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2024 DIGILAW 448 (TS)

Salah Bin Hassan v. Omer Bin Hassan

2024-07-05

G.RADHA RANI

body2024
JUDGMENT : G. RADHA RANI, J. 1. This appeal is filed by the appellant-plaintiff aggrieved by the judgment and decree dated 25.02.2021 passed in O.S. No. 130 of 2012 by the learned IX Additional Chief Judge, City Civil Court, Hyderabad in dismissing the suit filed by him for specific performance of contract. 2. The parties are hereinafter referred as arrayed before the trial court. 3. The case of the plaintiff was that the defendant was his younger brother. The defendant was the owner of the property bearing Municipal No. 7-1-214/1, First Floor along with an undivided share of 83.50 square yards out of the total extent of 167 square yards situated at Dharam Karan Road, Ameerpet, Hyderabad. The defendant agreed to sell the said property to the plaintiff for a total sale consideration of Rs.18,50,000/- and received a sum of Rs.11,60,043/- as advance/earnest money under a valid stamped receipt dated 12.08.2005 issued by the defendant in favor of the plaintiff. In terms of the said receipt, the balance sale consideration of Rs.6,89,957/- was to be paid before the end of July, 2006. From time to time, the plaintiff paid the entire sale consideration by way of banker’s cheques/demand drafts. The plaintiff also received the original link documents, lay out, sanctioned plan, property tax receipts, etc. in respect of the said property, except the original sale deed dated 11.07.1994, through which the defendant purchased the said property. The defendant promised to handover the original sale deed document to the plaintiff at the time of registration of the sale deed, since the same was kept in his safe custody at Abu Dhabi. The defendant being a permanent resident of Abu Dhabi, United Arab Emirates, agreed to execute and register the sale deed whenever demanded by the plaintiff. Much prior to the said sale transaction, the defendant delivered the vacant physical possession of the said property to the plaintiff. The plaintiff used to let out the said property to the tenants independently and collect the rents. In the month of November, 2004, the plaintiff let out the said property to M/s. Sri Sai Educational Society, represented by Mr. K.S. Venkateshwar Rao by virtue of a lease deed dated 24.11.2004 and till date they were in occupancy of the said property as tenants. In the month of November, 2004, the plaintiff let out the said property to M/s. Sri Sai Educational Society, represented by Mr. K.S. Venkateshwar Rao by virtue of a lease deed dated 24.11.2004 and till date they were in occupancy of the said property as tenants. Even though, the defendant received the entire sale consideration, he did not come forward to execute the registered sale deed in favor of the plaintiff despite his several requests and reminders. As a bolt from blue, the plaintiff came to know through his tenant Mr. K.S. Venkateshwar Rao that the defendant along with his other younger brother Mr. Mahmood Bin Hasan and in collusion with each other filed O.S. No. 2573 of 2010 on the file of the II Senior Civil Judge, Hyderabad against the said tenant seeking ejection, recovery of rents and damages. In the said suit, the defendant suppressed the fact that he already sold the said property to the plaintiff and that he received the entire sale consideration and misrepresented stating that the defendant was the absolute owner of the said property. 3.1. The plaintiff further stated that he also purchased the ground floor of the said property from his other younger brother Mr. Mahmood Bin Hasan by paying the entire sale consideration. Thus, the plaintiff purchased the entire building comprising ground and first floors admeasuring 167 square yards. The plaintiff got issued a legal notice dated 01.08.2011 to the defendant calling upon him to execute and register the sale deed in respect of the schedule property within seven (07) days from the date of receipt of the said notice. The defendant sent a reply notice dated 12.08.2011 with all false allegations denying the sale transaction and disputing the receipt dated 12.08.2005. He also disputed payment of balance sale consideration. In the said circumstances, the plaintiff left with no option, filed the suit seeking specific performance of agreement in respect of the suit schedule property. 