SREENIVASA COOPERATIVE BUILDING SOCIETY versus PUVVADA RAMA (DEAD) BY LRS. AND ORS. on 31 July 2018

SUPREME COURT REPORTS

[2018] 7 S.C.R.

ALAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY

v.

PUVVADA RAMA (DEAD) BY LRS. AND ORS.

(Civil Appeal No. 6620 of 2008)

BJULY 31, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Specific performance: Agreement of sale of land – Suit forCspecific performance of sale agreement in respect of land – Onfacts, suit for specific performance of sale agreement filed byappellant-society – Dismissed by the courts below since theappellant failed to prove execution of the suit agreement, paymentof earnest money in furtherance of those agreements and alsobeing put in possession of the suit property – On appeal, held:DExecution of suit agreement was not proved – Appellant cannot bepermitted to take the relief sans proof of execution of suitagreements in respect of which the relief of specific performance issought – There was absence of a valid and subsisting agreementoperating between the parties – Neither of the agreement was aEregistered document – No relinquishment deed has been executedby vendees who were party to the alleged initial agreement –Furthermore, appellant failed to prove the factum of possession –In view thereof, no relief can be granted to the appellant – Asregards prayer sought by the appellant for refund the earnest moneypaid to them in furtherance of the suit agreements, ordinarily itFcould be considered but in the peculiar facts of the instant case, itmay not be possible to entertain the same.

Constitution of India: Art. 136 – Exercise of jurisdictionunder – Concurrent finding of fact recorded by the courts belowagainst appellant – Held: Merely because two courts have taken aGparticular view on the material issues, that by itself would notoperate as a fetter on this Court to exercise jurisdictionu/Art.136.

Dismissing the appeals, the Court

HELD: 1. It is incomprehensible as to how the order passedby the High Court disposing of the first appeal without anyadjudication can, by any standard, be considered as adverse tothe defendant either in the matter of final decree or any findingrecorded by the trial court whilst dismissing the suit. As a result,Civil Appeal No.6625 of 2008 is devoid of merit, and is notmaintainable. [Para 12] [1240-D]

2.1 In Civil Appeal No.6620 of 2008, the High Court hasaffirmed the findings of facts and the conclusion recorded by thetrial court on material issues against the appellant/plaintiff. Inthat sense, the subject appeal questions the concurrent findingof fact recorded by the two Courts against the appellant/plaintiff.Merely because two courts have taken a particular view on thematerial issues, that by itself would not operate as a fetter on thisCourt to exercise jurisdiction under Article 136 of theConstitution. [Para 13] [1240-E-F]

2.2 The adverse findings recorded by the two courts belowagainst the appellant/plaintiff is based on the indisputable facts,such as neither were the attestors and scribe to the suitagreements examined to prove execution thereof by the realowners of the property nor was any explanation or justificationforthcoming for such failure. The suit agreements areunregistered. The defendants have denied having signed any suchagreement. No attempt was made by the appellant/plaintiff toconfront the defendants and discharge the burden by examiningany handwriting expert. The appellant/plaintiff failed to produceany document to show that the nine members in whose favourthe initial alleged agreement was executed, have relinquishedtheir possession in favour of the appellant/plaintiff. The co-ownerof the property (5[th] defendant) was neither joined as party in thesuit agreement, nor was his authority for execution of suchagreement forthcoming. The other two purchasers, along withwhom the suit agreement was executed, were also notexamined. No proof was forthcoming regarding payment ofearnest money amount at the time of execution of the suitagreements or otherwise made to the owners of the suit

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Aproperty. The appellant/plaintiff did not file any document to showthat the cheque was encashed and availed by defendant No.4 aspayment in respect of the suit agreement. No endorsement wastaken on the initial suit agreement, either of the vendors orvendee before or at any time after execution of the second suitagreement. The sole testimony of PW-1 regarding execution ofBthe suit agreement was not enough to prove its execution. Nowitness was examined to prove that there was any bargain andsettlement between PW-1 and defendant Nos.1-4 in respect ofthe sale transaction prior to execution of suit agreement. Thereis no recital in the suit agreement to the effect that along withCdefendant Nos.1-4, defendant No.5 had also agreed to sell theproperty and to execute the sale deed in favour of the appellant/plaintiff. There was no signature of defendant No.5 on the suitagreements or any reference to her, much less that she agreedto join with defendant Nos.1-4 for sale of the suit property. Thesuit agreements are executed by the first defendant alone andDnot by all the co-owners. The trial court, no doubt, did not acceptthe plea of defendant No.1 being of unsound mind. But the HighCourt, on analysis of the relevant evidence, accepted theevidence as sufficient in that regard. [Para 14] [1242-E-G;1243-A-D]E

