THE HONOURABLE JUSTICE G. SRI DEVI
APPEAL SUIT No. 292 of 2020
JUDGMENT:
This appeal is directed against the judgment and decree of the I-Additional District Judge, Khammam, passed in Original Suit No.72 of 2008 dated 15.06.2020.
The appellant herein is the plaintiff and the respondents herein are the defendants before the trial Court. For the sake of convenience, the ranks given to the parties in O.S. No.72 of 2008, before the trial Court, will be adopted throughout this judgment.
The facts, in brief, are as under:
The plaintiff filed the above suit for specific performance of agreement of sale, dated 27.06.2008, by directing the 1st defendant to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property after receiving remaining sale consideration of Rs.2,00,000/- and in case of failure on the part of the 1st defendant, the Court may execute the registered sale deed on behalf of the 1st defendant in favour of the plaintiff or in alternative direct the 1st defendant to refund an amount of Rs.20,00,000/-, which was paid as an earnest money by the plaintiff, with interest @ 24% p.a., from the date of payment till realisation and to award costs of the suit. The plaint averments, in brief, are as follows: 2
The 1st defendant is the owner and possessor of an agricultural dry land admeasuring Ac.2.00 guntas out of Sy.No.463/A, situated at Khammam Revenue Village, having purchased the same on 18.05.2007 vide registered sale deed bearing document No.10396 of 2007 from its original owners namely Dowle Yadagiri and others and that the 1st defendant offered to alienate the said property to the plaintiff at Rs.11,00,000/- per acre and the plaintiff agreed to purchase the same and entered into an agreement of sale with the 1st defendant on 27.06.2008 and that the plaintiff had paid an amount of Rs.20,00,000/- on the same day as an advance to the 1st defendant and further the 1st defendant agreed to execute the registered sale deed after receiving the balance sale consideration of Rs.2,00,000/-. The plaintiff was always ready and willing to perform her part of contract and demanded the 1st defendant to come over to Khammam on 10.07.2008 to execute the registered sale deed by receiving the balance sale consideration, but the 1st defendant did not turn up on 10.07.2008 and since then the plaintiff is demanding the 1st defendant to execute the registered sale deed, but the 1st defendant postponing the same on one pretext or the other. On 06.08.2008, when the plaintiff came to know that the 1st defendant is making hectic efforts to alienate the suit schedule property in favour of third parties to defraud the plaintiff, she got issued a legal notice on 07.08.2008 and after receiving the 3 legal notice, the 1st defendant got issued a reply notice with all false and frivolous allegations, as such, the plaintiff filed the above suit.
The 1st defendant in her written statement while denying the material allegations of the plaint admitted that she is the absolute owner of the suit schedule property having purchased the same through registered sale deed bearing document No.10396 of 2007, dated 18.05.2007 from Dowle Yadagiri and others for a valid consideration of Rs.10,40,000/- and since then she is in peaceful possession and enjoyment of the same without interruption by anybody. It is stated that on 18.05.2007 when she purchased the land, the close relative of the plaintiff by name one Katta Sridevi, working as a Sub-Inspector of Police, resident of Secunderabad, has also purchased the part of land admeasuring Ac.2.00 guntas for Rs.10,40,000/- from her vendor by name Dowle Yadagiri and others and that for the said transaction, the plaintiff made a key role and earlier she has also bargained the land, which the 1st defendant had purchased, and that to knock away the property of the 1st defendant, the plaintiff has fabricated the agreement of sale, dated 27.06.2008 with her supporters. It is further stated that prior to issuing legal notice by the plaintiff, one woman came to the 1st defendant to Ongole and one week thereafter one boy came to her and delivered one courier wherein the 1st defendant received two papers of flash copies of some documents and thereafter the 1st defendant received a registered notice and that the 1st defendant 4 never alienated the property, never received any consideration and never executed any document as alleged in the notice. It is further stated that after receipt of summons, the 1st defendant reported the matter to the concerned police about the fraud made by the plaintiff and the concerned police registered a case in Crime No.259 of 2008, for the offences punishable under Sections 467, 468 and 471 of I.P.C. against the plaintiff and her henchmen and prayed to dismiss the suit.
The 2nd defendant filed written statement denying the averments made in the plaint and contended that the suit is not maintainable either in law or on facts and that the plaintiff approached the Court with unclean hands and that the suit schedule property is part and parcel of the joint family property of the 2nd defendant and other family members; that the plaintiff is the second wife of the father of the 2nd defendant and the properties are nominally stands on her name and by taking undue advantage of the same, she started refusing for partition of the property and, therefore, the 2nd defendant filed O.S.No.49 of 2007 on the file of the Senior Civil Judge, Khammam, for partition and the suit schedule property is part and parcel of item No.1 of the suit schedule property in O.S.No.49 of 2007 and that the plaintiff also categorically admitted in her cross-examination as D.W.1 in O.S.No.49 of 2007 that the suit schedule property is one and the same and that the registered sale deed bearing No.10396 of 2007 is 5 null and void. It is further contended that the 1st defendant will not get any right over the suit schedule property and there is no cause of action to file the suit against the 2nd defendant and that the 2nd defendant and his family members are in constructive and joint possession of the suit schedule property and that the 1st defendant was never in possession of the same and prayed to dismiss the suit.
