Telangana High Court
Mohanlal , Mohan Pahelwan vs Jai Prakash Total And 2 Others on 5 February, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr.JUSTICE G. RADHA RANI
SECOND APPEAL Nos.1287 and 1308 of 2012
COMMON JUDGMENT:
These second appeals are filed by the appellant-respondent- defendant No.2 aggrieved by the common judgment and decree dated 22.02.2012 passed in A.S.Nos.204 and 206 of 2008 on the file of the IX Additional District and Sessions Judge (F.T.C.), Ranga Reddy at L.B. Nagar in allowing the appeals filed by the respondent No.1-plaintiff by setting aside the common judgment and decree dated 30.06.2008 passed in O.S.Nos.998 and 941 of 2001 on the file of the V Additional Senior Civil Judge (FTC), Ranga Reddy District.
2. The respondent No.1-plaintiff filed O.S.No.998 of 2001 for specific performance of agreement of sale dated 27.10.1996 in respect of Ac.0-37 gts. in Sy.No.64, Ac.1-00 gts. in Sy.No.392, Ac.1-38 gts. in Sy. No.393, in all admeasuring Ac.3-35 gts. situated at Narkoda Village, Shamshabad Mandal, Ranga Reddy District and filed O.S. No.941 of 2001 for perpetual injunction restraining the defendants or any other person acting on behalf of the defendants from interference with his possession over the suit schedule property.
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Dr.GRR, J S.A.Nos.1287 and 1308 of 2017
3. The parties are hereinafter referred as arrayed before the trial court.
O.S.No.998 of 2001:
4. The contention of the plaintiff was that he entered into an agreement with defendant No.1 to purchase agricultural land admeasuring Ac.13-32 gts. covered under Sy. Nos. 64, 385, 390 to 393 situated at Narkoda village, Shamshabad Mandal, Ranga Reddy District under agreement of sale dated 27-07-1996 at the rate of Rs.40,000/- per acre. After the execution of the agreement of sale, the defendant had delivered and put the plaintiff in possession of the entire property and since then the plaintiff was in possession of the entire land and cultivating the same by developing the said land. The plaintiff paid the entire sale consideration in respect of Ac.13-32 guntas to the defendant. As there was difference in the extent of land in Sy. No. 64 to an extent of Ac.0-26 guntas, as per entries made in the pass book and title deed and link documents, the defendant on demand of the plaintiff executed registered sale deed bearing No.2512/2000 dated 06-09-2000 to an extent of Acs.9-11 guntas (i.e., Ac.1-32 gts. in Sy.No.385, Acs.4-20 gts. in Sy.No.390, Ac.1-39 gts. in Sy.No.391 and Ac.1-00 gts. in Sy.No.392 part), all situated at Narkoda 3 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 village, Shamshabad Mandal, Ranga Reddy District and agreed for survey of the total land and in the said sale deed the defendant accepted and acknowledged the receipt of entire sale consideration in respect of land Ac.13-32 guntas under the agreement of sale dated 27-10-1996 and handed over all the original documents pertaining to the above said land to the plaintiff and acknowledged the possession of the plaintiff over entire land. The defendant delivered the physical possession of the entire land under receipt of delivery note dated 31-10-1996 and also delivered the possession of Ac.9-11 guntas under the registered sale deed dated 06.09.2000. After the execution of the above sale deed, the land was surveyed at the cost of the plaintiff and found that the total extent was only Ac.13-06 guntas instead of Ac.13-32 guntas. As such, the defendant agreed that she would execute the sale deed in favour of plaintiff in respect of the remaining land admeasuring Ac.3-35 gts. and requested to forego the excess amount paid by him. The plaintiff was requesting the defendant to execute the registered sale deed in respect of the remaining land admeasuring Ac.3-35 gts. out of Ac.13-06 gts, but the defendant dodged the same, postponed execution of registered sale deed and lastly refused to execute the sale deed on 01.11.2001, when the plaintiff demanded to execute the registered sale deed.
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Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 4.1. The plaintiff further contended that on 06.11.2001 some persons came to the agricultural land admeasuring Ac.3-35 gts. and were inspecting the same. On his enquiry, they revealed that they were interested in purchasing the said land and that negotiation was in progress. From then onwards, the defendant started interference to dispossess the plaintiff from the suit schedule property without any right or claim. After receiving the entire sale consideration in respect of Acs.3- 35 gts, she was bound to execute the registered sale deed but negotiating with third parties with an intention to cause loss to the plaintiff. Left with no other alternative, the plaintiff approached the court seeking specific performance of the part of the contract under the agreement of sale dated 27.10.1996 and for perpetual injunction against the defendant.
5. The defendant No.2 - the subsequent purchaser (appellant herein) was impleaded as per the orders in I.A.No.1741 of 2001 dated 08.02.2002 and an amendment was made to the reliefs to cancel the registered sale deed bearing No.4713/2001 dated 10.10.2001 executed by defendant No.1 in favour of defendant No.2.
