Rajulapati Naga Malleswara Rao vs Seelam Sarojalakshmi 4 Others
2021 Latest Caselaw 1181 AP

                HON'BLE SRI JUSTICE M.VENKATA RAMANA

                       APPEAL SUIT No.794 of 1997

JUDGMENT:

This regular appeal filed under Section 96 CPC is directed against

decree and judgment in O.S.No.85 of 1996 dated 17.06.1996 of the court

of the learned Subordinate Judge, Bapatla. (It is a common judgment in

O.S.No.85 of 1996 and O.S.No. 12 of 1983. No appeal is preferred against

that part of the judgment and decree in O.S.No.12 of 1983).

2. During pendency of this appeal, the 2nd respondent died and the

appeal was dismissed as abated by order dated 07.08.2011, since his

L.Rs. were not brought on record . The respondents 3 to 5 were brought

on record as per orders in A.S.M.P.No.1862 of 2011 dated 01.06.2012.

3. The plaintiff is the appellant. The respondents are the

defendants.

4. The appellant laid the suit for the relief of specific performance

of the contract under an agreement for sale dated 10.07.1986 against the

respondents, for delivery of possession of the plaint schedule property

and for damages at Rs.1500/- per year till possession is delivered.

Alternatively, he requested for refund of Rs.56,000/- alleged to have had

been paid under the suit agreement for sale.

5. The property in dispute is described in the plaint schedule as

under:

"Guntur District, Bapatla Sub Registrar Office, Bapatla Town, Bapatla Municipal area, Old ward No.15, New Ward No.13, Locality No.8, Door No.8-5-28, thatched house with brick and another thatched house walls bounded by East : Golakaram Venkayamma South: Compound wall of Agricultural college

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West: Joint galli of YadammaVenkateswarlu and Dande Veeraiah North: Municipal Road In between the above boundaries a thatched house with brick walls and thatched shed situated in an extent of Ac.0-10 cents equivalent to 484 Sq.yards = 404.7 sq.mts."

It shall be referred to hereinafter as 'the suit property', for convenience.

6. Before considering and evaluating the material and evidence on

record in this appeal, it is desirable to know the case of the parties in the

pleadings.

7. (a) The case of the appellant in the plaint is that under the suit

agreement for sale dated 10.07.1986, the 1st respondent agreed to sell

the suit property for a total consideration of Rs.56,700/- in his favour and

that on the date of the agreement, he paid Rs.5,000/- towards advance.

Further case of the appellant in the plaint is that for payment of balance

consideration, time was fixed till 10.08.1986, in default to pay interest at

12% p.a., and that on 16.07.1986, the appellant paid Rs.51,000/- as part

sale consideration for which an endorsement was made on the suit

agreement for sale. It was also stated in the plaint that the suit property

was delivered in possession to the appellant by the 1st respondent along

with the title deed of this property viz., sale deed dated 06.03.1984 as

well as a photo copy of the Will dated 27.02.1983 of Sri Bolisetty

Seetharamaiah.

(b) The appellant further stated that he was always been

ready and willing to perform his part of the contract under the suit

agreement for sale and that, on account of the default of the

respondents, he also got issued a legal notice dated 28.08.1986 to

the 1st respondent who had sent a belated reply on 04.09.1986

denying his claim.

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(c) The 2nd respondent is the husband of the 1st respondent

and it is stated in the plaint that he instituted the suit for

permanent injunction against the appellant in O.S.No.199 of 1986

in the court of the learned District Munsif, Bapatla, that made the

appellant to suspect the 1st respondent in the context of

performance of her part of the contract under the agreement for

sale. It is also alleged in the plaint that at the request of the

respondents they were permitted to remain in the suit property for

a short period in spite of delivering possession to him, which

permissive possession continued without handing him over the

premises.

