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2025 DIGILAW 1171 (TS)

Dodda Gandhi Prasad v. Siripurapu Sudharshana Rao

2025-10-07

ABHINAND KUMAR SHAVILI, VAKITI RAMAKRISHNA REDDY

body2025
JUDGMENT : Vakiti Ramakrishna Reddy, J. This Appeal Suit is filed by the appellant/plaintiff against the Judgment and Decree dated 25.07.2012 in O.S. No. 8 of 2008 on the file of I Additional District Judge, Khammam, wherein the suit filed by the plaintiff against the defendant for specific performance was dismissed. 2. For the sake of convenience the parties will be referred as per their status before the trial Court. I. BRIEF FACTS 3. The sole plaintiff instituted O.S. No. 8 of 2008 against the sole defendant seeking Specific Performance of an Agreement of Sale in respect of agricultural land admeasuring Ac.2-08 guntas in Sy.No.9 of Raghunadhapalem Village, Khammam Urban Mandal, Khammam District (hereinafter referred to as “the suit schedule property”). It is the case of the plaintiff that the defendant, having purchased the suit schedule property through a ‘sada-binama’ (unregistered agreement) from the original owners namely one Katragadda Sreeramulu and Nelapatla Jagannadham, subsequently offered to sell the same to the plaintiff at the rate of Rs.7,65,000/- per acre. Accordingly, an agreement of sale was executed by the defendant on 11.02.2005 in favour of the plaintiff and the plaintiff had paid an amount of Rs.4,00,000/- on the date of execution of the Agreement of Sale to the defendant towards advance sale consideration. The plaintiff also paid a further sum of Rs.20,000/- to the defendant on 13.02.2005 which was endorsed on the back side of the agreement and that the plaintiff agreed to pay the balance consideration of Rs.12,63,000/- on or before 1 st October 2005, subject to condition that the defendant obtains NOC, carries out measurement of the suit land, apart from obtaining a registered sale deed from the original owners. Despite the plaintiff’s readiness and repeated demands, including a panchayat held in December, 2007 and also sending a telegraphic notice dated 10.02.2008, the defendant failed to perform his part of the contract, compelling the plaintiff to institute the above suit seeking specific performance or in the alternative, for refund of Rs.4,20,000/- with interest at the rate of 24% per annum. 4. In reply to the plaint averments, the defendant filed his written statement inter-alia mainly contending that the document of Agreement of Sale dated 11.02.2005 is not admissible in law apart from being barred by time. 4. In reply to the plaint averments, the defendant filed his written statement inter-alia mainly contending that the document of Agreement of Sale dated 11.02.2005 is not admissible in law apart from being barred by time. It was further contended that the Agreement of sale itself speaks that the suit property was not transferred or conveyed fully in favour of the defendant and as such no person can transfer a better title than what he possesses and when the defendant himself is not the owner, question of selling the property to the plaintiff does not arise. II. ISSUES FRAMED BY THE TRIAL COURT 5. Basing on the above pleadings, the trial Court framed the following issues for trial: 1. Whether the agreement of sale dated 11.02.2005 is true, valid and binding on the defendant or is it unenforceable or voidable document as pleaded by the defendant? 2. Whether the plaintiff has been ready and willing to perform his part of contract? 3. Whether the defendant procreated to perform his part of contract? 4. Whether the suit is bad for non-joinder of any necessary party? 5. Whether there was no delivery of possession? 6. Whether the suit is in time? 7. Whether the plaintiff is entitled to the relief of specific performance as prayed for? 8. To what relief? III. EVIDENCE ON RECORD 6. During the course of trial, the plaintiff himself was examined as PW1 and PWs 2 and 3 were examined while Exs.A1 to A3 were marked on his behalf. On the other hand, the defendant himself was examined as DW1 and got marked Ex.B1 on his behalf. IV. FINDINGS OF THE TRIAL COURT 7. After considering the rival contentions, the Trial Court dismissed the suit on 25.07.2012. The trial Court considered the issue Nos. 1 to 5 which are ancillary to issue No.7 together, whereas the issue No.6, which is with regard to the limitation was considered separately while recording the findings thereon separately. The trial Court specifically recorded the findings against the plaintiff on issue Nos.1 to 5 and 7 by specifically holding that the plaintiff is not entitled for the relief of specific performance of agreement of sale dated 11.02.2005, as the defendant himself was not the owner of suit property, further the suit was bad for want of issuance of prior notice and for non - joinder of necessary parties. However, issue No.6, which is with regard to limitation, the trial Court held in favour of the plaintiff holding that the suit was filed within the limitation prescribed. 