Telangana High Court
G.V. Anil Kumar Reddy vs Praveen G. Chavda on 16 October, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
A.S.Nos. 164 AND 180 of 2017
COMMON JUDGMENT :
Both the appeals arise out of common judgment
and decree in O.S. No.72 of 2005 and O.S. No. 684 of 2006,
dated 29.08.2016. Appellants in both the Appeals are plaintiffs
in O.S. No. 72 of 2005 and defendants in O.S. No. 684 of 2006.
By the impugned common judgment, O.S. No. 72 of 2005 stood
dismissed and O.S. No. 684 of 2006 was decreed by the XVI
Additional District & Sessions Judge, R.R. District at Malkajgiri.
2. The suit schedule property in both the suits is one
and the same. O.S. No. 72 of 2005 was filed seeking declaration
of possession and permanent injunction against defendants
therein. Whereas, the 1st defendant therein filed O.S. No. 684 of
2006 seeking grant of permanent injunction restraining
plaintiffs in O.S.No. 72 of 2005 from interfering with their
possession and enjoyment over the suit schedule properties.
3. For the purpose of convenience, facts and parties
in O.S. No. 72 of 2005 are referred to hereinafter.
4. According to plaintiffs, father of the 1st defendant
was the owner of suit A, B and C schedule properties i.e. land to
an extent of Acs.5.27 guntas in Survey No. 208, Acs.3.05 guntas
in Survey No. 209 and Acs. 9.30 guntas in Survey No. 222,
situated at Yapral Village, Malkajgiri Mandal, R.R. District,
having purchased the same under registered sale deeds in 1964
and 1968 from the lawful owners. While Defendants 1 to 3 are
children of late G.M. Chavda, defendant No.4 is his wife. Late
G.M. Chavda and the 1st defendant entered into an agreement
on 23.10.2000 with plaintiffs in respect of suit land for a
consideration of Rs.3,35,00,000/- and received part of sale
consideration ie. Rs.75,00,000/-. Subsequently, G.M. Chavda
expired leaving behind him defendants 1 to 4 as his legal heirs.
The 4th defendant is the G.P.A. holder of the 1st defendant. G.M.
Chavda executed Will Deed dated 04.02.1993 bequeathing all
his properties in favour of the 1st defendant, who along with his
family, resides in Tanzania and when some anti-social elements
i.e. D. Hansraj and others tried to occupy the suit land in
February, 2001, plaintiffs took physical possession of suit land
in order to protect and safeguard the same. While things stood
thus, the 4th defendant filed a criminal complaint against
plaintiffs alleging illegal encroachment. As per Clause No.17 of
the agreement of sale dated 23.10.2000, plaintiffs are entitled to
remain in possession of suit land. Plaintiffs are ready and
willing to pay balance sale consideration to defendants and to
get registered sale deed in their favour, however, in view of
pendency of cases before different courts, plaintiffs cannot seek
specific performance and therefore, they have no other choice
except to file a suit for declaration that they have assumed
possession of suit property and for permanent injunction.
5. While defendants 1 and 4 contested the suit,
defendants 2 and 3 remained ex parte. In the written statement,
defendants 1 and 4 contended that suit is not maintainable in
facts and law and plaintiffs suppressed the material facts. The
1st defendant is absolute owner of suit schedule A, B and C
properties. The 1st defendant acquired rights over Schedule A
and B properties by virtue of gift deed dated 19.06.1976 and
over schedule C property by virtue of registered Will Deed dated
04.02.1993. The 1st defendant and his father, late G.M. Chavda
executed tentative agreement dated 23.10.2000 in favour of
plaintiffs subject to complying with terms and conditions stated
therein under Clause 1 (c) to execute an agreement of sale-cum-
General Power of Attorney or sale deed in favour of plaintiffs in
respect of suit schedule land for total consideration of
Rs.3,35,00,000/- to be paid within 15 months without any
flexibility whatever ie. in any event of what so ever
nature/manner. Out of which, plaintiffs paid Rs.5,00,000/ on
20.10.2000 and Rs.70,00,000/- on 23.10.2000, thus totally
paid Rs. 75,00,000/- but failed to comply with the
unconditional promise made under Clause 1(c) of the
Agreement, wherein plaintiffs agreed to pay another
Rs.25,00,000/- within a period of three months from the date of
agreement on/or obtaining permission from the authorities for
conversion of suit land into non-agriculture, whichever is
earlier. However, plaintiffs not only committed breach of
agreement of terms and did not pay any further amounts, but
also did not comply with the terms of the contract to pay
advance amount of Rs.1,00,00,000/-. As such, an agreement of
sale-cum-General Power of Attorney or sale deeds were not
executed as per the terms of agreement dated 23.10.2000. Time
was agreed to be the essence of contract. Plaintiffs failed to act
as per the tentative agreement dated 23.10.2000 to look after
the litigations and failed to meet the expenditure for litigation.
