OS 14 of 2014 Money Suit
IN THE COURT OF THE VIII ADDITIONAL DISTRICT JUDGE AT
MIRYALGUDA
PRESENT: SRI B.S.JAG JEEVAN KUMAR, B.Sc., LL.M.,
VIII ADDITIONAL DISTRICT JUDGE
Saturday, May 23, 2020
OS No.14 of 2014
BETWEEN:
1)Kandala Ram Reddy S/o Narayana Reddy, 62 years, Businessman, R/o H.No.4-9-180, Bagh Hayathnagar, Hayathnagar, Ranga Reddy District.
2)Singireddy Janga Reddy S/o Laxma Reddy, 50 years, Agriculturist, R/o H.No.2-92, Badangpet, Saroornagar Mandal, Ranga Reddy District (Since deceased, his L.Rs plaintiff Nos.3 to 6 brought on record as per orders in IA.No.245 of 2015)
3)Singireddy Viajyalaxmi
4)Singireddy Purneshwar Reddy
5)Singireddy Lokeshwar Reddy
6)Boyapally Rohini … Plaintiffs
AND
1)Kundooru Sumathi W/o Jana Reddy, 54 years, House wife, R/o Hill Colony, Nagarjuna Sagar, Peddavura Mandal, Nalgonda District Presently residing at Plot No.564-A-38, Road No.2, Jubilee Hills, Hyderabad
2)Karnati Narsimha Reddy S/o Narayana Reddy, 48 years, Agriculturist, R/o Peddavura Village and Mandal, Nalgonda District
3)Enjamori Linga Reddy S/o Raji Reddy, 52 years, Agriculturist, R/o Plot No.171, Sairam Nagar Colony, Karmanghat, Hyderabad
4)Gaddampally Ratnamala W/o Narayana Reddy 79 years, Agriculturist, R/o Hill Colony, Nagarjuna Sagar, Peddavura Mandal, Nalgonda District Presently residing at Plot No.564-A-38, Road No.2, Jubilee Hills, Hyderabad
5)K.Upender Reddy S/o Laxminarayana Reddy, 51 years, Agriculturist, R/o H.No.17-1-383/71, Vinayanagar Colony, Saidabad, Hyderabad.
6)Veerapaneni Sri Krishna Prasad S/o Leela Rama Prasad, 45 years, Engineer R/o Plot No.52, Road No.72, Jubilee Hills, Hyderabad. … Defendants
Counsel for Plaintiff: Sri Y.Chandra Sekhar Reddy
Counsel for Defendant Nos.1, 2 and 4: Sri T.Ashok Reddy
Counsel for Defendant Nos.3 and 5: Sri Aechuri Srinivas
Counsel for Defendant No.6: Sri P.Ravindra Reddy
This suit coming on this day for hearing; upon hearing the counsel on record and considering the material on record, this Court has made the
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following:
JUDGMENT
This suit is for recovery of Rs.1,06,74,595/- from the defendants with interest at 12% per annum.
2. Facts not in dispute:
The 1st and the 2nd defendants were owners and possessors of 2.1.
Schedule A lands total admeasuring 18 acres 12 1/2 guntas and the 4th defendant was owner and possessor of Schedule B lands total admeasuring 5 acres 28 1/2 guntas situated at Pothunuru village, Peddavura Mandal,
Nalgonda District.
The 1st and the 2nd defendants entered into SA-cum-GPA No.3383 of 2.2.
2006 dated 28.4.2006, Ex.A15, in favour of the 3rd defendant in respect of
Schedule A lands for Rs.12,00,000/- and thus the 3rd defendant came into possession of Schedule A lands.
The 4th defendant sold Schedule B lands to the 5th defendant under 2.3.
SA-cum-GPA No.3384 of 2006 dated 28.4.2006, Ex.A16, for Rs.1,72,000/- and thus the 5th defendant came into possession of Schedule B lands.
The 3rd defendant sold Schedule A lands for Rs.12,00,000/- and the 2.4.
5th defendant sold Schedule B lands for Rs.1,72,000/- to the 6th defendant under registered sale deeds Nos.7222 and 7221 of 2009 dated 29.10.2009,
Exs.B19 and B18 (A18 and A17) respectively. The 6th defendant was issued title deed, Ex.B15, and pattadar pass book-cum-title deed, Ex.B16, for
Schedules A and B lands.
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3. Plaintiffs’ case:
On 31.8.2006 the 3rd and the 5th defendants jointly entered into sale 3.1.
agreement, Ex.A1, with the 1st and the 2nd plaintiffs in respect of Schedules A and B lands for Rs.1,25,00,000/-. Under Ex.A1, the 1st and the 2nd plaintiffs paid Rs.20,11,000/- to the 3rd and the 5thdefendants and agreed to pay the balance sale consideration within 60 months. The plaintiffs were not acquainted with English language and the 3rd and the 5th defendants being well educated and having good acquaintance with English language got prepared Ex.A1 and received Rs.20,11,000/- from the plaintiffs by furnishing a copy of Ex.A1 to them.
The plaintiffs paid Rs.25,00,000/- to the 3rd defendant on 13.11.2006 3.2.
vide receipt, Ex.A2, and Rs.20,90,000/- to the 3rd and the 5th defendants on 29.11.2006 vide receipt, Ex.A3. Thus, as on 29.11.2006, the 3rd and the 5th defendants received Rs.66,01,000/- from the plaintiffs.
3.3.Subsequently, the southern boundary of Schedules A and B lands was partly damaged and disturbed either by the 1st to 5th defendants or by the
Government authorities with the consent of the 1st to 5th defendants and thereby the ingress and egress into Schedules A and B lands was obstructed.
When complained, the 3rd and the 5th defendants undertook to solve the problem but did not solve it.
3.4.In Ex.A1 the time for payment of balance sale consideration was wrongly mentioned as 60 days instead of 60 months. The plaintiffs expressed their readiness and willingness to pay the balance sale consideration subject to the rectification of the southern boundary of Schedules A and B lands. Several
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times and finally on 10.12.2009 the plaintiffs requested the 3rd and the 5th defendants to honour Ex.A1 and having found no positive response from the 3rd and the 5th defendants, the plaintiffs issued legal notice dated 29.12.2009,
Ex.A4, to the 1st to 5th defendants requesting them to receive the balance sale consideration and execute and register sale deed in their favour.
