Andhra Pradesh High Court - Amravati
Smt.S.Rahmath Bi And 11 Others vs Unnam Pullamma Died on 19 June, 2024
APHC010045362002
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
WEDNESDAY, THE NINETEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 177/2002
Between:
1. SMT.S.RAHMATH BI, W/O LATE S. MAHABOOB PEERAN
HOUSEWIFE R/O D.NO.41/11, KURNOOL TOWN, KURNOOL
2. S. NAZEER AHMED, S/O LATE S. MAHABOOB PEERAN R/O
D.NO.41/11, KURNOOL TOWN, KURNOOL
3. S. RAFIQ AHMED, S/O LATE S. MAHABOOB PEERAN R/O
D.NO.41/11, KURNOOL TOWN, KURNOOL
4. S. ZAKIR HUSSAIN, S/O LATE S. MAHABOOB PEERAN R/O
D.NO.41/11, KURNOOL TOWN, KURNOOL
5. S. MOHD. ILLIYAZ, S/O LATE S. MAHABOOB PEERAN R/O
D.NO.41/11, KURNOOL TOWN, KURNOOL
6. S. MUJABUR RAHIMAN, S/O LATE S. MAHABOOB PEERAN
R/O D.NO.41/11, KURNOOL TOWN, KURNOOL
7. S. MYMUNNISA BEGUM, D/O LATE S. MAHABOOB PEERAN
R/O D.NO.41/11, KURNOOL TOWN, KURNOOL
8. S.AKTHARUNNISA BEGUM, D/O LATE S. MAHABOOB PEERAN
HOUSEWIFE R/O D.NO.41/11, KURNOOL TOWN, KURNOOL
2 VGKRJ
AS.177 of 2002
9. S. GOHARUNNISA BEGUM, D/O LATE S. MAHABOOB PEERAN
HOUSEWIFE R/O D.NO.41/11, KURNOOL TOWN, KURNOOL
10. S. AZIMUNNISA BEGUM, D/O LATE S. MAHABOOB PEERAN
HOUSEWIFE R/O D.NO.41/11, KURNOOL TOWN, KURNOOL
11. S. BANO BI, D/O LATE S. MAHABOOB PEERAN HOUSEWIFE
R/O D.NO.41/11, KURNOOL TOWN, KURNOOL
12. S. FAZHADUNNISA BEGUM, D/O LATE S. MAHABOOB
PEERAN R/O D.NO.41/11, KURNOOL TOWN, KURNOOL
...APPELLANT(S)
AND
1. UNNAM PULLAMMA (DIED), W/O CHENNAIAH R/O D.NO.49/1-
70, MADDURNAGAR, KURNOL
2. UNNAMU VENKATA REDDY, S/O CHENNAIAH EMPLOYEE R/O
D.NO.49/1-70, MADDURNAGAR, KURNOL RESPONDENT NO.2
AS LEGAL REPRESENTATIVE OF DECEASED RESPONDENT
NO. 1 VIDE COURT ORDER DATED 10.01.2024 IN I.A.NO. 2 OF
2022 IN A.S.NO. 177 OF 2002
...RESPONDENT(S):
Counsel for the Appellant(S):
Sri SRINIVASA RAO BODDULURI
Counsel for the Respondent(S):
Sri P HEMACHANDRA
The Court made the following:
JUDGMENT:
-
This Appeal, under Section 96 of the Code of Civil Procedure [for
short 'the C.P.C.'], is filed by the Appellants/plaintiffs challenging the
3 VGKRJ
AS.177 of 2002
Decree and Judgment, dated 19.12.2001, in O.S. No.14 of 1998 passed
by the learned Additional Senior Civil Judge, Kurnool [for short 'the trial
Court']. The Respondents herein are the defendants in the said Suit.
2. The Plaintiffs filed the above said suit for specific performance of
the agreement of sale dated 29.03.1994 and also for grant of
compensation for Ac.0.50 cents of land which is part of the suit schedule
land.
3. Both the parties in the Appeal will be referred to as they are
arrayed before the trial Court.
4. The brief averments of the plaint, in O.S. No.14 of 1998, are as
under:
i) The first plaintiff is the wife of one late Shaik Mahaboob Peeran.
Plaintiffs 2 to 12 are the children of Mahaboob Peeran. The first
defendant is the mother of the second defendant. The first defendant got
another son by name Unnam Ramakrishna Reddy. On 29.03.1994 the
first defendant executed an agreement of sale in respect of the suit
schedule property in favour of late Mahaboob Peeran agreeing to sell the
same @ Rs.1,50,000/- per acre. The extent agreed to be sold is Ac.3.30
cents situated in two survey numbers. On the date of agreement of sale,
the first defendant received an advance of Rs.1,00,000/-. The balance of
4 VGKRJ
AS.177 of 2002
sale consideration was agreed to be paid within 6 months. Subsequently
on 10.04.1994 and on 19.05.1994 Ramakrishna Reddy, who is the elder
son of first defendant, received an amount of Rs.5,000/- each on behalf of
first defendant and the first defendant herself received an amount of
Rs.20,000/- on 11.05.1994. The said payments were endorsed on the
agreement of sale, altogether the first defendant has received an amount
of Rs.1,30,000/-. When the first defendant failed to execute sale deeds,
inspite of demands made by late Mahaboob Peeran, then Mahaboob
Peeran issued lawyer's notice on 16.09.1994 to the first defendant
demanding her to perform her part of contract.
ii) On enquiries, Mahaboob Peeran came to know that the correct
survey numbers are 135/2 and 136/2 and the actual extent available was
Ac.2.84 cents, but not Ac.3.30 cents. Late Mahaboob Peeran expressed
his willingness to perform his part of contract even after the land was
measured. The first defendant got issued a reply notice on 17.11.1994
admitting the agreement of sale but stating that she has gifted Ac.0.50
cents in survey No.135/2 on the Western side with specific boundaries to
second defendant on 14.06.1990 and the sale transaction was arranged
at the behest of her elder son Ramakrishna Reddy and the first defendant
expressed her willingness to execute sale deed with regard to the
remaining portion of the land at the price agreed to. Late Mahaboob
5 VGKRJ
AS.177 of 2002
Peeran was willing to forego Ac.0.50 cents of land. It was discovered that
actual survey numbers are 135/2 and 136/2 and the exact extent
contained in those survey numbers was not Ac.2.84 cents, but actually
Ac.2.34 cents was available. In these circumstances, the plaintiffs filed a
suit for specific performance of agreement of sale.
