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2023 DIGILAW 246 (TS)

N. Sanjeeva Reddy v. A. Rajanarsu

2023-03-23

SAMBASIVARAO NAIDU

body2023
JUDGMENT 1. This appeal suit has been filed by the appellants under Sec. 96 of C.P.C. against the Judgment and Decree in O.S.No.1 of 1998 on the file of II Addl. District Judge, Warangal, herein after will be referred as 'Trial Court', where under the trial Court passed a Judgment and Decree in favour of the 1st respondent/plaintiff for specific performance of the sale agreement. The appellants are defendants No.2 and 3 in the above referred original suit and being aggrieved by the Judgment of the trial Court, they preferred this appeal suit on the following grounds. 2. The Judgment and Decree of the trial Court is contrary to law, weight of evidence and probabilities of the case. The trial Court failed to consider the plaintiff came to the Court with unclean hands and alleged agreement of sale was prepared in collusion with 1st defendant and her husband. The trial Court ought to have seen that the suit is bad for non-joinder of necessary parties, thereby could have dismissed the suit. The appellants further claimed that the trial Court failed to consider certain admissions made by the plaintiff during his evidence before the trial Court. The appellants have claimed that the respondent/plaintiff admitted before the Court below that he never verified the pahanies and other documents, telegraph notice was issued only to the 1st defendant on 17/1/1987, the land involved in the suit belongs to partnership firm and apart from the defendants in the suit, there are 3 more persons and defendants promised to bring the other partners for execution of the document, the date "15" was altered as "19" in the agreement of sale without any initials to that effect and he has got knowledge that 1st defendant and her husband tried to sell away the property to third parties, but the trial Court failed to appreciate the above admissions. 3. The appellants further pleaded that the trial Court ought to have seen that the respondent/plaintiff having filed an interlocutory application vide I.A.No.131 of 2004 failed to send the documents for comparision of signatures of defendants No.2 and 3 with their admitted signatures. The 1st defendant remained ex parte, thereby it shows the collusion between the plaintiff and defendant No.1. 3. The appellants further pleaded that the trial Court ought to have seen that the respondent/plaintiff having filed an interlocutory application vide I.A.No.131 of 2004 failed to send the documents for comparision of signatures of defendants No.2 and 3 with their admitted signatures. The 1st defendant remained ex parte, thereby it shows the collusion between the plaintiff and defendant No.1. They have also claimed that the trial Court ought to have seen that the husband of defendant No.1, who was examined as PW.2 deposed about the alteration of date in the agreement from "15" to "19". 4. The appellants have claimed that the Court below ought to have considered that the evidence of PW.2 is not trustworthy and PW.3 deposed before the Court that he had seen PW.2 signing the agreement of sale which is not the case of plaintiff and PW.2. They have also claimed that the trial Court ought to have seen the husband of 1st defendant, who is examined as PW.2 deposed before the Court that he does not know anything about the partnership of his daughter with defendants No.1 to 3, Malla Reddy and some others and that he does not know whether his wife is looking after the share of his minor daughter which manifest the attitude of PW.2. Therefore, on the above grounds, the appellant sought for setting aside the Judgment and Decree of the trial Court and for dismissal of the suit. 5. For convenience sake, the parties will be referred with the same nomenclature by which they were referred before the trial Court. 6. As could be seen from the material record and Judgment of the trial Court in O.S.No.1 of 1998, it shows the plaintiff has filed the main suit for specific performance of agreement of sale. According to the averments made in the plaint, it was the case of plaintiff that there was an agreement between the plaintiff and defendants on 25/9/1996 in respect of land admeasuring Ac.03-20 gts forming part of Sy.Nos.577, 578 and 75 situated at Gorrekunta Village, Geesugonda Mandal of Erstwhile Revenue District. According to the averments made in the plaint, it was the case of plaintiff that there was an agreement between the plaintiff and defendants on 25/9/1996 in respect of land admeasuring Ac.03-20 gts forming part of Sy.Nos.577, 578 and 75 situated at Gorrekunta Village, Geesugonda Mandal of Erstwhile Revenue District. The defendants have agreed to sell the above said property in favour of the plaintiff and the terms and conditions of the agreement were reduced into writing on 25/9/1996 and as per the said agreement, the sale consideration was fixed as Rs.6,50,000.00 and the plaintiff has paid an amount of Rs.50,000.00 towards advance and he has to pay another amount of Rs.50,000.00 within 15 days from the date of agreement. The plaintiff has to pay 1/3rd of the sale consideration during the second week of November, 1996 and the balance shall be paid as per the measurements of the land by 19/1/1997 at the time of registration. If the plaintiff failed to pay the amount as indicated above, the agreement will be deemed to have been cancelled and the defendants need