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2025 DIGILAW 860 (AP)

Parasa Bhaskar Rao, (DIED) v. Dokku Govindarajulu

2025-07-14

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree, dated 07.01.2022in A.S.No.165 of 2018, on the file of the IX Additional District & Sessions Judge, Krishna, Machilipatnam (“First Appellate Court” for short), confirming the Judgment and decree, dated 18.07.2018in O.S.No.205 of 2007, on the file of Principal Senior Civil Judge, Machilipatnam (“Trial Court” for short). 2. The 2 nd appellantherein is the2 nd plaintiff and respondent Nos.1 to 7 herein are the defendants in O.S.No.205 of 2007. During the pendency of the suit, the sole plaintiff died and his legal representative was brought on record as 2 nd plaintiff. During the pendency of the first appeal, the 1 st respondent died and his legal representative brought on record as 8 th respondent. 3.The deceased sole plaintiff initiated action in O.S.No.205 of 2007 with a prayer for specific permanence of suit contract directing the defendants to execute a regular registered sale deed in favour of 2 nd plaintiff and for alternative prayer if any reason, the Court is not inclined to grant a decree for specific performance, to grant a decree for refund of Rs.50,000/- together with interest at 12% per annum against the defendants with a charge over the plaint schedule property from the date of contract till the date of suit and for costs of the suit. 4. The trial Court dismissed the suit without costs. Felt aggrieved of the same, the unsuccessful 2 nd plaintiffin the above said suit filed A.S.No.165of 2018 before the First Appellate Court. The First Appellate Court dismissed the appeal confirming the decree and judgment passed by the trial Court. Aggrieved thereby, the unsuccessful 2 nd plaintiffin the above suit 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 plaintiffs, in brief, as set out in the plaint averments in O.S.No.205of 2007, is as follows: On 04.02.1994 the defendants entered into an agreement of sale to sell the plaint schedule property for Rs.4,25,000/- to the 1 st plaintiff and received Rs.50,000/- as advance and agreed to execute registered sale deed on 15.05.1994after receiving balance amount of Rs.3,75,000/-. Later, the defendants did not come forward to execute registered sale deed stating that there was pending tenancy litigation between them and their elder brother D. Edukondalu. On 08.08.2007, the plaintiff got issued a legal notice to the defendants. The defendants got issued a reply notice on 17.08.2007. The 1 st defendant executed gift deed in favour of 3 rd defendant in respect of Ac.0-88 cents. The 4 th defendant executed gift deed in favour of 3 rd defendant in respect of Ac.1-00 cents of land. The 3 rd defendant executed three gift deeds in favour of the defendant Nos.5 to 7. The 3 rd defendant again executed another gift deed in favour of 6 th defendant and that the 1 st plaintiff is constrained to file the suit. 7. The defendant Nos.1 and 4 filed written statement before the trial Court contending that the defendant Nos.1 and 4 are residents of Hyderabad and they never authorized defendant Nos.2 and 3 to enter into agreement of sale with the 1 st plaintiff. The defendant Nos.2 and 3 have no authority to sell the share of the defendant Nos.1 and 4 over the property. The defendant Nos.1 and 4 never received any amount of advance. The agreement of sale, dated 04.02.1994 is not at all binding on them. The defendant Nos.1 and 4 denied other allegations in the plaint. 8. The defendant Nos.2 and 3 filed written statement before the trial Court. The brief averments in the written statement are as follows: The plaint schedule property of an extent of Ac.3-66 cents was given on lease to one D. Edukondalu, who is the brother of the defendants and Edukondalu committed default in payment of rent and they filed tenancy case and Edukondalu filed appeal before the District Court and it went against the defendants and so defendants filed appeal before the High Court and it went in favour of them and then Edukondalu carried the matter before the Supreme Court and it went against Edukondalu in August, 2007. The defendant Nos.2 and 3 executed an agreement of sale, dated 04.02.1994 and the defendant Nos.1 and 4 are nothing to do with the said agreement. There was time stipulated for payment of balance sale consideration and the plaintiff did not pay the said amount within 15.05.1994. The defendant Nos.2 and 3 executed an agreement of sale, dated 04.02.1994 and the defendant Nos.1 and 4 are nothing to do with the said agreement. There was time stipulated for payment of balance sale consideration and the plaintiff did not pay the said amount within 15.05.1994. There was interpolation in the margin of agreement and the defendant Nos.2 and 3 were unaware of the said interpolation. On 04.04.1994 the defendant Nos.2 and 3 sent a legal notice to the plaintiff requesting him to pay balance amount. Subsequently, on 09.06.1994, the defendant Nos.2 and 3 again got issued a legal notice cancelling the contract as plaintiff failed to pay balance amount before 15.05.1994. They further contended that the suit is barred by limitation. 