Judgment : Heard the Counsel on record. 2. The learned Counsel representing the appellants – defendants 19 to 21 had taken this Court through the respective pleadings of the parties, the evidence available on record, the findings recorded by the trial Court and also the specific grounds raised in the Grounds of Appeal and would maintain that in the facts and circumstances of the case, the findings recorded by the trial Court being unsustainable, the said findings are to be disturbed and the appeal to be allowed. The learned Counsel also would maintain that the trial Court totally erred in decreeing the suit for specific performance on the strength of the alleged agreement of sale – Ex.A.1, dt.20-6-1977. The Counsel also would maintain that in the absence of any evidence whatsoever, the trial Court ought not to have recorded a finding that the property had fallen to the share of D.1 in the partition effected between D.1 and the deceased D.2. The learned Counsel also pointed out to several of the circumstances which would clearly go to show that this property in fact had fallen to the share of the deceased-2nd defendant. The Counsel would further maintain that the present appellants are the legal heirs of the deceased-D.2. The Counsel also would further point out that the agreement of sale said to have been entered by the 1st defendant is not binding on the 2nd defendant at all. While further elaborating his submissions, the learned Counsel also pointed out to Ex.B.3 to Ex.B.8 and further pointed out to the evidence of D.W.1, the son of D.2, and also D.W.2, D.W.3 and D.W.4 as well. The learned Counsel also further pointed out to Ex.B.1, Ex.B.2 and Ex.B.9 to Ex.B.12. While further making submissions, the Counsel specifically pointed out that even prior to Ex.A.1, D.2 mortgaged the property in favour of D.3, and D.2 had let out the property to tenants and had been collecting the rents. The Counsel also pointed out that even after the death of D.2; the legal heirs of D.2 are in possession of the property even to this day. The Counsel also pointed out that even after the death of D.2; the legal heirs of D.2 are in possession of the property even to this day. Further the Counsel had pointed out that yet another important aspect is that while decreeing the suit, a direction had been given to deposit the balance of sale consideration on or before 3-8-1989 and even as on to this day, no such deposit has been made, this also would clearly go to show that the 1st respondent – plaintiff had not approached the Court with clean hands and the claim is not a bona fide one. The learned Counsel had taken this Court through the oral and documentary evidence in elaboration and ultimately would conclude that inasmuch as except the evidence of P.W.2, the brother of P.W.1, since no other acceptable evidence had been placed before the Court to prove Ex.A.1, even on this ground the appellants are bound to succeed. The learned Counsel ultimately would conclude that for the said reasons, the appeal to be allowed. 3. Per contra, the learned Counsel representing 1st respondent had taken this Court through the findings which had been recorded by the trial Court and would maintain that the close relationship between the 1st and 2nd defendants should also be taken into consideration, the trial Court appreciated the evidence on record carefully and ultimately came to the conclusion that the property in fact had fallen to the share of the 1st defendant and inasmuch as the 1st defendant had not chosen to contest the matter and after recording appropriate findings on appreciation of the evidence available on record, decreed the suit and hence this is not a fit matter to be interfered with. 4. Heard the Counsel on record, perused the respective pleadings of the parties, the issues and the additional issue settled by the trial Court, the evidence available on record, the findings recorded by the trial Court, and also the specific grounds raised in the present appeal. Pleadings of parties:- 5. The 1st respondent herein as plaintiff filed the suit O.S.No.6/78 on the file of the II-Additional Subordinate Judge, Warangal, pleading as hereunder:- “The defendants 1 and 2 are brothers and they are divided in status. Pleadings of parties:- 5. The 1st respondent herein as plaintiff filed the suit O.S.No.6/78 on the file of the II-Additional Subordinate Judge, Warangal, pleading as hereunder:- “The defendants 1 and 2 are brothers and they are divided in status. The house property bearing Gram Panchayat door No.4-3-79 (old), 4-3-49 (new) situated at Mahabubabad and more specifically described in the enclosed schedule, originally formed part of their joint family properties of said defendants 1 and 2 on partition fell to the share of the 1st defendant. The defendant No.2 made the plaintiff herein believe that the 1st defendant is exclusive owner and entitled to alienate the schedule mentioned property free from all types of charges and encumbrances and accordingly the offer of 1st defendant to sell the said specified property at Rs.32,031/- was accepted by the plaintiff. On 20-6-77 agreement of sale in respect of said house was thus executed by the 1st defendant in favour of this plaintiff. The plaintiff herein paid Rs.8,131/- as earnest money on the same day i.e., on 20-6-77 and receipt of said amount was acknowledged by the 1st defendant in the agreement executed by him as aforesaid. The main relevant terms and conditions of agreement apart from those narrated herein above are as follows:- a) Balance of sale consideration of Rs.23,900/- is to be paid within one month of 20-6-77 and sale deed got registered; b) The sale deed would be executed by the 1st defendant in the name of any person nominated by the plaintiff; c) That the property agreed to be sold is free from