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2017 DIGILAW 313 (AP)

S. Soora Reddy v. K. Lakshmi

2017-06-09

T.RAJANI

body2017
JUDGMENT : T. Rajani, J. 1. The unsuccessful plaintiff in O.S. No. 30 of 1988 before the Additional Subordinate Judge, Rajahmundry, prefers this appeal having been dissatisfied with the judgment and decree dated 18.09.1997. 2. Briefly the facts of the case are as follows: "The first defendant is the mother of the second defendant and the second defendant is the only issue to the first defendant. The first defendant purchased a site of Ac.0.02 1/2 cents equivalent to 120 sq. yards in Mallikarjuna Nagar, from one Botsa Lakshmi, under a sale deed dated 13.10.1982. The second defendant borrowed certain amounts from the plaintiff and others with the help of which the defendants constructed the plaint schedule terraced house in the above site. The amount borrowed by the second defendant under different pronotes, from the plaintiff and others, swelled up to Rs. 85,237/- by 23.05.1987 and being unable to discharge the debts, both the defendants executed and delivered an agreement of sale dated 23.05.1987 in favour of the plaintiff, for a sum of Rs. 1,10,000/- in respect of the suit schedule property. At the time of agreement, original sale deed dated 13.10.1982 was also handed over to the plaintiff. The debts borrowed by the second defendant for the construction of the suit schedule house were discharged by the plaintiff at the instance of the first defendant and the pronotes were kept as vouchers at the instance of the defendants for the purchase of the house. The sale consideration of Rs. 1,10,000/- was satisfied to the extent of Rs. 85,237/-, which are the debts and out of the balance sale consideration Rs. 24,763/-, an amount of Rs. 14,763/- was paid at the time of agreement and there remained a balance of Rs. 10,000/-. The agreement stipulated that a registered sale deed should be executed on or before 22.01.1988. The plaintiff demanded the defendants to execute the sale deed several times and also issued notice dated 26.01.1988 but the defendants did not respond to the notice. Hence, the suit for specific performance of the contract." 3. The first defendant remained ex parte. The second defendant in the written statement denied the averments in the plaint and according to the second defendant; she never borrowed any amount from the plaintiff. Hence, the suit for specific performance of the contract." 3. The first defendant remained ex parte. The second defendant in the written statement denied the averments in the plaint and according to the second defendant; she never borrowed any amount from the plaintiff. In fact, the second defendant pledged her gold ornaments and borrowed amount from one Sabbella Ramakumari of Gollala Mamidada, at usurious rate of interest of Rs. 10/- per cent per month. The amount lent was in all not more than Rs. 15,000/-. The second defendant believed said Ramakumari and put her signatures on the blank stamp papers at the time of lending on pledge of gold ornaments. The second defendant never executed any pronotes in favour of anyone, as stated in the plaint. The second defendant does not know the identity of the persons mentioned therein except Ramakumari and her husband. Their family is reputed for strong arm methods and use of violence in realization of debts and interest. While so, disputes arose between the defendants and one Thumpala Somasundaram about the schedule house. The creditor Ramakumari learnt about the same and came to the house of the defendants along with some men and took possession of the title deed of the site from the defendants by show of force, stating that gold security has become insufficient and some more security is required. Out of fear of violence the defendants kept quiet. The defendants never raised any money from the plaintiff. 4. None of the counsel for either parties appeared, but considering the longevity of the case, the case was taken up for judgment, based on the material on record. 5. The single point that arises for my consideration is: "Whether the relief of specific performance can be granted to the appellant and whether the judgment of the court below needs any interference." 6. A bird's eye view of the record would suffice to lead to a very quick conclusion that the plaintiff did not come to the Court with clean hands as was rightly understood by the Court below. The Court below took the aid of a magnifying glass to look at the dates, to understand that the sale agreement was brought into existence and is not a genuine one. But even to the naked eye the said dubiety would be evident. The Court below took the aid of a magnifying glass to look at the dates, to understand that the sale agreement was brought into existence and is not a genuine one. But even to the naked eye the said dubiety would be evident. The sale agreement, as rightly observed by the Court below, is dated 23.05.1987 whereas the stamp paper was purchased on 