Andhra Pradesh High Court – Amravati
Dr. Mikkilineni Venkateswara Rao vs Thummala Rambabu on 16 June, 2025
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.124 of 2010
JUDGMENT:
Original plaintiff in O.S.No.355 of 1995 was Dr. Mikkilineni
Venkateswara Rao. During pendency of the suit before learned
I Additional Senior Civil Judge, Vijayawada he died. His wife and
children were brought on record as plaintiff Nos.2 to 5. The
present appeal under Section 96 of C.P.C. is filed by the plaintiffs
impugning the judgment dated 26.10.2009 of learned I Additional
Senior Civil Judge, Vijayawada in O.S.No.355 of 1995. The sole
defendant in the suit is the sole respondent herein.
2. Meticulous and elaborate arguments were advanced on
behalf of the appellants by Sri Kanakamedala Ravindra Kumar,
the learned Senior Counsel. For respondent, Sri Venkateswara
Rao Gudapati, the learned counsel submitted effective reply
arguments.
3. A brief note of respective contentions is filed by both sides.
Precedent is cited by both sides.
4. The original plaintiff Dr. Mikkilineni Venkateswara Rao is
brother-in-law of Sri Thummala Chittaranjandas. The defendant
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in the suit Sri Thummala Rambabu is the son of Sri Thummala
Chittaranjandas. Thus, both parties are closely related to each
other. As a matter of fact, it has never been disputed by both
sides that under a registered sale deed dated 02.07.1963 the
original plaintiff purchased 800 square yards of vacant site in
RS.No.914 of Patamata Village. The original plaintiff lived in
India till December 1981. It was during December 1981 he left
India for Algeria and lived there till March 1987. On his return he
was staying at Hyderabad till his death. On 01.12.1993 the
original plaintiff had executed a registered sale deed in favour of
the defendant whereunder he sold 400 square yards out of his
800 square yards of site and delivered possession of the same to
the defendant. The certified copy of the said sale deed was
exhibited before the trial Court as per Ex.B.132. The dispute
between the parties has arisen by virtue of another registered
sale deed dated 31.08.1994 for the remaining extent of 400
square yards. The registration extract of the said sale deed was
exhibited by original plaintiff as per Ex.A.4. The prayer in the suit
reads as below:
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A.S.No.124 of 2010“Hence, the plaintiff prays that the Hon’ble court may be
pleased to pass a decree and judgment in favour of the
plaintiff and against the defendant:
“(a) for the declaration that the plaintiff is the absolute
owner of the plaint schedule property and that the
sale deed dated 31-8-1994 under document
No.4740/1994 of the office of the sub-Registrar,
Vijayawada said to be executed in favour of the
defendant by the so called power of Attorney holder
of the plaintiff in respect of the plaint schedule
property is null and void, unenforceable and not
binding on the plaintiff;
(b) for consequential relief of recovery of possession of
the plaint schedule property from the defendant to
the plaintiff;
(c) for future damages at the rate of Rs.3,000/- per
month for his unauthorised occupation of the plaint
schedule property from the date of the suit till the
date of delivery of the said property;
(d) for the costs of the suit;
and
(e) pass such other reliefs as the Hon'ble Court deems
fit and proper in the circumstances of the case.”
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5. In the plaint it is stated that the defendant was pursuing his
studies in Vijayawada and at the request of his father the original
plaintiff permitted the defendant to stay in the house that was
there in a part of 800 square yards of site that was owned by the
plaintiff. There were tenants on the said property. The original
plaintiff instructed the defendant to collect rent periodically and
account for the same to the original plaintiff. He did not do so
between 1981 and 1987. After return from Algeria the original
plaintiff questioned the defendant about his failure to account for
the rents, but he dodged the issue. In May 1995 the original
plaintiff had come to know that two months prior to that the
defendant got all the tenants vacated and had trespassed into the
entire property. The original plaintiff questioned this and got
issued a notice dated 04.06.1995/Ex.A.1 to the defendant
demanding him to vacate the house and deliver vacant
possession of the house in good condition and pay the entire
amounts overdue along with interest within ten days. A further
warning was mentioned that the original plaintiff would take the
matter to criminal and civil courts and would demand for further
damages and costs. According to plaint averments the defendant
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managed to return the notice unserved. The defendant was
found constructing a wall in the property. The plaintiff went and
questioned him, and it was then the defendant showed him a
photostat copy of the sale deed dated 12.09.1994/Ex.B.133 and
claimed right for himself in the entire property. The said sale
deed discloses that it was executed by one Yelamanchili
Madhava Rao purportedly holding the registered power of
attorney executed by the original plaintiff. In the plaint it is stated
that the said registered power of attorney is a forged document.
