IN THE COURT OF PRINCIPAL DISTRICT JUDGE,
KRISHNA AT MACHILIPATNAM
Present: - Sri Guttala Gopi
Principal District Judge,
Krishna, Machilipatnam.
Tuesday, this the 21st day of April, 2026.
A.S.No.42 of 2025
Between:-
1. Maddi Venkata Surya Murali Prasad, S/o. Nancharaiah, aged 63 years, no occupation, R/o. Bantumilli Mandal, Krishna District.
2. Maddi Venkata Sri Vatsava Nancharaiah, S/o. Venkata Surya Murali Prasad, aged 38 years, R/o. Bantumilli, Krishna District.
3. Maddi Tulasi Vithal Charan, S/o. Venkata Surya Murali Prasad, aged 34 years, R/o. Bantumilli, Krishna District.
4. Maddi Sri Rekha Padmini, D/o. Venkata Surya Murali Prasad, aged 30 years, R/o. Bantumilli, Krishna District.
5. Maddi Venkata Veeranjaneya Gupta, S/o. Nancharaiah, aged 59 years, Bantumilli, presently residing at Malleswaram, Bantumilli Mandal, Krishna District.
.... Appellants.
And
Kolla Chandra Sekhara Rao, S/o. Narayana Rao, aged 55 years, R/o. Bantumilli Mandal, Krishna District.
.... Respondent
On appeal against the decree and Judgment, dated 20.11.2024 delivered and passed in OS No.233/2005 on the file of Principal Civil
Judge’s Court (Senior Division), Machilipatnam.
Between:
Kolla Chandra Sekhara Rao ... Plaintiff
And
1. Maddi Venkata Surya Murali Prasad
2. Maddi Venkata Sri Vatsava Nancharaiah
3. Maddi Tulasi Vithal Charan 2 APKR000014232025
4. Maddi Rekha Padmini
5. Maddi Venkata Veeranjaneya Gupta. … Defendants.
This Appeal came on 10.03.2026 before me for final hearing in the presence of Sri GVL Narasimha Rao,Advocate for the Appellants and ofSri J.Kiran Gupta, Advocate for respondent; and upon perusing the material placed on record, upon hearing both sides and the matter having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
This appeal has been filed under section 96 read with order 41
Rule 1 of CPC with a prayer to set aside the decree and Judgment passed by the learned Principal Civil Judge (Senior Division),
Machilipatnam in OS No.233/2005, which was filed for specific performance of agreement of sale and for partition.
2. Appellants herein are the defendants and respondent herein is the plaintiff in the said suit in OS No.233/2005.
3. Parties herein, for the convenience’s sake, hereinafter, will be referred to as they were arrayed in the said suit.
4. Case of the plaintiff, in brief, is as follows:
a) First defendant is the karth of the joint family as well as the guardian of defendant Nos.2 to 4 and all members constituted Hindu Joint Family. First defendant as Kartha of the entire family comprises of defendant Nos.1 to 4 offered to sell the schedule property and the plaintiff agreed to purchase the 3 APKR000014232025 same. First defendant for his manifest benefit and imperative need of benefit of joint family and also to discharge the debts incurred for the educational expenses and prosperity of children, sold the schedule property to the plaintiff for an amount of
Rs.1,10,000/- and executed a non-possessory agreement of sale, dated 09.02.2001.
b) First defendant borrowed an amount of Rs.50,000/- from the plaintiff on 10.04.2000 and executed a promissory note in favour of the plaintiff. First defendant agreed for adjustment of the aforesaid outstanding debt in sale consideration and thus, an amount of Rs.56,250/- is paid under the suit contract of sale,
dated 09.02.2001 and then, the 1st defendant took away the
original promissory note from the plaintiff. Further, the plaintiff paid an amount of Rs.50,000/- on 09.02.2001 at the time of execution of the contract of sale and thus, in total, the 1st defendant received an amount of Rs.1,06,250/- and remaining sale consideration has to be paid by the plaintiff is Rs.3,750/-, which is agreed to be paid on or before 05.02.2002 and obtain sale deed from the 1st defendant and in default of the same, the balance sale consideration shall carry interest @ 1.25 ps.
