AS/1595/1994 of Daggubati Venkateswarlu Vs Rayapudi Subbamma on 28 December 2012

COMMON JUDGMENT:-

Both these appeals arise out of a common judgment inO.S.Nos.78 of 1981 and 79 of 1981 on the file of the Court ofSubordinate Judge at Chirala.

2. Both the suits were filed for specific performance of contracts ofsale. The suit schedule property is an extent of Acs.4.33 ¾ cents outof Acs.12.67 cents in Sy.No.77 of Karamchedu village. The plaintiff inboth the suits is common.

3. According to the case of the plaintiff, the suit schedule propertyalong with other property was purchased by Madan Mohana SeshagiriRao, R.Narayana Rao, D.Venkata Ramaiah @ Raja Rao and Smt.Yarlagadda Bhuvaneswari from one Yarlagadda Seethamma under aregistered sale deed dated 12.04.1972. It was alleged by the plaintiffthat in the partition between the above four persons, the 1[st] defendantin O.S.No.78 of 1981 by name Raja Rao and the 1[st] defendant inO.S.No.79 of 1981 by name Madan Mohan Seshagiri Rao have got thesuit schedule properties respectively to their shares. It is alleged thatunder two contracts of sale dated 10.05.1978 and 15.05.1978 thedefendants agreed to sell the property for the consideration ofRs.43,500/- each. A sum of Rs.42,000/- and Rs.40,000/- respectivelywas said to have been paid and the balance was agreed to be paidwithin three months and the possession of the property was delivered. The agreements of sale were respectively marked as Exs.A.1 and A.2. The plaintiff has been in possession and enjoyment of the property. But, however in order to defeat the rights of the plaintiff the 1[st]defendant along with the children colluded with others, who have no interest in the property executed sale deeds in favour of defendantNos.9 and 10 to an extent of Acs.2.72 2/3 cents under two differentsale deeds dated 15.07.1981 for a consideration of Rs.40,900/- andRs.42,900/- on 15.07.1981 and 14.07.1981 respectively. Those saledeeds are marked as Exs.B.2 and B.3. According to the plaintiff, thosetransactions are intended to defeat the rights of the plaintiff and they donot convey any title to the 1[st] defendant. The sale transactions aretherefore not valid and consequently, the suits are filed for specificperformance of the contract of sale or in the alternative to refund thesale consideration. The defendants/purchasers have entered into thesuit land by virtue of the orders of the Court and therefore, recovery ofthe possession was also claimed.

4. All the defendants have filed written statements and thesubstance of the contention of the defendants is that the agreements ofsale pleaded by the plaintiff are not true and it was also pleaded thatthe extent of Acs.12.67 cents was partitioned between theshareholders and three brothers have got Acs.8.44 cents only and thesister has got the remaining land. Therefore, each of the brothers havegot only Acs.2.86 cents and consequently, the alleged alienation of thesuit schedule property is improbable. The agreements of sale weredenied and passing of the consideration and delivery of possession isalso disputed. The purchasers under Exs.B.2 and B.3 have claimedthat the property was purchased for a valuable consideration and thatthey have been in possession and enjoyment of the property and theyare bona fide purchasers and consequently, the plaintiff is not entitledfor the relief of specific performance. The alleged possession claimedwith the plaintiff is seriously disputed.

5. On the basis of the above pleadings, necessary issues havebeen framed and common trial has been conducted. On behalf of theplaintiff, PWs.1 to 12 were examined and marked Exs.A.1 to A.20. Onbehalf of the defendants, DWs.1 to 7 were examined and marked Exs.B.1 to B.20. Exs.C.1 and C.2 were also marked.

6. During pendency of the suits, the plaintiff has died and his legalrepresentatives were brought on record. After considering evidenceon record, the learned Subordinate Judge has decreed the suit forspecific performance. Aggrieved by the said judgment, the presentappeals are filed.

7. The points that arise for consideration are:

1) Whether the contract of sale Exs.A.1 and A.2 relied on bythe plaintiff are true, valid and enforceable?the plaintiff are true, valid and enforceable?

