Andhra HC (Pre-Telangana)
G. Rosaiah vs C. Balarami Reddy And Anr. on 10 March, 1988
Equivalent citations: AIR1989AP179, AIR 1989 ANDHRA PRADESH 179
Author: K. Ramaswamy
Bench: K. Ramaswamy
JUDGMENT
1. Appellant is the first defendant. The suit of the first respondent-plaintiff (for short, "the respondent") for specific performance of the agreement Ex. A-1 dated May 1, 1977 for sale of the appellant's land of Ac. 3-55 cents was decreed by the trial Court and the appellant is assailing its legality.
2. The respondent avers in his plaint that the appellant's castemen in Gontlagunta village migrated to the neighbouring village Petluru and himself too, to migrate, had entered in Ex. B-1 agreement of even date viz., May 1, 1977, to purchase Ac. 3-26 cents of wet land belonging to Shaik Masthan, the second defendant. In turn, the appellant agreed to sell his land to him (respondent). He is already having his own land on three sides of the schedule land, except on East. Therefore, he agreed to purchase the land for a total consideration of Rs. 18,000/-. He paid a sum of Rs. 100/- on the date of agreement i.e., on May 1, 1977; another sum of Rs. 10,000/- to be paid on May 31, 1977 and the balance amount of Rs. 7,900/- on January 31, 1973 and on receipt thereof, the appellant is to execute the sale deed. In terms thereof, he was put in possession of the land on the same day. He has been in possession and enjoyment and he paid the amounts within the stipulated periods and he was always ready arid willing to take the sale deed. He also pleads tha't the appellant has taken possession of the second defendant's land by paying the consideration paid by him to the 2nd defendant. While he (respondent) has been in possession, in July 1973, his possession was attempted to be interfered by trespass. Therefore, Ex. A-5 notice dated August 14, 1975 was got issued calling upon the appellant to execute the sale deed and in reply thereto, the appellant under Ex. A-6 dated August 29. 1978, denied with false allegations of his liability to execute the sale deed. Thus he filed the suit. He produced Ex. A-2 (No. 2 Adangais) for Fasli 1387 (1977) and also the land revenue receipt Ex. A-4 dated July 5. 1978 in proof of his possession arid enjoyment thereof.
3. The appellant, while admitting his ownership to the land and execution of Ex. A-1, pleads that it is not an agreement to sell his land but an exchange of Ac. 6-00 of land in Petluru. He avers that the respondent is the owner and the 2nd defendant was in possession thereof on his behalf; he agreed for the exchange; when the recitals were read over, it was written as if it is an agreement of sale and objected to it, but the respondent has assured it fo be only an exchange; he believed the representation; next day when he contacted the village karnan he was informed that the land does not belong to the respondent; the second defendant had only Ac. 3-00 of assigned inalienable patta land and the remaining Ac. 2-83 cents is illegally occupied Government land. Thereon, he informed the respondent that he was not willing for the exchange and thereby he rescinded the contract; he has been continuing in possession of his lands and denied delivery of possession of the same to the respondent. When the respondent attempted to disturb his possession by tresppas into his land, he repelled the trespass; the respondent played fraud and misrepresentation that he is the owner of Ac. 6-00 of lands in Petleru and on the faith thereof, he entered into the agreement of exchange and it was not a sale agreement as contended by the respondent. These facts have been stated in his reply notice Ex. A-6. The respondent impleaded Shaik Masthan as pro forma second defendant with an averment that if any findings are given, they would be binding on him also and no relief is sought against him.
4. Along with the suit, the respondent filed an application for an ad interim injunction to restrain the appellant from interfering with his alleged possession. The appellant resisted the same. The Court below directed appointment of a Receiver to auction the leasehold rights; and the appellant became the highest bidder and remained in possession by depositing the leasehold amount every year. The respondent examined himself as P. W. 1, the 2nd defendant as P. W. 2, P. W. 2's wife as P. W. 7, P. W. 3 is the scribe and P. W. 4 is the attestor. P.Ws 5 and 6 are the alleged neighbours of the plaint schedule property. The appellant examined himself as D.W . 1 and examined D. W. 4, his wife and D. Ws 2, 3, 5 and 6, the neighbouring owners.
