O.S.No.2036 of 2005 Page No.1
IN THE COURT OF THE VI ADDL. SENIOR CIVIL JUDGE (FTC), AT
MEDCHAL, RANGA REDDY DISTRICT.
Present: Sri. B. Srinivas Rao, Secretary, DLSA, R.R. District, FAC. VI Addl. Senior Civil Judge (FTC), at Medchal, Ranga Reddy District.
Dated this the 25 th day of January, 2017
O.S.No.2036 of 2005
Between:
J. Venkata Ramana, S/o. Late. J. Krishnaiah, Age: 40 Years, R/o. D.No.402040, Flat No. A03, Sri Krishnaveni Apartments, Pragathi Nagar, Vijayawada10. …Plaintiff.
AND
P. Ananda Reddy, S/o. P. Rayapa Reddy, Age: 42 Years, Occ: Agriculture, R/o. Rampuram Village, Geejgunda Mandal, Warangal District. …Defendant.
This suit is coming up for final hearing before me in the presence of Sri. N. Kama Raju, Counsel for Plaintiff and Sri. N. Vinesh Raj, Counsel for the defendant and the matter having stood over for consideration till date, this Court made the following:
J U D G M E N T
1. The present suit has been filed by the plaintiff against the defendant herein seeking the relief of specific performance of agreement of sale seeking to direct the defendant to execute the sale deed in favour of plaintiff and if defendant fails then the court may directly execute the sale deed and deliver the possession of the suit property in respect of plot no. D.52 in Sy. No.309 to 316 and 318 measuring 200 Sqyards situated at Mahadevpuram residential project, Phase3, Gajularamaram village, Quthbullapur Mandal,
R.R.District.
2.The contents of the plaint are that the defendant is the owner of suit
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schedule property and defendant gave Xerox copy of his sale deed to the plaintiff. He stated that the plaintiff approached one Kondababu who is running real estate business along with M. Bhoopal Reddy and the defendant also approached the said Kondababu for selling his plot and served Xerox copy of his sale deed. Accordingly, the said Kondababu shown the plot i.e.
suit schedule property to the plaintiff who agreed to purchase the same along with plot of one M. Matyas Reddy. He stated that the sale consideration of suit schedule property was fixed as Rs.5,00,000/ and after deliberations with defendant and the said M. Matyas Reddy, above sale consideration was fixed and the said Kondababu requested the defendant and M. Matyas Reddy for coming to Hyderabad and to receive the sale amount on 02.11.2005 and they agreed to enter into sale agreement on the said date. But on 02.11.2005 only M. Matyas Reddy came to Hyderabad and when Kondababu contacted the defendant, he requested to pay sale advance to M. Matyas
Reddy for his plot also who is his relative and plaintiff paid Rs.20,000/ on 02.11.2005 for which M. Matyas Reddy executed a receipt he stated that he took bank D.D's in the name of defendant for Rs.2,53,000/ at the instance of defendant on 14.11.2005 and 15.11.2005 which was informed to the defendant and defendant agreed to receive the same and execute the sale deed after receiving the balance sale consideration on or before 20.11.2005.
Since 14.11.2005, the defendant is prolonging the issue and Kondababu informed that the defendant might be postponing to receive balance amount in view of increasing market value as such the plaintiff gave a paper publication in Eenadu, dt.15.12.2005 about the purchase of the said property. He stated that though the plaintiff is always ready to perform his part of contract without breach but defendant is not coming forward as such
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he filed this suit seeking the relief of specific performance and prayed that the suit may be decreed as prayed for.
3.The defendant has filed written statement by denying the entire allegations and stated that though he is owner of suit schedule property, but he is not aware as to who is the plaintiff and when he approached the said
Kondababu along with Bhoopal Reddy to arrange any vacant site or that when this defendant approached the said Kondababu gave any Xerox copy of sale deed. The defendant denied that the said Kondababu shown suit property along with property of M. Matyas Reddy and denied that sale consideration was fixed as Rs.5,00,000/ for suit property and denied that the said Kondababu requested the defendant and Matyas Reddy for coming to Hyderabad and received advanced sale consideration on 02.11.2005 and denied that they agreed to enter into any sale agreement on 02.11.2005. He further denied that on 02.11.2005 this defendant requested the said
Kondababu to pay sale advance to M. Matyas Reddy for his plot also or for
Rs.20,000/ was paid on the said date. He further denied that any demand drafts were obtained by the plaintiff in the name of defendant for
Rs.2,53,000/ on 14.11.2005 or 15.11.2005 and denied that the defendant agreed to receive the same and to execute sale deed after receiving the balance amount on or before 20.11.2005. He denied that the defendant was willfully prolonging the matter; as such the plaintiff issued any paper publication in Eenadu on 15.11.2005. The defendant stated that he never agreed to sell his property to the plaintiff for Rs.5,00,000/ and he do not know who is the plaintiff. The defendant submitted that he is the owner of the suit property and never intended to sell his property to the plaintiff who
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is a complete stranger and he never authorized the said M. Matyas Reddy to receive any amount on his behalf. He further stated that the market value of suit property was Rs.6,000/ per sq.yard in the year 2005 and the value of property was 12,00,000/ at that time as such the contention that it was agreed to sell the property for Rs.5,00,000/ is untenable. He stated that the suit is filed with the assistance of said Kondababu who was working under one G. Srinivas Rao who is a real estate dealer in that locality. He stated that he purchased the suit property from one G. Srinivas Rao who is a real estate dealer in the year 2004 after verifying the entire link documents and title deeds. He stated that one Kondababu was working under the said G.
Srinivas Rao who was in charge of showing sites and handing over the papers to purchasers and the said Kondababu stopped coming to office of the said G. Srinivas Rao due to some internal disputes from the year 2005 onwards. The defendant stated that the said Kondababu might have taken papers of suit property and handed over the same to the plaintiff, though there is no contract between plaintiff and defendant. The defendant further stated that to his knowledge the said Kondababu appears to have taken blank printed receipt and subsequently due to disputes with the said G.
