Tummala Suresh Chandra ... vs G.Sita Ram Chander
2022 Latest Caselaw 4396 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

       APPEAL SUIT Nos.559, 560, 561 & 562 of 2009 and
                  Tr.A.S.No.267 of 2013

COMMON JUDGMENT :

        The parties in all these appeals are one and the same and the

point involved is also the same.       Though separate evidence is

recorded by the trial Court in each case, the contents are one and

the same except to the extents of lands covered in each of the suit

correspondent to the dates of agreements in each suit. Therefore,

all these appeals are heard together and are being disposed of by

way of common judgment.

2. For the sake of convenience, the parties are referred to as

plaintiff and defendant.

3. Plaintiff filed all the suits before the Court of Senior Civil

Judge, Siddipet seeking decrees for Specific Performance of

Agreements of Sale of land to a total extent of Ac.27-10 gts.,

covered under nine sale deeds. As already stated supra, the

pleadings and evidence in all the suits are one and the same and the

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trial Court decreed all the suits on 28.07.2009. In all these appeals,

defendant is the appellant.

4. A.S.No.559 of 2009 is arising out of the judgment and

decree in O.S.No.145 of 2006, dated 28.07.2009 which was filed

by the plaintiff seeking to direct the defendant to execute registered

sale deed transferring and conveying all his rights, title and interest

in the suit schedule property i.e. agricultural land admeasuring

Ac.6.19 gts., in Sy.Nos.171/1, 160/E and 166/U, situated at

Kallakal village, Toopran Mandal, Medak District in favour of the

plaintiff by receiving the balance sale consideration of

Rs.1,60,000/- (covered under agreement of sale dated 27.10.2003)

within the time fixed by the Court and further to grant perpetual

injunction restraining the defendant, his agents, servants or any one

claiming through or under him from interfering with the plaintiff's

peaceful possession and enjoyment of the suit schedule property

and also to award costs.

5. A.S.No.560 of 2009 is arising out of the judgment and

decree in O.S.No.146 of 2006, dated 28.07.2009 which was filed

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by the plaintiff seeking to direct the defendant to execute registered

sale deed transferring and conveying all his rights, title and interest

in the suit schedule property i.e. agricultural land admeasuring

Ac.2.20 gts., in Sy.Nos.159/VUU, 159/RU, 159/RUU, 159/LU,

Ac.4.37 gts., in Sy.Nos.166/AA, 166/EE and 169 (Total land

admeasuring Ac.7.17 gts.), situated at Kallakal village, Toopran

Mandal, Medak District in favour of the plaintiff by receiving the

balance sale consideration of Rs.2,05,000/- (covered under

agreement of sale dated 30.10.2003) within the time fixed by the

Court and further to grant perpetual injunction restraining the

defendant, his agents, servants or any one claiming through or

under him from interfering with the plaintiff's peaceful possession

and enjoyment of the suit schedule property and also to award

costs.

6. A.S.No.561 of 2009 is arising out of the judgment and

decree in O.S.No.147 of 2006, dated 28.07.2009 which was filed

by the plaintiff seeking to direct the defendant to execute registered

sale deed transferring and conveying all his rights, title and interest

in the suit schedule property i.e. agricultural land admeasuring

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Ac.7.09 gts., in Sy.Nos.160/E, 168/EE, 160/A, 168/A situated at

Kallakal village, Toopran Mandal, Medak District in favour of the

plaintiff by receiving the balance sale consideration of

Rs.1,80,000/- (covered under agreement of sale dated 10.11.2003)

within the time fixed by the Court and further to grant perpetual

injunction restraining the defendant, his agents, servants or any one

claiming through or under him from interfering with the plaintiff's

peaceful possession and enjoyment of the suit schedule property

and also to award costs.

7. A.S.No.562 of 2009 is arising out of the judgment and

decree in O.S.No.149 of 2006, dated 28.07.2009 which was filed

by the plaintiff seeking to direct the defendant to execute registered

sale deed transferring and conveying all his rights, title and interest

in the suit schedule property i.e. agricultural land admeasuring

Ac.3.30 gts., in Sy.Nos.158/2/2/A and 158/2/2/AA situated at

Kallakal village, Toopran Mandal, Medak District in favour of the

plaintiff by receiving the balance sale consideration of

Rs.1,00,000/- (covered under agreement of sale dated 07.11.2003)

within the time fixed by the Court and further to grant perpetual

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injunction restraining the defendant, his agents, servants or any one

claiming through or under him from interfering with the plaintiff's

peaceful possession and enjoyment of the suit schedule property

and also to award costs.

8. Tr.A.S.No.267 of 2013 is arising out of the judgment and

decree in O.S.No.148 of 2006, dated 28.07.2009 which was filed

by the plaintiff seeking to direct the defendant to execute registered

sale deed transferring and conveying all his rights, title and interest

in the suit schedule property i.e. agricultural land admeasuring

Ac.2.15 gts., in Sy.Nos.156/RUU and 157/A, situated at Kallakal

village, Toopran Mandal, Medak District in favour of the plaintiff

by receiving the balance sale consideration of Rs.60,000/- (covered

under agreement of sale dated 14.11.2003) within the time fixed by

the Court and further to grant perpetual injunction restraining the

defendant, his agents, servants or any one claiming through or

under him from interfering with the plaintiff's peaceful possession

and enjoyment of the suit schedule property and also to award

costs.

