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IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE AT
NIZAMABAD
Present:- Sri B. Srinivas Rao,
I Additional District Judge, Nizamabad.
Wednesday, the 12th day of April, 2023
OS No.44 of 2015
Between:
1Barad Mahender, S/o Vittal, Age 46 years, Occ: Business, C/o Jagath Priya Auto Agency, C.S.I. Complex, Near Kanteshwar Temple, Nizamabad. 2Kartan Srinivas, S/o Ramkishan, Age 46 years, Occ: Business, R/o Ramnagar, Armoor, Dist. Nizamabad.
.. Plaintiff.
AND
1Kottala Ravinder Reddy, S/o Kottala Rajanna, Age 37 years, Occ: Agriculture, 2Kottala Rajender Reddy, S/o Kottala Rajanna, Age: 39 years, Occ: Private Service, 3Kottala Rajeshwar Reddy, S/o Kottala Rajanna, Age: 35 years, Occ: Private service, All are R/o Gupanpally village, Near Ambedkar Statue, Mandal and Dist. Nizamabad.
.. Defendants.
This suit is coming on 15.02.2023 before me for final hearing and disposal in the presence of Sri. J. Venkateshwar, Advocate for Plaintiffs and Sri M. Raja Reddy, Advocate for Defendant No.1, Sri Sher Subhash, Advocate for Defendants No.2 and 3 and the matter having stood over for consideration till this day, the Court delivered the following:
JUDGMENT
1.The plaintiffs No.1 and 2 filed this suit against the
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defendant No.1 to 3 seeking the relief of decree of specific performance of agreement of sale dated 3.12.2010 in favour of the plaintiff directing Defendant No.1 to 3 to receive balance sale consideration of Rs.11,65,000/- and execute
Registered Sale Deed in favour of plaintiffs by permitting the plaintiff to deposit balance consideration before the Court and requested the Court to execute sale deed and in case if decree of specific performance is not granted, prayed to direct Defendant No.1 to 3 to refund sale consideration of
Rs.11,00,000/- with interest of 24% per annum from the date of agreement till date of realisation. It is seen that plaintiffs have subsequently amended the plaint by amending the total sale consideration from Rs.33,75,000/- to Rs.37,75,000/-.
2.The contents of the the plaint are that Defendant No.1 to 3 are brothers and they inherited land in Sy.No.433 measuring Ac.0-26 guntas on Gupanpally village and
Mandal and D2 is the eldest member in their family and
Tahsildar issued patta passbook and title deed in his name which is nominal transfer into the name of D2. The
Defendant No.1 is only looking after family welfare as such
Defendant No.1 approached on behalf of all defendants in
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December, 2010 and offered to sell Ac.0-24 guntas out of
Ac.0-26 guntas to plaintiffs and he approached on 3.12.2010 for a consideration of Rs.37,75,000/-. The plaintiffs agreed to purchase the same and paid advance amount of Rs.1,50,000/- to the Defendant No.1 and the
Defendant No.1 received the same on behalf of all defendants and executed agreement of sale in favour of plaintiff No.1 on 3.12.2010 and as per agreement, Rs.4,50,000/- shall be paid on 11.12.2010 which is paid and the amount of
Rs.2,50,000/- in cash and Rs.2,00,000/- through cheque to
Defendant No.1. Thereafter Defendant No.1 approached plaintiff No.1 and returned the cheque of Rs.2,00,000/- on 16.12.2010 and received Rs.2,00,000/- cash and executed receipt. On 15.2.2011, the Defendant No.1 approached plaintiff No.2 and requested to pay Rs.5,00,000/- towards installment and plaintiff No.2 paid Rs.5,00,000/- to
Defendant No.1 and issued a receipt. They stated that total consideration was Rs.22,65,000/- for Ac.0-24 guntas and plaintiffs paid Rs.11,00,000/- to Defendant No.1 and as per agreement of sale, entire consideration should be paid on or
before 3.4.2011 and plaintiffs are always ready and as per
agreement, property has to be measured, boundaries to be
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fixed on the spot and amount payable as per measurements.
Both the plaintiffs several times requested the Defendant
No.1 but Defendant No.1 avoided always saying that
Surveyor is busy and plaintiffs were ready to pay balance consideration and get Registered Sale Deed but Defendant
No.1 avoided though plaintiffs several times approached
Defendant No.1 with the mediators namely Prabhakar and
Naragoud. They stated that value of property increased as such Defendant No.1 changed his attitude with malafide intention and not executing the sale deed as such plaintiffs got issued legal notice on 10.9.2015 which is received by defendants who gave false reply through their Advocates denying the entire transaction and defendants denied transaction on 19.9.2015. Therefore, the plaintiffs filed this suit seeking relief of specific performance of sale and prayed to decree the suit as prayed for.
3.The Defendant No.1 filed written statement admitting the relationship with D2 and D3 and inheriting Ac.0-26 guntas in Sy.No.433/AA at Gupanpally village and denied all other allegations. He denied that Tahsildar issued passbook and title deed in his name nominally and denied that he is looking after entire family affairs and denied that he
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approached plaintiffs during December, 2010 on behalf of D2 and D3 in December, 2010 and offered to sell Ac.0-24 guntas stating that he is authorised on behalf of his brothers. He stated that he and D2 and D3 inherited agricultural land from their father Rajanna and Defendant No.1 never acted on behalf of his brothers. He denied that plaintiff paid an amount of Rs.1,50,000/- to Defendant No.1 and denied that he executed agreement of sale on behalf of his brothers. He denied that Rs.4,50,000/- was payable on 11.12.2010 and denied that plaintiffs paid Rs.2,50,000/- in cash and issued cheque of Rs.2,00,000/- and denied that Defendant No.1 returned the cheque on 16.12.2010 and received cash and executed the receipt and further denied approaching plaintiff
NO.2 on 15.2.2011 for amount of Rs.5,00,000/- towards installment and denied that plaintiff No.2 paid any amount of
Rs.5,00,000/-. He denied that total sale consideration for for
Ac.0-22 guntas for Rs.22,65,000/- and denied that plaintiff paid Rs.11,00,000/- to Defendant No.1. The Defendant No.1 stated that there is no attempt to pay second installment to be paid on Rs.9,00,000/- on 3.2.2011 which shows that there was no transaction between plaintiffs or Defendant No.1 and stated that plaintiff No.2 is mis-joinder of party. He also
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denied that the plaintiffs were always ready to obtain sale deed on or before 03.04.2011 and denied that property was to be measured and boundaries to be fixed on the spot and amount payable as per measurement and denied that plaintiff several times requested Defendant No.1 but the D1 avoided to measure the property stating that Surveyor is busy. He stated that he never executed any agreement of sale at any time and stated that legal notice issued after long lapse of stipulated time on 10.09.2015 which is not valid and it is issued only to create a false cause of action. He stated that Article 54 of
Limitation Act comes into play when the date is fixed for performance of contract and the period of limitation to be computed from the date fixed for performing contract and 3 years period to be calculated from the date fixed for performance of contract and the time from 03.04.2011. He denied that plaintiffs approached Defendant No.1 with mediators namely Prabhakar and Naragoud before 03.04.2011 and denied that plaintiffs were ready to execute the sale deed.
