Mr. Y. Nagender vs Mr. Y. Ganesh
2024 Latest Caselaw 3974 Tel

Telangana High Court

Mr. Y. Nagender vs Mr. Y. Ganesh on 26 September, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

         THE HONOURABLE Dr. JUSTICE G. RADHA RANI

                 APPEAL SUIT Nos.105 & 107 of 2020

COMMON JUDGMENT:

A.S.No.105 of 2020 is filed by the appellant - defendant aggrieved by the

common judgment and decree dated 04.11.2019 passed in O.S.No.9 of 2013 by

the learned V Additional District & Sessions Judge, Bhongir, Nalgonda District,

directing the respondent to deposit a sum of Rs.13.00 lakhs within one month

and on such deposit, the appellant shall hand over the possession of the property.

2. A.S.No.107 of 2020 is filed by the appellant - plaintiff aggrieved by the

same common judgment and decree dated 04.11.2019 passed in O.S.No.6 of

2011 by the learned V Additional District & Sessions Judge, Bhongir, Nalgonda

District, in dismissing the suit filed by him for specific performance of

agreement of sale and perpetual injunction.

3. The facts of the case filed by the plaintiff (respondent herein) in O.S.No.9

of 2013 (old O.S.No.167 of 2010) were that the defendant (appellant herein)

was none other than his elder brother. The plaintiff was the absolute owner and

possessor of agricultural land to an extent of Ac.9-10 guntas in Survey

No.132/AA situated at Ramalingampally Village, Bommala Ramaram Mandal,

Nalgonda District. He purchased the said property vide registered sale deed

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document bearing No.3334 of 1999 from his vendors for a consideration of

Rs.1,38,800/-. Subsequently, the name of the plaintiff was mutated in the

revenue records. The plaintiff also obtained pattadar passbook from the revenue

officials. The defendant i.e. his elder brother also purchased agricultural land to

an extent of Ac.9-00 guntas adjacent to the plaintiff's land from the same

vendors. The defendant was doing contract works and was financially sound

when compared to the other brothers. The plaintiff was doing wholesale rice

and pulses business. He was having a wholesale shop situated opposite to

Andhra Bank, Seethaphalmandi Branch, Secunderabad. While so, the plaintiff

intended to purchase a house at West Maredpally, Secunderabad and asked the

defendant for financial help of Rs.13.00 lakhs. The defendant agreed to pay the

same and gave the amounts periodically on various dates. The payments made

to the plaintiff were written on a piece of paper by the defendant and the

plaintiff endorsed the said payments. Except the payment endorsement, there

was nothing written on the said paper. The original paper was kept with the

defendant. After all the amounts were paid to the plaintiff, the plaintiff insisted

for a copy of the said paper. But the defendant stated that there was no need to

keep a copy with the plaintiff. The plaintiff believed his brother. The payments

were made as follows An amount of Rs.3,50,000/- was paid on 12.08.2004, an

amount of Rs.1,50,000/- was paid on 20.09.2004, an amount of Rs.3,00,000/-

was paid on 02.10.2004, an amount of Rs.5,00,000/- was paid by the defendant

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on 27.12.2004. The total would come to Rs.13,00,000/-. But in the legal notice

dated 31.06.2009, it was mentioned as Rs.11,00,000/- by mistake. Both the

plaintiff as well as the defendant mutually agreed that the re-payment would be

made by the plaintiff without interest and that the plaintiff should re-pay the

same whenever demanded by the defendant or whenever the plaintiff was

having money. The defendant agreed to receive the yield from the agricultural

produce of the land and adjust the same towards interest of the amount. Since

then, the defendant was taking the yield from out of the said land. The

defendant as a security to the said amount asked the plaintiff to keep the original

sale deed (title deed) and also the original pattadar passbooks of the said

property with him. The plaintiff agreed for the same and kept the original sale

deed bearing registered No.3334 of 1999 dated 30.07.1999 with the defendant

on 12.08.2004 and the original pattadar passbooks. The plaintiff had handed

over the physical possession of the said property to the defendant on 27.12.2004.

Since then, the defendant was cultivating the said land and receiving the yield.

The plaintiff was ready with the money for re-payment of the said amount to the

defendant. The plaintiff approached the defendant several times as well as

informed him over telephone that he was ready with the money and requested to

return the original title deed and pattadar passbooks. But the defendant

postponed the same. Vexed with the attitude of the defendant, the plaintiff

informed the same to his other brothers Devendar, Shivaji and Ramesh. A

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meeting was held in the shop of Devendar, which was situated at

Seethaphalmandi, Secunderabad. All of them requested the defendant to return

the original sale deed to the plaintiff. But the defendant did not agree to return

the original sale deed, refused to return the same and asked the plaintiff to do

whatever he could do. As such, the plaintiff issued a legal notice dated

24.08.2009 to the defendant asking him to handover the original sale deed,

original pattadar passbooks and to deliver the physical possession of the

property. The defendant received the said notice, but failed to give any reply.

