Telangana High Court

Mohanlal , Mohan Pahelwan vs Jai Prakash Total And 2 Others on 5 February, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

   THE HONOURABLE Dr.JUSTICE G. RADHA RANI
           SECOND APPEAL Nos.1287 and 1308 of 2012
COMMON JUDGMENT:

These second appeals are filed by the appellant-respondent-

defendant No.2 aggrieved by the common judgment and decree dated

22.02.2012 passed in A.S.Nos.204 and 206 of 2008 on the file of the IX

Additional District and Sessions Judge (F.T.C.), Ranga Reddy at L.B.

Nagar in allowing the appeals filed by the respondent No.1-plaintiff by

setting aside the common judgment and decree dated 30.06.2008 passed

in O.S.Nos.998 and 941 of 2001 on the file of the V Additional Senior

Civil Judge (FTC), Ranga Reddy District.

2. The respondent No.1-plaintiff filed O.S.No.998 of 2001 for

specific performance of agreement of sale dated 27.10.1996 in respect of

Ac.0-37 gts. in Sy.No.64, Ac.1-00 gts. in Sy.No.392, Ac.1-38 gts. in Sy.

No.393, in all admeasuring Ac.3-35 gts. situated at Narkoda Village,

Shamshabad Mandal, Ranga Reddy District and filed O.S. No.941 of

2001 for perpetual injunction restraining the defendants or any other

person acting on behalf of the defendants from interference with his

possession over the suit schedule property.

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

3. The parties are hereinafter referred as arrayed before the trial

court.

O.S.No.998 of 2001:

4. The contention of the plaintiff was that he entered into an

agreement with defendant No.1 to purchase agricultural land admeasuring

Ac.13-32 gts. covered under Sy. Nos. 64, 385, 390 to 393 situated at

Narkoda village, Shamshabad Mandal, Ranga Reddy District under

agreement of sale dated 27-07-1996 at the rate of Rs.40,000/- per acre.

After the execution of the agreement of sale, the defendant had delivered

and put the plaintiff in possession of the entire property and since then the

plaintiff was in possession of the entire land and cultivating the same by

developing the said land. The plaintiff paid the entire sale consideration

in respect of Ac.13-32 guntas to the defendant. As there was difference in

the extent of land in Sy. No. 64 to an extent of Ac.0-26 guntas, as per

entries made in the pass book and title deed and link documents, the

defendant on demand of the plaintiff executed registered sale deed

bearing No.2512/2000 dated 06-09-2000 to an extent of Acs.9-11 guntas

(i.e., Ac.1-32 gts. in Sy.No.385, Acs.4-20 gts. in Sy.No.390, Ac.1-39 gts.

in Sy.No.391 and Ac.1-00 gts. in Sy.No.392 part), all situated at Narkoda

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

village, Shamshabad Mandal, Ranga Reddy District and agreed for

survey of the total land and in the said sale deed the defendant accepted

and acknowledged the receipt of entire sale consideration in respect of

land Ac.13-32 guntas under the agreement of sale dated 27-10-1996 and

handed over all the original documents pertaining to the above said land

to the plaintiff and acknowledged the possession of the plaintiff over

entire land. The defendant delivered the physical possession of the entire

land under receipt of delivery note dated 31-10-1996 and also delivered

the possession of Ac.9-11 guntas under the registered sale deed dated

06.09.2000. After the execution of the above sale deed, the land was

surveyed at the cost of the plaintiff and found that the total extent was

only Ac.13-06 guntas instead of Ac.13-32 guntas. As such, the defendant

agreed that she would execute the sale deed in favour of plaintiff in

respect of the remaining land admeasuring Ac.3-35 gts. and requested to

forego the excess amount paid by him. The plaintiff was requesting the

defendant to execute the registered sale deed in respect of the remaining

land admeasuring Ac.3-35 gts. out of Ac.13-06 gts, but the defendant

dodged the same, postponed execution of registered sale deed and lastly

refused to execute the sale deed on 01.11.2001, when the plaintiff

demanded to execute the registered sale deed.

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

4.1. The plaintiff further contended that on 06.11.2001 some

persons came to the agricultural land admeasuring Ac.3-35 gts. and were

inspecting the same. On his enquiry, they revealed that they were

interested in purchasing the said land and that negotiation was in

progress. From then onwards, the defendant started interference to

dispossess the plaintiff from the suit schedule property without any right

or claim. After receiving the entire sale consideration in respect of Acs.3-

35 gts, she was bound to execute the registered sale deed but negotiating

with third parties with an intention to cause loss to the plaintiff. Left with

no other alternative, the plaintiff approached the court seeking specific

performance of the part of the contract under the agreement of sale dated

27.10.1996 and for perpetual injunction against the defendant.

5. The defendant No.2 - the subsequent purchaser (appellant

herein) was impleaded as per the orders in I.A.No.1741 of 2001 dated

08.02.2002 and an amendment was made to the reliefs to cancel the

registered sale deed bearing No.4713/2001 dated 10.10.2001 executed by

defendant No.1 in favour of defendant No.2.

