issued on 05.12.1995. It was mentioned in
the said G.O. that the Secretary of M/s.Vijaya Co-operative House Building
Society requested the government to issue a clarification to admit members
other than sitting MLAs and MPs so as to enable the said Society to admit the
legal heirs of the deceased members and others as the Society decides with a
view to allot the surplus plots to the extent available not exceeding 10% of the
total membership of the Society, as the Society was the absolute owner of the
land and was empowered to amend its bye laws under the Societies Act. The
Government in pursuance of it modified the orders issued in G.O.Ms.No.1077
dated 29.11.1991, as:
a) The condition in para 2(ii) of the G.O. first read above shall be continued.
b) The members who represented during 8th Session of Legislative Assembly /
Council which ended by December 1989 and 1985 (up to dissolution) are
eligible for allotment of house sites, subject to maximum of 10% of total
membership.
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c) The Vijaya Co-operative House Building Society is permitted to consider
admitting new members from among those, who have been elected MLAs to the
10th Session of the Assembly to the extent of vacant plots.
50. Thus, the Government issued a clarification with regard to admitting
members, who represented during 8th and 10th Sessions of Legislative Assembly
/ Council subject to a maximum of 10% of total members for allotting vacant
plots and continued the condition that the allottees should be prohibited to
alienate or dispose of the plots allotted to them for a period of 15 years.
51. DW.4 in his cross-examination further admitted that in Ex.B12, there was
no word like “MLAs/ MPs alone were eligible for entitlement or allotment of
plots.” He also admitted that they did not file any evidence to show that PW.1
owned a house or other property in Hyderabad and further admitted that they
did not issue any notice to the plaintiff stating that he was ineligible for
allotment of plot as he was having a house property in Hyderabad. He further
admitted that in Ex.A5, the certified copy of the cancellation deed dated
31.12.1999 cancelling Ex.A4, no reasons were mentioned for cancelling the
allotment. He admitted that he did not file any order passed by the Registrar of
Co-operative Societies directing defendant No.4 Society to cancel the allotment
made in favor of the plaintiff. He stated that other than the plaintiff, there were
seven persons allotted with the land, who were not either MLAs / MPs and they
included Sri Komaraiah, Sri Rama Rao. He stated that defendant No.3 was the
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wife of Rama Rao. Rama Rao worked as Officer of their Society for about 8
years. He stated that he did not know whether the sale deed in the name of
Rama Rao was cancelled or not so far, so also, the allotments made to
Komaraiah and others. Though, he stated that they had served notices on them
before ordering cancellation, admitted that no such notices were filed before the
Court.
52. DW.4 further admitted that as per bye laws, a member allotted with land
was prohibited from transferring the plot to others for 15 years after allotment.
But even after filing of the suit, their Society did not take any action against
defendants 1 and 2, who executed agreement of sale – cum – GPA in favor of
defendant No.3. He admitted that the plaintiff did not give any letter in writing
stating that he was proposing to exchange plot with defendant No.2. He
admitted that only on the oral representation of the plaintiff, they cancelled the
sale deed of the year 2000 and executed the cancellation deed and allotted the
plot to defendant No.2.
53. Thus, these admissions made by DW.4 in his cross-examination go
contrary to the written statement of Defendant No.4 Society and as well as his
evidence affidavit filed as chief examination. He admitted that in Ex.A1, in
G.O.Ms.No.1077, no conditions were imposed by the Government as to the
allotment of the property and that in G.O.Ms.No.694 there were no words like
MLAs / MPs alone eligible for allotment of plots. Though he stated that Ex.A5
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was cancelled with the consent of the plaintiff, admitted that there was no
written document or notice served upon the plaintiff before ordering
cancellation.
54. Though DW.4 stated that the bye laws of the Society did not permit
allotment of plots to the persons, who were already having house property,
DW.1 who was allotted plot No.15A admitted in his cross-examination that he
was having a house bearing No.5/3 RT situated at Ameerpet, which was allotted
to him by AP Housing Board and a sale deed was executed in his favor in or
around 1975 and in 2001 he gave the said house for development and in the
development agreement got five flats towards his share. DW.2, who was said to
have exchanged plot No.17-A with the plaintiff also admitted in his cross-
examination that he was residing at 520 SRT, Sanath Nagar, Hyderabad. The
said house was allotted to him under Industrial Housing Scheme in the year
1957 and a sale deed was executed in the year 1983 in his favor. He stated that
the said property was still in his name as on the date.
