Andhra Pradesh High Court - Amravati
V.Udayabhaskar 4 Others vs M.Obul Reddy Another on 15 October, 2024
APHC010411071999
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY ,THE FIFTEENTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 872/1999
Between:
1. V.UDAYABHASKAR & 4 OTHERS, S/O GOPALAKRISHNAYYA, R/O
RANGARAJAPURAM, NELLORE.
2. B. DEVAKI,, D/O GOPALAKRISHNAYYA, R/O RAMAMANDIRAM ST.,
TENALI.
3. A. KANYAKUMARI,, D/O GOPALAKRISHNAYYA, R/O
RAMAMANDIRAM ST., TENALI.
4. N. AMRUTHAVALLI,, D/O GOPALAKRISHNAYYA, R/O
RAMAMANDIRAM ST., TENALI.
5. B. VANI,, D/O GOPALAKRISHNAYYA, R/O PANDARIPURAM,
CHILAKALURIPETA, GUNTUR DIST.
...APPELLANT(S)
AND
1. M OBUL REDDY ANOTHER, S/O OBUL REDDY, SIDDARTHA
LODGE, ATTITHOTA AGRAHARAM TRUNK ROAD, NELLORE.
2. V CHIRANJEEVI DIED, S/O GOPALA KRISHNAYYA, R/O
RANGARAJAPURAM, NELLORE DISTRICT. (R-2 DIED AND NO
OTHER LEGAL REPRESENTATIVES NEED BE BROUGHT ON
RECORD AS PER COURT ORDER DT. 23-3-2007 IN ASMP.504/07
...RESPONDENT(S):
appeal against the decree & judgment of the Subordinate Judge, Nellore
passed in OP No.173/90, dt.29-10-97
IA NO: 1 OF 1999(CMP 6865 OF 1999
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
IA NO: 2 OF 1999(CMP 6866 OF 1999
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
send the Ex. A1 agreement of sale dt.5.1.90 executed by V. Venkata
Subbamma to an expert pending final disposal of AS
IA NO: 1 OF 2000(CMP 8964 OF 2000
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
vacate the stay granted in CMP No.6865/99 in AS No.872/99 dt.22-3-99
IA NO: 2 OF 2000(CMP 19819 OF 2000
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
extend the time of comply with the direction given by this Hon'ble Court on
12.6.2000 in CMP No.68651/2000 in AS No.872/99
IA NO: 1 OF 2007(ASMP 504 OF 2007
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
To record that no other legal representative need be brought on record to
represent the estate of the deceased 2nd respondent viz V. Chiranjeevi.
IA NO: 1 OF 2017(ASMP 17449 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
Set aside the order dated 08-12-2017 passed in AS No. 872 of 1999 and
restore thee AS on its original file
IA NO: 1 OF 2018
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
Counsel for the Appellant(S):
1. V S R ANJANEYALU
Counsel for the Respondent(S):
1. P GANGA RAMI REDDY
The Court made the following:
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.872 OF 1999
AND
CMP No.6866/1999 in A.S.No.872/1999
JUDGMENT:-
This Appeal, under Section 96 of the Code of Civil Procedure [for short „the C.P.C.‟], is filed by the Appellants/Defendant Nos.3 to 7, challenging the decree and Judgment, dated 29.10.1997 in O.S.No.173 of 1990 passed by the learned Subordinate Judge, Nellore [for short „the Trial Court‟]. The Respondent No.1 herein is the plaintiff and appellants here are the defendant Nos.3 to 7 in the said suit. The respondent No.2 i.e., defendant No.2 died during the pendency of appeal, his legal representatives are already on record as appellants.
2. The respondent No.1/plaintiff filed the suit for specific performance of agreement of sale, dated 05.01.1990 and for a direction to the defendants to execute a registered sale deed in his favour.
3. Both the parties in this appeal will be referred to as they are arrayed before the Trial Court.
4. The brief averments in the plaint in O.S. No.173 of 1990 are as under:
(i) The plaint schedule property belongs to the 1st defendant and she is the owner of the same. The 1st defendant gave the schedule property on lease to the father of plaintiff on 02.08.1984 under a lease deed. Since then, the father of plaintiff and plaintiff have been in possession and enjoyment of the plaint schedule property and running a lodge therein under the name and style of "Siddartha Lodge". As per the lease agreement the 1st defendant received a sum of Rs.40,000/- as advance at the time of lease and also borrowed Rs.30,000/- with interest at 18% per annum from the father of the plaintiff on 02.08.1984. The rent for the plaint schedule premises was Rs.1,100/- per month.
