HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
APPEAL SUIT Nos.559, 560, 561 & 562 of 2009 and
Tr.A.S.No.267 of 2013
COMMON JUDGMENT :
The parties in all these appeals are one and the same and the
point involved is also the same. Though separate evidence is
recorded by the trial Court in each case, the contents are one and
the same except to the extents of lands covered in each of the suit
correspondent to the dates of agreements in each suit. Therefore,
all these appeals are heard together and are being disposed of by way of common judgment.
2. For the sake of convenience, the parties are referred to as plaintiff and defendant.
3. Plaintiff filed all the suits before the Court of Senior Civil Judge, Siddipet seeking decrees for Specific Performance of Agreements of Sale of land to a total extent of Ac.27-10 gts., covered under nine sale deeds. As already stated supra, the pleadings and evidence in all the suits are one and the same and the 2 GAC, J A.S.Nos.559 of 2009 and batch trial Court decreed all the suits on 28.07.2009. In all these appeals, defendant is the appellant.
4. A.S.No.559 of 2009 is arising out of the judgment and decree in O.S.No.145 of 2006, dated 28.07.2009 which was filed by the plaintiff seeking to direct the defendant to execute registered sale deed transferring and conveying all his rights, title and interest in the suit schedule property i.e. agricultural land admeasuring Ac.6.19 gts., in Sy.Nos.171/1, 160/E and 166/U, situated at Kallakal village, Toopran Mandal, Medak District in favour of the plaintiff by receiving the balance sale consideration of Rs.1,60,000/- (covered under agreement of sale dated 27.10.2003) within the time fixed by the Court and further to grant perpetual injunction restraining the defendant, his agents, servants or any one claiming through or under him from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and also to award costs.
5. A.S.No.560 of 2009 is arising out of the judgment and decree in O.S.No.146 of 2006, dated 28.07.2009 which was filed 3 GAC, J A.S.Nos.559 of 2009 and batch by the plaintiff seeking to direct the defendant to execute registered sale deed transferring and conveying all his rights, title and interest in the suit schedule property i.e. agricultural land admeasuring Ac.2.20 gts., in Sy.Nos.159/VUU, 159/RU, 159/RUU, 159/LU, Ac.4.37 gts., in Sy.Nos.166/AA, 166/EE and 169 (Total land admeasuring Ac.7.17 gts.), situated at Kallakal village, Toopran Mandal, Medak District in favour of the plaintiff by receiving the balance sale consideration of Rs.2,05,000/- (covered under agreement of sale dated 30.10.2003) within the time fixed by the Court and further to grant perpetual injunction restraining the defendant, his agents, servants or any one claiming through or under him from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and also to award costs.
6. A.S.No.561 of 2009 is arising out of the judgment and decree in O.S.No.147 of 2006, dated 28.07.2009 which was filed by the plaintiff seeking to direct the defendant to execute registered sale deed transferring and conveying all his rights, title and interest in the suit schedule property i.e. agricultural land admeasuring 4 GAC, J A.S.Nos.559 of 2009 and batch Ac.7.09 gts., in Sy.Nos.160/E, 168/EE, 160/A, 168/A situated at Kallakal village, Toopran Mandal, Medak District in favour of the plaintiff by receiving the balance sale consideration of Rs.1,80,000/- (covered under agreement of sale dated 10.11.2003) within the time fixed by the Court and further to grant perpetual injunction restraining the defendant, his agents, servants or any one claiming through or under him from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and also to award costs.
7. A.S.No.562 of 2009 is arising out of the judgment and decree in O.S.No.149 of 2006, dated 28.07.2009 which was filed by the plaintiff seeking to direct the defendant to execute registered sale deed transferring and conveying all his rights, title and interest in the suit schedule property i.e. agricultural land admeasuring Ac.3.30 gts., in Sy.Nos.158/2/2/A and 158/2/2/AA situated at Kallakal village, Toopran Mandal, Medak District in favour of the plaintiff by receiving the balance sale consideration of Rs.1,00,000/- (covered under agreement of sale dated 07.11.2003) within the time fixed by the Court and further to grant perpetual 5 GAC, J A.S.Nos.559 of 2009 and batch injunction restraining the defendant, his agents, servants or any one claiming through or under him from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and also to award costs.
8. Tr.A.S.No.267 of 2013 is arising out of the judgment and decree in O.S.No.148 of 2006, dated 28.07.2009 which was filed by the plaintiff seeking to direct the defendant to execute registered sale deed transferring and conveying all his rights, title and interest in the suit schedule property i.e. agricultural land admeasuring Ac.2.15 gts., in Sy.Nos.156/RUU and 157/A, situated at Kallakal village, Toopran Mandal, Medak District in favour of the plaintiff by receiving the balance sale consideration of Rs.60,000/- (covered under agreement of sale dated 14.11.2003) within the time fixed by the Court and further to grant perpetual injunction restraining the defendant, his agents, servants or any one claiming through or under him from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and also to award costs.
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9. The oral and documentary evidence will be discussed as to the extent required for proper appreciation of facts.