2.3 The trial court made exhaustive analysis of evidenceon record in the context of the material issue regardingexecution of the suit agreements and answered against theappellant/plaintiff. That finding of the trial court commended tothe High Court. The view so taken by the trial court is certainlyFa possible view and by no stretch of imagination can the findingrecorded by the courts below on the material issue against theappellant be said to be manifestly unreasonable and unjust in thecontext of the evidence on record. [Para 15, 16] [1243-E;1246-G]

2.4 The appellant/plaintiff cannot be permitted to take theGrelief claimed in the suit any further sans proof of execution ofsuit agreements in respect of which the relief of specificperformance is sought. The appellant/plaintiff must fail in gettingany relief whatsoever in the absence of a valid and subsistingagreement operating between the parties in relation to whichHrelief of specific performance can be granted. Notably, neither of LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETYv. PUVVADA RAMA (D) BY LRS.

the agreement is a registered document. No relinquishment deedhas been executed by the nine vendees who were party to thealleged initial agreement. No endorsement was forthcoming inthat regard. If so, the second agreement must stand or fail on itsown. But before the execution of the second suit agreement infavour of the appellant/plaintiff, the suit property was purportedto be transferred in terms of the agreement dated22[nd] November, 1979 in favour of respondent No.6 (originaldefendant No.6). During the pendency of the proceedings beforethe High Court between the parties, a registered sale deed wasexecuted in respect of the suit property in favour of respondentNo.6 (defendant No.6) by the owners of the suit property. As aresult of the registered sale deed, the heirs and legalrepresentatives of original defendant No.6 claim to have becomethe owners and in possession of the suit property. [Para 17][1246-G; 1247-A-E]

2.5 As regards the factum of possession, the trial court foundthat the appellant failed to prove the same. The view so taken bythe trial court that the appellant failed to prove the factum ofpossession commended to the High Court and has been affirmedby it. There is no reason to deviate from the said conclusion as itis not manifestly unreasonable or unjust in the context of theevidence on record. [Para 18, 19] [1247-F; 1249-E]

2.6 The conclusion arrived at by both the courts below thatthe suit filed by the appellant/plaintiff deserves to be dismissedis upheld. In the course of arguments, it was submitted by theappellant that if the court was not inclined to grant the prayer forspecific performance, then this court may direct the respondentsto refund the earnest money paid to them in furtherance of thesuit agreements. Ordinarily, such a prayer could be consideredbut in the peculiar facts of the instant case, it may not be possibleto entertain the same, not only because no such express prayeris sought in the plaint filed by the appellant/plaintiff before thetrial court, but also because accepting that prayer would result intaking a contradictory approach with the finding of the trial courtand affirmed by the High Court and this Court, that the appellanthad failed to prove the factum of payment of earnest money amountto the owners of the suit property. In view thereof, no relief canbe granted to the appellant. [Para 20] [1249-F, G; 1250-A]

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ASmt. Indira Kaur & Ors. v. Sheo Lal Kapoor (1988) 2SCC 488 - referred to.

Case Law Reference

(1988) 2 SCC 488 referred toPara 13

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6620Bof 2008.

From the Judgment and Order dated 13.03.2006 of the High Courtof Judicature of Andhra Pradesh at Hyderabad in A.S. No. 1492 of1997

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Civil Appeal No.6625 of 2008.

Mohan Parasaran, M.N. Rao, Sr. Advs., G.V.R. Choudary,K. Shivraj Choudhuri, A. Chandra Sekhar, Sanjay Jha, C. Balakrishna,M. A. Chinnasamy, Ms. C. Rubavathi, Advs. for the appearing parties.

DThe Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1.These appeals arise out twoseparate suits filed for specific performance of agreements of sale inrespect of land admeasuring Ac. 7.86 cents (3.18 hectares) in SurveyNo.59/2, situated in Kundavari Khandrika Village within the Sub Registry Eof Vijayawada.

2. The original respondent No.6, namely, Allu Appalanarayana,had filed a suit for specific performance before the Court ofSubordinate Judge, Vijayawada, being Original Suit No.99/1981 forspecific performance of the agreement dated 22[nd] November, 1979Fexecuted in his favour by Puvvada Chandrashekhara Rao and PuvvadaSiva Prasad, which was dismissed by the Trial Court on 20[th] October,1997. Civil Appeal No.6625 of 2008 emanates from the saidproceedings.

3. The appellant Society (appellant in both the appeals before thisCourt) had also filed a suit in respect of the self-same land for specificGperformance of the agreement of sale dated 16[th] October, 1981 readwith the earlier agreement dated 30[th] June, 1977. Even this suit filedbefore the Subordinate Judge at Vijayawada, being O.S. No.351 of1982 was dismissed by the Trial Court by common judgment dated20[th] October, 1997. Civil Appeal No.6620 of 2008 arises from the saidHproceedings.

