HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No. 576 of 2015
JUDGMENT:
This appeal is preferred by the plaintiff, under Section 96 of C.P.C., against the judgment and decree passed in O.S.No.18 of 2012, dated 22.04.2015, on the file of the II- Additional District Judge, Karimnagar at Jagtial.
Appellant herein is plaintiff and respondents herein are defendants in the suit. For the sake of convenience, the parties will be referred to as arrayed before the trial Court.
In the plaint, the plaintiff averred as under: The 1st defendant is the exclusive owner and possessor of the land known as 'Eedula Gadda' in Sy.No.1390/e to an extent of Ac.0.14 ½ guntas Situated at Jagtial shivar of Jagtial Revenue Mandal and that he offered to sell an extent of Ac.0.11 ½ guntas out of Ac.0.14 ½ guntas to the plaintiff at the rate of Rs.98,000/- per gunta and as such he executed an agreement of sale in favour of the plaintiff, after 2 receiving part sale consideration of Rs.1,00,,000/- on 28.02.2012, in the presence of two witnesses. Though it was recited in the said agreement of sale that the balance sale consideration shall be paid on or before 20.05.2012, the plaintiff approached the 1st defendant on 18.05.2012 for payment of balance sale consideration, but, the 1st defendant refused to receive the same and that the said amount was kept in his bank account No.9335 in Indian Overseas Bank, Jagtial Branch on 19.05.2012. Thereafter, an attempt was made with the 1st defendant to make him receive the balance sale consideration, but he did not come forward and as such dispute was raised before caste elders of the 1st defendant and that they advised him to take the balance sale consideration and to execute a registered sale deed in favour of the plaintiff, to which he bluntly refused to receive the balance sale consideration and on the other hand made a demand for excess amount than agreed. Subsequently, the plaintiff got issued a legal notice on 21.05.2012 to the 1st 3 defendant for compliance of the agreement conditions and that the 1st defendant got issued a reply notice on 08.06.2012 stating that he had no knowledge of deposit of amount in the bank by the plaintiff and that he had cancelled the agreement of sale. Thereafter, the plaintiff filed a Pre Litigation Case before the Chairman, Mandal Legal Services Committee, Jagtial, on 25.06.2012, vide P.L.C.No.61 of 2012 and the 1st defendant failed to appear before the Committee in spite of service of notices and as such the P.L.C. was closed on 21.07.2012 with an advise to file a suit for specific performance of agreement of sale before the regular Court. Hence, the plaintiff filed O.S.No.18 of 2012 for specific performance of contract of agreement of sale dated 28.02.2012 executed by the 1st defendant in his favour and to declare the registered sale deed bearing document No.4347 of 2012 dated 24.08.2012 on the file of Sub Registrar, Jagtial, as null and void and not binding on him.
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The 1st defendant filed a written statement denying all the material allegations averred in the plaint. It is stated that since the plaintiff failed to pay the balance sale consideration amount as per the agreement dated 28.02.2012 and as the 1st defendant was in dire need of money to meet his family expenses, he sold an extent of Ac.0.08 ½ guntas of land in Sy.No.1390/e to the 2nd defendant under a registered sale deed bearing document No.4357 of 2012 dated 24.08.2012 on the file of the Sub Registrar, Jagtial and as such the plaintiff had no right over the property. It is further stated that the plaintiff was never ready and willing to perform his part of obligation i.e., payment of balance sale consideration amount within the stipulated date i.e., 20.05.2012 despite issuance of reminders to him and, therefore, he is constrained to cancel the sale agreement dated 28.02.2012. It is further stated that the plaintiff got issued a legal notice with anti date and the date appearing on the legal notice is false and in fact on the very same day 5 on which the 1st defendant received the legal notice, he got issued a reply notice to the plaintiff on 08.06.2012. The plaintiff having received the reply notice kept quiet for a period of two months and filed the present suit with all false allegations. It is further stated that though the 1st defendant requested the plaintiff to pay the balance sale consideration amount after getting the land measured, he did not turn up and thus the plaintiff violated the terms and conditions of the agreement of sale and, therefore, it is prayed to dismiss the suit filed by the plaintiff.
