P. Satendar vs Syed Mohammad Abdul Quadeer
2022 Latest Caselaw 6263 Tel

          THE HON'BLE SMT. JUSTICE P. SREE SUDHA

                     A.S.No.157 of 2011

JUDGMENT :

This Appeal is filed against the judgment and

decree dated 30.06.2010 passed in O.S.No.40 of 2006

by the Senior Civil Judge, Sangareddy, Medak District.

The appellant herein is the 5th defendant, the 1st

respondent herein is the plaintiff and respondents 2 to 5

herein are defendants 1 to 4 in the suit O.S.No.40 of

2006.

For the sake of convenience, the parties herein

are referred to as they are arrayed in O.S.No.40 of 2006

before the trial Court.

The plaintiff filed O.S.No.40 of 2006 against the

defendants seeking specific performance of the suit

agreement dated 05.09.2005. Vide I.A.No.1149 of 2007

defendants 2 to 4 were impleaded and vide order

dated 10.09.2007 in I.A.No.1256 of 2007, defendant

No.5 was brought on record being the subsequent

purchaser of the suit schedule property. The plaintiff

stated that the 1st defendant is the owner and

possessor of the land admeasuring Ac.3-12 guntas in

Sy.No.376 denoted as Sy.No.376/U situated at Muthangi

Village, Patancheru Mandal, Sangareddy District.

Initially, the mother of the 1st defendant, by name Afsar

Khanam, was the owner of the suit land. During her life

time, she orally gifted the suit land in favour of the 1st

defendant on 10.10.2004 and later she died on

27.10.2004 leaving behind the 1st defendant as her sole

legal heir. As the 1st defendant is the sole legal heir, the

property is devolved upon him after the death of his

mother. Later, he offered to sell the suit schedule

property for a total consideration of Rs.9,90,000/-

i.e., @ Rs.3,00,000/- per acre. The plaintiff paid

Rs.2,00,000/- to the 1st defendant by way of earnest

money on 05.09.2005 itself. On the same day, the 1st

defendant executed an agreement of sale on a stamp

paper in favour of the plaintiff and also issued receipt

for Rs.2,00,000/-. Later, the 1st defendant agreed to

measure the suit land and to get the land mutated in

his name, so that he can execute sale deed in favor of

the plaintiff by receiving balance sale consideration.

The plaintiff also paid Rs.25,000/- to the 1st defendant on

02.12.2005 towards mutation charges and the 1st

defendant also issued receipt for the same. Though the

plaintiff was ready to comply his part of the contract by

paying the balance sale consideration, as the 1st

defendant did not come forward to execute sale deed

in his favour, after waiting for a considerable period, the

plaintiff issued legal notice to the 1st defendant on

09.12.2005, to which the 1st defendant also got issued

reply notice on 08.12.2005. The plaintiff got issued a

reply notice to the counsel for the 1st defendant on

24.12.2005 by marking a copy to the 1st defendant. But,

the notice sent to the 1st defendant was returned with

an endorsement that no such person in the address. In

the legal notice issued by the 1st defendant, he

admitted regarding execution of agreement of sale

and receipt of total consideration of Rs.2,25,000/-. As

the plaintiff is ready and willing to pay the balance sale

consideration, he filed the suit for specific performance

of Agreement of Sale dated 05.09.2005 on 03.02.2006.

The 1st defendant filed written statement and

denied the execution of the agreement of sale, but

stated that the plaintiff obtained his signatures on white

papers and created the agreement of sale and other

receipts.

Defendant Nos.2 to 4 did not file any written

statement.

The 5th defendant filed a separate written

statement. He admitted that the mother of the 1st

defendant is the owner of the suit schedule property.

The 1st defendant along with his sons has executed

registered sale deed in favour of defendant Nos.2 to 4

vide Document No.17503/05 dated 29.11.2005 in

respect of the suit schedule property. He also stated

that defendant Nos.2 to 4 have sold the suit schedule

property to the 5th defendant by way of registered sale

deed vide document No.1188/07 dated 09.01.2007 and

since then, he is in peaceful possession and enjoyment

of the suit schedule property.