5. The defendants filed a written statement by denying the averments
mentioned in the plaint and further contended as under: -
i) The first defendant never intended to sell the suit schedule property
to anybody including late Mahaboob Peeran. There were no consultations
also. The agreement of sale is a concocted one, the first defendant did
not sign in the alleged agreement of sale dated 29.03.1994 and she did
not receive any amount as mentioned in the agreement of sale.
ii) The defendants filed additional written statement. After amending
the written statement, the first defendant took a plea which is contrary to
her pleadings in the written statement in the first instance. As per the
amended pleadings, prior to one week of Ex.A5, first defendant informed
that she was always ready and willing to receive balance of sale
consideration and execute the sale deed for actual extent of Ac.2.34
cents at the rate of Rs.1,50,000/- per acre, but Mahaboob Peeran refused
to accept the said offer and he wanted her to perform the whole part of
6 VGKRJ
AS.177 of 2002
the contract. Now it is very well clear that the first defendant is in capable
of performing her part of contract. During his life time, Mahaboob Peeran
not accepted the offer made by the first defendant, who was willing to
execute sale deed for Ac.2.34 cents at the agreed site. Now the price of
the land has been increased enormously, hence, the plaintiffs have come
forward to purchase the suit schedule land, therefore, the plaintiffs are not
entitled to the relief of specific performance of agreement of sale and the
suit is liable to be dismissed as the time was essence of contract.
6. After filing the amended written statement, the plaintiffs filed a
rejoinder contending that late Mahaboob Peeran was ready and willing to
purchase Ac.2.34 cents provided a way is shown to the said land from the
National High Way. As an easement of necessity, the plaintiffs are
entitled to claim a right of way to the Ac.0.50 cents of land owned by the
second defendant and the plaintiffs are entitled for the relief of specific
performance to obtain a sale deed for Ac.2.34 cents and in respect of
Ac.0.50 cents of land, the plaintiffs are entitled to compensation.
7. Based on the above pleadings, the trial Court framed the following
issues:
(i) Whether the suit agreement of sale dated 29.03.1994 is
true, valid and binding on the defendants?
7 VGKRJ
AS.177 of 2002
(ii) Whether the payment endorsements dated 10.04.1994,
11.05.1994 and 19.05.1994 are true?
(iii) Whether the plaintiffs are entitled for specific
performance of contract as prayed for?
(iv) Whether the plaintiffs are entitled for possession of suit
schedule property?
(v) To what relief?
8. During the course of trial in the trial Court, on behalf of the Plaintiffs,
PW1 was examined and Ex.A1 to Ex.A11 were marked. On behalf of the
Defendants DW1 and DW2 were examined and Ex.B1to Ex.B4 were
marked.
9. After completion of the trial and on hearing the arguments of both
sides, the trial Court dismissed the suit, but the trial Court granted relief of
refund of advance amount, vide its judgment dated 19.12.2001, against
which the present appeal is preferred by the appellants/plaintiffs in the
Suit questioning the Decree and Judgment passed by the trial Court.
10. Heard Sri Srinivasa Rao Bodduluri, learned counsel for
appellants/plaintiffs and Sri O.Manohar Reddy, learned senior counsel on
behalf of Sri P.Hema Chandra, learned counsel for respondents.
8 VGKRJ
AS.177 of 2002
11. The learned counsel for appellants would contend that the Court
below has committed a grave error in dismissing the main relief of
specific performance of agreement of sale and the direction given by the
Court below in refund of advance amount is contrary to law, since the
plaintiffs have never prayed for alternative relief of refund of advance
amount. He would further contend that the Court below has committed a
grave error in came to conclusion that the suit is barred by limitation. He
would further contend that the time is not an essence of contract, but the
trial Court came to wrong conclusion that the time is an essence of
contract. He would further contend that the trial Court came to wrong
conclusion and dismissed the main relief of specific performance of
agreement of sale and granted alternative relief of refund of advance
amount, even though the plaintiffs have not claimed the refund of
advance amount and the appeal may be allowed by setting aside the
finding given by the learned trial Judge and the suit may be decreed and
the relief of specific performance of agreement of sale may be granted.
12. Per contra, the learned senior counsel for the respondents would
contend that on appreciation of entire evidence on record, the trial Court
rightly came to conclusion that the plaintiffs are not entitled main relief of
specific performance of agreement of sale and the plaintiffs are entitled
9 VGKRJ
AS.177 of 2002
alternative relief of refund of advance amount and the appeal may be
dismissed.
13. Having regard to the pleadings in the Suit and the findings
recorded by the trial Court and in the light of rival contentions and
submissions made on either side before this court, the following points
would arise for determination:
I. Whether the suit is barred by limitation?
II. Whether the appellants/plaintiffs are entitled the main
relief of specific performance of agreement of sale
dated 29.03.1994?
III. Whether the trial Court is justified in dismissing the
main relief of specific performance of agreement of
sale and granting alternative relief of refund of
advance amount?
14. Point No.1:
Whether the suit is barred by limitation?
The case of the plaintiffs is that the first defendant is the mother of
the second defendant and the first defendant also got another son by
name Unnam Ramakrishna Reddy. The plaintiffs further pleaded that the
first plaintiff is wife of one Shaik Mahaboob Peeran and other plaintiffs are
the children of Mahaboob Peeran and on 29.03.1994 the first defendant
10 VGKRJ
AS.177 of 2002
executed an agreement of sale in respect of suit schedule property in
favour of late Mahaboob Peeran agreeing to sell the same at the rate of
Rs.1,50,000/- per acre and the extent agreed to be sold is Ac.3.30 cents
situated in two survey numbers. The plaintiffs further pleaded that the first
defendant received advance amount of Rs.1,00,000/- on the date of
agreement of sale and the balance of sale consideration was agreed to
be paid within 6 months. The plaintiffs further pleaded that subsequently
on 10.04.1994 Unnam Ramakrishna Reddy, the elder son of first
defendant received Rs.5,000/- on behalf of first defendant and on
11.05.1994 the first defendant herself received another amount of
Rs.20,000/- and on 19.05.1994 the said Ramakrishna Reddy received
another amount of Rs.5,000/- on behalf of first defendant. In total, Shaik
Mahaboob Peeran paid an amount of Rs.1,30,000/- to the defendants.
The plaintiffs further pleaded that despite of issuance of legal notice, the
defendants failed to come forward to discharge their part of the contract
and further by issuing a reply notice, the defendant No.1 pleaded that she
executed a registered gift deed in favour of second defendant for an
extent of Ac.0.50 cents long back i.e., 4 years prior to the date of Ex.A1.