c) First defendant agreed to execute the sale deed in favour of the plaintiff as and when demanded by the plaintiff and 4 APKR000014232025 thus, the contract of sale. The plaintiff is always ready and willing to pay the balance of sale consideration, in fact, the plaintiff actually offered the same to the 1st defendant, but the 1st defendant postponed to receive the same with an evil motive.
d) The plaintiff being close associate of the 1st defendant is always ready and willing to pay small amount of
Rs.3,750/- to the 1st defendant, but he postponed the same on one pretext or the other and got adequate capacity.
e) Maddi Nancharaiah purchased the schedule property under a registered sale deed, dated 09.01.1957 from Jampani
Mahalakshmi. Said Nancharaiah is the father of the 1st deendant and his two brothers, who have succeeded the property and got 1/3rd undivided share over it. While so, on 25.11.1988, the 1st defendant and his younger brother have purchased undivided 1/3rd share of another brother vide registered sale deed and thereby, the 1st defendant and Maddi Venkata Narayana Gupta, who is the younger brother of the 1st defendant have got ½ share each. The plaintiff herein purchased the undivided half share of the 1st defendant under the suit contract of sale, dated 09.02.2001.
f) The plaintiff is not seeking the relief of specific performance of agreement of sale against the 5th defendant, 5 APKR000014232025 though he was added as proper and necessary party, who is the co-owner of the schedule property.
g) On 05.09.2005, the plaintiff got issued notice to the 1st defendant and also to the defendant Nos.2 to 4. Though the defendants received the notice they neither issued reply nor comply with the demand.
h) During pendency of the suit, the 1st defendant filed registration extract of the gift deed, dated 12.12.2001 executed by him in favour of his 3 children who are defendant Nos.2 to 4 in respect of his undivided ½ share over the schedule property.
Since, the contract of sale is pertaining to ½ share only, it is inevitable, imminent to partition the schedule property in between defendants and no decree can be passed without partitioning the schedule property. Hence, the suit.
5. Case of defendant No.1, in brief is as follows:
a) The plaintiff used to do Chit fund business under the name and style of “Venkata Ramana Chit Funds” at
Bantumilli village. First defendant is one of the subscribers of the said chit fund company for Rs.36,000/- payable at
Rs.1200/- per month for 30 months.
b) Unfortunately, first defendant did not pay chit amount regularly, due to financial troubles. Then, the plaintiff 6 APKR000014232025 came to the house of the 1st defendant with some anti-social elements in the month of November, 2000 and obtained the signatures from this 1st defendant on two blank promissory notes and two filled promissory notes in favour of his mother by name Ratna Mala.
c) The plaintiff got filed two suits in the name of his mother and obtained two decrees against the 1st defendant.
The plaintiff also obtained blank papers affixed with revenue stamps. Basing on the aforesaid promissory notes the plaintiff also created the agreement of sale and filed this present suit.
d) First defendant never borrowed any amount from the plaintiff and never executed any promissory note in favour of the plaintiff. The 1st defendant did not execute the said contract of sale in respect of the schedule property on 09.02.2021 and never received any amount from the plaintiff at any point of time. No notice was received by the 1st defendant.
The plaintiff by managing courier authorities and got created those documents.
e) In the additional written statement, it was averred that he gifted the property to defendant Nos.2 to 4. The date of execution of the gift deed is prior to the alleged suit contract of sale. The plaintiff is a most litigant person in the locality and he 7 APKR000014232025 is having knowledge that the schedule property is undivided.
The plaintiff has no right to seek for partition of the schedule property. The Court fee paid by the plaintiff is not at all sufficient. There is no cause of action for filing this suit and hence, prayed to dismiss the suit with costs.
6. Case of defendant Nos.2 to 4, in brief is as follows:
a) The plaintiff filed the suit in order to harass the defendants. First defendant has no manner of right, title, possession and enjoyment over the schedule property from 12.12.2001.
b) The plaintiff obtained signatures of the 1st defendant on two blank promissory notes and blank papers and filed two suits in the name of his mother and obtained decrees against the 1st defendant. The plaintiff created and fabricated the agreement of sale which was signed by the 1st defendant on blank papers and filed the present suit. First defendant out of love and affection executed the gift deed in their favour in respect of the schedule property and eversince, the defendant Nos.2 to 4 have been in possession and enjoyment of the plaint schedule property without any obstruction from anybody. The defendants have been paying taxes to the Government regularly. Hence, prayed to dismiss 8 APKR000014232025 the suit with costs in the interest of justice.
