Telangana High Court
T.Seshan Goud vs Bhattu Seshamaraju on 20 September, 2022
Bench: G.Anupama Chakravarthy
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
APPEAL SUIT No.688 of 2009
and
CROSS-OBJECTIONS No.49 of 2018
COMMON JUDGMENT :
This appeal is arising out of the judgment in O.S.No.24 of
2006 dated 03.08.2009 on the file of Senior Civil Judge at Gadwal.
2. For the sake of convenience, parties are referred to as
arrayed in the suit.
3. The appellants are defendant Nos.1 to 3. The original suit is
filed by the plaintiffs for specific performance of contract directing
the 1st defendant to execute a registered sale deed in favour of the
plaintiffs in respect of suit schedule properties in Sy.No.115/అ ,
115/ఆ and 116 for the land admeasuring Ac.5-20 gts., Ac.5-20
gts., and Ac.5-00 gts., respectively with common boundaries as
narrated in the plaint schedule, situated at Tirumallapur village of
C.C.Kunta Mandal and further to induct the plaintiffs in possession
of the said properties.
2
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
4. It is the case of the plaintiffs that defendant No.1 is the
absolute owner of the suit schedule lands who agreed to sell the
same to them inclusive of the attached things such as crops, garden,
borewells, electric motors and pipelines etc., @ Rs.35,000/- per
acre, for a total consideration of Rs.5,60,000/-. On 07.07.2005, the
plaintiffs paid an amount of Rs.3,00,000/- to defendant No.1
towards earnest money on execution of agreement of sale. Though
defendant No.1 is the absolute owner of the suit schedule
properties, it appears that he got mutated an extent of Ac.5-00 gts.,
in Sy.No115 in the name of his wife i.e. defendant No.2 and some
extent of land in Sy.No.115/ఆ in the name of his son, to secure
subsidies from the department of horticulture and at the instance of
the plaintiffs, defendant No.1 joined defendant No.2 as a party to
the agreement of sale, but he failed to get the signature of
defendant No.2 on the said agreement. It is the further case of the
plaintiffs that the agreement of sale stipulates that the balance sale
consideration of Rs.2,60,000/- shall be paid on 20.01.2006 and
thereafter, a regular sale deed has to be executed by defendant
No.1. However, an amount of Rs.60,000/- was paid to defendant
3
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
No.1 on 29.07.2005 and the balance sale consideration is only
Rs.2,00,000/-. In spite of the plaintiffs' willingness to perform
their part of contract, the defendant No.1 postponed to execute the
regular sale deed. But, on the other hand, a legal notice dated
22.12.2005 was issued to the plaintiffs through defendant Nos.2
and 3, calling upon the plaintiffs to cancel the agreement of sale
and to take back the amount from defendant No.1, for which, a
reply notice was issued by the plaintiffs on 18.01.2006 expressing
their readiness to pay the balance consideration and calling upon
them to execute the regular sale deed. In order to avoid further
complications, the plaintiffs have filed the present suit against
defendant Nos.1 to 3, though there is no specific relief sought
against defendant Nos.2 and 3. Accordingly, the plaintiffs prayed
to decree the suit.
