K Koteswara Rao Died And 10 Others vs Kotha Subbaiah
2021 Latest Caselaw 5578 AP

                                                                         MVR,J
                                                             S.A.No.1514 of 2018
                                       1

        IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

             HONOURABLE SRI JUSTICE M. VENKATA RAMANA

                     SECOND APPEAL No.1514 of 2018
JUDGMENT:

The defendants are the appellants.

2. The respondent as the plaintiff laid the suit for specific performance

of contract basing on an alleged agreement for sale dated 13.06.1998

against the appellants 1 to 3.

3. The plaint schedule sets out items 1 to 10 as full extents in all

Ac.11.75 cents and items 11 to 13 in all Ac.5.91 cents. Thus, total extent

is Ac.17.66 cents. These lands are in Mitnala village (they shall be

hereinafter referred to as 'the suit lands').

4. Appellants 1 and 3 died during pendency of the suit. Appellants 8 to

11 are the legal representatives of the 1st appellant. The 3rd appellant died

on 23.02.2003. His legal representatives are appellants 4 to 7.

5. The contention of the respondent at the trial was that the 1st

appellant had agreed to sell the suit lands to him for Rs.20,000/- per acre

and upon receiving a major part of sale consideration, viz. Rs.3,33,200/-

executed an agreement for sale on 30.06.1998 in his favour. Further

contention of the respondent at the trial was that the 1st appellant had

agreed to get the suit lands measured on or before 31.03.1999 and upon

receiving balance sale consideration, agreed to execute sale deeds and

register, while also undertaking to deliver possession of these lands.

Claiming that he has been always ready and willing to perform his part of

contract and that the 1st appellant did not come forward to perform his

part of contract to get the lands measured as well as to execute a

registered sale deed, he got issued a legal notice dated 21.03.1999 MVR,J S.A.No.1514 of 2018

demanding him to perform his part of contract and execute the sale deed.

This legal notice was not served on the 1st appellant.

6. Further contention of the respondent at the trial was that the 1st

appellant had sold items 1, 5, 6 and 8 of the suit lands in favour of the 2nd

appellant under a registered sale deed dated 12.10.1999 and that he also

sold items 2 to 4, 7 and 9 to the 3rd appellant on the same day under

registered sale deeds that are collusive and brought out to defeat his

interest under the agreement for sale. He further contended that

appellants 2 and 3 should also execute the sale deeds, along with the 1st

appellant in respect of the suit lands. Thus setting out, he sought relief in

the suit.

7. The 1st appellant resisting the claim of the respondent denied

execution of the agreement for sale dated 30.06.1998 and that it was

brought out by the respondent with the help of Sri Brahmananda Rao, who

is the brother of the 1st appellant. He further contended that before filing

the suit, in or about April or May 1999, the respondent and Sri

Brahmananda Rao demanded him a part of his property and that he refused

to do so. He further contended that a few days later, both of them again

came to him and showed a blank stamp paper containing a signature in his

name, threatening that they would make use of it against him if he did not

convey property to Sri Brahmananda Rao. Thus, he alleged that his brother

Sri Brahmananda Rao and the respondent fabricated the agreement for sale

forging his signature basing on which, the suit was laid.

8. The 1st appellant also contended that items 10 to 13 of the suit lands

did not belong to him. He further stated that he had entered into an

agreement for sale in respect of items 1 to 9 of the suit lands with one Sri

Allam Narayana on 14.05.1992 agreeing to sell them at Rs.30,000/- per

acre, upon receiving Rs.65,000/- as advance and that pursuant to it, he MVR,J S.A.No.1514 of 2018

executed sale deeds in favour of the 2nd appellant, who is the daughter of

Sri Allam Narayana convenying items 1, 5, 6 and 8 and another sale deed in

favour of the 3rd appellant conveying items 2, 3, 4, 7 and 9 of the suit lands

under a registered sale deed dated 12.10.1999. Thus, the 1st appellant

denied his liability in respect of the alleged agreement for sale set up by

the respondent.

