THE HON'BLE SRI JUSTICE S.

RAVI KUMAR
SECOND APPEAL Nos.729 of 2011

11-02-2015

Pachi Pala Dora Swamy Appellant.

G. Maharshi and others. Respondents.

Counsel for the Petitioner: M/s. P. Veera Reddy

!Counsel for the Respondents: Sri B. Nalini Kumar

<Gist:

>Head Note:

? Cases referred:

1. AIR 1982 SUPREME COURT 20

2. 2006 (2) ALT (Crl.) 62

3. 2009 (4) SCJ 721

4. 2009 (2) Alt 631 (D.B.)

5. AIR 1968 SUPREME COURT 147

THE HON'BLE SRI JUSTICE S. RAVI KUMAR

SECOND APPEAL Nos.729, 753 & 767 of 2011

Date:11.02.2015

S.A.No.729/2011

The Court made the following:

THE HON'BLE SRI JUSTICE S. RAVI KUMAR

SECOND APPEAL Nos.729, 753 & 767 of 2011

COMMON JUDGMENT:

These three appeals are preferred against common

judgment dated 23-12-2010 in A.S.Nos.9, 8 & 7 of 2009 on
the file of V Additional District & Sessions Judge, Medak at
Sanga Reddy wherein common judgment dated 05-12-2008
in O.S.No.588/2002, O.S.No.587/2002 & O.S.No.127/2003
was confirmed.

2. Appellant herein filed O.S.No.127/2003 &

O.S.No.588/2002 for the reliefs that registered sale deed
dated 24-06-2002 i.e., document No.3815/2002 is null and
void and to restrain the respondent herein by way of
permanent injunction. Respondents herein filed
O.S.No.587/2002 to declare the cancellation deed dated 11-
09-2002 under document No.5877/2002 as null and void,
to direct District Registrar (Registering Authority), Sanga
Reddy, Medak, to cancel the cancellation dated 11-09-2002
under Document No.5877/2002 and a perpetual injunction
restraining the appellant herein from interfering with
respondents peaceful possession and enjoyment of suit
schedule property.

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

4. The Parties are hereinafter referred to as arrayed in

these appeals for convenience sake.

5. Contentions of both parties in brief are as follows:-

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:-

1. Whether the Courts below by misreading

the evidence on record as non reading of
total evidence have committed error?

2. Whether the Courts below by giving

perverse findings did not arrive at the
conclusion?

3. Whether mere mention of payment of the

sale consideration in a sale deed is
sufficient to believe that the sale
consideration is in fact paid when there
is no other supportive or corroborate
evidence on record?

4. Whether the Courts below can take

judicial notice of the fact that the sale
consideration mentioned in the sale deed,
dated 24.06.2002 is less than the value
for which the vendor has purchased the
sale property just two months before that
under registered sale deed, dated
25.04.2002 to hold that the sale is
nominal one and no consideration is
passed on to the vendor?

5. Whether a sale deed cannot be cancelled

by a vendor unilaterally?

12 Now the point that would rise for my consideration in

these appeals are (1) Whether there are any preserve
findings in the judgments of the trial Court and appellate
Court, which can be treated as substantial question of law,
(2) Whether there are any grounds to remand the case for a
reconsideration and (3) To what relief?

13 Point No.1: According to appellant, the respondent

herein made him to execute a sale deed on 24-06-2002 and
that he has not received any amount from respondent.
According to appellant, the respondent herein agreed to pay
sale consideration of Rs.12,00,000/- within a month of
registration, but he failed to fulfil his promise.