Srinivas Rao might have committed theft from his office by misusing the blank printed signed receipt to M. Matyas Reddy and filled the names as per his wish and whim and in fact the plaintiff is a pawn in the hands of said
Kondababu. The defendant stated that no person would sell suit property for an amount of Rs.5,00,000/ when the market rate is Rs.6,000/ per sq.yard in the year 2005 and the said receipt is created receipt which is not admissible and plaintiff never issued any notice before filing the suit and filed a false suit by suppressing real facts. He stated that he came to know
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about said proceedings only in the month of April 2007 after receiving notice in the main suit and stated that he already sold away the suit schedule property under registered AGPA, dt.09.03.2007 in favour of one Smt. G.
Kashivisalakshi and he is no more concerned with the suit lands. The defendant further stated that he do not know who is the M. Matyas Reddy and how he became owner of suit schedule property and all the illegal documents are created with the aid of said Kondababu. The defendant stated that there is no privity of contract in between himself and defendant and the alleged receipt is not a proof of contract and he never received any money under that receipt and stated that the said Matyas Reddy is not the owner of suit schedule property. He stated that the said receipt is not admissible and defendant never received any amount and suit is got filed by the said Kondababu in collusion with the plaintiff and prayed to dismiss the suit with costs.
4. Basing on the above pleadings the following issues are been framed for trial:
Issue No.1: Whether the defendant entered in to agreement of sale with the plaintiff on 02.11.2005 in respect of suit schedule property?
Issue No.2: Whether the plaintiff has been always ready and willing to perform his part of contract?
Issue No.3: Whether the plaintiff is entitled for specific performance of contract as prayed for?
Issue No.4: To What relief?
5.Issue No.1:
It is the contention of the plaintiff that the defendant through one
Kondababu has agreed to sell the suit schedule property in favour of the plaintiff and accordingly received advanced amount on 02.11.2005 through
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said M. Matyas Reddy. He further stated that though sale consideration is fixed as Rs.5,00,000/ and though he obtained demand drafts in the name of plaintiff for Rs.2,53,000/on 14.11.2005 and 15.11.2005 but the defendant did not receive those demand drafts and did not come forward to receive the balance sale consideration and execute the sale deed as such he issued a paper publication to general public regarding agreement of sale of suit schedule property and then filed this suit. Whereas on the other hand, the defendant has denied the very privity of contract among himself and plaintiff and stated that the plaintiff is a stranger to him and he never entered into any agreement of sale with the plaintiff and further stated that in fact that he never approached Kondababu for selling the land nor handed over any papers and in fact the said Matyas Reddy is also a stranger who is not owner of suit schedule property and who cannot signed any receipt on behalf of defendant. The defendant also stated that the rate of suit land was
Rs.12,00,000/ in the year 2005, as such there cannot be any question of selling the suit schedule property for Rs.5,00,000/ during that period. He further stated that in fact the said Kondababu is the person behind of this mischief who created all fabricated documents and he stated that he already sold away the suit schedule property through registered AGPA in the year 2007 and stated that the suit is not maintainable and prayed to dismiss the suit with costs.
6.Now the preliminary burden of proof is upon the plaintiff to establish the contract of sale agreement with the defendant in respect of suit schedule property by adducing appropriate evidence.
7. It is seen that the plaintiff got examined himself as PW.1 and examined
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D. Kondababu as PW.2 and also examined one N.V. Bhoopal Reddy as PW.3.
It is seen that the plaintiff has filed examination in chief in the form of affidavit by repeating contents of plaint as PW.1 and marked Exs.A1 and A2.
In the course of cross examination, PW.1 stated that he is working as sales supervisor in a fertilizer company of Gujarat at Vijayawada and he knows
Bhoopal Reddy through whom he got acquaintance with Kondababu. He stated that he know Bhoopal Reddy and Kondababu w.e.f the year 2003 and 2004 and also know one G. Srinivas Rao since 2004 who is doing real estate business and stated that he do not have personal acquaintance with defendant at any point of time and again added that he know defendant only through Kondababu and admitted that he do not have personal acquaintance with defendant and Matyas Reddy and admitted that he approached only through one Kondababu and he do not know whether the said Kondababu worked at Srinivas Rao office and do not know whether there are transactions between both of them. He admitted that suit transaction was held through Kondababu and admitted that Ex.A1 is in printed proforma and admitted that under Ex.A1 there is no mention about the details of consideration of each plot and further stated that under Ex.A1 there is a signature of defendant and admitted that there are no details regarding the authorization given to Matyas Reddy by defendant for selling the plot and further stated that Kondababu handed over only Xerox copy pertaining to suit schedule property and did not see the link documents of his vendor. He further stated that as per documents he could see that his vendor purchased plots from Srinivas Rao and another and total consideration of two plots is Rs.9,00,000/ and cost of suit property is
Rs.4,00,000/. He admitted that except Ex.A1, there is no other proof of
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document or agreement with respect to transaction of suit plot. He stated that he do not know whether Kondababu is not working with the said
Srinivas Rao since 2005 and admitted that defendant and Matyas Reddy executed registered G.P.A in favour of Srinivas Rao in the year 2007 and witness again added that it is mentioned in W.S but he do not know whether the defendant and Matyas Reddy executed G.P.A in favour of Srinivas Rao for selling plots. He stated that he do not know whether defendant and Matyas
Reddy are residing in different villages and stated that he paid Rs.20,000/ to the defendant and issued receipt under Ex.A1. He further stated that he has not issued legal notice to the defendant or Matyas Reddy before filing this suit and stated that paper publication given at Warangal is not filed
before the court and admitted that he did not mention amount paid by him
in paper publication. He further stated that he did not file any document to show that the defendant entered into the contract and did not file any proof to show that he signed on any paper and again admitted that Ex.A2 does not bear the signature of defendant. He further stated that he did not send D.D to the defendant and there is no information sent in writing to obtain DD's.