9. On behalf of the appellants 2 and 3, the contention set forth at the

trial was asserting purchase of their respective extents from the 1st

appellant under the sale deeds as stated above, obtaining possession of the

same there under and denial of execution of agreement for sale dated

30.06.1998 in favour of the respondent by the 1st appellant as alleged.

Thus, they also resisted the claim of the respondent.

10. The trial Court basing on the pleadings, settled the following issues

and additional issues:

1. Whether the sale agreement dated 30.06.1998 is true, valid and binding on the defendants?

2. Whether the plaintiff is ready and willing to perform his part of contract?

3. Whether the plaintiff is entitled for specific performance of agreement of sale and for a regular registered sale deed?

Additional issues:

1. Whether D2 and the LRs of D1 and D3 are bound to execute a registered sale deed in favour of the plaintiff in pursuance of the sale agreement dated 30.06.1998?

2. To what relief?

11. The respondent examined himself as P.W.1 and the scribe of

agreement for sale dated 30.06.1998 as P.W.2 while relying on Ex.A1 to

Ex.A4. The 1st appellant examined himself as D.W.1 and father of the 2nd MVR,J S.A.No.1514 of 2018

appellant Sri Allam Narayana as D.W.2 and the defendants relied on Ex.B1

to Ex.B5 in support of their contention.

12. On the material and evidence, the trial Court decreed the suit

directing the appellants 1 to 3 to execute sale deed in favour of the

respondent, agreeing with his contention for specific performance of the

contract thereunder.

13. In the appeal by the appellants, the decree and judgment of the

trial Court were confirmed and ultimately, the appeal was dismissed.

14. The appellants hence are before this Court in this second appeal.

15. Sri P.Veera Reddy, learned Senior Counsel for Sri Narasimha Rao

Gudiseva, learned counsel for the appellants and Sri A.Veera Swamy,

learned counsel for the respondent addressed arguments in this second

appeal, at admission stage.

16. The substantial questions of law set out in the memorandum of

appeal are in relation to proof of Ex.A1 agreement for sale by the

respondent, having regard to the nature of evidence let in by him at the

trial, effect of Section 17 of Specific Relief Act, the manner of appreciation

of evidence by both the Courts below including comparison of signatures in

Ex.A1 agreement for sale and Ex.A4 under Section 73 of Indian Evidence

Act as well as the burden of proof. Another question is with reference to

nature of the judgment of the appellate Court, without formulating proper

points for determination in terms of Section 96 CPC and Order 41 Rule 31

CPC.

17. The respondent based his entire claim on Ex.A1 agreement for sale

dated 30.06.1998 alleged to have had been executed by the 1st appellant in

his favour agreeing to sell the suit lands @ Rs.20,000/- per acre.

MVR,J S.A.No.1514 of 2018

18. Ex.A1 agreement for sale prepared on a stamp paper purchased on

12.03.1998 bears a signature purportedly in the name of the 1st appellant,

one Sri C.Siva Rami Reddy of Dubaguntla purportedly attested it and it was

scribed by P.W.2 Sri A.Venkata Subba Rao.

19. Evidence has been let in through the respondent as P.W.1 and P.W.2

Sri Venkata Subba Rao in proof of Ex.A1 agreement for sale. The sole

attestor to it was not examined in proof of the same at the trial. No

explanation is offered by the respondent for this vital omission,

particularly, having regard to the defence of the appellants. When this

entire transaction is denied including the contents therein, questioning the

very structure of Ex.A1, had the attestor been examined it would have

been more appropriate.

20. While the respondent as P.W.1 deposed in respect of the transaction

under Ex.A1, P.W.2 also deposed with reference to it.

21. According to P.W.1 and P.W.2, Ex.A1 agreement for sale was

executed by the 1st appellant at the house of P.W.1. Admitted fact is that

the father of the respondent is a fertilizer dealer at Nunepalli, Nandyal.

P.W.2 used to stay near the house of P.W.1 at the relevant point of time.

The 1st appellant was also a customer of the fertilizer shop of the father of

the respondent.