5. The trial Court framed an issue viz., whether the respondent is entitled to specific performance of Ex. A-1 agreement. It found that the appellant had executed the agreement Ex. A-1 and simultaneously Ex. B-1 was also executed by the 2nd defendant; the appellant delivered possession to the respondent; the respondent was in possession and the appellant received the entire consideration, accordingly, directed specific performance.
6. The learned Advocate General for the respondent has contended that the approach of this Court should be on broad spectrum not on mere inconsequential discrepancies as pointed out by the appellant's learned counsel. The appellant admits execution of Ex. A-1 in favour of the respondent and Ex. B-1 agreement by the 2nd defendant and his wife P. W. 7 in favour of the appellant; the consideration is the same for both the agreements; P. W. 3 scribed both the documents; P. W. 4 is the attestor of Ex. A-1. In terms, the balance consideration was paid the Chairman of the Commission. The Commission consisted of two more members, Justice M. Krishna Rao, a retired Judge of High Court of Andhra Pradesh, and Justice A. Gangadhara Rao, also a retired Judge of the High Court of Andhra Pradesh. Five specific matters were directed to be enquired into by the Commission. The constitution pf the Inquiry Commission was questioned by the petitioner in Writ Petition No. 11/85 filed in this Court. The challenge was based on mala fides attributed to the second respondent and bias attributed to Justice Krishna Iyer, Chairman of the Commission. It was contended that the object of constitution the Inquiry Commission was not for the purposes for which it was ostensibly constituted, but for the ulterior purpose of wreaking vengeance against the petitioner on account of the political rivalry. It was also contended that while the second respondent was out of office for one month in August/September. 1984, Justice Krishna Iyer made certain statements and had also addressed a letter to the Prime Minister of India supporting the case of respondent No. 2 and strongly canvassed for the ouster of the petitioner. In view of the same, the petitioner alleged that Justice Krishna Iyer was biased against him and the Commission of Inquiry headed by him would not render justice. The writ petition was disposed of by this Court on 26-11-85 and the matter was carried on in appeal to the Supreme Court by the State in Civil Appeal ' No. 44 of 1986. It is not necessary to go into the details of judgment of this Court as well as of the Supreme Court. Suffice it for the limited purpose of this writ petition to state that Justice Krishna Iyer resigned from his Office as Chairman of the Commission on 18-6-87, leaving the remaining two members constituting the Commission. Within the next few days. Justice Gengadhara Rao had also resigned from his office reducing the Commission to a one-Man Commission. The petitioner questioned the propriety of the inquiry being continued by the remaining members after the resignation of the Chairman, Justice Krishna Iyer, and for that purpose the petitioner filed W. P. bearing No. 1388/85 and 11106/87. The former writ petition became infructuous since Justice the subject-matter, but it is not necessary that it should be so described as to admit of no doubt what it is; for the identity of the actual thing, the thing described may be shown by extrinsic evidence. This flows from the very necessity of the case; for all actual things, except the contract itself, being outside of and beyond the contract, the connection between the words expressing the contract and things outside it must be established by something other then the contract itself that is, by extrinsic evidence." In the light of the above legal setting and from the facts there emerges a concluded contract and the identity and the total extent of the land to be sold for a total consideration has been mentioned. It is definite and specific. The identity of the lands with reference to survey numbers, etc. could be supplemented by evidence aliunde at a later date if there is any dispute in that regard. It is now well settled that the boundaries prevail over the extent and the land comprised of within the stated boundaries whether less or more is the subject of contract, Therefore, the omission to mention the survey numbers and the details whether it is wet or dry as now found from the evidence is not of material consequence. The contract does not get vitiated on that account.
