Andhra Pradesh High Court - Amravati
Kakarla Venkataratnam Died vs Guntur Venkata Narasaiah Died on 19 October, 2024
1
APHC010165602010
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
SATURDAY, THE NINETEENTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY
TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
SECOND APPEAL NO: 79/2010
Between:
Kakarla Venkataratnam (died) and Others ...APPELLANT(S)
AND
Guntur Venkata Narasaiah Died and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. P SAI SURYA TEJA
Counsel for the Respondent(S):
1. A RAJENDRA BABU
2. T V V KOTESWARA RAO
The Court made the following JUDGMENT:
1. This Second Appeal has been filed by the Appellant / 4th Respondent /
4th Defendant against the Decree and Judgment dated 15.12.2009,
15.12.2009 in
A.S.No.310 of 2008 on the file of District Judge, Guntur (for short, 'the 1st
Appellate Court') reversing the decree and Judgment dated 2
22.0
.09.2008, in
O.S.No.282 of 2005 on the file of V Additional Senior Civil Judge, Guntur (for
short, 'the trial Court').
2. The Respondentss 1 to 4 / Appellants are the Plaintiffs, who filed the suit
in O.S.No.282 of 2005 seeking specific performance of a contract of sale
dated 05.05.1985 directing all the Defendants to execute a sale deed
regarding schedule property and deliver possession of the same to the
Plaintiff; in case of default, the Court may please to execute a regular sale
deed on their behalf and also for compensation of Rs.62,000/-. The
Respondents 5 to 7 / Respondents 1 to 3 are the Defendants 1 to 3 in the said
suit.
3. Referring to the parties as they are initially arrayed in the suit in
O.S.No.282 of 2005 is expedient to mitigate any potential confusion and better
comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the
contentious issues between the parties inter se, may be delineated as follows:
The suit schedule property was initially owned by Y.Punnarao. The
1st Defendant is his spouse, while Defendants 2 and 3 are his son
and daughter, respectively. The 1st Plaintiff purchased the suit
schedule property from the 1st Defendant's husband in 05.05.1985
under a contract of sale for Rs.40,000/-, with possession duly
transferred and an assurance from Y.Punnarao to execute a
registered sale deed at the Plaintiff's request. The 4th Defendant's
father, K. Venkata Subbaiah, is the 1st Plaintiff's sister's son. The 1st
Plaintiff married Venkata Subbaiah's elder sister. Due to their close
relationship, the 1st Plaintiff entrusted the schedule property to the
4th Defendant's father, who resided in Guntur. The 1st Plaintiff
believed his brother-in-law was managing the schedule property,
which was vacant. Despite the 1st Plaintiff's readiness to obtain the
registered sale deed, the Defendants postponed the process. The 1 st
Plaintiff, unaware of malfeasance, remained patient, believing he
only needed the sale deed to fulfil his contractual obligations.
Recently, the 1st Plaintiff received a Court notice regarding a suit
filed by K.Venkataratnam, claiming title to the property. Upon
enquiry, the 1st Plaintiff came to know that Y.Punnarao had died
nearly six years prior, a fact concealed by the 4th Defendant's father.
It appears that the 4th Defendant and his father colluded to execute a
fraudulent sale deed for Rs.1,98,000/- on 10.01.2000 to undermine
the 1st Plaintiff's rights.
Consequently, the 1st Plaintiff has initiated the present suit.
During the pendency of the suit, 1st Plaintiff passed away on
08.06.2007. Following his demise, Plaintiffs 2 to 4, as his legal heirs,
are entitled to pursue the suit and seek a registered sale deed for
the suit schedule property.
5. Defendant No.4 has filed a written statement, refuting the plaint
averments that the 1st Plaintiff validly purchased the suit schedule property
from late Y.Punnarao on 05.05.1985 for Rs.40,000/- and took possession
thereof. 4th Defendant contends that 1st Plaintiff did not entrust the property to
his father and refutes any claims regarding the receipt of full sale
consideration or promises made by Y.Punnarao. The 4 th Defendant asserts
that he purchased the schedule property from Defendants 1 and 3 on
10.01.2000, for Rs.1,98,000/-, having initially paid Rs.40,000/- as an advance.
Following Y.Punnarao's demise, his wife and daughter received the balance of
sale consideration. They executed a sale deed in favour of him on 10.01.2000
vide document no.31/2000 and delivered possession of the schedule property.
Thus, the 4th Defendant claims absolute ownership and states that he has
leased the suit schedule property to Sri Sai Bar and Restaurant for the
monthly rent of Rs.2,000/-. He asserts that Plaintiff is not entitled to specific
performance due to his prolonged inaction, which renders the suit barred by
limitation. The filing of the suit regarding the possession of the schedule
property suggests the Plaintiffs were never in possession, making the suit
misconceived and un-maintainable, warranting dismissal in limini.
6. Based on the above pleadings, the trial Court has framed the following
issues:
(i) Whether the Plaintiff is entitled to the specific performance
of contract as prayed for?
(ii) To what relief?
7. During the trial, P.Ws.1 to 3 were examined and marked Exs.A.1 to A.5
on behalf of the Plaintiffs. Conversely, on behalf of the Defendants, D.W.1
was examined and marked Ex.B.1.