55. Thus, DWs.1 and 2 were allotted plots though they were under the in-
eligibility category. If the cancellation of original house plots i.e. plot Nos.15,
101 and 305 allotted to the plaintiff and DWs.1 and 2 were cancelled on the
ground of their in-eligibility of not being the MLAs or MPs, again allotting
them smaller plots of 300 square yards each by the Managing Committee of the
Society is also not proper. The defendant No.4 Society ought not to have
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allotted even the smaller extent of plots to the said persons if it was in violation
of the conditions of the Government Order. However, as the Society had
executed registered sale deeds in favor of the plaintiff and defendants 1 and 2,
cancellation cannot be done unilaterally by the Society. The Society must
approach the competent court seeking cancellation. If it was only an allotment
letter or an un-authorized document issued by the Society, the Society has
power to cancel the said document. But, as the Society executed a registered
sale deed, cancellation required proper legal proceedings. The Society had
given a go by to the statutory requirements and the Government guidelines in
admitting members who were not MLAs and MPs and allotment of plots to
them. However, the Society had also not followed due procedure in
cancellation of the registered documents. DW.4 failed to file any document to
show that they convened a meeting or issued notices to the persons, who were
allotted plots without satisfying the eligibility criteria nor failed to file the
minutes of meeting or resolutions passed by the Managing Committee nor failed
to file the Order passed by the Registrar of Co-operative Societies directing the
defendant No.4 Society to cancel the allotments made in favor of the plaintiff.
DW.4 also failed to file the resolution authorizing the President to execute the
cancellation deed, cancelling the sale deed in favor of the plaintiff. The
registered sale deed shall be presumed to be valid until it is set aside or
cancelled by a competent court under Section 31 of the Specific Relief Act,
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1963, as it has a presumptive value. Even if the allotment was irregular or
contrary to the G.O., the Society cannot take upon itself cancelling the
registered sale deed unilaterally. The violation of G.O. does not automatically
give right to the Society to cancel the registered sale deeds executed in favor of
individuals. The G.O. conditions might render the allotment questionable or
even voidable. However, unless the sale deed was declared as void by the
Court, the same remains operative. The Society should approach the Court
seeking cancellation of the sale deed in favor of the individuals based on
violation of G.O. As the party holding a registered sale deed is entitled for
protection of his interest, unless the Court declares the deed as void or voidable,
the plaintiff is entitled to be declared as owner of the schedule property viz.,
plot No.15. The unilateral cancellation of sale deed by defendant No.4 Society
is liable to be set aside.
56, POINT No.5:
Whether the plaintiff is in possession of the suit property, if so,
whether he is entitled for the relief of perpetual injunction, as prayed
for?
As the plaintiff is holding a registered sale deed, he is entitled to
possession and to protect his interest in accordance with law. Even a voidable
sale deed remains valid and operative until it is set aside by a competent court.
Title once conferred through a registered document cannot be taken away
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without due process of law. The defendant No.4 Society failed to prove that it
had cancelled the registered document through due process of law. Unless and
until, the sale was cancelled through proper judicial process, the unilateral
action of the Society treating the same as cancelled cannot be upheld. As such,
the plaintiff is entitled to the relief of declaration of title and perpetual
injunction, as prayed for. The judgment of the trial court on these aspects is in
accordance with law and this Court does not find any illegality or irregularity to
set aside the same.
57. In the result, both the C.C.C.As are dismissed confirming the judgment
and decree dated 11.03.2008 passed in O.S.No.410 of 2004 by the learned III
Additional Chief Judge, City Civil Court, Hyderabad. No order as to costs.
As a sequel, miscellaneous applications pending in both these appeals, if
any, shall stand closed.
____________________
Dr. G.RADHA RANI, J
Date: 26th June, 2025
Nsk