Burra Sathaiah vs Sudagoni Sathaiah
2022 Latest Caselaw 4210 Tel

              HON'BLE Smt. JUSTICE P.SREE SUDHA

                   APPEAL SUIT No.839 OF 2015

                              ORDER

1. This appeal is directed against the Common Judgment dated

06.07.2015 passed in O.S.Nos.50 of 2012 and 130 of 2013 on the file

of the learned Senior Civil Judge at Sircilla, whereby the suit

O.S.No.50 of 2012 is dismissed with costs and the suit O.S.No.130 of

2013 is decreed with costs.

2. Burra Sathaiah is the plaintiff in O.S.No.50 of 2012. He filed

the said suit against Sudagoni Sathaiah and Bodige Padma-

defendants seeking specific performance of contract of sale dated

16.05.2010 in respect of the land admeasuring Ac.0.36½ guntas and

Ac.1.10 guntas in Sy.Nos.1003/A and 1013 respectively total

admeasuring Acs.2.06½ guntas in a single compact plot situated at

Gattubuthkur Village, Gangadhara Mandal, Karimnagar District, and

whereas the suit O.S.No.130 of 2013 is filed by the defendants in

O.S.No.50 of 2012 for perpetual injunction.

3. The trial Court after considering the entire evidence on record

and the arguments advanced by both the learned counsel dismissed

the suit O.S.No.50 of 2012 with costs and decreed the suit

O.S.No.130 of 2013 with costs. Aggrieved by the said common order

the plaintiff in O.S.No.50 of 2012 preferred this appeal.

4. For the sake of convince the parties hereinafter will be referred

to as they are arrayed in O.S.No.50 of 2012 wherein common evidence

was adduced by both the parties.

5. The plaintiff in O.S.No.50 of 2012 filed a suit for specific

performance of contract of sale dated 16.05.2010 against the

defendants. He stated that the defendants are the owners and they

are in possession of the land admeasuring Ac.0.36½ guntas and

Ac.1.10 guntas in Sy.Nos.1003/A and 1013 respectively total

admeasuring Acs.2.06½ guntas in a single compact plot situated at

Gattubuthkur Village, Gangadhara Mandal, Karimnagar District. The

defendants agreed to sell the same to the plaintiff at the rate of

Rs.3,25,000/- per acre and the appellant-plaintiff agreed to purchase

the same on the said rate and accordingly paid the entire sale

consideration of Rs.7,02,812/- to the defendants on 16.05.2010 and

the defendants after receiving the entire amount have executed

agreement of sale on the same day in favour of the plaintiff and they

have also specifically agreed to execute valid registered sale deed in

favour of the plaintiff as and when the plaintiff ready and willing and

that possession was also delivered to the plaintiff and since then the

plaintiff is in continuous possession and enjoyment over the suit land

without any interruption. The plaintiff would further submit that

though he requested the defendants to execute the registered sale

deed as per agreement of sale dated 16.05.2010, they postponed the

same on the one pretext or the other and also filed O.S.No.109 of

2010 against him on the file of the Junior Civil Judge, Vemulawada,

seeking permanent injunction and they also denied execution of the

agreement of sale dated 16.05.2010 in favour of the plaintiff. The

plaintiff would also submit that he came to know about the deemed

refusal to execute registered sale deed by the defendants when he

received summons in the suit in O.S.No.109 of 2010 as such the

plaintiff requested the Court to direct the defendants to execute a

registered sale deed in his favour.

6. In the written statement filed by the first defendant he stated

that the agreement of contract is forged and fabricated document and

the suit is not maintainable in law. He also stated that the agreement

of sale is not admissible in evidence as it attracts the provisions of

Stamps and Registration Act, 1908. He denied execution of the

agreement of sale, receiving of the consideration, delivery of

possession and further stated that when the plaintiff was trying to

interfere with the possession of the defendants they filed O.S.No.109

of 2010 for perpetual injunction to restrain him along with an

application in I.A.No.299 of 2010 seeking temporary injunction, which

was allowed on 19.08.2011 after due contest and the said order also

confirmed in the appeal vide C.M.A.No.1 of 2011 dated 02.04.2012.