8. Aggrieved by the dismissal of his suit for specific performance, the plaintiff filed the present Appeal Suit to set aside the impugned judgment and decree. V. SUBMISSIONS OF THE PARTIES: A) Submissions on behalf of the Plaintiff (Appellant ): 9. The plaintiff’s primary submissions before this Court may be summarized as follows: a. Execution and Acknowledgment : Ex.A1 is a valid agreement of sale executed by the defendant on 11.02.2005. The document records receipt of Rs. 4,00,000/- as advance sale consideration and an endorsement dated 13.02.2005 records further payment of Rs. 20,000/-. The plaintiff produced Ex.A1 in original and examined one of the attesting witnesses (PW2) who confirmed execution of Ex.A1 in his presence. b. Performance Conditions : The plaintiff was ready and willing to pay the balance consideration and to perform his obligations, subject to the defendant obtaining NOC, measurement and registration from the original owner. The plaintiff complied with the contractual conditions within the time fixed and issued telegraphic notice (Ex.A2) and held a panchayat in December 2007. He, therefore, was entitled to specific performance or, failing that, to alternative relief in the form of refund of the advance amount. c. Corroborative Evidence : The plaintiff relied on the depositions of PWs 2 and 3, who corroborated receipt of payments in the presence of witnesses. Once an acknowledgment of payment is produced in the agreement, the burden shifts to the defendant to disprove it. d. Limitation : The plaintiff contended that the suit was filed within the period prescribed for specific performance (balance consideration fixed for October 2005; suit filed in February 2008, within three years from the date when performance was refused). e. Relief Sought : Specific performance of Ex.A1; in alternative, refund of Rs. 4,20,000/- together with interest (the plaint seeks interest at 24% p.a.) and costs. B. Submissions on behalf of the Defendant (Respondent ) 10. The defendant’s main submissions are summarized as follows: a. No Title/Agreement-holder : The defendant contended that he was not the owner of the suit schedule property but only an agreement holder from K. Sriramulu and N. Jagannadham (who, in turn, are not the original owners). B. Submissions on behalf of the Defendant (Respondent ) 10. The defendant’s main submissions are summarized as follows: a. No Title/Agreement-holder : The defendant contended that he was not the owner of the suit schedule property but only an agreement holder from K. Sriramulu and N. Jagannadham (who, in turn, are not the original owners). No registered sale deed in favour of the defendant or his predecessors was placed on record. As such, the defendant cannot transfer a better title than he possesses and Ex.A1 cannot be enforced to obtain a registered sale deed. b. Forgery/Interpolations : The defendant denied having executed Ex.A1 and alleged the document was forged. He produced Ex.B1 (a xerox copy) to show interpolations and contended that PW2’s evidence was not reliable. DW1 denied execution of Ex.A1 and asserted that the plaintiff’s claims are fabricated. c. Payment Not Proved / Credibility Issue : The defendant denied receipt of the advance consideration and submitted that the plaintiff failed to produce separate stamped receipts to show payment; that the alleged payments were in cash and improbable; and that the plaintiff failed to prove his financial capacity to make the balance payment. d. No Legal Notice/Limitation : The defendant denied that any prior legal notice was issued before the suit and contended that the telegraphic receipt (Ex.A2) is not sufficient to establish legal notice. He also pleaded that the suit was barred by limitation. e. Non-joinder/Relief : The defendant argued that original owner Banoth Tavuriya and subsequent agreement-holders were necessary parties for adjudication of a prayer for specific performance and that the suit was thus vulnerable for non-joinder. The defendant urged to confirm the dismissal of the suit and contended that the Trial Court was right in rejecting the plaintiff’s claim for specific performance. VI. ISSUES FOR CONSIDERATION: 11. In the light of the pleadings, evidence and the contentions advanced in this appeal, we find that following key issues arise for consideration: 1) Whether the Agreement of Sale dated 11.02.2005 has been duly proved and validly executed? 2) Whether the plaintiff can seek enforcement of agreement of sale dated 11.02.2005 against the defendant who himself is an agreement holder from another set of agreement holders from the original owners? 3) Whether the plaintiff established his continuous readiness and willingness to perform his part of the contract? 4) Whether the suit was bad for non-joinder of necessary parties? 2) Whether the plaintiff can seek enforcement of agreement of sale dated 11.02.2005 against the defendant who himself is an agreement holder from another set of agreement holders from the original owners? 3) Whether the plaintiff established his continuous readiness and willingness to perform his part of the contract? 4) Whether the suit was bad for non-joinder of necessary parties? 5) Whether the plaintiff had proved the payment of advance sale consideration, if so, whether the plaintiff is entitled for grant of alternative relief of refund of advance sale consideration? 