4. The legal representatives of original respondent No.6 preferreda first appeal before the High Court of Judicature, Andhra Pradesh atHyderabad, being First Appeal No.1426 of 1997 against the dismissal ofO.S. No.99/1981. Similarly, the appellant Society preferred First AppealNo.1492/1997 before the High Court of Judicature, Andhra Pradesh atHyderabad, against dismissal of its suit, being O.S. No.351/1982.

5. The appeal preferred by the heirs and legal representatives ofAllu Appalanarayana, however, was disposed of on 9[th] March, 2006 inview of the submissions made by the counsel for the appellant thereinthat respondent Nos.1 & 2/defendant Nos.1 & 2, PuvvadaChandrashekhara Rao and Puvvada Siva Prasad, respectively, hadalready executed a sale deed in respect of the suit property in theirfavour and, therefore, no further order was necessary in the pendingappeal. The High Court disposed of the said appeal on that basis. Againstthat decision, as mentioned above, Civil Appeal No.6625 of 2008 hasbeen filed by the appellant Society. It is doubtful whether this appealpreferred by the appellant against the decision of the High Court dated9[th] March, 2006 in First Appeal No.1426/1997 can be taken forward.We shall elaborate on this a little later.

6. The real controversy that needs to be addressed is in referenceto the suit filed by the appellant Society, being O.S. No.351/1982 forspecific performance of the contract of sale dated 16[th] October, 1981read with the earlier contract dated 30[th] June, 1977, directing defendantNos.1 to 5 (owners of the suit property), who are respondent Nos.1 to 5in Civil Appeal No.6620/2008, to register a proper sale deed in favour ofthe appellant Society on receiving the balance of sale consideration atthe time of registration or, in the alternative, directing execution andregistration of such sale deed by the Court at their expense, and forpermanent injunction restraining the 6[th] defendant (respondent Nos.6a.to 6g. - legal representatives) from interfering with the suit property andplaintiff’s (appellant’s) possession and enjoyment thereof in any way.The defendants contested the said suit and denied having executed thesuit agreements dated 30[th] June 1977 and 16[th] October, 1981.

7. On the basis of the pleadings, the Trial Court framed relevantissues and upon considering the oral and documentary evidenceproduced by the appellant/plaintiff, answered the material issues againstthe appellant/plaintiff. The Trial Court opined that the appellant/plaintiffhad failed to prove the execution of the suit agreements. Similarly, the AB

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Aappellant/plaintiff had failed to prove that earnest money was paid tothe owners of the land at the time of execution of the suit agreements orotherwise. Even on the factum of possession, as claimed by theappellant/plaintiff, the Trial Court opined that the appellant/plaintiff hadfailed to prove delivery of possession of the suit property to it by theowners upon execution of the suit agreement dated 30[th] June, 1977.BThe Trial Court further opined that the alleged suit agreements could nothave been executed in view of the bar contained in the Urban LandCeiling Act and even for that reason, the same were not valid. Havinganswered the material issues against the appellant/plaintiff, the suit filedby the appellant being O.S. No.351/1982, was eventually dismissed withCcosts. Against the said decision, the appellant preferred A.S.No.1492/1997 before the High Court of Judicature, Andhra Pradesh atHyderabad. The High Court was pleased to uphold the finding of factrecorded by the Trial Court against the appellant/plaintiff on the materialissues. In that sense, both the courts have concurrently opined that the

appellant/plaintiff failed to prove execution of the suit agreements datedD30[th] June, 1977 and 16[th] October, 1981 or of having paid earnest moneyin furtherance of those agreements and also being put in possession ofthe suit property, as claimed. At the same time, the High Court departedfrom the finding recorded by the Trial Court with regard to the issue asto whether defendant No.1 was a person of unsound mind. The HighECourt found that there was sufficient evidence to accept the said pleaurged by defendant No.1. The High Court, therefore, dismissed theappeal preferred by the appellant Society and confirmed the order ofdismissal of suit passed by the Trial Court.