Using the said forged document the defendant and his father and
others procured the original of Ex.A.4-sale deed. In these
circumstances the suit was filed with the prayer referred earlier.
6. The defendant filed a written statement whereunder he
admitted the original ownership of original plaintiff over the entire
800 square yards of site. He specifically denied the rest of the
contentions alleged in the plaint and stated that he as a student
pursued his studies in Vijayawada at different places and never
lived on the property of the original plaintiff and he was never
entrusted with the task of collecting rents from the alleged tenants
and accounting for the same to the original plaintiff. The further
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contentions raised in the written statement are that the original
plaintiff originally executed an unregistered agreement for sale
with possession in favour of one Bobba Venkata Rao on
09.12.1981/Ex.B.4. Thereafter the said Bobba Venkata Rao
executed an agreement for sale with possession in favour of this
defendant on 19.10.1987/Ex.B.21. That the original plaintiff
executed a registered General Power of Attorney in favour of
Sri Yelamanchili Madhava Rao on 18.11.1988/Ex.B.20. Initially
the defendant purchased 400 square yards of site from the
original plaintiff for valuable consideration on
01.12.1993/Ex.B.132. Coming to the remaining 400 square yards
of site, the original plaintiff got it sold through his registered
general power of attorney holder on 12.09.1994/Ex.B.133. The
registered General Power of Attorney executed by original plaintiff
in favour of Sri Yelamanchali Madhava Rao is true and valid. It
was executed on 18.11.1988/Ex.B.20 and that was in force when
the disputed sale was affected by the power of attorney holder in
favour of the defendant.
7. In the written statement it is further stated that the
defendant lost all his original documents and accordingly gave a
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report to the Station House Officer in Gudivada Town Police
Station and after due enquiry they certified that the documents
could not be traced. Thereafter the defendant published this
aspect in various newspapers on 04.05.1995. The original
plaintiff got inspiration from that and with a view to grab the
property filed this false suit. Various other averments made in the
plaint were specifically denied in the written statement. The
defendant prayed for dismissal of the suit.
8. The learned trial Court settled the following issues for trial:
1. Whether the plaintiff is entitled to declaration as prayed
for?
2. Whether the plaintiff is entitled to recovery of
possession of plaint schedule property?
3. Whether the plaintiff is entitled for future damages at
Rs.3,000/- p.m. as prayed for?
4. To what relief?
Additional Issue:
1. Whether there is a valid power of attorney in the name
of 2nd plaintiff?
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A.S.No.124 of 2010
9. There was oral evidence of PWs.1 to 3 and Exs.A.1 to A.6
for plaintiffs. There was oral evidence of DWs.1 to 8 and Exs.B.1
to B.140 for the defendant.
10. The learned trial Court after considering the entire evidence
on record and after considering the arguments advanced on both
sides recorded that it was not convinced with the case of the
plaintiffs and further recorded that there was truth in the defence
set up by the defendant. It answered all the issues against the
plaintiffs and dismissed the suit.
11. Aggrieved by that, the plaintiffs preferred the present
appeal.
12. The following points fall for consideration in this appeal:
1. Whether the trial Court committed an error in
admitting and acting upon secondary evidence?
2. Whether the evidence on record has not proved that
plaintiff No.1/appellant No.1 executed registered
General Power of Attorney dated 18.11.1988 in
favour of Sri Yelamanchili Madhava Rao?
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3. Whether registered sale deed dated 31.08.1994
executed by Sri Yelamanchili Madhava Rao as
power of attorney holder of plaintiff No.1/appellant
No.1 in favour of defendant/respondent is invalid?
4. Whether the various facts and circumstances
brought on record entitled the plaintiffs for suit
prayed reliefs, but the trial Court erroneously
dismissed the suit?
13. A registered document carries with it the presumption that it
was validly executed. It is for the party challenging the
genuineness of the transaction to show that the transaction is not
valid in law. Invalidity of a registered sale deed when assailed in
a suit for declaration and cancellation of such sale deed, the onus
lies on the plaintiff to establish the case asserted.1
14. A power of attorney is not an instrument of transfer in
regard to any right, title or interest in an immovable property. The
power of attorney is the creation of an agency whereby the
1
Jamila Begum v. Shami Mohd. (2019) 2 SCC 727
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grantor authorizes the grantee to do the acts specified therein, on
behalf of grantor, which when executed will be binding on the
grantor as if done by him.2
15. Mere mention in the title or the body of a power of attorney
that it is irrevocable, does not make it irrevocable. However, if the
agent has an interest in the property which forms the subject
matter of the agency, the agency cannot in the absence of the
express contract be terminated to the prejudice of such interest.3
16. In the case at hand, the cause of concern for the
plaintiffs/appellants is the registered sale deed dated 31.08.1994.