After sending the legal notice also, the plaintiff tried to settle the matter through

elders. After all the attempts for mediation were failed, the plaintiff filed the

suit for return of the original seed deed document No.3339 dated 30.07.1999

and the two original pattadar passbooks and for recovery of possession of the

suit schedule property.

4. The defendant filed written statement admitting the relationship with the

plaintiff and submitted that he purchased Ac.9-10 guntas of land adjacent to the

property purchased by the plaintiff, but not Ac.9-00 guntas as stated by the

plaintiff. The defendant submitted that the plaintiff wanted to acquire a house

and to meet the cost thereof, the plaintiff offered to sell the suit property to the

defendant and on mutually agreed terms, the deal was finalized. The plaintiff

acknowledged the receipt of money from to time on a plain sheet of paper. It

was not a case of lending money as contended by the plaintiff. He admitted

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various payments made by him to a tune of Rs.13,01,000/- and that such

payments were made as and when required and demanded by the plaintiff. He

contended that the plaintiff delivered possession of the property pursuant to the

agreement of sale, having received substantial amount of consideration and

denied that passbooks and original sale deed were deposited with him towards

security. He contended that they were handed over to him pursuant to the

agreement of sale. He contended that it was not a case of lending money, as

claimed by the plaintiff, but that the plaintiff offered to sell the property and

collected the sale consideration and delivered possession of the property as well

as the documents pursuant thereto. He further submitted that he filed a suit for

specific performance against the plaintiff vide O.S.No.6 of 2011.

5. Basing on the said pleadings, the following issues are settled for trial:

(i) Whether the plaintiff delivered the possession of the suit property and handed over the title deed and pattadar passbooks to the defendant as security for the loan amount borrowed from the defendant?

(ii) Whether the plaintiff is entitled for recovery of suit property as prayed for?

(iii) Whether the plaintiff is entitled for return of title deed and pattadar passbooks as prayed for?

(iv) Whether the suit is barred by limitation?

(v) To what relief?

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6. O.S.No.6 of 2011 is filed for specific performance by the elder brother

against the younger brother for the suit schedule property of Ac.9-10 guntas

forming part of Survey No.132/AA situated at Ramalingampally Village,

Bommala Ramaram Mandal, Nalgonda District. He submitted that he was the

owner of the agricultural land admeasuring Ac.9-10 guntas forming part of

Survey Nos.132/A, 205, 206 and 207 situated at Ramalingampally Village,

Bommala Ramaram Mandal, Nalgonda District purchased through sale deed

dated 30.07.1999 registered as document No.3385 of 1999 before the Sub-

Registrar, Bhongir. The defendant was his younger brother. The defendant also

purchased agricultural land i.e. the suit schedule property admeasuring Ac.9-10

guntas in Survey No.132/AA from the same vendor vide registered document

No.3334 of 1999 dated 30.07.1999. Both the properties were abutting each

other. He further submitted that on 12.08.2004, the defendant offered to sell the

said agricultural land belonging to him for a sum of Rs.15.00 lakhs and he

agreed to purchase the same for the said consideration. It was mutually agreed

that the defendant would receive the sale consideration as per his requirement.

On 12.08.2004, the plaintiff paid a sum of Rs.3,51,000/- as advance and earnest

money and the defendant acknowledged receipt of the same on a sheet of paper

from a note book. The defendant received further sum of Rs.1,50,000/- on

20.09.2004, Rs.3,00,000/- on 02.10.2004 and Rs.5,00,000/- on 22.12.2004, thus

making a total of Rs.13,01,000/-. Lastly, on 27.12.2004, the defendant gave in

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writing that he had received a sum of Rs.13,00,000/- towards sale consideration

and the balance of Rs.2,00,000/- was payable at the time of execution and

registration of sale deed. The plaintiff constructed a farm house consisting of

four (04) rooms and a watchman quarter in the suit schedule property after

obtaining permission from the Gram Panchayat, Ramalingampally Village after

making payment to the defendant. While the matter stood thus, the plaintiff

received summons for settlement of issues in O.S.No.167 of 2010 in the case

filed by the defendant on the file of the learned Senior Civil Judge at Bhongir.

