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2008 DIGILAW 462 (AP)

G. Veera Brahman v. Gopalapuram Sammakka

2008-07-04

L.NARASIMHA REDDY

body2008
JUDGMENT: The appellant filed O.S.No.75 of 1994 in the Court of II Additional Senior Civil Judge, Warangal, against the respondents for the relief of specific performance of an agreement of sale. He pleaded that the 1st respondent is the absolute owner of house bearing No.9- 7-86, Yellambazar, Warangal, with appurtenant land of 100 sq. yards; having inherited the same from her parents. He stated that the 1st respondent executed an agreement of sale dated 02-04- 1986, agreeing to sell the property for a consideration of Rs.60,000/-. An amount of Rs.25,000/- was said to have been received by the 1st respondent, as part of the consideration and delivered possession. The balance of Rs.35,000/- was agreed to be paid at the time of registration. He pleaded that subsequent to the agreement, he paid a sum of Rs.7,700/-, on 10-06-1987, and Rs.9,300/-, on 30-04-1990, respectively. He complained that when he approached the 1st respondent, on 30-11-1992, with the balance of consideration, and requested for execution of sale deed, she did not agree, and started demanding additional amount. The matter was said to have been referred to the elders on 31-01-1993, and ultimately, the appellant approached the Trial Court for the relief of specific performance. The respondents filed a written-statement, denying the allegations in the plaint. They pleaded that the property was owned by the daughter of the 1st respondent (sister of the 2nd respondent), on the basis of a will, said to have been executed by the actual owner, the mother of the 1st respondent. The respondents pleaded that certain amount was borrowed by them from the appellant, due to their close relationship, and that taking advantage of the blank signed papers, the agreement of sale was executed. The 2nd respondent died during the pendency of the suit, and the 1st respondent alone contested the matter. The Trial Court decreed the suit, through its judgment dated 30-04-2004. The 1st respondent filed A.S.No.112 of 2004 in the Court of III Additional District Judge, Warangal, against the judgment and decree of the Trial Court. The lower Appellate Court allowed the appeal through judgment dated 04-08-2007. Hence, this Second Appeal. Smt. P. Padmavathi, learned counsel for the appellant, submits that appellant proved the execution of agreement of sale and payment of amount thereunder, and there was no basis for the lower Appellate Court for reversing the decree of the Trial Court. The lower Appellate Court allowed the appeal through judgment dated 04-08-2007. Hence, this Second Appeal. Smt. P. Padmavathi, learned counsel for the appellant, submits that appellant proved the execution of agreement of sale and payment of amount thereunder, and there was no basis for the lower Appellate Court for reversing the decree of the Trial Court. She contends that though the respondent tried to disown the property, she failed to prove the alleged will, said to have been executed by her mother, in favour of her daughter. She further submits that once the signature on the agreement of sale and payment of amounts to the respondent are not disputed, a clear case is made out for specific performance of the decree, and that the lower Appellate Court ought not to have interfered with the decree of the trial Court. Sri Ghanshyamdas Mandhani, learned counsel for the respondent, on the other hand, submits that the appellant, as PW-1, categorically, admitted several facts, which clearly established that the agreement of sale, Ex.A-1 is not genuine. He further contends that the evidence of PW-2 is equally shaky, and the lower Appellate Court examined the matter from the correct perspective. The facts, that led to the filing of the suit, have already been mentioned in the preceding paragraphs. The claim for specific performance of an agreement of sale was resisted by the respondent, on two grounds, viz., that the property does not belong to her, and that the agreement of sale is a forged one. The appellant deposed as PW-1, and a witness to the agreement of sale, Ex.A-1, was examined as PW-2. In addition to the agreement of sale, the appellant filed two receipts, Exs.A-2 and A-3. On her part, the respondent deposed as DW-1, and another witness was examined as DW-2. The Trial Court framed as many as 9 issues. Issues 1 to 5 covered the controversy relating to ownership of the property. Issues 6 to 9, relate to the genuineness of Ex.A-1, and the entitlement of the appellant, under it. The suit was decreed. In the appeal preferred by the respondent, the lower Appellate Court framed the following six points: 1. Whether the plaintiff has proved that the first defendant executed the suit agreement of sale dt.02-04-1986 ? 2. Whether receipt dt.30-04-1990 is true, valid and binding on the defendant No.1 ? 3. The suit was decreed. In the appeal preferred by the respondent, the lower Appellate Court framed the following six points: 1. Whether the plaintiff has proved that the first defendant executed the suit agreement of sale dt.02-04-1986 ? 