A registration extract of it is filed by the plaintiffs as per Ex.A.4.
The purchaser of the property under this document is
respondent/defendant. The original of this registered sale deed
must have been with the defendant/respondent. He did not file
the original of it. He filed certified copy of it as per Ex.B.133 and
also a photostat copy of it as per Ex.B.134. The date of this
2
Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana (2012) 1 SCC
656
3
Barses J.A. D’Douza v. Municipal Corporation of GR. Brihan Mumbai
2003 SCC OnLine Bom 244
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document is 31.08.1994. The date of its registration is
12.09.1994. The recitals in it disclosed that it was not signed by
plaintiff No.1 himself, but it was signed by his power of attorney
agent Sri Yelamanchili Madhava Rao. It is under this document
400 square yards of site was shown to have been sold by plaintiff
No.1/appellant No.1. It is that property which is shown in the
plaint schedule and it is that document which the plaintiffs seek
annulment. Original plaintiff denied to have executed any such
general power of attorney. Defendant produced a copy of this
registered General Power of Attorney and the same was
exhibited as Ex.B.20. It discloses that on 18.11.1988 it was
executed by plaintiff No.1 whereunder he appointed
Sri Yelamanchili Madhava Rao as his power of attorney agent
empowering him to execute registered sale deeds with reference
to his 800 square yards of site. In this there is a mention that
plaintiff No.1 had already sold this property under an agreement
to Sri Bobba Venkata Rao and he also received full consideration
from him. Registered documents cannot be executed because of
certain Government Orders. Stating that his children are living in
other countries and that he needs going abroad and as he was
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A.S.No.124 of 2010
not sure as to when the Government Orders would be relaxed, he
found the need to appoint a power of attorney holder and
accordingly he appointed him. As stated earlier, this GPA refers
to an agreement for sale dated 09.12.1981 said to have been
executed by plaintiff No.1 in favour of Sri Bobba Venkata Rao.
The plaintiffs denied to have executed any such agreement for
sale. The defendant produced a photostat copy of the said
agreement for sale as per Ex.B.4. In addition to the above
documents the defendant has also produced a photostat copy of
an agreement for sale dated 19.10.1987 as per Ex.B.21. This
document discloses that it was executed by Sri Bobba Venkata
Rao in favour of the defendant.
17. Since original documents are not produced and only
photostat copies of documents were produced, the question had
arisen before the Court below as well as here about admissibility
of secondary evidence. It is that aspect of the matter that has to
be considered now.
POINT No.1:
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A.S.No.124 of 2010
18. Defendant as DW.1 stated that on 29.04.1995 while he was
travelling in A.P.S.R.T.C. bus from Vijayawada to Gudivada the
original documents of his property and some of the link
documents which were kept in a polythene bag along with clothes
were lost and he accordingly gave a complaint to police and after
due search police certified as per Ex.B.23 that the documents
could not be traced. A perusal of Ex.B.23 confirms the truth of
the above evidence of DW.1. The witness further deposed that
he also published a news item in daily newspapers about the loss
of his documents which is evidenced by Exs.B.24 and 25. Thus,
we have got a case where the witness on oath stated that he lost
the original documents. One thing that he could do was to
complain to the police and also request the general public about
loss of his documents. He did both things. Since the original
documents were no more in possession of the defendant he
could not produce the originals. In the normal course, unless
some motive is suggested to the party proposing to adduce
secondary evidence to the effect that he made an application to
adduce secondary evidence on false grounds, normally he can be
permitted to lead secondary evidence. A bear statement made
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A.S.No.124 of 2010
on evidence affidavit by a party would be sufficient proof of fact
that the document has been lost or not traced out. There can
never be absolute proof of fact that the document had been lost.
A statement from the person that the document was lost and in
spite of his best efforts he could not trace out the document could
be sufficient evidence of the fact that the document had been
lost.4
19. So far as registered documents are concerned, it was well
within the competence of the defendant to obtain registration
extracts of such documents. It is obvious that the defendant did
not do that. It was for the defendant to offer his explanation for
his omission to do that. The defendant as DW.1 stated that in the
year 1988 in Vijayawada a Member of Legislative Assembly was
assassinated and that resulted in huge problems and unknown
people set the Sub-Registrar’s Office to fire and consequently all
the documents and registers of the Government Office were
gutted. This assertion of DW.1 is never in dispute during trial as
4
Kodali Jhansi Rani v. Valasala Venkta Ramana Ramana LAWS(TLNG)-
2019-2-112/2019 (6) ALT 58
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A.S.No.124 of 2010
well as here. Thus, the defendant offered valid explanation for
his inability to procure registration extracts of the sale deed and
the general power of attorney. The learned trial Court was
satisfied with these explanations and observed that sufficient
foundation was laid by the defendant for non-production of
primary evidence and for production of secondary evidence.