9. The defendant Nos.5 to 7 filed written statement before the trial Court stating that they executed general power of attorney in favour of their father i.e., 3 rd defendant. The property is in the custody of family members. They are in possession of property by virtue of registered gift deeds. They denied the other allegations in the plaint. 10. On the basis of above pleadings, the learned Trial Judge framed the following issues for trial: (1) Whether the defendant Nos.1 and 2 had no right to enter into an agreement of sale, dated 04.02.1994 with the plaintiff in respect of suit schedule property on behalf of the defendant Nos.1 and 4 offering the same for Rs.4,25,000/-? (2) Whether the defendant Nos.2 and 3 took an amount of Rs.50,000/- towards sale consideration of the above said land on behalf of the defendant Nos.1 to 4? (3) Whether the suit agreement of sale was materially altered incorporating a recital for receipt of balance consideration with interest? (4) Whether the defendant Nos.2 and 3 issued notice on 09.06.1994 cancelling the agreement of sale, dated 04.02.1994? (5) Whether the suit claim based on agreement of sale is barred by limitation? (6) Whether the defendant No.4 executed a gift deed in favour of 3 rd defendant on 12.07.2005 for an extent of Ac.1-00 cents of land and whether the 1 st defendant also executed a gift deed in favour of 3 rd defendant on 12.07.2005 for an extent of Ac.0- 88 cents of land and whether subsequently, the 3 rd defendant executed gift deeds on 12.07.2005 and 22.03.2002 in favour of his daughters? (7) Whether the plaintiff is entitled for the relief of specific performance of agreement of sale, dated 04.02.1994? (8) If the plaintiff is not entitled for the relief of specific performance alternative, whether the plaintiff is entitled for Rs.50,000/- with interest at 12% per annum? 11. During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1to P.W.4 were examined and Exs.A.1 to A.13 and Ex.X.1 to Ex.5 were marked. On behalf of the defendant Nos.2 and 3, D.W.1 was examined and Ex.B.1 to Ex.B.4 were marked. The other defendants did not adduce any evidence. 12. The learned trial Judge after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit. Felt aggrieved thereby, the unsuccessful 2 nd plaintiff filed the appeal suit in A.S.No.165 of 2018 before the First Appellate Court, wherein the following points came up for consideration: 1) Whether the 2 nd plaintiffis entitled for specific performance of agreement of sale, dated 04.02.1994 or for recovery of advance amount of Rs.50,000/-? 2) Whether the judgment in O.S.No.205 of 2007, dated 18.07.218 of the learned Principal Senior Civil Judge, Machilipatnam is liable to be set aside? 3) To what relief? 13. The learned First Appellate Judge after hearing the arguments, answered the points, as above, against the 2 nd plaintiff and dismissed the appeal confirming the judgment and decree of the trial Court. Felt aggrieved of the same, the unsuccessful 2 nd plaintiffin O.S.No.205 of 2007 filed the present second appeal before this Court. 14. Heard Sri A.S.C. Bose, learned counsel for the appellants and heard Sri M. Radha Krishna, learned counsel, representing Sri M. Sri Atchyut, learned counsel appearing for the respondents. 15. 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 CPC could be admitted only when the appellant satisfies this Court that the substantial question of law between the parties arise in this case. It is regulated in accordance with law. A second appeal preferred under Section 100 of 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. 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. 16. The 2 nd plaintiff having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law. 17. The 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 appellant have shown any substantial question of law. The contention of the appellant 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 judgment passed by both the Courts below i.e. the trial Court and the first appellate Court. 18. The contention of the appellant 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 judgment passed by both the Courts below i.e. the trial Court and the first appellate Court. 18. The undisputed facts of both the parties are the defendant Nos.2 and 3 on their behalf and on behalf of the defendant Nos.1 and 4 entered into a contract with the 1 st plaintiff and offered to sell the plaint schedule property and the 1 st plaintiff accepted for purchase of an extent of Ac.2-63 cents out of Ac.3-63 cents belongs to defendant Nos.1 to 3. It is undisputed that defendant Nos.2 and 3 executed non-possessory agreement of sale, dated 04.02.1994 for a total consideration of Rs.4,25,000/-, out of which, they have received an amount of Rs.50,000/- from the plaintiff towards advance sale consideration and the remaining balance of sale consideration of Rs.3,75,000/- has to be paid by the plaintiff on or before 15.05.1994. The execution of Ex.A.1 agreement of sale by defendant Nos.2 and 3 is undisputed and it is also not in dispute that an amount of Rs.50,000/- was received from out of Rs.4,25,000/- on the date of agreement of sale under Ex.A.1 by the defendant Nos.2 and 3 and