1
IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION) ,
CHILAKALURIPET
Present: Sri K.Narendra Reddy,
Principal Civil Judge, (Junior Division),
Chilakaluripet
Friday, this the 27th day of June, 2025
O.S. No. 107 of 2015.
Between:-
Bethamcharla China Narasaiah, S/o Subbaiah, age 60 years, D.No.4-28, Lingamguntia Village, Chilakaturinet Mandal, Guntur District. . . . . Plaintiff.
And
Bethamcharla Appaiah S/o. Subbaiah, age 65 years, D.No. 37- 111, Purushottapatnam, Chilakaluripet . . .Defendant This suit came before me on 19.6.2025 for final hearing in the presence of Sri M.Upendra Rao, Advocate for plaintiff and
Sri D.Chitti Babu, Advocate for defendant and upon perusing the material papers on record, having stood over for consideration till this day, this court delivered the following;
J U D G M E N T
1. The Plaintiff and the Defendant are full-blood siblings.
It is the Plaintiff's case that, on 9th May 1991, the Defendant, being the absolute owner of the suit schedule property, entered into a transaction for its sale in favour of the Plaintiff for a lawful consideration of
Rs.40,000/-, which was duly paid in full in the presence of attesting 2 witnesses namely Bethamcharla nageswara Rao , Bethamcharla
Koteswara rao , Bethamcarla Rama Rao and Paparaju Venkata Narasaish and on the same day, the Defendant having received the full consideration amount , delivered the physical possession of the said property to the Plaintiff and executed a Possessory Agreement of Sale, which was duly scribed and attested. Ever since, the Plaintiff said to have been in continuous, uninterrupted, and peaceful possession of the property, exercising rights of ownership therein. The Plaintiff further avers in the plaint that, in the year 1999, the Revenue Authorities, having recognized such possession, recorded his name in the revenue records and issued Pattadar Passbook and revenue Title Deed reflecting his title over both the suit property .
It is further submitted by the plaintiff that he acting in assertion of his ownership, also mortgaged the subject property along with other lands to Andhra Bank, Chilakaluripet Branch, for the purpose of availing agricultural loans and A Registered Mortgage Deed was executed to that effect and accordingly the said Revenue Title Deed was deposited with the bank as a security for obtaining the said loans from the bank .The
Plaintiff contends that although the Defendant had consistently assured him of executing a Registered Sale Deed, he refrained from demanding the same owing to the trust reposed in their faternal relationship.
However, the Defendant, taking advantage of the rise in land value and the demise of the attesting witnesses, attempted to repudiate the earlier 3 transaction and with that oblique motive , the Defendant got issued a
Registered Legal Notice dated 22.07.2014 containing unfounded and malicious assertions, prompting the Plaintiff to issue a reply on 4.08.2014. Despite attempts by community elders to amicably resolve the matter but in vain . Inspite of the assurances given before the elders, the Defendant, on 12.04.2015, is alleged to have attempted to unlawfully interfere with the Plaintiff’s possession, in collusion with certain Revenue personnel. On that the Plaintiff had to issue a notice to the Revenue Department and the Defendant on 22.04.2015 .
Subsequently, the Defendant published a Public Notice dated 27.06.2015, purporting to sell the suit property to a third party namely
Kambhampati Daniel as if the suit schedule property is sought to be purchased by him on the strength of an agreement of sale obtained from the defendant . In response to the same , the Plaintiff also published a counter public notice on 03.07.2015 and got issued a
Registered Legal Notice on 06.07.2015 to the counsel for the said kambhampati Daniel and also send a copy to the defendant calling upon the Defendant to appear at the Sub-Registrar’s Office at Chilakaluripet on 31.07.2015 for the execution of the sale deed. The Defendant, having received the said notice, failed to appear, thereby evidencing a clear and deliberate refusal to fulfill his obligations due under the said Possessory
Agreement of Sale dated 09.05.1991, as such , the plaintiff has to approach the court for initiating legal action through this suit .
4
The Plaintiff further submits that he has at all times been ready and willing to perform his part of the contract. The present suit is within the period of limitation prescribed under Article 54 of the Limitation Act, 1963, as the cause of action arose from the Defendant’s express repudiation, discernible from the conjoint reading of the notice dated 22.07.2014 and reply notice dated 04.08.2014 got issued on behalf of the plaintiff and failure of the defendant to appear on 31.07.2015
before the sub-registrar at chilakaluripet despite service of notice to him
on 06.07.2015 .
2.In view of the ongoing threats by the Defendant to dispossess the
Plaintiff and fabricate conveyance documents in favour of third parties, the Plaintiff prays for a decree of Specific Performance of the Possessory
Agreement of Sale dated 09.05.1991 and for a Permanent Injunction, restraining the Defendant, his agents, representatives, and successors from interfering with the Plaintiff’s peaceful possession and enjoyment of the suit schedule property.
The Defendant, in his written statement , while admitting that he is the full-blood elder brother of the Plaintiff and the absolute owner of the suit schedule property, but categorically denies all other allegations contained in the plaint. He asserts that the suit has been instituted on the basis of falsehood and fabricated facts in an attempt to wrongfully acquire the property and gain unlawful advantage. The Defendant unequivocally denies having ever entered into any agreement of sale 5 with the Plaintiff on 09.05.1991 or at any other time, nor did he receive any sale consideration nor had delivered possession of the subject matter property as alleged by the plaintiff . He states that no privity of contract exists between them and further contends that the alleged possessory agreement is a forged and concocted document created by the Plaintiff and his associates with an intent to defraud the defendant and gain unlawfully .
