O.S.No. 24 of 2019 CJ(SD) Court, YLM
IN THE COURT OF THE CIVIL JUDGE (SENIOR DIVISION) ::
YELLAMANCHILI
Present : Sai Kumari Akuri,
Civil Judge (Senior Division)
Yellamanchili
Friday, this the 12th day of April, 2024
O.S. No. 24 of 2019
Between:
1. Arlagadda Ravindra Prasad, S/o.Venkateswarlu, 56 years, Hindu, Business, D.no.42-222/12/64, Ward 21, Jangidipuram Blossoms School Wanaparthy, Savaigudem, Mahabubnagar – 509 103, Telangaana State.
2. Dadi Manikanta, S/o.late Sreenivasarao, 26 years, Hindu, Business, Kothapalem village, Yellamanchili Municipality, Visakhapatnam District.
….. Plaintiffs
And
Palivela Amruthavalli, W/o.Nookaraju, D.No.24-2B, 63 years, Hindu, House wife, Station Road, Yellamanchili represented by its General Power of Attorney Holder Konathala Venkata Kanaka Sai Suneetha, W/o.Visweswara Rao, Hindu, House wife, D.No.21-173/2, Station Road, Yellamanchili Municipality, Visakhapatnam District.
… Defendant
This suit is coming on 27-02-2024 for final hearing before me in the presence of Sri Y.Dasu Babu, Advocate for the Plaintiff and Sri Yerra Latchanna, Advocate for the Defendantsand the matter having stood over till this day for consideration, this court made the following :
J U D G M E N T
1. Suit is filed by the plaintiff against the defendants for passing a decree in favour of the plaintiff and against the defendant for specific performance of agreement of sale dated 09-07-2016 executed by the defendant and direct the defendant to execute Regular Registered sale deed in favour of plaintiffs within the time fixed by the court and in
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case, defendant fail to execute regular Registered sale deed then the court register the plaint schedule property in favour of the plaintiff on behalf of defendant; if for any reason specific performance is not ordered by the court and then in alternative return the advance amount of Rs.8,00,000/- with interest thereon from the date of agreement of sale till realisation to the plaintiff with interest @ 24% p.a. from the date of agreement of sale till realisation with compensation, if any as feels fit by the court for the breach of terms of agreement of sale in the circumstances of case; to direct the defendants to pay costs of the suit.
2. Brief facts of the plaint are as follows:-
(a)2nd plaintiff and defendant are belongs to resident of Yellamanchili
Municipality in Visakhapatnam District. 1st Plaintiff is Wanaparthy
Jangidipuram village of Mahaboobnagar District of Telangana State.
The property shown in the schedule belongs to Smt.Palivela
Amruthavalli, who is mother of defendant and she purchased the plaint schedule property from its rightful owners under a Registered Sale deed
dated 28-05-1983 and took possession of plaint schedule property and
in possession and enjoyment of the same with absolute rights by the mother of defendant by name Palivela Amruthavalli.
(b)Later, Mother of defendant by name Palivela Amruthavalli executed a Registered General Power of Attorney dated 23-06-2016 in favour of defendant with regard to plaint schedule a property by giving power to defendant to sold the plaint schedule property to anybody on
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behalf of mother of defendant by conferring some others power with regard to plaint schedule property and as such the defendant is having power to sold the plaint schedule property.
(c)The defendant approached the plaintiffs on 09-07-2016 stating that the defendant is in need of money and offered to sell the plaint schedule property @ Rs.1,90,000/- per cent as defendant agreed to sell the plaint schedule property and thereby, the plaintiffs consented for
Rs.1,90,000/-, after due negotiations and to evidence the same, the defendant executed an agreement of sale dated 09-07-2016 in favour of plaintiffs by receiving advance sale consideration of Rs.8,00,000/- from the plaintiffs and as per the terms and conditions of above agreement of sale, the plaintiffs agreed to pay balance sale consideration within five months from the date of agreement of sale and register the plaint schedule property from the defendant and pay balance sale consideration amount as per measurements before Sub-
Registrar at the time of registration and with such terms and conditions, the defendant executed above agreement of sale in favour of plaintiffs.
(d)The plaintiffs understood that the plaint schedule property is in low level and with the consent of defendant level, the plaint schedule property by transporting Gravel in the plaint schedule property by incurring expenditure of RS.3,00,000/- towards value of Gravel, Tractor charges and Labour charges and level the entire extent in schedule property belongs to defendant and thereby, the look of plaint schedule
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property is changed and thereafter, within a span of four months from the date of above agreement of sale, the plaintiffs are ready with balance sale consideration amount and requested the defendant to come and register the plaint schedule property in favour of plaintiffs but the defendant protracting to come and register the plaint schedule property in favour of plaintiffs by receiving balance sale consideration from the plaintiffs on one reason or other and out of faith on defendant, the plaintiffs wait upto one and half year and thereafter, the plaintiffs demanded the defendant through elders by names Moturu Santhosh
Kumar, Dadi Chandra Sekhar and Kandregula Satish Kumar on four occasions i.e. nearly within a span one and half year and even then the attitude of defendant is as it is and protracting for a period of one and half year. Hence, the plaintiff has no option issued legal notice dated 12-06-2019 demanding the defendant to execute regular sale deed in favour of plaintiffs by receiving balance sale consideration from the plaintiffs, the defendant received the said legal notice and issued reply by admitting execution of agreement of sale but denying ready and willingness on the part of plaintiffs as averred in the legal notice but the contents of said reply notice are not true and hence, the suit is filed by the plaintiffs for specific performance of agreement of sale dated 09-07- 2016 executed by the defendant in favour of plaintiffs.
(e)The plaintiffs are always ready and willing to perform their part of contract and requested the defendant to come and register the plaint
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schedule property by receiving balance sale consideration from the plaintiffs but the defendant is protracting to perform her part of contract on one reason or other and not ready to perform her part of contract, as per the terms and conditions of agreement of sale dated 09-07- 2016. Hence, this suit.