10. The case in brief of the plaintiff is that the defendant is the absolute owner and possessor of agricultural lands admeasuring Ac.27-10 gts., in Sy.Nos.156 to 160, 168, 169 and 171 of Kallakal village and the defendant purchased the said lands under registered sale deeds dated 24.05.2003, 14.07.2003, 16.07.2003, 28.08.2003, 19.09.2003 and 22.10.2003. It is also the specific case of the plaintiff that the defendant offered to sell the lands for valuable consideration and earnest money was paid by him and he was willing to perform his part of the contract, but the defendant did not turn up to execute the sale deeds in favour of the plaintiff and kept postponing the same. The recitals of the plaint also disclose that plaintiff is known to the defendant for more than ten years as on the date of filing of the suit.
11. On the other hand, the case of the defendant in brief is that the defendant was the absolute owner of the subject land to a total extent of Ac.27-10 gts., in Kallakal village, having purchased the 7 GAC, J A.S.Nos.559 of 2009 and batch same under different registered sale deeds from the pattadars and was in possession of the said land and also applied for mutation of his name in the revenue records and accordingly, the Mandal Revenue Officer, Toopran passed orders dated 12.08.2004 mutating his name. Pursuant to it, pattadar passbooks and title deeds were also issued in favour of the defendant. It is the specific contention of the defendant that he had no intention to sell the property and the defendant being the Managing Director of M/s.Kamal Spring Fields Pvt. Ltd., whereas, his wife and his friend by name P.B.S.V.Satyanarayana Raju and his wife are the share holders in the said Company, purchased eleven acres of land in Sy.Nos.388 P, 523 P and 524 P of Gundla Pochampally village, Medchal Mandal and the vendor has applied to HUDA (Hyderabad Urban Development Authority) for grant of layout. Further, the said Real Estate Company purchased property under registered sale deeds dated 08.03.2004 and 15.03.2004 and later HUDA granted a draft layout on 30.11.2004. As per the norms of HUDA, 25% of the plots which are to be developed, should be mortgaged in favour of HUDA, till the final layout is sanctioned. As the Company 8 GAC, J A.S.Nos.559 of 2009 and batch faced financial difficulties in procuring the funds for undertaking development of the land situated at Gundla Pochampally village, at that juncture i.e. in the month of February 2005, the plaintiff expressed his willingness to purchase 20 plots, provided, the Company reduces the price and gives security for completing the development activities and also for obtaining final layout. It is the further pleading of the defendant that the plaintiff insisted the defendant to deposit the title deeds and link documents pertaining to the property of Kallakal village and insisted the defendant to make signatures on blank agreements of sale which would be returned, after approval of the final layout and that the plaintiff got prepared the blank agreements of sale on Rs.100/- non-judicial stamp papers numbering twelve, consisting of half-printed agreement proformas with blanks. Further, the defendant signed all the blank agreement proformas and also handed over nine original registered sale deeds pertaining to the land at Kallakal village to the plaintiff and that the plaintiff filed the suits on the basis of blank agreements of sale by interpolating the particulars. It is also the contention of the defendant that the plaintiff purchased 9 GAC, J A.S.Nos.559 of 2009 and batch land to an extent of 5,882.3 square yards covered under twenty registered sale deeds, out of which, eight were executed in favour of the plaintiff, nine were executed in favour of plaintiff's wife named G.Shanthi, two were executed in favour of plaintiff's son named Ajithesh and one sale deed was executed in favour of plaintiff's sister's daughter named K.Prathibha and all the said sale deeds were executed on 23.02.2005 and 11.05.2005.
12. The recitals of the written statement further disclose that neither the defendant executed agreements of sale in favour of the plaintiff with respect to the suit schedule properties nor he received any amounts from the plaintiff. The plaintiff and the brother of the defendant by name Sri Mahesh Chandra Benerjee, agreed to purchase an extent of 600 square yards in plot bearing No.289 of Vijaya Co-operative Society, Jubilee Hills, Hyderabad and the brother of the defendant paid an amount of Rs.15,00,000/- by way of demand draft, for which, the plaintiff obtained agreement of sale-cum-GPA on 26.08.2004 in the name of his wife G.Shanthi and it was agreed that the plaintiff would sell the property and distribute the amount between the plaintiff and the brother of the 10 GAC, J A.S.Nos.559 of 2009 and batch defendant. Accordingly, the wife of the plaintiff sold the said property to third parties vide registered sale deed dated 11.05.2006 and fearing of possible civil and criminal action by the brother of the defendant, the plaintiff utilized the blank agreements of sale which are with different dates, for filing the suits, taking advantage of the fact that the original sale deeds (link documents) of the suit schedule property are with him.
13. It is the specific contention of the defendant that if at all he has executed the agreements of sale on different dates in the year 2003 in favour of the plaintiff, he would not have applied for mutation and obtained pattadar passbooks on his name in the year 2004 and that the defendant has no obligation to execute sale deeds basing on the fabricated agreements, and therefore, the suits are liable to be dismissed.