The defendants are in possession and enjoyment of the suit land. The

plaintiff has not issued any notice calling upon them to execute a

registered sale deed at any point of time. Even if it is presumed that

they executed alleged agreement of sale in favour of the plaintiff, what

made the plaintiff to keep quiet all these years without taking any

proper steps is not explained. The defendants would also submit that

they filed a criminal complaint against the plaintiff for the offences

under Sections 465 and 420 IPC and it is pending for investigation,

and therefore, requested the Court to dismiss the suit.

7. The second defendant adopted the written statement of the first

defendant and filed adoption memo to that effect.

8. Pleadings of suit filed for perpetual injunction is not filed before

the Court but the facts are extracted by the officer in the common

judgment in detail. The common evidence was recorded in both the

suits.

9. Defendants in the suit filed O.S.No.109 of 2010 against the

plaintiff herein for a perpetual injunction and it is renumbered as

O.S.No.130 of 2013. The defendants jointly purchased agricultural

land admeasuring Ac.0.36½ guntas and Ac.1.10 guntas in

Sy.Nos.1003/A and 1013 situated at Gattubuthkur Village,

Gangadhara Mandal, Karimnagar District, under a registered sale

deed bearing document No.3770 of 2009 dated 04.12.2009 for a valid

consideration and they got mutated in their names and obtained

pattadar pass books and title deeds. But the plaintiff without any

right tried to interfere into their possession on 14.10.2010 and

16.10.2010 and as such they filed the suit for perpetual injunction.

10. The plaintiff in the suit examined himself as PW.1 and

examined the attestors and scribe of agreement of sale as PWs.2 to 5

and marked Exs.A1 to A7. The first defendant was examined himself

as DW.1 and one Ch.Srinivasa Chary, Senior Assistant, District

Registrar's Office, Karimnagar, as DW.2 and marked Exs.B1 to B10.

Exs.C1 and C2 are marked through DW.2.

11. Learned counsel for the appellant-plaintiff would contend that

the defendants denied execution of Ex.A1 agreement of sale on the

one hand and asserted that the plaintiff has not given any notice to

the defendants before filing the suit and thus they had taken different

stands but the trial Court did not appreciate the conduct of the

defendants. Learned counsel would further argue that PWs.2 to 5 are

the attesting witnesses and scribe of the agreement of sale and thus

plaintiff proved execution of Ex.A1 but the trial Court without

appreciating the same in a proper perspective, dismissed the suit filed

for specific performance. Further, the Court below observed that

though the plaintiff claims to have paid the entire consideration to the

defendants, a duty is cast on him to demand the defendants to get

ready to perform their part of contract. He would also states that the

Court below reached to a wrong conclusion by observing that 'this

Court is also not inclined to believe the theory of the plaintiff for the

reason that he never thought of issuing notice to the defendants to

the filing of the suit' and therefore requested this Court to set aside

the Common Judgment.

12. The plaintiff, who is the defendant in O.S.No.130 of 2013,

submitted that he and the father of the vendor of the defendants, who

are plaintiffs in O.S.No.130 of 2013, are own brothers and in partition

the suit schedule property fell to the share of father of the vendor of

the defendants namely Burra Yellaiah. He offered to sell the suit land

to him in connection with his daughter's marriage and he agreed to

purchase the same and sale consideration is settled at Rs.6,77,250/-

and both of them entered into an agreement of contract on

15.05.2009 and the plaintiff paid Rs.50,000/- as token amount and

later agreed to pay a certain amount of sale consideration on

22.05.2009 and the remaining balance sale consideration on or before

15.10.2009. Accordingly he paid an amount of Rs.3,20,000/- to Burra

Yellaiah on 22.05.2009 and Burra Yellaiah performed his daughter's

marriage on 12.06.2009 and unfortunately died on 17.09.2009

leaving behind his three daughters as his legal heirs. On 15.10.2009

he approached the daughters of Burra Yellaiah and requested them to

receive the balance sale consideration and execute a registered sale

deed in his favour and they denied it. Therefore, he got issued a legal

notice to the daughters of Burra Yellaiah and after receiving the said

notice, the daughters issued a reply denying the transaction. When

the matter was placed before the elders, they advised the parties to

settle the matter amicably but they did not come forward for

settlement. On 09.05.2010 the elders decided that the defendants

should execute the register sale deed in his favour by receiving

Rs.3,25,000/- totalling Rs.7,02,812/-. On 16.05.2010 accordingly he

paid the sale consideration to the defendants on the same day and

they executed simple sale deed but they demanded additional amount

of Rs.2,00,000/- but he refused to pay the same. He is in possession

of the suit schedule property from 2009 onwards by raising cotton

and paddy crops.

