Telangana High Court
Vonuguri Srisailam vs Alle Ravindder on 21 February, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
I.A.No. 3 of 2023
In
A.S.No.149 of 2011
&
APPEAL SUIT No.149 of 2011
Between:
Vonuguri Srisailam ... Appellant/Defendant
And
Alle Ravinder ..Respondent/plaintiff
DATE OF JUDGMENT PRONOUNCED :21.02.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
Wish to see their fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ I.A.No. 3 of 2023
In
A.S.No.149 of 2011
&
APPEAL SUIT No.149 of 2011
% Dated 21.02.2024
# Vonuguri Srisailam ... Appellant
And
$ Alle Ravinder ...Respondent
! Counsel for the Appellant: Sri Pratap Narayan Sanghi, learned Senior
Counsel for Venkateshwarlu Gummadavelly
^ Counsel for the Respondent: Sri Vedula Venkata Ramana, Senior
Counsel for Kowturu Pavan Kumar for R2.
>HEAD NOTE:
? Cases referred
1
AIR OnLine 2022 SC 998
2
AIR 2022 SC 3884
3
AIR OnLine 214 SC 197
4
AIR 1999 Supreme Court 3381
5
AIR OnLine 2013 AP 149
6
(2015) 14 Supreme Court Cases 450
7
(2020) 13 Supreme Court Cases 773
8
(2005) 6 Supreme Court Cases 733
9 2010(5) SCJ 831 (D.B)
3
THE HON'BLE SRI JUSTICE K.SURENDER
I.A.No. 3 of 2023
In
A.S.No.149 of 2011
&
APPEAL SUIT No.149 of 2011
JUDGMENT:
1. This Appeal Suit is filed aggrieved by the judgment and
decree in O.S.No.722 of 2006 dated 23.11.2010 passed by the
III Additional District Judge, Ranga Reddy District at
L.B.Nagar, wherein and whereby the suit filed by the
defendant/plaintiff is decreed.
2. The appellant is the defendant in the trial Court. Suit for
specific performance was filed by the respondent herein, who
is the plaintiff in the trial Court.
3. For the sake of convenience, the parties hereinafter will
be referred to as arrayed in the original suit before the trial
Court.
4. According to the case of the plaintiff, the defendant
executed agreement of sale ExA1 dated 05.03.2005 in respect
of land admeasuring Acs.1.11 gts in Sy.No.344/AA, land
admeasuring 0.30 gts in Sy.No.349/A, totally admeasuring
Acs.2.33 gts of Maheshwaram Mandal. The defendant agreed
to sell the scheduled property at Rs.8,50,000/- per acre and
the total consideration amount was arrived at 24,01,250/-.
5. Exs.A2 and A3 dated 05.03.2005 and 05.06.2005 were
executed by the defendant and cheques were also issued
which were encashed by the defendant. Ex.A4 is the original
Bank statement filed by the plaintiff. Though the plaintiff
appealed to the defendant to get the land surveyed and receive
the balance sale consideration of Rs.10,01,250/-,the
defendant postponed the registration.
6. The plaintiff issued legal notice and the office copy of
which is marked as Ex.A6. Since the defendant failed to
respond to register the land, suit for specific performance of
agreement dated 05.03.2005 was filed and also seeking
delivery of possession of the schedule property.
7. Learned trial Judge, having considered the oral and
documentary evidence on record, decreed the suit in favour of
the plaintiff directing the plaintiff to deposit the balance sale
consideration of Rs.10,01,250/- within 30 days from the date
of judgment and on failure by the defendant to register the
property by executing regular sale deed, the plaintiff was at
liberty to approach the Court to execute through the process
of the Court.
