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2023 DIGILAW 893 (AP)

Chodisetti Putrayya v. Vatsavai Sandeep Raju

2023-06-16

V.R.K.KRUPA SAGAR

body2023
JUDGMENT : Defendants in the suit filed this appeal against appellate Court’s judgment under section 100 CPC. Respondent in this appeal was the plaintiff before learned trial Court. 2. Seeking relief of specific performance of an oral agreement for sale plaintiff laid O.S.No.129 of 2005 before learned I Additional Senior Civil Judge, Kakinada. Defendants resisted the suit. After due trial the suit was decreed in favour of the plaintiff. Aggrieved of it, defendants preferred their first appeal in A.S.No.3 of 2008 before learned VII Additional District Judge, Kakinada. The winning plaintiff preferred cross objections questioning the failure of the trial court in omitting to grant costs of the suit. After due hearing, by a judgment dated 24.01.2013, the learned VII Additional District Judge, Kakinada agreed with the findings of the trial court on all aspects and dismissed the appeal preferred by the defendants and also dismissed the cross objections filed by the plaintiff. It is against that judgment of the first appellate Court, the defendants have come up with this Second Appeal. On 25.07.2014, an Hon’ble judge of this Court admitted the Second Appeal on the following substantial questions of law : 1. Whether the trial Court decreed the suit without there being any acceptance on behalf of the appellants with regard to the sale consideration as the appellants are disputing with regard to the passing of sale consideration concerned and they are not interested in alienating the property as per the offer made by the respondent? Whether the trial Court can direct the appellants herein to alienate the property? 2. Whether the Courts below have adjudicated the suit basing on the principle of consensus-ad-idiom? 3.Whether the trial Court and the lower appellate Court are justified in decreeing the suit without there being any document with regard to the market value of the suit schedule property? 4. Whether the decrees and judgments of the Courts below are sustainable under law when they were made without following of the principles of the contract such as the offer and acceptance between the parties? 3. Learned counsel for appellants as well as learned counsel for respondent submitted oral arguments and cited legal authorities in support of their respective contentions. 4. The dispute raised before this Court has a few curious aspects. On certain facts relevant to the dispute, there has been no controversy between the parties. Plaintiff in the suit is Sri. 3. Learned counsel for appellants as well as learned counsel for respondent submitted oral arguments and cited legal authorities in support of their respective contentions. 4. The dispute raised before this Court has a few curious aspects. On certain facts relevant to the dispute, there has been no controversy between the parties. Plaintiff in the suit is Sri. V. Sandeep Raju. His grandfather is Sri V. Subba Raju. An extent of 568.33 Sq.Yards of site in Survey No.30/2 in Ramanayya peta of Kakinada Rural Mandal of the then East Godavari District is a property owned by Sri Chodisetti Putrayya/defendant No.1. The said Ch.Putrayya has four children and they are shown as defendant Nos.2 to 5 respectively. By the time the suit was laid in the year 2005 defendant Nos.4 and 5 were minors and during the course of pendency of litigation before the trial Court, they attained majority and therefore on 14.12.2006 in I.A.No.1543 of 2006, the same was declared and the guardian was discharged. Till then these minor children were represented by their father/natural guardian/Sri Ch. Putrayya. It was alleged that the grand father of the plaintiff negotiated with defendant No.1 with reference to purchase and sale of the plaint schedule property and on 23.05.2004, the deal was settled between them whereunder defendant No.1 agreed to sell the property in favour of plaintiff and that defendant Nos.2 to 5, though were not holding any rights over the plaint schedule property, it was at the request of Sri Subba Raju/plaintiff, defendant No.1 agreed to have all his children become parties to the regular registered sale deed. It was agreed between the parties that the entire sale consideration should be paid before the Sub-Registrar at the time of registration of sale deed. The registration date was fixed on 02.06.2004. On these aspects, there has been no controversy between the parties. Thus, this was a transaction of oral agreement for sale which would materialize into a regular registered sale deed on 02.06.2004. According to the plaintiff, sale consideration was fixed at Rs.1,70,000/- for the entire extent of property. 5. What happened on 02.06.2004, which was the date for registration of the proposed sale deed, is the matter of interest. Thus, this was a transaction of oral agreement for sale which would materialize into a regular registered sale deed on 02.06.2004. According to the plaintiff, sale consideration was fixed at Rs.1,70,000/- for the entire extent of property. 