K.Manemma Vs S.Jaipal Reddy

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SMT JUSTICE K. SUJANA

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APPEAL SUIT N Ot 1442 & 1956 OF 2003

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Appeals filed under Section 96 of C.^p.C., against the judgment and decree dated 16-12-2002, made in OS No.97/98 on the file of the I Addl. Dist. Judge, R.R.District at L.B.Nagar, Hyderabad.

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APPEAL SUIT No.1442 OF 2OO3:

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Between:

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1- Smt. Konthan. Manemma, W/o. I\ilalla Reddy HOUSE HOLD R/o. Brahmanpally (V) Hayatnagar (M) R.R.DT

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K.Malla reddy, s/o late K. Pachi Reddy AGRICULTURE

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... APPELLANTS/Defendant Nos.1 & 2

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AND

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1 . S.Jaipal Reddy, S/o. S. Narsimha Reddy Business R/o. Saidabad Colony Hyderabad.

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.... Respondent No.l/Plaintiff

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Mis. Janachaitanya Housing Ltd.,, Choudhary Mansion Ameerpet Hyderabad.

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RESPONDENT No.ZDefendant No.3

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Counsel for the Appellants : SRl. G ANANDAM

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Counsel for the Respondent No.1 : Sri Vedula Venkata Ramana, Sr. Counsel for Sri B. Shiva Kumar

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Counsel for the Respondent No.2 : Sri M. Srinivasa Swarup

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FIRST APPEAL NO: 1956 OF 2003

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Between:

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M/s. Janchaitanya Housing Ltd., Rep by Authorised Office r A.Venkat Ratnam 2nd Floor, Zarnab Comptei Ameerp-6t. tiyderabad

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... AppELLAt,l^-/Defendant No.3

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AND

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1 S Jaipal Reddy, S/o. S.Narsimha Reddy Business R/o. Sa r abad Colony Hyderabad.

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2 smt. Kontha n Ma nem ma, wo rrrra rra Red;t'H luej8hool^j "S:^t !?:T,liltj"pa r ry M Hayatnagar (M) R.R. District.

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.... Respondent/[ efendant No.l

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3 K Malla Red.dy S/o tqle p pachi Reddy Agrit. R/o Brahm; r paily (,r) Hayatnagar (M) R R. Diskict

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RESPONDETI' /Defendant No.2

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counset for the Appeilant : sRt. M sRtNtvASA SWARUP

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lou_nge^{fortheRespondentNo..l :Sri VedulaVenkata} Rant na,Sr.Counsel for Sri B. Shiva Kumar

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Counsel forthe Defendant Nos.2 & 3 : SRI G. ANANDAM

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The Court delivered the following: COMMON JUDGMENT

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&.

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TTIE TIONOURABLE SMT. JUSTICE K. SUJANA

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APPEAL SUIT Nos.1442 & 1956 of2OO3

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COMMON JUDGMENT:

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Challenging the judgment and decree dated, 16.12.2002 passed in O.S.No.97 of 1998 by the I Additional District Judge, Ranga Reddy District at L.B. Nagar, the present appeal suits are fi1ed.

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Since the parties involved and the impugned order in both the cases is one and the same, this Court is inclined to dispose of both the cases by way of this common judgment.

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For the sake of convenience, hereinafter, the parties wili be referred to as they arrayed in thc suit.

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The brief facts of the case are that the plaintiff, engaged in real estate business in Brahmanapally village since 198g, purchased approximately 34 acres 12 guntas of lald in Survey Nos.26O, 261, 338, 346, 348, and 354 under agreements of sale to develop a housing colony. A layout named^,,Nava Bharat Housing Colony" was sanctioned in 1991 by defendant No.2, then Sarpanch. Between i991 and 1993, the plaintiff sold 29g

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2

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SKS,J A.S.Nos.144: trd 1956 of 2OO3