6) Whether the plaintiff is entitled to the equitable relief of specific performance or whether refusal thereof by the trial Court was proper? VII. ANALYSIS & DISCUSSION On issue No.1 (Regarding execution of Ex.A1) 12. It is contended by the learned counsel for the defendant that Ex.A1 Agreement of Sale dated 11.02.2005 was never executed by the defendant in favour of the plaintiff in-as-much as the defendant specifically contended in the written statement as well as in his deposition that the subject agreement of Sale (Ex.A1) was forged by the plaintiff. Further, the defendant also contends that since the defendant is not the owner of the property, suit itself is not maintainable particularly it cannot be enforced under law. 13. It is to be seen that the plaintiff has produced original of the agreement of sale under Ex.A1 and also examined one of the attesting witnesses of Ex.A1 i.e., PW2 to prove the execution of the same. On the other hand, the defendant produced a true copy of Ex.A1 which was marked as Ex.B1 to prove some interpolations or corrections in Ex.A1. 14. The evidence adduced on behalf of DW1 throws some light on the execution of Ex.A1 apart from producing Ex.B1 on behalf of DW1. PW1 categorically stated that Ex.A1 was executed in the presence of two attesting witnesses and one of them is PW2, who had spoken and confirmed that Ex.A1 was executed and that he was present at the time of execution of the same. PW2 also stated that plaintiff had paid an amount of Rs.4,00,000/- to the defendant at the time of execution of Ex.A1. PW2 also stated that plaintiff had paid an amount of Rs.4,00,000/- to the defendant at the time of execution of Ex.A1. However, PW2 stated that he was not aware of schedule of property and also the contents of Ex.A1 which has been pointed out by the trial Court while giving findings against the plaintiff and thereby holding that the evidence of PW2 is not helpful nor can improve the case of the plaintiff/PW1. 15. However, it is revealed from the documents, particularly Ex.A1 as well as Ex.B1 that DW1 had in fact entered into the agreement of sale dated 11.02.2005 with the plaintiff. Further, the very claim made by the defendant that the plaintiff forged Ex.A1 document and that he had produced Ex.B1 (true copy of Ex.A1) to show that the plaintiff had interpolated the contents of Ex.A1, would by itself establish that the defendant had in fact, executed the agreement of sale under Ex.A1 in favour of the plaintiff. 16. It is also to be noted that despite taking a specific stand by way of written statement by the defendant that Ex.A1 agreement of sale was forged by the plaintiff and that he never signed or executed the said document, he did not explain the reason for not taking any steps for sending the said document for its examination to the forensic science laboratory for obtaining an expert opinion. 17. Therefore, it is clear that the defendant intended to take advantage of the legal enforceability of Ex.A1 and thereby purposefully denied execution of Ex.A1. In fact, DW1 during the course of cross – examination, admitted both the material facts namely that he did not execute the Ex.A1, agreement of sale and at the same time, asserted that the said Agreement cannot be enforced. These two statements being inconsistent with each other are mutually destructive and inherently contradictory. Such self-contradictory testimony of DW1 materially weakens his credibility and renders his version wholly unreliable. Thus, issue No.1 can be answered in favour of the plaintiff. On issue No.2 (Regarding enforceability of Ex.A1) 18. The plaintiff filed the suit seeking specific performance of agreement of sale dated 11.02.2005 (Ex.A1) in respect of the suit schedule property but the crucial question is whether the said document under Ex.A1 can be enforced under law. Thus, issue No.1 can be answered in favour of the plaintiff. On issue No.2 (Regarding enforceability of Ex.A1) 18. The plaintiff filed the suit seeking specific performance of agreement of sale dated 11.02.2005 (Ex.A1) in respect of the suit schedule property but the crucial question is whether the said document under Ex.A1 can be enforced under law. The reason for analyzing this question is that the defendant specifically stated in his written statement that the agreement of sale cannot be enforced under law for the specific reason that the recitals as incorporated under the agreement of sale under Ex.A1 itself prove that the defendant himself is not the owner of the suit schedule property, which is recorded in the said agreement of sale itself as it is stated therein that the defendant himself had obtained an agreement of sale dated 11.10.2004 from K. Sriramulu and N. Jagannadham, who had in turn also obtained agreement of sale dated 16.09.2004 from the original owner of the suit schedule property namely, Banoth Touriya. Thus, it is clear that neither the defendant nor his vendors are the owners of the property to deal with the same in order to offer the same to any third party, in the present case, to the plaintiff. 