as per the terms of Ex.A.1, the remaining amount of Rs.3,75,000/- has to be paid on or before 15.05.1994, therefore, the time is essence of contract. The fact remains that the plaintiff did not issue any legal notice to the defendants by expressing his readiness and willingness to perform his contractual obligation. On the other hand, before stipulated time of contract, on 04.04.1994, the defendants issued a legal notice to the plaintiff calling upon him to pay the balance of sale consideration on or before 15.05.1994 as stipulated in Ex.A.1 agreement of sale. It is also undisputed that the said notice was received by the plaintiff, but he did not choose to give any reply notice and kept quite. Therefore, it is clear that within the stipulated period as mentioned in Ex.A.1 agreement of sale i.e., on or before 15.05.1994, the remaining balance of sale consideration of Rs.3,75,000/- has not paid by the plaintiff and the plaintiff also did not choose to issue any legal notice for extension of time. Therefore, it is clear that within the stipulated period as mentioned in Ex.A.1 agreement of sale i.e., on or before 15.05.1994, the remaining balance of sale consideration of Rs.3,75,000/- has not paid by the plaintiff and the plaintiff also did not choose to issue any legal notice for extension of time. As stated supra, the time is essence of contract. Furthermore, to discharge their obligation, defendant Nos.2 and 3 issued a legal notice under Ex.B.2, as noticed supra, requesting the plaintiff to pay the remaining balance of sale consideration of Rs.3,75,000/- on or before 15.05.1994, but for the reasons best known to the plaintiff, he remain silent and also not issued any reply. Furthermore, the defendants issued another legal notice on 09.06.1994 by informing the plaintiff about the cancellation of non-possessory agreement of sale and subsequently, the defendant Nos.1 and 4 executed a gift deed in favour of the 3 rd defendant and 3 rd defendant executed a gift deed in favour of his daughters respectively under Ex.A.7 to Ex.A.11. 19. The learned trial Judge came to a conclusion that the suit for specific performance of agreement of sale is barred by limitation, since the plaintiff failed to discharge his contractual obligation i.e., he failed to pay the remaining balance of sale consideration within a stipulated time as mentioned in Ex.A.1 i.e., on or before 15.05.1994. The learned First Appellate Judge also confirmed the finding arrived by the learned Trial Judge. 20. The learned counsel for the respondents would contend that the date fixed for performance of contract is 15.05.1994, therefore, the suit for specific performance of agreement of sale has to be filed by the plaintiff within a period of 3 years from the date of 15.05.1994. The material on record reveals that Ex.A.1, agreement of sale, dated 04.02.1994 is not at all disputed by defendant Nos.2 and 3. It is also not in dispute that an amount of Rs.50,000/- was received by the defendant Nos.2 and 3 from out of Rs.4,25,000/- and it was agreed in between both the parties that the remaining balance of sale consideration of Rs.3,75,000/- has to be paid on or before 15.05.1994 to the defendants. But the fact remains the plaintiff neither choose to give any reply nor extend the time of the contract. But the fact remains the plaintiff neither choose to give any reply nor extend the time of the contract. Admittedly, the suit is filed after lapse of 13 years from the date of 15.05.1994 on which date the plaintiff has to perform his contractual obligation. 21. Article 54 of the Limitation Act says: “Article 54 of the Limitation Act, 1963, pertains to the limitation period for filing a suit for specific performance of a contract. It specifies that such a suit must be filed within three years. The starting point of this limitation period is either "the date fixed for the performance" or, if no such date is fixed, "when the plaintiff has notice that performance is refused". 22. In a case of Ahmadsahab Abdul Mulla (2) (dead) by proposed OLRs. Vs. Bibijan and others , (2009) 5 Supreme Court Cases 462 , the Apex Court held as follows: “The expression “date fixed for the performance” is a crystallized notion. This is clear from the fact that the second part “time from which period begins to run” refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on “when the plaintiff has notice that performance is refused”. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances”. 23. As stated supra, the date fixed for the performance of contract is 15.05.1994 but the fact remains the plaintiff is silent, neither he paid balance of sale consideration nor he issued any reply notice for extension of time to perform his part of obligation before 15.05.1994 and the present suit for specific performance of agreement of sale has been filed after lapse of 13 years from the date fixed by both the parties to perform the contract, therefore, the suit is hopelessly barred by law of limitation. Therefore, I am of the considered view that there is no need to interfere with the finding given by both the Courts below that the suit is hopelessly barred by limitation. 