2) Whether the plaintiff is entitled for the relief of specificperformance as granted by the Court below?performance as granted by the Court below?

3) Whether the judgment and decree passed by the Courtbelow is legal and sustainable?below is legal and sustainable?

8. POINTS:

Evidently, when the execution of the agreements of sale isdenied by the defendants, the burden is on the plaintiffs to prove thesame. But, in this case, after filing of the suit the plaintiff died as wellas the 1[st] defendant died and their legal representatives have giventhe evidence about the contracts of sale. In order to substantiate thecontract of sale, the scribe of Exs.A.1 and A.2 was examined as PW.1and PW.2 is one of the attestors on Exs.A.1 and A.2, PW.3 was theattestor on Ex.A.2 and PW.10 is another attestor on Ex.A.1. Theirevidence goes to show about the execution of the agreements of saleand also passing of the consideration. In fact, the evidence wassought to be attacked on the same grounds as was in the lower Court. The first objection of the defendants is that PW.1, scribe of theagreement, stated that the agreement was executed at Inkollu villageand he was giving evidence at Inkollu and thereby it falsifies theversion. The lower Court has considered the age of the said witnessand also the fact that he was a Retired Teacher and respectable person and therefore, his confusion with regard to the place is becauseof the age and consequently, it is not a case for discrediting histestimony. An attempt was also made in the lower Court and alsobefore this Court that PW.3 is also a party to a fabricated documentand reliance is placed on Ex.B.1 affidavit, which is said to have beengiven by him long prior to the recording of the evidence, to the effectthat he has signed on a blank white paper on 15.05.1978. This relatesto Ex.A.2 and from this affidavit it is sought to be contested that Ex.A.2is a fabricated one. But, however, when he came to the evidence, shespecifically supported the case of the plaintiff and also denied havinggiven Ex.B.1. In fact, a criminal case was also said to have been filedagainst him. Though it did not materialise, the affidavit is said to bedated 09.04.1986. There is no reason as to why the defendantsshould to seek such an affidavit from PW.3 if really the defendants arenot worries about the agreements. The Court below has also thereforerightly accepted the evidence of PW.3. The evidence of PWs.2 and10, who are also independent witnesses, have clearly established thepassing of the consideration and execution of the agreements of sale. Further-more there is no reason for them to be parties to a forgeddocument in order to benefit the plaintiff.

9. A comment was sought to be made that if really the transaction istrue, there is no reason as to why it should be taken as on a whitepaper instead of taking the contracts on a stamp paper. If really theplaintiff wanted to create a document using of a stamp paper mighthave come under comment and the use of the white paper does not byitself throw any doubt about its genuineness and on the other hand itdoes not lead to any suspicion against the plaintiff.

10. It is also sought to be contended that though three months timewas fixed under the agreement, no effort was made to obtain the saledeed and therefore, the silence for a long time is an indication of thefalsity of the agreement and evidently they were brought into existence having come to know about Exs.B.2 and B.3. It is to be noted that it isnot the contention of the purchasers that the 1[st] defendant in order todefeat their sale transactions has colluded with the plaintiffs and theagreements of sale were brought into existence. In fact, all thedefendants are sailing together and attacking the contract of sale asfabricated one. When substantial portion of consideration was paidand only a minimum amount is payable and possession is said to havebeen delivered, then the delay in obtaining the regular sale deed is noground to discredit the transaction.

11. Further-more, when compared to the sale transactions by thesubsequent purchasers, the consideration mentioned in theagreements of sale is not less and therefore, the value of the propertyis also proper. Therefore, from the above material, I have no hesitationin holding that the trial Court has rightly accepted the evidence ofPWs.1 to 3 and 10 about the execution of the agreements Exs.A.1 andA.2.