The plaintiffs further pleaded that some of the extent of land was acquired
by the government under Land Acquisition Act prior to the gift deed itself
and the first defendant suppressed the said real facts and entered into an
11 VGKRJ
AS.177 of 2002
agreement with Shaik Mahaboob Peeran for total extent of Ac.3.30 cents,
later the Shaik Mahaboob Peeran died and that the plaintiffs being legal
representatives of Shaik Mahaboob Peeran filed the present suit.
15. The suit is based on Ex.A1 agreement of sale said to have been
executed by first defendant. The recitals of Ex.A1 are:
"The first defendant agreed to sell Ac.3.30 cents in survey
Nos.136 and 135 of Mamidalapadu village to one late
Mahaboob Peeran on 29.03.1994 and the agreed price is
Rs.1,50,000/- per acre and on the date of agreement Shaik
Mahaboob Peeran paid Rs.1,00,000/- and the remaining
balance of sale consideration has to be paid within 6 months,
otherwise, the advance amount will be forfeited".
The above recitals goes to show that on the date of Ex.A1
agreement of sale Shaik Mahaboob Peeran paid Rs.1,00,000/- as
advance sale consideration to the first defendant. The above recitals of
Ex.A1 go to show that within 6 months from the date of Ex.A1 i.e., on or
before 29.09.1994 Mahaboob Peeran has to pay the remaining balance
sale consideration. Furthermore, Ex.A1 goes to show that on 10.04.1994
and on 19.05.1994 the elder son of first defendant i.e., Ramakrishna
Reddy received an amount of Rs.5,000/- each, respectively, on behalf of
first defendant which is not at all disputed by the first defendant in Ex.A7
reply notice. The agreement of sale goes to show that on 11.05.1994 the
12 VGKRJ
AS.177 of 2002
first defendant herself received another Rs.20,000/-. The above payment
endorsement goes to show that within 40 days the defendant No.1
received total Rs.30,000/- under Ex.A2 to Ex.A4 towards part payments.
Ex.A5 goes to show that on 16.09.1994 within 6 months from the date of
Ex.A1, Mahaboob Peeran issued a legal notice to the first defendant.
Ex.A5 recitals goes to show that Shaik Mahaboob Peeran is ready and
willing to pay the balance sale consideration and ready to obtain a
registered sale deed and on verification of actual extent of measurements,
he demanded the first defendant to execute a registered sale deed by
receiving the balance amount on or before 29th of September 1994.
Ex.A6 goes to show that on 28.09.1994 the first defendant received the
legal notice. In Ex.A5 it was specifically pleaded by Shaik Mahaboob
Peeran that the time is not an essence of contract. After receipt of legal
notice, after a lapse of more than 2 ½ months, the first defendant issued
Ex.A7 reply notice. In Ex.A7 reply notice, the first defendant admitted the
execution of Ex.A1 agreement of sale and also receipt of part payments
under Ex.A2 to Ex.A4. In Ex.A7 reply notice, which is a belated reply by
the first defendant, after a lapse of more than 2 ½ months from the date
of receipt of Ex.A5, it was specifically pleaded that she gifted away the
Ac.0.50 cents of land in survey No.135/2 on the Western side with
specific boundaries to her second son Unnam Venkata Reddy i.e.,
13 VGKRJ
AS.177 of 2002
second defendant herein and put him in possession of the gifted land and
the gift is evidenced by registered gift deed dated 14.06.1990 and that
she has no title with regard to the said Ac.0.50 cents of land.
16. Ex.A7 recitals go to show that the first defendant suppressed about
the execution of gift deed for Ac.0.50 cents in favour of second defendant
and executed Ex.A1 for total extent of Ac.3.30 cents including Ac.0.50
cents of gifted property, therefore, the conduct of first defendant is highly
suspicious from the date of contract itself. Furthermore, it is not in dispute
by both sides that some of the land was acquired by the government
away back prior to the Ex.A1 agreement itself that was suppressed by the
first defendant and the same was noticed by the plaintiffs subsequent to
the receipt of Ex.A7 reply notice. Ex.A8 goes to show that another notice
is issued by Mahaboob Peeran to the first defendant informing with a
request to execute a sale deed for total extent because the second
defendant is none other than the son of first defendant and both are
residing together and the Mahaboob Peeran pleaded that he will take
necessary steps for prosecuting the first defendant because she
fraudulently committed a mistake by suppressing the execution of gift
deed and also acquisition of some of the extent of land by the
government under Land Acquisition Act. In response to Ex.A8, the first
defendant issued Ex.A9 reply notice dated nil along with plan, in Ex.A9
14 VGKRJ
AS.177 of 2002
reply notice it was demanded the Mahaboob Peeran to obtain a regular
registered sale deed within 10 days of receipt of Ex.A9 notice. The date is
not at all mentioned in Ex.A9 notice, but there was a specific reference in
Ex.A9 that in response to the Ex.A8 notice issued by the plaintiffs dated
05.12.1994, Ex.A9 reply notice was issued, it means that it was issued
subsequent to 05.12.1994. No doubt in Ex.A9 reply notice which is said to
have been issued in the month of December 1994, the first defendant
demanded the plaintiffs to obtain a regular registered sale deed within 10
days of receipt of the said notice.
