Andhra Pradesh High Court - Amravati
K Prabhakara Rao S/O ... vs K. Soorya Rao S/O Sooranna 4 Ors on 16 February, 2021
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
APPEAL SUIT No.916 of 2003, CIVIL REVISION PETITION
No.4873 of 2006, Tr.A.S.No.6 of 2018 & A.S.M.P.No. 3052 of 2017
in APPEAL SUIT No.916 of 2003
COMMON JUDGMENT:
The plaintiff is the appellant in both these appeals and that he is
the petitioner in CRP No.4873 of 2006. Both these appeals are preferred
against the decree and judgment dated 27.03.2003 in O.S.No.98 of 1994
in refusing the principal relief sought in the suit for specific performance
of contract under the suit agreement for sale dated 14.10.1990 and in
allowing the counter claim filed by the deceased 1st respondent and his
son 2nd respondent directing delivery of possession of item No.1 of plaint
schedule.
2. The relief sought in the suit by the appellant against the
respondents 1 to 4 is as under:
"(i) to pass a decree in favour of plaintiff and against defendants 1
to 4 to execute a sale deed in favour of plaintiff for item-1 of
plaint schedule land and in case they failed to do so the Court to
execute the sale deed;
(ii) for any reason specific performance of agreement court not be
decreed, to grant a decree for Rs.95,000/- representing return of
consideration paid and compensation with interest at 12% per
annum from date of suit till date of realisation against
defendants 1 and 2
(iii) award costs of the suit against defendants 1 and 2
(iv) grant such other reliefs which the Court deem fit and proper in
the circumstances of the case
(v) grant a permanent injunction restraining the defendants 1 to 4
from interfering with plaintiff's peaceful possession of plaint
schedule land property"
3. The plaint schedule property is described as under:
"Item-1: East Godavari District, Kajuluru Mandal, Tallarevu Sub
Registry, Aryavatam Village Panchayat, Aryavatam Village Zerayati,
Wet land an extent of Ac.5-00 = 2.023 Hectares in S.No.36/2 with the
following boundaries:
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East : Kongodu village boundary
West : Raju - Drainage channel
North : Kongodu village boundary
South: Land sold to Rajahmundry Saheb to some
extent and to some other extent the land of
Pampana Veerraghavulu
Item-II: East Godavari District, Kajuluru Mandal, Tallarevu Sub
Registry, Aryavatam village Zeroyati wet land an extent of Ac.1-50
cents = 0.607 Hectares within the following boundaries
East : Land of Chillangi Satyanarayan
West : Drainage channel
North : Land sold to Rajahmundry Saheb
South : Land of Kadiyala Venugopala Rao
Items 1 and II making a total of Ac.6-50 cents = 2.630 Hectares
within the above boundaries."
4. The relief in the suit is confined only in respect of Item No.1 of
the plaint schedule, which shall be referred to hereinafter as 'the suit
land', for convenience.
5. During pendency of this appeal the 1st respondent died.
A.S.M.P.No.3052 of 2017 was filed by the appellant to bring his L.Rs. on
record being the respondents 5 to 8. In A.S.M.P.No.850 of 2014 one of
the daughters of the 1st respondent Smt. Vanum Anasuya, W/o.
Varahalurao, Resident of Mathukumilli, Kajuluru Mandal, East Godavari
District sought himself to be impleaded as a party to this appeal claiming
an independent share in the suit property. She is the 5th respondent in
A.S.M.P.No.3052 of 2017. A.S.M.P.No.850 of 2014 was ordered on
29.11.2007.
6. No arguments are addressed in respect of bringing L.Rs.of the
1st respondent on record referring to A.S.M.P.No.3052 of 2017. Even
otherwise, when two of the L.Rs.representing the estate of the 1st
respondent are on record, it is unnecessary to bring other L.Rs. on record
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now in this appeal. L.Rs.of the 1st respondent are bound by the outcome
of this appeal in the circumstances since the appeal was instituted during
the lifetime of the 1st respondent and he as well as 2nd respondent raised
common contentions in the suit and also in this appeal. Thus,
A.S.M.P.No.3052 of 2017 is disposed of.
7. Respondent No.4 is the son of the respondent No.3. The
respondents 1 and 2 claim the suit land as well as Item No.2 of the plaint
schedule upon purchase from the respondents 3 and 4 under an
agreement for sale in respect of which the 1st respondent during his
lifetime filed O.S.No.266 of 1984 for specific performance of contract
under the agreement by which these properties were sold. It was decreed
ex parte on 19.02.1992. The material on record discloses that CMA
No.217 of 1988 is pending on the file of this Court against the above
order. The questions involved in these appeals relate to enforcement of
terms of the suit agreement for sale dated 14.10.1990 between the
appellant and the respondents 1 and 2.
8. The terms and conditions in this agreement are not as such in
dispute and therefore, it is desirable to refer them now. The respondents
1 and 2 agreed to sell the plaint schedule lands to the appellant on
14.10.1990 at the rate of Rs.27,000/- per acre and for a total
consideration of Rs.1,75,000/-. The total sale consideration was to be paid
as agreed among them under this agreement as follows:
1. Rs.5,000/- towards advance paid on 14.10.1990.
2. Rs.35,000/- to be paid on or before 30.10.1990 on which day
the plaint schedule lands were agreed to be delivered by the
respondents 1 and 2 to the appellant.