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9. The oral and documentary evidence will be discussed as to

the extent required for proper appreciation of facts.

10. The case in brief of the plaintiff is that the defendant is the

absolute owner and possessor of agricultural lands admeasuring

Ac.27-10 gts., in Sy.Nos.156 to 160, 168, 169 and 171 of Kallakal

village and the defendant purchased the said lands under registered

sale deeds dated 24.05.2003, 14.07.2003, 16.07.2003, 28.08.2003,

19.09.2003 and 22.10.2003. It is also the specific case of the

plaintiff that the defendant offered to sell the lands for valuable

consideration and earnest money was paid by him and he was

willing to perform his part of the contract, but the defendant did not

turn up to execute the sale deeds in favour of the plaintiff and kept

postponing the same. The recitals of the plaint also disclose that

plaintiff is known to the defendant for more than ten years as on

the date of filing of the suit.

11. On the other hand, the case of the defendant in brief is that

the defendant was the absolute owner of the subject land to a total

extent of Ac.27-10 gts., in Kallakal village, having purchased the

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same under different registered sale deeds from the pattadars and

was in possession of the said land and also applied for mutation of

his name in the revenue records and accordingly, the Mandal

Revenue Officer, Toopran passed orders dated 12.08.2004

mutating his name. Pursuant to it, pattadar passbooks and title

deeds were also issued in favour of the defendant. It is the specific

contention of the defendant that he had no intention to sell the

property and the defendant being the Managing Director of

M/s.Kamal Spring Fields Pvt. Ltd., whereas, his wife and his friend

by name P.B.S.V.Satyanarayana Raju and his wife are the share

holders in the said Company, purchased eleven acres of land in

Sy.Nos.388 P, 523 P and 524 P of Gundla Pochampally village,

Medchal Mandal and the vendor has applied to HUDA (Hyderabad

Urban Development Authority) for grant of layout. Further, the

said Real Estate Company purchased property under registered sale

deeds dated 08.03.2004 and 15.03.2004 and later HUDA granted a

draft layout on 30.11.2004. As per the norms of HUDA, 25% of

the plots which are to be developed, should be mortgaged in favour

of HUDA, till the final layout is sanctioned. As the Company

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faced financial difficulties in procuring the funds for undertaking

development of the land situated at Gundla Pochampally village, at

that juncture i.e. in the month of February 2005, the plaintiff

expressed his willingness to purchase 20 plots, provided, the

Company reduces the price and gives security for completing the

development activities and also for obtaining final layout. It is the

further pleading of the defendant that the plaintiff insisted the

defendant to deposit the title deeds and link documents pertaining

to the property of Kallakal village and insisted the defendant to

make signatures on blank agreements of sale which would be

returned, after approval of the final layout and that the plaintiff got

prepared the blank agreements of sale on Rs.100/- non-judicial

stamp papers numbering twelve, consisting of half-printed

agreement proformas with blanks. Further, the defendant signed

all the blank agreement proformas and also handed over nine

original registered sale deeds pertaining to the land at Kallakal

village to the plaintiff and that the plaintiff filed the suits on the

basis of blank agreements of sale by interpolating the particulars.

It is also the contention of the defendant that the plaintiff purchased

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land to an extent of 5,882.3 square yards covered under twenty

registered sale deeds, out of which, eight were executed in favour

of the plaintiff, nine were executed in favour of plaintiff's wife

named G.Shanthi, two were executed in favour of plaintiff's son

named Ajithesh and one sale deed was executed in favour of

plaintiff's sister's daughter named K.Prathibha and all the said sale

deeds were executed on 23.02.2005 and 11.05.2005.

12. The recitals of the written statement further disclose that

neither the defendant executed agreements of sale in favour of the

plaintiff with respect to the suit schedule properties nor he received

any amounts from the plaintiff. The plaintiff and the brother of the

defendant by name Sri Mahesh Chandra Benerjee, agreed to

purchase an extent of 600 square yards in plot bearing No.289 of

Vijaya Co-operative Society, Jubilee Hills, Hyderabad and the

brother of the defendant paid an amount of Rs.15,00,000/- by way

of demand draft, for which, the plaintiff obtained agreement of

sale-cum-GPA on 26.08.2004 in the name of his wife G.Shanthi

and it was agreed that the plaintiff would sell the property and

distribute the amount between the plaintiff and the brother of the

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defendant. Accordingly, the wife of the plaintiff sold the said

property to third parties vide registered sale deed dated 11.05.2006

and fearing of possible civil and criminal action by the brother of

the defendant, the plaintiff utilized the blank agreements of sale

which are with different dates, for filing the suits, taking advantage

of the fact that the original sale deeds (link documents) of the suit

schedule property are with him.

13. It is the specific contention of the defendant that if at all he

has executed the agreements of sale on different dates in the year

2003 in favour of the plaintiff, he would not have applied for

mutation and obtained pattadar passbooks on his name in the year

2004 and that the defendant has no obligation to execute sale deeds

basing on the fabricated agreements, and therefore, the suits are

liable to be dismissed.