8. The appellant has assailed the dismissal of its suit and appeal Fby the High Court by way of Special Leave to Appeal (Civil) No.16661of 2006, which has been converted into Civil Appeal No.6620 of 2008.The thrust of the challenge is that the Trial Court as well as the HighCourt committed manifest error in analysing and appreciating theevidence on record in respect of material issues regarding execution of suit agreements, payment of earnest money to the owners at the time ofGexecution thereof and including the factum of appellant/plaintiff havingbeen put in possession of the suit property. It is urged that the crucialaspect as to the steps taken by the appellant for and on behalf of theowners for converting the land user and seeking permission of the appropriate authority for transfer of the land in favour of the appellantSociety, has been overlooked. Those circumstances would reinforcethe execution of the suit agreements in favour of the appellant. Theappellant has also assailed the finding reached by the High Court on thefactum of defendant No.1 being of unsound mind. It is urged thatadverse inference ought to have been drawn under Section 114 of theIndian Evidence Act, as defendant No.1 was not examined. Theappellant would further contend that it was always ready and willing toperform its part of the contract and for which reason the Court ought tohave decreed the suit filed by the appellant. It is contended that theappellant Society has acted upon the suit agreements and has madesubstantial investment on the suit property because it was put inpossession thereof. The equities are in favour of the appellant for whichreason the Court should lean in favour of granting decree of specificperformance, as prayed.

9. The respondents, on the other hand, would contend that theCourt should be loath in interfering with the concurrent findings of facton material issues recorded by the two Courts against the appellant/plaintiff. Significantly, the Courts have held that the appellant failed toprove execution of the suit agreements. On that finding, the question ofconsidering any other matter to further the relief of specific performance,would be an exercise in futility. Besides, both the Courts have held thatthere was express prohibition for execution of suit agreements underthe Urban Land Ceiling Act. The respondents submit that the Trial Courthas rightly dismissed the suit filed by the appellant/plaintiff and, for thesame reason, the High Court is justified in dismissing the first appealpreferred by the appellant. Resultantly, the present appeal preferredagainst the concurrent decisions ought to be dismissed.

10. As regards the companion Civil Appeal No.6625 of 2008, it isurged that the same is completely ill-advised inasmuch as it arises out ofthe suit instituted by the original respondent No.1 (respondent Nos.1a.to 1g. - legal representatives) for specific performance of agreement inhis favour dated 22[nd] November, 1979. That suit came to be dismissedby the common judgment and order dated 20[th] October, 1997 passed bythe Trial Court, against which respondent Nos.1a. to 1g. had filed FirstAppeal No.1426 of 1997. That appeal was not pursued any further inview of the subsequent developments. It necessarily follows that there AB

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Awas no adverse decree or for that matter, any finding recorded againstthe appellant herein (defendant in the said suit) to which the appellantcan take exception, much less by way of special leave petition. The factthat during the pendency of the first appeal, a registered sale deed wasexecuted in favour of the appellant in First Appeal No.1426/1997cannot be the basis to maintain an appeal under Article 136 of theBConstitution. Hence, such appeal is devoid of merits.

11. We have heard Mr. Mohan Parasaran, learned senior counselappearing on behalf of the appellant Society and Mr. M.N. Rao, learnedsenior counsel appearing on behalf of the respondents.

C12. We shall take the last argument of the respondents, relating tomaintainability of Civil Appeal No.6625 of 2008, first. We find substancein that argument. It is incomprehensible as to how the order passed bythe High Court disposing of the first appeal without any adjudicationcan, by any standard, be considered as adverse to the defendant eitherin the matter of final decree or any finding recorded by the Trial Court inDO.S. No.99/1981 whilst dismissing the suit. As a result, Civil AppealNo.6625 of 2008 deserves to be dismissed as being devoid of merit, andin particular, as not maintainable.

13. Reverting to the former appeal, i.e. Civil Appeal No.6620 of2008, the High Court has affirmed the findings of facts and theEconclusion recorded by the Trial Court on material issues against theappellant/plaintiff. In that sense, the subject appeal questions theconcurrent finding of fact recorded by the two Courts against theappellant/plaintiff. We are conscious of the fact that merely becausetwo Courts have taken a particular view on the material issues, that byFitself would not operate as a fetter on this Court to exercise jurisdictionunder Article 136 of the Constitution. This Court in the case ofSmt. Indira Kaur and Ors. Vs. Sheo Lal Kapoor,[1] has observed asfollows:

“7. ……… Article 136 of the Constitution of India does not forgeGany such fetters expressly. It does not oblige this Court to fold itshands and become a helpless spectator even when this Courtperceives that a manifest injustice has been occasioned. If andwhen the court is satisfied that great injustice has been done it is not only the “right” but also the “duty” of this Court to reverse theerror and the injustice and to upset the finding notwithstanding thefact that it has been affirmed thrice. There is no warrant to importthe concept or the conclusiveness of divorce on the utterance of“Talaq” thrice in interpreting the scope of the jurisdiction of thisCourt under Article 136. It is not the number of times that a findinghas been reiterated that matters. What really matters is whetherthe finding is manifestly an unreasonable, and unjust one inthe context of evidence on record. It is no doubt true that thisCourt will unlock the door opening into the area of facts onlysparingly and only when injustice is perceived to have beenperpetuated. But in any view of the matter there is no jurisdictionallock which cannot be opened in the face of grave injustice. Thisview has been taken in Variety Emporium v. Mohd. IbrahimNaina to which one of us (Thakkar, J.) was a party. The relevantpassage in the words of Chandrachud, C.J. may be quoted withadvantage: (SCC p. 255, para 6)