3.Defendant filed written statement and denying the contents of the plaint. Brief averments of the written statement are as follows:
(a) This suit is bad in law and on facts, and therefore liable to be dismissed in limini. This suit is bad for non-joinder of necessary party in as much as the plaintiff under law shall join Konathala Venkata Kanaka
Sai Suneetha as party defendant as she is a proper and necessary party because in her absence no decree can be passed in favour of the plaintiffs, even if his case as pleaded by him deserves consideration to grant the relief claimed by him, by the court.
(b)The defendant is a resident of Yellamanchili, but she does not know whether 2nd plaintiff is a resident of Yellamanchili or not an hence, she denies the allegation of the plaintiffs that 2nd plaintiff is a resident of
Yellamanchili as pleaded. The defendant learnt that plaintiffs No.1 and 2 are hardcore real estate brokers and not purchasers at all and that they acted as middle men for sale of lands taking agreements in their favour initially by paying partly amount as advance from owners and make lot of money in the process of getting them sold by owners to others projecting them as their nominees. The defendant never interacted with
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any of the plaintiffs and she has not got even facial acquaintance with them. Both of them have approached her daughter Smt.K.V.K.Sai
Suneetha, through Dadi Chandrasekhar, Junior Paternal uncle of 2nd plaintiff and Satti Babu of Kothapalem vilalge of Yellamanchili, who are also middle men in real estate deals, offering to purchase the suit schedule land. The defendant’s daughter having been appointed as agent of the defendant to sell the suit schedule land under a registered
General power of Attorney bearing document No.3837 of 2016, negotiated with the plaintiffs and agreed to sell the suit schedule land.
At that time, she (Smt.K.V.K.Sai Suneetha) does not have even a slightest idea about the back ground and the financial capacity of the plaintiffs and she too had no idea that both of them did not approach her as real purchasers of property but approached her to take agreement from her and then offer the property for sale to others, taking sale deed from her in favour of those persons as their alleged nominees, on higher price and make money in the process of such sale.
She had been aware of the real characters of the plaintiffs, she would not have executed the sale agreement for and on behalf of the defendant, in their favour, but falling into the trap of the plaintiffs, she executed the agreement.
(c)The defendant and her daughter were in need of money urgently, the defendant had executed a power of attorney in favour of her daughter and her daughter in less than a month of her appointment as
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agent executed the Agreement of sale dated 09-07-2016 in favour of the plaintiffs, having been duputed by them that they are real purchasers of the property. They are financially capable of paying the sale consideration sticking to the time frame. As there was a pressing need for money, a period of five months was fixed in the agreement for payment of balance consideration and hence in a way the plaintiffs and the defendant gave agreed ‘time as essence of contract’ or at least it was consciously understood by them that fixation of time in the agreement has a meaning, importance and significance given the nature of transaction and commitments that the defendant had and that the said term and condition about time is an essential one to be adhered to without fail and excuse of any kind. The very fact of plaintiffs not giving either whole or at least a part of the balance consideration apart from
Rs.8,00,000/- that they have given at the time of agreement, within five months of the period agreed upon or at least immediately, not being able to show that they have the balance consideration within the stipulated period or immediately thereafter, not being able to show at least that they had the some financial resource to generate and secure money within five months of period or at least immediately thereafter, if they do not have liquid cash of their own in their custody, not sending any written or oral communication at any time to the defendant that they are ready with the money and willing to give money to her, speaks volumes about the gross failure of the plaintiffs in adhering to the most
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of essential term of the contract of sale i.e. plaintiff’s failure in paying balance sale consideration within five months of the agreement or at least immediately thereafter, in complete ignorance of the Governing covenant of the agreement. Further the very fact of plaintiffs coming to the court by way of the suit, at the last hour just before few months of the date of expiry of limitation period by consuming nearly three years from the date of agreement ignoring their obligation to be performed, is indicative of the real fact that plaintiffs are not real purchasers and that they do not have money at all to pay the balance consideration, but filed this suit either to keep the property in litigation testing their fortunes of getting the property sold to third parties, if they can secure purchasers, after passing and if they are successful in getting the decree in this suit or to secure their advance money. The plaintiffs are not purchasers, they are only middle men. As per their scheme, they gave advance amount to this defendant, got the agreement executed by her in their name being confident of securing a buyer within five months and gain money in the process by selling it for a higher price, but since their plans turned turtle, inventing false allegations of ready and willingness, the plaintiffs have filed this suit. As a matter of fact within five months many a time, the defendant’s son-in-law reminded the plaintiffs of their obligation telling them not to fail in paying money and getting sale deed executed. Despite such cautions, reminders and intimations, the plaintiffs did not pay money, as they do not have
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money and could not secure buyers. Even after expiry five months period for some time thereafter, the defendant’s son-in-law, who has been looking after the agreement affairs gave the plaintiffs the chance to have sale deed, but since they did not utilise said chance and opportunity on one occasion, they were told that the agreement stood cancelled and money paid as advance stood forfeited. Despite such ultimately, they did not pay any money for the defendant to consider them morally, though not under the contract. But quite unfortunately to cover up their latches and to brand the defendant as a committer of breach of contract, the plaintiffs have invented the usual allegations akin to a suit for specific performance of contract of sale. The defendant vehemently denies that plaintiffs to have had approached her, requested her to execute the sale deed expressing their readiness and willingness to pay money and denies the allegation of the plaintiff that they were always been ready and willing to perform their part of allegation, but she failed in her obligation. The plaintiffs have come to the court with untidy hands. Further in the given circumstances, the discretion of the court should not be in favour of the plaintiffs because granting relief at this length of time, after the agreement particularly in the scenario of land rates becoming costlier day by day, in the circumstances of plaintiffs not paying money within time and not deposing amount at least at the time of filing the suit to show their
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bondafides, would be quite inequitable and would cause hardship to the defendant.