Notices to 1st, the 3rd and the 4th defendants were returned vide 3.5.
returned postal covers, Exs.A8 to A10, as they changed their address. The plaintiffs again sent the notices to the correct address of the 1st and the 3rd defendants vide postal receipts, Ex.A12, along with letter dated 22.1.2010,
Ex.A11, and the 1st and the 3rd defendants acknowledged receipt of the notice. Subsequently, the 3rd and the 5th defendants issued reply notice
dated 25.1.2010, Ex.A14/B12, with all false facts and mainly raising a plea that
the plaintiffs entered into a supplementary agreement dated 27.12.2006 with them, where under and whereby, the plaintiffs revoked Ex.A1 being unable to pay the balance sale consideration and authorized the 1st to 5th defendants to sell Schedules A and B lands to third parties and the 1st to 5th defendants could deduct Rs.58,99,000/- and appropriate the same for themselves being the balance amount due and out of the remaining amount, if any, the plaintiffs could deduct their amount of Rs.66,01,000/- and after deducting the said amount, if any further amount was available, the same should be shared between the plaintiffs and the 1st to 5th defendants equally. The 3rd and the 5th defendants further stated that in pursuance of the said supplementary agreement, they sold Schedules A and B lands to the 6th defendant under two sale deeds and demanded the plaintiffs to pay Rs.2,60,000/- being the short of sale consideration. Along with the reply notice, the 3rd and the 5th defendants sent a copy of the supplementary agreement dated Nil.12.2016.
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In the month of June 2008 the 3rd and the 5th defendants came to the 3.6.
plaintiffs with a proposal that they would arrange bank loan so that the plaintiffs could pay the balance sale consideration and repay the loan by sale of
Schedules A and B lands to third parties. The 3rd and the 5th defendants convinced the plaintiffs and obtained their signatures on some papers written in English. The plaintiffs signed the papers reposing confidence in the 3rd and the 5th defendants.
3.7.No day was mentioned in the said supplementary agreement. It was prepared on old stamp paper available with the 3rd and the 5th defendants.
At page 3 of it, certain words were erased and at page 4, interpolation was made which was signed by the 3rd defendant alone. The plaintiffs came to know of the said supplementary agreement only after receiving the reply notice.
3.8.Clause (iii), at pages 3 and 4 of the supplementary agreement reads:
“Both the parties hereby agreed that with the consent of the both parties alienate the schedule property covered under the agreement of sale dated 31.8.2006, and the first party deducts a sum of Rs.58,99,000/- which is the balance sale consideration which is payable by the second party herein. From the sale consideration received from the sale of schedule lands. And both the parties agreed that after deducting the amounts by the first part if any amount remains the second part could deduct a sum of Rs.66,01,000/- from the remaining sale consideration. And after deducting the above amounts if any amounts are available both the parties shall be shared equally by the first and second parts.” 3.9.Even if the said supplementary agreement is true, under the above said clause, Schedules A and B lands should be alienated with the consent of both
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the parties. The 3rd and the 5th defendants should withdraw Rs.58,99,000/- towards the balance sale consideration still payable to them by the plaintiffs.
From out of the remaining balance sale consideration, the plaintiffs are entitled to deduct their amount of Rs.66,01,000/-. After such deduction, if any balance remains, the same should be divided equally between the 1st to 5th defendants and the plaintiffs.
The 3rd and the 5th defendants, with a mala fide intention to knock 3.10.
away the entire amount for themselves by selling Schedules A and B undervaluing them, interpolated the supplementary agreement by inserting “if any amounts remains”.
3.11.The supplementary agreement does not speak of any date but the reply notice speaks of the date as 27.12.2006. The plaintiffs paid Rs.20,90,000/- only on 29.11.2006 and therefore there was no occasion to enter into the supplementary agreement in December 2006.
From the beginning, the plaintiffs had utmost confidence on the 3rd and 3.12.
the 5th defendants as they are their relatives and paid sale consideration even though they did not put their signatures in Ex.A1. This confidence was misused by the 3rd and the 5th defendants in creating the said supplementary agreement.
3.13.No permission was sought from the plaintiffs and no consent was given by the plaintiffs for sale of Schedules A and B lands to the 6th defendant. As
Schedules A and B lands were sold to the 6th defendant under registered sale deeds Nos.7221 and 7224 of 2009 dated 29.10.2009 and as the 6th defendant purchased Schedules A and B lands knowing fully well about Ex.A1, the 6th defendant is made as party to the present suit.
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3.14.The actual value of Schedules A and B lands is Rs.2 crores but the sale consideration shown in the said sale deeds dated 29.10.2019 are undervalued.
In the said sale deeds, the sale consideration for Schedule A lands was shown as Rs.12,00,000/- and for Schedule B lands as Rs.1,72,000/- and the
SA-cum-GPAs, in favour of the 3rd and the 5th defendants, Exs.A15 and A16, are for the same sale considerations. If consent was sought, the plaintiffs would not have allowed the 3rd and the 5th defendants to sell Schedules A and
B lands for the said sale considerations. Thus, the 3rd and the 5th defendants played fraud on the plaintiffs.
3.15.In view of the above stated facts, the plaintiffs are entitled to revoke the sale agreement, Ex.A1, and seek refund of the amounts paid under Ex.A1 to the 3rd and the 5th defendants with interest at 18% per annum. As the 1st to 5th defendants sold Schedules A and B lands to the 6th defendant for much higher value and deprived the plaintiffs of their profits, all the defendants are jointly liable to pay the suit amount to the plaintiffs.
Defence of the 1 st to 5 th defendants: 4.
4.1.The present suit for recovery of Rs.1,06,74,595/- is based on defaulted sale agreement, Ex.A1, and it is not maintainable under law or on facts. The 1st and the 2nd plaintiffs ought to have filed a suit for specific performance of agreement of sale or for alternative relief of return of the amount paid. The 3rd and the 5th defendants are not liable to pay any amount much less the suit amount to the 1st and the 2nd plaintiffs.
