AS/965/1989 of Potru Seetharamaiah (Died) per LRs A- 2 to 4 Vs Bachina Venkayamma (Died) per LRs RR- 7 to 11 on 31 December 2014

JUDGMENT:-

The unsuccessful plaintiff is the appellant. On 22-07-1976 he filed thesuit for specific performance of the contract directing therespondents/defendants to execute the sale deed in respect of the plaintschedule property which comprises of Ac.1-66 cents situated atKollavaripalem, Parchur, Chirala and a daba house. Alternatively, theappellant sought for a direction to the 1[st] and 2[nd] respondents/defendants topay Rs.32,000/- with interest from the date of suit till realization as damages.2. The suit is based on the agreement of sale, dated 24-04-1974, said tohave been executed by respondents No.1 and 2/defendants No.1 and 2.

3. The parties shall be referred to as they are arrayed in the original suit. During the pendency of the appeal, the sole appellant/plaintiff died on 01-12-2006 and his daughter-in-law and others are impleaded as appellants No.2, 3and 4. Respondent No.1/1[st] defendant died on 02-07-2011, and the 2[nd]respondent/2[nd] defendant also died on 09-11-2010 and their legalrepresentatives are impleaded as respondents No.7 to 11. The 4[th]defendant/respondent No.4 died on 12-04-1992 and his legal representativesare impleaded as respondents No.12 to 15. The 5[th] defendant/respondentNo.5 also died on 15-06-2011 and his legal representatives are impleaded asrespondents No.16 and 17.

4. The averments of the plaint in brief are as under:- The plaintiff and the defendants No.1 and 4 are residents ofKollavaraipalem village, H/o.Parchur. The 1[st] defendant is the daughter ofone Anche Subbaiah. The 1[st] defendant was married to one VenkataSubbaiah but they were living with Anche Subbaiah. The 1[st] defendant didnot beget any children. Her husband Venkata Subbaiah left the village, wentto his native place and married another woman and had children throughher. The father of the 1[st] defendant Anche Subbaiah died possessed ofconsiderable properties. Since the 1[st] defendant was the only successor tothe estate of Anche Subbaiah, she brought up her nephew the 2[nd] defendant,who is the paternal grandson of the maternal aunt of the 1[st] defendant. Sincehis childhood it is the 1[st] defendant who has been taking care of defendantNo.2.

The 4[th] defendant – Kolla Gangaiah is the husband of the youngersister of the plaintiff. The 1[st] defendant filed O.S.No.6 of 1956 on the file ofSub-Court, Bapatla against the 4[th] defendant on the basis of a will said tohave been executed by him. That suit was decreed in favour of the 1[st]defendant. The 4[th] defendant was liable to pay mesne profits and otheramounts to the 1[st] defendant. For realizing the same, the 1[st] defendant tooksteps for execution and brought ‘3’ items of the properties of the 4[th] defendantfor sale. The 1[st] defendant, with permission of the Court, purchased anextent of Ac.1-66 cents of dry land along with another item. Havingpurchased Ac.1-66 cents of land in Court auction, the 1[st] defendant could notobtain the possession. Therefore, the 2[nd] defendant along with his eldersister’s husband by name Ginjupalli Ankamma approached elders by nameKolla Venkatanarayana, Kolla Venkaiah and Chenchu Ramaiah. Thesepersons have sent for the plaintiff who happened to be the brother-in-law ofthe 4[th] defendant. The 4[th] defendant was also sent for. After discussions, itwas decided that the 4[th] defendant should pay certain money to the 1[st]

defendant and 2[nd] defendant. Since the 4[th] defendant had no amounts, theplaintiff came forward to advance the money so as to help the 4[th] defendantwho is his sister’s husband. After considerable deliberations, settlement wasarrived at.

Conclusion

It was decided that the landed property of Ac.1-66 cents and theappurtenant Ac.0-46 cents of land should not be taken by the 1[st] defendantand must be left to the 4[th] defendant for which the 4[th] defendant should payRs.32,000/- to the 1[st] defendant in full satisfaction of her claims. In the eventof the 4[th] defendant paying Rs.32,000/- to the 1[st] defendant, all the propertiesof the 4[th] defendant shall belong to him, even though they were sold in theCourt auction. However, as D.4 had no money, the plaintiff came forward totake a contract as agreed for Rs.32,000/- on the promise of the 4[th] defendantto adjust the plaintiff at a later date. The plaintiff agreed for the said proposalin view of the interest of his younger sister.

Accordingly, Chenchu Ramaiah wrote a contract of sale on 24-04-1974for all the three items of properties for Rs.32,000/-, which was duly signed bythe 2[nd] defendant and the 1[st] defendant put her thumb impression and it wasattested by Ginjupalli Ankamma, who is the brother-in-law of D.2, and KollaVenkatanarayana. At that time, out of the consideration of Rs.32,000/-, theplaintiff paid Rs.25,000/- to D.1 and D.2 and the balance of Rs.7,000/- wasagreed to be paid by the plaintiff before 05-05-1974, failing which interest at12% per annum was agreed to be paid to the 1[st] defendant.