6. The defendant No.1 filed written statement submitting that she was the absolute owner and possessor of the agricultural land total 5 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 admeasuring Ac.13-32 guntas situated at Narkoda village, Shamshabad Mandal, Ranga Reddy District forming part and parcel of land in Sy.Nos.64, 385, 391, 392 and 393. On 27.10.1996, she entered into an agreement of sale with the plaintiff wherein she agreed to sell the entire extent of Ac.13-32 gts. in his favour for a valuable sale consideration at the rate of Rs.40,000/- per acre subject to actual measurement and availability of land on the ground. In pursuance of the same, she received a total sale consideration of Rs.50,000/- initially and as per clause 1 (c) of the said agreement of sale the purchaser i.e., plaintiff has to pay the balance amount of sale consideration @ Rs.40,000/- per acre on or before 30-08-1997. The said condition expired and the plaintiff failed to perform his part of contract under that agreement of sale and violated the terms and conditions. However, the plaintiff on expiry of the said period of time again requested the defendant to extend the time for execution of agreement of sale so as to enable him to arrange for necessary funds and to pay the balance amount of sale consideration. Finally, the plaintiff expressed that he was not in a position to pay the entire sale consideration for the total extent of the land and requested the defendant to execute the sale agreement only to an extent of Acs.9-11 guntas out of the total extent of Acs.13-32 guntas of the suit schedule property. Accordingly, the 6 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 defendant executed the registered sale deed dated 06-09-2000 in favour of the plaintiff to an extent of Acs.9-11 guntas forming part and parcel of Ac.1-32 gts. in Sy.No.385, Acs.4-20 gts. in Sy.No.390, Ac.1-39 gts. in Sy.No.391 and Ac.1-00 gts. in Sy.No.392 (part) situated at Narkoda village, Shamshabad Mandal, Ranga Reddy District within the boundaries mentioned in the said sale deed. The defendant received and adjusted the sale consideration of Rs.3,71,000/- in respect of Acs.9-11 gts. out of the total extent of Acs.13-32 gts.. Accordingly, the plaintiff became the owner of the land to an extent of Acs.9-11 gts. but not to the total extent of Acs.13-32 gts. as contended by him. The plaintiff under the guise of the said sale deed, executed for an extent of Acs.9-11 gts. tried to encroach upon the remaining land belonging to the defendant No.1. The agreement of sale by the omissions and commissions of the plaintiff resulted in execution of the sale deed dated 06.09.2000 to an extent of Ac.9-11 gts.. The rest of the claim in respect of the remaining land had been forfeited by the plaintiff and the said fact was suppressed by him. The plaintiff himself before execution of the said sale deed expressed his inability to pay the balance sale consideration for the entire land and it was mutually agreed to execute the sale deed to an extent of sale consideration already received by the defendant. In that process, the 7 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 above said sale deed dated 06.09.2000 was got executed. The plaintiff was a practicing Advocate for the last more than fifteen years, as such, trying to take advantage of his legal knowledge and in that process, he got executed a false receipt for the alleged delivery of possession of the entire extent of the land without extension of agreement of sale in his favour. The receipt dated 31.10.1996 was not having any validity in view of the subsequent sale deed dated 06.09.2000. As such, the said receipt was not binding on the defendant. Prior to the said execution of sale deed certain negotiations and meetings took place between the defendant and the plaintiff in the presence of the defendant's son as well as the defendant No.2. In pursuance of the same only, the sale deed dated 06.09.2000 was executed in favour of the plaintiff.
6.1. The defendant further submitted that on execution of the sale deed dated 06.09.2000, she sold the remaining extent of Acs.4-21 gts. owned and possessed by her to the defendant No.2 for a valuable sale consideration under sale deed dated 10.10.2001 vide document No.4713 of 2001 on the file of the Sub-Registrar Office, Shamshabad. The said sale deed was executed by the defendant as well as by her husband and sons and the possession of the land to an extent of Acs.4-21 gts. was 8 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 delivered to defendant No.2. At present, he was in occupation of the same. By virtue of the said sale transaction, the plaintiff had no more locus-standii to approach the Court. Infact, the plaintiff was in knowledge that the balance Ac.4-21 gts. was sold to the defendant No.2, but had not filed the suit initially against the defendant No.2 and only impleaded him as per the orders dated 08.02.2022. The defendant No.2 being the bonafide purchaser was entitled to protect the land and his rights to an extent of Acs.4-21 gts. under the sale deed dated 06.09.2000. The plaintiff was having right only to an extent of Ac.9-11 gts which was owned and possessed by him under the sale deed dated 06.09.2000. For the balance of land, the plaintiff had no right to seek any relief either against her or the defendant No.2 who was a bonafide purchaser and prayed to dismiss the suit.
7. The defendant No.2 filed a memo adopting the written statement filed by defendant No.1.
8. Basing on the said pleadings, the following issues are settled for trial by the trial court:
1. Whether the plaintiff expressed his inability to purchase total land of Acs.13-32 gts., as per the 9 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 agreement dated 27.07.1996 due to shortfall of the amount and purchased only Acs.9-11 gts. and given up his right over the plaint schedule land to defendant No.1?
2. Whether the defendant No.2 is a bonafide purchaser of plaint schedule land?
3. Whether the plaintiff is entitled for specific performance of contract in respect of plaint schedule land by seeking cancellation of sale deed executed by defendant No.1 in favour of defendant No.2?
4. Whether the plaintiff is in possession of the plaint schedule land and entitled for perpetual injunction?
5. To what extent?
O.S.No.941 of 2001:
9. This suit was filed by the plaintiff against the defendants 1 and 2 who were the sons of his vendor, Smt. Sarojini Yadav @ Saroja and subsequent purchaser arrayed by him as defendant No.3 seeking the relief of perpetual injunction for the entire agricultural land admeasuring Ac.13-32 gts. in Sy.Nos.64, 385, 390, 391, 392 and 393 situated at Narkoda village, Shamshabad Mandal, Ranga Reddy District. In this suit, he contended that Smt. Sarojini Yadav @ Saroja represented that she was the absolute owner and possessor of the agricultural land totally admeasuring Ac.13-32 gts. and entered into an agreement with him on 27.10.1996 and received part of sale 10 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 consideration and delivered physical possession of the suit schedule property on 31.10.1996 and documents in part performance of the said agreement of sale and since then he was in peaceful possession and enjoyment of the same as agreement holder and his name was also entered in the revenue records in possessory column. He developed the suit schedule property by levelling, fencing and was doing agriculture in it. Smt. Sarojini was receiving the balance sale consideration from the plaintiff from time to time. On 06.09.2000, Smt. Sarojini executed a registered sale deed in respect of a portion of the suit schedule property to an extent of Ac.9-11 gts. covered by Sy.Nos.385, 390, 391 and 392 and agreed to execute and register the sale deed in respect of the remaining land after surveying it, as and when demanded by the plaintiff. The said Sarojini delivered the original title deeds, link documents and all other documents in her possession in respect of the suit schedule property to the plaintiff. The name of the plaintiff had been mutated in the revenue records as pattadar and possessor in respect of the schedule property. The patta passbooks were also issued in favour of the plaintiff as per the orders passed in R.O.R. proceedings No.B-771/2000 dated 03.03.2001 in respect of the property covered by the sale deed. The plaintiff paid the 11 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 total sale consideration to Smt. Sarojini. While the matters stood thus, the defendants who have no right, title and interest of whatsoever nature started interfering with the possession and enjoyment of the plaintiff over the suit schedule property. On 17.10.2001, the defendants tried to interfere with the possession of the plaintiff with the help of unsocial elements, however, the defendants could not succeed in their attempts due to the timely resistance of the plaintiff. The defendants threatened to come again with more force to take forcible possession of the suit schedule property. As the police refused to receive the complaint, he filed the suit seeking the relief of perpetual injunction.
