APKR030015082011 APKR030021122011
IN THE COURT OF VIII ADDITIONAL DISTRICT JUDGE, VIJAYAWADA
PRESENT: Ms.D.Lakshmi VIII Additional District Judge
Friday, this the 17th day of April, 2026
APPEAL SUIT No.05 of 2011 &
APPEAL SUIT No.04 of 2011
--------------------------------------------------------------------------------------------------------
AS.05 of 2011
Between :
Bolla Baby Sarojini, W/o.Murali Krishna, Hindu, aged 50 years, Properties, Residing at P.Nynavaram Village, VijayawadaRuralMandal,KrishnaDistrict. [2 nd defendant] …Appellant.
And
1.Dhulipala Devendar Rao, S/o.Poorna Ramachandra Rao, Hindu, aged 57 years, Properties, Residing at P.Nynavaram Village, Vijayawada Rural Mandal, Krishna District. [Plaintiff]
2.Karangula Sambasiva Rao, S/o.Venkateswara Rao, Hindu, aged 40 years, Residing at Pothanapalli (named) Gantipadu (village & Post), Chatrai Mandal, Krishna
District. [1 st defendant] ...Respondents.
Appeal No.05/2011 is filed under S.96, Or.XLI R.1 of CPC against the
Decree in OS.No.125/2000 and Common Judgment in OS.Nos.125/2000 & 218/2001 16.12.2010 on the file of the III Additional Senior Civil Judge,
Vijayawada.
Between 2
Dhulipala Devendar Rao…Plaintiff.
And
1.Karangula Sambasiva Rao
2.Bolla Baby Sarojini...Defendants.
--------------------------------------------------------------------------------------------------------
AS.04 of 2011
Between :
Bolla Baby Sarojini, W/o.Murali Krishna, Hindu, aged 50 years, Properties, Residing at P.Nynavaram Village, VijayawadaRuralMandal,KrishnaDistrict. [Plaintiff] …Appellant.
And
Dhulipala Devendar Rao, S/o.Poorna Ramachandra Rao, Hindu, aged 57 years, Properties, Residing at P.Nynavaram Village, Vijayawada Rural Mandal, Krishna
District. [Defendant] ...Respondent.
Appeal No.04/2011 is filed under S.96, Or.XLI R.1 of CPC against the
Decree in OS.No.218/2001 and Common Judgment in OS.Nos.125/2000 & 218/2001 16.12.2010 on the file of the III Additional Senior Civil Judge,
Vijayawada.
Between
Bolla Baby Sarojini…Plaintiff.
And
Dhulipala Devendar Rao...Defendant.
3 = = =
These two Appeal Suits coming on 25.03.2026 for hearing before me in the presence of Sri K.V.Bhanu Murthy, Sri Ch.Manmadha Rao and
Smt.Ch.Nirmalatha, Advocates for Appellant, and Sri D.P.Ramakrishna & Sri
G.Muralidhar, Advocates for 1st Respondent in AS.No.05/2011, and Sri
K.V.Bhanu Murthy, Sri Ch.Manmadha Rao and Smt.Ch.Nirmalatha, Advocates
for Appellant, and Sri D.P.Ramakrishna & Sri G.Muralidhar, Advocates for
respondent in AS.04/2011, and upon perusing the material on record and the matter having stood over for consideration till this day, this Court has delivered the following :
COMMON JUDGMENT
AS.05/2011
1.This is first appeal filed by unsuccessful 2nd defendant [subsequent purchaser] (Bolla Baby Sarojini) against plaintiff and 1st defendant to set-aside the Common Decree and Judgment dated 16.12.2010 passed in OS.125/2000 on the file of III Additional Senior Civil Judge, Vijayawada for [a] specific performance of agreement of sale dated 04.06.1999 [b] delivery of possession of schedule property, and [c] consequential relief of declaring the Registered Sale
Deed dated 02.05.2000 executed by 1st defendant in favour of 2nd as null and void.
AS.04/2011
2.This is first appeal filed by unsuccessful plaintiff (Bolla Baby Sarojini) against defendant to set-aside the Common Decree and Judgment dated 16.12.2010 passed in OS.218/2001 on the file of III Additional Senior Civil Judge,
Vijayawada for [a] possession of ‘B’ schedule property [b] permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of plaintiff over the schedule ‘A’ & ‘B’ schedule properties and [c] for 4 damages/mesne profits at the Rs.45,000/- per annum from the date of dispossession of plaintiff from ‘B’ schedule property till the date of delivery of possession of the said property and for costs.
3.1.This Court being the first appellate Court and fact finding Court need to appreciate the pleadings and evidence let in by both parties by re-appreciating the evidence.
3.2.For the sake of convenience, the parties herein referred to as arrived in the
Trial Court.
3.3.The Appellant (Bolla Baby Sarojini) in AS.Nos.5/2011 & 04/2011 is the 2nd defendant in OS.125/2000 and also plaintiff in OS.218/2011. The 1st respondent (Dhulipala Devendar Rao) in AS.No.05/2011 and respondent (Dhulipala
Devendar Rao) in AS.No.04/2011 is the plaintiff in OS.125/2000 and 1st defendant in OS.218/2001. The 2nd respondent (Karangula Sambasiva Rao) in
AS.No.05/2011 is the 1st defendant in OS.125/2000. In other words, all the
parties to the litigation are in OS.125/2000 which is filed for specific performance of Ex.A17 agreement of sale dated 04.06.1999. For brevity, I hereinafter refer the array of parties as arrayed in OS.125/2000 before Trial Court.
4.In brief, it is the case of the plaintiff as delighted in the plaint that, the 1st defendant is the owner of plaint schedule property situated in P.Nynavaram village of Vijayawada Rural & Mandal that the 1st defendant expressed his intention to sell the plaint schedule property consisting an extent of Ac.0.31 cents and Ac.0.39 cents to plaintiff for total consideration of Rs.1,12,000/- that plaintiff paid a sum of Rs.50,000/- towards advance and agreed to pay the balance of sale consideration on or before 22.08.1999 that prior to the said agreement of sale the 1st defendant has sold an extent of Ac.0.22 cents to the plaintiff as such in total the plaintiff agreed to purchase Ac.0.92 cents [0.31+0.39+0.22]. The 1st 5 defendant failed to execute a regular Sale Deed in spite of plaintiff’s ready and willing to perform part of contract that while so, the plaintiff learnt that the 1st defendant is intend to create sham and nominal document in the names of third parties, therefore, plaintiff got issued legal notice to him on 21.04.2000 calling upon the 1st defendant to perform the part of contract as per agreement of sale to execute regular Sale Deed in his favour by receiving the balance of sale consideration that subsequent to the filing of suit the 1st defendant colluding with 2nd defendant got executed a Registered Sale Deed dated 02.05.2000 in her favour and therefore, the suit is filed impleading the 2nd defendant/subsequent purchaser for specific performance of agreement of sale for cancellation of
Registered Sale Deed dated 02.05.2000.
5.Per contra, the 1st defendant denied the allegations mentioned in the plaint and inter alia contended that he never agreed to sell the plaint schedule property to plaintiff and he never executed any agreement of sale in his favour that one of the attestors of the said agreement of sale, Mokarala Venkaiah filed ATC 23/1999 against the 1st defendant including schedule property, wherein the plaintiff gave third party affidavit supporting the claim of petitioner therein that the said injunction petition was dispose of on 17.01.2000 and later the 1st defendant executed Registered Sale Deed in favour of 2nd defendant on 02.05.2000 and aggrieved by the orders passed in ATC, the alleged tenant Mokarala Venkaiah in collusion with the plaintiff created agreement of sale dated 04.06.1999 and got filed the suit with the plaintiff, therefore, prayed the Court to dismiss the suit with costs.