7. Case of defendant No.5, in brief is as follows:
a) The fifth defendant is not aware about the borrowing of amount by 1st defendant, his intention to sell the schedule property to the plaintiff and receiving of earnest money from the plaintiff.
b) He is having undivided half share in the plaint schedule property and that the 1st defendant has no right to sell the schedule property individually. The facts mentioned in the plaint are not at all aware of this defendant.
c) There is no cause of action for filing this suit and that the plaintiff unnecessarily impleaded in this suit as a party.
The value of the suit is also not correct. Hence, prayed to dismiss the suit, with costs, in the interest of justice.
8. Basing on the above pleadings, the trial Court framed the following issues for trial.
a. Whether the averred execution of non-possessory agreement of sale, dated 09.02.2001 by the first defendant agreeing to sell his undivided 1/3rd share in the suit schedule items 1 to 4 is true ?
b. Whether the sum of Rs.56,250/- is due under a promissory note, dated 10.04.2000 by the 1st defendant was adjusted and the first defendant also paid an amount of Rs.50,000/- as averred ?
9 APKR000014232025 c. Whether the plaintiff forcibly obtained the signatures of the first defendant on blank papers in November, 2020 and created the suit agreement of sale as averred by the defendant Nos.1 to 4 ?
d. Whether the plaintiff was always ready and willing to pay the balance of Rs.3,750/- and the first defendant failed to receive the same and failed to execute a registered sale deed as averred ?
e. Whether the first defendant executed registered gift deed, dated 12.12.2001 in favour of the minor defendant Nos. 2 to 4 vide document No.415/2002 and first defendant had no right, interest and title to execute the suit agreement of sale as averred by the defendant Nos.2 to 4 ?
f. Whether the plaintiff is entitled for a decree of specific performance of contract as prayed for ?
g. Whether the plaintiff is entitled for the alternative relief for refund of Rs.1,06,250/- as prayed for ?
h. For which of the reliefs ?
Additional Issues:
Whether the plaintiff is entitled to seek for the relief of schedule property into two shares and allotment of one share towards the share of the 1st defendant, apart from the relief of specific performance?
9. During the course of trial, PWs 1 and 2 were examined on behalf of the plaintiffs and Exs.A1 to A7 were marked. DWs 1 and 2 were examined and Ex.B1 was marked on behalf of the defendants.
10 APKR000014232025
10. On merits, the trial Court decreed the suit. Aggrieved by the same, the defendants preferred this Appeal. The grounds of appeal, in brief are as follows:
a) The decree and Judgment is erroneous contrary to
Law, weight of evidence and probabilities of the facts of the case.
b) The approach made by the trial court in tackling the crucial issues involved in the matter is not correct.
c) The trial court did not peruse whether the appellants are in possession of the plaint schedule property in joint possession or exclusive possession. The 5th Appellant is residing separately and he is residing in Malleswaram. The trial Court did not give proper opportunity to the appellants to prove that the appellants 1 and 5 lived separately.
d) The trial Court did not peruse whether the plaintiff paid court fee as properly or not.
e) The trial Court failed to peruse and consider the depositions of DW1, DW2 and consider the case of the plaintiff.
f) The trial Court ought to have believed the evidence of the defendant and erred in decreed the suit.
g) The trial Court came into wrong conclusion that the plaintiffs are not in possession and enjoyment of the plaint schedule property.
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h) The trial Court fails to see the para No.15 of the plaint is correct or not.
11. Heard both sides. Perused the material on record.
12. After careful consideration of entire material on record and grounds of appeal, the following points will arise, for consideration of this Appellate Court:
I. Whether the plaintiff is entitled for the relief of specific
performance of the agreement of sale as prayed for ?
II. Whether the plaintiff is entitled to seek for partition of the
plaint schedule properties as prayed for ?
III. Whether the decree and Judgment of the trial Court is
sustainable under Law?
IV. To what point?
POINT No.1:
13. First and foremost, through this suit, the plaintiff is claiming two reliefs: i.e., specific performance of an agreement of sale and for partition of the plaint schedule properties into 2 equal shares and for allotment of the half share of the 1st defendant to the plaintiff. At first, the plaintiff must prove the existence of a valid and enforceable contract between the plaintiff and the 1st defendant.