14. A detailed rejoinder was filed by the plaintiff in all the suits contending inter alia that the defendant got the agreements of sale prepared on the stamp papers purchased by him and after duly filling up the blanks on the agreements of sale, the defendant has 11 GAC, J A.S.Nos.559 of 2009 and batch signed on them. Further, the plaintiff is cultivating the suit schedule land which is in his possession from the date of agreement and that the twenty sale deeds executed by the defendant relate to individual transactions which are unconnected with the present agreements of sale.
15. Basing on the pleadings, the trial Court has framed the following issues for trial in all the suits:
1. Whether the plaintiff is entitled for specific performance of agreement of sale directing the defendant to execute the registered sale deed in favour of the plaintiff by receiving balance sale consideration ?
2. Whether the defendant had deposited the title deeds with the plaintiff as security, in respect of some transaction at Gundla Pochampally village, Medchal, R.R.District as alleged by the defendant?
3. Whether the suit agreement is fabricated, all contents of the agreement are subsequently filled as alleged by the defendant ?
4. To what relief ?
16. During the course of trial, on behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A-1 to A-8 were marked. On behalf 12 GAC, J A.S.Nos.559 of 2009 and batch of the defendant, DWs.1 to 3 were examined and Exs.B-1 to B-40 were marked.
17. The trial Court, after considering the oral and documentary evidence on record, decreed all the suits for specific performance of agreements of sale, directing the defendant to execute the registered sale deeds in respect of the suit schedule properties in favour of the plaintiff.
18. The points for consideration in these appeals are;
1. Whether the agreements of sale in all the suits are genuine and binding on the defendant ?
2. Whether there is meeting of minds of plaintiff and defendant in entering into the agreements of sale ?
3. Whether the trial Court is justified in decreeing the suits ?
19. Heard learned counsel for the appellant and also the learned counsel for the respondent and perused the record.
20. On perusal of the record, it is evident that Exs.B-1 to B-40 are filed in O.S.No.145 of 2006 and no separate documents are marked in any of the other suits.
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GAC, J A.S.Nos.559 of 2009 and batch
21. It is urged by the learned Senior Counsel for the appellant Sri Y.Srinivas Murthy, that the nature of the document i.e. the agreement of sale has to be discussed in order to come to a conclusion whether the plaintiff is entitled for a decree of specific performance basing on the said document and whether the agreement of sale is a document intended for contract to sell the property entered between both the parties, and whether there is consensus ad idem among the parties, is to be looked into. It is further contended by the learned Senior Counsel that the agreements of sale in all the suits are said to be doubtful and do not instill the confidence of any prudent man to conclude the same as agreements of sale as the said agreements do not disclose as to what is the nature of transaction intended to be entered into by the parties. Further, the stamp paper of the document appears to have been purchased on 25.10.2002, whereas, the documents appear to have been executed on 27.10.2003. Furthermore, the important aspects of the documents are hand-written and said documents are stereo-type, which are intended to be of security rather than the agreements of sale. It is also contended by the learned Senior 14 GAC, J A.S.Nos.559 of 2009 and batch Counsel that the consideration mentioned in the documents does not disclose whether it is in the form of cash or cheque or by any other mode of legal transfer, and further, as per the contents of the said documents, which are not even registered, the possession was also transferred, but as per the provisions of the Registration Act, such a possessory document of agreement to sell is a compulsorily registerable document, and therefore, it is clear that the parties have never intended to enter into the transaction. It is further contended by the learned Senior Counsel for the appellant that there were interpolations on Ex.A-1 document i.e. agreement of sale as to the year and the said agreements of sale covered under all the suits are of hand-written, as to the description, total sale consideration, part paid amount and of the schedule, which clearly disclose that the documents were not intended for transaction, but were fraudulently used by the plaintiff. It is further contended by the learned Senior Counsel that the circumstance of part payment of money in cash as being alleged by the plaintiff is also contrary to his nature, as he is habituated to make payments of sale consideration by way of cheques as admitted by him in the cross- 15
GAC, J A.S.Nos.559 of 2009 and batch examination and further the sale consideration was also not reflected in his I.T. returns and that the relationship between the plaintiff and defendant got strained from 2005 and therefore, the trial Court ought to have drawn the presumption that the defendant issued blank stamp papers, only for the purpose of security for another transaction.
22. In support of his contentions, the learned Senior Counsel has relied on the judgment of Apex Court reported in Veena Singh (dead) through LRs. V. District Registrar/Addl. Collector (FR)1, wherein, their Lordships have considered the meaning and expression of "execution" at paras 39 onwards and further at para 49, while dealing with the meaning and expression of the word "execution", their Lordships have dealt with Section 35(1)(a) of Registration Act, Section (2)(12) of Stamp Act, Black's Law dictionary, Mulla's Registration Act, S.P.Sen Gupta's commentary, Sarkar's Law of Evidence and also on the precedents in Rajendra Pratap Singh v. Rameshwar Prasad [(1998) 7 SCC 602], N.M.Ramchandraiah v. State of Karnataka [2007 SCC Online 1 2022 LawSuit(SC) 602 16 GAC, J A.S.Nos.559 of 2009 and batch Karnataka 192], Banasethappa Lalji Chikkanna v. District Registrar [1995 SCC Online Karnataka 132], Sayyapariju Surya v. Ramchandra Prasad Singh and another [1949 SCC Online Madras 227], Jogesh Prasad Singh & another v. Ramchandra Prasad Singh & another [1950 SCC Online Patna 39] and also on many other precedents and held that "execution of a document does not stand admitted merely because a person admits to have signed it".