A rejoinder was filed by the plaintiff on 18.09.2006

in which he submitted that the 1st defendant appeared

in the matter on 06.03.2006 and filed his written

statement on 17.08.2006 i.e., nearly after 4½ months of

his appearance. As per his written statement, he

admitted his signature on the agreement of sale and

thus the entire burden is upon him to establish that the

agreement of sale is created. In fact, the agreement

of sale was attested by his own son Syed Masood and

another person by name Ratnam. The 1st defendant

also executed a receipt for Rs.2,00,000/- received by

him as earnest money and signed on the receipt on

which revenue stamps are affixed. On the same

receipt, the 1st defendant has also signed on 02.12.2005

in token of receipt of additional amount of Rs.25,000/-.

It also bears the signature of his son Syed Masood and it

was attested by two other persons by name Ateeq and

Asgar. He filed the copies of the agreement of sale

and receipts and he has not specifically denied the

execution of receipts in his written statement. He

himself got issued legal notice on 08.12.2005 through his

counsel, in which he admitted the execution of

agreement of sale and also receipt of the sale

consideration, but stated that the notice shows that the

agreement of sale is terminated and cancelled by the

1st defendant because of non-payment of remaining

sale consideration. After receiving the said notice on

10.12.2005, the plaintiff sent reply notice through his

counsel on 24.12.2005 stating that there is no default in

performing his part of contract. As the 1st defendant is

stranger, the question of obtaining his signatures on the

white paper does not arise.

The plaintiff was examined as PW.1. He examined

the mediator on his behalf as PW.2. Both of them were

not cross-examined by D1 to D4. But, they were cross-

examined by D5 only.

In the cross-examination of PW.1, it was suggested

that no separate steps were taken by the plaintiff for

cancellation of the sale deed executed in favour of the

5th defendant. PW.2 supported the version in all

material particulars and stated that the agreement of

sale executed by the 1st defendant in favour of the

plaintiff and he also paid Rs.2,00,000/- on the date of

agreement and later he came to know about payment

of Rs.25,000/- to the sons of the 1st defendant. Later, he

came to know that the defendants are intending to

cancel the agreement of sale and returned the

amount with some addition, but the plaintiff did not

agree for the same.

The 5th defendant was examined as DW.1. He

stated that the agreement of sale was executed by

defendant Nos.2 to 4 in his favor for a consideration of

Rs.6,30,000/-. Though it was executed in the year 2007,

in fact, the prevailing market value at that time was

Rs.17,00,000/- per acre. But, in Ex.D-1 it was mentioned

as Rs.2,00,000/- per acre. The pattadar pass book and

title deed were issued in the name of the 5th defendant

under Exs.B-5 and B-6. Exs.B-3 and B-4 were issued in the

name of the mother of the 1st defendant. He filed

implead petition in the suit after purchase of the suit

schedule property. When he approached the Mandal

Revenue Officer for mutation he was informed about

the suit. The 1st defendant along with his sons has

executed registered sale deed in favour of Defendant

Nos.2 to 4 vide Document No.17503/05 dated

29.11.2005 in respect of the suit schedule property.

Defendant Nos.2 to 4 have sold the suit schedule

property to the 5th defendant by way of registered sale

deed vide document No.1188/07 dated 09.01.2007 and

since then, he is in peaceful possession and enjoyment

of the suit schedule property

The trial Court, after considering the evidence

adduced by both sides and also the documents filed

by learned counsel for the respective parties vide

judgment and decree dated 30.06.2010 decreed the

suit with costs in favour of the plaintiff and directed the

1st defendant to execute registered sale deed within

three months in favour of the plaintiff in respect of the

suit schedule property after receiving the balance sale

consideration and also directed the 5th defendant to

deliver possession of the suit schedule property to the

plaintiff. It is further directed that if the defendants

failed to comply the same, the plaintiff is entitled for

getting sale deed executed and delivery of possession

of suit land by due process of law through the court.

Aggrieved by the said judgment and decree

dated 30.06.2010 in O.S.No.40 of 2006, the 5th

defendant preferred this appeal mainly contending

that he purchased the suit schedule property from the

legal heirs of the mother of the 1st defendant through

respondent Nos.3 to 5. He has no knowledge about the

agreement entered between respondent Nos.1 and 2.