Further , it is the contention of the Defendant that the Plaintiff, harboring an interest in acquiring the suit property due to its appreciating value and strategic location adjoining a main road, exerted continuous pressure on him through mediators and brokers to sell the land. However, upon his consistent refusal, the Plaintiff devised a scheme to fabricate an agreement of sale using the assistance of close relatives who falsely posed as attestors and scribe. The Defendant submits that no such consideration ever passed and that the Plaintiff never made any bona fide efforts to enforce the so-called agreement until the present suit was filed. The Defendant further asserts that he had issued a legal notice to the Plaintiff as early as 2013 upon his first attempt to interfere with the property, to which a reply was received containing false and baseless averments.
Further , the Defendant claims that the suit schedule property was leased to the Plaintiff’s son, Betamcharla Koteswara Rao, who has been cultivating the same for the past decade as a tenant. The Defendant also 6 contends that the entries in the Revenue Records, including the issuance of Pattadar Pass Book and Title Deed in the name of the Plaintiff, are the result of manipulation and collusion with the Village Revenue Officer of
Kavuru Village. These documents, he avers, are sham and do not confer any legal rights upon the Plaintiff. Moreover . a complaint has been lodged before the Revenue Divisional Officer, Narasaraopet, challenging the validity of such revenue entries, and an enquiry is pending .
In light of the above, the Defendant prays that the Hon’ble Court may be pleased to dismiss the suit, which is devoid of merit and founded upon fraudulent and forged documents, with exemplary costs.
4. On the strength of above pleadings the following issues are settled for trial :
1. Whether the agreement of sale deed dt.9.5.1991 is true, supported by consideration and binding upon the defendant ?
2. Whether the plaintiff is always ready and willing to perform his part of contract ?
3. Whether the plaintiff is entitled to restrain the defendant for permanent injunction as prayed for ?
4. Whether the plaintiff is entitled for the discretionary relief of specific performance as prayed for ?
5. To what relief ?
5.During course of trial, the plaintiff was examined himself as PW.1 and he got marked Ex.A1 to A24 documents. Besides that one P.Chinna 7
Ellamma was examined as PW.2 and further one B.Poleswara Rao was examined as PW.3 besides examining One B.Pedda Narasimha Rao was examined as PW.4 on behalf of the plaintiff. On the other hand the defendant was examined himself as DW.1 and no documents were marked on his behalf.
6.Before going to the appreciation of evidence, I feel it appropriate on my part to have glance on the evidence adduced by both sides. The synaptic stock of the evidence of both the plaintiff side witnesses and defendant side witnesses is as follows :
Evidence adduced by the both sides :
7. At first , in order to prove his claim for Specific Performance of possessory agreement of sale dated 09.05.1991 , the plaintiff himself examined as PW.1 and gave his evidence in the form of his chief affidavit by reiterating the contents of the plaint.
8.Thus , the Plaintiff / Pw.1 deposed in his evidence affidavit by stating that the Defendant is his full-blood elder brother, who agreed to sell his property which is the suit schedule property to the Plaintiff for a valid consideration of ₹40,000/- on 9.05.1991. Accordingly , the entire sale consideration was paid in the presence of witnesses, and physical possession was delivered to the Plaintiff on the same day. An Agreement of Sale with delivery of possession was executed, scribed by Paparaju
Venkata Narasaiah and attested by Bethamcharla Nageswara Rao and
Bethamcharla Koteswara Rao, all of whom are now deceased.
8
9.The Plaintiff further states through his chief affidavit that since the date of the Agreement, he has been in peaceful possession and enjoyment of the property as its absolute owner. In pursuance of the same , the Revenue Department mutated the records in his name as pattadar and enjoyer and issued the Revenue Title Deed and Pattadar
Pass Book in the year 1999. He further availed crop loans from Andhra
Bank by mortgaging this land and executed a registered mortgage deed in the year 2012.
10.Despite repeated promises, the Defendant failed to execute a registered sale deed, assuring that such execution was unnecessary as the property was already in the Plaintiff’s name in revenue records.
However, after a rise in land value, the Defendant changed his stance and got issued a legal notice dated 22-07-2014 to him falsely denying the said sale transaction , for which the Plaintiff issued a detailed reply notice on 04-08-2014 and with the intervention of elders, attempted to resolve the dispute amicably but in vain .
11.Nevertheless, the Defendant continued his hostile conduct and even attempted to disturb the Plaintiff’s possession on 12-04-2015. In response, the Plaintiff issued a cautionary notice to the Revenue authorities on 22.04.2015 by marking a copy to the counsel for the defendant. But, the Defendant published a public notice in Eenadu Daily
News paper on 27-06-2015 through one Mr. Kambhampati Daniel, claiming the property was being sold to him. The Plaintiff countered this 9 by issuing another public notice on 03-07-2015 and a registered notice
dated 06-07-2015 to the counsel for the said Kambhampati Daniel and
also send a copy of the same to the defendant by calling upon the
Defendant to execute the sale deed on 31-07-2015, which the Defendant ignored.
12.Thus , the Plaintiff asserts his continuous readiness and willingness to obtain the registered sale deed at his cost. But Defendant's actions stem from mala fide intent, taking advantage of the death of the original attestors, and with an eye on the escalated land value. The Plaintiff further states in his chief affidavit that the present suit is squarely within the prescribed period of limitation under Article 54 of the
Limitation Act, 1963 as the Defendant’s unequivocal refusal to perform the contract can be reasonably inferred from a cumulative reading of the
Registered Legal Notice dated 22.07.2014 issued on behalf of the
Defendant, the Reply Notice dated 04.08.2014 issued on behalf of the
Plaintiff, and most notably, the Defendant’s willful abstention from appearing before the Sub-Registrar’s Office at Chilakaluripet on 31.07.2015, despite due and effective service of the Registered Notice
dated 06.07.2015 issued by the Plaintiff.