As such, the 1st defendant alone looked after all the litigations
by bearing own expenditure. In fact, as per the terms of
agreement, it is for plaintiffs to bear the expenditure and look
after the litigation for which, suit land was agreed to be sold at a
lesser price. However, as plaintiffs failed to perform the terms of
the agreement, agreement dated 23.10.2000 became null and
void. In view of non-compliance of covenants and conditions
precedent, no agreement of sale -cum- General Power of
Attorney or sale deeds could be executed and registered as
contemplated under agreement dated 23.10.2000 and as
agreed, the amount paid by plaintiffs stood forfeited. As
plaintiffs failed to comply with the terms and conditions of
agreement, they did not acquire any right or interest over suit
land and the title and possession over the land, much less on
the basis of agreement dated 23.10.2000. As the tentative
agreement dated 23.10.2000 stood terminated, the 1st defendant
cancelled the GPA dated 27.10.2000 executed in favour of the
1st plaintiff under cancellation deed dated 30.04.2005. However,
on 06.04.2005, plaintiffs trespassed into suit schedule property,
demolished concrete structure bearing the name of the 1st
defendant and tried to erect fencing over suit land, which
resulted into lodging a complaint to Police Station, Alwal by the
1st defendant against plaintiffs, which was registered as FIR
No.167 2005.
6. In view of the above, the trial court framed following
issues for trial in O.S. No. 72 of 2005:
1. Whether the plaintiffs are entitled for declaration of their possession
over the suit property as prayed for
2. Whether the plaintiffs are entitled for perpetual injunction as prayed
for
3. To what relief.
7. Pending the said suit, the 1st defendant also filed
O.S.No.550 of 2005 on the file of the 1 Senior Civil Judge,
seeking perpetual Injunction restraining plaintiffs from
interfering with suit schedule properties belonging to the 1st
defendant, which was subsequently renumbered as OS No.684
of 2006. The 1st defendant pleaded in the plaint reiterating the
averments made in written statement filed in O.S. No. 72 of
2005. Plaintiffs contested the suit by filing written statement
therein reiterating the averments made in the plaint filed in O.S.
No. 72 of 2005 stating that they have already instituted OS No.
72 of 2005 seeking declaration and permanent injunction
against the 1st defendant, who is plaintiff in OS No.684 of 2006.
As such, the suit filed by the 1st defendant in OS No.684 of
2006 is barred under Section 10 CPC and Section 53 A of the
Transfer of Property Act, and as such, plaintiffs are entitled to
claim possession over suit schedule properties. Plaintiffs in O.S.
No. 72 of 2005 further pleaded that they are transferees for
valid sale consideration and are in possession of suit properties
and as such pleaded that no injunction can be granted against
defendants. They further pleaded that the claim put forward by
the 1st defendant is based upon the Will, which is not probated,
as such the 1st defendant cannot acquire any absolute rights
over suit property, they are handicapped in making further
payments as the title of the 1st defendant is not settled.
Plaintiffs in OS No 72 of 2005 further pleaded that the
agreement dated 23.10.2000 is contingent contract from its
inception and contingency not having occurred due to pendency
of title disputes, it cannot be said that agreement dated
23.10.2000 is not in force and there cannot be any forfeiture of
amounts. They further pleaded that though possession was not
delivered at the time of agreement, pursuant to Clause 17 of
agreement they took possession of suit lands, as such there is
no cause of action for the 1st defendant for filing OS No.684 of
2006. Since the pleadings and counter pleadings in O.S. No.684
of 2006 are similar in nature as were taken in O.S. No.72 of
2005, entire pleadings are not reproduced to avoid repetition.
8. Considering the respective pleadings of the parties,
the trial Court framed the following issues for trial in OS No.
684 of 2006.
1. Whether the plaintiff of suit No. 684 of 2006 (who is defendant no.1
in the suit filed vide OS No.72 of 2005) is entitled for permanent
Injunction as prayed for.