(ii) It is averred in the plaint that the 1st defendant offered to sell away the plaint schedule property to the plaintiff and the plaintiff accepted for the same. The price of the plaint schedule property was determined at Rs.1,85,000/-. The 1st defendant after deducting the advance amount of Rs.40,000/- and the amount borrowed with interest from 02.08.1984 to 05.01.1999 at 18% per annum which comes to Rs.59,250/- aggregating both the amounts to Rs.99,250/- and received balance amount of Rs.85,750/- from the plaintiff and executed an agreement of sale in a ten rupees stamp paper on 05.01.1990. Thus, the plaintiff paid full consideration amount. Already the possession of the schedule property was delivered to the plaintiff on 02.08.1984 from the 1st defendant. As per the conditions stipulated in the agreement of sale, the 1st defendant shall register the plaint schedule property either to the plaintiff or his nominee as demanded by him. Several times the plaintiff demanded the 1st defendant to execute a registered sale deed but she was evading. The plaintiff was always ready and willing to perform his part of contract. The 1st defendant in spite of receiving full sale consideration demanded the plaintiff to pay some more amount for registration. The plaintiff refused to pay the same. The 1st defendant is trying to alienate the plaint schedule property to some others. Hence, the suit.
5. The brief averments in the written statement filed by the defendant No.1 as follows:
(i) The suit is neither just nor sustainable at law. She admits that this defendant leased out the plaint schedule property and the articles mentioned in the lease agreement to the father of the plaintiff on 02.08.1984 on a monthly rent of Rs.1,100/- and executed a lease agreement on the said date by receiving Rs.40,000/- as advance from the plaintiff‟s father. She further admits that she barrowed Rs.30,000/- from the father of the plaintiff on 02.08.1984.
She further admits that a lodge by name Siddartha Lodge was being run by the father of the plaintiff in the schedule premises.
(ii) She contends that without the consent of the 1st defendant, the plaintiff‟s father and the plaintiff removed 8 Teak Beems from the schedule building, each beem costing not less than Rs.10,000/- and sold them away. Plaintiff‟s father failed to pay the rent for the schedule premises from July, 1990 in spite of repeated demands. He was not paying the entire monthly rent at one time. He was paying the same in several installments and the said rent is in arrears.
(iii) She denied that the 1st defendant sold the schedule property for Rs.1,85,000/- and executed suit agreement of sale on 05.01.1990. The value of schedule property is more than Rs.8,00,000/-. It is unimaginable that 1st defendant agreed to sell the same for Rs.1,85,000/- only. The 1st defendant never agreed to sell the plaint schedule property to the plaintiff. She did not execute the agreement of sale either on 05.01.1990 or on any date. She did not receive Rs.85,750/- from the plaintiff. The suit agreement is a fabricated document. A few days prior to 02.08.1990 the plaintiff came to this defendant and wanted her to sign the lease agreement extending the lease period by another three years, but she did not oblige the same. As the 1st defendant did not intend to extend lease period further, she asked the plaintiff to vacate the premises and deliver the articles. She agreed to pay back the advance amount of Rs.40,000/- and also the amount of Rs.30,000/- borrowed with interest. Thereupon, the plaintiff asked this defendant to sell the property for which she did not agree. The plaintiff aggrieved by the same fabricated the suit agreement with the assistance of his men and friends and also partisans taking advantage of the death of the husband of this defendant recently and also to cause wrongful gain to him. This defendant is not liable to execute the sale deed and the suit is liable to be dismissed with costs.
6. During pendency of the suit and after giving evidence, the 1st defendant died and Defendant Nos.2 to 7, who are legal representatives of deceased 1st defendant, were brought on record.
7. The 2nd defendant remained exparte. The defendant Nos.3 to 7 filed memo adopting the written statement of 1st defendant.
8. Based on the above pleadings, the Trial Court framed the following issues:
(i) Whether the defendant (D.1) executed an agreement of sale on 05.01.1990 in favour of the plaintiff in respect of plaint?
(ii) Whether the agreement of sale is a fabricated one or genuine one?
(iii) Whether the plaintiff is entitled for specific performance to get register the plaint schedule property by the defendants?
(iv) To what relief?
9. During the course of trial in the Trial Court, on behalf of the Plaintiff, PW1 to PW4 were examined and Ex.A1 and Ex.A82 were marked. On behalf of the Defendants, 1st defendant herself examined as DW1 but no documents were marked.
10. After completion of the trial and on hearing the arguments of both sides, the Trial Court decreed the suit with costs vide its judgment, dated 29.10.1997, against which the present appeal is preferred by the appellants/defendants in the suit questioning the Decree and Judgment passed by the Trial Court.
11. Heard V.S.R. Anjaneyulu, learned senior counsel for the appellants and Sri P. Ganga Rami Reddy, learned counsel for the respondent No.1/plaintiff.