8. After the conclusion of the trial and considering the arguments
presented by both parties, the trial Court, in O.S.No.282 of 2005, decreed the
suit partly with proportionate costs by directing the Defendants 1 to 3 to pay
Rs.40,000/- to the Plaintiffs charging interest at 12% per annum on the
principal amount from 05.05.1985 till its realization. However, the trial Court
dismissed the suit against the 4th Defendant.
9. Aggrieved by the same, the Plaintiffs filed an Appeal in A.S.No.310 of
2008 on file of the 1st Appellate Court. The 1st Appellate Court, being the final
fact-finding Court, framed the following points for consideration:
i. Whether the Plaintiff is entitled to specific performance of suit
agreement of sale, dated 05.05.1985?
ii. Whether the Plaintiff is entitled for possession of suit property
from the Defendants?
iii. Whether the findings of the trial Court are sustainable in law and
on facts?
10. The 1st Appellate Court, after scrutinizing oral and documentary
evidence adduced on behalf of both sides, rendered its judgment on
15.12.2009, thereby allowing the Appeal, so far as it relates to the refusal of
main relief of specific performance of agreement of sale, dated 05.05.1985 is
concerned. Consequently, the suit in O.S.No.282 of 2005 is decreed with
costs throughout, granting the main relief of specific performance. The
Defendants were ordered to execute a registered sale deed in favour of the
Plaintiffs 2 to 4 for the plaint schedule property on or before 31.01.2010 and to
ensure their possession of the property, including the removal of any existing
structures. Should they fail to comply, the Plaintiffs are entitled to obtain a sale
deed and possession of the property through the process of law. Assailing the
same, the 4th Respondent / 4th Defendant preferred the present Second
Appeal.
11. I heard Sri P. Sai Surya Teja, learned Counsel representing the
Appellant / 4th Respondent / 4th Defendant and Sri A. Rajendra Babu, learned
Counsel for the Respondents 2 to 4 / Appellants / Plaintiffs.
12. The learned counsel for the Appellant / 4 th Defendants contends that the
1st Appellate Court erroneously concluded that the Appellant / 4 th Defendant
was not a bona fide purchaser of the suit schedule property. The 1st Appellate
Court improperly placed the burden of proof on the 4th Defendant in this
Second Appeal. Furthermore, it gravely erred in asserting that the plaint
schedule property had been in the possession of the Plaintiff until 2006, a
claim that contradicts the evidence presented. The 1 st Appellate Court
overlooked the fact that the Plaintiff's claim was barred by limitation. Ex.A.1
demonstrates that the possession of the property remained with the 4 th
Defendant's father throughout, indicating that the Plaintiff had approached the
Court with unclean hands by asserting possession of the suit schedule
property. The 1st Appellate Court's judgment contradicts the provisions of
sections 10 and 20 of the specific relief act. Moreover, the 1st Plaintiff should
have approached the Court in a timely manner, even assuming the validity of
the sale agreement dated 05.05.1985. Thus, the Plaintiffs were not entitled to
the relief in the Appeal suit. The 1st Appellate Court also erred in determining
that the registered sale deed in favour of the 4th Defendant was merely
nominal, created to defeat the Plaintiffs' claim. It failed to consider the
principles of equity, the Plaintiffs' conduct, and the availability of alternate
relief, concluding that the Court had not judiciously exercised its discretion.
13. Under the Order dated 21.07.2022, Appellants No.2 to 4 have been
impleaded as the Legal Representatives of the deceased sole Appellant, vide
I.A.No.1 of 2022.
14. Based on the Appellants' contentions, the following substantial
questions of law are involved in this Second Appeal:
i. Setting up a wrong plea of possession as was done in the
present case disentitles the Plaintiff to relief of specific
performance as per the ratio laid down in AIR 1971 AP 275.
ii. The Court has to infer as to the time frame under which the
contract has to be performed, notwithstanding the act that
time is not the essence of the contract having regard to the
contract terms, the nature of the property and the
surrounding circumstances of the contract.
15. Before delving into the matter, since the Appeal is filed under Sec.100
CPC, this Court must see the scope of Section 100 of C.P.C.
16. Considerations in Section 100 of C.P.C., arise only when there is a
substantial question of law and not mere such questions of law or one based
on facts. However, it has to be borne in mind that in case of misapplication of
law and improper appreciation of evidence on record, particularly the
documentary evidence, it is the bounden duty of the High Court sitting in
Second Appeal to consider such questions which are substantial in nature in
terms of law.
17. Learned counsel for the Respondents relied on the decision in
Mallanaguoda v. Ninganagouda1, wherein the Hon'ble Supreme Court held
that:
10. The first appellate court is the final court on facts. It has been repeatedly
held by this Court that the judgment of the first appellate court should not be
interfered with by the High Court in the exercise of its jurisdiction under
Section 100CPC unless there is a substantial question of law. The High
Court committed an error in setting aside the judgment of the first appellate
(2021) 16 SCC 367
court and finding fault with the final decree by taking a different view on
factual findings recorded by the first appellate court.
18. Learned counsel for the Respondents relied on the decision in K.N.
Nagarajappa v. H. Narasimha Reddy2, the Hon'ble Supreme Court held that:
14. Undoubtedly, the jurisdiction which a High Court derives under Section
100 is based upon its framing of a substantial question of law. As a matter
of law, it is axiomatic that the findings of the first appellate court are final.