19. It is settled law that agreement of sale in respect of any immovable property does not convey title in favour of the purchaser under the agreement. In view of Section 54 of the Transfer of Property Act, 1882, an agreement of sale does not create interest in the property. The only mode by which an immovable property worth more than Rs.100/- can be sold is by a sale deed duly registered in accordance with the Indian Registration Act, 1908. Section 54 of the Transfer of Property Act, 1882 categorically provides that a contract for sale of immovable property does not by itself create any interest or charge on such property. 20. This legal position has been laid down by the Honourable Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and others , [ (2012) 1 SCC 656 ] , wherein it was held that unregistered agreement of sale, even if coupled with possession do not convey title or create any interest in the immovable property. 20. This legal position has been laid down by the Honourable Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and others , [ (2012) 1 SCC 656 ] , wherein it was held that unregistered agreement of sale, even if coupled with possession do not convey title or create any interest in the immovable property. It was also further clarified that such documents are insufficient to complete the sale unless duly registered and followed by proper conveyance. The relevant paragraphs are extracted hereunder: “16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam [ (1977) 3 SCC 247 ] observed: (SCC pp. 254-55, paras 32-33 & 37) “32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra [ AIR 1967 SC 744 : (1967) 1 SCR 293 ] .) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the SPECIFIC RELIEF ACT , 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein. 33. In India, the word ‘transfer’ is defined with reference to the word ‘convey’. … The word ‘conveys’ in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership. * * * 37. … that only on execution of conveyance, ownership passes from one party to another….” 17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [ (2004) 8 SCC 614 ] this Court held: (SCC p. 619, para 10) “10. Protection provided under Section 53 -A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. Protection provided under Section 53 -A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party.” 18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred. 19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53 -A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter.” 21. There cannot be any dispute on the principle that agreement of sale is not a title and that title or ownership of immovable property can only be conveyed by way of registered sale deed. There cannot be any dispute on the principle that agreement of sale is not a title and that title or ownership of immovable property can only be conveyed by way of registered sale deed. The Honourable Supreme Court in a recent judgment in Vinod Infra Developers Limited v. Mahaveer Lunia and others , [2025 SCC Online SC 1208] while referring to various judgments rendered by the Honourable Supreme particularly in Cosmos Cooperative Bank Limited v. Central Bank of India , [2025 SCC Online 352] wherein it was held that the agreement of sale is not a conveyance and it is not a document of title or deed of transfer of property and does not convey any ownership, right or title, reaffirms the fundamental legal principle that immovable property can only be transferred through a registered conveyance deed. The agreement of sale whether registered or unregistered even coupled with possession or the power of attorney, cannot substitute the sale deed. Therefore, executing an agreement of sale is not sufficient to obtain ownership. The transaction must culminate into a registered sale deed to be legally enforceable. A sale deed is the final legally binding instrument that effects the transfer of title. It must be duly executed, stamped and registered under the Registration Act, 1908. A registered sale deed is conclusive proof of title or ownership for all purposes. Moreover, in M.S. Ananthamurthy v. J. Manjula , [ 2025 INSC 273 ] , it was held by the Honourable Supreme Court that an unregistered agreement to sell does not and cannot by itself create or transfer any right, title, or interest in immovable property. 22. In that view of the matter we are of the opinion that the plaintiff is not entitled to seek specific performance of agreement of sale under Ex.A1 against the defendant particularly seeking to execute a registered sale deed in respect of suit schedule property as the defendant himself is an agreement holder of the suit schedule property from third parties namely K. Sriramulu and N. Jagannadham, who are also not the owners of the property. Since the defendant cannot be treated as owner of the property, which is also evidenced by Ex.A1, the plaintiff cannot enforce the said agreement of sale as against the defendant for execution of registered sale deed in respect of suit schedule property. On issue No.3 (Readiness & Willingness): 23. Since the defendant cannot be treated as owner of the property, which is also evidenced by Ex.A1, the plaintiff cannot enforce the said agreement of sale as against the defendant for execution of registered sale deed in respect of suit schedule property. On issue No.3 (Readiness & Willingness): 23. It is one of the contentions of the defendant that plaintiff never expressed his readiness and willingness and that plaintiff was never ready and willing to