VUNDAVALLI RATNA MANIKYAM & versus V.P.P.R.N. PRASADA RAO on 6 February 2020

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 25.07.2014 passed by the High Court ofJudicature at Hyderabad for the State of Telangana and for the State ofAndhra Pradesh in Appeal Suit No. 3511 of 1992, whereby the HighCourt has allowed the said appeal suit filed by the respondent herein –original plaintiff and has quashed and set aside the judgment and decreepassed by the learned trial Court in O.S. No. 55 of 1986 dismissing thesuit and consequently decreeing the suit of the respondent herein – originalplaintiff for specific performance of the agreement to sell dated 7.5.1981,the original defendants in O.S. No. 55 of 1986 have preferred the presentappeal.

3. The facts leading to the present appeal in nutshell are as under:

That one Nimmalapudi Ramaswami – husband of originaldefendant no.1 was the original owner of the suit land. That the said AB

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ANimmalapudi Ramaswami agreed to sell the suit land by executingagreement to sell dated 7.5.1981 in favour of the original plaintiff for asale consideration of Rs.59,200/-. He received an advance saleconsideration of Rs.26,500/- on the same day. As per the agreement tosell, the balance sale consideration was required to be paid within fourBmonths. However, the time was extended making endorsement on thereverse of the original agreement to sell for another period of eight months.But during the extended period, the State Government initiated landacquisition proceedings for acquiring the suit property. The original landowner – Nimmalapudi Ramaswami and the plaintiff made a representation for deleting the suit property from the proposed landCacquisition. At this stage, it is required to be noted that in the representationmade to the Assistant Collector, the original land owner categoricallyadmitted that he has sold the suit land to the plaintiff for considerationand delivered possession of the land to the plaintiff. The plaintiff alsostated in the said representation that he has purchased the property underDthe agreement to sell and has taken possession of the property in question.That thereafter the State Government issued notification under Section4 of the Land Acquisition Act, vide notification dated 21.09.1981.

3.1 The said notification came to be challenged by the plaintiffand another by filing Writ Petition No. 3161 of 1983. The said writ petitionEcame to be allowed and the notification came to be set aside by judgmentand order dated 22.11.1984. Appeal against the judgment of the HighCourt came to be dismissed by the Division Bench vide order dated4.2.1985. After the death of the original land owner – NimmalapudiRamaswami, the original defendant no.1 – wife of NimmalapudiRamaswami executed a sale deed in favour of original defendant no.2 –FBogilla Satyanarayana Murthy. Apprehending that the wife of lateNimmalapudi Ramaswami – original defendant no.1 – NimmalapudiVeeramma and the said Bogilla Satyanarayana Murthy may interferewith his possession, the original plaintiff – respondent herein filed O.S.No. 24 of 1984 in the Court of District Munsiff Court,GRamachandrapuram against the aforesaid two for permanent injunctionand obtained a temporary injunction. The aforesaid suit was subsequentlytransferred to the District Munsif Court, Alamuru which was registeredas O.S. No. 188/1984 and later the said suit was transferred to theSubordinate Judge, Ramachandrapuram and registered as O.S. No. 94/H1989 claiming permanent injunction restraining Bogilla SatyanarayanaMurthy and his men from interfering with his possession.

VUNDAVALLI RATNA MANIKYAM & ANOTHER v.V.P.P.R.N. PRASADA RAO [M. R. SHAH, J.]

3.2 That thereafter the plaintiff got issued a legal notice dated20.01.1986 to original defendant no.1 – widow of late NimmalapudiRamaswami and Bogilla Satyanarayana Murthy claiming specificperformance of the agreement to sell dated 7.5.1981. Original defendantno.1 – Nimmalapudi Veeramma replied to the aforesaid notice vide replynotice dated 31.1.1986 contending that she has already sold the propertyto Bogilla Satyanarayana Murthy for a valuable consideration andconsequently refused to execute the sale deed. Therefore, the respondentherein – original plaintiff filed O.S. No. 55/1986 on the file of SubordinateJudge, Ramachandrapuram against the appellants herein – originaldefendants on 23.4.1986 for specific performance of the agreement tosell dated 7.5.1981. Alternatively, the plaintiff prayed to refund theadvance amount of Rs.26,500/- together with interest @ 18% per annumand award of damages of Rs.25,000/-.

3.3 That the said suit was resisted by original defendant no.1 –Nimmalapudi Veeramma by filing the written statement contending thatafter the death of her husband Nimmalapudi Ramaswami she was put inpossession of the schedule property and she executed an agreement tosell dated 16.2.1983 and sold the suit property for Rs.20,000/- and receivedan advance of Rs.2,000/- and thereafter executed a registered sale deeddated 8.7.1983 in favour of defendant no.2 – Bogilla SatyanarayanaMurthy and delivered possession to him on 10.05.1983. It was alsocontended that the alleged agreement to sell dated 7.5.1981 is not trueand valid and it is a collusive agreement brought into existence byNimmalapudi Ramaswami in anticipation of the land acquisitionproceedings. Original defendant no.1 prayed to dismiss the suit filed bythe plaintiff.