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3. Rs.40,500/- to be paid on or before 01.12.1990, whereupon
Ac.1-58 cents representing item No.2 of the plaint schedule
was agreed to be registered by the respondents 1 and 2 in
favour of the appellants.
4. Balance of Rs.95,000/- was to be paid on or before 31.05.1991
and the appellant should obtain a registered sale deed from the
respondents 1 and 2 thereupon.
9. The other conditions in this agreement for sale (Ex.A1) are that
the respondents 1 and 2 should be ready the title deeds relating to these
lands and to deliver them by 31.05.1991 by the time of registration in
terms of this agreement.
10. Another term in this context is in the event of the respondents
1 and 2 failing to produce the title deeds and other documents relating to
the plaint schedule lands, Rs.45,000/- was to be paid to the appellant by
the respondents 1 and 2 while retaining Rs.50,000/-.
11. Another condition is that the title deed relating to Ac.5-00 of
land which is in the name of the 2nd respondent shall be delivered to the
appellant as security and in the event the respondents 1 and 2 failing to
hand over the title deeds and other documents relating to the plaint
schedule lands in terms of this agreement, the 2nd respondent should
execute a sale deed and register in respect of the afore stated Ac.5-00
belonging to him in favour of the appellant.
12. The case of the appellant in the plaint was that he was always
ready and willing to perform his part of the contract in terms of this suit
agreement for sale and that the plaintiff came to know of pendency of
O.S.No.266 of 1984 filed by respondents 1 and 2 against the respondents
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3 and 4 on the file of the Court of the learned I Additional Subordinate
Judge, Kakinada for specific performance of contract, when he was served
summons in O.S.No.349 of 1992 where the 1st respondent sought relief of
permanent injunction against the appellant in respect of Item No.2 of
plaint schedule lands. The appellant also stated in the plaint that he got
issued a legal notice to the respondents 1 and 2 on 07.11.1990
demanding performance of contract under this agreement for sale to
which they did not offer any reply.
13. It was specifically pleaded in the plaint that on 23.12.1990 the
appellant paid Rs.40,000/- to the respondents 1 and 2 which they
acknowledged and delivered possession of the suit land of Ac.5-00 to him
in consideration thereof. It was also pleaded that the respondents 1 and 2
suppressed the sale transaction of respondents 3 and 4 and the suit filed
thereon which was not disclosed to him when the suit agreement for sale
was entered into and that they had only a right to obtain a sale deed as
well as possession of the plaint schedule lands. He also pleaded that he
acted in good faith, being satisfied that the claim of the respondents
1 and 2 since they were in actual possession of the plaint schedule lands
in their own right for several years and since they were able to deliver
possession of the suit land being its ostensible owners.
14. The appellant also pleaded in the plaint that he is entitled to
remain in possession of the suit land in terms of Section 53-A of the
Transfer of Property Act and since he suspected that the respondents 1
and 2 would interfere with his possession and enjoyment of the suit land
he is also entitled for the relief of permanent injunction against them.
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15. The appellant also pleaded that he is entitled for compensation
of Rs.50,000/- besides sale consideration, as an alternative relief in the
absence of grant of the relief of specific performance.
16. The 1st respondent filed a written statement as well as
additional written statement resisting the claim of the appellant
contending that the suit agreement for sale was obtained by the appellant
exerting undue influence and they did not execute it in his favour willfully.
They also contended that the appellant failed to perform his part of the
contract under the suit agreement for sale and did not comply with its
terms making the payments as stipulated. They also contended that on
23.12.1990 upon receiving Rs.40,000/- from the appellant, only suit land
of Ac.5-00 was delivered to him and that on that day the suit agreement
for sale was cancelled in respect of item No.2 of the plaint schedule on
which the appellant had agreed to return the suit agreement for sale to
them.
17. While admitting that legal notice was got issued by the 1st
respondent to them on 07.11.1990, they disputed its contents and denied
that the appellant was not aware of the sale transaction between the
respondents 3 and 4 on the one hand and the respondents 1 and 2 on the
other as well as pendency of O.S.No.266 of 1994 in respect of the plaint
schedule lands and that knowing full well of these transactions, the
appellant had entered into the suit agreement for sale with them. It is
also pleaded in the written statement that for such reason alone the 2nd
respondent was made to join as one of the executants of the suit
agreement for sale who was asked to offer his own property as security.
They further pleaded that the appellant is their close relation and hence
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they reposed confidence on him which he took advantage of to wield
influence over them.
18. The respondents also pleaded that at no point of time the
appellant offered to pay remaining balance, since he was aware that he
did not have title to the plaint schedule lands and when a dispute was
raised by them in the presence of elders, on the same ground and
demanded return of the suit agreement for sale, the appellant was
reluctant, whereupon the elders asked the appellant to pay the balance
consideration with interest at 24% p.a. and to obtain sale deed from them
without any covenant which the appellant defaulted. They further
contended that the suit claim is barred by time and that without paying
the balance sale consideration the appellant began to enjoy the suit land,
which is a double crop wetland for four years.
19. The respondents 1 and 2 also pleaded that the appellant
cannot take shelter under Section 53-A of the Transfer of Property Act
claiming protection of his possession in view of default committed by him
to perform its terms and therefore, he is not entitled for any of the reliefs
and hence he is bound to deliver the suit land to them. Thus, a counter-
claim is raised requesting ejectment of the appellant from the suit land by
the respondents 1 and 2.