24. Another important circumstance is that the agreement itself is unenforceable. Therefore, I am of the considered view that there is no need to interfere with the finding given by both the Courts below that the suit is hopelessly barred by limitation. 24. Another important circumstance is that the agreement itself is unenforceable. As per the case of both the parties, the defendant Nos.1 to 4 are absolute owners of the plaint schedule property, but the defendant Nos.2 and 3 alone signed on the agreement of sale. The defendant Nos.1 and 4 specifically pleaded in the written statement itself they did not agree to sell the property to the plaintiff and they never authorized defendant Nos.2 and 3 to execute an agreement of sale in favour of the plaintiff. There is absolutely no evidence to show that the defendant Nos.1 and 4 received any part of the sale consideration. Therefore, the agreement of sale executed by one co-sharer for the entire land may not be enforced. 25. The learned counsel for the respondents would contend that under Ex.B.2 in the year 1994 itself Ex.A.1 agreement is cancelled, therefore, without seeking the relief of setting aside the cancellation of agreement, the plaintiff cannot maintain a suit for specific performance of agreement of sale. 26. In a case of Sangita Sinha vs. Bhawana Bhardwaj and others , 2025 LiveLaw (SC) 378 the Apex Court held as follows: “The seller had admittedly issued a letter dated 7th February 2008 cancelling the Agreement to Sell dated 25th January 2008, prior to the filing of the subject suit on 5th May 2008. Even thoughthe demand drafts enclosed with the letter dated 07th February, 2008 were subsequently encashed in July, 2008, yet this Court is of the view that it was incumbent upon the Respondent No.1-buyer to seek a declaratory relief that the said cancellation is bad in law and not binding on parties for the reason that existence of a valid agreement is sine qua non for the grant of relief of specific performance”. In the aforesaid case law, the Apex Court further held as follows: “Since the seller had issued a letter dated 07 th February, 2008 cancelling the agreement to sell prior to the institution of the suit, the same constitutes a jurisdictional fact as till the said cancellation is set aside, the respondent is not entitled to the relief of specific performance”. In the case on hand, since the plaintiff failed to perform his contractual obligation on or before the date fixed for performance of the contract, he also did not choose to issue any legal notice for extension of time and he also did not offer to pay the remaining balance of sale consideration of Rs.3,75,000/-, the defendant Nos.2 and 3 cancelled Ex.A.1 agreement of sale by informing the plaintiff under Ex.B.2 in the year 1994, since the plaintiff failed to discharge his contractual obligation within the stipulated time fixed by the parties. Therefore, Ex.A.1 contract is cancelled by the defendant Nos.2 and 3 by informing the same to the plaintiff, but the fact remains that the plaintiff did not sought any declaratory relief that cancellation of the agreement is bad in law and that in view of the ratio laid in the aforesaid case law, the suit for specific performance of agreement of sale, dated 04.02.1994 is not at all maintainable. 27. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In the case on hand, the plaintiff failed to discharge his contractual obligation i.e., on or before 15.05.1994, but he paid a paltry amount of Rs.50,000/- out of Rs.4,25,000/-. The appellant herein failed to discharge his lawful obligation within a stipulated time as fixed by both the parties in Ex.A.1 agreement of sale, the plaintiff did not choose to give any reply for extension of time, after receipt of legal notice from the defendants, the plaintiff also did not offer to pay the remaining balance of sale consideration and that the defendant Nos.2 and 3 cancelled Ex.A.1 agreement of sale by informing the plaintiff under Ex.B.2 letter. The fact remains after 13 years from the date fixed for performance of the part of contract, the present suit is filed and the suit is hopelessly barred by limitation. The fact remains after 13 years from the date fixed for performance of the part of contract, the present suit is filed and the suit is hopelessly barred by limitation. Since the main suit is barred by limitation, the plaintiff is not entitled for refund of advance sale consideration of Rs.50,000/-. 28. 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 defendants and against the plaintiff do not brook interference and that both the Courts below are justified in dismissing the suit of the plaintiff. 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 and there is no perversity in the judgments of the Courts below. 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. 29. 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. 30. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree passed by both the Courts below. 30. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree passed by both the Courts below. Considering the facts and circumstances of the case, each party do bear their own costs in both the second appeals. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.