6.Per contra, the 1st defendant denied the allegations mentioned in the plaint and inter alia contended that the plaintiff filed the suit in collusion with Mokarala
Venkaiah who initiated legal proceedings in ATC.23/1999 against 1st defendant that the 2nd defendant came into possession and cultivation of Ac.3.63 cents 6 subsequent to the agreement of sale executed by 1st defendant in her favour that after dismissal of the said ATC.23/1999. The 1st defendant executed Registered
Sale Deed in her favour, therefore, the alleged agreement of sale in favour of plaintiff is forged and fabricated that further the 2nd defendant is a bonafide purchaser for valuable consideration that subsequent to the Sale Deed in her favour, she obtained title deed and pattadar passbook from the 1st defendant who is the original of plaint schedule property, therefore, prayed the Court to dismiss the suit with costs.
7.Basing on the pleadings and documents placed before the Trial Court, the following issues were framed in OS.125/2000 :
1.Whether the agreement dated 04.6.1999 is true, valid and binding on the defendants?
2.Whether the plaintiff is always ready and willing to perform his part of contract?
3.Whether the plaintiff is entitled for declaration that the Registered Sale Deed dated 02.5.2000 executed by the 1st defendant is null and void?
4.Whether the 2nd defendant is a bonafide purchaser?
5.To what relief?
8.Basing on the pleadings and documents placed before the Trial Court, the following issues were framed in OS.218/2001, and also Additional issues were framed on 04.04.2006. :
1.Whether the plaintiff is in lawful possession of the suit schedule property by the date of suit?
2.Whether the plaintiff is entitled for injunction as prayed for?
7
3.To what relief?
1.
Additional Issues
1.Whether the dispossession by the plaintiff on 13.7.2003 in respect of ‘B’ schedule property is true?
2.Whether the plaintiff is entitled for recovery of possession of ‘B’ schedule properties as prayed for?
3.Whether the plaintiff is entitled for consequential permanent injunction as prayed for?
4.Whether the plaintiff is entitled for damages as prayed for?
5.To what relief?
9.The Trial Court clubbed OS.218/2001 with OS.125/2000 and recorded common evidence in OS.125/2000, being comprehensive suit.
10.During trial, on behalf of the plaintiff, Pws.1 to 5 were examined. Exs.A1 to
A19 were marked. On behalf of the 1st defendant, Dws.1 to 4 were examined.
Exs.B1 to B15 were marked. 2nd defendant was examined as DW5. No documents were marked on behalf of 2nd defendant.
11.The Trail Court after considering the pleadings, oral and documentary evidence came to the conclusion that decreed the suit in OS.125/2000 declaring that the Registered Sale Deed dated 02.5.2000 executed by 1st defendant in favour of 2nd defendant is null and void to the extent of plaint schedule property and directed the defendants to execute a Registered Sale Deed in favour of plaintiff over the plaint schedule property within two months and in the meanwhile the plaintiff was directed to deposit the balance of sale consideration into Court within one month and consequently dismissed the other suit in OS.218/2001.
8
12.Aggrieved by the Common Decree and Judgment of the Trial Court, the 2nd defendant preferred two appeals in AS.Nos.5/2011 & 04/2011. To avoid repetition, I am extracting the grounds of appeal commonly.
1. The Trial Court ought to have dismissed the suit for specific performance hold that there is a clear collusion in between plaintiff and 1st defendant from beginning and non-contesting of proceedings by 1st defendant who is original owner of plaint schedule property;
2. The Trial Court should have dismissed the suit since possession of plaint schedule property was with the 2nd defendant;
3. The Trial Court ought to have suspected the genuinity of Ex.A17 [agreement of sale] basis of the evidence of PW4 who is adduced evidence on behalf of 1st defendant who deposed that no agreement of sale to place in writing before him;
4. The Trial Court ought to have dismissed the suit on the ground that the evidence of Pws.2 & 3 is not supporting the case of 1st defendant more particularly in view of Ex.A17 [agreement of sale];
5. The Trial Court erred in holding that the appellant is not having right to say Ex.A17 is a forged document and fabricated document and simply set-aside the plea and came to wrong conclusion.
6. The Trial Court ought to have given much credence to the evidence of DW5 and her documents before the Court;
7. Even though Dws.1 and 4 examined in chief and in part in cross, the
Trial Court without going the evidence due to non-appearance of witnesses since eschewed the evidence which is beyond the scope of law;
8. The Trial Court failed to appreciate the evidence properly but came 9 to conclusion on surmises, imaginations, conjectures etc.
Hence, the appellant prays to allow this appeal as well as set-aside the above Judgment and decree passed by the Trial Court.
13.Heard both the learned counsel for appellant and respondent. Both the learned counsel have filed their respective written arguments in support of their oral submissions.
14.The learned counsel for appellant in AS.Nos.5/2011 & 04/2011 is the 2nd defendant in OS.125/2000 and also plaintiff in OS.218/2011 filed written arguments along with following citations.
1.Bhagwan and others vs Sachi Chandra Jain and others vide Judgment
dated 07.08.1991 on the file of Hon'ble Madhya Pradesh High Court
(AIR 1992 MP 258)
2.Karaj Singh vs Amarjit Kaur and others (Punjab & Haryana High Court) vide Judgment dated 28.02.2013 on the file of Hon'ble Supreme Court of India.
3.Emperor vs Fateh Ali (Punjab Chief Court) XVI IC 521.
4.Ashok Kapil vs Sana Ullah (Dead) and others vide Judgment dated 25.09.1996 on the file of Hon'ble Supreme Court of India.
5.Barnala Lakshmana Rao vs Sarnala China Jamayalayya = 1999 (4) ALD 429.
6.Michael Mascarenhas, Major and John Mascarenhas = AIR 1996 Kant 348.
7.Gomi Bai and others vs Uma Rastogi and another = 2005 (2) ALD 631
8.Om Prakash Berlia and another vs Unit Trust of India and others = AIR 1983 Bom 1.
9.Dudh Nath Pandey (Dead) by L.Rs vs Suresh Chandra Bhattasali (Dead) = 1986 (2) UJ 527 SC 10
10.Muddasani Venkata Narasaiah (D) Th.Lrs. vs Muddasani Sarojana (SC) = AIR 2016 SC 2250
11.Lala Durga Prasad and another vs Lala Deep Chand and others = 1954 AIR 75
12.Jagabandhu Naik and another vs Gouri Bandha and others = AIR 1985 Ori 126
13.Banda Pulla Reddy vs Banda Lakshmamma and others vide
Judgement dated 06.03.2014 on the file of Hon'ble High Court of
Andhra Pradesh
14.Bolisetti Venkateswara Rao and others vs Nadakuditi Venkateswara Rao = 2002 (6) ALD 256.
15.Podelly Chinna Chinnanna vs Bandari Pedda Bhumanna and others on 29.12.2003 = 2004 (1) ALD 241.
15.The learned counsel for appellant mainly argued that there is serious dispute in between the parties and that plaintiff in OS.125/2000 is hanging on a sale agreement vide Ex.A17 and its existence was clearly not proved. The plaintiff is a stranger to Ex.B3 Sale Deed and the property covered there under.