5. What happened on 02.06.2004, which was the date for registration of the proposed sale deed, is the matter of interest. The plaintiff and his grandfather/Sri Subba Raju and all the five defendants reached the Sub-Registrar office and the regular registered sale deed was prepared and all the necessary forms were secured and both parties to the document subscribed their respective signatures and thumb impressions and affixed their photographs and attached all the necessary papers and the plaintiff deposited requisite amount for stamp and Registration. The document was presented before the Sub-Registrar and the Sub-Registrar asked them to wait for a few minutes so that he could complete the verification of the document. Then plaintiffs remained in the office of the Sub-Registrar and the defendants told them that they would wait outside the room and went out of the room. Thereafter when the Sub-Registrar called the parties, the defendants were not seen there. It was in those circumstances, the registration of sale deed did not take place. After exchange of notices, mentioning all these facts, plaintiff filed the suit. Defendant No.1 filed a written statement which was adopted by defendant Nos.2 to 5. In their written statement they admitted the negotiations and the willingness of defendant No.1 to sell the property in favour of plaintiff. The principle stand in the written statement was that during the course of bargain for sale and purchase of this property initially defendants sought to have Rs.1000/- per square yard towards the sale consideration and Sri Subba Raju bargained and finally the sale consideration was agreed at Rs.800 per square yard and thus the total sale consideration was Rs.4,56,000/- and since measurements were subsequently taken the exact site available was found to be 583.33 square yards for that at the rate of Rs.800/- per square yard Sri Subba Raju/the grandfather of the plaintiff agreed to pay Rs.4,54,000/-. Thus, it was on those terms the oral agreement for sale was settled. In their written statement they admitted of going to the Sub-Registrar office and there the necessary papers and the regular sale deed were placed and all the defendants accordingly signed and impressed their thumb impressions. Thus, it was on those terms the oral agreement for sale was settled. In their written statement they admitted of going to the Sub-Registrar office and there the necessary papers and the regular sale deed were placed and all the defendants accordingly signed and impressed their thumb impressions. Then Sri Subba Raju offered Rs.1,70,000/- towards sale consideration which was worked out at Rs.300/- per square yard which happened to be more or less of the value in the registers of the Sub-Registrar for that property. Realising the unfair advantage Mr. Subba Raju was trying to take, defendants openly raised a protest and they did not clandestinely left the place. They refused for registration since agreed sale consideration was not offered to them. Alleging mis-representation on part of Sri Subba Raju, in their written statement, the defendants contended that there was a breach of contract and the contract stood terminated at the very inception and therefore they prayed for dismissal of the suit. On the available pleadings and on hearing the submissions on both sides learned I Additional Senior Civil Judge settled the issues and thereafter additional issues for trial as mentioned below : Issues:- 1. Whether the plaintiff is entitled for specific performance of contract? 2. To what relief? Additional issues:- 1. Whether the plaintiff agreed for purchase of plaint schedule property at the rate of Rs.800/- per Sq.yard and not at Rs.300/- per Sq.yard? 2. Whether Subbaraju misrepresented the defendants that the sale deed was not drafted as per terms agreed by plaintiff and defendants? 6. At the trial plaintiff, testified as PW.1. The man who bargained the entire deal and who is the grandfather of plaintiff testified as PW.2. The person who scribed the sale deed testified as PW.3. Exs.A1 to A10 were marked. Defendant No.1 alone gave evidence as DW.1 for himself and all other defendants. No other witness was examined on behalf of defendants. No documentary evidence was adduced for defendants. After hearing arguments and after considering the entire material on record, the learned trial court at Para No.8 of its judgment observed that the crucial question for determination before him was about existence or otherwise of consensus ad-idem between the parties to the document. Finding virtue in the evidence of PW.3/the document writer and the evidence of PW.2 as well as PW.1, it agreed with the case of the plaintiff. Finding virtue in the evidence of PW.3/the document writer and the evidence of PW.2 as well as PW.1, it agreed with the case of the plaintiff. It further observed that according to defendants there was a broker who negotiated the deal between the parties. One of the attestors who signed on the un-registered sale deed prepared at the Sub-Registrar office was Sri T. Raja Babu and he was the very son-in-law of defendant No.1/DW.1. Defendants did not choose to adduce the evidence of either of those witnesses and no particular reason was offered for not examining them. It observed that the attendance of parties at the Sub-Registrar’s office and preparation of sale deed and execution of sale deed and their signatures and thumb impression on all other relevant papers and affixtures of photographs did indicate to its mind that unless the parties to the contract agreed for the terms, they would not have subscribed their signatures and thumb marks. It believed the evidence of PW.3/the scribe, who said that he first prepared a draft sale deed and read out its contents to all the defendants and after they agreed to it, he then prepared formal regular sale deed and then again the contents of it were read over and the defendants admitted them to be true and according to this witness, the recitals of the sale deed indicate that the agreed sale consideration is Rs.1,70,000/- and after knowing all these facts all the defendants subscribed their signatures and thumb marks on it. It further stated that defendants neither raised a protest before the Sub-Registrar