He further stated that he made a paper publication under Ex.A1 in Warangal addition. He further stated that he do not know whether the said Srinivas
Rao and Kondababu have cordial relationship from 2005. He denied that neither defendant nor Matyas Reddy were never present at the time of said transaction and denied that the value of suit property is Rs.6,000/per sq.yard in the year 2005 and denied that the said Kondababu committed theft of blank signed receipts from the office of Srinivas Rao and created
Ex.A1 by fabrication and denied that the defendant never instructed
Kondababu for selling his property and denied that a false suit is filed in
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collusion with the said Kondababu for grabbing the suit property and denied that there is no transaction in between himself and defendant and that he is deposing falsely.
8.One D. Kondababu is examined as PW.2 who filed his examination in chief in the form of affidavit stating that he knows both the plaintiff and defendant. He has repeated other contents of plaint in the form of affidavit.
In the course of cross examination, the PW.2 stated that he know the defendant in this suit and also Matyas Reddy since three years as from the date of deposition and stated that he is doing real estate business from the year 2002 as commission agent himself and stated that he also know one G.
Srinivas Rao since 13 years who is also doing real estate business who got office at Padmavathi Plaza at KPHB colony road, Kukatpally and further stated that he was not present in the court hall when PW.1 was cross examined. He further stated that the said G. Srinivas Rao sold the suit property as a GPA holder to the defendant herein in the year 2004 and even the defendant in OS.NO.2035/2005 also purchased the suit property in the year 2004 but do not know from whom the defendant in OS.NO.2035/2005 purchased the said property. He stated that he came to know about the said transaction looking into the sale deeds. He admitted that he is the person who filled up the information in Ex.A1 in the suit and in Ex.A2 in
OS.NO.2035/2005 and stated that he purchased Ex.A1 and Ex.A2 in shop
and filled up the information. He admitted that Ex.A1 do not contain either the name of defendant in OS.NO.2036/2005 or his signature and he do not know that the defendant in this suit received Rs.20,000/ from G. Srinivas
Rao to sell the suit plot. He admitted that there is no mention in Ex.A1 of
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this suit about the price of each plot, the value of house plots per sq.yard in the year 2005 was Rs.2,500/ for East facing plot and Rs.2,000/ for South facing plot. He further stated that he knows second witness in Ex.A1 by name Bhoopal Reddy only at the time he signed in Ex.A1 and he was brought by plaintiff and he do not know if the said Bhoopal Reddy is also doing real estate business and residing at Kukatpally. He further stated that the defendant in this suit is resident of Ramachandrapuram of Warangal
District and defendant in OS.NO.2036/2005 is also resident of Warangal
District. He further admitted that Ex.A2 in this case does not contain information about the price of the plot and do not know that present suit plot was sold away to the wife of said G. Srinivas Rao in the year 2007 and he do not go through the W.S in both the suits. He admitted that they did not send the DD to the defendant in OS.NO.2036/2005 and stated that the reason that parties agreed to take it at the time of registration. He further stated that he do not know whether both the defendants received only suit summons and they did not receive notice in the application and do not know whether the plaintiffs were not given any legal notice before filing the suit and stated that the plaintiff got acquaintance with both the defendants only through him. He denied that he worked for G. Srinivas Rao and due to strained relationship with Srinivas Rao he has manipulated the documents such as blank signed receipts and fabricated to file this false suit. He denied that the defendant herein never offered to sell the plots to the plaintiff and denied that the market value of suit plot was Rs.6,000/ per sq.yard in the year 2005 and denied that both the defendants are no way related with each other and denied that they have purposefully issued DD's for Rs.2,50,000/ in the name of defendant in O.S.NO.2036/2005 and denied that there is no
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transaction among plaintiff and defendant at any point and denied that he is deposing falsely.
9.One N.V. Bhoopal Reddy is examined as PW.3 who filed his examination in chief in the form of affidavit stating that he is carrying real estate business and he knows both the plaintiff and defendant. He stated that plaintiff approached to him for purchase of plot as he purchased a plot earlier through him and both of them met D. Kondababu who is doing real estate business and his presence plaintiff requested Kondababu to arrange vacant site for purchase, upon which the said Kondababu shown Xerox copy of sale deed of defendant and Matyas Reddy. PW.3 has again repeated the contents earlier to the contents of chief affidavit of PW.2. In the course of cross examination, PW.3 stated that he saw the defendant only once at the time of showing suit plot and there is no document to show that he is doing real estate business. He admitted that there is no mention in his chief examination that the defendant has shown the suit plot and stated that suit plot number is D.52 and stated that a consolidated document was executed for Rs.9,00,000/ but no separate document was executed for Rs.5,00,000/ for suit plot and admitted that the defendant has not signed any document filed by the plaintiff and he did not see any authorization letter given by the defendant in favour of the said Matyas Reddy and stated that there is no communication with the defendant and there is no agreement of sale between the plaintiff and defendant in respect of suit property. He admitted that there is no whispering in Ex.A2 stating that the suit property belongs to defendant and admitted that the defendant has not signed in Ex.A2 and advance amount of Rs.20,000/ was not paid to defendant. He further
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stated that he came to court along with plaintiff for deposing. He denied that the defendant never gave Xerox copy of sale deed to Kondababu and denied that Kondababu never spoke with defendant on telephone or that the defendant and Matyas Reddy are not related. He denied that he has no acquaintance with the defendant and denied that all the documents are created by plaintiff with the help of PW's. 2 & 3 and denied that a false case is filed to grab the suit property by missusing the Xerox copy of sale deed and denied that he is deposing falsely.
