1
IN THE COURT OF THE I-ADDL.SENOR CIVIL JUDGE
(FTC) AT MAHABUBNAGAR
Thursday, the 5th day of July, 2018.
Present:- Smt. G.Prathibha Devi,
Senior Civil Judge, Shadnagar,
FAC: I-Addl.Senior Civil Judge (FTC),
Mahabubnagar
O.S. No. 47 of 2005
Between:-
1. Smt. C.Bhagya Lakshmi W/o Bhaghwanth Rao, age: 49 years, occu:Agril and House-hold, R/o H.No. 3-9-83, Gandhinagar, Mahabubnagar proper and Mandal.
2. C.R.Bhagwanth Rao S/o late C.Raghava Rao, age: 56 years, occu: Legal Practitioner, R/o H. No.3-9-83, Gandhinagar, Mahabubnagar proper and District.
….. Plaintiffs.
And.
1. Smt. Kavali Bheemamma W/o Lakshmaiah, died represented by LRs Defendant No.4 ( who is already on record) and defendant No.7.
2. Kavali Balaiah S/o Lakshmaiah, age: 28 years, occu: Agril, R/o Mudireddypally H/o Rajapur village, Balanagar mandal, Mahabubnagar District ( died L.R the defendant No.1).
3. Ashanna Goud S/o not known, age: 48 years, occu:Agril, R/o Mudireddypally H/o Rajapur village, Balanagar mandal.
4. Jangam Gouramma W/o Satyanarayana, age: 35 years, occu;House-hold, R/o Kethireddypally village, Balanagar mandal, Mahabubnagar District.
5. Ch.Om Prakash S/o late Kavali Balaiah, age: 12 years, Minor, under the guardianship of his natural mother K. Radhamma W/o late Kavali Balaiah, age: 28 years, occu:house-hold, R/o Nawabpet vlg and mandal, Mahabubnagar District.
6. K.Radhamma W/o late Kavali Balaiah, ageA: 28 years, occu: House-hold, R/o Nawabpet village and mandal, Mahabubnagar District.
7. Smt. Sathyamma W/o Kavali Venkataiah, age: 50 years, occu: Agril, R/o Thimmajipet vlg and mandal, Mahabubnagar District.
( The defendant No.7 is added as per orders in I.A.42/2015 dt. 19- 6-2016 ).
.. ...Defendants.
***
This suit came up for final hearing before me on 21-6-2018 in the presence of Sri K.Pratap Kumar, Advocate for the Plaintiffs and of Sri
V.Veerabrahma Chary, Advocate, for the defendants No.3,4, 5,6 & 8 and 2 the defendant No.1 died and the suit against D-2 abated due to his death and the defendant No.7 was set exparte and the matter having stood over for consideration till this day, the Court delivered the following:-
J U D G M E N T
This is a suit filed by the plaintiffs against the defendants for specific performance of contract and the defendants No.4 to 8 may be directed to execute the sale deed in respect of suit schedule property.
2. Brief averments of the plaint are: The plaintiff No.1 is the wife of plaintiff No.2, they constitute Hindu Undivided Joint Family. The defendant No.1 is the mother of the defendant No.2. The defendant
No.3 is the prospective purchaser of the suit lands. There is no relationship between the plaintiffs and defendants and D-3 is stranger to the family of D-1 and D-2.
The defendants 1 and 2 are owners of the lands bearing
Sy.No.585/aa1 extent 0-23 guntas, 584/a1 extent Ac.1-02 gts, 585/a2 extent Ac.1-01 gt, 585/a2 extent 24 guntas, 584/e1 extent Ac.1-21 gts, total Ac.4-31 gts situated at Mudireddypally h/o Rajapur village,
Balanagar mandal. The above lands are situated adjacent to the land of the plaintiffs.
On their personal necessity, the D-1 and D-2 intended to sell the property to the plaintiffs. Accordingly, they approached the plaintiffs.
They also expressed their willingness to purchase the suit lands on 4-5- 2000 and entered into an agreement of sale. The defendants 1 and 2 jointly executed an agreement of sale for a consideration of Rs.
1,13,500/- for the suit lands for the performance of the marriage of D-2 and received Rs.25,500/- and acknowledged the same and it was 3 scribed by D-2 and the D1 and D2 delivered the pattedar pass book to the plaintiffs.
In pursuance of the agreement of sale dt. 4-5-2000, the D1 and
D2 have again executed another agreement of sale dated 4-7- 2001, admitting the receipt of part of the sale consideration of
Rs.25,000/- and it was further agreed by D1 and D2 that they received
Rs.50,500/- and also they have received remaining part of the sale consideration at the time of the registered sale deed and on 4-7-2001, the D1 and D2 have delivered the possession of the suit lands to the plaintiffs and now the plaintiffs are in possession and enjoyment of the suit lands. The D1 and D2 have orally agreed to demarcate the lands after survey.
After that, the D1 and D2 along with one K.Rangaiah have approached the plaintiffs and demanded more money for the suit lands than earlier agreed, a panchayat was held and in the said panchayat, it was decided by the elders for the payment of Rs.1,15,000/- excluding the amount paid earlier, so the total sale consideration for the suit lands comes to Rs. 1,65,000/-. It was further agreed that on 25.10.2003 that the D1 and D2 will get the demarcated the lands and survey of the lands after fixation of the boundaries for the suit lands and the same was reduced into writing and the D1 and D2 have to receive the remaining part of the sale consideration of Rs. 1,15,000/- on the date of execution of the regd.sale deed on 12-11-2003. The plaintiffs have already paid Rs.65,000/- and also only Rs. 1-00 lakh is balance for execution of registered sale deed.
