Sri D Venkatesh vs Sri S Nagaraja on 6 January, 2020

[Cites 39, Cited by 0]

Karnataka High Court

Sri D Venkatesh vs Sri S Nagaraja on 6 January, 2020

Equivalent citations: AIRONLINE 2020 KAR 60

Bench: H.P.Sandesh

                        1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 6TH DAY OF JANUARY, 2020

                    BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

               RFA.NO.1389/2016
                      C/W
           RFA.NO.1561/2016 (DEC-POS)

IN RFA.NO.1389/2016

BETWEEN:

SRI. D. VENKATESH
S/O. LATE DASAPPA
AGED ABOUT 51 YEARS
R/AT NO.51, 1ST MAIN ROAD
SESHADRIPURAM
BENGALURU-560 020.                 ... APPELLANT

(BY SRI. PADMANABHA MAHALE, SENIOR COUNSEL
    FOR SRI. S. VENUGOPALA AND
    SRI. B. SHARATH KUMAR, ADVOCATES)

AND:

1.   SRI. S. NAGARAJA
     S/O. P.M. SAMPATH KUMAR
     R/AT No.149, II STAGE
     OKALIPURAM
     BENGALURU-560 021.

2.   SRI. S.V. PATHY
     SON OF P.M. SAMPATH KUMAR
                         2


     R/AT No.5, II STAGE,
     OKALIPURAM
     BENGALURU-560 021.        ... RESPONDENTS

(BY SRI. C.S. PRASANNA KUMAR, ADVOCATE
    FOR SRI. MADHUKAR DESHPANDE, ADVOCATE)

    THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED
20.06.2016 PASSED IN O.S.NO.7489/1999 ON THE
FILE OF THE XI ADDL. CITY CIVIL JUDGE,
BENGALURU,     DECREEING    THE    SUIT   FOR
DECLARATION AND POSSESSION.

IN RFA.NO.1561/2016

BETWEEN:

SRI. D. VENKATESH
S/O. LATE DASAPPA
AGED ABOUT 51 YEARS
R/AT NO.51, 1ST MAIN ROAD
SESHADRIPURAM
BENGALURU-560 020

BY GPA HOLDER
D. RAJGOPAL
SON OF LATE DASAPPA.           ... APPELLANT

(BY SRI. PADMANABHA MAHALE, SENIOR COUNSEL
    FOR SRI. S. VENUGOPALA AND
    SRI. B. SHARATH KUMAR, ADVOCATES)

AND:

1.   SRI. S. NAGARAJA
     S/O. P.M. SAMPATH KUMAR
                            3


     R/AT No.149, II STAGE
     OKALIPURAM
     BENGALURU-560 021.

2.   SRI. S.V. PATHY
     SON OF P.M. SAMPATH KUMAR
     R/AT No.5, II STAGE
     OKALIPURAM
     BENGALURU-560 021.        ... RESPONDENTS

(BY SRI. C.S. PRASANNA KUMAR, ADVOCATE FOR
    SRI. MADHUKAR DESHPANDE, ADVOCATE FOR
R1 AND R2)

    THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED
20.06.2016 PASSED IN O.S.NO.2413/1994 ON THE
FILE OF THE XI ADDL. CITY CIVIL JUDGE,
BENGALURU, (CCH NO.8), DISMISSING THE SUIT FOR
SPECIFIC PERFORMANCE.

     THESE REGULAR FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON
10.10.2019, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:

                   JUDGMENT

These two appeals are filed challenging the common judgment passed in O.S.No.2413/1994 C/w. O.S.No.7489/1999 decreeing the suit in O.S.No.7489/1999 in favour of the plaintiff and 4 dismissing the suit filed by the plaintiff in O.S.No.2413/1994 on the file of XI Additional City Civil Judge, Bengaluru (C.C.H.No.8) dated 20.06.2016.

2. The appeal in R.F.A.No.1389/2016 is filed by the defendant in O.S.No.7489/1999 since, the suit is decreed in favour of the plaintiffs therein and the appeal in R.F.A.No.1561/2016 is filed by the plaintiff in O.S.No.2413/1994 since, the suit is dismissed.

3. The plaintiff in O.S.No.2413/1994, Sri D. Venkatesh had filed the suit against the defendant Nos.1 to 4 praying the Court below to declare the registered sale deeds dated 31.05.1991 and 01.06.1991 executed by the first defendant in favour of defendant Nos.2 and 3 as null and void and sought for specific performance of an agreement of sale and also for consequential relief of permanent injunction against defendant Nos.1 to 3 and for mandatory injunction against the fourth defendant. The suit against the 5 fourth defendant - The Commissioner, Bengaluru City Corporation was rejected and only defendant Nos.1 to 3 remain on record.

4. During the pendency of the suit in O.S.No.2413/1994, the first defendant died leaving behind no legal representatives and hence, the plaintiff got amended the prayer seeking the relief against defendant Nos.2 and 3 directing them to convey the property in question to the plaintiff, alternatively to direct the defendant Nos.2 and 3 to pay the plaintiff a sum of Rs.11,44,000/- with interest at the rate of 18% per annum from the date of suit till realization.

5. The defendant Nos.2 and 3 in O.S.No.2413/1994 have filed O.S.No.7489/1999 against the plaintiff in O.S.No.2413/1994 for recovery of possession of property in question and also for mesne profits.

6. The brief facts of the case of the plaintiff in O.S.No.2413/1994 is that the first defendant had entered into an unregistered mortgage deed on 29.10.1989 for a period of five years in respect of the property bearing New No.51 (Old No.63), 1st Main Road, Seshadripuram, Bengaluru measuring east to west, 110 feet and north to south 25 feet, consisting of Madras RCC roofing house, which is morefully described in the schedule for a sum of Rs.1,00,000/- and paid Rs.50,000/- on the same day vide cheque bearing No.0389688 and agreed to pay the balance of Rs.50,000/- at the time of registration of the mortgage deed. The plaintiff was put in possession of the property. It is the further case of the plaintiff that during the existence of the said mortgage, first defendant executed sale agreement on 25.02.1991 and received Rs.50,000/- by way of cash and agreed to sell the suit schedule property for a sale consideration of Rs.14,00,000/-. The first defendant was in need of 7 money to meet his legal and family necessity and for medical expenses and also to discharge his debts. The first defendant, later, on 22.08.1981 entered into an agreement to sell and received a further sum of Rs.10,44,000/- through various cheques and undertaken to deliver all the original documents and title deeds, including latest tax paid receipts etc., and in all, the plaintiff paid a sum of Rs.11,44,000/- to the first defendant.

7. The plaintiff would further contend that the time is the essence of the contract. Inspite of the plaintiff being always ready and willing to perform his part of the contract by paying the balance sale consideration of Rs.2,56,000/-, the first defendant has been using illegal tactics to dispossess the plaintiff from the suit schedule property. In view of the serious threat from him in this regard, the plaintiff was constrained to 8 file a suit in O.S.No.4606/1993 against the first defendant for the relief of permanent injunction.

8. It is also the contention of the plaintiff that he has also got a telephone connection installed in the suit schedule property, in respect of which the fourth defendant has given the declaration certificate declaring that the plaintiff has been in possession of the suit schedule property and the said document is suffice to prove that he has been in peaceful possession and enjoyment of the suit schedule property as on the date of filing of the suit. He further contends that he has exchanged some correspondence with the foruth defendant not to effect khatha in anybody's name since, an order of temporary injunction was granted in his favour in O.S.No.4606/1993. Inspite of the same, when the first defendant did not come forward to execute the sale deed and demanded for higher sale consideration in a sum of Rs.5,00,000/- to complete the sale 9 transaction, he went to verify with the office of the Sub- Registrar as to whether any registration has taken place in respect of the suit schedule property. It was to his shock and surprise that the first defendant had sold the suit schedule property in favour of the defendant Nos.2 and 3 vide registered sale deeds dated 31.05.1991 and 01.06.1991 respectively and had received a sale consideration of Rs.1,90,000/- and Rs.1,98,000/- respectively from them, in order to defeat and deceive the legitimate right and claim of the plaintiff over the suit schedule property. The plaintiff thereafter has obtained a certified copy of the sale deeds. The defendant Nos.2 and 3 in collusion with the first defendant and also with the connivance of the fourth defendant got the khatha of the property changed to their respective names, in spite of having knowledge of the Court order passed in O.S.No.4606/1993. 10

9. The plaintiff further contends that the first defendant failed to perform his part of the contract as per the sale agreements dated 25.02.1991 and 22.08.1991. On enquiry, he came to know that defendant Nos.2 and 3 have obtained the sale deeds executed by one Sri S. Muniraju, who is stated to be the general power of attorney holder of the first defendant conveying the western half of the suit schedule property to the defendant No.2 and eastern half of the suit schedule property to defendant No.3 respectively. The plaintiff has since learnt that it was the defendant Nos.2 and 3, who instigated the first defendant to dispossess the plaintiff from the suit schedule property in or about July, 1993. The first defendant had agreed to sell the suit schedule property for a consideration of Rs.14,00,000/- and received major portion of the consideration to the tune of Rs.11,44,000/- and defendant Nos.2 and 3 had got the suit schedule property conveyed to them only for a sum of 11 Rs.3,88,000/- getting the sale deeds executed by Sri Muniraju, the brother of defendant Nos.2 and 3 stating that the said Sri Muniraju is the general power of attorney holder of the first defendant. The defendant Nos.1 to 3 have played fraud on the plaintiff knowing fully well that the first defendant had agreed to sell the suit schedule property to the plaintiff for a sum of Rs.14,00,000/-. Evidently, the defendant Nos.2 and 3 are not bonafide purchasers for valid consideration. They are also bound to join the first defendant in conveying the suit schedule property in favour of the plaintiff or the sale deeds dated 31.05.1991 and 01.06.1991 are liable to be cancelled. The plaintiff further contends that he is still ready and willing specifically to perform the agreement on his part of which the defendants has had notice.

10. It is also the contention of the plaintiff that, the plaintiff once again demanded on 15.04.1994 to the 12 first defendant to perform his part of the contract and expressed his willingness to perform his part of the contract, at any time. In spite of the repeated requests and demand made by the plaintiff, the first defendant did not come forward to execute the sale deed and to receive balance consideration. Hence, without any other alternative, the plaintiff was forced to approach this Court for the relief of specific performance of the contract.

11. The other contention is that the first defendant had since realized that he had received more than 75% of the consideration pursuant to the sale agreements dated 25.02.1991 and 22.08.1991 and that suit schedule property was conveyed illegally and fraudulently to the defendant Nos.2 and 3 by Sri S. Muniraju, who is stated to be the general power of attorney holder of the first defendant. Hence, the first defendant had agreed to convey the suit schedule property to the plaintiff and accordingly, the first 13 defendant conveyed the suit schedule property by executing the registered sale deeds dated 02.06.1997 and 07.06.1997 conveying the suit schedule property to the plaintiff, the defendant Nos.2 and 3 shall also have to execute the deeds of sale in favour of the plaintiff. The plaintiff has sought for the relief against the defendant Nos.2 and 3 to execute a conveyance, conveying the suit schedule property to the plaintiff at their cost, failing which this Court be pleased to execute the deeds of conveyance, conveying the suit schedule property to the plaintiff for and on behalf of the defendant Nos.2 and 3, alternatively to declare the registered sale deeds dated 31.05.1991 and 01.06.1991 which conveyed the western half portion of the suit schedule property to the defendant Nos.2 and eastern half portion of the suit schedule property to the defendant No.3 respectively and grant permanent injunction restraining the defendant Nos.1 to 3, their agents and servants from interfering with the peaceful 14 possession and enjoyment of the suit schedule property by the plaintiff. Alternatively, in the event of this Court coming to the conclusion not to grant specific performance of the agreements dated 25.02.1991 and 22.08.1991 against the defendant Nos.2 and 3, the defendant Nos.2 and 3 be directed to pay the plaintiff a sum of Rs.11,44,000/- with interest at the rate of 18% per annum from the date of the suit till the date of payment and grant such other reliefs.

12. The defendant Nos.2 and 3, in pursuance to the suit summons appeared though their counsel and filed their written statement admitting that the first defendant had entered into an agreement to mortgage with the plaintiff. However, the first defendant never executed any unregistered mortgage deed, but he had entered into an agreement to mortgage in favour of the plaintiff agreeing to take a sum of Rs.1,00,000/-, but the plaintiff gave two cheques for Rs.50,000/- each in pursuance of the said agreement and the said cheques 15 were dishonoured. As the plaintiff did not pay any amount, the first defendant never executed any mortgage deed and he never put him in possession of the property and the plaintiff has nothing to do with the possession of the property.

