THE HON'BLE SMT. JUSTICE P. SREE SUDHA
A.S.No.157 of 2011
JUDGMENT :
This Appeal is filed against the judgment and decree dated 30.06.2010 passed in O.S.No.40 of 2006 by the Senior Civil Judge, Sangareddy, Medak District.
The appellant herein is the 5th defendant, the 1st respondent herein is the plaintiff and respondents 2 to 5 herein are defendants 1 to 4 in the suit O.S.No.40 of 2006.
For the sake of convenience, the parties herein are referred to as they are arrayed in O.S.No.40 of 2006 before the trial Court.
The plaintiff filed O.S.No.40 of 2006 against the defendants seeking specific performance of the suit agreement dated 05.09.2005. Vide I.A.No.1149 of 2007 defendants 2 to 4 were impleaded and vide order 2 dated 10.09.2007 in I.A.No.1256 of 2007, defendant No.5 was brought on record being the subsequent purchaser of the suit schedule property. The plaintiff stated that the 1st defendant is the owner and possessor of the land admeasuring Ac.3-12 guntas in Sy.No.376 denoted as Sy.No.376/U situated at Muthangi Village, Patancheru Mandal, Sangareddy District. Initially, the mother of the 1st defendant, by name Afsar Khanam, was the owner of the suit land. During her life time, she orally gifted the suit land in favour of the 1st defendant on 10.10.2004 and later she died on 27.10.2004 leaving behind the 1st defendant as her sole legal heir. As the 1st defendant is the sole legal heir, the property is devolved upon him after the death of his mother. Later, he offered to sell the suit schedule property for a total consideration of Rs.9,90,000/- i.e., @ Rs.3,00,000/- per acre. The plaintiff paid Rs.2,00,000/- to the 1st defendant by way of earnest 3 money on 05.09.2005 itself. On the same day, the 1st defendant executed an agreement of sale on a stamp paper in favour of the plaintiff and also issued receipt for Rs.2,00,000/-. Later, the 1st defendant agreed to measure the suit land and to get the land mutated in his name, so that he can execute sale deed in favor of the plaintiff by receiving balance sale consideration. The plaintiff also paid Rs.25,000/- to the 1st defendant on 02.12.2005 towards mutation charges and the 1st defendant also issued receipt for the same. Though the plaintiff was ready to comply his part of the contract by paying the balance sale consideration, as the 1st defendant did not come forward to execute sale deed in his favour, after waiting for a considerable period, the plaintiff issued legal notice to the 1st defendant on 09.12.2005, to which the 1st defendant also got issued reply notice on 08.12.2005. The plaintiff got issued a reply notice to the counsel for the 1st defendant on 4 24.12.2005 by marking a copy to the 1st defendant. But, the notice sent to the 1st defendant was returned with an endorsement that no such person in the address. In the legal notice issued by the 1st defendant, he admitted regarding execution of agreement of sale and receipt of total consideration of Rs.2,25,000/-. As the plaintiff is ready and willing to pay the balance sale consideration, he filed the suit for specific performance of Agreement of Sale dated 05.09.2005 on 03.02.2006.
The 1st defendant filed written statement and denied the execution of the agreement of sale, but stated that the plaintiff obtained his signatures on white papers and created the agreement of sale and other receipts.
Defendant Nos.2 to 4 did not file any written statement.
5
The 5th defendant filed a separate written statement. He admitted that the mother of the 1st defendant is the owner of the suit schedule property. The 1st defendant along with his sons has executed registered sale deed in favour of defendant Nos.2 to 4 vide Document No.17503/05 dated 29.11.2005 in respect of the suit schedule property. He also stated that defendant Nos.2 to 4 have sold the suit schedule property to the 5th defendant by way of registered sale deed vide document No.1188/07 dated 09.01.2007 and since then, he is in peaceful possession and enjoyment of the suit schedule property.