14. A detailed rejoinder was filed by the plaintiff in all the suits

contending inter alia that the defendant got the agreements of sale

prepared on the stamp papers purchased by him and after duly

filling up the blanks on the agreements of sale, the defendant has

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signed on them. Further, the plaintiff is cultivating the suit

schedule land which is in his possession from the date of

agreement and that the twenty sale deeds executed by the

defendant relate to individual transactions which are unconnected

with the present agreements of sale.

15. Basing on the pleadings, the trial Court has framed the

following issues for trial in all the suits:

1. Whether the plaintiff is entitled for specific performance of agreement of sale directing the defendant to execute the registered sale deed in favour of the plaintiff by receiving balance sale consideration ?

2. Whether the defendant had deposited the title deeds with the plaintiff as security, in respect of some transaction at Gundla Pochampally village, Medchal, R.R.District as alleged by the defendant?

3. Whether the suit agreement is fabricated, all contents of the agreement are subsequently filled as alleged by the defendant ?

4. To what relief ?

16. During the course of trial, on behalf of the plaintiff, PWs.1

to 3 were examined and Exs.A-1 to A-8 were marked. On behalf

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of the defendant, DWs.1 to 3 were examined and Exs.B-1 to B-40

were marked.

17. The trial Court, after considering the oral and documentary

evidence on record, decreed all the suits for specific performance

of agreements of sale, directing the defendant to execute the

registered sale deeds in respect of the suit schedule properties in

favour of the plaintiff.

18. The points for consideration in these appeals are;

1. Whether the agreements of sale in all the suits are genuine and binding on the defendant ?

2. Whether there is meeting of minds of plaintiff and defendant in entering into the agreements of sale ?

3. Whether the trial Court is justified in decreeing the suits ?

19. Heard learned counsel for the appellant and also the learned

counsel for the respondent and perused the record.

20. On perusal of the record, it is evident that Exs.B-1 to B-40

are filed in O.S.No.145 of 2006 and no separate documents are

marked in any of the other suits.

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21. It is urged by the learned Senior Counsel for the appellant

Sri Y.Srinivas Murthy, that the nature of the document i.e. the

agreement of sale has to be discussed in order to come to a

conclusion whether the plaintiff is entitled for a decree of specific

performance basing on the said document and whether the

agreement of sale is a document intended for contract to sell the

property entered between both the parties, and whether there is

consensus ad idem among the parties, is to be looked into. It is

further contended by the learned Senior Counsel that the

agreements of sale in all the suits are said to be doubtful and do

not instill the confidence of any prudent man to conclude the same

as agreements of sale as the said agreements do not disclose as to

what is the nature of transaction intended to be entered into by the

parties. Further, the stamp paper of the document appears to have

been purchased on 25.10.2002, whereas, the documents appear to

have been executed on 27.10.2003. Furthermore, the important

aspects of the documents are hand-written and said documents are

stereo-type, which are intended to be of security rather than the

agreements of sale. It is also contended by the learned Senior

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Counsel that the consideration mentioned in the documents does

not disclose whether it is in the form of cash or cheque or by any

other mode of legal transfer, and further, as per the contents of the

said documents, which are not even registered, the possession was

also transferred, but as per the provisions of the Registration Act,

such a possessory document of agreement to sell is a compulsorily

registerable document, and therefore, it is clear that the parties

have never intended to enter into the transaction. It is further

contended by the learned Senior Counsel for the appellant that

there were interpolations on Ex.A-1 document i.e. agreement of

sale as to the year and the said agreements of sale covered under all

the suits are of hand-written, as to the description, total sale

consideration, part paid amount and of the schedule, which clearly

disclose that the documents were not intended for transaction, but

were fraudulently used by the plaintiff. It is further contended by

the learned Senior Counsel that the circumstance of part payment

of money in cash as being alleged by the plaintiff is also contrary

to his nature, as he is habituated to make payments of sale

consideration by way of cheques as admitted by him in the cross-

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examination and further the sale consideration was also not

reflected in his I.T. returns and that the relationship between the

plaintiff and defendant got strained from 2005 and therefore, the

trial Court ought to have drawn the presumption that the defendant

issued blank stamp papers, only for the purpose of security for

another transaction.

22. In support of his contentions, the learned Senior Counsel has

relied on the judgment of Apex Court reported in Veena Singh

(dead) through LRs. V. District Registrar/Addl. Collector

(FR)1, wherein, their Lordships have considered the meaning and

expression of "execution" at paras 39 onwards and further at para

49, while dealing with the meaning and expression of the word

"execution", their Lordships have dealt with Section 35(1)(a) of

Registration Act, Section (2)(12) of Stamp Act, Black's Law

dictionary, Mulla's Registration Act, S.P.Sen Gupta's commentary,

Sarkar's Law of Evidence and also on the precedents in Rajendra

Pratap Singh v. Rameshwar Prasad [(1998) 7 SCC 602],

N.M.Ramchandraiah v. State of Karnataka [2007 SCC Online

2022 LawSuit(SC) 602

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Karnataka 192], Banasethappa Lalji Chikkanna v. District

Registrar [1995 SCC Online Karnataka 132], Sayyapariju Surya v.