In the agreement of sale, two items of properties are mentioned. ‘A’schedule comprises of Ac.2-06 cents within the boundaries specified and noother details are mentioned since they were not available. In pursuance tothe said contract, ‘A’ schedule property was delivered to the plaintiff. It isfurther submitted that out of ‘A’ schedule land, even though D.1 haspurchased Ac.1-66 cents in Court auction, possession was not delivered toher. After the compromise, D.4 delivered the possession to D.1. With regardto the remaining Ac.0-46 cents of land, it was agreed that D.1 should obtainpermission from the Court and bid for the said bit of land in the auction and should purchase the same in her name because at the time of contract, therewere some other debts due by the 4[th] defendant to others. In order to obviatefuture complications, the plaintiff took contract for all the ‘3’ items.

‘B’ schedule in the agreement comprises of an old tiled house of D.4. Inpursuance to the contract, the possession of the said house was alsodelivered to the plaintiff. Therefore, the contract dated 24-04-1974 executedby D.1 and D.2 was fully given effect to and none anticipated anycomplications. The plaintiff who entered into possession of that Ac.2-12cents began cultivating the same and had been paying the land revenuesince 1975.

Contrary to the agreement and understanding, D.1 and D.2 did notobtain permission for bidding Ac.0-46 cents of land and in the Court auction,that bit of land was purchased by D.3 who is a close associate of D.1 andD.2. However, in order to get over the Court auction in respect of Ac.0-46cents, D.4 appears to have sold the said land in favour of the 5[th] defendant,who is the son-in-law of D.4 for Rs.7,000/- and therefore the Court sale infavour of D.3 was not finalized. Aggrieved by the said action of D.4 in sellingAc.0-46 cents of land in favour of D.5, the 3[rd] defendant and one Kolla Yesufiled Insolvency Petition No.14 of 1975 on the file of the Subordinate Judge,Chirala for adjudging the 4[th] defendant as insolvent, which is pending. D.3,Kolla Yesu, D.1 and D.2 have colluded together and created a lease ofIndenture Deed for Ac.1-66 cents which D.1 purchased in the Court auction. D.3 filed O.S.No.634 of 1975 on the file of the District Munsif, Chirala andobtained interim injunction orders in respect of Ac.1-66 cents of land. Inpursuance to the said orders, the plaintiff was dispossessed from the saidextent of Ac.1-66 cents of land. The said interim order was made absolute infavour of D.3 and the same was also confirmed by the Subordinate Judge,Chirala.

It is alleged that the 4[th] defendant, who is no doubt the brother-in-law ofthe plaintiff, is a scheming person whereas the plaintiff is an innocent rusticman. The 4[th] defendant kept the plaintiff in dark about the Court sale of Ac.0-46 cents of land. These facts came to the knowledge of the plaintiff only after O.S.No.634 of 1975 was filed. The 4[th] defendant is not having any righteither in the house or in the lands till he pays back Rs.32,000/- to the plaintiff.

For the above reasons, the plaintiff is advised to establish his right onthe foot of the contract dated 24-04-1974 as the defendants No.1 and 2 arenot prepared to execute the sale deed for the property comprised in thatcontract and hence the suit is filed for specific performance of the contract. The plaintiff from the beginning has always been ready and willing to performhis part of the contract but it is the defendants who were postponing the sameon some pretext or the other. D.1 and D.2 are bound to execute the saledeed for the property involved in the suit after receiving the balanceconsideration of Rs.7,000/-. D.3 to D.5 are also arrayed in the suit asnecessary parties.

5. On the other hand, the 1[st] defendant filed a written statement denyingthe allegations mentioned in the plaint. It is averred in the written statementthat the plaintiff is none other than the brother-in-law of 4[th] defendant, who isa chronic litigant; and that the 4[th] defendant attempted to grab her father’sproperty in the year 1956 resulting in filing O.S.No.6 of 1956. The matterwent up to this Court and it was held that 4[th] defendant forged the will andlater in view of the decree passed in O.S.No.6/56, this defendant brought theproperties of the 4[th] defendant to sale i.e., house property and land to anextent of Ac.1.66 cents and she purchased the same in E.P.No.37/72 on 29-03-1973 and the said sale was confirmed on 18-10-1973 and she alsoobtained sale certificate and took delivery of possession through court on 26-09-1974. After taking delivery of possession, she leased out the said Ac.1.66of land to the 3[rd] defendant under registered lease deed. It is further averredin the written statement that 4[th] defendant who lost the suit has beenthreatening this defendant to dispossess him and in order to protect the same,the 3[rd] defendant, being tenant, filed suit O.S.No.634/1975. At that stage, 4[th]defendant created the alleged agreement of contract of sale with theassistance of his relatives and henchmen. The alleged gentlemen’sagreement and the mediation by the elders are concocted and falsely created and other averments mentioned by the plaintiff are all false and the allegedcontract of sale is a rank forgery and thus prayed to dismiss the suit withexemplary costs.