13.Further , the plaintiff / Pw.1 exhibited relevant documentary evidence which was marked as Exs A1 to A 24 documents to prove his 10 claim . Of them , Ex.A1 is the possessory agreement of sale dated 09- 05-1991, Ex.A2 is the Agandal for the fasily year 1423. dt. 28.4.2014 ,
Ex.A3 is the 1-B ROR namuna, dL.3.7.2015 counter singed by VRO ,
Ex.A4 is the Cist receipt in respect of payments made on 14.1.2014 ,
Ex.A5 is the Cist receipt in respect of Payment made on 22.6.2014 ,
Ex.A6 is the Letter given by Chief Manager, Andhra Bank, dt.28.4.2015 ,
Ex.A7 is the Office copy of legal notice dt.22.4.2015 Ex.A7 to A14 are the various notices and legal communications held in between the parties with regard to the subject matter property . Ex. A15 is the certified copy of registered mortgage deed dated 26-06-2012 under vide document
No.4781/2012 executed by the plaintiff in favour of the Andhra Bank,
Chilakaluripet , Ex.A16 is the Original registered sale deed dated 13-05- 1991 under vide document No. 1037/1991 executed by the defendant and his sons in favour of the plaintiff, Ex.A-17 is the original registered sale deed dated 13-08-1992 under vide document No. 2157/1992 executed by Bethamcherla Koteswara Rao and his minor sons in favour of the plaintiff , Ex A-18 is the public notice dated 27-06-2015 got published in the Guntur District Edition of Eenadu telugu daily paper on behalf of the defendant. Ex.A-19 is the public notice dated 03-07-2015 got published in the Guntur District Edition of Eenadu telugu daily paper on behalf of the plaintiff , Ex.A-20 is the postal receipts , Ex.A-21 is the acknowledgment from Medarametla Nageswara Rao. Advocate,
Narasaraopet dated 10-07-2015 , Ex.A-22 is the acknowledgment dated 11 08-07-2015 from one Kambhampati Daniel and Ex.A-23 is the acknowledgment of the defendant dated 09-07-2015 Ex.A24 is the
Certified copy of Registered sale deed dt.8.5.2000.
14.In his cross examination the plaintiff / Pw.1 categorically admitted that the defendant is his elder brother and they are three siblings and there was a prior partition among brothers much before 1990, under which properties were separately allotted to them. On that the defendant had migrated to Purushothapatnam and the plaintiff cultivated lands at Lingamguntla. In the course of his cross-examination he further admitted that he had previously purchased Ac.1.00 of land from the defendant through a registered sale deed dated 05.05.1991, but no prior agreement existed for that sale. He accepted that the registered sale deed was executed on the same day as the sale and no advance agreement preceded it.
15.In his cross-examination when Ex.A1 was confronted to him , he maintained his stand that the said possessory agreement of sale dated 09.05.1991 is valid and he has always paid taxes on the land to the revenue authorities . However, when the defendant’s counsel put forth some suggestions to the witness , the same were denied by PW-1 . He denied the suggestion that the agreement of sale covered by Ex.A1 is fabricated and forged, with no consideration actually passed. To the suggestion that the plaintiff has manipulated revenue records and 12 obtained fraudulent documents under Ex.A2 to Ex.A5 and further colluded with bank officials to obtain crop loans under false representations and mortgaged the said property , for which he denied the same . He also denied the suggestion that the claim is barred by limitation and the plaintiff is not entitled to specific performance. To the suggestion that the plaintiff never approached the Sub-Registrar, nor has any proof of tendering payment under Ex.A1 , for which he denied the same . Further he declained to accept the suggestion that the present suit was filed with the malicious intent to grab the defendant's valuable land, particularly after a significant rise in land value.
16.In a bid to prove Ex.A1 possessory agreement of sale , the plaintiff produced the evidence of the daughter of the scribe as the scribe of the said document namely Paparaju Venkata Narasaiah is no more and died . Thus , PW-2, Paparaju Chinna Ellamma, aged 47, a resident of
Chilakaluripet and a postal agent by profession, was examined as witness on behalf of the plaintiff. She deposed that her late father,
Paparaju Venkata Narasaiah, who expired in March 2010 due to age- related ailments, served as a Village Administrative Officer during his lifetime. She affirmed that she is well-acquainted with her father's handwriting and signature, having regularly observed them during his lifetime. During the course of her evidence before the court upon being shown Ex.A1, the original possessory agreement of sale dated 09-05- 1991, the witness identified the handwriting and the signature of her 13 father as the scribe of the said document.
17.During cross-examination by Sri Shaik Moulali, counsel for the defendants, PW-2 admitted that She acknowledged that she was a minor in 1991, the year when Ex.A1 was executed. She stated that her father died approximately 12 years ago and she has not seen his signature in the past 12 years. She also admitted that she did not produce any contemporaneous documents bearing her father's signature to compare with the signature on Ex.A1. However, she added that she was pursuing graduation at the relevant time and therefore was familiar with her father’s signature. She denied the suggestion that she was falsely deposing at the behest of the plaintiff.
18.Further, the plaintiff also got examined the son of one of the attesting witness namely Late Bethamcharla Koteswara rao as PW-3, by applying summons through the court Under Order 16 Rule 1 CPC .The said witness i.e., Bethamcharla Poleswara Rao, aged 49 years, a
Software Engineer residing in California, USA, appeared in response to a summons issued by the Court in I.A. No. 1091/2020 under Order XVI
Rule 1 CPC.
19.He stated that he is currently employed with Ancestry. com in San
Francisco, USA. He further deposed that the second attesting witness to
Ex.A1 i.e., the Possessory Agreement of Sale dated 09-05-1991 is his father, Bethamcharla Koteswara Rao. PW-3 affirmed that he is familiar 14 with his father’s handwriting and signature and could identify them on
Ex.A1.
