Telangana High Court
Ghanta Ranga Rao vs Mukka Venkata Krishna Reddy on 7 August, 2025
THE HON'BLE SMT. JUSTICE RENUKA YARA
APPEAL SUIT No.366 OF 2019
JUDGMENT:
Heard Sri V.Hari Haran, learned counsel for the appellants and
Sri B.Narasimhulu, learned counsel for the respondent. Perused the
record.
2. This is an appeal preferred by appellant/plaintiff aggrieved
by the judgment and decree dated 03.06.2019 passed in
O.S.No.30 of 2018 by the learned VI Additional District Judge,
Siddipet, wherein the Suit filed by the plaintiff seeking specific
performance of agreement of sale dated 13.10.2017, was
dismissed.
3. The brief facts of the case are that the appellant/plaintiff
filed the suit for specific performance of agreement of sale dated
13.10.2017 and for perpetual injunction against the respondent
with respect to suit schedule property consisting of land
admeasuring Acs.5.12 ½ guntas out of total extent of dry
agricultural land admeasuring Acs.17.37 ½ guntas in
Sy.Nos.1750 and 1751/2 situated at Pothireddipeta Village of
Dubbak Mandal, Medak District. The respondent/defendant and
three others have jointly purchased the land to an extent of
Acs.5.12½ guntas out of total extent of Acs.17.37½ guntas in
Sy.Nos.1750 and 1751/2 situated at Pothireddipeta Village of
Dubbaka Mandal, Medak District under a registered sale deed
document No.271/2008, dated 26.03.2008. The respondent
offered to sell the suit schedule property for a sale consideration of
Rs.20,00,000/- and executed an agreement of sale dated
13.10.2017. The appellant paid total consideration of
Rs.20,00,000/- to the respondent and the same is acknowledged.
Further, the respondent delivered physical vacant possession of
the suit schedule property to the appellant and delivered
registered sale deed No.271 of 2008 dated 26.03.2008. The
respondent also issued four undated cheques bearing
Nos.000029, 000030, 000031 and 000032 for Rs.4,00,000/-,
Rs.4,00,000/-, Rs.4,00,000/- and Rs.3,00,000/- respectively and
also executed four undated promissory notes for the aforesaid
amounts in favour of the appellant towards security enabling the
appellant to hold the same till the date of registration of sale deed.
The respondent has to execute the registered sale deed in favour
of the appellant within 60 days, however, postponed the same. In
the circumstances, the appellant got issued legal notice dated
19.05.2018 demanding the respondent to execute registered sale
deed but there was no reply from the respondent. The appellant
learnt that the respondent is trying to alienate the suit schedule
property to third parties by suppressing agreement of sale. Hence,
the appellant filed the suit for specific performance.
4. The respondent remained ex parte before the trial Court.
5. The appellant got examined himself as P.W.1 and got
marked Exs.A1 to A7.
6. The trial Court upon examining the oral and documentary
evidence dismissed the suit on the ground that Ex.A1-agreement
of sale is not proven, as the witness to the agreement of sale is not
examined. It is held that mere marking of the document is not
sufficient but the contents are to be proven. According to the trial
Court since the entire sale consideration is paid and possession is
delivered, the document becomes a compulsorily attestable
document and to prove such a document, witness has to be
examined. Therefore, the trial Court entertained doubt about
legality and enforceability of the agreement of sale dated
13.10.2017. It is held that the remaining documents i.e. Ex.A2
original registered sale deed document No.271/2008, dated
24.03.2008, Ex.A3-original encumbrance certificate, dated
13.06.2018, Ex.A4-original undated cheques, Ex.A5-original
undated promissory notes, Ex.A6-office copy of legal notice dated
19.05.2018 and Ex.A7-original postal receipt are of no help to
prove the case of the appellant. Further, it is held that until
possession is not proven, permanent injunction cannot be
granted. It is held that non-examination of witness to Ex.A1
warrants an adverse inference under Section 114 of the Indian
Evidence Act. As such dismissed the suit.
7. In grounds of appeal, it is pleaded that the trial Court erred
in interpretation of Sections 67, 68 and 69 of the Indian Evidence
Act in proper perspective as it is not mandatory to examine
witness to Ex.A1-agreement of sale, dated 13.10.2017 as it is not
a compulsorily attestable document. Further, it is pleaded that
Exs.A2 to A7 are not appreciated for their purport intent and
contents. It is emphasized that the total sale consideration is paid
and the same is proven and therefore, the suit ought to have been
decreed. The appellant contends that the Court ought not to have
insisted for examination of a witness to Ex.A1, when there is no
representation for the respondent and there is no case of forgery
and fabrication of said document. There was no issue about
genuineness of Ex.A1 and therefore, its validity should not have
been under question.
8. During arguments in appeal, learned counsel for the
appellant argued that the respondent remained ex parte before the
trial Court. There is no contra evidence. The case of the appellant
is proven through oral evidence of P.W.1 and through the
documentary evidence. However, merely on the ground that the
witness to Ex.A1 is not examined, the suit has been dismissed.
9. Referring to the trial Court questioning the legality and
enforceability of agreement of sale, learned counsel relied upon
the judgment of the High Court of Telangana and Andhra Pradesh
in Pathan Sabirabi vs. Shaik Rasool 1. Further, the reference is
made to judgment of the Hon'ble Supreme Court of India in the
case between Alka Bose v. Parmatma Devi and others 2,
wherein it is held as follows:
"All agreements of sale are bilateral contracts as promises are made by
both - the vendor agreeing to sell and the purchaser agreeing to purchase.
