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2008 DIGILAW 884 (AP)

K. Sudha Rani v. G. F. K. Saradamma

2008-10-16

P.S.NARAYANA

body2008
Judgment :- 1. The following substantial questions of law had been pointed out by Ms.K.Lalitha, the learned Counsel representing the appellant and the same read as hereunder:- (i) Whether a suit for perpetual injunction arises on the agreement of sale Ex.A.2 dated 5-7-1980 without filing a suit for specific performance of the agreement of sale. (ii) Whether a suit for perpetual injunction can be decreed when the execution of the agreement of sale is denied as forged without first filing a suit for specific performance of the agreement of sale and obtain a sale deed for the same. (iii) Whether a decree for perpetual injunction can be decreed when the agreement of sale is incapable of being enforced in a Court of law by reasons of the same being time barred in view of Article 54 of the Schedule of Limitation Act 1963 read with Sections 27 and 3(1) of the said Act. (iv) Whether a suit for perpetual injunction can be filed when the agreement of sale Ex.A.2 cannot be executed by late Sankariah, the husband of the defendant as Ex.A.7 dated 31-5-1980 by which the husband of the defendant purchased the same as a member of Kurnool District Revenue Employees Co-operative House Building Society and as per Ex.A-7, the suit plot should be used by the member only for construction of the house for dwelling in accordance with the instructions of the Director of Town Planning and in view of this Ex.A.2, the alleged agreement of sale, is void, ab initio as the same is opposed to Section 23 of the Contract Act. (v) Whether the suit for perpetual injunction can be decreed on the basis of Ex.A.2, the alleged agreement of sale without impleading the legal representatives of late Sankaraiah from whom Ex.A.2 is alleged to have been obtained by the plaintiff. (vi) Whether the suit for perpetual injunction can be decreed by virtue of Section 53(A) of Transfer of Property Act when Ex.A.2, the alleged agreement of sale is ab initio void and also the enforcement of which is barred by limitation. 2. (vi) Whether the suit for perpetual injunction can be decreed by virtue of Section 53(A) of Transfer of Property Act when Ex.A.2, the alleged agreement of sale is ab initio void and also the enforcement of which is barred by limitation. 2. The learned Counsel had taken this Court through the findings recorded by the Court of first instance and also through the findings recorded by the appellate Court and would maintain that on the strength of the agreement of sale without filing a suit for specific performance, a suit for injunction simplicitor cannot be maintained. The learned Counsel relied upon a decision of this Court in Chellingi Narayanamurthy Vs. Chillingi Satyanarayana and others ( 2008(1) ALD 118 ). 3. By virtue of the publication made, the service was held sufficient and the default order made as against the respondent had been set aside and the Second Appeal had been restored and the matter was heard. Hence, the Second Appeal is being disposed of after hearing the Counsel representing the appellant. 4. The appellant herein is the defendant in O.S.No.666/87 on the file of I Additional District Judge, Kurnool. The respondent herein as plaintiff filed the suit for permanent injunction on the strength of agreement of sale dated 5-7-1980. The trial Court after recording the evidence of P.W.1 to P.W.3, D.W.1 and D.W.2 and marking Exs.A-1 to A-7 and Exs.B-1 to B-3 came to the conclusion that the plaintiff is not entitled for the relief of permanent injunction and accordingly dismissed the suit. Aggrieved by the same, the unsuccessful plaintiff carried the matter by way of appeal A.S.No.51/93 on the file of III Additional District Judge, Kurnool. And the appellate Court came to the conclusion that the Decree and Judgment of the Court of first instance cannot be sustained and accordingly while setting set aside the Decree and Judgment allowed the Appeal. Aggrieved by the same, the present Second Appeal had been preferred. 5. The substantial questions of law on the strength of which submissions had been made already had been referred to above. In the decision referred to supra, this Court held that a suit for perpetual injunction without praying for the relief of specific performance on the strength of an agreement of sale cannot be maintained. 6. 5. The substantial questions of law on the strength of which submissions had been made already had been referred to above. In the decision referred to supra, this Court held that a suit for perpetual injunction without praying for the relief of specific performance on the strength of an agreement of sale cannot be maintained. 6. For the purpose of convenience, the parties hereinafter would be referred to as shown in O.S.No.666/87 on the file of II Additional District Judge, Kurnool. It was pleaded in the plaint as hereunder:- The plaintiff, by an agreement of sale dated 5-7-1980, purchased the plaint schedule house plot from late K.Sankara Rao, the husband of the defendant, for Rs.2600/-. The plaintiff paid the entire sale consideration on the date of agreement itself and took possession of the plaint schedule house plot. Late Sankar Rao undertook to execute registered sale deed at the expense of the plaintiff at any time the plaintiff demanded. Sankara Rao expired on 31-5-1987. The plaintiff demanded Sankara Rao several times during his lifetime to execute registered sale deed in pursuance of the agreement of sale dated 5-7-1980 and he used to postpone on some pretext or the other. Soon after the death of Sankara Rao, the plaintiff demanded the defendant on 22-7-1987 to execute the sale deed in pursuance of the agreement of sale dated 5-7-1980. The defendant sent a reply on 30-7-1987 denying the agreement of sale dated 5-7-1980. Again on 7-9-1987, the plaintiff got issued another registered notice addressed to the defendant's advocate with a copy marked to her under certificate of posting requesting her to inspect the agreement of sale dated 5-7-1980 executed by her late husband with his own hand and execute a registered sale deed after satisfying about the genuineness of the agreement of sale. The defendant or her advocate did not come and inspect the agreement. The plaintiff is in possession and enjoyment of the plaint schedule house plot in pursuance of the agreement of sale dated 5-7-1980 executed by late Sankara Rao. On 15-4-1987, the plaintiff had raised a loan of Rs.1000/- from one Beeram Pedda Thirupath Reddy on hypothecation of the plaint schedule house plot. The defendant has no manner of right, title or possession over the plaint schedule house plot. On 15-4-1987, the plaintiff had raised a loan of Rs.1000/- from one Beeram Pedda Thirupath Reddy on hypothecation of the plaint schedule house plot. The defendant has no manner of right, title or possession over the plaint schedule house plot. Instigated by her relations, the defendant and her relations attempted to commit trespass and take unlawful possession of the plaint schedule house plot. The plaintiff apprehends dispossession from the plaint schedule property at any time by the defendant and her men and hence the suit for permanent injunction. 