5. On the other hand, a detailed common written statement was
filed by defendants 1 and 2, which was adopted by defendant No.3,
denying all the allegations made in the plaint. It is the specific
contention of the defendants that the lands admeasuring Ac.4-25
4
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
gts., and Ac.5-20 gts., are comprised in Sy.Nos.115/అ and 115/ఇ ,
respectively, situated at Tirumallapur village, were purchased in
the name of defendant No.1 with the financial help of the brothers
of defendant No.2. In order to keep up the respect and image of
defendant No.1 in the society, defendant No.2 got the sale deed
registered in the name of defendant No.1 and the said lands are
neither self-acquired nor ancestral properties of defendant No.1,
but are the properties of defendant No.2, though the name of
defendant No.1 was recorded as pattadar and possessor. The lands
admeasuring Ac.4-34 gts., and Ac.1-13 gts., comprised in
Sy.Nos.116/అ and 115/ఆ respectively were purchased by the 2nd
defendant on her name and on the name of defendant No.3 with the
financial help of her brother, and as such, they are not the self-
acquired properties of defendant No.1. Further, defendant Nos.2
and 3 erected borewells, planted sweet lemon plants and defendant
No.1 has got no interest or title over the said lands, and further, the
agreement of sale was not in the knowledge of defendant Nos.2
and 3 and it is signed only by defendant No.1 without their
consent, and therefore, is not binding on them. It is the specific
5
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
contention in the written statement that defendant No.1 cannot
represent the other defendants in an agreement of sale and the said
contract is not enforceable, and therefore, prayed to dismiss the
suit.
6. Basing on the aforesaid pleadings, the trial Court has framed
the following issues:
1. Whether the plaintiff is entitled for specific
performance as prayed for ?
2. To what relief ?
7. On behalf of plaintiffs, PWs.1 to 6 were examined and
Exs.A-1 to A-17 were marked. On behalf of the defendants,
DWs.1 and 2 were examined and Exs.B-1 to B-5 were marked.
8. The trial Court, after considering the entire oral and
documentary evidence on record, has decreed the suit in part
directing defendant No.1 to execute registered sale deed in favour
of the plaintiffs within two months from the date of deposit of the
balance sale consideration of Rs.2,00,000/- by the plaintiffs into
the Court, which shall be done within one month from the date of
6
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
the judgment and further, the plaintiffs are entitled to costs against
defendant No.1.
9. Being aggrieved by the said judgment, the defendants have
preferred this appeal.
10. It is relevant to mention that Cross-objections No.49 of 2018
were filed by the L.Rs. of the 1st plaintiff and the 2nd plaintiff.
11. Heard both sides and perused the record.
12. On perusal of the plaint, it is noticed that the plaintiffs
prayed only for the relief of directing defendant No.1 alone to
execute registered sale deed in their favour basing on the
agreement of sale dated 17.07.2005 (wrongly mentioned as
17.02.2005 in the plaint) and to put them into possession of the suit
schedule property and no alternative relief is sought for, for refund
of amount as contemplated under Section 22 (1) (b) of the Specific
Relief Act.
13. The point for determination in this appeal is:
Whether the trial Court has erred in granting a decree
and judgment in favour of the plaintiffs though the
7
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
agreement of sale dated 17.07.2005 does not contain
the signatures of the 2nd and 3rd defendants being the
owners of the suit schedule land ?
14. It is urged by the learned counsel for the appellants that the
averments of the plaint and the evidence is not sufficient to show
that the plaintiffs are ready and willing to perform their part of
contract and the trial Court has erred in applying Section 12(3)(a)
of Specific Relief Act even in the absence of any such relief being
sought for.
15. It is further urged by the learned counsel for the appellants
that there is no evidence on record to show that the plaintiffs have
relinquished all pleas, for performance of the remaining part and all
rights to compensation for the deficiency or for the loss or damage
occasioned due to the default of the defendant No.1. It is further
contended by the learned counsel for appellants that the trial Court
ought to have considered that the seller is not the sole owner of the
property which he has agreed to sell and the buyer can only have
specific performance to the extent of the share of the seller but he
has to fulfill the conditions enumerated under Section 12 of the
8
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
Specific Relief Act. It is further urged by the learned counsel for
the appellants that the contract intended to be dealt is to be in
whole but not in a piece-meal and the trial Court erred in granting
relief of partial performance of contract which is barred in the eye
of law. It is further contended that the trial Court has erred in
decreeing the suit and it ought to have seen that the plaintiffs were
never willing to perform their part of contract, and therefore,
prayed to set aside the judgment and decree of the trial Court.
