Md. Hyder Ali vs Dasari Komuraiah
2023 Latest Caselaw 132 Tel

       HONOURABLE SMT. JUSTICE P.SREE SUDHA

                APPEAL SUIT No. 576 of 2015

JUDGMENT:

This appeal is preferred by the plaintiff, under Section

96 of C.P.C., against the judgment and decree passed in

O.S.No.18 of 2012, dated 22.04.2015, on the file of the II-

Additional District Judge, Karimnagar at Jagtial.

Appellant herein is plaintiff and respondents herein

are defendants in the suit. For the sake of convenience, the

parties will be referred to as arrayed before the trial Court.

In the plaint, the plaintiff averred as under:

The 1st defendant is the exclusive owner and possessor

of the land known as 'Eedula Gadda' in Sy.No.1390/e to an

extent of Ac.0.14 ½ guntas Situated at Jagtial shivar of

Jagtial Revenue Mandal and that he offered to sell an extent

of Ac.0.11 ½ guntas out of Ac.0.14 ½ guntas to the plaintiff

at the rate of Rs.98,000/- per gunta and as such he executed

an agreement of sale in favour of the plaintiff, after

receiving part sale consideration of Rs.1,00,,000/- on

28.02.2012, in the presence of two witnesses. Though it was

recited in the said agreement of sale that the balance sale

consideration shall be paid on or before 20.05.2012, the

plaintiff approached the 1st defendant on 18.05.2012 for

payment of balance sale consideration, but, the 1st defendant

refused to receive the same and that the said amount was

kept in his bank account No.9335 in Indian Overseas Bank,

Jagtial Branch on 19.05.2012. Thereafter, an attempt was

made with the 1st defendant to make him receive the

balance sale consideration, but he did not come forward and

as such dispute was raised before caste elders of the 1st

defendant and that they advised him to take the balance

sale consideration and to execute a registered sale deed in

favour of the plaintiff, to which he bluntly refused to receive

the balance sale consideration and on the other hand made a

demand for excess amount than agreed. Subsequently, the

plaintiff got issued a legal notice on 21.05.2012 to the 1st

defendant for compliance of the agreement conditions and

that the 1st defendant got issued a reply notice on 08.06.2012

stating that he had no knowledge of deposit of amount in

the bank by the plaintiff and that he had cancelled the

agreement of sale. Thereafter, the plaintiff filed a Pre

Litigation Case before the Chairman, Mandal Legal Services

Committee, Jagtial, on 25.06.2012, vide P.L.C.No.61 of 2012

and the 1st defendant failed to appear before the Committee

in spite of service of notices and as such the P.L.C. was

closed on 21.07.2012 with an advise to file a suit for specific

performance of agreement of sale before the regular Court.

Hence, the plaintiff filed O.S.No.18 of 2012 for specific

performance of contract of agreement of sale dated

28.02.2012 executed by the 1st defendant in his favour and to

declare the registered sale deed bearing document No.4347

of 2012 dated 24.08.2012 on the file of Sub Registrar, Jagtial,

as null and void and not binding on him.

The 1st defendant filed a written statement denying

all the material allegations averred in the plaint. It is stated

that since the plaintiff failed to pay the balance sale

consideration amount as per the agreement dated 28.02.2012

and as the 1st defendant was in dire need of money to meet

his family expenses, he sold an extent of Ac.0.08 ½ guntas of

land in Sy.No.1390/e to the 2nd defendant under a

registered sale deed bearing document No.4357 of 2012

dated 24.08.2012 on the file of the Sub Registrar, Jagtial and

as such the plaintiff had no right over the property. It is

further stated that the plaintiff was never ready and willing

to perform his part of obligation i.e., payment of balance

sale consideration amount within the stipulated date i.e.,

20.05.2012 despite issuance of reminders to him and,

therefore, he is constrained to cancel the sale agreement

dated 28.02.2012. It is further stated that the plaintiff got

issued a legal notice with anti date and the date appearing

on the legal notice is false and in fact on the very same day

on which the 1st defendant received the legal notice, he got

issued a reply notice to the plaintiff on 08.06.2012. The

plaintiff having received the reply notice kept quiet for a

period of two months and filed the present suit with all

false allegations. It is further stated that though the 1st

defendant requested the plaintiff to pay the balance sale

consideration amount after getting the land measured, he

did not turn up and thus the plaintiff violated the terms and

conditions of the agreement of sale and, therefore, it is

prayed to dismiss the suit filed by the plaintiff.