On the other hand, the observation in S.M. Gopal Chetty (supra) that
unless agreement is signed both by the vendor and purchaser, it is not a
valid contract is also not sound. An agreement of sale comes into existence
when the vendor agrees to sell and the purchaser agrees to purchase, for
an agreed consideration on agreed terms. It can be oral. It can be by
exchange of communications which may or may not be signed. It may be
by a single document signed by both parties. It can also be by a document
in two parts, each party signing one copy and then exchanging the signed
copy as a consequence of which the purchaser has the copy signed by the
vendor and a vendor has a copy signed by the purchaser. Or it can be by
2015(1)ALT 119
AIR 2009 SC 1527
the vendor executing the document and delivering it to the purchaser who
accepts it. Section 10 of the Act provides all agreements are contracts if
they are made by the free consent by the parties competent to contract,
for a lawful consideration and with a lawful object, and are not expressly
declared to be void under the provisions of the Contract Act. The proviso
to Section 10 of the Act makes it clear that the section will not apply to
contracts which are required to be made in writing or in the presence of
witnesses or any law relating to registration of documents. Our attention
has not been drawn to any law applicable in Bihar at the relevant time,
which requires an agreement of sale to be made in writing or in the
presence of witnesses or to be registered. Therefore, even an oral
agreement to sell is valid. If so, a written agreement signed by one of the
parties, if it evidences such an oral agreement will also be valid. In any
agreement of sale, the terms are always negotiated and thereafter reduced
in the form of an agreement of sale and signed by both parties or the
vendor alone (unless it is by a series of offers and counter-offers by letters
or other modes of recognized communication). In India, an agreement of
sale signed by the vendor alone and delivered to the purchaser, and
accepted by the purchaser, has always been considered to be a valid
contract. In the event of breach by the vendor, it can be specifically
enforced by the purchaser. There is, however, no practice of purchaser
alone signing an agreement of sale."
10. On the basis of above citations, learned counsel or the
appellant argued that once the appellant entered into the witness
box as P.W.1 and got examined himself to prove the execution of
Ex.A1-agreement of sale, the same is sufficient. Further, there is
no need to examine a witness to Ex.A1-agreement of sale as it is
not a compulsorily attestable document as per Section 63 of the
Indian Evidence Act which requires a will to be proven by
examining one of the witnesses. It is emphasized that the present
suit is not based on a will deed which is to be proven by
examining an attesting witness but is filed on the basis of an
agreement of sale.
11. A perusal of the documents marked under Exs.A1 and A2
give rise to several questions which go to the root of the
maintainability of the relief sought by the appellant. The
agreement of sale with possession is executed only between the
appellant and the respondent, whereas Ex.A1 agreement of sale
shows that the suit schedule property admeasuring Acs.5.12 ½
guntas was purchased jointly by the respondent and three others
under a registered sale deed i.e. Ex.A2. The appellant is claiming
that physical vacant possession of the suit schedule property is
delivered on the date of execution of agreement of sale. The
appellant allegedly sold his share in the land for a total sale
consideration of Rs.20,00,000/- and the total sale consideration is
paid.
In agreement of sale, dated 13.10.2017, it is stated that
"Whereas the vendor has jointly purchased an extent of dry
agricultural land admeasuring Acs.5.12½ out of the total extent of
dry agricultural land admeasuring Acs.17.37½ ..........
Whereas the vendor offered to sell the said share of his land free
from encumbrances to the vendee for a total consideration of
Rs.20,00,000/- and the vendee agreed to purchase the same...."
12. The above recitals in Ex.A1-agrement of sale show that the
suit schedule property is jointly purchased by the appellant and
three others and the appellant intends to sell his share of land.
There are no details as to what is the share of each of the vendee
in Ex.A2 and whether there was partition among the vendees of
Ex.A2-registered sale deed and which part of Acs.5.12 ½ guntas
was delivered to the appellant.
13. Further, execution of undated cheques for an amount of
Rs.20,00,000/- and execution of undated promissory notes for the
same amount give rise to suspicion about the genuineness of
transaction between the appellant and the respondent. In normal
course, execution of undated cheques and promissory notes is
prevalent in loan transactions, wherein promissory notes and
cheques are taken towards security for payment of the loan
amount. In the instant case, the agreement of sale marked under
Ex.A1 is sufficient to seek enforcement of said contract or for
recovery of amount paid towards sale consideration. It is strange
that undated promissory notes and undated cheques are taken as
security for execution of sale deed.
14. Be that as it may, there is no clarity about the share of the
appellant in the suit schedule property. There is no clarity in the
agreement of sale about the actual extent of land which has fallen
to the share of appellant of which allegedly possession is delivered.
Further, there is no clarity about the boundaries of the share of
the appellant within the total extent of Acs.5.12½ guntas of land
which is jointly purchased by the respondent and three others. In
the absence of such details as to extent and boundaries of the
land which is subject matter of Ex.A1, no sale deed can be
registered. There is failure on the part of the appellant to prove
the partition of suit schedule property among the respondent and
his three other co-owners, coupled with failure to show delivery of
possession with identifiable boundaries within land admeasuring
Acs.5.12½ guntas. The suit has been dismissed by the trial Court
on a ground which is not tenable, i.e., the agreement of sale dated
13.10.2017, is not a compulsorily attestable document. Hence,
there is no need to examine the witness to said document.
However, the suit filed by the appellant is not maintainable as no
executable decree can be passed. Though on a different footing,
the trial Court has dismissed the suit and the said finding need
not be interfered with.
15. In view of the foregoing discussion, the appeal lacks of
merits and is liable to be dismissed.
16. In the result, the appeal is dismissed.
Miscellaneous Petitions, if any, pending in this appeal, shall
stand closed. There shall be no order as to costs.
___________________
RENUKA YARA, J
Date: 07.08.2025
ssp