perform his part of contract. On the other hand, the learned counsel for the plaintiff contended that the plaintiff was always ready and willing to perform his part of contract particularly to pay balance sale consideration and obtain registered sale deed. To prove his readiness and willingness, the plaintiff produced Ex.A2 telegraph receipt to express his intention of obtaining registered sale deed by paying balance sale consideration. The trial Court recorded a finding that Ex.A2 did not show as to for which purpose the notice was given and what are the contents therein and that mere receipt of telegraph notice cannot be considered that there exists legal notice. Here we have to examine as to whether issuance of notice before filing suit is mandatory or not. 24. This Court in M. Rangaiah v. T.V. Satyanarayana Rao and another , [2009 (6) ALT 7069] categorically held that the suit without issuing any legal notice demanding performance is not maintainable. Similarly in P. Chiranjeeva Rao v. Busi Koteswar Rao , [ 2011 (6) ALT 261 ] it was held that issuance of a notice is a condition precedent for seeking specific performance. However, it is settled principle that for the purpose of having a valid cause of action and right to sue, notice, is a requirement which cautions the other side that in the event of his failure, the legal remedies will be sought for. But in certain circumstances, the non-issuance of notice may be not vital or fatal and the same would depend upon the facts and circumstances of each case. In the present case though PW1 claimed that he had issued telegraphic notice under Ex.A2, during the course of cross examination he had categorically stated that no notice was issued before filing of the suit. This nullifies the claim of the plaintiff in Ex.A2. 25. In the present case though PW1 claimed that he had issued telegraphic notice under Ex.A2, during the course of cross examination he had categorically stated that no notice was issued before filing of the suit. This nullifies the claim of the plaintiff in Ex.A2. 25. In C.S.Venkatesh v. A.S.C. Murthy , [ (2020) 3 SCC 280 ] , the Honourable Supreme Court on consideration of various decisions culled out what is implied by the words “ready and willing”. The relevant paragraph is extracted hereunder: “The words ‘ready and willing’ imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.” 26. It is to be noted that to succeed in a suit for specific performance, the requisite pleadings and proof that are required of a plaintiff to succeed in a suit for specific performance are succinctly captured in a recent decision of the Honourable Supreme Court in U.N. Krishnamurthy v. A.M. Krishnamurthy , [ (2023) 11 SCC 775 ] . The relevant paragraph is extracted hereunder: “To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. The relevant paragraph is extracted hereunder: “To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.” 27. What follows from the above noted decision, is that the plaintiff should not only always be ready and willing but also aver and prove the same in the pleadings. A perusal of the plaint proves that such readiness and willingness throughout, is absent. Therefore, we hold that the plaintiff failed to establish his readiness and willingness to perform his part of contract. On Issue No.4 (Non-Joinder of necessary parties): 28. In equity as well as in law, the contract constitutes rights and regulates liabilities of the parties. The other aspect involved in this case is that on the issue No.4 framed by the trial Court under the impugned judgment is that the suit is bad for non -joinder of necessary parties. While dealing with the said issue, the trial Court held that since the defendant is not the owner of the suit schedule property, if at all plaintiff wishes to seek specific performance, it is necessary on the part of the plaintiff to add the original owner namely, Banoth Tauriya and subsequent agreement holders to enforce the right. The non- joinder of these parties also makes the suit not maintainable. 29. The non- joinder of these parties also makes the suit not maintainable. 29. The learned counsel for the plaintiff submits that the finding of the trial court regarding non-joinder of necessary parties is unsustainable, as in a suit for specific performance it is sufficient to implead only the executants of the agreement, and neither the original owner nor subsequent agreement holders are necessary parties. On the other hand, the learned counsel for the defendant contends that the suit is not maintainable on account of non-joinder of necessary parties i.e., the original owner Banoth Tauriya and agreement holders from the original owners (vendors of defendant). 30. In Kasturi v. Iyyamperumal , [ (2005) 6 SCC 733 ] the Honourable Supreme Court observed that in a suit for specific performance, only the parties to contract or any legal representative of a party to the contract or a transferee from a party to the contract are necessary parties. Further, the Honourable Supreme Court in Singh Bhatia v. Kiran Kant Robinson and others , [ AIR 2019 SC 3577 ] , Baluram v. P.Chellathangam and others , [ (2015) 13 SCC 579 ] and Mumbai International Airport Pvt. Ltd v. Regency Convention Centre and Hotels and others , [ (2010) 7 SCC 417 ] has reaffirmed the ratio laid down in Kasturi's case (supra). 