9. Before considering the merits of the case, it is essential to dispose of the controversy regarding possession. The respondent claims that the appellant inducted him into possession of the schedule land on the date of the contract viz.. May 1, 1977 and he has been continuing in possession. On his own admission, he paid only Rs. 100/- as earnest amount on that date. It is also his admission that there is no recital regarding delivery of possession in Ex, A-1. He places reliance on the entry of his cultivating the land for one year in Ex. A-2 adangal and the receipt of his giving of land revenue under Ex. A-4. P. Ws. 5 and 6 are said to be the neighbouring owner; of the plaint schedule land. The witness may be proned to perjure but the circumstances will not. Therefore, let us track on the sure circumstantial evidence to reach satisfactory solution. The respondent avers in the plaint and states in his evidence as P. W. 1, that he owns land on the three sides of the schedule land except on the eastern side. P. W. 5 (the alleged neighbouring) owners does not give the survey number or the extent of his own land or their situation to the suit landsi He states that the respondent raised paddy, groundnuts and chillies in the schedule land. He admits that the appellant was raising crops therein. He states that the respondent's lands are situated on the northern side to the land of the appellant. Equally, P. W. 6 falls in line with P. W. 5. He could not give the extent of the land held by him and he says that the lands of the respondent are to the south of the appellant's land The respondent admits that he has lands are (sic) on all sides except on East. But the witnesses -- one says on North and another on South diametrically, opposite. These two witnesses appear to be self-serving planted witnesses and spoke without any compunction. Therefore, their evidence is palpably false and no credence can be given to their evidence. Then we have Ex. A-2, a certified copy of No. 10(1) account for the year 1977. In the relevant "Owner's column" respondent's name has been entered. Ex. A-4 is the receipt for the land revenue said to have been paid by him, but it was not signed by the village karnam though it contained the seal of the Tahsil Office. Neither the village karman nor any official from Taluk Office has been examined to prove its contents. The signature in English in Ex. A-4 at its bottom appears to be that of the counsel for the respondent as an authentication of the contents therein when filed into Court as I found in comparison with the similar signatures on other documents. It is the appellant's definite case in Ex. A-6 reply notice in the written statement and evidence as D. W. 1 that the respondent manoeuvred with the village officer and fabricated the records. Therefore the village Karnam ought to have been examined in proof of Ex. A-4 and the authenticity of the entries in Ex. A-2. In its absence, mere marking the documents do not establish proof of contents therein. Moreover, it is hard to believe that on payment of mere Rs. 100/- as earnest money, possession would be delivered on the same day. If really the parties intended to deliver possession under the contract on the same day as stated in Ex. A-5 notice thus: "In your turn, you put my client in possession of Ac. 3-50 cents immediately after the agreement of sale", nothing prevented them to expressly mention to be so in Ex. A-1. It has also not been expressly mentioned in Ex. A-5 that the appellant trespassed into the scheduled land. It is stated that he (appellant) "entertained an evil idea of obstructing" the enjoyment of the land. It would thereby mean that he had an intention but did not actually trespass into the land. In the ultimate para it is stated that the appellant should not cause obstruction to the possession and enjoyment of the land by the respondent. If that is so, the need to file an application for an injunction or for the appointment of a Receiver is self-serving one. Obviously the respondent was not in possession. Only under the guise of the order, he sought to get into possession of the land. That was prevented by the appellant, by bidding the leasehold rights at the auction conducted by the Receiver. Thus, it could be seen that there was an attempt made by the respondent to over-reach the appellant by clutching at the possession. Moreover, by agreement of sale, the vendee does not become the owner. He acquires title to the property only from the date of execution of the sale deed It is not the case that after the execution of Ex. A-1 there was a further agreement in regard to delivery of possession. Considered from this perspective, I find that the case of the respondent that he was inducted into possession immediately on execution of Ex. A-1 agreement is contrary to the terms of Ex. A-1 and is an innovation to butress the agreement. So I hold that he was not in possession, as a fact, of the plaint schedule lands.