2. To what relief.
9. During the joint trial, the 1st plaintiff was examined
as PW1 and got marked Exs. Al to 11. On the other hand, the
1st defendant was examined as DWI and got marked Exs.B1 to
17. The trial Court answering Issue No.1 in OS No.72 of 2005
held that plaintiffs are not entitled to the relief of declaration as
prayed for the following reasons:
1. As per Clause 10 of Ex. B2 (agreement, dated
23.10.2000), it is very clear that plaintiffs explicitly accept
and admit that they do not acquire any right, title or
interest or possession over the subject property and the
1st defendant and his father who are vendors under Ex.
B2 alone have right, title interest and possession over the
suit property.
2. There is no clause under Ex.B2 empowering or entitling
plaintiffs to remain in possession of suit property on the
pretext of safeguarding suit property from encroachers.
3. From Clause No. 17, it cannot be said that plaintiffs have
right to remain in possession of suit property to safeguard
the same. Nowhere it is mentioned in Ex.B2 that plaintiffs
are entitled to remain in possession of suit property till
final disposal of suits pending between defendants and
third parties.
4. The recitals of Ex.B2 are not to the effect that plaintiffs
are inducted into possession of suit property by virtue of
Ex.B.2 and hence, the provisions of Section 53-A of
Transfer of Property Act are not helpful to the case of
plaintiffs and they cannot ask for declaration of their
possession under the provisions of Section 53-A of
Transfer of Property Act, that too acting in breach of
terms and conditions of agreement dated 23.10.2000,
without paying entire sale consideration amount as per
the terms of and conditions of Ex. B.2 agreement of sale.
5. Plaintiffs entered into an agreement of sale by knowing
the pending litigation in respect of suit property. Hence
Plaintiffs cannot ask for declaratory relief in respect of
possession over suit property without paying balance of
the sale consideration amount.
6. By knowing very well pending litigation in respect of suit
property, plaintiffs agreed to pay balance of the sale
consideration amount within a period of 15 months from
the date of Ex. B2 agreement.
7. There is a specific clause in Ex. B2 to the effect that "The
purchasers covenant that irrespective of obtaining
conversion of use of Schedule Lands from agricultural to
non-agricultural, other statutory compliance and
whatever complications which may have to be
undertaken, they will pay the total sale consideration as
stipulated in clause 1 above without any flexibility
whatever i.e. in any event of what so ever nature, the
purchasers shall pay the total sale consideration or
Rs.3,35,00,000/- as stipulated in the clause 1 above
without any flexibility what so ever.
In view of this, the very suit of the plaintiff for
declaration without asking the relief of specific
performance of Ex. B2 is bad. Further from clause 14 of
the Ex.B2, it is very clear that the plaintiffs entered into
Ex.B2 by knowing the pending litigation and its
consequences.
H . The Ex.B2 agreement does not create any interest or
any right on the plaintiffs in respect of suit property and
as such the plaintiffs are not entitled to the relief of
declaration.
In view of above reasons, it was held that plaintiffs
are not entitled to the relief of declaration and Issue No.1 was
answered against plaintiffs.
10. The trial Court, while answering Issue No.2 held
that plaintiffs are not entitled for any declaration in their favour,
as they are not in possession of suit property. Hence plaintiffs
are not entitled to the relief of permanent Injunction as prayed
for.
11. So far as the triable issue in O.S. No.684 of 2006 is
concerned, the trial Court held that in view of the observations
made in OS No. 72 of 2005 that the 1st defendant (plaintiff in
O.S. No. 684 of 2006) is in possession of suit lands, the
agreement dated 23.10.2000 marked as Ex.B.2 does not create
any legal rights on plaintiffs in OS No. 72 of 2005 to interfere
with the possession and enjoyment of defendants in O.S. No. 72
of 2005 over suit schedule properties. There is no recital under
agreement Ex. B2 to the effect that plaintiffs in OS No.72 of
2005 are given exclusive possession over suit property by
defendants, who are owners and possessors of suit property, as
such entitled to protect their possession from plaintiffs in OS
No.72 of 2005. Hence Issue No.1 in OS No.684 of 2006 was
answered in favour of plaintiff in OS No. 684 of 2006 (the 1st
defendant in OS No.72 of 2005). The trial Court, in view of the
findings arrived on Issue No. 1 and 2 in OS No.72 of 2005 and
Issue No. 1 in O.S. No. 684 of 2006, dismissed O.S. No. 72 of
2005 and decreed O.S. No.684 of 2006. Consequently, plaintiffs
in O.S. No. 72 of 2005 are restrained from interfering with the
possession and enjoyment of defendants therein i.e. plaintiff in
OS No.684 of 2006 over suit schedule property by way of
permanent injunction. Feeling aggrieved by the dismissal of O.S.