He stated that plaintiffs never approached him or requested for sale deed and demanded only through legal notice dated 10.09.2015 for the first time. He stated that there was no cause of action arose on the date alleged by plaintiffs. He
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stated that he never executed agreement of sale as such no question of executing any Registered Sale Deed and stated that this suit is barred by limitation. He stated that infact defendants’ father died 10 years back and after that
Defendants No.1 to 3 inherited and partitioned properties and got share in Sy.No.433/AA to an extent of Ac.0-08 ¾ by D2 and Ac.0-08 ½ by D3 and Ac.0-08 ¾ by Defendant No.1 in suit Survey number and all of them got individual patta passbook and title deed in 2009. The Defendant No.1 stated that he is no way concerned with the land of D2 and D3 and they are living separately and doing business and there is no question of execution of agreement of sale by Defendant No.1 on behalf of D2 and D3 and prayed to dismiss the suit with costs.
4.Defendants No.2 and 3 filed written statement admitting the relationship with Defendant No.1 and inheriting properties in suit survey number at Gupanpally. They denied that Tahsildar issued passbook and title deed in D1’s name nominally and denied that D1 is looking after entire family affairs and denied that D1 approached plaintiffs during
December, 2010 on behalf of D2 and D3 in December, 2010 and offered to sell Ac.0-24 guntas stating that D1 is
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authorised on behalf of these D2 and D3. They stated that defendants 1 to 3 inherited agricultural land from their father
Rajanna and D1 never acted on behalf of D2 and D3. They denied that plaintiff paid an amount of Rs.1,50,000/- to
Defendant No.1 and denied that D1 executed agreement of sale on behalf of D2 and D3. They He denied that
Rs.4,50,000/- was payable on 11.12.2010 and denied that plaintiffs paid Rs.2,50,000/- in cash and issued cheque of
Rs.2,00,000/- and denied that D1 returned the cheque on 16.12.2010 and received cash and executed the receipt and further denied approaching plaintiff No.2 on 15.2.2011 for amount of Rs.5,00,000/- towards installment and denied that plaintiff No.2 paid any amount of Rs.5,00,000/-. They denied that total sale consideration for for Ac.0-22 guntas for
Rs.22,65,000/- and denied that plaintiff paid Rs.11,00,000/- to D1. They stated that there is no attempt to pay second installment to be paid on Rs.9,00,000/- on 3.2.2011 which shows that there was no transaction between plaintiffs or D1 and stated that plaintiff No.2 is mis-joinder of party. He also denied that the plaintiffs were always ready to obtain sale deed on or before 03.04.2011 and denied that property was to be measured and boundaries to be fixed on the spot and
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amount payable as per measurement and denied that plaintiff several times requested D1 but the D1 avoided to measure the property stating that Surveyor is busy. They stated that D1 never executed any agreement of sale at any time and stated that legal notice issued after long lapse of stipulated time on 10.09.2015 which is not valid and it is issued only to create a false cause of action. He stated that Article 54 of Limitation
Act comes into play when the date is fixed for performance of contract and the period of limitation to be computed from the date fixed for performing contract and 3 years period to be calculated from the date fixed for performance of contract and the time from 03.04.2011. They denied that plaintiffs approached D1 with mediators namely Prabhakar and
Naragoud before 03.04.2011 and denied that plaintiffs were ready to execute the sale deed. They stated that plaintiffs never approached or requested for sale deed and demanded only through legal notice dated 10.09.2015 for the first time.
He stated that there was no cause of action arose on the date alleged by plaintiffs. They stated that D1 never executed agreement of sale as such no question of executing any
Registered Sale Deed and stated that this suit is barred by limitation and that infact defendants’ father died 10 years
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back and after that Defendants No.1 to 3 inherited and partitioned properties and got share in Sy.No.433/AA to an extent of Ac.0-08 ¾ by D2 and Ac.0-08 ½ by D3 and Ac.0-08 ¾ by D1 in suit Survey number and all of them got individual patta passbook and title deed in 2009. They stated that D1 is no way concerned with the land of D2 and D3 and they are living separately and doing business and there is no question of execution of agreement of sale by Defendant No.1 on behalf of D2 and D3 and prayed to dismiss the suit with costs.
5.Basing on the above pleadings, the following issues are framed for trial:
1. Whether the plaintiff is ready and willing to perform his part of the contract?
2. Whether the plaintiff is entitled for relief of specific performance of contract?
3. Whether the plaintiff is entitled to alternative relief of refund of earnest amount of Rs.11,00,000/-?
4. To what relief?
6. On behalf of plaintiffs, plaintiff No.1 is examined as Pw.1 and also examined Pws.2 to 4 and marked Ex.A1 to Ex.A9.
Whereas, on behalf of defendants, defendant No.1 examined himself as Dw.1 and also examined Dws.2 to 4 and marked
Ex.B1 to Ex.B3.