22. The evidence of P.W.1 and P.W.2 is to the effect that in the course

of this transaction on 30.06.1998 at the house of P.W.1, the 1st appellant

executed Ex.A1 agreeing to its terms and conditions and upon receiving a

part of sale consideration, viz. Rs.3,33,200/-.

23. The version of P.W.2 in respect of payment of consideration under

Ex.A1 agreement for sale is not consistent. In the sense, in his examination MVR,J S.A.No.1514 of 2018

in chief, he stated that he did not remember about the payment of

consideration, since the transaction is of the year 1998 (P.W.2 was

examined in the trial Court on 17.10.2006). In cross-examination for the

appellants, he categorically stated that he was not present when the

consideration was paid to the 1st appellant by P.W.1. It is one

circumstance relied on by the appellants to question the nature of this

transaction.

24. Both the Courts below held that Ex.A1 agreement for sale stood

proved, since the case set up by the 1st appellant in his written statement

and at the trial, reflected admission of his signature appearing thereon.

On such basis and considering the testimony of P.W.1 and P.W.2, the trial

Court came to the conclusion of its due execution in favour of the

respondent and against the appellants. The appellate Court followed suit,

without specific discussion on the evidence and the circumstances on

record, generally agreeing with the findings so recorded by the trial Court.

25. Sri P.Veera Reddy, learned Senior Counsel for the appellants

strenuously contended that the whole approach by both the Courts below is

improper and very appreciation of pleadings and evidence, is reflecting

serious irregularity and an error. Learned Senior Counsel further

contended that there is neither admission of the signature in Ex.A1 by the

1st appellant in his written statement nor at the trial and that the findings

recorded by the learned trial Judge are based on imagination of such an

alleged admission.

26. However, Sri A.Veera Swamy, learned counsel for the respondent

drawing attention of this Court to depositions of P.W.1, P.W.2 and the

statements elicited from the 1st appellant in cross-examination contended

that both the Courts below rightly came to the conclusion that the MVR,J S.A.No.1514 of 2018

signature appearing in Ex.A1 agreement for sale stood admitted by the 1st

appellant and there is no reason to differ with the finding so recorded in

this second appeal.

27. In the backdrop of these contentions, it is necessary to consider the

averments in the written statement of the 1st appellant and the evidence

on record adduced by both the parties in this context.

28. As seen from the written statement of the 1st appellant, there is

clear and categorical denial of his signature as well as execution of Ex.A1

agreement for sale. He has set out the circumstances in the written

statement how his brother Sri Brahmananda Rao and the respondent came

to him, somewhere in April or May 1999 before filing the suit (the suit was

filed on 30.09.1999) with a stamp paper containing a purported signature in

his name in the middle while threatening him to part with his properties in

favour of Sri Brahmananda Rao. His assertion in the written statement that

Ex.A1 agreement for sale is a rank forgery and fabricated did not leave any

manner of doubt of nature of defence.

29. In examination in chief as D.W.1, the first appellant affirmed such

denial in terms of his pleadings in the written statement. In cross-

examination, the statement elicited with reference to the contents of the

written statement relied on by Sri A.Veera Swamy, learned counsel for the

respondent are extracted hereunder for facility.

"It is true I got mentioned in my written statement at para No.7 to the effect that my signature was obtained on a blank stamp paper and contents were incorporated subsequently after my signature. The above said statement refers to my signatures in Ex.A1."

30. Cross-examination of D.W.1 on behalf of the respondent stood

oriented more towards appearance of admitted or undisputed signatures of

the 1st appellant in various documents and purported signature attributed MVR,J S.A.No.1514 of 2018

to him in Ex.A1 agreement of sale. When suggested to him, that he himself

signed in Ex.A1, he categorically denied in cross-examination.

31. The statement of D.W.1 referred to above, relied on for the

respondent cannot be deemed or considered as a clear and clean

admission. What all suggested to him was, with reference to the contents

of his written statement. The answer so elicited in cross-examination

apparently is based on an involving and misleading question put to this

witness at the trial. The question so framed in cross-examination as if his

signature was obtained on a blank stamp paper, is reflection of the manner

in which, it was put to this witness. The statement so recorded of D.W.1 is

clear indication in this respect. Therefore, it cannot be treated as an

admission on the part of the 1st appellant, of his signature in Ex.A1.