However, the rule that sans a substantial question of law, the High Courts
cannot interfere with the findings of the lower court or concurrent findings of
fact is subject to two important caveats. The first is that if the findings of fact
are palpably perverse or outrage the conscience of the court, in other
words, it flies in the face of logic that given the facts on the record,
interference would be justified. The other is where the findings of fact may
call for examination and be upset, in the limited circumstances spelt out in
Section 103CPC.
15. Section 103CPC reads as follows:
"103. Power of High Court to determine issues of fact.--In any second
appeal, the High Court may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the Appeal--
(a) which has not been determined by the lower appellate court or both by
the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of
a decision on such question of law as is referred to in Section 100."
16. In the judgment in Municipal Committee, Hoshiarpur v. Punjab SEB
[Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216 :
(2010) 4 SCC (Civ) 861], this Court held as follows : (SCC pp. 228-29,
paras 26-28)
"26. Thus, it is evident that Section 103CPC is not an exception to Section
100CPC, nor is it meant to supplant it; rather, it is to serve the same
purpose. Even while pressing Section 103CPC in service, the High Court
has to record a finding that it had to exercise such power because it found
that finding(s) of fact recorded by the court(s) below stood vitiated because
of perversity. More so, such power can be exercised only in exceptional
circumstances and with circumspection, where the core question involved in
the case has not been decided by the court(s) below.
27. There is no prohibition on entertaining a second appeal, even on a
question of fact, provided the court is satisfied that the findings of fact
recorded by the courts below stood vitiated by non-consideration of relevant
evidence or by showing an erroneous approach to the matter, i.e. that the
findings of fact are found to be perverse. However, the High Court cannot
(2021) 18 SCC 263
interfere with the concurrent findings of fact in a routine and casual manner
by substituting its subjective satisfaction in place of that of the lower courts.
(Vide Jagdish Singh v. Natthu Singh [Jagdish Singh v. Natthu Singh, (1992)
1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-
Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan,
(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [Dinesh Kumar v. Yusuf
Ali, (2010) 12 SCC 740 : (2010) 4 SCC (Civ) 738] .)
28. If a finding of fact is arrived at by ignoring or excluding relevant material
or by taking into consideration irrelevant material or if the finding so
outrageously defies logic as to suffer from the vice of irrationality incurring
the blame of being perverse, then the finding is rendered infirm in the eye of
the law. If the findings of the Court are based on no evidence or evidence
which is thoroughly unreliable or evidence that suffers from the vice of
procedural irregularity or the findings are such that no reasonable person
would have arrived at those findings, then the findings may be said to be
perverse. Further, if the findings are either ipse dixit of the Court or based
on conjecture and surmises, the judgment suffers from the additional
infirmity of non-application of mind and, thus, stands vitiated. (Vide
Bharatha Matha v. R. Vijaya Renganathan [Bharatha Matha v. R. Vijaya
Renganathan, (2010) 11 SCC 483 : (2010) 4 SCC (Civ) 498] .)"
(emphasis supplied)
17. In a recent judgment of this Court, Narayan Sitaramji Badwaik v.
Bisaram [Narayan Sitaramji Badwaik v. Bisaram, (2021) 15 SCC 234], this
Court observed as follows, in the context of the High Courts' jurisdiction to
appreciate factual issues under Section 103CPC : (SCC p. 238, para 11)
"11. A bare perusal of Section 103CPC clearly indicates that it provides for
the High Court to decide an issue of fact, provided there is sufficient
evidence on record before it, in two circumstances. First, when an issue
necessary for the disposal of the Appeal has not been determined by the
lower appellate court or by both the courts below. And second, when an
issue of fact has been wrongly determined by the court(s) below by virtue of
the decision on the question of law under Section 100 of the Code of Civil
Procedure."
19. Learned counsel for the Respondents relied on the decision in
Balasubramanian v. M. Arockiasamy 3 , the Hon'ble Supreme Court held
that:
14. In the background of the legal position and on reasserting the position
that there is very limited scope for reappreciating the evidence or interfering
with the finding of fact rendered by the trial court and the first appellate
court in a second appeal under Section 100 of the Civil Procedure Code, it
(2021) 12 SCC 529
is necessary for us to take note as to whether in the instant facts, the High
Court has breached the said settled position. ..............
15. ............ When such divergent findings on fact were available before the
High Court in an appeal under Section 100 of the Civil Procedure Code,
though reappreciation of the evidence was not permissible, except when it
is perverse, but it was certainly open for the High Court to take note of the
case pleaded, evidence tendered, as also the findings rendered by the two
courts which were at variance with each other and one of the views taken
by the courts below was required to be approved.
20. It is settled law that in a suit for a specific performance, the plaintiff has
to win or lose his case on his own strength and not on the weak case of the
defendant. In a suit for specific performance of the agreement of sale, a heavy
burden lies upon the Plaintiffs to prove not only the execution of the sale
agreement but also his entitlement to the relief thereunder. Mere proof of the
agreement does not, by itself, entail a grant of relief. The Court is not bound to
grant specific relief merely because it is lawful. The discretion conferred upon
the courts is not arbitrary but must be exercised reasonably and soundly,
guided by judicial principles. While exercising discretion, the Court is required
to consider all the facts and circumstances of the case meticulously.