20.During cross-examination, PW-3 admitted that he did not produce any contemporaneous documents bearing his father’s signature to support his identification. He acknowledged a fact that the first attesting witness, Bethamcharla Nageswara Rao, is his senior paternal uncle. He agreed that both the plaintiff and defendant are siblings and the attestors and the parties in the suit are all family members. However,
PW-3 denied all suggestions put forth by the defense that there were strained relations between his father and the defendant thereby his deposition was motivated or intended to favor the plaintiff. He also denied he was giving false evidence to assist the plaintiff.
21.The plaintiff further produced the evidence of one of the boundary land owner and relative of both parties as PW-4, namely Bethamcharla
Pedda Narasimha Rao, he affirmed that he is closely related to both parties, as their paternal grandfathers were brothers. He stated in his evidence affidavit that on 09-05-1991, the defendant sold approximately Ac.3.00 cents of land to the plaintiff for a consideration of
Rs.40,000, and delivered physical possession. The transaction was formalized through a Possessory Agreement of Sale covered under
Ex.A1. He further deposed that he owns land immediately to the southern boundary of the suit schedule property and therefore, had personal knowledge of the plaintiff’s continuous possession and 15 enjoyment of the land over Ac.3.05 cents along with Ac.0.50 cents of ancestral property as a single composite holding since the date of the sale.
22.In his cross-examination PW-4 stated that he is educated up to the 3rd standard and works as a farmer. In response to the cross- examination by the defendant's counsel, he admitted that he did not produce any documentary evidence such as adangal or pahani to show his ownership of the land on the southern boundary of the suit schedule property. He denied the suggestion that he does not own the land to the south and that he came forward to support the plaintiff merely because the plaintiff extended financial assistance to him. He also denied the suggestion that the plaintiff never purchased or possessed the suit schedule property.
23.On the other hand , in order to substantiate his case , the defendant examined his own self as Dw.1 by reiterating his contentions of the written statement such as Ex.A1 is forged document and devoid of consideration and obtaining pattadar passbooks and Title deeds by the plaintiff by managing revenue authorities and availing of the mortgage loan on the said property in collusion with bank officials .
24.When coming to his cross-examination, the defendant / Dw.1 admitted that he received Ac. 7.00 cents in a family partition and an
additional Ac. 4.00 cents through his wife, retaining one acre besides the
16 suit property. He acknowledged a fact that the attestors to Ex. A1 were his paternal cousins and that the scribe was a person known to him who served as a Karanam of their village . Upon confrontation with multiple documents covered by Ex. A16, A17 and A24 , the defendant admitted his signature on all those documents except Ex. A1 Possessory agreement of sale. He denied executing Ex. A1 or delivering possession of the suit property, but conceded that the plaintiff had been cultivating the land for the past 50 years, claiming that it was done as a cultivating tenant, albeit without any documentary evidence of tenancy or lease payments. He stated the lease was oral, owing to their brotherly relationship. The defendant acknowledged that cist receipts and water tax documents were in the plaintiff’s name, and that the revenue records covered by Ex. A2 to A5 reflected the plaintiff as the landholder, but alleged that these records were fraudulently procured. He admitted of issuance of the legal notice covered under Ex. A10 to the plaintiff, which also covered the property that was already sold under Ex. A16, undermining his own position. In the course of his cross-examination , although he denied receiving legal notice under Ex. A14, but he admitted the signature on postal acknowledgment covered by Ex. A23 of the same. He further admitted that Kambampati Daniel, a known acquaintance, issued a paper publication under Ex. A18 claiming purchase of the property from him, while the plaintiff issued a counter paper publication through Ex. A19 . The defendant acknowledged that 17
Ex. A18 was issued at his instance, but claimed ignorance about Ex. A19 paper publication got issued by the plaintiff in response to Ex.A18 .
When asked him about weather he had initiated any legal action against
VRO of kavuru village , for which the defendant conceded that he had not filed a formal complaint or report against the VRO nor had he pursued criminal action against the said VRO .
25.By cross examining the defendant / Dw.1 , the counsel for plaintiff elicited long standing possession of the plaintiff over the suit schedule property that was admitted by the defendant and failed to furnish any documentary evidence of lease or receiving lease amounts on oral basis . He also admitted that the adangal , ROR 1-B record and Cist receipts and water tax receipts reflects the name of the plaintiff in respect of the suit schedule land . He further admitted that the signature on Ex.A23 postal acknowledgment belongs to him , thereby impliedly admitted the receipt of legal notice covered under Ex.A14 . He also admitted the fact that he did not refer any appeal against the interim injunction orders issued in favour of the plaintiff . Further , he also admits the binding nature of Ex.A1 on him .
DISCUSSION , DECISION AND REASONS THERE OF WITH ISSUE
WISE FINDINGS :
26.In the light of the above evidence brought on record by both sides , now I move on to the appreciation of evidence to give issue wise finding 18 with proper reasons .
Issue No. 1. Whether the agreement of sale deed dt.9.5.1991 is
true, supported by consideration and binding upon the
defendant ?
27.The counsel for the plaintiff contends that the defendant, being his elder brother, agreed to sell Ac.3.00 cents of agricultural land out of their family holdings for a valid sale consideration of Rs.40,000/-, which was fully paid at the time of execution of Ex.A1 and the possession of the said land was also delivered contemporaneously and thus plaintiff has been in continuous possession and enjoyment ever since. Despite repeated requests, the defendant failed to execute a registered sale deed, prompting the plaintiff to issue a legal notice covered by Ex.A14 and ultimately file this suit seeking for specific performance of possessory agreement of sale dated 09.05.1991 .
