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2025 DIGILAW 292 (AP)

Kandula Surya Kumari v. Guthula Kannababu (died)

2025-02-17

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
Judgment : (VENUTHURUMALLI GOPALA KRISHNA RAO, J.) This second appeal is filed aggrieved against the Judgment and decree dated 13-7-2023 in A.S.No.10 of 2021 on the file of the VIII Additional District and Sessions Judge cum Special Judge for Trial of Offences against Women, Rajamahendravaram, East Godavari District, confirming the Judgment and decree dated 30-12-2020 in O.S.No.698 of 2010 on the file of the I Additional Senior Civil Judge, Rajamahendravaram. 2. The appellants herein are defendants 3 to 5, respondents 1 and 2 are plaintiffs 1 and 2 and respondents 3 and 4 are defendants 1 and 2 in O.S.No.698 of 2010 on the file of I Additional Senior Civil Judge’s Court, Rajamahendravaram. 3. The 1 st plaintiff initiated action in O.S.No.698 of 2010 on the file of the I Additional Senior Civil Judge, Rajamahendravaram, for specific performance of agreement of sale dated 03-5-2010 directing the defendants 1 to 3 to execute a registered sale deed in his favour upon receipt of balance of sale consideration or in the alternative, to pass a decree for a sum of Rs.4,15,213/- together with subsequent interest thereon with a charge on the plaint schedule property and for costs of the suit. During the pendency of the suit, the 1 st plaintiff died and the 2 nd plaintiff was added as legal heir of deceased 1 st plaintiff as per orders in I.A.No.1822 of 2014, dated 16-4-2015 and later, he was declared as major as per orders in I.A.No.1087 of 2019, dated 23-12-2019; So also, the 1 st defendant died and defendants 4 and 5 were added as legal representatives of deceased 1 st defendant as per orders in I.A.No.139 of 2011, dated 26-6-2012 and they were declared as majors as per orders in I.A.No.1088 of 2019, dated 23-12-2019. 4. The learned I Additional Senior Civil Judge, Rajamahendravaram, decreed the suit with costs in favour of the 2 nd plaintiff for specific performance of agreement of sale dated 03-5-2010 directing the defendants 2 to 4 to execute a registered sale deed in favour of the 2 nd plaintiff upon receipt of balance of sale consideration on or before 02-02-2021 by delivering the vacant possession of the schedule property to the 2 nd plaintiff within three months, failing which the 2 nd plaintiff is at liberty to get execute a registered sale deed in his favour in due course of law. Felt aggrieved of the same, the unsuccessful defendants 3 to 5 in the above said suit filed the aforesaid appeal before the first appellate Court. The learned VIII Additional District and Sessions Judge cum Special Judge for Trial of Offences against Women, Rajamahendravaram, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendants 3 to 5/appellants approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the original suit. 6. The case of plaintiffs, in brief, as set out in the plaint averments in O.S.No.698 of 2010, is as follows: It is pleaded that the defendants 1 and 2 having agreed to sell the plaint schedule property to the (first) plaintiff for a sum of Rs.7,80,000/-, received a sum of Rs.3,80,000/- as advance out of the sale consideration on 03-5-2010 and executed an agreement of sale in favour of the plaintiff. The time for performance of terms was fixed as four months. Though the plaintiff is ready and willing to perform his part of contract within stipulated time with balance of sale consideration by requesting the defendants 1 and 2, they postponed the same, under an agreement of sale, dated 03-5-2010, they executed a registered sale deed dated 29-7-2010 in favour of the 3 rd defendant. The defendants 1 and 2 executed a nominal sale deed in favour of the 3 rd defendant, as such, it is not valid and it is also not supported by consideration. 7. The defendants 1 to 3 filed written statements denying the contents of plaint averments and further contended as follows: The defendants 1 and 2 executed a registered sale deed dated 29-7-2010 in favour of the 3 rd defendant for a valuable consideration. It is contended that they never executed agreement of sale dated 03-5-2010 in favour of plaintiffs and never received any advance amount as consideration thereon. The 1 st defendant done lorry contract business in Orissa State and sustained loss. It is contended that they never executed agreement of sale dated 03-5-2010 in favour of plaintiffs and never received any advance amount as consideration thereon. The 1 st defendant done lorry contract business in Orissa State and sustained loss. When the financiers and their men high-handedly cause life threat to the defendants 1 and 2 and they obtained their signatures on unfilled Non-Judicial stamps and on blank promotes, the plaintiff being one of the henchmen of the financiers, in collusion got fabricated the agreement for sale and filed the suit through the plaintiff. The plaintiff has no capacity to purchase the plaint schedule property. The agreement for sale is brought up in collusion with the defendants 1 and 2 to defeat the rights of the 3 rd defendant. 