During the pendency of the suit, the subsequent

purchaser of the suit schedule land was impleaded as 2nd

defendant and in his the written statement, he stated that he

has got his own land on the eastern and northern side of the

plaint schedule land; that the 1st defendant for his legal

necessities offered to sell his land admeasuring Ac.0.08 ½

guntas in Sy.No.1390/e situated at Jagtial for a

consideration of Rs.1,07,000/-; that the 2nd defendant agreed

to purchase the said land and paid consideration amount of

Rs.1,07,000/- to the 1st defendant and that he has executed a

registered sale deed bearing No.4357/2012 dated 24.08.2012

in favour of the 2nd defendant; that the revenue authorities

also mutated the name of the 2nd defendant as pattedar of

the said land in the revenue records and thus the 2nd

defendant is the exclusive owner and possessor of the plaint

scheduled land; that the 2nd defendant is a bona fide

purchaser of the suit schedule land and he had no

knowledge about the execution of agreement of sale alleged

to have been executed by the 1st defendant in favour of the

plaintiff; that after expiry of the time stipulated in the

alleged agreement of sale for payment of balance

consideration amount, the 1st defendant cancelled the

agreement and sold the suit scheduled property to the 2nd

defendant; that the registered sale deed bearing document

No.4357/2012 dated 24.08.2012 on the file of Sub Registrar,

Jagtial, is valid and binding on the plaintiff; that as per

revenue records, the 1st defendant was the owner and

possessor of Ac.0.14 ½ guntas of land in Sy.No.1390/e of

Jagtial, but only Ac.0.08 ½ guntas of land was available to

him to sell and as such he sold away the said Ac.0.08 ½

guntas of land and, therefore, requested the Court to

dismiss the suit.

During trial, on behalf of the plaintiff, P.Ws.1 to 3

were examined and got marked Exs.A-1 to A-7. On behalf

of the defendants, D.Ws.1 and 2 were examined and got

marked Exs.B-1 and B-2.

The trial Court, after considering the entire evidence

available on record and also the submissions made by the

learned Counsel appearing on either side, dismissed the suit

of the plaintiff with a direction to the 1st defendant to return

the advance sale consideration amount of Rs.1,00,000/-,

which he took from plaintiff on 28.02.2012, along with

interest @ 6% per annum from the said date till realization

within two months from the date of the judgment, failing

which the plaintiff can seek indulgence of the Court for

recovery of the said amount.

Aggrieved by the aforesaid judgment and decree of

the trial Court, the present appeal has been preferred by

plaintiff, inter alia, contending that the 1st defendant, who

had executed agreement of sale in favour of the plaintiff

neither produced oral nor documentary evidence in support

of his case; that the plaintiff specifically pleaded in his

evidence-in-chief with regard to deposit of balance sale

consideration in Indian Overseas Bank, but the same was

not considered by the trial Court more particularly when

there was no evidence on the part of the 1st defendant to

show that the plaintiff was not ready and willing to perform

his part of contract; that instead of considering the evidence

on record in proper perspective, the trial Court on mere

assumptions and presumptions proceeded in the case and

refused to grant the relief sought by the plaintiff by giving

erroneous findings which are totally illegal and

unsustainable in the eye of law and as such the judgment

under appeal is liable to be set aside; that the trial Court

ought to have seen that the 1st defendant never issued any

notice prior to issuance of notice by the plaintiff with regard

to cancellation of agreement of sale; that the 2nd defendant

without verifying the earlier transaction with regard to suit

schedule land, purchased the same and got the same

transferred in his name and though the 2nd defendant is not

a bona fide purchaser, the trial Court erred in deciding the

issue against the plaintiff and in favour of the defendants;

that the trial Court has not properly appreciated the

provisions of Sections 16 and 20 of the Specific Relief Act,

1963 and, therefore, the judgment under appeal is liable to

be set aside.

Heard the learned Counsel appearing on either side

and perused the entire material placed on record.