about the incorrectness of sale consideration nor did they issue any notice to plaintiff/Subba Raju about the alleged misrepresentation or fraud. Referring to the aspect of consideration and its inadequacy or adequacy, learned trial Court observed that this very defendant No.1 earlier sold a few extents of land abutting the plaint schedule land evidenced by Exs.A8 to A10 and all of them indicate that defendant No.1 sold the property for a price lesser than the market value also and the defendants who contended about misrepresentation hold the burden to prove that aspect of the matter and they failed to prove it. It then observed that as per the evidence on record defendant Nos.2 and 3 are educated up to 10th class and they were capable of reading the contents of the document. It then observed that as per the evidence on record defendant Nos.2 and 3 are educated up to 10th class and they were capable of reading the contents of the document. With all those observations it decided all the issues in favour of the plaintiff. However, it further considered the lapse of time between the oral agreement and the time of decision of the Court and took cognizance of the fact that there has been abnormal increase in price of land. In terms of equity, it thought of granting interest and accordingly it directed the plaintiff to deposit the agreed sale consideration of Rs.1,70.000/- along with 24% interest per annum over that amount commencing from 02.06.2004(that was the date on which regular sale deed was prepared and was signed by parties under Ex.A1). It granted one month time for such deposit and two months time to the defendants to execute the regular registered sale deed. 7. When the defendants carried the matter to the first appellate Court, it dealt with all the contentions and scanned the entire oral and documentary evidence and considered the judgment of the trial Court and on all aspects, it agreed with the findings of the trial Court. It further recorded that in all those cases where misrepresentation or fraud are sought to be raised, they shall be appropriately pleaded and proved in terms of Order VI Rule 4 CPC and defendants failed to do that. It observed that burden was on the defendants to establish their case and they failed to do it. With such opinion, it dismissed the appeal preferred by the defendants. Coming to the cross objections raised for suit costs, it stated that the contention of the appellants were bonafide and therefore it found no reason to grant costs and accordingly dismissed the cross objections. 8. It is in the context of the above concurrent findings of both the Courts below, the substantial questions of law referred earlier were raised by the defendants. 8. It is in the context of the above concurrent findings of both the Courts below, the substantial questions of law referred earlier were raised by the defendants. The spirited argument of learned counsel Sri A.K. Kishore Reddy for appellants is that if there was no consensus ad-indem between the parties, law does not recognize existence of an agreement and the evidence on record amply demonstrated that with reference to a material term of the agreement there was divergence and thereby there was no concluded contract between the parties and the Courts below completely ignored these aspects and decreed the suit. As against this, learned counsel for respondent/plaintiff Sri M.S.R. Subrahmanyam argued with vehemence that the evidence adduced by plaintiff and the circumstances demonstrated by them indicated the truthfulness of the claim of the plaintiff and the defendants failed the deal as some sort of dispute cropped up among them after they signed the sale deed and to avoid the obligation they have been putting up false claims and Courts below rightly recognised all that and held the case in favour of the plaintiff which was also approved by the first appellate Court and there is no warrant for interference by this Court. In this Second Appeal, he contends that the judgments under challenge do not indicate any perversity at all. Factual findings of two Courts below cannot be disturbed by this Court. It is for these reasons, he seeks for dismissal of the appeal. 9. The case is about an oral agreement for sale. Was there a concluded contract or not is a matter of importance. A contract comes into existence only when all the terms and conditions have been finalized. The proposal when accepted gives rise to an agreement. It is at this stage, the agreement is reduced into writing and a formal document is executed on which parties affix their signatures or thumb impressions so as to be bound by the terms of the agreement set out in that document. Such an agreement is lawful. A contract shall be supported by consideration. The consideration must be real and not illusory. Whether the consideration is adequate or not has no bearing as long as the consideration was agreed upon between the parties. Such an agreement is lawful. A contract shall be supported by consideration. The consideration must be real and not illusory. Whether the consideration is adequate or not has no bearing as long as the consideration was agreed upon between the parties. In terms of Section 13 of the Indian Contract Act, 1872 two or more persons are said to consent when they agree upon the same thing in the same sense. Section 20 of the Indian Contract Act, 1872 has a statutory Explanation : “an erroneous opinion as to the value of the thing which forms the subject matter of the agreement is not to be deemed a mistake as to a matter of fact.” 10. In the light of the above primary principles of law when the evidence on record is verified the following aspects