13. Burra Yellaiah executed gift settlement deed in favour of his

daughter Burra Sharada and she in turn executed a sale deed in

favour of the defendants herein on 04.12.2009 for an amount of

Rs.1,62,800/-. Burra Sathaiah issued a legal notice on 01.09.2009 to

the defendants and Burra Sharada in which he stated that Burra

Yellaiah is his elder brother he entered into an agreement of sale with

him on 15.05.2009 for a valid consideration of Rs.3,15,000/- per acre

and paid Rs.50,000/- as advance and agreed to pay Rs.3,20,000/- on

22.05.2009 to meet the marriage expenses of his younger daughter-

Burra Sharada and paid the said amount. He also issued receipt in

his favour and delivered possession of the lands. He agreed to pay the

balance sale consideration of Rs.3,07,250/- on 15.10.2009.

Thereafter, he performed the marriage of his daughter on 12.06.2009

and died on 17.09.2009. When the plaintiff approached the legal heirs

of late Burra Yellaiah on 15.10.2009, they refused to execute the

registered sale deed as such the plaintiff called upon them to receive

the consideration and execute the sale deed in his favour. In the reply

notice dated 20.03.2010 they denied the execution of agreement of

sale dated 15.09.2009 and payment of amounts as stated by the

plaintiff and further stated that Burra Yellaiah died on 12.09.2009

but not on 17.09.2009 and he performed his daughter's marriage on

12.06.2009 but not with the amounts received from the plaintiff and

he executed a gift deed No.1085 of 2009 on 28.05.2009. She in turn

executed the sale deed in favour of the defendants herein on

04.12.2009 at Sub Registrar Office, Gangadhara Mandal, Karimnagar

District, and delivered possession on the same day. Plaintiff never

approached them on 15.10.2009 and has not requested them to

receive the amount.

14. The legal notice issued by the plaintiff is dated 01.09.2009 in

which he mentioned about the subsequent events i.e., 17.09.2009

and 15.10.2009 and moreover as per the reply notice it was received

by them on 02.03.2010 i.e., after five months. Therefore this Court

finds that date of issuance of legal notice may be incorrect. The

plaintiff has not filed the agreement of sale entered into between

himself and Burra Yellaiah on 15.05.2009. As pointed out by the trial

Court the plaintiff never issued any legal notice to Burra Yellaiah

during his life time. Though he stated that Burra Yellaiah issued

receipt in his favour, he has not filed the same for the reasons best

known to him.