17. The recitals of Ex.A1 go to show that the first defendant executed
Ex.A1 agreement of sale on 29.03.1994 and agreed to sell Ac.3.30 cents
in survey No.135 and 136 of Mamidalapadu village and agreed to sell for
Rs.1,50,000/- per acre and she received an amount of Rs.1,00,000/- as
advance and the time limit fixed for specific performance of contract is 6
months i.e., within 28.09.1994. As stated supra, within 40 days, Shaik
Mahaboob Peeran paid Rs.30,000/- under Ex.A2 to Ex.A4 part payment
endorsements and the said Shaik Mahaboob Peeran got issued a legal
notice on 16.09.1994 under Ex.A5 within 6 months from the date of Ex.A1
contract i.e., before a stipulated date dated 28.09.1994 with a demand to
execute a regular registered sale deed and he is ready to pay the
remaining balance sale consideration and he demanded the first
15 VGKRJ
AS.177 of 2002
defendant to measure the land. Ex.A6 goes to show that the said legal
notice was received by the first defendant within 6 months' time stipulated
in Ex.A1. Ex.A7 reply notice is issued to Ex.A5 notice which is said to
have been given after 2 ½ months from the date of receipt of Ex.A5 legal
notice. In the said Ex.A7 reply notice, it was specifically mentioned by the
first defendant that she is unable to execute a sale deed for total extent of
Ac.3.30 cents mentioned in Ex.A1 agreement of sale. It was further
recited in Ex.A7 that 4 years prior to Ex.A1 i.e., 14.06.1990, she executed
a gift deed in favour of second defendant for an extent of Ac.0.50 cents of
land and that she is unable to execute a regular registered sale deed for
the total extent mentioned in Ex.A1 agreement of sale. For the aforesaid
reasons it is clear that on 17.11.1994 by issuing a reply notice under
Ex.A7 the first defendant set up a new case instead of executing a
registered sale deed by stating that she executed a gift settlement deed
for an extent of Ac.0.50 cents in favour of her son i.e., second defendant,
4 years prior to Ex.A1 agreement of sale and she further replied that she
is not having any title for the said Ac.0.50 cents of land and she is unable
to execute a sale deed for total extent of Ac.3.30 cents, which terms are
not there in Ex.A1, therefore, dated 17.11.1994 i.e., the date of issuance
of reply notice by the first defendant has to be treated as denial in respect
of extent of property is concerned. These terms are against the terms of
16 VGKRJ
AS.177 of 2002
Ex.A1 contract. The conduct of the party i.e., first defendant clearly goes
to show on knowing fully well that she executed a registered gift
settlement deed 4 years prior to Ex.A1 agreement of sale, she executed
Ex.A1 for total extent of Ac.3.30 cents, furthermore, she is a signatory
and even prior to the said gift deed, the government acquired Ac.0.46
cents of land under Land Acquisition Act, that was also suppressed at the
time of execution of Ex.A1 agreement of sale by the first defendant,
therefore, from the date of contract i.e., from the beginning itself, the total
malafidies are with the first defendant, such a party is not entitled to an
equities.
18. As stated supra, dated 17.11.1994 has to be treated as a denial.
The decree passed by the trial Court goes to show that the suit is filed by
the plaintiffs on 13.11.1997 i.e., within 3 years from the date of denial i.e.,
from 17.11.1994. As per Article 54 of Schedule to the Act, the time limit
for fixing specific performance of contract of sale is 3 years from the date
fixed for the performance or if no such date is fixed when the plaintiff has
noticed that performance is refused. Here, originally 6 months' time is
fixed in Ex.A1 agreement of sale and within 6 months of Ex.A1
agreement of sale the Shaik Mahaboob Peera paid Rs.30,000/- towards
part payments under Ex.A2 to Ex.A4 and the said Mahaboob Peeran also
issued a legal notice within six months from the date of Ex.A1 with a
17 VGKRJ
AS.177 of 2002
request that he is ready with balance sale consideration and to execute a
sale deed and within stipulated time the first defendant received the said
notice and in the said notice Shaik Mahaboob Peeran specifically pleaded
that time is not an essence of contract. Furthermore, after a lapse of 2 ½
months from the date of receipt of legal notice, the first defendant issued
a reply notice to Ex.A5 by expressing her inability to execute a sale deed
for total extent of Ex.A1 agreement of sale. In Ex.A7 it was not specifically
pleaded by the first defendant that the time is essence of contract. As
stated supra, Shaik Mahaboob Peeran pleaded in Ex.A5 notice that the
time is not an essence of contract, the same is not denied by the first
defendant in reply notice dated 17.11.1994. Here, the plaintiffs noticed
the first time for refusal of terms of Ex.A1 agreement of sale by way of
reply notice issued by the first defendant dated 17.11.1994, the suit is
filed on 13.11.1997 i.e., within 3 years from the date of refusal of terms of
Ex.A1 agreement of sale i.e., 17.11.1994. Therefore, the suit is filed
within the period of limitation.
19. The learned counsel for respondents placed a reliance in Sabbir
(dead) through L.Rs vs. Anjuman (dead) through L.Rs 1 . In that
decision it was held as follows:
2023 SCC online SC 1292
18 VGKRJ
AS.177 of 2002
The limitation for filing a suit for specific performance, as per
Article 54 of the Schedule to The Limitation Act, 1963 is 3 years
'from the date fixed for performance or if no such date is fixed,
when the plaintiff has notice that the performance is refused.'
In Ghewarchand v. Mahendra Singh, (2018) 10 SCC 588, it was
observed that when deciding upon the question of limitation, it
is mainly required to see the plaint allegations and how the
plaintiff has pleaded the accrual of cause of action for filing of
the suit. Apropos limitation, this Court observed,
in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81 as
under:
'12. It is a settled legal proposition that law of
limitation may harshly affect a particular party but it has
to be applied with all its rigour when the statute so
prescribes. The court has no power to extend the period
of limitation on equitable grounds. "A result flowing from
a statutory provision is never an evil. A court has no
power to ignore that provision to relieve what it
considers a distress resulting from its operation." The
statutory provision may cause hardship or
inconvenience to a particular party but the court has no
choice but to enforce it giving full effect to the same. The
legal maxim dura lex sed lex which means "the law is
hard but it is the law", stands attracted in such a
situation. It has consistently been held that,
"inconvenience is not" a decisive factor to be considered
while interpreting a statute.
19 VGKRJ
AS.177 of 2002
13. The statute of limitation is founded on public policy, its
aim being to secure peace in the community, to suppress
fraud and perjury, to quicken diligence and to prevent
oppression. It seeks to bury all acts of the past which have not
been agitated unexplainably and have from lapse of time
become stale. According to Halsbury's Laws of England, Vol.
28, p. 266:
"605. Policy of the Limitation Acts.-- The courts
have expressed at least three differing reasons
supporting the existence of statutes of limitations
namely, (1) that long dormant claims have more of
cruelty than justice in them, (2) that a defendant might
have lost the evidence to disprove a stale claim, and
(3) that persons with good causes of actions should
pursue them with reasonable diligence."
An unlimited limitation would lead to a sense of insecurity
and uncertainty, and therefore, limitation prevents disturbance
or deprivation of what may have been acquired in equity and
justice by long enjoyment or what may have been lost by a
party's own inaction, negligence or laches.
20. The learned counsel for respondents placed another reliance in
Raman (dead) by legal representatives vs. R.Natarajan 2 . In that
decision the Apex Court held as follows:
2(2022) 10 SCC 143
20 VGKRJ
AS.177 of 2002
But as a matter of fact, the limitation for filing a suit for
specific performance, in terms of Article 54 of the Schedule to
the Limitation Act, 1963 is three years, "from the date fixed for
the performance or if no such date is fixed, when the plaintiff
has notice that the performance is refused".
21. As per article 54 of the schedule to the Act, the time limit fixed for
specific performance of contract is 3 years and the time from which
period begins to run is the date fixed for the performance or if no such
date is fixed when the plaintiff has noticed that performance is refused.