The defendant No.1 is the mother of defendant No.4. The defendant No.1 had entered into an agreement of sale with the plaintiffs and D-4 has notice of sale and fully aware of the sale of suit lands in favour of the plaintiffs and no bonafide intention on the part of D-1 in 4 executing the gift deed. The D-1 died on 26-4-2015 and the D4 and D7 are her legal heirs.
The plaintiff No.2 has gone to the agricultural lands on 26-5- 2005. The D-3 was present in the suit land and enquiry, D-3 revealed that he intends to purchase the suit lands and the plaintiff No.2 told
D-3 that plaintiffs have already purchased the suit lands for
Rs.1,65,000/- and also paid Rs. 65,500/- as part of sale consideration and D1 and D2 also executed agreement of sale. The plaintiffs have come to know on 29-5-2005 that D1 and D2 trying to alienate the suit lands by way of registration in favour of D-3 by not honouring the agreement of sale and failed to fullfil the terms and conditions of the agreement of sale entered with the plaintiffs. Hence, the plaintiffs constrained to file the present suit for specific performance.
3. The defendant No.1 died, the case against D-2 is abated due to his death, the defendant No.7 was set exparte.
4. The defendants No.1 and 2 filed written statement and D5 adopted the written statement of D1 and D2. Brief averments of the written statement of D1 and D2 are as follows:
The suit of the plaintiffs is not maintainable. It is true that the plaintiffs 1 and 2 are wife and husband. It is true that the D1 is the mother of D-2 and they are the owners of the suit schedule property. It is denied that the suit lands are adjacent to the plaintiffs land. It is denied that they approached the plaintiffs in order to sell the suit lands to the plaintiffs and entered into an agreement of sale on 4-5-2000 to sell the property for Rs.25,500/-. The plaintiffs are most influential persons in Mahabubnagar town and with the influence of police, D1 and
D2 were called to the C.I of police, Jadcherla and by force taken their signatures on the white papers and insisted the defendants to sell the 5 lands in favour of plaintiffs and also forcibly taken away the pass books from the defendants.
The contention of the plaintiffs is contradictory, they themselves says that on 4-5-2000 they purchased the lands and executed a document, again says that on 4-7-2001 they purchased the same lands, which shows there is suspicion on the execution of sale deeds. The defendants never sold the lands to the plaintiffs and also never delivered the possession to the plaintiffs. The plaintiffs have not filed any document to show that suit lands are in their possession. If at all the plaintiffs have purchased the suit lands, why they kept quiet for a period of 4 years and they never made any effort for taking further steps and the sale deeds are forged and created for the purpose of filing the suit. The defendants never promised to demarcate the suit lands and it is only created story. The suit is not maintainable and it is liable to be dismissed and hence, prays the court to dismiss the suit.
5. The defendant No.4 filed written statement. Brief averments of the written statement are: It is true that D1 and D2 are the owners. It is denied that they entered into an agreement of sale with the plaintiffs on 4-7-2000. It is denied that D1 and D2 delivered the possession to the plaintiffs on 4-7-2001. It is denied that the plaintiffs have already paid
Rs. 65,000/- to the D1 and 2. The D-1 executed regd.gift deed in favour of this defendant on 6.10.2004 and one K.Rangaiah pattedar also executed regd.gift deed on 13-9-2004 in favour of this defendant and the D-4 is the pattedar of above lands. Hence, the suit is not maintainable and hence, prays the court to dismiss the suit.
6. The defendants No.5 and 6 filed written statement. Brief averments of the written statement are: It is true that the defendants Nos. 1 and 2 are owners of the suit schedule lands. It is incorrect that the suit lands 6 are adjacent to the plaintiffs’ land. It is denied that D1 and D2 approached the plaintiffs in order to sell the suit lands on 4-5-2000 and entered into agreement of sale to sell the property for Rs.1,13,500/- and received Rs. 25,500/- and acknowledged the same.
The plaintiffs are most influenced persons in Mahabubnagar town and that and with the influence of Jadcherla police, the plaintiff
No.2 called D1 and D2 to the C.I. of police, Jadcherla and forcibly taken away the pass books from the defendants and at that time, they approached the Superintendent of police, Mahabubnagar, but no action is taken by him.
It is denied that in pursuance of agreement of sale dated 4- 5-2000, the D1 and D2 have again executed another agreement of sale on 4-7-2001 admitting the receipt of part of sale consideration of
Rs.25,000/-. It is also denied that they have admitted totally received
Rs.50,500/- and it is denied that they agreed to receive balance sale consideration at the time of execution of registered sale deed. The defendants never received any amount from the plaintiffs and never executed any document in favour of the plaintiffs. The above documents are barred by limitation and they cannot be enforced against the defendants.