Ramchandra Prasad Singh and another [1949 SCC Online Madras

227], Jogesh Prasad Singh & another v. Ramchandra Prasad Singh

& another [1950 SCC Online Patna 39] and also on many other

precedents and held that "execution of a document does not stand

admitted merely because a person admits to have signed it".

23. The learned Senior Counsel has further urged that Section 10

of the Indian Contract Act deals with what are "agreements" and

"contracts" and further "consent" is dealt with under Section 13 of

the Indian Contract Act and contended that as per the precedent in

State of Punjab v. Hindustan Development Board Ltd.,

Amritser2, wherein, their Lordships have held at para 6 that "it is

the essence of the contract that there should be an aggregatio

mentium, the meeting of minds of the contracting parties. In a case

where there is no consensus ad idem as to the making of charges of

windows of altered designs, the plaintiff was not entitled to claim

charges at the enhanced rates demanded by him".

AIR 1960 PUNJAB 585

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24. It is further contended by the learned Senior Counsel for the

appellant that Section 54 of the Transfer of Property Act defines

"sale" and "contract for sale" which envisages that a contract for

sale of immovable property is a contract that a sale of such

property shall take place on the terms settled between the parties.

It does not, by itself, create any interest in or charge over such

property and further contended that as per Section 16 of the

Specific Relief Act, a suit for specific performance of contract

cannot be enforced in favour of a person under certain

circumstances. The said Section reads as under :

"16. Personal bars to relief--Specific performance of a contract cannot be enforced in favour of a person-- 2 [(a) who has obtained substituted performance of contract under section 20; or] (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) 3 [who fails to prove] that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant. Explanation.--For the purposes of clause (c),-- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the

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plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction."

Further, Section 20 of the Specific Relief Act reads as under:

"20. Substituted performance of contract--(1) Without prejudice to the generality of the provisions contained in the Indian Contract Act, 1872 (9 of 1872), and, except as otherwise agreed upon by the parties, where the contract is broken due to non-performance of promise by any party, the party who suffers by such breach shall have the option of substituted performance through a third party or by his own agency, and, recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing such breach.

(2) No substituted performance of contract under sub-

section (1) shall be undertaken unless the party who suffers such breach has given a notice in writing, of not less than thirty days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed by a third party or by his own agency: Provided that the party who suffers such breach shall not be entitled to recover the expenses and costs under sub-section (1) unless he has got the contract performed through a third party or by his own agency.

(3) Where the party suffering breach of contract has got the contract performed through a third party or by his own agency after giving notice under sub- section (1), he shall not be entitled to claim relief of specific performance against the party in breach.

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(4) Nothing in this section shall prevent the party who has suffered breach of contract from claiming compensation from the party in breach."

Contending so, the learned senior counsel for appellant has prayed

to set aside the judgments and decrees passed by the trial Court in

all the suits, as the plaintiff has failed to prove condition Nos.3 and

4 mentioned in the agreements of sale and further contended that

the said agreements are fabricated and brought into existence only

for the purpose of litigation and prayed to allow the appeals with

costs.

25. On the other hand, learned Senior Counsel for the

respondent Sri Y.Chandra Sekhar contended that the defendant

executed agreements of sale in favour of the plaintiff after

receiving the advance sale consideration and the balance sale

consideration has to be paid within nine months and as major

portion of the sale consideration was paid, the plaintiff was put into

physical possession of the property. It is further contended that the

plaintiff was always ready and willing to perform his part of

contract and offered the balance sale consideration, but the

defendant did not come forward either to receive the balance sale

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consideration or to execute the registered sale deeds and as the

defendant was intending/proposing to sell the suit schedule

properties to third parties, in view of urgency, the suits were filed

after making oral demands for execution of the sale deeds.

26. It is further urged by the learned senior counsel that since the

agreements of sale were possessory agreements, the plaintiff got

the same impounded by the District Collector by duly paying

stamp duty and penalty before filing of the suits and the suits were

presented in the month of October, 2006 and they were also

numbered in the said month.

27. It is further contended by the learned Senior Counsel for the

respondent that the trial Court has properly appreciated the facts

which includes the pleadings and evidence on record and decreed

the suits in favour of the plaintiff and therefore, there is no error or

irregularity in the judgments and decrees passed by the trial Court

and therefore, prayed to dismiss the appeals as they are devoid of

merits. It is further contended by the learned senior counsel that

there is hardly any doubt that mere affixing signature on the

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document, does not amount to execution of document or

admissions of the contents of the document and that the

attestors/witnesses affixed their signatures to the documents i.e. the

agreements of sale indicating that they have witnessed the

execution of those agreements. It is contended that when a

signature is purported to have been put on a document in token of

its execution and the same is admitted by the person concerned to

be of his, there arises a presumption that he must have executed the

document.

28. In order to support his contentions, the learned senior

counsel for the respondent has relied on Section 114 of the Indian

Evidence Act, which reads as follows:

"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of a particular case."