7. Heard both sides and perused the record.
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ISSUE NO.1:-
8. The plaintiff No.1 is examined as Pw.1, who filed his examination in chief and further examination in chief in the form of affidavit and initially marked Exs.A1 to A8 and subsequently Ex.A9 which are as follows:
9. Ex.A1 is the Agreement of sale executed by D1 on behalf of
D2 and D3 in favour of plaintiffs, dated : 03.12.2010, Ex.A2 is the Receipt executed by D1 in favour of plaintiffs,
dated :11.2.2010, Ex.A3 is the Receipt executed by D1 in
favour of plaintiffs, dated :16.2.2010, Ex.A4 is the Receipt executed by D1 in favour of plaintiffs, dated :15.2.2011,
Ex.A5 is the Pattadar passbook issued in favour of D2,
Ex.A6 is the Office copy of legal notice issued to defendants,
dated :10.9.2015, Ex.A7 is the Acknowledgment Car of D1 to
D3, Ex.A8 are the Reply notice of the defendant No.1,
dated :19.9.2015 and Reply notice of Defendants No.2 and 3,
dt.19.9.2015 and Ex.A9 is the Debit voucher, dated :
16.12.2010.
10.During the cross, Pw.1 stated that he did not pay any amount as balance sale consideration after 3.4.2011 and he added that defendants did not come forward and stated that
Defendants No.2 and 3 are not parties to Ex.A1 and Ex.A1
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does not show the name of 2nd plaintiff and he added that his name is appearing in Ex.A4. He admitted that Ex.A1 is for Ac.0-24 guntas only and stated that Defendant No.1 agreed to sell Ac.0-24 guntas in his favour and gave Xerox copy of pattadar passbook at the time of negotiations and stated that D2 and D3 did not give any authorisation to
Defendant No.1 for selling their properties and stated that
Ex.A1 was executed at his Jagath Priya Auto Agency
Showroom at Nizamabad and witness No.1 is Chinna Reddy and witness NO.2 is Chinthala Prabhakar and the rate was fixed @ Rs.37,75,000/- per acre as per Ex.A1 and consideration to be paid was Rs.22,65,000/-. He stated that total, he paid Rs.11,00,000/- and on the date of Ex.A1, he paid Rs.1,50,000/- and on 11.12.2010 he paid
Rs.2,50,000/- and on 16.12.2010 he paid Rs.2,00,000/- and on 11.02.2011 he paid Rs.5,00,000/- cash and he added that plaintiff No.2 made last payment to Defendant
No.1 as they both jointly agreed to purchase. He stated that they agreed to complete contract under Ex.A1 by 03.04.2011 and did not give any notice before Ex.A6 notice and suit is filed on 18.12.2015. He stated that he is a businessman and he take receipt with revenue stamp in case of payment
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more than Rs.50,000/- or vice-versa and admitted that
Ex.A2 and Ex.A3 do not bear any revenue stamps and admitted that Ex.A4 does not show extent and survey numbers of schedule property and admitted that names of the mediators are not disclosed in Ex.A6.
11.During cross by D2 and D3, Pw.1 stated that D2 and
D3 never agreed to sell any property to him and did not verify any document except Ex.A5 which is pertaining to
Defendant No.2 and admitted that in Ex.A5 extent of D2 is shown as Ac.0-08 ½ guntas. During further cross, Pw.1 stated that he was present at the time of passing Ex.A9 which does not bear his signature and Mr. Prabhakar, who is the Manager is broker for both of them who signed on
Ex.A9. He further admitted that Ex.A9 does not show that alleged payment of Rs.2,00,000/- was towards part payment of transaction under Ex.A1 and it does not bear his name or signature and particulars of property. He also admitted that
Ex.A9 does not bear signatures of D2 and D3. He denied all other suggestions given to him during the cross.
12.The plaintiff No.2 is examined as Pw.2, who filed his examination in chief stating that Defendant No.1 approached him in December, 2010 for selling suit property stating that
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he got authorisation from D2 and D3 and repeated the other contents of plaint in the chief in a nutshell. During the cross, he stated that Ex.A1 does not show his name as a proposed purchaser and also does not show that he is one of the partners and admitted that Exs.A4 and A9 do not bear his signatures. He admitted that he do not know the contents of legal notice as plaintiff No.1 looked after it.
During the cross by Defendants No.2 and 3, he stated that
D2 and D3 did not approach him and he did not verify pattadar passbook and title deed of schedule property. He denied all other suggestions given during the cross.
13.One Chintala Prabhakar is examined as Pw.3, who filed his examination in chief in the form of affidavit, who has repeated the contents of plaint in a nutshell. He stated that he is a witness to Agreement of sale Ex.A1 and
Defendant No.1 had passed receipts in favour of plaintiffs and as per Agreement of sale, Defendant No.1 approached the plaintiff No.2 and requested him to pay an amount of
Rs.5,00,000/- towards instalment amount which is paid to
Defendant No.1 through receipt under Ex.A4. It is seen that
Pw.3 was examined in cross through Advocate
Commissioner in which he deposed that the agreement was
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made in between Pw.1 and Defendant No.1 on 03.02.2010 and Pw.1, Pw.2, Defendant No.1 and one Chinna Reddy and himself were present at that time and sale consideration amount was Rs.37,75,000/- per acre. He stated that
Defendants No.1 to 3 belong to his village and known to him since childhood. He further stated that Pw.1 called him to
Auto Agency Showroom to execute agreement of sale and he went as commission agent for that agreement and met Pw.1 on the same day and made agreement of sale at that time which was reduced into writing. He stated that he was also present when Rs.2,00,000/- part payment of sale consideration was given by Pw.1 and he was present at about only 2 transactions and stated that he cannot read and write but he can sign and he can identify his signature on Ex.A9 which contains signature of himself and Defendant
No.1 and he do not know the 3rd signature on the said
Ex.A9. He stated that he was not present when Ex.A4 was executed. He further admitted that the photo in Ex.A5 belong to D2 and Ac.0-26 guntas is not mentioned in Ex.A5 and he do not know when defendants got partitioned their property before 2008 and do not know the extent of share received by each defendants. He denied all other
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suggestions given to him during the cross.