not refund the amount paid by the plaintiff and in case defendants failed to execute sale deed, they have to pay double the amount received by them and the land shall not be alienated to any other person during the pendency of cases. Therefore, the plaintiff has claimed that he paid Rs.50,000.00 at the time of agreement and another amount of Rs.50,000.00 on 11/10/1996 and paid a sum of Rs.1,00,000.00 on 15/11/1996, thereby, paid Rs.2,00,000.00 to the defendants. However, inspite of his repeated demands requesting the defendants to take steps for measuring and ascertaining the land available for conveyance, there was no proper response by the defendants, thereby he got issued a telegraphic notice to the defendants on 17/1/1997. Even though the defendants received the notice did not take any steps. However, the plaintiff continued his attempts to persuade the defendants to execute and complete their part of contract. The plaintiff claimed that he was ready and willing to perform his part of contract. However, the defendants did not evince interest to get the land measured to execute the registered sale deed. Therefore, the plaintiff got issued another legal notice to the defendants on 2/7/1997 calling upon them to complete the transaction. 7. Defendants No.2 and 3 gave a reply on 16/8/1997 and denied the execution of the agreement. However, the defendants did not evince interest to get the land measured to execute the registered sale deed. Therefore, the plaintiff got issued another legal notice to the defendants on 2/7/1997 calling upon them to complete the transaction. 7. Defendants No.2 and 3 gave a reply on 16/8/1997 and denied the execution of the agreement. They have further claimed that they don't have any land in Sy.No.575. When the plaintiff perused the Revenue Records, he could realise that the defendants are not having that much of land which they agreed to sell in the agreement dtd. 25/9/1996 but it was less than Ac.03-20 gts. The defendants have suppressed the said fact. However, the plaintiff was ready to obtain registered sale deed for the land over which the defendants have got title and possession. The defendants did not obtain any encumbrance certificate. Since the defendants denied the execution of sale agreement and as they were not ready to execute sale deed, the plaintiff filed the suit seeking specific performance of contract dtd. 25/9/1996. 8. Out of the 3 defendants, defendant No.1 remained ex parte. Defendants No.2 and 3 have filed common written statement denying the material averments of the plaint and they have claimed that they never executed any agreement along with defendant No.1 in favour of the plaintiff. Defendant No.1 and her husband colluded with the plaintiff with a view to deprive the right of defendants No.2 and 3 and other persons, who have got right over the suit property. They have also claimed that even as per the plaint averments, the plaintiff was unable to pay 1/3rd of the amount as per the agreement, by November, 1996. While denying the other averments of the plaint, these two defendants have claimed that plaintiffs never approached them for measuring and ascertaining the true extent of land. They have not received any telegraphic notice dtd. 17/1/1997. There was no agreement between the plaintiff and defendants No.1 to 3. 9. The defendants have further contended that the suit property along with some other immovable property was owned by defendants No.1 and 2 and 3 more persons namely A.Mallareddy, A.Soma Laxmi and M.Chetana, the daughter of defendant No.1. They have obtained the property as a partnership firm. In terms of the deed of dissolution of partnership firm dtd. 9. The defendants have further contended that the suit property along with some other immovable property was owned by defendants No.1 and 2 and 3 more persons namely A.Mallareddy, A.Soma Laxmi and M.Chetana, the daughter of defendant No.1. They have obtained the property as a partnership firm. In terms of the deed of dissolution of partnership firm dtd. 17/3/1981, defendants No.2 and 3 and the remaining 3 persons got the suit land towards the settlement of their share. In terms of the said dissolution, defendant No.1 has got 20% interest out of the suit land. Defendants No.2 and 3 have a similar extent of interest towards their share, remaining property was in the name of Mallareddy, Soma Laxmi, who have got 16% each and Chetana a minor has got 8% interest in the property. Therefore, defendants No.2 and 3 are not competent to enter into any agreement to sell the suit land but the agreement is outcome of the collusion between the plaintiff and defendant No.1 and her husband Seetharam Reddy, thereby they sought for dismissal of the suit. 10. On the basis of above rival contentions, the trial Court framed the following issues: 1. Whether the defendants No.2 and 3 joined the executed of the suit agreement and whether the agreement is foisted with collusion between plaintiff and defendant No.1? 2. Whether the defendants No.2 and 3 received the sale consideration? 3. Whether the defendants No.1, 2 and 3 only are the absolute owners of the suit property and whether any others also have right in the suit property? 4. Whether the identity of the suit property is true and correct? 5. Whether the suit is bad for non-joinder of necessary party? 6. To what relief? 