12. Learned senior counsel for the appellants would contend that the decree and judgment passed by the Trial Court is contrary to law and the whole approach of the Trial Court in recording the finding that Ex.A.1 agreement of sale allegedly executed by late Vangara Venkata Subbamma i.e., the 1st defendant on receipt of an amount of Rs.85,000/- and odd towards sale consideration is without considering the material available on record in proper perspective manner and as such the said finding of the Trial Court is liable to be set aside. He would further contend that the Trial Court came to a wrong conclusion that the disputed signature in Ex.A.1 is identical with the admitted signatures of late Vangara Venkata Subbamma in Exs.A.5 to Ex.A.69 and that the appeal may be allowed and the decree and judgment passed by the Trial Court is liable to set aside.
13. Per contra, learned counsel for the respondent No.1/plaintiff would contend that on appreciation of the entire evidence on record, the Trial Court rightly decreed the suit and that the appeal may be dismissed by confirming the decree and judgment passed by the Trial Court.
14. Now the points that arise for determination are as follows:
1. Whether the suit agreement of sale, dated 05.01.1990 is true, valid and binding on the defendants?
2. Whether the plaintiff/respondent is entitled the relief of specific performance of agreement of sale, dated 05.01.1990?
3. Whether the Trial Court is justified in decreeing the suit by granting relief of specific performance of agreement of sale?
Point No.1 and 2:
15. The case of the plaintiff is that himself and his father have been running a Lodge in the suit schedule premises since, 1984, having taken the same on lease, subsequently, he purchased the same for Rs.1,85,000/- from the 1st defendant under an agreement of sale, dated 05.01.1990. The plaintiff further pleaded that though he paid the entire sale consideration and has been demanding the 1st defendant to execute a regular registered sale deed, she has been postponing the same and therefore the plaintiff is entitled for specific performance of agreement of sale. The contention of the appellants/ defendants is that the alleged agreement of sale is a forged one and 1st defendant pleaded in the written statement itself that the agreement of sale is a forged document. Therefore, the burden is on the plaintiff to prove Ex.A.1, agreement of sale, by producing oral and documentary evidence.
16. The legal position in this regard is no more res integra. The law is well settled that the grant of decree of specific performance of agreement of sale is not an automatic and it is a discretionary relief, the same is required to be exercised judiciously sound and reasonably.
17. The case of the plaintiff is that the suit schedule property belongs to 1st defendant. The 1st defendant also admitted in her evidence as D.W.1 that she is the owner of the suit schedule property. The plaintiff deposed in his evidence that his father has taken the schedule premises by way of lease in the year 1984 and 1st defendant executed a lease agreement for three years and they agreed to pay monthly rent of Rs.3,000/- for the premises and Rs.8,000/- for the furniture and they paid Rs.40,000/- towards advance amount and 1st defendant borrowed a sum of Rs.30,000/- with interest at 18% per annum. The same is admitted by the 1st defendant in her evidence as D.W.1 itself. P.W.1 also deposed in his evidence that the 1st defendant permitted them to make constructions in the schedule premises and there is 14 ankanams wall and got it separated by constructing a wall and they also constructed structures and they raised rooms with asbestos sheets by constructing 1st floor. The same is admitted by the 1st defendant in her evidence as D.W.1. The case of the plaintiff is that for remodeling the schedule premises, they spent Rs.2,50,000/- for the constructions, the 1st defendant also not denied the same.
18. P.W.1 deposed in his evidence that he is continuing his business in the plaint schedule property since 1984 and the same is also not at all disputed by the 1st defendant. P.W.1 stated that the 1st defendant agreed to sell the schedule property and he agreed to purchase the same and they entered into agreement on 05.01.1990 under Ex.A.1 agreement of sale and the total sale consideration is Rs.1,85,000/- and after deducting the advance amount of Rs.40,000/- taken by the 1st defendant and the amount of Rs.30,000/- borrowed by the 1st defendant and after deducting the interest of Rs.29,250/- on Rs.30,000/-, the plaintiff paid an amount of Rs.85,750/- to the 1st defendant on 05.01.1990 i.e., on the date of agreement of sale itself. The recitals in Ex.A.1 also support the same. The 1st defendant pleaded in written statement itself that Ex.A.1, agreement of sale, is a forged document. Therefore, the burden is on the plaintiff to prove Ex.A.1, agreement of sale, by producing oral and documentary evidence. Ex.A.1 is a crucial document based on which the suit for specific performance of agreement of sale is filed by the plaintiff and as per Ex.A.1 in the presence of two attestors and scribe, the 1 st defendant executed Ex.A.1, agreement of sale, by admitting the recitals in Ex.A.1.