The learned counsel for appellant further argued that the learned counsel for respondent during arguments repeatedly asserted that the plaintiff is only concerned with the suit schedule property in OS.125/2000 which is an extent of
Ac.0.70 cents in two items and that the respondent is not concerned with the remaining property under Ex.B3 and the title of 1st defendant with regard to
Ac.3.63 cents is not in dispute and Exs.B4 and B5 pattadar passbooks lawfully granted to 1st defendant vouch to the same containing RS.No.32 with sub division
Nos.1A4, 1A6, 1A9, 1A10 & 1B1 totaling an extent of Ac.3.63 cents which the 2nd defendant purchased under Ex.B3. The schedule in OS.218/2001, it comprises two parts one schedule-A and the other-B. Schedule-A contains the totally of
Ac.3.63 cents which is not relevant even according to the plaintiff and schedule-B comprises three items with distinct boundaries which admittedly are true and correct and the relief claimed in OS.218/2001 is capable of being granted. So, 11 the plaintiff mischievously and illegally occupied the property in 3rd item of suit schedule-B of suit in OS.218/2001 and the footnote on Ex.A17 falsely recites as if he purchased the property. In the entire plaint or suit notice, there is no whisper that the plaintiff’s wife is in any way connected to the land. The evidence of plaintiff in OS.125/2000 that he purchased property in the name of his wife for which there is no proof and plaintiff is illegally squatting on the property in ‘B’ schedule of OS.218/2001 without a semblance of right, title or interest.
16.The learned counsel for appellant further argued that the evidence of PW4 was not eschewed and perhaps due to mistake it might be mentioned in the appendix of evidence of Judgment. The statement of plaintiff is false since plaintiff has given up the evidence of PW4 by filing a memo before Trial Court and there is no such memo filed by him as mentioned in the written arguments.
The learned counsel for plaintiff further argued that when the burden of proof lies on the plaintiff and such burden is not discharged initially for non appearance of the defendant or non-production of rebuttal evidence by the defendant adverse inference as contemplated under section 102 of Indian Evidence Act cannot be drawn by the Court.
17.The learned counsel for appellant further argued that the respondent is agitating about non-examination of scribe or attestors of Ex.B3 Sale Deed and the plaintiff never agitated about the factum of said execution of Ex.B3. Per contra, the plaintiff in his amended plaint in para No.9 (a) clearly admitted to the factum execution of Ex.B3 Sale Deed. Finally, he argued that the observations made by Their Lordships of the Hon'ble Apex Court in Muddasani Venkata
Narasaiah (D) Th.Lrs. vs Muddasani Sarojana (SC)= AIR 2016 SC 2250 held in para No.9 is that, the authority of Bucchamma to Buchamma to execute the Sale
Deed had been put into question not factum of execution of the Sale Deed and it was not necessary to examine Buchamma and 3 rd defendant being a 3 rd party cannot question the passing of consideration under the Sale Deed.
12
18.The learned counsel for appellant also filed supplemental arguments along with following citations.
1.Ram Awadh (Dead) by L.Rs and others vs Achhaibar Dubey and another= 2000 AIR SC 442
2.Kadupugotla Varalakshmi vs Vudagiri Venkata Rao and others = (LL 2021 SC 104)
3.Sivasankara Pillai and others vs Ponnuswami Nadar and others = (1973 AIR MAD 450)
4.Kurra Murali Krishna Yadava, son of Kurra Sambasiva Rao vs Sri Lakshmi Rama Cooperative Building Society Limited = (2022 0 Supreme (AP) 140)
5.The Andhra Pradesh Industrial Infrastructure Corporation Limited and others vs S.N.Raj Kumar and another Vide Judgment dated 10.04.2018 on the file of Hon'ble Supreme Court of India
6.K.Seetharama Reddy and another vs Hassan Ali Khan and others = (2003 (1) ALD 583)
7.Konkana Ravinder Goud and others vs Bhavanarishi Co- operative House = (2003 (5) ALD 654)
8.Sanjay Kumar Singh vs The State of Jharkhand = (2022 Live Law (SC) 268)
9.J.Balaji Singh vs Diwakar Cole and others = (AIR 2017 Supreme Court 2402)
19.Basing on the above citations, the learned counsel for appellant further argued that Ex.A17 agreement of sale is invalid and that the learned Trial Court was oblivious to the settled law and it is the burden of plaintiff to prove the existence of valid contract and that the existence of valid contract sought to be relied on by the plaintiff is a fact in issue constituting the very bedrock of the suit and the defence is unequivocally available to the appellant. Thus, it is bounden 13 duty of plaintiff to prove the existence of a valid contract basing on the legal aspect envisaged in Gomi Bai’s case [2005 (2) ALD 631]. The learned Trial Court in its Judgment at para No.24 of 2nd line stated that as the Commissioner was not examined plaintiff lost his opportunity to cross-examine the witness by taking permission from the Court to declare him as hostile and is nothing but perverse.
The learned counsel for appellant further argued that the appellant was able to secure yet other documentary evidence which was placed before the Court vide
IA.Nos.107/2024 and 731/2024 in AS.05/2011 since both the appeals are clubbed matters as well as the relating suits before learned Trial Court and that evidence was recorded in OS.125/2000 relating to AS.05/2011. The documentary evidence sought to be received makes the case of appellant compelling beyond any pale of doubt. As per Rule 27 of Order XLI of Code of
Civil Procedure where the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment or for any other substantial cause the Appellate Court may allow such evidence or document to be produced, or witness to be examined, and whether the appellate
Court is able to pronounce Judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. The Appellate Court when it decides that the additional evidence sought to be adduced to come on record, it is not necessary to make a lengthy discussion as to the merits of the entire appeal and as far as the instant case is concerned Rule 23-A of Order XLI of Code of Civil Procedure is applicable. The only paramount consideration for allowing a prayer for receiving additional evidence is that whether such evidence removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interests of justice clearly render it imperative that may be allowed to be permitted on record.
20.The learned counsel for appellant further argued that it is absolutely necessary to remove any doubt in the mind of Court that an extent of Ac.0.22 14 cents is the property of appellant purchased by her and that neither the respondent nor his deceased wife had any right title or interest therein and further that the respondent set up the name of his wife with a mischievous design to mislead the Court. As per enjoyment report of Tahsildar pertaining to Ac.0.22 cents makes it clear that 1st defendant namely Karangula Sambasiva Rao is the original owner of Ac.3.63 cents and it is the entire extent owned by him before he sold the same to the appellant herein under Ex.B3. So, there are several infirmities in the evidence of plaintiff apart from Ex.A17 agreement of sale.
Hence, the learned counsel for appellant prays to allow both the appeals.
21.The learned counsel for 1st respondent in AS.No.05/2011 and respondent in AS.No.04/2011 is the plaintiff in OS.125/2000 and 1st defendant in
OS.218/2001 also filed written arguments along with citations.
1.Muddasani Sarojana vs Muddasani Venkata Narasaiah and others = 2006 (6) ALD 436.