(d)After agreement, the plaintiffs never approached the defendant requesting her to execute the sale deed by coming forward to pay balance sale consideration. The plaintiffs being conscious of the long time gap between the date of agreement and the date of filing the suit and being conscious of the consequences of such serious lapse, mischievously divided the whole period of three years into two halves of 1 ½ year each and invented two separate stories for each 1 ½ of year alleging that in the first spell, they requested the defendant, but she did not respondent and that in the second spell, they demanded the defendant through the alleged elders. The persons mentioned by the plaintiffs must be the henchmen of the plaintiffs and the plaintiffs have cleverly introduced the names of their henchmen obviously to introduce false evidence in tune with their false plea through them during the course of trial. If plaintiffs were really ready as they contend, they need not wait for three years and no prudent man waits for three years and they would have sent a legal notice immediately after expiry of five months period and would have filed the suit immediately thereafter.
There is no cause of action for the suit. The plaintiffs are not entitled for the suit relief. She prays the court to dismiss the suit with costs.
4. Basing on the pleadings of both parties, the learned predecessor has framed the following issues for trial:
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1. Whether the plaintiff is ready and willing to perform his part of agreement of sale dated 09-07-2016 as pleaded by him?
2. Whether the suit is bad for non joinder of necessary party as pleaded by defendant?
3. Whether the plaintiff is entitle for specific performance of agreement of sale dated 09-07-2016 as pleaded by him?
4. Whether the plaintiff entitled for alternative relief as prayed for ?
5. To what relief ?
5.To prove the suit claim, the plaintiff examined himself as PW1 and got marked Ex.A1 to Ex.A4. Third parties to the suit examined as P.W.2 and P.W.3. On behalf of the defendant, D.W.1 examined and no documentary evidence adduced.
6. Heard the arguments of both counsels.
7. Perused the entire material on record.
8. In order to prove the case of the plaintiff, second plaintiff chief affidavit filed and he examined as P.W.1 and P.W.1 chief Affidavit confronted by the Plaintiff counsel. After confrontation chief affidavit of
P.W.1, chief affidavit treated as chief examination of P.W.1. P.W.1 is deposed same facts in the petition as his evidence without deviation.
9.To support of the plaintiff contention, he got marked Ex.A1 to
Ex.A4 i.e. Ex.A1 is Agreement of Sale dated 09-07-2016. Ex.A2 is office copy of legal notice dated 12-06-2019. Ex.A3 is Reply notice dated 25- 06-2019. Ex.A4 is photostate copy of General Power of Attorney. P.W.1 deposed in his chief examination affidavit that the defendant borrowed
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Rs.8,00,000/- from the plaintiff and executed agreement of sale in favour of the P.W.1 in the presence of Dadi Chandra Sekhar, Moturi
Santhosh Kumar, Kandrgula Satish Kumar, who are the attesters of ex.A1 agreement of sale, Kandragula Satish Kumar, Moturu Santhosh,
Ex.A1 confronted to the witnesses.
10.During the cross examination of P.W.1 by the Defendant counsel,
P.W.1 confronted that he is a graduate in Technology. He is not doing
Real Estate Business. P.W.1 along with 1st plaintiff purchased the plaint schedule property. P.W.1 along with 1st plaintiff filed this suit. P.W.1 and first plaintiff are friends. They are not relatives. They are entered into agreement on the basis of 50 : 50 percent, orally. P.W.1 admitted that they are not entered into agreement about plaint schedule property about 50:50 percentage. P.W.1 admitted that there is an understanding about the preparation for the specific date. He cannot say exact date for securing of the amount and obtain the property by way of registered sale deed from the defendant. After one and half month from the date of agreement, P.W.1 and first plaintiff gathered and after four months of their meeting, after four months, they sent elders to the defendant to obtain registered sale deed from the defendant. Elders names are
Motoru Santhosh Kumar, Dadi Chandra sekhar and Kandregula Satish.
He personally met the defendant and requested about the property registration. After his attempt of failure, he approached the above said stated elders and and asked them. After entered into the agreement,
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they cleared the jungle and fill up the levels of the plaint schedule property, after oral consent of the defendant. The land was developed by the plaintiff confronted by the plaintiff counsel, then after he put suggestion without consent of the defendant, cleared the jungle is not correct. On verification of site only, they cleared the jungle and fill up the level of the plaint schedule property. Witness voluntarily deposed that defendant is not informed about extent and appearance of property in field. After two months of the agreement, he approached the Mandal
Surveyor and got surveyed the plaint schedule property. As per the said stated survey, there is no confusion to P.W.1 and they came to the conclusion to proceed as per the agreement. After survey of the mandal surveyor, they find out total extent as Ac.00-39 cents, but their agreement is only Ac.00-20 cents. He conducted survey to the schedule property along with total Ac.00-39 cents, but there is no security from the defendant counsel, what is further in development in the plaint schedule property is not established, except putting question to the witness. Date of survey till filing of the survey nothing was happened in the suit schedule property i.e. Sampradimpulu and developments in the plaint schedule property. He has not disputed with the defendant at any time from the date of agreement/ Again trust on the defendant, they waited for registration of sale deed in their favour under the agreement
Ex.A1. P.W.1 denied a suggestion that they are not ready to show their willingness to objection registered sale deed from the defendant. To
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show their readiness and willingness, they are having business individually and they are having account and in that account, they are having money to show their readiness and willingness to obtain registered sale deed from the defendant. P.W.1 is having huge status and having a petrol bunk, first plaintiff is having textile business, he is also having sufficient status. P.W.1 admitted that his plaint is not containing about his status and the status of 1st plaintiff and 2nd plaintiff, but plaint contain plaintiffs are businessmen. They are having business and huge transactions in their day to day. P.W.1 along with other plaintiff gave instructions to their counsel for preparation of plaint.