20. The appellant also filed a rejoinder opposing the counter-claim
and asserting his stand in the plaint while contending that the 1st
respondent himself defaulted in performing his part of the contract under
the suit agreement for sale, that he is entitled for the relief sought in the
suit and contending that the 1st respondent is not entitled for the relief of
ejectment against him sought in the counter-claim.
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21. On the pleadings and material, the learned trial Judge settled
the following issues for trial:
"1. Whether the plaintiff performed his part of the contract?
2. Whether the suit agreement of sale to the extent of item No.2
of the plaint schedule property, was cancelled by mutual
consent of plaintiff and defendants 1 and 2 on 23.10.1990?
3. Whether the plaintiff is entitled to seek specific performance of
the sit agreement of sale against defendants 1 to 4?
4. Whether the plaintiff is entitled to seek in the alternative
recovery of Rs.95,000/- from defendants 1 and 2 representing
Rs.45,000/- towards the part consideration paid by plaintiff and
Rs.50,000/- towards compensation?
5. To what relief?"
22. At the trial, the appellant examined herself as P.W.1, P.W.2
being his brother, who is also son-in-law of the 1st respondent and P.W.3,
the scribe of Ex.A1 while relying on Ex.A1 to Ex.A4 in support of his
contention. The 2nd respondent examined himself as D.W.1 and no
documents were marked on behalf of any one of the respondents at the
trial.
23. On the evidence and material, the learned trial Judge agreed
with the contention of the respondents 1 and 2 that the appellant failed to
perform his part of the contract on account of his laches in paying the sale
consideration as agreed upon under the suit agreement for sale, that he is
not entitled for the relief of specific performance and directed refund of
Rs.45,000/- with future interest at 12% p.a. thereon from the date of the
suit till realisation while dismissing the suit in other respects. The learned
trial Judge allowed the counter claim with costs directing the appellant to
deliver vacant possession of the suit land to the respondents 1 and 2
within two months from the date of decree and judgment. Thus, the
reliefs were ordered by the decree and judgment now under appeal.
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24. Sri E.V.V.S.Ravi Kumar, learned counsel for the appellant, and
Sri Rammohan Polanki, learned counsel for the respondents, addressed
arguments.
25. Now, the following points arise for determination:
1. Whether Ex.A1 suit agreement for sale was obtained by the
appellant subjecting the respondents 1 and 2 to undue
influence?
2. Whether the appellant was always ready and willing to
perform his part of the contract under the suit agreement
for sale by the date of the suit?
3. Whether the respondent No.1 is entitled to seek possession
of the suit land from the appellant?
4. Whether the appellant is entitled for the relief of specific
performance of contract basing on the suit agreement for
sale and other reliefs sought in the suit?
5. To what relief?
POINT No.1:
26. The specific contention of the respondents 1 and 2 in the
written statement was that Ex.A1 suit agreement for sale was obtained
exerting undue influence on them by the appellant he being their close
relation. Admittedly, P.W.2, who is brother of the appellant, married the
daughter of the 1st respondent and thus there is close relationship among
the appellant and the respondents 1 and 2. However, the material on
record shows that there have been disputes between the 1st respondent
and P.W.2 and that, the 1st respondent went to the extent of giving a
complaint to the police against him.
27. On behalf of the respondents 1 and 2 only the 2nd respondent
had chosen to enter the witness box and deposed referring to their case
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as D.W.1. Despite their specific stand in the written statement, there is
not even a whisper in the testimony of D.W.1 in respect of the so called
undue influence exerted on them by the appellant nor any pressure
whereby they were forced to execute Ex.A1 suit agreement for sale.
28. On the other hand, there are clear statements in the testimony
of D.W.1 which make out that Ex.A1 suit agreement for sale was executed
by them consciously and voluntarily. In his examination-in-chief D.W.1
stated that he and his father jointly executed Ex.A1 agreement for sale
dated 14.10.1990 and further deposed that they received Rs.5,000/- as
advance thereunder.
29. Referring to Ex.A2 endorsement on Ex.A1 agreement for sale,
while admitting that they received Rs.40,000/- as a part of sale
consideration, D.W.1 clearly stated in examination-in-chief itself that in
terms of Ex.A1 suit agreement, he and his father delivered the suit land of
Ac.5-00 to the appellant on 23.12.1990.
30. There is also reference to cancellation of that part of Ex.A1 suit
agreement for sale in respect of item No.2 of plaint schedule by Ex.A2
endorsement. Ex.A2 endorsement bears all these recitals. Its execution as
well as transaction thereunder are admitted by both the parties.
31. When a defence of this nature basing on undue influence is set
up by a party, the burden is on him to prove and establish the same in
clear terms. Sri E.V.V.S.Ravi Kumar, learned counsel for the appellant,
pointing out these circumstances relied on Jamila Begum (Dead)
through Legal Representatives vs. Shami Mohd. (Dead) through
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Legal Representatives and another1, where in this context in paras 28
and 29 it is thus stated:
"28. Insofar as the plea of undue influence, merely because the parties
are related to each other or merely because the executant was old or of
weak character, no presumption of undue influence can arise. The court
must scrutinise the pleadings to find out that such plea has been made
out before examining whether undue influence was exercised or not.
29. While considering the aspect of plea of undue influence and onus
probandi, in Subhas Chandr Das Mushib v. Ganga Prasad Das
Mushib [Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib, AIR
1967 SC 878] , it was held as under: (AIR p. 880, paras 4 & 7)
"4. Under Section 16(1) of the Contract Act a contract is said to be
induced by undue influence where the relations subsisting between the
parties are such that one of the parties is in a position to dominate the
will of the other and uses that position to obtain an unfair advantage over
the other. This shows that the court trying a case of undue influence
must consider two things to start with, namely, (1) are the relations
between the donor and the donee such that the donee is in a position to
dominate the will of the donor, and (2) has the donee used that position
to obtain an unfair advantage over the donor?