10. The question then is whether the respondent is ready and willing to peform his part of the contract? As seen, the essential terms in Ex. A-1 are that the respondent paid a sum of Rs. 100/- as earnest money on May 1, 1977, Rs. 10,000/- was to be paid on May 31, 1977 and the balance of Rs. 7,900/- on January 31,1978. If the amount of Rs. 10,000/-is not paid on or before May 31, 1977, the contract stands cancelled; if the balance amount is not paid on or before January, 31, 1978, the amount so far paid stands forfeited. It is the respondent's positive case in his Ex. A-5 notice and in the plaint and in his evidence as P. W. 1, that he paid the balance consideration of Rs. 10,000/- on May 31, 1977 and Rs. 7,900/- on January 21, 1978. He is ready and willing to perform his part of the contract viz., to take the registered sale deed.
11. Section 16 of the Specific Relief Act (Act 47 of 1963), for short, "the Act", provides bar to relief. Specific performance of a contract cannot be enforced in favour of a person :
(a) & (b)... ... ...
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant."
Explanation (ii) to Section 16(c) provides :
"For the purposes of Clause (c) -- the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
Therefore, the plaintiff must aver and prove that he has performed or has always been ready and willing to perform his part of the essential terms of the contract or prevented to be performed or waived by the defendant. The question, therefore, is whether the respondent has performed his part of the contract? It is already noted the essential terms of the contract and his positive case is that he had already been paid Rs. 10,000/- on May 31, 1977 and the balance of Rs. 7,900/-on January 21, 1978. It is also his further case that these two payments were made in the presence of P. W. 2 (Shaik Masthan) with whom the appellant is claimed to have entered into another agreement (Ex. B-1) for the same amount. On receipt thereof, the appellant passed on the amount to P. W. 2 who in turn handed over to P. W. 7, his wife. P. W. 2 now admits in his chief-examination itself thus: ".....P. W. 1 came to my house and paid me Rs. 7,900/- stating that D-1 wanted him to pay that amount to him as D-1 could not come due to some personal work. The amount. was paid on behalf of D-1. D-1 was not present then." Thus, his positive case that he paid Rs; 7,900/- to the appellant and he in turn paid to P. W. 2 is obviously false. So his case that he performed his part of the contract to the above extent becomes false. It is not his case that the appellant authorised the respondent to make direct payment to P. W. 2. There is no endorsement of payment of Ex, A-1 to P. W. 2. The question then is whether the other part of the contract, viz., Rs. 10,000/- was paid on or before May 31, 1977. Admittedly, there is no endorsement on Ex. A-1 of the payment of Rs. 10,000/-either on May 31, 1977 or any other date on which he claims to have paid the amount. It is not his case that the appellant was called upon to produce Ex. A-1 for making an endorsement and he refused to do so on the dates alleged to have been paid. It is his case that he had two witnesses at the time of execution of Ex. A-1 viz., P, W. 4 and another. He is aware of the need for the presence of some witnesses to the transaction. There is a recital that Rs. 100/- was paid as earnest money in Ex. A-1. If that is so, one would legitimately and reasonably expect that an endorsement of payment of Rs. 10,000/- would be made on Ex. A-1 in the presence of witnesses, particularly when major part of the consideration ispaid. That is not his case. It is his case that the amount was paid to the appellant and the appellant in turn paid it to P. W. 2, that too in Venkatagiri. Nothing prevented the respondent to obtain a receipt from the appellant in token of receiving payment of Rs. 10,000/- countersigned by P. W. 2. When half of the consideration is paid under Ex. A-1, it is highly unlikely that he would have paid that amount without either an endrosement on Ex. A-1 or an independent receipt signed by the appellant and without being witnessed by any other independent witnesses. His case that he had confidence in the appellant appears to be self-serving one When he requires recital in Ex. A-1 for the payment of Rs. 100/- in the presence of two witnesses and the absence of endorsement or independent receipt when Rs. 10,000/- was paid goes a long way against the respondent. No doubt, nothing substantial was brought out to discredit the testimony of P. W. 2. But it must be looked from the circumstances obtainable in the case. Shaik Masthan is neither a necessary nor a proper party to the suit and his being impleaded as 2nd defendant is hit by misjoinder of parties. On the respondent's admission in the plaint, he solicited P. W. 2's presence. Obviously he was impleaded to support the respondent. In fact, he as P. W. 2 and his wife as P. W. 7 have supported the theory set up by the respondent.