It is denied that on 4-7-2001, the D1 and D2 have delivered the possession of suit lands to the plaintiff. The defendants never sold the lands to the plaintiffs and as on the date, the suit lands are in their possession and enjoyment without any interruption. It is specifically denied that D1 and D2 have to receive the remaining part of sale consideration of Rs. 1,15,000/- on the date of execution of registered sale deed on 12-11-2003. Since the defendants never disposed the suit lands to the plaintiff, the question of payment and demarcation does not arise and fulfillment of terms and conditions does not arise.
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Originally the defendant No.1 is exclusive owner of the land bearing Sy.No. 585 extent 23 guntas and 584 extent Ac.1-02 gts and the said land was already gifted to D-4 through regd.gift deed dt.6-10-2004 and also one Kavali Rangaiah pattedar of the land bearing Sy.No. 583 extent 0-19 gts and Sy.No. 584 extent Ac. 1-21 gts land and the said
Kavali Rangaiah also executed a regd.gift deed dt. 13-9-2004 in favour of the D-4.
The plaintiffs have created the sale deeds in order to grab the suit lands and the alleged transaction is not binding on the D-4. The plaintiffs have no cause of action to file the suit against D-4. The defendants never sold the lands to the plaintiffs 1 and 2 and they never received any amount from them. The suit is barred by limitation and hence, the suit is not maintainable and hence prays the court to dismiss the suit.
7.The defendant No.8 filed written statement. Brief averments of the written statement are: It is true that D-1 is the mother of D-4 and the D4 is the exclusive owner of the land in view of the regd.gift deed executed by D-1 and the plaintiffs have no right to purchase above lands from D1 and D2.The alleged agreements of sale are created one to grab the property of the defendants. There is no cause of action to file the suit.
It is true that D-1 died on 26-4-2015. The D4 is the exclusive owner of the suit property. It is denied that D-6 has illegally executed regd. Sale deed on 11-8-2016 in favour D-8. It is denied that D-8 is having knowledge about pendency of above suit and intentionally created this transaction and it hit by the principles of lis-pendency. The sale deeds does disclose the delivery of suit lands to the plaintiffs. After death of D-2, D-5 and D6 have no sufficient source of income. Due to 8 the harassment and torture of the plaintiffs, D-2 committed suicide. Due to unavoidable circumstances, D-6 is forced to execute sale deed in favour of D-8 to clear the loans of D-2 and this defendant is bonafide purchaser and there is no prohibitory orders restraining this defendant to purchase property and the name of D-8 is implemented in the revenue records. The plaintiffs have not asked for cancellation of sale deeds in favour of D-8. No relief can be granted against this defendant who is not party to the agreements of sale and the suit is barred by limitation and hence, prays the court to dismiss the suit.
8.The defendant No.1 filed additional written statement: Brief averments of the written statement are: The plaintiffs have no right to ask any relief against the defendant No.4. The defendant No.2 died on 1-2-2006 by leaving behind him Smt. K.Radhamma (wife), Ch. Om
Prakash 12 years son, but the plaintiffs not brought their names on record even though they got knowledge of the same, hence the suit is bad for non-joinder of necessary parties and hence, the suit is liable to be dismissed.
9. Basing on the above pleadings, the following issues are settled for trial:
1. Whether the plaintiffs are entitled for the specific performance of contract as prayed for?
2. Whether the suit is barred by limitation?
3. To what relief?
Additional Issues framed on 20-7-2010:-
Addl.Issue No.1: Whether the agreement for sale dated 4-5-2000 is true and valid? Addl.Issue No.2: Whether the agreement dated 4-7- 2001 is true and valid? Addl.Issue No.3: Whether the agreement dated 25.10.2003 is true and valid?
Additional issues framed on 23-10-2009:-
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Addl.Issue No.1: Whether the gift deed in favour of D-4 executed by D-1 is collusive one as alleged by the plaintiffs?
Addl.Issue No.2: Whether K.Radhamma W/o Balaiah ( D-2 since died ) and Ch.Om Prakash S/o Balaiah are necessary parties as legal heirs of deceased- D2 and whether the suit is bad for non- joinder of said persons as alleged by D-1?
Addl.Issue No.3: Whether the court fee paid is not sufficient as alleged by D-4?
Addl.Issue No.4:- Whether the plaintiffs are entitled to execute sale deed along with D-1 as prayed for by them?
Additional issues framed on 14-2-2018.
Addl. Issue No.1: Whether the defendant No.6 executed registered sale deed doc.No.8556/2016 dt. 11-8-2016 in favour of the defendant No.8 and delivered possession?
Addl.Issue No.2: Whether the defendant No.8 is a bonafide purchaser?
10. On behalf of the plaintiffs, PWs 1 and 2 are examined and
Exs.A1 to A8 are marked. On behalf of the defendants, DWs.1 and 2 are examined and Exs.B1 to B13 are marked.
11. Heard arguments on both sides.
12.ISSUEs NO.1 and Addl.Issues No.1 to 3 dt. 20-7-2010:-
There is no dispute that the defendants 1 and 2 are the owners of the lands in the suit schedule properties to the total extent of
Ac.4-31 gts situated at Mudireddypally h/o Rajapur village of Balanagar
Mandal of Mahabubnagar District. The plaintiffs 1 and 2 are wife and husband and the 2nd plaintiff examined as PW-1. According to him, the first-plaintiff is his wife and as G.P.A holder of his wife and as Manager of 10 the joint family, he deposed in this case. The learned defendants counsel argued that PW-1 is not competent to depose on behalf of the first-plaintiff as the alleged agreements of sale relied by the plaintiffs are executed in favour of the first-plaintiff and PW-1 is no way concerned with the agreements of sale and he is not proper person to depose in respect of the alleged agreements and further argued that no
G.P.A. marked on behalf of PW-1 to show that the first-plaintiff gave
G.P.A to PW-1, but deposed on her behalf.