32. When testimony of P.W.2 is rejected, there remains only the

testimony of P.W.1 in this respect. It is highly interested and it cannot as

such implicitly be relied on in the context of serious defence set up by the

appellants of denial of execution of Ex.A1.

33. Want of testimony from the sole attestor to Ex.A1, in these

circumstances assumed any amount of significance. P.W.2 though

examined to prove Ex.A1, his evidence as such, did not reflect consistency

and on a crucial aspect of passing of consideration under Ex.A1 as alleged

by the respondent, he faltered. His statement that he was not present

when consideration was paid to the 1st appellant as alleged goes a long way

to question his credibility to prove Ex.A1 transaction.

34. Therefore, when there remains only the testimony of P.W.1 for

consideration, it is difficult to stand in alignment with the findings

recorded by the trial Court as well as first appellate Court with reference

to proof of Ex.A1 agreement for sale. It is not established that Ex.A1 MVR,J S.A.No.1514 of 2018

agreement for sale was executed by the 1st appellant. The evidence of

P.W.1, is not inspiring confidence nor it is acceptable. His testimony did

not find any support or corroboration either from P.W.2 or circumstances

surrounding its execution.

35. In terms of Section 20 of Specific Relief Act, granting relief of

specific performance is discretionary. Exercise of discretion in this context

should be based on application of sound judicial principles. When both the

Courts below did not consider with reference to execution of Ex.A1

properly and completely misdirected themselves as if there has been a

clean and clear admission of the signature of the 1st appellant on Ex.A1.

The discretion has to be exercised judiciously and the tenor of these

judgments did not reflect such expression.

36. In MOHAMMADIA COOPERATIVE BUILDING SOCIETY LIMITED v.

LAKSHMI SRINIVASA COOPERATIVE BUILDING SOCIETY LIMITED AND

OTHERS1, in para 71, it is observed as under:

"71. Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The courts ordinarily would not grant any relief in favour of the person who approaches the court with a pair of dirty hands."

37. Similar observation of Hon'ble Supreme Court is found in

S.RANGAGAJU NAIDU v. S.THIRUVARAKKARASU2.

38. Referring to the nature of appreciation of oral evidence, Sri P.Veera

Reddy, learned Senior Counsel relied on POTTEM SUBBRAYUDU v.

KOTHAPALLI GANGULU NAIDU3. In para 17 of this ruling with reference to

(2008) 7 SCC 310

1995 Supp (2) SCC 680

2000(5) ALD 764 MVR,J S.A.No.1514 of 2018

appreciation of oral evidence, one of the learned Judges of this Court

stated thus:

"There can be no straightjacket formula for the appreciation of oral evidence of the witnesses. The credibility of the witness is the paramount consideration for the Court. After passing the three legal tests viz., relevancy, admissibility, and competence of the witness, while considering the credibility of the witness, the Court has to consider various parameters so as to appreciate the oral evidence on the point by testing the same on the touch stone of two important yardsticks viz., the probabilities and surrounding circumstances among various other parameters. Even when no rebuttal is adduced by the adversary the ocular testimony of the witnesses examined on the side of the party on whom the burden lies, cannot implicitly be relied upon without testing the same with reference to the probabilities and surrounding circumstances. The judgments of the Apex Court in Govinda v. Champa Bai, AIR 1965 SC 354 and Chaturbhuj Pande v. Collector, Raigarh, AIR 1969 SC 255, would lend support to my above view."

39. These observations are apt particularly in the context of evidence

adduced on behalf of the respondent and when the findings recorded by

both the Courts below are considered. The evidence adduced by the

appellants through D.W.1 adds to hold that the burden placed on the

respondent was not discharged at the trial in proof of Ex.A1 agreement for

sale.