23. The learned Senior Counsel has further urged that Section 10 of the Indian Contract Act deals with what are "agreements" and "contracts" and further "consent" is dealt with under Section 13 of the Indian Contract Act and contended that as per the precedent in State of Punjab v. Hindustan Development Board Ltd., Amritser2, wherein, their Lordships have held at para 6 that "it is the essence of the contract that there should be an aggregatio mentium, the meeting of minds of the contracting parties. In a case where there is no consensus ad idem as to the making of charges of windows of altered designs, the plaintiff was not entitled to claim charges at the enhanced rates demanded by him". 2 AIR 1960 PUNJAB 585 17 GAC, J A.S.Nos.559 of 2009 and batch
24. It is further contended by the learned Senior Counsel for the appellant that Section 54 of the Transfer of Property Act defines "sale" and "contract for sale" which envisages that a contract for sale of immovable property is a contract that a sale of such property shall take place on the terms settled between the parties. It does not, by itself, create any interest in or charge over such property and further contended that as per Section 16 of the Specific Relief Act, a suit for specific performance of contract cannot be enforced in favour of a person under certain circumstances. The said Section reads as under :
"16. Personal bars to relief--Specific performance of a contract cannot be enforced in favour of a person-- 2 [(a) who has obtained substituted performance of contract under section 20; or] (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) 3 [who fails to prove] that he has 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 terms of the performance of which has been prevented or waived by the defendant. Explanation.--For the purposes of clause (c),-- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the 18 GAC, J A.S.Nos.559 of 2009 and batch plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction."
Further, Section 20 of the Specific Relief Act reads as under:
"20. Substituted performance of contract--(1) Without prejudice to the generality of the provisions contained in the Indian Contract Act, 1872 (9 of 1872), and, except as otherwise agreed upon by the parties, where the contract is broken due to non-performance of promise by any party, the party who suffers by such breach shall have the option of substituted performance through a third party or by his own agency, and, recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing such breach.
(2) No substituted performance of contract under sub-
section (1) shall be undertaken unless the party who suffers such breach has given a notice in writing, of not less than thirty days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed by a third party or by his own agency: Provided that the party who suffers such breach shall not be entitled to recover the expenses and costs under sub-section (1) unless he has got the contract performed through a third party or by his own agency.
(3) Where the party suffering breach of contract has got the contract performed through a third party or by his own agency after giving notice under sub- section (1), he shall not be entitled to claim relief of specific performance against the party in breach.19
GAC, J A.S.Nos.559 of 2009 and batch (4) Nothing in this section shall prevent the party who has suffered breach of contract from claiming compensation from the party in breach."
Contending so, the learned senior counsel for appellant has prayed to set aside the judgments and decrees passed by the trial Court in all the suits, as the plaintiff has failed to prove condition Nos.3 and 4 mentioned in the agreements of sale and further contended that the said agreements are fabricated and brought into existence only for the purpose of litigation and prayed to allow the appeals with costs.
25. On the other hand, learned Senior Counsel for the respondent Sri Y.Chandra Sekhar contended that the defendant executed agreements of sale in favour of the plaintiff after receiving the advance sale consideration and the balance sale consideration has to be paid within nine months and as major portion of the sale consideration was paid, the plaintiff was put into physical possession of the property. It is further contended that the plaintiff was always ready and willing to perform his part of contract and offered the balance sale consideration, but the defendant did not come forward either to receive the balance sale 20 GAC, J A.S.Nos.559 of 2009 and batch consideration or to execute the registered sale deeds and as the defendant was intending/proposing to sell the suit schedule properties to third parties, in view of urgency, the suits were filed after making oral demands for execution of the sale deeds.
26. It is further urged by the learned senior counsel that since the agreements of sale were possessory agreements, the plaintiff got the same impounded by the District Collector by duly paying stamp duty and penalty before filing of the suits and the suits were presented in the month of October, 2006 and they were also numbered in the said month.
27. It is further contended by the learned Senior Counsel for the respondent that the trial Court has properly appreciated the facts which includes the pleadings and evidence on record and decreed the suits in favour of the plaintiff and therefore, there is no error or irregularity in the judgments and decrees passed by the trial Court and therefore, prayed to dismiss the appeals as they are devoid of merits. It is further contended by the learned senior counsel that there is hardly any doubt that mere affixing signature on the 21 GAC, J A.S.Nos.559 of 2009 and batch document, does not amount to execution of document or admissions of the contents of the document and that the attestors/witnesses affixed their signatures to the documents i.e. the agreements of sale indicating that they have witnessed the execution of those agreements. It is contended that when a signature is purported to have been put on a document in token of its execution and the same is admitted by the person concerned to be of his, there arises a presumption that he must have executed the document.