8. Both the respondents filed separate written statements denying

the claim of the appellant in the plaint mainly contending that the 1st

respondent did not execute the alleged suit agreement for sale nor

receive any consideration thereunder nor deliver the title deed and a copy

of the Will as alleged on 16.07.1986 upon receiving alleged part

consideration of Rs.51,000/-. Both of them called this suit agreement for

sale a rank forgery and that no part of amount thereunder was received

by the 1st respondent. She went to the extent of stating that she did not

know the appellant at all and claimed that she did not have any right or

interest to the suit property, which belonged to her husband viz., the 2nd

respondent, who is a rightful owner of the same. She also contended that

she used to sign any document always and was in perfect health nor there

was any occasion for her to subscribe thumb impression to the

documents. Thus, both of them alleged that the appellant is guilty of

fraud.

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9. In his separate written statement, the 2nd respondent further

contended that he had purchased this property under an agreement for

sale dated 27.07.1981 from the rightful owner Sri Bolisetty

Seetharamaiah, who had purchased the suit property in a Court auction.

He asserted that he has been in continuous possession of the suit

property in his own right where he has been living with the 1st

respondent, who is his second wife, where he also got constructed a

house. He denied the claim of the respondent that he attested the suit

agreement for sale as well as the endorsement therein .

10. O.S.No.28 of 1983 was filed by Sri Dande Gayathri in the court

of learned District Munsif, Bapatla against him and others alleging that Sri

Bolisetty Seetharamaiah had sold the suit property to her under an oral

contract for sale, seeking relief of specific performance, which was then

pending adjudication. He also claimed that since Sri Bolisetty

Seetharamaiah died, he could not obtain regular registered sale deed in

terms of the agreement in his favour while denying that a registered sale

deed was executed by his son Sri Shivaji on 06.03.1984 in favour of the

1st respondent, which is a void document even otherwise. He further

alleged in his written statement that when the appellant tried to take

possession of the suit property forcibly he was constrained to institute

O.S.No.199 of 1986 for perpetual injunction. Both the respondents denied

that the appellant is entitled for refund of any amount.

11. On the above pleadings, the learned trial Judge settled the

following issues and additional issue for trial:

"1. Whether the contract of sale dated 10.07.1986 is true, valid and binding on the defendants?

2. Whether the plaintiff is entitled for specific performance of refund of any amount?

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3. To what relief?

Additional issue:

Whether the suit contract of sale is created or not on the paper where the thumb impression of the 1st defendant as alleged by the 1st defendant?"

12. At the trial, the appellant examined himself as P.W.1 apart

from P.W.2 to P.W.4 to support his contention, while relying on Ex.A1 to

Ex.A6. The 1st respondent examined himself as D.W.1 and D.W.2 is the

2nd respondent. They also examined D.W.3in support of their contention

while relying on Ex.B1 to Ex.B9.

13. The learned trial Judge upon consideration of the material and

evidence held that Ex.A1 suit agreement for sale and Ex.A2 endorsement

thereon were executed by the 1st respondent, that were attested by the

2nd respondent, rejecting their defence of forgery. Thus, issue no.1 and

additional issue were held in favour of the appellant.

14. However, the learned trial Judge disbelieved the case of the

appellant that he paid Rs.51,000/- under Ex.A2 endorsement for want of

proof and also delivery of Ex.A3 title deed apart from copy of the Will.

Ultimately holding that the appellant approached the court with unclean

hands, who is not entitled for discretionary relief of specific performance,

dismissed the suit while directing refund of Rs.5,000/- advance amount

paid under the alleged agreement for sale to the appellant. Thus,

remaining issues were held by the learned trial Judge.

15. Incidentally it has to be stated that the learned trial Judge also

held that the suit property was purchased by the 1st respondent under

Ex.A3 sale deed from rightful owner and disbelieved the case of the

respondents that the 2nd respondent has exclusive right, title or interest to

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the suit property, while holding that he did not have possession of this

property.

16. Against this decree and judgment the appellant has preferred

this appeal.

17. Sri Yogesh, learned counsel, for Sri P. Sri Raghu Ram, learned

counsel for the appellant, and Sri V.K. Rama Rao, learned counsel for Sri

Mummaneni Srinivasa Rao, learned counsel for the respondents,

addressed arguments.

18. Now, the following points require determination in this appeal:

1. Whether Ex.A2 endorsement is supported by consideration of

Rs.51,000/- alleged to have had been paid by the appellant to

the respondents 1 and 2?

