Andhra Pradesh High Court - Amravati
Sri M. Venugopal Reddy vs Sri P. Nagappa on 24 November, 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.1383 of 2017
JUDGMENT:
Three defendants in the suit seek intervention of this Court by way of second appeal filed under Section 100 C.P.C. as against concurrent judgments of two Courts below. Respondent herein is the sole plaintiff in the suit. The suit is for specific performance of an agreement for sale. Plaintiff filed O.S.No.19 of 2007. After due trial, by a judgment dated 21.10.2011 learned Senior Civil Judge, Penukonda decreed the suit in favour of the plaintiff.
2. Defendants preferred first appeal in A.S.No.29 of 2012. After due hearing, learned II Additional District Judge, Hindupur by a judgment dated 22.06.2017 dismissed the appeal and thereby confirmed the judgment of the trial Court.
3. The present second appeal is filed by the defendants questioning the correctness of the judgment of the first appellate Court. Learned counsel on both sides submitted arguments before admission. To consider these submissions, one shall notice the legal proceedings that took place before the Courts below.
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Dr. VRKS, J S.A.No.1383 of 2017
4. Various extents of agricultural land spread in four survey numbers totaling Ac.10.35 cents situate in Chilamathur Village in Puleru Village of Gorantla Mandal of Anantapur District are the immovable properties that are subject matters of litigation in the suit. Plaintiff pleaded that defendant Nos.1 to 3 executed an agreement for sale on 01.12.2006 agreeing to sell these properties to the plaintiff for Rs.3,05,000/- and they received Rs.50,000/- towards part of the sale consideration. The balance sale consideration of Rs.2,55,000/- was to be paid by the plaintiff on or before 03.03.2007. In the event of failure on part of the plaintiff in paying the balance sale consideration, it was agreed between the parties that the agreement should stand cancelled and the advance sale consideration paid stand forfeited. Thereafter, plaintiff called upon the defendants to receive balance sale consideration and execute registered sale deed, but the defendants were postponing it for one or the other reason. In those circumstances, well before the outer date set the said agreement, plaintiff got issued a notice dated 13.02.2007 calling upon the defendants to receive the balance sale consideration as the plaintiff has been ready and willing to perform his part of the contract and invited them to execute 3 Dr. VRKS, J S.A.No.1383 of 2017 registered sale deed in his favour. There was no response. Plaintiff got issued another notice on 26.02.2007 and another notice on 27.02.2007. Despite all this, defendants did not come forward. Pleading that he has always been ready and willing to perform his part of the contract and he is prepared to pay the balance sale consideration and obtain a registered sale deed, he laid the suit.
5. In contest, 1st defendant filed a written statement and the remaining defendants filed a memo adopting it. They denied the plaint averments and stated that they never executed the agreement for sale alleged in the plaint and they had no need to sell the property and that it is a fabricated document. That they live at Anantapur and taking advantage of it, the plaintiff and his followers fabricated the agreement for sale. It is further stated that notice dated 13.02.2007 was received by the defendants, but they did not give any reply since the agreement for sale alleged is a fabricated document. That the alleged agreement for sale is not valid and does not bind on the defendants and it is not stamped properly. In these circumstances, there is no breach of contract on part of the 4 Dr. VRKS, J S.A.No.1383 of 2017 defendants. For these reasons, they sought for dismissal of the suit.
6. It seems during the trial, one of the valiant contests raised by the defendants was that defendants are not the sole owners of the property and it is a joint family property. From the records placed before this Court, it is not very clear as to whether this aspect of the matter was pleaded in the written statement or not? However, both the Courts below addressed that contention and recorded their finding. On the above rival pleadings, the learned trial Court framed the following issues for trial:
"1. Whether the plaintiff is entitled for specific performance of agreement of sale deed dated 01-12-2006 as prayed for?
