HON'BLE Smt. JUSTICE P.SREE SUDHA
APPEAL SUIT No.839 OF 2015
ORDER
1. This appeal is directed against the Common Judgment dated 06.07.2015 passed in O.S.Nos.50 of 2012 and 130 of 2013 on the file of the learned Senior Civil Judge at Sircilla, whereby the suit O.S.No.50 of 2012 is dismissed with costs and the suit O.S.No.130 of 2013 is decreed with costs.
2. Burra Sathaiah is the plaintiff in O.S.No.50 of 2012. He filed the said suit against Sudagoni Sathaiah and Bodige Padma- defendants seeking specific performance of contract of sale dated 16.05.2010 in respect of the land admeasuring Ac.0.36½ guntas and Ac.1.10 guntas in Sy.Nos.1003/A and 1013 respectively total admeasuring Acs.2.06½ guntas in a single compact plot situated at Gattubuthkur Village, Gangadhara Mandal, Karimnagar District, and whereas the suit O.S.No.130 of 2013 is filed by the defendants in O.S.No.50 of 2012 for perpetual injunction.
3. The trial Court after considering the entire evidence on record and the arguments advanced by both the learned counsel dismissed the suit O.S.No.50 of 2012 with costs and decreed the suit O.S.No.130 of 2013 with costs. Aggrieved by the said common order the plaintiff in O.S.No.50 of 2012 preferred this appeal. 2
4. For the sake of convince the parties hereinafter will be referred to as they are arrayed in O.S.No.50 of 2012 wherein common evidence was adduced by both the parties.
5. The plaintiff in O.S.No.50 of 2012 filed a suit for specific performance of contract of sale dated 16.05.2010 against the defendants. He stated that the defendants are the owners and they are in possession of the land admeasuring Ac.0.36½ guntas and Ac.1.10 guntas in Sy.Nos.1003/A and 1013 respectively total admeasuring Acs.2.06½ guntas in a single compact plot situated at Gattubuthkur Village, Gangadhara Mandal, Karimnagar District. The defendants agreed to sell the same to the plaintiff at the rate of Rs.3,25,000/- per acre and the appellant-plaintiff agreed to purchase the same on the said rate and accordingly paid the entire sale consideration of Rs.7,02,812/- to the defendants on 16.05.2010 and the defendants after receiving the entire amount have executed agreement of sale on the same day in favour of the plaintiff and they have also specifically agreed to execute valid registered sale deed in favour of the plaintiff as and when the plaintiff ready and willing and that possession was also delivered to the plaintiff and since then the plaintiff is in continuous possession and enjoyment over the suit land without any interruption. The plaintiff would further submit that though he requested the defendants to execute the registered sale deed as per agreement of sale dated 16.05.2010, they postponed the same on the one pretext or the other and also filed O.S.No.109 of 3 2010 against him on the file of the Junior Civil Judge, Vemulawada, seeking permanent injunction and they also denied execution of the agreement of sale dated 16.05.2010 in favour of the plaintiff. The plaintiff would also submit that he came to know about the deemed refusal to execute registered sale deed by the defendants when he received summons in the suit in O.S.No.109 of 2010 as such the plaintiff requested the Court to direct the defendants to execute a registered sale deed in his favour.
6. In the written statement filed by the first defendant he stated that the agreement of contract is forged and fabricated document and the suit is not maintainable in law. He also stated that the agreement of sale is not admissible in evidence as it attracts the provisions of Stamps and Registration Act, 1908. He denied execution of the agreement of sale, receiving of the consideration, delivery of possession and further stated that when the plaintiff was trying to interfere with the possession of the defendants they filed O.S.No.109 of 2010 for perpetual injunction to restrain him along with an application in I.A.No.299 of 2010 seeking temporary injunction, which was allowed on 19.08.2011 after due contest and the said order also confirmed in the appeal vide C.M.A.No.1 of 2011 dated 02.04.2012. The defendants are in possession and enjoyment of the suit land. The plaintiff has not issued any notice calling upon them to execute a registered sale deed at any point of time. Even if it is presumed that they executed alleged agreement of sale in favour of the plaintiff, what 4 made the plaintiff to keep quiet all these years without taking any proper steps is not explained. The defendants would also submit that they filed a criminal complaint against the plaintiff for the offences under Sections 465 and 420 IPC and it is pending for investigation, and therefore, requested the Court to dismiss the suit.