During the pendency of the suit, the subsequent purchaser of the suit schedule land was impleaded as 2nd defendant and in his the written statement, he stated that he has got his own land on the eastern and northern side of the plaint schedule land; that the 1st defendant for his legal necessities offered to sell his land admeasuring Ac.0.08 ½ guntas in Sy.No.1390/e situated at Jagtial for a consideration of Rs.1,07,000/-; that the 2nd defendant agreed 6 to purchase the said land and paid consideration amount of Rs.1,07,000/- to the 1st defendant and that he has executed a registered sale deed bearing No.4357/2012 dated 24.08.2012 in favour of the 2nd defendant; that the revenue authorities also mutated the name of the 2nd defendant as pattedar of the said land in the revenue records and thus the 2nd defendant is the exclusive owner and possessor of the plaint scheduled land; that the 2nd defendant is a bona fide purchaser of the suit schedule land and he had no knowledge about the execution of agreement of sale alleged to have been executed by the 1st defendant in favour of the plaintiff; that after expiry of the time stipulated in the alleged agreement of sale for payment of balance consideration amount, the 1st defendant cancelled the agreement and sold the suit scheduled property to the 2nd defendant; that the registered sale deed bearing document No.4357/2012 dated 24.08.2012 on the file of Sub Registrar, Jagtial, is valid and binding on the plaintiff; that as per 7 revenue records, the 1st defendant was the owner and possessor of Ac.0.14 ½ guntas of land in Sy.No.1390/e of Jagtial, but only Ac.0.08 ½ guntas of land was available to him to sell and as such he sold away the said Ac.0.08 ½ guntas of land and, therefore, requested the Court to dismiss the suit.
During trial, on behalf of the plaintiff, P.Ws.1 to 3 were examined and got marked Exs.A-1 to A-7. On behalf of the defendants, D.Ws.1 and 2 were examined and got marked Exs.B-1 and B-2.
The trial Court, after considering the entire evidence available on record and also the submissions made by the learned Counsel appearing on either side, dismissed the suit of the plaintiff with a direction to the 1st defendant to return the advance sale consideration amount of Rs.1,00,000/-, which he took from plaintiff on 28.02.2012, along with interest @ 6% per annum from the said date till realization within two months from the date of the judgment, failing 8 which the plaintiff can seek indulgence of the Court for recovery of the said amount.
Aggrieved by the aforesaid judgment and decree of the trial Court, the present appeal has been preferred by plaintiff, inter alia, contending that the 1st defendant, who had executed agreement of sale in favour of the plaintiff neither produced oral nor documentary evidence in support of his case; that the plaintiff specifically pleaded in his evidence-in-chief with regard to deposit of balance sale consideration in Indian Overseas Bank, but the same was not considered by the trial Court more particularly when there was no evidence on the part of the 1st defendant to show that the plaintiff was not ready and willing to perform his part of contract; that instead of considering the evidence on record in proper perspective, the trial Court on mere assumptions and presumptions proceeded in the case and refused to grant the relief sought by the plaintiff by giving erroneous findings which are totally illegal and 9 unsustainable in the eye of law and as such the judgment under appeal is liable to be set aside; that the trial Court ought to have seen that the 1st defendant never issued any notice prior to issuance of notice by the plaintiff with regard to cancellation of agreement of sale; that the 2nd defendant without verifying the earlier transaction with regard to suit schedule land, purchased the same and got the same transferred in his name and though the 2nd defendant is not a bona fide purchaser, the trial Court erred in deciding the issue against the plaintiff and in favour of the defendants; that the trial Court has not properly appreciated the provisions of Sections 16 and 20 of the Specific Relief Act, 1963 and, therefore, the judgment under appeal is liable to be set aside.