21. There is no dispute concerning the proposition that a suit for a specific
performance burden is always on the Plaintiff to prove and aver that he is
always ready and willing to perform his part of the contract throughout. Mere
taking a plea in the plaint is not sufficient; the Plaintiff should prove, with
cogent evidence, his readiness and willingness to perform his part of the
contract at all material times, i.e., from the date of the contract till the date of
the suit. It is also settled law that the grant of decree for specific performance
is a discretionary relief. Undoubtedly, discretion has to be exercised judicially
and not arbitrarily.
22. Before considering the rival contentions raised on behalf of both sides, it
is relevant to refer to the admitted facts born out from the record as follows:
Initially, the 1st Plaintiff initiated proceedings for the specific
performance of a sale agreement, seeking alternative relief in the
form of compensation. During the course of these proceedings, the
1st Plaintiff passed away, prompting the inclusion of Plaintiffs 2 to 4
as Legal Representatives of the 1st Plaintiff. The property in
question, delineated in the plaint schedule, consists of a vacant site
measuring Ac.0.08 cents. It was previously owned by Y.Punnarao,
the husband of the 1st Defendant. Defendants 2 and 3 are their son
and daughter, respectively.
23. The Plaintiffs assert that the 1st Plaintiff entered into Ex.A.1 sale
agreement with 1st Defendant's husband, Y.Punnarao, on 05.05.1985 for a
valid consideration of Rs.40,000/-. To substantiate the transaction outlined in
Ex.A.1, the Plaintiffs examined PW.2 (K. Satyanarayana) and PW.3 (Kovi
Viswapathi). Both PWs.2 and 3 acknowledged that they attested to the Ex.A.1
agreement of sale. However, the trial Court highlighted the discrepancies and
inconsistencies within their testimonies. Notably, it was observed that PW.3
currently resides in the schedule property as a tenant of DW.1, paying
Rs.600/- per month as rent. This circumstance raises concerns, leading the
trial Court to conclude that, under the influence of DW.1, PW.3 may be
deposing false testimony. The cross-examination of PWs 2 and 3 reveals
significant gaps in their recollection of the details surrounding the Ex. A.1
transaction. PW.2 admitted to a lack of memory regarding the specific date
and month of the transaction and could not recall the value of the stamp paper
used. He was unable to describe the schedule property or confirm any
payments made to the vendors in his presence. Additionally, he could not say
the name of the scribe of Ex.A.1. Crucially, PW.2 stated that he did not
personally witness the Ex.A.1 transaction, which casts doubt on his version.
Given that PW.2's testimony did not align with the Plaintiffs' claims, the
Plaintiffs' counsel sought permission to cross-examine him further; however,
the trial court did not grant this request.
24. Regarding the evidence of PW.3, while he acknowledged his signature
as an attestor on Ex.A.1, he expressed uncertainty about whether he signed it
after 1996. Moreover, he stated that he did not know the contents of Ex.A.1.
The cross-examination of both PWs.2 and 3 clearly illustrates that they did not
support the Plaintiffs' case, despite their affirmation of having attested to the
Ex.A.1 agreement.
25. The Defendants assert that the 4 th Defendant acquired the schedule
property from Defendants 1 to 3 on 10.01.2000, for a valid consideration of
Rs.1,98,000/-. The 4th Defendant references Ex.B.1, the sale deed, to
substantiate this claim. According to the 4th Defendant, he purchased the
property from Y. Punnarao, the husband of the 1st Defendant, who received
an advance payment of Rs.40,000/-. Unfortunately, Y. Punnarao passed away
before the execution of the sale deed. Subsequently, Defendants 1 to 3, as his
legal representatives, accepted the remaining balance of Rs.1,58,000/-,
executed the sale deed on 10.01.2000, and granted possession of the
property to the 4th Defendant on that same day. The fact remains that the 4th
Defendant has maintained possession of the schedule property since then.
26. According to the terms outlined in Ex.A.1, the agreement of sale, the 1 st
Plaintiff was granted possession of the schedule property by Y. Punnarao.
However, during cross-examination, PW.1 (G. Vengaiah, the 3 rd Plaintiff)
contradicted this by stating that Defendants 1 to 3 have had the property since
1980. Despite this, he acknowledged that Ex.A.1 contains a provision
indicating possession was handed over to his father. The Plaintiffs claim that
the 1st Plaintiff purchased the schedule property from Y. Punnarao for
Rs.40,000 on 05.05.1985. According to the Plaintiffs, they obtained
possession only through the agreement of sale dated 05.05.1985. The
evidence provided by PW.1 does not substantiate the claim that the Plaintiffs
got possession by Ex.A.1. Additionally, the 1st Appellate Court noted that
PW.1, being a minor at the time of Ex.A.1's execution, was unlikely to have
detailed knowledge of the agreement's particulars. The 1st Appellate Court
also remarked that the trial court denied the request for specific performance
primarily because PW.1 admitted possession had been held by Defendants 1
to 3 and Y. Punnarao since 1980. Furthermore, the trial court found that the
1st Plaintiff presented a false account in the plaint, claiming that Y. Punnarao
had delivered possession of the schedule property to him under the sale
agreement.