all types of encumbrances and charges. The dues if any payable shall be discharged before presenting the document for registration. In case of any dispute or complication, the same shall be got cleared by the 1st defendant at his expense before completing the sale; d) The plaintiff shall be put in actual possession of the property hereby sold. Even though the amount of balance of sale consideration was payable at the time of execution and presenting the sale deed for registration. At the instance of defendants 1 and 2, the plaintiff paid Rs.3,000/- on 27-6-77 under receipt passed by the 1st defendant and Rs.9,000/- vide cheques No. SB/S 7573091 dt.29-6-77 drawn on State Bank of Hyderabad Branch, Mahabubabad on 29-6-77. That plaintiff has been and always is ready to perform his part of the agreement. At the instance of defendants 1 and 2, the plaintiff paid Rs.3,000/- on 27-6-77 under receipt passed by the 1st defendant and Rs.9,000/- vide cheques No. SB/S 7573091 dt.29-6-77 drawn on State Bank of Hyderabad Branch, Mahabubabad on 29-6-77. That plaintiff has been and always is ready to perform his part of the agreement. After payment of Rs.9,000/- as aforesaid, plaintiff learnt that schedule mentioned property is subject to mortgage in favour of 3rd defendant in an amount of Rupees One Lakh Twenty thousand and above that steps for redeeming the same have not been taken. On 30-7-77 plaintiff’s brother Ramshwarlal Sharma along with Sri Vanam Laxminarayana, Advocate, and Sri K. Subash met defendants 1 and 2 herein and enquired as to the truth in the information about the schedule mentioned property bearing subject to mortgage in favour of 3rd defendant’s branch Mahabubabad as also the reason for not informing the same to the plaintiff earlier. The defendants 1 and 2 admitted the fact that the house is mortgaged in favour of 3rd defendant and assured that they6 would go over to Mahabubabad on 5-6-77 and take steps for redeeming the schedule specified property from the liability in favour of 3rd defendant. On 5th day of June, defendants did not go over to Mahabubabad as promised nor initiated any step for redeeming the property from the said liability. That plaintiff in the evening of 5th talked with 2nd defendant on phone, who promised to go over to Mahabubabad by morning of 7th July, 1977 but that promise was also broken. In the said circumstances, plaintiff got issued a notice addressed to 1st and 2nd defendants which was served on 11-7-77 and as there was no response to the said notice and as plaintiff was ready to perform his part of the agreement, he telegraphically informed the defendants 1 and 2 about his readiness and requiring them to go over to Mahabubabad with no encumbrance certificate on the schedule specified property as also mortgage debt, income tax clearance certificate from 3rd defendant regarding schedule mentioned property for carrying through the transaction. The defendants 1 and 2 through the office of Sri A. Purushotham Rao and A.Prabhakar Rao, Advocates, Khammam got issued a reply dt.26-7-77 received by the plaintiff on or about 30th day of July, 1977 enclosing a Photostat copy of certificate encumbrance on the property which disclose that the 1st defendant is the owner thereof and property is not subject to any encumbrances alleging further that the property has not been hypothecated with Andhra Bank, Mahabubabad and hence question of getting clearance certificate from 3rd defendant or its branch does not arise. The plaintiff thereupon addressed defendant No.3 on 30-7-77 through Regional Manager, Andhra Bank Ltd., Warangal as also Branch Manager of Mahabubabad Branch, seeking information as to its interest in the property. The notice dt.8-7-77 addressed on behalf of plaintiff to defendants 1 and 2 referred above and the reply notice got issued as aforesaid on 26-7-77 by the defendants were enclosed. Through letter dt.6-8-77 the Branch Manager, Andhra Bank Ltd., at Mahabubabad, informed that 2nd defendant is one of the loanee and guarantor to secure loan No.3/5 of 1976 for Rs.1-25 lakhs obtained on 20-8-76 by N. Laxma Reddy and others i.e., defendants 4 to 11 hearing being Abkari Contractors of Balpal Group certificate of Encumbrance bearing No.555/76 described 2nd defendant as owner was filed before it. The said 2nd defendant before the 3rd defendant claimed ownership by producing his own affidavit as also Court given by Gram Panchayat Mahabubabad which described the 2nd defendant as owner and tax payer. On receipt of the said letter, the plaintiff communicated the same to defendants 1 and 2 and required them to clear their title over the house for carrying through the transaction. As yet the defendants did not choose to reply the same. The 3rd defendant has informed that defendant No.2 and others are still due to it under the transaction in a sum of Rs.1,50,345-50 as on 27-10-77. The 1st defendant has not cleared the cloud over his title in view of the 2nd defendant dealings with 3rd defendant referred above. The defendant No.1 did not choose to satisfy the plaintiff inspite of repeated requests about the property being free from mortgage that he is entitled to alienate the same as such. The 1st defendant has not cleared the cloud over his title in view of the 2nd defendant dealings with 3rd defendant referred above. The defendant No.1 did not choose to satisfy the plaintiff inspite of repeated requests about the property being free from mortgage that he is entitled to alienate the same as such. It is not out of place to mention that defendant No.1 having obtained major portion of sale consideration is deriving benefit there from and is not keen to carry through the transaction. The plaintiff is thereby put to irreparable loss. The plaintiff on 20-6-77 keeping in view the oncoming “Chatturmasam” and