Heard the learned Counsel appearing on either side and perused the entire material placed on record. 10
The plaintiff, who was examined as P.W1, filed his chief-examination-affidavit reiterating the contents of the plaint. He stated that the 1st defendant is the exclusive owner and possessor of the land known as Eedula Gadda to an extent of Ac.0.14 ½ guntas in Sy.No.1390/e situated at Jagtial shivar of Jagtial Revenue Mandal and that the 1st defendant in order to meet his family expenses offered to sell an extent of Ac.0.11 ½ guntas out of 0.14 ½ guntas in the said survey number to the plaintiff at the rate of Rs.98,000/- per gunta and as such he executed an agreement of sale on Non Judicial Stamp paper worth Rs.100/- on 28.02.2012 in favour of the plaintiff, after receiving part sale consideration of Rs.1,00,000/-, in the presence of two witnesses viz., Mallesham and Rajkumar and agreed to execute a valid registered sale deed in his favour subject to condition to use the existing way of 10' width from North to South towards eastern side of the proposed land after receiving the balance consideration amount on or before 20.05.2012. In the cross- 11 examination, P.W.1 denied the suggestion that the amount, which he had kept in his bank account, pertains to his Real Estate business, but not for paying the same to the 1st defendant. He denied the suggestion that the Pre Litigation Case filed by him before the Mandal Legal Services Committee, Jagtial, was dismissed on the ground of his non- appearance before the said Committee on the given dates. He also denied the suggestion that the 1st defendant was not having any knowledge with regard to the said Pre Litigation Case. He further denied the suggestion that since the plaintiff failed to pay the balance sale consideration within the stipulated time, the 1st defendant constrained to sell out the land to the 2nd defendant in order to meet the marriage expenses of his daughter. P.W.1 admitted in his cross-examination that when the 1st defendant refused to receive the balance sale consideration from him, he approached the caste association President of the 1st defendant by name Abbasi Mallaiah, who advised the 1st 12 defendant to receive the balance sale consideration from P.W.1 in the presence of one Ramulu. He further admitted that the land in question is in possession of the 2nd defendant and he does not know about the mutation of the land in favour of the 2nd defendant.
One Abbasi Mallaiah, who acted as caste elder, was examined as P.W.2. He stated that on 18.05.2012 after hearing the plaintiff and the 1st defendant, he suggested the 1st defendant to receive the balance sale consideration amount and to execute a document in favour of the plaintiff, but the 1st defendant demanded for excess amount and refused to comply with the agreement of sale. In the cross- examination, P.W.2 stated that the rate agreed between the parties was Rs.98,000/- per gunta of land and in his presence, the plaintiff made an attempt to pay the balance sale consideration, but the 1st defendant refused to receive that amount.
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P.W.3, who drafted Ex.A1-agreement of sale, stated in his evidence that he has drafted the agreement of sale, dated 28.02.2012, in Telugu entered into between the plaintiff and the 1st defendant and read over the contents of the document to both parties and they admitted the same as true and correct.
Defendant No.2, who was examined as D.W.1, stated in his evidence that the 1st defendant offered to sell his land admeasuring Ac.0.08 ½ guntas in Sy.No.1390/e situated at Jagtial for a consideration of Rs.1,07,000/- in the year 2012; that the 2nd defendant agreed to purchase the said land and paid consideration amount of Rs.1,07,000/- to the 1st defendant and that he has executed a registered sale deed bearing No.4357/2012 dated 24.08.2012 in favour of the 2nd defendant and delivered possession of the land to him; that the revenue authorities have also mutated the name of the 2nd defendant as pattedar of the said land in the revenue 14 records; that the 2nd defendant is a bona fide purchaser of the suit scheduled land and he had no knowledge about the execution of agreement of sale alleged to have been executed by the 1st defendant in favour of the plaintiff; that after expiry of the time stipulated in the alleged agreement of sale for payment of balance consideration amount, the 1st defendant cancelled the agreement and sold the suit scheduled property to the 2nd defendant; that the registered sale deed bearing document No.4357/2012 dated 24.08.2012 on the file of Sub Registrar, Jagtial, is valid and binding on the plaintiff. He further stated that the legal notice got issued by the plaintiff to the 1st defendant was subsequent to the expiry of the stipulated time in the alleged agreement of sale. In the cross-examination, he stated that he does not have any previous acquaintance with the plaintiff and he came to know about him when he was added as a party to the suit; that the land in dispute is covered by Sy.No.1930/e located at Edulagatta of Jagtial shivar and he does not have 15 any idea about the total extent of land in that survey number; that one month prior to the date of registration, there were talks between him and the 1st defendant and in the month of August, 2012, registration of the land took place; that he got 6 ½ guntas of land in the vicinity of the land in dispute and the said land is covered by the same survey number and that he had no knowledge about the agreement of sale of the suit scheduled land entered into between the plaintiff and the 1st defendant. When D.W.1 was confronted with the computerized Pahani Patrika of the suit land dated 16.12.2014, he stated that the 1st defendant is having an extent of Ac.0.14 ¼ guntas. He stated that he does not know about filing of PLC No.61 of 2012 by the plaintiff against the 1st defendant before the Mandal Legal Services Authority, Jagtial. He denied the suggestion that he is not in possession of the suit schedule land and the suit schedule land was not mutated in his name and that he 16 obtained Ex.B2-Pahani Patrika by managing the revenue authorities.