He is having entire link documents of the schedule

property and all the original documents are with him, as

such, he is protected under Section 19 of the Transfer of

Property Act. The observation made by the trial Court

that the appellant is not entitled to claim benefit under

Section 19 of the Specific Relief Act is incorrect. The

judgment of the trial Court is contrary to Section 20 of

the Specific Relief Act. The trial court did not give

finding regarding readiness and willingness of the

plaintiff in the suit. He further stated that non-

compliance of provision under Order 2 of CPC renders

the relief incapable as no relief is sought by the plaintiff

to claim a distinct relief in one suit. The mutation of

entries before the revenue authorities is governed

under the provisions of A.P.Record of Rights, Pattedar

and Pass Book Act, as such under Section 9 of the said

Act, there is an exclusive bar for the Civil courts to

conduct enquiry under Sections 9 and 4 of CPC as

such, the trial Court ought not to have granted the

relief as prayed for. As per Order 4 Rule 3 of CPC, there

is a non-compliance of requirements under Order 6

Rule 7 CPC, as such, the trial Court ought not to have

decreed the suit. As per Section 19 of the Specific

Relief Act, the transaction interse between the

subsequent purchaser and prior purchaser in time are

one and the same and then only, Section 19 of the

Specific Relief Act comes into picture. Though the

principal defendant filed written statement, he did not

step into the witness box and therefore, the trial court

erred in admitting and decreeing the suit.

He further stated that granting the relief without

any plea or sufficient proof with regard to the financial

capacity of the plaintiff is incorrect as the 1st defendant

entered into an agreement of sale with the plaintiff.

The trial Court ought to have considered the fact that

as per Section 104 of the Indian Evidence Act, whether

the 1st defendant had any power to convey the suit

schedule property in favour of the plaintiff, as there is

no gift deed executed in his favour by his mother. As

per the pleading and demur of the 1st defendant, it

shows that there has been collusion between the 1st

defendant and the plaintiff with a malafide intention to

defeat the rights of the appellant.

Learned counsel for the appellant/5th defendant

has contended that the plaintiff had filed E.P.No.20 of

2017 in December 2016 though the suit was decreed

on 30.06.2010 i.e., after 6 years, which clearly shows that

he has no financial capacity to pay the balance sale

consideration amount.

In support of his contention, learned counsel for

the appellant relied upon a decision of the Hon'ble

Supreme Court in KALAWATI (D) Vs.. RAKESH KUMAR1,

wherein the Hon'ble Supreme Court held as follows :-

"There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity

AIR 2018 SUPREME COURT 960

of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized.... The factum of readiness and willingness to perform plaintiff's 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.....".

He also relied upon the decision of the Hon'ble

Supreme Court in M/s.J.P.Builders and another Vs.

A.Ramadas Rao and another2 wherein the Hon'ble

Supreme Court held as follows :-

"Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and

(S.L.P.(C).Nos.14985-14986 of 2010),

willingness on the part of the 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. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances".

Learned counsel for the 1st respondent/plaintiff

submits that the 1st respondent/plaintiff has entered into

an agreement of sale with the 1st defendant and his

sons and the 1st defendant and his sons have executed

an agreement of sale in his favour by taking a sum of

Rs.2,00,000/- by way of earnest money and Rs.25,000/-

towards mutation charges and hence, he is rightful

owner and the plaintiff has produced sufficient

documentary evidence in support of his contention to

the effect that the 1st defendant along with his sons has

executed an agreement of sale in his favour. In support

of his contention, learned counsel for the 1st

respondent/plaintiff relied upon a decision of the

Hon'ble Supreme Court in THOMSON PRESS (INDIA)

LIMITED Vs. NANAK BUILDERS AND INVESTORS P. LTD3,

wherein the Hon'ble Supreme Court held as follows :-

"It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parities to a litigation. Discussing the principles of lis pendens, the Privy Council in the case of Gouri Dutt Maharaj v. Sukur Mohammed and Ors, AIR 1948 PC 147, observed as under:

"The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The

AIR 2013 SUPREME COURT 2389

applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings".

Admittedly, the 5th defendant preferred an

appeal before this court in 2011. Even if the plaintiff files

E.P for execution of the sale deed, in view of pendency

of appeal, the E.P. cannot be decided, as such, merely

because he has not filed the E.P. immediately after the

decree of the trial court, it cannot be presumed that he

has no financial capacity to pay the balance amount.