6. The 2[nd] defendant filed a memo adopting the written statement filed bythe 1[st] defendant.

7. The 3[rd] defendant filed a written statement denying the materialallegations made in the plaint. Further, it is averred in his written statementthat he is the cultivating tenant of Ac.1.66 cents of land which is mentioned asitem No.1 of the suit schedule property and the plaintiff is not at all inpossession of the suit property nor remaining extent of Ac.0.46 cents. The 1[st]defendant executed a registered lease deed dated 21-08-1975 and put him inpossession of the property and after raising the crop, the 4[th] defendant andhis brother-in-law i.e., the plaintiff started threatening by way of interferingwith his peaceful possession and enjoyment of the said land and, therefore,he filed suit O.S.No.634 of 1975 to protect his tenancy rights and obtainedinjunction order, which was confirmed in C.M.A.No.6 of 1976. Therefore, thealleged agreement of sale, dated, 24-04-1974, so-called gentleman’sagreement and delivery of possession to the plaintiff are all false.

8. The defendant Nos.4 to 6 remained ex parte.

9. On the basis of the above pleadings, the following issues were settled for trail by the court below:-

1. Whether the suit contract of sale dated 24-04-1974 is true, validand binding on the defendants?and binding on the defendants?

2. Whether the suit is framed is maintainable?

3. Whether the alleged gentlemen’s agreement is true, valid andbinding on the defendants?binding on the defendants?

4. Whether D-5 is a necessary party, if so whether the sale deedin his favour is true, valid and binding?in his favour is true, valid and binding?

5. Whether the suit is bad for misjoinder and cause of action andparties?parties?

6. Whether the suit is barred by Sections 47 and 66 of CPC?

7. Whether the suit is frivolous and vexatious and the defendantsare entitled for exemplary costs under Section 35-A of CPC?are entitled for exemplary costs under Section 35-A of CPC?

8. To what relief?

10. On behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A-1 to A-5were marked. On behalf of the defendants, Dws.1 to 3 were examined andExs.B-1 to B-16 and Ex.X-1 were marked.

11. After having perused the oral and documentary evidence on record bythe impugned Judgment and Decree, dated 31-12-1988, the learnedSubordinate Judge, Chirala, found that the plaintiff is not entitled for thespecific performance of the contract of sale dated 24-04-1974 and ultimatelydismissed the suit with costs besides exemplary costs of Rs.500/- each to thedefendant Nos.1 and 3.

12. Sri B.V.Subbaiah, learned senior Counsel appearing for theappellant/plaintiff submits that the Judgment of the Court below is erroneousand cannot be sustained. Learned trial Court has believed the opinionevidence of DW.3 unauthorised, unlicenced and inexperienced hand-writingexpert as against that of PW.3 who is working in the Bureau of Finger Printsand was fully qualified. Learned senior Counsel further submits that the pleaof D.1 is one of denial and she stoutly denied having affixed her thumbimpression on Ex.A1 which is the suit agreement of sale dated 24-04-1974. In view of that defence, once it is established that the thumb impression onthe suit contract Ex.A1 is proved to be that of D.1, the same has to beaccepted and the contract has to be specifically enforced. The evidence onrecord established that Ex.A1 contains the thumb impression of D.1 which isalso signed by D.2, who was the person brought up by D.1 and was alsolooking after all her affairs, and the Court below has committed serious errorin disbelieving the evidence on record and dismissing the suit.

13. On the other hand, Sri Venugopal, learned senior Counsel appearingfor the contesting respondents/defendants submits that the suit is one forspecific performance of contract which dates-back to about 40 years. It beingan equitable relief and in order to succeed, the plaintiff has to prove that hewas always ready and willing to perform his part of the contract, and that it isthe defendants who were avoiding the same. Learned senior Counsel furthersubmits that such material aspects are not mentioned in the plaint and hence,the plaintiff cannot succeed. Learned senior Counsel further submits thateven in the evidence it is nowhere spoken to by the plaintiff that he was always ready and willing to perform his part of the contract. It is furthersubmitted that the agreement of sale alleged to have been executed by D.1on 24-04-1974 is on a plain paper and is inadequately stamped even thoughit recites that substantial part of consideration was paid and the physicalpossession of the contract schedule property was delivered. LearnedCounsel further submits that the Court below has properly appreciated theoral and documentary evidence on record and has rightly dismissed the suit.

14. The point that arises for consideration is as to whether the plaintiffproved that he is entitled to the relief of specific performance of contract dated 24-04-1974 in respect of the schedule property?

15. After having perused the material on record, the oral and documentaryevidence and having heard the submission of the learned senior Advocates,what can be stated at the outset is that the substantial facts insofar as theschedule property and its ownership is concerned is not disputed. Theparties are either closely or distantly related.

