Andhra Pradesh High Court - Amravati

Sanam Venkaiah, vs Panala Venugopala Krishna ... on 18 August, 2022

          HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                 SECOND APPEAL No.331 of 2022

JUDGMENT:-

        Unsuccessful plaintiff filed the above second appeal

against the judgment and decree, dated 02.05.2022 passed in

A.S.No.111 of 2016 on the file of learned XII Additional District

Judge, Guntur, confirming the judgment and decree, dated

20.01.2016 passed in O.S.No.438 of 2007 on the file of learned I

Additional Senior Civil Judge, Guntur.


2.      The parties to the appeal shall be referred to as they are

arrayed in O.S.No.438 of 2007.


3.      Plaintiffs filed O.S.No.438 of 2007 against the defendants

for specific performance of contract of sale, dated 27.03.1979, in

respect of the suit schedule property, directing defendant Nos.5

and 6 to execute and register regular sale deed in favour of the

plaintiffs and defendant Nos.3 and 4 and consequential relief for

cancellation of sale deed bearing No.11621 of 2003, dated

08.12.2003 executed by defendant No.1 in favour of defendant

No.2.


4.      The averments in the plaint, in brief, are that Plaintiffs 1

to 3 and defendant Nos.2 to 4 are sons and plaintiffs 4 and 5

are daughters of late Venkateswarlu; that originally defendant

No.1 purchased the suit schedule property and some other

property under sale deed, dated 10.09.1943 from one M. Rajya

Lakshmi; that defendant No.1 sold away part of the property to
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the father of the plaintiffs under a registered sale deed bearing

No.3570/57, dated 02.08.1957; that later defendant No.1

offered to sell plaint schedule property and the father of the

plaintiffs agreed to purchase the same; that defendant No.1 after

receiving entire sale consideration of Rs.700/- from the father of

the plaintiffs, executed possessory agreement of sale, dated

27.03.1979; since the date of execution of said agreement,

father of the plaintiffs has been in possession and enjoyment

until his death in the year 1982 and after his death, plaintiffs

have been in possession and enjoyment of the plaint schedule

property; that plaintiffs' mother also died in the year, 1983; that

plaintiffs demanded defendant No.1 to execute registered sale

deed, but defendant No.1 has been postponing the same on one

pretext or the other; that defendant No.2 is trying to disturb

plaintiffs' possession and hence, plaintiffs reported the matter to

the S.I. of Police, Nagarapalem, Guntur; that Police called

defendant No.2 and later referred the matter to Legal Cell

Authority, Guntur, for the purpose of settlement; that District

Legal Cell Authority issued notices to the plaintiffs as well as

defendant No.2 on 01.03.2007; that defendant No.2 produced

title deed, dated 18.03.2003 and on verification plaintiffs came

to know that defendant No.2 obtained sale deed in respect of the

plaint schedule property from defendant No.1; that as per

recitals of sale agreement, dated 27.03.1979, total extent of the

property is 125 square yards, but in the sale deed, dated

08.12.2003, it was recited that the plaint schedule property is
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200 square yards; that sale deed obtained by defendant No.2 is

null and void and does not bind on the plaintiffs; that plaintiffs

got issued legal notice, dated 17.02.2007 to defendant Nos.1

and 2; that defendant No.2 got issued reply notice with false

averments; that again plaintiffs got issued another notice to

defendant Nos.1 and 2 demanding to execute registered sale

deed in their favour; that defendant No.2 having received the

same kept quiet and the notice of defendant No.1 returned with

endorsement 'left without instructions'; that plaintiffs filed

private complaint against defendant Nos.1 and 2; that learned

Magistrate of First Class, Special Mobile Court, Guntur, referred

the matter to Nagarapalem L & O Police Station, Guntur, and

the same was registered as crime No.100 of 2007 for the

offences punishable under Sections 420, 464 and 506 of IPC;

that as a counter blast defendant No.2 to the complaint filed

false suit for injunction being O.S.No.645 of 2007 against

plaintiff Nos.1 to 3; that defendant No.1 failed to execute

registered sale deed and that plaintiffs were constrained to file

suit for specific performance of contract of sale, dated

27.03.1979 and also for cancellation of sale deed, dated

08.12.2003 executed by defendant No.1 in favour of defendant

No.2. Defendant Nos.3 and 4 were shown as proforma

defendants since they are not cooperating with the plaintiffs.

Hence, the suit.
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5.   Defendant No.1 filed separate written statement. Pending

the suit, defendant No.1 died and legal representatives of

defendant No.1 are impleaded as defendant Nos.5 and 6.


6.   Separate   written   statement   was   filed   on   behalf   of

defendant No.2. No written statement was filed on behalf of

defendant No.3 and 4 and defendant Nos.5 and 6 remained

exparte.