31. Even otherwise, there is no privity of contract between the plaintiff and the agreement holders namely K. Sriramulu and N. Jagannadham, who had in turn obtained agreement of sale from the original owner Banoth Tauriya and with that of the original owner Banoth Tauriya. Thus, the agreement of sale executed by the defendant in favour of the plaintiff is not binding on such third parties particularly the original owner and his agreement holders (who had in turn executed agreement in favour of defendant) who are no way concerned with transaction between the plaintiff and the defendant. Moreover, the defendant is not empowered in any manner under the agreement of sale dated 11.10.2004 which was obtained by him from K. Sriramulu and N. Jagannadham to deal with the property or to execute or create third party rights over the suit schedule property. When it is the case of the defendant himself that he is not the owner of the suit schedule property, he could not have ventured to execute any such agreement of sale in favour of the plaintiff. When it is the case of the defendant himself that he is not the owner of the suit schedule property, he could not have ventured to execute any such agreement of sale in favour of the plaintiff. In any case, in the absence of any such power or authorisation from the original owner and his subsequent purchasers in favour of the defendant, to deal with the property, the agreement of sale under Ex.A1, which is between the plaintiff and defendant, cannot bind the third parties i.e., original owner and his agreement holders. On the other hand, it is to be seen that the conditions in agreement of sale under Ex.A1 also specifically obligates the defendant to obtain registered sale deed from the original owner namely Banoth Tauriya, in favour of the defendant before the defendant executes registered sale deed in favour of the plaintiff. In such circumstances, we do not agree with the findings recorded by the trial Court that the original owner and his subsequent agreement holders are to be added to the suit filed by the plaintiff and that the suit is bad for non-joinder of necessary parties. Thus, we feel that original owner and agreement holders are not the proper and necessary parties to the present suit. 32. As per Section 19 of the SPECIFIC RELIEF ACT , specific performance of a contract may be enforced against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. 33. In view of the above discussion and considering the principle laid down in the above said decisions, it can be held that the previous vendors of the defendant are not proper and necessary parties in adjudicating the dispute between the plaintiff and defendant so far as the relief of specific performance of the agreement of sale and execution of sale deed in respect of the suit schedule property is concerned. On issue No.5 (Alternative Relief of Refund) 34. It is contended by the learned counsel for the plaintiff that the trial Court committed an error in not granting the alternate relief of refund as it was found that the specific performance was not possible in view of the admitted fact that defendant himself had no title nor he could transfer the suit schedule property. 35. It is contended by the learned counsel for the plaintiff that the trial Court committed an error in not granting the alternate relief of refund as it was found that the specific performance was not possible in view of the admitted fact that defendant himself had no title nor he could transfer the suit schedule property. 35. Section 22 of the SPECIFIC RELIEF ACT , 1963, empowers courts to grant additional reliefs in suits for specific performance of contracts related to immovable property. Specifically, it allows a plaintiff to seek possession, partition, or a refund of earnest money if the claim for specific performance is denied. This section is crucial as it broadens the scope of relief available to those seeking specific performance of contracts. 36. It is the case of the plaintiff that under Ex.A1, the plaintiff had paid Rs.4,00,000/- towards advance sale consideration on 11.02.2005 and immediately thereafter on 13.02.2005 the plaintiff paid further sum of Rs.20,000/- to the defendant in the presence of PW3 and another. The trial Court found fault with the plaintiff that since the plaintiff did not obtain any separate stamp receipt in token of payment of such amount of Rs.4,00,000/-, it creates doubt as to whether really amount was paid. PW2, who is one of the attesting witnesses of Ex.A1 stated that the plaintiff had paid Rs.4,00,000/- to the defendant. Further PW3, who is also one of the attesting witnesses of the endorsement made by the defendant on Ex.A1 for receiving Rs.20,000/- from the plaintiff towards further sale consideration, also specifically stated that the plaintiff paid such an amount to the defendant in his presence. Even under Ex.A1, the defendant acknowledged receipt of Rs.4,00,000/- towards advance sale consideration in-as-much as the defendant also agreed to refund such amount in the event of failure to comply with the terms and conditions on his part i.e., if the defendant fails to obtain NOC, carries out measurement