emerge: According to plaintiff, there was an oral bargain between defendants on one side and his grandfather on other side and plaintiff himself was not available there. According to him, it was his grand father who dealt with the matter intending to purchase property for him as a beneficiary. Therefore, the evidence of his grandfather gains lot of importance. He testified before the trial Court as PW.2. In his examination in chief, he said that defendant No.1 approached him along with one Rama Krishna offering to sell the plaint schedule property and he then visited the plaint schedule property and found it low lying area and after making necessary inquiries he informed defendant No.1 about his willingness to purchase it in the name of his grandson and he told to defendant No.1 that he would purchase it for 1,70,000/- and without any other documentation they would straight away go for preparation of regular registered sale deed and registration of it. He said that defendant No.1 agreed for all of these and both sides agreed that the sale deed should be registered on 02.06.2004 at the expenses of the plaintiff and sale consideration should be paid and received at the time of registration before the Sub-Registrar. He said that the oral bargain stood concluded between them nine days earlier to 02.06.2004. In the plaint, it was mentioned that oral agreement for sale stood concluded on 23.05.2004. He said that the oral bargain stood concluded between them nine days earlier to 02.06.2004. In the plaint, it was mentioned that oral agreement for sale stood concluded on 23.05.2004. In para No.2 of the written statement defendants admitted the bargain between the parties and the willingness of defendants to sell the property to the plaintiff and admitted that the deal was struck between Subba Raju on one hand and defendant No.1 on the other hand. They denied the date of this agreement for sale which is mentioned in the plaint but they did not specify the date on which according to them the bargain took place for sale of the property. Defendant No.1 testified as DW.1 and in his examination in chief, he did not deny the date of oral agreement for sale and did not indicate any other date. The above evidence indicates that there are necessary pleadings and relevant sworn evidence available for plaintiff demonstrating the date of oral agreement for sale and the terms of oral agreement for sale. Since defendants admit the bargain and failed to indicate a different date, there is absolutely no reason to disbelieve the date of oral agreement as spoken to by plaintiff and his witnesses. It was on consideration of all this evidence both the Courts below recorded a finding that there was a concluded oral agreement for sale. 11. According to PW.3/the scribe, he prepared Ex.A1 regular sale deed in the presence of both the parties at Sub-Registrar office on 02.06.2004 and after hearing the contents of it both at the time of draft as well as at the time of fair, defendant No.1 and other defendants admitted the truth of the contents and only then they signed the papers. Ex.A1 is the unregistered sale deed. Ex.A2 is a set of statutory forms which were supposed to be presented for registration of sale deed. Ex.A4 is Encumbrance certificate. Ex.A3 is a registration extract of rectification deed dated 26.10.1994 which served as a link document indicating that the title for the property vested with defendant No.1 and this title with the defendant No.1 was to convey to the plaintiff. All these documents were seen by defendant No.1 and he admitted execution of these documents by him and his children who are the other defendants. All these documents were seen by defendant No.1 and he admitted execution of these documents by him and his children who are the other defendants. It is undisputed that as per this document signed by both parties the sale consideration is Rs.1,70,000/-. This is the crucial aspect of the matter. According to plaintiff and his witnesses this was the agreed sale consideration under the oral agreement for sale also. But according to defendants that was not the agreed sale consideration and therefore they raised protest and did not appear for registration. Both the courts below put faith in the evidence of PW.3 and that of PW.1 and 2 and held that after keenly listening to the contents of Ex.A1 all the defendants signed it. Unless they agreed with the terms of the contract they would not have signed it. It is quite logical on part of the Courts below in assessing the evidence that by their signatures and thumb impressions defendants approved the contents of Ex.A1 and the contents of Ex.A1 stand completely inconsonance with the oral agreement for sale propounded by plaintiff in the plaint and deposed by the witnesses at the court. It is for the defendants to explain as to why did they sign when they did not agree for the terms especially the amount of sale consideration. Except stating that they merely signed the document and they were not appraised of the contents DW.1 said nothing. Whether his evidence should be believed or not was considered by the Courts below. Referring to the evidence of DW.1, Courts below recorded that in his cross examination he said that he did not know what was the defence he took in his written statement. He admitted that under Ex.A8 to A10, he sold out certain lands of himself which were abutting the suit schedule land. The contents of the documents were read by the Courts below and they recorded that the properties were sold under those documents by defendant No.1 for a price that was far lesser than the price available in the basic value register and the market value. It was in those