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plots, with sale decds executed by vendors and GIf granted to the plaintiff. Dcfendant No.2, acting as mediator, r rs included as co-purchaser along with his wife, defendant N,:r ,^{in certain} sale deeds. The plaintiff and defendant No.2 joint r purchased 12 acres in Sy.Nos.260 and 267 and sold 2I plct ;. To ease future regrstrations, 9 acres were registered jointly :r the names of the plaintiff and defendant No. 1. Defendar.: t No.2 also negotiated the purchase of 4 acres and 4 guntas rr Sy.No.338 .. from J. Ummarah, who executed GpA in his favor. he plaintiff divided thc land into plots and sold several, leavinp 73 unsold plots in Sy.Nos.260 :rnd 261 (Schedule A,) and 32 ir Sy.No.338 (Schedules 'B' and 'C). A dispute arose over accl) tnting and registratior-r of unsold plots, leading to a settlemen t on 29-O61992 before panchas, where the plaintiff agr-r t J to pay Rs.3,40,75O/- to defendant No.2. In return, defen I rnts Nos.1 and 2 were to register their shares in the unsold I ots. The plaintiff paid Rs. l,2S,OOOl-, but defendant Nos. 1 ar-r l 2 failed to comply. In 1995 and 1997, the plaintiff issued publi and lega.l notices to alienate the unsold plots. Despite this, deft,r dant No.2 registered 38 plots in favor of deiendant No.3, ir < Iuding 11 previously sold plots. The plaintiff sought declaratiorL that these sale deeds are null and void and requests enforcer-t :nt oI the

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SI{S,J A.S.Nos-1442 and 1956 of 2OO3

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settlement. Defendant No.2 denies the claim of the plaintiff, asserting that the father of the plaintiff father conducted the business and that he alone invested funds and holds rightful ownership. He denies any settlement or receipt of legal notices. Defendant No.3 claims to be a bona fide purchaser of 38 plots, denies collusion, and argues the suit is not maintainable due to non-joinder of necessary parties and being time-barred.

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Basing on the above pleadings, the trial Court framed six issues and PWs. 1 to 3 were examined and Exs.Al to A45 were marked on behalf of the plaintiffs. Defendant No.2 is examined as DW. 1.

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The trial Court, after examining the evidence, decreed the suit with costs, declaring the sale deeds mentioned in Schedules 'B' and 'C', pertaining to plots in Sy.No.338 of Brahmanapally village, as null and void and directed de[endant Nos. i and 2 to register their respective 50%o shares of defendant No. I in the 73 unsold plots in Sy.Nos.260 and 261 (Schedule^.AJ, and defendant No.2 in the 32 unsoid plots in Sy.No.338 within three months of receiving the balance amount as per the settlement deed dated 29-06-1992, after deducting^payments already made

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sr{s,J A.S.Nos.144 : nd 1956 of 2OO3

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by the plaintiff. Aggrieved thereby, the present ap I ral suits are filed by defendant Nos.2 and 3 respectively.

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Heard Sri^(1. Anandam, learned counsel r rpearing orr behalf of deiendant No.2, Sri M. Srinivas Su'ar rp, learned counsel appearing on behalf of defendant No-3. I ri B. Shiva Kumar, lcarned counsel appearing on behalf of threspondents and Sri Vedula Venkata Ramana, learned counsel e cpearing on bclralf of respondcrrt No. I.

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Learnecl counsel for the defendant No.2 subrr i ted that thc suit is based solclv on Ex.A43, a mere photostat c I ry, u.hich is inadmissible in evidence and the trial Court erred n decreeing the suit without acldressing this fundamental defect and despite objections to its admissibility, the trial Court r e ied on the do('ument without proper determination, thereby : ,rnmitting a serious error in law. He further submitted tli, r Ex.A43 is inadmissible unde r Section 92 of the Indian Evid,:: ce Act and the plaintiff failed to prove the existence or loss o- the original do('ument and did not follow the statutory p^- ,cedure for introducing secondary evidence under Sections 65 ,L Ld 66 of the Ind ian Evidence Acl and no notice was issued t, r the person allcgedly in possession of the original, nor was anr :xplanation

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sKS,.' A.S.Nos.lz142 alrd 1956 of 2OO3

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offered for its absence and that the plea of the plaintiff IS unsupported by admissible evidence, and the marking of Ex.A43 stands vitiated