28.Per contra , the defendant denied the execution of any agreement in favour of the plaintiff, alleged that Ex.A1 is a forged and fabricated document and claimed that the plaintiff has no right over the suit schedule property. He further alleged that the plaintiff is in possession only as a cultivating tenant and denied having received any consideration. He also contended that the agreement was brought into existence fraudulently with the help of relatives and the adangals and
ROR 1-B records are built up in collusion with revenue officials.
19
29.In view of the rival arguments advanced by both sides , on scrutiny of the evidence of both sides, the plaintiff in order to prove Ex.A1 agreement , has produced the evidence of Pw.2 and 3 being the daughter and son of attesting witness and scribe as Pw.2 and 3 respectively. On perusal of Ex.A1 possessory agreement of sale, it purportedly executed on 09.05.1991, bearing the signature of the defendant and attested by close relatives of both parties namely
Bethamcharla Nageswara Rao and Bethamcharla Koteswara Rao. Further , the scribe of the said document was Paparaju Venkata Narasalah, a former village Karanam. PWs.2 and 3 being the daughter and son of the scribe and attesting witness respectively who had unequivocally identified the handwriting and signatures of their deceased fathers and thus confirmed the genuineness of the execution of Ex.A1 agreement in the presence of their fathers . Since , the fathers of the scribe and attesting witnesses are no more , their progeny being acquainted with their fathers signatures can identify the same on the subject matter agreement of sale .
30.Thus, in order to establish the plaintiff's claim regarding the authenticity and due execution of Ex.A1 i.e., Possessory Agreement of
Sale dated 09.05.1991 , through the evidence of PWs 2 and 3, who are the daughter and son of the attesting witness and the scribe, which are relevant for such secondary identification of signatures and handwriting.
20
31.Section 67 of Indian Evidence Act, 1872 which reads thus “If a document is alleged to be signed or written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.” on reading the above , it is clear that it does not mandate direct evidence of proof which includes testimony of persons familiar with the handwriting or signature of the deceased.
32.In this connection , Section 47 of Indian Evidence Act, 1872 assumes significance , which runs as follows :
“When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is a relevant fact.”
33.Thus, the evidence of PWs 2 and 3, being children of the scribe and attesting witness and being familiar with their respective father's handwriting and signature, are competent witnesses to prove Ex.A1.
34.Since, Section 47 of the Evidence Act allows a witness who is acquainted with the handwriting of a person to testify that a particular handwriting is that of the said person is relevant , as such , the daughter or son of the deceased scribe or attesting witness can testify to identify his father’s handwriting or signature.
21
35.In this case on hand, the plaintiff could able to prove the execution of the sale agreement was held proved by evidence of witnesses being the daughter and son of scribe and attesting witness respectively who were familiar with their hand writings and signatures , though they were not direct parties or attesting witnesses to the said document . Thus ,
Proof of execution can be inferred from the established circumstances and identification of signature or handwriting by persons familiar with them. As law enables a person acquainted with the handwriting and signature of another can competently give evidence under Section 47 , which supports the approach of Pw.1 / Plaintiff in proving Ex.A1 through the children of the attesting witness and scribe , as such , their identification of the handwriting and signatures of their respective deceased fathers proves the execution and authenticity of Ex.A1
Possessory Agreement of Sale.
36.Thus, the scribe and attesting witness being deceased, non-availability of their evidence does not vitiate the admissibility or probative value of the document if proper secondary evidence is provided as in this case as envisaged Under Section 47 read with 67 of
Evidence Act .
37.Although, the defendant had taken a plea of forgery of Ex.A1 agreement and made an application Under Section 45 of Evidence Act by forwarding the disputed agreement along with some contemporaneous documents containing the signatures of the defendant but the same was 22 returned by the hand writing expert APFSL , Mangalagiri to furnish some more documents having standard signatures of the defendant for giving opinion as the standards in those documents are not sufficient to form opinion , however , the defendant expressed his inability to furnish the more contemporaneous documents containing his standard signatures , there by his attempt to prove Ex.A1 as forged document was ended in failure . Thus , the defendant failed to establish his plea of forgery .
38.Thus, the plaintiff though proved the execution of Ex.A1 agreement as authentic and valid document , but the defendant failed to substantiate his plea of forgery through any forensic evidence .
Therefore , as per section 102 of the Evidence Act , 1872 lays down that the burden of adducing the evidence rests up on the party who would fail if no evidence at all were adduced by either side . Burden lies on the person who asserted that the said document was forged and manipulated . So , the defendant who came with a defense stand of forgery , thus failed to relieve his onus to subsist his chief contention that was surfacing from his pleading .
39.Last but foremost, the closing line admission forthcoming from the cross-examination of Pw.1 , collapses his entire defense contention as he admitted Ex.A1 as genuine document and binding up on him . Thus , on conglomeration of entire evidence of Pw.1 , the issue has to be decided in favour of the plaintiff and against the defendant .
23
Issue No .2. Whether the plaintiff is always ready and willing to
perform his part of contract ?
40.The counsel for the plaintiff contends that as the plaintiff had paid the entire sale consideration and also had taken possession of the schedule mentioned property and in recognition thereof , obtained revenue records from the concerned revenue authorities , even availing crop loans by mortgaging the said property and all these undisputed and established circumstances that were inferred from the conduct of the defendant being the elder brother of the plaintiff , because of fraternal trust between the siblings and as the said agreement was already acted upon except the formality of registration , all these things evidencing his readiness and willingness to perform his part of the contract as because the said agreement between them was not rooted in mere contractual understanding but in a shared brotherly affection , the plaintiff in good faith and with reverence to their familial relationship , believed that the defendant would execute a formal sale deed in future when ever required which conduct of the plaintiff does not disclose any abandonment of his rights and indicative of the factum of his readiness and willingness .