On receipt of the said summons, the plaintiff approached the Court and

collected the copy of the plaint and came to know that the defendant filed the

suit for return of original title deed and for possession of the property. The

defendant falsely contended in the said suit that he borrowed and received the

amounts from the plaintiff for purchase of a house at West Maredpally,

Secunderabad and in that connection, handed over the title deed and

acknowledged the receipt of amounts on a sheet of paper. The plaintiff

submitted that it was not a case of money lending but was a case of agreement

to sell the property. In view of close relationship, he did not insist upon the

defendant to complete the transaction to execute and register the sale deed

immediately. He was always ready and willing to pay the balance sale

consideration and get the sale deed registered in his favor. Even on earlier

occasion, when the defendant got issued a notice on 24.08.2009, the plaintiff

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approached his other brothers who mediated. The defendant agreed that it was

not a case of money lending and that he would execute and register the sale

deed. He was always ready and willing to perform his part of the obligation by

paying the balance consideration of Rs.2,00,000/- and get the sale deed

executed and registered in his favor. Therefore, he was entitled for specific

performance to enforce the agreement. Hence filed the suit to direct the

defendant to execute and register the sale deed by receiving the balance sale

consideration of Rs.2,00,000/- and to grant perpetual injunction restraining the

defendant from interfering with his possession over the suit schedule property.

7. The defendant i.e. the respondent herein filed written statement

contending that the suit was not maintainable for non-compliance of the

mandatory conditions and provisions contemplated in the Specific Relief Act,

1963 as well as in the Civil Procedure Code. The plaintiff had not issued any

notice to the defendant before filing the suit and there was no demand as per the

plaint for the performance of the contract. Non-compliance of all the said

statutory violations would entail dismissal of the suit. The suit was barred by

the Law of Limitation. If really it was a contract of sale, the plaintiff ought to

have made a demand by issuing notice before filing the suit. He reiterated his

contentions as stated in O.S.No.9 of 2013 (Old O.S.No.167 of 2010) stating that

he approached the plaintiff for financial help of Rs.13,00,000/- for purchase of

house and that the plaintiff paid the amounts periodically and that they mutually

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agreed that the repayment would be without interest and as a security to the said

amount, he kept the original sale deed (title deed) and the original two pattadar

passbooks of the suit property with the plaintiff and agreed that the plaintiff

could take the agricultural produce out of the said land towards interest.

8. He further submitted that he was ready with the money by February, 2009

and asked the plaintiff to take back the money and to return the original title

deed and passbooks. But, he failed to return the same. As such, he issued a

legal notice and also informed the same to his brothers and tried to settle the

dispute with the plaintiff. The plaintiff agreed to return the original documents

after receipt of the amount before his other brothers, but later changed his

version and threatened the defendant. The defendant contended that due to rise

in the land costs and existence of land abutting highway, the plaintiff with an

intention to grab the suit schedule property was behaving in such a manner. He

further contended that he never agreed to sell the property to the plaintiff. If he

wanted to sell the same, he could have sold it to others, so that he would have

received the entire consideration at one go. He further contended that the sheet

of paper filed along with the plaint about the payment of Rs.13,00,000/- and the

balance of Rs.2,00,000/- payable at the time of registration of the sale deed was

not in his handwriting. The same was forged and created. The plaintiff had not

filed the original sheet of paper, on which the defendant made the endorsement

with his own handwriting. The plaintiff by keeping those documents in dark,

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suppressed the real endorsements and signatures, filed the forged documents.

The original paper contained only 4 dates of payments, amounts, signatures of

the defendant in his handwriting. Except the same, nothing was written on that

sheet of paper. The plaintiff had not filed the original paper, on which the

defendant made endorsement in his own handwriting. The sheet of paper with

writings filed by the plaintiff did not belong to him. The same were forged and

created. He also contended that it was a surprise to him that the plaintiff made

constructions on his land without his permission. The electricity and the

property tax receipts filed by the plaintiff were created. The same were

obtained with his influence. The said allotments were not in accordance with

law and prayed to dismiss the suit, as it was barred by the Law of Limitation.

9. Basing on the above pleadings, the trial court framed the issues as follows:

(i) Whether the defendant executed the document dated 27.12.2004?

(ii) Whether the defendant agreed to sell the suit property in favor of the plaintiff?

(iii) Whether the plaintiff has always been ready and willing to perform his part of contract?

(iv) Whether the plaintiff is entitled for specific performance of contract as prayed for?

(v) To what relief?

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10. Both the suits were clubbed together and evidence was recorded in

common in O.S.No.9 of 2013.

11. The plaintiff in O.S.No.9 of 2013 (Old O.S.No.167 of 2010) was

examined as PW.1 and Exs.A1 to A7 were marked on his behalf. The

defendant in O.S.No.9 of 2013 was examined as DW.1 and Exs.B1 to B15 were

marked on his behalf. The defendant also got examined two other witnesses as

DWs.2 and 3.

12. On considering the oral and documentary evidence on record, the trial

court decreed O.S.No.9 of 2013 with costs and dismissed O.S.No.6 of 2011

directing the plaintiff to deposit the sum of Rs.13,00,000/- within one month

from the date of the judgment and on such deposit, directed the defendant to

receive the said money and to handover the possession of the suit schedule

property along with original documents within a period of three months from

the date of deposit of money by PW.1.