12. At this juncture, it is relevant, though not necessary, to consider Ex. B-1. Ex. B-1 is claimed to have been written on the even date viz., May 1, 1977 by P. W. 3 the scribe. It is in the handwriting of P. W. 3. It is clear from the evidence that the second defendant has no title to the property. Then, where is the need for him to be a party to it? It is P. W. 7 that has got title to the extent of Ac. 3-26 cents and Ac. 2-72 cents is Government land and it was in his illegal occupation. P. W. 7 says that she was present inside the house when Ex, B-1 was entered into. Admittedly she did not put her thumb impression on Ex. B-1. It was P. W. 2 that signed it. P. W. 3 scribe says that P. W. 2 took it to his house for P. W. 7's signature. Why she did not sign it, was not explained. It was attested by one witness. It is now the case that P. W. 4 (Jayaramaih) was an attestor to Ex. A-1. Though to a naked eye his signature on Ex. A-1 appears to be with a different ink and appears to have been signed later, but whereas the signature of the scribe and another attestor Muthu Krishnaiah are made with the same ink and if really P. W. 4 was present at the time when Ex. A-1 was written and he signed it, one would expect that he would also have signed with the same pen. It is all unnecessary to go into that. But the most relevant factor is that when it is their case that at the same time Ex. B-1 was also being written. P. W. 4 was present one would expect that P. W. 4 would have signed Ex. B-1 as an attestor. There are no compelling reasons for P. W. 4 to go away while Ex. B-1 was being written. Ex. B-1 does not contain the date of its execution. If Exs. A-1 and B-1 were written at the same time and when Ex. A-t bears the date as May 1, 1977, one would expect the Ex. B-1 too must bear the same date. But admittedly it does not bear any date at all. Another attestor, viz., Muthu Krishnaiah, is common to both Ex.
A-1 and Ex. B-1, but for no reasons, he was kept back. It would mean that both the documents were not executed at, one and the same time or day as professed to be. P. W. 2 and P. W. 4 sail with P. W. 1. Thus, P. Ws. 2 and 4 are accommodating witnesses. Motive to give false evidence by P. W. 4 was suggested though denied. In view of the totality of facts and circumstances, it is highly unsafe to place reliance on the evdience of P. Ws. 2 and 4 and their evidence is rejected as unworthy of acceptance. P. W. 7 does not speak of payment by the respondent. The other attestor Muthu Krishnaiah signed the document in English, He appears to be a man well-versed with English. No reasons have been given for his non-examination.
13. Thus, we have only the solitary evidence of the respondent as P. W. 1 in proof of payment of Rs. 10,000/-. When his positive case in the plaint, Ex. A-5 notice and his evidence as P. W. 1 that he paid Rs. 7,900/-to the appellant and the appellant, in turn, paid the same to P. W. 2 is found to be false and when his evidence on possession also is disbelieved the question then is whether it is safe to believe his uncorroborated evidence of the payment of Rs. 10.000/- on May 31, 1977? In my view, after giving my deep and anxious consideration to the totality of the facts and circumstances, stated hereinbefore, it is highly unsafe to accept the allegation of payment of Rs. 10,000/- without independent corroboration and cannot be accepted. This part of the contract also falls to ground. Thus, there is no proof of his performance of the essential terms of the contract. In this view, it, is unnecessary to go into the case set up by the appellant or his evidence in this regard.