16. One Anche Subbaiah died possessed of sufficient properties leavingbehind Bachina Venkayamma – the 1[st] respondent/defendant as the onlysole surviving legal heir. The 2[nd] defendant – Anche Veeraiah is the paternalgrandson of the maternal aunt of D.1. In addition to this relationship betweenD.1 and D.2, D.2 is the person who was fostered by D.1 since there were nomale issues. D.2 also happens to be the son of the sister of theappellant/plaintiff. The 4[th] defendant – Kolla Gangaiah is the husband ofanother younger sister of the plaintiff. The 5[th] defendant is the son-in-law ofthe 4[th] defendant. The property in question comprises of an extent of Ac.1-66cents of land and an old tiled daba house. It is not in dispute that the originalowner of the said property is the 4[th] defendant. Curiously, both the plaintiffand the contesting defendants brand and accuse the 4[th] defendant of being ascheming person and a Court bird and a person who played fraud on both theplaintiff as well as the 1[st] defendant. D.4 is also the person who has beenconvicted by a criminal Court as long back as on 31-01-1964 by the JudicialSecond Class Magistrate, Chirala, in C.C.No.4 of 1963 for having forged a will purported to have been executed by Anche Subbaiah, the father of D.1. Ex.B.8 is the Judgment of the Criminal Court. Significantly, D.4 remained exparte throughout in these proceedings.

17. There were civil proceedings in between D.1 and D.4 in the matter ofthe properties of Anche Subbaiah, the father of D.1. The plaintiff herein filedO.S.Nos.6 of 1956 and 71 of 1956 against D.1 herein. Ex.B7 is the certifiedcopy of the Judgment of the Principal Subordinate Judge, Bapatla in the saidsuits dated 25-04-1958. The suit was decreed in favour of the plaintiff thereinwho is the 1[st] defendant herein. The learned Subordinate Judge held thatthe plaintiff therein (D.1 herein) is entitled to recover a sum of Rs.3391-8-0towards maktha in respect of the properties over which the title of the plaintifftherein was declared. The Court also directed that the plaintiff therein isentitled to mesne profits and also costs of the suit.

18. Subsequent to the decree of the Subordinate Judge in O.S.Nos.6 of1956 and 71 of 1956, dated 25-04-1958, the 4[th] defendant herein who wasthe defendant in those suits failed to pay the amounts decreed against him. Therefore, D.1 herein took recourse to execution proceedings by filingE.P.No.36 of 1972 in O.S.No.6 of 1956 and E.P.No.230 of 1968 in O.S.No.71of 1956. For realizing the said amounts, the agricultural lands of thedefendant therein (D.4 herein) and daba house were put to sale. With thepermission of the Court, the decree-holder namely the plaintiff in that suit/D.1herein purchased the daba house and land admeasuring Ac.1-66 centsbelonging to D.4 herein. Ex.B1 is the sale certificate, dated 23-04-1970issued by the Principal Subordinate Judge confirming the sale of the dabahouse for Rs.8,300/- in favour of Bachina Venkayamma – 1[st] defendantherein. Ex.B2 is the document evidencing delivery of possession. Ex.B3 isthe certified copy of the order of the Principal Subordinate Judge, Bapatla,dated 18-10-1973 in E.P.No.36 of 1972 certifying that the land admeasuring0.669 hectors was purchased by Bachina Venkayamma/D.1 herein for aconsideration of Rs.8,600/-. Ex.B4 is the proceedings evidencing delivery ofpossession.

19. That is how the 1[st] defendant became the owner and possessor of the land and house which is the subject matter of the suit contract.

20. As against the above documentary evidence, the contention of theplaintiff is that the physical possession of the properties sold in executionproceedings was not delivered to the 1[st] defendant herein and the samecontinued to be with D.4 herein – the Judgment-debtor in those proceedings. Therefore, a panchayat was convened and the elders decided that if theinterest of the 4[th] defendant is to be protected, the 1[st] defendant hereinshould be paid a sum of Rs.32,000/-. Since D.4 was in an impecuniouscondition, the plaintiff being the brother-in-law of D.4 and keeping in view thesecurity and interests of his own sister, came forward to help D.4 andaccordingly the suit contract was executed. According to the plaintiff, it wasagreed that the plaintiff should pay Rs.25,000/- on the said date and thebalance of Rs.7,000/- should be paid on or before 05-05-1974 and obtain aregistered sale deed from D.1 in respect of the land and house which D.1herein purchased in Court auction. The further claim of the plaintiff is that onthe date of Ex.A1 i.e., 24-04-1974 itself the possession of the propertycovenanted was delivered to the plaintiff.

21. In Ex.A1, the land that is transacted admeasures Ac.2-06 cents. Admittedly the 1[st] defendant was the auction purchaser only in respect ofAc.1-66 cents. With regard to remaining land, the sale was not finalised. Therefore it continued to vest with D.4 herein namely the Judgment-debtor inthe previous litigation who however is said to have sold to his son-in-law(D.5). The plaintiff alleges that his brother-in-law (D.4 herein) promised totake care of that property as well but subsequently deceived him by executinga sale deed in respect of Ac.0-46 cents of land in favour of the 5[th] defendantwho is none other than the son-in-law of the 4[th] defendant. However, thecontract that is sought to be enforced in the present suit is only in respect ofAc.1-66 cents and the daba house. The plaintiff is not claiming any reliefinsofar as the remaining Ac.0-46 cents of land, which is part of the suitcontract.