On the other hand, the learned plaintiffs counsel argued that
PW-1 is no other than the husband of the first-plaintiff and he is also party to the suit as second-plaintiff and entire transaction is looked after by PW1 being husband and he got knowledge of the suit transaction and he is competent to depose as witness. There is no dispute about the relationship between PW-1 and plaintiff No.1 and PW- 1 is not attestor to any agreements and according to his own evidence, he is the person present when the transaction took place between the plaintiff No.1 and defendants 1 and 2, hence we can take the evidence of PW-1 even though in his cross-examination he deposed that he is GPA holder of the plaintiff No.1, in fact, no G.P.A. is marked on behalf of the plaintiffs, but he being the second-plaintiff to the suit, he is competent to depose on behalf of the first-plaintiff also, hence there is no merit in the argument advanced by the defendants counsel that PW-1 is not competent to depose as witness.
13.PW1 got marked Exs.A1 to A3 agreements of sales. Ex.A1 is
dated 4.5.2000 and Ex.A2 is dated 4.7.2001 and Ex.A3 is dated
25.10.2003. On perusal of Ex.A1, it is written on white paper addressing to the plaintiff No.1 by the defendants 1 and 2 that they are having land in Sy.No. 584/A to an extent of Ac.1-02 gts, in Sy.No.585/A to an extent of Ac.0-23 guntas, in Sy.No.584/A to an extent of Ac.2-01 gunta, in 11
Sy.No.585/6 to an extent of Ac.0-24 guntas, in Sy.No.,584/E to an extent of Ac.1-21 guntas, total Ac.4-31 guntas and they sold the above property for Rs.1,13,500/- and also they received Rs. 13,500/- for the marriage expenses on the alleged date i.e. on 4.5.2000. Since it is written on white paper, stamp duty is collected to a tune of Rs.1100/- and there are no witnesses to the alleged transaction. Admittedly, the defendants 1 and 2 are no more and if we consider Ex.A1, the plaintiff
No.1 is due to a tune of Rs.88,000/- to the defendants 1 and 2. But, there is no time frame fixed as per alleged Ex.A1, but the recitals only shows if the plaintiff No.1 paid Rs.88,000/-, the defendants 1 and 2 agreed to register the sale deed in favour of the plaintiff No.1 and the second alleged agreement is dated 4.7.2001, but the plaintiffs failed to explain what happened in between 4.5.2000 to 4.7.2001 as the plaintiffs have not issued any legal notice to the defendants prior to filing of this suit and also after execution of Exs.A1 to A3, showing their readiness and willingness to perform their part of contract, which is very much essential to prove their case in a suit for specific performance of contract as contemplated U/Sec. 16© of the Specific Relief Act.
14.On perusal of Ex.A2 dt.4-7-2001 recited on 100 rupee stamp paper referring Ex.A1 about selling the schedule property for
Rs. 1,13,500/- and delivered possession and the recitals of Ex.A2 shows as if the defendants 1 and 2 received Rs.50,500/- and this amount is explained within brackets that Rs. 13,500/- at the time of marriage and also Rs. 12,000/- on 4-5-2000, Rs.5,000/- in the year 2001 January, Rs.
20,000/- on 4-7-2001. So, on calculating the said amounts, it is
Rs.50,500/-, but there is an ambiguity in respect of Exs.A1 and A2, because whether the property is delivered on the alleged date of Ex.A1 or on the alleged date of Ex.A2. The recitals of Ex.A2 shows that the 12 defendants 1 and 2 delivered their property to the plaintiff No.1, but the recitals of Ex.A1 are silent in respect of delivery of possession by the defendants 1 and 2 to the plaintiff No.1, hence there is merit in the arguments of the learned defendants counsel that the recitals of Exs.A1 and A2 are inconsistent. Admittedly, there are no witnesses to Ex.A1, but one witness Narayana Reddy is seen on Ex.A2 over-leaf. The son of
Narayana Reddy is examined as PW2 on behalf of the plaintiffs to identify the signature of his father as according to the plaintiffs,
Narayana Reddy is no more, but in view of the cross-examination of PW- 2, he only identified the signature of his father on Exs.A2, A3 & A4 and according to PW-2, his father not informed him about the alleged documents Exs.A2 to A4, so the evidence of PW-2 cannot be taken into consideration for mere identification of the signature of Narayana Reddy on Exs.A2 to A4 by PW2 is not sufficient and his evidence did not prove the alleged transaction between the plaintiff No.1 and the defendants
No. 1 and 2.
15.Further, as per Ex.A3 another agreement of sale dt.
