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2024 DIGILAW 15 (AP)

Menapati Lakshmi Devi W/o. Yellaiah v. Sadda Hazarath Reddy S/o. Venkata Subba Reddy

2024-01-03

A.V.RAVINDRA BABU

body2024
JUDGMENT : This Appeal Suit is directed against the judgment and decree, dated 13.03.2017 in O.S.No.136 of 2010, on the file of I Additional District Judge, Nellore (“Additional District Judge” for short), whereunder the learned Additional District Judge in the suit filed by the plaintiff, seeking specific performance of contract, dated 05.02.2010, decreed the same granting alternative relief of refund of amount for a sum of Rs.6,00,000/-with interest at 12% per annum from the date of suit till the date of decree and with future interest at 6% per annum from the date of decree till realization on Rs.6,00,000/-. The learned Additional District Judge dismissed the suit insofar as the relief of specific performance is concerned. The appellant herein is no other than the defendant in the aforesaid suit. 2) The parties to this Appeal Suit will hereinafter be referred to as described before the learned Additional District Judge for the sake of convenience. 3) The case of the plaintiff, in brief, according to the averments in the plaint is as follows: (i) The plaintiff is the son of late Venkata Subba Reddy, resident of Nellore. The defendant is wife of Yellaiah, property holder, resident of Nellore. The defendant offered to sell the plaint schedule property. The plaintiff agreed to purchase the same at the rate of Rs.93,000/- per ankanam. The defendant executed an agreement of sale, dated 05.02.2010 on a stamp paper worth of Rs.100/- in favour of the plaintiff, agreeing to sell the schedule property at the rate of Rs.93,000/- per ankanam. She received a sum of Rs.2,00,000/- as advance amount of sale consideration, which was duly acknowledged under the agreement itself. It was agreed that the plaintiff should pay the balance sale consideration at the rate of Rs.93,000/- per ankanam for an extent of 20 ankanamms or the extent arrived at as per the measurements deducting Rs.2,00,000/- paid towards advance payment. On such payment of the balance sale consideration, defendant has to execute a proper registered sale deed either in favour of the plaintiff or to his nominee. The plaintiff has to pay additional amount of Rs.1,50,000/- towards asbestos roofed house within the property schedule structure existing in the property schedule. (ii) The defendant received a sum of Rs.4,00,000/- from him for her necessity on 27.03.2010 towards additional advance amount and endorsed on the back side of the agreement of sale. The plaintiff has to pay additional amount of Rs.1,50,000/- towards asbestos roofed house within the property schedule structure existing in the property schedule. (ii) The defendant received a sum of Rs.4,00,000/- from him for her necessity on 27.03.2010 towards additional advance amount and endorsed on the back side of the agreement of sale. The defendant measured the site at this juncture and the site was arrived at only 10 ankanams basing on the registered document, dated 21.07.2004 executed in favour of the defendant. So, the defendant had the title over an extent of 10 ankanams. In spite of repeated demands made by the plaintiff, the defendant failed to cooperate in performing her part of contract. The defendant has to deliver the original of the title deeds relating to the property. Though the plaintiff is ready and willing by offering to pay the amount towards sale consideration, the defendant failed to perform her part of the obligation. The plaintiff has always been ready and willing to perform his part of contract. The defendant postponed the same on one pretext or the other. The plaintiff got issued a legal notice to the defendant on 30.04.2010 calling upon her to receive the balance sale consideration and to execute a proper registered sale deed on 12.05.2010 and it was served on the defendant. The defendant sent a reply, dated 07.05.2010 admitting the execution of agreement of sale, but with false and frivolous allegations. The document, dated 21.07.2004 executed by Chowdagiri Gangamma in favour of the defendant recites that she conveyed only 10 ankanams of site with specific boundaries and measurements. Hence, the defendant cannot have better title for more than 10 ankanams. The defendant has mischievously and with a malafide intention to have wrongful enrichment