2. Whether receipt dt.30-04-1990 is true, valid and binding on the defendant No.1 ? 3. Whether the plaintiff has proved that receipt dt.30-11-1992 (Ex.A-3), executed by the first defendant ? 4. Whether the plaintiff is ready and willing to perform his part of contract and if so, whether he is entitled for specific performance of the suit agreement of sale ? 5. Whether the suit is in time ? 6. Whether the impugned judgment and decree of the trial Court dated 30-04-2004 in O.S.No.75 of 1994 passed by the II Additional Senior Civil Judge, Warangal, suffer from any irregularity or illegality, warranting interference in this appeal. Each point was discussed separately. It is important to mention that the Trial Court did not frame independent issue, on the question of limitation. It concentrated upon the proof of Exs.A-1 to A-3, and the entitlement of the appellant, for the suit claim. In this second appeal also, the appellant proceeded on the assumption, that the respondent is the owner of the property, since the will, alleged to have been executed by her mother, in favour of her daughter, was not placed before the Trial Court. It hardly needs any mention, that in a suit for specific performance of an agreement of sale, heavy burden rests upon the plaintiff, not only to prove the execution of the agreement of sale, but also his entitlement for the relief thereunder. Mere proof of the agreement; does not, by itself, entail in grant of relief. The Court is required to weigh several aspects, before the decree for specific performance is passed. Even where the suit is found to be within limitation, the passage of time, and bona fides of the plaintiff, rather the absence thereof; would become important factors. As regards the proof of Ex.A-1, much difficulty did not arise, about the genuinity of the thumb impressions of the respondent, on Exs.A-1 and A-3. They are said to have tallied with those, on the written statement. As regards the proof of Ex.A-1, much difficulty did not arise, about the genuinity of the thumb impressions of the respondent, on Exs.A-1 and A-3. They are said to have tallied with those, on the written statement. By itself, that fact did not relieve the appellant, of his burden, to prove the contents, in view of the plea raised by the respondent, to the effect that her thumb impressions were obtained on a blank paper, when she borrowed certain amount. As PW-1, the appellant has admitted several suggestions made to him in the cross-examination. He was not able to state the exact time at which, Ex.A-1 was said to have been executed. He feigned ignorance as to the purchase of the stamp papers. The discrepancy in the serial numbers of the stamp papers was brought to his notice. He admitted that he cannot remember the dates on which, the sums of Rs.7,700/- and 9,300/- were paid. These clear admissions were sufficient to dislodge the claim of the appellant. PW-2 is none other than the brother-in-law of the appellant. He is also closely related to the respondent, as brother. His evidence was found to be too shaky, and unreliable. Though the Trial Court itself noticed the lapses in the evidence of PW-1, in para 16 of its judgment, it tried to brush aside the same, on the ground that there was long gap between the date of transaction and the date of execution. The Trial Court failed to address itself, to the question of limitation. The lower Appellate Court, on the other hand, examined the matter, in detail, not only with reference to the relevant provisions of law, but also the precedents on the issue. In her written statement, the respondent raised a specific plea of limitation. For one reason or the other, the Trial Court did not frame an issue. It must be remembered that even where a plea of limitation is not raised, Section 3 of the Limitation Act, casts a duty on the Court, to examine that question. A serious lapse, that occurred in the Trial Court, was rectified by the lower Appellate Court. Ex.A-1 is dated 02-04-1986. According to the appellant himself, the balance consideration was to be paid within one year. The payments under Exs.A-2 and A-3 are said to have been made on 30-04- 1990 and 30-11-1992, respectively. A serious lapse, that occurred in the Trial Court, was rectified by the lower Appellate Court. Ex.A-1 is dated 02-04-1986. According to the appellant himself, the balance consideration was to be paid within one year. The payments under Exs.A-2 and A-3 are said to have been made on 30-04- 1990 and 30-11-1992, respectively. The suit was filed on 31-03-1994 i.e. 8 years after the date of Ex.A-1 came into existence. On the face of it, it is barred by limitation. Ex.A-2, even if it is taken as proved, did not amount to acknowledgement, since it was made nearly four years after Ex.A-1. Under these circumstances, it cannot be said that any error has crept in the judgment of the lower Appellate Court. At any rate, no question of law arises for consideration in this second appeal. The Second Appeal is accordingly dismissed. There shall be no order as to costs.