27. As correctly observed by the 1st Appellate Court, PW.1 was not aware
of the case details as a minor. The mere substitution of legal representatives
for the 1st Plaintiff does not absolve the Plaintiffs of their obligation to prove
their case as presented in the plaint. The Plaintiffs maintain that they got
possession of the schedule property through Ex.A.1, the agreement of sale
dated 05.05.1985. However, it has been established that Plaintiffs 2 and 3 did
not support this claim. In contrast, the 4th Defendant asserts that he purchased
the schedule property under Ex.B.1, a registered sale deed dated 10.01.2000,
and took possession of the property as per the terms of the sale deed. The 1 st
Plaintiff contends in the plaint that he requested the 4 th Defendant's father to
manage the property on his behalf due to a familial relationship, specifically,
that the 1st Plaintiff is married to Venkata Subbaiah's elder sister. He claims
this arrangement was necessary as Venkata Subbaiah had been residing in
Guntur for the past 30 years, while the 1 st Plaintiff lived in Lingamguntlapalem.
However, this assertion regarding the entrustment of the property to the 4 th
Defendant's father has not been substantiated by the testimonies of PWs.1 to
3. Given PW.1's minor status, he may have yet to be aware of these facts.
The Plaintiffs should have made a concerted effort to examine witnesses who
were familiar with the details of the case.
28. As previously noted, the death of the 1st Plaintiff does not shift the
burden of proof onto the Defendants. The burden remains with the legal
representatives of the 1st Plaintiff to substantiate the claims made in the plaint.
The 1st Appellate Court observed that the Defendants seemingly came into
possession of the property under the guise of Ex.B.1, the sale deed, for the
first time in 2005. Till then, the property was in the possession of the 1 st
Plaintiff. The 1st Appellate Court should have seen that Ex.B.1, the sale deed,
was executed on 10.01.2000. Consequently, the 1st Plaintiff approached the
Court for specific performance only five years after the 4th Defendant obtained
the Ex.B.1 sale deed. This indicates that the 1st Appellate Court may have
mistakenly assumed that the 1st Plaintiff filed the suit immediately following the
Ex.B.1 sale transaction. However, evidence provided by PW.1 indicates that
Defendants 1 to 3 have had the property since 1980. Notably, it is not the
Plaintiffs' case that the 4th Defendant acquired possession through the Ex.B.1
sale deed. The trial court overlooked the stand taken in the plaint. The
Plaintiffs did not assert that the 4th Defendant was inducted into possession of
the property through the Ex.B.1 sale deed. The plaint states that the 1 st
Plaintiff, due to his marriage to Venkata Subbaiah's elder sister, asked the 4 th
Defendant's father to manage the plaint schedule property in Guntur on his
behalf. However, the plaint does not specify the year the 4th Defendant's
father began looking after the property. Nevertheless, both the trial Court and
the 1st Appellate Court took into consideration the defences raised by
Y.Punnarao in the written statement submitted in O.S.No.350 of 1997, as
evidenced by Ex.A.4.
29. As indicated in Ex.A.4, Y. Punnarao acknowledged in the written
statement that he executed Ex.A.1, the agreement of sale, in favour of the 1 st
Plaintiff and granted him possession of the schedule property on the same
day. The trial Court noted that PW.1's assertion that possession was not
delivered to his father under Ex.A.1 was significant. However, the 1 st Appellate
Court observed that PW.1, being a minor, lacked knowledge of the Ex.A.1
transaction and that his claim regarding possession should not have been
afforded much weight by the trial judge. Furthermore, there is no substantial
basis for the 1st Appellate Court to conclude that the property was purportedly
in the possession of the 1st Plaintiff until the execution of Ex.B.1 sale deed in
favour of the 4th Defendant by Defendants 1 to 3.
30. The 1st Appellate Court placed undue emphasis on the pleas articulated
in the written statement filed by Y. Punnarao while ignoring the PW.1's
evidence. Even if it is assumed for the sake of argument that the 4th
Defendant came into possession of the schedule property in 2000, the 1 st
Appellate Court noted that the 4th Defendant should have called his father as a
witness to demonstrate that the 1st Plaintiff never asked him to manage the
property. Thus, an adverse inference should be drawn. It is essential to
recognize that the Plaintiffs bear the burden of establishing their case. This
burden does not shift to the Defendants simply because the 1 st Plaintiff has
passed away. It cannot be assumed that the Defendants must disprove the
claims made in the plaint. As previously stated, the Plaintiffs must substantiate
the facts laid out in their pleading by examining witnesses familiar with the
case. The burden of proof cannot be placed on the Defendants to refute the
allegations in the plaint. The reasoning articulated by the 1 st Appellate Court
and its detailed factual findings necessitate interference, as they are perverse
and reflect a significant legal misjudgment in reaching those conclusions.
