1O.S.No.173/2012 dt. 15.03.2021
IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: NELLORE
Present: Sri A.Ramesh, I Additional Junior Civil Judge, (FAC) Principal Junior Civil Judge,
NELLORE
Monday, this the Fifteenth (15th) day of March, 2021.
ORIGINAL SUIT No. 173/2012
Nannam Ramanamma .. Plaintiff
Vs.
1. Asthoti srinivasulu
2. Asthoti Siva Kumar
3. Asthoti Narasamma
4. Amavarapu Ravindra
5. Amavarapu Rajeswari
6. Asthoti Subbaiah.. Defendants.
This suit coming on 22.02.2021 for final hearing before me in the presence of
Sri M.Sreenivasulu and Sri Sk.Nagooru, Advocates for the plaintiff and defendants 1 to 3 having been absent and set exparte and Sri D.Venkata
Ramaiah, Advocate for defendants 4 to 6, upon hearing both sides arguments and the matter having stood over for consideration till this day, this Court delivered the following:-
J U D G M E N T
Initially, this suit filed by the plaintiff against the defendants 1 to 6 before this Court in O.S.No.173/2012, praying the court (a) to direct the defendants to execute Registered sale deed dated 8.5.2006 in favour of plaintiff within the time specified by the Court at the expenses of plaintiff, failing which the same may be done through process of court and also granting permanent injunction restraining the defendants 4 to 6, their men, agents, representatives, assignees etc., from interfering with the peaceful possession and enjoyment of plaintiff over the plaint schedule property and for costs. Subsequently, as per Proceedings of the Hon’ble Principal District
Judge, Nellore, the entire record in O.S.No.173/2012 on the file of this Court
was transferred to Principal Junior Civil Judge’s court, Nellore vide
Dis.No.1235 dt.21.02.2018 and proceeded further as per law for disposal.
2O.S.No.173/2012 dt. 15.03.2021
2. The case of the plaintiff is that one Asthoti Masthanaiah was the absolute owner of the plaint schedule property. The plaint schedule property and other properties were mutated in the revenue records of kantepalli village as on 27.11.1957 in the name of Asthoti Masthanaiah, the father of defendants 1 and 2 and husband of 3rd defendant as absolute owner thereof. While the things stood thus, the said Asthoti Masthanaiah sold the plaint schedule property to plaintiff for a valid consideration of Rs.25,000/- on 08.05.2006 under an Agreement of sale and since then, the plaintiff has been in exclusive possession and enjoyment over the plaint schedule property. As per the covenants of Agreement of sale dated 08.05.2006, the material part of terms of contract or covenants under Agreement of sale have been satisfied by plaintiff itself, except the formal part of contract of securing the
Registered sale deed in the name of plaintiff. Though the plaintiff is ready and willing to perform her remaining immaterial part of contract of securing
Registered sale deed in terms of Agreement of sale dated 08.05.2006, the said Asthoti Masthanaiah was postponing the same due to his ill-health and on 21.09.2010 he died intestate without executing the Registered sale deed in the name of plaintiff, leaving behind the defendants 1 to 3 as his sons and wife-cum-Class-1 legal heirs. After knowing the same, the plaintiff approached the defendants 1 to 3 and requested them to execute regular
Registered sale deed at her expenses, but the defendants 1 to 3 protracting the same and gave evasive replies without co-operating for execution of sale deed. The plaintiff erected a thatched house therein to avoid the misuse of site and also to avoid unnecessary encroachments if any over plaint schedule site.
(b)Taking advantage of non-execution of Registered sale deed, from 31.03.2012 onwards, the defendants 4 to 6 colluded together by demanding a share in the plaint schedule property and are frequently interfering with 3O.S.No.173/2012 dt. 15.03.2021 the peaceful possession and enjoyment of the plaintiff over the plaint schedule property and are hurling threats on the plaintiff without having no right, interest or whatsoever over the plaint schedule property. The plaintiff being woman is not in a position to resist the high handed acts of defendants 4 to 6 as they are economically powerful and politically influenced persons.
The plaintiff is in helpless condition to resist the highhanded acts of defendants 4 to 6 and to secure the presence of defendants 1 to 3 for obtaining regular Registered sale deed in terms of Agreement of sale dated 08.05.2006. Hence the plaintiff is constrained to file the suit. Hence, the suit.
On 04.05.2012 the defendants 1 to 3 remained absent and set exparte.
3. On appearance, the defendant Nos. 4 and 5 filed their written statement and the same was adopted by defendant No.6, denying all the allegations specifically made in the plaint and contended that the plaint schedule property and other properties were originally belonged to the government.
The land comprised in Sy.No.294-9 in an extent of Ac.0-76 cents, Patta
No.435 originally belonged to the government and the government issued the said lands under Lease under C.J.F.S. The Revenue Divisional Officer,
Nellore is pattadar thereof and the leaseholders are not entitled to alienate the same and they are entitled to cultivate the said land for their livelihood.