of land or obtains registered sale deed from the original owner, and the defendant agreed to refund the entire amount along with interest @ 24% per annum. It is clear from the conduct of the defendant throughout that the defendant has taken contradictory stands, so also the evidence let in by the defendant proves and establishes his conduct in denying the claim made by the plaintiff seeking alternative relief of refund. It is clear from the conduct of the defendant throughout that the defendant has taken contradictory stands, so also the evidence let in by the defendant proves and establishes his conduct in denying the claim made by the plaintiff seeking alternative relief of refund. The trial Court after discussing on various issues also categorically found that entire endeavour of the plaintiff clearly show that he has more interest in seeking refund of amount. 37. An acknowledgment of payment of advance under the Agreement of Sale constitutes valid and admissible evidence of the transaction and serves as legal proof of such payment. Once such acknowledgment is produced, the burden shifts on the contesting party to disprove or rebut the same. In the present case, nothing substantial has been elicited from the cross-examination of PWs 2 and 3 to shake their testimony or to create any dent in the Plaintiff’s version particularly with regard to payment of advance sale consideration by the plaintiff to the defendant. On the contrary, their depositions remain consistent and credible in that regard, thereby reinforcing the Plaintiff’s case. The absence of any effective cross-examination on material aspects is of considerable significance, as it renders the acknowledgment and the oral evidence adduced by the plaintiff is unimpeached and reliable. 38. Thus, the plaintiff has proved and established that he had paid advance sale consideration of Rs.4,20,000/- to the defendant to which he is entitled for refund along with interest. On issue No.6 (Entitlement of specific performance) 39. It is settled law that remedy for specific performance is an equitable remedy and it is the discretion of the Court, which discretion requires exercise according to the settled principles of law and not arbitrarily as adumbrated under Section 20 of the SPECIFIC RELIEF ACT , 1963. Under the said Section the court is not bound to grant relief merely because there is a valid agreement of sale. In Kamal Kumar v. Premlata Joshi , [ (2019) 3 SCC 704 ] the Honourable Supreme Court observed as under: “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are: 7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; 7.2. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are: 7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; 7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; 7.3Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; 7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and 7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. 8. In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the SPECIFIC RELIEF ACT , 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.” 40. In the present case though it is proved that the defendant had executed agreement of sale in favour of the plaintiff, for the reasons enumerated above i.e., since the defendant himself is not the owner of the property, the plaintiff is not entitled to the equitable relief of specific performance, particularly for execution of registered sale deed in respect of suit schedule property. Therefore, the refusal of relief of specific performance by the trial court is proper and sustainable. VIII. CONCLUSION 41. Therefore, the refusal of relief of specific performance by the trial court is proper and sustainable. VIII. CONCLUSION 41. For the reasons stated above: (a) The plaintiff is not entitled to the equitable relief of specific performance of the Agreement of Sale dated 11.02.2005 (Ex.A1), as the defendant himself is an agreement-holder without title and cannot be required to execute a registered sale deed of which he cannot be the lawful transferor; (b) The plaintiff failed to establish continuous readiness and willingness to perform his part of the contract in the manner required under the SPECIFIC RELIEF ACT and relevant authorities; (c) The plaintiff has, however, proved payment of advance sale consideration amounting to Rs.4,20,000/- (Rs.4,00,000 + Rs.20,000) as evidenced by Ex.A1 and corroborated by PWs 2 and 3. In view of Section 22 of the SPECIFIC RELIEF ACT and the evidence on record, the plaintiff is entitled for refund of the advance sale consideration. IX. RESULT 42. In the result, we pass the following order: (i) The appeal is partly allowed. The decree of the Trial Court dismissing the plaintiff’s suit for specific performance is affirmed. (ii) The plaintiff shall recover from the defendant Rs.4,20,000/- (Rupees Four Lakhs Twenty Thousand only) being the advance sale consideration, together with interest at 9% per annum from 11.02.2005 (the date of the Agreement) till the date of filing of the suit and 6% from the date of filing of the suit till realization. (iii) All other claims in this appeal are dismissed. (iv) There shall be no order as to costs. (v) Pending miscellaneous applications, if any, stand closed.