22. The suit as well as the present appeal is contested by only D.1 andD.2. D.3 who was a lessee in respect of the schedule lands and D.4 a villain of peace, and his son-in-law (D.5) remained ex parte. The contestingdefendants specifically denied that there was any mediation, settlement orcompromise between the parties. They never entered into any contract oragreement of sale with the plaintiff. It is D.4 who colluded with the plaintiffand forged and created Ex.A1 in view of the long standing disputes inbetween D.1 and D.4, which dates-back to D.1 filing the suit bearingO.S.No.6 of 1956. D.2 said to be the person being brought up by D.1, is aperson who is looking after the affairs of D.1 who was admittedly a markswoman. Ex.A1 is on a plain paper. It is scribed by PW.2. One of theattesting witnesses to Ex.A1 is Ankamma who happens to be the husband ofthe sister of D.2. Ex.A1 is affixed with a 10 paise revenue stamp. There is asignature on the revenue stamp which is said to be that of D.2. There is athumb impression away from the revenue stamp which is said to be that ofD.1. Exs.B.6, B.9 and B.10 are the documents which admittedly contain thethumb impressions and signatures of D.1 and D.2 herein.

23. The point therefore boils down to the issue as to whether the plaintiffhas proved that (i) Ex.A1 is the document which contains the thumbimpression and signature of D.1 and D.2 and whether the plaintiff is entitledto the relief of specific performance, or (ii) the alternative relief that is soughtfor by the plaintiff for refund of earnest money.

24. Point No.(i):- The plaintiff who examined himself as PW.1, after havingspoken in detail about the events preceding the execution of Ex.A1, deposedthat on the date of Ex.A1 viz., 24-04-1974, PW.2 scribed the document and inthe presence of Kolla Venkatanarayana and G.Ankamma, who happens to besister’s husband of D.2 and thereafter D.1 affixed her thumb impression andthough not necessary D.2 also signed thereon. He denied the suggestionthat Ex.A1 is a forged and fabricated document, brought into existence incollusion with his own brother-in-law/D.4, who had already been found guiltyof having forged the will, purported to have been executed by the father ofD.1, for which act of mischief, he has been convicted and sentenced therefor. On behalf of the plaintiff, the scribe of Ex.A1 is examined as PW.2. He alsoreferred to the negotiations and deposed that he has scribed Ex.A1 on thedate mentioned and in his presence D.1 and D.2 put their thumb impression and signatures. He also identified his own signature on Ex.A1. The abovetwo witnesses are elaborately cross-examined but nothing concrete is elicitedfrom them for disbelieving their claim that Ex.A1 was executed on 24-04-1974by D.1 and D.2.

25. As against the above, the 1[st] defendant examined herself as D.W.1 and2[nd] defendant was examined as D.W.2. Both of them denied the entire caseof plaintiff. It is also in their evidence that they did not execute any agreementof sale nor was there any transaction as such as claimed by the plaintiff. However, when Ex.A1 was confronted to the 1[st] defendant when she was inthe witness-box as D.W.1, she denied her thumb impression and she deniedhaving received Rs.25,000/- on the date of agreement. A specific questionwas put to D.W.1 as to whether “is it not true that you entered into acompromise with Kolla Gangaiah (D.4) and executed Ex.A1? she answeredthat she do not know and wanted this question to be asked to D.2. From this,it is evident that she could not categorically assert the execution of Ex.A1. Itappears that all her property affairs were being taken care of by D.2 who wasa nephew brought up by her, who also happens to be son of another sister ofthe plaintiff (whereas D.4 is the husband of other sister of the plaintiff).

26. D.W.2 in his evidence, after having referred to the previous litigationbetween D.1 and D.4 and the purchase of the schedule property in the Courtauction, denied that there was any compromise in between D.1 and D.4 afterthe Court sale. He also denied that in pursuance to the compromise, D.1 soldthe land and house to the plaintiff. He further stated that he has nothing to dowith the suit schedule properties. He denied having signed on Ex.A1. Headmits that one of the attesting witnesses to Ex.A1 by name GinjupalliAnkamma is the husband of his sister.

27. When PWs.1 and 2 assert that Ex.A1 was executed by D.1 and D.2,both of them as D.Ws.1 and 2, denied the same. Therefore, since the thumbimpression and signature of D.1 and D.2 on Ex.A1 was the contentious issue,during the course of trial, the plaintiff sent the disputed document and theadmitted thumb impressions and signatures of D.1 and D.2 to the ForensicScience Laboratory for examination. These documents were sent to the Bureau along with letter of advise by the Court. PW.3 is a Finger PrintInspector working in the Department and at the relevant point of time and thisjob was entrusted to him by the Department. He deposed that he examinedthe disputed impression on the agreement, dated 24-04-1974, marked asEx.A1, a registered indenture deed and the signature contained on it, dated21-08-1975, the said thumb impression on the second page of the said deedand the specimen thumb impressions of D.1 supplied by the Court, dated 19-07-1979. He further deposed that after his examination, he has furnished theopinion along with the reasons. Exs.A.3, A.4 and A.5 are the documentsmarked through this witness. They are the negatives and the comparisonchart. The opinion given by PW.3 is marked as Ex.A2. It is dated 26-02-1981. It reads as under:- Finger Print Bureau, CID.,Andhra Pradesh, Hyderabad.