16. On the other hand, it is contended by the learned counsel for
the respondents/cross-objectors that the trial Court has erred in
dismissing the suit for specific performance to an extent of Ac.5-00
gts., in Sy.No.116 of Tirumallapur village while decreeing the suit
to an extent of Ac.5-20 gts., and Ac.5-20 gts., in Sy.Nos.115 and
115/అ , respectively. It is further contended by the learned counsel
for respondents that the trial Court ought to have decreed the suit to
the entire extent of suit schedule property as it belongs to the 1st
appellant and he is the only pattadar of the entire lands and further,
the agreement of sale dated 17.07.2005 discloses that defendant
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
No.1 executed the said document for the total extent of land but not
for part of land, and therefore, prayed to dismiss the appeal, and to
further grant a decree in favour of the plaintiffs for the extents of
land, which was not decreed by the trial Court.
17. On perusal of Ex.A-1, it is evident that it is an unregistered
agreement of sale and though the names of defendant Nos.1 and 2
are there, it contains the signature of defendant No.1 alone. The
survey numbers mentioned in Ex.A-1 are 115/అ , 115/ఆ and 116
and defendant No.1 was shown as pattadar for Sy.Nos.115/అ and
115/ఆ to the extent of Ac.5-20 gts., and Ac.5-20 gts., but at
Sy.No.116, the extent of land is shown as Ac.5-00 gts., which is on
the name of defendant No.2. Though Sy.No.116 forms part of the
contract, it was not signed by defendant No.2 and defendant No.1
who has no right over the property, cannot enter into contract on
behalf of defendant No.2. Ex.A-3 is the legal notice dated
22.12.2005 issued to the plaintiffs by the 2nd and 3rd defendants,
who are the wife and son of the 1st defendant respectively, after
coming to know about Ex.A-1. The recitals of Ex.A-3 disclose that
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
after coming to know about Ex.A-1, reply is being issued
contending that defendant No.1 has no right to alienate the lands as
he has no legal or family necessities to alienate the lands, and as
such, the alienation of the said lands is illegal and will not confer
any right on the plaintiffs.
18. It is important to note that the recitals of Ex.A-1 clearly
disclose that the names of defendant Nos.1 and 2, are shown
therein, as if they intended to sell the land to the plaintiffs, but the
same was not signed by defendant No.2. On the other hand,
Ex.A-3/legal notice reveals that defendant No.1 has no legal or
family necessities to alienate the lands, which means, the purpose
mentioned by defendant No.1 in the agreement of sale is denied in
the notice/Ex.A-3 issued by defendant Nos.2 and 3.
19. It is relevant to mention that Ex.A-1 specifies the date for
execution of registered sale deed as 29.10.2005 in favour of the
plaintiffs on payment of the balance sale consideration. Ex.A-4 is
the reply notice dated 18.01.2006, issued by the plaintiffs to the
defendants, wherein, they admit that defendant No.2 is the owner
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
of the land bearing Sy.No.116 to an extent of Ac.5-00 gts., situated
at Tirumallapur village and they are ready and willing to pay the
balance sale consideration and further requested to execute
registered sale deed. Admittedly, the plaintiffs have to pay the
balance sale consideration on 29.10.2005 as per Ex.A-1. There is
no evidence on record to show that the plaintiffs were willing and
ready to perform their part of contract, till 22.12.2005 i.e. the date
of Ex.A-3. As per Ex.A-1, the time stipulated is 29.10.2005, which
is the essence of the contract. Hence, it can be presumed that the
plaintiffs have not expressed their readiness or willingness to
perform their part of contract to defendant No.1 till 18.01.2006 i.e.
the date of the reply notice. Neither the recitals of the plaint nor
the reply notice of the plaintiffs disclose about the dates on which
the plaintiffs are ready to pay the balance sale consideration, except
the bald allegation that defendant No.1 is postponing the execution
of registered sale deed.