As stated supra in the case on hand, the date of refusal of terms of the
Ex.A1 contract by the first defendant is 17.11.1994 which date is reply
notice said to have been issued by the first defendant. Within 6 months
time Shaik Mahaboob Peeran issued Ex.A5 legal notice, the same is
received by the defendant No.1, after a lapse of more than two months
the first defendant issued a reply notice under Ex.A7 by denying
execution of registered sale deed for total extent of Ex.A1 agreement.
22. In the case of Ahmadsahab Abdul Mulla (2) (dead) vs. Bibijan
and others3, the Apex Court held as follows:
The inevitable conclusion is that the expression "date fixed for the
performance" is a crystallised notion. This is clear from the fact that
the second part "time from which period begins to run" refers to a
2009(5) SCC 462
21 VGKRJ
AS.177 of 2002
case where no such date is fixed. To put it differently, when date is
fixed it means that there is a definite date fixed for doing a particular
act. Even in the second part the stress is on "when the plaintiff has
notice that performance is refused". Here again, there is a definite
point of time, when the plaintiff notices the refusal. In that sense both
the parts refer to definite dates. So, there is no question of finding out
an intention from other circumstances.
23. The learned counsel for appellants placed a reliance in Madina
Begum and another vs. Shiv Murti Prasad Pandey and others4, in that
decision, the Apex Court held as follows:
In Ahmadsahab Abdul Mulla (2) v. Bibijan and others, the
following question was considered by a three-Judge Bench of
this Court : "whether the use of the expression "date" used in
Article 54 of the Schedule to the Limitation Act, 1963 (in short
"the Act") is suggestive of a specific date in the calendar?"
While answering this question on a reference made to the
three-Judge Bench, this Court considered the meaning of the
word "date" and "fixed" appearing in Article 54. Upon such
consideration, this Court held that the expression "date fixed for
the performance" is a crystallised notion. When a date is fixed it
means there is a definite date fixed for doing a particular act.
Therefore, there is no question of finding out the intention from
other circumstances. It was reiterated that the expression "date"
is definitely suggestive of a specified date in the calendar.
4AIR 2016 SC 3554
22 VGKRJ
AS.177 of 2002
Paras 11 and 12 of the Report in this regard are of importance
and they read as follows:
"The inevitable conclusion is that the expression "date
fixed for the performance" is a crystallised notion. This is
clear from the fact that the second part "time from which
period begins to run" refers to a case where no such date
is fixed. To put it differently, when date is fixed it means
that there is a definite date fixed for doing a particular act.
Even in the second part the stress is on "when the
plaintiff has notice that performance is refused". Here
again, there is a definite point of time, when the plaintiff
notices the refusal. In that sense both the parts refer to
definite dates. So, there is no question of finding out an
intention from other circumstances.
Whether the date was fixed or not the plaintiff had notice
that performance is refused and the date thereof are to
be established with reference to materials and evidence
to be brought on record. The expression "date" used in
Article 54 of the Schedule to the Act definitely is
suggestive of a specified date in the calendar. We answer
the reference accordingly. The matter shall now be
placed before the Division Bench for deciding the issue
on merits."
In the case on hand, the decree passed by the trail Court goes to
show that the suit is filed on 13.11.1997 and the same was returned and
represented on 09.03.1998. The decree of the trial Court goes to show
23 VGKRJ
AS.177 of 2002
that the suit is filed on 13.11.1997 within 3 years from the date of Ex.A7
reply notice dated 17.11.1994 on which date the first defendant refused to
execute a sale deed for total extent mentioned in Ex.A1 agreement of
sale and first defendant expressed her inability to perform her part of
contract of Ex.A1 agreement of sale. Therefore, the limitation to file the
suit within 3 years from the date of refusal starts from 17.11.1994
onwards. As stated supra, the suit is filed before the trial Court on
13.11.1997, therefore the suit is filed within the period of limitation,
accordingly, the point No.1 is answered in favour of the appellants.
24. Point No.2:
Whether the appellants/plaintiffs are entitled the main
relief of specific performance of agreement of sale
dated 29.03.1994?
The suit is based on Ex.A1 agreement of sale said to have been
executed by the first defendant. The plaintiffs herein claimed the relief of
specific performance of agreement of sale dated 29.03.1994, alternative
relief of refund of advance amount is not sought by the plaintiffs. It is quite
surprise that the trial Court came to conclusion that the suit is not filed
within a period of limitation and the suit is barred by law of limitation, but
the trial Court granted alternative relief of refund of advance amount,
24 VGKRJ
AS.177 of 2002
which shall not be granted in such a case the suit is barred by limitation.
In fact, though the plaintiffs have not sought the relief of refund of
advance amount, the trial Court granted alternative relief of refund of
advance amount which is against Section 22(2) of Specific Relief Act
1963 and which is also unknown to law.
25. The legal position in this regard is no more res-integra, the law is
well settled that, grant of decree of specific performance of agreement of
sale is not an automatic and it is a discretionary relief, the same is
required to be exercised judiciously sound and reasonably.
26. Ex.A1 is a crucial document based on which the suit is filed, in the
written statement itself the execution of Ex.A1 agreement of sale by first
defendant and receipt of advance amount of Rs.1,00,000/- on the date of
Ex.A1 agreement and receipt of Rs.30,000/- towards part payments
under Ex.A2 to Ex.A4 were denied by the first defendant, no doubt, time
of 6 months is fixed to perform the part of the contract in Ex.A1
agreement of sale. As stated supra, within a 40 days from the date of
Ex.A1 agreement of sale, Shaik Mahaboob Peeran paid an amount of
Rs.30,000/- under Ex.A2 to Ex.A4 part payment endorsements
respectively and within a stipulated time of 6 months, Shaik Mahaboob
Peeran issued a legal notice with a request to execute a regular
25 VGKRJ
AS.177 of 2002
registered sale deed and he is ready to pay the balance sale
consideration. The first defendant also received the said legal notice
within a 6 months stipulated time. It was specifically mentioned in Ex.A5
legal notice by Shaik Mahaboob Peeran that time is not an essence of
contract even otherwise he is ready with money. In Ex.A7 reply notice the
first defendant did not deny the same and did not plead that the time is
essence of contract. In Ex.A7 reply notice dated 17.11.1994 it was
admitted by the first defendant about the execution of agreement of sale
and receipt of advance sale consideration and receipt of amounts under
Ex.A2 to Ex.A4 part payment endorsements, contrary to the contents of
reply notice dated 17.11.1994, the first defendant mentioned in her
written statement by denying the Ex.A1 agreement of sale and also
receipt of advance amount and also part payment endorsements.
