Telangana High CourtJambula Ganesh Reddy vs Jambula Anjan Reddy on 27 November, 2020Author:M.S.Ramachandra RaoBench:M.S.Ramachandra RaoTHE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO\n\n                                      AND\n\n     THE HONOURABLE SRI JUSTICE T. AMARNATH GOUD\n\n\n\n        Civil Miscellaneous Appeal Nos.342 and 343 of 2020\n\n\nCOMMON JUDGMENT:Since these two appeals arise between the same parties out of\n\nthe same suit, they are being disposed off by this common order.2.            These Civil Miscellaneous Appeals are preferred against\n\nthe separate orders and decrees dt.06.02.2018 passed in Interlocutory\n\nApplication No.904 of 2018 in O.S.No.1008 of 2018 and\n\nInterlocutory Application No.903 of 2018 in O.S.No.1008 of 2018 on\n\nthe file of XIV Additional District Judge, Ranga Reddy District, at\n\nL.B. Nagar.3.     The appellant herein is plaintiff in the above suit.\n\n\nThe case of the appellant/plaintiff4.     The appellant/plaintiff filed the said suit against respondents to:(i) declare a registered Sale Deed dt.04.06.1988 executed by husband\n\nof 2nd defendant - Yadagiri Reddy and 3rd defendant in favour of\n\nrespondent nos.4 and 5 in respect of land admeasuring Acs.7.39 gts.which is part and parcel of the suit Schedule property, as not binding\n\non him to the extent of his 1/4th share; (ii) declare another registered\n                                  ::2::                      MSR,J & TA,J\n                                                           cma_342&343_2020\n\n\n\n\nSale Deed dt.22.08.1988 executed by 1st respondent in favour of 4th\n\nrespondent in respect of land admeasuring Acs.2.20 gts. which is part\n\nand parcel of the suit Schedule property, as not binding on the\n\nplaintiff to the extent of his 1/4th share; and (iii) to declare the\n\nregistered General Power of Attorney dt.20.12.2006 executed by 5th\n\nrespondent in favour of 4th respondent and two registered Sale Deeds\n\ndt.08.01.2007 bearing Document Nos.477 and 478 of 2007 executed\n\nby respondent nos.4 and 6 to 9 in favour of respondent nos.10 to 12 in\n\nrespect of the suit schedule property, as null and void and not binding\n\non him.5.    The case of appellant is that he is one of the sons of late Kashi\n\nReddy; that respondent nos.1, 3 and one Yadagiri Reddy are his\n\nbrothers; that Yadagiri Reddy died, and the 2nd respondent is the\n\nwidow of the said Yadagiri Reddy.6.    It is the contention of appellant that the suit schedule property is\n\na portion of the larger extent of Acs.33.37 gts. in Survey Nos.38, 39,\n\n49 and 50 of Dasarapally Village which was owned by his father and\n\nhis father's two brothers; that the plaint Schedule property is an extent\n\nof Acs.10.18 gts.; that Kashi Reddy died in the year 1980 leaving\n\nbehind Acs.15.18 gts. which fell to his share; that Acs.5.00 gts. in\n\nSurvey No.50 out of this extent was sold under a registered Sale Deed\n\ndt.24.11.1982 by the appellant's mother, the appellant and his 3\n\nbrothers under a registered Sale Deed dt.24.11.1982, and the\n\nremaining land left was Acs.10.18 gts. in which the appellant has joint\n                                  ::3::                    MSR,J & TA,J\n                                                         cma_342&343_2020\n\n\n\n\nownership and possession; and that the remaining land was not\n\ndivided by metes and bounds between appellant and his brothers.7.    It is contended by the appellant that in February, 2018, the\n\nappellant came to know that respondent nos.11 and 12 claiming to be\n\npartners of 10th respondent-Firm and purchasers of the suit Schedule\n\nproperty from respondent nos.4 to 9 started interfering with the joint\n\npossession and enjoyment of the appellant over the suit Schedule\n\nproperty; that he was informed by respondents about the above\n\nreferred Ex.P.4 - General Power of Attorney dt.08.12.2006 and Sale\n\nDeeds Exs.P.5 and P.6 dt.08.12.2007, executed by 4th respondent\n\nalong with respondent nos.6 to 9 in favour of respondent nos.10 to 12.8.    