that house warming ceremony cannot be performed for further long time, with the consent of defendant performed ‘Kalas Sthapnana’ ceremony in the house. On 29-6-77 the defendants through K.Sai Reddy, Advocate, Mahabubabad conveyed that the plaintiff can send the draughtsman for nothing actual measurements on 9th or 10th July, 1977. As the defendants 1 and 2 have not taken steps for valid and proper transfer of the title in favour of plaintiff herein, there is no other go but to seek the assistance of the Court. The defendant No.2 if is found as owner of the property, it is stated that he is bound by the agreement dt.20-6-77 entered with the plaintiff with 1st defendant and is liable to transfer whether the interest is entitled in 'A' schedule property. Further if it is found that the suit property is found as subject to equitable mortgage in favour of 3rd defendant in respect of loan 3-5-76 referred to above and obtained by defendants No.4 to 11 along with other properties shown in schedule ‘B’ enclosed hereto and owned by defendants 12 to 18 along with 'A' schedule property, the defendants 12 to 18 are liable to contribute ratably to the debt secured by the mortgage and payable to 3rd defendant. The defendants 12 to 18 therefore are added as parties to avoid multiplicity of proceedings and to ascertain their liability as to contribution in respect of schedule mentioned property. In addition to specific performance of the contract he is entitled to damages. The plaintiff who was not liable to pay balance of Rs.23,900/- until registration of sale deed as made to pay the same as aforesaid on 27-6-77 and 29-6-77 knowing fully well that title in respect of the property cannot be cleared with stipulated period. In addition to specific performance of the contract he is entitled to damages. The plaintiff who was not liable to pay balance of Rs.23,900/- until registration of sale deed as made to pay the same as aforesaid on 27-6-77 and 29-6-77 knowing fully well that title in respect of the property cannot be cleared with stipulated period. The plaintiff thus is deprived of the user of money as also the house agreed to be purchased by him. The balance of amount kept ready for payment since was also not available to the plaintiff for investment he thus also suffered heavily. The plaintiff has suffered mental agony for having lost valuable cash from hand and could carry through the transaction. The plaintiff reasonably therefore claims Rs.5,000/- towards damages in addition to the relief of specific performance.” 6. The 1st defendant though had not chosen to contest the suit filed a written statement with the following averments:- “It was pleaded that the contents of para 2 are correct and admitted. The defendant has only agreed to sell the upstairs which has come to his share but not the entire house as alleged. This defendant is in receipt of a sum of Rs.3,000/- on 27-6-77 and also in receipt of further amount of Rs.9,000/- through cheque on 29-6-77. It is incorrect to allege that the plaintiff is ready of perform his part of the agreement but on account of the mortgage of the schedule mentioned property the same could not be completed. It is false to allege that on 30-6-77 the plaintiff’s brother along with one V. Lakshminarayana, Advocate and Suresh, met defendants 1 and 2 and enquired about the scalled mortgage and that they have admitted the so-called mortgage and that they agreed to redeem the same. In fact, this defendant never mortgaged the schedule property in favour of the 3rd defendant. The defendant does not know the truth or otherwise about the telephone call by the plaintiff which defendant No.2. The defendant admits the receipt of the notice on 11-7-79. In fact, this defendant never mortgaged the schedule property in favour of the 3rd defendant. The defendant does not know the truth or otherwise about the telephone call by the plaintiff which defendant No.2. The defendant admits the receipt of the notice on 11-7-79. After the receipt of the said notice, the defendant on account of ill-health could not immediately attend to that and in the meanwhile he received a telegram from the plaintiff and on 26-7-77 he along with defendant No.2, has replied through Advocate that the property was not hypothecated to defendant No.3 and also sent a copy of the non-encumbrance certificate and also requested the plaintiff to get the property registered immediately by paying the remaining amount, the failure of which would result in the cancellation of the agreement of sale and also make the plaintiff liable for damages. The defendant does not know the truth of otherwise of the correspondence between the plaintiff and the 3rd defendant. As already stated through the reply notice dt.26-7-77 the defendant has made it very clear that the property agreed to be sold was free from all encumbrances. It is absolutely false and incorrect to allege that this defendant is not keen to carry through the transaction and that the plaintiff is put to irreparable loss. He denied that so far as they are concerned with the house warming ceremony and also about the information given through Sri K. Sai Reddy, Advocate, to send a draughtsman for nothing actual measurements. The defendant having got the property in partition with defendant No.2 is the absolute owner of the same and he is entitled to alienate the same and the defendant No.2 has nothing to do with the same suffice to say that this defendant has nothing to do with the rest of the contents. The plaintiff is not entitled to claim any damages that as stated above due to unnecessary doubts and fears the plaintiff delayed the conclusion of the transaction and withheld the payment of the balance consideration amount and thereby caused irreparable loss to the defendant. The plaintiff even now did not deposit the balance consideration amount in Court. The plaintiff was never ready to perform his part of the agreement. Since the plaintiff has filed the suit unnecessarily against the defendant, he is entitled for exemplary costs.” 