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2011 DIGILAW 1006 (AP)

Reddipalli Yasodha Bai v. P. Sreenivasulu Reddy

2011-11-16

L.NARASIMHA REDDY

body2011
Judgment : 1. The second appeal is directed against the concurrent judgments rendered by the Court of Principal Junior Civil Judge, Punganur in O.S.No.378 of 1992 and the Court of Senior Civil Judge, Punganur in A.S. No.12 of 2003. 2. The appellant is the defendant. The respondent herein filed the suit for the relief of specific performance of an agreement of sale, dated 11.05.1980 (Ex.A.1) in respect of Ac.0.25 cents of land in Punganur Town. It was pleaded that the appellant agreed to sell the suit schedule property for a consideration of Rs.10,000/- and that on the date of agreement, a sum of Rs.5,000/- was paid as advance. It was also mentioned that O.S.No.165 of 1976 was pending in relation to that land and that the parties agreed to conclude the transaction as soon as that suit is decided. Reference was made to a notice, dated 21.10.1988 (Ex.A.2) issued by the respondent calling upon the appellant to execute the sale deed, reply notice, dated 03.11.1988 (Ex.A.4) issued by the appellant, denying the very execution of the agreement (Ex.A.1), a further notice dated 05.06.1991 (Ex.A.3) issued to the appellant and the reply, dated 16.06.1991 (Ex.A.5). 3. The appellant filed a written statement denying the very execution of the agreement of sale and the other contentions advanced by the respondent. She pleaded that there existed many transactions between her husband on the one hand and the father of the respondent on the other hand; and in the course of such transactions, Ex.A.1 appears to have been handed over by her husband to the father of the respondent. It was also stated that she entered into agreement of sale with certain other parties, in respect of the suit schedule property. 4. The trial Court decreed the suit, through its judgment dated 23.08.2002. The appellant filed A.S.No.12 of 2003 in the Court of Senior Civil Judge, Punganur and the same was dismissed on 30.08.2005. 5. Sri S.V. Bhatt, learned counsel for the appellant submits that the trial Court and the lower appellate Court committed errors on important questions of law, pertaining to limitation and proof of documents. The appellant filed A.S.No.12 of 2003 in the Court of Senior Civil Judge, Punganur and the same was dismissed on 30.08.2005. 5. Sri S.V. Bhatt, learned counsel for the appellant submits that the trial Court and the lower appellate Court committed errors on important questions of law, pertaining to limitation and proof of documents. He submits that when the respondent issued Ex.A.2 on 21.10.1988 in clear terms, requiring the appellant to execute the sale deed and the latter had flatly denied the execution of the agreement through her reply dated 03.11.1988 (Ex.A.4), the suit, if at all, ought to have been filed within three years from the date of receipt of Ex.A4. He submits that the suit was barred under Article 54 of Schedule II of the Limitation Act and though a specific plea was raised in this regard, the trial Court and the lower appellate Court did not take it into account. 6. Learned counsel submits that the only witness whom the respondent examined to prove Ex.A.1 was P.W.2 and that he was declared hostile, since he did not support the case of the respondent. He contends that nothing substantive was elicited from P.W.2 in the cross-examination. He submits that it was at the instance of the respondent, that the document was sent for the opinion of expert under Order 26 C.P.C. and though a report was submitted by the expert, stating that Ex.A.1 was not signed by the appellant, the trial Court and the lower appellate Court have ignored such an important piece of evidence. Certain other contentions are also urged and he cited precedents in support of his contentions. 7. Sri E. Manohar, learned senior counsel appearing for the respondent on the other hand submits that though the respondent issued notice (Ex.A.2) in the year 1988 calling upon the appellant to execute sale deed, further steps could not be taken on account of the fact that possession of the suit schedule property was not delivered to the appellant till the year 1990. He contends that soon after the possession was delivered in compliance with the decree in O.S.No.165 of 1976, a notice in Ex.A.3 dated 05.06.1991 was issued and the suit was filed within three years thereafter. 8. He contends that soon after the possession was delivered in compliance with the decree in O.S.No.165 of 1976, a notice in Ex.A.3 dated 05.06.1991 was issued and the suit was filed within three years thereafter. 8. Learned senior counsel further submits that the trial Court and the lower appellate Court have taken into account, the inconsistent pleas on the part of the appellant as well as her admission as to the existence of transactions between the two families; and held that Ex.A.1 was proved. He submits that the equivocal statements made by P.W.2 were virtually neutralized in the cross-examination. He further submits that even P.W.2 did not dispute the signature on Ex.A.1 but has only tried to be evasive, as to the point of time, at which it was made. He contends that the report of expert is not binding on the Court and the same was dealt with in accordance with law. 9. On the basis of the pleadings before it, the trial Court framed the following issues for its consideration: 1) Whether the agreement of sale dt. 11-5-1980 is a forged, anti-dated and created document? 2) Whether the plaintiff is entitled to the relief of specific performance of agreement dt.11-5-1980? 10. On behalf of the respondent, P.Ws.1 to 3 were examined and Exs.A.1 to A.7 were filed. On behalf of the appellant, D.Ws.1 and 2 were examined and no documentary evidence was adduced. The trial Court decreed the suit. In the appeal preferred by the appellant herein, the lower appellate Court framed the following points for its consideration. 1) Whether Ex.A-1 agreement of sale dated 11.5.1980 is a forced, ante-dated and created document? 2) Whether the suit is barred by limitation? 3) Whether the plaintiff is entitled for the relief of specific performance of agreement of sale Ex.A-1 dated 11.05.1980? 