Except the pattadr i.e., Revenue Divisional officer, Nellore, no other is having right in respect of the land issued under lease under C.J.F.S scheme. Hence the said Asthoti Masthanaiah is not having any right or title over the said property and hence the plaintiff will not get any right or title under the guise of alleged Agreement of sale dated 08.05.2006 which is a fabricated document brought into existence and in collusion with the defendants 1 to 3 with malafide intention to knock away the property absolutely belongs to the
Government.
4O.S.No.173/2012 dt. 15.03.2021
The defendants 4 to 6 further contended that the 5th defendant occupied the land comprised in Sy.No.294-9 in Kantepalli village in an extent of 13 ankanams of site and therein, she constructed a thatched house. The said land was converted into house sites. Subsequently, the Tahsildar,
Venkatachalam issued Possession Certificate in favour of 5th defendant and since then she has been in possession and enjoyment of the same. The panchayat also issued No Objection Certificate for obtaining electricity service connection and 5th defendant also applied for electricity service connection in respect of the house constructed by her therein. Thus, the defendants 4 and 5 are in peaceful possession and enjoyment of the property in an extent of 30 ankanams comprised in Sy.No.294-9 at Kantepalli village and prays to dismiss the suit with costs.
4.Basing on the above pleadings the following issues are framed by my learned predecessor in office:- (1)Whether the plaintiff is entitled for specific performance of contract as prayed for from defendants 1 to 3?
(2) Whether the plaintiff is entitled for permanent injunction as prayed for ?
(3) To what relief?
On 26.07.2017, the following additional issues are framed:
(1) Whether the suit schedule property is C.J.F.S land belonged to Revenue Divisional Officer, Nellore?
(2) Whether Agreement of sale dated 08.05.2006 is an invalid document as it relates to government C.J.F.S land?
5. On behalf of the plaintiff, PWs.1 to 4 are examined and got marked
Exs.A.1 to A.5 and also got marked Exs.X.1 to X.7 through P.W.4.
(i) On behalf of the defendants 4 to 6, defendant Nos.5 and 6 themselves were examined as D.Ws.1 and 2 and got marked Exs.B.1 to B.9.
5O.S.No.173/2012 dt. 15.03.2021
6. Heard the arguments of both side counsels. Both sides filed written arguments apart from the oral arguments, and I have perused the entire material available on record.
7. The plaintiff in her written arguments contended that defendants 1 to 3 though received summons, did not appear and file written statement on their behalf denying suit claim. On the other hand, 3rd defendant was examined as
PW.2. PW.2 supported the entire case of plaintiff on all material particulars.
Therefore, it may be presumed that the defendants 1 to 3 have admitted the case of plaintiff in its entirety. The learned counsel for plaintiff raised objection that the defendant obtained Ex.B1 by influencing the then
Tahsildar over the property of plaintiff and on the basis of Ex.B1 other documents are manipulated by the defendants in support of their defense.
The un-impeached oral evidence of PW.1 corroborated by the oral evidence of PWs.2 and 3 followed by Exhibits A1 and A2 prima-facie proof the genuineness and contents of Ex.A1 agreement of sale, its execution and passing of entire sale consideration there under including the exclusive possession of plaintiff in respect of the entire plaint schedule property. Other points of cross examination prima-facie prove that Exhibits B1 to B8 are manipulated documents. There are material contradictions between the oral evidence of DWs.1 and 2. On the face of Ex.B1, plaintiff and her vendor are shown having site in S.No.294/9 of Kantepalli.
8. The conjoint reading of oral evidences of Pws.1 to 4, judicial admissions made by DW.1 in her cross-examination, documents marked under Exs.A1 to
A5 clearly proved the sale transaction under Ex.A1, interest created infavour of PW.1 and her entitlement to seek specific performance thereof, since there are traces to the effect that Asthoti Masthanaiah has been enjoying the property ever since from his four father on wards and his name was mutated in the Revenue Records as on 27.11.1957 much prior to the alleged formation of C.J.F.S lands in the year 1976.
6O.S.No.173/2012 dt. 15.03.2021
9. The defendants 4 to 6 filed written arguments submitted that the plaint schedule property and the other properties were originally belonged to the
Government. The land comprised in S.No.294-9 in an extent of Ac.0.76 cents patta No.435 originally belonged to the Government and the Government issued the said lands under lease under C.J.F.S. The Revenue Divisional
Officer, Nellore is pattadar thereof. They further mentioned that except the pattadar i.e. Revenue Divisional Officer, Nellore no other is having right in respect of the land leased out under C.J.F.S. scheme. Hence, the said Asthoti
Masthanaiah is not having any right or title over the said property. Hence, the plaintiff will not get any right or title under the guise of the alleged agreement of sale dated 08.05.2006. the alleged agreement of sale is a fabricated document brought into existence and in collusion with the defendant Nos. 1 to 3 with malafide intention to knock away the property absolutely belongs to the Government and the defendant No.5.