***
7. The three stages for consideration of a case of undue influence
were expounded in Raghunath Prasad Sahu v. Sarju Prasad
Sahu [Raghunath Prasad Sahu v. Sarju Prasad Sahu, 1923 SCC OnLine PC
62 : (1923-24) 51 IA 101 : AIR 1924 PC 60] in the following words: (SCC
OnLine PC)
'In the first place the relations between the parties to each other must
be such that one is in a position to dominate the will of the other. Once
that position is substantiated the second stage has been reached viz. the
issue whether the contract has been induced by undue influence. Upon
the determination of this issue a third point emerges, which is that of
the onus probandi. If the transaction appears to be unconscionable, then
the burden of proving that the contract was not induced by undue
influence is to lie upon the person who was in a position to dominate the
will of the other.
Error is almost sure to arise if the order of these propositions be
changed. The unconscionableness of the bargain is not the first thing to
be considered. The first thing to be considered is the relations of these
parties. Were they such as to put one in a position to dominate the will of
the other?'"
32. Therefore, accepting the contention on behalf of the appellant
in this context in view of the material on record, the intference to draw is
that the respondents 1 and 2 failed to establish that Ex.A1 was obtained
by the appellant by undue influence from them and taking advantage of
their close relationship.
2019(2) Supreme Court Cases 727
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33. Thus, this point is held in favour of the appellant and against
the respondents.
POINT No.2:-
34. The entire strain of respondents 1 and 2 in respect of suit
agreement for sale and the contract thereunder is that the appellant failed
to perform his part of the contract, meeting the time schedule of
payments stated therein. The appellant is disputing it contending that
they are in fact the defaulters who failed to abide by the terms and
conditions mentioned in Ex.A1 suit agreement for sale. The sale
consideration of Rs.1,75,000/- was agreed to be paid by the appellant to
the respondents 1 and 2, as stated in para-7 supra. The 1st payment was
on or before 30.10.1990.
35. Ex.A4 legal notice was issued on 06.11.1990 on behalf of the
appellant to the respondents 1 and 2. The terms and conditions in Ex.A1
suit agreement for sale are stated in this legal notice. It is specifically
stated in this notice that the appellant when approached the 1st
respondent on 31.10.1990 to pay Rs.35,000/- in terms of Ex.A1 suit
agreement, he refused to accept and evaded to receive. It is also stated in
Ex.A4 notice that thereupon the appellant got issued a telegram to the 1st
respondent and deposited the said amount in State Bank of India at
Gollapalem. Admittedly, no reply was issued to Ex.A4 legal notice on
behalf of the respondents.
36. Sri E.V.V.S.Ravi Kumar, learned counsel for the appellant,
pointed out this circumstance to prove the eagerness of the appellant to
pay the balance sale consideration and the conduct of the 1st respondent
in evading to receive. However, Sri Rammohan Polanki, learned counsel
for the respondents, contended that in support of such version in Ex.A4
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no documentary proof is available on record and a copy of the telegram or
any record relating to the deposit in bank account was produced at the
trial.
37. As seen from the written statement and the testimony of
D.W.1 there is no denial that original of Ex.A4 legal notice was not served
on them on behalf of the appellant. Ex.A4 copy of legal notice was in fact
marked during trial through D.W.1 viz., the 2nd respondent. He did not
offer any explanation in respect of the contents of Ex.A4 notice nor
dispute its contents denying that they ever received telegram as stated
therein nor specifically dispute deposit of Rs.35,000/- in State Bank of
India, Gollapalem . In these circumstances, issuance of Ex.A4 notice,
within a week of the first instalment stipulated of part payment lends any
amount of credence to the contention of the appellant.
38. It is established as a fact that when the appellant made efforts
to pay Rs.35,000/- on 30.10.1990 the 1st respondent avoided and evaded
to receive the same that compelled the appellant to get issued original of
Ex.A4 legal notice specifically bringing to the notice of the respondents of
the conduct of the 1st respondent in this context and issuance of telegram
thereof. Very issuance of telegram indicated the eagerness on the part of
the appellant to abide by the terms of this contract under suit agreement
for sale. The 1st respondent should blame himself for his conduct in this
context and cannot assail the version of the appellant.
39. The 2nd payment was expected by or about 31.12.1990 of
Rs.40,500/-.
40. Sri E.V.V.S.Ravi Kumar, learned counsel for the appellant,
specifically contended that this payment is with reference to performing
such part of the contract under Ex.A1 agreement in respect of item No.2
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of the plaint schedule and in view of Ex.A2 transaction, on the date on
which Rs.40,000/- was paid admittedly to the respondents 1 and 2.
Associate transaction of delivery of the suit land of Ac.5-00 on that day is
also pointed out by the learned counsel for the appellant in this context
proving and establishing the conduct of the appellant as well as the
manner in which the respondents 1 and 2 have treated as to how the
terms of Ex.A1 suit agreement stood performed.