2. Whether the agreement of sale deed dated 01-12-2006 is fabricated document?
3. Whether there is no cause of action for the suit?
4. To what relief?"
7. At the trial, plaintiff testified as PW.1. There are two attestors to the agreement for sale and they testified as PWs.2 and 3. The scribe of the agreement for sale testified as PW.4. The disputed agreement for sale is Ex.A.1. The copy of one of 5 Dr. VRKS, J S.A.No.1383 of 2017 the notices issued by the plaintiff to the defendants is Ex.A.2. Two courier receipts became Ex.A.3, three postal acknowledgment cards became Ex.A.4 and another set of three postal acknowledgment cards became Ex.A.5. Coming to defendants, 1st defendant gave evidence as DW.1 and examined a neighbouring landlord as DW.3. It seems one Mr. Narayanappa gave his evidence by way of an affidavit as DW.2, but he did not turn up to stand for cross-examination and therefore, both the Courts below discarded his evidence about which no questions are raised in this appeal before this Court. Defendants did not adduce any evidence in the form of documents. Learned trial Court examined the evidence that was made available to it on both sides and stated that the dispute is about execution of Ex.A.1-agreement for sale. From the evidence of plaintiff as PW.1 and from the evidence of both the attestors as PWs.2 and 3, it found that under Ex.A.1 both parties entered into a deal whereunder defendants agreed to sell the property and signed the agreement for sale and received Rs.50,000/- towards advance of the sale consideration. The evidence of PW.4/the scribe of Ex.A.1 was considered stating that according to his evidence, it was on the instructions of the defendants he 6 Dr. VRKS, J S.A.No.1383 of 2017 scribed that document. Considering all that evidence, learned trial Court recorded its finding that Ex.A.1 was validly executed by the defendants and they were bound by it. The case of the defendants was that they did not execute Ex.A.1. Learned trial Court disbelieved that contention for absence of any relevant material. Another contention raised by the defendants was that the property was worth at least Rs.12,00,000/- and no prudent man would have sold it for such a meagre sale consideration of Rs.3,05,000/- and that raises the suspicion about the execution of Ex.A.1 by them. Learned trial Court observed that in proof of this fact about the value, no evidence was led before it. Accordingly, it discarded that contention. Before the trial Court, defendants urged that as per the evidence of PW.1 as well as DW.1, the property belonged to a joint family. That according to DW.1 and DW.3, it was not partitioned. It was on that ground, they urged that defendants by themselves could not alienate this property and therefore, the suit should be dismissed. Learned trial Court observed that though PW.1 stated that it was once a joint family property, it became property of defendant No.1 because of a partition that took place and that he had verified the encumbrance certificate and was satisfied 7 Dr. VRKS, J S.A.No.1383 of 2017 that defendant No.1 was the owner of the property. Learned trial Court observed that though defendants have been contending that it still remained a joint family property, they did not file any document probablising their contention and therefore, acting upon the evidence adduced for plaintiff, it recorded a finding that the property belonged to defendant No.1 and the contention of defendants that it belonged to joint family is incorrect. It further observed that according to plaintiff and the evidence of PW.1, notice dated 13.02.2007 was sent by the plaintiff and according to the admissions in the written statement and evidence of DW.1 that notice was received by the defendants. It also observed that defendants did not issue any reply notice and stated that if really the contentions of defendants were correct, they would have given a reply notice. It is on that ground it disbelieved the version of the defendants in all respects, which include the contention about value of the property, the contention about non-execution of Ex.A.1 and contention about joint family property. It answered all the issues in favour of the plaintiff and against the defendants and decreed the suit in the following terms:
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Dr. VRKS, J S.A.No.1383 of 2017 "In the result, the suit is decreed with costs for specific performance of agreement of sale Ex.A1 directing the defendants 1 to 3 to execute register sale deed in favour of plaintiff on receiving balance of sale consideration of Rs.2,55,000/- failing which decree may be executed through procedure of Court."
8. With the same evidence, the matter was argued before the first appellate Court. A perusal of the judgment of the first appellate Court indicates that it recorded the pleadings and the evidence adduced by both sides and the findings arrived at by the trial Court and framed the points for its consideration as mentioned below:
"1. Whether the plaintiff is entitled to specific performance of agreement of sale as prayed for?
2. Whether the decree and judgment passed by the learned Senior Civil Judge, Penukonda in O.S.19 of 2007 dated 21.10.2011 are liable to be set aside?"