“It cannot be overlooked that three courts have held concurrentlyin this case that the respondent has proved that he requires thesuit premises bona fide for his personal need. Such concurrenceundoubtedly, has relevance on the question whether this Courtshould exercise its jurisdiction under Article 136 of the Constitutionto review a particular decision. That jurisdiction has to beexercised sparingly. But, that cannot possibly mean thatinjustice must be perpetuated because it has been done threetimes in a case. The burden of showing that a concurrentdecision of two or more courts or tribunals is manifestly unjustlies on the appellant. But once that burden is discharged, it isnot only the right but the duty of this Court to remedy theinjustice. Shri Tarkunde, who appears for the respondent, arguedthat this may lead and, in practice, does lead to different standardsbeing applied by different courts to find out whether a concurrentdecision is patently illegal or unjust. That, in the present dispensation,is inevitable. Quantitatively, the Supreme Court has a vastjurisdiction which extends over matters as far apart as Excise toElections and Constitution to Crimes. The court sits in benchesand not en banc, as the American Supreme Court does. Indeed, AB

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Aeven if the entire court were to sit to hear every one of the eightythousand matters which have been filed this year, a certain amountof individuality in the response to injustice cannot be avoided. It isa well known fact of constitutional history, even in countries wherethe whole court sits to hear every case, that the composition ofmajorities is not static. It changes from subject to subject though,Bperhaps, not from case to case. Personal responses to injusticeare not esoteric. Indeed, they furnish refreshing assuranceof close and careful attention which the Judges give to thecases which come before them. We do not believe that thelitigating public will prefer a computerised system ofCadministration of justice: only, that the Chancellor’s foot musttread warily.”

(emphasis supplied)

14. Applying the principle expounded in the aforementioneddecision, we must enquire into whether the finding recorded by the twoDCourts below is manifestly unreasonable and unjust in the context of theevidence on record. What seems to us is that the adverse findingsrecorded by the two Courts below against the appellant/plaintiff is basedon the indisputable facts, such as neither were the attestors and scribeto the suit agreements examined to prove execution thereof by the realEowners of the property nor was any explanation or justificationforthcoming for such failure. The suit agreements are unregistered. Thedefendants have denied having signed any such agreement. No attemptwas made by the appellant/plaintiff to confront the defendants anddischarge the burden by examining any handwriting expert. Theappellant/plaintiff failed to produce any document to show that the nineFmembers in whose favour the initial alleged agreement dated 30[th] June,1977 was executed, have relinquished their possession in favour of theappellant/plaintiff. The co-owner of the property (5[th] defendant) wasneither joined as party in the suit agreement dated 16[th] October, 1981,nor was his authority for execution of such agreement forthcoming. TheGother two purchasers, along with whom the suit agreement wasexecuted, were also not examined. No proof was forthcomingregarding payment of earnest money amount at the time of execution ofthe suit agreements or otherwise made to the owners of the suitproperty. The appellant/plaintiff did not file any document to show that H

the cheque was encashed and availed by defendant No.4 as payment inrespect of the suit agreement. No endorsement was taken on the suitagreement dated 30[th] June, 1977 (Exhibit A1), either of the vendors orvendee before or at any time after execution of the suit agreement dated16[th] October, 1981 (Exhibit A2). The sole testimony of PW-1 regardingexecution of the suit agreement was not enough to prove its execution.No witness was examined to prove that there was any bargain andsettlement between PW-1 and defendant Nos.1-4 in respect of the saletransaction prior to execution of suit agreement Exhibit A1. There is norecital in the suit agreement to the effect that along with defendant Nos.1-4, defendant No.5 had also agreed to sell the property and to executethe sale deed in favour of the appellant/plaintiff. There was no signatureof defendant No.5 on the suit agreements or any reference to her, muchless that she agreed to join with defendant Nos.1-4 for sale of the suitproperty. The suit agreements are executed by the first defendant aloneand not by all the co-owners. The Trial Court, no doubt, did not acceptthe plea of defendant No.1 being of unsound mind. But the High Court,on analysis of the relevant evidence, has accepted the evidence assufficient in that regard.