19. P.W.2 is one of the attestors in Ex.A.1 agreement of sale. As per his evidence, the agreement was entered on 05.01.1990 by the plaintiff and the 1st defendant, the 1st defendant executed a sale agreement and it was scribed by P.W.4 and he attested on Ex.A.1 and P.W.3 is another attestor and the 1st defendant received consideration of Rs.85,000/- and odd under Ex.A.1 and the total sale consideration is Rs.1,85,000/- and it was recited in Ex.A.1 by deducting Rs.40,000/- advance amount and Rs.30,000/- towards borrowing amount by the 1st defendant and interest of Rs.29,250/- on Rs.30,000/-, P.W.1 paid the remaining sale consideration of Rs.85,000/- and odd to the 1st defendant.
20. P.W.3 also deposed on the same lines as stated by P.W.2. His evidence also shows about the execution of Ex.A.1, agreement of sale, by the 1st defendant in favour of the plaintiff in the presence of himself and another attestor and scribe and as per his evidence, the 1st defendant received sale consideration in their presence and he signed on Ex.A.1 in their presence.
21. P.W.4, the scribe of Ex.A.1, also supports the evidence of P.W.2 and P.W.3. As per his evidence, on the date of agreement, an amount of Rs.85,750/- was paid to the 1st defendant and the balance was already paid to the 1st defendant prior to the agreement and Ex.A.1 contains the signatures of the 1st defendant on each page. P.W.2 and P.W.3 are attestors in Ex.A.1 agreement of sale.
22. The evidence of P.W.2 to P.W.4 clinchingly proves about the execution of Ex.A.1, agreement of sale, by the 1st defendant in favour of the plaintiff. In cross examination nothing was elicited from P.W.2 to P.W.4 to discredit their testimony. It is not the case of the 1st defendant that she is having enmity with P.W.2 to P.W.4, due to that they deposed falsehood against her. The evidence of P.W.2 to P.W.4 is consistent and cogent with regard to the payment of consideration under Ex.A.1 and execution of Ex.A.1 agreement of sale. The plaintiff discharged his burden by examining two attestors and scribe of Ex.A.1 as P.W.2 to P.W.4. It is the specific case of the 1 st defendant that she leased out the plaint schedule property to the father of plaintiff and plaintiff and his father are running the lodge from the date of lease and she received Rs.40,000/- towards advance amount and she borrowed Rs.30,000/- with interest at 18% per annum. In cross examination the 1st defendant as D.W.1 admits that after taking the building on lease, the plaintiff converted the main hall into rooms with wooden frames and executed an agreement authorizing the plaintiff to convert the main hall into rooms with wooden frames for the purpose of running the lodge and she signed in the lease agreement and she is the owner of the suit premises and not her husband. In her evidence, she further admits the plaintiff asked them to bear 1/3rd of the expenditure for the constructions made by him and the plaintiff replaces the flooring with polished slabs. She further admits no further lease agreement was written in the year 1987 and they continued in the possession as tenants. She further admits that in the lease agreement there is a recital that she is willing to bear 1/3rd expenses incurred for repairs and the plaintiff was sending rents to her from 02.09.1984 to 02.01.1989 and she is receiving rents payable per month in a succeeding month. She further admits the signatures shown on Ex.A.5 to Ex.A.65 belong to her and she issued the said receipts. It is not the case of 1st defendant that she refunded the advance amount to plaintiff and she discharged the amount of Rs.30,000/- with interest to the plaintiff.
23. As per the own admissions of the 1st defendant, the plaintiff is in possession of the schedule premises since 1984 and as on 05.01.1990 the possession of the plaintiff is a lessee. The date of Ex.A.1 agreement is 05.01.1990. The case of the 1st defendant is that the plaintiff has not paid any rents from 1990 onwards and Ex.A.1 agreement is a forged one. Admittedly, no notice was issued till so far by the 1st defendant to the plaintiff calling upon him to pay the rents or to vacate the schedule premises. If the plaintiff has not paid rents for remaining period, what prevent the 1st defendant to file a suit for recovery of arrears of rent and also for eviction of the plaintiff. Admittedly, no suit is filed by the 1st defendant for recovery of rents or eviction of the plaintiff from out of the suit schedule property. As per the own admissions of the 1st defendant, the plaintiff has been paying property tax from 1990 and the plaintiff has been in possession of the plaint schedule property from 1984 onwards. As stated supra, no suit is filed by the 1st defendant for recovery of arrears of rent or for eviction of the plaintiff from the suit schedule property. The material on record of Trial Court reveals after completion of 1st defendant evidence at the stage of arguments, the 1st defendant filed a petition to send for Ex.A.1 agreement of sale to the handwriting expert and on hearing both sides that petition was dismissed by the Trial Court. It was represented by the learned counsel for the plaintiff before this Court during the course of arguments against that order the appellants filed a Civil Revision Petition before this Court and the same is dismissed by confirming the finding given by the Trial Court. The 1st defendant except examining herself as D.W.1, no other evidence was adduced by the 1st defendant.