cheated him as if she own 20 ankanams of site within the boundaries detailed in her title deed. The plaintiff got issued reply notice for reply notice, dated 07.05.2010, on behalf of the defendant, to execute a regular registered sale deed after receiving the balance consideration of Rs.4,80,000/- and to perform her part of contract and to be present herself on 14.06.2010 before Sub-Registrar and it was served on the defendant. The defendant did not comply the demand and sent a reply, dated 31.05.2010 with false allegations. Hence, the suit. The defendant did not comply the demand and sent a reply, dated 31.05.2010 with false allegations. Hence, the suit. 4) The defendant got filed a written statement denying the case of the plaintiff and the contention of the defendant, in brief, according to the written statement, is that it is true that she offered to sell the plaint schedule property to the plaintiff for Rs.93,000/- per ankanam, as such, she executed an agreement of sale, dated 05.02.2010 on a stamp paper worth of Rs.100/- in favour of the plaintiff by receiving a sum of Rs.2,00,000/- as an advance. The plaintiff should pay the balance sale consideration for an extent of 20 ankanams. The defendant has to execute a proper registered sale deed in favour of the plaintiff. The rest of the allegations that the plaint schedule site was arrived at only 10 ankanams, etc., are all false. The plaintiff got issued a legal notice, dated 30.04.2010 for which the defendant issued a suitable reply. At the time of entering into agreement of sale, the plaintiff duly verified the documents and both the plaintiff and the defendant found that mistakenly in the registered sale deed of the defendant a lesser extent was shown. The defendant assured the plaintiff that she will measure the extent existed in the plaint schedule and after measuring the land it was arrived at as 20 ankanams and after satisfying the same, the plaintiff entered into agreement of sale. The mistake occurred in the registered sale deed of the defendant was only due to typographical mistake by the scribe of the title deed. The defendant agreed to get a rectification deed from her vendor by rectifying the extent as 20 ankanams instead of 10 ankanams. She is ready and willing to perform her part of contract, but the plaintiff with a fraudulent manner got filed the suit. After receipt of the notice, defendant issued a reply by bringing true facts. It was served on the plaintiff. The plaintiff counsel issued a reply on 25.05.2010 with fake allegations. The defendant issued another reply, dated 31.05.2010. The plaintiff visited the plaint schedule property and got measured it. If really 10 ankanams is existed, why the plaintiff entered into agreement of sale for 20 ankanams. Hence, the suit is liable to be dismissed. It was served on the plaintiff. The plaintiff counsel issued a reply on 25.05.2010 with fake allegations. The defendant issued another reply, dated 31.05.2010. The plaintiff visited the plaint schedule property and got measured it. If really 10 ankanams is existed, why the plaintiff entered into agreement of sale for 20 ankanams. Hence, the suit is liable to be dismissed. 5) Basing on the above pleadings, the learned Additional District Judge settled the following issues for trial: (1) Whether the defendant has got title only for 10 or 20 ankanams out of plaint schedule property? (2) Whether the plaintiff is entitled for specific performance for 10 ankanams only? (3) Whether the plaintiff was always ready and willing to perform his part of contract? (4) Whether the plaintiff is entitled for specific performance of agreement of sale? (5) To what relief? 6) The learned Additional District Judge at the time of judgment framing the following additional issue in the judgment: Whether the plaintiff is entitled for refund of the sale consideration? 7) During the course of trial, on behalf of the plaintiff, P.W.1 and P.W.2 were examined and Ex.A.1 to Ex.A.11 were marked. On behalf of the defendant, D.W.1 to D.W.3 were examined and Ex.B.1 and Ex.B.2 were marked. Further Ex.X.1 and Ex.X.2 were marked. 8) The learned Additional District Judge on conclusion of trial and on considering the oral evidence as well as the documentary evidence, gave findings that as the plaint schedule property was an extent of 10 ankanams only, the plaintiff is not entitled to get a decree for specific performance of agreement of sale, as such, granted alternative relief of refund of advance sale consideration. Felt aggrieved of the same, the unsuccessful defendant filed the present appeal. 