SA/1058/2010 of N. Rangaiah Vs Smt. T. Satyamma ( died ) on 31 December 2010

JUDGMENT:

This second appeal, under Section 100 of the Code of CivilProcedure, is directed against the judgment and decree dated06.10.2009 passed in A.S. No. 63 of 2005 by the learned II AdditionalDistrict Judge, Ranga Reddy District, dismissing the appeal filed bythe appellant and confirming the judgment and decree dated20.12.2004 passed in O.S. No. 96 of 1995 by the learned PrincipalSenior Civil Judge, Ranga Reddy District, decreeing the suit filed bythe 1[st] respondent herein for specific performance of agreement ofsale dated 07.08.1993 and for recovery of possession of the suitschedule property.

The 1[st] respondent herein filed the suit in O.S. No. 96 of 1995,before the trial Court, against the appellant herein for specificperformance of agreement of sale dated 07.08.1993 and for recoveryof possession of the suit schedule property. It was her case that thedefendant agreed to sell the suit schedule property to her for a totalsale consideration of Rs.2,50,000/- and executed agreement of saledated 07.08.1993, which was marked as Ex.A1, and received a sum ofRs.1,50,000/- towards part of sale consideration, under Ex.A2 receipt. At the time of execution of agreement of sale, original link documentsand pattadar passbooks in respect of the suit schedule property werehanded over to her. However, subsequently the defendant, in spite ofrepeated requests by her to receive the sale consideration andexecute registered sale deed in her favour, dodged the matter on onepretext or the other and finally filed a caveat in the Court denyingexecution of agreement of sale. Thus, she filed the present suit for thereliefs of specific performance of agreement of sale under Ex.A.1 and for recovery of possession.

The defendant resisted the suit, by filing written statement,denying execution of suit agreement of sale and receipt and statingthat, with the help of certain documents executed by him for thepurpose of security in a loan transaction between him and oneLaxmaiah, the plaintiff fabricated the suit agreement of sale andreceipt.

Before the trial Court, on behalf of the plaintiff, P.Ws.1 and 2were examined and Exs.A1 to A8 were marked and on behalf of thedefendant, D.W.1 was examined and Exs.B1 to B16 were marked andEx.C1 was also marked.

The trial Court, after detailed consideration of oral anddocumentary evidence on record, found that the evidence adduced onbehalf of the defendant is contradictory, in view of the fact that on onehad, the defendant is admitting the signatures on Ex.A1 agreement ofsale and Ex.A2 receipt as of him and on the other hand he is denyingexecution of agreement of sale and receipt in toto, and so far as theplaintiff’s readiness to pay the balance sale consideration isconcerned, it was held that as the plaintiff filed an I.A. seekingpermission of the Court to deposit the balance sale consideration intothe Court, it indicates the readiness of the plaintiff to pay the balanceconsideration, and accordingly came to the conclusion that the plaintiffwas able to establish that the agreement of sale is valid and bindingon the defendant, and accordingly decreed the suit by judgment anddecree dated 20.12.2004, directing the plaintiff to deposit the balanceof sale consideration by 31.12.2004 to the credit of the suit andthereupon the defendant to execute sale deed in favour of the plaintiffand put her in vacant possession of the suit schedule property by31.01.2005.

Aggrieved by the judgment and decree rendered by the trialCourt, the defendant preferred A.S. No. 63 of 2005 on the file of the IIAdditional District Judge, Ranga Reddy District. During pendency ofthe appeal, the plaintiff died and her legal representatives werebrought on record.

The first appellate Court, on re-appreciation of entire oral anddocumentary evidence on record, held that the suit agreement of saleand receipt are valid and binding on the defendant and the plaintiff isentitled to the reliefs of specific performance of agreement of sale andfor recovery of possession of the suit schedule property, andaccordingly dismissed the appeal, confirming the judgment and decreeof the trial Court, by its judgment and decree dated 06.10.2009. Aggrieved thereby, the defendant filed the present second appealunder Section 100 C.P.C., raising the following substantial questionsof law:

a)Whether a document said to be agreement of sale onRs.100/- Stamp paper having a total consideration ofRs.2,50,000/- can be marked as Ex.A1 and taken inevidence in violation of Sections 33 and 35 of Indian StampAct, 1899?Rs.100/- Stamp paper having a total consideration ofRs.2,50,000/- can be marked as Ex.A1 and taken inevidence in violation of Sections 33 and 35 of Indian StampAct, 1899?

b)Whether the evidence of D.W.1 can be rejected on theground that he tells lies frequently and is it not in violation ofSec. 52 of Indian Evidence Act?ground that he tells lies frequently and is it not in violation ofSec. 52 of Indian Evidence Act?

c)Whether or not the judgment in application deliveredwithout considering the grounds raised in the Memorandumof Appeal?without considering the grounds raised in the Memorandumof Appeal?

d)Whether or not the burden of proof lies on the plaintiff toprove the case, but cannot depend upon the weaknesses ofthe defendants?prove the case, but cannot depend upon the weaknesses ofthe defendants?

e)Whether delivery of title deeds symbolizes delivery ofpossession of property?possession of property?

The contention of the appellant is that the agreement of sale dated 07.08.1993 to sell Ac.5.13 gts. of agricultural land situated inSy.No.1 of Gajularamaram Village, Qutubullapur Mandal of RangaReddy District, is not duly stamped and as such the same cannot bemarked as Ex.A1 and it is in violation of the provisions of Sections 33and 35 of Indian Stamp Act.

The judgments rendered by the trial Court and the first appellateCourt clearly indicate that the defendant did not raise any objection formarking the said document. For the first time, he raised the saidobjection in the present second appeal. In this context, it is relevant tostate that there is a State amendment to Indian Stamp Act, by Act22/1989, which came into effect from 01.04.1990 and A.P. AmendmentAct 21/1995 came into effect on 01.04.1995, which clearly indicatesthat agreement of sale covering agricultural land does not requireregistration. In view of that, the contention of the appellant that theagreement of sale under Ex.A1 cannot be taken in evidence is nottenable and it does not amount to substantial question of law toentertain the jurisdiction of this Court under Section 100 C.P.C.

As regards the other substantial questions of law raised in (b) to(e) are concerned, it is to be noted that both the Courts below merelyappreciated the evidence on record in detail and recordedcontradictions made by the witnesses examined on behalf of thedefendants. The Courts below did not indicate the character of any ofthe witnesses for drawing conclusions. In view of that, it is not correctto state that the judgment rendered by the Court below is in violation ofSection 52 of the Indian Evidence Act. A perusal of the judgmentrendered by the first appellate Court clearly indicates that it has re-appreciated the entire oral and documentary evidence recorded by thetrial Court. As such, it cannot be said that the first appellate Courtrendered the judgment without considering the grounds raised in theMemorandum of Appeal.

A perusal of the judgments of both the Courts below indicatethat the trial Court, on detailed consideration of the oral anddocumentary evidence on record, held that the plaintiff is able toestablish that the agreement of sale under Ex.A1 is executed by thedefendant and Ex.A2 receipt has been issued by him on receipt of Rs.1,50,000/- towards part of sale consideration, and the first appellateCourt, on re-appreciation of the oral and documentary evidencerecorded by the trial Court, concurred with the findings of the trialCourt. I am of the considered opinion that the concurrent findings ofthe trial Court as well as the appellate Court do not warrant anyinterference by this Court in exercise of jurisdiction under Section 100of the Code of Civil Procedure.

The second appeal, being devoid of merits, is liable to bedismissed and is accordingly dismissed. No costs.

31[st] December 2010IBL

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JUSTICE N.V. RAMANA