20. In this appeal those observations of the trial Court are
challenged.
21. Learned counsel for appellants contends that after the
destruction of registers and documents in the Sub-Registrar’s
Office, the Government notified that persons who were in
possession of documents could approach the Sub-Registrar’s
Office for reconstruction of records and the defendant failed to do
that. This was suggested to DW.1 during his cross-examination
and the witness expressed his ignorance of that aspect of the
matter. Be that as it may. His registered sale deed dated
31.08.1994 is subsequent to the burning of Sub-Registrar’s
Office. Ex.B.20 which is a photostat copy of General Power of
Attorney dated 18.11.1988 was just earlier than the fire incident in
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A.S.No.124 of 2010
the Sub-Registrar’s Office. By the time he obtained his registered
sale deed under the original of Ex.A.4 the fire incident was over
long time ago. Therefore, there was no need for him to do
anything further. He lost the original of Ex.A.4 and thereafter he
obtained its registration extract as per Ex.B.133. Coming to
Ex.B.20 which is the photostat copy of general power of attorney
he himself did not have the original or duplicate and the records
in the Sub-Registrar’s Office were burnt and he produced a photo
copy which was available with him. Therefore, it can be said that
the defendant did what all he could do and there is no merit in the
contention raised on behalf of the appellants.
22. Learned counsel for appellants argued the principles
concerning primary evidence and secondary evidence and
photostat copies of documents and cited U.Sree v. U.Srinivas5.
That was a case where their Lordships held that secondary
evidence must be authenticated by foundational evidence that the
alleged copy is in fact a true copy of the original. Mere admission
of a document in evidence does not amount to its proof.
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A.S.No.124 of 2010
Therefore, it is the obligation of the Court to decide the question
of admissibility of a document in secondary evidence before
making endorsement thereon.
23. In J.Yashoda v. K.Shobha Rani6, their Lordships referred
to Sections 63 and 65 of Indian Evidence Act and on facts made
an observation that the appellant therein failed to explain as to
what were the circumstances under which the photostat copy was
prepared and who was in possession of the original document at
the time its photograph was taken.
24. In H.Siddiqui v. A.Ramalingam7, referring to secondary
evidence, their Lordships stated that it is the duty of the Court to
examine whether documents produced in the Court or contents
thereof have any probative value.
25. Joseph John Peter Sandy v. Veronica Thomas
Rajkumar8 – That was a case where parties associated with the
5
(2013) 2 SCC 114
6
(2007) 5 SCC 730
7
(2011) 4 SCC 240
8
(2013) 3 SCC 801
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A.S.No.124 of 2010
document were not examined and therefore based on the
principles disputed document therein was not considered.
26. Nurukurthi Solman Raju v. Nurukurthi Veera Lakshmi9 –
In this it was held that a photostat copy was inadmissible in
evidence.
27. Badrunnisa Begum v. Mohamooda Begum10 – That is a
case where a copy of the copy was found inadmissible. It was
further held that if secondary evidence is allowed to be marked
for one party without objection at the trial, no objection can be
permitted to be raised by the opposite party at any later stage in
the same Court or in appeal that conditions for adducing
secondary evidence have not been made out initially.
28. In terms of Section 65(c) of Indian Evidence Act, when the
original has been destroyed or lost, the party is entitled to
produce secondary evidence.11
9
LAWS(APH)-2017-7-51/2017 (5) ALT 178
10
LAWS(APH)-2001-2-59/ALT 2001 (3) 243 (DB) (AP)
11
Kodali Jhansi Rani v. Valasala Venkta Ramana Ramana LAWS(TLNG)-
2019-2-112/2019 (6) ALT 58
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A.S.No.124 of 2010
29. Chandabolu Bhaskara Rao v. Betha Saidi Reddy12 –
That is a case where a photostat copy was explained stating that
it is quite possible to conceal the signatures on the original and
take a photocopy.
30. A.Sudershan v. M/S Gowra Leasing And Finance Ltd.13
– That is a case where a contention was raised before the Court
that the photocopy of a document cannot be received as
secondary evidence. In specific terms such contention was
negatived and held such contention was unsustainable.
31. Facts are to be spoken to by witnesses. Witnesses are to
answer questions. In a trial process witnesses do not stand and
continue making statements. DW.1 was in the witness box.
During his evidence he produced photostat copies of the above
referred documents. Objections were raised about their
admissibility. Subject to those objections the trial Court marked
the documents.