14 As already referred, the evidence is recorded in the

suit filed by respondent herein. Out of three witnesses
examined on behalf of respondent, P.W.1 is the respondent
himself, one Sri Ram Murthy is examined as P.W.2 to prove
that the respondent herein is in possession and enjoyment
of the suit schedule property and this P.W.2 is looking after
land on behalf of respondent from 01-07-2002 on a monthly
wage of Rs.750/-. One Chennupati Subba Rao is examined
as P.W.3 to prove that respondent herein is in possession
and enjoyment of the suit land from 24-06-2002. On behalf
of appellant, five witnesses are examined and the appellant
himself is examined is D.W.1. P. Eedaiah is examined as
D.W.2 to support the contention of appellant that he is in
possession of the land even after execution of sale deed in
favour of the respondent. One Ram Mohan Reddy is
examined as D.W.3 to prove that actual sale consideration
agreed between the appellant and respondent was
Rs.12,00,000/-. One L. Venkateshwarlu is examined as
D.W.4 who was driver under the appellant to speak about
tape recorder. One P. Krishna Reddy was the vendor of the
appellant and he is examined as D.W.5. According to
appellants counsel, both trial Court and appellate Court
have not considered the evidence of D.Ws.3 & 5 on the
ground that oral evidence is not permissible when
documentary evidence is available. But according to
Advocate for respondent, the evidence of these two
witnesses was considered, but not accepted, because of the
recitals of the registered document. As seen from the
judgment of the trial Court, learned trial Judge discussed
about the evidence of D.W.3 and observed according to
evidence of this witness he was present at the time
appellant and respondent signing on Ex.A1 i.e., sale deed,
and that no objection was raised by either of them. Trial
Court also further observed that this D.W.3 had not seen
the respondent herein paying any amount to the appellant.
For these reasons, trial Court has not taken into
consideration the evidence of D.W.3. So far as D.W.5 is
concerned, he is the vendor of appellant and according to
recitals of sale deed executed by D.W.5 in favour of the
appellant, which is marked as Ex.B4, the sale consideration
was only Rs.81,000/-, but this witness is examined to
support the plea of defendant that actual sale consideration
was Rs.12,00,000/-, but it was recited as Rs.81,000/- for
the purpose of stamp duty which is contra to the recitals of
document for that reason, the trial Court has not
considered the evidence of this witness.
As seen from the documents-Exs.A1 & B4, the time gap
between these two documents is hardly two months, which
means the appellant, within two months of his purchase,
sold away this property to respondent herein. In both these
documents, rate of the land per cent is one and the same.
When two registered documents confirmed a particular fact,
any oral evidence contra to that established fact is
inadmissible unless those recitals are on account of fraud
or misrepresentation. Though Advocate for appellant
vehemently contended that the respondent herein played
fraud on the appellant in obtaining sale deed under Ex.A1,
there is no specific pleading giving necessary details for
alleged fraud or misrepresentation in the plaint. As rightly
pointed out by Advocate for respondent as per Order VI
Rule 4 CPC, it is incumbent on the plaintiff to give
particulars like dates and fats necessary in respect of plea
of fraud or misrepresentation. Under Order VI Rule 4, it is
mandatory for the plaintiff to give particulars in respect of
plea of fraud or misconduct with dates. It is not open to a
party to introduce any particulars relating to plea of fraud
or misconduct other than those pleaded in the plaint. Now
it has to be seen what are the particulars that are given in
the plaint with reference to alleged fraud or
misrepresentation. A plain reading of the plaint would
show except making a bald allegation that respondent
herein played fraud on the appellant herein and made
misrepresentation, no other details are given. According to
appellant, after realising the fraud and misrepresentation,
he has executed a cancellation deed, which is marked as
Ex.B5. Even in the cancellation deed, there is absolutely no
allegation of any fraud or misrepresentation. A reading of
contents of Ex.B5 would only show that it is a case of non-
payment of agreed sale consideration.

15. Advocate for appellant relied on the following decisions

in Smt. Gangabai v. Smt. Chhabubai , R. Janakiraman v.
State of Tamil Nadu, through CBI, SPE, Madras ,
Kaliaperumal v. Rajagopal and another & Yerram
Krishna Rao v. Muttamalla Narasamma (died) per L.R .,
to support his argument, that the trial Court and appellate
Court were wrong in not considering the oral evidence
adduced on behalf of the appellant on the ground that such
evidence is prohibited under Section 92 of the Indian
Evidence Act. But the purport of the above decisions is that
oral evidence is admissible to show that the document
between the parties was never intended to operate and
some other agreement not recorded in the document was
entered into and when recitals of the document are
ambiguous surrounding circumstances, conduct of parties
can be assessed from the oral evidence. The principle laid
down in these decisions is not in dispute, but they cannot
be applied to the case on hand for the simple reason that
oral evidence of D.Ws.3 & 5 was considered but not
accepted in view of the specific terms in the document.
Therefore, the contention of the appellant that the findings
of the trial Court and appellate Court have to be treated as
perverse cannot be accepted. I have verified findings of the
trial Court and appellate Court with reference to oral and
documentary evidence of both parties and on such
comparison, I am of the considered view that both the
Courts have correctly appreciated evidence and the findings
are based only on the basis of evidence and there is no
perversity while appreciating the evidence or giving findings
on the basis of such evidence. On a scrutiny of the
material, I am of the view that findings of both the Courts
are based on sound reasoning and there is absolutely no
perversity in the findings of the Courts below. The trial
Court by considering decisions of this Court, wherein it was
held that a party cannot be permitted to plead that a
consideration recited in a document is not the real
consideration but more was paid, for the purpose of evading
stamp duty, document was taken for a lesser amount,
discarded the contention of appellant and I am of the view
that trial Court was perfectly correct in doing so.