C.No.53/U4/FPB/80 Dated: 26-2-1981

-REPORT OF THE FINGER PRINT EXPERT (TESTER SUBINSPECTOR) ON THE EXAMINATION OF THE FINGERIMPRESSIONS CONCERNED IN O.S.NO.33/76 ON THE FILE OF-THE SUBCourt, CHIRALA.

The finger impression marked ‘D’ against the name BachannaVenkayamma on the agreement dated 24-4-1974 is identical with theadmitted finger impression marked ‘A; against the name BachanaVenkayamma on the reverse of the first sheet of the RegisteredIndenture deed dated 21-8-1975 and the specimen Left Thumbimpression marked ‘S’ of Bachana Venkayamma taken on a plain sheetof white paper in open Court on 19-7-1979.

Sd/-

(S.RAMACHANDRA RAO)TESTER SUB-INSPECTOR

28. The finger print expert PW.3 has further deposed as under in hisevidence before the Court:-

“…. Reasons for identity of the finger impression marked ‘D’is with the finger impression marked A and S, in Ex.A3, are asfollows:- Pattern:- Loop type of pattern, Point No.1 is a ridgebifurcation below and left to care with four ridge intervening. PointNo.2 is a ridge termination below and left to point No.1 with noridge intervening. Point No.3 is a ridge bifurcation below point No.2 with three ridges intervening. Point No.4 is a ridgetermination right to point No.3 with three ridges intervening. PointNo.5 is a ridge bifurcation above and right to point No.4 with noridge intervening. Point No.6 is a ridge termination below andright to point No.5 with the ridges intervening. Point No.7 is aridge termination above and right to point No.6 with eleven ridgesintervening. Point No.8 is a ridge termination right to point No.7with 6 ridges intervening. Point No.9 is a ridge termination left topoint No.8 with ten ridges intervening. Point No.10 is a ridgebifurcation left to point No.9 with two ridges intervening. All theabove mentioned ridge characteristics are collectively occurring intheir relative positions in the finger impressions marked D, A andS. Hence, the finger impression marked D, A and S are identicalwith one another and are made by the same finger of the sameperson. Bifurcation is where a ridge splits into two and travel forsome distance. Termination is the ridge ending. The way to testany impression is the ridge characteristics are available in theimpression. D, A and S which we marked in Ex.A3. There is nohard and fast rule about the number of points of identity or non-identity we pronounced about the identity and non-identity of afinger prints, if it is in the same pattern. We are following 10 or 12points of identity to pronounce about the identity of the finger printprovided the pattern in the same. In the present case all thedisputed, admitted and specimen impressions are loop typepattern. Hence in the present case there is no doubt about theidentity of the finger impression being the same finger of the sameperson”.

29. The finger print expert has been elaborately cross-examined but nosuspicious circumstances are elicited there from so as to suspect thecompetency or authority of PW.3 in giving in opinion that the disputeddocument contains the signature and thumb impression of the executants.30. To counter the above evidence of the finger print expert, it appears thatthe defendants on their part has subsequently sent the admitted and disputedhandwritings and impressions to another private handwriting expert who hasbeen examined as D.W.3. These documents were sent to D.W.3 throughtheir Advocate by name Bhandaru Chandramouli on 19-03-1988. They werenot sent through the process of Court. In his evidence D.W.3 admits that heworked as Asst.Director in the Forensic Science Laboratory and retired inOctober, 1980. He claims to be a graduate in Science and had his training in

handwriting identification for a period of two years. He also claims to beworked as handwriting expert under the Government of Andhra Pradesh. However, insofar as the finger prints is concerned, he claims that he used tosit along with another finger print expert, whenever the finger prints werebeing examined, he learnt about the finger prints identification. Apparently,he is not a trained finger print expert however he claims to have examined theadmitted and disputed thumb impressions of D.1 on Ex.A1 and gave hisopinion which is Ex.B.16, dated 24-03-1988. It reads as under:- “Opinion submitted by Y.Sidda Reddy, Asst.Director (Retd) ForensicScience Lab, Hyderabad.OPINION

I have examined the thumb impressions carefully. In my opinionthe ridge characteristics marked 1 to 10 available in the specimenthumb impression marked ‘S’ are not available in the disputed thumbimpression marked ‘A; as the same is not affixed properly.

The thumb impression marked ‘A’ could not be compared withany of the admitted specimen thumb impressions as the portion which isclear in the disputed thumb impression is not clear in the specimenthumb impression and vice versa.

