THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.243 of 2009
JUDGMENT:
This Appeal Suit is filed against the Judgment and Decree dated 17.11.2008 in O.S.No.1780 of 2005 passed by the learned I - Additional Senior Civil Judge, R.R.District at L.B.Nagar, Hyderabad.
2. Appellant/plaintiff filed a suit in O.S.No.1780 of 2005 for Specific Performance against respondents/defendants. Plaintiff examined himself as P.W.1 and marked Ex.A1 Agreement of Sale on his behalf. Though defendants filed written statement, they have not Cross-examined P.W.1 and not entered into witness box to adduce evidence, as such their evidence was closed on 07.11.2008 and the trial Court after hearing the arguments of the plaintiff Counsel, partly decreed the suit for Rs.1,94,900/- with proportionate costs and future interest was awarded @ 12% p.a. from 17.06.2005 till realization. Aggrieved by the said Judgment, plaintiff therein preferred the present appeal.
3. The learned Counsel for the appellant/plaintiff contended that though the respondents/defendants admitted Ex.A1, they 2 simply stated that they thought it was General Power of Attorney (G.P.A) and they failed to enter into witness box to substantiate their version. Respondents/defendants stated that they received Rs.1,94,900/- as loan transaction, but they did not Cross-examine P.W.1. It was clearly stated by the appellant/plaintiff that out of Rs.2,00,000/-, he paid cash of Rs.5,100/- and issued a cheque for Rs.1,94,900/-. The trial Court held that agreement was not registered and there are alterations in the addresses of the defendants, but the said alterations were not attested. Even when there was an alteration, it cannot change the document. He also contended that plaintiff can file suit for Specific Performance basing on the unregistered Agreement of Sale. The trial Court observed that plaintiff failed to prove Ex.A1 by examining the attestors, but failed to observe that it was admitted by the defendants. The trial Court instead of decreeing the suit for specific performance, partly decreed it for refund of the amount paid by the appellant/plaintiff with interest. Therefore, requested the Court to set aside the Judgment of the trial Court.
4. Plaintiff in the suit stated that defendants are absolute owners of the land in Sy.No.472 measuring an extent of Acs.10 - 27 gts, situated at Thimmapur village, Kandukur 3 Mandal. They agreed to sell the property for Rs.9,50,000/-. Plaintiff found that there was no approach road for the suit schedule property and demanded defendants to get permission from the concerned authority and the same was accepted by them. Defendants also stated that other pattedars have already made requisition to the Mandal Revenue Officer, Kandukur for a way to approach road for the suit schedule property and also to the neighbouring properties and they demanded token amount of Rs.5,100/- to expedite the work, accordingly he paid the same in cash. The defendants also approached the Sarpanch and made an application on 13.06.2005 to M.R.O, Kandukur to show the approach way for the lands in Sy.No.111, 472 and 473 of Thimapur village.
5. Defendants have entered into an Agreement of Sale with the plaintiff on 17.06.2005 and plaintiff paid Rs.1,94,900/- by way of Cheque and the same was realized by defendant No.1 and later it was distributed among the defendants. Defendants delivered the suit schedule property to plaintiff on 25.06.2005 and on the demand of the defendants, plaintiff paid Rs.10,000/- for laying the approach road to the suit schedule property. When he was ready to pay the balance sale consideration, he approached the defendants, but they asked him to come after 4 Dussara festival, as such again he approached them on 16.10.2005, but they requested him to come after Diwali festival and thus he again went to them on 06.11.2005. Plaintiff was informed by defendants No.2 and 3 that defendant No.1 was not interested in selling the property to him, as such he demanded defendants No.2 and 3 to execute registered sale deed of their share, so that he can take steps against the defendant No.1, but still they have not executed the sale deed on one or other pretext. Finally on 27.11.2005, when plaintiff requested the defendants to receive balance sale consideration, they demanded more than the agreed amount and made it clear that in case of non-payment of additional amount, they are not going to register the sale deed, as such he filed the suit for specific performance.
6. In the written statement filed by the defendants in the suit, they admitted that they are absolute owners of the suit schedule property and further stated that the suit land was mutated in the revenue records in their names as per the proceedings of the M.R.O, Kandukur vide proceedings No.ROR/B/2537/2004 dated 17.12.2004, even the Pattadar Passbook and title deeds were also issued separately after dividing the entire land into three portions. They denied the 5 Agreement of Sale entered with the plaintiff and further stated that in fact, they entered into an Agreement of Sale with one A.Yadaiah. When he was not coming forward to pay the balance sale consideration, plaintiff who acquainted with defendant No.1 came forward to secure purchasers with higher price and thus they executed G.P.A in favour of the plaintiff, but plaintiff got prepared the Agreement of Sale in the guise of G.P.A and they put their signatures under the impression that it is G.P.A. Plaintiff now brought into their notice that they entered into an Agreement of Sale and filed a false suit against them. They further stated that defendant No.1 requested the plaintiff to advance a loan of Rs.3,00,000/-, but the plaintiff agreed to pay Rs.1,94,900/- through cheque, they accepted the cheque and realized the amount. The defendant No.1 is ready to repay the amount and they were never informed that it is a part of sale consideration. They never delivered even an inch of land out of the suit schedule property to the plaintiff. They handed over the suit schedule property to Yadaiah with whom they entered into the agreement. They never received Rs.10,000/- for laying the approach road from the plaintiff and he never approached them demanding to receive the balance sale consideration and execute the registered sale deed and thus there is no cause of action. The value of the suit property is more than 6 Rs.12,00,000/-, as such the concerned Court has no jurisdiction and thus requested the Court to dismiss the suit.