7. The 2nd defendant remained ex parte. 8. The plaintiff even now did not deposit the balance consideration amount in Court. The plaintiff was never ready to perform his part of the agreement. Since the plaintiff has filed the suit unnecessarily against the defendant, he is entitled for exemplary costs.” 7. The 2nd defendant remained ex parte. 8. The 3rd defendant filed written statement with the following averments:- “The 2nd defendant obtained ownership certificate from the Gram Panchayat, Mahabubabad and sworn an affidavit before the Munsif Magistrate, Mahabubabad to the effect that he is the owner of the suit house and he lost the title deeds relating to the suit house and created equitable mortgage over the suit house as a security for the due repayment of the loan advances to Sri Nookala Laxma Reddy and others by this defendant in the year 1976. The sale transaction over the suit house entered into by the plaintiff and the 1st defendant is after the creation of equitable mortgage by the second defendant. The plaintiff should have taken all precautions and collected information with regard to the ownership of the property and encumbrances thereon before entering into an agreement of sale with defendant No.1. When the Gram Panchayat records clearly show the 2nd defendant is the owner of the suit schedule property, the plaintiff cannot, in the ordinary course of business enter into an agreement of sale with the first defendant. The care and caution that is required in such transaction does not appear to have been taken by the plaintiff in entering into the sale transaction. The plaintiff inspite of not being obliged to pay the amounts of Rs.3,000/- and Rs.9,000/-under the sale agreement has paid these amounts allegedly at the instance of defendants 1 and 2. When the 2nd defendant created equitable mortgage over the suit property in favour of the defendant, he cannot make the plaintiff believe that the 1st defendant is the owner and he can pay Rs.3,000/- on 27-6-77 and Rs.9,000/- on 29-6-77. When the sale agreement stipulates that the balance consideration should be paid on the day of registration. Other facts mentioned in plaint are not within the knowledge of the defendant except the fact that the plaintiff enquired from the defendant’s branch at Mahabubabad about the creation of mortgage of the suit house by the 2nd defendant. When the sale agreement stipulates that the balance consideration should be paid on the day of registration. Other facts mentioned in plaint are not within the knowledge of the defendant except the fact that the plaintiff enquired from the defendant’s branch at Mahabubabad about the creation of mortgage of the suit house by the 2nd defendant. The defendant has informed the plaintiff that the suit house was mortgaged by the 2nd defendant as a security for the due repayment of loans advanced to M/s.Nookala Laxma Reddy and others. The allegations made in plaint are against the first defendant and hence no reply is required by the defendant. The defendant No.2 is not liable to transfer the suit schedule property in favour of the plaintiff without redeeming the property from the liability. The contention of the plaintiff that other defendants can contribute rateably to the debt is untenable and each guarantor is individually and collectively are responsible for the entire amount due. The plaint needs no reply by this defendant as it relates to the claim of Rs.5,000/- as damages, claimed against the first defendant. The cause of action said to have arises under the sale agreement and payments made to the first defendant under the said sale agreement. There is no cause of action to file the suit against this defendant. The plaintiff entered into sale agreement with the first defendant without showing due diligence, care and caution required by a prudent man in such transactions. It was clear from records of the Gram Panchayat, Mahabubabad, that the first defendant was not the owner. Further it is clear that the suit schedule ‘A’ property was subject to mortgage to this defendant bank and unless the outstandings in the account of M/s.N.Laxma Reddy and others are not liquidates, the suit schedule ‘A’ property cannot be redeemed from the liability. The 3rd defendant bank filed a suit in O.S.No.39/78 against the 2nd defendant along with others for recovery of Rs.1,60,965-66 which is pending. The memorandum of deposit of title deeds executed by the 2nd defendant for the creation of equitable mortgage for suit schedule ‘A’ property and the ownership certificate and the affidavit given by the 3rd defendant are filed in O.S.No.39/78. The plaintiff cannot claim specific performance against defendants 1 and 2 unless the suit schedule ‘A’ property is redeemed from the liability. No specific performance is claimed against this defendant. The plaintiff cannot claim specific performance against defendants 1 and 2 unless the suit schedule ‘A’ property is redeemed from the liability. No specific performance is claimed against this defendant. The suit is filed deliberately, knowing fully well, that the suit property is mortgaged to this defendant bank and this defendant bank is made a party to the suit unnecessarily.” 9. Defendants 4 to 18 remained ex parte. 