With the knowledge the consent of 2nd plaintiff he is giving evidence, If necessary, he gave instructions to him to look after the case. If necessary, he will come and deposed as witness. He along with 2nd plaintiff issued Ex.A2 legal notice to the defendant. He know about
Ex.A3 reply notice issued by the defendant to their counsel. He know about Ex.A3 contents. He has knowledge about the contents of written statement of defendant. He know about the relief prayed in his plaint and the relief from the court. Along with the suit, they filed petition not to alienate the plaint schedule property. He verified about the link document of the plaint schedule property prior to Ex.A1 agreement.
P.W.1 admitted that the survey number in the link document and the survey number in the agreement of sale are not one and the same.
When it is just going to get the property registered in his favour, he
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came to know the above said variation of survey number which is different in Ex.A1, but link document is not furnished by the defendant is admitted. P.W.1 denied suggestion that he came to know the said survey number is different at the time of his intention to get registration. He has not deposed in his account because defendant is not informed to him about registration date. P.W.1 admitted that one person accompanied him today, said person is no way concerned to the suit. He has no acquaintance directly with the defendant. He consulted the defendant and her husband in person. P.W.1 denied a suggestion that he is deposing falsely about he consulted the defendant and her husband in person. P.W.1 denied a suggestion that he did not state in his legal notice, plaint and his chief examination about he consulted the defendant and her husband in person that question put to the witness in the box, then put suggestion put by the defendant counsel is not verified after 1 and ½ years of Ex.A1 agreement of sale, first demand made to the defendant under Ex.A1 agreement. They have not work out about measurement of Ex.A1 property from the entire property of undivided share which is reflected in Ex.A1 till today. Witness says voluntarily at any side in the undivided share under Ex.A1, he has no objection for allotment of the property. He has not filed survey report and challan before the court. There is no suggestion, no survey was conducted by the defendant, except the he is not having survey number in his custody for that not filed. Every three to four months, they
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demanded the defendant about Ex.A1 agreement of sale property for registration. They have not raised any dispute except demand. P.W.1 denied the suggestion that he has no knowledge about nature and acquisition of property to the defendant and her principal. P.W.1 admitted that he has not demanded, not added as a party in the above said numbered suit. P.W.1 admitted that he has not filed receipt for arrears of plaint schedule property. Witness says voluntarily he is having photographs. P.W.1 admitted that he has not informed to his counsel about receipts and expenditure spent by him for clearance.
P.W.1 denied a suggestion that he has not informed to the defendant about clearance work going on in the plaint schedule property. He along with 2nd plaintiff are not went to the defendant personally, but through elders demanded three to four times in all the occasions. He has not made efforts for rectification of wrong survey number which is containing in Ex.A1 agreement of sale. P.W.1 denied a suggestion that surprisingly at the end of the case for the first time, he invented about the survey number and its rectification etc., only the reason to throw the balm on to the face of defendant about the wrong survey number.
P.W.1 denied a suggestion that he is having right knowledge about the
Ex.A1 survey number is correct and rectified, only by the defendant.
P.W.1 denied a suggestion that though he is having knowledge about rectification deed, intentionally he is suppressing the fact. Entire written statement is not containing survey number is wrong. But put to
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question to the defendant about survey number is wrong, without pleading said evidence cannot be taken into consideration. P.w.1 denied the suggestion that he is not ready and willing to obtain registered sale deed under Ex.A1. P.W.1 denied a suggestion that his suit is not maintainable because he has not added necessary parties to the suit.
11.To corroborate the case of plaintiff, P.W.2 is attester. P.W.2 chief affidavit filed, he deposed in his chief examination affidavit. Plaintiffs informed to him, Kandregula Satish and Dadi Chandra Sekhar who is another attester of Ex.A1 agreement of sale at about four and half years ago, the defendant is protracting to register the plaint schedule property at the verbal request of plaintiffs though the plaintiffs are ready with balance sale consideration amount and registration expenses and thereby, the plaintiffs requested him and Kandregula
Satish and Dadhi Chandra Sekhar to negotiated the above issue with the defendant and thereby at the request of plaintiffs, he along with above two persons mentioned above approach the defendant on four occasions i.e. nearly within a span of one and half year and by then defendant showing her ready to register the plaint schedule property in favour of plaintiffs by receiving balance sale consideration from the plaintiffs and thereby, defendant admitting execution of agreement of sale by the defendant and receiving of advance consideration mentioned there under and admitting to execute regular sale deed in favour of plaintiffs but protracting to register the same one reason or other and
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protracting to register the plaint schedule property even after his demand along with above persons for a period of about one and half year. He know the above facts personally and hence he gave affidavit at the request of plaintiffs. Chief affidavit confronted by the plaintiff counsel, then chief affidavit treated as chief examination of P.W.2. he also identified his signatures in the Ex.A1 agreement in three pages.
During cross examination, the learned defendant counsel confronted that two months back, called him as a witness deposed before the court. Plaintiffs No.1 and 2 requested him to give evidence before the court. He is village elders. As elder of the village, he conducted panchayat. In the month of January, 2018 went to the house of defendant and conducted panchayat at her house. He along with Satish,
Chandra Sekhar went to the house of defendant. P.W.2, Plaintiffs No.1 and 2 are not approached to the house of defendant. In the panchayat defendant agreed to execute registered sale deed within four months, she also seek four months time to execute registered sale deed in favour of plaintiffs, on their demand. P.w.1 denied a suggestion that no panchayat was conducted in his presence. P.W.2 denied a suggestion that he is deposing falsely panchayat was conducted in the month of
January 2018. Totally four times went to the house of defendant. Four times, along with P.W.2, Chandra Sekhar and Satish were went to the house of defendant. Within three or four months gap, four panchayats were conducted. Approximately four months gap for each panchayat.