2.S.Hussain and another vs Shah Purchand and others = 1998 (2) ALD 244 (DB)
3.Bolisetti Venkatarathanamma (died) by L.Rs vs Nadakuduti Venkateswara Rao and others = 1999 (1) ALD 422
4.Secretary to Government of India, Ministry of Defence, New Delhi and another vs Indira Devi and another = 1998 (5) ALD 387
5.Godavarthi Ramakrishna Rao and another vs B.Sitaramachandra Raju (died) by L.Rs = 2007 (4) ALD 760
6.Indian Bank, Chittoor vs V.R.Venkataraman and others = 2004 (3) ALT 665 (DB)
7.G.Gayathri and another vs M.Bhagyalakshmi and others = 2009 (6) ALT 91
8.Mohd.Ibrahim and others vs Smt.Munni alias Zainab Bee = 15
MANU/AP/1040/2006
9.Dastagir Ahmed vs Khairunnisa Rahana and others = 2012 (3) ALD 13
10.Union of India vs Ibrahim Uddin and another = (2012) 8 Supreme Court Cases 148
11.State of Rajasthan vs T.N.Sahani and others = (2001) 10 Supreme Court Cases 619
12.Nimmakayala Balakrishnaiah and another vs Nimmakayala Sreenivasulu = 2020 (1) ALD 203 (AP)
22.The learned counsel for above 1st respondent briefly argued that the adverse inference can be drawn who suppressed and do not produce original documents agreement of sale dated 08.07.1999 which is said to have been executed by 1st defendant in favour of 2nd defendant which are admittedly in the possession of party and her counsel in spite of demanding them in the cross- examination. The counsel who appeared throughout the suit on behalf of dles not filed the said documents i.e., original agreement of sale dated 08.07.1999 and other link documents even though 2nd defendant as DW5 and her husband as
DW2 have clearly deposed and says that those papers were handed over to their counsel in front of him. He further argued that 1st defendant admittedly is a owner of plaint schedule property was not examined himself and come into box and gave evidence before the Trial Court and though he filed chief examination affidavit, he did not turn up for cross-examination and his evidence was eschewed and that the entire record on file shows on behalf of 1st defendant that his thumb impression on Ex.A17 agreement of sale is admitted, thus, 2nd defendant is not a bonafide purchaser of plaint schedule property. He further argued that Order XVI Rule 7 of Code of Civil Procedure deals with power of
Court to require the person present in the Court to give evidence only and likewise the order XVIII deals with examination of witnesses but not regarding 16 eschewing of any evidence and further the Commissioner stopped to record further evidence only. As per Indian Cases, the method of recording evidence of witnesses in civil case is laid down in Order XVIII Rule 5 of Code of Civil
Procedure and is as follows the evidence of each witness shall be taken down in writing and when completed shall be read over in the presence of Judge and of the witness and Judge shall of necessary correct the same and shall sign it.
Footnote in agreement of sale is not the subject matter of suit as it is only regaring Ac.0.69/0.70 cents only and further the matter connected with A.T.C cannot have any bearing in the suit as the plaintiff is not a party to the said A.T.C and also he has denied his signature on the alleged affidavit said to have been filed in A.T.C which is not proved at all. Ex.A17 agreement of sale i.e., stamp paper was purchased from authorized stamp vendor and it was impounded by
Sub-Collector, Vijayawada vide Ex.A18. The learned counsel for 1st respondent also further argued that there is no variance in the pleadings and evidence of plaintiff and that Article 65 of Limitation Act will not come into way the facts of the case as it is not the case regarding adverse possession. Finally, the learned counsel for 1st respondent would contend that there is no necessity to interfere into the impugned Judgment and Decree of Trial Court and the Trial Court rightly appreciated the evidence and rightly decreed the suit in OS.125/2000 and rightly dismissed the suit in OS.218/2001, and the learned counsel for 1st respondent pray the Hon'ble Court to dismiss both the appeals.
23.I have carefully scrutinized the oral and documentary evidence for disposal of the present appeal.
24.The powers of the first appellate Court, while deciding the first appeal
U/sec.96 r/w. Order. XLI rule.31 of the code are indeed well defined by various judicious pronouncement of the Hon’ble Apex Court. As per the back in 1969, the
Hon’ble V.R.Krishna Iyer, (Judge) as his lordships then was the judge of Kerala
17
High Court. While deciding the first appeal U/sec.96 of C.P.C., Kurian Chacko,
Vs. Varkey Ouseph, reported in AIR 1969 (Kerala) Page No.316, remained the first appellate Court of his duty as to how the first appeal U/sec.96 of C.P.C.
should be decided, wherein it was held that, “The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in the appeal, the learned
Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court.
Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation.”
25.In a cases of Santosh Hazari, Vs Purushottam Tiwari (deceased) by
legal heirs, reported in 2001 (3) SCC Page No.179, the Hon’ble Apex Court
held at page No.188, 189 as under 18 “The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. …... while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it.”
26.The above view has been followed by three Judges bench, decision of
Hon’ble Apex Court in Madhukar and others, Vs. Sangram and others,
reported in 2001 (4) SCC Page No.756, wherein it was reiterated that “Sitting as a Court of first appeal, it is the duty of the Hon’ble
High Court to deal with all the issues and the evidence led by the parties before recording its findings.”
27. In a case of H.K.N.Swamy, Vs. Irshad Basith (died) by his Legal Heirs, reported in 2005 (10) SCC Page No.243, the Hon’ble Apex Court at para
No.244 stated as under “The first appeal has to be decided on facts as well as on law.
In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case 19 by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the
High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.”
28.Again in a case of Jagannath, Vs. Arulappa and another, reported in 2005 (12) SCC Page No.303, while considering the scope of Sec.96 of C.P.C., the Hon’ble Supreme Court observed as follows :- “The Court of first appeal can re-appreciate the entire evidence and come to a different conclusion.”
29.Again in a case of B.V.Nagesh and another, Vs. H.V.Sreenivasa
Murthy, reported in 2010 (13) SCC Page No.530, the Hon’ble Apex Court taking moto of all the earlier Judgments, reiterated the aforesaid principles with this words.
“How regular first appeal is to be disposed of by the appellate
Court/High Court has been considered by this Court in various decisions. Under Order.XLI of CPC deals with appeals from original decrees. Among the various rules, Rule.31 mandates that the Judgment of the appellate Court shall state:
a) all the points for determination,
b) the decision thereon,
c) reasons for the decision, and
d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
20
30.The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties
before recording its findings. The first appeal is a valuable right and the parties
have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings vide Santosh Hazari Vs.
Purushottam Tiwari, reported in 2001 (3) SCC Page No.179 at page No.188
para No.15 and Madhukar and others, Vs. Sangram and others, reported in
2001 (4) SCC Page No.756 at page No.758, at para No.5.
Keeping the above legal position in the mind, this appeal need to be disposed of.
31.In view of the above facts and circumstances and rival contentions, the following points that was emerged for determination in this appeal:
1]Whether the agreement of sale dated 04.06.1999 is true, genuine and executed by 1st defendant in favour of plaintiff?
2]Whether the plaintiff was ready and willing to perform his part of contract?
3]Whether the 2nd defendant is the bonafide purchaser of the schedule property without notice of the agreement of sale?
4]Whether the Common Decree and Judgment dated 16.12.2000 in OS.Nos.125/2000 & 218/2001 on the file of III Additional 21
Senior Civil Judge, Vijayawada is in accordance with law and if
not, whether the Common Judgment dated 16.12.2000 in OS.Nos.125/2000 & 218/2001 is required to be set-aside?
5]To what relief?
32.POINT Nos.1 to 4 : -
All the points are interrelated besides interdependent, as such the same are taken up together for simultaneous discussion and to avoid redundancy in discussion. To avoid confusion, plaintiff in OS.125/2000 who is also defendant in
OS.218/2001 is hereinafter referred as plaintiff/respondent, and 2nd defendant in
OS.125/2000 who is also plaintiff in OS.218/2001 is hereinafter referred as
appellant only.