2. If the appellant is entitled for relief of specific performance

against the respondents?

3. To what relief?

POINT No.1:

19. The 1st respondent had agreed to sell the suit property to the

appellant under Ex.A1 agreement for sale on 10.07.1986 for a

consideration of Rs.56,700/- and that, on the same day she received an

advance of Rs.5,000/- thereunder. As per the terms of this agreement for

sale time was granted till 10.08.1986 for payment of the balance.

20. On 16.07.1986 under Ex.A2 endorsement on Ex.A1 sale

agreement, Rs.51,000/- was paid as a part of sale consideration. The

contents of Ex.A2 recorded this fact and that delivery of the suit property

was also given to the appellant thereunder by the 1st respondent.

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21. The contention of the appellant is that Ex.A3 sale deed dated

06.03.1984 along with a photo copy of the Will dated 27.02.1983 of Sri

Bolisetty Seetharamaiah were handed over on the same day by the 1st

respondent to the appellant.

22. The defence of both the respondents is one of complete denial

of all these transactions. They went to the extent of calling Ex.A1 and

Ex.A2 being an outcome of forgery. The 1st respondent tried to explain

that Ex.A3 sale deed was stolen from their house by their son and son-in-

law. At the trial, suggested defence is that Sri Chennakesavarao, son-in-

law of the 1st defendant, got this document forged in the name of the

appellant, which is however not pleaded defence in the written statement.

The respondents 1 and 2 contended that they have been in possession of

the suit property in their own right and not in permissive possession, on

account of the facility extended by the appellant to remain in this property

for a short time after Ex.A2 transaction.

23. The learned trial Judge rejected this substantial defence of

denial of execution of Ex.A1 and Ex.A2 and plea of forgery of the

respondents 1 and 2 relying on the testimony of P.W.2 to P.W.4.

24. P.W.2 is the attestor of Ex.A1 agreement for sale. P.W.3 is the

scribe of Ex.A2 endorsement and P.W.4 attested it. The pertinent

observations of the learned trial Judge in paras 19 and 20 of the

impugned judgment are as under:

"19. .... D.W.2 in cross examination admitted that he is a signatory to Ex.A.1 and Ex.A2 when confronted with them. No prudent person will forge the signature of the husband while creating a document said to have been executed by the wife. The evidence of P.W.2, P.W.3 and P.W.4 amply established that the 1st defendant executed Exs.A1 and A2. The plea of forgery regarding Ex.A.1 and Ex.A.2 raised by the defendants cannot be believed. The evidence of D.W.1 and D.W.2 regarding the execution of Ex.A1 and Ex.A2 is not true."

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25. These findings and observations are binding on the

respondents 1 and 2 and other respondents also, since no cross-appeal or

cross-objection is presented against this decree and judgment questioning

them.

26. The learned trial Judge has also directed refund of Rs.5,000/-

paid as an advance under Ex.A1 agreement for sale to the appellant by

the respondents 1 and 2. This finding has also become final for the same

reason.

27. Contract for sale under Ex.A1 agreement is indeed established

whereby the 1st respondent had agreed to sell the suit property to the

appellant thereunder. The terms and conditions therein, in the

circumstances are proved and established.

28. The learned trial Judge further observed in paras 19 & 20 as

under:

"It is the contention of the defendants that the plaintiff has no capacity to pay Rs.51,000/. The plaintiff did not file any recorded evidence to show that by the date of Ex.A2 he was possessing Rs.51,000/-. Apparently Ex.A2 creates a doubt in the mind of the court for the following reasons. (1) the words ' ' is in different ink from the other-writing, (2) there is no space in between the words 'అ ర ల and ' ' when compared to the words in other sentences. The sentence ' ' is incomplete.

20. Therefore, the passing of Rs.51,000/- under Ex.A.2 as deposed by P.W.1, P.W.3 and P.W.4 cannot be believed. The evidence of P.W.1 to P.W.4 clearly established that the 1st defendant executed Ex.A.1 and Ex.A.2, the 2nd defendant attested them. Hence these issues are answered accordingly."