4) Whether the Judgment and decree of the trial Court is to be confirmed, or modified or varied? The appeal was ultimately dismissed. 11. 2) Whether the suit is barred by limitation? 3) Whether the plaintiff is entitled for the relief of specific performance of agreement of sale Ex.A-1 dated 11.05.1980? 4) Whether the Judgment and decree of the trial Court is to be confirmed, or modified or varied? The appeal was ultimately dismissed. 11. After hearing the extensive arguments submitted by the learned counsel for the appellant and the learned senior counsel for the respondent, this Court is of the view that the following substantial questions of law arises for consideration viz., 1) Whether a trial Court can ignore the specific dates on which the cause of action as pleaded by the plaintiff has arisen, in the context of applying Section 3 of the Limitation Act and supplement its own reasons that are not pleaded by the plaintiff himself; and 2) Whether the presumption as provided for under Section 114(g) of the Evidence Act can be drawn, in case a party, at whose instance a report from an expert was called under Order 26 C.P.C. fails to take any steps, either to substantiate or to contradict the report. 12. The suit was filed in the year 1992 for specific performance of an agreement of sale, dated 11.5.1992 (Ex.A.1). In the interregnum of 12 years, there was exchange of notices, the earliest being Ex.A.2, dated 21.10.1988. In his reply, dated 03.11.1998 (Ex.A.4), the appellant flatly denied the existence or execution of the agreement. A specific plea to the effect that the suit is barred by limitation was raised in paragraph 6 of the written statement. The trial Court was under obligation to frame an issue, on the question of limitation. Even if there was any lapse on the part of the appellant, in insisting on framing of an issue, on limitation, the trial Court was required to examine the question of limitation, as provided for under Section 3 of the Limitation Act. 13. Article 54 of Schedule 1 to the Limitation Act prescribes three years, as the period of limitation, for filing suit for specific performance, to be computed from the date of agreement of sale or the date of refusal to perform, as the case may be. If one goes by the date of agreement, the suit ought to have been filed on or before 10.05.1983. If one goes by the date of agreement, the suit ought to have been filed on or before 10.05.1983. Assuming that there was an agreement between the parties, for enforcement of the agreement at a later of point of time, the second facet of Article 54, namely date of refusal comes into play. The refusal in the form of a total denial of the agreement emerged from the appellant on 03.11.1998 through Ex.A.4. The period of limitation from that date expired on 02.11.1991. Therefore, the suit was barred by limitation. 14. Though it did not frame any issue on the question of limitation, the trial Court has undertaken some discussion on it. Justification, which does not find place in the plaint, was supplemented by the Court by observing that the suit was not filed, since the possession of the property was not taken by the appellant, in execution of the decree in O.S.No.165 of 1976. That approach was totally untenable. The lower appellant Court no doubt framed a point on the question of limitation, but repeated the same version. 15. In Shakuntalavs. Narayan Gundoji Chavan ((1998) 8 SCC 587), the Supreme Court held that if a suit is not filed within three years from the date of reply issued by defendant in a suit for specific performance, it stands barred by limitation. Same view was taken by a Division Bench of this Court in ThotaRambabau v. Cherukuri Venkateswara Rao ( 2005 (4) ALD 450 (DB)). Therefore, the first substantial question of law is answered in favour of the appellant. 16. The second substantial question of law is about proof of Ex.A.1. The appellant denied the execution of the said agreement at the earliest, when he was put on notice. The burden squarely rested upon the respondent to prove it. Admittedly, the appellant was not a party to Ex.A.1. It is said to have been signed by her husband. Even if her husband signed it, the transaction does not bind her. 17. The only independent witness examined by the respondent was P.W.2. Apart from not helping the respondent, the evidence of that witness was fond to be in favour of the appellant. Therefore, he was declared hostile at the instance of the respondent. 18. It is the respondent, that filed an application under Order XXVI C.P.C. with a prayer to send Ex.A.1 for opinion of a handwriting expert. Apart from not helping the respondent, the evidence of that witness was fond to be in favour of the appellant. Therefore, he was declared hostile at the instance of the respondent. 18. It is the respondent, that filed an application under Order XXVI C.P.C. with a prayer to send Ex.A.1 for opinion of a handwriting expert. The expert opined that the signature on Ex.A.12 was not that of the person named therein. It may be true that the opinion of an expert is not final and at the best, it would help the Court in arriving at a conclusion. All the same, the mandate under Rule 10 of Order XXVI C.P.C. that the opinion tendered by the expert shall form part of the record of the suit, and that a party, not satisfied with the report of an expert, has an opportunity to explain the same, cannot be ignored. The report of an expert cannot be brushed aside, without assigning any reasons. Failure on the part of the person at whose instance the report was procured, to cross-examine the report would lead to an inference provided for under Section 104(g) of the Evidence Act. The failure on the part of the respondent to examine the report would justify the inference that had the expert been summoned, he would have supported the report submitted by him, and explained as to how the signature on Ex.A1 was not genuine. Therefore, this question also deserves to be answered in favour of the appellant. 19. The Second Appeal is accordingly allowed and the decrees passed by the Courts below are set aside. There shall be no order as to costs.