24. Learned counsel for the appellants relied on a decision in Major Gen. Darshan Singh (D) by Lrs., and another vs. Brij Bhushan Chaudhary (D) by LRs1 wherein the Hon‟ble Apex Court held as follows:
"Under Section 20 of the 1963 Act, the grant of a decree for specific performance is always discretionary. The exercise of discretion depends on several factors. One of the factors is the conduct of the plaintiff. The reason is that relief of a decree of specific performance is an equitable relief. A person who seeks equity must do equity".
The ratio laid down in the aforesaid case law has no dispute that grant of decree Under Section 20 of the Act is always discretionary.
25. Learned counsel for the appellants placed another reliance on a decision in Nandkishore Lalbhai Mehta vs. New Era Fabrics Private Limited and others2.
Learned counsel for the appellants place reliance on a decision of Calcutta High Court in A.E.G. Carapiet vs. A.Y. Derderian3.
Learned counsel for the appellants place reliance on a decision of Calcutta High Court in Sait Tarajee Khimchand and others vs. Yelamarti Satyam and others4 wherein it was held that;
"the mere marking of a document as an exhibit does not dispense with the proof of documents".1
2024(3) ALT 12 (SC) 2 (2015) 9 Supreme Court Cases 755 3 AIR 1961 Cal 359 4 AIR 1971 Supreme Court 1865 The ratio laid down in the aforesaid three cases has no dispute, but the facts and circumstances in the above said three cases are different to the instant case.
26. Learned counsel for the appellants placed reliance on a decision in Jagannath Malik and others vs. Surendra Gartia 5 wherein it is held as follows:
"This is a suit for specific performance of contract. The assertions of the plaintiff are that he is ready and willing to perform his part contract. The plaintiff has to plead and prove the readiness and willingness before he succeeded. This is a condition precedent. Admittedly, no notice along with a draft sale deed was sent before institution of the suit. On this ground, the suit will fail".
27. In the present case, the plaintiff to discharge his burden filed original agreement of sale and exhibited as Ex.A.1 and he also examined two attestors in Ex.A.1 as P.W.2 and P.W.3 and also examined the scribe of Ex.A.1, agreement of sale, as P.W.4. As stated supra, the evidence of P.W.2 to P.W.4 is consisting and convincing with regard to the execution of Ex.A.1, agreement of sale, but the 1st defendant to disprove the same, did not adduce any evidence except examining herself as D.W.1 before the Trial Court. The plaintiff in the case on hand deposed in his evidence about the issuance of notice under Ex.A.71 on 23.05.1990, which is supported by postal receipt under Ex.A.72. It is the contention of the appellants that Ex.A.71 notice was not served on the 1st defendant and no notice was sent to the 1st defendant. But the fact remains Ex.A.71 shows on 23.05.1990 the plaintiff sent a legal notice through registered post and to support the same, the plaintiff also relied on postal receipt issued by the postal department under Ex.A.72 and the date and seal of postal department was also affixed on Ex.A.72. Ex.A.71 coupled with Ex.A.72 clearly proves that the plaintiff sent a legal notice on 23.05.1990 5 AIR 2017 Orissa 128 through registered post to the 1st defendant. It is not the case of the 1st defendant that she is not residing in the address mentioned in the legal notice. In cross examination no suggestion was given to P.W.1 by the learned counsel for the defendants that the 1st defendant has not been residing in the address mentioned in Ex.A.71, legal notice. The legal position in this regard is well settled by the Hon‟ble Apex Court in the case of Basant Singh and another vs. Roman Catholic Mission6 wherein the Hon‟ble Apex Court held as follows:
"Order 5, proviso to sub-rule (2) of Rule 19A of C.P.C. provides that where the summons are properly addressed, prepaid and duly sent by registered post with acknowledgement due, notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons, the Court shall presume that notice is duly served. Further, Section 27 of the General Clauses Act, 1897 (in short 'Act) provides similar provision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence".
The Hon‟ble Apex Court further held as follows:
"It is nobody's case that the postal addresses of the defendants are not properly addressed and, therefore, the registered summons could not be served. It is also nobody's case that the registered summons are not pre-paid and not duly sent. In fact the registered summons, bearing receipt Nos.875 and 876 dated 24.4.1986, were issued is borne out from the record".
28. In the instant case also issuance of legal notice is proved by the plaintiff by producing Ex.A.71 and Ex.A.72. It is not the case of the 1st defendant she has not been residing in the address mentioned in Ex.A.71.
6(2002) 7 Supreme Court Cases 531
29. Learned counsel for the appellants placed reliance in Bandi Narasiah (died) and others vs. Virabathini Mallesham and another7.
30. In the case on hand, the case of the plaintiff is that he is in possession of the plaint schedule property as a lessee as on the date of Ex.A.1, agreement of sale. There is an ample evidence on record to that extent. Further more, the issuance of several rent receipts by the 1st defendant is also admitted by her in her evidence itself.