20. It is the specific finding of the trial Court that defendant
No.1 alone is the executant of Ex.A-1 for the entire suit schedule
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
land and defendant Nos.2 and 3 have no knowledge about Ex.A-1
and after coming to know of it, defendant Nos.2 and 3 issued
Ex.A-3/legal notice informing the plaintiffs that though defendant
No.1 is the pattadar, he had no vested interest to alienate the
property, as he is not burdened with family maintenance or
marriages of daughters. On considering the documents, it is
evident that patta to the extent of Ac.5-20 gts., and Ac.4-25 gts., in
Sy.No.115 stands in the name of defendant No.1 vide documents in
Exs.A-10 and A-11 and patta to the extent of Ac.1-09 gts., Ac.1-08
gts., and Ac.1-08 gts., comprised in Sy.No.116 stands in the name
of defendant No.2 vide Exs.A-12 to A-14. Ex.A-15 is the C.C. of
pahani pertaining to the vendors under Exs.A-10 and A-11.
Ex.A-16/pahani pertains to the lands purchased by defendant No.2
on her name. According to Ex.B-1/ROR and Ex.B-2/pahani,
defendant No.2 is the pattadar for Ac.4-34 gts., in Sy.No.116/A
while defendant No.3 is the pattadar for Ac.1-13 gts., in
Sy.No.115/ఆ .
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
21. It is the specific contention of the appellants that defendant
No.1 got mutated the lands in the name of his wife and son and
sub-division also took place for the said survey numbers. The trial
Court, even after considering that defendant No.1 alone is the
contracting party for the lands belonging to defendant Nos.2 and 3,
directed defendant No.1 to execute the regular registered sale deed.
22. Section 12 of the Specific Relief Act reads as under:
"Specific performance of part of contract :
(1) Except as otherwise hereinafter provided in
this section, the court shall not direct the
specific performance of a part of a contract.
(2) Where a party to a contract is unable to
perform the whole of his part of it, but the part
which must be left unperformed be a only a
small proportion to the whole in value and
admits of compensation in money, the court
may, at the suit of either party, direct the
specific performance of so much of the
contract as can be performed, and award
compensation in money for the deficiency.
(3) Where a party to a contract is unable to
perform the whole of his part of it, and the part
which must be left unperformed either--
(a) forms a considerable part of the whole,
though admitting of compensation in money; or
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
(b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific
performance; but the court may, at the suit of
the other party, direct the party in default to
perform specifically so much of his part of the
contract as he can perform, if the other party--
(i) in a case falling under clause (a), pays or
has paid the agreed consideration for the
whole of the contract reduced by the
consideration for the part which must be
left unperformed and in a case falling
under clause (b) pays or has paid the
consideration for the whole of the
contract without any abatement; and
(ii) in either case, relinquishes all claims to
the performance of the remaining part of
the contract and all right to
compensation, either for the deficiency
or for the loss or damage sustained by
him through the default of the defendant.
(4) When a part of a contract which, taken
by itself, can and ought to be specifically
performed, stands on a separate and
independent footing from another part of
the same contract which cannot or ought
not to be specifically performed the court
may direct specific performance of the
former part.
Explanation.--For the purposes of this
section, a party to a contract shall be
deemed to be unable to
perform the whole of his part of it if a
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
portion of its subject-matter existing at
the date of the contract has
ceased to exist at the time of its
performance."
23. Thus, as per Section 12 of the Specific Relief Act, Courts
have to pass a decree for the whole of the contract but not to a part
thereof. It is pertinent to note that the plaintiffs being aggrieved of
the judgment of the trial Court, filed cross-objections. The
plaintiffs have not expressed their willingness for getting the
registered sale deed for part of the lands, but they are willing to
purchase the entire land, though the land is not in the name of
defendant No.1.