13. The defendants have also denied the fact that the first defendant had entered into an agreement to sell the suit schedule property on 25.02.1991 for a consideration of Rs.14,00,000/- and also denied the fact that the first defendant has received a sum of Rs.1,00,000/- as advance sale consideration on 25.02.1991. The defendants have also denied the payment of Rs.11,44,000/- by the plaintiff to the first defendant through various cheques. It is contended that the plaintiff had no money to pay such a huge amount at all and the plaintiff never paid any amount to the first defendant. On the contrary, the plaintiff deposited Rs.50,000/- into the bank and issued a 16 cheque and he withdrew by encashing the cheque and he once again deposited the same into the bank and he issued another cheque and encashed it. Thus, he made entries in the bank account book, as if he has paid Rs.10,44,000/-. As a matter of fact, he never paid any amount to the first defendant and never encashed the cheque in the bank at all. As could be seen from the bank records, very cleverly, the cheques were encashed by somebody else, who is the agent of the plaintiff and no cheque was encahsed by the first defendant. Thus, the first defendant never agreed to sell the property in favour of the plaintiff. On the contrary, the first defendant had entered into a registered agreement long prior to that date to sell in favour of these defendants. Hence, the question of entering into any agreement to sell in favour of the plaintiff does not arise.

14. In pursuance of such agreement to sell, the first defendant has executed a sale deed in favour of 17 these defendants and put them in physical possession of the property and these defendants have let out the premises to their tenant. Thus, the plaintiff is not the holder of any agreement to sell, nor he paid any amount much less, he was put in possession of the property either by virtue of the agreement to mortgage or by virtue of the alleged agreement to sell. Though the plaintiff has no right, title and interest over the suit schedule property, nor right of possession over the property, on the contrary, the defendant Nos.2 and 3 were put in physical possession of the property, they have leased the property in favour of their tenant. Now, in collusion with the tenant of defendant Nos.2 and 3, the plaintiff might have got created some documents to show that he is in physical possession. But, actually, the properties are in possession of the tenant of defendant Nos.2 and 3 and not with the plaintiff. Hence, the plaintiff is not entitled to claim any specific performance of the contract nor he is entitled to claim 18 any declaration or a permanent injunction. The property was purchased by these defendants in the year 1991 and they have got the changed the khatha in their names and they have paid the assessment up to this date. In fact, the plaintiff has filed a separate suit against the first defendant. In the said suit also, the first defendant has taken a specific plea that he never entered into any agreement nor he received any consideration, much less he put him in physical possession of the property. On the contrary, he has stated that he put the defendant Nos.2 and 3 herein in physical possession of the property by virtue of the sale deed. Thus, there is no cause of action for the suit. Hence, the plaintiff is not entitled for any relief as sought in the plaint and the question of executing the sale deed in favour of the plaintiff either by the defendant Nos.2 and 3 or by this Court does not arise. 19

15. The defendant Nos.2 and 3 have purchased the property and have become the owners of the property. The alleged agreements of sale dated 25.02.1991 and 22.08.1991 were not executed and alleged agreement of sale dated 25.02.1991 cannot be enforced and the same is barred by limitation since, the suit is filed after a period of three years. The second alleged agreement of sale dated 22.08.1991 also cannot be enforced since, the plaintiff himself has admitted that the first defendant already executed a sale deed on 31.05.1991 and 01.06.1991 in favour of these defendants. Hence, the first defendant has no right, title and interest over the property at all to execute the sale agreement dated 22.08.1991. As a matter of fact, both the agreements are forged agreements and first defendant never agreed to sell the property and further failed to show that the first defendant has received a sum of Rs.11,44,000/- towards the portion of the sale consideration.

16. The defendants would further contend that the first defendant has executed a general power of attorney in favour of one Sri S. Muniraju. When the first defendant is a party in the suit, never denied the fact that he has given the general power of attorney to Sri S. Muniraju and authorized him to execute the sale deed. When such being the case, the plaintiff cannot question the power of attorney at all. In fact, the first defendant accepted that he has executed general power of attorney in favour of Sri S. Muniraju authorizing him to execute the sale deed and accordingly, he has executed the sale deeds in favour of defendant Nos.2 and 3. It is further contended that when the first defendant was not at all the owner of the property on 02.06.1997 and 07.06.1997, it cannot be understood how the first defendant executed the sale deeds dated 02.06.1997 and 07.06.1997. In fact, the first defendant never executed any sale deed and those two documents 21 are fabricated documents and it does not convey any title to the plaintiff. Even otherwise, if such sale deeds are executed by the first defendant, the same cannot convey any right since, he has not retained any title. Hence, the plaintiff is not entitled for any relief.

17. The defendant Nos.2 and 3 have also filed their additional written statement consequent upon the amendment of plaint contending that alternative relief claimed by the plaintiff by way of amendment is barred by law of limitation and contrary to the pleadings on record. Even as per the pleading on record, the defendant Nos.2 and 3 have no privity in the alleged contract claimed by the plaintiff. These defendants have not received any money from the plaintiff and hence, they are not liable to refund any amount. Moreover, the claim for interest is unfounded and baseless. The learned counsel for the first defendant has also filed a memo stating that the first defendant 22 adopts the written statement filed by the defendant Nos.2 and 3.

18. The Court below, based on the pleadings of the parties in O.S.No.2413/1994, framed the following issues:

"1. Whether the plaintiff proves that the sale deeds dated 31.05.1991 and 01.06.1991 executed by the 1st defendant in favour of the 2nd and 3rd defendants conveying the suit schedule property are illegal?

2. Whether the plaintiff proves his lawful possession over the suit schedule property on the date of the suit?

3. Whether the plaintiff further proves unlawful interference by the defendants?

4. Whether the plaintiff is entitled to the reliefs sought for?

5. To what decree or order?"

19. The plaintiffs in O.S.No.7489/1999 have contended in the plaint that one Sri B.K. Subbaiah sold the suit schedule property in favour of plaintiff Nos.1 and 2, who are the direct brothers. Sri B.K. Subbaiah had earlier entered into a registered agreement to sell in favour of first plaintiff vide agreement dated 07.03.1991. But later, as per the request of the first plaintiff, Sri B.K. Subbaiah executed two sale deeds each in respect of one half of the property. The first plaintiff purchased the eastern half portion vide sale deed dated 31.05.1991 and second plaintiff has purchased western half portion vide sale deed dated 01.06.1991. Both the plaintiffs are the direct brothers and they intend to live together. Hence, they have purchased the undivided interest in the suit schedule property, each purchasing half share. The plaintiffs are jointly and fully the absolute owners of the suit schedule property. 24

20. It is contended that the plaintiffs got changed the khatha after purchasing the property and now the khatha stands in the name of the plaintiffs. By virtue of agreement and sale deed executed by Sri B.K. Subbaiah, the plaintiffs were put in physical possession of the property and thereafter, the plaintiffs have leased out the premises to a tenant. Hence, the defendant herein has no right, title and interest over the property, nor has any right of possession over the property. The defendant at one stage entered into an agreement to take the property on mortgage basis and gave two cheques each for Rs.50,000/- in favour of the said Sri B.K. Subbaiah but, both the cheques were dishonoured. Hence, the said Sri B.K. Subbaiah did not execute any usufructuary mortgage in favour of the defendant nor delivered the possession. The defendant has fabricated the document making it appear as if Sri B.K. Subbaiah had entered into an agreement to sell with him dated 25.02.1991 and later, he has executed 25 another agreement to sell dated 22.08.1991 and obtained an order of injunction, making it appear as if the defendant is in possession of the property towards part performance of the contract or towards the agreement to mortgage. But, actually, the tenant of the plaintiffs was in possession of the property. After filing a suit in O.S.No.2413/1994, the defendant, in collusion with the tenant of the plaintiffs, took the possession after obtaining injunction in the said suit. But the defendant had no right for possession, it is only by playing fraud, he entered into the premises after obtaining temporary injunction. The defendant is not entitled for any relief in the suit in O.S.No.2413/1994 and hence, the plaintiffs are entitled for possession of the suit schedule property and they are also entitled to claim damages for wrongful use and occupation of the premises for the last three years and the defendant is liable to pay mesne profirts also at the rate of Rs.10,000/- per month. In the suit, the plaintiffs have 26 claimed to declare that the plaintiffs are the absolute owners of the suit schedule property and direct the defendant to put the plaintiff in possession of the suit schedule property and have also claimed an amount of Rs.3,60,000/- as damages and mesne profits.

21. The defendant in the written statement has contended that the defendant was put in possession of the suit schedule property on 29.10.1989 by owner Sri B.K. Subbaiah mortgaging the same under an unregistered deed for a consideration of Rs.1,00,000/-. Subsequently, the said Sri B.K. Subbaiah agreed to sell the suit schedule property to the plaintiff for a consideration of Rs.14,00,000/- to the tune of Rs.14,00,000/- and executed sale agreement on 25.02.1991 on payment of Rs.1,00,000/- by adjustment of the mortgage amount towards the advance sale consideration. By virtue of the agreement of sale dated 25.02.1991, the plaintiff has continued to be in 27 possession of the suit schedule property as agreement holder. Subsequent to the said agreement, the owner Sri B.K. Subbaiah persuaded the plaintiff to part with some more amount from the balance sale consideration of Rs.13,00,000/-, in order to meet his financial requirements. Hence, he has paid the amount of Rs.10,44,000/- through various cheques and in all, he has paid a sum of Rs.11,44,000/-. On 22.08.1991, the said Sri B.K. Subbaiah agreed to receive the balance sale consideration of Rs.2,56,000/- at the time of registration of the deed of sale. The defendant is not aware of the alleged registered agreement of sale dated 07.03.1991 stated to have been executed by Sri B.K. Subbaiah in favour of the plaintiffs. The defendant also contends that later he came to know that two sale deeds are executed on 31.05.1991 for Rs.1,90,000/- and on 01.06.1991 for Rs.1,98,000/-.

22. The defendant also reiterated the averments of plaint in O.S.No.2413/1994 claiming that during the pendency of the suit, the owner, Sri B.K. Subbaiah has executed two sale deeds dated 02.06.1997 and 07.06.1997 and hence, he is in exclusive possession of the suit schedule property by virtue of the sale deeds stated supra.

23. The Court below, based on the pleadings of the parties in O.S.No.7489/1999, framed the following issues:

"1. Whether the plaintiffs proves that they are the absolute owners of the suit property?

2. Whether the plaintiffs prove that they are entitled for possession of suit property?

3. Whether the plaintiffs prove that they are entitled for a sum of Rs.3,60,000/- and mesne profits from the date of suit till delivery of property?

4. Whether the defendant proves that there is no cause of action?

5. Whether the suit is barred by Law of Limitation?

6. Whether the Court fee paid is insufficient?

7. Whether the plaintiffs are entitled for declaratory relief as prayed for?

8. Whether the plaintiffs are entitled for possession of suit property?

9. Whether the plaintiffs are entitled for a sum of Rs.3,60,000/- and mesne profits as prayed for?

10. What order or decree?

24. The plaintiff in O.S.No.2413/1994 has examined himself as P.W.1 by filing an affidavit in lieu of his chief examination. Later executed the general power of attorney in favour of his brother Sri. D. Rajagopal stating that he is hospitalized. The brother of 30 P.W.1, Sri D. Rajagopal got examined himself as P.W.2 and got marked 129 documents as Exs.P1 to P129. The plaintiff also examined two witnesses Sri M.L.Jawaharlal and Sri R. Vittal as P.Ws.3 and 4.

25. On behalf of the defendants in O.S.No.2413/1994, defendant No.2, who is also a plaintiff in O.S.No.7489/1999, got examined himself as D.W.1 and got marked the documents Exs.D1 to D13. The Court below, considering the pleadings in both the suits, the evidence of the respective parties and also the arguments of learned counsels, dismissed the suit in O.S.No.2413/1994 and allowed the suit in O.S.No.7489/1999. Hence, against the dismissal of the suit in O.S.No.2413/1994, the plaintiff in O.S.No.2413/1994 and defendant in O.S.No.7489/1999 has preferred these two appeals against the judgment and decree.

26. The defendant in O.S.No.7489/1999 in R.F.A.No.1389/2016 in the grounds urged in the appeal would contend that the Court below has committed an error in not considering the agreement to mortgage dated 29.10.1989 which is marked as Ex.P19, under which the defendant was put in possession of the suit schedule property. The Court below also failed to consider Ex.P20, the sale agreement dated 25.02.1991, under which the original owner Sri B.K. Subbaiah agreed to sell the suit schedule property for a sale consideration of Rs.14,00,000/- and also failed to consider the advance payment of Rs.1,00,000/- and subsequent payment of Rs.10,44,000/-. In all, the defendant has made a payment of Rs.11,44,000/- till date. It is also contended that the original owner Sri B.K. Subbaiah personally appeared before the Court and filed a memo, Ex.P6 and an affidavit, Ex.P7 dated 11.11.1997 admitting the fact that the defendant was in possession much earlier to the execution of the sale 32 advance agreement dated 25.02.1991, agreement of sale dated 22.08.1991 and execution of sale deeds dated 02.06.1997 and 07.06.1997 which are marked as Exs.P2 and P3.

27. It is further contended by the defendant that in the affidavit, Ex.P7, the original owner, Sri B.K. Subbaiah has narrated how those two sale deeds Exs.P17 and P18 were executed in favour of the plaintiffs in O.S.No.7489/1999 which are fabricated documents. It is also contended that the said two sale deeds are executed by one Sri S. Muniraju, who is the brother of the plaintiff Nos.1 and 2 in O.S.No.7489/1999. The defendant got marked the exhibits in his evidence to evidence the fact of his possession and also the endorsement issued in terms of Exs.P12 and P13 and so also Exs.P15 and P16, which substantiates the fact that much earlier to filing of the suit in O.S.No.2413/1994, the defendant was in 33 possession of the suit schedule property. The attesting witnesses were also examined as P.Ws.3 and 4 to prove the possession of the defendant and also execution of sale advance agreement. Inspite of proving the same, the Court below has committed an error in not accepting the evidence of the defendant.