10.The defendant got examined himself as DW.1 filing examination in chief in the form of affidavit repeating the contents of written statement in a nut shell. In the course of cross examination, DW.1 stated that he has never seen Matyas Reddy who is defendant in O.S.NO.2035/2005 on the file of this court and stated that suit property is Plot No.52D and its extent is 200 sq.yards. He further stated that he do not remember the entire survey numbers and stated that he purchased the suit property in the year 2001 or 2002 @ Rs.1500/ per sq.yard and he is in possession of that sale deed which is filed before the court. Though he denied that after filing the suit he sold away suit property, he again added that he sold away the suit property
before he filed the suit and he do not remember whether he sold the property
to Mrs. G. Kasi Visalakshi who is wife of said Srinivas
Rao and do not know whether Matyas Reddy also sold his property to
KasiVisalakshmi through registered document and stated that he did not file sale document before the court. He stated that he do not remember the document number through which he sold schedule property to
KasiVisalakshi. He further stated that he sold schedule property to
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KasiVisalakshi @ Rs.1500/ per sq.yard and after one month of sale, he received summons in the case and stated that he do not remember the counsel engaged by him at the first instance and stated that since he came to know that same counsel is defending the Matyas Reddy also as such he changed the counsel and though he identified his signature on written statement and due to time lapse and also do not remember the content of his chief affidavit. He stated that he do not know English language as such his counsel informed him the contents before signing and do not know if Matyas
Reddy also signed his written statement on 19.07.2007. He further stated that he do not know if S. Balawanth Reddy, Advocate only cross examined
PW's. 1 and 2 in this case and also OS.NO.2035/2005 and stated that he gave vakalath to S. Balwanth Reddy who was introduced through Srinivas
Rao. He further stated that he came to know after two months of giving vakalath to S. Balwanth Reddy is only the defendant counsel in
OS.NO.2035/2005, then he changed the defendant counsel and stated that
he do not know one Mr. C.R. Purushotham Sharma, Advocate and never gave vakalath to Purushotham Sharma on 08.07.2009 and he identified his signature on both vakalatnama's of C.R. Purushotham Sharma and S.
Balwanth Reddy. He stated that he do not know whether he gave vakalath to
Mr. C.R. Purushotham Sharma, Advocate and stated that Ex.X1 document is the vakalath of Purushotham Sharma. He further stated that two months after he gave vakalath to Mr. Vinesh Raj and T. Shivakumar, Advocate. He further admitted that he is resident of Ramachandrapuram village, Warangal
District, Geesukonda Mandal and do not know distance between
Ramachandrapuram village and Ramapuram village and stated that there is no bus service from Ramachandrapuram to their village. He stated that he
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do not know whether Matyas Reddy is resident of Ramachandrapuram village Geejukonda Mandal. He further stated that only through Srinivas
Reddy he engaged the counsel and filed written statement and admitted that he sold suit property to the wife of said Srinivas under Ex.A3 dt.09.03.2007.
He denied that prior to 2005 Matyas Reddy met PW's. 1 to 3 for negotiations of schedule property and also property in OS.NO.2035/2005 and they agreed to meet on 02.11.2005 to receive advance sale consideration and denied that since he failed to attend on 02.11.2005 as such PW.2 talk to him on phone and as per his direction PW.1 paid advance sale consideration of Rs.20,000/ to Mr. Matyas Reddy towards advance sale consideration to both. He denied that they agreed to registered sale deed on 20.11.2005 and denied that as per his directions PW.1 obtained 7 pay orders for Rs.2,53,000/ drawn on
State Bank of India and Andhra Bank. He denied that he sold away suit property after coming to know about filing the suit and denied that contents of his chief affidavit are not connected to contents of written statement and denied that he is deposing falsely to help Srinivas Rao. He further stated that he do not know about Ex.A2.
11.From the above discussed evidence, it is seen that the plaintiff has filed this suit seeking the relief of specific performance of sale. It is the contention of the plaintiff that the defendant is the owner of suit property and defendant gave Xerox copy of the sale deed to the plaintiff and plaintiff approached the defendant through one Kondababu who are commonly approached for purchase and sale of suit property. It is the contention of the plaintiff that the suit plot itself is shown by the said Kondababu along with the plot of one
Matyas Reddy also and consideration of suit plot was fixed for Rs.5,00,000/.
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He stated that both the defendant and Matyas Reddy agreed for coming to
Hyderabad on 02.11.2005 and enter into an agreement. But, still Matyas
Reddy alone came on 02.11.2005 and when Kondababu contacted the defendant, he requested to pay advance consideration to said Matyas Reddy itself, accordingly the plaintiff has paid Rs.20,000/ on 02.11.2005 to Matyas
Reddy who executed a receipt. He stated that it was agreed that sale deed shall be executed on or before 20.11.2005 after receiving balance sale consideration and plaintiff took Demand Drafts in the name of defendant for
Rs.2,53,000/ on 14.011.2005 and 15.11.2005. It is the contention of the plaintiff that since the defendant is prolonging the execution of sale deed by receiving the balance sale consideration on one or other pretext, as such he issued a general public notice in newspaper and thereafter filed this present suit.
12.From the above discussed contentions of the plaintiff, it is seen that the entire case has been built up by the plaintiff basing on the version that it is one Matyas Reddy who has received advanced sale consideration even on the behalf of defendant and it is seen that it has been reflecting clearly from the contents of plaint that the plaintiff or defendant never approached each other directly and plaintiff is claiming nexus with the defendant only through one
Kondababu. Now as already discussed, the burden is upon the plaintiff is to establish not only the negotiations or privity of the contract with the defendant for purchasing suit schedule property, but also to establish that he got any nexus with the defendant, since the defendant has not only denied the alleged agreement with the plaintiff but he has denied the very acquaintance with the plaintiff in his written statement. It is seen that the
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defendant in his written statement has completely denied the suit transaction and he stated that he never approached Kondababu or he never handed over his sale deed copy to the said Kondababu nor the said
Kondababu shown the suit property to the defendant. It is also seen that the defendant even denied his acquaintance or any relationship with the said
Matyas Reddy also and the defendant contended that the said Matyas Reddy is completely stranger to him. It is the contention of the defendant that he purchased the suit property from one G. Srinivas Rao who was real estate dealer and the said Kondababu was working under the said Srinivas Rao and he learnt that due to some differences with Srinivas Rao, the said
Kondababu stopped going to his office and he further stated that it appears that the Kondababu stolen some blank printed receipts of Matyas Reddy from the office of Srinivas Rao and filled the names as per his choice by installing the plaintiff into the picture and stated that the market value of the suit was Rs.6,000/per sq.yard in the year 2005. He further stated that
before receiving the summons in this suit itself, he has sold away the suit
property to one G. KasiVisalakshi through AGPA dt.09.03.2007 and he is no more concerned with the suit property.