6. The defendant No.1 filed written statement submitting that

she was the absolute owner and possessor of the agricultural land total

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

admeasuring Ac.13-32 guntas situated at Narkoda village, Shamshabad

Mandal, Ranga Reddy District forming part and parcel of land in

Sy.Nos.64, 385, 391, 392 and 393. On 27.10.1996, she entered into an

agreement of sale with the plaintiff wherein she agreed to sell the entire

extent of Ac.13-32 gts. in his favour for a valuable sale consideration at

the rate of Rs.40,000/- per acre subject to actual measurement and

availability of land on the ground. In pursuance of the same, she received

a total sale consideration of Rs.50,000/- initially and as per clause 1 (c) of

the said agreement of sale the purchaser i.e., plaintiff has to pay the

balance amount of sale consideration @ Rs.40,000/- per acre on or before

30-08-1997. The said condition expired and the plaintiff failed to

perform his part of contract under that agreement of sale and violated the

terms and conditions. However, the plaintiff on expiry of the said period

of time again requested the defendant to extend the time for execution of

agreement of sale so as to enable him to arrange for necessary funds and

to pay the balance amount of sale consideration. Finally, the plaintiff

expressed that he was not in a position to pay the entire sale consideration

for the total extent of the land and requested the defendant to execute the

sale agreement only to an extent of Acs.9-11 guntas out of the total extent

of Acs.13-32 guntas of the suit schedule property. Accordingly, the

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

defendant executed the registered sale deed dated 06-09-2000 in favour of

the plaintiff to an extent of Acs.9-11 guntas forming part and parcel of

Ac.1-32 gts. in Sy.No.385, Acs.4-20 gts. in Sy.No.390, Ac.1-39 gts. in

Sy.No.391 and Ac.1-00 gts. in Sy.No.392 (part) situated at Narkoda

village, Shamshabad Mandal, Ranga Reddy District within the boundaries

mentioned in the said sale deed. The defendant received and adjusted the

sale consideration of Rs.3,71,000/- in respect of Acs.9-11 gts. out of the

total extent of Acs.13-32 gts.. Accordingly, the plaintiff became the

owner of the land to an extent of Acs.9-11 gts. but not to the total extent

of Acs.13-32 gts. as contended by him. The plaintiff under the guise of

the said sale deed, executed for an extent of Acs.9-11 gts. tried to

encroach upon the remaining land belonging to the defendant No.1. The

agreement of sale by the omissions and commissions of the plaintiff

resulted in execution of the sale deed dated 06.09.2000 to an extent of

Ac.9-11 gts.. The rest of the claim in respect of the remaining land had

been forfeited by the plaintiff and the said fact was suppressed by him.

The plaintiff himself before execution of the said sale deed expressed his

inability to pay the balance sale consideration for the entire land and it

was mutually agreed to execute the sale deed to an extent of sale

consideration already received by the defendant. In that process, the

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

above said sale deed dated 06.09.2000 was got executed. The plaintiff

was a practicing Advocate for the last more than fifteen years, as such,

trying to take advantage of his legal knowledge and in that process, he got

executed a false receipt for the alleged delivery of possession of the entire

extent of the land without extension of agreement of sale in his favour.

The receipt dated 31.10.1996 was not having any validity in view of the

subsequent sale deed dated 06.09.2000. As such, the said receipt was not

binding on the defendant. Prior to the said execution of sale deed certain

negotiations and meetings took place between the defendant and the

plaintiff in the presence of the defendant's son as well as the defendant

No.2. In pursuance of the same only, the sale deed dated 06.09.2000 was

executed in favour of the plaintiff.

6.1. The defendant further submitted that on execution of the sale

deed dated 06.09.2000, she sold the remaining extent of Acs.4-21 gts.

owned and possessed by her to the defendant No.2 for a valuable sale

consideration under sale deed dated 10.10.2001 vide document No.4713

of 2001 on the file of the Sub-Registrar Office, Shamshabad. The said

sale deed was executed by the defendant as well as by her husband and

sons and the possession of the land to an extent of Acs.4-21 gts. was

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delivered to defendant No.2. At present, he was in occupation of the

same. By virtue of the said sale transaction, the plaintiff had no more

locus-standii to approach the Court. Infact, the plaintiff was in

knowledge that the balance Ac.4-21 gts. was sold to the defendant No.2,

but had not filed the suit initially against the defendant No.2 and only

impleaded him as per the orders dated 08.02.2022. The defendant No.2

being the bonafide purchaser was entitled to protect the land and his

rights to an extent of Acs.4-21 gts. under the sale deed dated 06.09.2000.

The plaintiff was having right only to an extent of Ac.9-11 gts which was

owned and possessed by him under the sale deed dated 06.09.2000. For

the balance of land, the plaintiff had no right to seek any relief either

against her or the defendant No.2 who was a bonafide purchaser and

prayed to dismiss the suit.

7. The defendant No.2 filed a memo adopting the written

statement filed by defendant No.1.

8. Basing on the said pleadings, the following issues are settled

for trial by the trial court:

1. Whether the plaintiff expressed his inability to purchase total land of Acs.13-32 gts., as per the

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

agreement dated 27.07.1996 due to shortfall of the amount and purchased only Acs.9-11 gts. and given up his right over the plaint schedule land to defendant No.1?

2. Whether the defendant No.2 is a bonafide purchaser of plaint schedule land?

3. Whether the plaintiff is entitled for specific performance of contract in respect of plaint schedule land by seeking cancellation of sale deed executed by defendant No.1 in favour of defendant No.2?

4. Whether the plaintiff is in possession of the plaint schedule land and entitled for perpetual injunction?

5. To what extent?

O.S.No.941 of 2001:

9. This suit was filed by the plaintiff against the defendants 1

and 2 who were the sons of his vendor, Smt. Sarojini Yadav @ Saroja

and subsequent purchaser arrayed by him as defendant No.3 seeking

the relief of perpetual injunction for the entire agricultural land

admeasuring Ac.13-32 gts. in Sy.Nos.64, 385, 390, 391, 392 and 393

situated at Narkoda village, Shamshabad Mandal, Ranga Reddy

District. In this suit, he contended that Smt. Sarojini Yadav @ Saroja

represented that she was the absolute owner and possessor of the

agricultural land totally admeasuring Ac.13-32 gts. and entered into an

agreement with him on 27.10.1996 and received part of sale

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

consideration and delivered physical possession of the suit schedule

property on 31.10.1996 and documents in part performance of the said

agreement of sale and since then he was in peaceful possession and

enjoyment of the same as agreement holder and his name was also

entered in the revenue records in possessory column. He developed

the suit schedule property by levelling, fencing and was doing

agriculture in it. Smt. Sarojini was receiving the balance sale

consideration from the plaintiff from time to time. On 06.09.2000,

Smt. Sarojini executed a registered sale deed in respect of a portion of

the suit schedule property to an extent of Ac.9-11 gts. covered by

Sy.Nos.385, 390, 391 and 392 and agreed to execute and register the

sale deed in respect of the remaining land after surveying it, as and

when demanded by the plaintiff. The said Sarojini delivered the

original title deeds, link documents and all other documents in her

possession in respect of the suit schedule property to the plaintiff. The

name of the plaintiff had been mutated in the revenue records as

pattadar and possessor in respect of the schedule property. The patta

passbooks were also issued in favour of the plaintiff as per the orders

passed in R.O.R. proceedings No.B-771/2000 dated 03.03.2001 in

respect of the property covered by the sale deed. The plaintiff paid the

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

total sale consideration to Smt. Sarojini. While the matters stood thus,

the defendants who have no right, title and interest of whatsoever

nature started interfering with the possession and enjoyment of the

plaintiff over the suit schedule property. On 17.10.2001, the

defendants tried to interfere with the possession of the plaintiff with

the help of unsocial elements, however, the defendants could not

succeed in their attempts due to the timely resistance of the plaintiff.