8. On the basis of above pleadings, the learned I Additional Senior Civil Judge, Rajamahendravaram, framed the following issues for trial: (1) Whether the agreement of sale dated 03-5-2010 said to have been executed by defendant Nos.1 and 2 in favour of plaintiff is true and correct ? (2) Whether the registered sale deed dated 29-7-2010 executed by defendant Nos.1 and 2 in favour of defendant No.3 is true, valid and binding on the plaintiff ? (3) Whether the claim of plaintiff is binding on defendant Nos.4 and 5 who are the L.Rs of defendant No.1 ? (4) Whether the plaintiff is entitled for specific performance of agreement of sale or in alternative for refund of payment of amount made by plaintiff towards part payment ? and (5) To what relief ? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.Ws.1 to 5 were examined and Exs.A-1 to A-5 were marked. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-8 were marked. 10. The learned I Additional Senior Civil Judge, Rajamahendravaram, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit without costs. Felt aggrieved thereby, the unsuccessful defendants 3 to 5 filed the appeal suit in A.S.No.10 of 2021 before the learned VIII Additional District and Sessions Judge cum Special Judge for Trial of Offences against Women, Rajamahendravaram, wherein, the following points came up for consideration. Felt aggrieved thereby, the unsuccessful defendants 3 to 5 filed the appeal suit in A.S.No.10 of 2021 before the learned VIII Additional District and Sessions Judge cum Special Judge for Trial of Offences against Women, Rajamahendravaram, wherein, the following points came up for consideration. (1) Whether the decree and judgment passed by the learned Trial Judge in O.S.No.698/2010 dated 30-12-2020 on the file of I Additional Senior Civil Judge, Rajamahendravaram is in accordance with law or interference is required ? and (2) To what relief ? 11. The learned VIII Additional District and Sessions Judge cum Special Judge for Trial of Offences against Women, Rajamahendravaram, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendants 3 to 5/appellants and in favour of the plaintiffs 1 and 2/ respondents 1 and 2 and dismissed the first appeal filed by the defendants 3 to 5. Felt aggrieved of the same, the unsuccessful defendants 3 to 5 in O.S.No.698 of 2010 filed the present second appeal before this Court. 12. After institution of the second appeal by the defendants 3 to 5 in the suit, this Court ordered notice to the respondents before admission and the said notice is served on them. Heard Smt. G. Manasa, learned counsel representing Sri K.R. Srinivas, learned counsel for the appellants/defendants 3 to 5 and Sri P. Rajesh Babu, learned counsel for the 2 nd respondent/ 2 nd 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 Civil Procedure could be admitted only when the appellant satisfies the Court that substantial question of law between the parties arise in the 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 the 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 viz., the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. 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 defendants 3 to 5 having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for them to meet the above principles and satisfy the Court whether there exists any substantial question of law. 15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellants have shown any substantial questions of law. The contention of appellants is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgments and decrees passed by both the Courts below i.e. the trial Court and the first appellate Court. Per contra, the learned counsel for 2 nd respondent would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit and the said finding was confirmed by the learned first appellate Judge and there is no need to interfere with the findings arrived by both the Courts below and the second appeal may be dismissed. 16. The suit is based on Ex.A-1 agreement of sale said to have been executed by the defendants 1 and 2. 16. The suit is based on Ex.A-1 agreement of sale said to have been executed by the defendants 1 and 2. The plaintiff herein has been claiming the relief of specific performance of agreement of sale dated 03-5-2010 and the recitals in Ex.A-1 agreement of sale goes to show that an advance amount of Rs.3,80,000/- was received from the plaintiff by defendants 1 and 2 from out of total sale consideration of Rs.7,80,000/- and four months’ time limit was fixed by both the parties to perform the part of the contract. The contention of the plaintiff is that though the plaintiff is ready and willing to perform his part of the contract within a stipulated time with balance of sale consideration, but the defendants 1 and 2, for the reasons best known to them, did not incline to receive the balance of sale consideration and they intentionally executed a nominal sale deed in favour of the 3 rd defendant, who is their family member. It is not in dispute by both sides that the 1 st defendant is the son of 2 nd defendant and the 1 st defendant is none other than the husband of 3 rd defendant. The contention of appellants is that defendants 1 and 2 executed a registered sale deed on 29-7-2010 in favour of the 3 rd defendant. 