13. Aggrieved by the said common judgment and decree, the defendant in

O.S.No.9 of 2013 and the plaintiff in O.S.No.6 of 2011 preferred these appeals.

14. Heard Sri B.Chandrasen Reddy, learned Senior Counsel for the appellant

and Sri Manu, learned Senior Counsel for the respondent.

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15. Learned Senior Counsel for the appellant contended that the court below

failed to see that it was not a case of loan transaction, but a case of sale

transaction and that there was clear consensus between the appellant -

defendant and the respondent - plaintiff with regard to sale of the suit property

under Exs.B1 and B2. The court below failed to appreciate that the appellant

was in possession of the suit property since the year 2004 and coupled with

Exs.B1 and B2, it would establish the sale transaction. No material evidence

was filed by the respondent - plaintiff to show that there was any loan

transaction. No promissory note was filed by the respondent - plaintiff. The

court below failed to appreciate that the registered sale deed, original pattadar

passbooks and title deed were deposited with the defendant. The respondent -

plaintiff approached the Court with unclean hands by suppressing the material

facts. The court below failed to appreciate Exs.B3 to B15, which would show

the uninterrupted possession and enjoyment of the suit property by the appellant

- defendant without any hindrance from the respondent at any point of time.

The court below erred in finding that Exs.B1 and B2 were not qualified as

enforceable documents and that delivery of possession was not mentioned

anywhere and prayed to allow the appeal.

16. Learned Senior Counsel for the respondent on the other hand contended

that the suit for delivery of title deed and recovery of possession was based on

the title deed registered as document No.3334 of 1999. The appellant admitted

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about the title deed being delivered to him and possession also handed over to

him. The only defence taken by the appellant was that the said documents and

possession were handed over to him under the alleged agreement of sale and

relied upon Exs.B1 and B2. Exs.B1 and B2 were void documents. No details

were mentioned in the same. They were not signed by the alleged purchaser.

They were executed on a notebook paper. I.A.No.610 of 2018 in O.S.No.9 of

2013 filed by the appellant for receiving the stamp duty was dismissed by the

trial court observing that the said documents were vague and would not come

under the purview of Section 35 of the Indian Stamp Act, 1899. Aggrieved by

the said order, the appellant - defendant preferred C.R.P.No.477 of 2019. But

the same was also dismissed confirming the orders of the court below. No SLP

was preferred by the appellant herein. As such, the said order became final.

Therefore, the appellant could not once again rake up the issue about their being

consensus between the appellant and the respondent with regard to the sale of

the suit property under Exs.B1 and B2. The suit of the appellant in O.S.No.6 of

2011 was hit by Section 16(c) of the Specific Relief Act, 1963. The appellant

failed to prove that he was ready and willing to perform the terms of contract

and relied upon the judgments of the Hon'ble Apex Court in Mehboob-Ur-

Rehman (Dead) through LRs. v. Ahsanul Ghani 1, Pramod Buildings and

2019 (2) ALD 54 (SC)

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Developers Private Limited v. Shanta Chopra 2, Manjunath Anandappa Urf

Shivappa Hansi v. Tammanasa and others 3, Vimlesh Kumari Kulshrestha

v. Sambhaji Rao & another 4, Umabai and another v. Nilkanth Dhondiba

Chavan (Dead) by LRs. and another 5 , Ayithi Appalanaidu v. Petla

Papamma 6 and Azhar Sultana v. B.Rajamani & Others 7.

17. Learned Senior Counsel for the respondent further relied upon the

judgments of the Hon'ble Apex Court in Roop Kumar v. Mohan Tedani8 on

the aspect that proving contents of writing otherwise than by writing itself is

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

Smt.Gangabai v. Smt.Chhabubai 9 on the aspect that the nature and intent of

the transaction must be gathered from the terms of the documents itself and no

evidence of any oral agreement or statement can be admitted as between the

parties to such document for the purpose of contradicting or modifying its terms

and relied upon the judgment of the High Court of Andhra Pradesh in Naseeb

Khatoon v. Syed Abdul Aziz and Others10 on the aspect that mere possession

for any length of time would not convert itself into adverse possession.

AIR 2011 SC 1424

AIR 2003 SC 1391

AIR 2009 SC 806

2005 (3) Supreme 508

2011 (3) ALT 735

2009 (2) Supreme 262

AIR 2003 SC 2418

AIR 1982 SC 20

2014 (3) ALD 297

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18. Now the points for consideration in these appeals are:

(1) Whether the alleged transaction under Exs.B1 and B2 can be considered as an agreement of sale to sell the suit schedule property?

(2) Whether the appellant is ready and willing to perform his part of the contract and entitled for specific performance of contract as prayed for?