40. The appellate Court considered the testimony of P.W.2 on the

premise that he was present at the time of execution of Ex.A1 agreement

for sale by the 1st appellant and its transaction. However, when the role of

a scribe is only with reference to preparing the document and who cannot

be elevated to the status of an attestor, in the presence of faltered and

inconsistent version presented by him, it could not have been relied on.

41. The trial Court applied Section 73 of Indian Evidence Act and went

on with comparison of the signature appearing in Ex.A1 attributed to the 1st MVR,J S.A.No.1514 of 2018

appellant and Ex.A4 as well as Ex.B1 to Ex.B4. The signatures of the 1st

appellant appearing on the vakalat and written statement were also

considered for this purpose. On such comparison, the trial Court came to

the conclusion that the signature appearing on Ex.A1, is that of the 1st

appellant.

42. Comparison of signatures by the Court is always a hazardous course.

The learned trial Judge in the judgment did not mention his proficiency in

comparison of signatures and hand-writings and the science relating to it.

Comparison cannot be on such basis and holding that even to the naked

eye, the signature appearing on Ex.A1, is that of the 1st appellant. Apart

from it, the trial Court did not explain the statement of the respondent as

P.W,1 in this context, In cross-examination for the appellants, P.W.1

stated that the signature on Ex.A1 is not similar to signature appearing on

the registered documents, viz. Ex.B1 and Ex.B2.

43. Ex.A4 is a specimen signatures card obtained from the Branch

Manager, Rayalaseema Grameena Bank, Nandyal, from the account of the

1st appellant. It is not disputed that the signatures appearing therein are

of the 1st appellant. The trial Court for the purpose of comparison mainly

relied on Ex.A4 and the signature appearing in Ex.A1 attributed to the 1st

appellant.

44. When signatures appearing in Ex.B2 and Ex.B3 sale deeds did not

stand in comparison with the signature appearing in Ex.A1 attributed to the

1st appellant, it is beyond comprehension how learned trial Judge could

have relied on the signatures appearing on Ex.A4 and to hold likewise.

45. As rightly contended by Sri P.Veera Reddy, learned Senior Counsel

for the appellants of nature of appreciation of material on record MVR,J S.A.No.1514 of 2018

particularly, with reference to application of Section 73 of Indian Evidence

Act, by the Courts below is not justified.

46. In this context, learned Senior Counsel relied on THIRUVENGADAM

PILLAI v. NAVANEETHAMMAL AND ANOTHER4 . In para 15.1 of this ruling,

referring to observations in State Vs. Pali Ram [(1979) 2 SCC 158] in

respect of application of Section 73 of Indian Evidence Act, a note of

caution is given out and it is as under:

"15.1) In State v. Pali Ram, this Court held that a court does not exceed its power under Section 73 if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. But this Court cautioned:

"Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."

The caution was reiterated in O. Bharathan vs. K. Sudhakaran[(1996 (2) SCC 704]. Again in Ajit Savant Majagvai v. State of Karnataka [1997 (7) SCC 110] referring to Section 73 of the Evidence Act, this Court held:( SCC p.122, paras 37 - 38)

"37....... The section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing

(2008) 4 SCC 530 MVR,J S.A.No.1514 of 2018

the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act."

47. Sri A.Veera Swamy, learned counsel for the respondent contended

that the 1st appellant was in the habit of disguising his signatures

depending on the situation and therefore the signature appearing on Ex.A1,

cannot be made out as an exception. Thus, learned counsel strenuously

contended that the signature of the 1st appellant on Ex.A1 is proved and it

has to be accepted. However, the material on record is not supporting his

contention nor any specific findings in respect of such nature of appellant

are recorded by both the courts below.

48. Sri A.Veera Swamy, learned counsel for the respondent relied on the

order in C.R.P.No.2457 of 2013 dated 23.08.2013 in Chidara Uma

Maheshwar Rao Vs. Methuku Janardhan, of one of the learned Judges of

this Court in respect of application of Section 73 of Indian Evidence Act.