11. The defendant No.1 filed written statement which was adopted by defendants 2 and 3. The said written statement was on similar lines with the written statement filed by defendant No.1 in O.S.No.998 of 2001. It was also stated by defendant No.1 that he was an attesting witness to the said sale deed dated 06.09.2000 executed by his mother in favour of the plaintiff. He specifically contended that the earlier agreement between his mother and the plaintiff for the entire extent of Acs.13-32 gts. stood terminated before execution of 12 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 the sale deed itself, as the plaintiff expressed his inability to pay the entire sale consideration for the entire land and it was mutually agreed to execute the sale deed only to the extent of sale consideration received by the defendant No.1 and in that process, the above sale deed was executed by his mother Smt. Sarojini. Taking advantage of the absence of defendants 1 and 2, the plaintiff got executed a receipt in the year 1996 with regard to the alienation provision over the suit schedule property to an extent of Acs.13-32 gts.. However, in view of the subsequent sale deed dated 06.09.2000, the receipt dated 31.10.1996 had no validity, nor the same was binding on the defendants. The defendant No.1 also contended that subsequent to the execution of the sale deed to the plaintiff, his mother Sarojini sold the remaining extent of Acs.4-21 gts. owned and possessed by her to defendant No.2 for a valuable sale consideration before the Sub- Registrar Office, Shamshabad and the said sale deed was executed by his mother Sarojini as well as the defendants 1 and 2 and their other brother and the portion of the land to an extent of Acs.4-21 gts. was delivered to defendant No.3 and he was in occupation of the same. The defendant No.1 further contended that the plaintiff ought to have made their mother as a necessary party to the above proceedings. The 13 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 plaintiff approached the court with unclean hands, suppressing the true facts and prayed to dismiss the suit.
12. Basing on the said pleadings, the trial court framed the issues as follows:
1. Whether the plaintiff is in peaceful possession of the plaint schedule property as on the date of the suit?
2. Whether the alleged interference by the defendants is true and correct?
3. Whether the plaintiff is entitled for perpetual injunction as prayed for?
4. To what relief?
13. The trial court clubbed both the suits and recorded evidence in common in O.S.No.998 of 2001. The plaintiff got examined himself as PW.1 and got marked Exs.A1 to A26. Smt. G. Sarojini Yadav @ Saroja, the vendor of the plaintiff was examined as DW.1. No documents were marked on behalf of the defendants.
14. On considering the oral and documentary evidence on record, the trial court i.e., V Additional Senior Civil Judge (FTC), Ranga Reddy District dismissed both the suits. Basing on the admissions made 14 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 by PW.1 in his cross-examination that as per clause 1(c) of the agreement of sale, the balance sale consideration was payable by 30-08-1997 i.e., at the time of registration and PW.1 admitted that as per clause 2 of the said agreement of sale, the actual and physical possession of the property was agreed to be delivered at the time of registration of the sale deed and further admitted that defendant No.3 in O.S.No.941 of 2001 and defendant No.2 in O.S.No.998 of 2001 had purchased the remaining land of Ac.4-21 gts. and that he had not issued any notice to the defendant No.1 demanding her to perform her part of the contract before filing of the suit in O.S.No.998 of 2001 and that he had not filed Exs.A2 to A12 receipts at the time of filing of O.S.No.998 of 2001, the trial court held that the plaintiff failed to perform his part of contract and that as he paid only Rs.3,71,000/- he got executed a sale deed for an extent of Ac.9-11 gts. only which itself would disclose that he forfeited his right with regard to the balance extent of Ac.4-21 gts.. Further he had also not issued any notice to the defendant No.1 expressing his willingness and readiness to get the execution of the sale deed to the balance extent. As such, he was not entitled for the relief of specific performance of contract in respect of the suit schedule property and for seeking cancellation of sale deed executed by defendant No.1 in favour of defendant No.2. 15
Dr.GRR, J S.A.Nos.1287 and 1308 of 2017
15. The trial court further observed that as the plaintiff in his cross-examination admitted that defendant No.3 was in possession and enjoyment of Acs.4-21 gts., since the date of his purchase, he was not entitled for the relief of perpetual injunction and dismissed both the suits.
16. Aggrieved by the said common judgment and decree dated 30.06.2008 passed in O.S.No.941 and 998 of 2001, the plaintiff preferred A.S.No.204 of 2008 against the judgment and decree in O.S.No.998 of 2001 and A.S.No.206 of 2008 against the judgment and decree in O.S.No.941 of 2001. Both these appeals were heard by the learned IX Additional District and Sessions Judge (FTC), Ranga Reddy District and vide common judgment dated 22.02.2012, the appeals were allowed reversing the findings of the trial court.
17. Aggrieved by the said common judgment in A.S.Nos.204 and 206 of 2008, reversing the common judgment of the trial court in O.S.Nos.941 and 998 of 2001, the appellant, who was the subsequent purchaser of Ac.4-21 gts. preferred these appeals.
18. On 10.04.2018, this Court formulated the following substantial questions of law:
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Dr.GRR, J S.A.Nos.1287 and 1308 of 2017
1. Whether out of the entire contract for sale for a portion of it regular sale deed obtained, said splitting tantamount to abandonment or relinquishment of the remaining portion of the contract enforcing for specific performance?
2. If so, whether the 2nd defendant by name Mohanlal @ Mohan Pahelwan in O.S.No.998 of 2001 filed for specific performance is a bonafide purchaser under Ex.A26 registered sale deed dated 10.10.2001 and the same is not thereby liable to be cancelled, as sought for in the part of the reliefs for specific performance consequently?
3. Whether the reversal finding of the lower appellate court in decreeing both the suits setting aside the dismissal of the reliefs by the trial court is outcome of ill-appreciation with perversity including in ignorance of the admissions made by the plaintiff-Jai Prakash Totla in his evidence?
4. To what result?
19. Heard Sri Suresh Shiv Sagar, the learned counsel for the appellant and Sri J. Prabhakar, the learned counsel for the respondents.