(3) Whether the respondent is entitled for return of title deed and pattadar passbooks and for recovery of possession of suit schedule property as prayed for?

(4) Whether the suits were barred by limitation?

(5) To what result?

P O I N T No.(1):

Whether the alleged transaction under Exs.B1 and B2 can be considered as an agreement of sale to sell the suit schedule property?

19. The appellant filed O.S.No.6 of 2011 for specific performance basing on

Exs.B1 and B2. The defendant contended that the said documents were forged

and fabricated. He contended that it was not the original sheet of paper, on

which he made the endorsement with his own handwriting. The original sheet

of paper consisted only of the date, payment amount and signature. The top

endorsement on these sheets of paper four lines above the dates of payments,

amounts and signature did not belong to him. Thus, the respondent denied that

it was not the original document and the writings above the receipts did not

belong to him. The respondent was examined as PW.1 and he was confronted

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with the signatures on the paper dated 12.08.2004 (Ex.B1) and 27.12.2004

(Ex.B2). Exs.B1 and B2 were drafted on both sides of the same paper. PW.1

stated that the said signatures did not belong to him. Even then, no steps were

taken by the appellant herein to send these documents to an expert to confirm

the writings and signatures of the respondent - plaintiff on them. The appellant

filed I.A.No.610 of 2018 in O.S.No.9 of 2013 before the trial court for

impounding these documents for collecting stamp duty and penalty. The said

petition was dismissed by the trial court observing that the alleged agreement

dated 12.08.2004 was written on a notebook paper and the contents would not

disclose any agreement between the parties i.e. vendor and vendee much less

the name of the petitioner. It was nothing but a rough note, which was prepared

by the party. It does not contain any specific schedule and boundaries of the

land. The alleged receipt dated 27.12.2004 does not have the name of the

petitioner (appellant) by name Nagendar. It simply disclosed the name of the

respondent - plaintiff and that he received Rs.13,00,000/-.

20. The trial court further observed that after going through the alleged

documents produced by the petitioner (appellant), the contents of the alleged

documents were vague and that they would not come under the purview of

Section 35 of the Indian Stamp Act, 1899. Aggrieved by the said order, the

petitioner - defendant (appellant herein) preferred C.R.P.No.477 of 2019. The

same was also dismissed by this Court on 09.04.2019 confirming the order of

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the trial court. The said order attained finality, as no SLP was filed against it.

Hence, the observation of the Courts that the said documents could not be

considered as an agreement or as an instrument, which would require stamp

duty or penalty, became final. The said documents are also observed to be

vague, written on a notebook paper. As per the contents of Ex.B1 dated

12.08.2004, it was written as:

"I Y.Ganesh, S/o.late Y.Durgaiah aged 39 years. I was to sell my land at Ramalingampalli Village for lump sum Rs.15/- lakhs 9 Acres. I have as follows:

1. Received amount on 12.08.2024: Rs.3,51,000/-.

2. Received amount on 20.09.2004: Rs.1,50,000/-.

3. Received amount on 02.10.2004: Rs.3,00,000/-

4. Received amount on 27.12.2004: Rs.5,00,000/-."

and the contents of Ex.B2 dated 27.12.2004 would read as follows:

"I Y.Ganesh received an amount of Rs.13.00 lakhs (Rupees Thirteen Lakhs only) towards sale of Ramalingampalli Land (i.e. Ac.9-00 guntas), balance Rs.2,00,000/- at the time of registration."

21. Thus, the name of the purchaser to whom Sri Y.Ganesh was intending to

sell the property was not mentioned in the said document. The details of the

property with its survey number and boundaries are also not mentioned in it.

Though the suit schedule property is Ac.9-10 guntas, the document under Ex.B1

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would reflect it as Ac.9-00 guntas. As such, the extent of the property is also

not correctly mentioned. Likewise, Ex.B2 also would not disclose from whom

the respondent received the amount. In this document also, the extent of the

property was also shown as Ac.9-00 guntas without any other details as to the

survey number, boundaries, name of the Mandal / District where the property

was located to make it identifiable. Thus, the above documents marked under

Exs.B1 and B2 cannot be considered as an agreement of sale or that the

respondent agreed to sell the suit schedule property. The respondent contended

that he took loan of Rs.13,00,000/- from the appellant, while the appellant

contended that it was an agreement of sale. Though the receipts of the amounts

were admitted by the respondent, there is no consensus ad-idem with regard to

the nature of transaction to consider it as a valid contract. As per Section 29 of

the Indian Contract Act, 1872, the agreements that are not certain or cannot be

made certain are void. The appellant was examined as DW.1. He admitted in

his cross-examination that Exs.B1 and B2 did not contain his name and Ex.B1

did not contain the Survey No.132/AA, the extent of the land as Ac.9-10 guntas

and that it was situated at Ramalingampally Village of Bommala Ramaram

Mandal. So also, Ex.B2 does not contain the Survey No.132/AA and its extent

as Ac.9-10 guntas. He stated that there were no terms and conditions in Ex.B1.