The defendants threatened to come again with more force to take

forcible possession of the suit schedule property. As the police refused

to receive the complaint, he filed the suit seeking the relief of

perpetual injunction.

11. The defendant No.1 filed written statement which was

adopted by defendants 2 and 3. The said written statement was on

similar lines with the written statement filed by defendant No.1 in

O.S.No.998 of 2001. It was also stated by defendant No.1 that he was

an attesting witness to the said sale deed dated 06.09.2000 executed by

his mother in favour of the plaintiff. He specifically contended that

the earlier agreement between his mother and the plaintiff for the

entire extent of Acs.13-32 gts. stood terminated before execution of

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

the sale deed itself, as the plaintiff expressed his inability to pay the

entire sale consideration for the entire land and it was mutually agreed

to execute the sale deed only to the extent of sale consideration

received by the defendant No.1 and in that process, the above sale

deed was executed by his mother Smt. Sarojini. Taking advantage of

the absence of defendants 1 and 2, the plaintiff got executed a receipt

in the year 1996 with regard to the alienation provision over the suit

schedule property to an extent of Acs.13-32 gts.. However, in view of

the subsequent sale deed dated 06.09.2000, the receipt dated

31.10.1996 had no validity, nor the same was binding on the

defendants. The defendant No.1 also contended that subsequent to the

execution of the sale deed to the plaintiff, his mother Sarojini sold the

remaining extent of Acs.4-21 gts. owned and possessed by her to

defendant No.2 for a valuable sale consideration before the Sub-

Registrar Office, Shamshabad and the said sale deed was executed by

his mother Sarojini as well as the defendants 1 and 2 and their other

brother and the portion of the land to an extent of Acs.4-21 gts. was

delivered to defendant No.3 and he was in occupation of the same.

The defendant No.1 further contended that the plaintiff ought to have

made their mother as a necessary party to the above proceedings. The

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plaintiff approached the court with unclean hands, suppressing the true

facts and prayed to dismiss the suit.

12. Basing on the said pleadings, the trial court framed the issues

as follows:

1. Whether the plaintiff is in peaceful possession of the plaint schedule property as on the date of the suit?

2. Whether the alleged interference by the defendants is true and correct?

3. Whether the plaintiff is entitled for perpetual injunction as prayed for?

4. To what relief?

13. The trial court clubbed both the suits and recorded evidence

in common in O.S.No.998 of 2001. The plaintiff got examined himself as

PW.1 and got marked Exs.A1 to A26. Smt. G. Sarojini Yadav @ Saroja,

the vendor of the plaintiff was examined as DW.1. No documents were

marked on behalf of the defendants.

14. On considering the oral and documentary evidence on

record, the trial court i.e., V Additional Senior Civil Judge (FTC), Ranga

Reddy District dismissed both the suits. Basing on the admissions made

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

by PW.1 in his cross-examination that as per clause 1(c) of the agreement

of sale, the balance sale consideration was payable by 30-08-1997 i.e., at

the time of registration and PW.1 admitted that as per clause 2 of the said

agreement of sale, the actual and physical possession of the property was

agreed to be delivered at the time of registration of the sale deed and

further admitted that defendant No.3 in O.S.No.941 of 2001 and

defendant No.2 in O.S.No.998 of 2001 had purchased the remaining land

of Ac.4-21 gts. and that he had not issued any notice to the defendant

No.1 demanding her to perform her part of the contract before filing of

the suit in O.S.No.998 of 2001 and that he had not filed Exs.A2 to A12

receipts at the time of filing of O.S.No.998 of 2001, the trial court held

that the plaintiff failed to perform his part of contract and that as he paid

only Rs.3,71,000/- he got executed a sale deed for an extent of Ac.9-11

gts. only which itself would disclose that he forfeited his right with regard

to the balance extent of Ac.4-21 gts.. Further he had also not issued any

notice to the defendant No.1 expressing his willingness and readiness to

get the execution of the sale deed to the balance extent. As such, he was

not entitled for the relief of specific performance of contract in respect of

the suit schedule property and for seeking cancellation of sale deed

executed by defendant No.1 in favour of defendant No.2.

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

15. The trial court further observed that as the plaintiff in his

cross-examination admitted that defendant No.3 was in possession and

enjoyment of Acs.4-21 gts., since the date of his purchase, he was not

entitled for the relief of perpetual injunction and dismissed both the suits.

16. Aggrieved by the said common judgment and decree dated

30.06.2008 passed in O.S.No.941 and 998 of 2001, the plaintiff preferred

A.S.No.204 of 2008 against the judgment and decree in O.S.No.998 of

2001 and A.S.No.206 of 2008 against the judgment and decree in

O.S.No.941 of 2001. Both these appeals were heard by the learned IX

Additional District and Sessions Judge (FTC), Ranga Reddy District and

vide common judgment dated 22.02.2012, the appeals were allowed

reversing the findings of the trial court.

17. Aggrieved by the said common judgment in A.S.Nos.204

and 206 of 2008, reversing the common judgment of the trial court in

O.S.Nos.941 and 998 of 2001, the appellant, who was the subsequent

purchaser of Ac.4-21 gts. preferred these appeals.

18. On 10.04.2018, this Court formulated the following

substantial questions of law:

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

1. Whether out of the entire contract for sale for a portion of it regular sale deed obtained, said splitting tantamount to abandonment or relinquishment of the remaining portion of the contract enforcing for specific performance?

2. If so, whether the 2nd defendant by name Mohanlal @ Mohan Pahelwan in O.S.No.998 of 2001 filed for specific performance is a bonafide purchaser under Ex.A26 registered sale deed dated 10.10.2001 and the same is not thereby liable to be cancelled, as sought for in the part of the reliefs for specific performance consequently?

3. Whether the reversal finding of the lower appellate court in decreeing both the suits setting aside the dismissal of the reliefs by the trial court is outcome of ill-appreciation with perversity including in ignorance of the admissions made by the plaintiff-Jai Prakash Totla in his evidence?

4. To what result?

19. Heard Sri Suresh Shiv Sagar, the learned counsel for the

appellant and Sri J. Prabhakar, the learned counsel for the respondents.

