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2025 DIGILAW 1023 (AP)

Tata Shyam Babu, S/o. Satayanarayana v. Maram Venkateswarlu, S/o. Venkata Reddy

2025-08-22

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. This second appeal is filed aggrieved against the Judgment and decree dated 08.04.2024 in A.S.No.100 of 2020 on the file of learned Judge, Family Court-cum-VIII Additional District Judge, Prakasam at Ongole, setting aside the Judgment and decree dated 18.08.2020 in O.S.No.715 of 2014 on the file of learned Principal Senior Civil Judge, Ongole. 2. The appellant herein is the defendant and the respondent herein is the plaintiff in O.S.No.715 of 2014 on the file of learned Principal Senior Civil Judge, Ongole. 3. The plaintiff initiated action in O.S.No.715 of 2014 on the file of learned Principal Senior Civil Judge, Ongole, with a prayer for specific performance of agreement of sale directing the defendant to execute a sale deed with respect to the schedule property by receiving balance sale consideration after deducting advance amount received by him and if the defendant failed to do so, the Court may be pleased to execute the same on behalf of the defendant or grant the alternative relief of return of advance amount of Rs.50,000/- together with interest @ 24% per annum from the date of the agreement till the date of realization and for costs of the suit. 4. The learned Principal Senior Civil Judge, Ongole, dismissed the suit without costs. Felt aggrieved of the same, the plaintiff in the above said suit filed the aforesaid appeal before the first appellate Court. The learned Judge, Family Court-cum-VIII Additional District Judge, Prakasam at Ongole, allowed the first appeal with costs by setting aside the judgment and decree passed by the trial Court. Aggrieved thereby, the defendant/appellant approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.715 of 2014, is as follows: The defendant offered to sell the plaint schedule property and the plaintiff came forward to purchase the same. After due negotiations, the defendant executed an agreement of sale on 08.01.2013 in favour of the plaintiff. The terms of sale agreement reduced into writing on a stamp paper. As per the conditions, the rate was fixed at Rs.6 lakhs as bill contract and out of the total sale consideration, the defendant received Rs.50,000/- towards advance. After due negotiations, the defendant executed an agreement of sale on 08.01.2013 in favour of the plaintiff. The terms of sale agreement reduced into writing on a stamp paper. As per the conditions, the rate was fixed at Rs.6 lakhs as bill contract and out of the total sale consideration, the defendant received Rs.50,000/- towards advance. Thereafter, the defendant failed to receive the balance of sale consideration and execute registered sale deed and he has been postponing the same on some pretext or other. The plaintiff got issued a lawyer notice dated 08.09.2014, to which, the defendant gave a reply notice dated 26.09.2014 with false allegations. Hence, the plaintiff filed the suit. 7. The defendant filed written statement denying the contents of plaint averments and further contended as follows: The defendant was not acquainted with the plaintiff until the plaintiff issued a legal notice claiming that the defendant purportedly sought to sell the plaint schedule property to the plaintiff. The defendant never sought to sell the suit schedule property to anybody. In fact, he got right over the suit schedule property through the gift deed executed by his father dated 13.10.2009 and since then he was embroiled in a lengthy legal battle on behalf of M/s Srinivas Housing Scheme to which his father was the Managing partner. The suit schedule property was allotted to the father of the defendant through the Lok Adalat Award in the year 2008. His father executed a gift deed dated 13.10.2009 and plaintiff might have known that the father of the defendant got the suit schedule property bearing H.No.6-343 after a compromise between the parties in O.S.No.723 of 2008 on the file of III Additional Junior Civil Judge. The defendant was not even aware of the existence of the alleged agreement of sale dated 08.01.2013 till receipt of legal notice issued by the plaintiff. The defendant duly replied through his counsel on 26.09.2014 informing the same to the plaintiff?s counsel and they sent a rejoinder to the reply given by the defendant on 06.10.2014 and the rejoinder sent by the counsel for the plaintiff also got replied by the counsel for the defendant on 11.10.2014. The defendant duly replied through his counsel on 26.09.2014 informing the same to the plaintiff?s counsel and they sent a rejoinder to the reply given by the defendant on 06.10.2014 and the rejoinder sent by the counsel for the plaintiff also got replied by the counsel for the defendant on 11.10.2014. The plaintiff with the help of one Chandragiri Ramireddy, who is one of the witnesses to the agreement of sale, has concocted for the purpose of gaining the suit schedule property at a quarter of its actual value by harassing the defendant through intimidation tactics and litigation. Hence, sought for dismissal of the suit. 8. On the basis of above pleadings, the learned Principal Senior Civil Judge, Ongole, framed the following issues for trial: (1) Whether the suit agreement of sale dated 08.01.2013 was executed by defendant and it is true and valid? (2) Whether the plaintiff is ever ready and willing to perform his part of contract? (3) Whether the plaintiff is entitled for specific performance of agreement of sale against defendant to execute sale deed? (4) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-5 were marked. On behalf of the defendant, D.Ws.1 to 3 were examined and no documents were marked on his behalf. 