15. The Trial Court has made exhaustive analysis of evidence onrecord in the context of the material issue regarding execution of the suitagreements and answered against the appellant/plaintiff, as can bediscerned from paragraphs 27 to 29 of its judgment which read thus:

“27) To prove the execution of Ex.A.1 defendant 1 to 4 and itsrunuinances the plaintiff did not examine the attestors and scribeof it. There is no explanation from the plaintiff for non examiningthe attestors of it. The plaintiff did not examine the scribe of it ashe is no more and his son P.W.2 came and deposed the same andalso identified the writings of his father. Except identifying thewritings and signature of the scribe, the evidence of D.W.2 is nothelpful to prove its execution and signatures of defendant 1 to 4on Ex.A.1. As such the evidence of P.W.2 is not much helpful toprove the sale of the suit land and execution of Ex.A1 byrespondent 1 to 4. Defendants 2, 3, and 4 who examined as D.W.2,D.W.3 and D.W.1 respectively denied their signatures on Ex.A.1and also their execution of it in favour of P.W.1. No doubt, thefirst defendant did not came into witness box on the ground that ABCDE

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he became mad or insane. It is the case of the plaintiff thatdefendant 1 to 4 sold the plaint schedule land to his and executedEx.A.1 in his favour of receiving a part of sale consideration fromhim. In such circumstances non examination of first defendantdoes not give any adverse inference in proving Ex.A.1, as theother defendants i.e., defendant 2 to 4 examined to confront theirsignatures or Ex.A.1 and execution of it along with defendant 1.Similarly the non examination of first defendant, does notautomatically prove the execution of Ex.A.1 without examiningthe attesters and scribe thereupon. The evidence of P.W.1 elsegoes to show that he occurred the attestor and they are not themen of defendants to attribute any motive to them. The plaintiffalso did not examine any of the other 2 purchasers along withwhen we purchased and obtained Ex.A.1 to prove the executionof Ex.A.1 and signatures of defendants 1 and 4 agreeing to sellthe suit schedule land and receiving of Rs.45,000/- from them.Thus the sale testimony of P.W.1, without examining theattestes, and his co-purchasers is not at all helpful to provethe sale of the suit schedule land and execution of Ex.A.1by defendant 1 to 4 infavour of P.W.1 on 30.7.1977. As suchthe plaintiff failed to prove execution of sale of the plaintschedule land under Ex.A.1 by defendant 1 to 4.

28) Coming to the subsequent development it is the case of theplaintiff that the defendants 1 to 4 also executed Ex.A2 contractof sale dt. 16.10.1981 infavour of the plaintiff society basing onearlier sale agreement Ex.A1 and the same conditions of Ex.A.1have been adopted Ex.A2 agreement. PW.1 deposed that Ex.A.2agreement was prepared in Navayuga Hotel at Vijayawada. OneGudivada Durga Rao and M. Satyanarayana are the attestors inEx.A.2. He does not know where Durga Rao resides but he usedto come to Vijayawada from Tadepally side. Satyanarayana isresident of Atta Ramayya Street in Governorpata, Vijayawada.He himself took both the attestors to Navayuga Hotel. He himselfgot Ex.A2 typed but he does not remember who gave the matterfor typing. No rough draft was prepared before getting Ex.A.2typed.

Except the evidence of P.W.1, there is no other evidence ofattestors to prove Ex.A.2. There is no explanation from the plaintifffor non examination of the attestors. Further the attestors are hismen and he got them and obtained their signatures on Ex.A.2. Bythe date of execution of Ex.A.2, dt.16.10.1981, the suit inO.S.No.99/81 was already filed against defendants 2 to 4, bydefendant 6 herein. The defendants 1 to 4 also disputed theirsignatures on Ex.A.2 and also its execution infavour of the plaintiffsociety. The plaintiff society did not obtain any relinquishmentdeed of 8 other purchasers under Ex.A.1 to obtain subsequentagreement Ex.A.2 in the name of society. Similarly there is noendorsement on Ex.A.1 either of vendors or vendees about itcancellation in view of subsequent agreement Ex.A.2 infavour ofsociety. In view of the above circumstances and without anyevidence from the attestors, the sole testimony of P.W.1 is not atall helpful to prove the execution of Ex.A.2 by defendant 1 to 4 on16.10.1981 in Navayuga hotel at Vijayawada. The plaintiff fileda petition to reopen the matter and also permit his to lead rebuttalevidence but the defendant did not allow him to examine theattestors is also not a satisfactory explanation. Admittedly therewas no memo reserving his right to lead rebuttal. Without examiningthe attestors during the course of examination of this witness,when the matter is coming up for argument, after closing theevidence of defendant, the plaintiff filing a petition to reopen thematter to examine his witnesses or attestors is not at all a justifiedground to blame the defendants. As such for non examiningthe attestors of Ex.A.1 and Ex.A.2 is not the fault ofdefendants as it is the duty of plaintiff to examine them intime. When it is the case the burden is on the plaintiff toprove the execution of Ex.A.1 and Ex.A.2 without examiningthe attestors and scribe of it blaming the defendants thatthey did not allow him to examining them at later stage byreopening the matter is of no use to satisfy the requirementsin proving a document. Thus the plaintiff failed to provethe execution of Ex.A.W by defendant 1 to 4 prove theexecution of Ex.A.2 by defendant 1 to 4 infavour of theplaintiff society in terms of earlier agreement Ex.A.1.