12. The truthfulness of the agreements is further fortified by the factthat possession is said to have been delivered under the agreementsand the Court below has accepted the said delivery of possession. Itwas sought to be contended that there is no proof of cultivation or theenjoyment of the property and in fact, it was in 1981 the purchasershave come into possession of the property and consequently, theclaim of possession is not correct. It is to be noted that no cultivationaccounts in favour of the 1[st] defendant after 1978 till the date of filing ofthe suit was filed. It is also not in dispute that the lands are beingcultivated under lift irrigation scheme that being so the evidence ofPWs.4 and 5 assumes importance. According to PW.4, he was thePresident of the Lift Irrigation Scheme at Karamchedu and issuesExs.A.3 to A.7 receipts to the plaintiffs for the years 1978-81. According to him, the survey number is not mentioned in the receipts.

But, however, he clarified saying that except the suit lands, theplaintiffs have no other land for the purpose of lift irrigation atKaramchedu. Therefore, there is no reason to discard Exs.A.3 to A.7,which was accepted by the Court below. PW.5 is the Village Munsif ofKaramchedu village and according to him, Exs.A.8 to A.10 were thecist receipts issued by him to the plaintiff for the land in Sy.No.77. Infact to discredit the testimony of PWs.4 and 5, there is not of muchmaterial and the Court below has rightly accepted the same. Therefore, the delivery of possession under the contract of saleestablishes the genuineness of the transactions and the Court belowhas given cogent and sufficient reasons to accept the case of theplaintiff and I do not think there is any compelling reason to come to adifferent conclusion rather than the trial Court.

13. But, however, it is to be mentioned as to whether the 1[st]defendant has got right to convey the entire extent of the suit scheduleproperty. Evidently, the total extent of the land in Sy.No.77 is Acs.12.87cents and if it is to be divided between four sharers it will come toAcs.3.21 ¾ cents. The 1[st] defendant could not have conveyedAcs.4.33 ¾ cents in the suit. The fact that there was a partitionbetween four members is pleaded by the plaintiffs. But, however, thereis no material to hold that the 1[st] defendant in each suit has got theschedule property. On the other hand, it is the contention of thedefendants that there was a partition between four members and theirsister Bhuvaneswari was given Acs.4.23 cents and each of them havegot only Acs.2.86 cents. Though it is sought to be contended thatBhuvaneswari was given land in other survey numbers, the factremains that she has sold the property to her share under different saledeeds in the same survey number. Added to that, the boundaryrecitals in Exs.A.1 and A.2 clearly goes to show that one of theboundary on the eastern side is the land of Bhuvaneswari. It does notdisclose that there is any separate survey numbers as a boundary.

Consequently, in view of the above circumstances, it can only be heldthat the claim of the plaintiffs that each of the 1[st] defendant has got theextent in the suit schedule property cannot be accepted and the reliefof specific performance has to be confined only to an extent ofAcs.2.86 cents.

14. In view of the above factual aspect, the following decisions reliedon by the learned counsel for the respondents have no application tothe facts of the case.

1) Nandagiri Godavari and another v.KanugantiSudershan[[1]]Sudershan[[1]]

2) Kundrapu Kondadu and others v. Pyla Venkataswamy@ Babu and others[[2]]@ Babu and others[[2]]

3) Kedarisetti Atmaram v. N.Seetharamaraju[[3]]

4) Baddam Prathap Reddy v. Chennadi Jalapathi Reddyand another[[4]].and another[[4]].

15. Accordingly, both the appeals are allowed in part and the decreeof specific performance granted by the Court below is modified and theplaintiffs shall be entitled to a decree for specific performance to anextent of Acs.2.86 cents in each suit. Each party shall bear their owncosts. Miscellaneous Petitions, if any, pending in these appeals shallstand closed.

_______________________________

JUSTICE N.R.L. NAGESWARA RAO

Date: 28.12.2012

INL

[1]2011(6) ALD 6132011(6) ALD 613

[2]2011(5) ALD 4 (DB)2011(5) ALD 4 (DB)

[3]2011(1) ALD 4262011(1) ALD 426

[4]2008(5) ALD 2002008(5) ALD 200