31. Learned counsel for the appellants placed reliance in G. Shashikala vs. G. Kalawati Baion 8 wherein the composite High Court of Andhra Pradesh held as follows:
"The law the subject which is reproduced above is well settled. Time and again, the Courts have held that if the witness is not cross-examined on the material parts of the case, it is deemed that the opposite party has admitted the case and has nothing to cross-examine".
In the case on hand, the copy of legal notice is marked through P.W.1 as Ex.A.71 and postal receipt is also marked as Ex.A.72. It was not suggested to P.W.1 in cross examination by the learned counsel for the defendants that the 1st defendant is not residing in the address mentioned in copy of legal notice.
32. The learned counsel for the appellants place reliance on a decision of Baruna Giri and others vs. Rajakishore Giri and others9 wherein it was held that;
"Under Art.54 of the Limitation Act the limitation for specific performance of a contract is three years and limitation is to be counted from the date fixed for the performance, or, if no such date is fixed when the plaintiff 7 1997 (4) ALT 583 (S.B) 8 2018(6) ALT 427 9 AIR 1983 Orissa 107 has notice that performance is refused. It could not be contended that permissive possession of the defendants was converted into adverse possession merely because their right to sue for specific performance became barred. In the first place it was for the defendants to plead and prove how and from what time their possession which was initially permissive changed its character and became adverse. Unless the plea is specifically raised in the pleading, it cannot be allowed to be flung as surprise on the plaintiffs for the first time in appeal. Neither there is any averment in the written statement nor any evidence has been adduced, to show when the defendants for the first time noticed or realised that the plaintiffs were not willing to execute and register the sale-deed. Secondly the defendants were entitled to retain possession under S.53- A of the T.P.Act even though their right to sue for specific performance was barred or the contract became otherwise unenforceable".
In the case on hand the date of agreement is 05.01.1990, by demanding the 1st defendant to execute a regular registered sale deed in favour of the plaintiff a legal notice under Ex.A.1 was issued as a last resort, the plaintiff instituted the suit on 20.08.1990 before the Trial Court for specific performance of agreement of sale. Therefore, the facts and circumstances cited in the aforesaid decision are different to the instant case.
33. The learned counsel for the appellants placed reliance of P. Bhaskara Peddi Raju vs. K. Venkata Narasayamma (died) Lr. And others 10 wherein this Court held as follows:
"Readiness and willingness are quite distinct and different in the context of Section 16 (c) of the Specific Relief Act. Readiness connotes financial capacity of one who seeks to enforce specific performance. Willingness distinctly refers to his personal or mental inclination to seek performance of the contract. The two words employed by the Statute are not mere surplus age for the other or even words with the connotation that have 10 2022 (4) ALT 87 (S.B) closely resembling status. The two being distinct, both must be pleaded and proved independently of the other throughout, from the time the contract is entered into and till the suit is filed, and also pending suit till a decree is passed".
Leaned counsel for the respondent placed reliance of Biswanath Ghosh (dead) by Legal Representatives and others vs. Gobinda Ghosh alias Gobindha Chandra Ghosh and others 11 wherein the Hon‟ble Apex Court held as follows:
"It is a well-settled proposition of law that in a suit for specific performance the plaintiff must be able to show that he is ready and willing to carry out those obligations which are in fact part of the consideration for the undertaking of the defendant. For the compliance with Section 16(c) of the Act it is not necessary for the plaintiff to aver in the same words used in the section i.e., ready and willing to perform the contract. Absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the court the readiness and willingness to perform his part of the contract. In Kedar Lal Seal v. Hari Lal Seal12, this Court has held that the Court would be slow to throw out the claim on mere technicality of the pleading. The Court observed: (AIR p.52, para 51) "51. I would be slow to throw out a claim on a mere technicality pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs".
In the case on hand, the plaintiff paid total amount to the 1st defendant. The admitted case of the 1st defendant is that she leased out the schedule premises to the plaintiff‟s father under a lease agreement, dated 02.08.1984 and the plaintiff and his father has been running a lodge in the schedule 11 (2014) 11 Supreme Court Cases 605 12 AIR 1952 SC 47 premises by making modifications by spending money and later for her necessities, she borrowed Rs.30,000/- on the same day with interest at 18% per annum from the plaintiff. The case of the plaintiff is 1st defendant offered to sell the schedule property for Rs.1,85,000/-. The evidence on record further proves that after deducting advance amount of Rs.40,000/-, borrowal amount of Rs.30,000/- and the interest amount of Rs.29,250/- on Rs.30,000/- from out of total sale consideration of Rs.1,85,000/-, the 1st defendant received balance amount of Rs.85,750/- on the date of Ex.A.1 itself. The same is proved by the plaintiff. The plaintiff paid the entire amount to the 1st defendant and the plaintiff is in possession of the plaint schedule property from 1984 onwards till this date. The date of agreement of sale is 05.01.1990. After issuance of legal notice, the plaintiff instituted the suit in the year 1990 before the Trial Court for specific performance of the agreement of sale. The plaintiff paid the entire sale consideration to the 1st defendant. The plaintiff has nothing to do to perform in this case. The 1st defendant has to execute a regular registered sale deed in favour of the plaintiff.