15. The case of the plaintiff is that he approached the legal heirs of

Burra Yellaiah on 15.10.2009 and requested them to receive the

balance sale consideration and execute the registered sale deed in his

favour but they postponed it on one or other pretext and as such he

gave legal notice to them. Even in the written statement filed in

O.S.No.130 of 2013 he stated the above facts and further stated that

the matter was placed before the elders but the daughters of Burra

Yellaiah did not come forward for settlement on 09.05.2010. The

elders directed them to execute registered sale deed on receiving

Rs.7,02,812/- and accordingly he paid the same on 16.05.2010 and

the defendants executed simple sale deed in favour of the plaintiff

agreeing to execute a registered sale deed in due course of time at that

point of time. The plaintiff alleged that the defendants demanded an

excess amount of Rs.2,00,000/- but he refused to pay. Perusal of the

sale deed dated 16.05.2010 shows that the defendants executed sale

deed in favour of plaintiff for an extent of Ac.2.06½ guntas and he

paid the entire amount to them on the same day and also handed

over possession and agreed to register the sale deed in his favour as

and when he made a request. It is the further case of the plaintiff that

he entered into an agreement of sale with Burra Yellaiah for an

amount of Rs.6,77,250/- and also paid Rs.3,70,000/- during his life

time before the marriage of his daughter and he has to pay the

balance of Rs.3,07,250/- on 15.10.2009 but the said amount was not

received by the legal representatives and they have not executed the

sale deed in favour of the plaintiff. The case of the defendants is that a

gift deed was executed in favour of Burra Sharada by her father vide

document No.1085 of 2009 on 28.05.2009 and she in turn executed a

registered sale deed on 04.12.2009 and it clearly shows that there is

no correlation between the agreement of sale entered by the plaintiff

herein with Burra Yellaiah on 15.05.2009 and the agreement of sale

entered by him with the defendants herein on 16.05.2010. As per

previous agreement he has to pay the balance of Rs.3,07,250/-, but

he paid Rs.7,02,812/- on 16.05.2010.

16. The defendants denied the agreement of sale dated 16.05.2010

and further stated that they filed I.A.No.299 of 2010 seeking

temporary injunction, which was allowed on 19.08.2011 after due

contest and the said was confirmed by the Appellate Court in

C.M.A.No.1 of 2011 dated 02.04.2012 but the copies of the same are

not filed before the Court. It is also brought in evidence that

O.S.No.88 of 2012 is filed by one Parasuram against the defendants.

17. Admittedly in a suit for specific performance it is for the

plaintiff to establish the agreement of sale and payment of sale

consideration. But D.W.2 the Senior Assistant in the District Registrar

Office produced the register of non judicial stamp sales maintained by

the stamp vendor by name N.Anjaiah for the period from 01.01.2010

to 31.07.2010 but on 15.05.2010 as per S.No.300 the stamp paper

was not sold and only S.Nos.3088 to 3121 were sold, there are no

entries regarding sale of non-judicial stamp worth Rs.10/- to Burra

Sataiah on 15.05.2010. Exs.C1 and C2 are marked through him. The

trial Court mainly considered the evidence of D.W.2 regarding the

discrepancy in the stamps purchased by the plaintiff for execution of

agreement of sale and disbelieved his version and accordingly

dismissed the suit. In the agreement of sale though the extent of land

is mentioned as Ac.2.06½ guntas with boundaries, later it was again

mentioned as Ac.2.36½ guntas for Rs.7,02,812/- and the said

mistake regarding the extent was confronted to P.Ws.2 to 4 during the

cross-examination. Though plaintiff stated that on 09.05.2010 a

panchayat was conducted before the elders viz., Gantyala Raj Kumar,

Vemula Hemanth and Buthagadda Chander, he has not examined

any of the elders to substantiate his version. Location of the suit

schedule property is not mentioned in the agreement of sale. The

document dated 16.05.2010 was mentioned as a sale deed instead of

agreement of sale and it was signed by one Burra Padma but not by

the first defendant herein. The defendants herein clearly stated that

Burra Yellaiah executed registered gift deed in favour of Burra

Sharada and they purchased the same from her under registered sale

deed and mutated their names by the Thasildar Gangadhar Mandal

and issued pattadar pass books and title deeds in their favour and

now they are in possession of the suit schedule land and only when

the plaintiff herein tried to interfere with their possession they filed

suit for injunction.

18. The main argument of the defendants herein is that when the

said agreement was executed on 16.05.2010 why the plaintiff kept

quiet till 2012 without demanding them for execution of the registered

sale deed and they further contended that no notice was issued to

them.

19. The trial Court considered both the arguments and evidence on

record and rightly dismissed the suit filed for specific performance as

the defendants herein established their possession of the suit

schedule property decreed the suit for permanent injunction.

20. In view of my discussion in the above paragraphs, this Court

finds that no reason to interfere with the judgment under appeal. In

the result the appeal is dismissed. However there shall be no order as

to costs.

21. Miscellaneous Petitions, if any, pending in this appeal shall

also stand dismissed in the light of this final order.

____________________ P.SREE SUDHA, J.

23rd AUGUST, 2022.

PGS