13.Admittedly, it is seen that the plaintiff has filed Exs.A1 to A3 in the present suit and Ex.A1 is the public notice dt.15.12.2005 in Eenadu paper,
Ex A2 is the C.C of the receipt Dt. 2/11/2005 and Ex.A3 is the certified copy of registered AGPA dt.09.03.2007 executed by defendant in favour of said
KasiVisalakshi who is said to be none other than the wife of original vendor of the plaintiff. It is seen that the present suit has been filed only basing upon Ex.A2 which is said to be the receipt alleged to have executed by the
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said Matyas Reddy and signed by him on his behalf and also on behalf of defendant herein. It is further important to see that there has been no agreement of sale executed in the present case in favour of the plaintiff either by defendant or the said Matyas Reddy and it is further important to note that though there is reference of suit plot under Ex.A2, and though the defendant is admitted to be owner of said property, but still the name of defendant is not mentioned in Ex.A2 and Ex.A2 is not supported with the signature of defendant. Be that as it may be, it is the contention of the plaintiff that the said Kondababu when telephoned to the defendant on 02.11.2005, then he is said to have instructed him to lend the defendant amount also to the said Matyas Reddy itself. Though it is contended that the defendant on telephonic talk intimated to said Kondababu to lend his advance sale consideration also to said Matyas Reddy, the plaintiff has not placed any evidence in that regard and the plaintiff is silent as to what was the mode of contact of said Kondababu to the defendant, and if it is either through land phone or cell phone, and if it is through cell phone or even through land phone, they did not mention either in the plaint or chief affidavit of both plaintiff as well as said Kondababu regarding the phone numbers through which they contacted each other and they did not even filed any list of caller I.D's obtained from their net work center to show that there was a telephonic talk among defendant or the said Kondababu.
14. Therefore, it is clear that except the self serving statement in the plaint that the defendant instructed the said Kondababu to pay his sale consideration also to Matyas Reddy, they could not place any evidence either to show that there were any instructions from defendant to Matyas Reddy or
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Kondababu and admittedly they even failed to establish that there are any negotiations in between defendant or said Matyas Reddy. Be that as it may be, on perusal of Ex.A2, it is further seen that though there is a mere reference of suit plot number, but it is not supported by any description of the property with the specific boundaries. Even otherwise, as already discussed, there is no agreement of sale in between plaintiff and defendant in writing agreeing to sell the suit schedule property on any particular terms and conditions. Now it would be relevant to discuss the provisions of Sec.54 of the Transfer of Property Act which states that: “Sale is transfer of
ownership in exchange for a price paid promised or part paid promised.
Sale from made such transfer in the case of tangible immovable
property of the value of one hundred rupees and upwards or in the case
of reversion or other intangible thing. Can be made only by a registered
in the case of tangible immovable property of a value less than one
hundred rupees to such transfer may be made either by the registered
instrument or by delivery of the property. Delivery of tangible
immovable property takes place when the seller places the buyer or
such persons the directs, in possession of the property. Contract for
sale: A contract for the sale of immovable property is a contract that a
sale of such property shall take place on terms settled between parties
does not of itself create any interest in or change on such property”.
15.From the above discussed contents of sec.54 of TP Act, it is very clear that in case of a tangible immovable property there must be a contract for sale of such property basing upon settled terms in between the parties.
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Herein the present case, as already discussed above, there is neither a written agreement of sale nor there has been any direct privity of contract appears to have taken place in between the plaintiff and defendant as it is implicit from the contents of plaint that the plaintiff is taking shelter of only the alleged Kondababu at every juncture regarding the said talks of sale of suit property. It is seen that in the present case the plaintiff even cannot take shelter of the provisions of sec.53 A of Transfer of Property Act too which speaks about doctrine of part performance. Under Sec.53 of Transfer of property Act, for any person who ever invokes Sec.53 of T.P. Act, shall mandatorily possess a written contract signed by him or on his behalf and for invoking the shelter sec.53 of T.P. Act it is also necessary that the alleged purchaser in lieu of part performance of contract is already been put in possession. Herein the present case, neither there is any written contract in favour of plaintiff executed by defendant nor he is been put in possession of suit property at any time. It is Further important to note that when the plaintiff alleges that the defendant instructed the Kondababu to handed over sale consideration to Matyas Reddy itself, in such a case since the amount is said to have paid to Matyas Reddy, then the plaintiff ought to have made the said Matyas Reddy also as a party in this suit. But interestingly, though
Matyas Reddy is alleged to have received part consideration pertaining to suit property on behalf of defendant, but still the said Matyas Reddy not made as a party in this suit.