29. It is further contended that, from the fact that an admitted

signature of a person is found to be affixed to evidence the

execution of the document, it is open to the Court to presume that

the said person could have affixed the signature for execution of

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the document. If the signatory to the document says he signed

blank document or a partly written document, it is for him to prove

that the document must have been written later or at a subsequent

stage and if he fails to do so, presumption must be drawn against

him where he unequivocally admitted the signature on the

document as of his.

30. It is the further argument of the learned senior counsel for

the respondent that the plaintiff as PW-1, gave his evidence

consistent to the pleadings which clearly disclose about the nature

of the document, purchasing the suit schedule property, payments

made in advance and also of other material terms of the agreement.

Further, it is the specific plea of the plaintiff that the defendant

himself got the blanks filled, thereafter he signed the documents in

the presence of witnesses after receiving the sale consideration and

also got marked the original link documents/title deeds of the

vendor. In order to support the contention as to the execution,

PW-2 was examined, who categorically deposed that plaintiff paid

an amount to the defendant prior to execution of the agreements of

sale in his presence and also in the presence of one Mr.Rajeswar

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Rao and even in the cross-examination, there is not even a single

suggestion was put to the witnesses that the agreement was not

executed on 27.10.2003, but it was ante-dated. Further, the

evidence of PW-3 proves as to the possession of the suit schedule

properties by the plaintiff and the documentary evidence in

Ex.A-6/pahanis also support that plaintiff is in possession of the

subject lands.

31. It is relevant to mention that during the course of arguments,

the learned senior counsel for the appellant brought to the notice of

this Court that the appellant filed writ petition Nos.28427 of 2007

and 1170 of 2008 relying upon Exs.B-1 to B-9 and the counter,

which was filed by the MRO, before this High Court was marked

by the plaintiff, which clearly goes to show that the documents in

Exs.B-1 to B-9 relied upon by the defendant are fabricated. It is

the contention of the learned senior counsel for the appellant that

the said MRO was suspended. The fact in issue in the present

appeals is whether a decree for specific performance granted by the

trial Court in favour of the plaintiff holds good or not. Therefore,

the question whether the MRO was suspended or not, is not at all a

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point to be discussed in this appeal, though relied or contended by

both the parties.

32. It is further contended by the learned counsel for the

respondent that the evidence of the defendant clearly disclose that

his own mother-in-law filed a criminal case for cheating and he

was in judicial custody, and therefore, his evidence was not

trustworthy and the written statement clearly disclose that the

defendant was very well aware of all the facts and signed on the

agreements of sale and therefore, prayed to dismiss the appeals as

devoid of merits.

33. After hearing the rival contentions of both the parties and

considering the entire record, it is evident that the subject suits are

filed by the plaintiff for the relief of specific performance of

agreements of sale and for directing the defendant to execute

registered sale deeds in favour of the plaintiff in all the five suits,

and the trial Court, after considering the entire evidence on record,

has decreed all the suits. The pleadings of the plaint clearly

disclose as to the nature of the agreements entered into by the

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plaintiff with the defendant for the total extent of land i.e. Ac.27-10

gts., (in all the appeals) and pursuant to the said agreements, the

plaintiff was put in possession of the said suit schedule land and

that the plaintiff was ready and willing to perform his part of

contract but as the defendant has not turned up to perform his part

of contract, for which, the suits were filed by the plaintiff.

34. On the other hand, the pleadings in the written statement

disclose that the defendant signed blank agreements of sale as a

security for financial assistance in respect of the transactions of

lands at Gundla Pochampally village and also handed over the link

documents pertaining to the suit schedule property at the instance

of the plaintiff and subsequently, the plaintiff has also purchased

the land covering to an extent of 5,882.33 square yards under

twenty registered sale deeds on his name and also on the names of

his family members and later, the relationships between the

plaintiff and defendant got strained in the year 2005. Taking

advantage of the link documents in his hand, the plaintiff has made

interpolations in the agreements of sale by filling up the blanks and

filed suits to have wrongful gain over the suit schedule property.

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35. The further recitals of the written statement disclose that the

plaintiff and the brother of the defendant by name Tummala

Mahesh Benerjee agreed to purchase 600 square yards of plot

No.289 of Vijaya Co-operative House Building Society at New

MLA's and MP's colony and the defendant's brother paid an

amount of Rs.15,00,000/- to the plaintiff and the understanding

between the plaintiff and defendant's brother was that the property

would be purchased jointly for selling the same at a later point but

however, the plaintiff has obtained agreement of sale-cum-GPA

from the vendors on 26.08.2004 in the name of his wife.

36. As aforesaid, a rejoinder was also filed by the plaintiff

denying the recitals of the written statement contending that the

sale transactions relating to the other properties are in no way

connected with the suit transactions and the brother of the

defendant was not examined before the Court to prove the other

transactions for the reasons best known to the defendant. The

rejoinder also disclose that the witnesses to the agreement of sale

are well educated and known to both the plaintiff and defendant

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and their evidence cannot be brushed aside as to the agreements of

sale are concerned.