14. It is the case of the plaintiff that when the 1st defendant offered to sell the schedule property, the plaintiff offered an amount of
Rs.1,10,000/- for which the 1st defendant also agreed. It is the further 12 APKR000014232025 contention of the plaintiff that as the 1st defendant was indebted to the plaintiff for an amount of Rs.56,250/- under a promissory note, which was executed on 10.04.2000 for an amount of Rs.50,000/-, it was agreed between the parties that the outstanding amount of Rs.56,250/- was adjusted as part of the sale consideration. It is the further contention that the plaintiff also paid another amount of Rs.50,000/- to the 1st defendant on the date of the agreement of sale itself, i.e., on 09.02.2021, and thus, in total, the plaintiff paid an amount of
Rs.1,06,250/- and there remains an amount of Rs.3,750/-.
15. In order to prove the above-said contentions, the plaintiff got himself examined as PW1 and filed his chief examination affidavit, which is a replica of the plaint averments, and got marked Exs.A1 to A7.
Document Ex.A1 is the contract of sale, dated 09.02.2021, which shows the debt of the 1st defendant under a promissory note and the amount thereunder adjusted under the agreement as earnest money. Ex.A1 further reveals that on 09.02.2021, the plaintiff paid an amount of
Rs.50,000/- to the 1st defendant. Ex.A1 was executed in the presence of 4 attestors and a scribe by the name of Kosuru Jeji Babu. A perusal of Ex.A1 did not show any automatic cancellation clause and it further reveals that it was agreed by the 1st defendant that as and when demanded by the plaintiff, the sale deed will be executed in favour of the plaintiff.
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16. It is the contention of the 1st defendant that the contract of sale under Ex.A1 is a fabricated one, saying that the plaintiff had a private chit business, the 1st defendant is one of the subscribers of the said chits, and when the 1st defendant failed to pay the chit amounts regularly, in the month of November 2000, the 1st defendant along with antisocial elements came to his house and obtained blank signed promissory notes and filled promissory notes in favour of the mother of the plaintiff; and taking advantage of those documents, filed the present case by creating the contract of sale under Ex.A1.
17. In order to prove the existence of the promissory note debt by the time of the execution of the agreement of sale, the plaintiff got marked a copy of the promissory note under Ex.A2. It shows that the 1st defendant borrowed an amount of Rs.50,000/- on 10.04.2000 from the plaintiff and executed the same in his favour, agreeing to repay the same with interest @ 1.25 paisa per hundred. Ex.A2 further reveals that the amount was borrowed for joint family expenses. It is the contention of the 1st defendant that the said promissory note was obtained in the month of November 2000 in respect of chit transactions. In this connection, PW1 deposed, inter alia, that he did chit business, the 1st defendant was one of the subscribers of the chit, and that he cleared the entire dues of the chit. PW1 categorically deposed that the 1st defendant borrowed the amount only once. PW1 denied a suggestion 14 APKR000014232025 that since the 1st defendant failed to discharge his chit dues, he forcibly obtained the signatures of the 1st defendant on two blank pronotes in his name and two filled pronotes in the name of his mother. Though the 1st defendant contended that the plaintiff filed two suits through his mother and obtained a decree, he failed to show any document with regard to the amount due thereunder and the decree amount in those suits obtained by the mother of the plaintiff. Be that as it may, the mere filing of a suit by the mother of the plaintiff against the 1st defendant cannot be construed to mean that the plaintiff obtained blank signed promissory notes and filled promissory notes in respect of chit transactions. However, the 1st defendant did not file any document with regard to the suits filed by the mother of the plaintiff even to prima facie consider the aspect of obtaining blank signed promissory notes. It was suggested to PW1 that the mother of the plaintiff filed EPs bringing the schedule property for sale. But the said fact was not at all pleaded by the 1st defendant in his written statement. Except for giving suggestions, no positive material was elicited by the 1st defendant to say that the promissory note under Ex.A2 was obtained by force.
