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Andhra High Court · body

2009 DIGILAW 621 (AP)

K. Krishnaveni v. S. Jagan Mohan

2009-09-07

L.NARASIMHA REDDY

body2009
Judgment :- The 1st respondent filed O.S.No.150 of 1995 in the Court of V Additional Chief Judge City Civil Court, Hyderabad, against respondents 2 to 5, for the relief of specific performance of contract i.e. an agreement of sale, dated 22.02.1990, directing the latter to execute a sale deed in his favour, in respect of the suit schedule property, viz., Flat No.202, in property bearing No.3-4-531, Narayanaguda, Hyderabad (for short ‘the flat’). Relief of delivery of possession of property was also claimed. Alternatively, he pleaded for a decree, for a sum of Rs.1,65,000/-, with interest at 24%, per annum, towards refund of the amount, paid as advance. It was pleaded that the 2nd respondent-firm, which had respondents 3 and 4 as Partners, acquired the site and constructed flats and proposed to sell Flat No.202, for a consideration of Rs.2,49,100/-. Agreement is said to have been executed, and on securing loan from the 5th respondent, the 1st respondent paid, in all, Rs.1,65,000/-, by 06.12.1990. He complained that, in spite of repeated requests, the 2nd respondent did not execute the sale deed. Before filing the suit, the 1st respondent got issued a notice, 31.03.1994. The 2nd respondent issued a reply, dated 12.04.1994, stating that the agreement stood cancelled, on account of non-payment of balance, and the loan amount of Rs.20,000/-was paid to the 5th respondent. Respondents 2 to 5 are said to have remained ex parte. Thereby, an ex parte decree for the relief of specific performance of agreement of sale directing respondents 2 to 4 to execute the sale deed, was passed, on 25.07.2001. The 1st respondent filed E.P.No.12 of 2002 for execution of the decree. In that E.P., the appellant, who is not a party to the suit, filed E.A.No.60 of 2005, under Rules 58 and 97 of Order XXI C.P.C. He pleaded that he entered into an agreement of sale with respondents 2 to 4, on 14.01.1990, and the entire consideration was paid in October-November, 1991. Possession of the flat was said to have been delivered to her. It was alleged that due to the death of M.N. Phadke, the 3rd respondent, in the year 1995, the sale deed could not be executed and his family members did not come forward. It was pleaded that the appellant came to know about the decree in favour of the 1st respondent, only when the Ameen of the Court Visited the site. It was pleaded that the appellant came to know about the decree in favour of the 1st respondent, only when the Ameen of the Court Visited the site. With these pleadings, the appellant resisted the execution and her eviction. The 1st respondent filed counter to the E.A. In addition to repeating the averments in the plaint, he alleged that the agreement pleaded by the appellant is non-existent. He stated that in pursuance of the decree, he deposited the balance consideration of Rs.79,100/- into the Court, and initiated steps for delivery of possession. He alleged that, if in fact, there existed any agreement of sale in favour of the appellant, she would not have kept quiet for the past 12 years. Through its order, dated 20.10.2005, the Executing Court, dismissed the E.A. Aggrieved thereby, the appellant filed A.S.No.617 of 2005 before the Court of III Additional Chief Judge, City Civil Court, Hyderabad. The appeal was dismissed, on 29.09.2007. Hence, this Miscellaneous Second Appeal, under Section 100 C.P.C. Sri L. Ravi Chander, learned counsel argued on behalf of the appellant. He contends that the Executing Court as well as the lower Appellate Court failed to see that the agreement in favour of the appellant was not disputed, and in fact, was admitted by the 4th respondent, who deposed as P.W.2, and still, the Courts below doubted the existence thereof. He further submits that findings of both the Courts, as regards Ex.A.1, are mainly on the ground that steps were not taken by the appellant for specific performance. He urges that, even if there was any lapse on the part of the appellant to seek the execution of the sale deed, her right to resist dispossession by taking recourse to Section 53-A of the Transfer of Property Act (for short ‘the Act’), cannot be denied. Sri A. Rama Krishna, learned counsel, advanced arguments on behalf of the 1st respondent. He submits that the agreement relied upon by the appellant is the result of collusion between herself and respondents 2 and 4, to defeat the decree passed in the suit. He contends that the very fact that respondents 2 and 4 have