37. The evidence of PW-1 is in the same lines of the averments

of the plaint and the rejoinder. His evidence further disclose that

not only the transactions relating to these suits, but there are many

other financial transactions between the plaintiff and the defendant

and the defendant also registered Ac.3-09 gts., of land in favour of

plaintiff in the year 2002 i.e. subsequent to the present agreements

of sale. It is the specific admission of the plaintiff that as the

defendant insisted for payment in cash, he paid the amount in cash

for purchase of the plots at Kallakal village and the witnesses

Manik Rao and Rajeswar Rao were also present at the time of

payment of cash.

38. The affidavit in lieu of chief-examination of PW-2 disclose

that plaintiff paid the amount to the defendant before the execution

of the agreements of sale in his presence and in the presence of

R.Rajeswar Rao and after receiving the said amount, the defendant

has signed the agreements of sale. In the cross-examination, it is

GAC, J A.S.Nos.559 of 2009 and batch

admitted by PW-2 that plaintiff paid the amount in the form of cash

to the defendant by keeping in a cover and that he signed the

agreement as a witness and at that particular point of time, he along

with Rajeswar Rao, were present and the transactions took place at

Sowbhagya graphics.

39. Further, the evidence of PW-3 disclose that the plaintiff is in

possession of the suit schedule property and was cultivating the

agricultural land and constructed a room in the land. In the cross-

examination, nothing was elicited by the defendant as to in whose

possession the property was. On the other hand, the cross-

examination disclose that the counsel for the defendant examined

him as to the particulars of the land belonging to PW-3, which is in

no way helpful to the defendant to distract the evidence that

plaintiff is in possession of the property.

40. The evidence of DW-1 is also in the same lines as that of the

written statement. The entire evidence of defendant disclose that

suits were filed by the plaintiff playing fraud and that he did not

receive single pie from the plaintiff towards sale consideration of

GAC, J A.S.Nos.559 of 2009 and batch

suit schedule property either in the form of cash or by way of

cheque. In the cross-examination, DW-1 admitted that he was

doing real estate business and admitted that he signed on the

agreements of sale i.e. nine blank pronotes and there was no

separate meeting and did not inform to the elders. His evidence

further disclose that they were seven common members who acted

as mediators between him and the plaintiff on 11.05.2005 and the

meeting was at Hotel Sarover. It is also admitted by DW-1 that he

had not mentioned in his pleadings or in the affidavit in lieu of

chief-examination about the mediation which took place for

settlement of disputes. It is also admitted by DW-1 that writ

petition Nos.28427 of 2007 and 1170 of 2008 were filed by him

when MRO passed orders against him and volunteers that he came

to know about the same when the plaintiff filed the rejoinder,

which is inconsistent. On the other hand, DW-1 deposed in his

cross-examination that he does not know Manik Rao and Rajeswar

Rao.

41. Admittedly, PW-2 is the said Manik Rao who was examined

on behalf of the plaintiff, but there was not even a single

GAC, J A.S.Nos.559 of 2009 and batch

suggestion as to the acquaintance between them or about the non-

presence of PW-2 on the date of agreement.

42. On perusal of the documents i.e. Exs.B-1 to B-9, it is evident

that those are the proceedings issued by the MRO, Toopran, dated

12.08.2004. It is relevant to mention that Exs.A-7 and A-8 are the

counters filed by the same MRO in W.P.Nos.28427 of 2007 and

1170 of 2008 respectively, wherein, it is stated by the MRO that

Exs.B-1 to B-9 were not issued by him. Hence, it can be construed

that mutation was not done in the name of the defendant as per the

proceedings in Exs.B-1 to B-9. Though it is contended by the

learned senior counsel for the appellant that the said MRO was

suspended from service, there cannot be any adverse inference in

this case as to why or for what reasons the said MRO was

suspended from service, until and unless the inquiry report disclose

that the MRO was suspended for issuing of proceedings with

regard to the subject properties. Exs.B-12 to B-33 are the sale

deeds relating to the transactions of transfer of property of the other

lands which cannot have any bearing on the present appeals.

GAC, J A.S.Nos.559 of 2009 and batch

43. The other evidence on behalf of the defendant is that of

DWs.2 and 3, wherein, they categorically stated that they were the

common friends of the plaintiff and the defendant and that the

plaintiff and defendant had some misunderstandings and a meeting

took place for settlement of disputes at My home Sarover Complex

in 2005, which, they attended and on their request, some other

friends also attended the meeting and they resolved the disputes

between the plaintiff and the defendant and as a security measure,

some blank stamped papers, original sale deeds and promissory

notes were taken from the defendant on condition that till the final

layout approval is cleared from HUDA for the plots situated at

Gundla Pochampally and till the release of final layout, these

papers will be kept with the plaintiff.

44. In the cross-examination, DW-2 deposed that about four

years back, the plaintiff informed him on phone that there were

some misunderstandings and that the plaintiff informed him that he

took the plots from the defendant and as there is a delay in

registration and talks should be held. He also admitted that there

was no written resolution for settlement and it is an oral settlement.