31. The 4th Defendant contends that he purchased the schedule property by
paying the agreed consideration amount. The absence of a claim in his written
statement asserting that he is a bona fide purchaser for value, without
knowledge of the prior agreement of sale, does not automatically imply that he
was aware of the Ex.A.1 transaction. The 1st Appellate Court posited that if the
4th Defendant had no knowledge of the Ex.A.1 agreement of sale, he would
have explicitly stated his status as a bona fide purchaser. However, this
reasoning does not withstand legal scrutiny. The mere lack of a claim
regarding his bona fide status cannot be taken as evidence of his knowledge
of the Ex.A.1 agreement executed in favour of the 1st Plaintiff by Y. Punnarao.
It appears that the 1st Appellate Court shifted the burden to the Defendants to
disprove the facts asserted in the plaint, particularly given that PW.1 was a
minor at the time the suit was filed and was unaware of the contents of the
Ex.A.1 agreement. Defendants 1 to 3 did not contest the execution of Ex.A.1
by Punnarao. Both courts relied on Ex.A.4, the written statement, to conclude
that Y. Punnarao executed the Ex.A.1 agreement of sale in favour of the 1st
Plaintiff. The Plaintiffs failed to demonstrate that the 4th Defendant's father
was asked to manage the schedule property. Although Ex.A.1 indicates that
possession was delivered to the 1st Plaintiff, PW.1's testimony reveals that,
despite the execution of Ex.A.1, the property remained in the possession of
Defendants 1 to 3 until it was sold to the 4th Defendant vide registered sale
deed. The Plaintiffs have not provided any evidence to substantiate the
delivery of the schedule property as stipulated in Ex.A.1, aside from its
recitals. It is not the Plaintiffs' case as they paid the entire consideration
amount, that a mutation was made in the panchayat records in their names,
and that they paid the property tax. While Ex.A.1 is titled as a sale agreement,
it is drafted to suggest a sale deed, conveying absolute rights over the
schedule property. However, PW.1's evidence indicates that the Plaintiffs
were not inducted into possession of the property under Ex.A.1. The evidence
adduced by the Plaintiffs is inconsistent with their claims in the plaint.
Although Ex.A.1 authorizes the Plaintiffs to mutate the property in their name,
they failed to take such steps.
32. As previously noted, the Plaintiffs do not assert that they had the
property at the time the suit was filed. Ex.A.1 was executed on 05.05.1985,
yet the 1st Plaintiff did not initiate the suit until 2005. This indicates that the 1st
Plaintiff waited twenty years to seek specific performance of the contract. The
plaint states that the Plaintiffs recently received notice from the Court
regarding a suit filed by one K. Venkatarathnam (the 4th Defendant), claiming
title to the property. Upon inquiry, the 1 st Plaintiff learned that Y. Punnarao had
died nearly six years prior, suggesting that he was unaware of Y. Punnarao's
death until long after it occurred. Furthermore, the plaint claims that the
Plaintiff has been ready and willing to obtain the registered sale deed from
Y.Punnarao. Still, the Defendants allegedly delayed this process under
various pretexts. However, given the assertion that the Plaintiffs only came to
know Y. Punnarao's death six years after it happened, this undermines their
claim of being consistently ready and willing to obtain the sale deed.
Moreover, before filing the suit, the 1st Plaintiff did not issue a legal notice to
the legal representatives of Y. Punnarao, namely, Defendants 1 to 3
demanding the execution of the registered sale deed. The plaint lacks details
regarding any such demand, and no evidence has been presented to
demonstrate that the 1st Plaintiff made any request to execute the sale deed
before initiating the suit.
33. The Plaintiff failed to explain this omission, lacking any written notice to
the Defendants before initiating legal action. According to the 1 st Plaintiff, he
became aware of the Ex.B.1 transaction only after receiving a notice in
O.S.No.192 of 2005 on the file of II Additional Junior Civil Judge. He also
learned that the 4th Defendant and his father had constructed shops and
leased them to tenants, prompting him to file a suit for specific performance of
the sale contract. Notably, there is no mention in the plaint of any demand
made to the legal representatives of the 1st Plaintiff for the execution of the
sale deed before the filing of the suit.
34. The Counsel for the Appellants submits that ordinarily, the requirement
of law is the issuance of registered notice by the 1st Plaintiff demanding the
accepting of (balance) sale consideration and execution of the sale deed by
the Defendants. But admittedly, no such notice was issued by the 1 st Plaintiff
before filing the suit. In this regard, the Appellants' Counsel relied on the
decision of the composite High Court of Andhra Pradesh at Hyderabad in
BaddamPrathap Reddy V. ChennadiJalapathi Reddy4, wherein it observed
as follows:
17. This Court, however, hastens to add that, in law, oral demand by the
buyer of immovable property, as such, being sufficient compliance with
requirements of Form Nos.47 and 48, cannot be ruled out. In such
circumstances, the proof of oral demand should be strong and
unimpeachable, and mere allegation, in a passing manner, would not be
sufficient compliance with the requirement of law. However, this aspect
2008 5 ALD 200
of the matter has to be gone into a little deeper in an appropriate case,
but it would be sufficient to leave the issue with the observations as
made hereinabove.