28. It is further submitted that the Court below, inspite of Sri B.K. Subbaiah denying the execution of agreement of sale dated 07.03.1991, Ex.D1 in O.S.No.2413/1994 and also sale deeds dated 31.05.1991 and 01.06.1991 i.e., Exs.P17 and P18 in O.S.no.7489/1999, the plaintiffs have not proved the said documents in accordance with law which fact has not been considered by the Court below. The plaintiffs in O.S.No.7489/1999 were not put in possession of the suit schedule property in any manner known to law and the contention that they were dispossessed also has not been proved. The plaintiffs are not the parties to the 34 suit in O.S.No.4606/1993 and the issues involved in both the suits and relief claimed are entirely different and the Court below has failed to consider both oral and documentary evidence on record and erroneously answered issue Nos.1, 2, 3, 7, 8 and 9 in the 'affirmative'. The Court below also erred in relying upon Exs.P17 and P18 in O.S.No.2413/1994 i.e., the sale deeds dated 31.05.1991 and 01.06.1991 which came into existence without the knowledge of the original owner, Sri B.K. Subbaiah. The Court below unnecessarily has gone into the dates on which Sri D. Venkatesh or his general power of attorney holder, his brother Sri D. Rajagopal has been examined. Inspite of it is pleaded that the first defendant Sri B.K. Subbaiah realized the fraud committed by the brothers and obtained the sale deed from the alleged power of attorney holder, the Court below placed reliance on the fact that the cheque issued by Sri D. Venkatesh was dishonoured. The Court below 35 also erred in holding that Sri D. Venkatesh is trying to squat on the suit schedule property, based on certain unregistered documents. The Court below, without any reasoning and applying its mind, arbitrarily held that the plaintiffs are the absolute owners and are entitled for possession and also a sum of Rs.3,60,000/- as mesne profits. Hence, the judgment and decree passed in favour of the plaintiffs in O.S.No.7489/1999 is liable to be set aside.

29. The plaintiff in O.S.No.2413/1994 i.e., Sri D. Venkatesh in R.F.A.No.1561/2016 reiterates the grounds urged in the connected appeal in R.F.A.No.1389/2016 and would contend that the Court below failed to consider that on 08.03.1991, the defendants managed to get register three documents such as general power of attorney in favour of Sri S. Muniraju, another general power of attorney in favour of Sri Nagaraj and an agreement of sale dated 36 08.03.1991. The Court below failed to consider the revocation of power of attorneys dated 16.12.1996, Exs.P4 and P5 in O.S.No.2413/1994 and also memo and sworn affidavit dated 11.11.1997 which are marked as Exs.P6 and P7. The Court below has also erred in considering Exs.P17 and P18 which came into existence after the sale agreement was executed in favour of the plaintiff and those two sale deeds are executed by Sri S. Muniraju, who is none other than the brother of the defendant. The grounds urged in this appeal is similar to the grounds urged in the connected appeal in R.F.A.No.1389/2016.

30. The learned counsel for the appellant - plaintiff in O.S.No.2413/1994 and defendant in O.S.No.7489/1999 contended that the Court below has committed an error in not considering the agreement of mortgage dated 29.10.1989, which has been executed at the first instance for a period of five years and delivered the possession. It is also contended that a sale 37 agreement has been executed on 25.2.1991 in terms of Ex.P.20 for a sale consideration of Rs.14,00,000/-. An amount of Rs.50,000/- which was paid earlier at the time of entering into the agreement of mortgage was adjusted as sale consideration and also received an amount of Rs.50,000/-. In all received sale consideration of Rs.1,00,000/-. The remaining amount was payable at the time of registration. It is also contended that the original owner Sri B.K. Subbaiah also had executed second sale agreement dated 22.8.1991 in terms of Ex.P.21 and received an amount of Rs.10,44,000/-. In all, he has paid an amount of Rs.11,44,000/-. The documents which are produced - telephone bill and KEB bill clearly disclose that the appellant - Sri D. Venkatesh was put in possession in the year 1989 itself. Thereafter in terms of sale agreements - Exs.P.20 and 21, the possession has been continued with plaintiff in O.S.No.2413/1994 and defendant in O.S.No.7489/1999.

31. Sri D. Venkatesh had earlier filed a suit for injunction and the same came to be dismissed since he sought the relief based on the sale agreements dated 25.2.1991 and 22.8.1991. It is also contended that the sale deed was executed in favour of defendant Nos.2 and 3 on 31.5.1991 and on 1.6.1991 by the general power of attorney holder, who is none other than the brother of defendant Nos.2 and 3 and the same does not create any right in favour of defendant Nos.2 and 3 since there was a sale agreement in favour of Sri D. Venkatesh and had paid the part sale consideration.

32. It is also contended by the counsel that when the original owner Sri B.K. Subbaiah came to know that fraud has been taken place at the instance of defendant Nos.2 and 3 having obtained the sale deed from the general power of attorney holder, he executed the sale deeds dated 2.6.1997 and 7.6.1997 in favour of D.Venkatesh. It is also his contention that the original 39 owner has filed memo in terms of Ex.P.6 before the Court below and also filed an affidavit in terms of Ex.P.7 and defendant Nos.2 and 3 have not filed any objection to the said affidavit. The Court below failed to consider all these aspects while appreciating the material on record. The document at Ex.P.19 is an agreement to mortgage and not mortgage deed and the Court below permitted to produce the secondary evidence and as against the said order, writ petition was filed and the same was dismissed. Inspite of it, the lower Court made the comment on those documents and the same is illegal. The defendant Nos.2 and 3 have contended that they were put in possession and in order to prove the fact that they were put in possession, they have not led any evidence. No material is placed on record regarding dispossession, as contended by the defendant Nos.2 and

3. The defence that they were dispossessed taking advantage of the suit filed earlier by Sri D. Venkatesh is not substantiated. Inspite of the same, the Court below 40 did not discuss anything about the possession or dispossession and committed an error.

33. The very contention of the defendants that Order 2 Rule 2 of Code of Civil Procedure is applicable, cannot be accepted. The further contention of the defendants that they were dispossessed in the year 1994 and they kept quiet till 1999 and there is no explanation why the defendants have kept quiet till 1999, if they have been dispossessed from the premises. The contention of the counsel is that the defendant Nos.2 and 3 have filed the written statement and the original owner - defendant No.1 has not filed any written statement. The counsel appearing for defendant No.1 filed a memo adopting the written statement of defendant Nos.2 and 3 without the signature of defendant No.1. Hence, the adopting of the written statement by the defendant No.1 cannot be taken into consideration. The Court below also committed an error 41 in not noticing that the properties were purchased, according to defendant Nos.2 and 3, in the year 1991. The suit was filed in the year 1999 for possession. The Court below committed an error in accepting the evidence of defendants witnesses. The Court below has committed an error in coming to the conclusion that the sale deeds are registered in favour of defendant Nos.2 and 3.

34. The counsel contended that Ex.P.19 discloses that the same was executed by the original owner by agreement to mortgage for a period of five years and immediately when he was in need of money, he executed sale advance agreement in terms of Ex.P.20. The Court below failed to consider that an amount of Rs.10,44,000/- was paid through various cheques in terms of Ex.P.21 - sale agreement. The plaintiff also declared in the income tax declaration in terms of Exs.P.22 to 24 for having paid the amount. The Court 42 below failed to take note of the sale agreement in terms of Ex.D.1 dated 7.3.1991 which is subsequent to Ex.P.20 and further sale consideration was mentioned in the sale agreement as Rs.12,00,000/-. But in the sale deed - Ex.P.17, the sale consideration is mentioned as Rs.1,90,000/- and in sale deed Ex.P.18, sale consideration is shown as Rs.1,98,000/-. For having paid the sale consideration to the original owner or to the general power of attorney holder, the defendant Nos.2 and 3 have not produced any documents. Hence, it is clear that the sale deeds dated 31.5.1991 and 1.6.1991 are created at the instance of defendant Nos.2 and 3 from their own brother who is the alleged general power of attorney holder. This aspect has not been considered by the Trial Court. In Exs.P.4 and 5, the reason is mentioned for revoking of general power of attorney and the Court below has committed an error in not considering the same. Even though issue No.2 is proved, the Court below erroneously answered that the 43 same has not been proved. In paragraph No.16 of the plaint, it is specifically pleaded possession and interference and the issue which has been framed regarding possession has been proved and the same has not been properly answered by the Trial Court. The Court below failed to consider the documents produced by the plaintiff i.e., telephone bill and electricity bill and inspite of possession has been proved, the Court below has committed an error in coming to the conclusion that Sri D. Venkatesh is in illegal possession. The Court below also failed to take note of the fact that they have obtained the sale deed without the possession since the vendor was not in possession.

35. The plaintiff Sri D. Venkatesh has produced the endorsement before the Court that documents are destroyed and those documents are marked without objection. When such being the case, the Court below has committed an error that the plaintiff has not 44 produced the primary documents before the Court. Once the documents are marked without objection, the same cannot be disputed. The contention of defendant Nos.2 and 3 is that after purchasing the property they have let out the suit schedule property and the plaintiff Sri D. Venkatesh colluding with the tenants has obtained the possession. In order to substantiate the same, no material is placed before the Court. The Court below failed to take note of the fact that no consideration is paid in respect of sale deeds in favour of defendant Nos.2 and 3 and those two sale deeds are executed by the general power of attorney holder and not by the original owner. The general power of attorney, which is marked as Ex.P.1 is only for developing the property and thereafter to sell the property. In the case on hand, no such development was made as mentioned in general power of attorney and without any such development abruptly two sale deeds are executed in favour of the defendant Nos.2 and 45

3. The Court below committed an error in relying upon the general power of attorney and the sale deeds are executed without any consideration and the general power of attorney does not disclose any recitals with regard to coupled with interest.

36. The learned counsel for the appellant in both appeals in support of his contentions relied upon the judgment in the case of MAHENDRA PRATAP SINGH (DECEASED) AND ANOTHER v. SMT. PADAM KUMARI DEV reported in AIR 1993 ALLAHABAD 143. Referring this judgment, the counsel would contend that the power of attorney holder document becomes worthless. If the agent continues to act on the power of attorney his action will be writ large with fraud, misappropriation, cheating and criminal breach of trust. The power of attorney was declared as null and void.

37. The learned counsel relying upon the judgment in the case of A.V. PAPAYYA SASTRY AND 46 OTHERS v. GOVERNMENT OF A.P. AND OTHERS reported in 2007 AIR SCW 2212 contended that the Apex Court in this judgment held that considering totality of facts and attending circumstances including serious allegations of fraud said to have been committed, prima facie showing commission of fraud. By referring this judgment he would contend that in the case on hand also the alleged sale agreement in favour of defendant Nos.2 and 3 was executed and within two months of the said alleged sale agreement general power of attorney holder has executed the sale deed and that too by the brother of the defendant Nos.2 and 3. Hence, it is a clear case of fraud in obtaining the said two sale deeds and in this case also the Court has to take note of the fact that in terms of the said sale agreement, sale consideration was shown as Rs.12,00,000/- and sale consideration paid in those two sale deeds is only Rs.3,98,000/-. Hence, it is clear that fraud has been taken place in obtaining the two sale deeds. However, 47 the Trial Court legalized the said sale transaction inspite of fraud has been taken place.

38. The counsel relied upon the judgment in the case of STATE OF A.P. AND ANOTHER v. T. SURYACHANDRA RAO reported in AIR 2005 SC 3110. Referring this judgment, the counsel would contend that the word 'fraud' has been explained in paragraph Nos.7 and 17 of the judgment. Merely because an enquiry was made, the Tribunal was not divested of the power to correct the error when the respondent had clearly committed a fraud. Further, considering the documents of the facts, the Apex Court held that Tribunal did not commit any error in upholding the same. In the case on hand also, fraud has been committed and those two sale deeds are obtained and the general power of attorney holder was not having any absolute right to execute the sale deed and in view of the recitals mentioned in the general power of attorney, 48 power was given to develop the property and thereafter to sell the property. Hence, the sale transaction between defendant Nos.2 and 3 and the power of attorney holder is nothing but fraud.

39. The learned counsel for the appellant referring the judgment in the case of S.P. CHENGALVARAYA NAIDU (DEAD) BY L.RS v. JAGANNATH (DEAD) BY L.RS AND OTHERS reported in AIR 1994 SC 853 contended that if there is any fraud on the Court, the guilty party has to be thrown out at any stage and the very decree is vitiated by fraud. The counsel also contended that the Court below failed to appreciate that fraud has been taken place in executing the sale deeds dated 31.5.1991 and 1.6.1991. The Court below failed to consider the earlier sale agreement made in favour of the plaintiff Sri D. Venkatesh and also failed to consider the sale consideration paid to the tune of Rs.11,40,000/- in favour of the original owner and there 49 were no documents for having paid the sale consideration to the original owner. In the absence of those documents also, the Court below has committed an error in dismissing the suit of the plaintiff Sri D. Venkatesh and granting the decree in favour of defendant Nos.2 and 3 in the other suit.