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He contended that the trial Court failed to appreciate that the oral evidence cannot be used to contradict the terms of a written agreement and that principle is meant to protect the integrity and reliability of written documents and that Lhe document in question does not constitute a concluded contract, as it lacks the essential elements required under the Indian Contract Act and that mere marking of a document does not amount to proof of its contents. In support of his submissions, he relied upon the judgment of the Hon'ble Supreme Court in Maharaj Singh v. Karau Singhl, placido Francisco pinto w. Jose Francisco Pinto2, H. Siddiqui (deadl by LRs. Vs. A. Ramalingam^e , J. Yashoda v. K. Shobha Rani a , R.V.E. Venkatachala Gounder v. Arulmigu Vishwesaraswamy Temples and Sirikonda Madhava Rao Vs. N. Hemalatha and Ors.6, wherein it was afhrmed that admissibility and proof must

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SKS,J A.S.[os.1.+42 : od 1956 of 2OO3

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be independently established and^{that the} trial Cour^overlooked these legal standards and rendered a^judgment thit'^{ts perverse} and legally unsustainable. Therefore,^{he prayed} thc lourt^{to set} aside the^judgment of the trial Court by allowin1; this^appeal su1t.

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Learned counsel for defendant No.3 submi't :d that the judgment and decree are legally unsustainabie and^r hat the suit is based solcly on Ex.A43, a Photostat copy that is^: radmissible and does not name or involve defendant No.3^rL rd lhat the plaintiff lacked authority to seek cancellation ol sale deeds already executed in favor of the defendant No.3. He further submitted that defendant No.3 is a bona fide purch'r ;er for value without notice of prior claims and that the trial C -r rrt failed to frame issues or consider the aspect that the at^s :nce of the alleged plot owners from the proceedings, despite^t laims made on their behalf, casts doubt on the credibility of t -re suit and suggests collusion. He contended that any settler-r rnt between the plaintiff and defendant Nos.l and 2 cannot bi-r l defendant No.3, who was not a party to it and that the^plz i rtiff has no cause of action against defendant No.3, and any lc s s should be addressed from the remaining plots of defendant \ os. 1 and 2.

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SKS,J A.S.[os.1zt42^alld1956 of 2OO3

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Therefore, he prayed the Court to set aside the judgment of the trial Court by allowing this appeal suit.

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1 1. On the other hand, learned counsel for the plaintifl submitted that the trial Court rightly decreed the suit based on a combination of credible oral and documentary evidence and that aithough Ex.A43 is a Photostat copy, it pertains to a valid settlement deed executed by defendant No.2, and the original was to be returned to the plaintiff upon payment of the agreed settlement amount to defendart Nos. 1 and 2 and that the plaintiff had duly approached defendalt No.2 with the settlement amount, but the latter refused to accept it and deliberately evaded the transaction, thereby frustrating the terms of the agreement. He further submitted that the plaintiff subsequently demanded the return of the original deed, which was wrongfully withheld and that the non-production of the original document was thus adequately explained, and the marking of Ex.A43 was done in accordarce with law and that the admissibility of Ex.A43 was not objected to at the time of marking, nor was any application hled to expunge it from the record, and its evidentiary value was supported by the consistent and credibie testimonies of PWs.2 ald 3.

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SKS'J A.S.fos.144:r Ed 1956 of 2OO3

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He also contended that the case of the pJa .ntiff is not solely dependent on Ex.A43 but is reinforced t y oral and circumstantial evidence that satishes the requirer Lents under Sections 65 and 66 of the Indian Evidence Act a rd that the principle under Section 92 does not apply, as the f^,l rintiff is not seeking to contradict the written terms but to enforr e them. He further submitted that defendant No.3 cannot cla;r L the status of a bona fide purchaser, as the sale deeds were c> :cuted after the rights of plaintiff had crystallized under the se t ement deed and that defendant No.3 had constructive notice rf the prior claims and cannot seek protection under Section l9(b) of the Specihc Relief Act. The absence of the alleged plot rlvners from the proceedings does not vitiate the suit, as the, laim of the plaintiff claim is based on a binding settlement $, t -r defendant Nos.l and 2, which directly affects the title^r onveyed to defendant No.3 and further contended that there i; no illegality in the^judgment of the trial Court and requested 1 1e Court to dismiss the appeal suits.

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The points that arise for consideration in thir appeal are as follows:

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SKS,J A-s.Nos.1442 aad¹⁹⁵⁶ of2OO3

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I Whether Ex.A43 is true, valid, and binding on defendant No.2?

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2 Whether the plaintiff is entitled to the execution of the sale deeds?