GAC, J A.S.Nos.559 of 2009 and batch

45. On the other hand, DW-3 in his cross-examination, deposed

that about five years back, plaintiff informed him about the

misunderstandings between him and the defendant and DW-3

advised him that it is not good, in the interest of both the persons

and he also attended the meeting held at Hotel Sarover and there

was a settlement between them and documents were written and

that he does not know whether the settlement was reduced into

writing or not. His further evidence disclose that the differences

between the plaintiff and defendant were settled in the said meeting

and the balance of Rs.4,000/- to be paid by the defendant to the

plaintiff, was paid.

46. The oral evidence of DWs.2 and 3 is in no way helpful to the

defendant to prove that there was mediation in the presence of

elders including DWs.2 and 3, in order to sort out the differences

between the plaintiff and defendant. It can be construed that the

defendant has come up with a new story during the course of his

evidence about the mediation before the elders. The written

statement itself was silent about the mediation before elders. The

evidence of defendant clearly disclose that there are improvements

GAC, J A.S.Nos.559 of 2009 and batch

during the course of trial, which are not part of the pleadings. The

evidence before the court should be based on the pleadings and

issues framed by the Court and cannot travel beyond it. Further,

there is no suggestion to PW-2 in the cross-examination that the

agreements of sale were not executed on that specific date and that

they were ante-dated.

47. It is also the contention of the learned senior counsel that the

plaintiff has not signed the document, hence, it is doubtful. But the

said contention cannot be considered as there is no hard and fast

rule for the plaintiff to make his signature on the documents i.e.

agreements of sale, and the defendant signed on the documents

fully knowing the terms and conditions therein. Admittedly, there

is no denial by the defendant that he did not make his signatures on

the agreements of sale covering the suit schedule properties for the

total land admeasuring Ac.27-10 gts., situated at Kallakal village

under different survey numbers. On perusal of the agreements of

sale in all the appeals, which are mentioned as exhibits in all the

suits, it is evident that the agreement of sale is a printed proforma

duly keeping the gaps to be filled with pen. The year in the

GAC, J A.S.Nos.559 of 2009 and batch

agreement of sale is initially typed as 2002, but the date, month, the

name of the defendant (vendor), father's name, age, extent of land,

link documents numbers, consideration in figures and words, part

payment and delivery date of vacant possession and the survey

numbers mentioned in the suit schedule property are filled with

pen. There is no hard and fast rule that the entire agreement

shall be typed either on typewriter or on computer or it has to be in

hand-writing. In general/normal course, the agreements of sale and

other documents relating to registration of immovable properties

will be prepared by the document writers. No doubt, the

agreements of sale in the present cases, as stated above, are in

partly printed form and the above said details were filled-up with

pen. As far as the interpolation is concerned, it is only with respect

to the year i.e. '2002' which is in printed form, is changed to

'2003' i.e. number '2' is changed as '3' with pen but the said

interpolation, as alleged by the defendant, cannot be accepted or

considered because the witness J.Manik Rao, who is one of the

attestors, has specifically made his signature at the end of the

agreement and has also mentioned the date beneath his signature as

GAC, J A.S.Nos.559 of 2009 and batch

"27.10.2003". As such, the changing of the year '2002' as '2003',

cannot be construed/treated as interpolation. It is the further

contention of the appellant that the agreement of sale is a

compulsorily registerable document. On perusal of the agreement

of sale, it can be construed that the agreements of sale were

impounded by the Collector and stamp duty has been paid and

there is an endorsement of the Collector office under Sections 41

and 42 of the Stamp Act that the stamp duty is duly paid and the

endorsement further shows that the compulsorily registerable

document, if not registered, will not affect immovable property

even though stamp duty is paid on it.

48. As already discussed supra, the argument of the defendant

that the year in the agreement of sale which was typed as '2002',

was corrected as '2003' with pen and that amounts to interpolation,

is not sustainable, as it is pleaded by the defendant in his written

statement that there was a mistake that crept-in. Moreover, the

defendant was not the owner of the suit schedule property as on

2002, as he himself purchased the suit schedule property in the

year 2003. Therefore, the correction in the agreements of sale

GAC, J A.S.Nos.559 of 2009 and batch

covered under all the suits cannot be taken as interpolation made

by the plaintiff. The agreements of sale partly with printed format

and partly filled with ink pen cannot be called as altered and

further, there is no prohibition under the law to execute agreements

on old stamp papers or to fill-up the blanks with pen after the

document being typed. On perusal of the original documents, it is

evident that the blanks on the agreements of sale covered in all the

suits, were filled-up with the same pen and ink. Moreover, it is not

the case of the defendant that the contents in the agreements are

filled-up with different ink than that of the signatures of the

attestors. The oral evidence of PW-2/the attestor corroborates the

evidence of PW-1 on all aspects as to the consideration received by

the defendant and the defendant making signature on the

agreements of sale only after receiving the part consideration.

Hence, it can be construed that there is meeting of minds as to the

agreements of sale are concerned relating to all the suits which are

subject matter of the appeals.

49. No doubt, as per the proposition laid down in Veena Singh's

case (1 supra), the execution of the document cannot be said to be

GAC, J A.S.Nos.559 of 2009 and batch

admitted merely because the defendant has signed the agreement

but the burden is on the defendant to prove that there is no

consensus ad idem (meeting of minds as to the purchase of the

property by the plaintiff or selling of the property by the

defendant), as it is the specific assertion made by the defendant.