20. The learned counsel for the appellant contended that though the agreement of sale was entered by the respondent No.1-plaintiff with 17 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 the respondent No.2-defendant No.1 in O.S.No.998 of 2001, admittedly, the sale deed was executed in his favour only for Ac.9-11 gts., but filed the suit for injunction for the entire extent of Acs.13-32 gts. without impleading the vendor as defendant in O.S.No.941 of 2001. The plaintiff introduced a receipt in evidence, but there was no whisper about payment of the amount in his pleadings. No legal notice was issued by the plaintiff after abandoning the contract in part. The Doctrine of Merger would be applicable. The agreement of sale would be merged with the sale deed. The relief that could be granted under the specific performance of contract was only discretionary. The principles of equity had no application. The plaintiff had not given any details about the payments made to the defendant No.1. Exs.A2 to A12 receipts were introduced subsequently. Without any pleadings, without any survey report or panchanama, the plaintiff pleaded that the balance land was only Acs.3-35 gts instead of Acs.4-21 gts. Issuing of legal notice before filing the suit for specific performance was mandatory. Only to escape his liability, the plaintiff pleaded that the land available was not to the total extent for which the agreement was entered. The plaintiff directly filed the suit after coming to know about the defendant No.1 executing a sale deed in favour of subsequent purchaser i.e., the appellant. All the receipts 18 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 filed by the plaintiff were prior to execution of the sale deed dated 06.09.2000. No receipts subsequent to the said date were filed. The agreement of sale marked under Ex.A1 was dated 27.10.1996. Exs.A2 to A12 receipts were prior to execution of the sale deed marked under Ex.A23 dated 12.08.2000. There was no pleading that he was willing to perform his part of the contract. Without mentioning the sale consideration and without giving the details of the amounts paid, the plaintiff only stated that he paid the entire sale consideration. There was no separate contract for the balance available land. Without any authentic proceedings, the name of the plaintiff was appearing in possessory column for Acs.13-32 gts. which was disbelieved by the trial court. The plaintiff kept silent for one year after execution of sale deed in his favour for Acs.9-11 gts. The plaintiff did not approach the court with clean hands by giving all the details in the plaint. The link documents were delivered to the plaintiff, as per his plaint in 1997 itself then he ought to have knowledge that the defendant No.1 was the owner only to an extent of Acs.13-06 gts., but not Acs.13-32 gts.. Even if the entire amount for Acs.13-06 gts. was considered as paid by the plaintiff then the sale deed ought to have been executed for Acs.13-06 gts. of land, but not for Acs.9-11 gts.. The same would prove that the plaintiff had not 19 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 approached the Court with correct facts. The appellant was a bonafide purchaser. He was not aware of the agreement of sale entered between the plaintiff and defendant No.1 and prayed to allow the appeals.
21. The learned counsel for the respondent on the other hand contended that the plaintiff entered into agreement of sale dated 27.10.1996 with the defendant No.1 for purchase of Ac.13-32 gts. marked under Ex.A1 @ Rs.40,000/- per acre and she executed an agreement of sale by receiving an advance amount of Rs.50,000/-. The defendant No.1 delivered the total extent of land and handed over possession on 31.10.1996 even prior to sale deed. The plaintiff paid total amount of Rs.4,70,000/- as on 15.12.1998. The defendant No.1 handed over the link documents and other revenue documents at the time of registration. Both parties identified that there was discrepancy in the total extent pertaining to survey numbers. Due to the discrepancy in the extent, the defendant No.1 executed registered sale deed dated 06.09.2000 for part of the property to an extent of Ac.9-11 gts. out of total Ac.13-36 gts.. Both the parties agreed that the land had to be surveyed as the available land was less on the ground. Out of sale consideration of Rs.4,80,000/- paid by the plaintiff, an amount of Rs.3,71,000/- was adjusted towards the sale price 20 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 of Ac.9-11 gts. covered under the sale deed. The vendor-defendant No.1 agreed to execute another sale deed for the remaining extent of the land after conducting survey. The sale deed would clearly show that it was executed for the present adjusting the sale consideration. While so, the vendor without making any efforts to measure the land clandestinely sold the property to the appellant herein by executing the registered sale deed dated 10.10.2001 to an extent of Ac.4-26 gts.. When the subsequent purchaser tried to interfere with his possession, the plaintiff filed suit for perpetual injunction against the subsequent purchaser and the sons of the vendor vide O.S.No.941 of 2001 and filed another suit vide O.S.No.998 of 2001 for specific performance of the contract. The subsequent purchaser was added as defendant No.2 in O.S.No.998 of 2001. Both the suits were tried together and dismissed by the V Additional Senior Civil Judge, Ranga Reddy District vide common judgment dated 30.06.2008. Aggrieved by the dismissal of the suits, the appellant preferred appeals. The appeals were allowed by the IX Additional District and Sessions Judge, Ranga Reddy District on merits. The subsequent purchaser (appellant herein) preferred the second appeals, but the original vendor, who executed the agreement of sale, did not file any appeal against the decree passed by the first appellate court. As such, the said decree was 21 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 binding on the vendor. The plaintiff having performed his part of the contract and who was in lawful possession of the property acquires possessory title and the same was liable to be protected under Section 53- A of the Transfer of Property Act. No witnesses were examined on behalf of the defendants in the injunction suit and not even a single document was marked on behalf of the defendants. The appellant failed to adduce any evidence to show that he was in legal possession of the property. He failed to discharge the onus on him. Except the created nominal sale deed, the appellant who was subsequent purchaser had no proof to show that he was in possession. As on the date of filing of the suit, the appellant was in possession of the property to an extent of Acs.13-36 gts. which was supported by the sale deed and revenue documents. The appellant-subsequent purchaser had no right to remove the plaintiff from legal possession. The appellant was not a bonafide purchaser for value. The initial burden would be on the purchaser to show that he was a bonafide purchaser without notice. The subsequent purchaser did not enter into witness box and did not present himself to be cross-examined and relied upon the judgment of the Hon'ble Apex Court in Vidyadhar Vs. Manikrao and Anr. 1 wherein it was held that:
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AIR 1999 SC 1441 22 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 "when a party does not appear in the witness box and does not offer himself to be cross-examined by the other side, a presumption can be drawn that the case set up by him would be false."