No. 72 of 2005 and decreeing the suit in O.S. No. 684 of 2006,
plaintiffs in O.S 72 of 2005 and defendants in O.S. No.684
preferred A.S. No. 180 of 2017 and A.S. No.164 of 2017
respectively.
12. In order to decide these appeals, contentions and
counter-contentions of parties in A.S. No. 180 of 2017 are taken
into consideration as there is no necessity to record the
contentions separately in A.S. No. 164 of 2017, which are
nothing but reproduction.
13. Sri P. Venugopal, learned Senior Counsel appearing
on behalf of Sri Gaddam Srinivas, learned counsel for
appellants, contended as follows: -
Firstly, appellants took physical possession of suit
schedule properties to protect and safeguard the same from
encroacher Mr. Hansraj in February 2001 and as per Clause 17
of Ex. B-2 agreement dated 23.10.2000, appellants are entitled
to remain in possession to safeguard the suit lands from
encroachers till the disposal of all the pending litigations in
respect of the suit land, as defendants are in Tanzania and
appellants have invested huge amounts and developed suit
land, they are entitled to seek declaration to remain in
possession under Section 53 A of the Transfer of Property Act
which has not been properly considered by the trial Court.
Secondly, appellants are always ready and willing to
comply with the terms of agreement dated 23-10-2000 Ex.B.2
by paying balance consideration and due to pendency of
litigations in respect of suit land, they have not paid balance
amount, however, they are entitled to remain in possession to
safeguard suit lands from encroachers. Therefore, sought
declaration of their possession over suit lands and to restrain
defendants from interfering with their possession over suit lands
by granting injunction, which has not been properly considered
by trial court.
Thirdly, appellants are not entitled to file suit for
specific performance due to the disability of respondents to
execute sale deeds in lieu of inter se disputes pending between
defendants 1 and 2 vide OS No.5 of 2001 and pending disputes
with third parties and clock of limitation as prescribed under
Ex.B2 agreement is not yet started. As such,
appellants/plaintiffs have no choice but to file suit for
declaration and continue in possession to safeguard their
interest which fact has not been considered by the trial Court in
right perspective.
14. Pending the Appeals, Respondents 5 and 6 were
impleaded in A.S.No. 180 of 2017. Sri V.R. Avula, learned
Senior Counsel appearing on behalf of Sri Vijaya Rama Raju,
learned counsel for impleaded respondents, contends that even
during pendency of Appeals, in order to frustrate the rights of
impleaded respondents, the contesting respondent has entered
into agreements in respect of suit lands with third parties,
which itself shows the nature of contesting respondent.
15. Rebutting the contentions of appellants, Sri D.V.
Seetarama Murthy, learned Senior Counsel appearing on behalf
of M/s. Pillix Law Firm representing the respondents submits
that adverting to the contentions raised by the learned Senior
Counsel for the appellants, Clause 17 of agreement dated
23.10.2000 does not empower appellants or give any right to
them to take possession of suit lands. Moreover, under Clause
10, appellants expressly admitted that right, title and
possession would remain exclusively with respondents and
appellants were given only limited license and permission to
enter into the lands for the purpose of inspection, survey and
demarcation. Taking undue advantage of the same, appellants
acting in collusion with their henchmen Mr. Hansraj, created a
forged fabricated agreement of sale -cum- General Power of
Attorney vide document No. 982 of 2006 and trying to grab the
suit lands by setting up vexatious litigation. The said illegal acts
got challenged by respondents herein in OS No.52 of 2016, the
same got decreed vide judgment and decree dated 21.02.2019.
As such, the contention of appellants that they took possession
from encroacher Mr. Hansraj is proved incorrect and appellants
are never in possession of suit lands much less as part
performance of Ex B2.
16. Learned Senior Counsel for respondents further
submitted that Clause 17 merely grants limited licence as
caretaker of property. As such there is no delivery of possession
by respondents to appellants as part performance in order to
attract the provisions of Section 53-A of Transfer of Property
Act. Therefore, appellants cannot seek any declaration of their
assumed possession by seeking injunction against defendants.