40. The learned counsel for the respondents in both the appeals vehemently contended that the suit was filed earlier in O.S.No.4606/1993 for the relief of injunction and the same was dismissed for default. Sri D. Venkatesh is claiming the possession based on the mortgage deed and the same is not registered and he is claiming the right based on the sale agreement dated 25.2.1991 and also he had obtained the sale deed during the pendency of the suit. The suit falls under Section 19 of the Specific Relief Act. There is no pleading in the plaint that defendant Nos.2 and 3 had knowledge about the earlier sale agreement dated 50 25.2.1991 and there is no pleading in the plaint that as there was no sale consideration. The original owner has not questioned the sale deed executed in favour of defendant Nos.2 and 3. The sale deeds are executed in the year 1991 itself. The general power of attorney was cancelled in 1996. The original owner died in 2001 and from 1996 after the cancellation of general power of attorney, he has not taken any action against the general power of attorney holder, if any fraud has been taken place. No fraud is pleaded. The defendant No.2 in his written statement admits in O.S.No.4606/1993 the execution of sale deed and further he denies the very execution of sale agreement in favour of Sri D. Venkatesh dated 25.2.1991. When the case was posted for framing the issues, an affidavit was filed by the owner and the affidavit is identified by the counsel of Sri D. Venkatesh instead of his counsel. The said affidavit is not tested. Hence, no value can be attached to the said affidavit. The suit documents are xerox copies and 51 the writ petition which had been filed earlier was not disposed of on merits. For having filed the original sale agreement in the earlier suit, there is no proof. The endorsement says only xerox documents are available and not the original. The plaintiff did not step into the witness box. He appoints the general power of attorney holder. No proper reason is assigned for his non- appearance. He is aged about 41 years. The sale deed is already executed and the suit ought to have been terminated. The original owner was reported as dead and no legal representatives application was filed. They only contended that there are no legal representatives. When the relief has been sought against the original owner, the suit ought to have been dismissed under Section 31 of the Specific Relief Act, 1963. In view of Sections 19 and 91 of the Indian Trusts Act, 1882 the defendants cannot be directed to execute the sale deed. In the absence of legal representatives of the original owner, the suit cannot be continued. The original owner 52 does not dispute the execution of sale deed in favour of defendant Nos.2 and 3. Section 23 of the Contract Act is with regard to the sale consideration and if any lesser sale consideration has been paid and shown, document has to be impounded. Section 23 is with regard to opposed to public policy and not evading of tax. Section 3 of the Transfer of Property Act, 1882 and explanation 1 of Section 3 is clear that that date of registration itself is a notice. The plaintiff has not approached the Court with clean hands. Section 48 of the Transfer of Property Act cannot convey again any right in favour of the plaintiff Sri D. Venkatesh since there was already a sale deed in favour of defendant Nos.2 and 3. Ex.P.3 shows tenants in occupation. The document Ex.P.1 - GPA discloses that to register a sale deed and when the suit against defendant No.1 abates and legal representatives are not brought on record, the suit itself is liable to be dismissed.

41. The learned counsel for the respondents in both the appeals in support of his contentions relied upon the judgment of the Hon'ble Supreme Court in the case of DWARKA PRASAD SINGH AND OTHERS v.

HARIKANT PRASAD SINGH AND OTHERS reported in AIR 1973 SC 655. Referring this judgment, the learned counsel brought to my notice that without bringing the legal representatives of the original owner on record, there cannot be any decree in favour of the appellant herein, since the appellant did not bring his legal representatives as parties to the proceedings. He also brought to my notice paragraph Nos.5, 5A, 6 and 7 and vehemently contended that no such relief could be granted in favour of the appellant.

42. The learned counsel also relied upon the judgment of this Court in the case of KHADIR SAHEB JAFFAR SAHEB NAGARBOUDI AND OTHERS v. AMIN SAHEB HUSSAIN SAHEB INAMDAR AND OTHERS 54 reported in AIR 1981 KAR 89. Referring this judgment, the learned counsel brought to my notice paragraph Nos.12 and 15 and contended that in the absence of necessary parties, the Court cannot pass an effective decree at all. Section 27 of the Specific Relief Act does not carry the matter any further and no judgment and decree can be passed for the relief of specific performance against the original vendors or against the subsequent transferee or both.

43. The learned counsel relied upon the judgment of Orissa High Court in the case of DHADI DALAI v. BASUDEB SATPATHY AND OTHERS reported in AIR 1961 ORISSA 129. He brought to my notice paragraph No.5 of the judgment and contended that under the Specific Relief Act, the essentials of 'good faith' is honesty of intention. If the property is purchased in good faith and without any notice of previous 55 encumbrance, the burden of proof is on the purchaser and onus ordinarily discharged by denial.

44. The learned counsel also relied upon the judgment of the Hon'ble Supreme Court in the case of VIDHYADHAR v. MANKIKRAO AND ANOTHER reported in AIR 1999 SC 1441. Referring this judgment, the learned counsel brought to my notice paragraph No.16 of the judgment and contended that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. Hence, this Court cannot grant any relief in favour of the appellant.

45. The learned counsel also relied upon the judgment of the Hon'ble Supreme Court in the case of SMT. J. YASHODA v. SMT. K. SHOBHA RANI reported in AIR 2007 SC 1721. Referring this judgment, the 56 learned counsel brought to my notice the discussion made in paragraph No.9 of the judgment with regard to the admissibility of the documents in question and contended that no original agreement was produced before the Court. The counsel referring this judgment would further contend that the appellant further 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 photocopy was taken. In this case also, though an endorsement is produced before the Court that the original documents are not available on record, the appellant did not place any material before the Court to substantiate his contentions. Hence, the photo copy of the agreement cannot be relied upon.

46. The learned counsel relied upon the judgment of this Court in the case of SMT. PARAMESHWARI BAI v. MUTHOJIRAO SCINDIA reported in AIR 1981 KAR 57

40. Referring this judgment, the counsel would contend that mere suggestion made in the cross-examination and denial is not evidence at all. The counsel would contend that in the cross-examination suggestions are made, but nothing is elicited. Under the circumstances, the Court cannot give more credence to the evidence of the witnesses.

47. The learned counsel relied upon the decision of this Court dated 19.6.2014 passed in W.P.No.14918/2013 and contended that the said writ petition was withdrawn with liberty to raise the contentions at the stage of final arguments regarding admissibility of the documents in dispute. Hence, the counsel would contend that the Court cannot grant any decree based on the photocopy of the alleged sale agreement and the same is also not admissible in evidence and no proper explanation was given by the 58 appellant before the Court below. Hence, prayed this Court to dismiss the appeal.

48. In reply to the arguments of the learned counsel for the respondents, the learned counsel for the appellant in both the appeals relied upon the judgment of the Hon'ble Supreme Court in the case of INBASAGARAN AND ANOTHER v. S. NATARAJAN (DEAD) THROUGH LEGAL REPRESENTATIVES reported in (2015) 11 SCC 12 and contended that Order 2 Rule 2 of Code of Civil Procedure is inapplicable since previous suit for injunction was filed against the vendor by the plaintiff vendee who was put in possession under agreement to sell because of imminent threat of dispossession by defendant vendor from suit property, while subsequent suit for specific performance was filed by the plaintiff. In the case on hand also, earlier when there was a threat, suit for bare injunction was filed and subsequently suit is filed for the relief of 59 specific performance. Hence, the Trial Court has committed an error by invoking Order 2 Rule 2 of Code of Civil Procedure and failed to consider the principles laid down in the judgment referred supra.

49. The learned counsel for the appellant relied upon the judgment in the case of T. MOHAN v. KANNAMMAL AND ANOTHER reported in 2002 (4) KCCR 2705 and brought to my notice paragraph No.9 of the judgment and contended that in the absence of the original document, the copy of the agreement which was typed as a duplicate of the document, could be received as secondary evidence in the case. When the son of the vendor has admitted the signatures on the document exhibited, to be those of his father, the same is sufficient foundation for accepting the document by way of secondary evidence in terms of Section 65 of the Evidence Act.

50. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of MST. BIBI AISHA AND OTHERS v. THE BIHAR SUBAI SUNNI MAJLIS AVAQAF AND OTHERS reported in AIR 1969 SC 253. Referring this judgment, the learned counsel would contend that under Section 65(a) and (f) of the Evidence Act any secondary evidence, not necessarily certified copy of the document, is admissible.

51. The learned counsel also relied upon the judgment of the Bombay High Court in the case of PANDURANG G. DODKE v. LANKA P. KSHIRSAGAR AND ANOTHER reported in AIR 2005 BOMBAY 427. Referring this judgment, the counsel would contend that xerox copy of the document sought to be produced was already on record and original document sought to be produced could not be produced as it was lost. Bare statement of person required to file document on 61 affidavit that it was lost, would be sufficient under Section 65 of the Evidence Act.

52. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of JAVER CHAND AND OTHERS v. PUKHRAJ SURANA reported in AIR 1961 SC 1655. Referring this judgment the counsel brought to my notice paragraph No.4 of the judgment and contended that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

53. The learned counsel relied upon the judgment in the case of ABDUL RAZACK SAB v. H.K. GOPAL SHETTY reported in Mys.L.J. 1973(1) 541. Referring this judgment, the counsel brought to my notice that though an unregistered lease deed for a period of four years cannot be relied upon by either party to establish 62 the lease for a period of four years, it can be relied upon to prove that the respondent was a tenant.

54. The learned counsel also relied upon the Hon'ble Supreme Court's judgment in the case of JUGRAJ SINGH AND ANOTHER v. LABH SINGH AND OTHERS reported in AIR 1995 SC 945. Referring this judgment, the counsel would contend that in a suit for specific performance of contract of sale, plea about ready and willingness of plaintiff-purchaser is not available to subsequent purchasers.

55. The learned counsel relied upon the judgment of this court in the case of SUBBARAYADU v. RAMANNA reported in ILR 1996 KAR 747. Referring this judgment, the counsel would contend that it is not open to subsequent purchaser to call upon the plaintiff to prove he was ready and willing to perform his part of agreement and such defence is impermissible. 63

56. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of P.C. PURUSHOTHAMA REDDIAR v. S. PERUMAL reported in AIR 1972 SC 608. Referring this judgment, the learned counsel would contend that it is not open to a party to object to the admissibility of documents which are marked as exhibits without any objection from such party.

57. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of RAMRATI KUER v. DWARIKA PRASAD SINGH AND OTHERS reported in AIR 1967 SC 1134. Referring this judgment, the learned counsel would contend that no adverse inference can be drawn from the non- production of the original document. Knowledge would have to be inferred from surrounding circumstances.

58. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of CHURCH 64 OF CHRIST CHARITABLE TRUST AND EDUCATIONAL CHARITABLE SOCIETY v.

PONNIAMMAN EDUCATIONAL TRUST reported in (2012) 8 SCC 706. Referring this judgment, the learned counsel would contend that power of attorney has to be strictly construed. The power of attorney only authorizes certain specified acts but not any act authorizing entering into an agreement of sale or to execute sale deed. In the case on hand also, the power of attorney holder is none other than the brother of the respondents. Hence, the said power of attorney cannot be considered and such power of attorney cannot confer any right to transfer the property.

59. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of JANAK DULARI DEVI AND ANOTHER v. KAPILDEO RAI AND ANOTHER reported in (2011) 6 SCC 555. Referring this judgment, the counsel would contend that mere execution of sale deed does not convey any title and the 65 possession has not been delivered under the said sale deed. Hence, it is clear that consideration has not been paid or that title has not been passed to purchaser as recited in the deed of conveyance and mere execution of sale deed in favour of the respondents cannot convey any title.

60. The learned counsel relied on the judgment of the Hon'ble Supreme Court in the case of VANNARAKKAL KALLALATHIL SREEDHARAN v.

CHANDRAMAATH BALAKRISHNAN AND ANOTHER reported in (1990) 3 SCC 291. Referring this judgment, the counsel would contend that under a contract of sale entered into before attachment, the conveyance after attachment in pursuance of the contract passes on good title inspite of the attachment. The agreement for sale indeed creates an obligation attached to the ownership of property and since the attaching creditor is entitled to attach only the right, title and interest of the judgment- 66 debtor, the attachment cannot be free from the obligations incurred under the contract for sale.

61. The learned counsel relied upon the judgment of Mysore High Court in the case of VENKATARAVANAPPA AND OTHERS v. DASAPPA AND OTHERS reported in AIR 1955 MYSORE 3.

Referring this judgment, the learned counsel would contend that where a person claims to be a purchaser for value without notice of the original contract, the burden lies on him to prove that he fulfils that character. If the subsequent purchaser cannot show that he is a bonafide purchaser for consideration and without notice, his purchase cannot override the previous contract.

62. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of R.K. MOHAMMED UBAIDULLAH AND OTHERS v. HAJEE C. ABDUL WAHAB (D) BY LRS. AND OTHERS reported 67 in AIR 2001 SC 1658(1). Referring this judgment, he brought to my notice paragraph No.15 of the judgment and would contend that the actual possession of a person itself is deemed or constructive notice of the title, if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. The learned counsel would contend that the possession was with the appellant and the respondents have not made any enquiry and only created the documents without any basis and the sale consideration and transaction clearly discloses that the same is a sham document.

63. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of RAM BILAS OJHA AND OTHERS v. BISHWA MUNI AND OTHERS reported in AIR 1978 SC 1094. Referring this 68 judgment, the counsel would contend that plea of bonafide purchaser without notice cannot be accepted since the property was already in possession of prior purchaser in pursuance of usufructuary mortgage and subsequent purchaser claiming to be in possession cannot be accepted and the same is not sustainable.

64. The learned counsel relied upon the judgment of Calcutta High Court in The case of T. POPPAN AND ANOTHER v. KARIA GOUNDER AND OTHERS reported in AIR 2001 CALCUTTA 42. wherein it is held as under:

"Oral agreement - Specific performance - Oral contract and payment of earnest money proved - specific performance denied on ground of subsequent sale - Burden to prove bonafide purchase by subsequent purchaser and without notice illegally shifted on plaintiff

- Held, adverse inference has to be drawn against subsequent purchaser under Section 114 of Evidence Act - Decree of specific performance granted."

65. The learned counsel relied upon Madhya Pradesh High Court's judgment in the case of GHASIRAM v. SHANKARLAL AND OTHERS reported in AIR 1960 MADHYA PRADESH 3. Referring this judgment, the learned counsel would contend that in a subsequent transfer for value with notice of prior oral agreement of sale, Section 48 of the Registration Act cannot be applicable. If the subsequent transferee cannot show that he is a bonafide transferee for consideration and without notice of the agreement to sell, his transfer can legitimately be said to be one obtained in fraud of the right created in favour of a third party under the agreement to sell.

66. The learned counsel relied upon the judgment of Allahabad High Court in the case of SAMPAT RAM AND OTHERS v. BABOO LA reported in AIR 1955 ALLAHABAD 24. Referring this judgment, the learned counsel would contend that where there is an 70 agreement to sell immovable property executed in favour of the defendant prior to the agreement to sell in favour of the plaintiff in respect of the same property, the plaintiff can claim no equities against the defendant and cannot enforce his agreement and the fact that the plaintiff had no knowledge of the prior agreement would hardly make any difference.

67. The learned counsel also relied upon the judgment of Andhra High Court in the case of MUMMIDI REDDI PAPANNAGARI YELLA REDDY v. SALLA SUBBI REDDY AND OTHERS reported in AIR 1954 ANDHRA 20. Referring this judgment, the learned counsel would contend that the notice contemplated by Section 27(b) cannot be confined to actual notice, but extends to constructive notice as well. It follows that where a subsequent transferee has the knowledge of actual possession of a certain person as a tenant over 71 the property, he cannot be said to be a person purchasing the property without notice.

68. The learned counsel also relied upon the judgment in the case of BALCHAND MAHTON v. BULAKI SINGH reported in AIR 1929 PATNA 284. Referring this judgment, the learned counsel would contend that under Section 3 of the Transfer of Property Act, if third party is in possession and vendee not enquiring and he is bound by all equities in favour of the third person. If the property to be sold is not in the possession of the vendor but of another person, it is the duty of the purchaser to make enquiries from that person, and that he is bound by all the equities which the party in possession may have in the property.

69. The learned counsel referring all these judgments would contend that there was an agreement of sale and prior to that there was a mortgage in favour of the appellant and subsequently entered into an 72 agreement of sale and received major portion of the sale consideration and subsequently the respondents have obtained the sham documents from the original owner. Hence, prayed this Court to set aside the judgment and decree of the Trial Court and to grant the relief as sought in the plaint.

70. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents and keeping in view the contentions raised by both the learned counsel, the points that arise for the consideration of this Court are:

(i) Whether the Court below has committed an error in dismissing the suit in O.S.No.2413/1994 that the plaintiff did not prove the execution of sale agreements dated 25.2.1991 and 22.8.1991 and has not paid the part of sale consideration as contended and whether it requires interference of this Court?

(ii) Whether the Court below has committed an error in decreeing the suit in O.S.No.7489/1999 in coming to the conclusion that the plaintiffs have become the absolute owners of the suit schedule property and they are entitled for possession from the plaintiff in O.S.No.2413/1994 and whether it requires interference of this Court?

(iii) What order?

Points No.1 to 3:

71. In order to arrive at a just conclusion keeping in view the contentions urged by both the learned counsel for the appellant and the learned counsel for the respondents, it is necessary to re-appreciate both oral and documentary evidence available on record before the Court, since this Court is the First Appellate Court and the present appeal is a statutory appeal and this Court can re-appreciate both facts and law. Hence, I would like to consider the evidence available on record. 74

72. Now let me consider the evidence of the parties who have led both oral and documentary evidence in order to substantiate their case.

73. The plaintiff in O.S.No.2413/1994 in order to substantiate his case, examined himself as P.W.1 by filing an affidavit before the Court below but he was not subjected to cross-examination. Instead, he executed the power of attorney in favour of his brother and examined him as P.W.2. P.W.2 Sri D. Rajagopal in his affidavit reiterated the averments of the plaint in brief that by virtue of the mortgage deed dated 29.10.1989, the plaintiff was put in possession and thereafter the original owner entered into a sale agreement with the plaintiff on 25.2.1991 to sell the property for a sale consideration of Rs.14,00,000/- and an amount of Rs.50,000/- was already paid and while entering into mortgage, further amount of Rs.50,000/- was paid by cash as on the date of the agreement. In total paid an 75 amount of Rs.1,00,000/- and the original owner agreed to receive the balance amount of Rs.13,00,000/- at the time of registration of the document. It is also the case that the original owner also entered into an agreement dated 22.8.1991 and confirmed the payment of Rs.10,44,000/- which he had received through various cheques and agreed to receive the balance amount of Rs.2,56,000/- on the date of registration. It is also narrated that the plaintiff had opposed the original owner to receive the sale consideration and execute the sale deed and the original owner started to dispossess the plaintiff. Hence, he was constrained to file a suit in O.S.No.4606/1993. The Court below granted an exparte temporary injunction in the said suit. In the meanwhile, he came to know that the sale deeds were executed on 31.5.1991 and 1.6.1991 for a sale consideration of Rs.1,90,000/- and Rs.1,98,000/- respectively by the brother of defendant Nos.2 and 3 as power of attorney holder of original owner in order to defeat and deceive 76 the legitimate right and claim of the plaintiff. Inspite of major amount of Rs.11,44,000/- was received, defendant Nos.2 and 3 have got the suit schedule property conveyed to them for a sum of Rs.3,88,000/- getting the sale deeds executed by Sri S. Muniraju. It is also contended that before filing the suit, the plaintiff was always ready and willing to perform this contract.

74. In support of the claim, he got marked the documents at Exs.P.1 to 129. He was subjected to cross-examination. In the cross-examination, he admits that still the plaintiff is running the hotel and he is residing at Bengaluru. He claims that the plaintiff is having blood pressure and diabetes. It is suggested that the plaintiff was intentionally not subjected for cross- examination and the same was denied. It is suggested that he is not personally aware of the transaction between the plaintiff and the defendants and the same was denied. He admits that no transaction had taken 77 place between the plaintiff and defendant Nos.2 and 3. He admits the filing of O.S.No.4606/1993 and further admits that the plaintiff only gave the instructions to his counsel to prepare the suit in O.S.No.4606/1993. He also admits that the plaintiff himself has given the instructions to prepare the suit in O.S.No.2413/1994.

75. The written statement of the first defendant was confronted to the witness and he claims that it was in English language and he does not know the said language. He is not aware of the contents of the written statement. He admits that he has studied upto P.U.C. and is running the hotel business. He admits that he can identify the signatures of the photocopies which they have produced. He admits that he came to know about the sale transaction between defendant No.1 and defendant Nos.2 and 3 in the year 1993. It is suggested that in the written statement, defendant Nos.2 and 3 have contended that the property was sold in favour of 78 defendant Nos.2 and 3 and the witness replies that he does not remember. However, he claims that in the year 1993, they came and made galata to vacate the house i.e., prior to filing of the suit in O.S.No.4606/1993. It is suggested that the plaintiff was aware of the sale made in favour of defendant Nos.2 and 3 in the year 1991 itself and the same was denied. It is suggested that the suit in O.S.No.4606/1993 was dismissed and he says that he does not know about the same. It is also suggested that on 2.6.1997, defendant No.1 was not having any right to execute the sale deed and the same was denied. Exs.P.2 and 3 were drafted by advocate Venkataramu. He is not witness to Exs.P.2 and 3. It is suggested that Exs.P.2 and 3 are created during the pendency of the suit and the same was denied.

76. In his further cross-examination he admits that the sale deeds were withheld for non-payment of proper stamp duty. He cannot tell the denomination of 79 stamp paper of mortgage agreement of the year 1989. He admits that the same was not registered. It is suggested that Ex.P.19 was created by him and the same was denied. It is suggested that the amount which is mentioned in Ex.P.19 was not given to defendant No.1 and the same was denied. He admits that the plaintiff did not insist defendant No.1 to register the mortgage deed. He cannot tell the name of the scribe of Ex.P.19. However, he claims that Sri P.M. Rajasingh and Sri Singraiah are witnesses to Ex.P.19. They are relatives of defendant No.1 and known to plaintiff. It is suggested that defendant No.1 has not given the possession at any time to the plaintiff and the same was denied. Defendant No.1 is not having any legal representative. However, he admits that defendant No.1 was having number of properties. It is suggested that defendant No.1 was not having any loan and the same was denied. Witness volunteers that defendant No.1 was telling that he was not having good health. He cannot say how 80 much loan he had availed and from whom. He was having diabetes. It is suggested that defendant No.1 was not having any illness and the same was denied. He was not having any financial difficulties and the same was denied. It is suggested that defendant No.1 never told the plaintiff that he is going to sell the property and the same was denied. It is suggested that defendant No.1 has not executed any sale agreement and the same was denied. It is suggested that Ex.P.20 was created and produced and the same was denied. It is suggested that signature available on Exs.P.19 and 20 is not that of defendant No.1 and the same was denied. He says that 15 days prior to Ex.P.20, the sale talks were held and sale consideration was fixed as Rs.14,00,000/-. He admits that in Exs.P.2 and 3, the total amount is shown as Rs.9,86,000/-. He cannot tell on which date the stamp paper of Ex.P.20 was purchased. Defendant No.1 himself got prepared Ex.P.20. It is suggested that Ex.P.21 was created by him for this case and the same 81 was denied. He admits that he is not witness to Exs.P.19 and 21. Ex.P.21 contains Rs.100/- stamp paper. He cannot tell on what date the same was purchased. Ex.P.21 is continued sale agreement of Ex.P.20. It is suggested that no amount was paid, as mentioned in Ex.P.21 and the same was denied. It is suggested that before filing the suit, the plaintiff has not paid any tax and he was not having sufficient money and the same was denied. It is suggested that Exs.P.22 to 24 are created and produced after filing the present suit and the same was denied. The plaintiff was having his loan account at Canara Bank, Sheshadripuram, Bengaluru. It is suggested that the plaintiff was not having any capacity to pay the amount, which is mentioned in Exs.P.19 to 21 and the same was denied. He claims that the plaintiff and defendant No.1 directly transacted as per Exs.P.19 and 21. It is suggested that after Exs.P.17 and 18, defendant No.1 was not having any ownership or possession in his favour and the same 82 was denied. It is suggested that inspite of Exs.P.17 and 18 were within the knowledge of the plaintiff, he created document Exs.P.2 and 3 and the same was denied.

77. He admits that the plaintiff is having his separate bank account. It is suggested that the plaintiff has never discussed to purchase the property and the same was denied. It is suggested that in respect of the suit schedule property, the plaintiff has not paid any amount to defendant No.1 and the same was denied. It is suggested that when the plaintiff came to know that there was a sale deed in favour of defendant Nos.2 and 3, the agreement to sale were created by himself and the plaintiff and the same was denied. He admits that after the sale agreement, from 1991 till filing of the suit, no notice was given to defendant No.1. But he volunteers that orally they have demanded the same. It is suggested that he did not orally request and the same was denied. He admits that in the year 1997, sale 83 consideration is shown as Rs.9,86,000/-. He cannot tell the actual market value of the suit schedule property. The plaintiff and his advocate have purchased the stamp paper. It is suggested that original of Exs.P.2 and 3 are not produced intentionally before the Court and the same was denied. It is suggested that Exs.P.6, 6(a), 7 and 7(a) are not signed by original owner Subbaiah and he denies the same. It is suggested that at that time, the original owner Subbaiah was not in a position to move and the same was denied. It is suggested that Exs.P.8, 8(a), 9 and 12 to 16 are created for the purpose of this case and the same was denied. It is suggested that Subbaiah has not signed all those documents and the same was denied. It is suggested that Exs.P.19 to 21 original documents are not produced in any other suit and the same was denied. It is suggested that Ex.P.25 is also created and the same was denied. It is suggested that the plaintiff was not having financial capacity to purchase the suit schedule property and the same was 84 denied. It is suggested that in order to extract money from defendant Nos.2 and 3, false suit is filed and the same was denied. It is suggested that even though he is not having any personal knowledge, the plaintiff in order to suppress the truth did not appear before the Court to give the evidence and the same was denied.