17. The legal position in this regard is no more res integra. The law is well settled that grant of decree of specific performance of agreement of sale is not an automatic and it is a discretionary relief, the same is required to be exercised judiciously and reasonably. Admittedly, in the case on hand, a time limit of four months has been fixed to perform the part of the contract by both the parties. The material on record clearly goes to show that within four months of stipulated time, the plaintiff got issued legal notices to the defendants 1 and 2 and the said notices were returned with postal endorsements. It is undisputed by the appellants that the defendants 1 and 2 executed a registered sale deed dated 29-7-2010 in favour of the 3 rd defendant, who is none other their family member. As noticed supra, the 1 st defendant is the son of 2 nd defendant and 1 st defendant is the husband of 3 rd defendant. 18. It is undisputed by the appellants that the defendants 1 and 2 executed a registered sale deed dated 29-7-2010 in favour of the 3 rd defendant, who is none other their family member. As noticed supra, the 1 st defendant is the son of 2 nd defendant and 1 st defendant is the husband of 3 rd defendant. 18. The appellants herein are disputing Ex.A-1 agreement of sale. In order to discharge their burden, the plaintiffs have examined two attestors in Ex.A-1 agreement of sale as P.Ws.3 and 4 and the scribe of Ex.A-1 agreement of sale was examined as P.W.5. The evidence of P.Ws.3 to 5 proves about the payment of advance sale consideration of Rs.3,80,000/- under Ex.A-1 agreement of sale to the defendants 1 and 2 by the plaintiff. Though the learned counsel for defendants cross-examined P.Ws.3 to 5, nothing was elicited from them to discredit the testimony of P.Ws.3 to 5. To disprove Ex.A-1 agreement of sale, except bald statement that Ex.A-1 agreement of sale is a fabricated document, nothing was produced by the appellants before both the Courts below. No evidence was placed by the appellants to show that Ex.A-1 is not a genuine document and it was created by the plaintiff. The plaintiff proved Ex.A-1 agreement of sale through P.Ws.3 to 5. Ex.A-1 agreement of sale clearly goes to show that the parties fixed a time limit of four months for performing the part of contract of both the parties. The law is well settled that in a case of immovable properties, when parties fixed some time limit to perform the part of the contract, the said time limit cannot be ignored. The question whether time is an essence of contract with reference to the performance of the contract, what generally may arise for consideration either with reference to contract as a whole or with reference to a particular item or condition of the contract which is breached. In a contract of sale of immovable property, if time is specified for payment of sale price but not regard to the execution of sale deed, time will become essence of contract only with reference to the payment of sale price but not regard to the execution of sale deed. In a contract of sale of immovable property, if time is specified for payment of sale price but not regard to the execution of sale deed, time will become essence of contract only with reference to the payment of sale price but not regard to the execution of sale deed. Normally, in regard to contract relating to sale of immovable property, though time is not an essence of contract, but when parties have fixed some time limit to perform the part of the contract, that time limit cannot be ignored. Admittedly, in the case on hand, within four months from the date of Ex.A-1 agreement of sale, the plaintiffs have issued a legal notice under Ex.A-2 dated 28-8-2010, but the said registered notices were got returned by the defendants 1 to 3. The material on record further reveals that the defendants 1 and 2, to defeat the rights of the plaintiff in Ex.A-1 agreement of sale, executed a sale deed in favour of their family member i.e. 3 rd defendant. Admittedly, the 1 st defendant is the son of 2 nd defendant and 1 st defendant is the husband of 3 rd defendant. As per the case of both the parties, the defendants 1 and 2 executed a sale deed in favour of the 3 rd defendant within four months from the date of contract. The date of Ex.A-1 agreement of sale is dated 03-5-2010 and the date of alleged sale deed is dated 29-7-2010 i.e., within four months from the date of Ex.A-1 agreement of sale. The learned trial Judge rightly appreciated the entire evidence on record and came to the conclusion that Ex.A-1 agreement of sale is proved and the plaintiff is entitled to the main relief of specific performance of agreement of sale and the learned first appellate Judge also came to the same conclusion and dismissed the appeal filed by the appellants and confirmed the findings given by the learned trial Judge. 19. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the 2 nd plaintiff and against the defendants do not brook interference and that both the Courts below are justified in decreeing the suit of the plaintiffs. 19. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the 2 nd plaintiff and against the defendants do not brook interference and that both the Courts below are justified in decreeing the suit of the plaintiffs. The findings of fact recorded by both the Courts below were based on proper appreciation of 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 a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 20. 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 ] . 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 Civil Procedure Code. 21. In the result, the second appeal is dismissed at the stage of admission, confirming the judgments and decrees of both the Courts below. Pending applications, if any, shall stand closed. Each party do bear their own costs in the second appeal.