20. The learned counsel for the appellant contended that though

the agreement of sale was entered by the respondent No.1-plaintiff with

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

the respondent No.2-defendant No.1 in O.S.No.998 of 2001, admittedly,

the sale deed was executed in his favour only for Ac.9-11 gts., but filed

the suit for injunction for the entire extent of Acs.13-32 gts. without

impleading the vendor as defendant in O.S.No.941 of 2001. The plaintiff

introduced a receipt in evidence, but there was no whisper about payment

of the amount in his pleadings. No legal notice was issued by the

plaintiff after abandoning the contract in part. The Doctrine of Merger

would be applicable. The agreement of sale would be merged with the

sale deed. The relief that could be granted under the specific performance

of contract was only discretionary. The principles of equity had no

application. The plaintiff had not given any details about the payments

made to the defendant No.1. Exs.A2 to A12 receipts were introduced

subsequently. Without any pleadings, without any survey report or

panchanama, the plaintiff pleaded that the balance land was only

Acs.3-35 gts instead of Acs.4-21 gts. Issuing of legal notice before filing

the suit for specific performance was mandatory. Only to escape his

liability, the plaintiff pleaded that the land available was not to the total

extent for which the agreement was entered. The plaintiff directly filed

the suit after coming to know about the defendant No.1 executing a sale

deed in favour of subsequent purchaser i.e., the appellant. All the receipts

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

filed by the plaintiff were prior to execution of the sale deed dated

06.09.2000. No receipts subsequent to the said date were filed. The

agreement of sale marked under Ex.A1 was dated 27.10.1996. Exs.A2 to

A12 receipts were prior to execution of the sale deed marked under

Ex.A23 dated 12.08.2000. There was no pleading that he was willing to

perform his part of the contract. Without mentioning the sale

consideration and without giving the details of the amounts paid, the

plaintiff only stated that he paid the entire sale consideration. There was

no separate contract for the balance available land. Without any authentic

proceedings, the name of the plaintiff was appearing in possessory

column for Acs.13-32 gts. which was disbelieved by the trial court. The

plaintiff kept silent for one year after execution of sale deed in his favour

for Acs.9-11 gts. The plaintiff did not approach the court with clean

hands by giving all the details in the plaint. The link documents were

delivered to the plaintiff, as per his plaint in 1997 itself then he ought to

have knowledge that the defendant No.1 was the owner only to an extent

of Acs.13-06 gts., but not Acs.13-32 gts.. Even if the entire amount for

Acs.13-06 gts. was considered as paid by the plaintiff then the sale deed

ought to have been executed for Acs.13-06 gts. of land, but not for

Acs.9-11 gts.. The same would prove that the plaintiff had not

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

approached the Court with correct facts. The appellant was a bonafide

purchaser. He was not aware of the agreement of sale entered between

the plaintiff and defendant No.1 and prayed to allow the appeals.

21. The learned counsel for the respondent on the other hand

contended that the plaintiff entered into agreement of sale dated

27.10.1996 with the defendant No.1 for purchase of Ac.13-32 gts. marked

under Ex.A1 @ Rs.40,000/- per acre and she executed an agreement of

sale by receiving an advance amount of Rs.50,000/-. The defendant No.1

delivered the total extent of land and handed over possession on

31.10.1996 even prior to sale deed. The plaintiff paid total amount of

Rs.4,70,000/- as on 15.12.1998. The defendant No.1 handed over the link

documents and other revenue documents at the time of registration. Both

parties identified that there was discrepancy in the total extent pertaining

to survey numbers. Due to the discrepancy in the extent, the defendant

No.1 executed registered sale deed dated 06.09.2000 for part of the

property to an extent of Ac.9-11 gts. out of total Ac.13-36 gts.. Both the

parties agreed that the land had to be surveyed as the available land was

less on the ground. Out of sale consideration of Rs.4,80,000/- paid by the

plaintiff, an amount of Rs.3,71,000/- was adjusted towards the sale price

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

of Ac.9-11 gts. covered under the sale deed. The vendor-defendant No.1

agreed to execute another sale deed for the remaining extent of the land

after conducting survey. The sale deed would clearly show that it was

executed for the present adjusting the sale consideration. While so, the

vendor without making any efforts to measure the land clandestinely sold

the property to the appellant herein by executing the registered sale deed

dated 10.10.2001 to an extent of Ac.4-26 gts.. When the subsequent

purchaser tried to interfere with his possession, the plaintiff filed suit for

perpetual injunction against the subsequent purchaser and the sons of the

vendor vide O.S.No.941 of 2001 and filed another suit vide O.S.No.998

of 2001 for specific performance of the contract. The subsequent

purchaser was added as defendant No.2 in O.S.No.998 of 2001. Both the

suits were tried together and dismissed by the V Additional Senior Civil

Judge, Ranga Reddy District vide common judgment dated 30.06.2008.

Aggrieved by the dismissal of the suits, the appellant preferred appeals.

The appeals were allowed by the IX Additional District and Sessions

Judge, Ranga Reddy District on merits. The subsequent purchaser

(appellant herein) preferred the second appeals, but the original vendor,

who executed the agreement of sale, did not file any appeal against the

decree passed by the first appellate court. As such, the said decree was

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

binding on the vendor. The plaintiff having performed his part of the

contract and who was in lawful possession of the property acquires

possessory title and the same was liable to be protected under Section 53-

A of the Transfer of Property Act. No witnesses were examined on behalf

of the defendants in the injunction suit and not even a single document

was marked on behalf of the defendants. The appellant failed to adduce

any evidence to show that he was in legal possession of the property. He

failed to discharge the onus on him. Except the created nominal sale

deed, the appellant who was subsequent purchaser had no proof to show

that he was in possession. As on the date of filing of the suit, the

appellant was in possession of the property to an extent of Acs.13-36 gts.

which was supported by the sale deed and revenue documents. The

appellant-subsequent purchaser had no right to remove the plaintiff from

legal possession. The appellant was not a bonafide purchaser for value.

The initial burden would be on the purchaser to show that he was a

bonafide purchaser without notice. The subsequent purchaser did not

enter into witness box and did not present himself to be cross-examined

and relied upon the judgment of the Hon'ble Apex Court in Vidyadhar

Vs. Manikrao and Anr. 1 wherein it was held that:

AIR 1999 SC 1441

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

"when a party does not appear in the witness box and does not offer himself to be cross-examined by the other side, a presumption can be drawn that the case set up by him would be false."

