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2000 DIGILAW 160 (AP)

Vasamsetti Dhanalakshmi v. Kadiyala Chandra Rao

2000-03-03

P.S.NARAYANA

body2000
`JUDGEMENT :- Heard Mr. S. Udaya Bhasker, the learned Counsel representing appellant and Mr. T. V. S. Prabhaker Rao, the learned counsel representing respondents. 2. The unsuccessful defendant in O. S. No. 67/92 on the file of Subordinate Judge, Ramachandrapuram, had preferred this appeal. Respondent-plaintiff filed the suit praying for the relief of specific performance on the strength of an agreement of sale dated 8-10-1990 and for other appropriate reliefs. The learned Judge on the strength of respective pleadings of the parties, settled the issues, recorded the evidence of P.Ws. 1 and 2 and D. W. 1 and ultimately decreed the suit for specific performance with costs and aggrieved by the same, the appeal had been preferred. 3. Sri Udaya Bhasker, the learned Counsel, representing the appellant would maintain that in the light of the facts and circumstances of the case, the learned Judge totally erred in granting the relief as prayed for and had pointed out to the evidence of P.W.1, P.W.2 and D.W.1 and also Ex.A.1 to Ex.A.7. 4. On the contrary, Sri Prabhakar Rao, the learned Counsel representing the respondent-plaintiff would maintain that in fact during the pendency of the appeal, a registered sale deed was obtained in pursuance of the decree and possession also was delivered. Even otherwise, the learned Counsel would contend that in the light of the findings recorded by the learned Judge inasmuch as there is no infirmity in any of the findings, the same may have to be confirmed. 5. Heard both the Counsel. 6. In the light of the rival submissions made by both the Counsel, the following points arise for consideration in this appeal:- 1) Whether the findings recorded by the learned Judge while decreeing the suit for specific performance to be disturbed or to be confirmed in the facts and circumstances of the case? 2) If so, to what relief the parties would be entitled to? 7. Point No. 1 :- Before taking up further discussion, it may be appropriate to have a look at the respective pleadings of the parties. The parties hereinafter would be referred to as "plaintiff" and "defendant" as arrayed in O.S. No. 76/92. It was pleaded in the plaint as hereunder :- "The defendant purchased the vacant site on which the schedule house is constructed from one Kahta Ramulu of Biccavole under registered sale deed dated 19-4-82. The parties hereinafter would be referred to as "plaintiff" and "defendant" as arrayed in O.S. No. 76/92. It was pleaded in the plaint as hereunder :- "The defendant purchased the vacant site on which the schedule house is constructed from one Kahta Ramulu of Biccavole under registered sale deed dated 19-4-82. Subsequently in or about 1984 the defendant got constructed a terraced building on the said site and she along with her husband and children have been residing therein. The defendant is the absolute owner of the schedule property. The plaintiff is also a resident of Biccavole. The defendant agreed to sell the schedule house. The husband of the defendant and the plaintiff settled the price at Rs. 90,000/- in the presence of Valluru Appa Rao of Biccavole. For the purpose of waiving vacant possession of the schedule house and to shift the residence of the defendant, the defendant requested for 12 months time for registration of the sale deed. She wanted that Rs. 50,000/- is to be paid as advance from out of the sale consideration of Rs. 90,000/-. The plaintiff agreed for the above terms and a registered sale agreement was executed on 8-10-1990. The original title deed and other documents relating to the schedule property were handed over to the plaintiff on the same day. The plaintiff was ready to perform his part of the contract by the end of September, 1991 and informed the same to the defendant and her husband. The defendant requested the plaintiff to give her time for execution and registration of the sale deed till the ensuing Sankranthi in 1992 as by that time the defendant could made alternative arrangement to shift her house from the plaint schedule property as it was difficult for the defendant to leave the property in rainy season. The defendant and her husband further requested the plaintiff to pay Rs. 10,000/- from out of the balance of sale consideration of Rs. 40,000/-. The plaintiff agreed for the same. The husband of the defendant is a licenced document writer. He advised the plaintiff to have a promissory note for the amount of Rs. 10,000/- since no endorsement of payment could be made on the sale agreement as it was a registered document. The plaintiff accepted the suggestion of the husband of the defendant and paid Rs. 10,000/-on 10-10-1991. The husband of the defendant is a licenced document writer. He advised the plaintiff to have a promissory note for the amount of Rs. 10,000/- since no endorsement of payment could be made on the sale agreement as it was a registered document. The plaintiff accepted the suggestion of the husband of the defendant and paid Rs. 10,000/-on 10-10-1991. A promissory note was scribed by the husband of the defendant and the defendant executed the promissory note in favour of the plaintiff for Rs. 10,000/-. Thus, by 10-10-1991 the defendant received a total sum of Rs. 60,000/- out of the sale consideration of Rs. 90,000/-. The plaintiff is always ready and willing to