8. Sri P.N.Sanghi, learned Senior Counsel appearing for the
appellant/defendant would submit that in the written
statement filed by the defendant, there is total denial of
execution of Ex.A1 agreement of sale. Learned Senior Counsel
had taken this Court through the evidence of witnesses and
argued that the respondent/plaintiff in his evidence admitted
that Ex.A1 was in the process of a partnership deed for
development of the property between the plaintiff and the
defendant. Plaintiff admitted that P.Ws.2 to 4 had contributed
the amounts towards the suit land for development, as such,
the question of maintaining suit for specific performance does
not arise.
9. Learned Senior Counsel further argued that when Ex.A1
agreement of sale could not be established, the trial Court
erred in granting decree for specific performance. He relied on
the judgment of Hon'ble Supreme Court in the case of
U.N.krishnamurthy (since deceased) through LRs. V. A.M
Krishnamurthy 1 and referred to paras 33 to 38. He also relied
on the judgment in the case of Ayillyath Yadunath Nambiar
v. P.Sreedharan 2 and relied on para 9 of the judgment.
10. Learned counsel further argued that the specific case of
the defendant is that extent of the property is Acs.2.33 guntas.
However, it was admitted during examination of witnesses that
the extent is Acs.2.32 guntas. When the evidence relied on
was contrary to indicate that the property to an extent of
Acs.2.32 guntas and the claim was to an extent of Acs.2.33
guntas, the trial Court erred in decreeing the suit for specific
performance. Learned Senior Counsel further submits that the
property was family property and since the defendant had
suffered a decree filed by the family members, granting decree
AIR OnLine 2022 SC 998
AIR 2022 SC 3884
for specific performance is incorrect and has to be set aside.
He relied on the following judgments; i) Pemmada Prabhakar
v. Youngmen's Vysya Association 3; Balraj Taneja and
another v. Sunil Madan and another 4; ii) Mididodi
Saraswathi v. The Mandal Revenue Officer, Nagarkurnool
Mandal; iii) Kedarisetti Atmaram v. N.Seetharamaraju; iv)
M/s.Tanmai Jewels Private Limited and another v.
Ch.Sreesaila Kumari and another 5 and v) State of Madhya
Pradesh v. Nomi Singh and another 6.
11. Learned Senior Counsel also argued that on I.A.No.3 of
2023 in A.S.No.149 of 2011 filed to receive the Certified Copy
of Judgment and Decree in O.S.No.121 of 2014 dated
24.08.2023 on the file of V Additional District Judge, Ranga
Reddy District at L.B.Nagar as additional evidence be allowed
and the document considered as part of the record. The said
suit was filed for partition and separate possession in respect
of the suit schedule property.
AIR OnLine 214 SC 197
AIR 1999 Supreme Court 3381
AIR OnLine 2013 AP 149
(2015) 14 Supreme Court Cases 450
12. On the other hand, Sri Vedula Venkata Ramana,
learned Senior Counsel appearing on behalf of the plaintiff
would submit that the defendant, though engaged counsel, did
not take steps to enter into the witness box to speak about the
facts of the case and denied the agreement of sale Ex.A1.
Further, no other witnesses were examined. A bare denial
will not entail relief, unless the case of the defendant is proved
by adducing evidence. The suit mentions Acs.2.33 guntas as
subject property, however, during cross-examination, witness
mentioned as Acs.2.32 guntas. The said discrepancy is of no
consequence. Insofar as the additional evidence is concerned,
the suit filed for partition and separate possession in the year
2014 will have no consequence in the present case since the
suit was decided in the year 2011 itself. In the said
circumstances, appeal has to be dismissed. In support of his
contentions, he relied on the following judgments; i) Gurmit
Singh Bhatia v. Kiran Kant Robinson and others 7; ii)
Kasturi v. Iyyamperumal and others 8; iii) Mumbai
(2020) 13 Supreme Court Cases 773
(2005) 6 Supreme Court Cases 733
International Airport Private Limited v. Regency
Convention Centre & Hotels Private Limited and others 9.