10. It is further mentioned that the 5th defendant occupied the land comprised in Sy.No.294/9 in Kantepalli village in an extent of 30 ankanams of site and she constructed a thatched house therein. The said land was converted in to house sites. Subsequently, the Tahsildar, Venkatachalam issued possession certificate in favour of the 5th defendant and since then she has been in possession and enjoyment of the same. The lease holders are not entitled to alienate the same and they are entitled to cultivate the said land for their livelihood.
11. Additional ISSUE Nos.1 and 2:
In view of facts and circumstances of the case additional issue Nos.1 and 2 dated 26.07.2017 framed as per orders in IA.No.99/2017 are taken first to answer the same in order to avoid the reiteration of facts.
12. It is the case of the plaintiff that one Asthoti Masthanaiah was the absolute owner of the plaint schedule property having secured the same from his fore fathers for more than 80 years. The plaint schedule property 7O.S.No.173/2012 dt. 15.03.2021 and others properties were mutated in the revenue records of Kantepalli village as on 27.11.1957 in the name of Asthoti Masthanaiah. While he was alive sold the plaint schedule property to the plaintiff for a valid consideration of Rs.25,000/- on 08.05.2006 under an Agreement of Sale and delivered the plaint schedule property to the plaintiff by receiving full consideration. From then onwards, the plaintiff is in peaceful possession and enjoyment of the schedule property with absolute right, interest and title.
The plaintiff is always been ready and willing to perform her part of contract to securing registered sale deed in terms of agreement of sale. She orally requested Asthoti Masthanaiah time and again by going to his house, but he was postponing to execute registered sale deed on 01.08.2020. As the said
Asthoti Masthanaiah died on 21.09.2010, she approached the defendant Nos.
1 to 3 and requested them to execute Registered sale deed. But they did not execute the registered sale deed. By taking advantage of non-execution of registered sale deed in favour of the plaintiff, the defendant Nos. 4 to 6 colluded together and illegally demanding share in the plaint schedule property and trying to interfere with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property.
13. It is the specific case of the defendant Nos. 4 to 6 that the plaint schedule property and other properties were originally belongs to the government. The land comprised in Sy.No.294-9 in an extent of Ac.0-76 cents, Patta No.435 originally belongs to the government and the government issued lease under C.J.F.S Scheme. The revenue Divisional
Officer is the pattadar for the C.J.F.S land. The leaseholders are not entitled to alienate the same and they are entitled to cultivate the said lands for their livelihood. The said Asthoti masthanaiah is not having any right or title over the plaint schedule property, as such the plaintiff will not get any right or title under Agreement of sale dated 08.05.2006 which was brought into existence by colluding with the defendant Nos. 1 to 3. The defendant No.5 8O.S.No.173/2012 dt. 15.03.2021 occupied the land comprised in S.No.294/9 in Kantepalli village in an extent of 13 ankansms of site and she constructed a thatched house therein. The above said land was converted into house sites and the Tahsildar,
Venkatachalam issued Possession Certificate in favour of defendant No.5 and she has been in peaceful possession and enjoyment of the same. She also obtained electricity service connection to the said house. They further contended that the defendant Nos. 4 and 5 are in possession of 30 ankanams in S.No.294-9 of Kantepalli village.
14. In order to prove the case of the plaintiff, the plaintiff herself examined as P.W.1. She filed her chief-affidavit in lieu of her chief-examination. She reiterated the plaint contents in her chief-examination affidavit. In her cross- examination, she deposed that suit schedule property is situated in
S.No.294/9. She does not know whether the Sy.No.294/9 of Nellore Revenue
Divisional Officer is the pattadar. She does not whether Asthothi
Masthanaiah obtained lease patta from Revenue Divisional Officer, Nellore under Co-operative Joint Farming Society and the suit schedule property is a part of it. She knows the defendant No.5 who is her own brother’s wife. She further deposed that she is residing in Nellore. She knows that the government issued lease pattas to the landless poor persons of Kantepalli village in respect of said 116 acres as C.J.F.S land. She further admitted that “the suit property is in Survey No.294 and the suit schedule property was given to one Asthoti Masthanaiah by issuing lease patta” .She does not know whether CJFS lands cannot be alienated, but it can be enjoyed by the allottee. She further admitted that she knows that the Tahsildar,
Venkatachalam issued Possession Certificate in respect of 13 ankanams in favour of defendant No.5. The Tahsildar has no right to issue Possession
Certificate and she filed a petition against him. She further deposed that she demolished the said house got constructed by defendant No.5. She denied a 9O.S.No.173/2012 dt. 15.03.2021 suggestion that she is not entitled any right under invalid agreement and for specific performance of agreement of sale and for permanent injunction.