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J Whether the suit is barred by limitation and liable to be dismissed for non-joinder of necessary parties?

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Point No. 1:

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The plaintiff have purchased. 34 acres and 12 guntas of land in Survey Nos.260, 261, 338, 346, 348, and 354 situated at Brahmanpally village through agreements of sale executed in the year 199 1 . The vendors of the plaintiff applied for layout approval after dividing the said land into plots. Defendant No.2, who was the Sarpalch of Brahmanpally village at the relevant time, sanctioned the layout in 1991. The plaintiff sold 298 plots between 1991 and 1993, and sale deeds.were executed by his vendors. The plaintiff contends that Defendant No.2 was entitled to commission for facilitating the transactions and that a dispute arose regarding the payment of such commission. The plaintiff relies on a settlement deed dated 29.06.1992 (Ex.A43), allegedly executed after mediation, wherein it was agreed that the plaintiff would pay Rs.3,40,750/- to Defendant No.2,

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SKS,J A.S.Ios.1442 . ld 1956^of2OO3

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including commission.^{He claimsto have paidFs} .t,2s,oooland was willing to pay the^{balance ofRs.2, 1,l} 750/-, but Defendant No.2 refused to^{acceptthe amount.ToI} ubstantiate his claim, the plaintiff filed a^{photostat copy of tI,(} settlement deed (Ex.A43), along with receipts^{(Exs.A6 to A11) ar} d examined PWs.2 and 3.

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PW.2 testified that the plaintiff and^Defendarr No.2 were engaged in real estate business and that^dispute s regarding commission and sale consideration were^{reft I} -ed to an arbitrator, G. Komaraiah. A rneeting^{was held on} 29.06.1992, attended by several individuals including^{PW.2, Ko r} araiah, and others. PW.2 stated that the plaintiff agreed^{to pa]} ?s.85,OOO/as commission to Defendant No.2-^{However, c I} .ring cross examination, it was revealed that PW.2 is a^rel .tive of the plaintiff. Ex.A43 was scribed by the^ptaintiff on the :tterhead of Sai Chandra Constructions, and PW.2^{admittedhe c} id not know the ownership of the said entity. He also^admittec -hat Ex.A43 lacked the signature or thumb impression of P. Itl L11aiah, who was claimed to be an elder and mediator. No paymr:: .t was made to Komaraiah, and PW.2 denied that any mediatio: L had taken place.

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1,1,

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SKS,J A.S.Nos.1442 aEd 1956 of 2OO3

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Defendant No.2, when examined, denied the execution of Ex.A43 and stated he did not know its contents, except for his signature. He denied acting as a mediator and ciaimed that he had sold 6 acres ar-d 25 guntas to the plaintiff and received part of the sale consideration. He also stated that the original of Ex.A43 was with PW.3 and was taken by him in the year 1995. The documents Exs.Al to A3 and Ex.A43 were marked subject to objection. Ex.A43, being a photostat copy, is inadmissible in evidence. The plaintiff failed to issue notice to Defendant No.2 to produce the original document, as required under Section 65 of the Indian Evidence Act. The trial court erroneously observed that no such notice was necessary, despite the document being marked subject to objection. There is no evidence to show that Defendant No.2 admitted the execution of Ex.A43 or that the original was in his possession. The plaintiff failed to discharge the burden of proof regarding the admissibility and execution of Ex.A43. Moreover, the contents of Ex.A43 do not establish it as an agreement of sale. It merely refers to payments and mentions that no GPA would be executed in the name of Malla Reddy. The document lacks essential terms and conditions required to constitute a valid agreement of sale. Hence, Ex.A43 is inadmissible in evidence, and the plaintiff has failed to prove its

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execution or contents through^reliable and admiss¹ [e^evidence. Therefore, the plaiatiff is not entitled to s( rk specific performance based on Ex.A43.