12
LAWS (APH)-2006-4-25/ALT 2006 (4) 245
13
LAWS(TLNG)-2020-6-16/ALT 2020 (4)273
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32. Section 63(2) of Indian Evidence Act states that secondary
evidence means and includes copies made from the original by
mechanical processes which in themselves ensure the accuracy
of the copy. While DW.1 was in witness box he ought to have
been questioned as to when and how he procured the photostat
copies. That was not done. Plaintiff No.1 as PW.1 by his very
plaint questioned the validity of the documents. It has to be
observed here that while the entire document was questioned it
has never been the case of the plaintiffs that the photostat copies
produced contains something that was not there in the original or
it does not contain what was there in the original. A registered
general power of attorney is a matter of fact and that could be
seen from the endorsements of the Registrar on the photocopy of
Ex.B.20. It is nobody’s case that its contents were altered, or
some signatures were concealed or some signatures which were
not there were produced by manipulation. Therefore, in the given
facts and circumstances while the validity of those documents is
still a question what is produced in the form of secondary
evidence there can be no dispute. Therefore, in the opinion of
this Court the principles laid down in various rulings referred
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above stand satisfied in the present case and the trial Court
rightly considered secondary evidence. This Court finds no
reason to disagree with the findings of the trial Court. Therefore,
this point is answered against the appellants/plaintiffs.
POINT Nos.2, 3 and 4:
33. Section 31 of Specific Relief Act reads as below:
“31. When cancellation may be ordered.–(1) Any person
against whom a written instrument is void or voidable, and
who has reasonable apprehension that such instrument, if
left outstanding may cause him serious injury, may sue to
have it adjudged void or voidable; and the court may, in its
discretion, so adjudge it and order it to be delivered up and
cancelled.
(2) If the instrument has been registered under the Indian
Registration Act, 1908 (16 of 1908), the court shall also send
a copy of its decree to the officer in whose office the
instrument has been so registered; and such officer shall
note on the copy of the instrument contained in his books
the fact of its cancellation.”
34. Section 34 of Specific Relief Act reads as below:
“34. Discretion of court as to declaration of status or
right.–Any person entitled to any legal character, or to any
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A.S.No.124 of 2010right as to any property, may institute a suit against any
person denying, or interested to deny, his title to such
character or right, and the court may in its discretion make
therein a declaration that he is so entitled, and the plaintiff
need not in such suit ask for any further relief:
Provided that no court shall make any such declaration
where the plaintiff, being able to seek further relief than a
mere declaration of title, omits to do so.”
35. Explaining the difference between Sections 31 and 34 of
Specific Relief Act, the following observations are made at
paragraph No.7 by the Apex Court in Suhrid Singh @ Sardool
Singh v. Randhir Singh14:
“Where the executant of a deed wants it to be
annulled, he has to seek cancellation of the deed. But if a
non-executant seeks annulment of a deed, he has to seek a
declaration that the deed is invalid, or non-est, or illegal or
that it is not binding on him. The difference between a prayer
for cancellation and declaration in regard to a deed of
transfer/conveyance, can be brought out by the following
illustration relating to `A’ and `B’ — two brothers. `A’ executes
a sale deed in favour of `C’. Subsequently `A’ wants to avoid
the sale. `A’ has to sue for cancellation of the deed. On the
other hand, if `B’, who is not the executant of the deed, wants
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A.S.No.124 of 2010to avoid it, he has to sue for a declaration that the deed
executed by `A’ is invalid/void and non- est/ illegal and he is
not bound by it. In essence both may be suing to have the
deed set aside or declared as non-binding. But the form is
different and court fee is also different. If `A’, the executant of
the deed, seeks cancellation of the deed, he has to pay ad-
valorem court fee on the consideration stated in the sale
deed. If `B’, who is a non-executant, is in possession and
sues for a declaration that the deed is null or void and does
not bind him or his share, he has to merely pay a fixed court
fee of Rs. 19.50 under Article 17(iii) of Second Schedule of
the Act. But if `B’, a non- executant, is not in possession, and
he seeks not only a declaration that the sale deed is invalid,
but also the consequential relief of possession, he has to pay
an ad-valorem court fee……”.
The principle was reiterated by their Lordships in
Hussain Ahmed Choudhury v. Habibur Rahman15.
36. In the case at hand, the appellants/plaintiffs made a prayer
for declaration of title and cancellation of original of Ex.A.4-
registered sale deed dated 31.08.1994. In the absence of the
disputed alienation under the original of Ex.A.4, the title of plaintiff
No.1 is an undisputed fact. The defendant claiming under the
14
(2010) 12 SCC 112
15
2025 INSC 553/2025 LiveLaw (SC) 466
24
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original of Ex.A.4 seeks title through plaintiff No.1 only.