22. The learned counsel for the respondent further contended that all the link documents were with the plaintiff. It was surprising as to how the defendant No.2 purchased the property without verifying the title documents, link documents and revenue records. The pahani was a public document, thus the purchaser had clear notice that the plaintiff was in possession of the property for the total extent. The pahani for the year 1996-1997 marked under Ex.A19, for the year 1997-1998 marked under Ex.A20, for the year 1998-1999 marked under Ex.A21 and for the year 1999-2000 marked under Ex.A22 would clearly reflect the name of the respondent-plaintiff in the possessory column for the entire land admeasuring Ac.13-36 gts.. The burden was on the subsequent purchaser to prove that he was a bonafide purchaser without prior notice and relied upon the judgment of the High Court of Madras in B. Amudha Vs. K. Rajendran 2.2
LAWS (MAD) 2022-3-29 23 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017
23. With regard to the contention that the splitting of the agreement of sale would tantamount to abandonment or relinquishment of the remaining portion of the contract, the learned counsel for the respondent-plaintiff contended that the true test of passing of property was the intention of parties and such intention was primarily to be gathered and determined from the recitals of the agreement of sale and sale deed. When the recitals were insufficient or ambiguous, then the surrounding circumstances and conduct of parties could be looked into for ascertaining the intention and relied upon the judgment of the Hon'ble Apex Court in Kaliaperumal Vs. Rajagopal & Anr. 3
24. In the light of the above contentions raised by both the learned counsel, the substantial questions of law formulated by this Court need to be answered.
25. Substantial Question of Law No.1:
Whether splitting of the agreement of sale and entering into the registered sale deed only for a part of the contract, would amount to relinquishment of the remaining portion of the contract or whether specific performance can be enforced for the balance extent?3
2009 (4) SCC 193 24 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017
26. The learned counsel for the appellant put forth the argument of the doctrine of merger. The Hon'ble Apex Court in Kunhayammad and others Vs. State of Kerala and another 4 explains merger as:
"To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality."
27. As per the contention of the learned counsel for the appellant when the agreement of sale culminated into a sale deed, the terms of the contract were merged into the sale deed and nothing would survive subsequently. In a sense, the registered sale deed is presumed to supersede all preceding negotiations and agreements, and all rights and remedies of the parties in relation to the transaction would be determined by the registered sale deed. The doctrine raises a prima facie presumption that, upon acceptance of the deed, a contract for sale of property becomes merged in the deed consummating the contract. The deed, therefore, is the final execution of the whole contract. There are also some exceptions to the doctrine when the contractual provisions are 4 2000 (6) SCC 359 25 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 independent of, or collateral to, 1) the agreement to convey the property,
2) merger was because of fraud, mistake, or accident, 3) merger was not the intent of the parties because the deed was only a partial execution of the contract, or 4) that a specific statutory exception prevented a merger and 5) when the contract provides that certain provisions shall survive delivery of the deed. No merger results because the parties expressly intended that a merger would not occur.
28. Thus, the intention of parties, the recitals of the agreement of sale and the sale deed are important to consider whether the agreement of sale is culminated into a registered sale deed or whether it survives even after partial execution of the contract.
29. The agreement of sale was marked as Ex.A1. The contents of Ex.A1 would disclose that it was entered between the parties i.e. the plaintiff and the defendant No.1 in O.S No.998 of 2001 for an extent of Acs.13.32 gts., in different survey numbers at that rate of Rs.40,000/- per acre and it would disclose that the vendee had paid a sum of Rs.50,000/- towards earnest money and as part of sale consideration in cash to the vendor, the receipt of which was acknowledged by the vendor on 26.10.1996. It was also specified therein that a sum of Rs.75,000/- shall 26 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 be paid by the vendee to the vendor on or before 26.11.1996, a sum of Rs.1,00,000/- to be paid by the vendee to the vendor on or before 30.04.1997 and the balance sale consideration shall be paid by the vendee to the vendor on or before 30.08.1997 i.e. at the time of registration. It was also mentioned therein that the vendor would deliver the actual and physical possession of the schedule property to the vendee at the time of registration.
30. The registered sale deed executed between defendant No.1 and the plaintiff was marked as Ex.A23. It was dated 06.09.2000. It was mentioned therein that:
"Whereas the vendor (Smt. G. Sarojini Yadav @ Saroja i.e. defendant No.1 in O.S. No.998 of 2001) is the absolute owner of the agricultural land (dry) total admeasuring Acs.13.32 gts., in Sy. Nos.64, 385, 390, 391, 392 & 393 situated at Narkoda village, Shamshabad Mandal, Ranga Reddy District... AND WHEREAS the vendor entered into an agreement of sale of the above said agricultural land @ Rs.40,000/- per acre with the vendee on 27.10.1996 and delivered the physical possession of the land on 31.10.1996 and since then, the vendee is in possession of the same and cultivating the land. AND WHEREAS the vendee had already paid sale consideration from time to time to the vendor under receipts and the vendor hereby agree, 27 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 admit, confirm and acknowledge the same. AND WHEREAS the vendee requested the vendor to execute and register the sale deed to an extent of Acs.9.11 gts., out of the said land in Sy.Nos.385 (admeasuring Ac.1.32 gts.,) 390 (admeasuring Acs.4.20 gts.), 391 (admeasuring Ac.1.39 gts.) and in 392 part (admeasuring Ac.1.00 gts.) (hereinafter called "the Schedule property") AND WHEREAS the vendor agreed to execute and register the sale deed in respect of the schedule property for the present, AND WHEREAS the vendor agreed that she has adjusted the sale consideration of Rs.3,71,000/- in respect of the schedule property out of the total sale consideration paid by the vendee in respect of the above said lands."
Clause No.5 of the sale deed also would state that:
"The vendor hereby covenant that on 31.10.1996 (which was subsequently added) she has put the vendee in vacant and actual possession of the schedule property."
31. Thus, this sale deed would not disclose the reasons for not registering the sale deed for the entire extent of Acs.13.32 gts., of land or what was the entire consideration amount paid by the plaintiff to defendant No.1. It would only disclose that as per the request of the vendee, the sale deed was registered only to an extent of Acs.9.11 gts., and that the vendor agreed to execute and register the sale deed in respect 28 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 of the suit schedule property for the present and that she had adjusted the sale consideration of Rs.3,71.000/- in respect of the schedule property out of the total sale consideration paid by the vendee in respect of the said lands. It would also disclose that the physical possession of the said land was delivered to the vendee on 31.10.1996, but was not specific whether it was the entire extent of Acs.13.32 gts., or an extent of Acs.9.11 gts., only. No collateral agreement was entered between the parties with regard to the balance extent of the land and no notice was given by the plaintiff to the defendant No.1 even after executing the registered sale deed demanding the defendant No.1 to execute the registered sale deed for balance extent of the land or for the compliance of any terms.
32. As per the judgment of the Hon'ble Apex Court in Kaliaperummal's case (3 supra), while considering the question "Whether the title to the properties passed to the appellants when the sale deed was registered though admittedly no amount was paid towards consideration to the respondents", it was held that:
"18. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties.29
Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property.
19. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of the Evidence Act."