Subsequently on filing a petition vide I.A.No.473 of 2000 dated
29.12.2000 written statement was amended and additional written
statement was also filed, later, after amending the written statement, the
first defendant took a plea which is contrary to what she pleaded in the
written statement at first instance. As per the amended pleadings, prior to
one week of Ex.A5, the first defendant informed that she is always ready
and willing to perform the part of the contract and in the amended written
statement she admitted the execution of agreement of sale and also
26 VGKRJ
AS.177 of 2002
receipt of part payment endorsements, therefore, it is clear from the
beginning of Ex.A1 agreement of sale itself, the attitude of the first
defendant is different and changed her stand several times. The conduct
of parties has to be taken into consideration from the beginning in the suit
proceedings itself, the first defendant suppressed the real facts and
approached the Court with unclean hands by mentioning the false
averments by filing a written statement in the Court. The material on
record reveals that the first defendant suppressed the fact that the actual
survey numbers are 135/2 and 136/2 and not survey Nos.135 and 136
and she also suppressed the fact of Ac.0.23 cents of land and Ac.0.23
cents of land in survey No.135/2 and 136/2 were acquired by the
government for the purpose of laying a road by the National High Way
Authorities of India and the first defendant also suppressed the fact that
on 14.06.1990 she gifted Ac.0.50 cents of land in Survey No.135/2 in
favour of her son i.e., second defendant. Furthermore, the conduct of the
parties is utmost importance in the civil suit in this type of specific
performance of agreement of sale. The first defendant not only
suppressed the crucial facts prior to Ex.A1 agreement of sale but even in
the Court proceedings also she changed her stand from one stage to
another stage, as stated supra, in the written statement original pleadings
the first defendant denied the execution of Ex.A1 agreement of sale and
27 VGKRJ
AS.177 of 2002
also receipt of advance sale consideration, later the said written
statement was got amended by admitting the execution of Ex.A1
agreement of sale.
27. In the case of Shenbagam and others vs. K.K.Rathinavel5, the
Apex Court held as follows:
"True enough, generally speaking, time is not an essence of
contract for the sale of immovable property. In deciding whether
to grant the remedy of specific performance, specifically in suits
relating to sale of immovable property, the Courts must be
cognizant of the conduct of the parties, the escalation of the
prices of the suit property, and whether one party will unfairly
benefit from the decree. The remedy provided must not cause
injustice to a party, specifically when they are not at fault".
As stated supra, from the date of contract itself, the first defendant
changed her version from one stage to another stage and she
suppressed the real facts and executed agreement of sale for more
extent even though she is not having any title in the said property. Even
though, she pleaded that her elder son Ramakrishna Reddy is behind
back of the Ex.A1 transaction, it is not the case of the first defendant that
she is having enmity with her elder son Unnam Ramakrishna Reddy, to
that extent, no evidence is adduced by the first defendant. In the case on
2022 SCC online SC 71
28 VGKRJ
AS.177 of 2002
hand, the conduct of the first defendant has to be taken into consideration.
As stated supra, the first defendant has changed her version from one
stage to another stage and has taken a contrary to Ex.A7 reply notice
with a plea that she denied about the execution of agreement of sale and
she denied about the receipt of advance amount, but subsequently, she
got amended the written statement, undoubtedly due to attitude of the
first defendant i.e., the husband of the first plaintiff and father of other
plaintiffs suffered a lot and went into the extent of filing a criminal case
against the first defendant and her family members under Section 420 of
Indian Penal Code, later, he died on 20.08.1997 by leaving the plaintiffs
as legal representatives of the deceased Shaik Mahaboob Peeran. After
the death of Shaik Mahaboob Peeran, the plaintiffs herein being the legal
representatives of Shaik Mahaboob Peeran got filed the present suit.
28. The learned counsel for respondents would contend that after
receipt of Ex.A9 which is a reply notice to notice dated 05.12.1994, the
plaintiffs have not taken any steps to obtain a sale deed. The material on
record reveals that after receipt of Ex.A9 notice, Shaik Mahaboob Peeran
lodged a complaint in Crime No.333 of 1995 on 27.09.1995 and ultimately
the said case was acquitted and later Shaik Mahaboob Peeran died on
20.08.1997 by leaving the plaintiffs as his legal representatives.
29 VGKRJ
AS.177 of 2002
29. It was contended by the learned counsel for respondents that after
receipt of Ex.A9 Shaik Mahaboob Peeran kept quite without obtaining the
regular registered sale deed, further he initiated a criminal complaint
before the concerned police. As stated supra, though the specific time
limit is fixed for performance of the contract in Ex.A1, subsequently it was
extended by first defendant herself. As stated supra, within 6 months of
stipulated time, Shaik Mahaboob Peeran himself issued a legal notice by
expressing his intention to obtain the registered sale deed after paying
balance sale consideration, but the first defendant did not come forward.
It is also relevant to say that the first defendant suppressed the real fact
about the acquisition of land of Ac.0.23 cents in survey No.135/2 and
Ac.0.23 cents in survey No.136/2 by the government for the purpose of
laying a road by the National High Way Authority of Indian, and first
defendant also suppressed the fact that 4 years prior to Ex.A1, she gifted
Ac.0.50 cents of property in survey No.135/2 to her son i.e., second
defendant herein. Admittedly on the date of Ex.A1 itself, the first
defendant, with a fraudulent view, did not disclose the gift deed said to
have been executed by her in favour of her son i.e., second defendant on
14.06.1990 i.e., 4 years prior to Ex.A1 agreement of sale and so also
some part of the land was acquired by the government under Land
Acquisition Act and by suppressing the same, she entered into an Ex.A1
30 VGKRJ
AS.177 of 2002
agreement of sale. The plaintiffs approached the Court within a period of
limitation and prayed the trial Court to grant the main relief of Specific
Performance of agreement of sale dated 29.03.1994, the trial Court
refused to grant the main relief and granted alternative relief of refund of
advance amount which is not originally sought by the plaintiffs. Aggrieved
the said decree and judgment passed by the trial Court, the plaintiffs filed
an appeal before this Court and prosecuting the said appeal. The
intention of the appellants as on today also to obtain a regular registered
sale deed from the defendant No.1 for the available extent of land on
ground i.e., Ac.2.34 cents and the plaint is also amended and the plaint
schedule is also amended, the first defendant admitted in her evidence in
cross examination that she gave instructions to prepare reply notice and
written statement. As stated supra, from the beginning itself i.e., from the
date of contract itself, the malafidies are with the first defendant, such a
party is not entitled equities. Moreover, the plaintiffs fairly approached the
Court for seeking relief of specific performance of agreement of sale,
since trial Court negatived the main relief of specific performance of
agreement of sale, the plaintiffs filed an appeal, the aforesaid
circumstances clearly go to show that as on today also the intention of
the appellants/plaintiffs is to obtain a regular registered sale deed but not
for refund of advance money as ordered by the trial Court.