According to plaintiffs, plaintiff No.1 did not execute Ex.A.4. If
that be the case, it would have been sufficient for him to seek for
declaration of title since the existence of Ex.A.4 casts a cloud on
his title. A person who executed a document could alone seek for
its cancellation. Though plaintiff No.1 alleges that he did not
execute either by himself or through power of attorney, he still
seeks cancellation of Ex.A.4 which is a little confounding. Be that
as it may. His Ex.A.4 discloses that it was executed through the
alleged power of attorney holder. Is it not incumbent upon plaintiff
No.1 who has come to know about existence of such GPA dated
18.11.1988 as per Ex.B.20 to pray a relief against that document.
He did not do so. Learned counsel for respondent contended that
acts of GPA bind the principle and if prayer against GPA is not
made the suit is not maintainable and cited Vuppu Veera
Venkata Subba Rao v. Borra Padmaja Rao16. That was also a
case where the prayer was to declare the plaintiff as the absolute
owner of the plaint schedule property and for an injunction. At
16
2024 APHC 186
25
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A.S.No.124 of 2010
paragraph No.25 a learned Judge of this Court recorded that
Ex.B.1-registered sale deed was executed by a power of attorney
holder under Ex.B.2 and the plaintiff failed to seek a declaration
that Ex.B.2-General Power of Attorney is null and void or vitiated
by fraud or undue influence. In the absence of such a prayer the
prayer for declaration of title could not be granted. Learned
counsel for respondent further cited Qamar Mehdi v. Mirza Asraf
Hussain Baig17. A Division Bench of Telangana High Court held
“it is well settled principle of law, as long as the registered GPA
executed by the principal is not cancelled or revoked, if the GPA
holder acted upon for any transaction in pursuant to the said
GPA, the same is binding upon the principal unless and until the
principal produces evidence to the effect that the said transaction
is contrary to the recitals specified in the GPA or if the GPA
holder/agent acted contrary to law.” After laying down the said
principle it was held that the plaintiffs were not entitled to seek for
relief of declaration of Ex.A.1-sale deed therein as null and void
since Ex.A2-registered GPA was not cancelled or revoked.
17
Judgment dated 22.09.2022 in C.C.C.A.No.108 of 2014
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37. Learned counsel for respondent argued that in the instant
case the original of Ex.A.4-sale deed was executed by the
general power of attorney holder who acted in pursuance of the
original of Ex.B.20 and the GPA holder was entitled to execute
and present the sale deed for registration and at that time there
was no legal obligation on part of the registering authority also to
demand for production of registered GPA and cited to that effect
the ruling of the Hon’ble Supreme Court of India in Amar Nath v.
Gian Chand.18
38. Learned counsel for respondent cited Rattan Singh v.
Nirmal gill.19 That was a case where their Lordships had stated
that where a plaintiff questions the documents and their validity
and contents that they were forged the burden lies upon the
plaintiff to prove his case. Their Lordships concluded saying that
the standard of proof required in a civil dispute is preponderance
of probabilities and not beyond reasonable doubt. Though the
discrepancies in the 1990 GPA are bound to create some doubt,
18
(2022) 11 SCC 460
19
(2021) 15 SCC 300
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however, in absence of any tangible evidence produced by the
plaintiff to support the plea of fraud, it does not take the matter
further. Rather, in this case the testimony of the attesting
witnesses, scribe and other independent witnesses plainly
support the case of the defendants. That evidence dispels the
doubt if any and tilts the balance in favour of the defendants.
Since the 1990 GPA had been proved, there is no reason to
doubt their bona fides. It is in the light of these principles now the
facts on record are to be scrutinized.
39. Sri Yelamanchili Madhava Rao is stated to be the General
Power of Attorney holder under Ex.B.20. He testified as DW.5.