78. The plaintiff also examined one witness as P.W.3. P.W.3 in his affidavit says that the sale agreement came into existence on 25.2.1991 and in terms of the sale agreement agreed to purchase the property for Rs.14,00,000/- and on that day the plaintiff paid a sum of Rs.50,000/- and earlier he had paid Rs.50,000/- to defendant No.1 on 29.10.1989 when the plaintiff was put in possession. He also says that it was agreed that the plaintiff should pay the balance amount of Rs.13,00,000/- to defendant No.1 on the date of the registration of the sale deed. He has attested the sale advance agreement dated 25.2.1991. 85 His signature is marked as Ex.P.20(c) and he identifies Ex.P.20(b) as the signature of defendant No.1. He also claims that defendant No.1 also put the LTM on Ex.P.20. Another witness by name Vittal also put his signature to Ex.P.20 as an attesting witness. He was subjected to cross-examination.

79. In the cross-examination, he admits that his avocation is agriculture and he is resident of Rajajinagar. He admits that he know the plaintiff since about 25 years and he has also signed the agreement and prior to three to four years earlier to his signature on the suit agreement, he had acquaintance with the plaintiff. He does not know what type of business is done by the plaintiff. The plaintiff belongs to Ramanagar but he does not know the exact native place of the plaintiff in Ramanagar District. The maternal uncle of the plaintiff was residing by the side of his house and the plaintiff used to come to his maternal uncle's house, 86 at that time he knew the plaintiff. The name of plaintiff's maternal uncle is one Thimmaiah. His house is situated at 13th Main, 2nd Stage, Rajajinagar, Bengaluru. He has witnessed the house situated at Sheshadripuram for the first time since it was occupied by the plaintiff. The plaintiff had signed his signature on the agreement of sale on 25.2.1991. Witness was confronted with Ex.P.4 and was asked to identify the signature on Ex.P.4, wherein the witness was incapable to identify the signature on page No.1 of Ex.P.4. Witness after perusal of Ex.P.20, admits that there is no signature of the plaintiff at page Nos.1 to 3 of Ex.P.20. Witness after confrontation of Ex.P.20, identified the signature of the plaintiff on page No.3 of Ex.P.20. He can identify the signature of defendant No.1 on the suit agreement and except Ex.P.20 he cannot identify signature of defendant No.1 on any other documents. He had verified the signature of defendant No.1 for the first time after defendant No.1 signed Ex.P.20. The sale negotiations in 87 respect of Ex.P.20 transaction were held at Tulasithota near Majestic. He was not present in the first sale negotiations held at Tulasithota near Majestic. He was present for putting the signature to the agreement of sale in the afternoon hours and he cannot tell the specific timings. He had reached the place of execution of Ex.P.20, by that time, defendant No.1 had got prepared the sale agreement. Defendant No.1 himself had informed him about the suit agreement prepared for execution, whereas plaintiff did not tell about the sale agreement. The plaintiff was also present along with him and witness volunteers that one Rajagopal was also present. It is suggested that Ex.P.20 is created document for the purpose of the suit and he is given false evidence to the Court and the same was denied. He does not know anything about another suit filed by the plaintiff.

80. The plaintiff also examined another witness P.W.4 one Sri R. Vittal. P.W.4 in his evidence states that defendant No.1 agreed to sell the suit schedule property to the plaintiff and executed the sale advance agreement on 25.2.1991 agreeing to sell the said property for Rs.14,00,000/- and on that day, the plaintiff paid an amount of Rs.50,000/- to defendant No.1. Earlier a sum of Rs.50,000/- was paid by the plaintiff to defendant No.1 on 29.10.1989 when the plaintiff was put in possession of the said property. It was agreed that the plaintiff should pay the balance of Rs.13,00,000/- to the defendant No.1 on the date of registration of the sale deed. It is also his evidence that later also an agreement to sell the said property was executed by defendant No.1 in favour of the plaintiff on 22.8.1991. Since defendant No.1 was in need of money, an amount of Rs.10,44,000/- was paid in addition to amount of Rs.1,00,000/- through various cheques. It was agreed to pay the balance amount of Rs.2,56,000/- on the date 89 of the execution of the sale deed. He has not attested the sale agreement dated 22.8.1991. He claims that the plaintiff has paid in all Rs.11,44,000/- to defendant No.1. He identifies his signature on Ex.P.20. He also says that defendant No.1 has put his LTM to Ex.P.20. One Mr. M.L.Jawaharlal has also put his signature to Ex.P.20 as an attesting witness. He also says that he has put his signature to Ex.P.21 and identifies his signature as Ex.P.21(a). He also claims that defendant No.1 also has put his signature to Ex.P.21. The signature of plaintiff is marked as Ex.P.21(b). It is also his evidence that in addition to his signature, defendant No.1 has also put his LTM to Ex.P.21. The signature of Sri M.L. Jawaharlal is also marked as Ex.P.21(a). He also says that defendant No.1 has put his signature to Ex.P.21 on all pages i.e., Ex.P.21(d) and 21(e). The witness also identifies the signature of defendant No.1 as Ex.P.21(f) and 21(g). One Krishnappa has put his 90 signature as attesting witness to Ex.P.21 and he identifies his signature as Ex.P.21(b).

81. It is suggested that as on the date of signing Ex.P.20 as witness, his age was less than 18 years and the same was denied. The deceased defendant No.1 had purchased and brought the required stamp paper and he does not know the name of the stamp vendor from whom he had purchased the stamp paper. On the date of execution of sale agreement, Venkatesh was in possession of the suit schedule property. It is suggested that plaintiff herein was residing in the schedule property as a tenant and the same was denied. It is elicited that he does not remember who has mediated and negotiated in respect of the said transaction. He does not have any idea as to why the 2nd agreement of sale as per Ex.P21 was executed. In respect of 2nd agreement, the plaintiff has tendered amount by way of issuance of cheque of Canara Bank in his presence. He 91 does not know reason for payment of amount by plaintiff through cheque in respect of Ex.P.21. He knew late defendant No.1 since 1989. The distance between the place of his residence and that of the place of Sheshadripuram is about 14 to 15 kilo meters. He know one Jawaharlal who was present on the date of execution of Exs.P.20 and 21. He never witnessed the signatures of M.L.Jawaharlal signing on the other documents. Late defendant No.1 was residing near Chikkalalbagh near bus stand. He does not know the educational qualification of deceased defendant No.1. He does not know the avocation of deceased first defendant. But he volunteers that defendant No.1 was receiving rental income. He also admits that he has not witnessed on any other documents earlier about the signature of first defendant. He admits that he does not remember the specific date month and year of handing over of the possession of the schedule property. He does not know the specific date of death of first defendant as 92 he was not having contact with deceased. He suggested that Exs.P.20 and 21 are created documents and the same are denied. It is suggested that he has filed false affidavit at the instigation of plaintiff and the same was denied. It is suggested that he has received brokerage from the plaintiff and signed on these suit agreements and the same was denied.

82. The second defendant in O.S.No.2413/1994 and the first plaintiff in O.S.No.7489/1999 has been examined as D.W.1. He reiterated the averments of plaint in O.S.No.7489/1999 and averments of written statement in O.S.No.2413/1994 in his affidavit. He claims in his affidavit that the original owner B.K.Subbaiah has executed agreement of sale on 7.3.1991 in his favour agreeing to sell the eastern half portion of the suit schedule property in favour of his brother and western half portion of the suit schedule property in his favour. Subsequently, sale deed was 93 executed in his favour on 31.5.1991 and in favour of his brother on 1.6.1991 thereby conveying the entire suit schedule property in their favour and they have been put in possession and enjoyment of the suit schedule property and the original owner himself executed the registered sale deed conveying the suit schedule property in their favour and they have occupied the suit schedule property in terms of the sale deeds. It is sworn to that the sale agreement dated 25.02.1991 and 22.8.1991 are fabricated agreements and plaintiff has no right in respect of the suit schedule property. D.W.1 was subjected to cross examination. It is elicited that the executant namely S.Muniraju in the sale deeds of Exs.P17 and 18 dated 31.5.1991 and 01.06.1991 is his brother. He also admits that defendant No.3 has not executed any power of attorney in his favour. He admits that as per Ex.D1 there was an agreement to purchase the entire property for sale consideration of Rs.12,00,0000/-. It is suggested that they have not 94 purchased the suit schedule property as per Ex.D1 from deceased first defendant and the same was denied. It is suggested that his brother S.Muniraju has executed two sale deeds without notice to deceased first defendant and the same was denied. It is suggested that deceased first defendant was not aware of execution of the sale deeds as per Exs.P.17 and 18 by his brother and the same was denied. It is suggested that the amount of sale consideration as shown in Exs.P.17 and 18 are not passed on to deceased first defendant and the same was denied. It is suggested that they have created the two sale deeds-Ex.P17 and Ex.P18 without passing of any sale consideration only in order to cause loss to the plaintiff and the same was denied. It is suggested that the cheque numbers mentioned in Ex.D1 and in Exs.P17 and 18 are not issued in the name of deceased first defendant and the same was denied. It is suggested that the deceased first defendant had executed an agreement of mortgage dated 29.10.1989 in favour of 95 the plaintiff and had parted with possession in favour of the plaintiff and the same was denied. It is suggested that plaintiff is in possession of the suit schedule property since 29.10.1989 and the same was denied.

83. It is suggested that deceased first defendant had executed sale agreement in favour of plaintiff on 25.2.1991 and the same was denied. It is suggested that plaintiff is in possession of suit schedule property since 29.10.1989 till date and the same was denied. It is suggested that deceased first defendant had executed the sale agreement in favour of the plaintiff on 25.2.1991, hence, he has no right to execute the sale agreement as per Ex.D1 and the same was denied. It is suggested that they are not in possession of the suit schedule property on the date of execution of the sale deeds, since possession was delivered to plaintiff on 29.10.1989 and the same was denied. It is suggested that since the year 1989 neither the deceased first 96 defendant nor his tenants nor the defendants No.2 and 3 are in possession of the suit schedule property and the same was denied. It is suggested that they have not issued any legal notice prior to filing of the suit against the plaintiff and the same was denied. It is suggested that his brother S.Muniraju illegally obtained General Power of Attorney from the first defendant and the same was denied. It is suggested that he himself, defendant No.3 and his another brother S.Muniraju together have created the sale deeds dated 31.5.1991 & 1.6.1991 and those documents are nominal documents created only to harass the plaintiff in O.S.No.2413/1994 and the same was denied.

84. In his further cross-examination, it is suggested that Advocate Shekar Shetty had filed vakalath for defendant Nos.1 to 3 in the suit O.S.No.2413/1994 and the same was denied. It is suggested that both defendant Nos.2 and 3 have 97 managed to file vakalath in respect of defendant No.1 on 22.6.1994 and the same was denied. It is suggested that deceased defendant No.1 through plaintiff had paid tax in respect of schedule property till the year 1997 and the same was denied. It is suggested that in terms of Exs.P.17 and 18, they did not get the possession of the property, hence, question of leasing the schedule property in favour of tenants does not arise and the same was denied. It is suggested that deceased defendant No.1 by receiving Rs.14,00,000/- had executed Exs.P2 and P3 in favour of plaintiff and the same was denied. It is suggested that when O.S.No.4606/1993 was filed, at that time plaintiff was not aware about the agreement of sale and the sale deed executed in their favour and the same was denied. It is suggested that sale consideration amount as mentioned in Exs.P17 and 18 was not received by deceased defendant No.1 and the same was denied. It is suggested that they are liable to execute the sale deed in 98 favour of plaintiff as the agreement of sale dated 25.2.1991 and 22.8.1991 are valid agreement of sale and the same was denied. It is suggested that they attempted to take possession of schedule property from the plaintiff forcibly and the same was denied.

85. The witness has been further examined and got marked documents Exs.D8 to 13. He was subjected to further cross examination. In his further cross- examination, he admits that the tax receipts for the year 2008 to 2011 are issued on 1.4.2011. It is suggested that Exs.D9 to 13 are created documents, though he is not in possession of schedule property and the same was denied. It is suggested that he himself and defendant No.3, by paying legal fee to the counsel for defendant No.1 got appointed counsel for defendant No.1 also and same was denied. It is suggested that on their instructions, the first defendant's counsel filed a memo dated 7.9.1994 and the same was denied. He 99 does not know whether memo dated 7.9.1994 was not noticed by defendant No.1. It is suggested that when the suit was filed in O.S.No.4606/1993 at that time the plaintiff was not aware of the two sale deeds executed by his brother namely Muniraju and the same was denied. It is suggested that as on the date of the execution of the sale deed, no possession was taken by them in accordance with law and also they were not in possession and the same was denied, but he volunteers that after execution of the sale deed, the first defendant had handed over possession of the property mentioned in the sale deed. It is suggested that first defendant did not handover possession of schedule property in favour of himself and defendant No.3 and the same was denied. It is suggested that after filing of the suit, the first defendant himself had executed two sale deeds in favour of plaintiff on 02.06.1997 and 07.06.1997 respectively and the witness answered that those two sale deeds are fabricated documents and defendant 100 No.1 was not having right to execute such sale deeds in favour of plaintiff. It is suggested that he himself and defendant No.3 did not derive any title under sale deeds Exs.P.17 and 18 and the same was denied.