Sd/-

(Y.SIDDA REDDY)”

31. It is manifest that D.W.3 could not conclusively say that the thumbimpression that is found on Ex.A1 is not that of D.1 as alleged by the plaintiffand claimed by the 1[st] defendant. In his evidence as D.W.3, he deposed asunder:- “….. The specimen and disputed thumb impressions arealready marked as A and S respectively and after thoroughcomparison of the thumb impression, I am of the opinion that in myopinion the ridge characteristics marked 1 to 10 available in thespecimen thumb impressions already marked as S are notavailable in the disputed thumb impressions marked A as thesame is not affixed properly. The thumb impressions marked Ai.e., the disputed one could not be compared with any of theadmitted specimen thumb impressions as the portion which isclear in the disputed thumb impressions is not clear in thespecimen thumb impression and vice-versa.”

32. Not only D.W.3 is not a professional finger print expert but even his opinion do not help the defendants in substantiating their contention thatEx.A1 do not contain the thumb impression of D.1. When PW.3 could givespecific reasons for opinion that Ex.A1 contains the thumb impression of D.1,D.W.3 could not give any such opinion and stated that the thumb impressionon Ex.A1 is not affixed properly and that the thumb impressions, which isclear in the disputed thumb impression is not clear in the specimen thumbimpression. Therefore, what follows is that the opinion evidence of PW.3needs to be given weight as against that of D.W.3. I have also compared thethumb impression on Ex.A1 with that of the admitted thumb impression of D.1as contained in the record. Having done so, I am inclined to accept theevidence of PW.3 that Ex.A1 contains the thumb impression of D.1.

33. Once it is established that the document in dispute has been executedby D.1, what follows is that the case of the plaintiff stands established that onthe date of Ex.A1, the suit contract was entered into in between him and D.1in the presence of 3 witnesses namely Ankamma, Venkatanarayana and D.2himself who also signed the document. It was scribed by PW.3. Except forsaying that Ex.A1 is a forged document, no substantial assertion is made byD.1 to deny the execution of Ex.A1. Since the evidence on record proved thatEx.A1 contains the thumb impression of D.1, it has to be held that the suitcontract was entered into on the date, time and place and in the presence ofpeople as claimed by the plaintiff. The learned trial Court has relied upon theevidence of D.W.3 as against that of PW.3 and held that Ex.A1 is a forgeddocument. The said finding is not based on proper appreciation of thematerial on record.

34. In view of the foregoing discussion, it is held that the plaintiff provedthat on 24-04-1974 Ex.A1 was executed by D.1 in the presence of D.2 and 2others by receiving a part of consideration amounting to Rs.25,000/- asagainst the total consideration of Rs.32,000/- and agreed to execute the saledeed in favour of the plaintiff who was required to pay the balance amount ofRs.7,000/- within a fortnight thereafter namely by 05-05-1974. The point isaccordingly answered.

35. Point No.(ii):- It is by now a well settled proposition that granting orrefusing a decree for specific performance is in the discretion of the Court but the discretion should not be refused arbitrarily and that the discretion shouldbe exercised on sound principles of law. The party who seeks to avail theequitable jurisdiction of a Court and specific performance being equitablerelief must come to the Court with clean hands. In other words, the party whomakes false allegations would not entitle to the equitable relief. Whileexercising the said discretion, the Court can consider various circumstancesto decide whether such relief is to be granted. Merely because it is lawful togrant specific relief the Court need not grant the order but this discretion shallnot be exercised in an arbitrary or unreasonable manner. If the terms of thecontract are such that the plaintiff gets an unfair advantage over thedefendant, the Court may not exercise its discretion in favour of the plaintiff soalso the specific relief may not be granted if it is inequitable to do so. Inadjudicating the rival claims, one cannot approach the matter exclusivelybearing in mind the rights of the parties but must take into account the relativehardship in granting or refusing the relief prayed for.

36. In the above backdrop of the legal position, what is required to be seenis as to whether it is a fit case where the defendants can be directed toexecute the sale deed in favour of the plaintiff by receiving the balanceconsideration of Rs.7,000/- together with interest thereon at 12% per annumfrom 05-05-1974 till the date of payment or whether it will be inequitable todirect the specific performance of the contract which took place on 24-04-1974.

37. The property covered by Ex.A1 is still in possession of the defendants. The plaintiff is therefore praying for recovery of possession as well. Thedefendants came in possession of the property through the process of law byexecuting the decree which D.1 obtained against D.4 in 1970 and 1973. Theproperty originally belong to D.4 and D.1 purchased the same on two differentoccasions in the Court auction for Rs.8,600/- and Rs.8,300/-. The propertiesof D.4 was sold in order to satisfy the liability of D.4 against D.1 in respect ofthe maktha and mesne profits of the properties belonging to D.1 which wassaid to be in the enjoyment of D.4 prior to O.S.Nos.6 of 1956 and 71 of 1956were decreed. The agreement of sale is dated 24-04-1974 and in respect ofa residential house and also an extent of Ac.2-12 cents of land. However, the