33.Plaintiff-D.Devandra Rao was examined as PW1 and got marked Exs.A1 to A18. T.S.Rama Raju said to be scribe of Ex.A17 sale agreement was examined as PW2. M.Damodara Rao said to be attestor under Ex.A17 was examined as PW3. 1st defendant is grandson of PW4/M.Venkaiah as he is the son of his brother’s daughter who is said to be attestor under Ex.A17-Sale
Agreement. PW5/P.Veerajaneya Rao who is running a shop very nearer to the
Panchayat Office. Ex.A1 is office copy of legal notice dt.21.4.2000, Ex.A2 is postal receipt, Exs.A3 & A4 are No.3 adangals, Ex.A5 is tax receipt, Ex.A6 is possession certificate issued by Mandal Revenue Officer stating that plaint schedule property measuring Ac.0.69 cents is in possession of plaintiff, Ex.A7 is legal notice got issued by 2nd defendant to one S.Krishna marking copy to plaintiff, Ex.A8 is reply given by S.Krishna and D.Devendra Rao to 2nd defendant,
Exs.A9 to A13 are tax receipts, Ex.A14 is auction notice of plaint schedule property by Krishna District Co-operative Central Bank, Ex.A15 is receipt under which plaintiff paid money and stopped the auction, Ex.A16 is decision given by
Sarpanch, P.Nynavaram and its members stating that plaintiff purchased 22 schedule property from 1st defendant and obtained injunction order despite the 1st defendant executed sale deed in favour of 2nd defendant and panchayat summoned to 2nd defendant; but 2nd defendant did not turn up, Ex.A17 is agreement of sale dated 04.6.1999, Ex.A18 is letter issued by Sub-Collector,
Vijayawada stating that they collected stamp duty and penalty on suit agreement, and Ex.A19 is certified copy of deposition of 2nd defendant given in ATC.23/1999.
34.On the other hand, 2nd defendant/B.B.Sarojini initially filed chief affidavit as
DW1, she did not turn up for cross-examination, as such her evidence was eschewed. But 2nd defendant again filed chief affidavit and was examined as
DW5 and got marked Ex.A19 through her. The husband of 2nd defendant B.Murali
Krishna was examined as DW2 and got marked Exs.B1 to B15 through him.
D.Nancharamma sister of 2nd defendant was examined as DW3. K.Sambasiva
Rao-1st defendant was examined as DW4. Ex.B1 is true copy of affidavit of
Damodara Rao filed in IA.1030/99 in ATC.23/99 dated 26.12.1999, Ex.B2 is deposition of T.Veeranjaneyulu in CC.920/00 on the file of II Metropolitan
Magistrate, Vijayawada dated 25.9.2001, Ex.B3 is sale deed executed by 1st
defendant in favour of 2nd defendant dated 02.5.2000, Ex.B4 is pattadar passbook in favour of 1st defendant issued by Mandal Revenue Officer,
Vijayawada Rural, Ex.B5 is title deed in favour of 1st defendant issued by Mandal
Revenue Officer, Vijayawada Rural, Ex.B6 is cist receipt No.8736111, Ex.B7 is adangal for fasli 1402, Ex.B8 true copy of affidavit of PW1 in ATC.23/99, Ex.B9 is true order copy in IA.1029/99 in ATC.23/99, Ex.B10 is true order copy in
IA.1030/99 in ATC.23/99, Ex.B11 is police report submitted by 2nd defendant,
Ex.B12 is acknowledgement of 2nd defendant, Ex.B13 is photocopy of challan,
Ex.B14 is plan and Ex.B15 is photocopy of Police report by 2nd defendant dated 10.7.2000.
35.Admittedly, 1st defendant/K.Sambasiva Rao (DW4) was owner of plaint schedule property in an extent of Ac.0.70 cents shown in two items. Item No.1 an 23 extent of Ac.0.31 cents, and item No.2 an extent of Ac.0.39 cents; situated in
RS.Nos.32/1 & 32/1A9 of P.Nynavaram village, Vijayawada rural mandal.
36.The specific contention of appellant is that she purchased Ac.3.63 cents of land from 1st defendant / DW4 under an agreement of sale dated 08.07.1999 subsequently she was taken possession of said land on 25.11.1999 and subsequently he executed Sale Deed in her favour vide Ex.B3 dated 02.05.2000.
37.Plaintiff said to have been purchased plaint schedule property from 1st defendant on 04.6.1999 under Ex.A17-Sale Agreement. 2nd defendant said to be subsequent purchaser of plaint schedule property which is part and parcel of total
Ac.3.63 cents from 1st defendant on 02.5.2000 under Ex.B3 sale deed only resisting the suit on the ground that Ex.A17-Sale Agreement is fabricated and forged, therefore, the initial burden is on the plaintiff to prove Ex.A17-Sale
Agreement before Court. But 1st defendant did not contest the suit.
38.To substantiate the contention of PW1, plaintiff was examined as PW1 and reiterated the averments in the plaint in OS.125/2000, deposed that 1st defendant agreed to sell the plaint schedule property to him for a sum of Rs.1,12,000/- and received Rs.50,000/- as an an advance and agreed to receive balance of sale consideration by 22.09.1999, and further agreed to execute Registered Sale
Deed in favour of plaintiff for the schedule property and also another Ac.0.22 cents for which he received Rs.5,000/- in favour of his wife along with schedule property. In his cross-examination, he deposed that there is no mention in
Ex.A17 that possession was delivered to him and there is no documentary evidence to show that 1st defendant delivered possession of plaint schedule property to him. He denied suggestion that 1st defendant did not executed Ex.A17 or deliver possession of schedule property to him and that the name against LTI 24 was written after affixing the thumb mark and there is a note to Ex.A17. PW1 deposed that he purchased Ac.0.22 cents in the name of his wife Nirmala and that he got issued a notice prior to filing of suit but did not get it mention about his possession in the said notice. PW1 further deposed in his cross-examination that he do not know whether he filed ATC.23/1999 against 1st defendant and 2nd defendant for tenancy rights and also he do not know whether said tenancy case ended in dismissal or not. The revenue authorities did not issue any pattadar passbook in his name. He denied suggestion that he obtained the thumb marks of 1st defendant on blank papers.
39.PW2 scribed Ex.A17-Sale Agreement and also PWs.3 & 4 attested the same. 1st defendant who is original owner of plaint schedule property executed
Ex.A17 was not at all cross-examined the plaintiff. 1st defendant did not contest the suit. The plaintiff was suggested by 2nd defendant that 1st defendant and his father-in-law (PW4) said to be attestor under Ex.A17 forcibly taken by II Town
Police and their thumb marks were obtained on blank papers in police station was also denied. Such suggestion shows that they obliquely admitted the thumb marks on Ex.A17. It is for 1st defendant who is owner to prove his case under what circumstances he affixed thumb marks on Ex.A17. Though 1st defendant filed his chief affidavit on behalf of 2nd defendant as DW4, but he did not turn up to face the cross-examination, though sufficient time was granted, he did not turn up consequently his evidence was eschewed. PW2 who is scribe of Ex.A17 deposed about the execution of Ex.A17 by 1st defendant in favour of plaintiff on 04.06.1999 at 02:00 PM at the office of Gram Panchayat, P.Nynavaram village, and 1st defendant received Rs.50,000/- as advance. He further stated that PWs.3 & 4 attested Ex.A17. PW2-scribe was cross-examined by 2nd defendant only and suggested that Ex.A17 was fabricated and no transaction was taken place in his presence but he denied said suggestion.
25
40.PW3 is attestor under Ex.A17 deposed that the manner in which Ex.A17 was executed by 1st defendant in favour of plaintiff. PW3 is related to 1st defendant and had no disputes with him. There is no necessity for PW3 who is relative of 1st defendant to speak false against 1st defendant and in favour of plaintiff who is not at all related to him. In his cross-examination, Ex.B1 affidavit given by him in the earlier proceedings in between 1st defendant and his tenant in
ATC.23/99 is marked, but ATC proceedings are irrelevant, since plaintiff is not a party to ATC. The property in ATC and plaint schedule boundaries are not tallied.