14.One Bandari Rajender is examined as Pw.4, who filed examination in chief in the form of affidavit stating that he worked as Accountant in the firm of plaintiff No.1 from 2009 to 2011 and he came to know that plaintiff entered an agreement of sale in respect of suit property with one K.
Ravinder Reddy and as per agreement of sale, Defendant
No.1 approached plaintiff No.2 on 16.12.2010 and requested him to pay Rs.2,00,000/- towards instalment and plaintiff
No.2 paid Rs.2,00,000/- to Defendant No.1 and obtained receipt under Ex.A9.
15.During the cross, Pw.4 stated that he is working in
Sun Seeds and he worked with the firm of Pw.1 during relevant period of this case and the said firm deals with
Piagio Autos and there is no document to show that he worked with that agency during relevant period. He stated that plaintiff No.1 is his classmate and plaintiff No.2 belongs to his village and both plaintiffs and Defendant No.1 were present and witness added that a person by name
Prabhakar was also available there and the said Prabhakar was not the Manager.
16.The Defendant No.1 got examined himself as Dw.1,
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who filed his examination in chief in the form of affidavit by repeating the contents of written statement in a nutshell. It is seen that Dw.1 was examined through Advocate
Commission. It is seen that Dw.1 during the cross stated that he is an agriculturist by profession and Sy.No.433/AA is Ac.0-36 guntas in which Ac.0-10 guntas is Abadi and they inherited Ac.0-26 guntas in Sy.No.433/AA and D2 is residing at Hyderabad since last 20 years and D3 is residing at Nizamabad and got married with the woman of
Nizamabad. He stated that he was looking after their agricultural lands on behalf of defendants and cultivated only 4 to 5 years and do not remember from which year to which year he cultivated and he added that he cultivated the prior to death of his father. He stated that there is no registered partition deed in between himself and D2 and D3, but they mutated joint family properties through ROR Act and his mother is active in dealing sales with 3rd parties and his mother got Ac.2-00 at Manikbandar village and his father got two wives and step mother name is Rukmavva.
17.He stated that to his knowledge, no person in their village by name Rajanna acting as mediator and he know
Pw.3 in their village is acting as mediator between vendor
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and purchaser and stated that he know plaintiff No.1 who got Auto Showroom at Kanteshwar and there are no enemical terms between himself and plaintiff No.1. He admitted that himself and Pw.3 approached plaintiff No.1 for sale of suit property and agreement of sale dated 3.12.2010 executed between himself and plaintiff No.1 and admitted his signature on Ex.A1 and received Rs.1,50,000/- towards advance consideration. He again added that he did not observe extent of land in Sy.No.433/AA on the date of execution and his intention was for selling only Ac.0-08 ¾ guntas. He admitted that as per Ex.A1, Rs.4,50,000/- is payable on 10.12.2010 towards part consideration and admitted that on 11.12.2010 he received Rs.2,50,000/- and
Rs.2,00,000/- through servant of plaintiffs and did not execute any receipt to that effect and he do not know plaintiff No.2 and Ex.A4 does not bear his signature.
18.He stated that as per Ex.A1, land in Sy.No.433/AA to be measured for fixing boundaries to an extent of Ac.0-24 guntas with the help of Surveyor and he added that he along with one Sudershan Reddy approached the plaintiffs several times to pay balance consideration and measured the land and plaintiff stated that land value is decreased and not
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ready to purchase and he stated that he did not refer name of Sudershan Reddy in the written statement or reply notice.
He stated that he did not issue any legal notice for cancellation of sale agreement and added that he orally requested the plaintiff to purchase the same and stated that he got no objection for sending Ex.A4 to Expert opinion and stated that present market value of suit property is more than Rs.1,00,00,000/-. He further stated that he studied up to Intermediate and he know reading and writing Telugu and he do not know financial capacity of the plaintiff and admitted that plaintiff got issued legal notice through
Advocate received by him and admitted that he got issued reply notice under Ex.A8 through his counsel and for the first time he denied agreement of sale on 19.9.2015 under
Ex.A8.
19.During the cross by D2 and D3, Dw.1 stated that he executed Ex.A1 without consent of D2 and D3 and as on date of agreement of sale, himself and his brothers got patta passbooks and title deeds in their names and admitted that his brothers D2 and D3 authorised him to execute agreement of sale and admitted agreement of sale and admitted that he did not receive part sale consideration on
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behalf of D2 and D3 and stated that D2 and D3 are no way concerned with Ex.A1 to Ex.A4. He denied all other suggestions given during the cross.
20.One J. Sudarshan Reddy is examined as Dw.2, who filed his examination in chief in the form of affidavit stating that this suit is filed for specific performance and came to know through Defendant No.1 that he sold his land extent of
Ac.0-08 ¾ guntas of Gupanpally village and plaintiff No.1 paid Rs.1,50,000/- as token advance and remaining
Rs.4,50,000/- agreed to pay on 10.12.2010 and agreed to pay on 03.02.2011 which is paid and subsequently
Rs.4,50,000/- paid, total Rs.6,00,000/- and remaining balance of Rs.2,25,781/- has to be paid on or before 03.02.2011. The plaintiff No.1 did not pay balance amount within agreed time despite of several requests stating that market value is decreased and he went to house of plaintiff
No.1 with Defendant No.1 when Defendant No.1 requested to pay balance sale consideration before 03.04.2011.