15. For corroborating the evidence of P.W.1, she got examined P.W.2 who is third defendant in the main suit. She filed her chief-affidavit in lieu of her chief-examination by following the lines of P.W.1. She deposed in the cross- examination that she does not know the survey numbers as she is an illiterate. She admitted that the Revenue Divisional Officer given lands on lease to her villagers under Co-operative Joint Farming Society. The Revenue
Divisional Officer given pattas. She further admitted that her husband also taken land from Revenue Divisional officer. Her husband cultivating Ac.0.90 cents of land from his forefathers. He has no documentary proof to show that her husband cultivating Ac.0-90 cents of land from his forefathers. She further admitted that the land given by Revenue Divisional officer I.e the land belongs to the government shall not be permitted to sell away to others.
Her husband sold away Ac.0.90 cents of land due to his ill-health to one
Annam Ramanamma who is her daughter-in-law. She does not know how much amount taken by her husband from the plaintiff under alleged
Agreement of sale dated 08.05.2006.
16. The plaintiff also examined P.W.3 . He filed his chief-affidavit in lieu of his chief-examination. He reiterated the plaint contents in his chief- examination. In his chief-examination, he mentioned that the plaintiff purchased the plaint schedule site in an extent of 66 ankanams bearing
Patta No.435, Survey No.294/9 situated in Kantepalli village for Rs.25,000/- on 08.05.2006. The said Asthoti Masthanaiah subscribed his signature in an
Agreement of sale. Himself and D.Krishnaiah subscribed their signatures as 1st and 2nd attestors respectively. The said Asthoti Masthanaiah handed over the plaint schedule property to the plaintiff. In his cross-examination, he deposed that the government given lands to his villagers. He does not know 10O.S.No.173/2012 dt. 15.03.2021 whether the government given any land to Asthoti Masthanaiah. He signed in the year 2005 or 2006.
17. To corroborate the evidence of plaintiff, the Tahsildar, Venkatachalam was examined as P.W.4 besides examining the PWs2 and 3. In his chief- examination, he deposed that the land mentioned in Survey No.294/9 is
C.J.F.S land. He has no record to show that Asthoti Masthanaiah having right over the land. But as per his record for the fasali year 1421, Asthoti
Masthanaiah mentioned as enjoydar for an extent of Ac.0-76 cents as per
No.3 adangal. Except that there is no record in the name of Asthoti
Masthanaiah having right in Survey No.294/9 which is Co-operative Joint farming Society land. As per it, the landlord is Revenue Divisional Officer for government, leaseholder is enjoydar. The same is not alienable and not transferable by the leaseholders. The Revenue Divisional officer is Chairman and pattadar for C.J.F.S lands. In his chief-examination, he further deposed that as per Ex.X-5, Asthoti Masthanaiah shown in Survey No.294/9 for an extent of Ac.0-76 cents and property belongs to government in S.No.1223 for the year 2011-2012. In his cross-examination, he deposed that the
Sy.No.294/9 (plaint schedule property) is C.J.F.S land as per 10-1 Register from 1976. Asthoti Masthanaiah has no right to sell away C.J.F.S lands relating to Survey No.294/9. The purchasers are not entitled any right on the basis of Sale Agreement.
18. In order to prove the case of the defendants, the defendant No.5 examined herself as D.W.1. She filed her chief-examination affidavit in lieu of her chief-examination by reiterating the contents of her written statement.
In her cross-examination, she deposed that Ex.B.3 contains one Asthoti
Masthanaiah is the enjoydar under Ex.B.3. Ex.B.2 is issued by Village
Revenue Officer and there is no counter sign by the Tahsildar. In Ex.B.2 enjoydar is Asthoti Masthanaiah. She submitted an application for house site patta to Tahsildar, Venkatachalam. As per Ex.B.1, the western boundary is 11O.S.No.173/2012 dt. 15.03.2021
Asthoti Masthanaiah, northern boundary is Nannam Ramanamma (plaintiff).
Her husband is own brother of plaintiff. She denied the suggestion that in the above incidents, her husband got created Exs.B.1 to B.8 false documents to grab 30 ankanams out of the suit schedule property.
19. To corroborate the evidence of D.w.1, the defendant No.6 was examined as D.W.2. He filed his chief-affidavit in lieu of his chief-examination by following the lines of chief-affidavit of D.W.1. In his cross-examination, he deposed that the disputed property situated to southern side to his house.
The plaintiff occupied government land as she is claiming the government land and she is not belongs to Kantepalli and she is resident of Nellore. The plaint schedule property is a house site. He has gone through Ex.B.1. As per
Ex.B.1, the northern boundary is Nannam Ramanamma (Plaintiff). As per
Ex.B.1 western side Asthoti Masthanaiah. He further stated that Asthoti
Masthanaiah is some other person in his village, so many persons with the surname of Asthoti.