4. The defendant filed written statement contending that the suit filed by the plaintiff was false and speculative and that the same was not maintainable. He stated that he was the absolute owner and possessor of the premises bearing No. 7-1-214/1, First Floor situated at Dharam Karan Road, Ameerpet, Hyderabad having purchased the same under registered sale deed dated 11.07.1994 vide registered sale deed document bearing No. 2779 of 2005. He stated that he was the absolute owner and possessor of the premises bearing No. 7-1-214/1, First Floor situated at Dharam Karan Road, Ameerpet, Hyderabad having purchased the same under registered sale deed dated 11.07.1994 vide registered sale deed document bearing No. 2779 of 2005. His brother Mahmood Bin Hasan purchased the ground floor in the same premises under registered sale deed document bearing No. 2780 of 2005 dated 19.08.1984. As the defendant and his younger brother were working abroad and visiting Hyderabad periodically, they asked the plaintiff, who was their elder brother to look after the above mentioned properties and permitted the plaintiff to let out and collect the rents. Accordingly, the defendant and his brother let out the said properties through the plaintiff to the Principal/Correspondent, Archievers School. The plaintiff cheated the defendant and his brother and misappropriated the rent amount and committed breach of trust. The defendant and his brother were intending to proceed against the plaintiff in the Criminal Court and they had already filed a suit for eviction and recovery of damages for use and occupation against the Principal/Correspondent of Archievers School in O.S. No. 2573 of 2010 on the Court of the II Senior Civil Judge, City Civil Court, Hyderabad and the same was pending. 4.1. He further submitted that he and his brother Mahmood Bin Hasan filed suit for perpetual injunction against the plaintiff in respect of the property bearing No. 6-3-785/1 situated at Punjagutta, Hyderabad vide O.S. No. 2817 of 2010 in the Court of the II Senior Civil Judge, City Civil Court, Hyderabad. The same was dismissed on 03.10.2012. The defendant and his brother Mahmood Bin Hasan were taking steps to file an appeal against the judgment and decree in the said suit. 4.2. He further submitted that the plaintiff developed personal grudge and enmity against the defendant and his brother and was harassing them in different ways. The defendant never agreed to sell the suit schedule property to the plaintiff for a consideration of Rs.18,50,000/-. The defendant did not receive any amount much less Rs.11,60,043/- as advance/earnest money. The alleged stamped receipt dated 12.08.2005 was false and invalid and the same was not issued in favor of the plaintiff. It was a forged and fabricated document. The allegation of the plaintiff that the balance sale consideration of Rs.6,89,957/- was to be paid was misleading and redundant. The alleged stamped receipt dated 12.08.2005 was false and invalid and the same was not issued in favor of the plaintiff. It was a forged and fabricated document. The allegation of the plaintiff that the balance sale consideration of Rs.6,89,957/- was to be paid was misleading and redundant. The plaintiff did not pay any amount to the defendant either in cash or by way of banker’s cheque/demand draft. In view of the previous cordial relationship between them, the defendant handed over certain documents to the plaintiff for the sake of convenience to look after the suit property. The defendant never agreed to handover the original registered sale deed dated 11.07.1994 to the plaintiff. He further denied the allegation of the plaintiff that the plaintiff purchased the entire building comprising ground and first floors and contended that the same was concocted. He admitted the receipt of notice dated 01.08.2011, but contended that it was invalid and he sent a proper reply on 12.08.2011 denying the alleged sale transaction and disputed the receipt dated 12.08.2005. He further contended that the suit was barred by limitation even as per the allegations made in the plaint and prayed to dismiss the suit. 5. Basing on the said pleadings, the trial court framed the issues as follows: (i) Whether the defendant entered into agreement of sale with the plaintiff to sell the suit schedule property? (ii) Whether the plaintiff is entitled for relief of specific performance of contract? (iii) To what relief? 6. The plaintiff examined himself as PW-1 and got marked Exs.A1 to A9. The defendant examined himself as DW-1 and got marked Exs.B1 to B8. 7. On considering the oral and documentary evidence on record, the learned IX Additional Chief Judge, City Civil Court, Hyderabad dismissed the suit. 8. Aggrieved by the said judgment and decree, the plaintiff preferred this appeal contending that the trial court failed to consider the documentary evidence submitted by him. The judgment under appeal was contrary to law, material evidence brought on record and against the equity and good conscience and prayed to set aside the judgment and decree dated 25.02.2021 passed in O.S. No. 130 of 2012 by the learned IX Additional Chief Judge, City Civil Court, Hyderabad. 9. Heard Sri Anirudh Sadhu, learned counsel for the appellant and Sri Mirza Shah Nawaaz Baig, learned counsel for the respondent. 10. 