9. At para No.18, the learned first appellate Court observed that the evidence on record indicated that especially the evidence of DW.1 in his cross-examination that he never informed the plaintiff about shares of any others over this property. The first appellate Court mentioned that as per the 9 Dr. VRKS, J S.A.No.1383 of 2017 evidence of DW.1, this plaintiff has been known to him since childhood and there are no disputes between them and it also observed that PWs.2 to 4 also have no disputes with defendants. In the context of such evidence, it found that evidence led by plaintiff was believable and observed that it found no reason for plaintiff to fabricate a document. It said that to disprove the plaintiff‟s contention and to substantiate their own contentions, defendants did not even take out the agreement for sale for an expert opinion. The readiness and willingness on part of the plaintiff was observed from Ex.A.2-notice dated 13.02.2007 and from his averments in the pleadings and from his evidence as PW.1. Coming to contentions of defendants/appellants therein that they had no full rights over the property and it was joint family property, it negatived the contention based on the law laid down by this Court in Mir Abdul Hakeem Khan v. Abdul Mannan Khadri1 wherein it was held as below:
"Where a suit filed for specific performance is filed only against the executants of an agreement to sell and there is no question of the plaintiff attempting to bind the interest of the persons not parties to the contract and making them parties. It is not necessary to go into whether the 1 AIR 1972 AP 178 10 Dr. VRKS, J S.A.No.1383 of 2017 executant‟s title is defective or whether the property belongs only to the partnership of which the executant is a partner. Hence, specific performance cannot be refused on the ground that the property belonged to the partnership".
10. It found no good reason for defendants not to have issued a reply notice. It observed that Ex.A.1-agreement for sale does not show that it is an ancestral property or that there are other sharers. It is for all those reasons, it concluded that all the findings of the trial Court were appropriate and found no reason to interfere with any of the findings. Saying so, it dismissed the first appeal and confirmed the judgment and decree passed by the trial Court in favour of the plaintiff. As against that, this second appeal would attempt to raise the following substantial questions of law:
i. Whether the oral evidence of Pws.1 to 3 admitting the relationship of Smt.Lakshmi Devi, the younger sister of 1 st appellant and his daughter Smt.Bharathi and their filing O.S.No.116/2011 on the fie of the Hon‟ble Senior Civil Judge, Penukonda, seeking partition and separate possession of the suit schedule properties against the parties to the suit under Appeal, including the respondent herein, claiming that the same are ancestral properties mean that they are entitled a share in it and whether it can be looked into/considered for decreeing the suit, if so then, what would be the effect of the said Judgment and Decree passed by the Courts below?11
Dr. VRKS, J S.A.No.1383 of 2017 ii. Whether the non-filing of documents showing that the schedule properties are ancestral properties as claimed by the younger sister of the 1st Appellant and his daughter by filing O.S.No.116/2011 on the file of the Hon‟ble Senior Civil Judge, Penukonda, seeking partition and separate possession against the parties to the suit under Appeal, including the respondent herein can be looked into, particularly overlooking the admissions made in respect of the aforesaid facts by Pws.1 to 3, if so what is the effect of the same on the Judgment and Decree of the Courts below?
iii. Whether the oral evidence of Dws.1 to 3 can be considered on the aspect of the suit schedule properties deposing that they are ancestral properties and the admission of filing O.S.No.116/2011 on the file of the Hon‟ble Senior Civil Judge, Penukonda, seeking partition and separate possession of the suit schedule properties and what is its effect for its non- consideration?
iv. Whether the Ex.A1 executed on inadequately stamped paper and unregistered can be admitted into evidence contrary to Sec.35 of Indian Stamp Act and Sec.49 of Indian Registration Act and can it be considered to decree the suit?
v. Both Courts ought to have seen that the evidence of Pws.2 to 4 are inconsistent with each other and whether the decree can be passed on the basis of inconsistent evidence available on record?
vi. Whether both Courts were right in concluding that the Ex.A1 stands proved?12
Dr. VRKS, J S.A.No.1383 of 2017 vii. Whether both courts were right in concluding that the plaintiffs were ready and willing to perform their part of obligation, though there is no evidence on record?
viii. Whether the non-issuance of reply to a legal notice can amount to acceptance of the contents of the legal notice issued by their Counsel?
ix. The other grounds will be urged at the time of hearing.
11. Learned counsel for respondent submits that all that is mentioned in the memorandum of grounds of appeal in the name of substantial questions of law are in fact mere questions of fact, which were concurrently decided by both the Courts below and therefore, this second appeal does not merit for consideration.
12. Before adverting to the questions raised and referred above, it is necessary to place on record the prayer of the appellants, who sought permission for production of additional evidence. The appellants filed I.A.No.2 of 2017 (S.A.M.P.No.2842 of 2017) under Order XLI Rule 27 read with Section 151 C.P.C. The appellants intend to file eight documents and pray the Court to mark them as Exs.B.1 to B.8.