21.The Dw.2 was cross examined through Advocate
Commission in which he stated that Dw.1 is not related to him that he belongs to same caste and admitted that he can read and write Telugu and Ex.A1 is referred in his chief and
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cannot say if Defendant No.1 sold Ac.0-24 guntas out of
Ac.0-26 guntas and he also know D2 and D3 who are brother of Defendant No.1. He stated that in the year 2015,
Defendant No.1 was residing at Hyderabad and do not know his occupation and D3 is not residing at Gupanpally in 2010 and Defendant No.1 to 3 got agricultural land at Gupanpally in 2010 and do not know if Defendant No.1 was cultivating land on behalf of all. He stated that Defendant No.1 was elected as Director of Co-operative Society (PACS) Nizamabad and do not know the name of mother of Defendant No.1 to 3 and do not know whether she is capable of purchasing and selling the properties and do not know whether Defendant
No.1 is active in sale and purchases of the properties on behalf of other defendants and do not know if the name of father of Defendant No.1 is Kottala Rajanna or Rajaiah.
22.He stated that he do not remember when Defendant
No.1 met him and after how many days they went to place of plaintiff No.1 and cannot say exact date when the Defendant
No.1 met him regarding agreement of sale and he did not ask about execution of agreement of sale between the parties and he did not see any document at any time and stated that as per his knowledge, plaintiff No.1 is businessman and
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he can identify plaintiff No.1. He stated that he do not know if plaintiff No.1 is running Auto Show Room at Kanteshwar and do not know if he is doing real estate business and if he is having Tanishq gold show room in Nizamabad. he admitted that they did not mention in the chief affidavit when they met plaintiff No.1 as to date and time and do not know extent of land owned by Defendant No.1 to 3 and survey number at Gupanpally. He stated that he do not know whether Defendant No.1 executed agreement of sale in favour of plaintiff No.1 to extent of Ac.0-24 guntas out of
Ac.0-26 guntas and do not know if due to non-conducting of survey, delay occurred though survey was to be conducted in Ac.0-24 guntas to separate it from Ac.0-26 guntas. He denied all other suggestions given during the cross.
23.The Defendant No.3 is examined as Dw.3, who filed his examination in chief in the form of affidavit by repeating the contents of written statement in a nutshell and marked patta passbook of Defendant No.3 as Ex.B1 and Certified copy of Pahani for the year 2016 dated 02.03.2016 as Ex.B2.
During the cross, he stated that Gupanpally village merged into Nizamabad town 4 to 5 years back and previously it was
Rural Mandal and still he is residing at Gupanpally and he
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succeeded Sy.No.433/A in the partition and he do not know which survey number Defendant No.1 and 2 got in partition and admitted that there is written partition among them and the extent of land succeeded by them in Sy.No.433/A is
Ac.0-26 guntas and do not know if Ac.0-10 guntas land already converted into residential out of Ac.0-26 guntas. He stated that he cannot tell boundaries of Defendant No.1 and 2 and admitted that he got love marriage and he do not know if market value of suit property was Rs.35,00,000/- per acre in 2010 and admitted that Gupanpally is at a distance of 2 km from Kanteshwar. He stated that he do not know who is the plaintiff and do not know if plaintiff got
Auto Show Room at Kanteshwar, Nizamabad and stated that present market value of suit property may be more than
Rs.1,00,00,000/- per acre. He denied all other suggsetions during the cross.
24.The D2 is examined as Dw.4, who filed his examination in chief in the form of affidavit repeating the contents of written statement in a nutshell. It is seen that
Dw.3 marked Certified copy of Pahani dated 02.03.2016 of
Sy.No.433/AA under Ex.B3. During the cross, he stated that he was shifted to Hyderabad from Gupanpally in
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December, 2006 and admitted that Dw.3 performed love marriage in 2010 and since then there is a communication gap among them and admitted that there is no document to show that partition was effected among himself and other defendants and there is no document to show that boundaries for the land of Sy.No.433/AA at Gupanpally village. He stated that he was not residing at Gupanpally village as such not aware about the price of land per acre and do not know whether Dw.1 entered into agreement of sale with the plaintiff in respect of suit land and admitted that he do not have patta passbook of suit property and his patta passbook (old) was in the custody of his mother and he did not enquire with his mother and do not know if
Defendant No.1 handed over patta passbook to the plaintiffs.
He stated that his relationship with Defendant No.1 are cordial and in the year 2006, there were no plots in the suit and it is fallow since 25 years as there is no borewell and stated that he is no way concerned with the part of sale consideration received by Dw.1. He denied all other suggestions given during the cross.
25.The Assistant Director, FSL, who gave opinion in respect of the signatures over agreement of sale and receipt,
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is examined as Cw.1. He deposed that their office received one Registered cover from the Court containing forwarding letter and a receipt containing the questioned signatures marked as ‘Q1’ and ‘Q2’ and one agreement of sale containing standard signatures under ‘S1’ and ‘S2’ and one receipt with standard signature marked as ‘S3’. He stated that he carefully and thoroughly examined the questioned signatures with the standard signatures by using magnifier, sterio microscope and video spectral comparator, basing on which he gave opinion that person who wrote signatures under S1 to S3, wrote signatures under Q1 and A2 and the opinion was approved and forwarded by Additional Director of FSL and he marked the report under Ex.X1. During the cross by Defendant No.1 counsel, Cw.1 stated that he followed comprehensive comparative method for assessing the signatures and used magnifier. He stated that ball pens are used in both Q1 and Q2, S1 and S2 and if there is some wetness on stamp because of adhesive gum, in such circumstances, signature will become blur. He denied all other suggestions given during cross by Defendant No.1 counsel and also by counsel for D2 and D3.
26.It is seen that the plaintiffs counsel has filed written
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arguments stating that plaintiffs are partners and they jointly agreed to purchase land in Sy.No.433/AA measuring
Ac.0-24 guntas at Gupanpally village and Defendant No.1 is managing properties of all defendants and he repeated the contents of plaint in the written arguments in a nutshell. He also stated that on 15.2.2011, Defendant No.1 received sum of Rs.5,00,000/- from plaintiff No.2 and issued receipt in favour of plaintiff No.2 and the sale deed had to be executed on or before 03.04.2011. He stated that he examined Pws.1 to 4 and Expert as Cw.1 and marked Exs.A1 to A9 and
Defendant No.1 examined Dws.1 to 4 and repeated the contents of cross of Dw.1 in the written arguments. He stated that D2 admitted that he is looking after his family agricultural lands on behalf of D2 and D3 and stated that he proved that agreement of sale was executed on behalf of all defendants. He further stated that in the cross of Dw.1, he admitted that there is no registered partition deed between themselves and stated that he got good terms with Pw.3 who is working as mediator in between them.