9. Heard Sri Anirudh Sadhu, learned counsel for the appellant and Sri Mirza Shah Nawaaz Baig, learned counsel for the respondent. 10. Now the points that arise for consideration in this appeal are: (i) Whether the plaintiff is entitled for specific performance of agreement of sale in respect of the suit schedule property? (ii) Whether the judgment of the trial court is in accordance with law or liable to be set aside? 11. As seen from the admitted facts, the plaintiff and defendant are own brothers. The defendant was a resident of Abu Dhabi, United Arab Emirates. The defendant was the owner of the property bearing Municipal No. 7-1-214/1, First Floor along with an undivided share of 83.50 square yards out of the total extent of 167 square yards, having purchased the same under registered sale deed document bearing No. 2779 of 2005 dated 11.07.1994. 12. According to the plaintiff, the defendant agreed to sell the suit schedule property for a total sale consideration of Rs.18,50,000/- and received a sum of Rs.11,60,043/- towards advance/earnest money and issued a stamped receipt dated 12.08.2005. He had to pay balance sale consideration of Rs.6,89,957/- before the end of July, 2006. From time to time, he paid the entire sale consideration by way of banker’s cheques/demand drafts. 13. The defendant denied the said contention of the plaintiff and stated that his younger brother also purchased the ground floor in the same premises at Dharam Karan Road, Ameerpet, Hyderabad under registered sale deed bearing document No. 2780 of 2005 dated 19.08.1984 and as they both were working abroad and were visiting Hyderabad periodically, both of them asked their elder brother, the plaintiff to look after the said properties and permitted him to let out and collect the rents and the property was let out to the Principal/Correspondent of Archievers School. But the plaintiff misappropriated the rent amount and committed breach of trust. As such, they filed O.S. No. 2573 of 2010 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad against the Principal/Correspondent of Archievers School for eviction and recovery of damages. 14. On a perusal of record, no agreement of sale was filed by the plaintiff except a stamped receipt dated 12.08.2005 for an amount of Rs.11,60,043/- The defendant contended that it was a fabricated document. 14. On a perusal of record, no agreement of sale was filed by the plaintiff except a stamped receipt dated 12.08.2005 for an amount of Rs.11,60,043/- The defendant contended that it was a fabricated document. When the defendant contended the same as fabricated document, the burden would lie upon the plaintiff to prove the execution of the receipt. But no witnesses were examined by the plaintiff in proof of the sale transaction or payment of the said amount. It is also not understood as to why the alleged payment was made for an amount of Rs.11,60,043/- instead of any round figures. The plaintiff had not stated whether any witness was present at the time of alleged sale transaction to sell the suit schedule property. Though, two witnesses were shown to have attested Ex.A1 receipt, one by name Mahmood Bin Hasan, younger brother of the plaintiff and the defendant and other person by name Imran Bin Mahmood, no such witnesses were examined before the trial court on his behalf. 15. The plaintiff examined himself as PW-1 and filed his evidence affidavit on the same lines as that of the plaint. In his cross-examination, he stated that he was an Income Tax assessee, but he did not remember whether he had shown the amount paid to the defendant under Ex.A1 in his Income Tax Returns in the year 2004-05. He stated that till the year 2006, the relationship between him and his brother was cordial. He stated that Ex.A1 was executed on 12.08.2005. But he did not remember, whether there was any execution of written agreement of sale prior to the execution of Ex.A1 or on the date of Ex.A1 or after the execution of Ex.A1. He also stated that he did not remember whether he issued any notice in writing to the defendant for execution of agreement of sale. He stated that in the year 2004 itself, he obtained possession of the suit schedule property and let out to the tenant. He admitted that he had not filed any receipt in the Court to show that he paid the balance amount of Rs.6,89,957/- to the defendant as mentioned in Ex.A1. He stated that he paid the balance amount through demand drafts to the defendant vide Exs.A8 and A9. He admitted that he had not filed any receipt in the Court to show that he paid the balance amount of Rs.6,89,957/- to the defendant as mentioned in Ex.A1. He stated that he paid the balance amount through demand drafts to the defendant vide Exs.A8 and A9. Ex.A8 was the certificate issued by the Senior Manager of Central Bank of India, Kalyan Nagar Branch, wherein he certified that their branch had issued three (03) banker’s