41. The learned counsel for the appellant further contended that
Ex.A2 reflected an independent contract by itself and cannot merely be
treated an endorsement on Ex.A1 suit agreement having regard to its
terms. However, Sri Rammohan Polanki, learned counsel for the
respondents, contended that Ex.A2 remained an endorsement on Ex.A1
and did not have the status of the independent contract. The learned
counsel for the respondents also contended that it reflected only an
acknowledgment of belated payment of part of consideration under Ex.A1
suit agreement and nothing more.
42. The terms set out in Ex.A2 reflect that it has drawn its source
from Ex.A1 agreement for sale. Referring to Item No.2 of the plaint
schedule, it recorded that Rs.40,000/- was paid on 23.12.1990 and further
recorded that suit land of Ac.5-00 was delivered on that day to the
appellant. This fact of delivery of possession of the suit land is stated
more than once in the written statement and additional written statement
of the respondents 1 and 2. It was carried forward in the deposition of
D.W.1. The terms of Ex.A2 further set out that Ac.2-50 cents of land was
also offered as security by the respondents 1 and 2 covering the
transaction thereunder.
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43. Evidence of P.W.1 viz., the appellant and that of D.W.1 point
out that these parties treated the suit agreement for sale in respect of
Item No.2 of the plaint schedule, as rescinded and cancelled. When terms
of Ex.A1 suit agreement referred to such payment by 31.12.1990 of
Rs.40,500/- whereafter the respondents should execute a sale deed in
respect of item No.2 of the plaint schedule, in the above circumstances,
as rightly contended by Sri E.V.V.S.Ravi Kumar, learned counsel for the
appellant, this part of Ex.A1 lost its significance. It was so recited in
connection with item No.2 of the plaint schedule and when once the
parties to the contract were at consensus ad idem not to treat this item of
the property as a part of the suit agreement for sale and perform their
mutual obligations in relation thereto, this factor cannot remain a
circumstance for the respondents 1 and 2 to contend that the appellant
failed to adhere to this term of the contract. Thus, they cannot contend
now that the appellant failed to pay Rs.40,500/- as agreed under Ex.A1 by
31.12.1990.
44. The contention of the appellant is that on account of
possession of the plaint schedule property, he was under the impression
that the respondents 1 and 2 have been its lawful owners and therefore
he agreed to purchase the same from them under Ex.A1 suit agreement
for sale. He also pleaded and contended that he was not aware of the sale
transaction in the nature of an agreement for sale executed by the
respondents 3 and 4 in favour of the respondents 1 and 2 covering the
plaint schedule lands and of institution of O.S.No.266 of 1984 on the file
of the Court of learned Additional Subordinate Judge, Kakinada for specific
performance of the contract. However, Sri Rammohan Polanki, learned
counsel for the respondents, contended that the appellant was well aware
of these transactions including the pendency of the above suit between
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the respondents 1 and 2 on the one hand and respondents 3 and 4 on the
other and that the contention of the appellant in this context is nothing
but false.
45. Both these lands are in Kongodu village. It is the native village
of the appellant, where he resides. In cross-examination as P.W.1 the
appellant stated that these lands belonged to the 3rd respondent of
Mandapeta and that the 1st respondent has purchased the same. He
further stated that after coming to know how the 1st respondent held the
plaint schedule properties, he entered into Ex.A1 suit agreement for sale
with the respondents 1 and 2. These statements support the contention of
the respondents 1 and 2 that the appellant was aware by the date of
Ex.A1, that these lands belonged to the 3rd respondent.
46. This version of the appellant is also supported by his brother
P.W.2 at the trial who stated that he and his brother were aware of the
details of the plaint schedule lands. Therefore, it is not open for the
appellant to contend that he was not informed of the sale transaction
between the respondents inter se by the date of Ex.A1 sale agreement.
Apparently, he entered into Ex.A1 transaction aware of this background.
The 2nd defendant was suggested in the cross-examination on behalf of
the appellant as if the appellant had requested them to file a suit against
their vendors after Ex.A1 was entered into and that the respondents 1 and
2 procrastinated without pursuing legal remedies. It is a suggestion which
is supporting the version of the respondents pointing out that the
appellant was aware of the transactions leading to filing O.S.No.266 of
1984 for specific performance by the respondents 1 and 2 against the
respondents 3 and 4.
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47. Nonetheless, the appellant cannot contend having had known
the background as to how the respondents 1 and 2 had possession of the
plaint schedule lands. Even otherwise, in a suit for specific performance
the purchaser viz., the appellant cannot question the contract as if his
vendors have no title or imperfect title in view of section 13 of the Specific
Relief Act.
48. In the given facts and circumstances, the impression to gain is
that it is not an instance where contract under Ex.A1 as such cannot be
specifically enforced against the respondents 1 and 2 by the appellant.
49. Thus, having had entered into Ex.A1 suit agreement between
himself and the respondents 1 and 2, the appellant is bound to accept this
situation. It should not be lost sight of the fact of delivery of possession of
suit land of Ac.5-00 pursuant to Ex.A1, under Ex.A2 endorsement by the
respondents 1 and 2.
50. At the same time, insistence of the appellant on the
respondents 1 and 2 to produce title deeds of the suit lands is an
acceptable reason for withholding payment of balance sale consideration.
By then, balance sale consideration of Rs.95,000/- was to be paid and by
31.05.1991, in terms of Ex.A1. The appellant was also expected to pay
Rs.45,000/- out of it retaining Rs.50,000/- with him on account of failure
of the respondents 1 and 2 to produce title deeds, out of this Rs.95,000/-.