He admitted that there was no agreement of sale between him and the plaintiff

even prior to 27.12.2004 or subsequent to the said date. He added that Exs.B1

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and B2 were the agreement of sale. He admitted that there was no single word

that Exs.B1 and B2 were styled as an agreement of sale and no such

nomenclature is mentioned in the above referred documents. He also further

admitted that there were no two parties referred in Exs.B1 and B2 as seller and

buyer or vendor and vendee. He stated that he did not know that a village by

name Ramalingampally was situated not only in Bommala Ramaram, but as

well as in Pochampally and also in Mahaboobnagar District. The sentence

above the receipt "I have as follows" does not appear to be meaningful. There

were no witnesses to the said transaction. It was drafted on a rough notebook,

but not on any stamp paper.

22. The Hon'ble Apex Court in Vimlesh Kumari Kulshrestha v. Sambhaji

Rao & another (cited supra), held that:

"15. It is no doubt true that ordinarily an endeavor should be made by the court to give effect to the terms of the agreement but it is also a well settled principle of law that an agreement is to be read as a whole so as to enable the court to ascertain the true intention of the parties. It is not in dispute that no plan was prepared. A purported sketch mark was attached with the plaint, which was not proved. Evidences brought on record clearly lead to the conclusion that the appellant was not the tenant in respect of the entire house. She, in her deposition, even did not claim the same. Another tenant was occupying

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some rooms in the same premises. Appellant herein in her evidence also admitted that no map was attached to the agreement.

17. It is in the aforementioned context, the meaning of the words used in the agreement must be determined. It refers to the property where the appellant was living and not any other property. If the appellant was living in a part of the property, only the same was the subject matter of sale and not the entire premises.

Reliance has been placed by Mr. Narasimha on a decision of the House of Lords in Hillas & Co. Ltd. Vs. Arcos, Ltd. [(1932) All ER (Rep) 494], wherein it was held;

"It is the duty of the court to construe agreements made by business men - which often appear to those unfamiliar with the business far from complete or precise- fairly and broadly, without being astute or subtle in finding defects; on the contrary, the court should seek to apply the maxim verba ita sunt intelligenda ut res magis valeat quam pereat.

That maxim, however, does not mean that the court is to make a contract for the parties, or to go outside the words they have used, except in so far as there are appropriate implications of law,

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as, for instance, the implication of what is just and reasonable to be ascertained by the court as matter of machinery where the contractual intention is clear but the contract is silent on some detail. Thus in contracts for future performance over a period the parties may not be able nor may they desire to specify many matters of detail, but leave them to be adjusted in the working out of the contract."

20. An agreement of sale must be construed having regard to the circumstances attending thereto. The relationship between the parties was that of the landlord and tenant. Appellant was only a tenant in respect of a part of the premises.

It may be that the boundaries of the house have been described but a plan was to be a part thereof. We have indicated hereinbefore that the parties intended to annex a plan with the agreement only because the description of the properties was inadequate. It is with a view to make the description of the subject matter of sale definite, the plan was to be attached. The plan was not even prepared. It has not been found that the sketch of map annexed to the plaint conformed to the plan which was to be made a part of the agreement for sale. The agreement for sale, therefore, being uncertain could not be given effect to."

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23. In the present case also, the alleged agreement under Exs.B1 and B2

would not describe the property in a certain manner with its survey number,

boundaries or the extent correctly. The intention of the parties also could not be

gathered from the alleged agreement. It cannot be considered as an agreement.

The time when the balance amount has to be repaid is also not specific. It was

only mentioned that the balance of Rs.2,00,000/- has to be paid at the time of

registration. Within which time the registration has to be completed or whether

any requirements are there on the side of the respondent to complete the

contract are not specified in the said documents. All these would make the

documents consider as vague, uncertain and unenforceable.

24. As per the judgment of the Hon'ble Apex Court in Roop Kumar v.

Mohan Tedani (cited supra), Section 91 of the Indian Evidence Act, 1872

forbids proving the contents of a writing otherwise than by the writing itself. In

the case of a written contract, all proceedings and contemporaneous oral

expressions are merged in the writing or displaced by it. Thus, when the terms

of a contract are reduced into writing, no oral evidence is permissible to prove

its contents unless by exhibiting the document itself. Thus, the oral evidence of

the appellant examined as DW.1 also cannot be looked into to consider its terms.

Dr.GRR, J as_105 & 107_2020

25. In Smt.Gangabai v. Smt.Chhabubai (cited supra), the Hon'ble Apex

Court held that:

"The bar imposed by sub-section (1) of Section 92 of the Indian Evidence Act, 1872 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties."