24. The chief affidavit of PW-1 is nothing but reiterating the
plaint averments. His evidence only disclose that they got issued
reply notice on 18.01.2006 after receiving the notice of defendant
Nos.2 and 3. In the cross-examination, PW-1 admitted that he has
to pay Rs.2,00,000/- to defendant No.1 and defendant No.3 owns
an extent of Ac.1-13 gts., in Sy.No.115 and he has not deposited
balance consideration in to the Court. Further, he did not pay any
amount to defendant No.2 under Ex.A-1.
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
25. PW-2 is the attestor to Ex.A-1 and deposed about the suit
transaction under Ex.A-1 and also stated that he is the attesting
witness to the agreement/Ex.A-1. In the cross-examination, it is
deposed by PW-2 that PW-1 is his brother-in-law and he does not
know as to who filed suit against whom and also admitted that
Ex.A-1 was not executed by defendant Nos.2 and 3 and also does
not know the extents of land belonging to each of the defendants.
26. PW-3 is the scribe of Ex.A-1. His evidence is also on the
same lines as that of PW-2. In the cross-examination, PW-3
deposed that he is a document writer and he does not know the
mode of acquisition of land by defendant Nos.1 to 3.
27. PW-4 is a third party to the suit. His evidence disclose that
he was the owner and possessor of land in Sy.No.115/అ to an
extent of Ac.4-25 gts., of Tirumallapur village and has sold the
land in favour of defendant No.1 under Ex.A-11. In the cross-
examination, it is deposed by PW-4 that he does not remember
whether he got Ex.A-11 sale deed registered in the name of
defendant No.2 or not.
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
28. PW-5 is also the third party to the suit. His evidence
disclose that he was the owner and possessor of land in
Sy.No.116/1/1 to an extent of Ac.1-09 gts., of Tirumallapur village
and has sold the land in favour of defendant No.1 under Ex.A-12.
In the cross-examination, it is deposed by PW-5 that he executed
registered sale deed in favour of defendant No.2 as requested by
defendant No.1.
29. PW-6 is also a third party. His evidence disclose that he was
the owner and possessor of land in Sy.No.116/1/4/A to an extent of
Ac.1-08 gts., at Tirumallapur village and has sold the land in
favour of defendant No.1 under Ex.A-13. In the cross-
examination, it is deposed by PW-6 that he did not execute
registered sale deed in favour of defendant No.2 but executed in
favour of defendant No.1.
30. PW-7 is also a third party. His evidence disclose that he was
the owner and possessor of land in Sy.No.116/1/2 to an extent of
Ac.1-08 gts., of Tirumallapur village and has sold the land in
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
favour of defendant No.1 under Ex.A-14, but PW-7 was not
subjected to cross-examination.
31. On perusal of the evidence of PWs.1 to 7, it is evident that
defendant No.1 executed Ex.A-1 in favour of plaintiffs for which,
PW-2 is the attestor and PW-3 is the scribe. The plaintiffs and
defendant No.1 entering into agreement of sale under/Ex.A-1 is not
at all in dispute. The admitted fact is that the plaintiffs have not
sought any relief against defendant Nos.2 and 3 though they are
arrayed as parties to the suit. On the other hand, it is also an
admitted fact that defendant Nos.2 and 3 are not signatories to the
agreement of sale i.e. Ex.A-1, though defendant No.2 is the owner
of the part of the suit schedule property. The evidence of PWs.4 to
7 is in no way helpful to the plaintiffs to prove that defendant No.2
is not the owner of the land.
32. On behalf of defendants, the 2nd defendant herself was
examined as DW-1 and it is the specific admission of DW-1 in the
cross-examination that she purchased the lands with the financial
assistance/help of her brother and kept it in the name of her
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
husband and further stated that she was not aware whether
defendant No.1 received Rs.3,00,000/- and Rs.60,000/- from the
plaintiffs.
33. DW-2 is the brother of DW-1. His evidence disclose that he
gave financial assistance for defendant No.2 in order to purchase
the lands on the name of defendant No.1.