31 VGKRJ
AS.177 of 2002
30. The learned counsel for respondents would contend that PW1
admitted in cross examination that they are not agreeable for taking
Ac.2.84 cents excluding Ac.0.50 cents shown in the plan enclosed to
Ex.A9 as it will not access to the National High Way and that the main
relief cannot be granted. The law is well settled that for arriving
conclusion of testimony of witness, the entire deposition of the witness
has to be taken into consideration, in the said deposition itself PW1
clearly admits that he is ready and willing to pay the balance sale
consideration for the extent of land available on ground, but the first
defendant is not came forward to execute a regular registered sale deed
in view of the increase of market value of the prices. In cross examination
PW1 also admits that they are ready to take Ac.2.34 cents of land which
is available on the ground from the first defendant. He further admits that
after the exact location of Ac.0.50 cents is identified by surveyor, they are
ready to take the sale deed for Ac.2.34 cents. The testimony of PW1
clearly goes to show that the plaintiffs are ready and willing to pay the
balance sale consideration for the extent of available land of Ac.2.34
cents. Furthermore, the plaint schedule and boundaries were amended
by the plaintiffs, now the extent of plaint schedule is Ac.2.34 cents and
specific boundaries and relief prayer is also amended in the plaint and
additional written statement is also filed by the first defendant. As per the
32 VGKRJ
AS.177 of 2002
admissions of both the parties the first defendant is the owner of the
amended schedule property of Ac.2.34 cents.
31. The first defendant i.e., DW1 admitted in her evidence in cross
examination itself that Shaik Mahaboob Peeran demanded sale deed for
Ac.2.84 cents which included Ac.0.50 cents of land gifted by her to
second defendant and she expressed her inability in executing the sale
deed for Ac.2.84 cents and she did not fix any time limit for execution of
the sale deed and she furnished the particulars of Ac.0.50 cents of land
gifted by her to the second defendant. Therefore, it clearly goes to show
that the time is not an essence of contract. She further admits that they
agreed to sell the suit land @ Rs.1,50,000/- per acre. She further admits
that she herself gave instructions to her counsel when the reply notice
was issued and she gave instructions to her counsel at the time of
drafting of written statement. The execution of Ex.A1 agreement of sale
and recitals in Ex.A1 agreement of sale is not at all disputed by the first
defendant.
32. The leaned counsel for respondents placed a reliance in J.Samuel
and others vs. Gattu Mahesh and others6, in that decision, the Apex
held as follows:
6(2012) 2 SCC 300
33 VGKRJ
AS.177 of 2002
"16. Personal bars to relief.--Specific performance of a
contract cannot be enforced in favour of a person--
(a)-(b)
(c) who fails to aver and prove that he has performed or
has always been ready and willing to perform the essential
terms of the contract which are to be performed by him, other
than terms the performance of which has been prevented or
waived by the defendant.
Explanation.--For the purposes of clause (c),--
(i) where a contract involves the payment of money, 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;
(ii) the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true
construction."
In the case on hand, the first defendant has taken defense in the
written statement that she did not execute Ex.A1 agreement of sale and
she did not receive advance sale consideration, which is contrary to the
plea taken by her in the reply notice, again subsequently she amended
the written statement itself and she has taken a new plea in the reply
notice that she gifted away Ac.0.50 cents of land prior to Ex.A1
agreement of sale and an extent of Ac.0.46 cents of land was acquired by
the government a way back prior to Ex.A1 agreement of sale. All the
aforesaid events were suppressed by the first defendant and entered into
34 VGKRJ
AS.177 of 2002
an agreement of sale for total extent of Ac.3.30 cents even though she is
not having any title for more extent of land and subsequently the plaint
was amended and the first defendant filed additional written statement.
Therefore, the facts and circumstances in the cited decision are different
to the instant case.
33. The learned counsel for respondents placed another reliance in
Shenbagam and others vs. K.K.Rathinavel7, in that decision it was held
as follows:
Section 16 of the Specific Relief Act provides certain bars to the relief
of specific performance. These include, inter alia, a person who fails
to aver and prove that he has performed or has always been 'ready
and willing' to perform the essential terms of the contract which are to
be performed by him, other than terms the performance of which has
been prevented and waived by the defendant. In JP Builders v. A
Ramadas Rao, a two-judge Bench of this Court observed that
Section 16(c) mandates 'readiness and willingness' of the plaintiff
and is a condition precedent to obtain the relief of specific
performance. The Court held:
"Section 16(c) of the Specific Relief Act, 1963
mandates "readiness and willingness" on the part of the
plaintiff and it is a condition precedent for obtaining relief of
grant of specific performance. It is also clear that in a
suit for specific performance, the plaintiff must allege
and prove a continuous "readiness and willingness"
2022 Livelaw SC 74
35 VGKRJ
AS.177 of 2002
to perform the contract on his part from the date of the
contract. The onus is on the plaintiff.
It is settled law that even in the absence of specific plea by the
opposite party, it is the mandate of the statute that the
plaintiff has to comply with Section 16(c) of the Specific
Relief Act and when there is non-compliance with this
statutory mandate, the court is not bound to grant specific
performance and is left with no other alternative but to
dismiss the suit. It is also clear that readiness to perform
must be established throughout the relevant points of time.
"Readiness and willingness" to perform the part of the contract
has to be determined/ascertained from the conduct of the
parties."
The Court further observed that 'readiness' refers to the
financial capacity and 'willingness' refers to the conduct of the
plaintiff wanting the performance.
In the case on hand from the beginning itself i.e., from the date of
contract itself, the total malafidies are with the first defendant and the first
defendant suppressed the real facts i.e., execution of gift settlement deed
in favour of second defendant for an extent of Ac.0.50 cents and Ac.0.46
cents land was acquired by the government a way back prior to Ex.A1
agreement of sale and executed Ex.A1 agreement of sale for total extent
including the gifted property and land acquired by the government.
36 VGKRJ
AS.177 of 2002
Therefore, the conduct of the first defendant is highly suspicious and she
is not entitled for equities.