16.Now, it has to be seen as to how far the plaintiff has established the suit transaction or his acquaintance with the defendant or the alleged relationship in between the defendant and Matyas Reddy through oral
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evidence. Now it would be important to discuss certain contents of cross of
PW.1 at this juncture. In the cross examination, PW.1 stated that he know
Kondababu only through one Bhoopal Reddy and he also know one Srinivas
Rao dealing with real estate since 2004. It is seen that the said Bhoopal
Reddy is none other than the witness no.2 under Ex.A2 who is also examined as PW.3. It is important to note that PW.1 admitted in his cross that he has no personal acquaintance with the defendant at any point of time and admitted that he has no acquaintance with the defendant and Matyas
Reddy personally. Though he added again he got acquaintance through
Kondababu and again admitted that he has no personal acquaintance with the defendant or Matyas Reddy. He admitted that he approached only through Kondababu and stated that he do not know about transactions between Kondababu and Srinivas Rao. It is important to see that he made certain admissions with regard to Ex.A1. It is seen that Ex.A1 is issued on 15.12.2005 in Eenadu addition of Hyderabad calling upon general public regarding any objections or claims with regard to suit property. It is seen that the public notice under Ex.A1 is issued through one V.S. Reddy,
Advocate for the suit schedule property and also for another properties i.e.
one plot No.E90.
17. It is important to see that though the suit is filed against the defendant stating that he is the owner of suit property, but interestingly under Ex.A1, there is no reference of name of defendant in that public notice and the said notice is issued stating that the said Matyas Reddy has made agreement of sale in respect of suit property and also another property which is very astonishing. It is not understood as to when the defendant is said to be the
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real owner of the suit property, in such case how the said Matyas Reddy can enter into any such sale agreement with the plaintiff and if the said Matyas
Reddy has really got any authorization from the defendant for making such agreement with the plaintiff, then why the said Matyas Reddy is also not made as a party in this suit. Be that as it may be, the alleged public notice under Ex.A1 is also silent with regard to consideration of the suit property and also silent with regard to any advanced sale consideration that has been paid which is even admitted by the PW1 in his cross. It is also interesting to note that though the said public notice has been issued on 15.12.2005 stating that interested people having any claim or interest over said property shall furnish their particulars within seven days of the notice as if sale deed has been going to get executed shortly, but surprisingly on perusal of records, it is seen that the suit is filed on 21.12.2015 within the seven days of issuing publication under Ex.A1.
18.It is further seen that in any suit for specific performance, it will be usual practice on the part of any plaintiff to issue a legal notice to the defendant, before filing the suit, calling upon him expressing his readiness and willingness for performing his part of contract by paying the balance sale consideration and calling upon the defendant to perform his part of contract to receive balance sale consideration and execute a registered sale deed. But, herein present case there has been no such issuance of any legal notice on the part of plaintiff before filing the suit. Now, it is for the plaintiff to establish as to what has made him to file the suit so hurry and bury within seven days of issuing public notice under Ex.A1 calling upon general public to furnish their claim or interest if any pertaining to suit property. Further,
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it is important to see that on perusal of contents of plaint, it is mentioned as if it is the said Kondababu informed the plaintiff that defendant might be postponing to receive balance amount and execute sale deed seeing to increase the value of property as such paper publication in Eenadu was issued about the purchase of schedule property through Matyas Reddy. Even assuming that notice was issued under Ex.A1 to general public to avoid any multiplicity of litigation or to prevent the defendant from making any further agreement to any third party, in such case the same contents must be reflected under Ex.A1. But under Ex.A1, it is mentioned as if calling upon general public whoever are interested over the suit property to furnish their claim within seven days but under the said notice the general public are not cautioned not to enter into any future agreements with the defendant in regarding the suit property.
19.Further, it is important to see at this juncture that the defendant in his written statement clearly contended that it is the said Kondababu who is behind the screen and who want to grab the suit property and he clearly contended that the plaintiff is the puppet of said Kondababu. It is further seen that even in the cross of PW.1 the plaintiff clearly admitted that he know the defendant only through Kondababu and again admitted that he has no personal acquaintance either with the defendant or Matyas Reddy and again admitted that the suit transaction is held only through
Kondababu. Even in the plaint also he contended that only on the advice of said Kondababu he issued public notice under Ex.A1. The above referred admission of PW.1 in his cross and also his mechanical contentions in the plaint regarding involvement of said Kondababu at every juncture in the
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plaint is causing a presumption in the mind of the court to draw an inference that it might be said Kondababu only who might have been really interested in the suit schedule property and the person behind the curtain in getting filing this suit. It is important to see that even PW.1 in his cross admitted that the Ex.A1 do not mention about the details of consideration of each plot and stated that Ex.A1 contains only the signature of defendant though it is never signed by the defendant and clearly admitted that there are no details about authorization given to Matyas Reddy by defendant to sell the plot. He further stated that he has not seen the link documents of his vendor which is also highly surprising because any person who ever would be entering into any agreement for purchasing any immovable property, would not finalize such contract either without verifying the original link document details or without seeking any advice from legal expert.
20.He even admitted that except Ex.A1, there is no other proof of documents or agreement in respect of suit transaction; he even admitted that he never issued any legal notice to defendant or Matyas Reddy before filing the suit. He even admitted that Ex.A2 do not bear the signature of defendant and admitted that there is no document to show that the defendant has signed any document and there is no proof of signing of any document by defendant. Though he stated that he has obtained demand drafts in the name of defendant no.1 in the cross, he admitted that he neither sent those demand drafts to the defendant nor sent any information in writing to the defendant for obtaining the demand drafts. Now it might pertinent to discuss the contents of cross of PW.2 at certain junctures. In the cross, PW.2 stated that he know one Srinivas Rao since 13 years who is also doing real
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estate business before he commenced his business and he admitted that the said Srinivas Rao sold the suit property to this defendant in the year 2004 as a G.P.A holder. He further stated that the office of said Srinivas Rao is situated in Padmavathi Plaza, KPHB colony, Main Road. He admitted that he is the person who filled up information in the receipts and stated that he purchased Ex.A1 and A2 in Xerox shop and filled up information.