27.He also contended that Dw.1 admitted that he along with Pw.3 approached plaintiff No.1 for sale of suit property and admitted his signature on Ex.A1 and admitted about
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receiving Rs.4,50,000/- from plaintiffs and denied Ex.A4 receipt. He contended that Dw.1 also admitted that as per
Ex.A1, land to be measured and fixed boundaries to an extent of Ac.0-24 guntas with the help of surveyor and Dw.1 for the first time referred name of one Sudershan Reddy in the cross stated that he along with said Sudarshan Reddy approached the plaintiffs for payment of balance sale consideration and plaintiff proved that Defendant No.1 did not cooperate for fixing the boundaries and he also admitted that there is no name of Sudarshan Reddy in the reply in
Ex.A8. He contended that Dw.1 admitted in the cross that for the first time, he denied agreement of sale on 19.9.2015 under Ex.A8, as such limitation starts from date of denial and contended that suit is within the period of limitation.
28.He stated that Dw.1 admitted in the cross execution of
Ex.A1 and receipt and stated that in Ex.A4, Defendant No.1 got mentioned that he received Rs.5,00,000/- from the plaintiff and referred the contents of Section 97 of Evidence
Act in the written arguments and contended that plaintiff
No.2 is necessary party to the suit. He stated that as per expert opinion, signature on Ex.A4 belongs to Dw.1 and stated that the contention of Dw.1 that his intention is that
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he sold an extent of 8 ¾ guntas to the plaintiff is not correct and if i.e. the fact, the Defendant No.1 will be entitled for only Rs.7,75,000/-, but he also received Rs.11,00,000/- and prayed if the Court comes to conclusion that D2 and D3 are not parties to Ex.A1, then Decree may be passed to the extent of 8 ¾ guntas of Defendant No.1 who admitted execution of agreement of sale.
29.The Defendant No.1 also filed written arguments stating that Pw.1 agreed to purchase agricultural land from
Dw.1 to an extent of Ac.0-26 guntas and Ex.A1 executed on 03.12.2010 among the plaintiff No.1 and Defendant No.1 and as per agreement of sale, Pw.1 paid Rs.2,50,000/- under Ex.A2 and gave cheque of Rs.2,00,000/- and thereafter he returned the cheque and paid Rs.2,00,000/- on 16.12.2010 under Ex.A3 and he acknowledged the receipt of Rs.5,00,000/- in total. He stated that he never received Rs.5,00,000/- from plaintiff No.2 on 15.2.2011 and plaintiff No.1 is only party to agreement of sale and Pw.2 is no way concerned with the agreement of sale and D2 and
D3 are not parties to Ex.A1. He stated that plaintiff No.2 is mis-joinder of the parties to the suit. He contended that as per agreement of sale/Ex.A1, time is essence of the contract
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and the suit property was not int eh name of Defendant No.1 and Defendant No.1 to 3 partitioned after death of their father and got passbooks as such Defendant No.1 cannot sell suit property. He stated that there is no averments of ‘readiness and willingness’ in the present suit and plaintiff never came forward to pay remaining amount and plaintiff
No.1 never made efforts to show his readiness and willingness and did not file any document to show that he is possess amount to pay the sale consideration.
30.He stated that plaintiff No.1 did not show any willingness and did not make any attempt to issue legal notice to purchase the suit land. He stated that Defendant
No.1 in his cross and Dw.1 in the evidence, stated that they several times approached plaintiff to pay balance sale consideration and measured the land and Pw.1 stated that market value of the property is decreased and he is not ready for purchase. He stated that as per Ex.A1, last payment of sale should be made on or before 3.4.2011 and the limitation period starts from the date of agreement of sale and stated that suit is barred by limitation. He stated that there is specific date mentioned in Ex.A1 i.e.
03.04.2011 and as per agreement of sale deed should be
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obtained on or before 2011 and plaintiff No.1 approached the defendants nor issued legal notice within 3 years from the said date. He stated that plaintiff No.1 and 2 gave notice under Ex.A6 on 10.9.2015 which is not valid and it is issued only to create cause of action and the Article 54 of the
Limitation Act clause (1) comes into play when date is fixed for purpose of contract and the period of 3 years starts from 3.4.2011.
31.He stated that the suit is barred by limitation and stated that Ex.A4 is noway concerned with the suit and there is no suit survey number or boundaries in Ex.A4 and stated that since Defendant No.1 is having another land that might be pertaining to other lands and not this transactions and stated that plaintiff No.2 is mis-joinder in this suit. He stated that as per Section 20 of Specific Relief Act, it is procedural law and Section Section 20 of Specific Relief Act is amended on 08.08.2018 and with effect from 10.10.2018 suit is filed prior to the amendment. He stated that according to Section Section 20 of Specific Relief Act (old), it is the word “may” was there and Section 20 of Specific
Relief Act says it must contain “shall”. He stated that specific performance relief is made not to enforce specific
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performance of agreement and Dw.1 also submitted certain rulings before the Court and prayed that suit may be dismissed.
32.It is seen that plaint is filed by both plaintiffs No.1 and 2 and it is alleged that plaintiff No.2 is the partner of plaintiff No.1 in the business. In the plaint also it is mentioned that Defendant No.1 approached the plaintiffs on behalf of D2 and D3 during December, 2010. It is seen that
Ex.A1 is the agreement of sale and on perusal of Ex.A1, it is seen that plaintiff No.2 is not at all a party to Ex.A1. It is seen that simply because plaintiff No.2 is alleged to have paid amount to Defendant No.1 under Ex.A4, as such he is also said to have made as a party. On perusal of Ex.A1 admittedly, the last instalment has to be paid on 03.04.2011 and admittedly as per the plaint contents, the last instalment was alleged to have paid on 15.02.2011. It is seen that as per contents of plaint, the sale price for Ac.0-24 guntas is Rs.22,65,000/- and they have alleged to have paid
Rs.11,00,000/-.