The plaintiff, who was examined as P.W1, filed his

chief-examination-affidavit reiterating the contents of the

plaint. He stated that the 1st defendant is the exclusive

owner and possessor of the land known as Eedula Gadda to

an extent of Ac.0.14 ½ guntas in Sy.No.1390/e situated at

Jagtial shivar of Jagtial Revenue Mandal and that the 1st

defendant in order to meet his family expenses offered to

sell an extent of Ac.0.11 ½ guntas out of 0.14 ½ guntas in the

said survey number to the plaintiff at the rate of Rs.98,000/-

per gunta and as such he executed an agreement of sale on

Non Judicial Stamp paper worth Rs.100/- on 28.02.2012 in

favour of the plaintiff, after receiving part sale consideration

of Rs.1,00,000/-, in the presence of two witnesses viz.,

Mallesham and Rajkumar and agreed to execute a valid

registered sale deed in his favour subject to condition to use

the existing way of 10' width from North to South towards

eastern side of the proposed land after receiving the balance

consideration amount on or before 20.05.2012. In the cross-

examination, P.W.1 denied the suggestion that the amount,

which he had kept in his bank account, pertains to his Real

Estate business, but not for paying the same to the 1st

defendant. He denied the suggestion that the Pre Litigation

Case filed by him before the Mandal Legal Services

Committee, Jagtial, was dismissed on the ground of his non-

appearance before the said Committee on the given dates.

He also denied the suggestion that the 1st defendant was not

having any knowledge with regard to the said Pre

Litigation Case. He further denied the suggestion that since

the plaintiff failed to pay the balance sale consideration

within the stipulated time, the 1st defendant constrained to

sell out the land to the 2nd defendant in order to meet the

marriage expenses of his daughter. P.W.1 admitted in his

cross-examination that when the 1st defendant refused to

receive the balance sale consideration from him, he

approached the caste association President of the 1st

defendant by name Abbasi Mallaiah, who advised the 1st

defendant to receive the balance sale consideration from

P.W.1 in the presence of one Ramulu. He further admitted

that the land in question is in possession of the 2nd

defendant and he does not know about the mutation of the

land in favour of the 2nd defendant.

One Abbasi Mallaiah, who acted as caste elder, was

examined as P.W.2. He stated that on 18.05.2012 after

hearing the plaintiff and the 1st defendant, he suggested the

1st defendant to receive the balance sale consideration

amount and to execute a document in favour of the plaintiff,

but the 1st defendant demanded for excess amount and

refused to comply with the agreement of sale. In the cross-

examination, P.W.2 stated that the rate agreed between the

parties was Rs.98,000/- per gunta of land and in his

presence, the plaintiff made an attempt to pay the balance

sale consideration, but the 1st defendant refused to receive

that amount.

P.W.3, who drafted Ex.A1-agreement of sale, stated in

his evidence that he has drafted the agreement of sale, dated

28.02.2012, in Telugu entered into between the plaintiff and

the 1st defendant and read over the contents of the

document to both parties and they admitted the same as

true and correct.

Defendant No.2, who was examined as D.W.1, stated

in his evidence that the 1st defendant offered to sell his land

admeasuring Ac.0.08 ½ guntas in Sy.No.1390/e situated at

Jagtial for a consideration of Rs.1,07,000/- in the year 2012;

