Shaik Ibrahim Siddiqui vs G.Peta Jangaiah
2023 Latest Caselaw 2726 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                APPEAL SUIT No.243 of 2009

JUDGMENT:

This Appeal Suit is filed against the Judgment and Decree

dated 17.11.2008 in O.S.No.1780 of 2005 passed by the learned

I - Additional Senior Civil Judge, R.R.District at L.B.Nagar,

Hyderabad.

2. Appellant/plaintiff filed a suit in O.S.No.1780 of 2005 for

Specific Performance against respondents/defendants. Plaintiff

examined himself as P.W.1 and marked Ex.A1 Agreement of

Sale on his behalf. Though defendants filed written statement,

they have not Cross-examined P.W.1 and not entered into

witness box to adduce evidence, as such their evidence was

closed on 07.11.2008 and the trial Court after hearing the

arguments of the plaintiff Counsel, partly decreed the suit for

Rs.1,94,900/- with proportionate costs and future interest was

awarded @ 12% p.a. from 17.06.2005 till realization. Aggrieved

by the said Judgment, plaintiff therein preferred the present

appeal.

3. The learned Counsel for the appellant/plaintiff contended

that though the respondents/defendants admitted Ex.A1, they

simply stated that they thought it was General Power of

Attorney (G.P.A) and they failed to enter into witness box to

substantiate their version. Respondents/defendants stated that

they received Rs.1,94,900/- as loan transaction, but they did

not Cross-examine P.W.1. It was clearly stated by the

appellant/plaintiff that out of Rs.2,00,000/-, he paid cash of

Rs.5,100/- and issued a cheque for Rs.1,94,900/-. The trial

Court held that agreement was not registered and there are

alterations in the addresses of the defendants, but the said

alterations were not attested. Even when there was an

alteration, it cannot change the document. He also contended

that plaintiff can file suit for Specific Performance basing on the

unregistered Agreement of Sale. The trial Court observed that

plaintiff failed to prove Ex.A1 by examining the attestors, but

failed to observe that it was admitted by the defendants. The

trial Court instead of decreeing the suit for specific performance,

partly decreed it for refund of the amount paid by the

appellant/plaintiff with interest. Therefore, requested the Court

to set aside the Judgment of the trial Court.

4. Plaintiff in the suit stated that defendants are absolute

owners of the land in Sy.No.472 measuring an extent of

Acs.10 - 27 gts, situated at Thimmapur village, Kandukur

Mandal. They agreed to sell the property for Rs.9,50,000/-.

Plaintiff found that there was no approach road for the suit

schedule property and demanded defendants to get permission

from the concerned authority and the same was accepted by

them. Defendants also stated that other pattedars have already

made requisition to the Mandal Revenue Officer, Kandukur for a

way to approach road for the suit schedule property and also to

the neighbouring properties and they demanded token amount

of Rs.5,100/- to expedite the work, accordingly he paid the

same in cash. The defendants also approached the Sarpanch

and made an application on 13.06.2005 to M.R.O, Kandukur to

show the approach way for the lands in Sy.No.111, 472 and 473

of Thimapur village.

5. Defendants have entered into an Agreement of Sale with

the plaintiff on 17.06.2005 and plaintiff paid Rs.1,94,900/- by

way of Cheque and the same was realized by defendant No.1

and later it was distributed among the defendants. Defendants

delivered the suit schedule property to plaintiff on 25.06.2005

and on the demand of the defendants, plaintiff paid Rs.10,000/-

for laying the approach road to the suit schedule property.

When he was ready to pay the balance sale consideration, he

approached the defendants, but they asked him to come after

Dussara festival, as such again he approached them on

16.10.2005, but they requested him to come after Diwali festival

and thus he again went to them on 06.11.2005. Plaintiff was

informed by defendants No.2 and 3 that defendant No.1 was not

interested in selling the property to him, as such he demanded

defendants No.2 and 3 to execute registered sale deed of their

share, so that he can take steps against the defendant No.1, but

still they have not executed the sale deed on one or other

pretext. Finally on 27.11.2005, when plaintiff requested the

defendants to receive balance sale consideration, they

demanded more than the agreed amount and made it clear that

in case of non-payment of additional amount, they are not going

to register the sale deed, as such he filed the suit for specific

performance.

6. In the written statement filed by the defendants in the

suit, they admitted that they are absolute owners of the suit

schedule property and further stated that the suit land was

mutated in the revenue records in their names as per the

proceedings of the M.R.O, Kandukur vide proceedings

No.ROR/B/2537/2004 dated 17.12.2004, even the Pattadar

Passbook and title deeds were also issued separately after

dividing the entire land into three portions. They denied the

Agreement of Sale entered with the plaintiff and further stated

that in fact, they entered into an Agreement of Sale with one

A.Yadaiah. When he was not coming forward to pay the balance

sale consideration, plaintiff who acquainted with defendant No.1

came forward to secure purchasers with higher price and thus

they executed G.P.A in favour of the plaintiff, but plaintiff got

prepared the Agreement of Sale in the guise of G.P.A and they

put their signatures under the impression that it is G.P.A.

Plaintiff now brought into their notice that they entered into an

Agreement of Sale and filed a false suit against them. They

further stated that defendant No.1 requested the plaintiff to

advance a loan of Rs.3,00,000/-, but the plaintiff agreed to pay

Rs.1,94,900/- through cheque, they accepted the cheque and

realized the amount. The defendant No.1 is ready to repay the

amount and they were never informed that it is a part of sale

consideration. They never delivered even an inch of land out of

the suit schedule property to the plaintiff. They handed over the

suit schedule property to Yadaiah with whom they entered into

the agreement. They never received Rs.10,000/- for laying the

approach road from the plaintiff and he never approached them

demanding to receive the balance sale consideration and

execute the registered sale deed and thus there is no cause of

action. The value of the suit property is more than

Rs.12,00,000/-, as such the concerned Court has no

jurisdiction and thus requested the Court to dismiss the suit.