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A29) It is the case of the plaintiff that defendant 5 agreed to sell theproperty along with defendant 1 to 4. Though the defendants 5did not join in execution of sale agreement she had agreed to selland also agreed to join in execution of sale deed. P.W.1 sale deposedthat 10 or 15 days prior to Ex.A.1, he bargained with the vendorsand settled the transaction. But the plaintiff did not adduce anyBevidence to prove that defendant 5 agreed to sell and also agreedto join in execution of sale deed and none of the witnesses areexamined to prove that there was any bargain and settlementbetween P.W.1 and defendant 1 to 4 in respect of the saletransaction and also understanding between them prior to Ex.A.1.CFurther in Ex.A.1 and Ex.A.2 there is no recital to the effect thatdefendant 1 to 4 along with defendant 5 to the effect that defendant1 to 4 along with defendant 5 agreed to execute the Regd. Saledeed. There circumstances also shows that defendant 5 did notagreed to sell the property and she did not agree to execute saledeed infavour of plaintiff. There is a gap of more than 4 yearsDbetween Ex.A.1 and Ex.A.2. Not only Ex.A.1 but also Ex.A.2does not bear the signature and reference of defendant 5 that sheagreed to join with defendant 1 to 4 for sale of the suit scheduleproperty. The plaintiff also failed to explain whey they did notobtain the signature of defendant 5 attestor on Ex.A.2 to say thatEshe was aware and gave consent of this agreement and earlieragreement of Ex.A.1. If defendant 5 is aware and the plaintiffobtained any consent or at least intimation to defendant 5, theywould have obtained the signature of defendant on Ex.A.2 – whichcame into existence after more than 4 years of Ex.A.1. In suchcircumstances the agreement Ex.A.1. and Ex.A.2 does not bindFon defendant 5 as she is neither party nor it was with her consentand willing, such sale transaction took place.”

(emphasis supplied)

16. That finding of the Trial Court commended to the High Court.GThe view so taken by the Trial Court is certainly a possible view and byno stretch of imagination can the finding recorded by the two Courtsbelow on the material issue against the appellant be said to be manifestlyunreasonable and unjust in the context of the evidence on record.

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17. Having said this, it must necessarily follow that the appellant/plaintiff cannot be permitted to take the relief claimed in the suit anyfurther sans proof of execution of suit agreements in respect of whichthe relief of specific performance is sought. All other issues wouldrecede in the background. It is, therefore, not necessary for us to dilateon the other issues, such as legal bar with regard to execution of suchagreements and the effect thereof. The appellant/plaintiff must fail ingetting any relief whatsoever in the absence of a valid and subsistingagreement operating between the parties in relation to which relief ofspecific performance can be granted. Notably, neither the agreementdated 30[th] June, 1977 nor the agreement dated 16[th] October, 1981 is aregistered document. As observed earlier, no relinquishment deed hasbeen executed by the nine vendees who were party to the alleged initialagreement dated 30[th] June, 1977. No endorsement was forthcoming inthat regard. If so, the agreement dated 16[th] October, 1981 must stand orfail on its own. But before the execution of the second suit agreementdated 16[th] October, 1981 in favour of the appellant/plaintiff, the suitproperty was purported to be transferred in terms of the agreementdated 22[nd] November, 1979 in favour of respondent No.6 (originaldefendant No.6). During the pendency of the proceedings before theHigh Court between the parties, a registered sale deed was executed inrespect of the suit property in favour of respondent No.6 (defendantNo.6) by the owners of the suit property. As a result of the registeredsale deed, the heirs and legal representatives of original defendant No.6claim to have become the owners and in possession of the suitproperty.