3.4 Original defendant no.2 – Bogilla Satyanarayana Murthy alsofiled the written statement in O.S. No. 55/1986. It was the case onbehalf of original defendant no.2 that he is a bonafide purchaser for avalid consideration and he is in possession and enjoyment of the same byexecuting the sale deed in his favour executed by the wife of lateNimmalapudi Ramaswami.

3.5 That both the aforesaid suits being O.S. No. 55/1986 (suit forspecific performance) and O.S. No. 94/1989 (suit for permanentinjunction) were consolidated and heard together. In both the suits, thelearned trial Court framed the issues. That both the plaintiffs and thedefendants led the evidence, both oral as well as documentary. That onappreciation of evidence on record, the learned trial Court believed the A

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Aexecution of agreement to sell dated 7.5.1981 in favour of the plaintiff.The learned trial Court also believed the possession of the plaintiff at thetime of filing of the suit. However, the learned trial Court denied thespecific performance of the agreement to sell dated 7.5.1981 only onthe ground that the claim for specific performance is barred by limitation.

3.6 The learned trial Court decreed O.S. No. 94/1989 and grantedpermanent injunction restraining the appellants – original defendants tointerfere with the peaceful possession and enjoyment of the property inquestion having found that the plaintiff is in possession and enjoyment ofthe property.

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C3.7 Aggrieved by the common judgment and decree passed bythe learned trial Court passed in O.S. No. 55 of 1986 in dismissing thesuit for specific performance of the agreement to sell dated 7.5.1981,the original plaintiff filed Appeal Suit No. 3511/1992 before the HighCourt. The original defendants in O.S. No. 55/1986 also filed Tr.A.S.No. 439/2006 challenging the adverse findings on issue nos. 1 to 5 inDO.S. No. 55/1986, i.e., believing the agreement to sell in favour of theplaintiff and believing the possession of the plaintiff under the agreementto sell dated 7.5.1981. At this stage, it is required to be noted that thelearned trial Court dismissed the suit on the ground of limitation consideringArticle 54 of the Limitation Act. However, it was the specific case onEbehalf of the plaintiff that Article 113 of the Limitation Act would beapplicable and therefore the suit is within the period of limitation.

3.8 That by the impugned common judgment and order, the HighCourt has allowed the appeal suit no. 3511/1992 preferred by the originalplaintiff and has quashed and set aside the judgment and decree passedFby the learned trial Court dismissing the suit for specific performanceand consequently has decreed the suit for specific performance applyingArticle 113 of the Limitation Act. By the impugned common judgmentand order the High Court has also dismissed Tr.A.S. No. 439/2006 andTr.A.S. No. 962/2013 preferred by the original defendants confirmingthe findings on issue nos. 1 to 5 in O.S. No. 55/1986 and also confirmingGthe judgment and decree of permanent injunction in O.S. No. 94/1989.

3.9 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court, the original defendantshave preferred the present appeal. It is required to be noted that what ischallenged in the present appeal is the judgment and order passed by the H

High Court in A.S. No. 3511/1992 only, vide which the High Court hasallowed the said appeal preferred by the original plaintiff and consequentlyhas decreed the suit for specific performance of agreement to sell dated7.5.1981 in favour of the original plaintiff.

4. Learned Advocate appearing on behalf of the appellants –original defendants has vehemently submitted that in the facts andcircumstances of the case the High Court has materially erred in quashingand setting aside the judgment and decree passed by the learned trialCourt dismissing the suit on the ground of limitation.

4.1 It is further submitted by the learned Advocate appearing onbehalf of the appellants – original defendants that the High Court hasmaterially erred in not properly appreciating the fact that the learnedtrial Court rightly dismissed the suit on the ground of limitation applyingArticle 54 of the Limitation Act. It is submitted that, in the facts andcircumstances of the case, Article 113 of the Limitation Act shall not beapplicable.

4.2 It is further submitted by the learned Advocate appearing onbehalf of the appellants – original defendants that as per the originalagreement to sell dated 7.5.1981 the sale deed was required to beexecuted within four months from the date of execution of the agreementto sell and even the same was extended up to 6.5.1982 only. It is submittedthat therefore the limitation for filing the suit by the plaintiff would bethree years from 6.5.1982 as provided under Article 54 of the LimitationAct. It is submitted therefore as rightly held by the learned trial Courtthe suit of the plaintiff was barred under Article 54 of the Limitation Act.