27.05.1987. The said inconsistency is insuperable. P.W. 1 asserts that the stamp paper was purchased on the date of agreement itself, which is 23rd, whereas the stamp paper bears a glaring date of 27th. When such is the credibility of the agreement, the evidence of the attestors and any one testifying to have been a witness to such agreement, like P.W. 6 also would only be nothing but untrustworthy. In such circumstances, there can be no other understanding except that the sale agreement was brought into existence by all concerned, unmindful of the said possible discrepancy. The Court below rightly assessed the evidence of P.Ws. 1, 2 and 4 and disbelieved the said evidence and in the background of the incredibility of the said evidence, the other evidence was also rightly not believed. From the fact that the plaintiff fabricated the sale agreement with the help of P.W. 2, with whom, allegedly, the defendants had some monetary transaction, it can be said that the entire record pertaining to the alleged monetary transactions between the plaintiff and the defendants is fabricated. 7. Apart from the above said discrepancy, a glaring incomprehension that is reflected in the plaint is with regard to the date fixed in the agreement for executing a registered sale deed. The registered sale deed as per the averments of the plaint has to be executed on or before 22.01.1988. In order to understand the said date as an error, the agreement also recites the same and strangely, the suit is also filed on the said date. It is very difficult to understand as to how the plaintiff even without waiting for a single day, chose to file the suit on the date, which is specified to be the date for registration of the sale. In the plaint the plaintiff avers that the plaintiff called upon the defendants to execute the sale deed by a notice dated 26.01.1988, which is prior to the stipulated date. In the plaint the plaintiff avers that the plaintiff called upon the defendants to execute the sale deed by a notice dated 26.01.1988, which is prior to the stipulated date. Even on the ground that the plaintiff did not comply with the terms of the contract and rushed to the court post haste, the equitable relief of specific performance can be denied, by reading some dubiety, down into the conduct of the plaintiff. The cross examination of D.W.1, who is defendant number 2, inspires confidence, by virtue of her admission that her debt due to P.W. 4 is not yet discharged. Even before P.W. 4 was examined in the Court, the defendant No. 2 could take a plea that she borrowed some amounts from P.W. 4 and signed on some blank pronotes and papers. As if to lend support to and prove the said plea, the plaintiff brings P.W. 4 as a witness, thereby making probable the contentions of defendant No. 2. In any case, the facts reflected in the case are highly fishy and would disentitle the plaintiff for the equitable relief of specific performance. 8. Hence, in the light of the above circumstances nothing more than what was observed by the Court below can be said. 9. With regard to the pronotes, allegedly, executed by the defendants also the Court below has taken a proper view. Moreover, the said pronotes stand discharged by the endorsements made therein and they do not survive any longer. They being in possession of the pronotes is also inexplicable. The reason stated by the plaintiff is not at all believable. It is also strange that the pronotes, which are allegedly executed by the defendants, in favour of one Medapati Chinna Sura Reddy and the plaintiff are scribed by the same scribe, with the same ink, though the time gap between the said pronotes was one year and that one of the attestors is also same and he signs with the same ink and that the ink used by the other attestor on both the pronotes, though is different, is the same. So also are the endorsements. They have the same witnesses and the same scribe. One of the witnesses is P.W. 3 and the scribe is P.W. 5. However strong the oath under which they testify, with so many doubtful attendant circumstances, their evidence would only be liable to be discarded. So also are the endorsements. They have the same witnesses and the same scribe. One of the witnesses is P.W. 3 and the scribe is P.W. 5. However strong the oath under which they testify, with so many doubtful attendant circumstances, their evidence would only be liable to be discarded. The more the scrutiny, the more revelation of strange and irreconcilable facts. On the premise of the doubtfulness cast on Ex. A11, the evidence of P.W. 2 loses credibility and trustworthiness. So also that of P.W. 4 who is no other than his wife, against whom there is an allegation that she is the kingpin of the manipulation of the documents made. Hence, with all the above, it can be only said that there cannot be any interference with the judgment of the Court below. In the result, the appeal is dismissed with costs. As a sequel, the miscellaneous applications, if any, shall stand closed.