25.10.03, there are five witnesses apart from the alleged Narayana
Reddy, but the plaintiffs have not taken any steps to examine the alleged witnesses who were present and it is not their case that all the alleged witnesses who signed on Ex.A3 are no more. Even though in the description Ex.A3 is marked as agreement of sale dt. 25.10.2003, but on perusal of the contents, there is meeting held between the first-plaintiff and the alleged witnesses who signed as witnesses 1 to 5 apart from
Narayana Reddy and there is reference of Ex.A2 in Ex.A3, but there is no reference of Ex.A1 dated 4.5.2000 in Ex.A3 as rightly argued by the learned defendants counsel and the recitals further shows that the plaintiff No.1 has to pay Rs. 1,15,000/- by 12.11.2003 and come forward for registration and also the defendants 1 and 2 get survey of 13 the said land, that is also written on the white paper. Even though the stamp duty is collected, but due to non-examination of the attesting witnesses 1 to 5, it is some what fatal to the case of the plaintiffs.
Ex.A4 is another undertaking letter alleged to have been given by the defendants 1 and 2 dated 18.12.2003 that they received
Rs. 15,000/- and also they failed to get the map of their land as agreed, but what happened in between 25.10.2003 to 18.12.2003, because there is a specific recital by 12-11-2003 that this first-plaintiff has to pay
Rs. 1,15,000/- and there is no notice issued by the first-plaintiff to the defendants 1 and 2 after lapse of 12-11-2003 showing her readiness and willingness to pay Rs. 1,15,000/- balance sale consideration, but after lapse of 12.11.2003, on 18.12.2003 they have obtained letter written on white paper alleged to have been executed by the defendants 1 and 2 referring Ex.A3. There is one witness by name Sekhar Reddy to Ex.A4 letter, but he is not examined and Ex.A4 is written on white paper and stamp duty is collected by the court treating it as receipt for Rs.
15,000/-.
In Exs.A1 and A2, no time frame is fixed, but in Ex.A3 time frame is fixed that the plaintiff No.1 has to pay balance of Rs.1,15,000/- by 12-11-2003, but the plaintiffs failed to explain why they kept quiet even after lapse of 12-11-2003 and waited till 18-12-2003 as per Ex.A4 receipt. After execution of Ex.A3 till Exs.A4 and A5, the plaintiffs did not issued any legal notice that the defendants are not surveying the property as agreed under Ex.A4, but they have paid Rs.15,000/- under
Exs.A4 and A5 which is not at all believable, hence considering Ex.A3, we can say that the suit is barred by limitation. Mere mentioning in
Ex.A4 that the defendants 1 and 2 throwing the blame on themselves for not obtaining the map as agreed in Ex.A3, but why the plaintiffs had not issued any legal notice is not explained. Mere getting explanation 14 from the defendants 1 and 2 after expiry of the period i.e. 12-11-2003 will not give the cause of action on 18-12-2003 and also separate receipt is marked as Ex.A5 dated 18.12.2003. In Ex.A4 also it is recited that they received Rs. 15,000/-, but there are no witnesses to Ex.A5, but there are two witnesses to Ex.A4. It seems Exs.A4 and A5 are obtained one and the same in respect of the receipt of Rs. 15,000/- by the defendants 1 and 2, but the plaintiff No.1 has obtained two documents for the same transaction, because the alleged witnesses Sekhar Reddy and Narayan Reddy have also signed on Ex.A5. It is not the specific case of the plaintiffs that they paid Rs. 15,000/- to the defendants 1 and 2 on two spells on the same day i.e. on 18-12-2003. Hence, all the documents i.e. Exs.A1, A3 to A5 which are recited on white papers creates some doubt and the burden is heavy on the plaintiffs to prove their case as according to them, they are in possession and enjoyment of the property, but except Exs.A1 to A8, no documents are filed on behalf of the plaintiffs to prove the possession over the suit schedule properties. Furthermore, the D1 and D2 are no more and there is no possibility to confront the signatures of D1 and D2 alleged to have been taken on Exs.A1, A3 to A5. The defendants are strongly disputing the signatures of D1 and D2, but the plaintiffs did not take steps to prove the same, hence the contents of Exs.A1, A3 to A5 are not proved. When the defendants are disputing the documents, it is the duty of the plaintiffs to prove the documents as they are suit documents for obtaining decree.
16.On the other hand, the defendant No.4 who is examined as
DW-1 got marked Exs.B1 to B13 i.e. R.O.Rs and pahanies for the Fasli 1420 to 1424 showing the name of DW-1. It is also an admitted fact that the defendants 1 and 2 executed registered gift deed in favour of the defendant No.4, which is marked as Ex.A8. The learned plaintiffs counsel 15 argued that in view of Exs.A1 to A4, no evidentiary value can be given to Ex.A8 regd.gift deed, but I am not satisfied with the argument of the learned plaintiffs counsel in this aspect, Exs.A1 to A4 are unregistered documents, even though in a suit for specific performance of contract, the agreements are not compulsorily registrable documents, but all the documents are recited on white papers alleged to have been scribed by the defendant No.2 according to PW-1, further Ex.A8 is the registered gift deed dated 16.10.2004 executed by the defendants in favour of the defendant No.4 who is their daughter and the defendant No.4’s name is also got implemented in the R.O.R and pahanies. Ex.A8 is executed by
D1 and D2 prior to filing of this suit itself. The court can draw a presumption in respect of the registered deeds compared to the alleged documents Exs.A1, A3 and A4 alleged to have been written on white papers.