50. Section 101 of the Indian Evidence Act envisages that

whoever asserts a particular fact, it is for him to prove the same,

therefore, it is for the defendant to prove the fact that he signed the

agreements of sale only for the purpose of security for getting

financial assistance relating to another property of Gundla

Pochampally village.

51. Therefore, the aforesaid proposition is in no way helpful to

the case of the appellant. The burden is on the defendant to prove

that there is no consensus ad idem between the parties i.e. the

plaintiff and the defendant as to the signing of the agreements of

sale. The evidence of PW-2 itself is sufficient to prove that after

receiving the consideration and fully knowing about the contents of

the documents, the defendant has executed the agreements of sale

GAC, J A.S.Nos.559 of 2009 and batch

in favour of the plaintiff. Hence, it can be construed that there are

no interpolations made subsequent to signing of the documents by

the defendant and they are all made prior to signing of the

documents.

52. Further, the learned senior counsel has relied on the

judgment of Apex Court in State of Gujarat (Commissioner,

Sales Tax, Ahmedabad) v. M/s.Variety Body Builders3,

wherein, their Lordships have held that it is well settled that when

there is a written contract, it will be necessary for the Court to find

out there from the intention of the parties executing the particular

contract. That intention has to be primarily gathered from the

terms and conditions which were agreed upon by the parties.

Further, their Lordships have held that to constitute a transaction of

sale, there should be an agreement, express or implied, relating to

the goods to be completed by passing of title in those goods. It is

the essence of this concept that both the agreement and the sale

should relate to the same subject matter. On the true interpretation

of the expression "sale of goods", there must be an agreement

AIR 1976 SC 2108

GAC, J A.S.Nos.559 of 2009 and batch

between the parties for the sale of very goods in which eventually

property passes.

53. The facts and circumstances of the above proposition relates

to movable properties and the same cannot be applied to the

immovable property except regarding the intention of the parties

entering into a particular contract.

54. In this context, the learned senior counsel for the respondent

relied on the judgment of Apex Court in Ram Khilona & another

v. Sardar & another4, wherein, it is held as under:

"An alteration made in a deed, after its execution, in some particular which is not material does not in any way affect the validity of the deed; and this is equally the case whether the alteration was made by a stranger or by a party to the deed. Thus the date of a deed may well be filled in after execution; for a deed takes effect from the date of execution, and is quite good though it is undated. So, also, the names of the occupiers of land conveyed may be inserted in a deed after its execution, where the property assured was sufficiently ascertained without them. It appears that an alteration is not material which does not vary the legal effect of the deed in its original state, but merely expresses that which was implied by law in the deed as originally written, or which carries out the intention of the parties already apparent on the face of the deed, provided that the alteration does not otherwise prejudice the party liable under it."

AIR SCW 2002

GAC, J A.S.Nos.559 of 2009 and batch

The above judgment squarely applies to the facts and

circumstances of the present case and it can be construed that only

after filling-up the blanks in the agreements of sale, the documents

were signed.

55. It is an admitted fact that the defendant is doing real estate

business since long time and there are transactions between the

plaintiff and the defendant for more than ten years as per the

evidence and pleadings. It is also an admitted fact that the

defendant has signed the documents and handed over the link

documents to the plaintiff. As per their evidence, relationships

between the plaintiff and defendant were strained in the year 2005

and the suits were filed by the plaintiff in the year 2006. Though it

is the contention of the defendant that the link documents were

handed over by him to the plaintiff in the year 2002 as security

purpose, what prevented him from issuing a notice calling upon the

plaintiff to return the documents, is not at all explained. Moreover,

the pleadings of the defendant disclose that there were transactions

between the plaintiff and his brother, but it is not known as to why

the brother of the defendant was not examined before the Court to

GAC, J A.S.Nos.559 of 2009 and batch

support the transactions of the defendant with the plaintiff.

Further, there is no evidence on record to show that the brother of

the defendant has filed cases against the plaintiff.

56. In view of oral evidence of PWs.1 to 3, it is evident that the

plaintiff and the defendant entered into agreements of sale after

duly passing on consideration in the presence of PW-2 and the

evidence of PW-2 corroborates the evidence of PW-1 as to the

execution of agreements of sale in all the suits by the defendant as

to the identity of minds and the evidence of PW-3 also establishes

that possession was delivered by the defendant to the plaintiff and

who in turn, is cultivating the land. Therefore, it can be construed

that after identity of minds, the agreements of sale have been

entered into between the plaintiff and the defendant and therefore,

the trial Court is justified in decreeing the suits. Accordingly,

Point Nos.1 to 3 are answered in favour of the plaintiff.

57. In view of the above, all these appeals are devoid of merits

and are accordingly dismissed, and the judgments and decrees

dated 28.07.2009, passed by the Senior Civil Judge, Siddipet in

GAC, J A.S.Nos.559 of 2009 and batch

O.S.Nos.145, 146, 147, 148 and 149 of 2006 are hereby confirmed.

No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J

Date: 06.09.2022

N.B:

L.R. copy be marked.

(b/o) ajr