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Dr. VRKS, J S.A.No.1383 of 2017 These documents are:
Sl.No. Exhibit Description of Document Date of Document 01 B1 Certified copy of the 1401 Fasali adangal/pahani partrika 1401 Fasali with translation (translated only marked enties) 02 B2 Certified copy of the Adangal / 1403 Fasali Pahani Partrika 1403 Fasali with translation (Translated only marked enties) 03 B3 Certified copy of the 1407 Fasali adangal/pahani partrika 1407 Fasali with translation (translated only marked enties) 04 B4 Certified copy of the 1993 adangal/pahani partrika 1993 with translation (translated only marked enties) 05 B5 A certified true copy of the Form -09-2017 I-B Proceedings, extract of re-
settlement registrar of Puleru Village, Hindupur Taluq, Ananthapur District, Andhra Pradesh with translation
06. B6 A Certified copy of the Plaint in 24-08-2011 O.S.No.116/2011.
07. B7 A Certified true copy of the 18-12-2012 written statement filed by Defendant No.1
08. B8 A Certified true copy of the 23-01-2017 Written Statement filed by Defendant No.4 14 Dr. VRKS, J S.A.No.1383 of 2017
13. The 1st appellant swore an affidavit in support of this application stating that as on the date of filing of the suit, the registration value of each acre of land was Rs.24,000/-, but the market value was more than Rs.1,20,000/-. It is also stated that Smt. Lakshmi Devi is his own sister and Smt. Bharathi is his own daughter and they filed O.S.No.116 of 2011 before learned Senior Civil Judge, Penukonda and sought for partition and separate possession of properties in which these appellants as well as the present respondent are parties. Since the contention of these appellants from the beginning is that the present litigation mentioned properties are ancestral properties and since they are joint family properties, the above mentioned documents are necessary to establish their case.
14. It is stated that these proposed documents were not filed either before the trial Court or before the first appellate Court and that happened out of inadvertence. Now on legal advice they intend to file these documents. The proposed documents would show that the properties are his ancestral properties.
15. Serious objection is raised by a counter affidavit filed by respondent stating that O.S.No.116 of 2011 is an event that took place subsequent to the suit for specific performance and it 15 Dr. VRKS, J S.A.No.1383 of 2017 has no bearing on the facts in this case. The value of the property claimed by the petitioners/appellants also has no bearing in this case. Additional evidence cannot be admitted except in circumstances which meet the mandate contained in Order XLI Rule 27 C.P.C. Without filing these documents either before the trial Court or before first appellate Court, the appellants have come up now with the prayer for additional evidence only to protract the litigation. The petition filed does not indicate any due diligence on their part and it does not indicate any valid reason for their failure to file the documents before the Courts below. For these reasons, respondent seeks to dismiss this petition.
16. Arguing on the aspect of production of additional evidence, both sides cited legal authorities. Section 107(d) and Order XLII Rule 1 and Order XLI Rule 27 C.P.C. provide for circumstances under which additional evidence could be received by a Court sitting in second appeal. The power of Court in receiving evidence is not the question here. The question here is whether in the case at hand the legal provisions governing the production of additional evidence in the second 16 Dr. VRKS, J S.A.No.1383 of 2017 appeal are available or not? It is apt to recapitulate what Order XLI Rule 27 C.P.C. mandates.
"27. Production of additional evidence in Appellate Court:-
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court, from whose decree the appeal is preferred, has refused to admit evidence which ought to have been admitted; or 1[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
17. Learned counsel for appellants, for the purpose of additional evidence cited Musunuri Satyanarayana v. 17
Dr. VRKS, J S.A.No.1383 of 2017 Gorijavolu Srinivasa Rao2. In that case, considering the facts and circumstances available therein, a learned judge of this Court while placing reliance on Chapala Chinnabbayi v. Naralasetti Anusuyama3 received additional evidence in second appeal. The principles on which the learned judge decided to take additional evidence is only based on Chapala Chinnabbayi‟s case (supra 3). That Chapala Chinnabbayi‟s case is a reference placed before learned Division Bench of this Court raising the following two questions for consideration:
(1) Whether additional documents throwing light by way of subsequent events can be brought on record in a second appeal, and if so what is the scope and ambit and the applicability of Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure in such a case?