Furthermore, prior to filing of this suit in the year 2005, the defendants 1 and 2 executed the gift deed in the year 2004 itself. Till filing of the suit in the year 2005, the plaintiffs have not issued any legal notice to the defendants but they directly filed suit and in Ex.A5 receipt also dt.18.12.2003, no time limit is fixed, but it is only recited that the defendants 1 and 2 received Rs. 15,000/-. But after Exs.A4 and A5, why the plaintiffs kept quiet till filing of the suit, there is no explanation.
17. The learned plaintiffs counsel further argued that Exs.A6 and A7 original pattedar pass books of the defendants 1 and 2 are given to the plaintiff No.1 at the time of Ex.A1, but the recitals of Ex.A1 are silent that the defendants 1 and 2 handedover Exs.A6 and A7 at the time of execution of Ex.A1. No doubt, the defendants have to explain why the original pattedar pass books are in the possession of the plaintiffs when the defendants 1 and 2 not executed Exs.A1 to A4.
According to DW-1, PW-1 is influential person practicing as an Advocate 16 and on his demand, the defendants 1 and 2 were called to the police station and PW-1 forcibly obtained the signatures of the defendants 1 and 2 on white papers and also by force obtained Exs.A6 and A7 as rightly suggested to DW-1 by the learned plaintiffs counsel that for not issuing any legal notice to the plaintiffs for forcibly obtaining Exs.A6 and
A7 and also not reporting the matter to the higher officials. According to
DW-1, they reported the matter to the Superintendent of Police, but he did not take any action. Except the oral evidence of DW-1, absolutely there is no evidence that the defendants approached the police complaining against the plaintiffs, but that does not give cause of action for the plaintiff to proceed against the defendants. It is the plaintiffs who approached the court, they must approach the court with clean hands and initial burden will be always on the plaintiffs to prove their case and the plaintiffs will not permit to rely on the weaknesses of the defendants case and the defendants are permitted by law to take any number of pleas which are inconsistent to each, but the plea is not available to the plaintiffs as per law.
18. According to PW-1, they are always ready and willing to satisfy their part of contract, but except the oral evidence of PW-1, there is no evidence on record substantiating the same. He further deposed that the gift deed is a collusive one and nominal document and in order to extract money from the defendants 1 and 2 created, but as already discussed, it is the regd.gift deed, so the court can consider that document and also presumption can be drawn as the plaintiffs failed to establish that they are always ready and willing to perform their part of contract.
19.As seen from the cross-examination of PW-1 by the learned defendants counsel, he admitted that they did not issued any legal 17 notice when the defendants 1 and 2 failed to execute the registered document. According to PW-1, the defendant No.2 brought the stamp paper under Ex.A2 agreement and he further admitted that the stamp papers are available at Jadcherla. On perusal of Ex.A2, the stamp paper is purchased in the name of defendant No.2 from one Mohd. Nasurullah
Khan, Stamp Vendor, District Court Complex, Mahabubnagar, but admittedly, the defendants 1 and 2 are residents of Mudireddypally village of Balanagar mandal, hence the learned defendants counsel argued that PW-1 is the person behind to obtain Ex.A2 in the name of the defendant No.2. He further admitted that Ex.A1 recitals does not show the property delivered to the plaintiffs.
He further admitted that after Ex.A2 also, they did not issued any legal notice and it is also suggested that the boundaries of the schedule property are not mentioned in Exs.A1 to A4. PW-1 further admitted that the defendant No.4 is not party to the documents Exs.A1 to A4. But according to PW-1, the defendant No.4 is brought on record since the property is gifted to the defendant No.4 and on perusal of
Ex.A8 gift deed in favour of the defendant No.4, the defendant No.1 himself had executed gift deed to an extent of Ac.1-02 gts in Sy.No. 584 and Ac.0-23 guntas in Sy.No.585, but there is still some property remaining, hence there are suggestions to PW-1 by the learned defendants counsel that one Kavali Rangaiah executed a gift deed to an extent of Ac.1-21 gts in Sy.No.584 in favour of the defendant No.4, but the said Kavali Rangaiah is not made as party. But according to PW-1, without getting land measured, the possession had been delivered to them, but absolutely there is no material on record the plaintiffs were given in possession of the property in view of Exs.B1 to B13 documents through DW-1. The learned plaintiffs counsel argued that the schedule property is situated adjacent to the land belongs to the plaintiffs, the 18 plaintiffs came forward to purchase the schedule land when the defendants 1 and 2 came forward to sell the same.
20.As seen from the cross-examination of DW-1 by the learned plaintiffs counsel, she stated that till date they are cultivating the suit schedule lands and she raised maize crop. She denied the suggestion that the defendants 1 and 2 received advance amount and also suggested that the plaintiffs laid fencing to the land and they were in possession, but she denied the same. There are suggestions about defendant No.8 and according to DW-1, the defendant No.8 is not in possession of the suit land and herself and defendant No.6 are in possession of the suit land and she pleaded ignorance about defendant
No.6 sold suit land, so it is suggested that the D-6 executed sale deed in favour of D-8 with consent of DW-1, but she denied the same.