10. During the pendency of the suit, D.2 died and defendants 19 to 21, the legal heirs of D.2, filed written statement with the following averments:- “The contents of the plaint are incorrect and not maintainable at law. It is true that defendants 1 and 2 are brothers and it is also true that they have divided in status. It is also true that the house bearing Gram Panchayat No.4-3-79 (old) 4-3-49 (new) situated at Mahabubabad originally formed part of joint family. But it is incorrect to state that it fell to the share of the 1st defendant herein. On the other hand that property fell to the share of defendant No.2 in partition. The defendant No.1 did not have any share in the suit property because the suit property fell to the share of defendant No.2. It is incorrect to state that these defendants’ father made to believe that the 1st defendant is the exclusive owner of the property and he is entitled to alienate the schedule mentioned properties free from all charges, encumbrances. It is also incorrect to state that the these defendants’ father also consented for selling of the property by the 1st defendant. The agreement of sale said to have been executed by the first defendant to sell the schedule property for Rs.32,031/- is a concocted story. The said agreement of sale executed by the 1st defendant is not binding on the father of these defendants as the first defendant is not entitled to sell the property. The first defendant has no right to enter into an agreement of sale in respect of the suit property, as he is not the owner, as the suit property fell to the 2nd defendant if at all any agreement with the plaintiff by the 1st defendant, they are void not binding on the 2nd defendant. The so-called terms of the agreement of sale also incorrect and they are denied. The so-called terms of the agreement of sale also incorrect and they are denied. The payments as alleged is denied by the 2nd defendant and if any payment made in respect of the suit property which exclusively belongs to the 2nd defendant is not binding on these defendants nor on the father of these defendants. The question of ready to perform his part of the contract with the first defendant does not arise because the suit property does not belong to the 1st defendant. It is incorrect to state that the house has been mortgaged in favour of the 3rd defendant. The alleged redeeming of the mortgage is also a myth. The 2nd defendant did not receive any notice as alleged by the plaintiff or the notice dt.11-7-77. It is incorrect to state that no response was given to the notice. When the defendants father has not received any notice there is no question of replying notice arises. As far as these defendants knowledge goes and through their mother they denied that any notice was got issued through Sri Purushotham Rao and Prabhakar Rao jointly to the plaintiff on or about 30-7-77. To the knowledge of these defendants the father of these defendants did not go to the Advocate nor instructed. These defendants deny to have given any instructions to the said Prabhakar Rao and Purushotham Rao to give any notice on behalf of them. These defendants deny any liability to have mortgagedt suit property to the 3rd defendant by way of guarantee or anything else. The liability of the 3rd defendant to claim anything against the defendants father is denied. The question of clearing the sum of Rs.1,50,345-50 does not arise. These defendants’ father did not mortgage the property nor given the said transaction is also denied. The question of possession does not arise nor house warming ceremony was stopped due to Chaturmasam. The performing of the alleged Kalas Sthapana ceremony is also denied. There is no question of nothing actual measurements arises. There is no obligation on the part of these defendants for measurements as these defendants are not made as parties to the said transaction. The defendant No.2 is not bound by the contract of Government dt.20-6-77 as he is not a party to the said contract. No privity of contract lies between them. The question of specific performance does not arise. The defendant No.2 is not bound by the contract of Government dt.20-6-77 as he is not a party to the said contract. No privity of contract lies between them. The question of specific performance does not arise. These defendants are not liable to specific performance of agreement nor entitled to pay any damages. There is no cause of action against these defendants because defendants’ father is not a party nor he has executed any agreement in favour of the plaintiff. There is no cause of action. The dates for cause of action are fictitious and they are not binding on these defendants. The suit is barred by limitation. The suit property is in the name of these defendants. It is under the possession of these defendants. The summons were not served on the 2nd defendant and the plaintiff has managed to endorse with the summons on the ground that it was pasted on the door. It is a plan made by the plaintiff to avoid the service of summons. They came to know recently after the death of the defendants’ father that there is a suit pending. They immediately filed a petition for adding themselves. Even otherwise the plaintiff has not taken any steps for adding these defendants as L.Rs. of deceased defendant No.2. The conduct of the plaintiff is to play a fraud on defendant No.2 and to claim a decree against the defendant No.2.” 11. Issues and Additional Issue settled by the trial Court:- Issues:- 1) Whether the agreement dt.20-6-77 is in respect of upstair portion as contended by defendant No.1? 2) Whether specific performance can be enforced against D.1 and D.2 without recovering the suit property from mortgaged D.3? 3) Whether the plaintiff has been ready and willing to perform his part of the contract? 4) Whether the plaintiff is entitled to damages claimed? 5) Whether the suit “A” schedule property exclusively belong to 1st defendant as contended by him? 6) Whether the 2nd defendant created equitable mortgage for the repayment of loans advanced to M/s.Nookala Laxma Reddy and others is true. If so, whether the same is binding on the 1st defendant? 