On one hand defendants contended that Ex.A17 is forged and fabricated, and on the other hand stated that on 25.2.2001 at the instance of II Town police station,
Vijayawada City obtained his thumb marks from the blank papers and those blank papers were fabricated into sale agreement is totally self-contradictory and there is no consistency at all. Admittedly, no action was taken by higher authorities of Police.
41.Before discussing the evidence of PW4, the learned counsel for appellant specifically contended that the Trial Court ought to have suspected the genuinity of Ex.A17 [agreement of sale] basis of the evidence of PW4 who is adduced evidence on behalf of 1st defendant who deposed that no agreement of sale to place in writing before him. The statement of plaintiff is false since plaintiff has given up the evidence of PW4 by filing a memo before Trial Court and there is no such memo filed by him as mentioned in the written arguments. The absence of alleged hostility of PW4 is reinforced by the silence of the plaintiff in as much as there is not a demur from the plaintiff in this regard and not to mention about his failure to take any steps as contemplated under section 154 of
Indian Evidence Act. The learned counsel for appellant contended that the learned counsel for plaintiff also accepted for stopping recording evidence of 26
PW4 and it is further recorded by the learned Commissioner that PW4 refused to sign the statement of evidence.
42.Coming to the evidence of PW4, who is said to be other attestor of Ex.A17.
He is close relative of 1st defendant ie., to say grand-father of 1st defendant. He partly supported the plaintiff’s case but denied his attestation. The evidence of
PW4 was recorded by Advocate-Commissioner and prior to that he stated in chief examination that 1st defendant has sold Ac.0.70 cents of land to plaintiff situated in P.Nynavaram village. He further stated that said land was in two bits and in between these two bits land of B.Suvarna Kumari is situated and it was also proved by Commissioner’s report, but thereafter he started denying agreement and hostility towards plaintiff and that plaintiff became suppressed by the attitude of PW4 and probably out of anxiety and loss of self-control he interfered, as such the learned Advocate-Commissioner abruptly stopped recording the evidence of PW4 and returned warrant. It seems that the evidence of PW4 is partly supported the case of plaintiff and partly supported the defendants, therefore, his evidence is incomplete.
43.As could be seen from the Trial Court’s Judgment, it has rightly discussed that the evidence of hostile witness of course PW4 will not declared as hostile cannot be rejected intoto, the part of the evidence which is found reliable and trustworthy inspires the case of plaintiff/prosecution can be accepted and the rest can be rejected and that the version of PW4 is only appears to be true because no prudent person nowadays would pay huge amount of Rs.50,000/- as an advance without obtaining document/agreement. When PW4 stated that 1st defendant sold Ac.0.70 cents to the plaintiff. His further evidence is that it is in two bits intervened by the land of B.Survana Kumari, and further clarifies his earlier version is only true. His subsequent version is that 1st defendant did not execute Ex.A17 Sale Agreement and he did not attest the said agreement is only 27 false, in view of affidavit given by him supporting plaintiff in IA.314/2001 in
OS.218/2001 marked in Ex.B29. The record further discloses that since he is
close relative of 1st defendant out of fear of relationship have subsequently changed his mind. Further, case of plaintiff is that this aspect was taken as advantage by 2nd defendant and canvassing in the entire suit that PW4 not supported plaintiff’s case intoto is not correct. He partly supported plaintiff’s case and partly not supported the plaintiff’s case; yet part of evidence given by PW4 is found to be reliable, therefore, evidence of PW4 can also helpful to the plaintiff to prove transaction of Ex.A17-Sale Agreement. If really, version of PW4 is incorrect; defendants 1 & 2 can as well examine him on their side. If really, signature in Ex.A17-Sale Agreement not belongs to PW4; they can also send the document to the expert, but no steps have been taken by defendants.
44.PW5 who is running a shop very nearer to the Panchayat Office; where the transaction of Ex.A17 Sale Agreement was taken place and deposed about transaction took place in the Panchayat Office on that day. He was also cross- examined by 2nd defendant only in his evidence Ex.B2 is earlier deposition in criminal case is marked, but the criminal case is totally different and nothing to do with the suit transaction marking of entire deposition in earlier proceedings is improper and not admissible. The evidence of PW5 is only as to the factum of transaction took place on 04.06.1999 in the Panchayat Office at that time he observed the same while transacting the business in the shop admittedly situated opposite to Panchayat Office. PW5 though initially denied giving evidence, after verifying his signature he admitted his deposition in the earlier criminal case between parties, but said proceedings in criminal case is totally different and such discrepancy will not affect the reliability of PW5.
45.As could be seen from the evidence available on record, PWs.1 to 3 and
PW5, and PW4 in part is consistent and corroborated with each other. 1st 28 defendant did not adduce any evidence to disprove Ex.A17. Though the defendants have taken a plea of forgery they ought to have taken steps to send
Ex.A17 to the fingerprint expert for opinion, but they did not do so. He came on the side of 2nd defendant as witness, but his failure to appear the cross- examination resulted in eschewing his evidence. Initially, the appellant filed chief affidavit as DW1, but did not come forward to face the cross-examination and after granting several opportunities the learned Predecessor of Trial Court has eschewed her evidence and consequently she got entered her husband into the box as DW2 by saying that she fell sick and got marked all the documents through him, but husband also stated that he has not seen Ex.A17 he could not explain what was written in Ex.B8 relied on by appellant. The appellant again entered into the box as DW5 after examining all her witnesses, she also admitted in her evidence that she has not seen Ex.A17 till giving her evidence in Court, so, how can say about her plea of fabrication and forgery. Except her family members, 2nd defendant did not examine any independent witnesses.
46.Plaintiff is not a party to the ATC, the affidavit was allegedly given by plaintiff as witness. He was not cross-examined on the affidavit in ATC, so Ex.B8 is only prior statement can be used to discredit the reliability of witness and does not become substantive evidence. Mere, subscribing the signature does not amounts execution. The boundaries in ATC schedule property and survey numbers are not tallied with the plaint schedule property. The plaintiff is in possession and enjoyment of two plots ie., item Nos.1 & 2 described in the plaint schedule which tallies as per the measurements taken by the Advocate
Commissioner and in between said two items land of B.Survarna Kumari is situated and on the North of said two items land of plaintiff’s wife Nirmala is also situated. The learned Advocate Commissioner who inspected schedule property at the instance of appellant noted the description of property, survey numbers and boundaries given by plaintiff only tallied physically on ground but boundaries 29 in Ex.B3 sale deed are not tallied, therefore, Ex.A17 is only genuine rather than
Ex.B3 sale deed.
47.If really, 1st defendant did not execute Ex.A17 in favour of plaintiff, how can plaintiff would know the particulars of vendor’s of title deeds namely viz., registered documents numbers, date of sale and extent of property acquired by his vendor. Ex.A17 agreement of sale i.e., stamp paper was purchased from authorized stamp vendor worth Rs.50/- each vide serial Nos.3947 & 3948 dated 04.06.1999 and later it was impounded by Sub-Collector, Vijayawada vide
Ex.A18. Therefore, fabrication of Ex.A17 is far from truth. If Ex.A17 is not genuine, he has to come forward to give evidence before Court, which shows that fault is with him.