Admittedly, when appellants breached the terms of Ex.B-2
implicit agreement and not paid initial advance amount of Rs.
1,00,00,000/- as per Clause 2 of the agreement, as such the
agreement of sale cum General Power of Attorney as
contemplated under Ex. B-2 was not executed duly complying
with mandatory provisions that laid down under the Stamps
and Registration Act. Further, appellants have not paid balance
amount as agreed to in Ex B2, thereby appellants have not
complied with the unconditional covenants and condition
precedent to bring existence of legally-valid agreement of sale as
contemplated in Ex B2 to seek injunction and declaration of
their possession against respondents over suit lands. Learned
Senior Counsel relied upon the judgment passed by the Hon'ble
Supreme Court in Saradamani Kandappan v S.
Rajalakshmi 1 and FGP Limited v. Saleh Hooseni Doctor2
and Seshasayee Steels (P) Ltd. v. CIT 3, and sought dismissal
of appeals. It is further submitted that Ex-A.11 Certified Copy
of Judgment and Decree in OS No.5 of 2001 by Principal
District Judge, Ranga Reddy District dated 30.02.2012
categorically disproves the contention of plaintiff that inter se
disputes are pending. Learned Senior Counsel finally submits
that as there is no agreement existing as on the date of filing of
suit between appellants and respondents, appellants acted in
(2011) 12 SCC 18
(2009) 10 SCC 223
(2020) 14 SCC 774
breach of contract and instead of clearing the disputes as
covenanted in Ex B2, taking undue advantage of respondents
residing in Tanzania, created multiple litigations to knock away
suit schedule land. As there is no legally-enforceable agreement
between appellants and respondents, there is no impediment for
respondents to enter into agreement of sale with the third
parties, which is evident from the covenants of Clause 18 of the
Ex B.2, Agreement. In fact, respondents executed a contingent
agreement/MoU which can be acted upon subject to outcome of
disputes authorizing one Mr. Vikas Reddy to prosecute pending
cases on their behalf at his cost and to that effect, they executed
General Power of Attorney dated 14.04.2023. In compliance of
the same, he is pursuing the cases at his own cost, as such,
there is no merit in the contention of plaintiffs that third party
rights are created during pendency of litigation.
17. It is relevant to refer to the appropriate Clauses
of Agreement dated 23.10.2000 entered by plaintiffs with
defendants. They are 1,2,10,14,15,16 and 17. Clauses 1 and 2
reads as follows:
" 1. The total sale consideration for sale of the Schedule
"A" "B" and "C" lands shall be Rs 3 Crores and 35 Lakhs at the rate of
Rs 17,86,666/- per Acre payable under
(A)Rs. 5 Lakhs shall already be paid in cash on 20.10.2000
by the Purchasers to the Vendors which the latter hereby admit and
acknowledged.
(B)Rs 70 Lakhs shall be paid in cash this day by purchasers
to the Vendors receipt of which the latter hereby shall admit and
acknowledge.
(C) Rs. 25 Lakhs shall be paid within three months from
today or obtaining the permission of the authorities for change of use of
schedule "A" "B" and "C" lands from Agricultural to Non- agricultural,
whichever is earlier
(D) The balance sale consideration of Rs 2 Crores 35 Lakhs
shall be paid within a maximum period of 15 months from the date of
this Agreement.
2. The VENDORS on receipt of a part of sale consideration of Rupees
One Crore under clause 1 (a) (b) and (c) above shall execute an
agreement of sale cum General Power of Attorney or registered sale
deeds as desired by the PURCHASERS in favour of the
PURCHASERS in respect of a part of eh Schedule "A" "B" and "C"
LANDS which would be equivalent to Rs. 50 Lakhs in terms of
value.
In view of non-compliance of unconditional promise
to pay an advance of Rs. One Crore, as contemplated under the
above said clauses of agreement dated 23.10.2000, the legally-
enforceable agreement of sale-cum-General Power of Attorney or
sale deeds were not executed and registered duly complying
with the provisions under the Stamps and Registration Act.
Hence, the trial Court held that agreement dated 23.10.2000
does not confer any rights upon plaintiffs to maintain in the suit
and to claim any rights, interest and possession over suit
schedule properties.