One of the attestors of the registered sale deed executed by the 1st defendant in favour of the 2nd defendant was examined as D.W.2. He stated in his evidence that himself and one Ekkaladevi Mallesham were present at the time of registration of the sale deed bearing document No.4357/2012 dated 24.08.2012 on the file of the Sub Registrar, Jagtial, and that the said registered sale deed bears his signature as an attestor.
The Point that arises for consideration is whether there is any infirmity or illegality in the judgment of the trial Court warranting interference of this Court with the findings recorded by it ?
Admittedly, Ex.A1-agreement of sale was executed by the 1st defendant in favour of the plaintiff on 28.02.2012 in respect of his land admeasuring Ac.0.11 ½ guntas in 17 Sy.No.1390/e situated at Jagtial shivar, at the rate of Rs.98,000/- per gunta and that the plaintiff paid Rs.1,00,000/- to the 1st defendant on the same day towards advance sale consideration. It was recited in the said agreement of sale that after payment of balance sale consideration on or before 20.05.2012, the 1st defendant would execute the registered sale deed in favour of the plaintiff. The plaintiff, who was examined as P.W.1, stated in his evidence that he approached the 1st defendant on 18.05.2012 for payment of balance sale consideration, but, the 1st defendant refused to receive the same for the reasons best known to him and that the said amount was kept in his bank account No.9335 in Indian Overseas Bank, Jagtial Branch on 19.05.2012. Thereafter, the plaintiff made an attempt with the 1st defendant to make him receive the balance sale consideration, but he did not come forward and as such a dispute was raised before caste elders of the 1st defendant and that they advised him to take the balance 18 sale consideration and to execute a registered sale deed in favour of the plaintiff, to which he bluntly refused to receive the balance sale consideration and on the other hand made a demand for excess amount than agreed. Subsequently, the plaintiff filed a Pre Litigation Case before the Chairman, Mandal Legal Services Committee, Jagtial, on 25.06.2012, vide P.L.C.No.61 of 2012 and since the 1st defendant failed to appear before the said Committee despite service of notices, the said case was closed on 21.07.2012 with an advice to file a suit for specific performance of agreement of sale before the regular Court. Thereafter, the plaintiff filed the present suit for specific performance of agreement of sale on 30.08.2012. The contention of the 1st defendant is that since the plaintiff failed to pay the balance sale consideration within the stipulated date, he cancelled the agreement of sale entered into between him and the plaintiff and sold an extent of Ac.0.08 ½ guntas of land in Sy.No.1390/e to the 2nd defendant under a registered sale 19 deed bearing document No.4357 of 2012 dated 24.08.2012 and as such the plaintiff had no right over the property. Though the 1st defendant filed his written statement, he did not enter into the witness box to substantiate his case.