21.Even PW.2 also, admitted in the cross that Ex.A1 does not either contains the name of defendant in OS.2036/2005 or his signature and admitted that there is no mention of price of each plot either in Ex.A1 of this suit or Ex.A2 in OS.NO.2036/2005. He admitted that Bhoopal Reddy is second witness, who was brought by the plaintiff and he do not know the said Bhoopal Reddy. He also admitted that they did not send demand drafts to this defendant and witness stated that those demand drafts are not sent since the defendant agreed to take the same at the time of registration and then so the plaintiff ought to have preserved those demand drafts. But interestingly, on perusal of the documents marked under X1 to X7 series which are summoned from Andhra Bank, Labbipet Branch, Vijayawada, it is seen that the demand drafts dt.14.11.2005 & 15.11.2005 were voluntarily canceled by the plaintiff on 19.01.2006 and no satisfactory reasons are been assigned either by the plaintiff or by PW.2 as to what circumstances have compelled them for canceling those documents. It is seen that PW.2 stated that he do not know whether defendants were not given any notice before filing the suit and though PW.1 in his cross clearly stated that he do not know defendant herein or Matyas Reddy and contrarily PW.2 in the cross stated that the plaintiff knows the defendant through him. He further stated
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that he did not go through the written statement of defendant and do not know if the suit plot is sold away by defendant to the wife of Srinivas Rao in the year 2007. 22. Now it would be important to see that the evidence affidavit of PW.3 i.e. Bhoopal Reddy, it is seen that the said Bhoopal Reddy appears to have been examined immediately within a week of cross of PW.2 and on perusal of chief affidavit of PW.3, it appears as if it has been made up covering the latches that were been committed by PW.2 in his cross examination. Though PW.2 in the cross stated that he has no acquaintance with PW.3 and though he stated that he do not know PW.3 who is resident of
Kukatpally and who is also doing business but contrarily, PW.3 in his chief affidavit stated that he and plaintiff met Kondababu and plaintiff in his presence requested Kondababu to arrange for vacant plot either upon which the said Kondababu said to have shown Xerox copy of sale deeds of defendant and Matyas Reddy and he was present at the time of deliberations with defendant and Matyas Reddy. It is seen that above referred contentions of PW.3 in his chief are completely contrary to the contentions of PW's. 1 and 2 in their cross. In the cross examination, PW3 admitted that he never contended in the chief examination about showing of suit plot by
Kondababu. He admitted that there is no separate document in respect of suit plot for Rs.5,00,000/. He also admitted that the defendant did not sign any document filled by plaintiff and he also admitted that he has no communication with defendant and he did not see the authorization letter given by the defendant in favour of the said Matyas Reddy and he admitted that there is no agreement of sale in between the plaintiff and defendant in respect of suit property. He also admitted that the defendant is not a signatory to Ex.A2 and admitted that advance amount of Rs.20,000/was not
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paid to the defendant and admitted that under Ex.A2, there is no whisper that suit property belongs to defendant.
22.All the above discussed contents of cross of PW.3 has completely diluted the entire material contents of his chief examination and the plaintiff either through his evidence in oral or documentary or through mode of evidence of PW.2 or PW.3 could not in any way either established his privity of contrary or his acquaintance with the defendant or any sale negotiations for agreement regarding suit property nor could establish any nexusbetween the said Matyas Reddy or could prove alleged authorization said to have given by the defendant to the said Matyas Reddy. Though the defendant did not examine any other witnesses and though there are certain contradictions in the cross of DW1, but it is important to note here that since it is the plaintiff who has approached the court, the preliminary burden is upon him to establish his case through independent source of evidence but merely because the defendant has not discharged his burden, on that ground alone the case of plaintiff cannot be presumed to have established. In other words, the plaintiff in every case is required to establish his case by adducing appropriate evidence, and the plaintiff in any case cannot seek to win over his case over the weakness of the defendant. In view of above discussion, it is clear that the plaintiff has failed to establish any subsisting agreement of sale with regarding to suit property with the defendant nor could establish any privity of contract of sale in between himself or the defendant as required by the law of specific relief act as such there is no hesitation to hold that the plaintiff has utterly failed to establish that the defendant has entered into an agreement of sale with the plaintiff either on 02.11.2005 or any other date in
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respect of suit property. Since the plaintiff has failed to establish any valid contract or existence of any valid agreement of sale in between himself and defendant in respect of suit schedule property at any point of time as such it cannot be held that the plaintiff has established any contract of agreement of sale with the defendant in respect of suit property on 02.11.2005 and this issue is accordingly decided against the plaintiff. Issue no.1 is decided accordingly.
23.Issue No.2: Admittedly, when it is the plaintiff who approached the court seeking the relief of specific performance, he is not only required to establish that there is a valid contract of sale subsisting in between himself and defendant, but also required to establish that he was always ready and willing to perform his part of contract. As already discussed above, while deciding the issue no.1, it is already found by the court that the plaintiff has failed to establish that there is any agreement of sale contract in between himself and defendant in respect of the suit property. Be that as it may be, when it is contended by plaintiff that the sale consideration was fixed as
Rs.5,00,000/ then he has to show that he is capable for paying the balance sale consideration and possessing sufficient amount to honor the balance sale consideration and other stamp duty and registration charges. The plaintiff did not file any extract of his bank account statement during that relevant period to show that he is possessing sufficient amount in his account to honor balance sale consideration or other miscellaneous expenditure for registration. Further, it is important to see that Ex.A2 is the certified copy of alleged receipt under which the said Matyas Reddy has been said to have being paid Rs.20,000/ as advance sale consideration for suit
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property as well as other property alleged to have being owned by said
Matyas Reddy. If the amount of Rs.20,000/ was termed to be advanced sale consideration for two immovable properties, and even if it is assumed that the advanced sale consideration paid under Ex.A2 was equally divisible for both properties, then it could be interpreted that an amount of Rs.10,000/ only was considered as advanced sale consideration towards suit property.