7) In case on issue No.5, it is found that equitable mortgage is binding on D.1, whether the defendants 12 to 18 are liable to contribute reteably to the debt secured in favour of 3rd defendant. If so, whether the same is binding on the 1st defendant? 7) In case on issue No.5, it is found that equitable mortgage is binding on D.1, whether the defendants 12 to 18 are liable to contribute reteably to the debt secured in favour of 3rd defendant. If so, to what amount and whether D.3 is bound to discharge the “A” schedule house on receipt of said amount? 8) To what relief? Addl. Issue:- “Whether the suit agreement is binding on D.10 to D.21?” 12. Evidence available on record:-Witnesses examined for plaintiff:- P.W.1 :- Bhanvarilal Sharma P.W.2 :- Rameshwar Sharma Witnesses examined for defendants:- D.W.1 :- K.Sudheer Reddy D.W.2 :- Nukala Narayana Reddy D.W.3 :- Bollam Chandramouli D.W.4 :- Kondapally Janardhan Reddy Exhibits marked on behalf of plaintiff:- Ex.A.1, dt.20-6-77 :- Agreement of sale executed by D.1 in favour of plaintiff. Ex.A.2, dt.27-6-77 :- Original receipt for Rs.3,000/- by D.1 in favour of plaintiff. Ex.A.3, dt.8-7-77 :- Office copy of legal notice issued by the plaintiff Advocate. Ex.A.4, dt.1-8-77 :- Postal acknowledgment card. Ex.A.5, dt.1-8-77 :- Postal acknowledgment card. Ex.A.6, dt.30-7-77 :- Office copy of legal notice by plaintiff’s Advocate Ex.A.7, dt.3-8-77 :- Original letter by Regional Manager. Ex.A.8, dt.6-8-77 :- Original Reply notice by Branch Manager, Andhra Bank. Ex.A.9, dt.20-7-77 :- Original reply notice by defendants 1 and 2. Ex.A.10, dt. -- :- Copy of the telegram issued to defendants 1 and 2 by the plaintiff. Ex.A.11, dt. -- :- Postal receipt Ex.A.12, dt.27-8-77 :- Office copy of legal notice by plaintiff’s Advocate. Ex.A.13, dt.30-8-77 :-Postal acknowledgment receipt by defendant No.1. Ex.A.14, dt.29-8-77 :-Postal acknowledgment receipt by defendant No.1. Ex.A.15, dt.30-8-77 :-Postal acknowledgment receipt by defendant No.1. Ex.A.16, dt.26-10-77 :- Office copy of letter by plaintiff’s Advocate. Ex.A.17, dt.5-11-77 :- Original reply notice by Regional Manager, Andhra Bank, Warangal. Ex.A.18, dt. -- :- Signature of Damodar Reddy on Ex.A.1. Ex.A.19, dt. -- :- Signature of Damodar Reddy on Ex.A.2. Exhibits marked on behalf of defendants:- Ex.B.1, dt.24-6-85 :- Receipt issued by Gram Panchayat, Mahaboobabad. Ex.B.2, dt.19-6-85 :- Mutation Certificate given by Gram Panchayat, Mahaboobabad in respect of H.No.4-3-49. Ex.B.3, dt.5-4-62 :- Signature of N.Narayana Reddy and other attestors. Ex.B.4, dt.5-4-62 :- Signature of scribe of document. Ex.B.5, dt.5-4-62 :- Portion marked in a document. Exhibits marked on behalf of defendants:- Ex.B.1, dt.24-6-85 :- Receipt issued by Gram Panchayat, Mahaboobabad. Ex.B.2, dt.19-6-85 :- Mutation Certificate given by Gram Panchayat, Mahaboobabad in respect of H.No.4-3-49. Ex.B.3, dt.5-4-62 :- Signature of N.Narayana Reddy and other attestors. Ex.B.4, dt.5-4-62 :- Signature of scribe of document. Ex.B.5, dt.5-4-62 :- Portion marked in a document. Ex.B.6, dt.5-4-62 :- One line above the last line in page No.2 Ex.B.7, dt.5-4-62 :- Portion consisting of two lines at the bottom of page No.2 and top of page No.3 Ex.B.8, dt.5-4-62 :- Last three lines in page 3. Ex.B.9, dt.14-2-86 :- Tax receipt issued by the Gram Panchayat. Ex.B.10, dt.30-8-89:- Tax receipt issued by the Gram Panchayat. Ex.B.11, dt.14-2-86:- Tax receipt issued by the Gram Panchayat. Ex.B.12, dt.1-9-86 :- Tax receipt issued by the Gram Panchayat. 13. Findings recorded by the trial Court in nutshell:- The learned Judge on appreciation of evidence available on record, came to the conclusion that D.1 sold the entire building and not the up-stair portion only as contended by him. The learned Judge also further on appreciation of evidence available on record came to the conclusion that ‘A’ schedule property belongs to the 1st defendant and further on appreciation of evidence available on record recorded a finding that the plaintiff is always ready and willing to perform his part of the contract. The learned Judge also further opined that the plaintiff is entitled for damages as claimed and ultimately the learned Judge came to the conclusion that the suit is decreed with costs directing the 1st defendant to execute sale deed in respect of the suit building and register the same in favour of the plaintiff within two months and the plaintiff is directed to deposit balance of sale consideration in the Court on or before 3-8-1989. It is needless to say that the said direction had not been complied with. 14. In the light of the submissions made by the Counsel on record, the following points arise for consideration in this appeal:- 1) Whether the findings recorded by the trial Court granting the relief of specific performance to be confirmed or to be disturbed in the facts and circumstances of the case? 2) Whether the findings recorded by the trial Court awarding damages in favour of the plaintiff to be confirmed or to be disturbed in the facts and circumstances of the case? 2) Whether the findings recorded by the trial Court awarding damages in favour of the plaintiff to be confirmed or to be disturbed in the facts and circumstances of the case? 3) If so, to what relief the parties would be entitled to? 15. Points No.1 and 2:- The respective pleadings of the parties, the Issues and the additional Issue, the evidence available on record and the findings recorded by the trial Court in brief, already had been referred to above. 