Further one of the attestors to this document is Sri K.Venugopala
Rao. He testified as DW.3. Another attestor is
Sri K.Bhanuprasad. He testified as DW.4. An identifying witness
before the Sub-Registrar for the original of Ex.B.20 was
Sri J.Krishna Murthy. He testified as DW.7. All these witnesses
stated that in their presence plaintiff No.1 executed the original of
Ex.B.20. Thus, as a matter of fact the facts given by them on
oath proved execution of original of Ex.B.20 by plaintiff No.1 in
favour of DW.5- Sri Yelamanchili Madhava Rao. It is to be noted
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A.S.No.124 of 2010
that the document is of the year 1988. The suit was filed in the
year 1995. The witnesses were examined during the year 2005
and 2006. Their cross-examination led on behalf of the plaintiffs
would only try to test their accuracy about such facts as to who
purchased stamps, where they were purchased, how many
signatures were obtained etc. In the opinion of the trial Court
there were some discrepancies among these witnesses, yet it can
act upon their evidence. That is questioned in this appeal by the
learned counsel for appellants. One can never lose sight of the
fact that it has never been the case of the appellants/plaintiffs that
Ex.B.20 for its original was not a registered document. All the
witnesses were examined in cross and they were all known to
plaintiffs and the defendant. No facts are suggested to them
probabilising any animosity for them to speak falsehood against
the plaintiffs. The only suggestion given to them was that it was a
fraudulent document and they are trying to help the defendant
and such suggestions were denied by the witnesses. The original
plaintiff was a doctor by profession. These witnesses belonged to
nearby villages. No facts are shown as to why their evidence
should not be believed. The contention of the learned counsel for
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A.S.No.124 of 2010
the plaintiffs/appellants is that according to the respondent/
defendant/DW.1 he was very much present at the time of
Ex.B.20. According to DW.5-Sri Yelamanchili Madhava Rao,
DW.1 was not present at the time of Ex.B.20. Therefore, there is
such variation in their evidence. However, recollecting facts
nearly 1½ decades after the event under Ex.B.20 such
discrepancies do occur. Whether the defendant was present
when Ex.B.20 was made or not has no bearing on the validity of
Ex.B.20. Therefore, it must be recorded that the original of
Ex.B.20 is a document that was executed by plaintiff No.1 in
favour of Sri Yelamanchili Madhava Rao.
40. Under the disputed sale deed/original of Ex.A.4 the
defendant is the beneficiary. He testified as DW.1. An attestor of
this document is Sri Ch.Varaprasad. He testified as DW.2. Their
evidence is that DW.5 acting in terms of Ex.B.20 executed the
original of Ex.A.4. Thus, with that evidence the defendant
established his contentions.
41. From the cross-examination of the witnesses of the
defendant one could not find anything to state that either Ex.A.4
30
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A.S.No.124 of 2010
or Ex.B.20 are not proved. Once Ex.B.20 is proved and Ex.A.4 is
proved the case rests there. However, certain valiant
submissions are made on behalf of the plaintiffs in the following
manner.
42. Learned counsel submits that, Ex.B.4 relied on by the
defendant is an agreement for sale with possession said to have
been executed by plaintiff No.1 in favour of Sri Bobba Venkata
Rao. According to the learned counsel he never executed any
such agreement for sale. The further contention is that the
contents of Ex.B.4 would indicate that it was really a sale deed
and not a mere agreement for sale and in such an event the said
document which was not registered could not have been acted
upon. Learned counsel cited Banguru Ramatthula Samma v.
Yedem Masthan Reddy.20 Their Lordships recorded the ruling
stating that when the document embodies a complete sale and
not merely an executory contract and when the transfer of
ownership is affected under the document itself, it cannot be
considered as an agreement for sale and it has to be considered
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A.S.No.124 of 2010
as sale deed itself. In such a case such a document having not
been registered under Section 17(1)(b) of the Registration Act
could not be admitted in evidence.
43. A perusal of Ex.B.4 shows that agreed sale consideration
was Rs.1,00,000/- and Sri Bobba Venkata Rao paid only
Rs.90,000/- and was yet to pay Rs.10,000/- to the vendor/plaintiff
No.1. The document further reveals that there are tenants in the
premises. The lease amounts shall belong to the vendor/plaintiff
No.1 till the tenants vacate the property. It further mentions that
plaintiff No.1 needed money as he was going to Algeria and
therefore, he was selling the property. It is mentioned that even
one year from the date of document plaintiff No.1 would return to
India and would receive Rs.10,000/- towards balance sale
consideration and then execute a registered sale deed. Thus, the
recitals do indicate that there was no transfer of title. In such
circumstances, the document is only an agreement for sale and
not a sale deed. Be that as it may. On the one hand
plaintiffs/appellants denied to have executed Ex.B.4. If that be
20
LAWS(APH)-1998-8-98/ALT 1998 (4) 796
32
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the case in terms of Ex.B.4 he received money and he gave
possession of the property to Sri B.Venkata Rao and he never
prayed for cancellation of it or declaration that it is invalid. On the
other hand, it is the evidence of plaintiff No.1 as PW.1 that he
approached Sri Bobba Venkata Rao and obtained from him
Ex.A.5-affidavit dated 21.07.1995. Be it noted that the plaint was
presented on 24.07.1995 and three days earlier to that he
allegedly obtained such affidavit from Sri Bobba Venkata Rao. A
perusal of Ex.A.5 does not disclose any whisper about Ex.B.4-
agreement for sale. Thus, even according to the own showing of
plaintiff No.1/appellant No.1 Sri Bobba Venkata Rao has not
denied execution of original of Ex.B.4 by plaintiff No. 1 in his
favour. What all Ex.A.5 intended to show was only to question
the correctness of passing of sale consideration as mentioned in
the disputed sale deed which is original of Ex.A.4. It may be
mentioned here that in Ex.A.4 obtained by defendant it is recited
that consideration was paid by Sri Bobba Venkata Rao to plaintiff
No.1. At present what is relevant is that Ex.A.5-affidavit only says
denial of Sri Bobba Venkata Rao about such consideration. In
the evidence of PW.1 it is noticed that Ex.A.5 was obtained with
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A.S.No.124 of 2010
the assistance of counsel of him. If that be the case, it was on
advice such an affidavit was obtained. If really there is no truth in
Ex.B.4-agreement for sale, the affidavit would have mentioned
the same. In such circumstances, one has to necessarily accept
the correctness of Ex.B.4-agreement for sale.