4.3 It is further submitted by the learned Advocate appearing onbehalf of the appellants – original defendants that the High Court oughtto have seen that taking a stray sentence in Ex.A1 (agreement to sell)that vendor has to settle all the disputes in the property cannot be termedas implied covenant.

4.4 It is further submitted by the learned Advocate appearing onbehalf of the appellants – original defendants that the High Court oughtto have appreciated that there has been a valid sale by the widow of thevendor in favour of appellant no.2 herein – Bogilla Satyanarayana Murthyand the said sale deed was acted upon by the widow and as she was inpossession, she put appellant no.2 herein into possession of the suitproperty.

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A4.5 It is further submitted by the learned Advocate appearing onbehalf of the appellants – original defendants that the High Court oughtto have appreciated that till notice dated 20.1.1986 was served uponappellant no.2 – original defendant no.2, appellant no.2 was not awareof the alleged agreement to sell dated 7.5.1981 in favour of the plaintiff.It is submitted that appellant no.2 herein – original defendant no.2 is aBpurchaser without notice of the existence of the earlier agreement andon payment of full sale consideration. It is submitted that therefore theHigh Court has materially erred in allowing the appeal and decreeing thesuit for specific performance in favour of the plaintiff.

4.6 Making the above submissions, it is prayed to allow the presentCappeal.

5. The present appeal is vehemently opposed by Mrs. K. SaradaDevi, learned Advocate appearing on behalf of the original plaintiff –respondent herein.

5.1 It is submitted by the learned Advocate appearing on behalfof the respondent herein - original plaintiff that in the facts andcircumstances of the case, the High Court has not committed any errorin decreeing the suit relying upon and applying Article 113 of the LimitationAct.

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E5.2 It is further submitted by the learned Advocate appearing onbehalf of the respondent herein - original plaintiff that so far as theexecution of agreement to sell dated 7.5.1981 by original land owner –Nimmalapudi Ramaswami and that the plaintiff was put in possessionthere are concurrent findings of fact by the learned trial Court as well asthe High Court, which are on appreciation of evidence on record.F

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5.3 It is further submitted by the learned Advocate appearing onbehalf of the respondent herein - original plaintiff that after the executionof the agreement to sell dated 7.5.1981 and after the time to make thepayment and execution of the sale deed was extended by a further periodof eight months, the land acquisition proceedings were initiated and itGwas the plaintiff who challenged the acquisition proceedings and in thepetition filed by him the acquisition proceedings came to be set aside andthe writ petition was allowed. It is submitted that as mentioned in theagreement to sell – Ex. A1 it was for the vendor to settle all the disputesin the property. It is submitted that after the land acquisition proceedingscame to be quashed by the High Court and thereafter when the plaintiffH

served a notice upon the defendants to execute the sale deed andthereafter there was a denial by original defendant no.s 1 & 2 thereafterthe suit has been filed within a period of three years. It is submitted thattherefore Article 113 of the Limitation Act would be applicable and thesame is rightly applied by the High Court.

5.4 It is further submitted by the learned Advocate appearing onbehalf of the respondent herein - original plaintiff that even and asobserved by the High Court in the impugned common judgment andorder, the execution of the agreement to sell dated 7.5.1981 has notbeen disputed by the defendants. It is submitted that however it wastheir defence that the said agreement to sell was to defeat the landacquisition proceedings. It is submitted that therefore when the agreementto sell dated 7.5.1981 has been admitted by the defendants and the plaintiffwas always ready and willing to perform his part of the contract and allthroughout it was the plaintiff who challenged the acquisition proceedingswhich shows the bonafides on the part of the plaintiff, the High Courthas rightly allowed the appeal and consequently has rightly decreed thesuit for specific performance of the agreement to sell dated 7.5.1981.

5.5 It is further submitted by the learned Advocate appearing onbehalf of the respondent herein - original plaintiff that as such there is noappeal preferred by the defendants challenging the impugned commonjudgment and order passed by the High Court insofar as dismissing theirappeals being Tr.A.S. No. 439/2006 and Tr.A.S. No. 962/2013 by whichthe High Court specifically confirmed the findings on issue nos. 1 to 5 inO.S. No. 55/1986 and also confirmed the judgment and decree ofpermanent injunction in favour of the plaintiff in O.S. No. 94/1989.

5.6 It is further submitted by the learned Advocate appearing onbehalf of the respondent herein - original plaintiff that as such the plaintiffis in possession of the suit property since 1981 and therefore also thepresent appeal is required to be dismissed.

5.7 It is further submitted by the learned Advocate appearing onbehalf of the respondent herein - original plaintiff that even otherwiseand with a view to put an end to the litigation the plaintiff is ready andwilling to pay some more amount than what is required to be paid underthe agreement to sell.