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Except demanding the defendant for registration, in his presence no disputed that is admitted by P.W.2 in his cross examination confronted by defendant counsel. Through P.W.1 and P.W.2 he has not verified the document of plaint schedule property. He has not physically went to
Ex.A1 schedule property. Witness says voluntarily plaint schedule property is within his village, at that time, he is seeing the plaint schedule property. P.W.2 admitted that his chief affidavit is not containing about the panchayats. P.W.2 admitted that his chief examination is not containing about what he stated in his cross examination. He deposed in the chief affidavit requested the plaintiff for four or five occasions then spent of one and half years. Mere suggestions is not help to the case of defendant about measurements and identification of the plaint schedule property within the specific boundaries is not arise before him at any time. Suit was filed against
Sunitha not against Amrutavalli. In the presence of Sunitha and
Amruthavalli, panchayats were conducted that was confronted by the defendant counsel. Remaining suggestions, who are P.W.2 help to the
P.W.1/plaintiff, he deposing false to file and contesting are chief examination affidavit and false.
13.One of the elder of the plaintiff case, examined as P.W.3, he deposed the same facts of evidence of P.W.2 without any deviation.
After confrontation of the chief affidavit, treated as chief examination of
P.W.3. During cross examination, the learned defendant counsel
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confronted that he know the P.W.2. he is not doing the real Estate business. Plaintiffs and P.w.2 are not doing the Real Estate Business.
One and half year back, he came to know about filing of the suit through 2nd plaintiff. 2nd plaintiff is not his friend. He got acquaintance with the 2nd plaintiff. 2nd plaintiff is not his friend, He got acquaintance with the 2nd witness. At request of 2nd plaintiff, he came to the court to depose as a witness. One month back, 2nd plaintiff informed to him to depose as a witness on behalf of plaintiffs. Plaintiffs filed the suit against the defendant. Panchayat was conducted for registration of sale deed in his presence. Defendant requested in the panchayat seeking four months time for registration of plaint schedule property in favour of plaintiffs. In his four occasions, defendant requested them seeking time for registration of plaint schedule property. In the panchayat no disputes. Plaintiffs are having Rs.30 lakhs to show their readiness and willingness for registration of plaint schedule property. P.W.1 admitted that his chief affidavit is not containing that plaintiffs are having Rs.30 lakhs. P.W.1 has not personally perused about balance of payment by the plaintiff to the defendant, measurements of the land. In his presence, both parties not discussed about financial transactions, payments. Both parties not called him about measurements of the plaint schedule property and allocation of the plaint schedule property with measurements. Plaintiffs are not informed to him about allocation of the plaint schedule property as per boundaries. P.W.3 denied a
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suggestion that he is deposing false to help the plaintiffs. P.W.2 denied a suggestion that he was not participated in the panchayat at any time.
P.W.3 denied a suggestion that he does not know about the case facts and he is deposing false.
14.In order to prove the defendant case, the defendant examined as
D.W.1. D.W.1 chief affidavit filed, she is General Power of Attorney
Holder on behalf of her mother, she deposed as Ex.A1 transaction took place, she reiterated the same facts in the written statement and she denied the panchayat was conducted in the presence of Kandregula
Santhos, Moturi Satish Kumar, Dadh Chandra Sekhar. He is not denied signatures in Ex.A1 agreement of sale. Said chief affidavit confronted by defendant counsel. Duriung cross examination, the learned counsel for the plaintiffs confronted that she is medical practitioner. Her mother is a house wife. Actually plaint schedule property belongs to her father, said property give to her towards pasupukumkuma. Total extent of the plaint schedule property is an extent of Ac.00-49 cents. Her father executed a Registered document in his favour towards Pasupu
Kumkuma, said document is in the custody of her husband. D.W.1 received Ex.A2 legal notice from the plaintiffs No.1 and 2. P.W.1 admitted that he issued reply notice to the plaintiffs to the notice of
Ex.A2 i.e. Ex.A3. D.W.1 and her husband gave instructions to her counsel for preparation of Ex.A3 reply notice. D.W.1, her mother and her husband gave instructions to her counsel for preparation of her
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written statement, which is filed before the court. Ex.A1 agreement of sale shown to the witness for identification, witness identified Ex.A.1 executed by her,. Ex.A1 transaction took place at her mother’s house.
Her mother is not signed in Ex.A1 agreement of sale. D.W.1 mother is also not signed in Ex.A1 agreement of sale. D.W.1 mother and her husband were present on the date of Ex.A1 transaction. On the date of
Ex.A1 transaction, she received sale consideration of Rs.8 lakh under
Ex.A1. She does not remember exact extent which is proposed to sell by her under agreement of sale Ex.A1. Xerox copy of power of attorney shown to the witness, witness identified said power of attorney executed by her mother in favour her. Original power of attorney is not filed by her before the court. She is having original power of attorney in her custody till today, which is enclosed to the agreement of sale. On the date of Ex.A1 agreement of sale, 2 or 3 witnesses are present. Out of above said 2 or 3 persons, 2 persons signed as attestors. Plaint schedule property situated at No.31, Yerravaram village at
Yellamanchili. Plaint schedule property is a vacant site. She does not know in the rainy season, heavy water stored in plaint schedule property. D.W.1 denied that Ex.A1 transaction, plaint schedule property was developed with gravel stones. At the time of development of land, he does not know. Witness says voluntarily through some of the persons, he came to know about the development of plaint schedule property then after she went to the plaint schedule property. She does
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not know how much amount spent by the plaintiff for level of the land.