86. Having considered the oral and documentary evidence available on record, the case of the plaintiff in O.S.No.2413/1994 is that he entered into an agreement of mortgage dated 29.10.1989 in terms of Ex.P.19 and he has paid the amount of Rs.50,000/- and the remaining amount of Rs.50,000/- was payable at the time of registration of the mortgage deed and he was put in possession as on the date of registration of the mortgage deed. It is also his case that the original owner was in need of the money and he has agreed to sell the property to the tune of Rs.14 lakhs and hence, the first defendant, who is the original owner has executed the sale agreement on 25.2.1991 in terms of Ex.P.20 and an amount of Rs.50,000/- was paid earlier 101 while entering into an agreement of mortgage deed and also as on the date of entering into an agreement of sale he has paid the cash of Rs.50,000/-. In total, the first defendant had received a sum of Rs.1 lakh and it was agreed to receive the remaining balance amount of Rs.13 lakhs at the time of registration. It is also his case that, subsequent to the sale agreement dated 25.2.1991, the first defendant persuaded him to pay the balance amount and accordingly, he has paid the additional amount in all Rs.10,44,000/- through various cheques and in all he has received an amount of Rs.11,44,000 and the first defendant agreed to receive the balance sale consideration of Rs.2,56,000/- from the plaintiff at the time of registration of the Sale Deed.

87. On the other hand, it is the case of the plaintiffs in O.S.No.7489/1999 that there was no any agreement of sale and also any mortgage deed in favour of the plaintiff in O.S.No.2413/1994 and those 102 documents are created and the original owner has executed the sale agreement in his favour on 07.03.1991 in terms of Exhibit D1 and consequently two sale deeds dated 31.5.1991 and 1.6.1991 are executed in favour of defendants No.2 and 3 in O.S.No.2413/1994 and plaintiffs in O.S.No.7489/1999, respectively in respect of eastern half portion and also in respect of the western half portion of the property. Hence, they became the absolute owners of the suit schedule property.

88. The Plaintiff in O.S.No.2413/1994 pleaded the same and sought for the relief of specific performance against the defendants to direct defendants No.2 and 3 to execute the Sale Deeds, failing which, the Court be pleased to execute the deed of conveyance on behalf of defendants No.2 and 3; alternatively, to declare the Sale Deeds dated 31.5.1991 and 1.6.1991 are illegal and also sought for the relief in case, if the Court comes 103 to the conclusion that the plaintiff is not entitled for the relief of specific performance and to direct defendants No.2 and 3 to pay the amount of Rs.11,44,000/- with interest at the rate of 18% p.a. and so also sought for the relief of permanent injunction against the defendants.

89. The plaintiffs in O.S.No.7489/1999 pleading the above said facts, sought for the relief of declaration to declare that they are the absolute owners of the suit schedule property in terms of the Sale Deeds dated 31.5.1991 and 1.6.1991 and also sought for the relief to put the plaintiffs in possession of the suit schedule property and also grant the decree for an amount of Rs.3,60,000/- on the ground that the defendant in the said suit has been in wrongful use and occupation of the premises for the last three years.

90. Now, this Court has to re-appreciate the material available on record. It is to be noted that the 104 plaintiff in O.S.No.2413/1994 at the first instance, filed the affidavit reiterating the averments of the plaint and he did not subject for cross-examination. But subsequently, he has executed the power of attorney in favour of his brother D. Rajagopal. The power of attorney got marked as Ex.P1. P.W.2 in his affidavit reiterated the averments of the plaint and got marked documents as Exs.P1 to P129. It is to be noted that the original plaintiff did not choose to subject himself for cross-examination. It is elicited in the cross- examination of P.W.2 that P.W.1 i.e., the original plaintiff, who is a resident of Bengaluru is still running a Hotel but claims that his health is not good. It is elicited in his evidence that he is suffering from diabetes and blood pressure. P.W.2 admits that there was no direct transaction between the plaintiff and defendants No.2 & 3 with respect to the suit schedule property and that is also not the case of plaintiff.

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91. It is the case of the plaintiff that he entered into a mortgage deed at the first instance in the year 1989 and he took possession. Subsequently, an agreement of sale was executed on 25.2.1991 and so also on 22.8.1991. It is to be noted that in the cross- examination of P.W.2, a suggestion was made that the first defendant had filed the written statement in O.S.No.4606/1993, which was filed by the plaintiff and P.W.2 did not admit the same contending that the written statement was in English and he does not know the contents of the same. However, in the cross- examination, he admits that he studied upto PUC and he was running a Hotel business and also having a bank account. He cannot identify the signature of the first defendant on the photocopy, but he can identify the signature of the person, who has signed the document, which he has produced. The defendants also relied upon the certified copy of the order sheet of O.S.No.4606/1993. It is to be noted that the 106 defendants in O.S.No.2413/1994 have produced the copy of the written statement filed by the first defendant in O.S.No.4606/1993. The first defendant, who is the original owner denied the very execution of the mortgage deed and also the sale agreement in favour of the plaintiff. It is also important to note that in his written statement, he denied the payment of mortgage amount and also sale consideration and instead he has pleaded that he has executed the sale agreement in favour of defendant No.2 on 7.3.1991. He has also pleaded that he has executed the Sale Deed in favour of defendants No.2 and 3 and put the purchasers in possession and the same was within the knowledge of the plaintiff. There is a categorical admission by the first defendant that he has sold the property in favour of defendants No.2 and 3. No doubt, the plaintiffs have relied upon the document at Ex.P6, memo filed by the first defendant in the suit and pleaded that the defendants No.2 and 3 have fraudulently obtained the said sale 107 deeds and also got marked Ex.P7(a), the affidavit of the original owner who is the first defendant and he reiterated that the Sale Deeds at Exs.P17 and 18 are obtained fraudulently by defendants No.2 and 3. It is also important to note that the plaintiff got marked Exs.P2 and P3, Sale Deeds executed in his favour in the year 1997 during the pendency of the suit. The plaintiff has also produced Exs.P4 and P5 - revocation of General Power of Attorney executed in favour of Muniraju, who is the brother of defendants No.2 and 3, so also Ex.P5, revocation of General Power of Attorney executed in favour of the second defendant. These two documents-Exs.P4 and P5 are cancellation of the General Power of Attorney dated 08.03.1991. It is also pertinent to note that the power of attorney holder Muniraju is none other than the brother of defendants No.2 and 3. Hence, it is clear that the General Power of Attorney executed in favour of Muniraju and second defendant are dated 8.3.1991 on the very next day of 108 agreement of sale. The original owner, who is the first defendant is no more and the contentions stated in the memo at Exs.P6 and 7(a) are not proved. But there are registered Sale Deeds in favour of defendants No.2 and 3 which are marked as Exs.P17 and P18. It is pertinent to note that the first defendant is the original owner of the property. In his written statement, he has denied the very execution of the Sale agreement in favour of the plaintiff in O.S.No.2413/1994 and so also execution of the mortgage deed, in the year 1989. It is also important to note that the defendants No.2 and 3 in their written statement have denied the very execution of the sale agreement and mortgage agreement. Though the plaintiff claims that he has paid the amount by way of different cheques to the tune of Rs.10,44,000/- but he did not choose to place any material for having paid the amount to the defendants. 109

92. No doubt, on perusal of Ex.P19-Mortgage Deed dated 29.10.1989, it is mentioned that Rs.50,000/- has been paid and remaining balance of Rs.50,000/- was payable at the time of registration of Mortgage Deed, but fails to examine any person to prove the same. It is also important to note that in terms of Ex.P19, the possession was delivered in favour of the plaintiff and the said document has not been registered. The other document - Ex.P20, Sale Deed came into existence on 25.2.1991. Ex.P20 discloses the covenants that an amount of Rs.50,000/- which has already been paid at the time of mortgaging the property has been considered as sale consideration amount. Further, the covenants disclose that a cash of Rs.50,000/- has been paid as on the date of the sale advance agreement. Totally, an amount of Rs.1 lakh was received and possession was handed over to the purchaser on 29.10.1989 by way of house mortgage.

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93. The plaintiff in order to prove the very execution of the document at Ex.P20, relied upon the evidence of PWs.1, 2, 3 and 4. The original plaintiff did not choose to subject for cross-examination but examined P.W.2, his brother.

94. P.W.3, admits in his evidence that, he attested the sale advance agreement dated 25.2.1991- Ex.P20 as one of the witness. Ex.P20 is the Xerox copy and as such signature is marked. He identified his signatures at Ex.P20(c), Ex.P20(d) and Ex.P20(e). He also identified the signature of defendant No.1 at Ex.P20(b).

95. In the cross-examination, it is elicited that he had acquaintance with plaintiff and defendant No.1. The witness was confronted with Ex.P4 and asked to identify the signature on Ex.P4 and he is incapable to identify the signature on page No.1 of Ex.P4. He admits he cannot identify defendant No.1's signature on any 111 other document. Ex.P.4 is the cancellation of power of attorney, which contains the signature of defendant No.1. Hence, the evidence of P.W.3 does not come to the aid of the plaintiff since he identifies the signature of defendant No.1 in the Xerox sale agreement but does not identify the original signature of defendant No.1.

96. The plaintiff also relied upon the evidence of P.W.4. His evidence is also similar to the evidence of P.W.3. He admits in his evidence that, he attested the sale agreement Exs.P20 and P21 as one of the witness.

97. In the cross-examination, he admits that he does not remember who has mediated and negotiated in respect of the sale transaction and also admits that he does not have any idea as to why the second agreement of sale as per Ex.P21 was executed. Further, in respect of second agreement, the plaintiff has tendered amount by way of issuance of cheques of Canara Bank in his presence. But he does not know about the payment of 112 amount by plaintiff through cheques in respect of Ex.P21. He admits that he does not know the educational qualification and avocation of deceased defendant No.1. He also admits that he was receiving the rental income. He further admits that he does not know in detail about the lease of premises in respect of which property, defendant No.1 was receiving rental income. He had not witnessed on any other documents earlier about the signature of defendant No.1.

98. Having taken note of the evidence of PWs.2, 3 and 4, first of all, the original plaintiff who has been examined as P.W.1 did not subject for cross- examination. It is pertinent to note that P.W.2 admits in the cross-examination that P.W.1 is still running a Hotel business and he is suffering from diabetes and blood pressure and not having any other ailment. When such being the case and in view of the citation referred to 113 supra, aptly applicable that the transaction cannot be accepted as contended by the respondents.

99. On perusal of the affidavit filed by the original plaintiff on 16.9.2002, it is noticed that he has mentioned his age as 38 years. No proper reason given by the original plaintiff why he did not subject for cross

-examination and no medical records are placed before the Court with regard to his health condition. It is also pertinent to note that the original documents have not been placed before the Court. It is his case that the original documents produced in the earlier suit in O.S.No.4606/1993 are destroyed and an endorsement is produced to the effect that original documents are destroyed. It is also pertinent to note that the present suit was filed in the year 1994 and endorsement is of the year 2008 and till then, he did not obtain the original documents of advance sale agreement and other documents inspite of the said suit was dismissed in the 114 year 1995 itself. It is also pertinent to note that during the pendency of the suit, he has obtained the Sale Deed from the original owner in terms of Exs.P2 and P3 in the year 1997 itself. When he was able to obtain sale deed in the year 1997 itself but he did not make any efforts to receive back the original suit documents till 2008.

100. The original Sale Deeds executed by the first defendant during the pendency of the suit was not produced before the Court and the reason as to why the plaintiff has suppressed Exs.P2 and P3 has not explained. It is also important to note that the first defendant-original owner also in the earlier written statement in terms of Ex.D2 categorically denied the very execution of the mortgage deed as well as the Sale Agreement and when such being the case, if really he has paid the sale consideration to the tune of Rs.10,44,000/- in terms of Ex.P.21 and an earlier amount of Rs.1,00,000/- in terms of Ex.P20, he ought 115 to have produced the document with regard to sale consideration to the tune of Rs.11,44,000/- and the same has not been produced before the Court. The very contention of defendant Nos.1 to 3 is that, no such sale agreement and mortgage deed were executed. The first defendant categorically denied the same in both the suits in his written statement which he had filed in O.S.No.4603/1993 and also filing memo adopting the written statement of Defendants No. 2 and 3 in the present suit.