cheques in favor of Mr. Omar Hassan (defendant) on 17.08.2006 for Rs.65,059/- Rs.82,898/- and Rs.6,714/- and all the said banker cheques were paid on 22.08.2006 to the payee. Ex.A9 was also the certificate issued by the Manager of Canara Bank certifying that their branch had issued demand draft bearing No. 944779 dated 16.08.2006 for Rs.61,427/- in favor of Omar Hassan (defendant). These amounts were also not round figures, but paid as Rs.65,059/-, Rs.82,898/- and Rs.6,714/- and Rs.61,427/-. No reason was stated as to why the amounts were paid in such a manner. These amounts altogether also would come to Rs.2,16,098/-, but not Rs.6,89,957/-, which was the balance sale consideration due to be paid by the plaintiff to the defendant, as alleged. 16. The plaintiff also stated in his cross-examination that he did not remember his bank account number, though admitted that in Ex.A8, it was mentioned that the banker’s cheques were issued through his Fixed Deposit and Ex.A8 would show that the demand drafts were issued through Central Bank of India. He stated that he was having a bank account in Canara Bank. He issued six (06) demand drafts and that Ex.A8 would show the amount paid through the banker’s cheques and dates. Without any cogent evidence and receipts, the same cannot be believed that the said amounts were paid towards the balance sale consideration for the sale transaction. 17. The defendant examined himself as DW-1. He issued six (06) demand drafts and that Ex.A8 would show the amount paid through the banker’s cheques and dates. Without any cogent evidence and receipts, the same cannot be believed that the said amounts were paid towards the balance sale consideration for the sale transaction. 17. The defendant examined himself as DW-1. As per the evidence affidavit of DW-1 which was in accordance with the written statement filed by him, he and his brother asked the plaintiff to look after the said properties purchased by them and permitted the plaintiff to let out and collect the rents, but the plaintiff dishonestly did not furnish the copy of the rental deed executed by the School Authority and not stated about the rate of the rent and amount of the rent collected so far and cheated him and his brother and misappropriated the rent amount. 18. The plaintiff though admitted that he let out the premises to M/s. Sri Sai Educational Society under lease deed dated 24.11.2004 itself, had not filed the said lease deed document to show that he gave the suit schedule premises on rent in the capacity of the owner of the property. The defendant stated that he filed O.S. No. 2573 of 2010 against the tenant for eviction and damages and the said suit was decreed in his favor and that he also filed E.P. No. 50 of 2017 to execute the decree and after keen contest, he took the possession of the suit schedule property by due process of law and the possession was delivered to him by the bailiff of the Court on 05.09.2018 and marked Ex.B4,the certified copy of the warrant to the bailiff dated 08.08.2018 and the certified copy of the bailiff report dated 05.09.2018 marked as Ex.B5 and the certified copy of the panchanama dated 05.09.2018 marked as Ex.B6 and the certified copy of possession receipt dated 05.09.2018 marked as Ex.B7. All these documents would show that the possession of the suit schedule premises was delivered to the defendant in the capacity of owner of the property. The plaintiff had not impleaded himself in the said suit or challenged the said decree as the owner of the property, as alleged by him. All these documents would show that the possession of the suit schedule premises was delivered to the defendant in the capacity of owner of the property. The plaintiff had not impleaded himself in the said suit or challenged the said decree as the owner of the property, as alleged by him. The judgment of the trial court also would disclose that a petition was filed by the plaintiff to implead in O.S. No. 2573 of 2010, but the same was dismissed by the Court of the II Senior Civil Judge, City Civil Court, Hyderabad, but no appeal was preferred against it, as such the same became final. As such, the trial court rightly observed that the Senior Civil Judge Court also disbelieved the plea of the plaintiff that he was the owner of the subject property. 19. Hence, considering the oral and documentary evidence on record adduced by both the parties, this court does not find any merit in the contention of the appellant that there was an agreement to sell the suit schedule property entered by the defendant with the plaintiff, which can be enforced. 20. In the result, the appeal is dismissed with costs confirming the judgment of the learned IX Additional Chief Judge in O.S. No. 130 of 2012 dated 25.02.2021 in dismissing the suit filed by the plaintiff. 21. As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.