5.8 Making the above submissions, it is prayed to dismiss thepresent appeal.

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A6. In reply, learned Advocate appearing on behalf of the appellants– original defendants has submitted that if the impugned judgment andorder passed by the High Court is set aside and the property/land inquestion is reverted back to the appellants -, the appellants are readyand willing to pay a handsome amount to the plaintiff.B7. We have heard the learned counsel for the respective partiesat length and perused and considered the impugned common judgmentand order passed by the High Court as well as the judgment and decreepassed by the learned trial Court.

7.1 At the outset, it is required to be noted that the original plaintiffCinstituted the suit for specific performance of agreement to sell dated7.5.1981 (Ex.A1). It is not in dispute that under the agreement to selldated 7.5.1981, the sale deed was to be executed within a period of fourmonths from the date of execution of agreement to sell i.e. 7.5.1981.However, thereafter time was extended by a further period of eightmonths i.e. up to 6.5.1982. However, before any further steps could beDtaken by the plaintiff and the original vendor, the suit property wassubjected to the acquisition by the State Government. It was the plaintiffwho made a representation to the Assistant Collector and requested fordeletion of the property from the acquisition. A similar representationwas made by the original vendor also. It is required to be noted that inEthe representations both the vendor and the vendee specifically statedthat the land in question has been sold in favour of the plaintiff and thathe is in possession. Therefore, the original vendor as such admitted theexecution of the agreement to sell dated 7.5.1981 as well as handingover the possession of the suit property to the plaintiff. Therefore, thelearned trial Court as such rightly believed the execution of the agreementFto sell dated 7.5.1981 as well as handing over of possession to the plaintiff.The same is rightly confirmed by the High Court.

7.2 However, the trial Court dismissed the suit solely on the groundthat the suit for specific performance was barred by limitation applyingArticle 54 of the Limitation Act. On the other hand, it was the specificGcase on behalf of the plaintiff that in the facts and circumstances of thecase Article 113 of the Limitation Act shall be applicable as the suit wasfiled within a period of three years when the right to sue accrued.According to the plaintiff, the right to sue accrued when the plaintiffserved a notice upon the defendants to execute the sale deed and theHdefendants refused to execute the sale deed. At this stage, it is required

to be noted that under the agreement to sell it was for the vendor tosettle all the disputes in the property. As the land in question was subjectedto the acquisition and thereafter the acquisition proceedings came to bequashed and set aside at the instance of the plaintiff in the year 1984/1985 and thereafter the plaintiff served a legal notice upon the defendantson 20.01.1986 calling upon the defendants to execute the sale deed whichcame to be refused by reply notice dated 31.1.1986 and thereafter thesuit for specific performance was preferred, as rightly observed by theHigh Court, Article 113 of the Limitation Act would be applicable andnot Article 54 of the Limitation Act as applied by the learned trial Court.We are in complete agreement with the view taken by the High Court inapplying Article 113 of the Limitation Act. As observed hereinabove, thelearned trial Court dismissed the suit solely on the ground that the suit isbarred by limitation considering Article 54 of the Limitation Act thoughall other findings with respect to the execution of agreement to sell., theplaintiff was put in possession etc. were held to be in favour of theplaintiff.

7.3 Therefore applying Article 113 of the Limitation Act to thefacts of the case on hand and the conduct of the plaintiff all throughoutto protect not only his possession but to protect the property fromacquisition and that he was always ready and willing to perform his partof the agreement to sell/contract, the High Court has rightly decreed thesuit for specific performance. We are in complete agreement with theview taken by the High Court.

7.4 However, at the same time, considering the fact that theagreement to sell was executed in the year 1981 for a total saleconsideration of Rs.59,200/- and at the relevant time Rs.26,500/- waspaid as an earnest money and all throughout the plaintiff enjoyed thepossession and thereafter by now about 40 years have passed and asagreed by the plaintiff to pay some more amount to the defendants, overand above the sale consideration as mentioned in the agreement to sell,which he has agreed to pay to put an end to the litigation and to buypeace, while dismissing the present appeal, we direct that the plaintiffshall pay a total sum of Rs.15,00,000/- (Rupees fifteen lakhs only) to thedefendants towards the full sale consideration, which shall be inclusiveof the balance amount of sale consideration to be paid to the defendantsunder the agreement to sell, to be paid within a period of eight weeksfrom today. On payment of the aforesaid amount of Rs. 15,00,000/- AB

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A(Rupees fifteen lakhs only) to the original defendants by the originalplaintiff, immediately thereafter the original defendants are directed toexecute the sale deed in favour of the plaintiff.

8. With the aforesaid observations and directions, the presentappeal stands disposed of, however, no order as to costs.

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Kalpana K. Tripathy

Appeal dismissed.

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