11. During the trial, the plaintiff has examined 3 witnesses and marked Exs.A1 to A10. Defendants No.2 and 3 were examined as DW.2 and DW.1 respectively. The trial Court having considered the oral and documentary evidence placed before it, came to the conclusion that the plaintiff is able to prove his claim and passed a Decree directing the defendants to execute a registered sale deed for the land to an extent of Ac.02-30 gts by receiving balance sale consideration of Rs.4,50,000.00 within 4 weeks from the date of Judgment. The plaintiff was directed to deposit the balance consideration into the Court within 2 weeks from the date of Judgment. 12. The plaintiff was directed to deposit the balance consideration into the Court within 2 weeks from the date of Judgment. 12. Therefore, the following points arose for consideration in this appeal : 1. Whether the trial Court failed to appreciate oral and documentary evidence placed by both parties and came to a wrong conclusion? 2. Whether the plaintiff and defendant No.1 created the suit agreement by collusion and whether the said document is not binding on the defendants No.2 and 3 i.e., the appellants herein? 3. Whether the Judgment and Decree of the trial Court are liable to be set aside? POINTS : 13. As could be seen from the entire record, it shows that the first respondent/plaintiff has filed the main suit vide O.S.No.1 of 1998 before the trial Court seeking specific performance of agreement of sale in respect of Ac.03-20 gts of land in Sy.Nos.75, 577, 578 of Gorrekunta Village. As per the plaint averments and according to the evidence produced on behalf of the first respondent/plaintiff, it was his specific claim that there was a contract for the sale of above said land i.e., suit schedule property between him and defendants No.1 to 3. The respondent/plaintiff has claimed that he has paid Rs.2,00,000.00 out of the agreed sale consideration of Rs.6,50,000.00 and obtained an agreement of sale from all the defendants which is marked as Ex.A1 before the trial Court. Subsequently, he came to know that the land owned by the defendants is less than Ac.03-20 gts and they have included the road adjacent to the suit land in the agreement, however, he was ready to obtain the sale deed for the actual land owned by the defendants. But they failed to come forward to execute the sale deed, thereby, he has got issued a telegram notice demanding the defendants to execute the sale deed and when there was no response, he got issued another legal notice asking the defendants to execute the sale deed. The plaintiff by way of issuing the telegram notice and other legal notice marked as Exs.A2 and A6 expressed his willingness and readiness to obtain the sale deed. However, the defendants did not come forward to execute the document. 14. Therefore, he filed the suit for specific performance. It seems, the first defendant remained ex parte. Defendants No.2 and 3 have contested the suit. However, the defendants did not come forward to execute the document. 14. Therefore, he filed the suit for specific performance. It seems, the first defendant remained ex parte. Defendants No.2 and 3 have contested the suit. The trial Court decreed the suit in favour of the respondent/plaintiff. Therefore, defendants No.2 and 3 have filed the appeal. 15. According to the written statement filed by the defendants No.2 and 3 and as per the evidence of the defendants who are appellants before this Court, they have taken a specific stand that they never entered into any sale agreement with the respondent/plaintiff. They have also claimed that apart from defendants No.1 to 3, there are three more owners of the property namely A.Malla Reddy, A.Soma Laxmi and N.Chetana. The appellants have also claimed that first defendant, who is shown as respondent No.2 in this appeal and his wife attempted to sell the suit property to one Vishwanatham in September, 1995 but due to their timely intervention, defendant No.1 and his wife could not dispose of the land. They have also claimed that since the property is owned by three more parties, the suit is bad for nonjoinder of necessary parties. The trial Court having framed appropriate issues based on the pleadings of plaintiff and defendants and having considered the oral and documentary evidence placed before it, believed the claim of respondent/plaintiff and passed a decree in his favour. 16. As could be seen from the Judgment of the trial Court, it is very clear that the appellants/defendants No.2 and 3 have claimed that the suit schedule property was purchased jointly by defendants No.1 to 3 and also by three more persons. They have also claimed that they have not entered into any agreement of sale with the respondent/plaintiff. In view of the specific stand taken by both the parties, it is for the respondent/plaintiff to establish the execution of sale agreement, his readiness to obtain the sale deed from the owners and the failure of the defendants to execute the sale deed. Similarly, it is for the appellants herein to show that they never entered into any sale agreement with the respondent/plaintiff, there are three more owners of the suit property and that the respondent/plaintiff is not entitled to specific performance of sale agreement. 17. Similarly, it is for the appellants herein to show that they never entered into any sale agreement with the respondent/plaintiff, there are three more owners of the suit property and that the respondent/plaintiff is not entitled to specific performance of sale agreement. 