7. The second defendant adopted the written statement of the first defendant and filed adoption memo to that effect.
8. Pleadings of suit filed for perpetual injunction is not filed before the Court but the facts are extracted by the officer in the common judgment in detail. The common evidence was recorded in both the suits.
9. Defendants in the suit filed O.S.No.109 of 2010 against the plaintiff herein for a perpetual injunction and it is renumbered as O.S.No.130 of 2013. The defendants jointly purchased agricultural land admeasuring Ac.0.36½ guntas and Ac.1.10 guntas in Sy.Nos.1003/A and 1013 situated at Gattubuthkur Village, Gangadhara Mandal, Karimnagar District, under a registered sale deed bearing document No.3770 of 2009 dated 04.12.2009 for a valid consideration and they got mutated in their names and obtained pattadar pass books and title deeds. But the plaintiff without any right tried to interfere into their possession on 14.10.2010 and 16.10.2010 and as such they filed the suit for perpetual injunction. 5
10. The plaintiff in the suit examined himself as PW.1 and examined the attestors and scribe of agreement of sale as PWs.2 to 5 and marked Exs.A1 to A7. The first defendant was examined himself as DW.1 and one Ch.Srinivasa Chary, Senior Assistant, District Registrar's Office, Karimnagar, as DW.2 and marked Exs.B1 to B10. Exs.C1 and C2 are marked through DW.2.
11. Learned counsel for the appellant-plaintiff would contend that the defendants denied execution of Ex.A1 agreement of sale on the one hand and asserted that the plaintiff has not given any notice to the defendants before filing the suit and thus they had taken different stands but the trial Court did not appreciate the conduct of the defendants. Learned counsel would further argue that PWs.2 to 5 are the attesting witnesses and scribe of the agreement of sale and thus plaintiff proved execution of Ex.A1 but the trial Court without appreciating the same in a proper perspective, dismissed the suit filed for specific performance. Further, the Court below observed that though the plaintiff claims to have paid the entire consideration to the defendants, a duty is cast on him to demand the defendants to get ready to perform their part of contract. He would also states that the Court below reached to a wrong conclusion by observing that 'this Court is also not inclined to believe the theory of the plaintiff for the reason that he never thought of issuing notice to the defendants to the filing of the suit' and therefore requested this Court to set aside the Common Judgment.
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12. The plaintiff, who is the defendant in O.S.No.130 of 2013, submitted that he and the father of the vendor of the defendants, who are plaintiffs in O.S.No.130 of 2013, are own brothers and in partition the suit schedule property fell to the share of father of the vendor of the defendants namely Burra Yellaiah. He offered to sell the suit land to him in connection with his daughter's marriage and he agreed to purchase the same and sale consideration is settled at Rs.6,77,250/- and both of them entered into an agreement of contract on 15.05.2009 and the plaintiff paid Rs.50,000/- as token amount and later agreed to pay a certain amount of sale consideration on 22.05.2009 and the remaining balance sale consideration on or before 15.10.2009. Accordingly he paid an amount of Rs.3,20,000/- to Burra Yellaiah on 22.05.2009 and Burra Yellaiah performed his daughter's marriage on 12.06.2009 and unfortunately died on 17.09.2009 leaving behind his three daughters as his legal heirs. On 15.10.2009 he approached the daughters of Burra Yellaiah and requested them to receive the balance sale consideration and execute a registered sale deed in his favour and they denied it. Therefore, he got issued a legal notice to the daughters of Burra Yellaiah and after receiving the said notice, the daughters issued a reply denying the transaction. When the matter was placed before the elders, they advised the parties to settle the matter amicably but they did not come forward for settlement. On 09.05.2010 the elders decided that the defendants should execute the register sale deed in his favour by receiving 7 Rs.3,25,000/- totalling Rs.7,02,812/-. On 16.05.2010 accordingly he paid the sale consideration to the defendants on the same day and they executed simple sale deed but they demanded additional amount of Rs.2,00,000/- but he refused to pay the same. He is in possession of the suit schedule property from 2009 onwards by raising cotton and paddy crops.