Further, Clauses 10 and 17 read as follows:
" 10. The purchasers admit that they do not have and never
acquired any right, title, interest, or possession over the lands in
Schedule A, B, and C. The Vendors alone have legal rights, titles,
interests, and possession over these lands. However, the purchasers
have a limited license to enter the land for purposes such as inspection,
survey, and demarcation to obtain approvals specified in the GPA
mentioned in clause 9.
17. THE PURCHASERS agree and accept that the
VENDORS are relieved from dealing with and looking after the pending
and future litigations and every other type of botherations in respect of
SCHEDULE A, B AND C LANDS and it is the duty of the purchasers to
look after SCHEDULE A, B AND C LANDS and fulfil the terms of this
agreement. However, THE VENDORS on being given sufficient notice
and at the cost and expenses of the PURCHASERS shall depose before
courts of law, statutory authorities and other form when their evidence
is necessary and warranted.
Thus, from recital of clause 10, it is irrefutable fact
that plaintiffs never acquired right, title, interest or physical
possession of lands mentioned in Schedule A, B, and C and that
these defendants exclusively hold legal right, title, interest and
physical possession of these lands. Further, plaintiffs were
granted only limited permission and license solely to enter the
lands for inspection, survey and demarcation purposes and
nothing more. Thus, allegation of plaintiff's possession in
pursuance of agreement Ex.B2 over the scheduled lands is proved
wrong and the said claim is frivolous and vexatious.
Further, Clause No.14, 15 and 16, read as follows:
" 14. THE PURCHASERS covenant that they made the
required inspection/ inquiry, the right authorities to become fully aware
of the pending litigations and intricacies involved in respect of the
SCHEDULE A, B AND C LANDS and that they are entering into this
agreement knowing the complications fully well and with their eyes wide
open.
15. The PURCHASERS covenant that irrespective of
obtaining conversion of use of SCHEDULE LANDS from agricultural to
non-agricultural, other statutory compliance and whatever
complications which may have to be undertaken, they will pay the total
sale consideration as stipulated in clause 1 above without any flexibility
whatever i.e., in any event of what so ever nature/manner. THE
PURCHASERS shall pay the total sale consideration of Rs THREE
CRORES THIRTY-FIVE LANKHS ONLY as stipulated in clause 1 above
without any flexibility what so ever
16. THE PURCHASERS covenant that in the event of the
pending litigations or future litigations pending against the VENDORS
the PURCHASERS are due and liable to pay the whole sale consideration
under clause 1 above without any right to claim refund of the amount
paid or part of it and also without any right to claim for any land either
from Schedule 'A','B', and 'C' or from elsewhere"
In view of the above, it is very clear that plaintiffs
agreed to enter into an agreement of sale-cum-GPA in the
tentative agreement dated 23.10.2000 under Ex B2 by knowing
that litigation is pending in respect of suit properties", and
"Since the plaintiffs agreed to enter into an agreement by
knowing the pending litigation in respect of suit property,
plaintiffs cannot take shelter on pending litigation and ask for
relief of declaration without paying balance sale consideration
amount as agreed to in the agreement Ex B2. Thus, admittedly
plaintiffs acted in breach of contract and not complied with the
terms of the agreement dated 23.10.2000, as such, suit for
Specific Performance is not maintainable. Plaintiffs eloquently
realizing the same, now came up with this vexatious litigation
seeking relief under Section 53 A of the Transfer of Property Act
without seeking Specific Performance and the same is highly
objectionable and not maintainable. More so, without there
being any legally-enforceable agreement of sale, as contemplated
under law, duly complying with the mandatory provisions that
are laid down under the Stamp Act and the Registration Act, as
such, plaintiffs are not entitled for the equitable relief of
declaration.
18. Perused the material available on record. The
Hon'ble Supreme Court in Saradamani Kandappan's case,
Saleh Hooseni's case and in Seshasayee Steels (P) Ltd.'s case
held that Section 53 A of the Transfer of Property Act is
applicable only in two essential conditions : (a) possession of the
property is taken under part-performance of the contract, but
not otherwise; and (b) transferee should have performed or be
willing to perform his part of the contract. It is further held that
licence for development and to act as caretaker is not equated to
delivery of possession as contemplated under Section 53A. So
far as the contention that appellants have assumed physical
possession of suit properties pursuant to Clause 17 of the
agreement and willingness to perform the terms of Ex B2
agreement are concerned, the trial Court, analysing the
covenants of Ex.B.2, specifically held that agreement Ex. B2 at
Clause Nos. 1(c), 1(d), 2, 14, 15 and 16 are explicit covenants to
pay Rs 25,00,000/-within three months and seek execution of
agreement of sale-cum-GPA and further agreed to pay entire
sale consideration amount within 15 months from date of
agreement Ex.B 2 without any flexibility whatever ie. in any
event of whatsoever nature/manner. The purchasers are due
and liable to pay the entire sale consideration under Clause 1
above without any right to claim refund of amount paid or part
of it and also without any right to claim any land either from
Schedule 'A','B', and 'C' properties or from elsewhere. In view of
the above, it is established that payment of entire sale
consideration is mandatory as stipulated under Clause 1 of Ex.