101. In order to substantiate the contention for having paid the amount by way of cheques, he could have produced the material evidence to prove the execution of the sale agreement as well as the mortgage deed. No doubt, the plaintiff has been in possession of the suit schedule property, in terms of the document which he has produced but failed to produce any documentary proof for having paid the sale 116 consideration in favour of the first defendant and when the very execution of document of sale agreements - Exs.P20 and P21 are disputed, the plaintiff ought to have produced the same. It is also important to note that the sale advance agreement is dated 22.5.1991 and in order to prove the same, the original plaintiff did not step into the witness box and not examined any other person. But subsequently, the sale agreement was executed in favour of defendants No.2 and 3 on 7.3.1991 and the said document is a registered document, which is marked as Ex.D1. It is also important to note that the Sale Deeds are executed in pursuance of Ex.D1 in favour of defendants No.2 and 3 in terms of Exs.P17 and P18 based on registered power of attorney executed by defendant No.1. When defendant No.1 in O.S.No.4606/1993 denies the execution of the Sale Agreement in favour of the plaintiff and specifically pleaded that it is well within the knowledge of the plaintiff that he has sold the property 117 in the year 1991 itself and put the purchaser in possession of the property, the plaintiff ought to have proved the same. It is the burden on the plaintiff to substantiate his contention on execution of Exs.P19 to P21. The evidence of PWs.3 and 4 does not inspire the confidence of the Court. It is also pertinent to note that the plaintiff has only produced the xerox copies of the agreement of sale and I have already pointed out that the original Sale Deed executed in favour of plaintiff in the year 1997 and the same is also not produced before the Court. If the original documents are placed before the Court, the Court ought to have compared the same under Section 73 of the Evidence Act. It is pertinent to note that he had filed a suit at the first instance for the relief of bare injunction in O.S.No.4606/1993 and he did not pursue the said suit and the same was dismissed for non-prosecution and before dismissal of the suit, he has filed a suit for the relief of specific performance. When such being the case, the plaintiff 118 ought to have obtained the original documents from the Court and the same has not been done. In the year 2008, an attempt is made to obtain the original documents and an endorsement is produced that the original documents have been destroyed and the same has been considered by the Trial Court that no explanation was given even though the suit was filed in the year 1994 itself for the larger relief, the documents are not obtained immediately even while filing the suit for larger relief. It is also important to note that the documents were marked and the same was questioned before this Court. While disposing the writ petition, this Court made an observation with regard to the admissibility of the documents and the Court has to take note of the same while considering the matter on merits. The Court below while considering the documents held that mere marking of documents is not enough and the plaintiff has to prove the same. The plaintiff did not place any material before the Court for 119 having paid the sale consideration amount except relying upon Exs.P19 to P21. I have already pointed out that the plaintiff inspite of defendants disputing the documents i.e., mortgage deed as well as sale agreements, he did not choose to produce the documents for having paid the sale consideration in favour of the first defendant. It is also pertinent to note that the first defendant is also no more but his written statement filed in O.S.No.4606/1994 is clear that he did not execute the Sale agreement and mortgage agreement or any other documents. When such being the case, the burden is on the plaintiff to prove the very execution of the document as well as the payment of consideration amount but the same has not been done. It is also important to note that the defendants No.2 and 3 have also filed a suit in O.S.No.7489/1999 claiming the relief of declaration based on the Sale Deeds dated 31.5.1991 and also 1.6.1991 and also it is mentioned that the plaintiff has obtained the possession colluding 120 with the tenant and possession was delivered at the time of execution of the Sale Deeds. It is also pertinent to note that the plaintiffs in O.S.No.7489/1999 have not specifically mentioned in the suit that to whom the premises was let out and no details of tenant is given. The plaintiff in O.S.No.7899/1999 have not placed any material before the Court with regard to the date of dispossession as well as with whom the plaintiff was colluded, when the possession was taken form the tenant.

102. The Court below while considering the matter on merits has erroneously come to the conclusion that Order II Rule 2 of Code of Civil Procedure is applicable to the case on hand in coming to the conclusion that no attempt was made to amend the plaint for the relief of specific performance in the suit filed earlier for the relief of injunction. The very approach of the Trial Court is erroneous. The Trial 121 Court ought not to have come to such a conclusion and the question under Order II Rule 2 of Code of Civil Procedure, does not arise.

103. The learned counsel appearing for the appellant in these appeals also relied upon the Judgment of the Apex Court in Inbasagaran's (supra). In this Judgment, the Apex Court held that: 'Previous suit for injunction was filed against vendor by plaintiff vendee put in possession under agreement to sell, because of imminent threat of dispossession by defendant vendor from suit property; while subsequent suit for specific performance was filed by plaintiff vendee against vendor on basis of agreement to sell. Hence, Order II Rule 2 of Code of Civil Procedure is inapplicable.' The Court below has erroneously come to the conclusion that the suit also suffers from Order II Rule 2 of Code of Civil Procedure. The said approach of the Trial Court is not correct. In the present case on 122 hand also at the first instance when there was a threat, he filed a suit in O.S.No.4606/1993 and subsequently in the year 1994, he filed a suit for the relief of specific performance and hence, the question of Order II Rule 2 of Code of Civil Procedure, does not arise.

104. However, the Court has to take note of the fact that the plaintiff in O.S.No.2413/1994 has sought for the relief of the specific performance and hence, he has to prove the very execution of the sale agreement. As I have already pointed out the plaintiff did not choose to appear before the Court and inspite of that, he has executed the power of attorney in favour of P.W.2.

105. The respondents' counsel has also relied upon the Judgment in Vidhyadhar's case stated supra and the principles laid down in the said judgment is applicable to the case on hand. The plaintiff instead of subjecting for cross-examination, after filing his 123 affidavit, he has executed the power of attorney in favour of P.W.2. No doubt, he is the brother of the original plaintiff, but the reason as to why he did not subject for cross-examination has not been explained. According to P.W.2, he was suffering from blood pressure and diabetes, however, the same did not prevent him from appearing before the Court. If he had appeared and given evidence, the Court below would have given credence to his affidavit which has not been done.

106. As I have already pointed out, no documents have been placed before the Court for having paid the money to defendant No.1. No doubt, appellant's counsel vehemently contended relying upon the Judgment in R.K.Mohammed Ubaidullah's case referred to (supra) that the first defendant was not in possession at the time of executing the Sale Agreement and the Sale Deed in favour of defendants No.2 and 3. 124 When the plaintiff himself was in actual possession, it is deemed to be a constructive notice and the purchaser has to make enquiries regarding the interest, nature of possession and title. No dispute with regard to the principles relied upon by the appellant's counsel. This question would arise only if the plaintiff was able to prove that there was a sale agreement in his favour and if he proves the said fact at the first instance, then the question of bonafide purchaser and the other person who is in possession, plays a vital role, but he has to succeed the case of his own but not on the weakness of the defendants. The plaintiff did not place any material for having paid the sale consideration and though he contend that the other sale agreement came into existence on 22.08.1991 and referred some of the cheques in terms of Ex.P.21, no document is proved and the same is also subsequent to the sale deeds of Exs.P17 and P18. If plaintiff has proved Ex.P20, then the plaintiff was having the case. The plaintiff has also 125 not explained why the second sale agreement came into existence.

107. The appellant's counsel also relied upon several Judgments on this aspect and the said Judgments are not applicable to the case on hand since the plaintiff has not proved the very execution of the sale agreements.

108. The plaintiffs relied upon Exs.P2 and P3 and those two sale deeds came into existence during the pendency of the present suit and apart from that, other two sale deeds were executed in favour of defendants No.2 and 3. No doubt, the plaintiffs in O.S.No.7489/1999 pleaded that the original owner i.e., defendant No.1 himself executed the Sale Deeds, but on perusal of the documents, it is otherwise. The said sale deeds are executed by one Muniraju based on power of attorney and there is no dispute with regard to the fact that the said Muniraju is none other than the brother of 126 defendant Nos.2 and 3. Once the Sale Deeds have been executed in favour of defendants No.2 and 3, the first defendant i.e., the original owner does not have any rights to execute the Sale Deeds in favour of the plaintiff in O.S.No.2413/1994 since he was not having any right to execute the Sale Deeds, unless the said sale deed is cancelled. The first defendant did not dispute the very execution of the Sale Deeds. He categorically admits the same in terms of Ex.D2. However, in terms of Exs.P6 and P7, he claims that the same were created by playing fraud on the part of defendants No.2 and 3 which has not been substantiated. Since the defendant No.1 passed away before the trial, no value can be attached to Exs.P6 and P7. The sale deed Exs.P2 and P3 do not create any right in favour of plaintiff since the same are executed during the pendency of the suit and already there was a sale deed in favour of defendants No.2 and

3. If plaintiff was able to prove the very execution of the Sale Agreement dated 25.2.1991, then, the defendants 127 in O.S.No.2413/1994 and plaintiffs in O.S.No.7489/1999 have no case, but the plaintiff has failed to produce any documentary evidence for having paid the sale consideration. It is also important to note that Ex.P21 surprisingly came into existence in the month of August 1991 and before existence of the said document, two sale deeds were already executed in favour of defendants No.2 and 3 on 31.5.1991 and 1.6.1991. Further, the first defendant was also not having any right to execute the second sale agreement in the month of August 1991. The same is also not supported by any material for having paid the sale consideration.

109. It is the contention of the plaintiff in O.S.No.2413/1994 that the Sale Deeds at Exs.P17 and P18 are sham documents and the same has not been proved. The original owner himself has admitted in Ex.D2 that he has executed the Sale Deeds. The main 128 contention of the plaintiff in O.S.No.2413/1994 is that no sale consideration has been passed in favour of the first defendant and the said contention cannot be accepted for the reason that the first defendant himself admits the very execution of the Sale Deeds in the earlier suit and when such being the circumstances, I do not find any error committed by the Court below in appreciating both oral and documentary evidence available on record. The plaintiff failed to prove the very execution of the document at Ex.P20 i.e., Sale Agreement, prior to executing the Sale Deeds in favour of defendants No.2 and 3. The evidence of PWs.3 and 4 also does not inspire the confidence of the Court that there was an Agreement of Sale in favour of the plaintiff in O.S.No.2413/1994 and also the plaintiff did not place any material for having paid the sale consideration. The Court below even though allowed the plaintiff to mark the xerox documents, has rightly come to the 129 conclusion that the plaintiff did not prove the said documents.

110. The contention of the respondents' Counsel that the plaintiff cannot seek any relief before this Court without bringing the legal representatives on record cannot be accepted since the plaintiff has amended the plaint stating that the first defendant has no legal representatives. It is also not the case of the respondents that there are other legal heirs and ought to have furnished the details of the legal heirs by the respondents, the same has not been done and hence, the contention that suit is not maintainable cannot be accepted.

111. Having considered both oral and documentary evidence available on record, nothing has been elicited in the cross-examination of D.W.1 with regard to the Sale Advance Agreement and Agreement To Sell, which are marked as Exs.P20 and P21 and 130 throughout in the cross-examination only suggestions are made to D.W.1. No doubt, D.W.1 in the cross- examination admits that the said Muniraju was the brother of defendants No.2 and 3 and also it is elicited that as per Ex.D1, there was an agreement to purchase the suit property for sale consideration amount of Rs.12 lakhs, but sale consideration in total in terms of Exs.P17 and P18 is only to the tune of Rs.3,88,000/- that does not mean that the sale consideration has not been passed. It is also important to note that, it is the case of the plaintiff that, he agreed to purchase the property for sale consideration of Rs.14 Lakhs, but on perusal of Exs.P2 and P3, the sale consideration is also less than Rs.10 lakhs. Hence, the very contention of the plaintiff that no sale consideration is passed in respect of Exs.P17 and P18, cannot be accepted. The original owner did not dispute the same.

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112. It is also the contention of the plaintiff that the brother of defendant Nos.2 and 3, Sri Muniraju has illegally obtained the General Power of Attorney from the deceased first respondent. The said contention cannot be accepted for the reason that defendant No.1 has categorically admitted the very execution of the power of attorney as well as Sale Deeds dated 31.5.1991 and 1.6.1991 and when such being the case, it cannot be contended that no sale consideration has been passed. No worthwhile cross-examination was found when D.W.1 was cross-examined and the Trial Court has given anxious consideration to both oral and documentary evidence except committing the mistake in coming to the conclusion that Order II Rule 2 of Code of Civil Procedure is applicable. The factual aspects has been rightly considered by the Court below to consider both oral and documentary evidence. I do not find any other reason to come to other conclusion that the Court below has committed an error in dismissing the suit 132 filed by the plaintiff in O.S.No.2413/1994 and committed an error in granting the decree in favour of the plaintiffs in O.S.No.7489/1999. Since the defendants have placed the material for having executed the Sale Deeds in their favour, the first defendant, who is the original owner also confirms the execution of Sale Deeds in favour of defendants No.2 and 3 and once the Sale Deeds are executed in favour of defendants No.2 and 3, question of executing the Sale Deeds in favour of the plaintiff during the pendency of the suit in the year 1997 in terms of Exs.P2 and P3 does not arise and those Sale Deeds does not create any right in favour of the plaintiff.

113. With regard to the possession is concerned, I have already pointed out that the plaintiff has not produced any material with regard to the dispossession. When this Court comes to the conclusion that the Sale Deeds have already been executed by the original owner 133 in favour of defendants No.2 and 3, the plaintiffs in O.S.No.7489/1999 are entitled for possession since they become the rightful owner in terms of Exs.P17 and P18. Hence, the Court below has not committed any error in granting the relief of possession in favour of the plaintiffs in O.S.No.7489/1999. There are no merit in the appeals.

114. In view of the discussions made above, I pass the following:

ORDER The appeals are dismissed.

No costs.

Sd/-

JUDGE ST/MD/PYR/CP

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