Telangana High Court
Kotla Narayana vs V. Pedda Chennaiah on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.384 of 2023
JUDGMENT:
Questioning the validity and legality of the judgment and decree, dated 30.06.2023, passed in A.S.No.87 of 2017 on the file of the Court of IV Additional District Judge, Mahabubnagar, confirming the judgment and decree dated 18.09.2017 passed by the Principal Senior Civil Judge, Mahabubnagar in O.S.No.167 of 2007, the present Second Appeal is filed.
2. The appellants are the plaintiffs and the respondents are the defendants in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The facts of the case in brief, shorn off unnecessary details, which led to filing of the present Second Appeal, are that the defendants are the owners and pattadars of the suit schedule property and they offered to sell the same to the plaintiffs and accordingly, an agreement of sale was entered into on 05-05-2003 for a sale consideration of Rs.3,64,500/- and on the same day, the plaintiffs have paid an amount of Rs.1,50,000/- to the defendants 2 LNA, J S.A.No.384 of 2023 and took possession of the suit schedule property and were personally cultivating the same.
3.1. It was further averred that as per the terms of agreement, the plaintiffs have paid the balance sale consideration in two installments to the defendants and requested them to get the land measured and demarcated, but the defendants postponed the same on one pretext or the other. That prior to agreement dated 05-05-2003, both parties entered into a simple agreement of sale in respect of suit land on 30-03-2003 and the plaintiffs paid certain amounts to the defendants thereunder.
3.2. It was further averred that when notices were issued to the defendants, they started saying that they have not received entire sale consideration from the plaintiffs.
3.3. It was also averred that the defendants bore grudge against the plaintiffs and filed a suit against them vide O.S.No.123 of 2006 on the file of Junior Civil Judge, Jadcherla for declaration and injunction in respect of the suit schedule property and the said Court passed order dated 12-12-2006 granting interim injunction in 3 LNA, J S.A.No.384 of 2023 favour of the defendants and hence, the plaintiffs have preferred appeal against the said order vide CMA.No.2 of 2007 which is pending before the VII Addl. District Judge, Mahabubnagar. 3.4. The plaintiffs further averred that though the entire sale consideration was paid, the defendants were not coming forward for execution of sale deed. Hence, the suit was filed against the defendants for specific performance of agreement of sale or alternatively for refund of the earnest money
4. The defendants filed the written statement admitting that they are the owners, pattadars and in possession of the suit schedule property and that there was an agreement of sale dated 05-05-2003 in respect of the suit lands, but as the plaintiffs failed to pay the sale consideration installments, as stipulated in the sale agreement in specified time, the sale agreement was terminated before the elders of the village.
4.1. The defendants further denied that some amounts were paid by the plaintiffs prior to agreement of sale dated 05-05-2003 and pleaded that no other document is executed by the defendants. 4
LNA, J S.A.No.384 of 2023 4.2. The defendants further submitted that they have obtained interim injunction in the suit filed by them vide O.S.No.123/2006 before the Junior Civil Judge, Jadcherla. As such, the defendants prayed to dismiss the suit.
5. Basing on the above pleadings, the following issues and additional issues were settled for trial by the trial court:-
"1. Whether the plaintiffs are entitled to specific performance of contract as prayed for?
2. To what relief?
3.Whether the Plaintiffs are entitled for refund of the earnest amount with interest and if so, what amount?
4. Whether the suit is within limitation?"
6. On behalf of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A-1 to A-11 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined, but no documents were marked. Further, one N.Krishna Prasad was examined as CW-1 and the deposition of the said Krishna Prasad was marked as Ex.X-1. 5
LNA, J S.A.No.384 of 2023
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, vide its judgment dated 18.09.2017, observed that the plaintiffs failed to file the original agreement of sale dated 05.05.2023 and even failed to prove the missing of the said agreement of sale. Further, the trial Court observed that though the defendants admitted the agreement of sale, the plaintiffs failed to prove the payment of entire balance sale consideration except the consideration of Rs.1,50,000/- paid on the date of agreement and accordingly, held that the plaintiffs are not entitled to the relief of specific performance of agreement of sale. However, the defendants were directed to refund the earnest money of Rs.1,50,000/- to the plaintiffs.
8. On appeal, the first Appellate Court, being the final fact- finding Court, re-appreciated the entire evidence and the material available on record, dismissed the appeal, vide its judgment dated 30.06.2023, confirming the judgment of the trial Court. The first Appellate Court specifically observed that in Ex.A-3-complaint given by the plaintiffs to Police, it is claimed that they lost the agreement of sale and receipts, whereas, strangely during trial, the 6 LNA, J S.A.No.384 of 2023 plaintiffs produced receipts pertaining to payment of Rs.45,000/- and Rs.1,00,000/-. Therefore, it can be presumed that the plaintiffs created a story of misplacement of agreement of sale and as such, an adverse inference was drawn against the plaintiffs. Hence, the present Second Appeal.
9. Heard Sri L.Harish, learned counsel for the appellants, and Sri Vimal Varma Vasi Reddy, learned counsel for the respondents. Perused the record.
10. A perusal of the record discloses that both the Courts below concurrently held that the oral and documentary evidence adduced by both the parties goes to show that plaintiffs failed to satisfy the ingredients for grant of specific performance of agreement of sale and accordingly, declined to grant the relief sought for.
11. Learned counsel for appellants argued that the trial Court, without proper appreciation of the evidence, dismissed the suit as regards the specific performance of contract and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
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LNA, J S.A.No.384 of 2023
12. However, learned counsel for appellants failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
13. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
14. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.384 of 2023
15. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellant are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
16. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: .02.2024
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