The 3rd and the 5th defendants as GPA holders of the 1st, the 2nd and 4.2.
the 4th defendants offered to sell Schedules A and B lands to the 1st and the
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2nd plaintiffs for Rs.1,25,00,000/- for which the 1st and the 2nd plaintiffs agreed and accepted the said offer and paid Rs.20,11,000/- towards advance and entered into the sale agreement, Ex.A1, agreeing to pay the balance sale consideration within 60 days but they paid only Rs.66,01,000/- and could not pay the balance sale consideration of Rs.58,99,000/- as agreed. As there was down fall of real estate market, the 1st and the 2nd plaintiffs executed supplementary agreement on 27.12.2006, Ex.B11, by admitting their default and by permitting the 3rd and the 5th defendants to sell Schedules A and B lands to third parties and deduct the said Rs.58,99,000/- from the sale proceeds and thereafter, if any amount remains, the 1st and the 2nd plaintiffs shall deduct the amount paid by them and thereafter, if any amount still remains, both the parties shall share it equally. By executing the supplementary agreement, Ex.B11, the 1st and the 2nd plaintiffs threw their defaulted burden on the 3rd and the 5th defendants.
For 3 long years, the 3rd and the 5th defendants showed Schedules A 4.3.
and B lands to several prospective buyers. Due to recession in real estate business, nobody came forward to purchase Schedules A and B lands. The land rates enormously came down. At last, the 3rd and the 5th defendants convinced the 6th defendant and the 6th defendant agreed to purchase
Schedules A and B lands at the rate of Rs.2,35,000/- per acre. This was informed to the 1st and the 2nd plaintiffs and they did not raise any objection as such on 29.10.2009 the 3rd and the 5th defendants sold Schedules A and B lands to the 6th defendant.
4.4.The transaction between the parties under the sale agreement, Ex.A1, was not a simple money transaction nor was there any clause in Ex.A1 for
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return of the amount paid. In the supplementary agreement, Ex.B11, the 1st and the 2nd plaintiffs clearly admitted that they failed to pay the balance sale consideration within the stipulated time of 60 days and despite several requests and demands made by the 3rd and the 5th defendants as such both the parties came to an understanding with regard to cancellation of the sale agreement, Ex.A1, and entered into the said supplementary agreement.
4.5.In Clause (iv) of the supplementary agreement, Ex.B11, it is clearly stated that the said supplementary agreement is made into two original copies and the 1st and the 2nd plaintiffs were given one such copy. But the 1st and the 2nd plaintiffs deliberately suppressed the said facts and got issued the legal notice, Ex.A4, to which the 3rd and the 5th defendants gave a suitable reply,
Ex.B12. Subsequently, the 1st and the 2nd plaintiffs issued clarification notice
dated 10.2.2010, Ex.B13, for furnishing a copy of the supplementary
agreement and they were served with a copy of the said supplementary agreement.
Intention of the 1st and the 2nd plaintiffs is mala fide and criminal in 4.6.
nature. The 1st and the 2nd plaintiffs are liable to pay Rs.2,60,000/- due to their default. The 3rd and the 5th defendants sustained huge loss and could not sell Schedules A and B lands during peak time. The 1st and the 2nd plaintiffs took the responsibility of the loss in the supplementary agreement,
Ex.B11.
After receiving a copy of the supplementary agreement, the 1st and the 4.7.
2nd plaintiffs filed the present suit by suppressing the real facts and concocting a false story, for blackmailing the 3rd and the 5th defendants and their vendee,
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the 6th defendant, and thereby to extract huge amounts from them. The suit is motivated and is bad in law. The 1st and the 2nd plaintiffs are trying to use the legal process for their illegal ends. Therefore, the suit is liable to be dismissed with exemplary costs.
Defence of the 6 th defendant: 5.
5.1.The sale agreement, Ex.A1, and the receipts, Exs.A2 and A3, were fabricated by the 1st and the 2nd plaintiffs in collusion with the 1st to 5th defendants for the purpose of the suit claim.
The plaint averments themselves disclose that the 1st and the 2nd 5.2.
plaintiffs had no financial capacity to enter into the alleged suit transaction of
Rs.1,25,00,000/-. The enquiries of the 6th defendant revealed that the 1st and the 2nd plaintiffs had no capacity even to pay Rs.66,01,000/-.
The 6th defendant was not aware and was never made aware of the 5.3.
alleged sale agreement, Ex.A1, either by the 1st and the 2nd plaintiffs or by the 3rd and the 5th defendants at any point of time. The 6th defendant is a bona fide purchaser for value without any notice of any third party claim including the suit claim.
5.4.The manner in which the legal notices were exchanged and the manner in which the 1st to 5th defendants readily admitted the alleged sale agreement,
Ex.A1, and set up a supplementary agreement, Ex.B11, the signatures therein were admitted by the 1st and the 2nd plaintiffs, show that they were stage managed for the purpose of the suit claim, with a view to defraud the 6th defendant, to harass him and to extort some money from him.
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The fact that the 1st and the 2nd plaintiffs did not chose to issue legal 5.5.
notice to the 6th defendant and yet chose to file petition for attachment before judgment seeking the relief only against the 6th defendant and his property speaks volumes about such collusion and fraud on their part.
Even after receiving the reply notice, Ex.A14, the 1st and the 2nd 5.6.
plaintiffs did not choose to send any notice to the 6th defendant.
If at all the 1st and the 2nd plaintiffs paid Rs.66,01,000/- as on 5.7.
29.11.2006 as alleged, they would not have kept quiet for 3 long years and issued a notice shortly after the 6th defendant purchased Schedules A and B lands for valuable consideration.
5.8.If at all there were sale agreement, Ex.A1, and supplementary agreement, Ex.B11, the 1st to 5th defendants ought to have revealed the same to the 6th defendant.
There was no need for any supplementary agreement if the 1st and the 5.9.
2nd plaintiffs had given up their idea of purchasing Schedules A and B lands.
In view of the supplementary agreement, Ex.B11, the 1st and the 2nd 5.10.
plaintiffs cannot have any claim against the 6th defendant on the basis of the sale agreement, Ex.A1.
5.11.Obviously, the sale agreement, Ex.A1, the supplementary agreement,
Ex.B11, the legal notice, Ex.A4, and the reply notice, Ex. A14, are brought into existence by collusion.
The conduct of the 1st and the 2nd plaintiffs and the 1st to 5th 5.12.
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defendants is unnatural and against human conduct expected from any man of prudence and cannot be believed.
If the theory of 60 months was to be true, the course open to the 1st 5.13.
and the 2nd plaintiffs to ask for rectification of the agreement period.
5.14.There was no boundary dispute and the allegation as to rectification of the southern boundary dispute betrays the claim of readiness and willingness to pay the balance sale consideration by the 1st and the 2nd plaintiffs.