20. The case of the plaintiff is that the defendant Nos.1 to 3 supported the case of the plaintiff and defendant No.3 was examined as P.W.2. It is found from the record that defendant No.3 supported the case of the plaintiff and defendant No.3 was also examined as PW.2. But there is no explanation that if the agreement of sale is valid and plaint schedule property is the absolute property of the deceased Asthoti Mastanaiah, why they have not executed regular registered sale deed so far. More over, the plaintiff and defendants
Nos.1 to 5 all are relatives.
21. Ex.A.2 is the representation to Tahsildar, Venkatachalam Mandal, Nellore to not to issue any possession certificate or Darakasthu patta in respect of schedule property in favour of Amavarapu Ravindra, S/o Subbaiah or
Amavarapu Rajeswari or for cancel if already issued the same. Ex.A.3 is the notice given by Amavarapu Haindhavi, wherein it is mentioned that notice 12O.S.No.173/2012 dt. 15.03.2021 schedule property is the assigned land. Ex.A.4 is the reply notice wherein he stated that notice schedule property is the government property .
22. Coming to the oral evidence, the PW.1 to PW.3, they categorically admitted that suit schedule property was situated in Sy.No.294/9. The PW.2 also admitted that his husband also taken land from RDO on lease. The admission itself falsifies the case of the plaintiff. Though the PW.1 states that her husband had been cultivating the land since his forefathers and his name is mutated in the revenue records but no piece of document is filed
before this court. Further the MRO, Venkatachalam who was examined as
PW.4 deposed that the land situated in Sy.No.294/9 is belongs to the C.J.F.S land and the RDO is the pattadhar and the lease holder is the enjoydar only.
The same cannot be alienable and if sale is made the same is invalid. It appears from the evidence of both side that the plaint schedule property is situated survey number 294/9. As per the evidence on record the land covered under survey number 294/9 is C.J.F.S land. It appears from the record that the PW.1 purchased the plaint scchedule land without knowing that whether the land covered under survey number 294/9 is C.J.F.S land or not.
23. It is the basic principle that the Buyer must beware while purchasing property either it movable or immovable. Caveat emptor, quia ignorare non debuit quod jus alienum emit (let a purchaser beware, he ought not to be ignorant of the nature of the property which he is buying from another party.
The assumption is that buyer will expect and other-wise ensure that they are confident with that of the product or a land, to which it after refers before complete it a transaction. The buyer must act diligently and must make reasonable enquiries before he purchase the land or article.
24. Thought P.W.1 got marked Exs.A-1 to A-5, no exhibit shows or reveals the right and title of Asthoti Masthanaiah over plaint schedule property.
Further no piece of document is filed by the plaintiff or defendants Nos.1 to 3 13O.S.No.173/2012 dt. 15.03.2021 who support the case of the plaintiff to show that the plaint schedule property is the absolute property of the said Asthoti Masthanaiah. As per the case of the plaintiff, Asthoti Masthanaiah was the absolute owner of the plaint schedule property and secured the same from his forefathers for more than 80 years onwards and having mutated his name in revenue records, but no document is filed by the plaintiff or defendants Nos.1 to 3 to that effect.
Moreover there is a recital in Ex.A1 that plaint schedule property is the self acquired property of the deceased Asthoti Masthanaiah. But they did not file any piece of of paper to show that it is the self-acquired property of the
Asthoti Masthanaiah.
25. It is further contention of the plaintiff that Ex.B-1 shows that plaintiff and her vendor having site in Sy.No.294/9 of Kantepalli. Ex.B-1 is the patta issued to the defendant No.5. As seen from Ex.B-1, the plaintiff and vendor of the plaintiff shown as boundaries as contended by the plaintiff. Mere mentioning the names of the plaintiff and deceased Asthoti Masthanaiah as northern and southern boundaries respectively it does not confer any right or title either on the plaintiff or vendor of the plaintiff.
26. The plaintiff relies on the following decisions:
(1) In between Prakash Chandra Vs. Angadlal and others of Hon’ble
Supreme Court of India (Full Bench) in (1979) AIR (SC) 1241 in Civil Appeal
No.133/1969, wherein our Hon’ble Apex court held that:
The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured an unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that the performance of the contract would involve the respondents in some hardship which they did not foresees. In our opinion, there is no reason why the appellant should not be granted be relief of specific performance.
14O.S.No.173/2012 dt. 15.03.2021 (2) In between Ranga Readdy and another Vs P.Aswarthappa and others of Hon’ble High Court of Andhra Pradesh reported in (2009) 2 ALT 127:
(2009) 3 CivCC 661, wherein our Hon’ble High Court held that:
In a suit for specific performance of agreement of sale based on an agreement of sale in writing when vendor/executant admits execution of agreement, but opposes specific enforcement on some other ground, co- defendants who claim right and interest in the same property may not challenge admission made by vendor/executant, though they can oppose specific enforcement of such agreement of sale of immovable property on other grounds. They cannot challenge the very execution of agreement. In the face of admission made by executant any such challenge by third parties to agreement must be rejected. Further plaintiff need not prove a fact in issue which has been admitted by other party in the pleadings. And admission by a defendant is best evidence, which cannot be ignored or rejected by Court of law. Section 58 of Indian Evidence Act, 1872 lays down that, “no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.”