22. The learned counsel for the respondent further contended

that all the link documents were with the plaintiff. It was surprising as to

how the defendant No.2 purchased the property without verifying the title

documents, link documents and revenue records. The pahani was a

public document, thus the purchaser had clear notice that the plaintiff was

in possession of the property for the total extent. The pahani for the year

1996-1997 marked under Ex.A19, for the year 1997-1998 marked under

Ex.A20, for the year 1998-1999 marked under Ex.A21 and for the year

1999-2000 marked under Ex.A22 would clearly reflect the name of the

respondent-plaintiff in the possessory column for the entire land

admeasuring Ac.13-36 gts.. The burden was on the subsequent purchaser

to prove that he was a bonafide purchaser without prior notice and relied

upon the judgment of the High Court of Madras in B. Amudha Vs. K.

Rajendran 2.

LAWS (MAD) 2022-3-29

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

23. With regard to the contention that the splitting of the

agreement of sale would tantamount to abandonment or relinquishment of

the remaining portion of the contract, the learned counsel for the

respondent-plaintiff contended that the true test of passing of property

was the intention of parties and such intention was primarily to be

gathered and determined from the recitals of the agreement of sale and

sale deed. When the recitals were insufficient or ambiguous, then the

surrounding circumstances and conduct of parties could be looked into

for ascertaining the intention and relied upon the judgment of the Hon'ble

Apex Court in Kaliaperumal Vs. Rajagopal & Anr. 3

24. In the light of the above contentions raised by both the

learned counsel, the substantial questions of law formulated by this Court

need to be answered.

25. Substantial Question of Law No.1:

Whether splitting of the agreement of sale and entering into the

registered sale deed only for a part of the contract, would amount to

relinquishment of the remaining portion of the contract or whether

specific performance can be enforced for the balance extent?

2009 (4) SCC 193

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

26. The learned counsel for the appellant put forth the argument

of the doctrine of merger. The Hon'ble Apex Court in Kunhayammad

and others Vs. State of Kerala and another 4 explains merger as:

"To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality."

27. As per the contention of the learned counsel for the appellant

when the agreement of sale culminated into a sale deed, the terms of the

contract were merged into the sale deed and nothing would survive

subsequently. In a sense, the registered sale deed is presumed to

supersede all preceding negotiations and agreements, and all rights and

remedies of the parties in relation to the transaction would be determined

by the registered sale deed. The doctrine raises a prima facie

presumption that, upon acceptance of the deed, a contract for sale of

property becomes merged in the deed consummating the contract. The

deed, therefore, is the final execution of the whole contract. There are

also some exceptions to the doctrine when the contractual provisions are

2000 (6) SCC 359

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

independent of, or collateral to, 1) the agreement to convey the property,

2) merger was because of fraud, mistake, or accident, 3) merger was not

the intent of the parties because the deed was only a partial execution of

the contract, or 4) that a specific statutory exception prevented a merger

and 5) when the contract provides that certain provisions shall survive

delivery of the deed. No merger results because the parties expressly

intended that a merger would not occur.

28. Thus, the intention of parties, the recitals of the agreement of

sale and the sale deed are important to consider whether the agreement of

sale is culminated into a registered sale deed or whether it survives even

after partial execution of the contract.

29. The agreement of sale was marked as Ex.A1. The contents

of Ex.A1 would disclose that it was entered between the parties i.e. the

plaintiff and the defendant No.1 in O.S No.998 of 2001 for an extent of

Acs.13.32 gts., in different survey numbers at that rate of Rs.40,000/- per

acre and it would disclose that the vendee had paid a sum of Rs.50,000/-

towards earnest money and as part of sale consideration in cash to the

vendor, the receipt of which was acknowledged by the vendor on

26.10.1996. It was also specified therein that a sum of Rs.75,000/- shall

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be paid by the vendee to the vendor on or before 26.11.1996, a sum of

Rs.1,00,000/- to be paid by the vendee to the vendor on or before

30.04.1997 and the balance sale consideration shall be paid by the vendee

to the vendor on or before 30.08.1997 i.e. at the time of registration. It

was also mentioned therein that the vendor would deliver the actual and

physical possession of the schedule property to the vendee at the time of

registration.

30. The registered sale deed executed between defendant No.1

and the plaintiff was marked as Ex.A23. It was dated 06.09.2000. It was

mentioned therein that:

"Whereas the vendor (Smt. G. Sarojini Yadav @ Saroja i.e. defendant No.1 in O.S. No.998 of 2001) is the absolute owner of the agricultural land (dry) total admeasuring Acs.13.32 gts., in Sy. Nos.64, 385, 390, 391, 392 & 393 situated at Narkoda village, Shamshabad Mandal, Ranga Reddy District... AND WHEREAS the vendor entered into an agreement of sale of the above said agricultural land @ Rs.40,000/- per acre with the vendee on 27.10.1996 and delivered the physical possession of the land on 31.10.1996 and since then, the vendee is in possession of the same and cultivating the land. AND WHEREAS the vendee had already paid sale consideration from time to time to the vendor under receipts and the vendor hereby agree,

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

admit, confirm and acknowledge the same. AND WHEREAS the vendee requested the vendor to execute and register the sale deed to an extent of Acs.9.11 gts., out of the said land in Sy.Nos.385 (admeasuring Ac.1.32 gts.,) 390 (admeasuring Acs.4.20 gts.), 391 (admeasuring Ac.1.39 gts.) and in 392 part (admeasuring Ac.1.00 gts.) (hereinafter called "the Schedule property") AND WHEREAS the vendor agreed to execute and register the sale deed in respect of the schedule property for the present, AND WHEREAS the vendor agreed that she has adjusted the sale consideration of Rs.3,71,000/- in respect of the schedule property out of the total sale consideration paid by the vendee in respect of the above said lands."

Clause No.5 of the sale deed also would state that:

"The vendor hereby covenant that on 31.10.1996 (which was subsequently added) she has put the vendee in vacant and actual possession of the schedule property."