18. Contrary to his entire version, the 1st defendant as DW1 deposed that he did not give any police report against the plaintiff and that he also did not file any private complaint or civil suit against the plaintiff. DW1 further categorically admitted that the signatures on 15 APKR000014232025
Exs.A1 and A2 belong to him. The main contention of the 1st defendant itself is that in respect of a chit transaction, the plaintiff obtained blank signed promissory notes and filled promissory notes and, taking advantage of those documents, the plaintiff created the suit agreement of sale under Ex.A1. But in his cross-examination, he categorically deposed that he paid the entire chit amounts to the plaintiff's chit fund company, but he does not know what has been written in his chief examination. So, the above admission coupled with the evidence of
PW1 categorically shows that the 1st defendant paid the entire chit amounts, through which no inference can be drawn that in respect of chit transactions the plaintiff obtained those blank signed promissory notes from the 1st defendant. Therefore, it can be concluded that the amount due under Ex.A2 was adjusted under Ex.A1 and, further, he paid an amount of Rs.50,000/- as it is a round figure. The 1st defendant herein filed a petition with a request to receive additional evidence, i.e., the chit payment receipts to prove that he is one of the chit subscribers, but the evidence on record categorically shows that the plaintiff also admitted the said fact, so the very purpose of filing additional evidence is not warranted.
19. At the first instance, it was suggested to PW1 that the signatures on Ex.A1 are not those of the 1st defendant and again it was suggested that only one signature on each page of Ex.A1 was obtained 16 APKR000014232025 from the 1st defendant. Against all this, DW1 in his cross-examination categorically admitted his signatures on Ex.A1. So, the very case of the 1st defendant that Ex.A1 is a fabrication is a doubtful circumstance, since the amount paid under Ex.A1 is justified with Ex.A2 as discussed above along with the payment of an amount of Rs.50,000/-. In support of the same, the plaintiff examined the 4th attestor as PW2, who deposed that the 1st defendant adjusted his debt under Ex.A2 and received an amount of Rs.50,000/- from the plaintiff and executed the non-possessory agreement of sale in his presence and in the presence of other attestors and the scribe. In the cross-examination also, PW2 stuck to his version and affirmed the execution of Ex.A1 by the 1st defendant in favour of the plaintiff by receiving cash of Rs.50,000/-. He further deposed that Ex.A1 was executed at the house of the 1st defendant at about 5.00 or 6.00 PM, which fact also corroborated with the evidence of PW1. Surprisingly, no suggestion was given to PW2 that no transaction took place in his presence. Particularly, it was mentioned by PW2 in his chief examination affidavit that he is a distant relative of the 1st defendant, but neither a denial nor any substance regarding the said fact was elicited in the cross-examination of PW2. Therefore, based on the above evidence of PWs 1 and 2 coupled with Exs.A1 &
A2, it can effortlessly be held that the 1st defendant executed the non- possessory agreement of sale in favour of the plaintiff.
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20. It is the further contention of the 1st defendant that he did not receive any notice under Ex.A4. But there is no denial of his signature on the courier receipt under Ex.A3. A perusal of the signature on Ex.A3 compared with the admitted signatures of the 1st defendant shows the signatures are identical in nature. Merely making a bald statement that he did not receive notice under Ex.A4 is insufficient; nothing was suggested to PW1 in respect of the notice issued by him and the 1st defendant also did not adduce any probable defense to substantiate that the notice under Ex.A4 was not received by him.
Hence, no inference can be drawn in favour of the 1st defendant that the notice under Ex.A4 was not received by him and, ipso facto, it gives strength to the version of the plaintiff. In order to prove that the plaintiff is ready and willing to perform his part of the contract and demanded the 1st defendant to execute a registered sale deed by receiving the balance of the sale consideration of Rs.3,750/-, the notice was issued.
Having pleaded that the sale agreement is a fabricated one even after receipt of notice or even after receiving summons from the Hon’ble
Court, the 1st defendant did not show any bona fides either by giving a complaint to the police or placing the matter before the village elders. In connection with the balance of sale consideration, PW1 deposed that the 1st defendant is his distant relative and, believing him, he got Ex.A1 agreement of sale executed. PW1 further deposed that he has been 18 APKR000014232025 demanding the 1st defendant to execute the sale deed since the day after the suit agreement itself. He further categorically deposed that he had no disputes with the 1st defendant as of the date of the suit agreement. There is absolutely nothing on record to say that there was no demand made by the plaintiff to execute the registered sale deed.
Nothing was placed before this Court in order to prove that the plaintiff is not ready and willing to perform his part of the contract. Therefore, the fact that no action was taken by the 1st defendant even after receipt of notice under Ex.A4 shows the conduct of the 1st defendant.