In a suit for specific performance of agreement of sale of immovable property, defense could be many. Executant of agreement may deny execution or allege fraud and misrepresentation vitiating such execution. In addition to such basic defense, vendor can also oppose a suit for specific performance by taking other grounds as per Sections 12, 14, 15, 16 and 19 of Specific Relief Act 1963. In a given case subsequent purchasers or persons, who acquired ostensible right or interest subsequent to agreement, may also take such pleas, but when once execution is admitted by paramount owner, others cannot ordinarily be permitted to impeach agreement.
4) In Vidhyadhar Vs. Manikarao and another reported in Hon’ble
Supreme Court of India (Division Bench) reported in (1999) AIR (SCW) 1129, wherein it is held that:
Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.
5) Meruva Anji Reddy Vs. Ganaparthi seshaiah and others of Hon’ble
High Court of Andhra Pradesh reported in (2012) AIRCC 354 , wherein, it is held that:
Coming to the question of possession of the 1st respondent over the property, the trial Court as well as the lower Appellate Court held that the agreement of sale - Ex.A.1 was proved. With that, the contents thereof including the one as to delivery of possession stand proved. It is well settled principle of law that where the admitted facts establish the possession of 15O.S.No.173/2012 dt. 15.03.2021 the disputed property with one of the parties, the presumption forwards and backwards can be drawn, and heavy burden rests upon the other party to prove as to how the possession has changed hands. Once Ex.A.1 proves delivery of possession of the property in favour of the 1st respondent in the year 1978, the appellant and respondents 2 and 3 could have justified Ex.B.4 and A.1, only when it is proved that the possession was recovered from the 1st respondent in accordance with the procedure known to law. There was not even an effort, much less, success for the appellant in that behalf. Bereft of possession, Ex.6 and B.1 transactions in favour of Appellant and Respondents 2 and 3 are without any legal consequences.
So far as the entitlement of the respondent to seek the relief of specific performance of contract is concerned, the fact that he paid the entire consideration and that possession was delivered to him assumes significance. It is a situation akin to the one of Section 53A of the Act. It is no doubt true that the court has discretion to grant or refuse relief even if various pleas rounds in a suit for specific performance are proved. However, if the facts of a case are covered by Section 53A of the Act, totally different picture emerges. In Yenugu Achayya and Another Vs. Ernaki Venkata Subba Rao and Others a Division Bench of this court held that apart from providing an effective defence, Section 53A of the Transfer of Property act in itself can constitute the basis to claim title and that a suit can be filed by invoking that provision. Their Lordships held that such suits are covered not only by Section 20 of the Specific Relief Act, but also Section 53A of the Act.
6) In Chodi Mahalakshmi Vs. Koppada Sathiraju and others of Hon’ble
High Court of Andhra Pradesh reported in (2011) AIR (AP) 125, wherein it is held that:
Their lordships have specifically made a distinction between the admission of signature on a letter and the proof of execution of a document. Therefore, in such circumstances, the above decision will not help the counsel for the respondent and the burden of proof cannot cast on the appellant. In this connection, it is useful to refer to a judgment reported in Ramnivas Gupta and others Vs. Maliram (2002 (3) ALT 754) where under the judgment relied on by the counsel for the respondent along with other decisions on the points were considered and it was found that when execution is denied mere proof of signature of the executant not sufficient. Person relying upon such document must further establish that executant affixed his signature after knowing the contents thereof. In fact, it was also a case dealing with specific performance of contract. Further more, in a judgment reported in Ramji Dayawala & Sons (P) Ltd., Vs. Invest Import (AIR 1981 SC 2085) it was held as under:-
Undoubtedly, mere proof of the hand-writing of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or the contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.?
16O.S.No.173/2012 dt. 15.03.2021
7) In Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import of Hon’ble Supreme
Court of India, Wherein it is held that:
Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue.
8) In Kalvakolanu Tarakamma Vs. Pulichintala Narsimha Reddy of Hon’ble
High Court of Judicature at Hyderabad for the States of Telangana and
Andhra Pradesh reported in (2015) 4 ALT 633, wherein it is held that:
In this connection, a decision of our High Court which has been relied upon by the learned Counsel appearing for the appellant and which has direct bearing may usefully be referred to. In CHODI MAHALAKSHMI v. KOPPADA SATHIRAJU after referring to various authorities on the subject, this Court held that when execution is denied mere proof of signature of the executant not sufficient, that the person relying upon such document must further establish that executant affixed his signature after knowing the contents thereof. In the case before the High Court, the facts similar to the one in hand were present. This Court further observed that merely because the defendant admits the signature on the agreement of sale, the burden cannot be shifted on to the defendant. But, on the other hand, the party seeking specific performance has to prove the terms of the contract, the contents of the agreement, and also the passing of the consideration.
