Smt. Mudireddy Swarnalatha vs M/S. Escon Infra
2021 Latest Caselaw 1650 Tel

      HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                        AND
            HONOURABLE SRI JUSTICE T.VINOD KUMAR

          CIVIL MISCELLANEOUS APPEAL NO.226 OF 2021

                                   JUDGMENT:

(Per Sri Justice M.S.Ramachandra Rao)

This Appeal is preferred challenging the order dt.09.01.2020 in

I.A.No.982 of 2019 in O.S.No.185 of 2019 of the V Additional District

Judge at Bhongir.

2. The appellants are the defendants in the said suit.

3. The said suit had been filed by the respondent herein against the

appellants for specific performance of an agreement of sale dt.01.01.2019

and for delivery of vacant and peaceful possession of the suit schedule

property which is an extent of Acs.25.00 in Sy.Nos.689, 690 and 691 of

Bhongir Village and Mandal, Nalgonda District.

Case of the respondent/plaintiff

4. In the suit, the respondent/plaintiff contended that it is a

partnership firm, that the appellants are joint owners and peaceful

possessors of the suit schedule property along with some other land and

that the appellants have 30% share in the total extent of Acs.85.36 gts. in

various Survey numbers in Bhongir Village covering the Acs.25.30 gts.,

which is the suit schedule property.

5. It is the contention of the respondent that the appellants, with the

consent of the other joint owners, had orally entered into an agreement of

sale on 01.08.2014 agreeing to sell the total land of Acs.85.36 gts., at

Rs.32,00,000/- per acre and received Rs.30,00,000/-, but subsequently

the appellants rescinded from their promise and agreed to sell only their

30% share to the respondent and had executed an agreement of sale

Ex.P4 on 10.02.2018. It is contended that the appellants acknowledged

receipt of the advance of Rs.30,00,000/- from the respondent and also a

further amount of Rs.70,00,000/-.

6. The respondent further alleged that pursuant to the oral agreement

of sale, the appellants received Rs.45,00,000/- in cash from 2014 to 2016

and on receipt of Rs.30,00,000/- and executed another agreement of sale

Ex.P5 on 07.07.2018; that thereafter the appellants also received

Rs.85,00,000/- and executed another agreement of sale Ex.P7 on

07.10.2018 after receiving a sum of Rs.1,00,00,000/- on 12.02.2018 and

03.05.2018; and lastly they executed the suit agreement of sale Ex.P6 on

01.01.2019 agreeing to sell the suit schedule property for

Rs.6,15,00,000/-, mentioning the amount received by them, and agreeing

to execute registered sale deed by receiving balance sale consideration.

7. The respondent alleged that it was always ready with the total sale

consideration, but the appellants postponed execution of the registered

sale deed giving untenable reasons; that ultimately the respondent issued

Ex.P8 legal notice dt.14.08.2019 to the appellants and the other joint

owners, to which a reply Ex.P9 dt.22.08.2019 was issued stating that the

appellants did not remember to have executed the above agreements.

8. The respondent contended that the other addressees in the notice

dt.14.08.2019 (Ex.P8) sent a different reply Ex.P10 dt.26.08.2019

denying the agreements of sale and so the respondent is filing this suit

only for enforcement of Ex.P6 agreement of sale dt.01.01.2019 executed

by the appellants covering the suit schedule property only.

Stand of the appellants/defendants

9. The appellants contended that there is no privity of contract

between the respondent and the appellants and the suit is not

maintainable. According to them, they are not at all owners and

possessors of the suit schedule property.

10. It is contended that the suit is not maintainable because the

respondent did not mention separately extent of each survey number for

which the suit is filed, and have mentioned in the suit schedule only

Acs.25.00 in 3 Sy.Nos.689, 690 and 691 of Bhongir Village. They also

alleged that the respondent did not make the other purchasers in the same

Survey no.s as parties to the suit, who are also purchasers of the land in

the suit Survey no.s totaling to Acs.85.00 and so the suit is not

maintainable.

11. While mentioning that the appellants own 30% out of Acs.85.36

gts., at Bhongir Village, they contend that this land was purchased by

them along with 7 others through a registered sale deed jointly from one

G.Pandu and others and that subsequently pattadar passbooks and title

deeds were issued to them and others to the extents of their share in each

Survey number.

12. It is alleged that there was no partition affected among the

purchasers, i.e., the appellants and the other co-owners. They also denied

the oral agreement of sale dt.01.08.2014, the agreements of sale Ex.P5

dt.07.07.2018 and Ex.P7 dt.07.10.2018.

