Andhra HC (Pre-Telangana)
Challa Chinababu And Anr. vs Kovila China Suryanarayana And Ors. on 4 July, 2007
Equivalent citations: 2008(1)ALD78, 2008(1)ALT515
JUDGMENT P.S. Narayana, J.
1. The second appeal was admitted on substantial questions of law raised in grounds 1 to 9 by order dated 9.10.1998. However, the learned Counsel representing appellants had pointed out to ground No. 6 in particular, which reads as hereunder:
Whether the Courts below are right and justified in holding the suit to be maintainable when Section 53-A of the T.P. Act can be used as a shield but not as a sword?
2. The learned Counsel also placed strong reliance on the decision of this Court in Mohd, Jahangir v. Mallikharjuna Co-op. Housing Society Ltd. Rep. by its Secretary G. Sambasiva Rao , and also the decision of the Apex Court in Patel Natvarlal Rupji v. Shri Kondh Group Kheti Vishayak Mandli and Anr. 1996 (3) CLJ 510 (SC). Incidentally, the Counsel also pointed out to certain factual controversies and would maintain that in the light of the facts and circumstances of the case, the concurrent findings recorded by both the Courts below being unsustainable, the second appeal to be allowed.
3. Per contra, Sri M.V. Suresh, the Counsel representing respondents-plaintiffs would maintain that at no point of time, this objection had been taken and had this objection been taken at the earliest point of time before the Court of first instance, respondents-plaintiffs would have chosen to institute an appropriate suit claiming the relief of specific performance also and having delayed the matter for substantially a long time permitting the appellants to put forth such contentions at the stage of second appeal would not be just and proper. The Counsel also would maintain that even otherwise the factum of possession being the predominant consideration to be considered in a suit for mere injunction and since such possession not to be disturbed except in accordance with law, the possession of the plaintiffs to be protected atleast to the said limited extent unless and otherwise the possession is disturbed in accordance with law.
Heard the Counsel on record, mused the oral and documentary evidence available on record and also the findings recorded by both the Courts below.
4. The parties hereinafter, for the purpose of convenience, would be referred to as plaintiffs and defendants as shown in O.S. No. 66 of 1991 on the file of Principal District Munsif, Chodavaram.
5. The first plaintiff died and plaintiffs 2 to 8 were brought on record as the legal representatives of the deceased first plaintiff, by the order dated 21.1.1994 LA. No. 993 of 1993. The plaintiffs instituted the suit for the relief of perpetual injunction restraining the defendants, their men, agents and servants in anyway interfering with the peaceful possession and enjoyment of the plaint schedule lands by the plaintiffs and for costs of the suit. Though, originally, the first plaintiff instituted the suit, plaintiffs 2 to 8 were added as legal representatives as already specified supra.
6. The averments made in the plaint are as hereunder:
It was also pleaded that first plaintiff purchased the suit schedule land under an agreement of sale dated 23.11.1994, for a valuable consideration of Rs. 5,500/- from one Chinthala Satyanarayana and obtained the delivery of suit schedule property immediately thereof. Ever since he has been in continuous possession and enjoyment of the same, to the knowledge of one and all including defendants. The revenue authorities are collecting the land revenue and his name was also entered in the No. 2 account. After the sale agreement, plaintiff was ready to get the registered sale deed and requested the Chinthala Satyanarayana, several times but the vendor of plaintiff was postponing the same pretext or other subsequently plaintiff went away to Godavari district leaving his wife and children plaintiff is protected under law as per Section 53 of T.P. Act. Plaintiff raised groundnut, red gram, gingeli in item-1 and ratoon sugar cane in item 2 of plaint schedule. Due to the political differences the defendants are causing obstruction to the plaintiff to enjoy the suit schedule properties and are trying to create some documents. While so, on 16.7.1991 and 17.7.1991 plaintiff and his people were attending agricultural operations in item-1 of plaint schedule, defendants highhandedly caused obstruction and threatened them. Subsequently they are proclaiming in the village that they will dispossess the plaintiffs from the suit schedule.