21. In the light of the evidence and circumstances detailed above, this Court is of the considered view that the contention of the 1st defendant that Ex.A1 is a fabricated document does not inspire confidence and is, therefore, not believed by this Court. On the contrary, the admissions made by the 1st defendant as DW1, coupled with the oral and documentary evidence of the plaintiff, clearly indicates that the 1st defendant executed Ex.A1 in favour of the plaintiff after adjusting the outstanding amount under Ex.A2 and after receiving an amount of
Rs.50,000/- from the plaintiff. In other words, it can be held that the plaintiff successfully proved the existence of a valid and enforceable contract of sale in his favour; the mandatory ingredient of his readiness and willingness to perform his part of the contract under Section 16(c) of the Specific Relief Act with the remaining sale consideration amount; 19 APKR000014232025 and therefore, the plaintiff is entitled to the relief of specific performance of the agreement of sale against the 1st defendant. Accordingly, this point is answered.
Point No. 2:
22. During the pendency of the suit, the plaintiff amended the plaint and sought the relief of partition since the agreement of sale under Ex.A1 was executed for the undivided half share of the 1st defendant. From the pleadings of both parties, the admitted facts are that:
a) Originally, the schedule property belonged to one Maddi
Nancharaiah, who purchased the same from one Jampani
Mahalakshmi under a registered sale deed. Said Nancharaiah had three sons: i.e., the 1st defendant, Maddi Venkata
Subrahmanyeswara Rao, and the 5th defendant herein.
b) After the death of said Nancharaiah, the above three sons succeeded to the schedule property and had a 1/3rd share each. Later, on 25.11.1988, the 1st defendant and the 5th defendant purchased the 1/3rd share of the said Venkata
Subrahmanyam under a registered sale deed, dated 25.11.1988, under Ex.A6.
c) As of the date of Ex.A1, defendants Nos. 1 and 5 have a half share each.
20 APKR000014232025
23. It is the core contention of the plaintiff that the 1st defendant, being the Manager/Kartha of the joint family, borrowed the amount under Ex.A2 and also entered into the non-possessory contract of sale under Ex.A1. In Point No. 1, this Court already came to the conclusion that the 1st defendant executed the documents under Ex.A1 and A2. Coming to the point of the Kartha/Manager, as per the admitted facts, the 1st defendant was the elder one at the time of the execution of Ex.A1. It is the contention of the 1st defendant that he never acted as
Kartha of his joint family. The 5th defendant contended that he does not know whether his brother is a Kartha of his family or not. The power of a
Kartha to execute documents without permission from coparceners is strictly tied to the welfare and necessity of the family. In the case on hand, the Ex.A2 debt was borrowed for joint family necessities, and in document Ex.A1, there is a mention that “the 1st defendant, being a
Kartha of his joint family, for the welfare of his family, in order to discharge the debts obtained for the purpose of the family, for the welfare of minor children and for development of his family business only,” put the schedule property up for sale. The 5th defendant as DW2 deposed that he has a half share in the schedule property and further deposed that the entire schedule property is in the possession and enjoyment of the 1st defendant only and he is taking Rs.3,000/- towards rent for his share. So, it is clear that the 1st defendant has been 21 APKR000014232025 managing the joint family properties. There is no specific denial from a coparcener that the 1st defendant is not the Kartha/Manager of the joint family properties. Therefore, from the above circumstances, it can safely be held that the 1st defendant, being the Kartha of his family, executed
Ex.A1 in respect of his undivided half share of the schedule property.
24. The major ground pleaded by the 1st defendant in this appeal is that the plaintiff is a 3rd party and cannot seek the relief of partition of joint family properties. At this juncture, it is appropriate to extract Section 22 of the Act.
Section 22. Power to grant relief for possession, partition, refund
of earnest money, etc.
(1) Notwithstanding anything to the contrary contained in the
Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for—
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of sub- 22 APKR000014232025 section (1) shall be without prejudice to its powers to award compensation under section 21.
25. The plaintiff must specifically ask for the relief of possession as established in Babu Lal v. Hazari Lal Kishori Lal (1982); if the property is undivided, the plaintiff must also include a prayer for partition and separate possession to ensure the decree is executable.