21.The defendant No.8 is examined as DW-2, but no documents are marked. It is the contention of the plaintiffs that pending suit DW2 purchased property from D-6, hence he was made as party. According to
DW-1, due to the harassment of the plaintiffs pending suit, D-2 committed suicide. DW-2 is cross-examined by the learned plaintiffs counsel, he admitted that the 2nd plaintiff is having land near the suit schedule land and according to DW-2, he enquired through D-6 and later purchased, but according to DWs-2, D-2 promised to resolve the dispute and he further admitted that he did not made any paper publication
before purchase of the property, there are suggestions to DW-2,
because DW-2 levelled allegations against the 2nd plaintiff and DW-2 is cross-examined to that effect and elicited DW-2 got no personal knowledge about the 2nd plaintiff.
In view of the evidence of DW-2, we can safely come to the conclusion that pending suit D-6 sold part of the property to D-8. DW-2 19 also admitted the said fact. The learned plaintiffs counsel argued that the transaction between D-6 and D-8 is hit by Sec. 52 of the Transfer of
Property Act. No doubt, if any sale transaction is made pending suit, it is definitely hit by Sec. 52 of the T.P.Act, but Sec.52 of T.P. Act will come into rescue of the plaintiffs once the plaintiffs discharged their burden that the plaintiff No.1 is the agreement holder of the suit schedule property and she got right to seek specific performance of the alleged agreements of sale alleged to have been executed by D1 and D2.
Admittedly, D-1 is illiterate, only her thumb impression can been seen on Exs.A1 to A4 documents. It is the specific case of the plaintiffs that D- 2 himself scribed all those documents Ex.A1 to A4. One of the attestor
Narayana Reddy’s son PW-2 is examined, his evidence cannot be taken into consideration, because he do not know the alleged transaction of
Exs.A1 to A4. On perusal of the pahani Ex.B3 pertains to 2005-06, the names of D1 and D2 are reflected and on perusal of Exs.B4 to B6 pahanies, the names of the defendants 1 and 2 are reflected. If really the plaintiffs are in possession as alleged by them by the date of agreement Ex.A1 dated 4-5-2000, the names of the plaintiff No.1 will be recorded. In Exs.B7 and B8, the name of D-4 is reflected, in Exs.B9 to
B15, the name of D-6 is reflected. In Exs.B16 to B28, the name of D-4 is reflected evidencing that D-4 is cultivating the schedule property and also pattedar and admittedly, the D-1 and Kavali Rangaiah executed gift deed in favour of D-1.
On perusal of original plaint, the suit is filed in the year 2005. The plaintiffs have not deposited the balance sale consideration into court and also they did not offer to pay balance sale consideration to the defendants showing their readiness and willingness to perform their part of contract and no notice is issued to the defendants calling the defendants to perform their part of contract, but PW1 only deposed 20 that he noticed D-3 in the schedule property and came to know that D- 1 and D-2 are trying to alienate the suit property and D-3 intends to purchase and immediately filed the suit, but the suit against D-3 is dismissed, so the alleged cause of action that the plaintiffs noticed D-3 on 26.5.2005 prior to filing of the suit and informed to D-3 that the first- plaintiff entered into agreement of sale with D1 and D2 is falsified as D- 3 is no way connected with the case. Admittedly, by the date of filing of the suit itself, the defendant No.1 and Kavali Rangaiah executed regd.
gift deed in respect of the suit schedule property in favour of D-4. Only after the death of D1 and D2, the legal heirs were brought on record seeking amendment, but according to Sec. 16 of the Specific Relief Act, “ Personal bars to relief”:- Specific performance of a contract cannot be enforced in favour of a person:- © ‘ who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant’.
In this particular case, there is no readiness and willingness shown on the part of the first-plaintiff and the recitals of Ex.A3 shows that the first-plaintiff has to obtain the regd.sale deed by 28-11-2003, but there is no explanation for waiting till 18-12-2003 and there are no exchange of notices between the parties. In the absence of readiness and willingness to pay balance sale consideration, the court can exercise its discretion and refuse the relief of specific performance sought by the plaintiffs as it is only a discretionary relief, vested with the court, the conduct of the plaintiffs must be specific that they approached the court with clean hands entitling them to grant discretionary relief. Admittedly, the persons who executed the alleged documents Exs.A1 to A4 are no more and their legal heirs were brought on record, the regd.gift deed is 21 in existence in favour of D-4 by the date of filing of the suit itself, it is one of the strong circumstances to deny the discretionary relief to the plaintiffs, further without entering into witness box, D1 and D2 died, hence without confronting Exs.A1 to A5 to D1 and D2, mere marking of the documents through PW-1 is not sufficient and we can say that the recitals are not proved.
22.The readiness and willingness must be there continuously from the date of agreement to the date of enforcement in a claim for specific performance of agreement, but the alleged first agreement is
dated 4.5.2000 and present suit is filed in the year 2005, but what
happened in between the years, what are the steps taken by the plaintiffs to get registered sale deed and waited till 2005 even after
Ex.A4 which is dated 18.12.2003, there is no explanation. Hence, the plaintiffs are not entitled for the discretionary relief. Hence, these issues are answered accordingly against the plaintiffs.
23. Addl.Issues No.2 and 3 dated 23-10-2009
In respect of other additional issues framed on 23.10.2009, the defendant No.6 is added as party and with regard to the court fee paid is insufficient are not necessary to answer, subsequently
D-6 who is legal heir of D-2 is added as party and also the court fee paid is correct and the court fee is paid on the total sale consideration amount is sufficient. Hence, these issues are answered accordingly.