34. The learned counsel for respondents placed another reliance in
Saradamani Kandappan vs. S.Rajalakshmi and others 8 , in that
decision it was held as follows:
The question whether time is the essence of the contract, with
reference to the performance of a contract, what generally may arise
for consideration either with reference to the contract as a whole or
with reference to a particular term or condition of the contract which
is breached. In a contract relating to sale of immovable property if
time is specified for payment of the sale price but not in regard to the
execution of the sale deed, time will become the essence only with
reference to payment of sale price but not in regard to execution of
the sale deed. Normally in regard to contracts relating to sale of
immovable properties, time is not considered to be the essence of
the contract unless such an intention can be gathered either from the
express terms of the contract or impliedly from the intention of the
parties as expressed by the terms of the contract.
35. The learned counsel for respondents placed another reliance of
this Court in Chunduru Padmavathi vs. Chunduru Narasimha Rao9. In
the case on hand, the time is not an essence of contract though 6 months'
time is fixed in Ex.A1, subsequently time is extended by the first
2011 (12) SCC 18
2000(2) ALD 106
37 VGKRJ
AS.177 of 2002
defendant herself. The first defendant i.e., DW1 admits that she did not
fix any time limit for execution of sale deed when she furnished the
particulars of Ac.0.50 cents of land gifted by her to second defendant i.e.,
in Ex.A7 reply notice. Furthermore Ex.A5 legal notice was issued by the
Shaik Mahaboob Peeran by expressing his readiness and willingness to
perform contract within 6 months period of time, after a lapse of 2 ½
months beyond 6 months the first defendant issued a reply notice by
taking a new plea and refused to execute a regular registered sale deed
for total extent.
36. The learned counsel for respondents placed another reliance in
Surjit Kaur vs. Naurata Singh and another 10.In the instant case, as
stated supra, the first defendant suppressed about the execution of gift
deed in favour of second defendant and also some of the land acquired
by the government and entered into an agreement of sale with Shaik
Mahaboob Peeran and subsequently the plaint schedule was amended
and therefore, the facts and circumstances in the cited decision are
different to the instant case.
37. The learned counsel for respondents placed another reliance in
Shanker Singh vs. Narinder Singh and others11. In the case on hand,
102000(7) SCC 379
2014 (16) SCC 662
38 VGKRJ
AS.177 of 2002
the appellants claimed compensation for Ac.0.50 cents of land. Here in
the case on hand the first defendant executed a gift deed a way back
prior to Ex.A1 for Ac.0.50 cents of land in favour of second defendant.
The second defendant is not a party to the agreement. The suit is based
on Ex.A1 agreement of sale. Therefore, the plaintiffs are not entitled
compensation for the said Ac.0.50 cents of land. At best, they are entitled
to get sale deed for the extent of land available on ground in which the
first defendant is having title.
38. As stated supra, the suit is filed within a period of limitation. The
material on record reveals that the first defendant by suppressing the real
things i.e., by suppressing the execution of gift settlement deed for
Ac.0.50 cents in favour of her son second defendant and by suppressing
Ac.0.46 cents of land acquired by the government under Land Acquisition
Act, the first defendant entered into an agreement of sale for Ac.3.30
cents of land with Shaik Mahaboob Peeran under Ex.A1, even though
she is not having title for Ac.3.30 cents. Furthermore, she is a signatory
and she is not an illiterate. Even though a time limit is fixed for 6 months
to perform the part of the contract, Shaik Mahaboob Peeran expressed
his readiness and willingness within 6 months period of time and he also
issued a legal notice within a stipulated of 6 months, even though the first
defendant received the said notice within a stipulated period of 6 months
39 VGKRJ
AS.177 of 2002
but she issued a reply notice after a lapse of 2 ½ months' time from the
date of receipt of notice by taking a new defense that she executed a gift
settlement deed for Ac.0.50 cents of land. The material on record reveals
that the first defendant changed her version from one stage to another
stage and in these type of cases the conduct of the parties has to be
taken into consideration, undoubtedly the malafides are on the part of the
first defendant from the beginning itself, in such a case, she is not entitled
the equities. The plaintiffs got amended the plaint for Ac.2.34 cents since
the first defendant agreed to sell that extent only and after filing of the suit
having defeated before the trial Court, the appellants filed an appeal
before this Court praying the relief of specific performance of agreement
of sale. In the plaint, the plaintiffs specifically pleaded that they are ready
and willing to pay the remaining balance sale consideration for the extent
of land available on the ground i.e., Ac.2.34 cents i.e., amended plaint
schedule. As stated supra, from the date of contract, total malafides are
with the first defendant, such a party is not entitled to any equities. Since
the second defendant is not a party to the agreement and the first
defendant in the case on hand died and her son second defendant who is
on record also came on record as a legal representative of the first
defendant by virtue of the registered will dated 23.09.2009 executed by
the first defendant, therefore, the plaintiffs are entitled the main relief of
40 VGKRJ
AS.177 of 2002
specific performance of agreement of sale dated 29.03.1994 against the
second defendant for amended plaint schedule property of Ac.2.34 cents,
accordingly, the point No.2 is answered.
39. Point No.3:
Whether the trial Court is justified in dismissing the
main relief of specific performance of agreement of
sale and granting alternative relief of refund of
advance amount?
In view of my findings on point Nos.1 and 2, the trial Court
committed a grave error in dismissing the main relief of specific
performance of agreement of sale and granting the alternative relief of
refund of advance amount, therefore, the said finding of trial Court is
liable to be set aside, but the appellants are not entitled compensation for
the extent of Ac.0.50 cents, which was gifted by the first defendant in
favour of second defendant, therefore, the plaintiffs/ appellants are
entitled the main relief of specific performance of agreement of sale dated
29.03.1994 against the second defendant for amended plaint schedule
property in an extent of Ac.2.34 cents, the plaintiffs are directed to pay
the balance sale consideration in respect of amended plaint schedule
property of Ac.2.34 cents within 2 months from the date of this judgment,
if the second defendant failed to receive the same, the plaintiffs are at
liberty to deposit the same before the trial Court. The second defendant is
41 VGKRJ
AS.177 of 2002
directed to execute a regular registered sale deed for amended plaint
schedule property of an extent of Ac.2.34 cents by providing easement of
necessity to the plaintiffs within one month from the date of receipt of
balance of sale consideration or from the date of deposit of balance of
sale consideration before the trial Court by the plaintiffs as case may be,
failing which the appellants/plaintiffs are at liberty to take necessary steps
as per law. With these observations, the appeal is partly allowed.
40. In the result, this appeal is partly allowed. Considering the
circumstances of the case, I order that each party do bear their own costs
in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal
shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date: 19.06.2024
sj
42 VGKRJ
AS.177 of 2002
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.177 OF 2002
Date: 19.06.2024
sj