28. In order to support his contentions, the learned senior counsel for the respondent has relied on Section 114 of the Indian Evidence Act, which reads as follows:
"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of a particular case."
29. It is further contended that, from the fact that an admitted signature of a person is found to be affixed to evidence the execution of the document, it is open to the Court to presume that the said person could have affixed the signature for execution of 22 GAC, J A.S.Nos.559 of 2009 and batch the document. If the signatory to the document says he signed blank document or a partly written document, it is for him to prove that the document must have been written later or at a subsequent stage and if he fails to do so, presumption must be drawn against him where he unequivocally admitted the signature on the document as of his.
30. It is the further argument of the learned senior counsel for the respondent that the plaintiff as PW-1, gave his evidence consistent to the pleadings which clearly disclose about the nature of the document, purchasing the suit schedule property, payments made in advance and also of other material terms of the agreement. Further, it is the specific plea of the plaintiff that the defendant himself got the blanks filled, thereafter he signed the documents in the presence of witnesses after receiving the sale consideration and also got marked the original link documents/title deeds of the vendor. In order to support the contention as to the execution, PW-2 was examined, who categorically deposed that plaintiff paid an amount to the defendant prior to execution of the agreements of sale in his presence and also in the presence of one Mr.Rajeswar 23 GAC, J A.S.Nos.559 of 2009 and batch Rao and even in the cross-examination, there is not even a single suggestion was put to the witnesses that the agreement was not executed on 27.10.2003, but it was ante-dated. Further, the evidence of PW-3 proves as to the possession of the suit schedule properties by the plaintiff and the documentary evidence in Ex.A-6/pahanis also support that plaintiff is in possession of the subject lands.
31. It is relevant to mention that during the course of arguments, the learned senior counsel for the appellant brought to the notice of this Court that the appellant filed writ petition Nos.28427 of 2007 and 1170 of 2008 relying upon Exs.B-1 to B-9 and the counter, which was filed by the MRO, before this High Court was marked by the plaintiff, which clearly goes to show that the documents in Exs.B-1 to B-9 relied upon by the defendant are fabricated. It is the contention of the learned senior counsel for the appellant that the said MRO was suspended. The fact in issue in the present appeals is whether a decree for specific performance granted by the trial Court in favour of the plaintiff holds good or not. Therefore, the question whether the MRO was suspended or not, is not at all a 24 GAC, J A.S.Nos.559 of 2009 and batch point to be discussed in this appeal, though relied or contended by both the parties.
32. It is further contended by the learned counsel for the respondent that the evidence of the defendant clearly disclose that his own mother-in-law filed a criminal case for cheating and he was in judicial custody, and therefore, his evidence was not trustworthy and the written statement clearly disclose that the defendant was very well aware of all the facts and signed on the agreements of sale and therefore, prayed to dismiss the appeals as devoid of merits.
33. After hearing the rival contentions of both the parties and considering the entire record, it is evident that the subject suits are filed by the plaintiff for the relief of specific performance of agreements of sale and for directing the defendant to execute registered sale deeds in favour of the plaintiff in all the five suits, and the trial Court, after considering the entire evidence on record, has decreed all the suits. The pleadings of the plaint clearly disclose as to the nature of the agreements entered into by the 25 GAC, J A.S.Nos.559 of 2009 and batch plaintiff with the defendant for the total extent of land i.e. Ac.27-10 gts., (in all the appeals) and pursuant to the said agreements, the plaintiff was put in possession of the said suit schedule land and that the plaintiff was ready and willing to perform his part of contract but as the defendant has not turned up to perform his part of contract, for which, the suits were filed by the plaintiff.
34. On the other hand, the pleadings in the written statement disclose that the defendant signed blank agreements of sale as a security for financial assistance in respect of the transactions of lands at Gundla Pochampally village and also handed over the link documents pertaining to the suit schedule property at the instance of the plaintiff and subsequently, the plaintiff has also purchased the land covering to an extent of 5,882.33 square yards under twenty registered sale deeds on his name and also on the names of his family members and later, the relationships between the plaintiff and defendant got strained in the year 2005. Taking advantage of the link documents in his hand, the plaintiff has made interpolations in the agreements of sale by filling up the blanks and filed suits to have wrongful gain over the suit schedule property. 26
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35. The further recitals of the written statement disclose that the plaintiff and the brother of the defendant by name Tummala Mahesh Benerjee agreed to purchase 600 square yards of plot No.289 of Vijaya Co-operative House Building Society at New MLA's and MP's colony and the defendant's brother paid an amount of Rs.15,00,000/- to the plaintiff and the understanding between the plaintiff and defendant's brother was that the property would be purchased jointly for selling the same at a later point but however, the plaintiff has obtained agreement of sale-cum-GPA from the vendors on 26.08.2004 in the name of his wife.
36. As aforesaid, a rejoinder was also filed by the plaintiff denying the recitals of the written statement contending that the sale transactions relating to the other properties are in no way connected with the suit transactions and the brother of the defendant was not examined before the Court to prove the other transactions for the reasons best known to the defendant. The rejoinder also disclose that the witnesses to the agreement of sale are well educated and known to both the plaintiff and defendant 27 GAC, J A.S.Nos.559 of 2009 and batch and their evidence cannot be brushed aside as to the agreements of sale are concerned.