7. As per the docket proceedigs of the trial Court, P.W.1 examined in-chief on 08.09.2008 and marked Ex.A1. As defendants did not Cross-examine P.W.1, it was treated as no Cross-examination of P.W.1 on 31.10.2008 and plaintiff evidence was closed on the same day and thus the matter was posted for defence evidence. As there is no representation on behalf of the defendants, defence evidence was closed on 07.11.2008 and on hearing the arguments of plaintiff, matter was reserved for Judgment on the same day.
8. Now it is for this Court to see whether the Judgment of the trial Court is on proper appreciation of the facts or not.
9. The parties herein are referred as plaintiff and defendants as arrayed in the trial Court for the sake of convenience.
10. Perusal of Ex.A1 Agreement of Sale shows that it was executed by defendnats in favour of plaintiff for a total sale consideration of Rs.9,50,000/- and plaintiff paid Rs.1,94,900/- by way of cheque and Rs.5,100/- in cash i.e., Rs.2,00,000/- in 7 total towards advance sale consideration and agreed to pay balance of Rs.7,50,000/- within four months or at the time of registration of the sale deed. As per clause 4 of the Agreement of Sale, vendors agreed to clear the road within 4 months. If they fail to do so, they agreed to pay double the amount of the said advance given by the plaintiff. Vendors promised to handover the original link documents at the time of registration. Defendants did not dispute the execution of Ex.A1, but simply stated that they entered into an Agreement of Sale with one Yadaiah, but he has not paid the balance sale consideration, as such they entered into G.P.A with the plaintiff for securing purchasers. Plaintiff in the guise of drafting G.P.A, got drafted Agreement of Sale and obtained their signatures. They denied the receipt of Rs.2,00,000/-, though it was clearly mentioned in the Agreement of Sale and Ex.A1 clearly shown as Agreement of Sale, but not as G.P.A. Though defendants stated that they already entered into an Agreement of Sale with one Yadaiah, they have not filed the said Agreement of Sale before the Court. They have also not stated the date on which they entered into Agreement of Sale with him and the amount of sale consideration. They further stated that they have also handed over the possession to Yadaiah, though he has not paid the balance sale consideration to them. The said defence is not 8 believable to substantiate their version. They have not Cross- examined P.W.1 and also not entered into witness box to substantiate their version.
11. As per Section 114, III(g) of the Indian Evidence Act, adverse presumption must be drawn against the defendants who does not present themselves for Cross-examination and refused to enter into the witness box in order to refute allegations made against them or to support their pleadings in their written statement and the same proposition was also emphasized by the Hon'ble Apex Court in the case of Vidhyadhar Vs. Manikrao and another 1 and in the case of Iswar Bhai C.Patel alias Bachu Bhai Patel Vs. Harihar Behera and another 2. Even in this case, defendants did not entered into the witness box and have not made any statement in support of their defence in the written statement, as such adverse inference has to be drawn against them that what was stated by them in the written statement as not correct.
12. Mere filing of the written statement is not sufficient when once they denied the execution of the Agreement of Sale under Ex.A1, it is for the defendants to disprove the facts stated by the 1 (1999) 3 SCC 573 2 (1999) 3 SCC 457 9 plaintiff, but they failed to do so. As per Ex.A1 it was executed for Rs.9,50,000/-, out of which Rs.2,00,000/- was paid on the same day and balance to be paid within four months. Plaintiff stated that he approached defendants for execution of the registred sale deed, but they asked him to come after Dussara festival, as such he again met them on 16.10.2005, but they asked him to come after Diwali and thus he again met them on 06.11.2005. Later, they stated that defendant No.1 was not interested to execute the registered sale deed and demanded additional sale consideration. It clearly shows that defendants failed to execute the registered sale deed even after the best efforts made by the plaintiff.
13. Defendants contended that plaintiff did not examine attestor or any other witness to prove Ex.A1. When, once Ex.A1 is admitted by the defendants, it need not to be proved again by examining the attestors. The initial burden to prove Ex.A1 is on the plaintiff. When once he discharges the same, the onus shifts to the defendants, but the defendants have not Cross-examined P.W.1 and also not entered into the witness box and the defence taken by them is also not believable and they have not filed the Agreement of Sale executed by them in favour of Yadaiah for the reasons best known to them and thus the said defence appears 10 to be false. When there are several lapses on the part of the defendants and they could not register the sale deed as agreed by them in spite of best efforts made by the plaintiff, the trial Court instead of granting the decree for Specific Performance of Agreement of Sale, erred in granting the return of Rs.1,94,900/- with interest. Therefore, the Judgment of the trial Court is patently erroneous and is liable to be dismissed.
14. In the result, the appeal suit is allowed with costs by setting aside the Judgment of the trial Court dated 17.11.2008 in O.S.No.1780 of 2005. The appellant herein is directed to deposit the balance sale consideration within one month from the date of this Judgment, on such deposit, respondents/defendants are directed to execute the registered sale deed in his favour. If they fail to do so, appellant/plaintiff is at liberty to approach the concerned Court for execution of the registered sale deed in his favour.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 26.09.2023 tri 11 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.243 of 2009 DATE: 26.09.2023 TRI