31. Thus, this sale deed would not disclose the reasons for not

registering the sale deed for the entire extent of Acs.13.32 gts., of land or

what was the entire consideration amount paid by the plaintiff to

defendant No.1. It would only disclose that as per the request of the

vendee, the sale deed was registered only to an extent of Acs.9.11 gts.,

and that the vendor agreed to execute and register the sale deed in respect

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

of the suit schedule property for the present and that she had adjusted the

sale consideration of Rs.3,71.000/- in respect of the schedule property out

of the total sale consideration paid by the vendee in respect of the said

lands. It would also disclose that the physical possession of the said land

was delivered to the vendee on 31.10.1996, but was not specific whether

it was the entire extent of Acs.13.32 gts., or an extent of Acs.9.11 gts.,

only. No collateral agreement was entered between the parties with

regard to the balance extent of the land and no notice was given by the

plaintiff to the defendant No.1 even after executing the registered sale

deed demanding the defendant No.1 to execute the registered sale deed

for balance extent of the land or for the compliance of any terms.

32. As per the judgment of the Hon'ble Apex Court in

Kaliaperummal's case (3 supra), while considering the question

"Whether the title to the properties passed to the appellants when the sale

deed was registered though admittedly no amount was paid towards

consideration to the respondents", it was held that:

"18. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties.

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property.

19. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of the Evidence Act."

33. In the present case, the recitals of the sale deed are silent as

to why the sale deed was registered only to an extent of Acs.9.11 gts. If

the entire sale consideration was paid by the vendee to the vendor, why

the vendee requested for registration to an extent of only Acs.9.11 gts.,

when the agreement of sale was entered for Acs.13.32 gts., is not clear.

As per the pleadings in the plaint in O.S. No.998 of 2001, there was

difference in the extent of land in Sy.No.64 to an extent of Ac.0.36 gts., as

per the entries made in the pass book, title deeds and link documents. As

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such, the sale deed was registered only to an extent of Acs.9.11 gts. Even

as per the plaintiff, there was no dispute with regard to the extent of lands

in Sy.No.393 and to some extent in Sy.No.64. Though as per the

contentions of the defendant No.1, the balance extent of land was

Acs.4.21 gts., the contention of the plaintiff was that he paid the sale

consideration in respect of Acs.3.35 gts., of land which was the balance

extent available. Then it doesn't come to reason as to why the plaintiff

had not entered into the registered sale deed for an extent of Acs.3.35 gts.,

of land which was available and for which the entire sale consideration

was paid by him even by the date of registration of the sale deed for

Acs.9.11 gts., on 06.09.2000. His remaining silent without demanding

for execution of the sale deed for the balance available extent of land of

Acs.3.35 gts., or for conducting of survey to the remaining extents of land

in Sy.Nos.64 and 393 for which he entered into agreement of sale gives

rise to a presumption that he had abandoned his claim for the balance

extent of the land. Issuing of notice before filing the suit for specific

performance is mandatory, as the limitation to file a suit would start

running only when the plaintiff noticed that performance had been

refused. As per Article 54 of the Schedule to the Limitation Act, 1963,

the limitation for filing a suit for specific performance is three years from

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

the date fixed for execution or if no such date is fixed, when the plaintiff

had noticed that the performance is refused. The suit for specific

performance was filed by the plaintiff in the year 2001. The date fixed

for performance was 30.08.1997 as per the agreement of sale marked

under Ex.A1. The plaintiff in his cross-examination admitted that he had

not issued any notice to Smt. G. Sarojini (defendant No.1) informing her

that he had performed his part of the contract under Ex.A1 and

demanding her to perform her part of the contract before filing the suit in

O.S No.998 of 2001. He also admitted that he had not issued any notice

to the defendant No.2 (appellant herein) in O.S. No.998 of 2001

informing him about his transaction with Sarojini (defendant No.1) and

also not issued any notice to defendant No.1 also. He also admitted that

the defendant No.2 in O.S No.998 of 2001 was doing cultivation to the

extent of land purchased by him. Thus, the plaintiff had not approached

the court with clean hands. He had not stated as to what were the

amounts paid by him, not stated the reasons for not entering into the

registered sale deed for the entire extent of land for which the agreement

was entered, had not stated about filing of O.S No.941 of 2001 for

injunction or what made him to file the suit for injunction for the entire

extent of Acs13.32 gts., of land. He had not stated about his readiness

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

and willingness to perform his part of the contract. All these would make

it clear that he abandoned the rest of the contract after he entered into a

registered sale deed with the defendant No.1. No collateral agreement

was entered between the parties after entering into the registered sale

deed for extent of Acs.9.11 gts., on 06.09.2000 or fixing the date as to

when the contract has to be completed or the terms for the remaining

extent. When there is no collateral agreement for the remaining extent of

land or the sale deed marked under Ex.A23 would not disclose that the

parties would be pursuing the contract for the balance extent of the lands,

it can be considered that the plaintiff had abandoned or relinquished the

remaining portion of the contract.

34. Substantial Question of Law No.3:

Whether there is any perversity in the judgment of the lower

appellate court and whether there was ill appreciation of evidence

ignoring the admissions made by the plaintiff?

35. Both the suits in O.S. No.941 of 2001 and O.S. No.998 of

2001 are clubbed together and common evidence was adduced. The

plaintiff was examined as PW.1. Without any pleadings, the plaintiff had

stated in his evidence affidavit that the defendant No.1 delivered

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possession of the entire extent of Acs.13.32 gts., of land and since then he

was in possession and enjoyment of the said property in part performance

of the said agreement and his name was mutated in possessory column in

Pahani Patrikas for the years 1996-2000. He stated that defendant No.2

delivered original title deeds and the link documents in respect of the

above property in part performance of the said agreement of sale. He

further stated that he paid a total amount of Rs.5,52,000/- to the defendant

No.1 and her husband towards the sale consideration. He also stated

without any pleadings that the entire land was got surveyed and it was

found that the total extent of the above property was only Acs.13.06 gts.,

and that he was requesting the defendant No.1 to execute and register the

sale deed in respect of the remaining land admeasuring Acs.3.35 gts., i.e.