10. The learned Principal Senior Civil Judge, Ongole, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit without costs. Felt aggrieved thereby, the plaintiff filed the appeal suit in A.S.No.100 of 2020 before the learned Judge, Family Court-cum-VIII Additional District Judge, Prakasam at Ongole, wherein, the following points came up for consideration: (1) Whether the agreement of sale Ex.A1 is true, valid and executed by the defendant? If so, whether the plaintiff is entitled for specific performance of contract? (2) Whether the impugned Decree and Judgment of the "trial Court" in O.S.No.715 of 2014 of Principal Senior Civil Judge, Ongole, dt.18.08.2020 is sustainable? (3) To what relief? 11. The learned Judge, Family Court-cum-VIII Additional District Judge, Prakasam at Ongole, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the respondent/defendant and in favour of the appellant/plaintiff and allowed the appeal filed by the plaintiff with costs. (3) To what relief? 11. The learned Judge, Family Court-cum-VIII Additional District Judge, Prakasam at Ongole, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the respondent/defendant and in favour of the appellant/plaintiff and allowed the appeal filed by the plaintiff with costs. Felt aggrieved of the same, the defendant in O.S.No.715 of 2014 filed the present second appeal before this Court. 12. After institution of the second appeal by the defendant in the suit, this Court ordered notice to the respondent before admission and the said notice was served on the respondent/plaintiff. Heard Smt.Nimmagadda Revathi, learned counsel for the appellant/defendant and heard Sri P.S.P.Suresh Kumar, learned counsel for the respondent/plaintiff. 13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of the Code of Civil Procedure (for short “CPC”) could be admitted only when the appellant satisfies this Court that the substantial question of law between the parties arise in this case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In a case of Boodireddy Chandraiah v. Arigela Laxmi , [ (2007) 8 SCC 155 ] , the Apex Court held that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact namely, the first appellate Court. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising a substantial question of law. 14. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising a substantial question of law. 14. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of CPC, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law. 15. The contention of the appellant is that the judgment and decree of the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by the first appellate Court. The law is very clear that the second appeal will be maintainable before the High Court, only if it is satisfied that the case involves a substantial question of law. If no substantial question of law arises, the second appeal could not have been entertained and the same ought to have been dismissed, as the jurisdiction of the High Court itself is not yet invoked. 16. It is the specific case of the appellant that Ex.A.1 agreement of sale i.e. suit document itself is a fabricated document and he would further contend that in fact the Ex.A.1 agreement of sale is not at all proved by the plaintiff. 17. The plaintiff to prove the Ex.A.1 agreement of sale, relied on the evidence of P.W.1 and P.W.2. The plaintiff affirmed about the execution of Ex.A.1 agreement by the defendant and also receipt of advance amount of Rs.50,000/- in the presence of P.W.2 and one Chandragiri Ramireddy. The plaintiff also narrated in the plaint and also in his evidence that he is ready and willing to perform his part of the contract. In order to prove the readiness and willingness, the plaintiff relied on exchange of notices in between both the parties. Ex.A.2 is the legal notice said to have been issued by the plaintiff to the defendant prior to filing of the suit. P.W.2 one of the attestor of Ex.A.1 agreement of sale, also supports the evidence of P.W.1 on all material aspects. P.W.2 affirmed about the execution of agreement of sale and receipt of advance amount of Rs.50,000/- by the defendant. P.W.2 one of the attestor of Ex.A.1 agreement of sale, also supports the evidence of P.W.1 on all material aspects. P.W.2 affirmed about the execution of agreement of sale and receipt of advance amount of Rs.50,000/- by the defendant. Though P.W.1 and P.W.2 are cross-examined by the learned counsel for the appellant, in cross- examination, the evidence of P.W.1 and P.W.2 is not shattered on the material aspects of the case. 18. It is the contention of the appellant that the plaintiff failed to examine the first attestor in Ex.A.1 agreement of sale. When the evidence of one of the attestor i.e. P.W.2 is sufficient to prove the Ex.A.1 contract of sale, there is no need for the plaintiff to examine another attestor to Ex.A.1 agreement of sale. 19. The defendant claimed that Ex.A.1 is a fabricated document. He asserted that the plaintiff with the help of one Chandragiri Ramireddy, who is one of the witness to the alleged agreement, has created Ex.A.1. As could be seen from the evidence of D.W.1, he admits in his evidence that he does not know read and write in Telugu and so also he does not know the contents of his chief affidavit and after receipt of legal notice, he got issue a reply notice and he does not know the contents of the legal notice sent by the plaintiff. He denied everything in his evidence. He pleaded ignorance about the contents of his evidence affidavit itself. In the reply notice issued by the defendant, the defendant pleaded that the said first attestor Chandragiri Ramireddy is his close friend. Thus, in such a case, what prevent the appellant to examine the said Chandragiri Ramireddy to prove the alleged fabrication of the agreement as pleaded by the appellant. No steps have been taken to examine the said Chandragiri Ramireddy by the defendant. 