Professional Documents
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RAVI KUMAR
SECOND APPEAL Nos.729 of 2011
11-02-2015
<Gist:
>Head Note:
? Cases referred:
Date:11.02.2015
S.A.No.729/2011
COMMON JUDGMENT:
3. All the three suits are clubbed and joint trial was
conducted and evidence was recorded in O.S.No.587/2002.
On behalf of respondent herein, P.Ws.1 to 3 are examined
and documents Exs.A1 to A13 are marked and on behalf of
appellant herein D.Ws.1 to 5 are examined and documents
Exs.B1 to B49 are marked. On a over all consideration of
oral and documentary evidence, trial Court decreed
O.S.No.587/2002 filed by respondents herein and
dismissed the suits in O.S.No.588/2002 &
O.S.No.127/2003 filed by appellant herein. Aggrieved by
the dismissal of these three suits, the appellant herein filed
A.S.No.7/2009 against judgment in O.S.No.127/2003,
A.S.No.8/2009 against judgment in O.S.No.587/2002 &
A.S.No.9/2009 against judgment in O.S.No.588/2002 and
the appellate Court by a common judgment dated 23-12-
2010 dismissed all the appeals. Aggrieved by which, these
second appeals i.e., S.A.No.729/2011 against judgment in
A.S.No.9/2009, S.A.No.753/2011 against judgment in
A.S.No.8/2009 & S.A.No.767/2011 against judgment in
A.S.No.7 of 2009 are preferred
Facts: According to appellant, he purchased suit property from one P. Madhav Reddy through a
registered sale deed dated 25-04-2002 and he was in possession and enjoyment of the said
property. Appellant had acquaintance with the respondent since six years prior to the suit as
he is in the advertising field, whereas the respondent herein is a movie artist. According to
appellant, the respondent gained total confidence of the appellant and his wife and made them
to believe that the differences between appellant and his wife are due to the schedule
property, which is not in accordance with Vastu and convinced them that the schedule
property should be sold. The appellant was not interested to sell the property as it was
purchased for his personal benefit.
Respondent was also present at the time of negotiations with the vendor of the appellant and
he is well aware of the fact that it was purchased for a sum of Rs.12,00,000/- and the sale deed
was made for Rs.87,000/- only. According to appellant, there was an agreement between
himself and the respondent for sale of the property, according to which, the respondent agreed
to pay Rs.12,00,000/- within one month from the date of registration and due to the confidence
on the respondent, the appellant executed sale deed mentioning the sale consideration as
Rs.81,000/-, but the appellant has not received a single pie from the respondent and as the
respondent did not pay the sale consideration as agreed, the appellant executed a cancellation
deed dated 11-09- 2000 under document No.5877/2002, but as he was advised that he should
seek for cancellation of the sale deed dated 24-06-2002 under document No.3815/2002, he
filed O.S.No.588/2002.
It is also contended by appellant though there was a recital in the sale deed as to delivery of
possession, no such delivery is effected and as the respondent is contemplating to make a
feasible entry on the basis of sale deed, he filed the suit for injunction in O.S.No.127/2003.
On the other hand, according to respondent, the appellant approached him and offered to
sell the suit schedule property as the appellant was in need of money for his business purpose
and he paid full sale consideration that was referred in the sale deed and the appellant, after
receiving the sale consideration, executed sale deed dated 24-06-2002 before the District
Registrar, Medak at Sanga Reddy and delivered possession also and since then, he has been
enjoying the same as absolute owner without any interruption. According to respondent,
the appellant with a malafide intention gave a police complaint to Banjara Hills Police
contending that the sale consideration was Rs.12,00,000/- and that the respondent
has not paid the said sum to the appellant and thereafter, unilaterally executed cancellation
deed on 11-09-2002 under Document No.5877/2002, therefore, he is constrained to seek a
declaratory relief of cancellation of document No.5877/2002 and necessary changes in the
records of District Registrar, Medak, Sanga Reddy and for permanent injunction as the
appellant tried to interfere with the peaceful possession and enjoyment of the schedule
property.
7. Heard arguments.
Advocate for appellant vehemently argued that it is a clear case of fraud played by respondent
herein in obtaining a sale deed from appellant. He further argued that the trial Court and the
appellate Court failed to consider oral evidence that was adduced on behalf of the appellant
on the ground the same is not permissible as per Section 91 of Indian Evidence Act in view of
available documentary evidence. He submitted that when the appellant specifically
contended that the terms of the sale deed are not actually intended and the sale consideration
as mentioned in the sale deed is not the correct figure so also in respect of
recitals of delivery of possession, the appellant produced oral evidence to prove those
allegations, but the trial Court and appellate Court failed to consider that oral evidence on the
ground that such oral evidence is not permissible in view of Section 91 of Evidence Act. He
submitted that findings of trial Court and appellate Court on this aspect is
incorrect, therefore, those findings have to be termed as perverse.
He further submitted that the appellant has produced a tape recorder conversation, wherein
the respondent herein admitted about non-payment of sale consideration etc., and that the
cassette is marked as Ex.B48. He submitted that the respondent herein refused to give his
sample voice for the purpose of comparison by an expert and on account of his refusal, both
the Courts ought to have drawn adverse inference against respondent herein with regard to
Ex.B48-cassette, but both the Courts, instead of drawing an adverse inference, gave a finding
that the appellant failed to prove the contents of Ex.B48 and this finding is also perverse,
therefore, the second appeals are to be allowed. He further submitted that it is a fit case to
remand back the cases to the Court below for reappreciating the oral evidence and to consider
the plea of adverse inference or to send the cassette to any laboratory for voice test, for that
appellant prayed for a remand.
Advocate for respondent submitted that both trial Court and appellate Court have elaborately
discussed each and every point urged on behalf of both parties and there are absolutely, no
grounds to interfere with the concurrent findings. He submitted though Advocate for appellant
contended that there was fraud and misrepresentation, there is no evidence to support the
said contention. He further submitted that even in the pleadings also, except making a vague
allegation of fraud and misrepresentation, no details are given for the alleged fraud and
misrepresentation. He submitted from a reading of the entire pleadings and evidence of the
appellant, it is only a case of unpaid sale consideration, which is contra to the material on
record. He submitted that it is well established law, without pleadings a party cannot be
allowed to let in evidence and when there is no plea as required under Order VI Rule 4 CPC with
regard to fraud and misrepresentation, a party is not entitled to let in evidence. He further
submitted that when a tape recorder evidence is pleaded, the burden is on the person, who
pleads it to prima facie prove about recording of such cassette and also about the voice of the
persons, but in this case, no such evidence is produced and therefore, the contention that an
adverse inference has to be drawn is not tenable. He further submitted that according to
appellant, this cassette was recorded in the car of appellant and his driver is examined
as D.W.4, but he did not speak anything with regard to the instrument with which it was
recorded and so also with regard to voices of the persons and therefore, when the
appellant failed to show prima facie requirements, both the Courts rightly ignored it and there
are absolutely no incorrect findings in the judgments of the Courts below. He further
submitted that trial Court also considered the evidence of D.Ws.3 & 5 and therefore, the
objection that the oral evidence is discarded by the trial Court and appellate Court on the
ground of inadmissibility as per Section 91 of Evidence Act is incorrect. He submitted that there
is absolutely no ground to interfere with the concurrent findings and there is no substantial
question of law involved in these second appeals and all the appeals are liable to be dismissed.
This Court admitted the second appeal treating the following grounds as substantial question of
law which are as follows:-
__________________________
JUSTICE S. RAVI KUMAR
Date:11.02.2015