5.15.The allegation of the typed bond papers for the purpose of bank loan is obviously made to accept the signatures on the supplementary agreement,
Ex.B11.
The 1st defendant is the wife and the 2nd to 5th defendants are close 5.16.
relatives of Sri K.Jana Reddy, a former minister and a senior legislator, having substantial properties. But the 1st and the 2nd plaintiffs did not chose to proceed against the properties of the 1st to 5th defendants though they seek to recover the amounts allegedly paid to them.
The 1st and the 2nd plaintiffs illegally made the 6th defendant as party 5.17.
to the suit to whom they did not pay any such amount and with whom they did not have any kind of transaction whatsoever and were not even known.
The 6th defendant was not aware of the 1st and the 2nd plaintiffs and 5.18.
therefore, the question of defrauding them does not arise.
The legal notice dated 29.12.2009, Ex.A3, shows that the 1st and the 5.19.
2nd plaintiffs were asking for specific performance even on that date and the plaint does not disclose when the sale agreement, Ex.A1, was revoked.
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6. Issues:
Based upon the above said rival pleadings, the following issues were framed for trial:
1)Whether the plaintiffs are entitled for the suit claim?
2)To what relief?
7. Evidence adduced:
The plaintiffs examined the 1st plaintiff as PW1. He reiterated their 7.1.
case as pleaded. He filed 18 documents, Exs.A1 to A18, reference to which was already given.
The 2nd plaintiff died. The 3rd to 6th plaintiffs are his legal 7.2.
representatives. The 4th plaintiff was examined as PW2. He stated that he came to know all the facts through his father/2nd plaintiff.
On the other hand, the 3rd defendant was examined as DW1. He 7.3.
reiterated the defence of the 1st to 5th defendants as pleaded by them and filed 4 documents, Exs.B11 to B14. Ex.B14 is the endorsement made by Sri
R.Mahender Reddy, Advocate, on Ex.B13 after receiving a copy of the supplementary agreement, Ex.B11.
In the cross-examination by the 3rd and the 5th defendants PW1 7.4.
admitted that the supplementary agreement, Ex.B11, bears his signatures and the 2nd plaintiff’s signatures, which were marked as Exs.B1 to B5 and B6 to
B10 respectively.
7.5.V.Jagannath Reddy and M.Dharmender are attestors to the supplementary agreement, Ex.B11. The said V.Jagannath Reddy was
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examined as DW2.
The 6th defendant examined himself as DW3. He reiterated his 7.6.
defence as pleaded in his written statement and filed 8 documents, Exs.B15 to
B22. Reference to Exs.B15 to 18 was already given. Exs.B19 to B22 are encumbrance certificates.
8. Plaintiff’s arguments:
8.1.Execution of the sale agreement, Ex.A1, is not disputed. Receipt of
Rs.66,01,000/- as part sale consideration under Ex.A1 is not disputed.
8.2.The supplementary agreement, Ex.B11, is a created document. By misrepresentation and fraud, the signatures of the 1st and the 2nd plaintiffs were obtained on Ex.B11.
8.3.Even if Ex.B11 is accepted, as per Clause (iii) of Ex.B11, the plaintiffs are entitled to receive Rs.66,01,000/- from the defendants.
9. Arguments of Defendant Nos.3 and 5:
9.1.The sale agreement, Ex.A1, remained with the plaintiffs only from the date of its execution till the date of its filing before the Court. The time for performance of the contract ‘60 days’ was written with hand. The question of correction or alteration does not arise.
9.2.The supplementary agreement, Ex.B11, is proved through DW2. In view of Clause (iii) of Ex.B11, the plaintiffs are not entitled to recover any amount as Schedules A and B lands were sold for lesser price.
9.3.The time for performance of the contract expired after 60 days from the date of the sale agreement dated 31.8.2006, Ex.A1. Article 54 of the
Limitation Act provided limitation of three years from the date fixed for performance of the contract. The suit was filed on 6.10.2010, which was not within the period of limitation. Therefore, the suit is barred by limitation.
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Arguments of the 6 th defendant: 10.
The 6th defendant purchased Schedules A and B lands for valuable 10.1.
consideration. He is a bona fide purchaser. He is not a signatory to the sale agreement, Ex.A1, and the supplementary agreement, Ex.B11, and has nothing to do with Exs.A1 and B11. The suit itself is not maintainable against the 6th defendant as there is no jural relationship or privity of contract between the plaintiffs and the 6th defendant.
The cross-examination of PW1 shows that the 1st and the 2nd plaintiffs 10.2.
had no capacity to purchase Schedules A and B lands. As the 1st and the 2nd plaintiffs were not in a position to pay the balance sale consideration, the supplementary agreement, Ex.B11, was entered. The allegation of boundary dispute is a make belief story.
No notice was issued to the 6th defendant prior to the filing of the suit. 10.3.
No positive evidence was adduced to show that the 6th defendant played fraud on the 1st and the 2nd plaintiffs. Therefore, the suit agaisnt the 6th defendant is liable to be dismissed.
11. Reply by the plaintiffs:
The 6th defendant is not a bona fide purchaser. He knew about the sale agreement, Ex.A1, and the supplementary agreement, Ex.B11. In view of Clause (iii) of Ex.B11, the plaintiffs are entitled to recover the suit amount from the defendants. Reliance was placed on a decision of the Hon’ble erstwhile High Court of AP in Mudureddipalle Sanjeeva Reddy v. Buttura Ram
Mohan Reddy [2010(1) ALD 470] by stating that the facts in that case and in the present suit are same.
12. Findings on the issues:
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12.1.PW2’s evidence is of no help for he was not present at the time of execution of Ex.A1 and he himself stated in his evidence that he came to know the facts through his father.
12.2.Execution of the sale agreement, Ex.A1, is not disputed. Ex.A1 shows that it was executed only by the vendors i.e., the 3rd and the 5th defendants. The stamp paper in Ex.A1 was purchased by the 2nd plaintiff.
PW1 admitted in the cross-examination that Ex.A1 was in his custody from the date of its execution till the date of its filing before the Court. These facts would show that the sale agreement, Ex.A1, was obtained by the 1st and the 2nd plaintiffs from the 3rd and the 5th defendants.