33. In the present case, the recitals of the sale deed are silent as to why the sale deed was registered only to an extent of Acs.9.11 gts. If the entire sale consideration was paid by the vendee to the vendor, why the vendee requested for registration to an extent of only Acs.9.11 gts., when the agreement of sale was entered for Acs.13.32 gts., is not clear. As per the pleadings in the plaint in O.S. No.998 of 2001, there was difference in the extent of land in Sy.No.64 to an extent of Ac.0.36 gts., as per the entries made in the pass book, title deeds and link documents. As 30 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 such, the sale deed was registered only to an extent of Acs.9.11 gts. Even as per the plaintiff, there was no dispute with regard to the extent of lands in Sy.No.393 and to some extent in Sy.No.64. Though as per the contentions of the defendant No.1, the balance extent of land was Acs.4.21 gts., the contention of the plaintiff was that he paid the sale consideration in respect of Acs.3.35 gts., of land which was the balance extent available. Then it doesn't come to reason as to why the plaintiff had not entered into the registered sale deed for an extent of Acs.3.35 gts., of land which was available and for which the entire sale consideration was paid by him even by the date of registration of the sale deed for Acs.9.11 gts., on 06.09.2000. His remaining silent without demanding for execution of the sale deed for the balance available extent of land of Acs.3.35 gts., or for conducting of survey to the remaining extents of land in Sy.Nos.64 and 393 for which he entered into agreement of sale gives rise to a presumption that he had abandoned his claim for the balance extent of the land. Issuing of notice before filing the suit for specific performance is mandatory, as the limitation to file a suit would start running only when the plaintiff noticed that performance had been refused. As per Article 54 of the Schedule to the Limitation Act, 1963, the limitation for filing a suit for specific performance is three years from 31 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 the date fixed for execution or if no such date is fixed, when the plaintiff had noticed that the performance is refused. The suit for specific performance was filed by the plaintiff in the year 2001. The date fixed for performance was 30.08.1997 as per the agreement of sale marked under Ex.A1. The plaintiff in his cross-examination admitted that he had not issued any notice to Smt. G. Sarojini (defendant No.1) informing her that he had performed his part of the contract under Ex.A1 and demanding her to perform her part of the contract before filing the suit in O.S No.998 of 2001. He also admitted that he had not issued any notice to the defendant No.2 (appellant herein) in O.S. No.998 of 2001 informing him about his transaction with Sarojini (defendant No.1) and also not issued any notice to defendant No.1 also. He also admitted that the defendant No.2 in O.S No.998 of 2001 was doing cultivation to the extent of land purchased by him. Thus, the plaintiff had not approached the court with clean hands. He had not stated as to what were the amounts paid by him, not stated the reasons for not entering into the registered sale deed for the entire extent of land for which the agreement was entered, had not stated about filing of O.S No.941 of 2001 for injunction or what made him to file the suit for injunction for the entire extent of Acs13.32 gts., of land. He had not stated about his readiness 32 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 and willingness to perform his part of the contract. All these would make it clear that he abandoned the rest of the contract after he entered into a registered sale deed with the defendant No.1. No collateral agreement was entered between the parties after entering into the registered sale deed for extent of Acs.9.11 gts., on 06.09.2000 or fixing the date as to when the contract has to be completed or the terms for the remaining extent. When there is no collateral agreement for the remaining extent of land or the sale deed marked under Ex.A23 would not disclose that the parties would be pursuing the contract for the balance extent of the lands, it can be considered that the plaintiff had abandoned or relinquished the remaining portion of the contract.
34. Substantial Question of Law No.3:
Whether there is any perversity in the judgment of the lower appellate court and whether there was ill appreciation of evidence ignoring the admissions made by the plaintiff?
35. Both the suits in O.S. No.941 of 2001 and O.S. No.998 of 2001 are clubbed together and common evidence was adduced. The plaintiff was examined as PW.1. Without any pleadings, the plaintiff had stated in his evidence affidavit that the defendant No.1 delivered 33 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 possession of the entire extent of Acs.13.32 gts., of land and since then he was in possession and enjoyment of the said property in part performance of the said agreement and his name was mutated in possessory column in Pahani Patrikas for the years 1996-2000. He stated that defendant No.2 delivered original title deeds and the link documents in respect of the above property in part performance of the said agreement of sale. He further stated that he paid a total amount of Rs.5,52,000/- to the defendant No.1 and her husband towards the sale consideration. He also stated without any pleadings that the entire land was got surveyed and it was found that the total extent of the above property was only Acs.13.06 gts., and that he was requesting the defendant No.1 to execute and register the sale deed in respect of the remaining land admeasuring Acs.3.35 gts., i.e. in Sy. No.64 Acs.0.37 gts., in Sy. No.392 Ac.12.00 gts., and in Sy.No.393 Acs.0.38 gts., in his favour, but the defendant No.1 was postponing the same on the one pretext or the other. He further stated that on 01.11.2001, the defendant No.1 refused to execute and register the sale deed in his favour in respect of Acs.3.35 gts., of land. On 06.11.2001, he came to know that the defendant No.1 was intending to sell Acs.3.35 gts., of land by suppressing the factum of the agreement of sale dated 27.10.1996. The sons of the defendant No.1 and the defendant No.2 tried 34 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 to interfere with his possession and to dispossess him from the said Acs.3.35 gts., of land. As such, he filed O.S. No.941 of 2001 for perpetual injunction against them in respect of the total land. He also stated that during the pendency of the case, defendant No.1 and her children and others dispossessed him from Acs.3.35 gts., of land. Only through the counter and written statement filed by the defendant in O.S. No.941 of 2001 he came to know that the defendant No.1 had sold and conveyed Acs.4.21 gts., of land in Sy. No.64 Acs.0.37, Sy. No.392 Acs.1.00 gts., and Sy. No.393 Acs.1.38 gts., to the defendant No.2 under a registered sale deed dated 10.10.2001, as such, he filed O.S No.998 of 2001 for specific performance of the agreement of sale dated 27.10.1996 in respect of the remaining extent of Acs.3.35 gts., (actual area as per the surveyor) covered by Sy.No.64 (Ac.0.37 gts.), Sy. No.392 (Ac.1.00 gts.) and Sy.No.393 (Ac.1.38 gts.)
