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2007 DIGILAW 972 (AP)

Miriyala Kantayya v. Miriyala Venkamma

2007-10-03

L.NARASIMHA REDDY

body2007
JUDGMENT 1. The first respondent filed O.S.No.67 of 1987 in the Court of District Munsif, Chintaalapudi, against the appellant and the second respondent, for the relief of specific performance of an agreement of sale, dated 20.08.1981. It was pleaded that the appellant and the 2nd respondent agreed to sell an extent of Ac.1.03 cents of land for a consideration of Rs.1,050/- and that in spite of repeated demands, they did not perform their part of the contract. 2. The 2nd respondent remained ex parte in the suit. The appellant alone contested the claim of the 1st respondent, by filing a written statement. According to him, the agreement of sale is a forged one and that he never agreed to sell the property. A further plea was raised to the effect that the said land was assigned in favour of his adoptive father, by name Yedla Appaiah, and that the transfer thereof is prohibited under the A.P. Assigned Lands (prohibition of Transfers) Act, 1977 (for short 'the Act'). Through its judgment, dated 26.03.1993, the trial Court dismissed the suit. Thereupon, the 1st respondent filed A.S.No.74 of 1993 in the Court of Additional District Judge, West Godavari at Eluru. The appeal was allowed on 22.03.1995. Hence, this Second Appeal. 3. The learned counsel for the appellant submits that the alleged agreement of sale was, on the face of it, a forged document and despite the specific findings recorded by the trial Court, on several aspects, the lower appellate Court had simply believed the same to be true. He further contends that it is clear from Exs.B.1 and B.2 that the land, in question, was assigned to the predecessor in title of the appellant and that the prohibition contained under the Act operates. 4. The learned counsel for 1st the respondent, on the other hand, submits that the agreement-Ex.A.1 was proved, by examining the scribe and attestors, and that the opinion expressed by the trial Court was contrary to the record. He further contends that though a vague plea was raised that the suit schedule property is an assigned land, neither the order of assignment nor the conditions prohibiting transfer thereof were placed before the trial Court. 5. The trial Court framed two issues, in the basis of the pleadings before it. Incidentally both of them related to the bar contained under the Act. The genuinity of the document was also examined. 6. 5. The trial Court framed two issues, in the basis of the pleadings before it. Incidentally both of them related to the bar contained under the Act. The genuinity of the document was also examined. 6. On behalf of the 1st respondent, P.Ws.1 to 7 were examined and Exs.A.1 to A.5 were marked. On behalf of the appellant, D.Ws.1 to 4 were examined and Exs.B.1 to B.3 were marked. The suit was decreed and the lower appellate Court reversed the same. 7. The contentions advanced before this Court cover two aspects viz., proof of execution of Ex.A.1, the agreement of sale, and the effect of the provisions of the Act on the alleged transaction. A perusal of Ex.A.1 discloses that most of the recitals therein suggest that it is a sale deed by itself. It is only at the end, that a clause was incorporated to the effect that the appellant and respondent No.2 would execute a document, as and when demanded by the 1st respondent. Entire consideration is said to have been paid and absolute transfer is stated to have been made. Therefore, the very admissibility of the document becomes questionable, inasmuch as it was not registered. 8. Be that as it may, there are several unexplained suspicious circumstances surrounding Ex.A.1. The writing of the document was commenced with one pen in blue ink. Thereafter, it was followed by a pen with black ink. The Survey Number was not mentioned on the date of execution of the document. It was stated by the witnesses themselves. In fact, there is a note written on the document to the effect that the survey number was written at a subsequent point of time. Even the numbers in the blank space are overwritten repeatedly. Though it is termed as agreement of sale, it does not contain the signature of the 1st respondent. It is not pleaded that there was any other document to bind the appellant to the transaction. The trial Court had undertaken extensive verification of the document as well as the depositions of the concerned witnesses and recorded a finding that it was not proved. Further, when the appellant had taken a specific plea that Ex.A.1 is a forged one, the 1st respondent was expected to get the document examined by an expert. Such a course was not adopted. Further, when the appellant had taken a specific plea that Ex.A.1 is a forged one, the 1st respondent was expected to get the document examined by an expert. Such a course was not adopted. The lower appellate Court, however, has unsettled the finding and held that Ex.A.1 is proved. The reasons assigned therefor are unacceptable. 9. The second aspect is about the impact of the Act on Ex.A.1, assuming it to be true. To neutralize the plea raised by the appellant, the first respondent filed Ex.A.5, dated 27.11.1991, which is a certificate issued by the Mandal Revenue Officer, Chintalapudi. In this, it was stated that the suit schedule property is a patta land. The appellant, however, obtained another certificate from the same Mandal Revenue Officer on 05.05.1992, which is marked as Ex.B.1. In this, it is said that Ex.A.5 was issued without proper verification of the record and that the patta granted as regards the suit land is a conditional one. This is affirmed in Ex.B.3, which is a re-settlement register. In the remarks column of Ex.B.3, it is clearly stated that the patta is conditional in nature. 10. The Act was brought into existence to protect the interests of assignees. The Rules of assignment were also amended from time to time, to the effect that a land assigned to agricultural labourer is meant not to be alienated. When the sole basis of the 1st respondent, on the strength of Ex.A.5, was shaken, he was expected to take further steps to substantiate his contention. Even after the appellant filed Ex.B.1, the 1st respondent did not come forward with any fresh evidence or plea. 11. The relief of specific performance, which is discretionary in nature, cannot be granted, when the agreement of sale itself is not genuine and when the land is prima facie assigned and covered by the Act. Learned counsel for the 1st respondent placed reliance upon the judgment of this Court in G.V.K.Ramaka Rao vs. Bakelite Hylam Employees Co-op. House Building Society1. On a perusal of the same, it emerges that the law laid down therein does not apply to the facts of this case. 12. For the foregoing reasons, the Second Appeal is allowed and the decree and judgment of the lower appellate Court in A.S.No.74 of 1993 is set aside. There shall be no order as to costs.