(2) Whether the view expressed by the Division Bench of this Court in Anisetti Bhagyavathi v. Andaluri Satyanarayana and others, AIR 1992 AP 304 = 1992(1)ALT 455, can be extended to cases of bringing subsequent events to the notice of the High Court in second appeals?"2
2022 (4) ALT 442 (AP) 3 2006 (1) ALT 669 (D.B.) (AP) 18 Dr. VRKS, J S.A.No.1383 of 2017
18. After survey of entire law, the Division Bench at para No.34 answered them in the following terms:
"34. In the light of the above discussion, we hold that the High Court may permit a party to adduce additional evidence in second appeal under the following circumstances:
(1) Adducing additional evidence is in the interest of justice;
(2) Evidence relating to the subsequent happenings or events, which are relevant for disposal of the Second Appeal."
19. In the said decision, the learned Division Bench held that parties to the proceedings in a second appeal are not entitled as a matter of right to adduce additional evidence. In exceptional and compelling circumstances, the High Court may take the aid of Order XLII C.P.C. and permit adducing of additional evidence in the second appeal in the interest of justice (para No.33).
20. Learned counsel also cited Mahavir Singh v. Naresh Chandra4. Their Lordships of the Hon‟ble Supreme Court of India have held that additional evidence can be taken only when the conditions and limitations laid down in Section 107(d) and Order XLI Rule 27 C.P.C. are found to exist and the parties are 19 Dr. VRKS, J S.A.No.1383 of 2017 not entitled, as of right, to the admission of additional evidence. The matter is entirely in the discretion of the Court, which discretion is to be exercised judiciously and sparingly. In that case their Lordships observed that Order XLI Rule 27(b) C.P.C. uses the expression "to enable it to pronounce judgment". Explaining these words, their Lordships stated that where the Court finds such lacuna in the evidence disabling it from pronouncing its judgment then a case is said to have been made out for receiving additional evidence.
21. During the hearing of this second appeal, learned counsel for appellants also submits that in terms of Section 103 C.P.C. this Court sitting in second appeal is also entitled to determine any issue and facts necessary for disposal of the appeal. If the findings of the Courts below are perverse or there was misconstruction of evidence or there was misconstruction of documents or evidence was discarded on flimsy grounds, they also raise substantial questions of law. The above principles of law shall guide the decision in this case.
4 (2001) 1 SCC 309 20 Dr. VRKS, J S.A.No.1383 of 2017
22. In the earlier paragraphs, this Court has extracted the grounds raised in the appeal. A reading of them would show that the appellants have been agitating facts and evidence which they had agitated before both the Courts below about which necessary findings are available on record from the judgments of both the Courts below. Some of the grounds would indicate O.S.No.116 of 2011, the application for production of additional evidence is an effort to produce the pleadings of parties in that suit to be brought in here as additional evidence. The other documents in the additional evidence application are the documents to show that the properties are ancestral properties. The entire additional evidence material, which consists of various revenue records and the pleadings in O.S.No.116 of 2011 are intended to prove that Ex.A.1-agreement for sale is about ancestral properties and therefore, appellants by themselves cannot convey title to the respondent herein.
23. 1st appellant testified as DW.1 before the trial Court. He stated that this is ancestral property and undivided. Smt. M.Lakshmi Devi is his own sister and Smt. M.Bharathi is his daughter. According to him, they also have rights over the 21 Dr. VRKS, J S.A.No.1383 of 2017 property. The suit was laid in the year 2007 and was disposed of by the trial Court on 21.10.2011. For all those four years while the trial was pending, these appellants did not choose to examine any of the above two referred individuals to show that it is the ancestral property. They did not file any documents showing origination of the title to inform to the Court that they are not exclusive owners of this property. Through mouth of DW.1 it was elicited and Courts below looked into the contents of Ex.A.1 and recorded a finding that the contents of Ex.A.1 indicted that 1st defendant is the owner of these properties. Thus, Ex.A.1, which was executed by the defendants, does not contain any recital or does not show any hint that the executants were not the exclusive owners of the property that was bargained between parties. Ex.A.2 notice was sent by plaintiff and was received by defendants and that was admitted by them in their pleadings as well as in evidence. That notice was earlier to the suit. Defendants did not give a reply to the plaintiff stating that they could not convey the title because there was defect in the title as the executants