36. He filed the receipts marked under Exs.A2 to A12:
Receipt for Rs.50,000/- dated: 26.10.1996. Receipt for Rs.25,000/- dated: 29.10.1996. Receipt for Rs.25,000/- dated: 05.12.1996. Receipt for Rs.10,000/- dated: 29.12.1996. Receipt for Rs.1,00,000/- dated: 22.04.1997.35
Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 Receipt for Rs.15,000/- dated: 10.05.1997. Receipt for Rs.2,00,000/- dated: 28.07.1997. Receipt for Rs.10,000/- dated: 09.12.1997. Receipt for Rs.10,000/- dated: 15.01.1998. Receipt for Rs.10,000/- dated: 13.12.1998. Receipt for Rs.13,000/- dated: 12.08.2000.
37. The total amount paid under these receipts would come to Rs.4,68,000/-. There are no pleadings even with regard to the amounts paid under these receipts in O.S. No.998 of 2001. The receipts were filed only for an amount of Rs.4,68,000/- though the plaintiff contended that he paid Rs.5,52,000/-.
38. In his cross-examination, the plaintiff admitted that after verifying the revenue records, he entered into agreement of sale with defendant No.1 in O.S No.998 of 2001. He verified the sale deeds and other documents in respect of the suit schedule property five or six months prior to the registration of sale deed for the land admeasuring Acs.9.11 gts., out of Acs.13.32 gts., of land. He admitted that the revenue officials of Shamshabad Mandal did not conduct any panchanama in respect of the suit schedule property before incorporating his name in the possessory column for the years 1997-1998, 1998-1999. He admitted that 36 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 it was not mentioned in the agreement of sale Ex.A1 dated 27.10.1996 that the balance of sale consideration would be paid by the vendee after conducting survey of the entire land i.e. Acs.13.32 gts. He stated that he came to know about the difference in extent of Ac.0.26 gts., in sy. No.64 when he paid Rs.2,00,000/- cheque to the defendant No.1 in O.S.No.998 of 2001 on 28.08.1997 i.e. Ex.A6, when she handed over the original sale deed and link documents i.e. Exs.A13 and A14.
39. He admitted that he had not issued any notice to the defendant No.1 in O.S. No.998 of 2001 about the difference of extent in Sy.No.64 regarding Ac.0.26 gts., and that he had not requested her to make it convenient to conduct the survey. He admitted that he had not stated the shortfall of Ac.0.26 gts., in Sy. No.64 in O.S. No.941 of 2001 and as such the total extent of Acs.13.32 gts., had not been registered. He admitted that after execution of Ex.A23 sale deed, he had not issued any notice to the defendant No.1 demanding her to perform her part of the contract, before filing of O.S No.998 of 2001. He also admitted that he had not filed Exs.A2 to 12 at the time of filing of O.S. No.998 of 2001 and that by the date of filing of O.S. No.998 of 2001 Exs.A2 to A12 were in his custody. He also admitted that he had not 37 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 specifically mentioned about the payments to defendant No.1 under Exs.A2 to A12 and that the same were executed at his house. The trial court on considering all these admissions made by PW.1 observed that:
"From the above admissions made by PW.l and by perusing Ex.Al-agreement of sale and sale deed under Ex. A23 executed in favour of the plaintiff on 06-09- 2000 for the extent of Ac.9-11 guntas, it is clear that the said sale deed was executed for the land Ac.9-11 guntas only for the amounts paid by the plaintiff i.e. Rs.3.71,000/- towards sale consideration. Even though, it is the version of the plaintiff that he never stated that he is unable to pay the remaining balance sale consideration for the total extent of Ac.13-32 guntas, he himself admitted that as per the agreement of sale total sale consideration is to be paid by 30-08-1997 only. Hence, it is clear that the plaintiff himself failed to perform his part of contract and that as he paid only 3,71,000/- he got executed sale deed for an extent of Ac.9-11 guntas only which itself says that he forfeited his right with regard to the balance extent of Ac.4-21 guntas. Further the plaintiff also not issued any notice to the defendant No.1 expressing his willingness and readiness to get the execution of the sale deed to that extent also."
As such, answered the issue against the plaintiff. 38
Dr.GRR, J S.A.Nos.1287 and 1308 of 2017
40. The first appellate court framed the points for consideration in the appeal as:
1. Whether the appellant (plaintiff) was put in possession of the entire land in pursuance of the said agreement of sale?
2. Whether the appellant has given up his right and expressed his inability to obtain sale deed in respect of the remaining land?
3. Whether the respondent No.1 (Smt. G. Saronini Yadav) - defendant No.1 has received the entire consideration and failed to execute sale deed in favour of the appellant herein?
4. Whether the appellant herein is entitled to specific performance as prayed for?
5. To what relief?
41. The first appellate court only considered the evidence of DW.1 but not considered the admissions made by PW.1 in his evidence. It had taken into consideration only the admissions made by DW.1 in her cross examination and assumed that defendant No.2 might have occupied the property as it was a vacant land and answered the points in favour of the plaintiff.
42. The first appellate court had not considered that there were no pleadings with regard to the receipts marked under Exs.A2 to A12 in 39 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 O.S. No.998 of 2001. The first appellate court failed to observe that any amount of evidence without pleadings would be in admissible. Pleadings form the platform on which the edifice of the case is erected. The observations of the first appellate court that the defendant No.2 might have occupied the property as the entire property was a vacant land and that there was no necessity for the appellant to express inability to purchase the property, are based on assumptions made by it without the witnesses speaking about it.
43. The first appellate court also made its own calculations and held that as per the terms of sale agreement, the appellant was liable to pay Rs.5,56,000/- for the total extent of Acs.13.36 gts., but as the sale deed of DW.1 would disclose that she purchased only an extent of Acs.13.06 gts., the plaintiff claimed that there was difference of extent as such, requested the vendor to get the land surveyed. As DW.1 admitted the receipt under Ex.A11 and also about the payments made to her husband, it was very clear that DW.1 paid Rs.4,83,000/- as on 12.08.2000. As such, the appellant (plaintiff) was entitled to obtain sale deed for an extent of more than Acs.12.00 gts.
40
Dr.GRR, J S.A.Nos.1287 and 1308 of 2017
44. The plaintiff had neither stated in his pleadings or evidence what were the amounts paid by him or to what extent of land he was entitled to. But, the appellate court holding that he was entitled to obtain more than Acs.12.00 gts., is travelling beyond evidence. The observation of the first appellate court that the appellant who was entitled to obtain sale deed to the entire extent, need not express any inability to obtain sale deed for more than Acs.9.11 gts., can be considered as reading between the lines. If the appellant was entitled to obtain sale deed for more than Acs.12.00 gts., then what made him not obtaining the sale deed to the said extent of land, was not considered by the first appellate court.