A rejoinder was filed by the plaintiff on 18.09.2006 in which he submitted that the 1st defendant appeared in the matter on 06.03.2006 and filed his written statement on 17.08.2006 i.e., nearly after 4½ months of his appearance. As per his written statement, he admitted his signature on the agreement of sale and 6 thus the entire burden is upon him to establish that the agreement of sale is created. In fact, the agreement of sale was attested by his own son Syed Masood and another person by name Ratnam. The 1st defendant also executed a receipt for Rs.2,00,000/- received by him as earnest money and signed on the receipt on which revenue stamps are affixed. On the same receipt, the 1st defendant has also signed on 02.12.2005 in token of receipt of additional amount of Rs.25,000/-. It also bears the signature of his son Syed Masood and it was attested by two other persons by name Ateeq and Asgar. He filed the copies of the agreement of sale and receipts and he has not specifically denied the execution of receipts in his written statement. He himself got issued legal notice on 08.12.2005 through his counsel, in which he admitted the execution of agreement of sale and also receipt of the sale consideration, but stated that the notice shows that the 7 agreement of sale is terminated and cancelled by the 1st defendant because of non-payment of remaining sale consideration. After receiving the said notice on 10.12.2005, the plaintiff sent reply notice through his counsel on 24.12.2005 stating that there is no default in performing his part of contract. As the 1st defendant is stranger, the question of obtaining his signatures on the white paper does not arise.
The plaintiff was examined as PW.1. He examined the mediator on his behalf as PW.2. Both of them were not cross-examined by D1 to D4. But, they were cross- examined by D5 only.
In the cross-examination of PW.1, it was suggested that no separate steps were taken by the plaintiff for cancellation of the sale deed executed in favour of the 5th defendant. PW.2 supported the version in all material particulars and stated that the agreement of 8 sale executed by the 1st defendant in favour of the plaintiff and he also paid Rs.2,00,000/- on the date of agreement and later he came to know about payment of Rs.25,000/- to the sons of the 1st defendant. Later, he came to know that the defendants are intending to cancel the agreement of sale and returned the amount with some addition, but the plaintiff did not agree for the same.
The 5th defendant was examined as DW.1. He stated that the agreement of sale was executed by defendant Nos.2 to 4 in his favor for a consideration of Rs.6,30,000/-. Though it was executed in the year 2007, in fact, the prevailing market value at that time was Rs.17,00,000/- per acre. But, in Ex.D-1 it was mentioned as Rs.2,00,000/- per acre. The pattadar pass book and title deed were issued in the name of the 5th defendant under Exs.B-5 and B-6. Exs.B-3 and B-4 were issued in the name of the mother of the 1st defendant. He filed 9 implead petition in the suit after purchase of the suit schedule property. When he approached the Mandal Revenue Officer for mutation he was informed about the suit. The 1st defendant along with his sons has executed registered sale deed in favour of Defendant Nos.2 to 4 vide Document No.17503/05 dated 29.11.2005 in respect of the suit schedule property. Defendant Nos.2 to 4 have sold the suit schedule property to the 5th defendant by way of registered sale deed vide document No.1188/07 dated 09.01.2007 and since then, he is in peaceful possession and enjoyment of the suit schedule property The trial Court, after considering the evidence adduced by both sides and also the documents filed by learned counsel for the respective parties vide judgment and decree dated 30.06.2010 decreed the suit with costs in favour of the plaintiff and directed the 1st defendant to execute registered sale deed within 10 three months in favour of the plaintiff in respect of the suit schedule property after receiving the balance sale consideration and also directed the 5th defendant to deliver possession of the suit schedule property to the plaintiff. It is further directed that if the defendants failed to comply the same, the plaintiff is entitled for getting sale deed executed and delivery of possession of suit land by due process of law through the court.