37. The evidence of PW-1 is in the same lines of the averments of the plaint and the rejoinder. His evidence further disclose that not only the transactions relating to these suits, but there are many other financial transactions between the plaintiff and the defendant and the defendant also registered Ac.3-09 gts., of land in favour of plaintiff in the year 2002 i.e. subsequent to the present agreements of sale. It is the specific admission of the plaintiff that as the defendant insisted for payment in cash, he paid the amount in cash for purchase of the plots at Kallakal village and the witnesses Manik Rao and Rajeswar Rao were also present at the time of payment of cash.
38. The affidavit in lieu of chief-examination of PW-2 disclose that plaintiff paid the amount to the defendant before the execution of the agreements of sale in his presence and in the presence of R.Rajeswar Rao and after receiving the said amount, the defendant has signed the agreements of sale. In the cross-examination, it is 28 GAC, J A.S.Nos.559 of 2009 and batch admitted by PW-2 that plaintiff paid the amount in the form of cash to the defendant by keeping in a cover and that he signed the agreement as a witness and at that particular point of time, he along with Rajeswar Rao, were present and the transactions took place at Sowbhagya graphics.
39. Further, the evidence of PW-3 disclose that the plaintiff is in possession of the suit schedule property and was cultivating the agricultural land and constructed a room in the land. In the cross- examination, nothing was elicited by the defendant as to in whose possession the property was. On the other hand, the cross- examination disclose that the counsel for the defendant examined him as to the particulars of the land belonging to PW-3, which is in no way helpful to the defendant to distract the evidence that plaintiff is in possession of the property.
40. The evidence of DW-1 is also in the same lines as that of the written statement. The entire evidence of defendant disclose that suits were filed by the plaintiff playing fraud and that he did not receive single pie from the plaintiff towards sale consideration of 29 GAC, J A.S.Nos.559 of 2009 and batch suit schedule property either in the form of cash or by way of cheque. In the cross-examination, DW-1 admitted that he was doing real estate business and admitted that he signed on the agreements of sale i.e. nine blank pronotes and there was no separate meeting and did not inform to the elders. His evidence further disclose that they were seven common members who acted as mediators between him and the plaintiff on 11.05.2005 and the meeting was at Hotel Sarover. It is also admitted by DW-1 that he had not mentioned in his pleadings or in the affidavit in lieu of chief-examination about the mediation which took place for settlement of disputes. It is also admitted by DW-1 that writ petition Nos.28427 of 2007 and 1170 of 2008 were filed by him when MRO passed orders against him and volunteers that he came to know about the same when the plaintiff filed the rejoinder, which is inconsistent. On the other hand, DW-1 deposed in his cross-examination that he does not know Manik Rao and Rajeswar Rao.
41. Admittedly, PW-2 is the said Manik Rao who was examined on behalf of the plaintiff, but there was not even a single 30 GAC, J A.S.Nos.559 of 2009 and batch suggestion as to the acquaintance between them or about the non- presence of PW-2 on the date of agreement.
42. On perusal of the documents i.e. Exs.B-1 to B-9, it is evident that those are the proceedings issued by the MRO, Toopran, dated 12.08.2004. It is relevant to mention that Exs.A-7 and A-8 are the counters filed by the same MRO in W.P.Nos.28427 of 2007 and 1170 of 2008 respectively, wherein, it is stated by the MRO that Exs.B-1 to B-9 were not issued by him. Hence, it can be construed that mutation was not done in the name of the defendant as per the proceedings in Exs.B-1 to B-9. Though it is contended by the learned senior counsel for the appellant that the said MRO was suspended from service, there cannot be any adverse inference in this case as to why or for what reasons the said MRO was suspended from service, until and unless the inquiry report disclose that the MRO was suspended for issuing of proceedings with regard to the subject properties. Exs.B-12 to B-33 are the sale deeds relating to the transactions of transfer of property of the other lands which cannot have any bearing on the present appeals. 31
GAC, J A.S.Nos.559 of 2009 and batch
43. The other evidence on behalf of the defendant is that of DWs.2 and 3, wherein, they categorically stated that they were the common friends of the plaintiff and the defendant and that the plaintiff and defendant had some misunderstandings and a meeting took place for settlement of disputes at My home Sarover Complex in 2005, which, they attended and on their request, some other friends also attended the meeting and they resolved the disputes between the plaintiff and the defendant and as a security measure, some blank stamped papers, original sale deeds and promissory notes were taken from the defendant on condition that till the final layout approval is cleared from HUDA for the plots situated at Gundla Pochampally and till the release of final layout, these papers will be kept with the plaintiff.