He contended that these Sale Deeds Exs.P.5 and P.6 indicated\n\nthat the 3rd respondent executed Ex.P.2 Sale Deed dt. 4.6.1988 for\n\nAcs.7.39 gts. in favour of respondent nos.4 and 5, and the 1st\n\nrespondent executed Ex.P.3 Sale Deed dt.22.08.1988 for an extent of\n\nAcs.2.20 gts. in favour of 4th respondent; and that these Sale Deeds\n\nare not binding on appellant and he is deemed to be in joint possession\n\nand enjoyment thereof.9.    The appellant further contended that respondent nos.1, 3 and\n\nLate Yadagiri Reddy had no exclusive right to deal with the suit\n\nSchedule property; that respondent nos.10 to 12 have grabbed the\n\nentire suit schedule property in June, 2018 under the guise of Exs.P.5\n\nand P.6 Sale Deeds dt.8.1.2007 even though the appellant had 1/4th\n                                    ::4::                    MSR,J & TA,J\n                                                            cma_342&343_2020\n\n\n\n\nundivided share therein; that the said respondents even got mutated\n\ntheir names in the Revenue Records without notice to appellant; and\n\nthat respondent nos.10 to 12 were trying to alienate the property by\n\nobtaining a lay-out.Interlocutory Application Nos.903 of 2018 and 904 of 201810.   Making these averments, the appellant / plaintiff filed\n\nI.A.No.903 of 2018 under Order XXXIX Rules 1 and 2 of Civil\n\nProcedure Code, 1908 restraining the respondents 11 to 13 from\n\nalienating, transferring or conveying title of the suit Schedule\n\nproperty; and I.A.No. 904 of 2018 under Order XXXIX Rules 1 and 2\n\nof Civil Procedure Code, 1908 restraining the respondents 11 to 13\n\nfrom changing or altering the nature of the suit Schedule property.\n\n\nThe stand of the respondent nos. 10-1211.   The 11th respondent filed counter-affidavit on his behalf and\n\nalso on behalf of respondent nos.10 and 12 opposing grant of any\n\nrelief to appellant in I.A. Nos.903 of 2018 and 904 of 2018.12.   The 11th respondent contended that there was no joint\n\nownership and possession of appellant, and respondent nos.1 and 3\n\nand Late Yadagiri Reddy; that purchasers under Exs.P.2 and P.3 have\n\nbeen in exclusive possession of the suit schedule property ever since\n\ntheir purchase on 04.06.1988 and 22.08.1988; and respondent nos.11\n\nand 12, representing 10th respondent, had purchased the same from\n\nrespondent nos.4 to 9 under Exs.P.5 and P.6 registered Sale Deeds\n                                   ::5::                     MSR,J & TA,J\n                                                            cma_342&343_2020\n\n\n\n\ndt.8.1.2007 on the basis of Ex.P.4 - General Power of Attorney\n\ndt.8.12.2006; and that the said purchase is valid in law.13.      According to them, after the execution of Exs.P.2 and P.3 -\n\nSale Deeds and after the death of Laxmamma, mother of appellant,\n\nthere was a partition between appellant and his brothers' families, and\n\nthe appellant was allotted more land in lieu of lands sold by\n\nrespondent nos.1 to 3 amount to Acs.27.25 gts. According to them, the\n\n1st respondent got Acs.22.37 gts., Late Yadagiri Reddy's family got\n\nAcs.16.17 gts., and 3rd respondent got Acs.18.5 gts.14.      They contended that basing on this partition, the appellant and\n\nrespondent nos.1, 3 and Late Yadagiri Reddy approached the Revenue\n\nAuthorities, and the Recording Authority accordingly passed orders\n\non 26.03.1992 (Ex.R-1 to R-4) for mutation of their names in the\n\nRevenue Records; and the appellant, with oblique motive and seeing\n\nthe development of suit Schedule property by respondent nos.10 to 12,\n\nwith an evil intention to extract money from them, filed the above\n\nsuits.15.      