9) Now, in deciding the present appeal, the points that arise for consideration are as follows: (1) Whether the plaint schedule property sought to be sold to the plaintiff by the defendant is measuring an extent of 20 ankanams as mentioned in Ex.A.1-agreement of sale or 10 ankanams as contended by the plaintiff? (2) Whether the judgment of the learned Additional District Judge granting alternative relief of refund of advance sale consideration is sustainable under law and facts and whether there are any grounds to interfere with the same? (3) To what relief? (2) Whether the judgment of the learned Additional District Judge granting alternative relief of refund of advance sale consideration is sustainable under law and facts and whether there are any grounds to interfere with the same? (3) To what relief? Point Nos.1 and 2: 10) P.W.1 was no other than the plaintiff before the learned Additional District Judge and he got filed his chief examination affidavit putting forth his contentions in tune with the plaint averments. Through his examination Ex.A.1 to Ex.A.10 were marked. Ex.A.1 was agreement of sale executed by the defendant in favour of plaintiff, dated 05.02.2010; Ex.A.2 was part payment endorsement, dated 27.03.2010; Ex.A.3 was certified copy of the registered sale deed, dated 21.07.2004 executed by Choudagiri Gangamma in favour of defendant; Ex.A.4 was office copy of the registered legal notice, dated 30.04.2010; Ex.A.5 was postal acknowledgement; Ex.A.6 was reply notice, dated 07.05.2010; Ex.A.7 was office copy of Lawyer notice, dated 25.05.2010; Ex.A.8 was postal acknowledgement; Ex.A.9 was reply notice, dated 31.05.2010 and Ex.A.10 was plaintiff’s statement of account from (01.01.2010 to 04.08.210) issued by the Andhra Bank, Podalakuru Road, Nellore, on 05.08.2010. Ex.A.11 is the On-line details of suit property from 2010-11 to 2016-17. 11) The plaintiff further got filed the chief examination affidavit of P.W.2, who is the first attester of agreement of sale and his evidence in substance is that he signed as first attester and one Annavaram signed as second attester and later, the schedule site was measured and found as 10 ankanams and that the defendant also received Rs.4,00,000/- as additional advance amount on 27.03.2010. 12) The defendant got filed her chief examination affidavit as D.W.1 putting forth the facts in tune with her pleadings in the written statement. Through her examination Ex.B.1 and Ex.B.2 were marked. Ex.B1 was original sale deed, dated 21.07.2004 and Ex.B.2 was original sale deed, dated 27.09.2010. 13) The defendant got filed chief examination affidavit of D.W.2 which means that after satisfying about the measurements in the plaint schedule, plaintiff and defendant entered into agreement of sale and the extent is of 20 ankanams. 14) The defendant got examined D.W.3, who was the official witness. Through whom Ex.X.1 and Ex.X.2 were marked. Ex.X.1 was On-line particulars of property and Ex.X.2 was attested copy of M.L. Register. 14) The defendant got examined D.W.3, who was the official witness. Through whom Ex.X.1 and Ex.X.2 were marked. Ex.X.1 was On-line particulars of property and Ex.X.2 was attested copy of M.L. Register. 15) Sri C. Subodh, learned counsel appearing for the appellant, would contend that in accordance with the contents of written statement of the defendant. He would submit that though the title in the name of the defendant was for an extent of 10 ankanams, but in fact it was only on account of a typographical error committed by the scribe of the document. The ground measurements were of 20 ankanams within the same boundaries. When these facts were intimated to the plaintiff, the plaintiff got measured the plaint schedule property in the presence of the defendant and after satisfying about its extent only, he entered into Ex.A.1, agreement of sale, with the defendant. The defendant was always ready to execute a registered sale deed in the name of the plaintiff for 20 ankanams and she expressed her intention to get a rectification deed from the original vendor so as to explain the extent as that of 20 ankanams instead of 10 ankanams. The legal notices that were issued by the plaintiff were suitably replied by the defendant. The defendant got marked Ex.B.1 and Ex.B.2 in