41.On the other hand , the defendant would contend that the plaintiff was not ready and willing his part of contract and thereby the plaintiff is dis-entitled to claim the equitable relief of Specific Performance of possessory agreement of sale dated 09.05.1991 covered by Ex.A1 after 24 a long lapse of time .
42.In view of the above rival arguments advanced by both sides , as afore discussed in the preceding issue , the plaintiff has categorically asserted in his pleading and proved that he had paid the entire sale consideration of Rs.40,000/- to the defendant under Ex.A1 possessory agreement of sale dated 09.05.1991 and was thereupon put in possession of the suit schedule property. Further , it has been established that the said possession has been continuous, open, and peaceful for over two decades. It is also evidenced through revenue records covered by Exs. A2 to A5 that the plaintiff cultivated the land regularly and even availed crop loans by mortgaging the suit property.
These established circumstances manifests that the plaintiff has always treated the agreement as subsisting and binding, thereby evidencing his readiness and willingness to perform his part of the contract.
43.Here , it is significant to observe that the defendant happens to be the elder sibling of the plaintiff. The subject matter agreement in question was not merely a result of a formal contractual arrangement, but was deeply rooted in mutual familial confidence and brotherly understanding. Relying on this fraternal bond, the plaintiff, in sincere belief and with due regard to their family relationship, trusted that the defendant being his elder brother would eventually execute the registered sale deed. His omission in pursuing formal demands should be interpreted in the light of this relational context. It is common in family 25 arrangements and transactions between the close relatives like brothers and sisters such a formal documentation is deferred on account of mutual trust. In these circumstances , mere delay, in such circumstances, does not destroy its enforceability.
44.Furthermore, the doctrine of part performance under Section 53A of the Transfer of Property Act and the equitable principles governing specific performance mandate that possession taken pursuant to a contract and retained for decades with full enjoyment of the said property cannot be brushed aside merely due to the absence of a formal demand . Thus , the plaintiff’s conduct throughout was consistent with the terms of the agreement and his conduct did not disclose any abandonment or waiver of his rights.
45.In fact , pertinently the turning point arose only in the year 2014, when the defendant, for the first time, repudiated the agreement and denied the contract and attempted to interfere with the plaintiff’s peaceful enjoyment of the property by issuing a legal notice covered by
Ex.A10 dated 22.07.2014 . It was at that juncture and not before, that the plaintiff was compelled to seek redress from this Court through the instant suit by issuing a reply notice on 04.08.2014 covered under Ex.A8 and further a legal notice got issued on 06.07.2015 covered under
Ex.A14 to revenue authorities as well as the defendant which was duly served up on him . Accordingly , the cause of delay, if any, is thus reasonably and justifiably explained.
26
46.In the above brought about circumstances, the contention of the defendant that the plaintiff was not ready and willing or that the absence of legal notice is fatal, is wholly untenable and contrary to settled legal principles. The defendant’s sudden repudiation, after a long period of acquiescence and benefit from the transaction, amounts to an unconscionable breach of faith and contract.
47.It is trite law that in cases of intra-family agreements or possessory agreements where possession is delivered and entire sale consideration was paid, delay or absence of formal demand or legal notice does not ipso facto amount to lack of readiness and willingness, particularly when fraternal trust and long-standing possession exists .
Where the purchaser has paid a substantial part of the consideration and has been put in possession of the property and the delay is not deliberate or negligent but owing to mutual understanding or family arrangements, the discretionary relief of specific performance cannot be refused. Mere non-issuance of notice or failure to make demand is not fatal where the vendee has been put in possession and has acted upon the contract and entire consideration was passed to him.
48. In such proved circumstances of continued possession and conduct of the parties establish subsisting willingness. It is settled legal principle to infer the readiness and willingness as to whether a party is ready and willing to perform his part of the contract is to be determined by examining the entirety of conduct and circumstances but not merely 27 by sterile formalities. Here, familial trust and long-standing possession with acts of availing loans and cultivating on the said land lends credence to the inference of such willingness and readiness as required for the performance of contractual obligation as because Readiness and willingness cannot be treated as a rigid formula. It must be assessed from the entirety of facts and surrounding circumstances. A party’s conduct in remaining in possession under an agreement of sale and performing acts in furtherance of lawful settled possession indicates persistent readiness to perform his part his rights are protected under equity.
49.In light of the foregoing discussion , it is amply clear that the failure to make a demand cannot be treated as fatal when the plaintiff, particularly a family member, has paid the entire sale consideration, is in settled possession for a long period, and has performed all his part of required acts, more particularly when Familial trust and informal arrangements form the substratum of such transactions, the Court has to approach the issue with sensitivity and flexibility grounded in equity.
50.The plaintiff’s consistent conduct over a span of more than two decades is a clear and unequivocal manifestation of his readiness and willingness to perform his part of the contract. As the entire sale consideration was proved to be paid to the defendant and that the defendant, who is none other than the plaintiff’s own elder brother, inducted the plaintiff into possession and allowed him to raise crops 28 continuously for nearly 23 years. During this long tenure, the plaintiff not only cultivated the suit schedule property without any interruption or objection but also availed agricultural loans from banks by producing possession-related revenue documents and such a course of action that could not have been undertaken without the tacit and explicit permission of the defendant. In this admitted and undisputed backdrop of events , the only remaining act is the execution and registration of the formal sale deed is a technical formality that does not and cannot, obliterate the otherwise fulfilled agreement. In these admitted circumstances To deny specific performance merely on the ground of non-registration would amount to placing form over substance and would unjustly reward the defendant, who has received the entire sale consideration and permitted the plaintiff to enjoy the fruits of the land for more than two decades.