of Ex.A.1 are only part owners and there are other share holders. It was in the above referred circumstances, the Courts below accepted the 22 Dr. VRKS, J S.A.No.1383 of 2017 evidence of PW.1 and contents of Ex.A.1 and held that property belonged to defendant No.1 and the theory ventilated by defendants that it was joint family property was not established. It is to circumvent that finding of both the Courts below, the additional evidence is sought to be adduced. All the contentions of the appellants including their prayer for additional evidence to bring such material on record are irrelevant for consideration. Learned first appellate Court stated the law from a judgment of this Court in Mir Abdul Hakeem Khan‟s case (supra 1). This Court stated that the law is well settled that if a person executes an agreement to sell property, the vendor is not entitled to put forward, in a suit for specific performance by the purchaser, the defence that the vendor had no title. It is open to the purchaser to set up a defence that the vendor had no title or has defective title in a suit for specific performance filed by the vendor. But the vendor cannot set up defect in his own title as a defence. It is also stated that the decree in a specific performance suit binds the interest of the parties to the agreement and not that of others. It is also held that in a suit for specific performance filed by intending purchasers, there is no legal necessity to determine the question of vendor‟s title. That being the law, 23 Dr. VRKS, J S.A.No.1383 of 2017 which was properly followed by the first appellate Court that has to be met by the appellants in this case. It has to be recorded here that the appellants did not even make an attempt to contradict the above law or the conclusions reached by the first appellate Court in following the above law. When the law is in the above manner, the appellants are now trying to bring in additional evidence in the form of revenue records and the suit for partition filed by their family members to show that it is joint family property which is something of an attempt to bring irrelevancy into the record. Moreover, the only ground urged for production of additional evidence is the earlier inadvertence of the appellants and now they say that they are advised by the counsel and therefore, they want additional evidence to be introduced. The said ground urged does not fall within any of the grounds mentioned in Order XLI Rule 27 C.P.C., which was already extracted in the earlier paragraphs of this judgment. Thus, both on facts and law, the application for additional evidence fails. Therefore, I.A.No.2 of 2017 is dismissed. As a consequence of it, point Nos.1 to 3 raised in the grounds are held without any merit for admitting this appeal. 24
Dr. VRKS, J S.A.No.1383 of 2017
24. One of the grounds urged is Ex.A.1-agreement for sale is made on inadequately stamped paper and it is unregistered and could not have been admitted in evidence as it violated Section 35 of the Indian Stamp Act and Section 49 of the Indian Registration Act. As I have gone through the judgments of both the Courts below, this point was never urged before the Courts below. Thus, for the first time it is urged. Learned counsel for appellants admits that while Ex.A.1 was sought to be exhibited in evidence by PW.1 these appellants and their counsel did not raise any objections about inadequacy of stamp. Record does not indicate anyone raising any question on the ground of inadequacy of stamp before the Courts below. It is a fact that Ex.A.1 was admitted into evidence. When once that happens Section 36 of the Indian Stamp Act, 1899 comes into operation stating that once an inadequately stamped document was admitted in evidence such admission shall not be called in question at any stage of the litigation. Therefore, the appellants now cannot question the validity of Ex.A.1. It has to be stated here that in fact during the hearing of this appeal no facts or law is argued for appellants concerning Ex.A.1 and stamp duty. Both sides state that Ex.A.1 is a non-possessory agreement for 25 Dr. VRKS, J S.A.No.1383 of 2017 sale. Both sides do admit that such document is not registered and it was marked in the suit for specific performance of that agreement for sale. Thus, proviso to Section 49 of the Registration Act, 1908 holds the field. As per that provision, a non-possessory unregistered agreement for sale is admissible in evidence in a suit for specific performance of such agreement for sale. Nothing contrary is brought to my notice by learned counsel for appellants. Therefore, the 4th ground alleged concerning Ex.A.1 has not raised any substantial question of law between parties.
25. Both the Courts below have recorded that evidence of PWs.2 to 4 is consistent. In the grounds of appeal, it is alleged that their evidence is inconsistent. That is a matter of fact and appreciation of evidence and does not call for any intervention. Therefore, point No.5 urged does not make the ground for admitting this appeal.