It is one of the circumstances, considered by the learned trial Judge
pointing out laches on the part of the appellant in performance of part of
Ex.A1 agreement for sale and it is also pointed out by the learned counsel
for the respondents in this appeal.
51. The suit was laid presenting the plaint before the Court of the
learned Principal Senior Civil Judge, Kakinada on 27.04.1994. There is no
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dispute as such that the balance sale consideration was deposited on
04.09.2002. P.W.1 has deposed in respect of it and corroborative support
is found in respect of this fact from the testimony of D.W.1. The learned
trial Judge has also referred to this fact in his judgment in para-12.
52. One of the contentions of the respondents is that after several
years of the institution of the suit, upon enjoying the suit land for many
years, depositing balance sale consideration almost at the fag-end of the
trial cannot point out that the appellant was eager to obtain sale deed in
terms of this contract for sale nor it is an instance of his ready and
willingness to perform his part of the contract.
53. It is also contended for the respondents that on account of the
terms set out in Ex.A1 agreement for sale the time shall be the essence of
contract and that, on account of continuous default of the appellant, he
did not meet the requirements of Section 16 of Specific Relief Act.
54. Sri E.V.V.S.Ravi Kumar, learned counsel for the appellant
seriously contradicted this contention referring to the material on record
and the conduct of the parties. It is further contended that there are clear
instances manifesting the conduct of the appellant being always ready
and willing to perform the essential terms of the contract under Ex.A1.
The learned counsel also pointed out in this context that in view of Ex.A2
transaction in relation to one of the terms of this contract, it is deemed
that the respondent waived this right of insistence to pay the balance sale
consideration. Thus, the learned counsel for the appellant contended that
the entire complexion of this contract stood changed and hence according
to the learned counsel for the appellant, Ex.A2 itself is an independent
contract.
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55. As rightly pointed out for the respondents it was never the
pleading nor the evidence of the appellant. In so far as this contract in
relation to item No.2 is concerned, Ex.A2 has a bearing. That part of
payment expected to be made on or before 31.12.1990 whereupon item
No.2 of the plaint schedule was accepted to be registered under a regular
sale deed in favour of the appellant by the respondents stood waived
upon the endorsement under Ex.A2.
56. Explanation-I to Section 16(c) of the Specific Relief Act states
that it is not essential for the plaintiff to actually tender to the defendant
or to deposit in Court any money except when so directed by the Court.
However, in this case the appellant himself had chosen to deposit the
balance sale consideration as stated above. It is an indicator of the
conduct of the appellant as such. Delay in making such deposit, cannot
bear any significance.
57. Further, it has to be noted that in case of immovable
properties, time is not the essence of contract usually. This question was
considered in Constitution Bench judgment of Hon'ble Supreme Court in
Chand Rani (Dead) by Lrs. Vs. Kamal Rani (Dead) by Lrs.2.
Considering the earlier rulings in Gomathinayagam Pillai and Ors. Vs.
Pallaniswami Nadar3, Hind Construction Contractors by its Sole
Proprietor Bhikamchand Mulchand Jain (Dead) by Lrs Vs. State
of Maharashtra4, and Indira Kaur and Ors. Vs. Sheo Lal Kapoor
.AIR 1993 SC 1742
. AIR 1967 SC 868
. AIR 1989 SC 1074
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Indira Kaur and Ors. vs. Sheo Lal Kapoor5, in para 24 of this ruling it
is stated thus:
" ....... in the case of sale of immovable property there is no presumption
as to time being the essence of the contract. Even if it is not of the
essence of the contract the Court may infer that it is to be performed in a
reasonable time if the conditions are:
1. from the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for example: the object of making
the contract."
58. This ruling is relied on by the learned counsel for the
respondents contending that the facts and circumstances in the present
case on hand are similar to the one considered by the Constitution bench
of Hon'ble Supreme Court.
59. The learned counsel for the appellant relied on Govind
Prasad Chaturvedi Vs. Hari Dutta Shastri and another6 wherein
Gomathi Nayagam Pillai was followed observing as under:
"It is settled law that the fixation of the period within which the contract
has to be performed does not make the stipulation as to time the essence
of the contract. When a contract relates to sale of Immovable property it
will normally be presumed that the time is not the essence of the
contract. Vide Gomathinayagam Pillai v. Palaniswami Nadar
[1967]1SCR227. It may also be mentioned that the language used in the
agreement is not such as to indicate in unmistakable terms that the time
is of the essence of the contract. The intention to treat time as the
essence of the contract may be evidenced by circumstances which are
sufficiently strong to displace the normal presumption that in a contract
of sale of land stipulation as to time is not the essence of the contract."
60. Another ruling relied on for the appellant in this context is
Madhukar Nivrutti Jagtap and others vs. Smt. Pramilabai
. AIR 1998 SC 1074
. 1977(2)SCC 539
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Chandulal Parandekar and others7. In this ruling, in para-41 it is
observed thus:
" 41. The question as to whether the Plaintiff seeking specific
performance has been ready and willing to perform his part of the
contract is required to be examined with reference to all the facts and the
surrounding factors of the given case. The requirement is not that the
Plaintiff should continuously approach the Defendant with payment or
make incessant requests for performance. For the relief of specific
performance, which is essentially a species of equity but has got statutory
recognition in terms of the Specific Relief Act, 1963, the Plaintiff must be
found standing with the contract and the Plaintiff's conduct should not be
carrying any such blameworthiness so as to be considered inequitable.