44. In the cross-examination, DW-2 deposed that about four years back, the plaintiff informed him on phone that there were some misunderstandings and that the plaintiff informed him that he took the plots from the defendant and as there is a delay in registration and talks should be held. He also admitted that there was no written resolution for settlement and it is an oral settlement. 32
GAC, J A.S.Nos.559 of 2009 and batch
45. On the other hand, DW-3 in his cross-examination, deposed that about five years back, plaintiff informed him about the misunderstandings between him and the defendant and DW-3 advised him that it is not good, in the interest of both the persons and he also attended the meeting held at Hotel Sarover and there was a settlement between them and documents were written and that he does not know whether the settlement was reduced into writing or not. His further evidence disclose that the differences between the plaintiff and defendant were settled in the said meeting and the balance of Rs.4,000/- to be paid by the defendant to the plaintiff, was paid.
46. The oral evidence of DWs.2 and 3 is in no way helpful to the defendant to prove that there was mediation in the presence of elders including DWs.2 and 3, in order to sort out the differences between the plaintiff and defendant. It can be construed that the defendant has come up with a new story during the course of his evidence about the mediation before the elders. The written statement itself was silent about the mediation before elders. The evidence of defendant clearly disclose that there are improvements 33 GAC, J A.S.Nos.559 of 2009 and batch during the course of trial, which are not part of the pleadings. The evidence before the court should be based on the pleadings and issues framed by the Court and cannot travel beyond it. Further, there is no suggestion to PW-2 in the cross-examination that the agreements of sale were not executed on that specific date and that they were ante-dated.
47. It is also the contention of the learned senior counsel that the plaintiff has not signed the document, hence, it is doubtful. But the said contention cannot be considered as there is no hard and fast rule for the plaintiff to make his signature on the documents i.e. agreements of sale, and the defendant signed on the documents fully knowing the terms and conditions therein. Admittedly, there is no denial by the defendant that he did not make his signatures on the agreements of sale covering the suit schedule properties for the total land admeasuring Ac.27-10 gts., situated at Kallakal village under different survey numbers. On perusal of the agreements of sale in all the appeals, which are mentioned as exhibits in all the suits, it is evident that the agreement of sale is a printed proforma duly keeping the gaps to be filled with pen. The year in the 34 GAC, J A.S.Nos.559 of 2009 and batch agreement of sale is initially typed as 2002, but the date, month, the name of the defendant (vendor), father's name, age, extent of land, link documents numbers, consideration in figures and words, part payment and delivery date of vacant possession and the survey numbers mentioned in the suit schedule property are filled with pen. There is no hard and fast rule that the entire agreement shall be typed either on typewriter or on computer or it has to be in hand-writing. In general/normal course, the agreements of sale and other documents relating to registration of immovable properties will be prepared by the document writers. No doubt, the agreements of sale in the present cases, as stated above, are in partly printed form and the above said details were filled-up with pen. As far as the interpolation is concerned, it is only with respect to the year i.e. '2002' which is in printed form, is changed to '2003' i.e. number '2' is changed as '3' with pen but the said interpolation, as alleged by the defendant, cannot be accepted or considered because the witness J.Manik Rao, who is one of the attestors, has specifically made his signature at the end of the agreement and has also mentioned the date beneath his signature as 35 GAC, J A.S.Nos.559 of 2009 and batch "27.10.2003". As such, the changing of the year '2002' as '2003', cannot be construed/treated as interpolation. It is the further contention of the appellant that the agreement of sale is a compulsorily registerable document. On perusal of the agreement of sale, it can be construed that the agreements of sale were impounded by the Collector and stamp duty has been paid and there is an endorsement of the Collector office under Sections 41 and 42 of the Stamp Act that the stamp duty is duly paid and the endorsement further shows that the compulsorily registerable document, if not registered, will not affect immovable property even though stamp duty is paid on it.
48. As already discussed supra, the argument of the defendant that the year in the agreement of sale which was typed as '2002', was corrected as '2003' with pen and that amounts to interpolation, is not sustainable, as it is pleaded by the defendant in his written statement that there was a mistake that crept-in. Moreover, the defendant was not the owner of the suit schedule property as on 2002, as he himself purchased the suit schedule property in the year 2003. Therefore, the correction in the agreements of sale 36 GAC, J A.S.Nos.559 of 2009 and batch covered under all the suits cannot be taken as interpolation made by the plaintiff. The agreements of sale partly with printed format and partly filled with ink pen cannot be called as altered and further, there is no prohibition under the law to execute agreements on old stamp papers or to fill-up the blanks with pen after the document being typed. On perusal of the original documents, it is evident that the blanks on the agreements of sale covered in all the suits, were filled-up with the same pen and ink. Moreover, it is not the case of the defendant that the contents in the agreements are filled-up with different ink than that of the signatures of the attestors. The oral evidence of PW-2/the attestor corroborates the evidence of PW-1 on all aspects as to the consideration received by the defendant and the defendant making signature on the agreements of sale only after receiving the part consideration. Hence, it can be construed that there is meeting of minds as to the agreements of sale are concerned relating to all the suits which are subject matter of the appeals.
49. No doubt, as per the proposition laid down in Veena Singh's case (1 supra), the execution of the document cannot be said to be 37 GAC, J A.S.Nos.559 of 2009 and batch admitted merely because the defendant has signed the agreement but the burden is on the defendant to prove that there is no consensus ad idem (meeting of minds as to the purchase of the property by the plaintiff or selling of the property by the defendant), as it is the specific assertion made by the defendant.