12.3.It is true, at page 4 of the sale agreement, Ex.A1, at the place of time for performance of the contract ‘60 day’ was written with hand. There is no insertion as pleaded in the plaint.
12.4.When PW1 was confronted with Ex.A1, he admitted the same.
When it was suggested to him that as per the terms of Ex.A1, they were required to pay the balance consideration within 60 days, he denied the suggestion.
12.5.DW1 was cross-examined on the said aspect. He denied the suggestion that they got prepared Ex.A1, put their signatures in it and handed it over to the 1st and the 2nd plaintiffs and also denied the suggestion that it was agreed to complete the sale transaction within a period of 60 months and added that it was only 60 days. He denied the suggestion that they corrected 60 days instead of 60 months and added that he put his signature in Ex.A1, on scribing the words ‘60 days’. He denied the suggestion that they themselves made the correction behind the back of the 1st and the 2nd plaintiffs as they are illiterates and now claiming that the time for performance of the contract
as 60 days.
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12.6.There is no such correction in Ex.A1. Admittedly, Ex.A1 was in the custody of the 1st and the 2nd plaintiffs from the date of its execution till the date of its filing before the Court. Had the 3rd and the 5th defendants inserted or corrected the time for specific performance of the contract as contended, the 1st and the 2nd plaintiffs would not have kept quiet for 3 long years. Therefore, the contention of the plaintiffs in that regard cannot be accepted.
12.7.The plaintiffs are not seeking specific performance of the contract.
They are seeking recovery of the amounts paid under Ex.A1 to the 3rd and the 5th defendants.
12.8.As the plaintiffs are not seeking specific performance of the contract,
Article 54 of the Limitation Act does not apply as the limitation of 3 years provided therein will start from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
12.9.In Mudureddipalle Sanjeeva Reddy’s case [2010(1) ALD 470], relied upon by the plaintiffs, it is held that the Specific Relief Act does not place any bar on a buyer to file a suit for mere recovery of the earnest money.
Admittedly, the 3rd and the 5th defendants sold Schedules A and B 12.10.
land to the 6th defendant under registered sale deeds dated 29.10.2009,
Exs.B17 and B18/A17 and A18.
12.11.The right to sue for recovery of the amounts paid under Ex.A1 can be said to have been accrued to the 1st and the 2nd plaintiffs from 29.10.2009. Residuary Article 113 of the Limitation Act provides for 3 years’ limitation. The suit was filed on 6.4.2010 which was within the period of limitation.
12.12.The plea of the plaintiffs that the southern boundary of Schedules A
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and B lands was partly damaged and disturbed either by the 1st to 5th defendants or by the Government authorities with the consent of the 1st to 5th defendants and thereby the ingress and egress into Schedules A and B lands was obstructed and that when complained, the 3rd and the 5th defendants undertook to solve the problem but did not solve it, it appears from what was elicited from PW1 in the cross-examination, is a make belief story.
In the cross-examination by the 3rd and the 5th defendants, PW1 12.13.
denied the suggestion that they are not at all related or responsible for laying pipe line and asserted that there is no stipulation in the sale agreement, Ex.A1, with regard to laying of the road.
PW1 stated in the cross-examination by the 6th defendant that he 12.14.
did not state in his affidavit that PWD road was partly damaged and disturbed.
In the sale agreement, their ingress and egress was shown as main road from
Nagarjuna Sagar to Hyderabad. The road face is about 1000 feet in length.
There is a canal towards the South of the schedule property which is in between the road and the schedule property. The canal is in existence in the entire length of the schedule property. The width of the canal is 40 feet. The canal is shown as one of the boundaries in the schedule property. He cultivated the land for a period of 8 months. He crossed the canal to reach the schedule property. He cultivated the land by engaging a tractor. Tractor and other vehicles used to ply from the land of Ramakrishna Reddy to reach the schedule property. There is a culvert at the land of Ramakrishna Reddy.
There is a service road abutting the canal to reach their field.
12.15.DW1 said that the said contention of the plaintiffs is false. In the cross-examination, he denied the suggestions that there was disturbance of ingress and egress to the schedule property from the southern side, that the 1st and the 2nd plaintiffs requested them to rectify the same and that the 1st
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and the 2nd plaintiffs had been willing to perform their part of performance under Ex.A1 after clearing the disturbance.
12.16.DW3 also stated that the said contention of the plaintiffs is false.
This is what he said in the cross-examination by the 3rd and the 5th defendants. To Schedules A and B lands, on the southern side there is no disturbance and there is no way. He laid culvert over the canal on the southern side to reach his land from the R&B road proper. The canal is part of the R&B road.
The other contention of the plaintiffs is that the 1st and the 2nd 12.17.
plaintiffs did not enter into and execute the supplementary agreement, Ex.B11, and that the 3rd and the 5th defendants obtained the signatures of the 1st and the 2nd plaintiffs in Ex.B1 by playing fraud and misrepresentation on them.
12.18.PW1 spoke about the payments made on 3.11.2006 and 29.11.2006 and filed a receipt dated 3.11.2006 passed by the 3rd defendant and another receipt dated 29.11.2006 passed by the 3rd and the 5th defendants, Exs.A2 and A3. DW1 admitted that they received Rs.66,01,000/- from the 1st and the 2nd plaintiffs under the sale agreement, Ex.A1.
The 6th defendant suggested to PW1 that he and the 2nd plaintiffs 12.19.
were not in a position to invest huge amount of Rs.1,25,00,000/- for purchase of Schedules A and B lands. PW1 denied the said suggestion and stated that he sold out his agricultural land to an extent of 11 acres for Rs.11,00,000/- and also 600 square yards house plot at Hayathnagar and invested the said amounts for purchasing Schedules A and B lands.
PW2 also denied the suggestion of the 6th defendant that neither his 12.20.
family nor the family of PW1 got capacity to purchase Schedules A and B lands by investing huge consideration and added that his father sold 10 acres
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agricultural land in Dasarlapally village for purchase of Schedules A and B lands in the year 2006. He stated that his father executed registered document in favour of the vendees and that he sold the land for Rs.11,00,000/- per acre.
He denied the suggestion that his father never sold their agricultural land at
Dasarlapally village for Rs.11,00,000/- per acre.