7.   In the written statement filed by defendant No.1, it was

contended inter alia that defendant No.1 is absolute owner of

the plaint schedule property and its adjacent property in

D.No.(patta No.)1053 to an extent of Ac.3-06 cents; that part of

the land was divided into plots and few plots were sold to

various persons under registered sale deeds and the rest of the

land is in possession and enjoyment of defendant No.1 including

the plaint schedule property till possession was delivered to

defendant No.2; that defendant No.1 sold one plot to the

plaintiffs' father under registered sale deed, dated 02.08.1957

and delivered possession to him; that except said plot, father of

the plaintiffs did not purchase any property from him; that

agreement, dated 27.03.1979 is forged one and brought into

existence; that defendant No.1 offered to sell plaint schedule

property and other property and defendant No.2 agreed to

purchase the plaint schedule property at Rs.50,000/-; that

immediately defendant No.1 applied for permission stating the

purpose for alienating the same; that Deputy Inspector of
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Survey, ULC, Guntur, measured the property; that after

obtaining permission from ULC authorities, defendant No.1 sold

the same to defendant No.2 and executed registered sale deed,

dated 09.12.2003 and delivered possession; that defendant No.2

has been in possession and enjoyment of the plaint schedule

property; that plaint schedule property is not correct and the

boundaries and extent mentioned in the plaint are incorrect;

that defendant No.1 is not residing in the address shown in the

cause title of the plaint since two years; that plaintiff

approached the Court with unclean hands suppressing the

facts. Thus, prayed for dismissal of the suit.


8.    Defendant No.2 filed separate written statement and

contended inter alia that contract of sale, dated 27.03.1979 is

not supported by consideration and it is an invalid and forged

one; that suit is barred by limitation; that defendant No.2 is the

bonafide purchaser for valuable consideration; that the plaint

schedule property is not correct; that the extent of plaint

schedule property is not 125 square yards but 200 square

yards; that before execution of sale deed in favour of defendant

No.2; that defendant No.1 applied for permission from ULC

authorities, Guntur; that Deputy Inspector of Survey, ULC,

Guntur, measured the plaint schedule property and confirmed

the extent as 200 square yards; that plaintiffs are not entitled to

discretionary relief of specific performance and they have no

locus standi to seek cancellation of sale deed; that plaintiffs and
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defendant Nos.2 to 4 are brothers and they are living separately;

that in view of the threats of the plaintiff Nos.1 to 3, defendant

No.2 filed O.S.No.645 of 2007 on the file of learned II Additional

Junior Civil Judge, Guntur and the Court was pleased to grant

interim injunction and the same was transferred to learned

Principal District Court and it was renumbered as O.S.370 of

2008.


9.      Defendant Nos.3 and 4 filed common written statement,

with similar averments as that of the plaintiffs' plea.


10.     Basing on the pleadings of the parties, trial Court framed

the following issues:


     1.

Whether plaintiffs are entitled for specific performance of

contract of sale, dated 27.03.1979, as prayed for?

2. Whether plaintiffs are entitled to seek cancellation of sale

deed, dated 08.12.2003?

3. To what relief?

11. On behalf of the plaintiffs, plaintiff No.3 got examined

himself as PW1 and got examined PWs2 to 6. The evidence of

PW6 was eschewed. Exs.A1 to A21 were marked. On behalf of

the defendants, defendant No.2 was examined as DW1 and got

examined DWs2 to 6. The evidence of DW5 was eschewed.

Exs.B1 to B6 were marked. Ex.X1 is certified copy of Advocate

Commissioner's Report.

12. The trial Court by judgment and decree, dated

20.01.2016, dismissed the suit. Against the said judgment of

dismissal, plaintiffs filed A.S.No.111 of 2016 on the file of

learned XII Additional District Judge, Guntur. The lower

appellate Court dismissed the appeal vide judgment and decree,

dated 02.05.2022, against which the above second appeal is

filed.

13. Heard Sri K. Nanda Kishore, learned counsel for the

appellants/plaintiffs.

14. Learned counsel for the appellants would contend that the

Courts below did not consider the evidence in proper perspective

and the Courts below proceeded on surmises and conjectures

and dismissed the suit. He contends that the lower appellate

Court ought not to have dismissed the appeal on the ground of

wrong valuation.

15. Learned counsel for the appellants raised the following

substantial questions of law for consideration:

1. Whether the judgments of Courts below are vitiated in

rejecting the claim of the plaintiffs?

2. Whether plaintiffs can seek cancellation of sale deed,

dated 08.12.2003 without asking for declaration of title?

16. Before proceeding further since the appeal is filed under

Section 100 of Code of Civil Procedure, this Court must see

whether any substantial questions of law involved in the appeal.

It is apt look at the scope of Section 100 CPC.

17. In Yadavarao Dajiba Shrawane vs. Nanilal Harakchand

Shah (Dead) and Ors.1 the Hon'ble Supreme Court held as

under:

"18. From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final Court of fact is based on mis-interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades the records are voluminous. The High Court as it appears from the judgment has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance."

18. In Hero Vinoth Vs. Seshammal2, held thus:

2002 (6) SCC 404

AIR 2009 SC 1481

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do

justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

19. In the light of the expressions of the Hon'ble Apex Court

on the scope of interference of the High Court in second appeal,

this Court while exercising jurisdiction under Section 100 of the

CPC must confine to the substantial question of law involved in

the appeal. This Court cannot re-appreciate the evidence and

interfere with the findings of the Court below where the Courts

below have exercised the discretion judicially. Further the

existence of substantial question of law is the sine qua non for

exercising jurisdiction. This Court cannot substantiate its own

opinion unless the findings of the Court are manifestly perverse

and contrary to the evidence on record.