17. In order to prove his claim, respondent/plaintiff has been examined as PW.1 and the first defendant has been examined as PW.2. He has also examined one M.Yugander, who has witnessed the execution of sale agreement by defendants as PW.3. The evidence placed before the Court clearly shows that defendant No.1 has got relationship with defendants No.2 and 3. Defendants No.2 and 3 have admitted before the trial Court that they have no disputes with defendant No.1. They have also admitted that they got visiting terms with defendant No.1, who was examined as PW.2. In the light of admission of defendant No.2 and 3 that they have got cordial relationship with defendant No.1 and in view of the relationship with defendant No.1, it is very clear that all the defendants have entered into agreement with the plaintiff for sale of suit property. The execution of sale agreement by all the defendants has been proved through the evidence of PW.2 i.e., one of the defendants and also by an independent witness, who is examined as PW.3. 18. Even though the appellants have claimed that there are some more owners of the suit property, they have not placed any document in respect of the said ownership and no witness is examined in support of the said contention. According to the written statement filed by defendants No.2 and 3, it was specifically pleaded that defendants No.1 to 3 have got 20% each share in the land whereas, Malla Reddy and his wife have got 16% each whereas, one Chetana got 8% share in the property. Even though they have taken a specific stand about the ownership of three more persons over the suit property, these appellants did not choose to produce any document in support of the contention nor they have examined the alleged co-owners of the property as witnesses before the Court. Even though they have taken a specific stand about the ownership of three more persons over the suit property, these appellants did not choose to produce any document in support of the contention nor they have examined the alleged co-owners of the property as witnesses before the Court. As seen from the evidence of DW.3, she along with other defendants purchased an extent of Ac.03.00 gts and odd to set up a Rice Mill but it was set up at a separate place and subsequently due to the disputes between the partners, the said Rice Mill was closed. The respondent/plaintiff has marked the sale deed obtained by defendants No.1 to 3 as Ex.A10 to show the right of defendants No.1 to 3 over the suit schedule property. As per the recitals of Ex.A10, it is very clear that the appellants and defendant No.1 have purchased the suit property and there were no other sharers in the land. The contents of Ex.A1 sale agreement have been proved not only by the respondent/plaintiff but also by PWs.2 and 3. 19. In order to prove the contents of Ex.A1, the respondent/plaintiff has cross-examined defendant No.3, who is examined as DW.1. As rightly observed by the trial Court, this witness only to escape the sale agreement gone to the extent of denying her signatures on the vakalath and written statement filed before the Court. Apart from the oral evidence of PWs.1 to 3, the respondent/plaintiff has marked the office copy of telegram notice and legal notice got issued by him to the defendants. The respondent/plaintiff expressed his readiness and willingness to complete his part of contract through these notices. But the appellants failed to respond. 20. The learned counsel for the appellant while placing reliance on a Judgment between 'Bhavyanath represented by its power of Attorney Holder vs. K.V.Balan (Dead) through Legal Representatives',(2020) 11 Supreme Court Cases 790. has argued that : 'In a suit for specific performance, it is for the plaintiff to prove his readiness and willingness to obtain the sale deed. The plaintiff has to prove financial capacity to pay the sale consideration. In the absence of such evidence, it cannot be said that the plaintiff was ready and willing to obtain sale deed'. 21. has argued that : 'In a suit for specific performance, it is for the plaintiff to prove his readiness and willingness to obtain the sale deed. The plaintiff has to prove financial capacity to pay the sale consideration. In the absence of such evidence, it cannot be said that the plaintiff was ready and willing to obtain sale deed'. 21. In the case on hand, as already stated in the previous paragraphs, it is very clear that the respondent/plaintiff got issued two legal notices and demanded the appellants as well as the other defendant to execute sale deed after receiving the balance sale consideration. Therefore, the evidence placed before the Court clearly shows that the respondent/plaintiff was ready and willing to obtain the sale deed but the appellants and the other defendant dodged the matter without executing the sale deed. Therefore, the trial Court rightly passed a decree in favour of the plaintiff. The evidence placed before the Court clearly shows that the appellants having taken a specific stand that there are three more owners of the property did not choose to examine them as witnesses before the Court. The cross-examination of witnesses examined on behalf of the appellants further strengthen the case of respondent/plaintiff. The oral evidence of PWs.1 to 3 coupled with Exs.A1 to A10 proved the contention of respondent/plaintiff. Therefore, there are no merits in the appeal and it is liable to be dismissed. 22. In the result, the appeal is dismissed. Consequently, Miscellaneous applications if any, are closed. No costs.