13. Burra Yellaiah executed gift settlement deed in favour of his daughter Burra Sharada and she in turn executed a sale deed in favour of the defendants herein on 04.12.2009 for an amount of Rs.1,62,800/-. Burra Sathaiah issued a legal notice on 01.09.2009 to the defendants and Burra Sharada in which he stated that Burra Yellaiah is his elder brother he entered into an agreement of sale with him on 15.05.2009 for a valid consideration of Rs.3,15,000/- per acre and paid Rs.50,000/- as advance and agreed to pay Rs.3,20,000/- on 22.05.2009 to meet the marriage expenses of his younger daughter- Burra Sharada and paid the said amount. He also issued receipt in his favour and delivered possession of the lands. He agreed to pay the balance sale consideration of Rs.3,07,250/- on 15.10.2009. Thereafter, he performed the marriage of his daughter on 12.06.2009 and died on 17.09.2009. When the plaintiff approached the legal heirs of late Burra Yellaiah on 15.10.2009, they refused to execute the registered sale deed as such the plaintiff called upon them to receive the consideration and execute the sale deed in his favour. In the reply notice dated 20.03.2010 they denied the execution of agreement of 8 sale dated 15.09.2009 and payment of amounts as stated by the plaintiff and further stated that Burra Yellaiah died on 12.09.2009 but not on 17.09.2009 and he performed his daughter's marriage on 12.06.2009 but not with the amounts received from the plaintiff and he executed a gift deed No.1085 of 2009 on 28.05.2009. She in turn executed the sale deed in favour of the defendants herein on 04.12.2009 at Sub Registrar Office, Gangadhara Mandal, Karimnagar District, and delivered possession on the same day. Plaintiff never approached them on 15.10.2009 and has not requested them to receive the amount.
14. The legal notice issued by the plaintiff is dated 01.09.2009 in which he mentioned about the subsequent events i.e., 17.09.2009 and 15.10.2009 and moreover as per the reply notice it was received by them on 02.03.2010 i.e., after five months. Therefore this Court finds that date of issuance of legal notice may be incorrect. The plaintiff has not filed the agreement of sale entered into between himself and Burra Yellaiah on 15.05.2009. As pointed out by the trial Court the plaintiff never issued any legal notice to Burra Yellaiah during his life time. Though he stated that Burra Yellaiah issued receipt in his favour, he has not filed the same for the reasons best known to him.
15. The case of the plaintiff is that he approached the legal heirs of Burra Yellaiah on 15.10.2009 and requested them to receive the 9 balance sale consideration and execute the registered sale deed in his favour but they postponed it on one or other pretext and as such he gave legal notice to them. Even in the written statement filed in O.S.No.130 of 2013 he stated the above facts and further stated that the matter was placed before the elders but the daughters of Burra Yellaiah did not come forward for settlement on 09.05.2010. The elders directed them to execute registered sale deed on receiving Rs.7,02,812/- and accordingly he paid the same on 16.05.2010 and the defendants executed simple sale deed in favour of the plaintiff agreeing to execute a registered sale deed in due course of time at that point of time. The plaintiff alleged that the defendants demanded an excess amount of Rs.2,00,000/- but he refused to pay. Perusal of the sale deed dated 16.05.2010 shows that the defendants executed sale deed in favour of plaintiff for an extent of Ac.2.06½ guntas and he paid the entire amount to them on the same day and also handed over possession and agreed to register the sale deed in his favour as and when he made a request. It is the further case of the plaintiff that he entered into an agreement of sale with Burra Yellaiah for an amount of Rs.6,77,250/- and also paid Rs.3,70,000/- during his life time before the marriage of his daughter and he has to pay the balance of Rs.3,07,250/- on 15.10.2009 but the said amount was not received by the legal representatives and they have not executed the sale deed in favour of the plaintiff. The case of the defendants is that a gift deed was executed in favour of Burra Sharada by her father vide 10 document No.1085 of 2009 on 28.05.2009 and she in turn executed a registered sale deed on 04.12.2009 and it clearly shows that there is no correlation between the agreement of sale entered by the plaintiff herein with Burra Yellaiah on 15.05.2009 and the agreement of sale entered by him with the defendants herein on 16.05.2010. As per previous agreement he has to pay the balance of Rs.3,07,250/-, but he paid Rs.7,02,812/- on 16.05.2010.