7. The first defendant filed written statement denying the averments and further it was pleaded that the defendants had purchased the plaint schedule property for a valuable consideration of Rs. 6600/-without the notice of any sale agreement in favour of the plaintiff. It was also pleaded that the plaintiff was never in possession of the schedule lands to the knowledge of the defendants and the defendants' father was in possession and enjoyment till the date of the sale deed in favour of the defendants. The vendor of the defendants might have created the said agreement with an ulterior motive to defeat the rights of the defendants. It was also pleaded that the agreement is not valid and binding on the plaintiffs and hence the suit is liable to be dismissed.
8. Defendant No. 2 adopted the written statement of D1. After the plaint was amended an additional written statement was filed.
9. On the strength of the pleadings of the parties, the following issues were settled by the trial Court:
1. Whether the plaintiff is in possession and enjoyment of the plaint schedule lands by the date of the suit?
2. Whether the sale agreement dated 23.11.1984 is true, valid and binding on the defendants?
3. Whether the defendants are bona fide purchasers?
4. Whether the plaintiff is entitled for injunction as prayed for?
5. To what relief?
Subsequent thereto after amending the plaint and the filing of the additional written statement, an additional issue was framed:
1. Whether the newly added defendant had any survivent interest in the subject-matter of suit?
10. The second plaintiff examined himself as PW1, and PW2 and PW3 also were examined. Exs. A1 to A4 were marked. The first defendant examined himself as DW1 and also further examined DW2 and Ex. B1 the registered sale deed dated 28.5.1991 was marked.
11. The trial Court on appreciation of evidence available on record came to the conclusion that by virtue of Ex. A1 agreement of sale, dated 23.11.1984, the plaintiffs have been in possession of the property and the said possession can be protected under Section 53-A of the Transfer of Property Act, 1882 and a suit for injunction can be maintained to protect such possession by virtue of agreement of sale Ex. A1 and accordingly decreed the suit.
12. Aggrieved by the same, the matter was carried by way of appeal A.S. No. 19 of 1996 on the file of Senior Civil Judge, Chodavaram. The appellate Court at Para 11 framed the following points for consideration:
1. Whether the suit filed for perpetual injunction simplicitor without a prayer for specific performance of the contract for sale is not maintainable under law?
2. Whether the respondents/plaintiffs proved their possession of the suit lands as on the date of the suit?
3. Whether the decree and judgment of the trial Court granting the relief of permanent injunction to the respondents/plaintiffs is sustainable?
4. To what relief?
13. The appellate Court further discussed the oral and documentary evidence available on record commencing from Paras 12 to 26 and ultimately came to the conclusion that the appeal to be dismissed with costs throughout confirming the decree and judgment of the learned Principal District Munsif, Chodavaram. Aggrieved by the same, the present second appeal is preferred by the appellants-defendants.
14. There is evidence of PW1, the second plaintiff and PWs.2 and 3 supporting the version of PW1 and the evidence of first defendant as DW1, which is well supported by DW2. Ex. A1 is the unregistered agreement of sale for Rs. 5,500/- executed in favour of Kovela China Sutyanarayana by Chinthala Satyanarayana. Exs. A2 and A3 are the land revenue receipts. Ex. A4 is the No. 2 adangal for Faslies 1391, 1398 and 1399 issued by Village Assistant of China Appannapalem. As against this evidence, Ex. B1 the registered sale deed dated 28.5.1991 .was marked.
15. The oral and documentary evidence had been appreciated at length by the Court of first instance and also the appellate Court and findings had been recorded that inasmuch as the plaintiffs were put in possession by virtue of Ex. A1 the agreement of sale dated 23.11.1984, they are entitled to protect such possession by virtue of Section 53-A of the Transfer of Property Act, 1882 and, accordingly, decreed the suit.