support of her contentions. Original extent of the property, in fact, is 20 ankanams and the plaintiff satisfied himself about the extent and entered into Ex.A.1, agreement of sale. The defaulting party was the plaintiff by not fulfilling the terms and conditions of Ex.A.1, agreement of sale. The defendant never committed any default. She was always ready and willing to perform her part of contract. The plaintiff would not have entered into agreement of sale for 20 ankanams when the sale deed of the defendant speaks of 10 ankanams, if he really did not measure the plaint schedule property. All these goes to show that at a later point of time, the plaintiff wanted to withdraw from his obligation covered under Ex.A.1 so as to blame the defendant. He would submit that what the defendant was expected to do is only to get a rectification deed from the original vendor for which she was always ready and willing, but the plaintiff hurriedly filed the suit. He would submit that what the defendant was expected to do is only to get a rectification deed from the original vendor for which she was always ready and willing, but the plaintiff hurriedly filed the suit. The learned Additional District Judge failed to appreciate the contentions of the defendant in proper perspective, as such, the Appeal Suit is liable to be allowed. 16) Sri M.S.R. Chandra Murthy, the learned counsel appearing for the respondent, would contend that in Ex.B.1, the sale deed of the defendant, measurements were there, but in Ex.A.1, agreement of sale, such measurements were not there. As seen from Ex.B.1, the extent of the site was only 10 ankanams, but the defendant got suppressed the same and entered into Ex.A.1 as if she had right in 20 ankanams. The boundaries of the plaint schedule property in Ex.A.1 and Ex.B.1 are one and the same. In fact, on measurements, it would only amounts to 10 ankanams. The contention of the defendant that she was always ready and willing to get a rectification deed is not at all tenable. The plaintiff was always ready and willing to purchase 20 ankanams, but the defendant has to establish how she got right of 20 ankanams in the plaint schedule property contrary to the boundaries in Ex.B.1 and contrary to the measurements in Ex.B.1. The defendant was not ready and willing to perform her part of contract because she had only 10 ankanams. The plaintiff filed the suit and prayed for a decree of specific performance and also for alternative relief. The learned Additional District Judge on thorough appreciation of the evidence on record was of the view that the decree for specific performance of contract cannot be granted, as the defendant had right only 10 ankanams and rightly granted the alternative relief, as such, there are no merits and the appeal suit is liable to be dismissed. 17) There is no dispute that the defendant executed Ex.A.1-agreement of sale in favour of the plaintiff which is pertaining to an extent of 20 ankanams within the specific boundaries mentioned therein by receiving advance amount of Rs.2,00,000/- and stating that the consideration per ankanam is Rs.93,000/-. Later, she received a sum of Rs.4,00,000/- and endorsed under Ex.A.2. These facts are not at all in dispute. Later, she received a sum of Rs.4,00,000/- and endorsed under Ex.A.2. These facts are not at all in dispute. There is also a whisper that the rest of the consideration is to be paid after making measurements of the property on ground. 18) It appears that the dispute arose when the plaintiff issued Ex.A.4-legal notice to the defendant. As seen from Ex.A.4, the plaintiff alleged that on the date of payment of Rs.4,00,000/- on 27.03.2010, the site was measured which was arrived at only 10 ankanams and further the registered sale deed in the name of defendant, dated 21.07.2004 also shows the extent only 10 ankanams and that the plaintiff is willing to pay the rest of the consideration to get a sale deed in respect of 10 ankanams. There is no dispute that the original extent as mentioned in Ex.A.1 is also 20 ankanams. In response to Ex.A.4, legal notice, the defendant issued Ex.A.6-reply, alleging that even on the date of agreement of sale on 05.02.2010 also the plaintiff after getting measurements only executed the same in favour of the plaintiff and that the plaintiff had knowledge that the extent is 20 ankanams. The defendant alleged that the mentioning of extent as 10 ankanams in Ex.A.3 is only due