in Sy. No.64 Acs.0.37 gts., in Sy. No.392 Ac.12.00 gts., and in Sy.No.393

Acs.0.38 gts., in his favour, but the defendant No.1 was postponing the

same on the one pretext or the other. He further stated that on

01.11.2001, the defendant No.1 refused to execute and register the sale

deed in his favour in respect of Acs.3.35 gts., of land. On 06.11.2001, he

came to know that the defendant No.1 was intending to sell Acs.3.35 gts.,

of land by suppressing the factum of the agreement of sale dated

27.10.1996. The sons of the defendant No.1 and the defendant No.2 tried

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

to interfere with his possession and to dispossess him from the said

Acs.3.35 gts., of land. As such, he filed O.S. No.941 of 2001 for perpetual

injunction against them in respect of the total land. He also stated that

during the pendency of the case, defendant No.1 and her children and

others dispossessed him from Acs.3.35 gts., of land. Only through the

counter and written statement filed by the defendant in O.S. No.941 of

2001 he came to know that the defendant No.1 had sold and conveyed

Acs.4.21 gts., of land in Sy. No.64 Acs.0.37, Sy. No.392 Acs.1.00 gts.,

and Sy. No.393 Acs.1.38 gts., to the defendant No.2 under a registered

sale deed dated 10.10.2001, as such, he filed O.S No.998 of 2001 for

specific performance of the agreement of sale dated 27.10.1996 in respect

of the remaining extent of Acs.3.35 gts., (actual area as per the surveyor)

covered by Sy.No.64 (Ac.0.37 gts.), Sy. No.392 (Ac.1.00 gts.) and

Sy.No.393 (Ac.1.38 gts.)

36. He filed the receipts marked under Exs.A2 to A12:

Receipt for Rs.50,000/- dated: 26.10.1996. Receipt for Rs.25,000/- dated: 29.10.1996. Receipt for Rs.25,000/- dated: 05.12.1996. Receipt for Rs.10,000/- dated: 29.12.1996. Receipt for Rs.1,00,000/- dated: 22.04.1997.

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

Receipt for Rs.15,000/- dated: 10.05.1997. Receipt for Rs.2,00,000/- dated: 28.07.1997. Receipt for Rs.10,000/- dated: 09.12.1997. Receipt for Rs.10,000/- dated: 15.01.1998. Receipt for Rs.10,000/- dated: 13.12.1998. Receipt for Rs.13,000/- dated: 12.08.2000.

37. The total amount paid under these receipts would come to

Rs.4,68,000/-. There are no pleadings even with regard to the amounts

paid under these receipts in O.S. No.998 of 2001. The receipts were filed

only for an amount of Rs.4,68,000/- though the plaintiff contended that he

paid Rs.5,52,000/-.

38. In his cross-examination, the plaintiff admitted that after

verifying the revenue records, he entered into agreement of sale with

defendant No.1 in O.S No.998 of 2001. He verified the sale deeds and

other documents in respect of the suit schedule property five or six

months prior to the registration of sale deed for the land admeasuring

Acs.9.11 gts., out of Acs.13.32 gts., of land. He admitted that the revenue

officials of Shamshabad Mandal did not conduct any panchanama in

respect of the suit schedule property before incorporating his name in the

possessory column for the years 1997-1998, 1998-1999. He admitted that

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

it was not mentioned in the agreement of sale Ex.A1 dated 27.10.1996

that the balance of sale consideration would be paid by the vendee after

conducting survey of the entire land i.e. Acs.13.32 gts. He stated that he

came to know about the difference in extent of Ac.0.26 gts., in sy. No.64

when he paid Rs.2,00,000/- cheque to the defendant No.1 in O.S.No.998

of 2001 on 28.08.1997 i.e. Ex.A6, when she handed over the original sale

deed and link documents i.e. Exs.A13 and A14.

39. He admitted that he had not issued any notice to the

defendant No.1 in O.S. No.998 of 2001 about the difference of extent in

Sy.No.64 regarding Ac.0.26 gts., and that he had not requested her to

make it convenient to conduct the survey. He admitted that he had not

stated the shortfall of Ac.0.26 gts., in Sy. No.64 in O.S. No.941 of

2001 and as such the total extent of Acs.13.32 gts., had not been

registered. He admitted that after execution of Ex.A23 sale deed, he had

not issued any notice to the defendant No.1 demanding her to perform her

part of the contract, before filing of O.S No.998 of 2001. He also

admitted that he had not filed Exs.A2 to 12 at the time of filing of O.S.

No.998 of 2001 and that by the date of filing of O.S. No.998 of 2001

Exs.A2 to A12 were in his custody. He also admitted that he had not

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specifically mentioned about the payments to defendant No.1 under

Exs.A2 to A12 and that the same were executed at his house. The trial

court on considering all these admissions made by PW.1 observed that:

"From the above admissions made by PW.l and by perusing Ex.Al-agreement of sale and sale deed under Ex. A23 executed in favour of the plaintiff on 06-09- 2000 for the extent of Ac.9-11 guntas, it is clear that the said sale deed was executed for the land Ac.9-11 guntas only for the amounts paid by the plaintiff i.e. Rs.3.71,000/- towards sale consideration. Even though, it is the version of the plaintiff that he never stated that he is unable to pay the remaining balance sale consideration for the total extent of Ac.13-32 guntas, he himself admitted that as per the agreement of sale total sale consideration is to be paid by 30-08-1997 only. Hence, it is clear that the plaintiff himself failed to perform his part of contract and that as he paid only 3,71,000/- he got executed sale deed for an extent of Ac.9-11 guntas only which itself says that he forfeited his right with regard to the balance extent of Ac.4-21 guntas. Further the plaintiff also not issued any notice to the defendant No.1 expressing his willingness and readiness to get the execution of the sale deed to that extent also."

As such, answered the issue against the plaintiff.

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

40. The first appellate court framed the points for consideration in the appeal as:

1. Whether the appellant (plaintiff) was put in possession of the entire land in pursuance of the said agreement of sale?

2. Whether the appellant has given up his right and expressed his inability to obtain sale deed in respect of the remaining land?

3. Whether the respondent No.1 (Smt. G. Saronini Yadav) - defendant No.1 has received the entire consideration and failed to execute sale deed in favour of the appellant herein?

4. Whether the appellant herein is entitled to specific performance as prayed for?

5. To what relief?

41. The first appellate court only considered the evidence of

DW.1 but not considered the admissions made by PW.1 in his evidence. It

had taken into consideration only the admissions made by DW.1 in her

cross examination and assumed that defendant No.2 might have occupied

the property as it was a vacant land and answered the points in favour of

the plaintiff.