that the 2nd defendant agreed to purchase the said land and

paid consideration amount of Rs.1,07,000/- to the 1st

defendant and that he has executed a registered sale deed

bearing No.4357/2012 dated 24.08.2012 in favour of the 2nd

defendant and delivered possession of the land to him; that

the revenue authorities have also mutated the name of the

2nd defendant as pattedar of the said land in the revenue

records; that the 2nd defendant is a bona fide purchaser of the

suit scheduled land and he had no knowledge about the

execution of agreement of sale alleged to have been

executed by the 1st defendant in favour of the plaintiff; that

after expiry of the time stipulated in the alleged agreement

of sale for payment of balance consideration amount, the 1st

defendant cancelled the agreement and sold the suit

scheduled property to the 2nd defendant; that the registered

sale deed bearing document No.4357/2012 dated 24.08.2012

on the file of Sub Registrar, Jagtial, is valid and binding on

the plaintiff. He further stated that the legal notice got

issued by the plaintiff to the 1st defendant was subsequent

to the expiry of the stipulated time in the alleged agreement

of sale. In the cross-examination, he stated that he does not

have any previous acquaintance with the plaintiff and he

came to know about him when he was added as a party to

the suit; that the land in dispute is covered by Sy.No.1930/e

located at Edulagatta of Jagtial shivar and he does not have

any idea about the total extent of land in that survey

number; that one month prior to the date of registration,

there were talks between him and the 1st defendant and in

the month of August, 2012, registration of the land took

place; that he got 6 ½ guntas of land in the vicinity of the

land in dispute and the said land is covered by the same

survey number and that he had no knowledge about the

agreement of sale of the suit scheduled land entered into

between the plaintiff and the 1st defendant. When D.W.1

was confronted with the computerized Pahani Patrika of the

suit land dated 16.12.2014, he stated that the 1st defendant is

having an extent of Ac.0.14 ¼ guntas. He stated that he

does not know about filing of PLC No.61 of 2012 by the

plaintiff against the 1st defendant before the Mandal Legal

Services Authority, Jagtial. He denied the suggestion that he

is not in possession of the suit schedule land and the suit

schedule land was not mutated in his name and that he

obtained Ex.B2-Pahani Patrika by managing the revenue

authorities.

One of the attestors of the registered sale deed

executed by the 1st defendant in favour of the 2nd defendant

was examined as D.W.2. He stated in his evidence that

himself and one Ekkaladevi Mallesham were present at the

time of registration of the sale deed bearing document

No.4357/2012 dated 24.08.2012 on the file of the Sub

Registrar, Jagtial, and that the said registered sale deed

bears his signature as an attestor.

The Point that arises for consideration is whether

there is any infirmity or illegality in the judgment of the trial

Court warranting interference of this Court with the

findings recorded by it ?

Admittedly, Ex.A1-agreement of sale was executed by

the 1st defendant in favour of the plaintiff on 28.02.2012 in

respect of his land admeasuring Ac.0.11 ½ guntas in

Sy.No.1390/e situated at Jagtial shivar, at the rate of

Rs.98,000/- per gunta and that the plaintiff paid

Rs.1,00,000/- to the 1st defendant on the same day towards

advance sale consideration. It was recited in the said

agreement of sale that after payment of balance sale

consideration on or before 20.05.2012, the 1st defendant

would execute the registered sale deed in favour of the

plaintiff. The plaintiff, who was examined as P.W.1, stated

in his evidence that he approached the 1st defendant on

18.05.2012 for payment of balance sale consideration, but,

the 1st defendant refused to receive the same for the reasons

best known to him and that the said amount was kept in his

bank account No.9335 in Indian Overseas Bank, Jagtial

Branch on 19.05.2012. Thereafter, the plaintiff made an

attempt with the 1st defendant to make him receive the

balance sale consideration, but he did not come forward and

as such a dispute was raised before caste elders of the 1st

defendant and that they advised him to take the balance

sale consideration and to execute a registered sale deed in

favour of the plaintiff, to which he bluntly refused to receive

the balance sale consideration and on the other hand made a

demand for excess amount than agreed. Subsequently, the

plaintiff filed a Pre Litigation Case before the Chairman,

Mandal Legal Services Committee, Jagtial, on 25.06.2012,

vide P.L.C.No.61 of 2012 and since the 1st defendant failed

to appear before the said Committee despite service of

notices, the said case was closed on 21.07.2012 with an

advice to file a suit for specific performance of agreement of

sale before the regular Court. Thereafter, the plaintiff filed

the present suit for specific performance of agreement of

sale on 30.08.2012. The contention of the 1st defendant is

that since the plaintiff failed to pay the balance sale

consideration within the stipulated date, he cancelled the

agreement of sale entered into between him and the plaintiff

and sold an extent of Ac.0.08 ½ guntas of land in

Sy.No.1390/e to the 2nd defendant under a registered sale

deed bearing document No.4357 of 2012 dated 24.08.2012

and as such the plaintiff had no right over the property.

Though the 1st defendant filed his written statement, he did

not enter into the witness box to substantiate his case.