26. In this appeal, appellants contend that Ex.A.1 was not proved. It is already recorded by this Court in the earlier paragraphs by referring to evidence and the findings of the Courts below that by considering the evidence of PWs.1 to 4 both the Courts below held that execution of Ex.A.1 was proved. 26
Dr. VRKS, J S.A.No.1383 of 2017 The learned trial Court made some important observations, at page No.11 stating that the 1st appellant/defendant No.1/DW.1 subscribed his signature in Telugu language in a counter filed by him in I.A.No.149 of 2009 and he signed in English on the vakalat given by him to his advocate and then he signed in Telugu on his written statement. Thus, the 1st appellant has been signing in different languages. He did not explain why he was doing it so. It was in such circumstances and in the absence of any other signatures of him being produced and in the absence of any handwriting expert‟s opinion, the trial Court discarded his denial of signature on Ex.A.1 and held that by the evidence of PWs.1 to 4 execution of Ex.A.1 was proved. Thus, it is a pure question of fact that was decided on evidence by the Courts below. That is now questioned in this appeal and that question is raised without any basis and at any rate that question does not raise any questions of law. Therefore, point No.6 urged in the grounds of appeal does not entitle admission of this appeal.
27. As one could see from the record well within the time agreed for completion of the deal, which is mentioned in Ex.A.1- agreement for sale, the plaintiff had issued not one, but three 27 Dr. VRKS, J S.A.No.1383 of 2017 notices expressing his readiness and willingness to perform his part of the contract, namely, the payment of balance sale consideration and obtaining registration sale deed at his own expenses. This the plaintiff did by appropriate pleadings in the plaint and did the same in his evidence all throughout. Judgments of the Courts below do not indicate defendants therein/appellants herein questioning the readiness and willingness on part of the plaintiff. In those circumstances, both the Courts below took it that plaintiff has always been ready and willing to perform his part of the contract. Now that finding is questioned here. Learned counsel cited U.N.Krishna murthy v. A.M.Krishnamurthy5. That is a case where their Lordships have restated the law in a suit for specific performance of agreement for sale stating that the plaintiff has to prove that all along and till the final decision of the suit he was ready and willing to perform his part of the contract. He must adduce evidence to prove that aspect of the matter. Court has to come to a conclusion after considering all the circumstances including availability of funds with the plaintiff. It should see the letter and spirit of the concept of readiness 5 2022 SCC Online SC 840 28 Dr. VRKS, J S.A.No.1383 of 2017 and willingness as available or not? Their Lordships have also stated about the raising prices of real property while deciding a suit for specific performance.
28. Learned counsel for appellants also cited P.Daivasigamani v. S.Sambandan6. This is also a case concerning specific performance and at para Nos.19 and 20 the Hon‟ble Supreme Court of India has laid down the various principles, facts and circumstances that require for consideration in determining a litigation on that subject matter. Stating that relief of specific performance is a matter of discretion, the principles laid down therein should be followed to reach to appropriate decision.
29. About the cherished legal principles as available in the above precedent, there is absolutely no difference of opinion for anyone. However, what is available before this Court is to see whether the facts on record indicate whether the Courts below violated any of those norms and if so, whether such violation is a substantial question of law requiring admission of this appeal and hearing. The judgments of both the Courts below do not 6 2022 SCC Online SC 1391 29 Dr. VRKS, J S.A.No.1383 of 2017 indicate these appellants ever questioning or suspecting the readiness and willingness of the respondent herein. Record shows required pleadings are there with the plaintiff and sufficient evidence was laid and the Courts below felt reassured at the conduct of the plaintiff in issuing more than one notice expressing readiness and willingness well within the defined time lines contained in Ex.A.1-agreement for sale. Therefore, the arguments on readiness and willingness are arguments which are not based on any evidence and they do not raise any questions of law between the parties. On the other hand, the appellants herein, who did not respond to the notice, who by their pleadings showed their reluctance to fulfill the written obligation executed by them in Ex.A.1, should have followed what the Hon‟ble Supreme Court stated in the above referred P.Daivasigamani‟s case (supra 6). At para No.20, their Lordships were pleased to mention if the defendants/vendors wish to back out from the agreed terms they would be well advised to immediately and without delay write to the purchaser/plaintiff reneging the agreement to sell and enclose a cheque for the amount received. That offer to pay or payment of interest or damages would be an added factor as the intending 30 Dr. VRKS, J S.A.No.1383 of 2017 purchaser would then be entitled to look for another property. Instead of doing that, the appellants herein have been doing other thing. Therefore, point No.8 has not raised any substantial question of law.