26. As such, this Court is of opinion that the alleged transaction under Exs.B1

and B2 cannot be considered as an agreement of sale to sell the suit schedule

property.

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P O I N T No.(2):

Whether the appellant is ready and willing to perform his part of the contract and entitled for specific performance of contract as prayed for?

27. Though the appellant contended that Exs.B1 and B2 are pertaining to the

year 2004 and they were agreement of sale, no notice was issued by the

appellant to the respondent to execute the agreement or to register the sale deed

in his favor till the date of filing the suit in the year 2011. Only after receipt of

the summons in O.S.No.9 of 2013 (old O.S.No.167 of 2010), the appellant

herein filed O.S.No.6 of 2011 seeking specific performance. Till then he

remained silent. He never expressed his readiness and willingness to pay the

balance amount of Rs.2,00,000/- as mentioned in Ex.B2.

28. The appellant examined as DW.1 admitted in his cross-examination that

"after 27.12.2004, he did not give any notice to the plaintiff for execution of a

sale deed. He did not send any amount of Rs.2,00,000/- to the plaintiff

(Y.Ganesh) by way of bank cheque to his account or personally gave the cheque

to him". He also admitted that after receipt of suit summons by him in

O.S.No.9 of 2013 (Old O.S.No.167 of 2010), he filed O.S.No.6 of 2011 against

the plaintiff. He received the suit summons in the month of November, 2010.

Even after receipt of suit summons in O.S.No.9 of 2013, he did not give any

notice to the plaintiff for specific performance of contract by expressing his

readiness to perform the contract.

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29. These admissions made by the appellant would disclose that he never

expressed his readiness and willingness to perform his part of the contract to the

respondent at any time prior to filing of the suit from 2004 to 2011.

30. The judgment of the Hon'ble Apex Court in Mehboob-Ur-Rehman

(Dead) through LRs. v. Ahsanul Ghani (cited supra), held that:

"Though, with the amendment of the Specific Relief Act, 1963 by Act No. 18 of 2018, the expression "who fails to aver and prove" is substituted by Act No. 18 of 2018, the expression "who fails to aver and prove" is substituted by the expression "who fails to prove". By the same Act No. 18 of 2018, the expression " must aver" is substituted by the expression "must prove" expression "who fails to prove" and the expression "must aver" stands substituted by the expression "must prove" but then, the position on all the material aspects remains the same that, specific performance of a contract cannot be enforced in favor of a person who fails to prove that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms of which, the performance has been prevented or waived by the other party. As per the law applicable at the relevant time, it was incumbent for the plaintiff to take the specific averment to that effect in the plaint. Of course, it was made clear by this Court in several decisions, that such

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requirement of taking the necessary averment was not a matter of form and no specific phraseology or language was required to take such a plea. However, and even when mechanical reproduction of the words of statue was not insisted upon, the requirement of such pleading being available in the plaint was neither waived nor even whittled down. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so."

31. In Pramod Buildings and Developers Private Limited v. Shanta

Chopra (cited supra), the Hon'ble Apex Court held that:

"Plaintiff, in the suit cannot succeed unless he proved that he was ready and willing to perform the contract".

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32. In Ayithi Appalanaidu v. Petla Papamma (cited supra), the Hon'ble

Apex Court held that:

"Where the agreement had entered in the year 1991, but the notice for execution of sale deed was made only in the year 1994, mere assertion that the plaintiff was ever ready to balance sale consideration without substantial evidence will not be sufficient to grant specific performance."

33. In the present case, no notice was even given by the appellant to show his

readiness and willingness to pay the balance sale consideration.

34. In Azhar Sultana v. B.Rajamani & Others (cited supra), the Hon'ble

Apex Court held that:

"Continuous readiness and willingness on the part of the plaintiff is a condition precedent for obtaining a relief of grant of specific performance of contract."

35. In the present case, there is no iota of evidence to prove willingness and

readiness on the part of the appellant, much less continuous willingness and

readiness.

36. Thus, the appellant failed to prove his readiness and willingness to

perform his part of the contract of paying the balance sale consideration of

Rs.2,00,000/-. Thus, he is not entitled for specific performance of contract as

prayed for.

Dr.GRR, J as_105 & 107_2020

P O I N T No.(3):

Whether the respondent is entitled for return of title deed and pattadar passbooks and for recovery of possession of suit schedule property as prayed for?

37. The contention of the respondent - plaintiff was that, as he was

purchasing a flat at West Maredpally, Secunderabad., he requested the appellant

for a handloan to lessen the burden of heavy loan amount from financial

institutions and the appellant agreed to provide him a handloan of

Rs.13,01,000/-. The appellant came to his shop at Seethaphalmandi and gave

the amounts whenever available with him between 12.08.2004 to 27.12.2004

and he handed over his property documents towards security and permitted the

appellant to receive the crop yield towards interest and that he would re-pay the

amount whenever he was comfortable, without interest. He was ready with the

amount in February, 2009, approached the appellant and asked him to return the

original title deed and pattadar passbooks of him on receipt of the money. But

the appellant refused to return the same and receive the money from him. He

also stated that he got issued a legal notice to the appellant. But the appellant

failed to give any reply to the same.