perform his part of the contract. But the defendant postponing the execution of the sale pretext or other. From Sankranti 1992 the plaintiff demanded the defendant for execution of the registered sale deed but the defendant postponed the same. Therefore, the plaintiff got issued a registered notice dated 12-5-92 to the defendant demanding her to execute sale deed after receiving the balance of sale consideration. The defendant received the notice but did not comply with the demand. After a long time, the defendant got issued a reply dated 30-6-92 with false allegations. The defendant is bound to execute registered sale deed and deliver possession of the property. Therefore, the suit is filed for specific performance of the sale agreement dated 8-10-90, for future profits from the date of the suit till date of delivery or in the alternative to pass a decree against the defendant for a sum of Rs. 87,210/- including damages together with subsequent interest on a sum of Rs. 60,000/- and for costs." The defendant filed written statement denying the allegations. The averments made in the written statement are as hereunder :- "The defendant had not executed the sale agreement dated 8-10-90 in favour of the plaintiff. She did not receive any consideration, under the said sale agreement. It is only a document created by the husband of the defendant and the plaintiff. It was never intended to act upon. The defendant has no knowledge about the contents of the sale agreement. The allegations that the defendant requested the plaintiff to pay an amount of Rs. 10,000/- under promissory note dated 10-10-1991 is false. It was invented only to save the terms under the sale agreement. It was never intended to act upon. The defendant has no knowledge about the contents of the sale agreement. The allegations that the defendant requested the plaintiff to pay an amount of Rs. 10,000/- under promissory note dated 10-10-1991 is false. It was invented only to save the terms under the sale agreement. The defendant did not receive any consideration under the promissory note dated 10-10-1991. The husband of the defendant indebted to third parties to a tune of Rs. 3/- lacs and therefore he is not residing in the village from October, 1990. Therefore, the allegation that the defendant and her husband requested the plaintiff and accordingly a promissory note was executed is absolutely false. After receipt of the suit notice, on enquiring, the defendant came to know that the plaintiff lent Rs. 30,000/- to the husband of the defendant in 1990 and in that connection the plaintiff might have obtained the signatures through the husband of the defendant and sale agreement might have brought into existence in favour of the plaintiff. There was no necessity for the defendant to dismantle the building. The defendant has been living in the schedule house with her children. The cause of action is not correct. The defendant got issued a reply with true and correct facts. Therefore, the suit may be dismissed with exemplary costs." 8. On the strength of the respective pleadings of the parties, the following issues were settled by the trial Court :- 1) Whether the registered sale agreement executed by defendant in favour of the plaintiff is true, valid and binding? 2) Whether the plaintiff is entitled to the relief of specific performance of the contract of sale of plaint schedule property or alternative relief as prayed for? 3) To what relief? 9. Findings had been recorded by the learned Judge in detail and the suit was decreed. The stand taken by the defendant is that Ex.A.1 was created by her husband and it was never intended to be acted upon and she had not received any consideration under Ex.A.1. The burden to prove Ex.A.1 is no doubt on the plaintiff. The plaintiff examined himself as P.W.1 and also examined one of the attestors of Ex.A.1 and P.W.2. P.W.1 deposed in detail that the defendant offered to sell the property to him for Rs. The burden to prove Ex.A.1 is no doubt on the plaintiff. The plaintiff examined himself as P.W.1 and also examined one of the attestors of Ex.A.1 and P.W.2. P.W.1 deposed in detail that the defendant offered to sell the property to him for Rs. 90,000/- and executed Ex.A.1 - sale agreement and the same was scribed by Jagannadha Rao and attested by P.W.2 and the husband of the defendant. Ex.A.1 is a registered document. This witness also deposed about Ex.A.2 - promissory note executed towards the balance of sale consideration. P.W.2 the attestor supported P.W.1 in all particulars. Ex.A.3 - Registered sale deed dated 19-4-82; Ex.A.4 - notice; Ex. A.5 - Postal acknowledgment; Ex.A.6 - reply notice; and Ex.A.7 - the registered sale agreement, also had been relied upon. As against this evidence, the evidence of D.W.1 is also available on record. But, however, in the light of this clear evidence of P.Ws. 1 and 2, the evidence of D.W.1 was disbelieved and ultimately the suit was decreed. In the light of the findings recorded by the learned Judge, this Court is of the opinion that the findings do not suffer from any legal infirmity and accordingly, the said findings are hereby confirmed. 10. Point No. 2 :- In the light of the findings recorded above, the appeal is devoid of merit and accordingly the same shall stand dismissed. However, in view of the fact that a registered document already had been obtained and possession also had been taken, the parties have to bear their own costs. Appeal dismissed.