18. A study of four decisions cited by the learned Counsel for the
appellant, namely, Abdul KhaderRowther V.P.K.SaraBai 5 , Syed
Dastagir V. T.R.Gopalakrishnasetty6, Pushparani S.Sundaram and
Ors V. Pauline Manomani James (Deceased) and Ors., 7 (supra) and
Manjunath Anandappa Urf. ShivappaHanasi V. Tammanasa and
Ors., 8 (supra), would show that if the requirement of sending a
communication or notice demanding execution of the sale deed is not
complied with prior to the filing of the suit, it will weaken the case of the
plaintiff for enforcing the specific performance of a contract in respect of
the immovable property. If a notice is issued by the plaintiff, it itself
would - to a large extent, might lead to an inference that the plaintiff was
ready and willing to perform his part of the contract. The mere allegation
that the plaintiff was ready and willing to perform his part of the contract
would not be sufficient for enforcement of the contract. In Pushparani
S.Sundaram (supra) it was held.
20. .......... If a suit is filed for a specific performance of agreement of
sale without making prior demand by way of a notice on the defendant-
vendor, such a suit is not in compliance with Form Nos.47 and 48.
Therefore, it is liable to be dismissed. This Court also hastens to add
that in an appropriate case, subject to strictly proving such allegation, an
oral demand can also be in proper compliance with the requirement of
law. Still, this question has to be gone into detail in an appropriate case.
35. Upon careful examination of the plaint averments and the evidence
provided by PW.1, it is apparent that there is no indication of an oral demand
made by the plaintiff to the defendants for the execution of a registered sale
deed before filing the suit. Although the plaint mentions that the Defendants
did not respond satisfactorily to the 1st Plaintiff's request and the 1st Plaintiff
suspects the Defendants' intentions, the details such as the dates of the
demands and the presence of witnesses during these demands are not
disclosed. Additionally, the Plaintiffs fail to provide a reason for not issuing a
legal notice before initiating the suit. Without these essential details, this Court
cannot accept the Plaintiffs assertion of an oral demand made prior to the suit.
In light of the observations made in the cited decision, this Court concludes
that the suit does not comply with Form Nos. 47 and 48.
1989 (43) ELT 797 (SC)
AIR 1999 SC 3029
(2002) 9 SCC 582
AIR 2003 SC 1391
36. No doubt, the reappreciation of the evidence is ordinarily impermissible
and beyond the scope of the Second Appeal. This Court is not supposed to
make any fact-based observations when the records of the trial Court and the
1st Appellate Court were not requisitioned to reach an independent conclusion
to hold that said finding of fact by the two Courts was contrary to the record.
37. Just because Defendants 1 to 3 have not caused an appearance,
despite summons having been served and they not being examined as
witnesses, it could not be concluded that there is a connivance amongst the
Defendants to defeat the Plaintiffs' rights. Such an assumption is also not
justified since 4th Defendant had purchased the property for consideration
under a registered document, and admittedly, he was put in possession. In
those circumstances, Defendants 1 to 3 who had lost interest in the property,
if they had not chosen to appear and defended the suit, the same cannot be a
presumption of connivance in the absence of evidence to that effect.
38. As previously noted, the remedy of specific performance is governed by
principles of discretion and equity. In light of the Plaintiffs' inability to
substantiate their claims, the PW.1's testimony starkly contradicts the
assertions made in the plaint. Moreover, the evidence presented by PWs.2
and 3 fails to support the execution of the Ex.A.1 agreement of sale and the
1st Plaintiff was granted possession of the property under the Ex.A.1
agreement, the significant delay of twenty years before filing the suit for
specific performance raises serious concerns regarding the Plaintiffs'
entitlement of relief claimed.
39. Learned counsel for the Respondents relied on the decision in Arjuna
Mudaliar V. Lakshmi Ammal and others9, wherein the High Court of Madras
held that:
The learned Judge held that the delay of 22 years in enforcing the
agreement was fatal to the plaintiff's suit. It is now well established that
mere delay does not by itself preclude the plaintiff from obtaining specific
1948 SCC OnLine Mad 77
performance if his suit is otherwise in time. The delay must be such that it
may be properly interred that the plaintiff has abandoned his right, or on
account of the delay, there must have been such a change of
circumstances that the grant of specific performance would prejudice the
defendant.
40. Now, in this case, from the facts it could be inferred that the Plaintiffs
abandoned their right by losing the possession of the property. The parties
probably thought it was a money transaction, so the Plaintiffs did not take
steps to get into possession of the property. There is evidence that the 4th
Defendant came into possession of the property by paying a considerable
amount to Defendants 1 to 3 and raised constructions. On account of the
lapse of time, the 4th Defendant would be prejudiced if the Plaintiffs are now
granted specific performance. As the rights of third parties have intervened,
there are special circumstances that make it inequitable to grant relief of
specific performance on the foot of the agreement.
41. While the Plaintiffs assert possession of the property under the Ex.A.1
agreement of sale, they still need to adequately demonstrate how they lost
that possession. Contrarily, PW.1 acknowledged that, despite the stipulations
in Ex.A.1, the property has remained in the possession of Defendants 1 to 3.
This admission casts doubt on the Plaintiffs' claims.
42. In Manjunath Anandappa v. Tammanasa 10 , the Hon'ble Supreme
Court emphasized that a delay of six years in filing the suit for a specific
performance, without adequate explanation, is significant, and such a delay
can be detrimental to the plaintiff's case.