33.Be that as it may be, it is alleged that Defendant No.1 on behalf of D2 and D3 was said to have approached the plaintiffs stating that he is authorised to sell the property on
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behalf of all the defendants and it is alleged in the plaint that Defendant No.1 is only looking after the affairs of suit property on behalf of all the defendants. It is seen that D2 and D3 in their written statement, specifically denied the said allegation and stated that after death of their father, all
Defendant No.1 to 3 equally succeeded land in
Sy.No.433/AA of Gupanpally village and all of them succeeded land of Ac.0-08 guntas and odd and all have got separate passbooks. It is seen that in the pahanies filed by defendants under Exs.B2 and B3, it is seen all Defendant
No.1 to 3 names are recorded as pattadars and possessors of land in Sy.No.433/AA to an extent of Ac.0-08 ¾ guntas and
Ac.0-08 ½ guntas and land is not registered in the name of
Defendant No.1 alone. It is important to see that though there is no partition in writing among the defendants, but the very recording of names of Defendant No.1 to 3 in the revenue records as pattadars and possessors individually in respect of suit survey number implies that all Defendant
No.1 to 3 have mutated their names in the revenue records individually by sharing the properties.
34.It is important to see that even Pw.1 in the cross, admitted that D2 and D3 are not parties to Ex.A1 and D2
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and D3 did not give any authorisation to D1 to sell their properties and he also admitted that name of plaintiff No.2 not mentioned in Ex.A1. He further admitted that D2 and
D3 never agreed to sell any property in his favour and admitted that Ex.A5 pertains to D2 and he is pattadar of
Ac.0-08 ½ guntas in Sy.No.32 in the suit survey number. It is the contention of the defendants that the entire sale consideration has to be paid on or before 03.04.2011 and the plaintiffs did not pay the entire consideration by 03.04.2011 and admittedly last instalment was said to have paid on 15.02.2011. It is the contention of defendants that the plaintiff did not even chose to issue any legal notice within the stipulated time from the date fixed for the last instalment i.e. 03.04.2011 and stated that legal notice under
Ex.A6 itself is issued on 10.9.2015 after lapse of 4 years from 03.04.2011 and contended that the suit is barred by limitation.
35.On the other hand, plaintiff contended that the suit is filed within 3 years from the date of denial of the contract and stated that the defendants have first time denied the agreement of sale on 19.9.2015 in their reply and contended that suit is filed within limitation. It is important to see that
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though Defendant No.1 took plea in the written statement that suit is barred by limitation, but it appears no issue has been framed with regard to question of limitation. Since the question of mutation is a mixed question of fact and law and issue can be framed in a civil suit at any stage, even at the stage of passing Judgment also, as such the question of limitation can be framed at this juncture also with regard to limitation, as such the question is now framed as to “Whether suit is barred by limitation?” since evidence is already adduced int his regard by the parties.
36.It is seen that Pw.1 in his cross, admitted that he did not pay any amount towards sale consideration after 03.04.2011. He also admitted that Ex.A9 debit voucher which is dated 16.12.2010 does not bear his signature or name and the particulars of property covered under Ex.A1 and admitted that that also does not bear signatures of D2 and D3. He stated that Ex.A9 does not show that alleged payment of Rs.2,00,000/- was made towards part payment of transaction under Ex.A1. It is seen that one Chintala
Prabhakar who is Pw.3, stated in his cross that he was present only at the time of agreement of sale and when amount of Rs.2,00,000/- was paid as part sale
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consideration and do not remember the date. It is seen that plaintiff counsel argued that Defendant No.1 in his cross stated that he did not issue any legal notice for cancellation of sale agreement.
37.It is important to see that the plaintiffs did not initiate any movement till the year 2015 and they issued legal notice under Ex.A6 after lapse of 4 years from the last date of payment fixed under Ex.A1. If the plaintiffs were really interested in getting the sale deed executed by performing their part of contract why they have not get the sale deed executed and what circumstance for taking timely steps for initiating action against the defendants and why they waited up to 2015 has not been properly explained. The plaintiffs could not through any manner establish that they were always ready and willing to perform their part of contract and to pay the balance sale consideration within stipulated time and get the register sale deed. It is seen that the defendants counsel has relied on a ruling laid down in “Saradamani Kandappan and others Vs. S. Rajalaksmi and others” reported in 2011 AIR (SC) 3234 by the Hon’ble
Supreme Court downloaded from LawSuit, wherein it was held that in a contract of immovable property where time is
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specified for payment of sale price but not regarding execution of sale deed, time will become essence in respect of payment of sale price but not for execution of sale deed.
38.He also relied on another ruling laid down in “Chand
Rani Vs. Kamal Rani” reported in 1992 LawSuit(SC) 857 by the Hon’ble Supreme Court downloaded from LawSuit, wherein it was held that when the time is stipulated for payment of balance sale consideration and when the purchaser was not ready to pay the amount as agreed before delivery of possession, it would be contrary to the terms of agreement and purchaser was not entitled for specific performance of contract.
39.Admittedly, no steps are initiated by the plaintiffs within reasonable time from the last day of payment fixed in
Ex.A1 and pleadings never reflected that the plaintiffs are ready and willing to perform their part of contract.
Admittedly, the legal notice was issued after 4 years from the date of last payment fixed in agreement and the plaintiff never disclosed as to what are the steps he took for getting the registered sale deed till 2015 and how many times, he approached defendants expressing his willingness to pay the balance sale consideration and what compelling steps he
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took for calling the defendants to execute Registered sale deed to receive the balance sale consideration. Therefore, in these circumstances, it is highly doubtful as to whether the suit is within the period of limitation and it is establishing that this suit is also barred by limitation.