51.Continuous long-standing possession by the plaintiff by payment of entire agreed sale consideration amount particularly when it is referable to the said agreement of sale, it is a significant indicator of readiness and willingness under Section 16(c) of the Specific Relief Act. While mere possession alone may not in every case be conclusive, when it is accompanied by other surrounding established circumstances such as payment of full consideration, cultivation, availing loans on the land by mortgaging the same to the banks and the defendant’s acquiescence, which forms compelling evidence of the plaintiff’s ongoing willingness to 29 perform his part of the contract. Section 16(c) of the Specific Relief Act mandates that the plaintiff must prove that he has been ready and willing to perform his part of the contract. This is not a mere empty formality; it must be demonstrated by conduct as because readiness and willingness is a matter of fact and it must be assessed in the light of the plaintiff’s conduct . It is trite that the Readiness and willingness has to be inferred from the conduct of the plaintiff and surrounding circumstances. Actual possession pursuant to the agreement and enjoyment of the property would be one of the circumstances to be considered in judging readiness and willingness. Here the plaintiff is in continuous possession of the property, and the defendant has accepted full sale consideration and permitted the plaintiff to enjoy the fruits of the cultivation on the suit schedule property by inducting him into the possession over the same and allowed to have revenue record in his favour , then mere delay in seeking registration or lack of formal demand cannot be held against the plaintiff.
52.I think it is appropriate to focus my attention to the categorical statements made by the defendant / Dw.1 in course of his cross- examination , which crucial admissions needs no proof as per Section 58 of Indian Evidence Act with regard to acknowledging the plaintiff’s rights over the suit land . These key admissions made by the defendant during cross-examination are as follows :
30 “It is true the plaintiff has been cultivating the schedule
mentioned land since last 50 years but as a cultivating tenant of
mine over the schedule mentioned property.”
Thus , the defendant admits long-standing possession of the plaintiff over the suit schedule land put forth a theory of oral lease but failed to substantiate the same .
“ I have no document to show that I have been receiving
the lease amount from the plaintiff for the last 50 years.”
Which statement weakens the defense of tenancy as no documentary evidence to prove lease.
“ Witness adds that the plaintiff being his younger brother
giving the lease amounts on oral basis.”
Which implies that lease theory is an afterthought and unsubstantiated and invented to get over the obligation due under Ex.A1
Possessory Agreement of sale .
“ When the counsel for plaintiff confronted the Ex A2 to A5
revenue record which includes the adangal, ROR 1-B, land tax
receipts and asked the witness whether all the said documents
are in the name of the plaintiff or not, for which the witness
admitted that the said documents reflects the name of the
plaintiff.” 31
53.Thus , admits that official revenue documents are in plaintiff's name which supports possession and claim.
“It is true as the plaintiff has been cultivating the suit
schedule property as such water tax receipts had been issued on
his name.” which admission strengthens plaintiff’s possession and use of land.
“It is true the said Daniel got issued paper publication
Under Ex.A18...and only with a view to cause prejudice to his
lawful rights accrued under Ex.A1, Ex.A18 paper publication was
issued at my instance.” which , clear admission shows the intention to defeat plaintiff’s rights under Ex.A1 , he is the man behind the said Kahambati daniel who issued Ex.A18 Paper publication in Enadu Daily news paper strengthens plaintiff’s case.
“The counsel for plaintiff confronted Ex A23 postal
acknowledgment and asked the witness whether the signature
on it belongs to him or not for which the witness admitted the
signature on it.”
Which admission of receiving plaintiff's legal demand covered by
Ex.A14, though denied elsewhere.
“I did not file the complaint given to Revenue Divisional
Officer challenging the entries of Suit schedule property in
32 revenue records.”
“I did not prefer any apeal against the interim injunction
orders issued in favour of the plaintiff.”
“I did not lodge any report to the police against the
plaintiff and the said VRO of Kavuru village on the ground that
they have created sham and nominal documents...”
All these failures of the defendant shows inaction from defendant despite alleging fraud—raises doubt on genuineness of his defense.
Finally at the last line of his deposition , the defendant /
Dw.1 made a ultimate admission which reads thus :
“It is true Ex.A1 agreement is genuine and binding on me.”
This statement confirming plaintiff’s claim over the suit schedule property and its binding nature on the defendant .
54.Thus , the plaintiff’s counsel succeeded in eliciting the above said admissions from the mouth of D.W.1 particularly with respect to crucial factors like Long-standing possession , Validity of revenue documents ,
Admission of paper notice against plaintiff's interest , Absence of proper action to dispute documents . The cumulative effect of these statements collectively undermine the defendant’s stand and significantly support the plaintiff’s case for specific performance of
Possessory agreement of sale under Ex.A1.
33
55.Thus , as afore said proved circumstances and admitted facts of execution of Ex.A1 and in pursuance there of long standing continuous possession referable to the said agreement of sale covered by Ex.A1 under which the entire sale consideration was paid and possession of land was also handed over contemporaneously . The defendant never objected for over two decades, thereby the plaintiff availed banking finance based on mortgaging the said property , which admitted circumstances amounts to a clear and uninterrupted chain of events proving his readiness and willingness. This satisfies the mandate of
Section 16(c) of the Specific Relief Act . Accordingly, this issue is answered in favour of the plaintiff and against the defendant.
Issue No.3. Whether the plaintiff is entitled to restrain the
defendant for permanent injunction as prayed for ?