34. Learned counsel for the appellants placed reliance of Yerragogu Mruthyunjaya Rao vs. Marni Kumara Veeraswamy and others 13 wherein the composite High Court of Andhra Pradesh held as follows:
"When there is specific assertion and denial of the averment, the lower Court ought to have framed an issue as to whether the plaintiff has always been ready and willing to perform his part of contract. Admittedly, the lower Court has not framed such an important issue. Of course, the parties also should insist the lower Court to frame necessary issues. In a suit for specific performance one of the main issue would be whether the plaintiff has always been ready and willing to perform his part of contract. Where in a case there is omission of framing an important and necessary issue which affects the disposal of the suit on merits, the case must be remanded for a fresh trial. It is for the parties 13 2012 (6) ALD 381 either to lead further evidence or to argue the case basing on the evidence already available on record. The lower Court committed material irregularity in not framing the necessary issues".
As stated supra, in the case on hand, the plaintiff paid entire sale consideration to the 1st defendant, but the 1st defendant did not come forward to execute a regular registered sale deed. As per the own case of the 1st defendant, the plaintiff is in possession of the suit schedule property as a lessee from the year 1984 onwards. It is not the case of the 1st defendant that subsequently the plaintiff vacated the premises. It is admitted by the 1st defendant that the plaintiff is in possession of the schedule property from 1984 onwards as a lessee and from 1990 onwards the plaintiff used to pay the property tax. It has to be noted that the date of agreement of sale is 05.01.1990. It is also admitted by the 1st defendant that the plaintiff made several improvements to the schedule premises by spending more money. The plaintiff improved the property by making modifications and the 1st defendant did not spend any money for improvement of the property. Further more, the 1st defendant did not initiate any action for recovery of arrears of rent from the plaintiff or did not file any suit for eviction of the plaintiff. All the above circumstances, supported by the evidence of P.W.2 to P.W.4 clinchingly prove about the execution of Ex.A.1 agreement of sale by the 1st defendant in favour of the plaintiff.
35. In the case on hand, the 1st defendant as D.W.1 denied her own signatures on registered post, court summons and acknowledgment. Therefore, the conduct of the 1st defendant has to be taken into consideration. In a case of Zarina Siddiqui vs. A. Ramalingam alias R. Amarnathan14 wherein the Hon‟ble Apex Court held as follows:
14(2015) 1 Supreme Court Cases 705 "The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance".
36. Another contention taken by the appellants is that the suit schedule property is located at commercial locality at Nellore area and it was about more than value of Rs.1,85,000/- as on 1990. It was admitted by the appellants that she has taken advance of Rs.40,000/- from the father of plaintiff and she borrowed Rs.30,000/- with interest on the date of lease deed in addition to Rs.40,000/- advance amount and agreed to repay the same with interest at 18% per annum. The evidence on record further proves that the plaintiff paid remaining balance sale consideration of Rs.85,250/- on the date of agreement of sale. Further more, no evidence is produced by the 1st defendant to show that by the year 1990, the suit schedule property fetches more than value of Rs.1,85,000/-.
37. Leaned counsel for the appellants placed reliance of Kamal Kumar vs. Premlata Joshi and others 15 wherein the Hon‟ble Apex Court held as follows:
7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are:
7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.15
(2019) 3 Supreme Court cases 704 7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.
7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;
7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff;
7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds".
In the case on hand, the plaintiff proved Ex.A.1, agreement of sale, dated 05.01.1990. The suit is filed by the plaintiff on 20.08.1990 before the Trial Court. In the case on hand, the plaintiff paid total sale consideration as recited in Ex.A.1, nothing remains on the part of the plaintiff, the 1st defendant has to execute a regular registered sale deed in favour of the plaintiff. No evidence is produced by the 1st defendant to show if the specific performance of agreement of sale relief is granted to the plaintiff, it will cause hardship to the 1st defendant.
38. Learned counsel for the appellants placed reliance of Velaga Sivarama Krishna vs. Velaga Veerabhadra Rao and another16. The ratio laid down in the said case law relates to the suit for declaration of title.
The learned counsel for the appellants placed reliance of Chodi Mahalakshmi vs. Koppada Sathiraju and another 17 wherein it was held that;
"When execution is denied mere proof of signature of the executant not sufficient. Person relying upon such document must further establish 16 2009 (1) ALD 265 17 2011 (3) ALT 137 that executants affixed his signature after knowing the contents thereof. In fact, it was also a case dealing with specific performance of contract".
