SA/1156/2009 of Kurakula Savitri Vs Kurakula Veera Raghavulu on 31 December 2009

JUDGMENT:

The unsuccessful plaintiff in the Courts below filed this secondappeal against the judgment and decree of the learned Senior CivilJudge, Pithapuram dated 07-08-2009 dismissing A.S No. 17 of 2006and confirming the judgment and decree dated 26-07-2006 passed by the learned Junior Civil Judge, Pithapuramdismissing O.S No. 157 of 1997 filed for specific performance ofagreement of sale dated 24-07-1981 and alternative relief for theamount of Rs.20,000/- and also for consequential injunction.

The plaintiff is the wife of the 2[nd] defendant and her father-in-law late Kurakula Venkatrao was the owner of the plaint scheduleproperty which is self-acquired property and Ramayamma was thewife of Venkatrao. Defendant Nos. 1 to 3 are the sons of Venkatraoand Ramayamma. Defendant Nos.4 to 6 are the daughters ofVenkatrao. He entered into an agreement of sale with her daughter-in-law, the plaintiff on 24-07-1981 agreeing to sell Ac.1.20 cents of landin Survey No. 83/3 of Viravada Village and on the said date, she paida sum of Rs.20,000/- and the balance of Rs.4,000/- to be paid at thetime of execution of the sale deed.

Though the plaintiff demanded for execution of the sale deed,Venkatrao postponed the same and after waiting for a long time, sheissued a notice on 29-12-1996 and on receipt of the said notice,Venkatrao gave a reply on 27-01-1997 requesting three months timefor execution of the sale deed as he was suffering from ill health. Since Venkatrao died on 21-02-1997, she filed the suit.

The 1[st] defendant filed a written statement supporting the claimof the plaintiff. Defendant Nos.2 and 5 filed memo adopting the writtenstatement of the 1[st] defendant. Defendant Nos.3 and 4 filed writtenstatement denying the plaint allegations stating that the defendants are the children of Venkatrao. The 2[nd] defendant is not cultivating the landunder lease. It is their case that no possession was delivered to theplaintiff and no maktha is paid to her. Venkatrao has no necessity toexecute the sale deed in favour of her daughter-in-law and if it is a fact,the agreement itself, if any, is time barred and it cannot be enforced. She has no capacity to invest the amount. Registered notice and thereply notice are collusive and they are not aware of the contents of thesaid documents. It is their case that Venkatrao during his life time on30-12-1996 executed a Will in which there is no mention about theagreement of sale. An extent of 20 cents in Makamdiba is in exclusivepossession and enjoyment of the 3[rd] defendant. The said fact wasmentioned in the last Will. One acre of land was in possession andenjoyment of the 6[th] defendant which was inherited to her through hermother Ramayamma and one acre of land was settled in the name ofRayudu Veera Prabha. The 2[nd] defendant is the adopted son ofLovaraju and he has nothing to do with the property or the land of Venkatrao.

The 6[th] defendant filed a written statement stating that theagreement of sale is a fabricated one and that the said agreement isnot signed by G. Suryarao as claimed by the plaintiff. Venkatrao whoacquired the property during his lifetime executed gift deed in favour ofhis wife Ramayamma and she in turn executed a gift deed in herfavour and delivered possession. Since then, she is in possessionand enjoyment of the suit property.

On the respective pleadings, necessary issues were settled fortrial. On behalf of the plaintiff, PWs 1 and 2 were examined andExs.A-1 to A-6 were marked. On behalf of defendant Nos.1, 2 and 5no evidence is adduced. The 3[rd] defendant was examined as DW 1

and two more witnesses were examined as DWs 2 and 3 on hisbehalf. The 6[th] defendant examined herself as DW 4. Exs.B-1 to B-4were marked on behalf of the defendants.

The trial Court after considering the evidence adduced by theparties held on issue Nos.1 and 2 that Ex.A-1 is not true and valid andnot binding on the defendants and it is barred by limitation. It was alsoheld that PW 1 and the 2[nd] defendant in collusion created Ex.A-1which is null and void. The trial Court accordingly dismissed the suit. On appeal being filed, the lower appellate Court confirmed the findingsof fact arrived at by the trial Court.

In a suit filed for specific performance, the burden lies upon theplaintiff to prove the execution of the document and readiness andwillingness to perform the contract through out. The plaintiff examinedherself as PW 1 and also examined one more witness as PW 2. In thecross examination, she admitted that no cash on hand was availablewith her to pay Rs.20,000/- as advance or Rs.4,000/- balance of saleconsideration when she demanded her father-in-law to execute thesale deed. But, she stated that her father advanced a sum ofRs.20,000/- which was paid to her father-in-law and subsequent tothat, she never requested her father to pay the further sum ofRs.4,000/-, which clearly shows that she has no capacity to pay theamount. There is also no whisper that she was ready and willing toperform her part of contract. When the 6[th] defendant contended thatthe land in question is in her possession and enjoyment as per the giftdeed executed by her mother Ramayamma, the plaintiff has notchosen to file any rejoinder. She admitted during her crossexamination that possession was not given to her on the date ofagreement, but it was given to her two or three days subsequent to theagreement. Her evidence was that the property was in possession and enjoyment of Venkatrao by the date of agreement and after that,she has taken possession and thereafter, her husband was inpossession of the property as her tenant, which fact has not beenpleaded in the plaint. The cross examination by defendant Nos.1, 2and 5 reveals that by the time of purchase of the schedule property,Venkatrao was cultivating the land, but it has been deposed by her thather husband was cultivating the land as tenant under Venkatrao.

PW 2 who was examined to prove the agreement clearly statedthat he never witnessed Venkatrao executing the said agreement infavour of the plaintiff nor passing of consideration to Venkatrao by theplaintiff. Since PW 2 in whose presence the agreement is alleged tohave been executed has not supported the plaintiff, the contradictoryevidence of the plaintiff has not been rightly taken into considerationby the trial Court.

The concurrent findings of fact reached by the Courts below onappreciation of evidence do not give rise to any substantial question oflaw. The second appeal is accordingly dismissed.

A. GOPAL REDDY, J