38. The respondent examined himself as PW.1 and got marked the office

copy of the legal notice sent to the appellant - defendant as Ex.A3. In his cross-

examination, he stated that he purchased a residential flat at West Maredpally in

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the year 2004. In Ex.A3 notice, he instructed his counsel to specify that he was

ready to pay a sum of Rs.13,00,000/- to the appellant - defendant. He stated

that he had deposited the registered sale deed and original pattadar passbooks

with the defendant at the time of obtaining loan as security purpose. The

defendant also admitted about the payment of amounts as well as the deposit of

registered sale deed and original passbooks and title deeds with him by the

respondent at the time of receipt of the money. The only defence taken by the

appellant was that the said documents and possession of the suit schedule

property was handed over to him under the alleged agreement of sale marked

under Exs.B1 and B2. As the alleged transactions under Exs.B1 and B2 are not

considered as agreement of sale, as discussed in point No.1, in all probability

they are to be considered as a loan transaction taken by the respondent by

deposit of his title deed and pattadar passbooks and handing over possession of

the suit schedule property to enable the appellant to use the usufruct towards

interest.

39. As Ex.A1, the certified copy of the registered sale deed document

No.3334 of 1999 dated 30.07.1999 would disclose that the respondent is the

owner of the suit schedule property, which was also admitted by the defendant,

the appellant is entitled to return the original title deed documents of the

respondent on payment of the money taken from him. The pahanies marked

under Ex.A2 also would disclose that the respondent was the pattadar as well as

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possessor of the suit schedule property till 2004-05. The pahanies filed by the

appellant marked under Exs.B3 to B6 for the year 2006-07, 2007-08, 2008-09

and 2009-10 also would disclose the name of the respondent as pattedar and

possessor of the suit schedule property. The change of name of the appellant as

pattadar in the pahani for the year 2012-13 marked under Ex.B10 without any

mutation proceedings mentioned against it would not make the appellant to be

considered as the owner of the suit schedule property. The subsequent pahani

for the year 2016-17 marked under Ex.B11 also would disclose the name of the

respondent as pattadar and possessor against the suit schedule property. Exs.B7

and B13 are the ownership certificates issued by the Gram Panchayat,

Ramalingampally Village dated 08.10.2007 and 21.07.2008 respectively. But

the said documents are invalid and void documents as Gram Panchayat is not

authorized to give ownership certificates. The electricity consumption bills

marked under Exs.B9 and B12 and the property tax receipts and the photos

marked under Ex.B5 showing the construction of a farm house would not entitle

the appellant to be considered as owner of the suit schedule property. At best

they would only prove his possession over the suit schedule property, which

was not disputed by the respondent herein.

40. As per the judgment of the High Court of Andhra Pradesh in Naseeb

Khatoon v. Syed Abdul Aziz and Others (cited supra), mere possession for

any length of time would not convert itself into adverse possession. As such,

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the respondent is entitled for return of the title deed and pattadar passbooks and

for recovery of possession of the suit schedule property to him on payment of

money received by him from the appellant - defendant.

P O I N T No.(4):

Whether the suits were barred by limitation?

41. As the suit filed by the appellant is for specific performance of agreement

of sale, as per Article 54 of the Schedule to the Limitation Act, 1963, the suit

has to be filed within three (03) years from the date fixed for performance or if

no such date is fixed, when the plaintiff has notice that the performance is

refused. But, though the appellant contended that Exs.B1 and B2 are pertaining

to the year 2004, he had not filed the suit till the year 2011. As such, the suit

filed by him for specific performance is barred under the Limitation Act, 1963.

42. As the limitation period for filing the suit for possession of immovable

property under Article 65 of the Schedule to the Limitation Act, 1963 is twelve

(12) years and the respondent had filed the suit on 31.07.2010, which was much

prior to the period of twelve (12) years from 12.08.2004 (which was the first

date of receipt of the amount under Ex.B1), the suit filed by the respondent is

not barred under the Limitation Act, 1963.

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P O I N T No.(5):

To what result?

43. In the result, both the Appeal Suits are dismissed confirming the common

judgment and decree dated 04.11.2019 passed in O.S.Nos.9 of 2013 and 6 of

2011 by the learned V Additional District & Sessions Judge, Bhongir.

No order as to costs.

As a sequel, miscellaneous applications pending in these appeals, if any

shall stand closed.

____________________ Dr. G.RADHA RANI, J Date: 26th September, 2024 Nsk.