7. As per the docket proceedigs of the trial Court, P.W.1

examined in-chief on 08.09.2008 and marked Ex.A1. As

defendants did not Cross-examine P.W.1, it was treated as no

Cross-examination of P.W.1 on 31.10.2008 and plaintiff

evidence was closed on the same day and thus the matter was

posted for defence evidence. As there is no representation on

behalf of the defendants, defence evidence was closed on

07.11.2008 and on hearing the arguments of plaintiff, matter

was reserved for Judgment on the same day.

8. Now it is for this Court to see whether the Judgment of

the trial Court is on proper appreciation of the facts or not.

9. The parties herein are referred as plaintiff and defendants

as arrayed in the trial Court for the sake of convenience.

10. Perusal of Ex.A1 Agreement of Sale shows that it was

executed by defendnats in favour of plaintiff for a total sale

consideration of Rs.9,50,000/- and plaintiff paid Rs.1,94,900/-

by way of cheque and Rs.5,100/- in cash i.e., Rs.2,00,000/- in

total towards advance sale consideration and agreed to pay

balance of Rs.7,50,000/- within four months or at the time of

registration of the sale deed. As per clause 4 of the Agreement of

Sale, vendors agreed to clear the road within 4 months. If they

fail to do so, they agreed to pay double the amount of the said

advance given by the plaintiff. Vendors promised to handover

the original link documents at the time of registration.

Defendants did not dispute the execution of Ex.A1, but simply

stated that they entered into an Agreement of Sale with one

Yadaiah, but he has not paid the balance sale consideration, as

such they entered into G.P.A with the plaintiff for securing

purchasers. Plaintiff in the guise of drafting G.P.A, got drafted

Agreement of Sale and obtained their signatures. They denied

the receipt of Rs.2,00,000/-, though it was clearly mentioned in

the Agreement of Sale and Ex.A1 clearly shown as Agreement of

Sale, but not as G.P.A. Though defendants stated that they

already entered into an Agreement of Sale with one Yadaiah,

they have not filed the said Agreement of Sale before the Court.

They have also not stated the date on which they entered into

Agreement of Sale with him and the amount of sale

consideration. They further stated that they have also handed

over the possession to Yadaiah, though he has not paid the

balance sale consideration to them. The said defence is not

believable to substantiate their version. They have not Cross-

examined P.W.1 and also not entered into witness box to

substantiate their version.

11. As per Section 114, III(g) of the Indian Evidence Act,

adverse presumption must be drawn against the defendants

who does not present themselves for Cross-examination and

refused to enter into the witness box in order to refute

allegations made against them or to support their pleadings in

their written statement and the same proposition was also

emphasized by the Hon'ble Apex Court in the case of

Vidhyadhar Vs. Manikrao and another 1 and in the case of

Iswar Bhai C.Patel alias Bachu Bhai Patel Vs. Harihar

Behera and another 2. Even in this case, defendants did not

entered into the witness box and have not made any statement

in support of their defence in the written statement, as such

adverse inference has to be drawn against them that what was

stated by them in the written statement as not correct.

12. Mere filing of the written statement is not sufficient when

once they denied the execution of the Agreement of Sale under

Ex.A1, it is for the defendants to disprove the facts stated by the

(1999) 3 SCC 573

(1999) 3 SCC 457

plaintiff, but they failed to do so. As per Ex.A1 it was executed

for Rs.9,50,000/-, out of which Rs.2,00,000/- was paid on the

same day and balance to be paid within four months. Plaintiff

stated that he approached defendants for execution of the

registred sale deed, but they asked him to come after Dussara

festival, as such he again met them on 16.10.2005, but they

asked him to come after Diwali and thus he again met them on

06.11.2005. Later, they stated that defendant No.1 was not

interested to execute the registered sale deed and demanded

additional sale consideration. It clearly shows that defendants

failed to execute the registered sale deed even after the best

efforts made by the plaintiff.

13. Defendants contended that plaintiff did not examine

attestor or any other witness to prove Ex.A1. When, once Ex.A1

is admitted by the defendants, it need not to be proved again by

examining the attestors. The initial burden to prove Ex.A1 is on

the plaintiff. When once he discharges the same, the onus shifts

to the defendants, but the defendants have not Cross-examined

P.W.1 and also not entered into the witness box and the defence

taken by them is also not believable and they have not filed the

Agreement of Sale executed by them in favour of Yadaiah for the

reasons best known to them and thus the said defence appears

to be false. When there are several lapses on the part of the

defendants and they could not register the sale deed as agreed

by them in spite of best efforts made by the plaintiff, the trial

Court instead of granting the decree for Specific Performance of

Agreement of Sale, erred in granting the return of Rs.1,94,900/-

with interest. Therefore, the Judgment of the trial Court is

patently erroneous and is liable to be dismissed.

14. In the result, the appeal suit is allowed with costs by

setting aside the Judgment of the trial Court dated 17.11.2008

in O.S.No.1780 of 2005. The appellant herein is directed to

deposit the balance sale consideration within one month from

the date of this Judgment, on such deposit,

respondents/defendants are directed to execute the registered

sale deed in his favour. If they fail to do so, appellant/plaintiff is

at liberty to approach the concerned Court for execution of the

registered sale deed in his favour.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATE: 26.09.2023 tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.243 of 2009

DATE: 26.09.2023

TRI