50. Section 101 of the Indian Evidence Act envisages that whoever asserts a particular fact, it is for him to prove the same, therefore, it is for the defendant to prove the fact that he signed the agreements of sale only for the purpose of security for getting financial assistance relating to another property of Gundla Pochampally village.
51. Therefore, the aforesaid proposition is in no way helpful to the case of the appellant. The burden is on the defendant to prove that there is no consensus ad idem between the parties i.e. the plaintiff and the defendant as to the signing of the agreements of sale. The evidence of PW-2 itself is sufficient to prove that after receiving the consideration and fully knowing about the contents of the documents, the defendant has executed the agreements of sale 38 GAC, J A.S.Nos.559 of 2009 and batch in favour of the plaintiff. Hence, it can be construed that there are no interpolations made subsequent to signing of the documents by the defendant and they are all made prior to signing of the documents.
52. Further, the learned senior counsel has relied on the judgment of Apex Court in State of Gujarat (Commissioner, Sales Tax, Ahmedabad) v. M/s.Variety Body Builders3, wherein, their Lordships have held that it is well settled that when there is a written contract, it will be necessary for the Court to find out there from the intention of the parties executing the particular contract. That intention has to be primarily gathered from the terms and conditions which were agreed upon by the parties. Further, their Lordships have held that to constitute a transaction of sale, there should be an agreement, express or implied, relating to the goods to be completed by passing of title in those goods. It is the essence of this concept that both the agreement and the sale should relate to the same subject matter. On the true interpretation of the expression "sale of goods", there must be an agreement 3 AIR 1976 SC 2108 39 GAC, J A.S.Nos.559 of 2009 and batch between the parties for the sale of very goods in which eventually property passes.
53. The facts and circumstances of the above proposition relates to movable properties and the same cannot be applied to the immovable property except regarding the intention of the parties entering into a particular contract.
54. In this context, the learned senior counsel for the respondent relied on the judgment of Apex Court in Ram Khilona & another v. Sardar & another4, wherein, it is held as under:
"An alteration made in a deed, after its execution, in some particular which is not material does not in any way affect the validity of the deed; and this is equally the case whether the alteration was made by a stranger or by a party to the deed. Thus the date of a deed may well be filled in after execution; for a deed takes effect from the date of execution, and is quite good though it is undated. So, also, the names of the occupiers of land conveyed may be inserted in a deed after its execution, where the property assured was sufficiently ascertained without them. It appears that an alteration is not material which does not vary the legal effect of the deed in its original state, but merely expresses that which was implied by law in the deed as originally written, or which carries out the intention of the parties already apparent on the face of the deed, provided that the alteration does not otherwise prejudice the party liable under it."
4 AIR SCW 2002 40 GAC, J A.S.Nos.559 of 2009 and batch The above judgment squarely applies to the facts and circumstances of the present case and it can be construed that only after filling-up the blanks in the agreements of sale, the documents were signed.
55. It is an admitted fact that the defendant is doing real estate business since long time and there are transactions between the plaintiff and the defendant for more than ten years as per the evidence and pleadings. It is also an admitted fact that the defendant has signed the documents and handed over the link documents to the plaintiff. As per their evidence, relationships between the plaintiff and defendant were strained in the year 2005 and the suits were filed by the plaintiff in the year 2006. Though it is the contention of the defendant that the link documents were handed over by him to the plaintiff in the year 2002 as security purpose, what prevented him from issuing a notice calling upon the plaintiff to return the documents, is not at all explained. Moreover, the pleadings of the defendant disclose that there were transactions between the plaintiff and his brother, but it is not known as to why the brother of the defendant was not examined before the Court to 41 GAC, J A.S.Nos.559 of 2009 and batch support the transactions of the defendant with the plaintiff. Further, there is no evidence on record to show that the brother of the defendant has filed cases against the plaintiff.
56. In view of oral evidence of PWs.1 to 3, it is evident that the plaintiff and the defendant entered into agreements of sale after duly passing on consideration in the presence of PW-2 and the evidence of PW-2 corroborates the evidence of PW-1 as to the execution of agreements of sale in all the suits by the defendant as to the identity of minds and the evidence of PW-3 also establishes that possession was delivered by the defendant to the plaintiff and who in turn, is cultivating the land. Therefore, it can be construed that after identity of minds, the agreements of sale have been entered into between the plaintiff and the defendant and therefore, the trial Court is justified in decreeing the suits. Accordingly, Point Nos.1 to 3 are answered in favour of the plaintiff.
57. In view of the above, all these appeals are devoid of merits and are accordingly dismissed, and the judgments and decrees dated 28.07.2009, passed by the Senior Civil Judge, Siddipet in 42 GAC, J A.S.Nos.559 of 2009 and batch O.S.Nos.145, 146, 147, 148 and 149 of 2006 are hereby confirmed. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 06.09.2022 N.B:
L.R. copy be marked.
(b/o) ajr