24. Addl. Issue No.1 and 4 dated 23-10-2009:- 23-10-2009
The plaintiffs have pleaded that the gift deed which is marked as Ex.A8 executed by D-1 in favour of the D-4 is collusive, but prior to filing of this suit, Ex.A8 is executed and it is the registered document.
Apart from that Kavali Rangaiah executed gift deed in favour of the D-4, but that gift deed has not marked on either side and he is also not 22 made as party. Admittedly, all the agreements are relied by the plaintiffs are written on white papers and it creates some suspicion in respect of those documents and the alleged payments of the amounts to D1 and
D2 and there are no separate receipts to the alleged payments which are referred in Ex.A2, except Exs.A4 and A5, which is of separate transaction, hence, these issues are answered in favour of D-4 holding that the gift deed executed in favour of D-4 is not collusive one and the plaintiffs are not entitled to seek direction against D-4 to execute the sale deed along with other defendants.
25. In view of the decision reported in 2018 (2) ALT 91 between
H. Anwar Khan Vs. Smt.G. Ravi Kumari and others:
“ Specific Relief Act, 1963, Section 16(1) -
Readiness and willingness – Execution of Ex.A1 agreement of sale by the defendant in favour of the plaintiff on 09-02- 1988, stipulating time for parties till 18.5.1988 is absolutely not in controversy “ “ Pleading of readiness – As per provisions of
Section 16 of the Specific Relief Act, the person asking for enforcement of contract of sale is required not only to plead but also to prove his/her part of contract.” “ Equitable relief - It is also a settled proposition of law that the relief of specific performance is an equitable relief and need not be granted for mere asking”
In the present case on hand, Ex.A3 agreement is dated 25- 10-2003, as it is the contention of the plaintiffs, Exs.A1 to A3 are inter- connected, there is time limit stipulated that the plaintiff No.1 has to pay the balance of Rs. 1,15,000/- by 12-11-2003, but the time fixed 12- 11-2003 is elapsed, because Ex.A4 receipt is dated 18.12.2003. Even though time is not the essence of the contract, but the plaintiffs have to show their bonafides when D1 and D2 levelled allegations in their 23 written statement with regard to the police cases and in the presence of police, the plaintiffs obtained some papers and also taken their title deeds. In between 12.11.2003 and 18.12.2003, there is a gap of period i.e. one month six days, but the plaintiff No.1 not addressed any notice or deposited the amount to show his readiness and willingness and also it is brought by record that there is no notice issued by the plaintiffs to the defendants showing their readiness and willingness and no amount is deposited even at the time of filing of the suit to show their bonafides.
Mere defendants subsequently received the amount under Ex.A4 is not sufficient to shift the burden on the defendants, hence the above cited case facts are squarely applies to the present case on hand.
26. Issue No.3:- “ To what relief?”
In the result, the suit claim is not proved and the suit is dismissed with costs.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the open court on this the 5th day of July, 2018.
I Addl.Senior Civil Judge, (FTC), Mahabubnagar.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the plaintiffs: For the defendants:
PW.1 C.R. Bhagwanth RaoDW1 Jangam Gouramma PW.2.Kasi ReddyDW2 P.Prabhakar Reddy
Exhibits Marked on behalf of the Plaintiffs
Ex.A1: The Agreement of Sale dt.04-05-2000.
Ex.A2: The Agreement of sale dt.04-07-2001.
Ex.A3: The Agreement dt,.25-10-2003.
Ex.A4: The Agreement dt.18-12-03.
Ex.A5: Receipt dt.18-12-03.
24
Ex.A6 : The pattadar pass book of the suit lands of the def.No.1
Ex.A7 : The pattadar pass book of the def.No.2.
Ex.A8 : The cc of Reg. Gift deed dt.06-10-04.
Exhibits Marked on behalf of the Defendants
Ex.B1: CC of old ROR
Ex.B2. CC of new ROR
Ex.B3. CC of pahani for the year 2005-06.
Ex.B4. CC of pahani for the year 2006-07
Ex.B5 CC of pahani for the year 2007-08
Ex.B6 CC of pahani for the year 2007-08
Ex.B7. CC of pahani for the year 2009-10
Ex.B8 CC of pahani for the year 2010-11
Ex.B9 CC of ROR
Ex.B10 CC of pahani for the year 1422
Ex.B11 CC of pahani for the year 1423
Ex.B12 CC of pahani for the year 1424
Ex.B13 CC of pahani for the year 1422
Ex.B14 CC of pahani for the year 1423
Ex.B15 CC of pahani for the year 1424
Ex.B16 CC of pahani for the year 1422
Ex.B17 CC of pahani for the year 1423
Ex.B18 CC of pahani for the year 1424
Ex.B19 CC of pahani for the year 1422
Ex.B20 CC of pahani for the year 1423
Ex.B21 CC of pahani for the year 1424
Ex.B22 CC of ROR
Ex.B23 CC of pahani for the year 1422
Ex.B24 CC of pahani for the year 1423
Ex.B25 CC of pahani for the year 1424
Ex.B26 CC of pahani for the year 1422
Ex.B27 CC of pahani for the year 1423
Ex.B28 CC of pahani for the year 1424
I Addl.Senior Civil Judge, 25 (FTC), Mahabubnagar.