29. One of the circumstances considered by the learned trial Judge

in accepting the contention of the appellant is that the 2nd respondent is

figured as one of the attestors to Ex.A1 and Ex.A2. There is clear

admission of the 2nd respondent as D.W.2 at the trial that he is signatory

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to Ex.A1 and Ex.A2. This answer was elicited in cross-examination of

D.W.2 on behalf of the appellant upon confronting the document.

30. The learned trial Judge as referred to above in para-19

recorded that there are certain material alterations as if converting

Rs.1,000/- as Rs.51,000/- in figures by addition of '5' and the word ' '

in words while describing Rs.51,000/-.

31. It was never the defence of the respondents 1 and 2 either in

their written statement or at the trial specifically of the alleged material

alteration of the contents of Ex.A1 and Ex.A2. In fact, if such defence had

been taken in the written statement, it militates against its principal and

main defence of denial of execution of these documents and calling them

forgery. However, suggestions were made in the course of trial in this

context to P.W.3 attestor to Ex.A2. Since it being not the pleaded defence

in the written statement, the same cannot be taken into consideration.

The trial Court cannot make out a new case for the respondents

(defendants), which they did not choose to plead or set up as one of their

defences in the suit. It is clearly beyond the permissible limits of

appreciation of evidence and material on record. Thus, the learned trial

Judge clearly faulted in this respect. Therefore, it is one of the grounds on

which the observations and findings recorded by the learned trial Judge

need to be interfered and have to be set aside.

32. Even otherwise, the evidence adduced by the appellant by

himself as P.W.1, P.W.3 and P.W.4 clearly supported the transaction

under Ex.A2. While P.W.1 supported the same deposing to such facts, it

is the clear version of P.W.3 that Ex.A2 is supported by consideration of

Rs.51,000/- and that P.W.1 paid the said sum thereunder in his presence,

of P.W.4 Sri Tanneeru Sambasivarao and the second respondent (D.W.2).

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He further deposed that Ex.A3 title deed was handed over during this

transaction to the appellant and that both the attestors subscribed their

signatures to Ex.A2 in his presence.

33. In cross-examination on behalf of the respondents 1 and 2 it

was elicited from P.W.3 that he noticed the appellant bringing money

from his house during Ex.A2 transaction, which took place at the house of

the respondents. He further stated that the appellant informed him that

the suit property was delivered to him thereunder. He further stated that

during this transaction under Ex.A2 the respondents 1 and 2 were

present.

34. P.W.4 corroborated the testimony of P.W.3 in all material

particulars and that of P.W.1 supporting this transaction in all respects. In

cross-examination on behalf of the respondents, it was elicited from this

witness that Ex.A2 was drafted in his presence and P.W.3 informed him

the contents of Ex.A2 and thereupon he subscribed his signatures to it. He

also corroborated the testimony of P.W.1 and P.W.2 that Ex.A3 was

handed over to the appellant and that possession of the suit property was

delivered thereunder.

35. The crucial circumstance in this context is the signature of the

2nd respondent to this endorsement as an attestor. This admitted situation

goes a long way to support the version of the appellant. If at all, the

transaction thereunder did not take place in the manner stated therein,

the 2nd respondent would not have attested it. Further such signature of

the 2nd respondent is seen in Ex.A2 at the place where it ought to be. It is

indicative of the fact that he signed in Ex.A2 being aware and conscious of

its contents. This significant circumstance clearly cuts at the root of

defence and goes against the very finding recorded by the learned trial

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Judge in this context. It confirms the fact that Rs.51,000/- was received

by the 1st respondent in that transaction, possession was delivered and

thereupon when this endorsement was made on the reverse of Ex.A1,

scribed by P.W.3 while D.W.2 and P.W.4 attested it, acknowledging not

only the contents of Ex.A2 but also the transaction thereunder. Thus,

presence of the 2nd respondent being an attestor and a party to this

transaction holds any amount of significance and as an important factor,

completely supporting the claim of the appellant. Added to it, no motive

is attributed to P.W.3 and P.W.4 of interestedness to support the

appellant. Version of D.W.2 is proving that they were known to him by

then.