The 1st defendant also filed additional written statements stating that the 2nd defendant, who added after filing of the suit, has no cause of action, right or interest over the suit schedule property and that in the amended copy of plaint, no whisper with regard to the 2nd defendant and as such, the 2nd defendant is not at all necessary party for the proceedings and prayed to dismiss the suit with exemplary costs.
On the strength of above pleadings, the trial Court framed the following issues, including an additional issue:
1) Whether the plaintiff is entitled for specific performance of contract in respect of the suit schedule property?
2) Whether the plaintiff has performed her part of contract?
3) To what relief?
Further, the following additional issues have been framed for trial:-
1) Whether the 2nd defendant is the necessary party to the proceedings?
2) Whether the suit schedule property is the joint family property and part and parcel of item No.1 of the suit 6 schedule property in O.S.No.49 of 2007 on the file of the Senior Civil Judge, Khammam, which is pending?
3) Whether the registered sale deed bearing No.10396 of 2007 is null and void?
During course of trial, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A-1 to A-4 were marked. On behalf of the 1st defendant, DW.1 was examined and Exs.B-1 to B-11 were marked and Ex.X1 was marked through Court.
The trial Court, having considered the evidence both oral and documentary adduced on either side and the respective contentions, dismissed the suit. Being aggrieved by the same, the present appeal is preferred by the plaintiff.
Learned Counsel for the appellant/plaintiff submits that the Court below erred in dismissing the suit instead of decreeing the suit with costs granting damages as prayed for; that the Court below ought to have seen that the 1st respondent/1st defendant got marked the statements made by the attesters of Ex.A1 before a competent Criminal Court at the instance of the 1st respondent and, therefore, any ignorance of Ex.A1 cannot be agitated, whereas the Court heavily relied upon the denial of signatures alone; that the Court below ought to have seen that attestation of document is only to show that the executant executed in their presence, whereas there is no need to know the entire contents of the document; that the Court below ought to have seen that the attesters, from whom the 1st defendant got recorded the 164 Cr.P.C. statements, failed to 7 produce them for the rigour of cross examination, whereas the documents filed by her proves the case of the appellant/plaintiff; that the Court below erred in not considering the refund of advance paid by the plaintiff; that the Court below ought to have seen that the readiness and willingness was well established and there is no further proof required on this count; that the Court below ought to have seen that even the Forensic Expert report supports the case of the appellant and nothing was elicited by the 1st respondent/1st defendant in the cross-examination of the expert witness to disprove the case of the appellant/plaintiff; that the Court below ought to have seen that the 1st respondent/1st defendant made so many contradictory statements in her evidence and the mala fide intention to deprive the benefit of the appellant/plaintiff; that the Court below erred in heavily relying upon the criminal case filed by the 1st defendant even without knowing the outcome thereof; that the Court below erred in disbelieving the suit document-Ex.A1 on baseless and untenable grounds and that the 1st defendant did not take any steps to prove that the said document was obtained by playing fraud and it was a rank forgery; that the Court below ought to have seen that in a plea of forgery and fraud, the burden is heavily rests on the person so alleged, whereas the 1st defendant did not take any such steps; that the Court below in paragraph-23 of the judgment found fault with the appellant/plaintiff for not producing the attesters and the same is untenable since the very 8 same persons were cited as witnesses by the 1st defendant in the criminal case and on the other hand Section 58 of the Evidence Act does not require admitted facts to be proved. He lastly submits that the Court below failed to appreciate the material on record in correct perspective and in the light of the principles laid down in the decided cases, the judgment of the Court below is based on surmises and conjectures.
On the other hand, the learned Counsel for the 1st respondent/1st defendant would submit that the plea of the 1st defendant in the suit is that the suit document-Ex.A1 is false and fabricated and that basing on the complaint lodged by the 1st defendant, Police, Cheerala, registered a case in Crime No.259 of 2008 against the plaintiff and the witnesses and also the scribe of the suit document, alleging therein that they have created the suit agreement without consideration. He further submits that the 1st defendant got marked the statements of witnesses, who attested the suit document, and also the scribe of suit document, recorded by the police under Section 164 Cr.P.C. as Exs.B3 to B5, wherein they stated that they do not know the contents of the suit document and their signatures were obtained by one Mohan Rao. He also submits that the plaintiff has failed to adduce the evidence of the witnesses and scribe of the suit document and as such relying on the evidence of D.W.1 and Exs.B3 to B5, the trial Court has rightly dismissed the suit. He further submits that the plaintiff never paid the alleged 9 amount of Rs.20,00,000/- to the 1st defendant and that the plaintiff had no capacity to rise the said amount. He further submits that in view of the fact that passing of consideration and the execution of the sale deed have not been proved, the trial Court rightly dismissed the suit and that there is no merit in the appeal and prayed to dismiss the appeal.