7. The defendant filed written statement denying the allegations. It was also pleaded that it is false to state that the plaintiff had by an agreement of sale dated 5-7-1980 purchased the plaint schedule house plot from late K.Sankara Rao, the husband of the defendant, for Rs.2600/-. During the lifetime of K.Sankara Rao, he confined to be in possession of the suit plot and after the death of K.Sankara Rao, the defendant and her children are continuing in possession of the suit plot. The plaintiff never had any access to the suit plot at any time. The signature of late K.Sankara Rao is forged by the plaintiff on the alleged agreement of sale dated 5-7-1980. The defendant received notices dated 22-7-1987 and 7-9-1987 and got issued a registered reply notice dated 30-7-1987 to the advocate for the plaintiff. The alleged agreement of sale dated 5-7-1980 is a forged document and it is barred by limitation and as such the said agreement is inadmissible in evidence. It is false to state that the plaintiff is in possession and enjoyment of the suit plot. The plaintiff has no right to hypothecate the suit plot in favour of B.Pedda Tirupathi Reddy. The defendant came to know only after receiving the copy of the plaint that her plot had been hypothecated by the plaintiff in favour of B.Pedda Tirupathi Reddy. As the plaintiff is not in possession of the suit plot, she cannot file the suit against the defendant. There is no cause of action for the present suit. The suit is bad for non-joinder of the children and the mother of late K.Sankar Rao as parties and they are necessary parties and as such the suit is bad for non-joinder of necessary parties and the same is liable to be dismissed. There is no cause of action for the present suit. The suit is bad for non-joinder of the children and the mother of late K.Sankar Rao as parties and they are necessary parties and as such the suit is bad for non-joinder of necessary parties and the same is liable to be dismissed. The father of the plaintiff and late K.Sankara Rao were working in the same Revenue Department and they were good friends. The forged agreement of sale dated 5-7-1980 and the suit are engineered at the instance of the plaintiff's father with the intention to knock away the suit plot from the legal representatives of late K.Sankara Rao. Saradamma has no financial capacity to purchase the suit plot and prayed for dismissal of the suit with costs. 8. On the strength of these pleadings, the following Issues were settled by the Court of first instance: 1. Whether the agreement of sale dated 5-7-1980 is true, valid and binding on the defendant? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the plaintiff is in possession of the property on the date of filing of the suit or on the date of the alleged agreement dated 5-7-1980? 4. Whether the plaintiff is entitled for permanent injunction as prayed for? 5. To what relief? 9. On behalf of the plaintiff, P.W.1 to P.W.3 were examined and Exs.A-1 to A-7 and Ex.X-1 had been marked. On behalf of the defendant, D.W.1 and D.W.2 were examined and Exs.B-1 to B-3 were marked. The Court of first instance while answering Issues 1, 3 and 4 came to the conclusion that the suit plot is not in possession of the plaintiff and further held that the defendant will not be bound by the agreement of sale which is alleged to have been executed by her husband as it is time barred. While answering Issue No.2 at para-13, certain reasons had been recorded and it was held that the suit is bad for non-joinder of necessary parties and ultimately the suit was dismissed. The matter was carried by way of Appeal A.S.No.51/93 on the file of III Additional District Judge, Kurnool. While answering Issue No.2 at para-13, certain reasons had been recorded and it was held that the suit is bad for non-joinder of necessary parties and ultimately the suit was dismissed. The matter was carried by way of Appeal A.S.No.51/93 on the file of III Additional District Judge, Kurnool. The appellate Court referred to the Issues framed by the trial Court on the strength of the pleadings at para-5 and further discussed Issues 1 and 3 at paras 8, 9, 10 and 11 and answered the Issues in favour of the appellant/plaintiff. Further, the appellate Court recorded certain reasons at para-12 and came to the conclusion that the mother and children of late Sankara Rao are not necessary parties to the suit. The appellate Court also recorded certain reasons at paras 13, 14, 15 and 16 and came to the conclusion that failure to file a suit for specific performance or the question whether the contract of sale is specifically enforceable or not are immaterial for exercising the right under Section 53-A of the Transfer of Property Act 1882 and accordingly answered the said issue in favour of the appellant/plaintiff and after recording certain further reasons at para-17 ultimately came to the conclusion that the Appeal to be allowed and accordingly the suit was decreed. Aggrieved by the same, the present Second Appeal had been preferred. 10. The fact that the suit had been instituted on the strength of an agreement of sale is not in serious controversy. The fact that a suit for specific performance as such had not been instituted also is not in serious controversy. When that being so, in the light of the view expressed by this Court referred to supra, a decree for perpetual injunction cannot be granted in the light of the facts and circumstances referred to above. In view of the same, the Decree and Judgment made by the appellate Court are hereby set aside and the Second Appeal is hereby allowed. Parties to bear their own costs.