12.21.It is true, Pws1 and 2 did not file copies of the sale deeds executed by PW1 and PW2’s father but on that ground their testimony cannot be doubted. As already stated, the 1st to 5th defendants in their written statement and DW1 in his evidence admitted that from the 1st and the 2nd plaintiffs the 3rd and the 5th defendants received Rs.25,00,000/- on 3.11.2006 and Rs.20,90,000/- on 29.11.2006 apart from Rs.20,11,000/- on 31.8.2006, total Rs.66,01,000/-.
Admittedly, the 1st and the 2nd plaintiffs did not make any payment 12.22.
to the 3rd and the 5th defendants after 29.11.2006. The 3rd and the 5th defendants elicited from PW1 that they did not deposit the balance amount in any of the accounts as on the date of the legal notice and that they did not file any documents to show that they were in a position to pay the balance sale consideration for getting execution of the sale deed on the date of the notice.
In the cross-examination by the 6th defendant, PW1 stated that he is working as a supervisor in a marriage hall at Champapet, that he has no income other than the salary as supervisor, that he gets salary of Rs.15,000/- per month and also gets Rs.1,000/- to Rs.1,500/- for every marriage, that he earns
Rs.30,000/- per month and that he saves Rs.12,000/- per month but does not deposit the same in any bank. At another stage of cross-examination, he stated that he availed loan to run a plastic industry and that he employed one accountant for maintaining accounts of the said industry.
From PW2, the 6th defendant elicited that his father worked as 12.23.
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commission agent in vegetable market. His father did the said business for 20 years. Prior to that, his father used to do agriculture. His father got agricultural land of 10 acres at Dasarlapally village and 5 acres at Jaitaram village. His father used to cultivable vegetables and paddy. He used to co-operate his father in vegetables business. His father used to look after agriculture when he was doing vegetables business. Their family used to save
Rs.6,00,000/- to Rs.7,00,000/- per year. His father used to file income tax returns. He too filed income tax returns. His father also filed income tax returns. His brother is in the same business along with him.
Acknowledgments of the income tax returns of his father are available in their house. He denied the suggestion that their family never saved Rs.6,00,000/- to Rs.7,00,000/- at any point of time.
12.24.It has come in the evidence of PW2 that his father already sold 10 acres agricultural land. No record is filed to show that the family of the 2nd plaintiff is having 5 acres agricultural land. No record is filed to show that the 2nd plaintiff and his family saved Rs.6,00,000/- to Rs.7,00,000/- per year.
The evidence on record does not show that the 1st and the 2nd 12.25.
plaintiffs had capacity to pay the balance sale consideration of Rs.58,99,000/- to the 3rd and the 5th defendants after 29.11.2006.
The plaintiffs contended that the 1st and the 2nd plaintiffs came to 12.26.
know of the supplementary agreement, Ex.B11, only after receiving reply notice, Ex.A14, from the 3rd and the 5th defendants.
12.27.Ex.B11, supplementary agreement, is on stamp paper worth
Rs.100/- purchased by the 5th defendant on 27.12.2006. It is signed by the 3rd and the 5th defendants and also by the 1st and the 2nd plaintiffs. Its first two lines read: “This supplementary agreement is made and executed on this the ..... day of December 2006 at Hyderabad, by and between ....”. The
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day of the month is left blank in Ex.B11.
PW1 in the cross-examination by the 3rd and the 5th defendants 12.28.
admitted that his signatures and the 2nd plaintiff’s signatures are in Ex.B11.
He claimed that they got issued a reply after receipt of a copy of Ex.B11 through Sri R.Mahender Reddy, Advocate, Ranga Reddy, but they did not plead or state that they did not execute Ex.B1.
12.29.It was pleaded in the plaint and it was stated by PW1 in his chief-examination that in the month of June 2008, the 3rd and the 5th defendants came to the plaintiffs with a proposal that they would arrange bank loan so that the plaintiffs could pay the balance sale consideration and repay the loan by sale of Schedules A and B lands to third parties, that the 3rd and the 5th defendants convinced the plaintiffs and obtained their signatures on some papers written in English and that the plaintiffs signed the papers reposing confidence in the 3rd and the 5th defendants.
12.30.If there was any truth in the said allegations and the statement of
PW1, the 1st and the 2nd plaintiffs would have mentioned about the said facts in the legal notice, Ex.A4. But Ex.A4 does not contain any such facts. PW1 admitted in the cross-examination by the 6th defendant that they did not got mentioned in Ex.A4 that the 3rd and the 5th defendants obtained their signatures for the purpose of availing crop loan. Therefore, there is no ring of truth in what was pleaded and what was stated by PW1 as to how the signatures of the 1st and the 2nd signatures came on all the five papers in
Ex.B11.
To prove the execution of Ex.B11 by the 1st and the 2nd plaintiffs, 12.31.
the 3rd and the 5th defendants examined DW2. The evidence of DW2 is that
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when himself, M.Dharmender and the 5th defendant were in the office of the 3rd defendant discussing some issues pertaining to their business, the 1st and the 2nd plaintiffs came there to discuss the issue pertaining to Schedules A and
B lands purchased from the 3rd and the 5th defendants. The 1st and the 2nd plaintiffs brought a computer typed supplementary agreement, handed it over to the 3rd defendant and requested him to read the contents therein. The 3rd defendant read over the contents of the supplementary agreement and explained to them. Later, the 3rd defendant put his signature in the supplementary agreement and handed it over to the 5th defendant who also signed in it and handed it over to the 1st plaintiff for their signatures. The 1st and the 2nd plaintiffs put their signatures in the supplementary agreement and asked him and M.Dharmendar to act as attestors. The supplementary agreement was executed in continuation of the sale agreement, Ex.A1. He and M.Dharmendar signed the supplementary agreement as attestors. After
Ex.B11 was confronted to him, he stated that the transaction in Ex.B11 took place in their presence and identified his signature in Ex.B1 and the signatures of the parties thereto.
12.32.The plaintiffs cross-examined DW2 but failed to bring him around to their case. He stated that the 3rd defendant is his real estate business partner. The 5th defendant was known to him. He saw the 1st and the 2nd plaintiffs only on the date of execution of Ex.B11. On the date of Ex.B11, he was informed about Schedules A and B lands and the previous agreement,
Ex.A1. He denied the suggestions given.
Thus the evidence on record shows that the 1st and the 2nd 12.33.
plaintiffs executed the supplementary agreement, Ex.B11, as they had no capacity to pay the balance sale consideration of Rs.58,99,000/- to the 3rd and
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the 5th defendants after 29.11.2006.