20. Learned counsel for the appellant would contend that it is the duty of the plaintiff to prove the Ex.A.1 contract of sale, but not by the defendant. Here, the plaintiff proved Ex.A.1 contract of sale by examining the second attestor in Ex.A.1 agreement as P.W.2. His evidence is consistent and supported the case of plaintiff and also the evidence of P.W.1. It is not at all the case of the appellant that he is having enmity with P.W.2, due to which P.W.2 deposed falsehood against the defendant. Here, the plaintiff proved Ex.A.1 contract of sale by examining the second attestor in Ex.A.1 agreement as P.W.2. His evidence is consistent and supported the case of plaintiff and also the evidence of P.W.1. It is not at all the case of the appellant that he is having enmity with P.W.2, due to which P.W.2 deposed falsehood against the defendant. In fact, it is the admitted case of the appellant that the said Chandragiri Ramireddy, another attestor is a good friend of him, but he failed to examine him as a witness. It is the specific case of the appellant that on the collusion with the said Ramireddy, the plaintiff obtained his signature on blank while and conquest paper. As seen from Ex.A.1, Ex.A.1 is prepared by using one 100 rupees stamp paper only. No prudent man will obtain the signatures on stamp papers for prosecuting the case. 21. Learned counsel for the appellant placed a reliance of Mayawanti v. Kaushalya Devi , [(1990) 3 Supreme Court Cases 1] . In that decision, it was held as follows: “In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable……” Admittedly, in the case on hand, to discharge the burden, the plaintiff examine one of the attestor in Ex.A.1 agreement of sale as P.W.2 and the original of agreement of sale is also filed and exhibited as Ex.A.1. The plaintiff narrated in his evidence and also in the plaint itself about his readiness and willingness and about the execution of Ex.A.1 agreement of sale. Therefore, the plaintiff proved that there was a valid contract in between both the parties to the suit. For the aforesaid reasons, this Court held that Ex.A.1 is duly proved by the plaintiff. 22. The plaintiff narrated in his evidence and also in the plaint itself about his readiness and willingness and about the execution of Ex.A.1 agreement of sale. Therefore, the plaintiff proved that there was a valid contract in between both the parties to the suit. For the aforesaid reasons, this Court held that Ex.A.1 is duly proved by the plaintiff. 22. Learned counsel for the appellant would contend that the alleged transaction was executed for a lesser price than half of the market value prevailing at that time by ignoring the settled principles of law, but the first appellate Court granted the relief of specific performance which caused loss and hardship to the appellant. It is the admitted case of both the parties that as on 08.01.2013, a civil litigation is pending in respect of the plaint schedule property. The recitals of Ex.A.1 makes clear that to discharge the debts, the defendant agreed to alienate the plaint schedule property. Since a civil litigation is pending as on the date of Ex.A.1, no prudent man will purchase the property of litigation involved for market price. Moreover, lesser price shall not vitiate the transaction. As per the own statement of the defendant that as on the date of Ex.A.1, one third party is having possession over the suit schedule property and a civil litigation is pending. Moreover, a contract for the sale of immovable property is a contract and sale of such property shall takes place on terms settled between the parties. The value of the consideration is a matter in between both the parties to contract. 23. In order to prove the readiness and willingness of the plaintiff, the plaintiff relied on the evidence of P.W.3 and also Ex.A.2 legal notice said to have been issued by the plaintiff and also rejoinder notice said to have been issued by the plaintiff. In fact, the readiness and willingness on the part of the plaintiff is very much proved by the plaintiff through P.W.3 and Ex.A.2 legal notice. As stated supra, in the case on hand, the Ex.A.1 agreement of sale is very much proved by the plaintiff by examining one of the attestor in Ex.A.1 agreement of sale and the plaintiff discharged his burden by examining one of the attestor in Ex.A.1 agreement of sale. As stated supra, in the case on hand, the Ex.A.1 agreement of sale is very much proved by the plaintiff by examining one of the attestor in Ex.A.1 agreement of sale and the plaintiff discharged his burden by examining one of the attestor in Ex.A.1 agreement of sale. Then, the burden shifts to the defendant to prove that how the stamp papers are misused and as per his own statement, the first attestor Chandragiri Ramireddy is his good friend. But he failed to examine the said first attestor to Ex.A.1 agreement of sale to prove the alleged collusiveness in between said Ramireddy and the plaintiff. But, for the reasons best known to the appellant, the appellant remains silent. 24. On appreciation of the entire evidence on record, the first appellate Court arrived right conclusion that the plaintiff proved Ex.A.1 agreement of sale and the plaintiff is entitled the relief of specific performance of agreement of sale. The finding of fact recorded by the first appellate Court was based on proper appreciation of the evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of CPC. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 25. Viewed thus, this Court finds that none of the questions raised are substantial questions and there is no subsistence in the questions raised and that therefore, the second appeal is devoid of merits and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki , [ AIR 2006 SC 1975 ] . The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki , [ AIR 2006 SC 1975 ] . In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of CPC. 26. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree passed by the learned first appellate Judge. Each party do bear their own costs in the second appeal. Pending applications, if any, shall stand closed.