circumstances, they rightly concluded that the truth lies in the contentions of plaintiff. I see no perversity in these findings. It was in those circumstances, they rightly concluded that the truth lies in the contentions of plaintiff. I see no perversity in these findings. Defendants who have been arguing about inadequacy of consideration as a ground to improbabalise the theory canvassed by the plaintiff does not stand to scrutiny since defendants did not produce what according to them is the real value of the property. The evidence of PW.2 that it was a low lying land and does not worth much. That evidence was never contradicted while cross examining him. This was recorded by the first appellate Court also. Nothing contrary is brought on record here. The argument of the appellants is that the market value certificate was not produced by the plaintiff before the trial court has no substances since what was alleged in the plaint was proved by the plaintiff whereas what was alleged by the defendants was not proved by them. The truth of the oral agreement for sale including the sale consideration stand proved by the very fact that on the same terms Ex.A1 was made. Thus, there was a concluded oral agreement for sale between parties on 23.05.2004. Therefore, points B and C were answered against the appellants. 12. It is rightly argued by the learned council for respondent that what was formulated as substantial questions of law in Point (A) is really not available. The substantial questions of law framed indicates that the defendants were not interested to sell the property for the price offered by the plaintiff. It is to be noted that on 23.05.2004, when the oral agreement for sale was concluded the agreed consideration was found to be Rs.1,70,000/-. Therefore, defendants were obliged to convey the property. Towards that direction Ex.A1 was prepared in their presence. Agreeing with its terms they have signed and impressed their thumb marks. It is there after they demanded more money which they were incompetent to demand since that was against the concluded oral agreement for sale and the written document in the form of Ex.A1 which stands to prove the oral agreement for sale. Therefore, from the facts it is difficult to say that a substantial questions of law in the manner that is formulated in Point (A) is available. At any rate there is no merit in the contention raised by the appellants in this regard. Therefore, it is held against the appellants. Therefore, from the facts it is difficult to say that a substantial questions of law in the manner that is formulated in Point (A) is available. At any rate there is no merit in the contention raised by the appellants in this regard. Therefore, it is held against the appellants. A reading of the judgement of the Courts below indicate appropriate evaluation of evidence about offer and acceptance and obedience to principles of law of contracts and therefore there is no merit in Point (D) formulated earlier as a substantial question of law. Hence this point is answered against the appellants. Arguing about principles concerning oral agreements for sale, learned counsel for appellants cited Abdul Rasheed v. Abdul Hakeem, 1998 (6) ALT 399 (S.B.) and Rajahmundry Diagnostic Laboratories Private Limited v. Dr. Chandra Sekhar Sompally, 2016 (3) ALT 408 (T and AP). In the above stated rulings, the Hon’ble judges were dealing with the principles concerning oral agreements for sale and the principles about consensus ad-idem in between the parties. In those cases, it was stated that in all those cases which based on an oral agreement for sale when a suit for specific performance is filed the burden is heavy on plaintiff to prove the existence of oral contract and about meeting of minds between both sides and only on establishing those principles by facts, Court could conclude the existence of a concluded oral agreement for sale. It was also ruled that determination of the dispute as to whether a concluded oral agreement for sale was there or not was a matter of fact. Sri Surya Granites v. G. Venkateswarlu, 2013 (5) ALT 546 (DB). It is on the touchstone of these parameters the material on record is to be scrutinized. In summing up- The pleadings and evidence admit the bargain for sale and purchase of property. They admit the date set for preparation of sale deed and its registration. They admit that both sides gathered at the appointed place on the appointed date. They admit the preparation of Ex.A1, sale deed and subscribing signatures or thumb marks on it. If there was no consensus ad-idem about the sale consideration, defendants/appellants would not have gathered at the appointed place and would not have signed Ex.A1. Thus it is clear that the bargain was with full meeting of minds. They admit the preparation of Ex.A1, sale deed and subscribing signatures or thumb marks on it. If there was no consensus ad-idem about the sale consideration, defendants/appellants would not have gathered at the appointed place and would not have signed Ex.A1. Thus it is clear that the bargain was with full meeting of minds. Appellants’ contention about tendering sale consideration against the agreed sale consideration was required to be proved by them. They failed to examine two of their cross witnesses in that regard. Thus they failed to prove the theory they pleaded. Hence, this Court finds no merit in this appeal and the judgements of the Courts below are right on facts and law. In the result, this second appeal is dismissed by confirming the judgement dated 24.01.2013 of learned VII Additional District Judge, kakinada in A.S.No.3 of 2008. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.