Admittedly, the suit is filed for primary relief of specific performance of agreement of sale marked as Ex.A.1 and alternative relief of recovery of refund of advance amount of Rs.20,00,000/- paid under E.xA.1 together with interest at 24% per annum from the date of payment till realization. According to the plaintiff, 1st defendant, original owner of the property, entered into an agreement of sale with the plaintiff, agreeing to sell the schedule property to an extent of Ac.2.00 guntas in Sy.No.463/A of Khammam Revenue Village, for a total consideration of Rs.11,00,000/- per acre; she paid an amount of Rs.20,00,000/- towards advance sale consideration on the date of execution of Ex.A-1 itself i.e., 27.06.2008 and the 1st defendant agreed to execute the registered sale deed after receipt of balance sale consideration of Rs.2,00,000/- and when she demanded the 1st defendant to execute the sale deed after receiving the balance sale consideration, she is postponing the same on one pretext or the other and also making hectic efforts to alienate the schedule property in favour of third parties only to defraud the plaintiff and as such the plaintiff got 10 issued a legal notice on 07.08.2008 and on receipt of the said notice, the 1st defendant got issued reply notice with all false and frivolous allegations.
The 1st defendant in her written statement while admitting her ownership over the property specifically denied execution of agreement of sale and that she never alienated the property and never received any consideration from the plaintiff. However, the 2nd defendant in his written statement stated that the suit schedule property is part and parcel of joint family property of the 2nd defendant and other family members and that the plaintiff is the second wife of the father of the 2nd defendant and the properties nominally stands on her name and by taking undue advantage of the same, she started refusing for partition of the property and hence the 2nd defendant filed O.S.No.49 of 2007 before the Senior Civil Judge, Khammam, seeking partition of the property and the suit schedule property is part and parcel of item No.1 of suit schedule property in the said suit and that the 1st defendant will not get any right over the schedule property. Thus, the very genuineness of Ex.A-1 is in dispute. Therefore, the initial onus of proof is on the plaintiff who filed the suit for specific performance of agreement of sale i.e., Ex.A1.
In the instant case, the plaintiff, who was examined as P.W.1, in her chief examination categorically, stated that Ex.A1 was prepared by one Sk.Habeeb Basha and attested by Kolla Ranganna 11 Babu and Kamineni Subramanyam, but she did not take any steps to examine them. Since the 1st defendant denied the execution of Ex.A1 and receipt of consideration, non-examination of the scribe and witnesses, who attested the said agreement, is fatal to the case of the plaintiff. Further, P.W.1 admitted in her cross-examination that the 1st defendant lodged a complaint against the plaintiff and others before the police alleging that that they have created suit document (Ex.A1) without consideration. The record discloses that on the complaint made by the 1st defendant a case in Crime No.259 of 2008 of Cheerala Police Station has been registered against the plaintiff, Kolla Ranganna Babu, Kamineni Subramanyam, who are the attesters of Ex.A1 and one Shaik Habeeb Basha, who is the scribe of Ex.A1, and that the copy of the F.I.R. was marked on behalf of the 1st defendant as Ex.B1. In order to prove that the suit document (Ex.A1) is false and fabricated one, the 1st defendant got marked the statements of the attesters and the scribe of Ex.A1 recorded under Section 164 of Cr.P.C. by the Police, Cheerala in Crime No.259 of 2008, which were marked as Exs.B3 to B5. Ex.B3- Statement of Kolla Ranganna Babu, dated 21.08.2010, would show that he signed on the agreement about one year back at the instance of one Mohan Rao and he does not know the contents of the said agreement. Likewise, Ex.B4-Statement of Kamineni Subramanyam dated 21.08.2010 also shows that three years prior to the said date, one Mohan obtained his signature near the Railway Station on the 12 agreement and that he does not know any other facts. Ex.B5- Statement of Sk.Habeeb Basha, would show that he did not sign on the document shown to him and he does not know the other signatures on the said document. The plaintiff failed to cross- examine D.W.1 regarding the contents of Exs.B1 to B5 as they were marked in further chief-examination of D.W.1. Since there is no corroboration to the evidence of the plaintiff (P.W.1) that the 1st defendant executed Ex.A1 in her favour by receiving the advance sale consideration of Rs.20,00,000/- in the presence of Kolla Ranganna Babu and Kamineni Subramanyam, who attested Ex.A1, the trial Court has rightly gave a finding that the plaintiff is not entitled for the relief of specific performance of contract in respect of the suit schedule property. Therefore, I am constrained to hold that the findings of the trial Court which are cogent, clear and clinching, do not warrant any interference by this Court and as such this appeal is devoid of merits and is liable to be dismissed.
Accordingly, the Appeal Suit is dismissed, confirming the impugned decree and judgment, dated 15.06.2020 passed in O.S.No.72 of 2008 on the file of the I-Additional District Judge, Khammam, but in the circumstances without costs. . Miscellaneous petitions, if any, pending, shall stand closed.
_____________________ JUSTICE G.SRI DEVI 28.01.2021 Gsn/gkv 13