13. The defendant in the main suit, for the reasons best
known has neither examined himself nor any witness on his
behalf. The counsel for the defendant had cross-examined the
witnesses. On the basis of the said alleged discrepancies that
have crept in the cross-examination, counsel for the defendant
seeks reversal of the trial Court judgment.
14. The crucial question that arises for consideration is
execution of Ex.A1 agreement of sale. It is contended that the
plaintiff is not the signatory to the said document. The said
argument is of no help to the defendant. In the absence of the
signature of the purchaser, when the vendor has signed the
document in the presence of witnesses, the purchaser not
signing Ex.A1 agreement of sale is of no consequence. At one
breath, the argument of learned Senior Counsel for the
defendant is that Ex.A1 was not executed by the defendant
and again, it is argued that the document Ex.A1 is not in the
2010(5) SCJ 831 (D.B)
form of an agreement of sale but an agreement in between the
partners for development of the property for which reason, the
suit for specific performance is not maintainable. A reading of
Ex.A1 goes to show that it is clearly an agreement in between
the parties for sale of the subject property.
15. There is no explanation and no reasons are given as to
why, though the defendant contested the case, failed to either
enter into the witness box or examine any witnesses in
support of his contention regarding non execution of Ex.A1 or
has taken steps to send the documents for the purpose of
hand writing expert opinion to say that the signature
appearing on Ex.A1 is not that of the defendant. In the said
circumstances, an adverse inference has to be drawn against
the case of the defendant and the case put up by him in the
written statement is incorrect.
16. I.A.No.3 of 2023 is filed to receive the Certified Copy of
Judgment and Decree in O.S.No.121 of 2014 dated
24.08.2023 on the file of V Additional District Judge, Ranga
Reddy District at L.B.Nagar as additional evidence. Order XLI
Rule 27 of CPC reads as follows:
"27. Production of additional evidence in Appellate
Court.- (1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or documentary,
in the Appellate Court. But if--
(a) the court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced by
him at the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause, the
Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Whenever additional evidence is allowed to the produced,
by an Appellate Court, the Court shall record the reason for
its admission."
17. The judgment sought to be marked is in respect of a
partition suit in between the defendant and his family
members who are claiming rights over the property. The said
suit was filed in the year 2014. Though, a competent civil
Court has found that the said property also belongs to the
other members of the family that cannot be made basis to set
aside the judgment of the trial Court. Apparently, the suit in
question for specific performance was filed in the year 2006
and judgment passed on 23.11.2010. However, the partition
suit was filed in the year 2014. In the said circumstances, this
Court is not inclined to admit the document in the form of
additional evidence since the said document does not fall
within any of the categories mentioned in Order 41 Rule 27 of
CPC. Accordingly, the prayer for receiving the Certified Copy of
Judgment and Decree in O.S.No.121 of 2014 dated
24.08.2023 on the file of V Additional District Judge, Ranga
Reddy District at L.B.Nagar as additional evidence is
dismissed.
18. This Court, by order dated 11.09.2023 dismissed
applications filed by proposed respondents to implead them in
the appeal. Their contention is that they are legal heirs to the
subject property and have right in the property by virtue of the
decree in O.S.No.121 of 2014. The Hon'ble Supreme Court in
Gurmit Singh Bhatia v. Kiran Kant Robinson and others's
case (supra) held as follows:
"In a suit for specific performance of the contract to
sell the lis between the vendor and the persons in
whose favour agreement to sell is executed shall only
be gone into and it is also not open to the Court to
decide whether any other parties have acquired any
title and possession of the contracted property."
19. This Court, cannot, in the present appeal decide whether
any other parties have acquired any rights or interest over the
subject property. It is for the interested parties to obstruct the
execution of order to protect their rights in accordance with
law.
20. In the result, the Appeal Suit is dismissed.
Consequently, miscellaneous applications, if any pending in
this Appeal Suit, shall stand closed.
__________________
K.SURENDER, J
Date: 21.02.2024
kvs