20. In the present case, admitted facts going by the pleadings

are that plaintiff Nos.1 to 3 and defendant Nos.2 to 4 are sons

and plaintiff Nos.4 and 5 are daughters of Venkateswarlu.

Admittedly plaint schedule property belongs to Venkateshwarlu.

He purchased the same under registered sale deed, dated

10.09.1943 from one M. Rajya Lakshmi. It is also admitted fact

that there was exchange of notice between the parties

subsequent to Ex.A9. Defendant No.1 executed sale deed in

favour of defendant No.2 qua the property covered by Ex.A1.

Defendant No.1 in fact sold some other property to the father of

the plaintiffs under registered sale deed, dated 02.08.1957

under Ex.A13.

21. The plaintiffs asserted that defendant No.1 offered to sell

the plaint schedule property and their father agreed to purchase

the same for a consideration of Rs.700/- and hence, the

possessory agreement of sale was entered into under Ex.A1.

They also asserted that the possession of property was delivered

on the same day of execution of Ex.A1.

22. Defendant No.2 claimed that he purchased the property

under Ex.A9, registered sale deed. A perusal of the written

statement filed by defendant Nos. 3 and 4 shows that they are

sailing with the plaintiffs.

23. Defendant No.1 filed written statement and contended

that Ex.A1 is forged one. Defendant No.1 specifically contended

that after the sale deed, dated 02.08.1957, he did not alienate

any property to the father of the plaintiffs. In fact defendant

No.1 also contended that he sold property under Ex.A9 to

defendant No.2 and delivered possession of the property to

defendant No.2.

24. Plaintiffs having filed suit for specific performance basing

on Ex.A1, have to prove genuineness of Ex.A1 and also their

possession over suit schedule property. As per evidence of PW1,

he came to know that scribe of Ex.A1 was no more and that he

does not know whether attestors are alive or not. As per the

evidence of PW2, he does not know whether scribe of Ex.A1 was

alive or not. PW5 was examined for the purpose of identifying

signature of his father being first attestor of Ex.A1. However, he

firmly deposed that he does not know the pattern of signature of

his father. However, he deposed that the signature of attestor on

Ex.A1 belongs to his father.

25. A careful perusal of the plaint does not indicate that the

plaintiffs are ready and willing to perform their part of the

contract. There is no pleading regarding readiness and

willingness on the part of the petitioners. The relief of specific

performance being equitable relief plaintiffs must come to the

Court with clean hands. The person claiming equitable relief

must be clean, fair and trustworthy.

26. Ex.A1 was sent to Printing Press, Nasik to know the year

of printing of stamp paper. The report sent by official of the

Printing Press, Nasik, shows that the stamp appearing on

Ex.A1, for the first time was printed in the year, 1981 and

despatched in the year, 1982. In view of the above report, it is

beyond imagination to believe that defendant No.1 executed

Ex.A1 on 27.03.1979 on which date stamp itself was not

printed. Apart from that Ex.A1 is of the year, 1979 and the suit

was filed in 2007. These incidents make the things more than

discernable that Ex.A1 is concocted and fabricated agreement

brought into existence.

27. Ex.A9 is registered document and hence, the contention of

the plaintiffs that they came to know about Ex.A9 for the first

time, when it was produced before District Legal Services

Authority also falls to ground. Registration of document is

knowledge to the world.

28. In Zarina Siddiqui v. A. Ramalingam Alias

R. Amarnathan3 it was held as under:

"34. In the instant case, as noticed above, although defendant no.2 held a registered power of attorney on behalf of defendant No.1 to sell and dispose of the property, but the defendants not only made a false statement on affidavit that the power of attorney had authorized the second defendant only to look after and manage the property but also withheld the said power of attorney from the Court in order to misguide the Court

2015 (1) SCC 705

from truth of the facts. Further, by registered agreement the defendants agreed to sell the suit premises after receiving advance consideration but they denied the existence of the agreement in their pleading. Such conduct of the defendants in our opinion, disentitle them to ask the Court for exercising discretion in their favour by refusing to grant a decree for specific performance. Further, if a party to a lis does not disclose all material facts truly and fairly but states them in distorted manner and mislead the Court, the Court has inherent power to exercise its discretionary jurisdiction in order to prevent abuse of the process of law."

29. Relief of specific performance being equitable Courts must

exercise judicious discretion either to grant or not to grant relief

and the same depends upon the conduct of the parties. The

necessary ingredients must be proved and established by the

plaintiff so that discretion shall be exercised judiciously in

favour of the plaintiff.

30. Registration of document is notice to whole of the world

under Section 3 of the T.P. Act. When Ex.B2 is registered sale

deed, dated 08.12.2003, plaintiffs did not challenge the same for

a period of more than three years. Courts below recorded

categorical findings with regard to the conduct of the plaintiff

qua Ex.A1. The concurrent finding of the Courts below is based