36. Therefore, for the above reasons the contention sought to be

advanced now in this appeal for the respondents cannot stand nor the

reasons so assigned by the learned trial Judge questioning Ex.A2 stand.

37. For these reasons, the finding required to be recorded now is

that Ex.A2 transaction is proved being genuine and that there is sufficient

material and evidence that it was an endorsement made upon receiving

Rs.51,000/- by the 1st respondent from the appellant.

38. The finding of the learned trial Judge that there is no material

placed as to passing of this part of consideration, in the circumstances,

has no basis. The evidence on record makes out that the appellant has

about Ac.20-00 of land at Ramannapet at Krishna District and his in-laws

gave him Ac.5-00 of land. He also owns a house at Chirala, which is his

ancestral property. He was then working as a driver in APSRTC at

Machilipatnam Depot.

39. Cross-examination of any of the witnesses examined on behalf

of the appellant at the trial did not bring out any material to discredit their

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testimony including with reference to financial capacity of the appellant to

purchase this property under Ex.A1. It is also explaining the circumstances

that made the 1st respondent to sell this property to the appellant. It is

another circumstance to consider in this matter.

40. Thus, this point is answered in favour of the appellant and against the

respondents.

POINT No.2:-

41. When execution of Ex.A1 is established and proved and also of

Ex.A2, the appellant should necessarily be entitled to the relief of specific

performance of the terms of this contract against the 1st respondent. He

has every right to insist and demand the 1st respondent to perform her

part of the contract. What all expected of the appellant under this contract

was performed by him and only a small amount of sale consideration was

to be paid by the date of Ex.A2.

42. One of the observations of the learned trial Judge in this

respect is that the appellant did not explain why he did not obtain a

regular sale deed in those circumstances. Again it has to be stated that

this finding is without basis, particularly having regard to the nature of

defence set up by the respondents 1 and 2 at the trial.

43. Before institution of the suit, finding that there was an attempt

on the part of the respondents 1 and 2 to sell away the suit property,

Ex.A4 notice dated 28.08.1986 was issued calling upon the 1st respondent

to perform her part of the contract. She gave a reply by herself in Ex.A5.

The contents of Ex.A5 reply apparently had propelled the appellant to file

this suit seeking the relief of specific performance on the strength of

Ex.A1.

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44. The apprehension of the appellant of alienation of this property

is vindicated. Version of D.W.2 in cross-examination is proving it. An

agreement was entered into to sell this property by the 1st respondent to

one Sri Mudraboina Yesu on 23.08.1986. According to D.W.2, it was later

on cancelled for which purpose he paid Rs.21,000/- to Sri Yesu.

45. The admitted facts in this case are that Sri Bolisetty

Seetharamaiah instituted O.S.No.328 of 1968 for realization of the amount

under a mortgage debt against the original owner of this property. It was

decreed in his favour with passing of final decree on 07.08.1970 in the

suit on the file of the Court of the learned District Munsif, Bapatla. This

property was purchased by him in E.P.No.255 of 1975 on 21.07.1975. It is

established by Ex.B4-certified copy of the sale certificate issued therein by

the above Court. It was delivered to Sri Bolisetty Seetharamaiah in

E.A.No.561 of 1975 in E.P.No.255 of 1975 proved by Ex.B5 certified copy

of certificate of delivery dated 27.03.1976.

46. Thereupon, as seen from Ex.B2 dated 27.12.1981 Sri Bolisetty

Seetharamaiah executed an agreement for sale agreeing to sell the suit

property to the 2nd respondent for consideration of Rs.7,500/- and on

account of the death of Sri Bolisetty Seetharamaiah, this contract for sale

did not fructify into a sale deed. A Will was executed by Sri Bolisetty

Seetharamaiah on 27.02.1983 regarding disposition of his properties and

Sri B.Raja Shivaji, his son and the executant of Ex.A3 sale deed dated

06.03.1984, was one of the beneficiaries thereunder. A suit was filed in

respect of this property by Smt. Dande Gayathri, Wife of Sri Dande

Veeraiah in O.S.No.20 of 1983 and as seen from Ex.B7 to Ex.B9 the above

suit was dismissed. Sri Bolisetty Seetharamaiah as well as the 2nd

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respondent and his vendors were parties to O.S.o.20 of 1983 on the file of

the Court of the learned District Munsif, Bapatla.