42. The first appellate court had not considered that there were

no pleadings with regard to the receipts marked under Exs.A2 to A12 in

Dr.GRR, J S.A.Nos.1287 and 1308 of 2017

O.S. No.998 of 2001. The first appellate court failed to observe that any

amount of evidence without pleadings would be in admissible. Pleadings

form the platform on which the edifice of the case is erected. The

observations of the first appellate court that the defendant No.2 might

have occupied the property as the entire property was a vacant land and

that there was no necessity for the appellant to express inability to

purchase the property, are based on assumptions made by it without the

witnesses speaking about it.

43. The first appellate court also made its own calculations and

held that as per the terms of sale agreement, the appellant was liable to

pay Rs.5,56,000/- for the total extent of Acs.13.36 gts., but as the sale

deed of DW.1 would disclose that she purchased only an extent of

Acs.13.06 gts., the plaintiff claimed that there was difference of extent as

such, requested the vendor to get the land surveyed. As DW.1 admitted

the receipt under Ex.A11 and also about the payments made to her

husband, it was very clear that DW.1 paid Rs.4,83,000/- as on

12.08.2000. As such, the appellant (plaintiff) was entitled to obtain sale

deed for an extent of more than Acs.12.00 gts.

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44. The plaintiff had neither stated in his pleadings or evidence

what were the amounts paid by him or to what extent of land he was

entitled to. But, the appellate court holding that he was entitled to obtain

more than Acs.12.00 gts., is travelling beyond evidence. The observation

of the first appellate court that the appellant who was entitled to obtain

sale deed to the entire extent, need not express any inability to obtain sale

deed for more than Acs.9.11 gts., can be considered as reading between

the lines. If the appellant was entitled to obtain sale deed for more than

Acs.12.00 gts., then what made him not obtaining the sale deed to the

said extent of land, was not considered by the first appellate court.

45. The appellate court decided the issues as if the burden lies

upon the defendant to prove that the plaintiff forfeited his right to obtain

sale deed for the total extent ignoring that the plaintiff failed to discharge

his burden that he was entitled for specific performance of the contact to

the entire extent of land as claimed by him. The burden of proof lies

upon the plaintiff to prove the facts which he asserts and who desires the

court to give judgment in his favour.

46. The first appellate court failed to observe whether any notice

was given by the appellant to the defendant No.1 to execute the sale deed

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for the balance extent of land. The observations of the first appellate

court are in ignorance of the well established principles of law. The first

appellate court failed to observe that the burden lies upon the plaintiff to

aver and prove about his readiness and willingness to perform his part of

the contract and issuing notice to the defendant No.1 prior to filing the

suit for specific performance was mandatory. The first appellate court

failed to observe that a duty lies upon the plaintiff to come with clean

hands and to disclose all the facts while approaching the court seeking the

discretionary relief of specific performance. The plaintiff even failed to

state the amounts paid by him in the plaint as per the receipts available

with him by that date itself. The conduct of the plaintiff in seeking the

relief of permanent injunction for the entire schedule property, though

there was no interference with regard to the extent of Acs.9.11 gts., of

land for which sale deed was executed to him is mischievous. The

observation of the first appellate court that the plaintiff had paid an

amount of Rs.4,83,000/-, when the receipts marked under Exs.A2 to A12

are only to an extent of Rs.4,68,000/- is also not correct. The

observations made by the first appellate court without any pleadings

either by the plaintiff or by the defendants and making calculations on its

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own and observing that the plaintiff had no such necessity, are nothing

but perverse.

47. The plaintiff is an Advocate by profession and DW.1 and her

husband were not so educated people. Though DW.1 denied the contents

of Ex.A11, the appellate court placing reliance on it and considering that

the plaintiff paid an amount of Rs.4,70,000/- and making observations

that there was no necessity for the plaintiff to pay such huge amount to

DW.1 and her husband and having received the total consideration and

endorsed in Ex.A23, avoided survey and execution of sale deed for the

remaining extent are against the pleadings. The plaintiff in his evidence

affidavit in para No.5 itself stated that as agreed, the entire land was got

surveyed and it was found that the total extent of land was only Acs.13.06

gts. But, he failed to file the survey report to show that the total extent of

the land available was only Acs.13.06 gts. The first appellate court

observing that the defendant No.1 avoided survey and execution of the

sale deed for the remaining extent even without considering the evidence

of plaintiff on the said aspect, is perverse. The observations of the first

appellate court that the appellant who had obtained the sale agreement for

Acs.13.32 gts., might have known the original extent as Acs.13.06 gts.,

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only after he received Exs.A13 and A14 from DW.1 and it was quite

natural for him to insist for survey of the land in view of the difference of

extent as per Exs.A13 and A14, and if really he was not interested in

purchasing the remaining land, there was no necessity to pay

Rs.3,71,000/-, are based on assumptions and imaginations but not on

pleadings and evidence on record.

48. The observations of the first appellate court that even after

execution of Ex.A23 for an extent of Acs.9.11 gts., the appellant

continued to pay the balance and the vendor i.e. DW.1 and her husband

had received the amounts, is also not based upon the evidence. All the

receipts marked under Exs.A2 to A12 were only prior to the execution of

Ex.A23 on 06.09.2000 but not subsequent to the said date. These

observations made by the first appellate court which were not based on

the pleadings and evidence can be termed as perverse. The observations

of the first appellate court that PW.1 had admitted that he did not issue

any notice to DW.1 for execution of the sale deed, but in the light of the

averments in Ex.A23 and as DW.1 was accepting the payments he might

not have issued any notice, shows the bias taken by it towards one of the

party.

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49. As such, the judgment of the lower appellate court in

reversing the findings of the trial court and decreeing both the suits in

ignorance of the admissions made by the plaintiff and basing its

observations without any pleadings and contrary to the evidence on

record, is considered as perverse.

50. Substantial Question of Law No.2:

Section 19 of the Specific Relief Act, 1963 provides the categories

of persons against whom specific performance of contract may be

enforced. Among them is included under Clause (b), any transferee

claiming under the vendor by a title arising subsequently to the contract

of which, specific performance is sought. A transferee for value, who has

paid money in good faith and without notice of the original contract, is

excluded from the purview of the said clause. To fall within the excluded

clause, a transferee must show that: (a) he has purchased for value the

property, which is the subject-matter of the suit for specific performance

of the contract; (b) he paid money to the vendor in good faith; and (c) he

had no notice of the earlier contract for sale (specific performance of

which is sought to be enforced against him). The said provision is based

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on the principle of English Law which fixes the priority between a legal

right and an equitable right.