40.Be that as it may be, the plaintiff No.1 also did not give any satisfactory explanation as to how he is justified in making plaintiff No.2 as a party to the suit when plaintiff
No.2 is not a party under Ex.A1. Further admittedly, D2 and D3 in their written statement, specifically stated that
Defendant No.1 is not authorised to make any agreement of sale on their behalf as the properties are already separated in the names of individuals and admittedly D2 and D3 are not parties to the Ex.A1. It is seen that the plaintiff admitted that D2 and D3 are not parties to the Ex.A1 or
Ex.A4 or Ex.A9 and there is no mention that Defendant No.1 received amount on behalf of all the defendants. It is also important to see that the pahanies filed by defendants under
Ex.B2 and B3 clearly reflects that each defendant is individually recorded as pattadar and possessor of land in
Sy.No.433/AA to an extent of Ac.0-08 guntas and odd. It is also important to see that even D2 and D3 also in their
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written statement stated that Defendant No.1 is not individually authorised for making agreement for the entire lands as they have all divided their lands in the individual names after death of their father.
41.It is important to see that even as per Pw.1 he verified only patta passbook of D2 and D2 is shown as pattadar of only Ac.0-08 ½ guntas. In these circumstances, when there is no authorisation in favour of Defendant No.1 for entering into agreement for both D2 and D3 and when D2 and D3 denied the right of Defendant No.1 for entering into agreement of sale on their behalf, the plaintiff has to establish the Defendant No.1 is authorised to enter into agreement on behalf of all.
42.Plaintiffs counsel argued that though defendants denied execution of Ex.A4, but still they have established that it is validly executed by Defendant No.1 with the help of expert opinion under Ex.X1 and argued that as per evidence of Lw.1, Ex.A4 was signed by Defendant No.1 only. It is important to note that undoubtedly execution of Ex.A4 by
Defendant No.1 might have been established, but it is important to see that there was no authorisation by D2 and
D3 in the individual name of Defendant No.1 for entering
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into agreement for entire lands and the plaintiffs have failed to establish that D2 and D3 also have authorised the
Defendant No.1 to enter into agreement of sale and failed to establish that the amount is received by Defendant No.1 on behalf of all. Further, the plaintiffs have also failed to establish that the suit is filed within time and failed to establish that they were always ready and willing to perform their part of contract. Therefore, it cannot be said that plaintiffs were always ready and willing to perform their part of contract. Issue No.1 is determined accordingly.
ISSUE NO.2:
43.In view of findings given while deciding issue No.1, it is held that the plaintiffs are not entitled for any relief of specific performance of contract. Issue No.2 is determined accordingly.
ISSUE NO.3:
44.It is important to see that Dw.1 in his cross and written arguments admitted about receiving of advance sale consideration from the plaintiffs. Therefore, in these circumstances, at the most the Defendants can be directed to return the said amount of Rs.11,00,000/- which Dw.1
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has admitted to have received from the plaintiffs, but in these circumstances without any interest. Therefore, the defendants i.e. Defendant No.1 who was said to have received the amount of Rs.11,00,000/- from the plaintiffs
No.1 and 2 on behalf of all defendants in different intervals is directed to return the said amount of Rs.11,00,000/- to the plaintiffs within a period of two months from the date of this Judgment and decree and obtained a separate receipt for the same and filed it before the Court. Issue No.3 is determined accordingly.
ISSUE NO.4 :-
45.In view of the findings given while deciding Issue No.1 to 3, it is held that the suit can be partly decreed only to the extent of return of earnest money of Rs.11,00,000/- received by Defendant No.1 to 3 to the plaintiffs without any interest and the relief of specific performance of sale suit schedule property is liable to be rejected. Issue No.4 is determined accordingly.
46.In the result, the present Suit of the plaintiffs be, and the same do be hereby decreed in part only to the extent of directing the defendants 1 to 3 for returning the amount of
Rs.11,00,000/- said to have received by them from the
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plaintiffs towards the advanced sale consideration within a period of 2 months from the date of this Judgment and
Decree and the plea of the plaintiffs with regarding to enforcement of specific performance of sale of the suit schedule property under Ex.A1 is hereby accordingly rejected.
There is no order as to costs in this suit.
Dictated to Grade-I Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on this the 12th day of April, 2023.
Sd/-
I-Additional District Judge, Nizamabad.
::Appendix of Evidence:: Witnesses Examined
For Plaintiff : For Defendant:
Pw.1: Barad Mahender Dw.1: K. Ravinder Reddy Pw.2: Kartan Srinivas Dw.2: J. Sudershan Reddy Pw.3: Chinthala Prabhakar Dw.3: K. Rajeshwar Reddy Pw.4: Bandari Rajender Dw.4: K. Rajender Reddy
Cw.1: K. Vijaya Goud
::Exhibits Marked for :Plaintiff ::
Ex.A1: Agreement of sale executed by D1 on behalf of D2 and D3 in favour of plaintiffs, dated : 03.12.2010 Ex.A2:Receipt executed by D1 in favour of plaintiffs,
dated :11.2.2010
Ex.A3:Receipt executed by D1 in favour of plaintiffs,
dated :16.2.2010
Ex.A4:Receipt executed by D1 in favour of plaintiffs,
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dated :15.2.2011
Ex.A5:Pattadar passbook issued in favour of D2 Ex.A6: Office copy of legal notice issued to defendants,
dated :10.9.2015
Ex.A7:Acknowledgment Car of D1 to D3 Ex.A8:Reply notice of the defendant No.1, dated :19.9.2015 and Reply notice of Defendants No.2 and 3, dt.19.9.2015 Ex.A9:Debit voucher, dated : 16.12.2010
::Exhibits Marked for Defendant ::
Ex.B1: Pattadar Passbook of D3 Ex.B2: Certified copy of Pahani for the year 2016,
dated : 02.03.2016
Ex.B3: Certified copy of Pahani for the year 2016,
dated : 02.03.2016 by Dw.4 through Advocate
commissioner
Ex.X1: FSL Report by Cw.1.
Sd/-
I- Additional District Judge, Nizamabad.