SA/1310/2010 of Sri Mathrapu Veeraju, Vs Sri Manikonda Barnabas John Subas, on 28 December 2012

JUDGMENT:

Unsuccessful 2[nd] defendant in both the Courts below isthe appellant. The plaintiff filed the suit for specificperformance of Ex.A.1 agreement for sale dated 25.01.1995of the plaint schedule property by the defendants 1 to 4. Prior to filing of the suit, the plaintiff got issued Ex.A.2 noticeto the defendants 1 to 4 who received the same as perExs.A.3 to A.6. The defendants 1, 3 and 4 did not givereply. The 2[nd] defendant gave Ex.A.2 reply. It is contentionof the 2[nd] defendant that when he was taking treatment in ahospital at Eluru, the plaintiff in collusion with the 1[st]defendant obtained his signatures on a blank stamp paperand blank paper by misrepresentation. The Courts belowrejected the contention of the 2[nd] defendant after scrutiny ofthe entire evidence on record and decreed the suit forspecific performance. Questioning the same, the 2[nd]defendant seeks to file this second appeal.

2. The schedule property consists of 114.8 square yards of site with a jammu roofed hut bearing Door No.11-1-1 in Navabpet of Eluru town. The plaintiff apart fromexamining himself as PW.1, examined one of the attestorsto the suit agreement as PW.2 and wife of scribe of thatagreement as PW.3 in support of the suit agreement. Afterfiling of the suit, the defendants 3 and 4 who are sisters ofthe defendants 1 and 2 remained e x parte. The 1[st]defendant also did not file any written statement. After deathof the 1[st] defendant, his legal representatives wereimpleaded as the defendants 5 and 6. The defendants 5and 6 filed written statement supporting the plaintiff’s case. As pointed out earlier, the defendants 1, 3 and 4 did not givereply to Ex.A.2 notice disputing their liability. The 1[st]defendant’s wife examined herself as D.W.1 and she gaveevidence supporting the plaintiff’s case. Thus, there is noevidence on behalf of the 2[nd] defendant except his ipsi dixitas D.W.2. He filed Ex.B.1 medical record of Komali CardiacHospital and contended that he was hospitalized by thedate of Ex.A.1 agreement. No one was examined to speakto contents of Ex.B.1 relating to a private medical hospital. Ex.B.1 is left unproved. It is suggested by the 2[nd]

defendant’s counsel to PW.1 in cross examination that the1[st] defendant approached the 2[nd] defendant when he wastaking treatment in Ramesh Cardiac hospital, Eluru as in-patient due to heart ailment. Inspite of it, no record relatingt o Ramesh Cardiac hospital is filed. Ex.B.1 is not fromRamesh Cardiac hospital. It is further case of the 2[nd]defendant that his signatures were obtained on a blankstamp paper and white papers stating that they wererequired as security to discharge the mortgage loan inO.S.No.573 of 1987. It is ununderstandable as to whysecurity is required for discharging a mortgage debt. Security may be required for obtaining loan and not fordischarging loan. The version put forward by the 2[nd]defendant is per se unbelievable. Inspite of the defendants3 and 4 not giving any reply to Ex.A.2 notice and becomingex parte in the suit, they gave evidence as DWs 3 and 4 inthe suit supporting the 2[nd] defendant’s case. They did notfile any appeal against the decree passed by the trial Courtor second appeal against the appellate order of the lowerappellate Court. The Courts below considered entireevidence on record in the right direction and came to a rightconclusion in favour of the plaintiff. Simply because the 1[st]

defendant and the plaintiff are stated to be Viyyankas (son-in-law’s father), this Court cannot brush aside evidence ofPWs 1 to 3 whose evidence was found to be consistent andbelievable. I find no error muchless legal error committed bythe Courts below. I also find that no substantial question oflaw arises for determination in this second appeal.

3. Accordingly, the second appeal is dismissed withcosts.

____________________________

SAMUDRALA GOVINDARAJULU,J

Dt.28[th] December, 2012PNV