27. In the above case laws, relied on by the plaintiff, there is no dispute with regard to right or title of the vendor and both parties admitted the execution of Agreement of sale. There is no dispute with regard to right and title of the property in the above cases. In our present case on hand, there is no dispute with regard to execution of Ex.A.1/Agreement of sale, here the only dispute is with regard to right and title of the vendor of the plaintiff. The vendor of the plaintiff entered into agreement of sale with the plaintiff with regard to C.J.F.S land. Hence vendor of the plaintiff cannot transfer the plaint schedule land and transfer is made the same is not valid. The facts and circumstances in this case and the facts and circumstances of case laws relied on by the plaintiff are entirely different and they are not squarely applicable to the present case on hand.
17O.S.No.173/2012 dt. 15.03.2021
28. The plaintiff further contended that the possession Certificate ie,.
Ex.B.1 is not valid and not issued by competent authority. The plaintiff must stand on its own legs, but not on the weakness of defendants. Moreover the plaintiff nothing was elicited while cross-examining the PW.4 who is the
Tahsildar, Venkatachalam Mandal to that effect. It is the basic principle that the vendor can transfer right over property what he has, in other words, the vendor must have absolute right over the property to transfer the same and he cannot transfer right or title more than he has. No evidence is on record to show that the vendor of the plaintiff is the absolute owner of the plaint schedule property. Since, the vendor of the plaintiff has no right and title over the plaint schedule property, he cannot transfer the same. The plaintiff must come to the Court with clean hands, but in this case, the plaintiff not come with clean hands. Though defendant Nos. 1 to 3 have no objection to register the schedule property and that admitted the execution of Ex.A.1 the same is not a ground for allowing the plaintiff for getting regular sale deed for the C.J.F.S land and they are not permissible by law.
29. All Exs.X-1 to X-5/Adangals shows that the schedule property is the
C.J.F.S land. they reveals that the revenue Divisional Officer is the pattadar.
Ex.X-3 and X-4 further reveals that the vendor of the plaintiff is the enjoydar of the plaint schedule property only. Ex.B-1 is the Possession Certificate. It reveals that defendant No.5 obtained Possession Certificate in Sy.No.294/9 for an extent of 30 ankanams. Exs.B.2 to B.4 and B.9 reveals that the
Sy.No.294/9 is the C.J.F.S land. The Exhibits B.2, B.3 further reveals that
Revenue Divisional officer is the pattadar and vendor of the plaintiff is the enjoydar. In view of above facts and circumstances of this case and in view of oral and documentary evidence this court came to conclusion that the suit schedule property is the C.J.F.S land, the RDO is the pattadar of the C.J.F.S lands and vendor of the plaintiff is the enjoydar of the plaint schedule land as such the agreement of sale/A.1 dated 08.05.2006 is not valid since it is with 18O.S.No.173/2012 dt. 15.03.2021 regard to sale of C.J.F.S land. Accordingly additional issue Nos.1 and 2
dated 26.07.2017 are answered against plaintiff.
30. ISSUE No. (1)
Whether the plaintiff is entitled for specific performance of
contract as prayed for from defendants 1 to 3?
In our present case both parties entered into contract with regard to
C.J.F.S land which is not alienable. when the contract is too vague to be enforced, when the element of ad-idem-consensus is missing, the contract was made for no consideration, when the contract is void or unenforceable, the parties cannot enforce the agreement of sale and not entitle for specific performance. The transferor must be competent to contract and entitle to transfer the property or authorized to dispose of the transferable property which is not his own. In this case there is no authorization from the authorities to dispose of the said property. At this stage I have gone through the Section 2 (h) of the Indian Contract Act 1872, as per it “ any agreement which is enforceable by law” is a contract. In this case the agreement itself is void and not enforceable by law. Since the agreement itself is void the plaintiff cannot enforce the agreement of sale ie. Ex.A.1. Hence the plaintiff is not entitle for the specific performance of contract. Accordingly this issue is answered.
31. ISSUE No: 2
Whether the plaintiff is entitled for permanent injunction as
prayed for ?
In this case agreement with regard to CJFS land itself is void. Hence the relief of permanent injunction infavour of the plaintiff does not arise.
The plaintiff further relied on the case law in between Sajjan Singh Vs.