Infact, the plaintiff paid Rs.2,00,000/- on the date of

agreement of sale and Rs.25,000/- on 02.12.2005 and

also issued legal notice on 09.12.2005 itself requesting

the 1st defendant to execute registered sale deed in his

favour as he is ready and willing to perform his part of

contract. When the 1st defendant terminated the

agreement of sale vide reply notice dated 08.12.2005,

the plaintiff gave another notice through his counsel on

24.12.2005 and also marked a copy to the 1st

defendant, but the 1st defendant managed the same

returned with an endorsement that no such person in

the address. Even after filing of the suit though the

defendant No.1 filed written statement, he has not

entered into the witness box and adduced any

evidence. In fact, neither D1 nor D2 to D4 cross

examined PWs.1 and 2 and they never contested the

matter seriously and only the 5th defendant cross-

examined the witnesses and contested the matter. The

1st defendant admitted his signature on the agreement

of sale and also on the receipts issued by him.

Admittedly, the sale deed executed in favour of the 5th

respondent is after filing of the suit by the plaintiff and it

is a subsequent transaction, that too during pendency

of the suit proceedings before the trial court and thus, it

is hit by Section 53 of the Transfer of Property Act and

the same is not valid in the eye of law. As a bonafied

purchaser, it is for the 5th defendant to enquire about

the prior transaction, but he failed to do so. Though the

matter is pending before the trial court, the 5th

defendant has not enquired about the same and

purchased the suit schedule property from D2 to D4.

On the other hand, the plaintiff examined himself as

PW.1 and also got examined the mediator as PW.2 on

his behalf. Considering the oral and documentary

evidence adduced by the plaintiff, the trial court rightly

decreed the suit in favour of the plaintiff. In fact, it is for

the first defendant to question about the readiness and

willingness on the part of the plaintiff to perform his part

of contract, but not by the 5th defendant, who is a

stranger to the transaction. The 1st defendant along

with his legal representatives has executed sale deed

in favour of defendant Nos.2 to 4 and execution of such

sale deed in favour of defendant Nos.2 to 4 is in

violation of the agreement of sale executed in favour

of the plaintiff. As no valid title was passed on to

defendant Nos.2 to 4, they inturn cannot pass a better

title to the 5th defendant. Moreover, in the year 2005,

the plaintiff entered into the agreement of sale with the

1st defendant for the market value at the rate of

Rs.3,00,000/- per acre. But, the 5th defendant, in the

year 2007 i.e., after two years, entered into sale

transaction for a market value at the rate of

Rs.2,00,000/- per acre, though the market value at that

time was Rs.17,00,000 per acre. It clearly shows the

collusion between D1, D2 to D4 and D5. Therefore, the

allegation of the 5th defendant that there was collusion

between the plaintiff and the first defendant is not

tenable. The trial Court also observed that the 5th

defendant has not enquired with D2 to D4 or with D1

regarding the agreement of sale entered by D1 with

the plaintiff and even after filing of the suit, he simply

filed an application vide I.A.No.1256 of 2007 before the

trial Court seeking to implead him and contested the

matter on the ground that he is a bonafide purchaser

and stated that he parted with the money towards

purchase of the suit schedule property innocently

without the knowledge of the prior agreement.

Therefore, the trial Court rightly observed that he is not

a bonafide purchaser and he is not entitled for the

benefit of Section 19 of the Specific Relief Act.

Moreover, it was held that being a subsequent

purchaser, the 5th defendant is subordinate to any

decree that could be passed in favour of the plaintiff

and accordingly answered the issue in favour of the

plaintiff and against the 5th defendant. The 1st

defendant executed agreement of sale in favour of the

plaintiff. Though the 1st defendant filed written

statement, he did not enter into the witness box and he

has not even cross-examined PWs.1 and 2 and not

contested the matter. Therefore, this Court is of the

view that the trial Court has rightly decreed the suit in

favour of the plaintiff and against the defendants.

Hence, there are no merits in the appeal and the same

is liable to be dismissed.

Accordingly, the appeal is dismissed confirming

the judgment and decree dated 30.06.2010 in

O.S.No.40 of 2006 passed by the trial Court. No costs.

Pending miscellaneous applications, if any, shall

stand closed.

________________ P. SREE SUDHA, J

Date: 30.11.2022 Prv