She does not know how much amount is required for level of the plaint schedule property. Plaint schedule property is adjacent to the old
National high way. After Ex.A1 sale agreement, within two months, plaint schedule property was levelled that was admitted by D.W.1 in her cross examination, but previously cross examination, she denied about levelled of the plaint schedule property. D.W,1 admitted that the plaintiffs are doing business, but during cross examination of D.W.1 put suggestions, they are not doing business. She does not know the financial capacity of plaintiffs. She negative place is Yellamanchili.
D.W.1 know the attestors of Ex.A1 agreement of sale. Plaintiffs No.1 and 2 directly approached her for purchase of the plaint schedule property. Prior to filing of the suit, her name is entered into the revenue records in online. Plaint schedule property is a vacant site. In the on- line containing plaint schedule property is a vacant site. D.W.1 denied the suggestion that after Ex.A1 transaction, Plaintiffs No.1 and 2 demanded him to execute a registered sale deed in favour of them.
D.W.1 denied a suggestion that plaintiffs No.1 and 2 are ready and willing to obtain registered sale deed. D.W.1 denied a suggestion that even though plaintiffs are ready and willing to obtain registered sale deed from him, but he protracting to register the sale deed. D.W.1 did not demand the plaintiffs that he is ready to take balance of sale consideration and register the sale deed in favour of them. D.W.1
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admitted that she did not issue legal notice to the plaintiff for cancellation of Ex.A1 agreement of sale because of they are not ready and willing to perform their contract under Ex.A1. D.W.1 admitted that the agreement of sale is not containing purpose sold of the plaintiff property. D.W.1 admitted that as per Ex.A1 containing balance of sale concerned will be pay at the time of register sale deed. She does not know survey fee is payed for the survey of plaint schedule property.
Witness says voluntarily her husband known about survey fee. D.W.1 admitted that they have not made efforts for survey of plaint schedule property. D.W.1 admitted that plaintiff also not take efforts for survey of plaint schedule property. D.W.1 admitted that Ex.A1 is one of the condition is survey shall be conducted for sale deed. D.W.1 did not issue notice for the plaintiff. She is not having any disputes P.W.2 and P.W.3.
D.W.1 admitted that P.W.2 is the one of the attestor in Ex.A1 agreement of sale. She is not enquiry to the plaintiff about the expenditure for the leveling the plaint schedule property about the plaintiff about the plaint schedule property. D.w.1 admitted that surrounding to the lands to the plaint schedule land and yellamanchili lands are prices were high. D.W.1 does not know his chief examination affidavit containing plaintiffs are real estate land brokers. D.W.1 admitted in reply notice and his chief examination, it is not containing
Ex.A1 agreement is recession. D.W.1 admitted that his reply notice and his chief examination, Ex.A3 is not containing advance amount is not
O.S.No. 24 of 2019 CJ(SD) Court, YLM
required to return. Ex.A1 agreement is already recession. D.W.1 does not remember Ex.A3 reply notice about her husband involvement in the agreement and then after in legal consequences. D.W.1 denied a suggestion that chief examination affidavit containing is false. D.W.1 denied the suggestion that she avoid to execute the sale deed in favour of plaintiff up to one and half year plaint schedule property land level by the plaintiff to hike the land price with intentionally not register the sale deed in favour of plaintiffs. D.W.1 denied a suggestion that she is not ready and willing to execute the register sale deed in favour of plaintiff even through they obtain in favour. D.W.1 denied a suggestion that his chief examination affidavit containing false. D.W.1 denied a suggestion that there is no fault of plaintiff to obtain register sale deed in faovur of them. D.W.1 denied a suggestion that it is her fault to execute the register sale deed in favour of the plaintiffs. D.W.1 denied a suggestion that he is liable to execute register sale deed in favour of plaintiffs.
D.W.1 admitted that Ex.A1 agreement of sale executed by him with free consent and will. D.W.1 admitted that her chief examination affidavit not containing not influence any one of Ex.A1 agreement of sale.
ISSUE No.2:
15. Suit is bad for non joinder of necessary party as pleaded by the defendant that is who are necessary parties is not established by the defendant in the suit, mother is also shown in the suit, she has executed power of attorney in favour of the defendant, her name is also
O.S.No. 24 of 2019 CJ(SD) Court, YLM
shown for selling of the property. Mother of the D.W.1 given property, property is in the name of defendants. Against defendant, suit filed that is not disputed. Why Amruthavalli, who is mother of D.W.1 given power of Attorney is nothing tot he defendant that is not established by defendant. Defendant fails to prove who are the necessary parties in the plaint. Because her father is no more and her husband is not signed on
Ex.A1 agreement of sale. D.W.1 in her cross examination, admitted her mother and her husband presented the transaction took place.
Accordingly issues is answered.
ISSUE NO.1:
The plaintiffs are ready and willing to perform his part of 16.
agreement of sale dated 09-07-2016. The learned defendant counsel confronted through P.W.1 and P.W.3, the plaintiffs are doing business, they are having cash of Rs.30,00,000/- for readiness and willingness is not denied by the defendant. In the panchayat four times conducted to show readiness and willing in the four occasions, panchayat conducted by P.W.1 and P.W.2 in their cross examination by the defendant counsel, it is sufficient within three years , suit is filed to show readiness and wiliness.
Conduct plaintiff shows readiness, Ex.A2 shown willing ness of plaintiff, Accordingly issue is answered.
O.S.No. 24 of 2019 CJ(SD) Court, YLM
ISSUE No.3 AND 4:
17.Plaintiffs are entitled for specific performance of agreement of sale dated 09-07-2016 as pleaded by him and alternative relief as prayed for. The plaintiffs are ready and willing and four occasions panchayat was conducted at the house of defendant at
Yellamanchili, simply defendants admitted in her cross examination, there is no influence of anyone that her confronted and she executed Ex.A1. She also admitted passing of consideration and taking advance from the plaintiffs. She has not denied signature on Ex.A1 agreement of sale in the presence of her mother and her husband. She executed Ex.A1 agreement of sale, she has not denied anything regarding to agreement of sage, other conditions to comply the survey, the learned defendant counsel argued that to show readiness and willingness and agreement Ex.A1 is not essence at that time, the court relied a judgment.