45. The appellate court decided the issues as if the burden lies upon the defendant to prove that the plaintiff forfeited his right to obtain sale deed for the total extent ignoring that the plaintiff failed to discharge his burden that he was entitled for specific performance of the contact to the entire extent of land as claimed by him. The burden of proof lies upon the plaintiff to prove the facts which he asserts and who desires the court to give judgment in his favour.
46. The first appellate court failed to observe whether any notice was given by the appellant to the defendant No.1 to execute the sale deed 41 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 for the balance extent of land. The observations of the first appellate court are in ignorance of the well established principles of law. The first appellate court failed to observe that the burden lies upon the plaintiff to aver and prove about his readiness and willingness to perform his part of the contract and issuing notice to the defendant No.1 prior to filing the suit for specific performance was mandatory. The first appellate court failed to observe that a duty lies upon the plaintiff to come with clean hands and to disclose all the facts while approaching the court seeking the discretionary relief of specific performance. The plaintiff even failed to state the amounts paid by him in the plaint as per the receipts available with him by that date itself. The conduct of the plaintiff in seeking the relief of permanent injunction for the entire schedule property, though there was no interference with regard to the extent of Acs.9.11 gts., of land for which sale deed was executed to him is mischievous. The observation of the first appellate court that the plaintiff had paid an amount of Rs.4,83,000/-, when the receipts marked under Exs.A2 to A12 are only to an extent of Rs.4,68,000/- is also not correct. The observations made by the first appellate court without any pleadings either by the plaintiff or by the defendants and making calculations on its 42 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 own and observing that the plaintiff had no such necessity, are nothing but perverse.
47. The plaintiff is an Advocate by profession and DW.1 and her husband were not so educated people. Though DW.1 denied the contents of Ex.A11, the appellate court placing reliance on it and considering that the plaintiff paid an amount of Rs.4,70,000/- and making observations that there was no necessity for the plaintiff to pay such huge amount to DW.1 and her husband and having received the total consideration and endorsed in Ex.A23, avoided survey and execution of sale deed for the remaining extent are against the pleadings. The plaintiff in his evidence affidavit in para No.5 itself stated that as agreed, the entire land was got surveyed and it was found that the total extent of land was only Acs.13.06 gts. But, he failed to file the survey report to show that the total extent of the land available was only Acs.13.06 gts. The first appellate court observing that the defendant No.1 avoided survey and execution of the sale deed for the remaining extent even without considering the evidence of plaintiff on the said aspect, is perverse. The observations of the first appellate court that the appellant who had obtained the sale agreement for Acs.13.32 gts., might have known the original extent as Acs.13.06 gts., 43 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 only after he received Exs.A13 and A14 from DW.1 and it was quite natural for him to insist for survey of the land in view of the difference of extent as per Exs.A13 and A14, and if really he was not interested in purchasing the remaining land, there was no necessity to pay Rs.3,71,000/-, are based on assumptions and imaginations but not on pleadings and evidence on record.
48. The observations of the first appellate court that even after execution of Ex.A23 for an extent of Acs.9.11 gts., the appellant continued to pay the balance and the vendor i.e. DW.1 and her husband had received the amounts, is also not based upon the evidence. All the receipts marked under Exs.A2 to A12 were only prior to the execution of Ex.A23 on 06.09.2000 but not subsequent to the said date. These observations made by the first appellate court which were not based on the pleadings and evidence can be termed as perverse. The observations of the first appellate court that PW.1 had admitted that he did not issue any notice to DW.1 for execution of the sale deed, but in the light of the averments in Ex.A23 and as DW.1 was accepting the payments he might not have issued any notice, shows the bias taken by it towards one of the party.
44
Dr.GRR, J S.A.Nos.1287 and 1308 of 2017
49. As such, the judgment of the lower appellate court in reversing the findings of the trial court and decreeing both the suits in ignorance of the admissions made by the plaintiff and basing its observations without any pleadings and contrary to the evidence on record, is considered as perverse.
50. Substantial Question of Law No.2:
Section 19 of the Specific Relief Act, 1963 provides the categories of persons against whom specific performance of contract may be enforced. Among them is included under Clause (b), any transferee claiming under the vendor by a title arising subsequently to the contract of which, specific performance is sought. A transferee for value, who has paid money in good faith and without notice of the original contract, is excluded from the purview of the said clause. To fall within the excluded clause, a transferee must show that: (a) he has purchased for value the property, which is the subject-matter of the suit for specific performance of the contract; (b) he paid money to the vendor in good faith; and (c) he had no notice of the earlier contract for sale (specific performance of which is sought to be enforced against him). The said provision is based 45 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 on the principle of English Law which fixes the priority between a legal right and an equitable right.
51. The appellant herein (defendant No.2 in O.S. No.998 of 2001) purchased the property to an extent of Acs.4.21 gts., as per the sale deed marked under Ex.A26 on 10.10.2001. As substantial question of law No.1 is answered holding that the plaintiff abandoned or relinquished his right over the remaining portion of the contract, after culmination of his agreement of sale into a registered sale deed on 06.09.2000 and the plaintiff also admitted that no notice was issued by him to DW.1 seeking enforcement of his right over the balance contract, the appellant herein (defendant No.2) can be considered as a bonafide purchaser and the registered sale deed is not liable to be cancelled. As the possession of the appellant with regard to Acs.4.21 gts., of land is lawful as it was under a registered sale deed, the plaintiff is not entitled for injunction against the appellant herein. As it was considered that the plaintiff is not entitled for the specific performance of contract against defendant No.1, he is also not entitled to claim the said relief against defendant No.2. The defendant No.2 is not a party to the agreement between the plaintiff and defendant No.1 and the contract between the plaintiff and defendant No.1 46 Dr.GRR, J S.A.Nos.1287 and 1308 of 2017 is also not subsisting by the date of executing the sale deed between him and defendant No.1 on 10.10.2001. As such, the defendant No.2 can be considered as a bonafide purchaser for value and the registered sale deed dated 10.10.2001 is not liable to be cancelled.
52. In the result, both the appeals are allowed setting aside the judgment dated 22.02.2012 passed in AS Nos.204 and 206 of 2008 by the IX Additional District and Sessions Judge (FTC), Ranga Reddy District. No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.
____________________ Dr. G. RADHA RANI, J Date:05.02.2024 SS/KTL