chosen to remain ex parte in the suit and supported the appellant, discloses the existence of collusion. Learned counsel further contends that, had Ex.A.1 been true, the appellant would have got the sale deed executed long back. He contends that the very fact that respondents 2 and 4 have chosen to remain ex parte in the suit and supported the appellant, discloses the existence of collusion. Learned counsel further contends that, had Ex.A.1 been true, the appellant would have got the sale deed executed long back. The 1st respondent field the suit for alternative reliefs, viz., for execution of a sale deed, in pursuance of the agreement of sale, dated 22.02.1990, or for recovery of a sum of Rs.1,65,000/-, with interest. The principal relief, in its entirety, was granted through an ex parte decree. In the course of execution thereof, the appellant filed claim petition under Rules 58 and 97 of Order XXI C.P.C. She pleaded not only the existence of an agreement of sale anterior to Ex.A.1, but also possession and enjoyment over the property. Inasmuch as an application under Rules 58 and 97 of Order XXI C.P.C. is equivalent to a suit, the executing Court conducted a detailed trail. The appellant deposed as P.W.1. Respondent No.4 deposed as PW.2, supporting the case of the appellant. The agreement of sale, dated 14.01.1990, relied upon by the appellant was marked as Ex.A.1. Exs.A.2 to A.5 are the receipts for the amounts said to have been paid by the appellant. EX.A.6 is the complaint submitted by her, on 06.08.2003. Exs.A.7 to A.13, A.15 and A.17 to A.20 are receipts of tax, etc., in respect of the Flat. The 1st respondent deposed as RW.1. No other witnesses were examined on his behalf. Agreement in his favour was marked as Ex.R.1. The notices that were exchanged between him and the 2nd respondent were marked as Exs.R.2 and R.3. Copy of order of interim junction, dated 10.02.1995, passed in the suit, was filed as Ex.R.4. The appellant has also brought on record Exs.X.1 to X.8. Important among them are Exs.X5 to X.8, through which the payment made by the appellant is reflected in the entries of the account books of the 2nd respondents-firm. The trial Court framed only point, viz., “whether there exists any claim that the appellant is not bound by the decree in O.S.No.150 of 1995”, and that was answered against the appellant. In A.S.No.617 of 2005, the lower Appellate Court framed the following points for its consideration: 1) “Whether the petitioner is in possession of the property in her own right by virtue of agreement of sale? In A.S.No.617 of 2005, the lower Appellate Court framed the following points for its consideration: 1) “Whether the petitioner is in possession of the property in her own right by virtue of agreement of sale? 2) If so, whether dispossession of petitioner from the property is unlawful? 3) To what relief?” The appeal was dismissed. This Court is of the view that the following substantial questions of law arise for consideration, in this miscellaneous second appeal. a) Whether the holder of prior agreement of sale is not entitled to resist the execution of a decree for specific performance of a subsequent agreement of sale? and b) Whether a person in possession of the property on the strength of an agreement of sale cannot enforce her right under Section 53-A of the Act against a person, who obtains a decree against her vendor? The agreement marked as Ex.R.1 said to have been executed by the 2nd respondent in favour of the 1st respondent, is dated 22.02.1990. That was taken as proved, since no resistance was offered in the suit. The agreement pleaded by the appellant is said to have been executed by the same firm, marked as Ex.A.1, is dated 14.01.1990. This is more than a month anterior in point of time, to Ex.R.1. The claim petition filed by the appellant was treated as a suit and the trial was conducted. The appellant, deposing as PW.1, naturally repeated her plea in the claim petition. PW.2 is none other than respondent No.4, who is surviving partner of the 2nd respondent-firm. In categorical terms, he admitted that Ex.A.1 was executed in favour of the appellant. He has also admitted the payments were made under Exs.A.2 and A.5. Coupled with this, the said payments were reflected in the account books of the 2nd respondent, which are marked as Exs.X.5 and X.8. There is some controversy as to whether the flat that was initially agreed to be sold in favour of the 1st respondent was 302, as pleaded by the appellant and respondent No.3, or flat No.202, as urged by the 1st respondent. Even assuming that Exs.A.1 and R.1 are in respect of the same flat, viz., 