14. The question then is whether Ex. A-1 contract can be specifically enforced. In view of Section 16(c) and explanation (ii) thereof, it is mandatory that the respondent must aver and prove that he has performed and has always been ready and willing till the date of the decree to perform his essential terms of the contract. From the evidence and the nature of the defence, it cannot be inferred that the appellant had waived any of the essential terms of the contract. As seen, the respondent's positive case that he has already performed his part of the contract of payment of the entire consideration is now found to be false and is rejected. It is not his case either-in Ex. A-5 notice or in his plaint or in his evidence that if the Court conies to the conclusion that the payments made are found to be not accepted, yet he is stil! ready and willing to pay the consideration and he has the necessary capacity to raise the funds. In the absence of such a plea, the question is whether the Court can reconstruct the terms of the contract and direct payment of the amount as argued by the learned Advocate General. In C.C.C.A. No. 114/80 dated March 2, 1958, this Court has considered the scope of such an area of consideration and held that if the party takes a positive stand in the plaint, then he must succeed or fail on that positive stand, Where alternative plea is taken, then discretion is left to the Court to mould the relief basing on the facts of the case. If the positive case set up is found to be false, it must be construed that the party has come to Court with a false case. In that case, the positive case of performance was found to be false and was rejected and the suit was dismissed. It was upheld on appeal. The same ratio applies to the facts in this case. The positve case of the respondent has already been stated and it is found to be false, When such is the case, the question then arises in whether this Court could direct specific enforcement of the contract.
15. In Snell's Principles of Equity, 28th Edition (1932), at page 32, it is stated thus :
"He who comes into equity must come with clean hands.'' It is further stated that the plaintiff not only must be prepared now to do what is right and fair but also must show that his past record in the transaction is clean: for, he who has committed inequity shall not have equity. In Hanbury and Maudsley's "Modern Equity", Eleventh Edition, at page 66, it is stated that before specific performance can be decreed in his (plaintiffs) favour, he must show that he has performed all his own obligations under the contract or has tendered performance, or is ready and willing to perform them.
16. In a suit of specific performance under Section 16 of the Act, it is not obligatory to decree specific performance. It is always one of discretion. The discretion has to be exercised carefully with circumspection, on sound and reasonable grounds guided by judicial principles. An appeal is a continution of the suit. The appellate Court is free to consider the material on record afresh, always keeping in view the reasoning and the findings of the Court below, with an aided rider that the appellate Court is denied the opportunity to observe the demeanour of the witnesses which the trial Court has. The question, therefore, is whether the trial Court has considered the case and exercised its discretion on sound and judicial principles. I have carefully scanned the reasoning of the Court below and the evidence on record, and I am of the considered view that the Court below did not advert to the case in the proper perspective required. Thereby, it has comitted manifest error. The Court has first to consider whether the plaintiff has established the case. His conduct during, at and from the date of contract till date of suit bears great relevance. In a case of specific performance, it is for the plaintiff to establish that the covenants in the contract are clear, cogent and fair; that he is ready and has always been ready and willing to perform his essential terms of the contract from the date of contract till date of decree. He must come to the Court with clean hands. If his conduct is tainted with falsity of the case or unworthy of acceptance, equity denies him the relief. If he is entitled to the relief then it is the duty of the Court to consider the defence of the defendant. If the defence cuts at the case of the plaintiff, in that eventuality also specific performance could be denied. Unfortunately, the Court below did not keep in view these factors and considered the case in that perspective and thereby committed grievous error of law warranting interference. Accordingly, the decree of the Court below is set aside and the suit is dismissed. The appeal is accordingly allowed with costs throughout.