16. The other contention of the appellant is that tape

recorder cassette-Ex.B48 was not considered by the Court
below and both Courts failed in drawing adverse inference
with regard to this document. According to appellant, the
respondent participated in a shooting of Priyanka Tele
Serial at Chandra Rajeshwara Rao Old Age Home,
Kondapur on 06-08-2002 and that he got the conversation
recorded in his car on that date. Respondent herein denied
to have gone to Old Age Home for shooting of Priyanaka Tele
Serial on 06-08-2002 and also denied of any such
conversation that took place between himself and the
appellant in the car. From the record, it appears that
Ex.B48-audio cassette was played in the open Court at the
time of cross-examination of respondent and that the
respondent denied his voice in the cassette and contended
that his voice was mimicked. D.W.4 driver of the appellant
deposed as the appellant was not having sufficient proof
regarding the undertaking given by the respondent, the
appellant planned to record the voice of the respondent on
tape and accordingly in August, 2002, a mike was arranged
in the car for recording and on that day, the appellant and
respondent went to Old Age Home at Kondapur and both of
them sat in the car and their conversation was recorded in
the car and that he had listen to the said tape, while
returning back. From the evidence of this witness,
it is clear that he was not physically present when the
conversation took place in the car and that he only heard
the cassette. Though this Ex.B48 was very much available
in the Court, this was not played to D.W.4 during his
evidence to identify the voice. Nowhere, D.W.4 stated that
this Ex.B48 contains the voice of respondent herein.
As seen from the record, an application was filed on behalf
of the appellant to send Ex.B48-cassette to an Expert for
identifying the voice and that application was dismissed by
the trial Court and this Court in the revision, modified that
order and directed the trial Court to send the cassette for
expert opinion provided the respondent herein gives his
sample voice for comparison voluntarily. According to
material on record, the respondent did not give his voice on
the ground that the appellant has not complied the prima
facie requirement. Now the contention of the Advocate for
appellant is since the respondent did not give his voice for
comparison, an adverse inference has to be drawn against
the respondent and the contents of Ex.B48-cassette are to
be accepted. The trial Court, by considering a decision of
Honble Supreme Court in Yusfufalli Esmail Nagree v. The
State of Maharashtra , wherein the Honble Supreme
Court observed that the time, place and accuracy of the
recording, must be proved by competent witness besides
identification of voices and only on such prima facie proof,
the genuineness of cassette has to be dealt with. Here,
D.W.4 who was examined to prove this Ex.B48 has not
identified the voices of the individuals that were in Ex.B48-
cassette and there is no prima facie proof of the time and
accuracy of the recording and also the details of the
instrument with which it was recorded. Considering these
aspects, the trial Court observed that the appellant failed to
prove the authenticity of this Ex.B48 and on that ground
discarded it. I do not find any wrong in the findings of the
trial Court or appellate Court in respect of Ex.B48 and both
the Courts have correctly appreciated evidence on record.
As rightly pointed out by Advocate for respondents, there
are absolutely no grounds to interfere with the concurrent
findings. So on a scrutiny of the entire material, I am of the
view that there are no grounds to remit back the case for
fresh consideration, therefore, the request of the appellants
counsel is negatived.

17. As rightly pointed out by Advocate for respondent

there is no substantial question of law involved and all the
grounds urged are in respect of factual aspects as such all
the appeals shall fail. On a scrutiny of entire material, I am
of the considered view that there are no grounds to interfere
with concurrent findings and appeals are liable to be
dismissed.
18. Accordingly, appeals are dismissed with costs.

19. As a sequel, miscellaneous petitions, if any, pending in

these Second Appeals, shall stand dismissed.

__________________________
JUSTICE S. RAVI KUMAR
Date:11.02.2015