48.Plaintiff proved that though 1st defendant had no land in RS.No.40/1, but it was described in the schedule property in Ex.B3 sale deed. As per Ex.B7, the landlord/1st defendant has got only Ac.1.88 cents in RS.Nos.32/1B1 and 32/1A8.
Nevertheless appellant said to have been purchased property for Rs.2,20,000/-
DW2 husband of appellant stated in contra that appellant purchased entire property for Rs.50,000/- only as per Ex.B3 total consideration was paid on three occasions in three instalments, but she contra deposed that entire consideration was paid at a time. As per Ex.B3 though possession was delivered on 08.11.1999, but she contra deposed that possession was delivered on the date of registration of sale deed. There are lot of contradictions and discrepancies in
Ex.B3 sale deed which ultimately show that 2nd defendant obtained sale deed
Ex.B3 from 1st defendant hurried in a collusive manner, so as to defeat earlier sale agreement, as such said sale deed cannot prevail over Ex.A17 executed by 1st defendant in favour of plaintiff at earlier point of time, hence, Ex.A17 is true, 30 valid and binding on the defendants. The fabrication of agreement and encroachment of land by plaintiff is far from truth.
49.Indisputably, there were exchange of notices in between plaintiff and appellant in Ex.A7 legal notice got issued by her, wherein she stated that on 21.03.2000 plaintiff illegally trespassed into part of land situated from the
Western side of total extent. The appellant herein as DW5 deposed in her cross- examination that she do not remember whether there is any reference is agreement regarding the management or not and the thumb impression on
Ex.A17 is not that of her vendor (1st defendant/DW4) and she further deposed that she has not seen Ex.A17 filed before the Trial Court. The police report marked as Ex.B11 also she stated that plaintiff trespassed into her part of land, and in Ex.B15 also she stated that plaintiff raised dispute before panchayat and she was called to panchayat, so she had very much knowledge about Ex.A17 existing in the name of plaintiff and plaintiff is in possession in part of property yet she obtained Ex.B3 sale deed in a hurried manner with incorrect recitals and boundaries, so 1st defendant is not at all bonafide purchaser for valuable consideration. Before filing of this suit the appellant got issued legal notice Ex.A7 stating that plaintiff encroached disputed property and in Ex.B15 police report given by her also she mentioned that plaintiff trespassed the disputed land situated on the Western side of total extent of the land, so by the date of filing of suit the appellant is not in possession and enjoyment of disputed land. It is an admitted fact that Ex.A17 is executed prior to Ex.B3 sale deed obtained by appellant and is proved to be valid. On the other hand, sale deed obtained by 2nd defendant hurriedly with incorrect recitals and boundaries. There are several discrepancies and improbabilities found in the evidence of 2nd defendant and her witness DW2 with regard to the sale consideration, time of payment, delivery of possession, boundaries discussed above, and survey numbers given by plaintiff in the plaint schedule in OS.125/000 is only found to be tallied with the report of 31 the Commissioner. Appellant who filed the suit in OS.218/01 for recovery of possession by amending her original suit filed for permanent injunction appended plaint ‘B’ schedule adopting the same schedule given by plaintiff which reveals that schedule given in Ex.B3 sale deed is totally incorrect, therefore, the sale deed obtained by 2nd defendant subsequent to the plaintiff’s sale agreement pending suit is void to the extent of plaint schedule property and same is hit by doctrine of lis pendens. The 2nd defendant’s claim were weakened by "incorrect boundaries" in her sale deed and contradictory testimony between her and her husband regarding the delivery of the property (Ex.B3). The evidence of plaintiff clinchingly establishes the fact including adangals, tax receipts, and an MRO certificate, all confirming the plaintiff's possession at the time the suit was filed.
The 2nd defendant previously filed petition for temporary injunction in IA.314/2001 against the plaintiff, which was dismissed. The dismissal was upheld by the
District Judge in CMA.04/2001 and subsequently capitulate no relief from the
High Court of A.P. Thus, all aspects clinchingly establish that plaintiff is in possession and enjoyment of disputed land by the date of filing of this suit in
OS.218/01 and appellant is not in actual possession and enjoyment of schedule
property, as such appellant is not entitled for permanent injunction.
50.As could be seen from the record, the plaintiff’s demand for the appellant to produce the sale agreement dated 08.07.1999 executed by 1st defendant in favour of appellant, but appellant did not produce it before the Court who intentionally suppressed the same, as the suit survey number is not referred in the said sale agreement it was not filed before the Trial Court both appellant and her husband DW2 simply passed over that they handed over the agreement to their counsel. If really, it was given to counsel, he would have filed same before
Court, but said agreement preceded by her sale deed has not seen in the light of the day, thus, the appellant who is a subsequent purchaser cannot contend that
Ex.A17 is created with ante-date apart from that 2nd defendant is not entitled to 32 recover the possession of disputed land. Deliberately, there is a bonafide dispute about her right, title and possession in respect of plaint schedule property, she hastily obtained Ex.B3 sale deed from 1st defendant without making any bonafide efforts to resolve this dispute either through mediation or through
Court of law, thus, 2nd defendant is not a bonafide purchaser and that the appellant who is only subsequent purchaser is not entitled to claim any damages from plaintiff, at best she has to recover damages from 1st defendant for conveying defective title to her in respect of part of property covered by her sale deed ie., plaint schedule property.
51.The subsequent possession by plaintiff is not material as plaintiff’s case that he obtained possession subsequent to his agreement and same is not prohibited by law for which he also paid required stamp duty and penalty vide
Ex.A18 to recognize his possession and to validate his agreement. Even if possession is not asked while granting relief of Specific Performance of Contract, the Court can also grant relief of possession also, since possession is not given under Ex.A1, plaintiff was drafted seeking permission also in a casual manner, forgetting subsequent delivery of possession for plaintiff, but it appears to be mistake on the part of counsel in drafting the pleadings for which entire case of plaintiff cannot be brushed aside. The appellant relied on Ex.B1 affidavit given by
PW3 wherein there is compromise letter was referred which was allegedly attested by plaintiff, but said consent letter has not seen the light of the day and that the admission made by PW3 will not bind the plaintiff and those disputes are interse between the cultivating tenant and landlord in ATC is not relevant and binding on plaintiff. The contention of 2nd defendant is that non-disclosure of plaint schedule survey number 32/1A9 is only accidental slip cannot be accepted since in police reports ie., Exs.B11 & B15 also said survey number is absent and non-filing her agreement of sale dated 08.07.1999 preceding her sale deed strengthens, the contention of plaintiff that schedule property is not sold by 1st 33 defendant to 2nd defendant since it was already sold to the plaintiff. In a suit for
Specific Performance of Contract even if possession is not asked the Court has discretion to grant relief of possession also.
52.Plaintiff has not taken plea of adverse possession and there is no necessity to recast the issues and plaintiff need not ask the Court to set-aside the entire sale deed Ex.B3. It is sufficient for him to ask the Court to set-aside the sale deed in respect of his extent of property purchased by him under Ex.A17
Sale Agreement. Plaintiff in this case proved Ex.A17 and proved to be in settled possession of land and has done substantial acts and suffered lot of mental agony and losses in view of obstacles created by 2nd defendant, therefore, he cannot be denied the relief of Specific Performance. It is settled principle of law that normal rule is that relief of Specific Performance shall be granted. The refusal is only exception if it causes prejudice to the other side, but in this case on hand 2nd defendant is not at all possession and enjoyment of the disputed property and plaintiff is only settled position of law and cultivating the same since several years, therefore, no prejudice will cause to the 2nd defendant and relief of
Specific Performance can be granted to plaintiff and suit filed by 2nd defendant for recovery of possession and consequential relief of injunction has to be dismissed. As observed earlier, the Court found that the plaintiff successfully discharged the initial burden of proving the execution of Ex.A17 through consistent testimony from the scribe (PW2) and an attestor (PW3). While the defendants alleged the document was forged or obtained on blank papers under police coercion, they failed to provide evidence for these claims.