16. The defendants denied the agreement of sale dated 16.05.2010 and further stated that they filed I.A.No.299 of 2010 seeking temporary injunction, which was allowed on 19.08.2011 after due contest and the said was confirmed by the Appellate Court in C.M.A.No.1 of 2011 dated 02.04.2012 but the copies of the same are not filed before the Court. It is also brought in evidence that O.S.No.88 of 2012 is filed by one Parasuram against the defendants.
17. Admittedly in a suit for specific performance it is for the plaintiff to establish the agreement of sale and payment of sale consideration. But D.W.2 the Senior Assistant in the District Registrar Office produced the register of non judicial stamp sales maintained by the stamp vendor by name N.Anjaiah for the period from 01.01.2010 to 31.07.2010 but on 15.05.2010 as per S.No.300 the stamp paper was not sold and only S.Nos.3088 to 3121 were sold, there are no entries regarding sale of non-judicial stamp worth Rs.10/- to Burra Sataiah on 15.05.2010. Exs.C1 and C2 are marked through him. The 11 trial Court mainly considered the evidence of D.W.2 regarding the discrepancy in the stamps purchased by the plaintiff for execution of agreement of sale and disbelieved his version and accordingly dismissed the suit. In the agreement of sale though the extent of land is mentioned as Ac.2.06½ guntas with boundaries, later it was again mentioned as Ac.2.36½ guntas for Rs.7,02,812/- and the said mistake regarding the extent was confronted to P.Ws.2 to 4 during the cross-examination. Though plaintiff stated that on 09.05.2010 a panchayat was conducted before the elders viz., Gantyala Raj Kumar, Vemula Hemanth and Buthagadda Chander, he has not examined any of the elders to substantiate his version. Location of the suit schedule property is not mentioned in the agreement of sale. The document dated 16.05.2010 was mentioned as a sale deed instead of agreement of sale and it was signed by one Burra Padma but not by the first defendant herein. The defendants herein clearly stated that Burra Yellaiah executed registered gift deed in favour of Burra Sharada and they purchased the same from her under registered sale deed and mutated their names by the Thasildar Gangadhar Mandal and issued pattadar pass books and title deeds in their favour and now they are in possession of the suit schedule land and only when the plaintiff herein tried to interfere with their possession they filed suit for injunction.
18. The main argument of the defendants herein is that when the said agreement was executed on 16.05.2010 why the plaintiff kept 12 quiet till 2012 without demanding them for execution of the registered sale deed and they further contended that no notice was issued to them.
19. The trial Court considered both the arguments and evidence on record and rightly dismissed the suit filed for specific performance as the defendants herein established their possession of the suit schedule property decreed the suit for permanent injunction.
20. In view of my discussion in the above paragraphs, this Court finds that no reason to interfere with the judgment under appeal. In the result the appeal is dismissed. However there shall be no order as to costs.
21. Miscellaneous Petitions, if any, pending in this appeal shall also stand dismissed in the light of this final order.
____________________ P.SREE SUDHA, J.
23rd AUGUST, 2022.
PGS