The 1st defendant failed to mention the date of cancellation of agreement of sale entered into between him and the plaintiff either in his written statement or in his Ex.A7-reply notice dated 08.06.2012. That apart, the 1st defendant never issued any notice prior to the issuance of notice by the plaintiff with regard to cancellation of agreement of sale. The 2nd defendant, who was examined as D.W.1, stated in his evidence that as if the 1st defendant cancelled the agreement of sale and sold an extent of Ac.0.08 ½ guntas of land in Sy.No,1390/e of Jagtial shivar to him under a registered sale deed bearing document No.4357/2012 dated 24.08.2012. Thus, it is evident that the 2nd defendant without verifying the earlier transaction with regard to the suit schedule land, purchased the same 20 and got transferred in his name. Further, it is admitted by the 1st defendant and the plaintiff that the 1st defendant is having total extent of Ac.0.14 ½ guntas of land in Sy.No.1390/e of Jagtial shivar, and out of the said land, the 1st defendant entered into an agreement of sale with the plaintiff to an extent of Ac.0.11 ½ guntas only at the rate of Rs.98,000/- per gunta, which comes to Rs.11,27,000/- (Rs.98,000/- x 0.11 ½ ). However, it is the contention of the 1st defendant that since the plaintiff failed to pay the balance sale consideration within the stipulated time, he cancelled the agreement and sold an extent of Ac.0.08 ½ guntas in the same survey number to the 2nd defendant for a sum of Rs.1,07,000/- only, which is much lesser than the sale consideration offered to the plaintiff.
The main contention of the 1st defendant is that the plaintiff was not at all ready and willing to perform his part of contract and, therefore, the 1st defendant issued a notice to the plaintiff informing the cancellation of Ex.A1- 21 agreement of sale executed by him in favour of the plaintiff. However, no oral or documentary evidence has been produced by the 1st defendant in support of his contention. The plaintiff (P.W.1) specifically pleaded in his evidence-in- chief that he approached the 1st defendant on 18.05.2012 for payment of balance sale consideration, but, he refused to receive the same and that the said amount was kept in his bank account No.9335 in Indian Overseas Bank, Jagtial Branch. The suggestion put to P.W.1 that the amount in the account was kept for real estate purpose itself shows that the 1st defendant has knowledge of the amount in the account of plaintiff on 19.05.2012. He stated in his cross- examination that when the 1st defendant refused to receive the balance sale consideration from him, he approached the caste association President of the 1st defendant by name Abbasi Mallaiah (P.W.2) and apprised the attitude of the 1st defendant and that P.W.2 advised the 1st defendant to receive the balance sale consideration from him. In the 22 absence of any evidence on behalf of the 1st defendant, the trial Court ought to have accepted the evidence of the plaintiff with regard to his ready and willingness to perform his part of contract. The evidence of P.W.2 is corroborated with the evidence of P.W.1 with regard to the attempts made by him for payment of balance sale consideration to the 1st defendant, who refused to receive the same. Thus, the 1st defendant, even without cancelling Ex.A1-agreement of sale entered into between him and the plaintiff and even without accepting the sale consideration offered by the plaintiff, out rightly sold the suit schedule property to the 2nd defendant (D.W.1) for a meagre sum of Rs.1,07,000/- when compared to the sale consideration agreed between him and the plaintiff. In fact, he demanded excess amount from the plaintiff for execution of registered sale deed. Thus, the subsequent registration of the sale deed in favour of the 2nd defendant is not valid as he is not a bona fide purchaser. The trial Court, without appreciating the 23 evidence on record in proper perspective, directed the 1st defendant to pay the advance sale consideration amount of Rs.1,00,000/- to the plaintiff with interest at 6% per annum from the date of agreement of sale till the date of judgment even though no alternate relief is sought for by the plaintiff for return of the sale consideration. Therefore, this Court is of the considered view that the registered sale deed bearing document No.4347 of 2012 dated 24.08.2012 on the file of the Sub Registrar, Jagtial, alleged to have executed by the 1st defendant in favour of the 2nd defendant is collusive and is not valid and binding on the plaintiff and as such it is liable to be cancelled and is accordingly cancelled.
For the reasons aforementioned, this Court finds that the findings given by the trial Court are not based on sound legal principles and that the judgment of the trial Court suffers from infirmities and material irregularities and as such it is liable to be set aside.
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In the result, the Appeal Suit is allowed, and the judgment and decree, dated 22.04.2015, passed in O.S.No.18 of 2012 on the file of the II-Additional District Judge, Karimnagar at Jagtial, are hereby set aside. The 1st respondent/defendant No.1 is directed to execute a registered sale deed conveying the suit schedule land in favour of the appellant/plaintiff after receiving the balance sale consideration within a period of three (3) months from the date of receipt of a copy of this judgment. There shall be no order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
________________________ JUSTICE P.SREE SUDHA 06.01.2023 Gsn.