13. They however admitted that they executed Ex.P6 agreement of

sale on 01.01.2019 by acknowledging receipt of Rs.1,85,00,000/- and

that they had agreed to sell Acs.25.00 out of Acs.85.36 gts. They contend

that they had never intended to sell this land because they have got only

30% share in Sy.Nos.689, 690 and 691 which is only Acs.12.00

mentioned in the schedule to Ex.P6 agreement of sale.

14. According to them, Ex.P6 agreement of sale dt.01.01.2019 had no

legal sanctity because they have no exclusive right to sell the Acs.25.00

mentioned therein.

I.A.No.982 of 2019

15. Along with the suit, the respondent filed I.A.No.982 of 2019 under

Order XXXIX Rules 1 and 2 CPC for a temporary injunction restraining

the appellants from alienating the suit schedule property in favour of any

person pending disposal of the suit. The respondent reiterated the

contents of the plaint in the affidavit filed in support of the said I.A.

16. Counter affidavit was filed by the appellants reiterating the

contents of the written statement.

Proceedings in the Court below

17. In the Court below, the respondent marked Exs.P1 to P12 and the

appellants marked Exs.R1 to R30.

18. By judgment dt.09.01.2020, the Court below allowed I.A.No.982

of 2019.

19. After referring to the contentions of the parties, the Court below

held that there is a valid contract between the respondent and the

appellants in respect of the extents mentioned under Exs.P4 to P7

agreements of sale; that Exs.R1 to R30 revenue records filed by the

appellants show that specific separate extents are shown in respect of

appellant no.1 under Exs.R1 to R8, in respect of appellant no.2 under

Exs.R18 to R23, and in respect of appellant no.3 under Exs.R9 to R17. It

therefore concluded that the appellants, having received substantial

advance money, intended to avoid obligations under Exs.P4 to P7, and

set up a defence that the property of Acs.85.00 is joint and there is no

inter se division, which cannot be accepted prima facie.

20. It therefore held that prima facie case exists in respect of the

respondent, balance of convenience is also in its favour and irreparable

loss will be caused to the respondent if interim injunction sought for is

not granted.

Present CMA

21. Challenging the same, this Appeal is filed.

22. Sri L. Prabhakar Reddy, learned advocate appearing for Sri L.

Preetham Reddy, learned counsel for the appellants contended that the

findings of the Court below are erroneous and that the Court below erred

in granting interim injunction as prayed for.

23. The suit O.S.No.185 of 2019 has been filed by the respondent for

specific performance of Ex.P6 agreement dt.01.01.2019 executed by the

appellants in its favour.

24. The said agreement itself mentions receipt of a sum of

Rs.1,85,00,000/- and that an extent of Acs.25.00 in Sy.Nos.689, 690 and

691 of Bhongir Village and Mandal is promised to be sold by appellants

to the respondent.

25. In para 10 of the written statement, the execution of Ex.P6

agreement of sale is admitted by the appellants and they have also

acknowledged receipt of the sum of Rs.1,85,00,000/- from the respondent

for sale of the said land.

26. The only plea raised by the appellants is that this Acs.25.00 agreed

to be sold by them forms part of an extent of Acs.85.36 gts., purchased

by them jointly with 7 others.

27. However, the revenue records filed by the appellants Exs.R1 to

R8, Exs.R18 to R23 and Exs.R9 to R17 show that there are separate

parcels of land in the 3 survey numbers in the names of the appellants

individually.

28. So prima facie their plea therefore that there is no partition among

the purchasers of Acs.85.36 gts., of land does not appear to be correct

and appears to be an after-thought to wriggle out of the commitments

under Ex.P6 agreement of sale dt.01.01.2019 having received substantial

advance amount from the respondent.

29. Therefore, we are of the opinion that the Court below rightly held

that there is prima facie case in favour of the respondent, the balance of

convenience is also in favour of the respondent and irreparable injury

would be caused to the respondent if the appellants are permitted to

alienate the land to third parties.

30. Also, the impugned order had been passed on 09.01.2020 by the

Court below and has been in subsistence since then. At this distance in

time, we see no reason to disturb it.

31. Accordingly, the CMA is dismissed at the admission stage.

32. It is made clear that whatever findings or observations are recorded

in this order are only for the purpose of deciding this appeal and the Trial

Court should decide the suit uninfluenced by any of these observations,

or the observations or findings in its order dt.09.01.2020 in I.A.No.982 of

2019 in O.S.No.185 of 2019.

33. Pending miscellaneous petitions, if any, in this CMA shall also

stand dismissed.

____________________________ M.S.RAMACHANDRA RAO, J

____________________ T.VINOD KUMAR, J Date: 16-06-2021

Svv