12.34.It is true, at page 3, the amount of the balance consideration payable within 60 days from the date of the sale agreement, Ex.A1, mentioned in figures as Rs.1,04,89,000/- was struck off. Admittedly, the said amount is
Rs.58,99,000/-. As a mistake was crept in Ex.B11 in mentioning the quantum of the balance sale consideration payable, that was corrected.
12.35.It is also true, at page 4, four words “if any amount remains” were inserted in the third line after the words “the first part” and before the words “the second part” and the same was attested by the 3rd defendant alone.
12.36.Clause (iv) of Ex.B11 reads: “This agreement is prepared in duplicate on two separate stamp papers and each one shall be in the custody of the first and second parts.” 12.37.The other copy of the agreement was not filed by the plaintiffs. No evidence was adduced to show that the said correction and alteration were made after execution of the document. DW2 was not cross-examined on that aspect.
12.38.Ex.B11 shows that it was executed in the month of November 2006.
It is true, in Ex.B11 the day of the month on which it was executed is left blank. But the evidence of Dws1 and 2 shows that Ex.B11 was executed on 27.12.2006.
12.39.PW1 admitted that there was decline in real estate prices after execution of Ex.A1. Further, the 1st and the 2nd plaintiffs had no capacity to the balance sale consideration of Rs.58,99,000/-. Those circumstances must have prompted the parties to enter into the supplemental agreement, Ex.B1.
12.40.In fact, in Ex.B11, it was recited: “And whereas the second part failed to pay the balance sale consideration within the stipulated period of 60 dayas even after several requests and demands made by the first part. And
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whereas due to the understandings between the first and second parts, the first and second parts have been settled amicably and it is now agreed that this supplementary agreement shall be executed by and between them, thus reducing the fresh terms and conditions in writing.”
Both the parties, the plaintiffs on one hand and the 3rd and the 5th 12.41.
defendants on the other, relied upon Clause (iii) of Ex.B11, to accept or reject the contention of the plaintiffs that the plaintiffs are entitled to claim the amounts paid under Ex.A1 from the defendants.
12.42.The said Clause (iii) of Ex.B11 was extracted at para 3.8, supra.
Clause (ii) of Ex.B11 is also relevant and it reads: “In view of this understanding the second part is not under obligation to pay the balance sale consideration of Rs.58,99,000/- as agreed originally in the agreement of sale
dated 31.8.2006.”
Under the said Clause (ii), both the parties agreed that the 1st and 12.43.
the 2nd plaintiffs need not pay the balance sale consideration of
Rs.58,99,000/- to the 3rd and the 5th defendants. Under Clause (iii), both the parties agreed (i) for sale of Schedules A and B lands to prospective purchasers with the consent of both the parties and (ii) for deduction of
Rs.58,99,000/- by the 3rd and the 5th defendants first from the sale consideration received from the sale of Schedules A and B lands. Both the parties further agreed under the said Clause (iii) that if any amount remains after the said deduction of Rs.58,99,000/- by the 3rd and the 5th defendants from the sale consideration received from the sale of Schedules A and B land, the 1st and the 2nd plaintiffs shall deduct Rs.66,01,000/- from that amount.
It was further agreed in the said Clause (iii) that after deducting the said amount of Rs.66,01,000/-, if any amount remains, both the parties shall share the same equally.
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DW1 claimed that when the 6th defendant agreed to purchase 12.44.
Schedules A and B lands at the rate of Rs.2,35,000/- per acre, they intimated the same to the 1st and the 2nd plaintiffs orally for which the 1st and the 2nd plaintiffs agreed and did not raise any objection and then they sold Schedules
A and B lands to the 6th defendant.
PW1 denied the suggestion that the 3rd and the 5th defendants sold 12.45.
Schedules A and B lands with his consent. In the cross-examination by the 6th defendant, he admitted that the 3rd and the 5th defendants are his distant relatives. He came to know that the schedule property was sold to some other persons 14 months after Ex.A1. There was no way to reach vehicles of someone (purchaser) to the schedule property. He did not know the details of the police officer who purchased the schedule property. He did not know the name of the police officer till that day. They did not issue legal notice to the purchaser. They did not got issued any public notice in any newspaper.
12.46.PW1’s disinclination and unwillingness to know about the name and other particulars of the purchaser of Schedules A and B lands and his and the 2nd plaintiff’s non-issuance of legal notice to the purchaser, as stated above, will speak volumes. No agreement holder having parted with huge earnest money and having come to know that the property covered under the agreement is sold by his vendor would kept quiet. Had there been no intimation of the 6th defendant’s willingness to purchase Schedules A and B lands and no consent for sale of Schedules A and B lands to the 6th defendant as agreed under the supplementary agreement, Ex.B11, the 1st and the 2nd plaintiffs would not have kept quiet and would certainly have issued legal notice to the defendants immediately after knowing about the sale of
Schedules A and B lands and would have initiated legal proceedings against them. In the circumstances, the plaintiffs’ contention that the sale of
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Schedules A and B lands to the 6th defendant was made without the consent of the 1st and the 2nd plaintiffs cannot be accepted.
12.47.Though pleaded, the plaintiffs did not adduce any acceptable evidence to show that the value of Schedules A and B lands was
Rs.2,00,00,000/- and that the sale considerations in the registered sale deeds,
Exs.B17 and B18, were undervalued. PW1 admitted that there was a decline in real estate business after the execution of the sale deed, Ex.A1.
12.48.DW1 stated in the cross-examination that they executed the registered sale deeds, Exs.B17 and B18, on the basis of the value mentioned in the Basic Value Register maintained by the Sub-Registrar. He denied the suggestion that Schedules A and B lands were worth Rs.2,00,00,000/- on the dates of Exs.B17 and B18.
12.49.DW6 stated in the cross-examination that he purchased Schedules A and B lands for Rs.30,000/- per acre and he paid extra amount for the two bore-wells, trees and one well. He denied the suggestion that as on the date of his purchase, the value of Schedules A and B lands was more than
Rs.2,00,00,000/-.
12.50.Except the ipse dixit of PW1, there is no other evidence to show that the value of Schedules A and B lands as on the date of the registered sale deeds, Exs.B17 and B18, was Rs.2,00,00,000/-. If Schedules A and B lands were worth Rs.2,00,00,000/- and there were prospective purchasers to buy the same at that rate, nothing prevented the 1st and the 2nd plaintiffs to inform the same to the 3rd and the 5th defendants and get Schedules A and B lands sold at that rate and make profit out of it.