Pritan Singh of Hon’ble High Court of Punjab and Haryana reported in (2015) 3 ICC 139:(2015) 2 Law Herald 1694, wherein it is held that:
The plaintiff has filed simple suit for injunction and it is settled law that in a suit for injunction, title of the parties is not to be seen. Injunction can be granted in favour of the plaintiff in case he is found in established 19O.S.No.173/2012 dt. 15.03.2021 possession of the suit property. There is a definite finding returned by both the Courts below that plaintiff is in possession of the suit property. The said finding cannot be said to be the result of misreading and misinterpreting the evidence on the file. The argument advanced by counsel for the appellant that no injunction can be granted against the true owner cannot be given much importance as the present suit is merely suit for injunction. It is not a suit for declaration or possession. The title in respect of suit property is not to be determined. 2015.04.04 11:02 I attest to the accuracy and integrity of this document Even both the Courts below have given a finding that mere agreement to sell does not confer any title but since this is a mere suit for injunction and as such title has not been determined by both the Courts below.
In the above case the Hon’ble High Court held that permanent injunction can be granted even against true owner if the plaintiff is in established possession. But in our case on hand the plaintiff has not filed any piece of paper to show that the plaintiff is in possession as on the date of the filing of the suit. Moreover the plaintiff herself admitted that she has been residing in Nellore. In our present case on hand admittedly the property is C.J.F.S land, the delivery of possession by the vendor of the plaintiff does not arise when he has no right and title, hence this case law is not applicable to the facts and circumstances of the present case on hand.
32. In view of my above finding and finding in the above issues, the plaintiff is not entitled for the relief of permanent injunction. Accordingly this issue is answered.
33. ISSUE No.3:-
To what relief?
In the result, the suit is dismissed. But in the facts and circumstances of the case, without costs.
Dictated to the Stenographer, after transcribed by her, corrected and
pronounced by me in open Court this the 15th day of March, 2021.
I Additional Junior Civil Judge, (FAC) Principal Junior Civil Judge,
NELLORE.
20O.S.No.173/2012 dt. 15.03.2021
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:-
P.W.1: Nannam Ramanamma
P.W.2: Asthoti Narasamma.
P.W.3: Gampa Ramanaiah
P.W.4: D.Venkateswarlu, Deputy Tahsildar, Venkatachalam(FAC).
FOR DEFENDANTS 4 TO 6:-
D.W.1: Amavarapu Rajeswari D.W.2: Asthoti Subbaiah
DOCUMENTS MARKED
FOR PLAINTIFF:-
Ex.A-1: Original Agreement of sale dated 08.05.2006 executed by Ashoti Masthanaiah in favour of plaintiff Ex.A-2: Copy of petition submitted to Tahsildar, Venkatachalam village requisition for Possession Certificate or Darakasthu patta in relating to schedule property dt.5.5.2012 by plaintiff. Ex.A-3: Office copy of legal notice dt.2.4.2012 Ex.A-4: Office copy of reply notice dt.16.4.2012 Ex.A-5: Served postal acknowledgement for Ex.A-3.
Ex.X-1: Copy of Adangal fasali for the year 1403 issued by Tahsildar, Venkatachalam Mandal, SPSR Nellore District. Ex.X-2: Copy of Adangal fasali for the year 1407 of Kantepalli village issued by Tahsildar, Venkatachalam Mandal, SPSR Nellore District.. Ex.X-3: Copy of Adangal fasali for the year 1413 of Kantepalli village issued by Tahsildar, Venkatachalam Mandal, SPSR Nellore District. Ex.X-4: Copy of Adangal fasali for the year 2004 of Kantepalli village issued by Tahsildar, Venkatachalam Mandal, SPSR Nellore District. Ex.X-5: Copy of Adangal fasali for the year 1421 of Kantepalli village issued by Tahsildar, Venkatachalam Mandal, SPSR Nellore District. Ex.X-6: Field Measurement Book for the Field No.294 issued by Tahsildar, Venkatachalam Mandal, SPSR Nellore District. Ex.X-7: Copy of fair adangal in Survey No.256 issued by Tahsildar, Venkatachalam Mandal, SPSR Nellore District.
FOR DEFENDANTS 4 TO 6:-
Ex.B-1: Possession Certificate dt.04.02.2009. . Ex.B-2: No.3 Adangal for the fasali 1428 in respect of land in Survey No.294-9. Ex.B-3: No.3 Adangal for the fasali 1421 in respect of land in Survey No.294-9. Ex.B-4: Certificate issued by the Village Revenue Officer, Kantepalli village.
21O.S.No.173/2012 dt. 15.03.2021
Ex.B-5: Electricity bills pertaining to the year 2012( 3 in number) Ex.B-6: Electricity bills pertaining to the year 2013(2 in number) Ex.B-7: Property tax receipt dt.20.11.2012 Ex.B-8: Electricity bill pertaining to September, 2018. Ex.B-9: Endorsement received by D.W.2 from Deputy Tahsildar-cum-Public Information Officer, Venkatachalam Mandal dt.15.6.2017
FOR DEFENDANTS 1 TO 3:- -Exparte-
I Additional Junior Civil Judge, FAC Principal Junior Civil Judge,
NELLORE