B2 agreement irrespective of pendency of present and future
disputes. Appellants have not complied with any of the Clauses
set out and as agreed to in Ex B2 agreement, thereby they
breached the terms of agreement.
19. The trial court as per Clauses 10 and 17 of the Ex.
B2, rightly held that it was admitted by appellants that rights,
title and possession remain with respondents and they are
permitted to ente the suit lands for limited purpose for carrying
out inspection, survey/demarcation, as such appellants cannot
claim any possession over suit lands. Thus, appellants having
failed to perform their duties as mandated under Ex B2 and
acted in breach of the contract not paying total sale
consideration as agreed, appellants are debarred from either
seeking relief under Specific Performance of agreement Ex B2 or
to seek relief under section 53 A of Transfer of Property Act.
Therefore, the trial court rightly held that as per Clause 10 of
Ex. B2, it is very clear that plaintiffs explicitly accept and admit
that they do not acquire any right, title or interest or possession
over suit properties and the 1st defendant and his father who
are vendors under Ex. B2 alone have right, title interest and
possession over suit property and there is no clause under
Ex. B2 empowering or entitling plaintiffs to remain in
possession of suit property on the pretext of safeguarding the
suit property from encroachers till final disposal of suits
pending between defendants and the third parties. Further, the
trial Court rightly concluded that recitals of Ex. B2 are not to
the effect that plaintiffs are inducted into possession of suit
property by virtue of Ex.B.2 and hence, provisions of Section
53-A are not helpful to the case of plaintiffs, who cannot seek
declaration of their possession under the provisions of Section
53-A, that too acting in breach of terms and conditions of
agreement dated 23.10.2000, without paying entire sale
consideration as per the terms of and conditions of Ex. B-2
agreement.
20. Further, the trial Court, after going through the
clauses of agreement, rightly held that plaintiffs entered into an
agreement by knowing the pending litigation in respect of suit
properties and plaintiffs agreed to pay balance sale
consideration amount within a period of 15 months from the
date of Ex. B2 agreement. Hence they cannot ask for declaratory
relief in respect of possession over suit property without paying
balance sale consideration. In view of this, the very suit of
plaintiffs for declaration without asking the relief of specific
performance of Ex. B2 is bad.
21. The trial Court rightly observed that there is a
specific clause in Ex. B2 to the effect that 'purchasers covenant
that irrespective of obtaining conversion of use of Schedule
Lands from agricultural to non-agricultural, other statutory
compliance and whatever complications which may have to be
undertaken, the purchaser will pay the total sale consideration
as stipulated in clause 1 without any flexibility whatever in any
event of whatsoever nature/manner, the purchaser shall pay
the total sale consideration or Rs.3,35,00,000/- as stipulated in
clause 1 and thereby, concluded that Ex. B2 agreement does
not create any interest or any right on plaintiffs in respect of
suit properties, as such they are not entitled to the relief of
declaration.
22. For the above reasons, appellants are not entitled
for any relief of declaration that they have assumed possession
over suit schedule properties and they are not entitled for
permanent injunction. In view of the above, this Court does not
find any grounds to interfere with the common judgment and
decree passed by the trail Court in dismissing the suit of
plaintiffs in OS No.72 of 2005 and decreeing the suit of
contesting defendants in OS. No. 684 of 2006.
23. In the result, both the Appeals are dismissed
confirming the common judgment and decree in O.S Nos. 72 of
2005 and O.S. No. 684 of 2006, dated 29.08.2016 passed by the
XVI Additional District and Sessions Judge, R.R. District at
Malkajgiri. No costs.
24. Interlocutory Applications, if any, stand closed.
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NAGESH BHEEMAPAKA, J
16th October 2024
ksld