The court relied judgment in Chanan Kaur Alias Channo 18.
Vs. Pakar Singh in AIR 2004 P & H 121, wherein the Hon’ble
High court of Punjab and Hariyana held that
Para No.3...
3. Defendant-respondents No. 1, 3 and 4 filed their written statement and set up the plea that Waryama deceased had executed a general power of attorney in favour of defendant-respondent No. 1 on 23-10-1972 which is duly attested by a Notary Public in Canada. On the basis of the power of attorney, defendant- respondent No. 1 executed two sale deeds for a consideration of Rupees 15,000/- each on 27-12-1972 in favour of defendant-respondents No. 3 and 4. It is the case of the defendant-respondents that they are bona fide purchasers of the land with
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valuable consideration. They had no notice of any rights of inheritance or reversioner and have claimed protection under the law. Replication was also filled reiterating the stand taken in the plaint.
Para No.11...
11. It is thus apparent that the document Ex. D3 satisfies the requirement of Section 33 of the Registration Act and there is no further requirement that the power of attorney is required to be registered. According to Section 33 of the Registration Act, a power of attorney executed by the principal who was not residing in India at the time of execution, if authenticated by a Notary Public, then it is recognised for the purpose of Section 32. Accordingly, Ex. D3 fully satisfies the requirement of Section 33 of the Registration Act.
The court relied judgment in A.Abdul Rashid Khan (Dead) And 19.
Others Versus P.A.K.A.Shahul Hamid And Orders in 2000(6) ALT 5 (SC), held that
14. We have perused these decisions. None of them applies to the facts and circumstances of this case. So far the Right of Pre-emption that has not been raised in any of the courts below by any party and cannot be permitted to be raised in this appeal for the first time. In fact, there is no pleading or evidence in this regard. On the other hand, learned Counsel for the Respondent No.1 has placed reliance on Manzoor Ahmed Magray v. Ghulam Hassan Aram and Ors. . This was also a suit for specific performance of a contract of an agreement of sale of an orchard. The court held that there is no bar for passing the decree for specific performance with regard to 1/3 or 2/3 share owned by the contracting parties for which he can execute the sale deed. Para No.15...
15. Thus we have no hesitation to hold, even where any property is held jointly, and once any party to the contract has agreed to sell such joint property agreement, then, even if other co-sharer has not joined at least to the extent of his share, he is bound to execute, the sale deed. However, in the absence of other co- sharer there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the Appellants in such property to other such contracting party. In the present case, it is not in dispute that the Appellants have 5/6 share in the property. So, the Plaintiffs suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court which requires no interference.
Para No.18... For the aforesaid reasons the appeal is partly allowed, to the extent the High Court's order for the partition of the suit property and delivery of possession to the plaintiff is set aside but the other part of the High court's order decreeing the suit for the specific performance for the execution of the sale deed as against by the Appellants, to the extent of their 5/6th share is upheld. We make it clear that
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setting aside of the High Court's order to the extent of partitioning of the specified share is only on account of such claim being made pre-mature. This in no way would prejudice the right of Respondent No.1 (plaintiff) in future, if he becomes co-sharer of this property.
The court relied judgment in Gaddipati Divija and Another 20.
Versus Pathuri Samrajyam and Others wherein the Hon’ble
Supreme Court of India held that
3. The explanation to Section 16 of the Speficic Relief Act clarifies that in a contract involving payment of money, the plaintiff need not actually deposit any money with the defendant and is only required to aver that he has performed or is ready and willing to perform the contract according to its true construction.
4. Respondent No.1 has specifically averred and proved that she always ready and willing to pay the balance consideration and perform her part of the Agreemnt, whereas the Appellants had failed to perform their obligation of having the land measured and demarcated.
5. Mere stipulated to time would nto make time, the essence of the contract and in cases of sale of immovabkle property, normally time would not be of the essence. As such when specific performance of the terms of the contract has not been under takne, the question of time being the essence does nto arise.
As per Ex.A1 :
Schedule property is Visakhapatnam district, Anakapalli Registry,
Yellamanchili Sub-Registry, Yelamanchili Mandal, Munciopali
Yellamanchili, No.31, Yerravaram village and Taluka, S.No.145-2
Eat:180 linkulu, South: 257 linkulu, West: 168 linkulu, North: 193 linkuluu for total extent of Ac.00-39 cents
Boundaries:
East: Yellamanchili Land Mortgage landlord
South: Thammana Ghangadha Gupta Petrol Bank land
West: Road
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North: Bonda Appala Konda and others landlord.
Ex.A4 is power of Attorney bearing Document No.3837 of 2016
dated 28-06-2016.
Schedule of property:
Visakhapatnam District, Anakapalle District Registry, Yellamanchili
Sub-Registry, Yellamanchili Mandal and No.31 of Yerravaram Village
Survey No.142 East: 180 linkulu, South:257 Linkulu, West:168 Linkulu,
South: 193 linkulu for an extent of Ac.00-39 cents with following boundaries:
East: Land of Yellamanchili Land Mortgage
South: Land of Thammana Gangadhara Gupta Petrol Bank
West: Road
North: Land of Bonda Appala Konda.
Mother of defendant executed two power of attorneys for wrong survey number, in case wrong survey number boundaries of plaint schedule property is not dispute. As per above discussion, plaintiffs are entitled specific performance. Accordingly Issue No.3 answered. As per
Issues No.3, answered. Issue No.4 alternative entitled main issue No.3 is answered specific performance.