The requirement of readiness and willingness of the Plaintiff is not
theoretical in nature but is essentially a question of fact, which needs to
be determined with reference to the pleadings and evidence of parties as
also to all the material circumstances having bearing on the conduct of
parties, the Plaintiff in particular."
61. A conspectus of material on record in this case leads to infer
that there is no laches or lapse on the part of the appellant to abide by
the terms of Ex.A1 agreement for sale. As already stated, he pointed out
in Ex.A4 legal notice the conduct of the 1st respondent when he avoided
receiving balance sale consideration payable by 30.10.1990. The second
instalment of payment lead to rescind a part of the contract which was to
be performed by 31.12.1990 upon payment of Rs.40,500/-, in view of
Ex.A2 endorsement. An intervening circumstance relating to insistence of
title deeds for this land by the appellant, needs consideration and
admittedly the respondents 1 and 2 were not in a position to meet such
demand of the appellant. Even otherwise, probably on legal advice, the
appellant had deposited the balance sale consideration to the credit of the
suit. When these factors are considered in tandem, the inference so
drawn is appropriate.
62. However, several contentions are advanced on behalf of the
respondents to the effect that all these circumstances do not in any
. 2019 SCConline SC 1026= AIR2019SC4252
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manner make out that the appellant was always ready and willing to
perform his part of the contract as on the date of filing the suit and
chosen to institute the suit just at the end of the period of limitation. It is
also contended that depositing the balance sale consideration at a highly
belated stage militates against the requirements in terms of Section 16(c)
of the Specific Relief Act to disfavour the claim of the appellant.
63. The learned counsel for the respondents further contended
that the value of the suit land has increased many fold from the date of
Ex.A1 and this factor cannot altogether be ignored, more so when the trial
Court in its discretion has refused to grant the equitable relief of specific
performance. The learned counsel for the respondents also contended
that merely because there are certain circumstances to validate the
contract, it cannot automatically lead to grant relief sought by the
appellant either in terms of Section 16 or Section 20 of the Specific Relief
Act. The delay, it is contended for the respondents 1 and 2, reflected by
the conduct of the appellant in this respect to meet the performance of
this contract, as rightly observed by the learned trial Judge, should lead to
refusal of relief in this appeal also.
64. In this context, the learned counsel for the respondents relied
on K.S. Vidyanadam and Ors. Vs. Vairavan8. In the given facts and
circumstances, while referring to the observations of Constitution Bench of
Hon'ble Supreme Court in Chand Rani referred to above, with reference to
urban properties in India, their Lordships observed in para-10 as under:
"10. .......In other words, the court should look at all the relevant
circumstances including the time-limits specified in the agreement and
determine whether its discretion to grant specific performance should be
exercised. Now in the case of urban properties in India, it is well-known
. AIR 1997 SC 1751=1997(3) SCC 1
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that their prices have been going up sharply over the last few decades -
particularly after 1973*.
--------
We cannot be oblivious to the reality - and the reality is constant and
continuous rise in the values of urban properties - fuelled by larger-scale
migration of people from rural areas to urban centers and by inflation.
- - - - - - - -"
65. Further reliance is also placed by the learned counsel for the
respondents in Amarjeet Singh Vs. Respondent: Nandu Bai and
Ors.9 and C. Panduranga Rao vs. Syamala Rao and others10.
66. Another ruling relied on by the learned counsel for the
respondents in this context in Chunduru Padmavathi vs.
Ch.Narasimha Rao11 where, relying on Chand Rani as well as
K.S.Vaidyanadham referred to above apart from other rulings including
Amarjeet Singh and Satyanarayana v. Yelloji Rao12, this Court observed
in the given facts, that though the suit laid by the plaintiff was not barred
by limitation in terms of Article-54 of the Limitation Act, intention of the
parties in relation thereto should be gathered to hold that there is
intention to performance terms of the contract within a reasonable time or
not and if there was undue delay in filing the suit. Further observation in
this ruling is that escalation in prices shall also be taken into consideration
for agricultural lands, for this purpose.
67. Delivery of the suit land pursuant to this agreement under
Ex.A1 attracts Section 53-A of the Transfer of Property Act and whereby
the appellant is in its continuous possession and enjoyment legally. It is
. 1998(5) ALT 412 (DB)
. 1999(4) ALT 270
.. 2000(1) ALT 613
. AIR 1965 SC 1405
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not illegal and the respondents are bound to accept his legal possession of
this land. Right to remain in this land in terms of Section 53-A of the
Transfer of Property Act thus stood protected (vide Shrimant Shamrao
Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi
(Dead) by L.Rs., and others13)
68. However, Sri E.V.V.S.Ravi Kumar, the learned counsel for the
appellant relied on Bheemaneni Maha Lakshmi vs.Gangumalla
Apparao(since dead) by Legal Representatives14 repelling the
contentions of the learned counsel for the respondents contended that the
plea relating to escalation of prices and its impact was not raised in the
pleadings, which are brought on record only during trial. Thus, it is
contended by the learned counsel for the appellant that it cannot now be
permitted to be raised, in this appeal.
69. Apart from the objection raised by Sri E.V.V.S. Ravi Kumar,
learned counsel for the appellant, the reasons assigned supra pointing out
the preparedness of the appellant to perform and abide by the terms of
Ex.A1 agreement of sale vis-a-vis conduct of the respondents 1 and 2 bars
consideration of this plea of the respondents. When once they consciously
entered knowing full well about the impact and consequence of the
contract under Ex.A1, they cannot complain that the delay had lead to
unnecessarily enriching the appellant, who is in continuous possession of
this land and who is trying to grab away the suit land for a song.