30. By the pleadings on both sides and from the evidence, both the Courts below recorded these appellants received Ex.A.2-notice from the plaintiff earlier to the institution of the suit and they did not give reply. The reason mentioned in the written statement is the obstinate stand that Ex.A.1-agreement for sale is fabricated document. While considering several facts and circumstances, both the Courts below stated that all the contentions the defendants put forth in their pleadings by way of written statement, if really true, could have been disclosed by them by giving a reply notice. Since the defendants/appellants did not give reply notice, both the Courts below took the view that the contentions raised by the defendants were not truthful. Both the Courts below never said that failure to give reply notice amounts to admission of contents of written notice. In the memorandum of grounds of appeal, the ground urged is what was never recorded by the trial Court. While arguing the appeal, no submission is made as to what other conclusion 31 Dr. VRKS, J S.A.No.1383 of 2017 could be reasonably drawn when a party to the litigation failed to respond to a notice received prior to the receipt of suit summons. Therefore, the appellants have been urging abstractly without any basis. Therefore, point No.8 is incorrect and does not give raise to any question of law.
31. Learned counsel for appellants submits that the appendix of trial Court‟s judgment refers to Ex.A.2-notice with a date 30.02.2007. Learned counsel argued that in February there could be no 30th day and Ex.A.2 as available in the appendix of evidence as well as at one or two other places must be considered by this Court as a circumstance that the trial Court did not consider the material on record or in the alternative it considered material which is not available on record. As against this, learned counsel for respondent submits that the appellants have been making a mountain out of a mole hill. Instead of „13‟ the digits are printed as 30.02.2007 in the appendix of evidence and a typographical error does not give eligibility to pass through the legal mandate of Section 100 C.P.C.
32. I have gone through the entire judgment of the trial Court as well as that of the first appellate Court and for most part of it the trial Court mentioned the notice as 13.02.2007, but in the 32 Dr. VRKS, J S.A.No.1383 of 2017 subsequent paragraphs the same became 30.02.2007. The first appellate Court‟s judgment appropriately mentioned the correct date as 13.02.2007. The written statement of these appellants filed before the trial Court admits the receipt of notice dated 13.02.2007. All that makes it clear that there is typographical error, which remained uncorrected. Mere typographical errors, despite being argued with vehemence, cannot take the cause of appellants any further. Learned counsel for appellants submit that the plaint indicates about issuance of three notices, but only one notice was filed and other notices were not filed.
33. Learned counsel for respondent submits that even for one notice there is no reply and therefore, plaintiff thought of not filing the other notices. The argument of the learned counsel for the appellants is that non-filing of other notices should be a fact that is to be considered. Even if that contention is accepted that is only a fact to be considered and all those facts were already considered by both the Courts below and this Court does not require to consider that fact any more.
34. Learned counsel for appellants submits that during his evidence PW.1 stated that on verification of encumbrance certificate he was satisfied that the property belonged to 1st 33 Dr. VRKS, J S.A.No.1383 of 2017 defendant/1st appellant. Referring to that evidence, it is argued that such encumbrance certificate is not filed. That it is a fact borne out from the record. Record does not indicate these appellants filing any application before the trial Court demanding the respondent herein to produce that encumbrance certificate. They did not do it. If both parties felt that there was no use of having an encumbrance certificate in a suit for specific performance, now it cannot become a document of some crucial significance.
35. Learned counsel submits that trial Court‟s judgment indicates postal acknowledgments with reference to service of notice, but Exs.A.3 to A.5 are courier receipts. A perusal of appendix of evidence of trial Court‟s judgment shows that Ex.A.3 alone is courier receipt and Exs.A.4 and A.5 are two sets of postal acknowledgments. Thus, the argument goes against the record. Learned counsel for appellants submits that both the Courts below did not make any discussion about readiness and willingness on part of respondent/plaintiff. The reason for this seems to be the fact that the defendants/appellants never ever thought that plaintiff/respondent was not ready and willing at any point of time especially when notice after notices were 34 Dr. VRKS, J S.A.No.1383 of 2017 shot out by the plaintiff. Therefore, the Courts below in the given facts and circumstances found no dispute on that aspect and therefore, it had no occasion to make any lengthy discussion.
36. The upshot of the above discussion indicates that the appellants have not been able to show any substantial question of law arising between the parties for a decision of this Court. Concurrent findings of both the Courts below dealt with the matter in accordance with law.
37. In these circumstances, this Second Appeal is dismissed at the stage of admission with costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 24.11.2022 Ivd 35 Dr. VRKS, J S.A.No.1383 of 2017 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR SECOND APPEAL No.1383 of 2017 Date: 24.11.2022 Ivd