CRP/3810/2012 of Mahal Babjan Vs Rangu Dhanalakshmi on 30 December 2013

ORDER:

THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTICivil Revision Petition No.3810 of 2012

The unsuccessful plaintiffs filed this Civil Revision Petition under Article227 of the Constitution of India assailing the orders dated 12.07.2012 of thelearned VII Additional District Judge, Madanapalle made in I.A.No.863 of2011 in O.S.No.45 of 2011 whereby, the learned Additional District Judgehad dismissed the application filed by the plaintiffs requesting the Court toappoint an Advocate Commissioner for locating the schedule property,measuring the same and fixing its boundaries.

2. I have heard the submissions of the learned counsel for both the sides.The introductory facts necessary for consideration, in brief, are asfollows:-‘The plaintiffs filed the suit for specific performance in respect ofSircar Dry, S.No.1002/A2 Ac.2-47 cents paiki, Ac.1-24 cents situate atChinnathippa Samudram (CTM) Revenue Village of Chittoor District. Thedefendants are resisting the said suit. On one hand, the plaintiffs contendedthat they were and are always ready and willing to perform their part of thecontract but the defendants had failed to perform their part. On the otherhand, the defendants inter alia contended that the plaintiffs were never readyand willing to perform their part of the contract and that the plaintiffs have nocapacity to pay the balance of sale consideration. During the pendency of thesaid suit, the defendants first filed the interlocutory application in I.A.No.852of 2011 under Section 16 (c) (i) of the Specific Relief Act requesting the trialCourt to direct the plaintiffs to deposit the balance of sale consideration. Theplaintiff resisted the said application by filing a counter. The said applicationwas allowed by the trial Court, vide orders dated 12.07.2012. A CivilRevision Petition filed against the said orders is also coming along with thepresent revision petition. Be that as it may, the plaintiffs filed the instant application inter alia contending that the extent of land is not Ac.1.24 cents asstated by the defendants and that the extent of land would be about Ac.1.00cents on land and that as per the terms and conditions of the agreement, thedefendants are obliged to have the land measured and the boundaries fixedand that the defendants failed to perform their part of contract in that regard.’

3. Now the question for determination is - ‘whether the facts of the casewarrant appointment of a Commissioner for the purpose mentioned by theplaintiffs? And if so, whether the impugned orders cannot be sustained underfacts and law?

4. (a) The introductory facts necessary for consideration are alreadystated supra. Whether the plaintiffs are guilty of laches or whether thedefendants are guilty of laches; and whether which of the two partiescommitted breach, if any, of the contract; and whether the relief of specificperformance can be granted or not; are all questions which fall fordetermination when the principal issues involved in the suit come up fordetermination after full-fledged trial. This is not the stage to make anyobservation which will have a bearing on the principal issues involved in thesuit.

4. (b) From the contentions of both the sides, it is apparent that there isa dispute about the extent of property actually available on land. The extentmentioned in the agreement of sale is Ac.1.24 cents (= 0.502 hectares).According to the plaintiffs, the extent available on land is about Ac.1.00; and ifthe land is about Ac.0.24 cents actually less in extent, then, there will be adifference in sale price of about Rs.7 lakhs. Therefore, the plaintiffs havetaken a stand that the land has to be localised and measured and theboundaries have to be fixed in the interests of justice. The defendants wouldcontend that the land is described in detail in the schedule and that theboundaries on all the four sides are also specifically mentioned in the

schedule annexed to the plaint and that the plaintiffs had consciously enteredinto the agreement of sale after agreeing for a lump sum sale price and that,therefore, there is no need to consider the request of the plaintiffs and that theplaintiffs are dodging the matter as they have no capacity to pay the balanceof sale consideration. Whether the plaintiffs would be liable to pay the entiresale consideration mentioned in the agreement or whether the plaintiffswould be called upon to pay the sale consideration proportionate to theextent of land actually available on land and what are the equities to beworked out while granting or refusing the equitable relief of either specificperformance or the alternate relief of refund of earnest/advance money areagain questions which fall for determination after full fledged trial. The vitallyimportant aspect which the trial Court had ignored is the relevant recital in theagreement to sell in regard to the requirement of measurements and fixationof boundaries by the time of registration of the sale deed. The said term inTelugu in the agreement is to the following effect: ‘By the time/date ofregistration, the executants of the agreement to sell shall show exactmeasurements and boundaries and then receive the balance saleconsideration and register the sale deed.’ Thus, even as per the agreed termunder the suit agreement to sell, it is the obligation of the executants to havethe property measured and the boundaries fixed. As per the above recital inthe agreement, it appears prima facie that the same is a pre-requisite forreceiving of the balance of sale consideration and the registration of the saledeed. The parties are bound by the terms of the agreement is not in dispute. When the specific term in the agreement makes it requisite to measure theland and fix up the boundaries before the payment of the balance saleconsideration and the registration of the sale deed, the contention of thedefendants contrary to the above said term in the agreement to sell cannot becountenanced. In the light of the facts peculiar to the case, this Court is of thewell-considered view that the facts of the case do warrant appointment of anAdvocate Commissioner for localising the schedule property, measuring the same and fixing its boundaries. Viewed thus, this Court finds that theimpugned order cannot be sustained under facts and in law, and calls forinterference.

5. In the result, the Civil Revision Petition is allowed without costs and theimpugned order dated 12.07.2012 is set aside and the application inI.A.No.863 of 2011 is hereby allowed. The trial Court on receipt of a copy ofthese orders, shall pursuant to the instant orders, take up the saidinterlocutory application and appoint as per practice and procedure anAdvocate Commissioner to make a local inspection of the schedule propertyto locate and measure the same and fix up its boundaries and file a reportafter answering the work memoranda, if any, furnished to him/her by both theparties. Miscellaneous petitions, if any, pending in this revision shall standdismissed.

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M.SEETHARAMA MURTI, J

30[th] DECEMBER 2013RAR