Aggrieved by the said judgment and decree dated 30.06.2010 in O.S.No.40 of 2006, the 5th defendant preferred this appeal mainly contending that he purchased the suit schedule property from the legal heirs of the mother of the 1st defendant through respondent Nos.3 to 5. He has no knowledge about the agreement entered between respondent Nos.1 and 2. He is having entire link documents of the schedule property and all the original documents are with him, as such, he is protected under Section 19 of the Transfer of 11 Property Act. The observation made by the trial Court that the appellant is not entitled to claim benefit under Section 19 of the Specific Relief Act is incorrect. The judgment of the trial Court is contrary to Section 20 of the Specific Relief Act. The trial court did not give finding regarding readiness and willingness of the plaintiff in the suit. He further stated that non- compliance of provision under Order 2 of CPC renders the relief incapable as no relief is sought by the plaintiff to claim a distinct relief in one suit. The mutation of entries before the revenue authorities is governed under the provisions of A.P.Record of Rights, Pattedar and Pass Book Act, as such under Section 9 of the said Act, there is an exclusive bar for the Civil courts to conduct enquiry under Sections 9 and 4 of CPC as such, the trial Court ought not to have granted the relief as prayed for. As per Order 4 Rule 3 of CPC, there is a non-compliance of requirements under Order 6 12 Rule 7 CPC, as such, the trial Court ought not to have decreed the suit. As per Section 19 of the Specific Relief Act, the transaction interse between the subsequent purchaser and prior purchaser in time are one and the same and then only, Section 19 of the Specific Relief Act comes into picture. Though the principal defendant filed written statement, he did not step into the witness box and therefore, the trial court erred in admitting and decreeing the suit.
He further stated that granting the relief without any plea or sufficient proof with regard to the financial capacity of the plaintiff is incorrect as the 1st defendant entered into an agreement of sale with the plaintiff. The trial Court ought to have considered the fact that as per Section 104 of the Indian Evidence Act, whether the 1st defendant had any power to convey the suit schedule property in favour of the plaintiff, as there is no gift deed executed in his favour by his mother. As 13 per the pleading and demur of the 1st defendant, it shows that there has been collusion between the 1st defendant and the plaintiff with a malafide intention to defeat the rights of the appellant.
Learned counsel for the appellant/5th defendant has contended that the plaintiff had filed E.P.No.20 of 2017 in December 2016 though the suit was decreed on 30.06.2010 i.e., after 6 years, which clearly shows that he has no financial capacity to pay the balance sale consideration amount.
In support of his contention, learned counsel for the appellant relied upon a decision of the Hon'ble Supreme Court in KALAWATI (D) Vs.. RAKESH KUMAR1, wherein the Hon'ble Supreme Court held as follows :-
"There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity 1 AIR 2018 SUPREME COURT 960 14 of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized.... The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.....".
He also relied upon the decision of the Hon'ble Supreme Court in M/s.J.P.Builders and another Vs. A.Ramadas Rao and another2 wherein the Hon'ble Supreme Court held as follows :-
"Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and 2 (S.L.P.(C).Nos.14985-14986 of 2010), 15 willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances".
Learned counsel for the 1st respondent/plaintiff submits that the 1st respondent/plaintiff has entered into an agreement of sale with the 1st defendant and his sons and the 1st defendant and his sons have executed an agreement of sale in his favour by taking a sum of Rs.2,00,000/- by way of earnest money and Rs.25,000/- towards mutation charges and hence, he is rightful owner and the plaintiff has produced sufficient documentary evidence in support of his contention to the effect that the 1st defendant along with his sons has 16 executed an agreement of sale in his favour. In support of his contention, learned counsel for the 1st respondent/plaintiff relied upon a decision of the Hon'ble Supreme Court in THOMSON PRESS (INDIA) LIMITED Vs. NANAK BUILDERS AND INVESTORS P. LTD3, wherein the Hon'ble Supreme Court held as follows :-
"It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parities to a litigation. Discussing the principles of lis pendens, the Privy Council in the case of Gouri Dutt Maharaj v. Sukur Mohammed and Ors, AIR 1948 PC 147, observed as under:
"The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The 3 AIR 2013 SUPREME COURT 2389 17 applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings".