The 1st defendant failed to mention the date of

cancellation of agreement of sale entered into between him

and the plaintiff either in his written statement or in his

Ex.A7-reply notice dated 08.06.2012. That apart, the 1st

defendant never issued any notice prior to the issuance of

notice by the plaintiff with regard to cancellation of

agreement of sale. The 2nd defendant, who was examined as

D.W.1, stated in his evidence that as if the 1st defendant

cancelled the agreement of sale and sold an extent of Ac.0.08

½ guntas of land in Sy.No,1390/e of Jagtial shivar to him

under a registered sale deed bearing document

No.4357/2012 dated 24.08.2012. Thus, it is evident that the

2nd defendant without verifying the earlier transaction with

regard to the suit schedule land, purchased the same

and got transferred in his name. Further,

it is admitted by the 1st defendant and the plaintiff that the

1st defendant is having total extent of Ac.0.14 ½ guntas of

land in Sy.No.1390/e of Jagtial shivar, and out of the said

land, the 1st defendant entered into an agreement of sale

with the plaintiff to an extent of Ac.0.11 ½ guntas only at the

rate of Rs.98,000/- per gunta, which comes to Rs.11,27,000/-

(Rs.98,000/- x 0.11 ½ ). However, it is the contention of the

1st defendant that since the plaintiff failed to pay the balance

sale consideration within the stipulated time, he cancelled

the agreement and sold an extent of Ac.0.08 ½ guntas in the

same survey number to the 2nd defendant for a sum of

Rs.1,07,000/- only, which is much lesser than the sale

consideration offered to the plaintiff.

The main contention of the 1st defendant is that the

plaintiff was not at all ready and willing to perform his part

of contract and, therefore, the 1st defendant issued a notice

to the plaintiff informing the cancellation of Ex.A1-

agreement of sale executed by him in favour of the plaintiff.

However, no oral or documentary evidence has been

produced by the 1st defendant in support of his contention.

The plaintiff (P.W.1) specifically pleaded in his evidence-in-

chief that he approached the 1st defendant on 18.05.2012 for

payment of balance sale consideration, but, he refused to

receive the same and that the said amount was kept in his

bank account No.9335 in Indian Overseas Bank, Jagtial

Branch. The suggestion put to P.W.1 that the amount in the

account was kept for real estate purpose itself shows that

the 1st defendant has knowledge of the amount in the

account of plaintiff on 19.05.2012. He stated in his cross-

examination that when the 1st defendant refused to receive

the balance sale consideration from him, he approached the

caste association President of the 1st defendant by name

Abbasi Mallaiah (P.W.2) and apprised the attitude of the 1st

defendant and that P.W.2 advised the 1st defendant to

receive the balance sale consideration from him. In the

absence of any evidence on behalf of the 1st defendant, the

trial Court ought to have accepted the evidence of the

plaintiff with regard to his ready and willingness to perform

his part of contract. The evidence of P.W.2 is corroborated

with the evidence of P.W.1 with regard to the attempts

made by him for payment of balance sale consideration to

the 1st defendant, who refused to receive the same. Thus,

the 1st defendant, even without cancelling Ex.A1-agreement

of sale entered into between him and the plaintiff and even

without accepting the sale consideration offered by the

plaintiff, out rightly sold the suit schedule property to the

2nd defendant (D.W.1) for a meagre sum of Rs.1,07,000/-

when compared to the sale consideration agreed between

him and the plaintiff. In fact, he demanded excess amount

from the plaintiff for execution of registered sale deed.

Thus, the subsequent registration of the sale deed in favour

of the 2nd defendant is not valid as he is not a bona fide

purchaser. The trial Court, without appreciating the

evidence on record in proper perspective, directed the 1st

defendant to pay the advance sale consideration amount of

Rs.1,00,000/- to the plaintiff with interest at 6% per annum

from the date of agreement of sale till the date of judgment

even though no alternate relief is sought for by the plaintiff

for return of the sale consideration. Therefore, this Court

is of the considered view that the registered sale deed

bearing document No.4347 of 2012 dated 24.08.2012 on the

file of the Sub Registrar, Jagtial, alleged to have executed by

the 1st defendant in favour of the 2nd defendant is collusive

and is not valid and binding on the plaintiff and as such it is

liable to be cancelled and is accordingly cancelled.

For the reasons aforementioned, this Court finds that

the findings given by the trial Court are not based on sound

legal principles and that the judgment of the trial Court

suffers from infirmities and material irregularities and as

such it is liable to be set aside.

In the result, the Appeal Suit is allowed, and the judgment

and decree, dated 22.04.2015, passed in O.S.No.18 of 2012 on the

file of the II-Additional District Judge, Karimnagar at Jagtial, are

hereby set aside. The 1st respondent/defendant No.1 is directed

to execute a registered sale deed conveying the suit schedule

land in favour of the appellant/plaintiff after receiving the

balance sale consideration within a period of three (3) months

from the date of receipt of a copy of this judgment. There shall

be no order as to costs.

Miscellaneous petitions, if any, pending, shall stand

closed.

________________________ JUSTICE P.SREE SUDHA 06.01.2023 Gsn.