16. On a careful consideration of the evidence of PWs. 1 to 3 and also the averments in the plaint, it is not clear whether the total consideration of Rs. 5,500/- under the agreement of sale dated 23.11.1984 is paid or not. PW1 no doubt deposed the facts which had been narrated in the plaint. PW2 deposed that he is having land by the side of the suit land and further deposed about the possession and enjoyment. PW3 also deposed that he is the scribe of the document and the land was delivered to the original plaintiff.
17. Ex. B1 is the sale deed and DW1 deposed the details relating to the sale transaction. The evidence of DW1 is well supported by the evidence of DW2. Certain suggestions put to this witness no doubt had been denied.
18. In the light of the oral and documentary evidence available on record and the findings recorded by the Court of first instance and also the appellate Court, it is clear that except the evidence of PW1, there is no other clear evidence relating to whether the total consideration had been paid under the agreement of sale and whether delivery of possession in part performance thereof had been effected. It is no doubt true that the recitals of Ex. A1 would go to show the receipt of the sale consideration. However, it is not in serious controversy or dispute that a suit for mere perpetual injunction had been thought of and no suit for specific performance as such had been instituted. It is also needless to say that in a suit for specific performance, the readiness and willingness to perform a part of contract may have to be gone into. No doubt, Sri Suresh, the learned Counsel pointed that in the light of recitals of Ex. A1 nothing more to be performed except the registration of the sale deed and hence the Counsel would submit that the decisions cited are distinguishable. It is also pertinent to note that the specific stand taken by the plaintiffs is that the first plaintiff purchased the plaint schedule property by virtue of an agreement of sale dated, 23.11.1984, Ex. A1, for proper and valid consideration from one Chintala Satyanarayana and the first plaintiff also obtained delivery of possession of the plaint schedule property immediately in pursuance thereof. The said Chintala Satyanarayana was not shown as party and it is needless to say that the validity or otherwise of the agreement of sale in question, Ex. A1, cannot be properly and effectively decided in the absence of such a party and for reasons best known the suit was instituted as against the defendants only, the purchasers of the said property under Ex. B1 registered sale deed dated 28.5.1991. The learned Counsel also placed reliance on certain decisions and in the decision in one supra, it was held that in order to protect possession under Section 53-A of the Transfer of Property Act, it is necessary that terms of contract should be certain and a permanent injunction can be asked for where a legally enforceable 'obligation' exists in favour of the plaintiff in respect of possession which is sought to be protected. It was also held by the learned Judge that the relief of injunction is an equitable relief and it cannot be granted when the plaintiff has not shown his readiness and willingness to perform his part of the contract by seeking specific performance of agreement of sale. Yet another decision was relied in Patel Natvarlal Rupji v. Shri Kondh Group Kheti Vishayak Mandli and Anr. (supra), whereunder the Apex Court while dealing with the doctrine of part performance as envisaged by Section 53-A of the Transfer of Property Act, 1882 held that this is only as a defence and does not give him a right to claim title and on the other hand, it imposes a statutory bar on transfer or to seek possession of property from transferee and mere contract for sale of property does not create any title except when sale is executed and registered. In the instance case, agreement was found to be a sham transaction and hence the benefit under Section 53-A of the Transfer of Property Act is not available. It is needless to say that even in a suit for perpetual injunction the question of title may have to be incidentally gone into and it is needless to say that in a suit for perpetual injunction based on mere agreement of sale, it cannot be said that the plaintiff has a right to claim any title whatsoever unless a regular document is obtained in the light of the limited scope and ambit of the applicability of the doctrine of part performance and also in the light of the decisions specified above, this Court is left with no other option except to disturb the findings which had been recorded both by the Court of first instance and also the appellate Court.
19. Accordingly, the second appeal is hereby allowed. However, in the peculiar facts and circumstances, the parties to bear their own costs.