43. In E. Amarnath Rao v. G. Vijaya Gowri11, it was held that, in contracts
relating to immovable property, there may be some unique and peculiar
circumstances justifying the Courts to hold that time is the essence of the
contract. But the crucial point is even if time is not the essence of the contract,
the relief of specific performance cannot be granted to the plaintiffs if there are
(2003) 10 SCC 390
2011 SCC OnLine AP 762
latches on their part and when there is an inordinate delay in seeking such
discretionary relief.
44. In the present case, the Plaintiffs initiated this suit nearly 20 years after
entering into the agreement to sell. They have failed to present evidence
indicating that they ever requested Punnarao or Defendants 1 to 3 to fulfil their
obligations under the agreement. Notably, the Plaintiffs filed the suit only five
years after Defendants 1 to 3 had transferred the schedule property to the 4th
Defendant. Moreover, it is essential for the Plaintiffs, in their pursuit of
discretionary relief, to approach the court within a reasonable timeframe.
45. In N.P.Thirugnanam Vs. Dr R.Jagan Mohan Rao12, the Apex Court
held that:
It is settled law that remedy for specific performance is an equitable
remedy and is at the discretion of the Court, which discretion requires
to be exercised according to settled principles of law and not arbitrarily
as adumbrated under Section 20 of the Specific Relief Act, 1963 (for
short "the Act"). Under Section 20, the Court is not bound to grant the
relief just because there was a valid agreement of sale. ............ The
continuous readiness and willingness on the part of Plaintiff is a
condition precedent to grant the relief of specific performance. This
circumstance is material and relevant and is required to be considered
by the Court while granting or refusing to grant the relief. ......... To
adjudge whether the Plaintiff is ready and willing to perform his part of
the contract, the Court must consider the Plaintiff's conduct prior to
and subsequent to the filing of the suit, along with other attending
circumstances. .................. As stated, the factum of his readiness
and willingness to perform his part of the contract is to be adjudged
with reference to the conduct of the party and the attending
circumstances. The Court may infer from the facts and circumstances
whether the Plaintiff was ready and was always ready and willing to
perform his part of the contract.
46. The 1st Plaintiff was expected to procure the necessary stamp papers
and summon the Defendants to execute the sale deed. However, the
evidence presented reveals a significant oversight: he only became aware of
Y. Punnarao's passing six years after it occurred. The plaint does not show
(1995) 5 SCC 115
any reason why the Plaintiffs waited for an extended period of twenty years to
work out their remedies. Moreover, the claim that the Plaintiffs were granted
possession of the property under Ex.A.1 lacks credibility, particularly when
contrasted with testimony regarding the 4 th Defendant's father being inducted
into possession due to familial ties, a claim that remains unsubstantiated. As
previously noted, the evidence from PW.1 indicates that, despite the execution
of Ex.A.1, Defendants 1 to 3 continued to occupy the property, which directly
contradicts the terms outlined in the agreement. It is essential to recognize
that the remedy of specific performance is inherently discretionary and
grounded in equitable principles. Considering the Plaintiffs' conduct in making
incorrect statements in the plaint, which were very material,
47. Upon meticulous examination of the record, this Court concludes that,
notwithstanding the Plaintiffs' claim of possession, the evidence unequivocally
reveals that they were not put in possession as asserted. In contrast, it is
established that the 4th Defendant acquired possession of the property
through a sale deed five years before filing the suit. Although the Plaintiffs
have sought to explain the circumstances surrounding the 4 th Defendant's
possession, they have failed to provide cogent and reliable evidence to
support their assertions. Consequently, this Court determines that the
Plaintiffs' claim of possession is fundamentally flawed, thereby undermining
their entitlement to specific performance. While Ex.A.1 lacks an explicit
timeframe, such absence does not afford the Plaintiffs the latitude to remain
inactive for twenty years before pursuing relief without any preceding demand.
The Plaintiffs' five-year delay, in light of the 4th Defendant's established
possession during that timeframe, significantly diminishes the viability of their
case. This inaction distinctly disentitles the Plaintiffs from obtaining the relief of
specific performance in accordance with the observations delineated in this
judgment. Taking into account all circumstances established in the record, it is
difficult to conclude that Plaintiffs are entitled to relief of specific performance
when exercising discretion under Section 20 of the Specific Relief Act.
48. This Court discerns perversity in the Judgment rendered by the learned
1st Appellate Court. The findings and reasoning provided by the 1st Appellate
Court are inconsistent with established legal principles. Furthermore, the 1 st
Appellate Court failed to consider the evidence on the record following the
well-settled principles of law. As a result, the Judgment and decree of the
learned 1st Appellate Court are set aside. Consequently, the substantial
questions of law raised in this Second Appeal are adjudicated in favour of the
Appellants and against the Respondents.
49. As a result, this Second Appeal is allowed without costs,
consequently, the judgment and decree dated 15.12.2009 passed by the
learned District Judge, Guntur in A.S.No.310 of 2008, are hereby set aside.
The Judgment and decree, dated 22.09.2008 passed by the learned V
Additional Senior Civil Judge, Guntur, in O.S.No.282 of 2005, are restored.
Miscellaneous petitions pending, if any, in this Appeal shall stand closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 19.10.2024
SAK
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
SECOND APPEAL NO. 79 OF 2010
Date: 19.10.2024
SAK