to typographical error and that the defendant is always ready to get a rectification deed from its vendor. As against the above, the plaintiff issued a reply under Ex.A.7, denying the allegations in Ex.A.6 and that the defendant cannot acquire better title for more than 10 ankanams, etc. Under Ex.A.9 the defendant issued further reply reiterating her case. 19) As evident from the aforesaid exchange of legal notices, the contention of the plaintiff is that the extent of the site is only 10 ankanams for which he was always ready and willing to pay the rest of the consideration and to get a sale deed. On the other, the contention of the defendant was that the extent is 20 ankanams and the plaintiff has to get the sale deed for 20 ankanams and she was always ready to get a rectification deed from its vendor. 20) As seen from Ex.A.1, the boundaries are shown as East: Subbamma’s site; South: Municipal canal; West: Kaveti Ramachandraiah’s house and North: 100 feet mini by-pass road and within the boundaries, the extent is 20 ankanams. 20) As seen from Ex.A.1, the boundaries are shown as East: Subbamma’s site; South: Municipal canal; West: Kaveti Ramachandraiah’s house and North: 100 feet mini by-pass road and within the boundaries, the extent is 20 ankanams. So, when Ex.B.1 sale deed of the defendant and Ex.A.3 copy of the same reveals the extent as that of 10 ankanams only but the extent is mentioned in Ex.A.1 as that of 20 ankanams. The boundaries in Ex.A.1 and Ex.B.1 are one and the same. Ex.B.1 shows the linear measurements of the boundaries. As pointed out, the boundaries in Ex.A.1 and Ex.B.1 are same. The linear extents are East: 31.3 feet; South: 23 feet; West: 31.3 feet and North: 23 feet and the extent is shown as 10 ankanams or 66.890 sq. meters. Ex.A.1 is missing the linear measurements as mentioned in Ex.B.1. Apart from this, another surprising thing is that if the linear measurements of 31 x 3 x 23 feet are measured, it comes to 719.9 sq. feet and it is converted into ankanams, it comes to 10 ankanams. 21) During cross examination D.W.1 admitted that in respect of Ex.B.1, she paid the stamp duty and registration charges for only 10 ankanams. It is not that though she paid stamp duty and registration charges for 20 ankanams, but the extent is mentioned as 10 ankanams. Hence, the contention of the defendant that the mentioning of 10 ankanams in Ex.B.1 was only a typographical error cannot be accepted. The very contention of the defendant is that she was always ready and willing to get a rectification deed because the extent was mentioned as 10 ankanams instead of 20 ankanams due to typographical error. 22) It is to be noted that the defendant after filing of the suit i.e., the hard fighting litigation cropped up between her and the plaintiff ventured to get Ex.B.2 sale deed from the so-called legal heir of the vendor under Ex.B.1. The defendant in fact did not prove that the executant under Ex.B.2 was the legal heir of the vendor under Ex.B.1. Ex.B.2 was not obtained from the executant under Ex.B.1. No proof was filed that the executant under Ex.B.2 was the legal heir of the executant under Ex.B.1. Apart from this, its contents depict further surprising facts. It recites that Pothuraju Gangamma is the daughter of Chowdagiri Gangamma. Ex.B.2 was not obtained from the executant under Ex.B.1. No proof was filed that the executant under Ex.B.2 was the legal heir of the executant under Ex.B.1. Apart from this, its contents depict further surprising facts. It recites that Pothuraju Gangamma is the daughter of Chowdagiri Gangamma. Chowdagiri Gangamma had a title on 20 ankanams of the site and defendant purchased the said 20 ankanams on 12.11.2001 and obtained possession. Later, on 21.07.2004 her mother executed a sale deed for 10 ankanams of site only, but she did not execute sale deed for remaining 10 ankanams. Later she died. Therefore, the executant who claims to be the daughter of Chowdagiri Gangamma ventured to execute Ex.B.2 without any consideration. 23) There was no pleading at all from the part of the defendant that she came into possession of 20 ankanams on 12.11.2001 and later obtained sale deed on 21.07.2004 for 10 ankanams leaving the rest of 10 ankanams. Undoubtedly, the contents in Ex.B.2 are contra to the recitals in Ex.B.1 sale deed so far as the extent of the property is concerned. The defendant did not venture to examine the executant of Ex.B.2. She did not place any evidence that executant was the legal heir of Chowdagiri Gangamma. Ex.B.2 was brought into picture during pendency of the suit before the learned Additional District Judge. Apart from this, Ex.B.1 never discloses that there remained the rest of 10 ankanams after Ex.B.1. 