70. The conduct of the appellant as such is not blameworthy vis-a-
vis Ex.A1 contract. The respondents 1 and 2 did play their role in not only
. (2002) 3 Supreme Court Cases 676
. 2019(6) SCC 233
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avoiding performance of this contract and to dilute its effect. Therefore,
on the material, it has to be held that the appellant proved being ready
and willing to perform his part of the contract at all material times by the
date of institution of the suit. Therefore, he is entitled for the relief of
specific performance thereunder in terms of Section 20 of the Specific
Relief Act,1963. The findings recorded by the learned trial Judge in this
context are not based on proper appreciation of evidence on record.
Therefore, the findings so recorded by the learned trial Judge requires
interference setting aside the same
71. Thus, this point is held in favour of the appellant and against
the respondents.
POINT No.3:
72. In view of findings on point No.2, since it is held that the
appellant is entitled for specific performance of the contract in terms of
Ex.A1 agreement for sale, relief of ejectment of the appellant from the
suit land sought by the respondents 1 and 2 is not permissible. Even
otherwise, as held in point No.2, possession of this land by the appellant
stood protected by Section 53-A of the Transfer of Property Act. It is
another ground on which the relief sought by the respondents 1 and 2 in
this context has to be denied. Therefore, the counter-claim raised by the
respondents 1 and 2 in the trial Court basing on the material on record
and on its re-appraisal should be rejected, setting aside the findings
recorded by the learned trial Judge in this respect.
73. Thus, this point is held in favour of the appellant and against
the respondents.
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POINT No.4:
74. In view of the findings on points 1 to 3, the appellant is
entitled for relief of specific performance of contract under Ex.A1
agreement for sale. The relief sought by the appellant in the suit has to be
granted and against the respondents.
POINT No.5
75. In view of the findings on all the above points, both the
appeals A.S.No.916 of 2003 and Tr.A.S.No.6 of 2018 have to be allowed
setting aside the judgment of the trial Court and granting reliefs sought by
the appellant in the suit with costs throughout.
76. C.R.P.No.4873 of 2006 is tagged on to these two appeals.
Order in question in this CRP is dated 15.09.2006 in O.S.No.97 of 2004 on
the file of the learned I Additional Senior Civil Judge, Kakinada in respect
of request of the respondents 1 and 2 to decide the additional issue as a
preliminary issue. This additional issue is with reference to application of
Order-2, Rule-2 CPC. It is predominantly based on outcome in O.S.No.98
of 1994. A.S.No.961 of 2003 is also the basis for this purpose since it is
preferred against the judgment and decree in O.S.No.98 of 1994. The
relief sought in that suit viz., O.S.No.97 of 2004 is for recovery of money
for use and occupation of the suit land and as damages. The trial Court
rejected such a request of the respondents 1 and 2 against which the CRP
is preferred.
77. In as much as the appeal now is allowed setting aside the
decree and judgment in O.S.No.98 of 1994 of the trial Court, the basis for
O.S.No.97 of 2004 on the file of the Court of the learned I Additional
Senior Civil Judge, Kakinada is no more existing or continuing. In view of
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it, neither there is any necessity to consider any issue as preliminary issue
nor need for the trial Court to consider the application of Order-2 Rule-2
CPC. In view of what is stated above, the CRP has to be disposed of
accordingly.
78. In the result, A.S.No.916 of 2003 and Tr.A.S.No.6 of 2018 are
allowed. Consequently, the decree and judgment of the Court of the
learned I Additional Senior Civil Judge, Kakinada in O.S.No.98 of 2004
dated 27.03.2003 are set aside.
(1) Resultantly, O.S.No.98 of 1994 is decreed directing the
respondents to execute a sale deed in terms of the suit
agreement for sale dated 14.10.1990 in favour of the appellant
(plaintiff) in respect of item No.1 of the plaint schedule
property within three (03) months from this day. In the event
of failure of respondents to do so, the appellant is at liberty to
approach the trial Court for execution of the sale deed taking
recourse to due process of law.
(2) The respondents are permitted to withdraw the balance sale
consideration deposited by the appellant to the credit of the
suit including interest, if any, accrued thereon, without
furnishing security.
(3) Permanent injunction is granted in favour of the appellant
(plaintiff) restraining the respondents (defendants) from
interfering with his peaceful possession and enjoyment of item
No.1 of the plaint schedule property.
(4) The counter claim of the respondents is dismissed.
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(5) CRP is disposed of confirming the order of the Court of the
learned Additional Senior Civil Judge, Kakinada dated
15.09.2006 in O.S.No.97 of 2004.
(6) The respondents (defendants) are directed to pay costs
throughout to the appellant (plaintiff) and shall bear their own
costs throughout.
As sequel thereto, pending miscellaneous petitions, if any, stand
closed. Interim Orders, if any, stand vacated.
________________________
JUSTICE M.VENKATA RAMANA
Dt:16.02.2021.
RR
MVR,J
AS No.916_2003,CRP No.4873/2006&TRAS No.6/2018
HON'BLE SRI JUSTICE M.VENKATA RAMANA
APPEAL SUIT No.916 of 2003, CIVIL REVISION PETITION
No.4873 of 2006 & Tr.A.S.No.6 of 2018 A.S.M.P.No. 3052 of 2017
in APPEAL SUIT No.916 of 2003
Dt:16.02.2021
RR