34. The dispute between the parties is whether defendant No.1
can execute registered sale deed in favour of plaintiffs basing on
Ex.A-1, though he is not the owner of part of the suit schedule
properties. As stated supra, the plaintiffs are unwilling for part
performance of the contract as such they have filed cross-
objections. The trial Court has erred in decreeing the suit for
specific performance for part of the suit schedule properties though
Section 12 of Specific Relief Act is not applicable. Admittedly,
defendant No.2 has not signed Ex.A-1/agreement of sale and
therefore, the Court cannot direct defendant No.2 to execute
regular sale deed in favour of the plaintiffs. As part of the suit
schedule properties is on the name of defendant No.2, part of the
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
contract cannot be performed and a person who has no right over
part of the property i.e. defendant No.1 cannot execute regular sale
deed over such property. Moreover, the plaintiffs have failed to
establish that they are ready and willing to pay the balance sale
consideration as stipulated in Ex.A-1 i.e. by 29.10.2005, which is
the essence of the contract. Therefore, it can be safely concluded
that the plaintiffs have failed to establish that they are ready and
willing to perform their part of contract and there is no possibility
of performance of contract under Ex.A-1 as part of the property
belongs to defendant No.2, who is not signatory to the document.
35. Section 22 of the Specific Relief Act reads as follows:
Power to grant relief for possession, partition,
refund of earnest money, etc. :
(1) Notwithstanding anything to the contrary
contained in the Code of Civil Procedure,1908
(5 of 1908), any person suing for the specific
performance of a contract for the transfer of
immovable property may, in an appropriate
case, ask for--
(a) possession, or partition and separate
possession, of the property in addition to such
performance; or
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
(b) any other relief to which he may be entitled,
including the refund of any earnest money or
deposit paid or 1[made by] him, in case his
claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of
sub-section (1) shall be granted by the court
unless it has been specifically claimed:
Provident that where the plaintiff has not
claimed any such relief in the plaint, the court
shall, at any stage of the proceeding, allow him
to amend the plaint on such terms as may be
just for including a claim for such relief.
(3) The power of the court to grant relief under
clause (b) of sub-section (1) shall be without
prejudice to its powers to award compensation
under section 21.
36. As already stated supra, alternative relief is not pleaded by
the plaintiffs before the trial Court for refund of earnest money, as
stipulated under Section 22(1)(b) of Specific Relief Act. But, the
counsel for the cross-objectors pleaded that this Court may direct
defendant No.1 to refund the earnest money paid by the plaintiffs
vide Ex.A-1 to a tune of Rs.3,00,000/- and Rs.60,000/- which was
paid prior to 20.01.2006, and also direct the trial Court to refund an
amount of Rs.2,00,000/- which was deposited by the plaintiffs,
after decretal of the suit i.e. on 01.09.2009.
GAC, J
A.S.No.688 of 2009
And
Cross-Objections No.49 of 2018
37. The learned counsel for the appellants also filed a Memo
before this Court stating that they have not withdrawn any amount
which was deposited by the plaintiffs/respondents. The recitals of
Ex.A-3 notice also disclose that they have no objection for refund
of the amounts paid by the plaintiffs. Therefore, this Court directs
defendant No.1 to refund the amounts received by him from the
plaintiffs and further directs the trial Court (Senior Civil Judge's
Court, Gadwal) to permit the plaintiffs to withdraw the amount of
Rs.2,00,000/-, which was deposited by them on 01.09.2009, vide
Challan No.7327, lodgment No.53/09-10, along with interest
accrued thereon.
38. With the above directions, the A.S.No.688 of 2009 is
allowed and Cross-objections No.49 of 2018 are disposed of.
No order as to costs.
Pending miscellaneous applications, if any, shall stand
closed.
________________________________
G.ANUPAMA CHAKRAVARTHY, J
Date: 20.09.2022
ajr