16. The case of the plaintiff as P.W.1 is that by virtue of an agreement of sale – Ex.A.1, dt.20-6-77, executed by the 1st defendant in favour of plaintiff-P.W.1, the plaintiff is entitled to a decree for specific performance and further a claim was made even for damages. The 1st defendant, no doubt, filed written statement taking a peculiar plea that he had executed the agreement of sale to the up-stair portion only but ultimately had not chosen to contest the matter. There is some controversy relating to the service of notice on the 2nd defendant. Be that as it may, the 2nd defendant being no more, subsequent thereto the present appellants – the legal heirs came on record and they had filed a further written statement. It is no doubt true that the legal representatives may have to take the same stand what had been taken by the original defendant and the legal representatives are not expected to take any further or additional pleas. 17. This Court had carefully examined the written statement of the legal heirs of the 2nd defendant wherein specific stand had been taken that in the partition, this property had fallen to the share of the 2nd defendant and the 2nd defendant only. D.W.1, the 19th defendant, deposed in detail about these facts and the same is well supported by D.W.2, D.W.3 and D.W.4 as well. Ex.B.3, Ex.B.4, Ex.B.5, Ex.B.6, Ex.B.7 and Ex.B.8 also had been relied on heavily to show that this property in fact had fallen to the share of the 2nd defendant. Ex.B.1 is the Receipt. Ex.B.2 is the Mutation Certificate. Apart from Ex.B.1 and Ex.B.2, Ex.B.9 to Ex.B.12 – the tax receipts also had been relied on which would go to show that the tax was being paid by the 2nd defendant only. 18. Ex.B.1 is the Receipt. Ex.B.2 is the Mutation Certificate. Apart from Ex.B.1 and Ex.B.2, Ex.B.9 to Ex.B.12 – the tax receipts also had been relied on which would go to show that the tax was being paid by the 2nd defendant only. 18. Ex.A.1, dt.20-6-77 is the agreement of sale executed by D.1 in favour of plaintiff; Ex.A.2, dt.27-6-77 is the original receipt for Rs.3,000/- by D.1 in favour of plaintiff; Ex.A.3, dt.8-7-77 is the office copy of legal notice issued by the plaintiff Advocate; Ex.A.4, and Ex.A.5 are the postal acknowledgment cards; Ex.A.6, dt.30-7-77 is the office copy of legal notice by plaintiff’s Advocate; Ex.A.7, dt.3-8-77 is the original letter by Regional Manager; Ex.A.8, dt.6-8-77 is the original Reply notice by Branch Manager, Andhra Bank; Ex.A.9, dt.20-7-77 is the original reply notice by defendants 1 and 2; Ex.A.10 is the copy of the telegram issued to defendants 1 and 2 by the plaintiff; Ex.A.11 is the postal receipt; Ex.A.12, dt.27-8-77 is the office copy of legal notice by plaintiff’s Advocate; Ex.A.13 to Ex.A.15 are the postal acknowledgment receipts; Ex.A.16, dt.26-10-77 is the office copy of letter by plaintiff’s Advocate; Ex.A.17, dt.5-11-77 is the original reply notice by Regional Manager, Andhra Bank, Warangal; Ex.A.18 and Ex.A.19 are the signatures of Damodar Reddy on Ex.A.1. 19. Certain of the facts are not in serious controversy. The fact that Damodar Reddy, the 1st defendant executed the agreement of sale in relation to the property in question is not in serious dispute. In fact, the 1st defendant though filed a written statement taking a plea that he sold only up-stair portion only had not chosen to seriously contest the matter. Relating to the service of notice on D.2, there is some controversy. Be that as it may, it is recorded that the 2nd defendant was set ex parte. But however specific stand had been taken and clear averments had been made in the written statement of the present appellants – the legal representatives of the 2nd defendant i.e., D.19 to D.21. The evidence of D.W.1 also clear and categorical in this regard. At the outset it may be stated that no attestor concerned with Ex.A.1 as such had been examined. 20. P.W.2 is no other than the brother of P.W.1 and P.W.2 deposed that he is a Law Graduate. He scribed Ex.A.1 and prior to that he had not scribed any document. At the outset it may be stated that no attestor concerned with Ex.A.1 as such had been examined. 20. P.W.2 is no other than the brother of P.W.1 and P.W.2 deposed that he is a Law Graduate. He scribed Ex.A.1 and prior to that he had not scribed any document. No doubt, both P.W.1 and P.W.2 had taken a specific stand that this property had fallen to the share of 1st defendant only. P.W.2, the brother of P.W.1, specifically deposed that at the time of Ex.A.1, Venkatrajam and Ramkumar also were present and they attested Ex.A.1. It is not in serious controversy that none of these witnesses either Venkatrajam or Ramkumar had been examined. Thus, to prove Ex.A.1, the evidence available before the Court is only that of P.W.1, the plaintiff and the brother of P.W.1 – P.W.2 who deposed to the effect that he had scribed the document. The reasons for non-examination of Venkatrajam and Ramkumar, the same had not been explained. No doubt, P.W.1 deposed the averments made in the plaint and had taken a specific stand that the agreement of sale was executed by the 1st defendant in his favour. The said version, no doubt, was supported by P.W.2 as well. Both P.W.1 and P.W.2 deposed about the payments made and the receipt, Ex.A.2, which had been issued. P.W.2 also deposed that in his presence P.W.1 paid a cheque for Rs.9,000/- in favour of D.1 towards part of sale consideration and subsequently it came to light that the suit property was mortgaged in favour of D.3 Bank. This witness also deposed that they met defendants 1 and 2 on 30-7-77 and the defendants No.1 and 2 promised that they would take steps for redeeming the property and for due conveyance, defendants did not turn up as promised. They were contacted on phone and on phone they promised that they would meet the plaintiff on 7-8-77 but did not keep up the promise. P.W.2 had deposed that D.2 told him that there was a partition between himself and K.Damodhar Reddy. He did not tell the year or the date of the said partition. D.1 and D.2 had not stated