Telangana High Court
Kotla Narayana vs V. Pedda Chennaiah on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.384 of 2023
JUDGMENT:
Questioning the validity and legality of the judgment and
decree, dated 30.06.2023, passed in A.S.No.87 of 2017 on the file
of the Court of IV Additional District Judge, Mahabubnagar,
confirming the judgment and decree dated 18.09.2017 passed by
the Principal Senior Civil Judge, Mahabubnagar in O.S.No.167 of
2007, the present Second Appeal is filed.
2. The appellants are the plaintiffs and the respondents are the
defendants in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The facts of the case in brief, shorn off unnecessary details,
which led to filing of the present Second Appeal, are that the
defendants are the owners and pattadars of the suit schedule
property and they offered to sell the same to the plaintiffs and
accordingly, an agreement of sale was entered into on 05-05-2003
for a sale consideration of Rs.3,64,500/- and on the same day, the
plaintiffs have paid an amount of Rs.1,50,000/- to the defendants
LNA, J
and took possession of the suit schedule property and were
personally cultivating the same.
3.1. It was further averred that as per the terms of agreement,
the plaintiffs have paid the balance sale consideration in two
installments to the defendants and requested them to get the land
measured and demarcated, but the defendants postponed the same
on one pretext or the other. That prior to agreement dated
05-05-2003, both parties entered into a simple agreement of sale in
respect of suit land on 30-03-2003 and the plaintiffs paid certain
amounts to the defendants thereunder.
3.2. It was further averred that when notices were issued to the
defendants, they started saying that they have not received entire
sale consideration from the plaintiffs.
3.3. It was also averred that the defendants bore grudge against
the plaintiffs and filed a suit against them vide O.S.No.123 of 2006
on the file of Junior Civil Judge, Jadcherla for declaration and
injunction in respect of the suit schedule property and the said
Court passed order dated 12-12-2006 granting interim injunction in
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favour of the defendants and hence, the plaintiffs have preferred
appeal against the said order vide CMA.No.2 of 2007 which is
pending before the VII Addl. District Judge, Mahabubnagar.
3.4. The plaintiffs further averred that though the entire sale
consideration was paid, the defendants were not coming forward
for execution of sale deed. Hence, the suit was filed against the
defendants for specific performance of agreement of sale or
alternatively for refund of the earnest money
4. The defendants filed the written statement admitting that
they are the owners, pattadars and in possession of the suit
schedule property and that there was an agreement of sale dated
05-05-2003 in respect of the suit lands, but as the plaintiffs failed
to pay the sale consideration installments, as stipulated in the sale
agreement in specified time, the sale agreement was terminated
before the elders of the village.
4.1. The defendants further denied that some amounts were paid
by the plaintiffs prior to agreement of sale dated 05-05-2003 and
pleaded that no other document is executed by the defendants.
LNA, J
4.2. The defendants further submitted that they have obtained
interim injunction in the suit filed by them vide O.S.No.123/2006
before the Junior Civil Judge, Jadcherla. As such, the defendants
prayed to dismiss the suit.
5. Basing on the above pleadings, the following issues and
additional issues were settled for trial by the trial court:-
"1. Whether the plaintiffs are entitled to specific
performance of contract as prayed for?
2. To what relief?
3.Whether the Plaintiffs are entitled for refund of the earnest
amount with interest and if so, what amount?
4. Whether the suit is within limitation?"
6. On behalf of the plaintiffs, P.Ws.1 to 4 were examined and
Exs.A-1 to A-11 were marked. On behalf of the defendants,
D.Ws.1 and 2 were examined, but no documents were marked.
Further, one N.Krishna Prasad was examined as CW-1 and the
deposition of the said Krishna Prasad was marked as Ex.X-1.
LNA, J
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, vide its judgment
dated 18.09.2017, observed that the plaintiffs failed to file the
original agreement of sale dated 05.05.2023 and even failed to
prove the missing of the said agreement of sale. Further, the trial
Court observed that though the defendants admitted the agreement
of sale, the plaintiffs failed to prove the payment of entire balance
sale consideration except the consideration of Rs.1,50,000/- paid
on the date of agreement and accordingly, held that the plaintiffs
are not entitled to the relief of specific performance of agreement
of sale. However, the defendants were directed to refund the
earnest money of Rs.1,50,000/- to the plaintiffs.
8. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and the material
available on record, dismissed the appeal, vide its judgment dated
30.06.2023, confirming the judgment of the trial Court. The first
Appellate Court specifically observed that in Ex.A-3-complaint
given by the plaintiffs to Police, it is claimed that they lost the
agreement of sale and receipts, whereas, strangely during trial, the
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plaintiffs produced receipts pertaining to payment of Rs.45,000/-
and Rs.1,00,000/-. Therefore, it can be presumed that the plaintiffs
created a story of misplacement of agreement of sale and as such,
an adverse inference was drawn against the plaintiffs. Hence, the
present Second Appeal.
9. Heard Sri L.Harish, learned counsel for the appellants, and
Sri Vimal Varma Vasi Reddy, learned counsel for the respondents.
Perused the record.
10. A perusal of the record discloses that both the Courts below
concurrently held that the oral and documentary evidence adduced
by both the parties goes to show that plaintiffs failed to satisfy the
ingredients for grant of specific performance of agreement of sale
and accordingly, declined to grant the relief sought for.
11. Learned counsel for appellants argued that the trial Court,
without proper appreciation of the evidence, dismissed the suit as
regards the specific performance of contract and the first Appellate
Court also committed an error in confirming the judgment and
decree passed by the trial Court.
LNA, J
12. However, learned counsel for appellants failed to raise any
substantial question of law to be decided by this Court in this
Second Appeal. In fact, all the grounds raised in this appeal are
factual in nature and do not qualify as the substantial questions of
law in terms of Section 100 C.P.C.
13. It is well settled principle by a catena of decisions of the
Apex Court that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
14. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that
the High Court sitting in Second Appeal cannot examine the
evidence once again as a third trial Court and the power under
Section 100 C.P.C. is very limited and it can be exercised only
where a substantial question of law is raised and fell for
consideration.
(2007) 1 Supreme Court Cases 546
LNA, J
15. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
Appellate Court, this Court finds no ground or reason warranting
interference with the said concurrent findings, under Section 100
C.P.C. Moreover, the grounds raised by the appellant are factual in
nature and no question of law much less a substantial question of
law arises for consideration in this Second Appeal.
16. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: .02.2024
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