202, the appellant has the right to resist the execution of decree obtained by the 1st respondent, on the strength of Ex.R.1. Even assuming that Exs.A.1 and R.1 are in respect of the same flat, viz., 202, the appellant has the right to resist the execution of decree obtained by the 1st respondent, on the strength of Ex.R.1. The reason is that the appellant has proved Ex.A.1 beyond any pale of doubt and it is anterior in point of time compared to Ex.R.1. The executing Court doubted the genuinity and correctness of Ex.A.1, mostly on the ground that appellant did not take steps to get the sale deed executed. Such an approach is totally fallacious. The appellant did not owe any explanation to any one, as to why she did not take steps to get the sale deed executed. It is for her to decide the steps, to be taken in relation to the transaction. It must not be forgotten that execution of the sale deed alone is the manner in which a property can be conveyed. As long as there is no dispute between a transferor or transferee, formalities become irrelevant or secondary. The lower Appellate Court sought to justify the findings of the executing Court by offering certain additional reasons. It posed certain questions, such as in case Ex.A.1 was in existence, why PW.2 has chosen to execute Ex.R.1? Even this cannot be treated as a valid ground to suspect the genuinity of Ex.A.1. The necessary answer ought to have been extracted from PW.2 and no effort was made in this direction. Hence, the 1st question is answered in favour of the appellant. Coming to the second question, it needs to be observed that the lower Appellate Court itself was of the view that the execution of Ex.A.1 cannot be doubted. Therefore, the possession of the appellant over the property is established beyond any pale of doubt, since the agreement contained a recital to that effect. Not only she was found to be in possession of property, but also the same was established by filing the tax receipts etc., spread over several years. It is not as if she is pleading her possession either as a tenant, or encroacher. It is on the strength of Ex.A.1 executed in her favour by the 2nd respondent. The 1st respondent is claiming the property through the same source. The right conferred under Section 53-A of the Act is available not only against the true owner, but also any one claiming through such owner. It is on the strength of Ex.A.1 executed in her favour by the 2nd respondent. The 1st respondent is claiming the property through the same source. The right conferred under Section 53-A of the Act is available not only against the true owner, but also any one claiming through such owner. The 1st respondent fits into that description. Therefore, the appellant is entitled to claim the right under Section 53-A of the Act. She pleaded that the entire sale consideration was paid and the same was admitted by PW.2. The 1st respondent cannot stand on a higher pedestal, than the 2nd respondent. Even now, if it is competent for the 2nd respondent to resume possession from the appellant, the 1st respondent is equally competent to do the same. The decree obtained in the suit makes him the owner of the property, on its execution. The agreement-Ex.A.1 executed by his predecessor-in-title, binds him. He has to initiate separate steps to get possession of the property. In such an event, the appellant shall be entitled to raise the plea under Section 53-A of the Act. It is a different matter as to what would be the result of such proceedings. Further, in case it becomes impossible or difficult for the 1st respondent to recover possession, he can as well seek review of the decree. Different things would have ensued, had the appellant herein been a party to the suit. The relative precedence of Ex.A.1 would have been the subject matter of adjudication, including the proof of execution of both the documents. Obviously, because the 1st respondent was not aware of the existence of Ex.A.1 in favour of the appellant, he did not choose to implead her. Therefore, it cannot be held that the decree in O.S.No.150 of 1995 would bind the appellant. She is entitled in law to offer resistance to the execution of the decree in that suit. For the foregoing reasons, the C.M.S.A. is allowed, and the judgments, rendered by the Executing Court in E.A.No.60 of 2005 in E.P.No.12 of 2002 and by the lower Appellate Court in A.S.No.617 of 2005, are set aside. Consequently, E.A.No.60 of 2005 shall stand allowed and it is held that the appellant shall not be evicted in the course of execution of the decree in O.S.No.150 of 1995. There shall be no order as to costs.