that they have got documents evidencing about the partition. However, P.W.2 admitted that the suit house stands in the name of D.2 in the Municipality. There is no signature of D.2 on the agreement of sale – Ex.A.1. He did not tell the year or the date of the said partition. D.1 and D.2 had not stated that they have got documents evidencing about the partition. However, P.W.2 admitted that the suit house stands in the name of D.2 in the Municipality. There is no signature of D.2 on the agreement of sale – Ex.A.1. On the date of execution of agreement he was present. His signature was not taken as an attestor in Ex.A.1. This witness also specifically deposed that D.1 mortgaged the house in favour of Andhra Bank. The suit property is the ancestral property of D.1 and D.2. No doubt, this witness specifically deposed that it is not true to suggest that the suit house fell to the share of Venkat Reddy in partition. 21. D.W.1 deposed in detail about the facts. This witness had taken a specific stand that his father had not received any summons from the Court in the suit. They came to know about filing of the suit after the demise of his father. The plaintiff had not taken any steps to add them as legal representatives after the death of their father. The plaintiff is not known to his father. The plaintiff never visited their house in connection with the sale transaction. His father got the suit property in partition with defendant No.1. This witness had taken specific stand that it is not true to suggest that the suit property had gone to the share of D.1. This witness deposed that it is true that a mortgage decree was passed in O.S.No.39/78 on the file of the Principal Sub-Court, Warangal. The evidence of D.W.2, D.W.3 and D.W.4 in this regard also is clear and categorical in support of the version of D.W.1. These witnesses deposed about Venkat Reddy, the 2nd defendant, even during his life time letting out the property to several tenants and collecting rents. Further D.W.1 also asserted the same and these aspects had been deposed in detail by D.W.2, D.W.3 and D.W.4 as well. The written statement filed by the 3rd defendant is clear and categorical and self-explanatory and the fact that this property was mortgaged by the 2nd defendant even prior to Ex.A.1. This aspect also is not serious controversy. 22. Further D.W.1 also asserted the same and these aspects had been deposed in detail by D.W.2, D.W.3 and D.W.4 as well. The written statement filed by the 3rd defendant is clear and categorical and self-explanatory and the fact that this property was mortgaged by the 2nd defendant even prior to Ex.A.1. This aspect also is not serious controversy. 22. On a careful examination of the oral and documentary evidence available on record, the following essentials may have to be noted:- (a) Ex.B.3 to Ex.B.8 are the portions marked from the partition deed. (b) The evidence of D.W.1 coupled with the evidence of D.W.2, D.W.3 and D.W.4 would go to show that the 2nd defendant, during his time, had been letting out the property to several tenants and collecting rents. (c) The 1st defendant who had filed written statement had not chosen to enter the witness box. (d) The 1st defendant had taken a stand that Ex.A.1 was executed by him only in relation to the up-stair portion. (e) D.W.2, a relative of both 1st and 2nd defendants, had deposed in detail in support of the version of D.W.1. (f) Ex.B.1 – the Tax receipt issued by the Gram Panchayat, Ex.B.2 – Mutation Certificate and Ex.B.9 to Ex.B.12 also would go to show that the property taxes were being paid by the 2nd defendant. (g) The fact that D.2 mortgaged the property in favour of D.3 even prior to Ex.A.1, this aspect also is not in controversy. In fact there is an admission made in this regard by P.W.2. The fact that possession in fact continued till the death of D.2 with D.2 and subsequent thereto now the possession is being continued by the present appellants – the L.Rs of D.2, this aspect also is not in controversy. (h) Further the agreement of sale – Ex.A.1 was executed by the 1st defendant and 1st defendant alone and the 2nd defendant was never a party. Though P.W.1 made an admission that the 2nd defendant also was present, the reasons why his signature was not obtained as a co-executant or at least as an attestor, no explanation is forthcoming. Apart from all these aspects, the subsequent conduct also to be taken into consideration. Though, there is a direction for deposit of sale consideration by a specified date, it is stated that even as on today no such deposit had been made. Apart from all these aspects, the subsequent conduct also to be taken into consideration. Though, there is a direction for deposit of sale consideration by a specified date, it is stated that even as on today no such deposit had been made. It is also pertinent to note that except the interested testimony of P.W.2, the scribe of Ex.A.1 and the brother of P.W.1, no other independent evidence is available. 23. In the light of the aforesaid circumstances, this Court is of the considered opinion that this Court may have to arrive at a conclusion that the plaintiff did not approach the Court with clean hands or with all the true facts. The relief of specific performance is an equitable relief. Such relief cannot be granted in favour of such a party especially in the light of several aspects which had been already specified supra. Hence, the findings recorded by the trial Court decreeing the suit as prayed for cannot be sustained and accordingly the said findings are hereby set aside. 24. Point No.3:- In the result, the findings recorded by the trial Court are hereby set aside and the suit is hereby dismissed. The appeal is hereby allowed. In the peculiar facts and circumstances, the parties do bear their own costs.