In the case on hand, the plaintiff proved Ex.A.1, agreement of sale, by adducing oral and documentary evidence and he discharged his part of contract by examining two attestors in Ex.A.1 agreement of sale as P.W.2 and P.W.3 and also examined the scribe of Ex.A.1 as P.W.4. The Trial Court on considering the entire oral and documentary evidence, by comparing the signatures on Ex.A.1 with the signatures of 1st defendant on admitted documents, finally came to a conclusion that Ex.A.1 is true and valid document. Therefore, the said finding of the Trial Court cannot be found fault.
39. Leaned counsel for the appellants contend that comparing signatures by the Trial Court under Section 73 of the Indian Evidence Act is bad under law and relied a decision of Garre Mallikharjuna Rao (D) by Lrs. and others vs. Nalabothu Punnaiah18.
In the case on hand, two stamp papers are purchased on the same date i.e., 05.01.1990 on the date of agreement of sale itself. Those two stamp papers are purchased at Kovvuru. Kovvuru is situated near by Nellore Town. The conclusion of the Trial Court with regard to genuineness of Ex.A.1, agreement of sale, is based on appreciation of the entire oral and documentary evidence and by comparing the signatures of the 1st defendant on admitted documents but not based on comparing signatures of 1st defendant. Moreover, after completion of entire trial, at the stage of arguments, the 1st defendant filed a petition before the Trial Court U/Sec.45 of the Indian Evidence Act to send Ex.A.1 to the handwriting expert. On hearing both sides, the Trial Court dismissed the said petition and the same was confirmed by this Court in Civil Revision Petition filed by the 1st defendant.
182013(3) SCJ 90
40. In the case on hand, the plaintiff discharged his burden by producing sufficient oral and documentary evidence. To disprove the same, except the 1st defendant examined herself as D.W.1, no other evidence is adduced by the appellants before the Trial Court. It is relevant to say a distinction exists between burden of proof and onus of proof.
The elementary rule in Section 101 of the Act is flexible. In terms of Section 102, the initial onus is always lies on the plaintiff and if he discharges that onus and makes within a case which entitle him a relief, the onus shifts to the defendant to prove those circumstances, if any which would disentitled the plaintiff to the same. But, in the case on hand, the plaintiff proved Ex.A.1, agreement of sale and also proved payment of entire sale consideration as recited in Ex.A.1. But, the 1st defendant failed to discharge her burden to disprove the case of the plaintiff. For the aforesaid reasons, I am of the considered view that Ex.A.1, agreement of sale, is true, valid and binding on the 1st defendant and the plaintiff is entitled the relief of specific performance of agreement of sale, dated 05.01.1990. Since 1st defendant died during the pendency of suit, the legal representatives of 1st defendant i.e., appellants herein have to execute a regular registered sale deed in favour of plaintiff.
Accordingly, point Nos.1 and 2 are answered against the appellants.
Point No.3:
41. In view of my findings on point Nos.1 and 2, the Trial Court is justified in decreeing the suit and the decree and judgment passed by Trial Court is perfectly sustainable under law and the appeal is liable to be dismissed.
C.M.P.NO.6866 OF 1999:
42. The relief claimed by the petitioners/appellants is that to send Ex.A.1, agreement of sale, dated 05.01.1990 said to have been executed by V. Venkata Subbamma to the handwriting expert, pending disposal of the appeal. Here the petitioners availed option of filing of the petition U/Sec.45 of the Indian Evidence Act before the Trial Court and on hearing both sides the Trial Court dismissed the said application. Aggrieved thereof, the 1st defendant filed a Civil Revision Case and the same is dismissed by this Court. Therefore, the order passed in Section 45 of the Indian Evidence Act petition attains finality. Therefore, filing of this petition by the appellants/defendants again in the appellate stage is unknown to law and the same is not maintainable. Therefore, there are no merits in the petition filed by the appellants/ defendants before this appellate Court.
43. In view of my aforesaid findings, the appeal is dismissed by confirming the decree and Judgment, dated 29.10.1997 in O.S.No.173 of 1990 passed by the learned Subordinate Judge, Nellore and the C.M.P.No.6866 of 1999 is also dismissed. The appellants are directed to execute a regular registered sale deed in favour of the plaintiff within two months from the date of this judgment; failing which the plaintiff is at liberty to take necessary steps as per law. Considering the facts and circumstances of the case, I order each party do bear their own costs in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.
__________________________ V. GOPALA KRISHNA RAO, J Date: 15.10.2024 PGR THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO APPEAL SUIT No.872 OF 1999 AND CMP No.6866/1999 in A.S.No.872/1999 Date: 15.10.2024 PGR