Admittedly, the 5th defendant preferred an appeal before this court in 2011. Even if the plaintiff files E.P for execution of the sale deed, in view of pendency of appeal, the E.P. cannot be decided, as such, merely because he has not filed the E.P. immediately after the decree of the trial court, it cannot be presumed that he has no financial capacity to pay the balance amount. Infact, the plaintiff paid Rs.2,00,000/- on the date of agreement of sale and Rs.25,000/- on 02.12.2005 and also issued legal notice on 09.12.2005 itself requesting the 1st defendant to execute registered sale deed in his favour as he is ready and willing to perform his part of contract. When the 1st defendant terminated the agreement of sale vide reply notice dated 08.12.2005, the plaintiff gave another notice through his counsel on 18 24.12.2005 and also marked a copy to the 1st defendant, but the 1st defendant managed the same returned with an endorsement that no such person in the address. Even after filing of the suit though the defendant No.1 filed written statement, he has not entered into the witness box and adduced any evidence. In fact, neither D1 nor D2 to D4 cross examined PWs.1 and 2 and they never contested the matter seriously and only the 5th defendant cross- examined the witnesses and contested the matter. The 1st defendant admitted his signature on the agreement of sale and also on the receipts issued by him. Admittedly, the sale deed executed in favour of the 5th respondent is after filing of the suit by the plaintiff and it is a subsequent transaction, that too during pendency of the suit proceedings before the trial court and thus, it is hit by Section 53 of the Transfer of Property Act and the same is not valid in the eye of law. As a bonafied 19 purchaser, it is for the 5th defendant to enquire about the prior transaction, but he failed to do so. Though the matter is pending before the trial court, the 5th defendant has not enquired about the same and purchased the suit schedule property from D2 to D4. On the other hand, the plaintiff examined himself as PW.1 and also got examined the mediator as PW.2 on his behalf. Considering the oral and documentary evidence adduced by the plaintiff, the trial court rightly decreed the suit in favour of the plaintiff. In fact, it is for the first defendant to question about the readiness and willingness on the part of the plaintiff to perform his part of contract, but not by the 5th defendant, who is a stranger to the transaction. The 1st defendant along with his legal representatives has executed sale deed in favour of defendant Nos.2 to 4 and execution of such sale deed in favour of defendant Nos.2 to 4 is in violation of the agreement of sale executed in favour 20 of the plaintiff. As no valid title was passed on to defendant Nos.2 to 4, they inturn cannot pass a better title to the 5th defendant. Moreover, in the year 2005, the plaintiff entered into the agreement of sale with the 1st defendant for the market value at the rate of Rs.3,00,000/- per acre. But, the 5th defendant, in the year 2007 i.e., after two years, entered into sale transaction for a market value at the rate of Rs.2,00,000/- per acre, though the market value at that time was Rs.17,00,000 per acre. It clearly shows the collusion between D1, D2 to D4 and D5. Therefore, the allegation of the 5th defendant that there was collusion between the plaintiff and the first defendant is not tenable. The trial Court also observed that the 5th defendant has not enquired with D2 to D4 or with D1 regarding the agreement of sale entered by D1 with the plaintiff and even after filing of the suit, he simply filed an application vide I.A.No.1256 of 2007 before the 21 trial Court seeking to implead him and contested the matter on the ground that he is a bonafide purchaser and stated that he parted with the money towards purchase of the suit schedule property innocently without the knowledge of the prior agreement. Therefore, the trial Court rightly observed that he is not a bonafide purchaser and he is not entitled for the benefit of Section 19 of the Specific Relief Act. Moreover, it was held that being a subsequent purchaser, the 5th defendant is subordinate to any decree that could be passed in favour of the plaintiff and accordingly answered the issue in favour of the plaintiff and against the 5th defendant. The 1st defendant executed agreement of sale in favour of the plaintiff. Though the 1st defendant filed written statement, he did not enter into the witness box and he has not even cross-examined PWs.1 and 2 and not contested the matter. Therefore, this Court is of the 22 view that the trial Court has rightly decreed the suit in favour of the plaintiff and against the defendants. Hence, there are no merits in the appeal and the same is liable to be dismissed.
Accordingly, the appeal is dismissed confirming the judgment and decree dated 30.06.2010 in O.S.No.40 of 2006 passed by the trial Court. No costs.
Pending miscellaneous applications, if any, shall stand closed.
________________ P. SREE SUDHA, J Date: 30.11.2022 Prv