18. As regards the factum of possession, the Trial Court foundthat the appellant failed to prove the same and while answering issueNo.5, it observed as follows:

“33. Issue No.5: it is the case of the plaintiff that the defendants 1to 4 delivered possession of the plaint schedule property on thedate of sale under Ex.A.1 date 30.06.1977 in favour of thepurchasers and subsequently they have delivered the same to theplaintiff society on the date of execution of Ex.a.2 dated16.10.1981 and since then they have been in possession andenjoyment of the plaint schedule property. The defendants denied AB

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the delivery of possession to the plaintiff and their continuing overthe name as on the date of filing of the suit. P.W.1 deposed thatthe Gram Panchayat approved layout which is Ex.A.7. Surveystones were painted for the plots and pipes were also arrangedfor the roads as per the layout and roads were formed. P.W.1denied the 6[th] defendant took possession of the suit scheduleproperty under Ex.A.1 in O.S. No.99/81 and he had been inpossession of the same. P.W.1 deposed that the suit land is anagriculture land and he had seen copy of account No.2 availablein the Urban Ceiling Authority Officer mentioning the name ofthe other defendants as enjoyers of the suit land. The villagekarnam informed him that the suit schedule property stands in thename of the first defendant alone. P.W.1 admitted that he did notpay any cist for the suits land from 30.6.1977 to 16.10.1981.Subsequently he paid cist, but by then the other suit O.S.No.99/81 was also filed. He denied that they are not inpossession or the suit land till he obtain interim injunction orderand that he came into possession of the suit land only inpursuance of the injunction orders. The defendants from thebeginning even before filing of the suit, by way of reply noticethey have denied the sale transaction in favour of the plaintiff andalso delivery of possession. The plaintiff did not file anydocument i.e. revenue records or cist receipts to show that hepaid any taxes and to say that he was in possession of the plaintschedule property right from the date of Ex.a.1 i.e. from 30.6.1977till he filed this suit in the year 1982. It is the case of the plaintiffthat he along with 8 others purchased the property under Ex.a.1and subsequently they all formed into a Society of the plaintiffand obtained another subsequent agreement from the defendants1 to 5 under Ex.A.2 dated 16.10.1981 under Ex.A.2. But theplaintiff did not examine any of his co-purchasers to provedelivery of possession of the plaint schedule property to them bythe defendants. Except the sale testimony of P.W.1, there is noother evidence to say that the defendants delivered possession tothem on 30.6.1977 under Ex.a.1. If there was any such deliveryof possession on 30.6.1977 and they have continued suchpossession and enjoyment over the plaint schedule property till the date of filing of the suit in the year 1982 they would have paidat least cist to the Revenue authorities and obtained receipts andalso examined the other co-purchaser of P.W.1. In the absenceof any such evidence, the version of the plaintiff that thedefendants 1 to 4 delivered possession of the plaint scheduleproperty to him and his other 8 purchasers on 30.6.1977 and theysubsequently delivered it to the Plaintiff Society on 16.10.1981under Ex.A.2 and also to say that they have been continuing inpossession and enjoyment of the plaint schedule property is not atall be liable version. The obtaining of layout permission from theGram Panchayat under Ex.A.7 and also writ petition and itsproceedings questioning acquisition of the plaint schedule land bythe plaintiff under Exs.A.17 to A.21 are not at all helpful to saypossession and enjoyment of the plaintiff over the plaint schedulelands. Similarly the evidence of D.Ws.1 to 7 is also not helpful tosay the possession and enjoyment of the plaintiffs over the plaintschedule property and also delivery of possession by thedefendants 1 to 4 on 30.6.1977 under Ex.A.1. Hence, this issue isdecided against the plaintiff.”

19. The view so taken by the Trial Court commended to the HighCourt and has been affirmed by it. We find no reason to deviate fromthe said conclusion as it is not manifestly unreasonable or unjust in thecontext of the evidence on record.

20. Considering the above, we have no hesitation in upholding theconclusion arrived at by both the Courts below that the suit filed by theappellant/plaintiff deserves to be dismissed with costs. In the course ofarguments, it was earnestly urged on behalf of the appellant before usthat if the Court was not inclined to grant the prayer for specificperformance, then this Court may direct the respondents to refund theearnest money paid to them in furtherance of the suit agreements.Ordinarily, such a prayer could be considered but in the peculiar facts ofthe present case, it may not be possible to entertain the same, not onlybecause no such express prayer is sought in the plaint filed by theappellant/plaintiff before the Trial Court, but also because accepting thatprayer would result in taking a contradictory approach with the findingof the Trial Court and affirmed by the High Court and by us, that the AB

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Aappellant/plaintiff had failed to prove the factum of payment of earnestmoney amount to the owners of the suit property. Notably, the factum ofexecution of the suit agreements in itself is doubted. In view of theabove, no relief can be granted to the appellant/plaintiff in the factsituation of this case.

B21. We accordingly dismiss both the appeals with costs.

Nidhi Jain

Appeals dismissed.

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