plaintiff is claiming only Ac.1-66 cents. For the remaining Ac.0-46 cents ofland, D.1 is not even the owner of the said land, even though it was madepart of the contract Ex.A1. Ex.A1 acknowledges the receipt of Rs.25,000/- byD.1 from the plaintiff. Balance of Rs.7,000/- was payable within a fortnightthereafter and in default, that amount was agreed to be payable with interestat 12% per annum till payment. The agreement of sale is dated 24-04-1974and the suit in hand came to be filed on 22-07-1976. The plaintiff has notspecifically pleaded as to when he demanded the defendants to accept thebalance consideration and execute the sale deeds. What is all that is averredin the plaint is that the plaintiff from the beginning has always been ready andwilling to perform his part of the contract but it is the defendants that wereputting it off on some pretext or the other. Even in the evidence of PW.1 whatis all that is spoken to by PW.1 is that he demanded D.1 to execute theregistered sale deed, that the 1[st] defendant did not execute the sale deedeven though he is ready to pay the balance sale consideration of Rs.7,000/-and hence he filed the suit for specific performance of the contract. Nospecific evidence has been produced to show that for nearly two years inbetween the date of agreement and filing of the suit, there was any specificdemand from the plaintiff calling upon the defendants to accept the balanceconsideration and execute the sale deed. Neither any oral nor anydocumentary evidence is produced in that direction. The suit of the plaintiffwas dismissed by the trial Court on 31-12-1988. The property that has beenpurchased by D.1 in Court sale, in 1970 and 1973, was agreed to be sold tothe plaintiff on 24-04-1974. At no point of time, the plaintiff is shown to havemade any endeavour to pay the balance sale consideration of Rs.7,000/- outof the total consideration of Rs.32,000/-.

38. The original plaintiff, D.1, D.2 and D.4 who are the main contestingparties are all dead and their legal representatives came on record. The suittransaction is said to have taken place in pursuance to the compromiseeffected by the elders. Even according to the plaintiff, the properties whichbelong to D.4 were purchased by D.1 in Court auction in pursuance to adecree for realizing the maktha amounts and mesne profits in respect of theproperties which originally belonged to D.1 but were in possession of D.4

during the course of previous round of litigation namely O.S.Nos.6/1956 and71/1956. It is also the case of the plaintiff that even though D.1 purchased theschedule properties in Court auction, they were facing some difficulties inrecovering possession. When the matter was placed before the elders, theyhave called for the plaintiff since he happened to be the brother-in-law of D.4. It appears that the decision that was taken before the elders was that if theproperties that were purchased by D.1 in Court auction are to be allowed tobe left to D.4, D.4 has to pay Rs.32,000/- to the 1[st] defendant. It is also thecase of the plaintiff that since D.4 was not in a position to pay the saidamount, the plaintiff has come forward to pay the same, keeping in view theinterest of D.4 and his family, namely the sister of the plaintiff. Accordingly,on 24-04-1974, the plaintiff paid Rs.25,000/- to the 1[st] defendant andobtained Ex.A1. It is pertinent to mention here that in Ex.A1, at more than oneplace, it is mentioned as “STHIRASTHI VIKRAYA CONTRACT RASEEDU”(receipt for contract for sale of immovable property). The scribe who isexamined as PW.2 in his evidence admits that in the suit agreement Ex.A1, itis original written as promissory note but that is struck off and that he cannotgive the reason as to why that was struck off. Ex.A1 is not executed on astamp paper. Underneath Ex.A1, there was 0.20 paise revenue stampaffixed. The cumulative effect of the above circumstances go to show that theintention of the parties was to execute a deed evidencing acknowledgment ofthe amount that was being paid by the plaintiff to D.1 for and on behalf of D.4and therefore the necessary covenants that are usually found in agreement ofsale are not mentioned. It is also mentioned in Ex.A1 that the balanceamount of Rs.7,000/- should be paid by the plaintiff to D.1 within 15 days i.e.,by 05-05-1974, failing which the said amount will carry interest at 12% perannum.

39. The plaintiff in his plaint has prayed for three reliefs. Firstly, he soughtfor specific performance of the contract directing the defendants to executethe sale deed; secondly, he sought for the relief of recovery of possession ofthe property covered there under; and alternatively, the plaintiff sought forrefund of Rs.32,000/- with interest from the date of suit till realization as damages. Taking into consideration the facts and circumstances of the case,I am of the opinion that it is a fit case where the alternative relief sought for bythe plaintiff can be granted instead of the relief of specific performance of thecontract. The point is accordingly answered.

40. In the result, the appeal is allowed in part. The Judgment and decree ofthe trial Court is set aside. The suit of the plaintiff i.e., O.S.No.33 of 1976 onthe file of the Subordinate Judge, Chirala, stand decreed for a sum ofRs.32,000/- together with interest thereon at 12% per annum from the date ofthe suit till realization. The plaintiff is also entitled to the costs of theproceedings throughout.

Date: 31[st] December, 2014

smr

__________________

M.S.K.Jaiswal, J

HON'BLE SRI JUSTICE M.S.K.JAISWAL

A.S.No.965 of 1989

Smr (pd)

Dated: 31[st] December, 2014