53.Significantly, they did not seek an expert opinion from a fingerprint expert to challenge the thumb marks on the document. The 1st defendant failed to submit to cross-examination leading the court to eschew his evidence. His 34 reluctance to contest the plaintiff’s claims directly strengthened the plaintiff’s case. The Court examined whether the plaintiff fulfilled the requirements for
Specific Performance under the Specific Relief Act. The plaintiff demonstrated readiness by issuing Ex.A1 legal notice on 21.04.2000, and promptly filed the suit once it became clear the 1st defendant intended to alienate the property to a third party. The plaintiff took proper steps to protect his rights, including notifying the
Sub-Registrar not to register any documents for the suit property and obtaining an ad-interim injunction against alienation. Ex.B3 Sale Deed was executed by 1st defendant after the plaintiff had already filed his suit in OS.125/2000 and obtained injunction. Therefore, the transaction was hit by the doctrine of lis pendens and was not binding on the plaintiff. The Court found that the defendants 1 and 2 have colluded to defeat the plaintiff's prior agreement. The 2nd defendant failed to prove she was a bonafide purchaser for value without notice because a cloud had already been cast upon the title through the plaintiff’s legal notice. There were several discrepancies regarding the sale consideration and the delivery of possession in the 2nd defendant’s testimony and documents, further undermining the validity of her purchase. The plaintiff was in lawful possession of the property based on the prior agreement and revenue records.
The suit filed by 2nd defendant for mere recovery of possession without seeking a declaration of title is not maintainable.
54.As observed from the material evidence available on entire record, admittedly, initially the plaintiff filed suit in OS.125/2000 before III Additional Civil
Court (Senior Division), Vijayawada for specific performance of agreement of sale dated 04.06.1999 directing the 1st defendant to execute regular Sale Deed in his favour and deliver the plaint schedule property to him. Later, in view of alienation of plaint schedule property (Ac.0.70 cents) to 2nd defendant, 2nd defendant was impleaded as party vide orders dated 06.12.2000 in IA.413/2000.
35
55.Admittedly, initially the plaintiff filed suit in OS.125/2000 before III
Additional Civil Court (Senior Division), Vijayawada for specific performance of
agreement of sale dated 04.06.1999 directing the 1st defendant to execute regular Sale Deed in his favour and deliver the plaint schedule property to him.
Later, in view of alienation of plaint schedule property (Ac.0.70 cents) to 2nd defendant, 2nd defendant was impleaded as party vide orders dated 06.12.2000 in IA.413/2000. As stated above, the Trial Court passed impugned the common
Judgment and decree the suit in OS.125/2000, declaring the Registered Sale
Deed dated 02.05.2000 executed by 1st defendant in favour of 2nd defendant as null and void to the extent of plaint schedule property (Ac.0.70 cents) and same was cancelled and also directed both the defendants to execute Registered Sale
Deed in favour of plaintiff in OS.125/2000 in respect of plaint schedule property (Ac.0.70 cents) within a period of two months. When the Trial Court cancelled the
Registered Sale Deed dated 02.05.2000 executed by 1st defendant in favour of 2nd defendant, again, the Trial Court directing 2nd defendant for execution of
Registered Sale Deed along with 1st defendant in favour of plaintiff in respect of plaint schedule property (Ac.0.70 cents) does not arise.
56.Once the Registered Sale Deed executed 1st defendant in favour of 2nd de- fendant was cancelled by way of Judgment and decree, the 2nd defendant would not have any right in plaint schedule property of Ac.0.70 cents and to execute
Registered Sale Deed in favour of plaintiff along with 1st defendant. Admittedly, the suit in OS.125/2000 was filed on 24.04.2000 and 1st defendant executed
Registered Sale Deed in favour of 2nd defendant on 02.05.2000 in respect of plaint schedule property of Ac.0.70 cents. So, the 1st defendant executed Regis- tered Sale Deed in favour of 2nd defendant during l is pendens of the suit.
36
57.It is well settled law that doctrine of l is pendens does not annul transac- tions during pendency of the suit/ lis. But, merely makes such transfer sub- servient to the rights of the parties to the suit.
58.It is also equally settled law that when the transaction took place during pendency of the suit, the subsequent purchaser even cannot take the plea of bonafide purchaser and section 52 of Transfer of Property Act, 1882 would prevail the section 19 (b) of Specific Relief Act, 1963. It is well settled law that proper form of decree in suit for specific performance is to direct the specific performance of contract between the vendor and vendee (1st defendant and plaintiff) and direct the subsequent transferee to join in connivance so as to pass on the title which rests with him to the plaintiff.
59.So, in the instant case the Trial Court erred in OS.125/2000 directing in one way cancellation of Registered Sale Deed dated 02.05.2000 executed by 1st defendant in favour of 2nd defendant in favour of plaint schedule property of
Ac.0.70 cents and another way, directing the 2nd defendant to execute regular
Sale Deed in favour of plaintiff along with 1st defendant in respect of plaint schedule property of Ac.0.70 cents. So, it appears, the said direction are contra and cannot sail together. Undoubtedly, as discussed above, the plaintiff is entitled for decree of specific performance of agreement of sale dated 04.06.1999 and directions to the defendants 1 and 2 to execute the Registered
Sale Deed in favour of plaintiff of plaint schedule property of Ac.0.70 cents and thereby, the decree granted in OS.125/2000 declaring the Registered Sale Deed
dated 02.05.2000 executed by 1st defendant in favour of 2nd defendant as null
and void to the extent of plaint schedule property of Ac.0.70 cents, and cancellation of said Sale Deed is liable to be set-aside and same is liable to be set-aside. Accordingly point Nos.1 to 4 are answered.
37
60.POINT No.5 :
In the result, appeal in AS.No.05/2011 is dismissed without costs, however in the facts and circumstances of the case, by modifying that the Judgment and
Decree dated 16.10.2010 granted in OS.125/2000 on the file of III Additional
Civil Judge (Senior Division), Vijayawada with costs declaring the Registered
Sale Deed dated 02.05.2000 executed by 1st defendant in favour of 2nd defendant as null and void to the extent of plaint schedule property of Ac.0.70 cents, and cancellation of said Sale Deed by the Trial Court is hereby set-aside. Further, the plaintiff is entitled for relief of Specific Performance of Contract of Agreement of
Sale dated 04.06.1999 vide Ex.A17 and defendants 1 and 2 are directed to execute Registered Sale Deed in favour of plaintiff for the plaint schedule property in OS.125/2000 (Ac.0.70 cents) within period of two months. The plaintiff in OS.125/2000 shall deposit balance of sale consideration into the Court within one month from the date of Judgment.
Both appeals in AS.Nos.05/2011 and 04/2011 are disposed of accordingly.
Judgment is dictated by me partly to the Stenographer Gr.I, transcribed by him, and the remaining part is typed by him directly on computer to my dictation and
pronounced by me in this open Court on this the 17th day of April, 2026.
Sd/-Ms.D.Lakshmi
VIII ADDL.DISTRICT JUDGE
VIJAYAWADA
Appendix of Evidence --- Nil ---
Sd/-Ms.D.Lakshmi
VIII ADDL.DISTRICT JUDGE
VIJAYAWADA
Copy to the III Additional Civil Court (Senior Division), Vijayawada.