They alleged that Sale Deed Exs.P.2 and P.3 executed by\n\nbrothers of appellant in 1988 had never been questioned and\n\nchallenged by appellant; that the appellant had knowledge of Exs.P.2\n\nand P.3 Sale Deeds being executed in favour of respondent nos.4 and\n\n5 in 1988 itself, and so the appellant's suit is barred by limitation and\n\nis misconceived.::6::                    MSR,J & TA,J\n                                                          cma_342&343_2020\n\n\n\n\nThe orders of the Court below16.   Before the Court below, the appellant marked Exs.P.1 to P.12,\n\nwhile respondent nos.10 to 12 marked Exs.R.1 to R.10.17.   By separate orders dt.06.02.2020, both the I.A.s were dismissed\n\nby the Court below.18.   The Court below, while noting that 4th respondent is the elder\n\nbrother of 5th respondent and respondent nos.6 to 9 are family\n\nmembers of respondent nos.4 and 5, held that Kashi Reddy died in the\n\nyear 1980 and thereafter Ex.R.5 - Sale Deed was executed by\n\nLaxmamma and her four sons including appellant for Acs.5.00 of land\n\n(Exs.R.5 dt.24.11.1982); that after that sale deed was executed\n\nLaxmamma also died, and Yadagiri Reedy, the husband of 2nd\n\nrespondent, also died.19.   It then referred to the contention of appellant about the\n\nappellant noticing in 2nd week of February, 2018 the activities of\n\ndefendant nos.10 to 12 and his plea that they grabbed the suit\n\nSchedule property in June, 2018, and held that respondent nos.4 and 5\n\nhad acquired title to Acs.2.20 gts. in Acs.7.39 gts. under Ex.P.3 - Sale\n\nDeed dt.04.06.1988 and Ex.P.2 - Sale Deed dt.22.08.1988; and that\n\nthe 5th respondent executed Ex.P.4 - General Power of Attorney on\n\n08.12.2006 in favour of 4th respondent.20.   The Court below then went on to hold that the appellant was\n\nalso resident of the same Dasarapally Village where the suit schedule\n                                    ::7::                      MSR,J & TA,J\n                                                              cma_342&343_2020\n\n\n\n\nproperty was also located, and it is unbelievable for him to say that for\n\nthe first time he came to know about the execution of Exs.P.2 and P.3- Sale Deeds in 1988 and other subsequent Sale Deeds which are\n\nregistered documents in the 2nd week of February, 2018.21.      It held that Exs.R.1 to R.4 - Mutation Proceedings, relied upon\n\nby respondent nos.10 to 12 pointed out that mutation proceedings\n\nissued to the family members of Late Kashi Reddy including the\n\nappellant and his three sons, and in the said proceedings, except the\n\nsuit Schedule land, all other lands were covered.22.      It concluded therefore that there was a partition between the\n\nbrothers of appellant and the appellant; that appellant cannot be said\n\nto be ignorant of the occupation of suit Schedule property purchased\n\nunder Exs.P.5 and P.6 - registered Sale Deeds; and that the appellant\n\nwas feigning ignoring of these facts until the recent past.23.      It therefore held that the appellant did not approach the Court\n\nwith clean hands and was not entitled to equitable relief of injunction.\n\n\nThe present Appeals24.      Assailing the same, the present Civil Miscellaneous Appeals are\n\nfiled.25.      It is the contention of Sri Koppula Gopal, counsel for appellant\n\nthat the order passed by the Court below is erroneous; that the Court\n\nbelow erred in disbelieving the plea of appellant that he had a 1/4th\n                                  ::8::                    MSR,J & TA,J\n                                                         cma_342&343_2020\n\n\n\n\nshare in the suit Schedule property; that respondent nos.1 and 3 and\n\nthe husband of 2nd respondent could not have alienated the suit\n\nschedule properties by excluding the appellant; that the said\n\ntransactions under Exs.P.2 and P.3 do not bind the appellant and he is\n\nentitled to ignore them; and that the Court below erred in holding that\n\nappellant did not approach it with clean hands.26.     