12.51.DW6 stated in the cross-examination that he did not know the plaintiffs. He did not know whether the 3rd and the 5th defendants sold
Schedules A and B lands to the 1st and the 2nd plaintiffs under the sale
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agreement dated 31.8.2006. He did not know whether the 3rd and the 5th defendants were paid Rs.66,01,000/- under the said sale agreement. He was not aware of the supplementary agreement between the 1st and the 2nd plaintiffs and the 3rd and the 5th defendants. He denied the suggestion that he knew about the sale agreement, Ex.A1, that he purchased Schedules A and
B lands having knowledge about Ex.A1 and that his purchase of Schedules A and B lands is not bona fide. He also denied the suggestion that the 3rd and the 5th defendants showed him the sale agreement, Ex.A1, and the supplementary agreement, Ex.B11.
12.52.DW6 admitted in the cross-examination that Srinivas is his farm servant in Schedules A and B lands and said that he cannot say whether
Srinivas was farm servant in Schedules A and B lands prior to his purchase.
He denied the suggestion that Srinivas and the neighbouring land owners told him about the sale agreement, Ex.A1, and he knew about it.
12.53.Neither the said Srinivas nor the neighbouring land owners were examined to show that the 6th defendant purchased Schedules A and B lands having knowledge of the sale agreement, Ex.A1, and the supplementary agreement, Ex.B11.
12.54.The evidence on record shows that Schedules A and B lands were sold by the 3rd and the 5th defendants for Rs.30,000/- per acre to the 6th defendant and that the 6th defendant purchased Schedules A and B lands without having knowledge of the sale agreement, Ex.A1, and the supplementary agreement, Ex.B11.
12.55.Therefore, the issues have to be decided against the plaintiffs and in favour of the defendants and are accordingly decided.
13. In the result, the suit fails and is dismissed with costs to the
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defendants.
Prepared and pronounced by me in the open Court.
VIII ADDITIONAL DISTRICT JUDGE
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS:
PW1Sri Kandala Ram Reddy
PW2Sri Singireddy Purneshwar Reddy
FOR DEFENDANTS:
DW1Sri Enjamoori Linga Reddy DW2 Sri V.Jagannath Reddy DW3 Sri Veerapaneni Srikrishna Prasad
DOCUMENTS MARKED
FOR PLAINTIFFS:
Ex.A1Agreement of sale deed dated 31.08.2006
Ex.A2Receipt dated 13.11.2006
Ex.A3Receipt dated 29.11.2006
Ex.A4Office copy of legal notice dated 29.12.2009
Ex.A5Postal receipts dated 30.12.2009
Ex.A6Acknowledgement card of defendant No.2
Ex.A7Acknowledgement card of defendant No.5
Ex.A8Returned postal cover of defendant No.1
Ex.A9Returned postal cover of defendant No.3
Ex.A10Returned postal cover of defendant No.4
Ex.A11Reminder legal notice dated 22.01.2010
Ex.A12Postal receipts dated 23.1.2010
Ex.A13Acknowledgement card dated 28.1.2010
Ex.A14Reply notice dated 25.01.2010
CC of agreement of sale cum GPA vide document No.3383 of 2006 Ex.A15
dated 28.04.2006
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CC of agreement of sale cum GPA vide document No.3384 of 2006 Ex.A16
dated 28.04.2006
CC of registered sale deed bearing document No.7221 of 2009 Ex.A17
dated 29.10.2009
CC of registered sale deed bearing document No.7222 of 2009 Ex.A18
dated 29.10.2009
FOR DEFENDANTS:
Ex.B1Signature of PW1 on supplementary agreement in page No.1
Ex.B2Signature of PW1 on supplementary agreement in page No.2
Ex.B3Signature of PW1 on supplementary agreement in page No.3
Ex.B4Signature of PW1 on supplementary agreement in page No.4
Ex.B5Signature of PW1 on supplementary agreement in page No.5
Signature of Janga Reddy on supplementary agreement in page Ex.B6 No.1
Signature of Janga Reddy on supplementary agreement in page Ex.B7 No.2
Signature of Janga Reddy on supplementary agreement in page Ex.B8 No.3
Signature of Janga Reddy on supplementary agreement in page Ex.B9 No.4
Signature of Janga Reddy on supplementary agreement in page Ex.B10 No.5
Ex.B11Supplementary agreement dated 27.12.2006
Ex.B12Reply notice dated 24.01.2010
Notice issued by Sri R.Mahender Reddy, Advocate dated Ex.B13 10.02.2010
Endorsement made by Sri R.Mahender Reddy, Advocate on Ex.B14 Ex.B13
Ex.B15Title deed of Veerapaneni Srikrishna Prasad
Ex.B16Pattadar pass book of Veerapaneni Srikrishna Prasad
Registered sale deed document bearing No. 7222 of 2009 dated Ex.B17 29.10.2009
Registered sale deed document bearing No. 7221 of 2009 dated Ex.B18 29.10.2009
VIII ADDITIONAL DISTRICT JUDGE
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Schedule A
Sl. No.SurveyExtentNature Number Ac. Gts.
1)252/AA2.12Dry
2)266/EE0.07Dry
3)252/A3.33Dry
4)2535.25Dry
5)255/A0.03 1/2 Dry
6)2660.06Dry
7)2673.34Dry Total:18.12 1/2 Boundaries: North – land of Pendyala Lalithamma and Pendyala Jayaprada South – Hyderabad – Nagarjuna Sagar PWD road East – land of Pendyala Bikshpathi Rao West – land of Gunreddi Ramkoti Reddy Situated at Pothunuru village, Peddavura Mandal, Nalgonda District
Schedule B
Sl. No.SurveyExtentNature Number Ac. Gts.
1)2535.25Dry
2)255/60.03 1/2Dry Total:5.28 1/2 Boundaries: North – land of Pendyala Lalithamma and Pendyala Jayaprada South – Hyderabad – Nagarjuna Sagar PWD road East – land of Pendyala Bikshpathi Rao West – land of Gunreddi Ramkoti Reddy Situated at Pothunuru village, Peddavura Mandal, Nalgonda District
VIII ADDITIONAL DISTRICT JUDGE
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