The scope of sub-section (1) of Section 22 of the Act is that it lists
additional reliefs that can be sought by a person suing for specific
performance. In light of the above, it is very clear that the plaintiff can seek the relief of partition for want of his rightful possession. Of course, in the case on hand, Ex.A1 is a non-possessory agreement of sale.
However, the plaintiff, by proving the agreement, has effectively stepped into the shoes of the 1st defendant. The 'non-possessory' nature of the initial agreement does not restrict this Court’s power to grant the relief of partition.
26. As discussed above, the 1st defendant and 5th defendant have an equal share in the property. At a belated stage, the 1st defendant contended that the schedule property was already partitioned between them and, hence, the relief of partition is not maintainable.
First of all, as per the evidence on record, though DW5 deposed that the schedule property was partitioned between them, no document is filed in that regard to show their separate possessions. Nevertheless, the petition filed by the 1st defendant in this appeal filing additional 23 APKR000014232025 evidence, i.e., tax receipts, is not admissible proof of separate possession or proof of partition. The 5th defendant as DW2 categorically deposed that the entire property is in the hands of the 1st defendant only and he has been collecting rent from the 1st defendant towards his share. Therefore, the above circumstances clinchingly prove that no partition happened between the 1st defendant and the 5th defendant. It is the other contention of the 1st defendant that since they are not in joint and constructive possession of the property, the court fee of Rs.200/- paid by the plaintiff is not sustainable and, hence, prayed to dismiss the suit. From the foregoing discussion, it is clear that the 1st defendant and 5th defendant have an equal share and that the entire property is in the possession of the 1st defendant. Since the relief of specific performance is accepted by this Court, the plaintiff stands in the position of the 1st defendant and, by virtue of the same, it can be said that the plaintiff is in constructive possession of the property. Therefore, the above contention of the 1st defendant has no legs to stand on.
28. It is the contention of defendants Nos. 2 to 4 that on 12.12.2001, the 1st defendant gifted his undivided half share to them and, since then, they have been in possession and enjoyment of the same. Ex.A1 was executed on 09.02.2001 and the gift deed under
Ex.B1 was executed after the execution of the non-possessory agreement of sale. So automatically, the subsequent transaction under 24 APKR000014232025
Ex.B1 will in no way affect the plaintiff in claiming specific performance of the agreement of sale and it will not bind the plaintiff in any manner.
Moreover, a perusal of Ex.A1 reveals that the 1st defendant along with his minor sons executed the document and, by the time of execution of the document, defendants Nos. 2 to 4 were minors. Of course, the schedule property is not the ancestral property of the 1st defendant. The first defendant and 5th defendant purchased the share of their brother and have a half share each. However, the 1st defendant intended to sell the property to meet the educational expenses of their children. Ex.A1 further reveals that since there are 4 parties, 3 of whom are minor children of the 1st defendant, the signature of the 1st defendant only was obtained in the agreement of sale. Even otherwise, the plaintiff intends to purchase the undivided 1/2 share in the schedule property, which defendants 2 to 4 have nothing to do with. Therefore, taking into consideration all the facts and circumstances of the case, the plaintiff is entitled to the relief of partition of the plaint schedule properties into 2 equal shares and for separate possession of the share of the 1st defendant after the execution of the registered sale deed by the 1st defendant. Accordingly, this point is answered.
POINT No. 3
29. In view of the findings of this Court in point Nos. 1 and 2 and upon careful appreciation of the pleadings and evidence on record, 25 APKR000014232025 this Court finds that the plaintiff has established his case and that the defendants neither disproved the case of the plaintiffs nor proved their own contentions with any cogent evidence. Hence, the suit deserves to be decreed. The trial court rightly appreciated the evidence on record and correctly decided the suit, and hence, interference by this Appellate
Court is not required in this matter. Accordingly, Point No. 3 is answered.
POINT No. 4:
30. In the result, this Appeal in A.S.No.42/2025 is dismissed, without costs.
Typed to my dictation by the Stenographer Gr.III of this Court, corrected and pronounced by me in open Court this the 21st day of April, 2026.
Principal District Judge,
Krishna at Machilipatnam.
APPENDIX OF EVIDENCE
NIL
Principal District Judge,
Krishna at Machilipatnam. Copy to:
The Principal Civil Judge (Senior Division), Machilipatnam. along with lower court record.