Sri Srinivas Velagapudi, counsel appearing for respondent\n\nnos.10 to 12, refuted the said contentions and supported the order\n\npassed by the Court below. He also pointed out that the transactions\n\nunder Exs.P.2 to P.6 are registered transactions, and as per\n\nExplanation No.1 toSection 3of the Indian Registration Act,1908\n\nregistration of a document is constructive notice and the appellant\n\ncannot plead ignorance of the transactions which took place in 1988.27.      He relied upon the decisions in Hyderabad Co-operative\n\nUrban Bank Limited, Hyderabad represented by its Person In-\n\nCharge, Manoj Kumar and another vs. Andhra Pradesh Co-\n\noperative Tribunal, Hyderabad, represented by Chairman and\n\nothers1,Bina Murlidhar Hemdev vs. Kanhaiyalal Lokram\n\nHemdev2, Janardhanam Prasad vs. Ramdev3, and Sakuntalamma\n\nv. K.V. Govindaswamy and others4.1(2017) 6 A.L.T. 1992(1999) 5 S.C.C. 2223(2007) 15 S.C.C. 17442015 (4) A.L.T. 696\n                                        ::9::                          MSR,J & TA,J\n                                                                  cma_342&343_202028.   We may point out that the suit Schedule lands are located in\n\nDasarapally Village and the appellant admittedly resides in the same\n\nvillage.29.   Ex.P.2 - registered Sale Deed dt.04.06.1988 was executed by\n\nYadagiri Reddy, the husband of 2nd respondent and 3rd respondent\n\ntogether in favour of respondent nos.4 and 5 in respect of\n\nAcs.7.39 gts in Sy.No.38,39,49 and 50 of Dasarlapally village.30.   Likewise, Ex.P.3 - registered Sale Deed dt.22.08.1988 was\n\nexecuted by 1st respondent in favour of 4th respondent in respect of\n\nAcs.2.20 gts. in Sy.No.38 of Dasarlapally village.31.   Respondent nos.4 to 9 executed Ex.P.5 - registered Sale Deed\n\non 08.01.2007 in favour of 10th respondent; and Ex.P.6 - Sale Deed\n\nalso on 08.01.2007 in favour of 10th respondent; and these two sale\n\ndeeds cover the entire suit Schedule property.32.   All these transactions are registered under theRegistration\n\nAct,1908.33.   UnderSection 3of the Transfer of Property Act, "a person is\n\ndeemed to have notice" of a fact when "he actually knows that fact or\n\nwhen, but for wilful abstention from an enquiry or search which he\n\nought to have made, or gross negligence, he would have known it".\n\nExplanation I thereto says:"Explanation I.--Where any transaction relating to\n           immovable property is required by law to be and has been\n                                       ::10::                           MSR,J & TA,J\n                                                                       cma_342&343_2020\n\n\n\n\n         effected by a registered instrument, any person acquiring\n         such property or any part of, or share or interest in, such\n         property shall be deemed to have notice of such instrument as\n         from the date of registration...." ( emphasis supplied)34.    In Janardhanam Prasad (3 supra), the Supreme Court\n\nadverted to Explanation 1 toSection 3of Transfer of Property Act and\n\nobserved that registration of a document is deemed to be constructive\n\nnotice, and possession would also be constructive notice as per\n\nExplanation 2 toSection 3of the Registration Act.35.    This principle has been reiterated inBina Murlidhar Hemdev(2 supra) as under :"40. Now the rectification deed is a registered document. The\n      agreement by the Sankhalas with the builder is dated 16-7-1994 and it\n      specifically refers to the deed of rectification (dated 18-6-1992). The\n      Jains' agreement of sale dated 19-8-1994 with the builder no doubt\n      omits to refer to the rectification deed and says that there are only\n      some "claims" of the Lokrams. But the Sankhalas were obviously\n      more truthful. Now if the agreement of the Sankhalas had put the\n      builder on notice of the rectification deed specifically, as stated\n      earlier, it is prima facie clear that the builder had actual notice and\n      was obliged to enquire into its details. Thus there is actual notice.