24.If really market value of suit property is Rs.5,00,000/ as in the year 2005, there is such case, a meager amount of Rs.10,000/ as advanced sale consideration towards the suit property would not form even 1/10th part of the total consideration and no ordinary prudent person can agree such a meager amount as an advanced sale consideration towards immovable property whose market value is prevailing in lakhs as on the said date.
Though the plaintiff alleged that subsequently on 14.11.2005 and 15.11.2005 he has drawn demand drafts in the name of defendant for
Rs.2,53,000/, but as already discussed while deciding issue no.1, those demand drafts were said to be canceled by the plaintiff subsequently within no time in the month of January 2006 which are summoned before the court from the said Bank i.e., Andhra Bank, Vijayawada, Labbipet branch and marked under Exs.X1 to X7. It is further important to see that from the cross of PW.1 it is crystal clear that though the plaintiff has drawn the said demand drafts in the name of defendant but the defendant was not aware of drawing of said demand drafts by the plaintiff and PW.1 in his cross clearly admitted that neither he had sent those demand drafts to the defendant nor he sent information in writing to the defendant for obtaining the demand drafts. Hence, the presumption can be drawn from the attitude of plaintiff in
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taking the demand drafts in the name of defendant without his knowledge and again subsequently canceling the said demand drafts without notice to defendant has been made only just to project before the court as if to establish that he was ready to perform his part of contract without sending those demand drafts to the defendant or without intimating even to the defendant regarding drawing of said demand drafts in his name.
25.As already discussed while deciding issue no.1, it is important to see that the plaintiff even did not issue any legal notice to the defendant before filing the suit expressing his readiness or willingness to perform his part of contract by paying balance sale consideration or calling upon the defendant to perform his part of contract and to register the sale deed for the suit property by receiving the balance sale consideration. Be that as it may be, as already discussed, when it is the contention of the defendant that he has no acquaintance with the plaintiff or that he never entered into any sale agreement with the plaintiff, the plaintiff did not rebut the said contention of defendant by adducing any appropriate evidence. More so ever, from the cross of PW.1 at certain junctures, it is established that the plaintiff has no personal acquaintance at all with the defendant and had at every juncture of his pleading as well as cross, the PW.1 is projecting his case only upon the shoulders of said Kondababu showing the involvement of said Kondababu at every juncture and the plaintiff could not establish his direct nexus or personal acquaintance or any privity of contract with the defendant. Be that as it may be, the defendant in his written statement has clearly stated that
before one month of receiving the summons in the suit, he has sold away the
suit property to one Smt. G. Kashivisalakshi through a registered AGPA
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dt.09.03.2007 and he is no way concerned with the suit plot anymore. It is seen that the written statement of the defendant was filed on 20.07.2007 in which he has clearly stated about alienating away the suit property after serving a notice of written statement to the plaintiff counsel on the same date. Though the fact of alienation of suit property by the defendant in
March 2007 through registered document was reflected in the written statement in July 2007 itself and though the plaintiff got knowledge of the said alienation of suit property by the defendant in the year 2007 itself, but still the plaintiff is all these years did not take any steps for impleading the said third party purchaser i.e. Kashivisalakshi as a party to the suit as such this suit is hit by the provisions of Order 1 Rule 9 CPC for nonjoinder of proper and necessary parties also which is also a fatal to the case of the plaintiff. For all the above discussed reasons, it is held that the plaintiff is failed to establish that he always ready and willing to perform his part of contract. Issue no.2 is decided accordingly against the plaintiff.
26. Issue No.3:
As already discussed while deciding issue nos.1 & 2, it is clearly held that the plaintiff has failed either to establish agreement of sale with the defendant in respect of suit property and also failed to establish that he was always been ready and willing to perform his part of contract. When the plaintiff failed to establish any nexus with the defendant or any existence of lawful agreement of sale with the defendant and also when failed to establish his readiness and willingness for performing his part of contract, in such case, is it cannot be held that he is entitled for any relief of specific performance of contract as such it is held that the plaintiff is not entitled for
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any relief of specific performance of contract. Issue no.3 is decided accordingly against the plaintiff.
27.Issue No.4:
In view of the discussions held while deciding issue nos.1 to 3, it is held that the present suit of the plaintiff is liable to be dismissed with costs.
Issue no.4 is decided accordingly.
In the result, the present suit of the plaintiff be, and the same do be hereby dismissed with costs.
(Typed to my dictation by stenographer, and pronounced by me in the open court on this the 25 th day of January, 2017).
FAC. VI Addl. Senior Civil Judge (FTC), Medchal, Ranga Reddy District.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff: For Defendant: PW1: J. Venkata RamanaDW1: P. Anand Reddy
PW2: D. Konda Babu
PW3: N.V. Bhoopal Reddy
EXHIBITS MARKED
For Plaintiff:
Ex.A1: is the Public Notice issued in Eenadu paper, dt.15122005.
Ex.A2: is the Certified Copy of Receipt, dt. 02112005.
Ex.A3: is the Certified Copy of AGPA No.4936 of 2007, dt. 09032007.
EXHIBITS MARKED
For Defendant through Bank Manager:
Ex.X1: is the Demand Draft No.0413750, dt.14112005 of Rs.49,000/.
Ex.X2: is the Demand Draft No.0413752, dt.14112005 of Rs.46,000/.
Ex.X3: is the Demand Draft No.0413839, dt.15112005 of Rs.20,000/.
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Ex.X4: is the Demand Draft No.0413840, dt.15112005 of Rs.38,000/
Ex.X5: is the Demand Draft No.0324322, dt.14112005 of Rs.40,000/.
Ex.X6: is the Demand Draft No.0324323, dt.14112005 of Rs.30,000/.
Ex.X7: is the Demand Draft No.0324324, dt.14112005 of Rs.30,000/.
For Defendant:
Nil
FAC. VI Addl. Senior Civil Judge (FTC), Medchal, Ranga Reddy District.
FAC. VI Addl. Senior Civil Judge(FTC)