47. Thus, these events and circumstances clearly point out that

Ex.A3 sale deed for the suit property was executed by Sri Bolisetty Raja

Shivaji, Son of Sri Bolisetty Seetharamaiah dated 06.03.1984 in favour of

the 1st respondent. It remained a proved fact in this case, on the material

that by the date of Ex.A1 sale agreement, the 1st respondent was the

lawful owner of this property.

48. Though in a suit for specific performance, a defence of this

nature denying right, title and interest to the property cannot be set up by

the vendor, the above circumstances are considered only for the purpose

of testing the veracity of the defence set up by the respondents 1 and 2.

The learned trial Judge in the judgment under appeal also considered the

legal position in this context relying on Muni Sanappa

Vs.Gurunanjappa1, N. Venkataramana vs. M.Narasimham2 and

Netyam Venkataramanna and Ors. Vs. Mahankali Narasimhan3.

49. Therefore, in the light of the material available on record, when

the nature of defence set up by the respondents 1 and 2 is clearly

established as false, it cannot be given any credence. At every stage they

came up with false pleas in this matter. Basing on the material and

evidence produced by the appellant, when he did perform his material

part of the contract under Ex.A1, he is entitled for discretionary relief of

specific performance in terms of Section 20 of the Specific Relief Act. The

1st respondent is bound to execute the sale deed in terms of Ex.A1.

. AIR 1950 Madras 90

. 1991(1) ALT 195

. 1994(1) ALT 185

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50. The respondents 3 to 5 were impleaded in this appeal by virtue

of orders in A.S.M.P. 1862 of 2011 dated 01.06.2021. They cannot have

any claim to the suit property, in the above circumstances.

51. The learned trial Judge did not appreciate the material on

record in proper perspective and the so-called discretion exercised by him

is most improper which is on the verge of illegality. Therefore, in this

regular appeal, in the interests of justice, interference with the decree and

judgment of the trial Court is required.

52. The 2nd respondent is no more and it is only for the 1st

respondent to execute a sale deed in terms of Ex.A1 agreement for sale in

favour of the appellant. Role of other respondents is completely out of

context and in the circumstances, they do not derive any benefit out of

the transaction, if any, they had entered into with reference to the suit

property with the respondents 1 and 2.

53. Thus, this point is answered in favour of the appellant and

against the respondents.

POINT No.3:

54. In view of the findings on points 1 and 2, the appeal has to be

allowed setting aside the decree and judgment of the trial Court.

Consequently, the suit has to be decreed as prayed, directing the 1st

respondent to execute a sale deed in favour of the appellant pursuant to

Ex.A1 agreement for sale and to deliver him possession of the suit

property. The claim for damages in the circumstances of the case, is not

allowed.

55. In the result, this appeal is allowed in part with costs

throughout in favour of the appellant and against the respondents. The 1st

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respondent is directed to execute a sale deed and register in favour of the

appellant pursuant to agreement for sale dated 10.07.1986 within three

(03) months from this day subject to the appellant depositing the balance

sale consideration to the credit of O.S.No.85 of 1986 on the file of the

Court of the learned Senior Civil Judge, Bapatla within one month from

this day. If the respondent fails to execute a sale deed and register as

stated above, the appellant is at liberty to approach the aforestated Court

to get a sale deed executed and registered through the process of the

Court. The appellant is also entitled for delivery of possession of the suit

property consequently. The 1st respondent (1st defendant) is at liberty to

withdraw the balance sale consideration so deposited without furnishing

any security. In respect of the relief for damages, the same is rejected

and consequently the judgment and decree of the trial Court to that

extent stand confirmed.

As sequel thereto, pending miscellaneous petitions, if any, stand

closed. Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:26.02.2021.

RR

MVR,J AS No.794 of 1997

HON'BLE SRI JUSTICE M.VENKATA RAMANA

APPEAL SUIT No.794 of 1997

Dt:26.02.2021

RR

MVR,J AS No.794 of 1997