24) It is worthwhile to make a mention here that the boundaries mentioned in Ex.B.1 and Ex.B.2 are one and same. In Ex.A.1, the southern boundary is shown as Municipal canal. In Ex.B.2 northern boundary is described as Municipal canal. Apart from this, Ex.B.1, Ex.B.2 and Ex.A.1 reveal the southern boundary as Municipal canal. Assuming for a moment that the recitals in Ex.A.1 and Ex.B.1 shows the southern boundary as Municipal canal, then, the defendant has to explain as to how in Ex.B.2 the extent of 10 ankanams is existed between Ex.B.1 and Ex.B.2 property. In the light of the above, there is every doubt as to the existence of property covered under Ex.B.2. A lot has to be explained by the defendant and she failed to explain anything in this regard. 25) The defendant examined D.W.2 whose evidence is contrary to the evidence of P.W.1 and D.W.1. In the light of the above, there is every doubt as to the existence of property covered under Ex.B.2. A lot has to be explained by the defendant and she failed to explain anything in this regard. 25) The defendant examined D.W.2 whose evidence is contrary to the evidence of P.W.1 and D.W.1. He gone to the extent of deposing that on the date of Ex.A.1, the site was measured and found as 20 ankanams. D.W.1 admitted in cross examination that on the date of Ex.A.1, the site was not measured. The evidence of D.W.2 is of no use to the case of the defendant. Though the defendant examined D.W.3, his evidence is not at all useful to the case of the parties. He was a Revenue Officer, who deposed that he cannot show the title to the extent of site and he can give only plinth area of construction. The evidence of D.W.3 is of no use to the case of the defendant. What all the contentions advanced by the defendant that due to typographical error, extent of site in Ex.B.1 was mentioned as 10 ankanams, as against the original extent of 20 ankanams was negatived because of brining into existence of Ex.B.2 by the defendant. So, as on the date of Ex.B.1, the defendant had no title over an extent of 20 ankanams and at best she had title over an extent of 10 ankanams only. The whole controversy between the parties is the extent of site. Admittedly both the plaintiff and defendant are at variance with regard to the extent. They did not place consistent evidence to show the original extent. The plaintiff entered into agreement of sale with the defendant assuming that site might have been 20 ankanams which proved to be incorrect. The defendant entered into Ex.A.1 with the plaintiff averring that it was of 20 ankanams which she miserably failed to probabalize. Under the circumstances, when the parties are at variance with regard to the extent and when the defendant had no title over 20 ankanams as on the date of Ex.A.1, the learned Additional District Judge exercised its discretion not to grant a decree of specific performance. However, there was no dispute about the receipt of advance amount of Rs.6,00,000/- by the defendant from the plaintiff. However, there was no dispute about the receipt of advance amount of Rs.6,00,000/- by the defendant from the plaintiff. When the defendant was not capable of performing the obligations under Ex.A.1, she cannot be allowed to make her self-enriched by retaining the advance amount with her. Under the circumstances, the learned Additional District Judge rightly exercised the discretion not to grant the relief of specific performance of agreement of sale, but directed the defendant to pay back the advance consideration of Rs.6,00,000/-. 26) Viewing from any angle, the judgment of the learned Additional District Judge is sustainable under law and facts. Hence, these points are answered accordingly against the appellant. 27) In the light of the above, this Court does not find any reason to interfere with the well reasoned judgment of the learned Additional District Judge. Point No.3 28) In the result, the appeal suit is dismissed with costs confirming the judgment and decree, dated 13.03.2017 in O.S.No.136 of 2010, on the file of I Additional District Judge, Nellore. Consequently, miscellaneous applications pending, if any, shall stand closed.