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Point Nos.2 and 3:

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17 . The plaintiff contends that he purchased la-r I in Survey No.338 from one Ummaiah and converted it ir^t r 67 plots. Ummaiah executed sale deeds for 9 of these pktt^s Delendant No.2, having obtained a General Power of Attorne^y (GPA) from Ummaiah, executed sale deeds for 26 plots but a11e11 dly failed to pay the sale consideration to the plaintiff and tha . Defendant No.2 agreed to transfer the land in the name of the 1 laintiff after receiving his commission and paying the amount tl the vendor. Subsequently, disputes arose, and as per the decir,i rn of village elders, it was agreed that the plaintiff should pay Il .2,O7 ,OOO / - for the land in Survey Nos.26O and 261, Rs.48,()( 0/- for the land in Survcy No.338, and Rs.85,O0O/ - to De < ndant No12 towards commission, totaling Rs.3,4O,75O/-. It, rvever, the plaintiff failed to prove the authenticity and ad r issibility of Ex.A43, which is a photostat copy of the alleged set,i :ment deed. As Ex.A43 is inadmissible in evidence and there r no reliable material on record to support its execution, the plr intiff is not

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SKS,J A.S.Itos.1442 ard 1956 of 2OO3

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entitled to seek cancellation of the sale deeds pertaining to B' and C' schedule plots in Survey No.338 of Brahmanpally Viliage. The triai Court erroneously decreed the suit based on an inadmissible document. Therefore, the judgment and decree of the trial Court are liable to be set aside.

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In view thereof, these Appeat Suits are a,llowed, setting aside the^judgment and decree dated 76.72.20O2 passed in O.S.No.97 of 1998 by the I Additiorial District Judge, Fast Track Court, Medchal, Ranga Reddy District. There shall be no order as to costs.

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Miscellaneous applications, if any pending, shall stand

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closed.

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SD/-K-SRINIVASA RAO
JOINT REGISTRAR

//TRUE COPY//

CTION OFFICER

To,

The I Additional District Judge, Rangareddy Disrrict, L.B. Nagar Hyd. (With Records)

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9-^One CC to SRl. c ANANDAM Advocate [OpUC]

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/.^{One CC to SRI. M. SRIN|VAS SWARUp} Advocate [OpUC]

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4.^{OneCC to SRl.V VENKATARAI/ANA Advocate} IOPUC] ..fl^{One CC} to SRl. B SHTVA KUMAR Advocate [OpUC]

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Two CD Copies

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ASR,/PSL

HIGH COURT

DATED:0711012025

JUDGMENT l+q2-t' AS.No.1956 OF 2003

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ALLOWING THE APPEAL

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SMT JUSTICE K. SUJANA

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APPEAL SUIT NO: 1956 OF 2003

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APPEAL SUIT No. 1956 OF 2003 :

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Between:

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M/s. Janchaitanya Housing Ltd., Rep by Authorised Officer A.Venkat Ratnam 2nd Floor, Zainab Complex Ameerpet, Hyderabad

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APPELLANT/Defendant No.3

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AND

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S. Jaipal Reddy, S/o. S.Narsimha Reddy Business R/o. Saidabad Colony Hyderabad

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a. .... Respondent/plaintiff

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Smt.Konthan Manemma, W/o. Malla Reddy Household R/o. Brahmanpally (V) Hayatnagar (lvl) R. R. District.

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a. .... Respondent/Defendant No.l

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K. Malla Reddy, S/o late P. Pachi Reddy Agril. R/o. Brahmanpally (V) Hayatnagar (M) R. R. District

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RESPONDENT/Defendant No.2

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Appeasl filed under Section 96 of C.P.C., aggrieved by the Judgment and decree dt.16-12-2002made in O.S No.97 of 1998 on the file of the I Addl. District Judge, R. R district.

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ORDER: These appeal suits are coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the Petition and upon hearing the arguments of Sri G. Anandam, Advocate for appellants in A.S.No1442 of2003 and for Respondents 2 & 3 in A.SNo.l956 of2003, Sri Vedula Venkata Ramana Senior Counsel and Sri B. Shiva Kumar, Advocates for the Respondent No.1 in A.S.No.1442 of)003 and in A-S.No.1956 of2003 and Sri M Srinivas Swarup, Advocate for the respondent No.2 in A.S.No.1442 of2003 and appellant in A.S.No.l956 of2003.

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That this Court doth order and decree as follows

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I That_these appeal suits are be here by allowed, setting aside tte iLldgment and decree dated, 16.12.2002 passed in O.S.No.Szof tSq8'Uy ,f,Jr iaaiii, ;l District Judge, Fast Track Court, Medchal, Rangareddy district.

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