\n      There is also constructive notice inasmuch as the rectification deed is\n      a registered deed andSection 3of the Transfer of Property Act comes\n      into play.41. ...42. Inasmuch as the rectification deed is a registered deed, it is\n      deemed to be notice to the builder in view ofSection 3of the Transfer\n      of Property Act." (emphasis supplied)\n                                  ::11::                    MSR,J & TA,J\n                                                          cma_342&343_202036.   I had also taken a similar view in Hyderabad Co-operative\n\nUrban Bank Limited (1 supra).37.   In Sakuntalamma (4 supra), I have followed the decisions in\n\nJanardhanam Prasad (3 supra) and Hyderabad Co-operative\n\nUrban Bank Limited (1) supra, and held that when there is a\n\nregistered deed there is constructive notice of it as per Explanation 1\n\ntoSection 3of the Registration Act, 1908.38.   This legal position is not disputed by the counsel for appellant.39.   The counsel for appellant however sought to rely onArticle 110of theLimitation Actwhich states the limitation period is 12 years for\n\na plaintiff to file a suit when he is excluded from joint family property\n\nand when who intends to enforce his right to a share therein.40.   The applicability of the said provision would, no doubt, have to\n\nbe considered in the suit.41.     But, in our opinion, it may not even apply prima facie, having\n\nregard to Exs.R.1 to R.4, which indicate that there was already a\n\npartition among the appellant and his brothers by 1992 itself, after\n\nExs.P.2 and P.3 - Sale Deeds were executed in 1988, and more\n\nproperty appears to have been allotted to appellant probably on\n\naccount of sale of the property under Exs.P.2 and P.3 by respondent\n\nnos.1 to 3.::12::                     MSR,J & TA,J\n                                                            cma_342&343_202042.   Even otherwise, if Exs.P.2 and P.3 - Sale transactions which\n\nwere registered in 1988 are taken into account, since the appellant\n\ncannot be said to be in joint possession as on date of filing of this suit,\n\neven if the 12 year period of limitation mentioned inArticle 110is\n\ntaken into account, the right of appellant to enforce his right in joint\n\nfamily property stood extinguished by the year 2000, when the 12\n\nyear period expired.43.   The instant suit had been filed by appellant to enforce his\n\nalleged right in the joint family property in 2018, therefore appears\n\nprima facie to be barred by limitation as well.44.   In addition, we also agree with finding of the lower court that\n\nthe appellant must have been aware of all these events having\n\ncontinued to live in Dasarapally Village where the plaint Schedule\n\nproperties are located and would definitely have knowledge about the\n\nsale of the suit Schedule property by his brothers to respondent nos.4\n\nand 5 and also by respondent nos.4 and 1 to respondent nos.10 to 12,\n\nand possession as on date of filing of the suit by the respondent 10,\n\nand that he suppressed the said facts and came to the Court with\n\nunclean hands.45.   We therefore find no valid reason to interfere with the order\n\npassed by the Court below refusing to grant temporary injunctions\n\nsought by appellant pending suit, either to restrain respondents 10 to\n\n13 from changing the nature of the suit schedule property or to\n                                    ::13::                MSR,J & TA,J\n                                                        cma_342&343_2020\n\n\n\n\nrestrain them from alienating, transferring or conveying the suit\n\nschedule property46.   Accordingly, the Civil Miscellaneous Appeals fail and are\n\ndismissed. No order as to costs.47.   As a sequel, miscellaneous applications pending if any, in these\n\nAppeals, shall stand closed.__________________________________\n                               JUSTICE M.S.RAMACHANDRA RAO\n\n\n                                     _____________________________\n                                    JUSTICE T. AMARNATH GOUD\n\nDate: 27.11.2020\nNdr