However, in the light of the observations of Hon'ble Supreme Court in

Thiruvengadam Pillai, the view now taken by me that the Court should not

as a matter of course loosely resort to application of Section 73 of Indian

Evidence Act is appropriate.

49. Want of testimony from the sole attestor to Ex.A1, in these

circumstances assumed any amount of significance. P.W.2 though

examined to prove Ex.A1, his evidence as such, did not reflect consistency

and on a crucial aspect of passing of consideration under Ex.A1 as alleged

by the respondent, he faltered. His statement that he was not present

when consideration was paid to the 1st appellant as alleged goes a long way

to question his credibility to prove Ex.A1 transaction.

MVR,J S.A.No.1514 of 2018

50. When testimony of P.W.2 is rejected, there remains only the

testimony of P.W.1 in this respect. It is highly interested and it cannot as

such implicitly be relied on in the context of serious defence set up by the

appellants of denial of execution of Ex.A1.

51. One of the circumstances relied on by Sri A.Veera Swamy, learned

counsel for the respondent to repel the contention of the appellants is

want of reply to Ex.A2 legal notice issued by the respondent prior to

institution of the suit, by the 1st appellant. This legal notice was not

served on the 1st appellant and it is the contention of the respondent that

he managed to get it returned, using services of the concerned postman.

However, the fact remained that there is no proof of service of Ex.A2 legal

notice on the 1st appellant. Therefore, this circumstance of failing to issue

a reply to Ex.A2 legal notice has no consequence now.

52. Another contention of the appellants is that items 11 to 13 of the

suit lands did not belong to the 1st appellant and that he has no title to

these lands. As rightly contended for the respondent in view of the clear

statement elicited from D.W.1 in cross-examination as an admission that

these lands belonged to him, it is not open for the appellants to contend

that they cannot be forced to execute a sale deed in respect thereof on

account of specific bar under Section 17 of Specific Relief Act.

53. Learned appellate Judge also found fault with the 1st appellant in

failing to establish that Ex.A1 agreement for sale is a forgery. However,

when the burden of proof rests with the respondent to prove Ex.A1

agreement for sale, it cannot be shifted to the appellants, who are the

defendants. Therefore, the reasons assigned by the learned appellate

Judge are not on sound lines. If the averments in the written statement of

the 1st appellant and his testimony as D.W.1 were appreciated in right MVR,J S.A.No.1514 of 2018

perspective by the first appellate Court as the last Court of fact, the

difficulty in accepting the findings recorded thereon by the trial Court

would have come to the fore. However, such an effort was not made by

the learned appellate Judge and he merely carried away by the findings

recorded by the trial Court. Hence, the reappraisal of the material on

record is not in terms of Section 96 CPC and Order 41 Rule 31 as well as

Rule 33 CPC.

54. Therefore, on account of these circumstances and factors, the

judgments of both the Courts below are required to be interfered with in

this second appeal. In view of what is stated above when there is evidence

on record from D.W.1 and D.W.2 that D.W.1 had sold items 1 to 10 of the

suit lands to Sri Allam Narayana under Ex.B1 agreement for sale dated

14.05.1992 later on fructified into Ex.B2 and Ex.B3 sale deeds in favour of

appellants 2 and 3 respectively, the right, title and interest to this land

vested in their favour upon transfer from the 1st appellant. The respondent

did not seek the relief specifically to set aside these two sale deeds. Thus,

they remained outstanding including against the respondent.

55. Substantial questions of law raised by the appellants thus required

consideration in terms of Section 100 CPC now. Hence, the decrees and

judgments of both the Courts below have to be set aside.

56. In the result, the second appeal is allowed setting aside the decrees

and judgments of both the Courts below. Consequently, the suit in

O.S.No.93 of 1999 on the file of the Court of Principal Senior Civil Judge, at

Nandyal, is dismissed. No costs. All pending petitions stand closed.

Interim orders if any stand vacated.

____________________ M. VENKATA RAMANA, J Dt: 30.12.2021 Rns MVR,J S.A.No.1514 of 2018

HON'BLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEAL No.1514 OF 2018

Date:30.12.2021

Rns