44. According to the defendant, subsequent to Ex.B.4
Sri Bobba Venkata Rao executed an agreement for sale in his
favour under the original of Ex.B.21 dated 19.10.1987. A reading
of this document shows that agreement holder who is Bobba
Venkata Rao delivered possession of the property to the
defendant and that was all for 800 square yards.
45. The purport of Ex.B.4 is an agreement to sell 800 square
yards. The purport of Ex.B.21 is also an agreement for sale of
800 square yards. Correctness of Ex.B.21 is challenged on the
ground that stamps were purchased on 08.10.1986 but the
document was executed on 19.10.1987 and the document
writer’s renewal licence was of the year 1988 as is mentioned on
such a document of the year 1987. All those suspicious
circumstances are shown with reference to correctness of
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A.S.No.124 of 2010
Ex.B.21. Be that as it may. If this Court excludes Exs.B.4 and
B.21 from consideration still no legal consequence follows with
reference to Ex.B.20 GPA and Ex.A.4-registered sale deed. The
only argument for plaintiffs/appellants is that if sale consideration
was paid by defendant to Sri Bobba Venkata Rao under Ex.B.21
would it suit to common sense that he once again paid sale
consideration and obtained one sale deed in the year 1993 for
400 square yards and another sale deed under Ex.A.4.
According to the learned counsel, no prudent person would have
paid sale consideration twice and therefore Ex.A.4 should be
declared as null and void. While the argument cannot be stated
to be meritless, yet its acceptance by itself does not invalidate
either Ex.A.4-sale deed or Ex.B.20 GPA. In this regard a few
more aspects concerning possession of the property are required
to be noticed here.
46. According to the pleaded case of plaintiffs since 1981 when
the original plaintiff left India for Algeria and till the suit is filed in
the year 1995 he or his family has never been in physical
occupation of any part of 800 square yards which he owns. It is
the pleaded case of plaintiffs that since 1987 the defendant has
35
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A.S.No.124 of 2010
been in possession of this property. One would see Exs.B.5 to
B.11, B.13 to B.19 and B.28 to B.131 house tax receipts and
electricity bills were produced by the defendant. Thus, plaintiff
No.1 has not been exercising any control over this property.
Whether the defendant came into possession of the property in
terms of Ex.B.21-agreement for sale said to have been executed
by Sri Bobba Venkata Rao or whether he has been put in
possession by plaintiff No.1 as alleged by plaintiff No.1, the fact
remains that it was the defendant who has been in occupation
and exercising actual control over this property. Plaintiff No.1 as
PW.1 and his wife as PW.2 and his wife’s brother as PW.3 while
stated that there were tenants in the premises and they were got
vacated by the defendant two months earlier to the filing of the
suit in the year 1995, they admitted that there are no rent
receipts, rent agreements and they do not even know the names
of any of the tenants. Why is that? Huge information lapses on
their part. It is so precisely because plaintiff No.1 executed
Ex.B.4 dated 09.12.1981 in favour of Sri Bobba Venkata Rao and
obtained his money and therefore he did not have any interest
over this property. The question whether the defendant obtained
36
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A.S.No.124 of 2010
Ex.B.21 from Sri Bobba Venkata Rao or not makes no difference
so far as the validity of his possession and the title he obtained
under the original of Ex.A.4. The trial Court rightly considered the
entire evidence and reached to the right conclusions. The
various aspects brought on record through evidence on
peripheral facts have not really touched the core of the issue and
the appellants failed to show invalidity of original of Ex.A.4 and
Ex.B.20. The impugned judgment does not call for any
interference. For all these reasons all the points are answered
against the appellants/plaintiffs.
47. In the result, this Appeal is dismissed. There shall be no
order as to costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 16.06.2025
Ivd
37
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A.S.No.124 of 2010
THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.124 of 2010
Date: 16.06.2025
Ivd