In the result, suit is decreed with costs in favour of the plaintiffs and against the defendant for specific performance of agreement of sale
dated 09/07/2016 executed by the defendant and the plaintiffs shall be
deposited balance of sale consideration of Rs.30,00,000// (Rupees
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thirty lakh only) within three months from the date of decree i.e. on or
before 13/07/2024. After deposit of the balance of sale consideration,
the plaintiffs shall approached to the court for division of share of the plaintiffs from the plaint schedule property under due process of law.
then after plaintiffs shall obtain registered sale deed under due process of law, as per division of shares by plaintiffs for registration of sale deed from the defendant.
Typed by Stenographer on my dictation, corrected and pronounced by me in open court, on this the 12th day of April, 2024.
Civil Judge
(Senior Division) Yellamanchili
Appendix of Evidence
Witnesses examined
For Plaintiffs: P.W.1: Dadi Manikanta P.W.2: Moturu Santhosh Kumar P.W.3: Kandregula Satyanarayana @ Satish
For Defendant: D.W.1:Konthala Venkata Kanaka Sai Suneetha
No. of Exhibits marked
For Plaintiffs: Ex.A1: Agreement of Sale dated 09-07-2016. Ex.A2: Office copy of legal notice dated 12-06-2019. Ex.A3: Reply notice dated 25-06-2019. Ex.A4: Photostate copy of General Power of Attorney marked through D.W.1
For Defendant: NIL
Civil Judge
(Senior Division) Yellamanchili
O.S.No. 24 of 2019 CJ(SD) Court, YLM
Date of Presentation:05-07-2019 Date of Filing : 05-07-2019
IN THE COURT OF THE CIVIL JUDGE (SENIOR DIVISION) ::
YELLAMANCHILI
Present : Sai Kumari Akuri,
Civil Judge (Senior Division)
Yellamanchili
Friday, this the 12th day of April, 2024
O.S. No. 24 of 2019
Between:
1. Arlagadda Ravindra Prasad, S/o.Venkateswarlu, 56 years, Hindu, Business, D.No.42-222/12/64, Ward 21, Jangidipuram Blossoms School Wanaparthy, Savaigudem, Mahabubnagar – 509 103, Telangaana State.
2. Dadi Manikanta, S/o.late Sreenivasarao, 26 years, Hindu, Business, Kothapalem village, Yellamanchili Municipality, Visakhapatnam District.
….. Plaintiffs
And
Palivela Amruthavalli, W/o.Nookaraju, D.No.24-2B, 63 years, Hindu, House wife, Station Road, Yellamanchili represented by its General Power of Attorney Holder Konathala Venkata Kanaka Sai Suneetha, W/o.Visweswara Rao, Hindu, House wife, D.No.21-173/2, Station Road, Yellamanchili Municipality, Visakhapatnam District.
… Defendant
Suit is filed by the plaintiff against the defendants for passing a decree in favour of the plaintiff and against the defendant for specific performance of agreement of sale dated 09-07-2016 executed by the defendant and direct the defendant to execute Regular Registered sale deed in favour of plaintiffs within the time fixed by the court and in case, defendant fail to execute regular Registered sale deed then the court register the plaint schedule property in favour of the plaintiff on behalf of defendant; if for any reason specific performance is not ordered by the court and then in alternative return the advance amount of Rs.8,00,000/- with interest thereon from the date of agreement of sale till realisation to the plaintiff with interest @ 24% p.a. from the date of agreement of sale till realisation with compensation, if any as feels fit by the court for the breach of terms of agreement of sale in the circumstances of case; to direct the defendants to pay costs of the suit.
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The value of the suit for the purose of Court fee and jurisdiction is valued Rs.38,00,000/- as per section 39 of A.P.C.F. and S.V.Act is Rs.1,90,000/- per cent and total value of plaint schedule is Ac.00-20 cents valued as Rs.38,00,000/- (Rs.1,90,000/- X 20 cents = R.38,00,000/-) and a Court Fee of Rs.40,426/- is paid herein in liew of Court Fee stamps has been paid in cash vide challan of State Bank of India, Yellamanchili Branch, Yellamanchili, as per Art-1, Schedule -I of A.P.C.F. and S.V.Act.
This suit is coming on 27-02-2024 for final hearing before me in the presence of Sri Y.Dasu Babu, Advocate for the Plaintiff and Sri Yerra Latchanna, Advocate for the Defendantsand the matter having stood over till this day for consideration, this court delivered the following doth order:
D E C R E E
1) that the suit be and same is hereby decreed in favour of the plaintiffs and against the defendant for specific performance of agreement of sale dated 09/07/2016 executed by the defendant;
2) that the plaintiffs shall be deposited balance of sale consideration of Rs.30,00,000/- (Rupees thirty lakh only) within three months from the date of decree i.e. on or before 13/07/2024;
3) that after deposit of the balance of sale consideration by plaintiffs, Plaintiffs shall approached to the court for division of share of the plaintiffs from the plaint schedule property under due process of law. Then after plaintiffs shall obtain registered sale deed under due process of law, as per division of shares by plaintiffs for registration of sale deed from the defendant;
4) That the defendant do also pay an amount of Rs.1,57,029/- (Rupees one lakh fifty seven thousand and twenty nine only) to the plaintiffs towards costs of the suit. (Copy of plaint schedule is attached to the decree)
Given under my hand and the seal of this court, this the 12th day of April, 2024.
CIVIL JUDGE
(SENIOR DIVISION),
YELLAMANCHILI
O.S.No. 24 of 2019 CJ(SD) Court, YLM
MEMORANDUM OF COSTS
For Plaintiffs: For Defendant:
Vakalat : 2-00 No costs memo filed Court fee on plaint : 40,416-00 Petition Stamp 3-00 Process 130-00
Stamp for penalty 600-00
Court fee affixing 3-00 on document
Pleader Fee1,15,700-00
Writing charges 100-00
Type charges 100-00
Costs allowed1,57,029-00
CIVIL JUDGE
(SENIOR DIVISION),
YELLAMANCHILI