56. Before going to discuss this issue , I remember a legal maxim "Aequitas sequitur legem" which emphasizes that equity will consider the true intent and substance of a transaction . Thus , “equity looks to substance and not mere form” squarely applies to this case. Though
Ex.A1 may not be a registered sale deed, it was accompanied by delivery of possession and payment of entire consideration. Here I think it is appropriate to read an excerpt from the paragraph No.5 a judgment of Hon’ble Rajasthan High Court rendered in between Durga Prasad And
Ors. vs Kanhiyalal And Ors. Reported in AIR 1979 Raj 200 .which runs thus :
34
“ In granting relief under Section 53A of the T. P. Act, the
question whether a contract is specifically enforceable or not,
has no bearing at all. The provisions of Sections 10 and 12 of
the Specific Relief Act are quite distinct from Section 53A of
the T. P, Act. It has been laid down in Bharat Chandra Das
v. Md. Ramjan Choudhury (1941) 45 Cal WN 489 and Jahangir
Begum v. Gulam Ali Ahmed, AIR 1955 Hyd 101 that Section 53A
applies even when the specific performance of a contract is
barred or the contract is otherwise unenforceable. The
doctrine of part performance embodied in Sec.53A of the T.
P. Act is an equitable doctrine. The object of this Section is to
prevent a transferor or his successor any interest from taking
any advantage on account of the non-registration of the
document, provided, the transferee has performed his part of
the contract and in pursuance thereof has taken possession of
some immoveable property. This right is available to the
transferee as defence in order to protect his possession. Thus,
a defendant in an action of ejrctment may, in certain
circumstances, effectively plead possession under an
unregistered contract of sale in defence to the action. “
57.From the reading of the above , here in this case on hand , when the plaintiff being the transferee is put in possession and has paid the full consideration and had taken possession of the property and has been enjoying the same for more than two decades by cultivating the same and also obtained revenue records covered by Ex.A2 to A5 in his favour besides availing bank loans under Ex.A6 by mortgaging the said property , he can be construed as the real owner in equity. Thus , the plaintiff in the instant case has done everything required under the 35 agreement and cannot be denied protection of his lawful possession even under the doctrine of part-performance as contemplated Under
Section 53-A of Transfer of Property Act .
58.On contrary to that the defendant’s plea that he leased out the land to the plaintiff’s son is clearly an afterthought and not supported by any documentary or oral independent evidence. No such lease agreement nor was any receipts of lease hold premium or other supporting material were filed by the defendant . But on the other hand , the revenue records including ROR, adangals, and tax receipts i.e.,
Exs.A2 to A5 all stand in the name of the plaintiff, and not in the name of the defendant.
59.Furthermore, it is settled law that if the vendee is put in possession and has paid the entire consideration, then Section 53-A of the Transfer of Property Act, 1882 protects his possession against the vendor. Though this section provides only a shield and not a sword, the principle behind it reinforces the equities in favor of the plaintiff, particularly when he is a rightful occupant under a possessory agreement of sale covered by
Ex.A1. Therefore , this issue is also decided in favour of the plaintiff and against the defendant .
Issue No.4. Whether the plaintiff is entitled for the discretionary
relief of specific performance as prayed for ?
60.The argument of the counsel for the defendant is two folded , one 36 is on the delay of more than two decades and another one is on the point of limitation .
61.However , it is pertinent to note that the suit document i.e., Ex.A1 is an agreement of sale with possession which goes to show the factum of payment of entire sale consideration amount coupled with delivery of possession of the schedule mentioned property tilts the scale in favour of the plaintiff. Thus, the execution of such a document, coupled with delivery of possession, implies a completed transaction in all material respects, save the formality of registration. Once possession has been delivered pursuant to an agreement of sale, and the vendee has acted up on it, the seller cannot turn around and deny the transaction simply because the deed is not registered . Here , the plaintiff, in support of his claim, examined himself as PW1 and also examined three supporting witnesses as PW2, PW3 and PW4. PW2 and PW3, being the daughter and son respectively of the attestors and scribe of Ex.A1, have identified the signatures of their respective relatives and that PW4 is an independent witness and neighbour who deposed that the plaintiff was inducted into possession and has been cultivating the suit land since the date of agreement. This oral evidence lends strong corroboration to the contents of Ex.A1 and establishes that the plaintiff was in possession and enjoyment of the suit schedule property.
62.When coming to the evidence of the other side , the defendant, who examined himself as DW1, admitted in cross-examination that the 37 plaintiff has been cultivating the schedule land for nearly more than 30 years and that the water tax and other revenue records stand in the name of the plaintiff. Though he denied the execution of Ex.A1, he admitted that the scribe being the Karanam of the village was a person who used to write documents and the attestors were his own cousins.
Thus , his own admissions undermines the veracity of his evasive denial.
63. Regarding the first and foremost argument of the counsel
for the defendant on the ground of delay is concerned , it is a
settled principle that in a suit for specific performance, time is
not ordinarily of the essence in contracts relating to immovable
property unless the parties have expressly stipulated it to be so.
As held in:
Chand Rani v. Kamal Rani, (1993) 1 SCC 519:
“In the case of sale of immovable property, time is not the
essence of the contract unless specifically provided. Mere delay
in performance cannot be treated as fatal if the plaintiff has
shown continuous readiness and willingness.”
64.In the present case, a perusal of suit agreement of sale , it is clear that there is no clause in the said Ex.A1 being the possessory agreement of sale dated 09-05-1991 , thereby time is not the essence of the said contract in this case . When the suit agreement does not stipulate a specific time frame within which the regular sale deed was to be executed , then it is the duty of the defendant to execute the registered sale deed , as he refused to do so , as such , the plaintiff’s duty was only to approach the court within a reasonable period.
38
65.Further , there is no evidence from the defendant that he Initiated any legal action to rescind the said agreement covered by Ex.A1 nor had exhibited any complaint against revenue entries or challenge the possession of plaintiff for almost two decades , instead, his own admissions in cross-examination confirm the plaintiff’s possession and cultivation of the land.
66.As afore mentioned , it is a settled proposition that in contracts for sale of immovable property, time is generally not regarded as the essence of the contract unless it is expressly made so by the terms of the agreement or clearly implied from the surrounding circumstances.
So, delay by itself, barring limitation, does not disentitle relief of specific performance unless it is coupled with waiver, abandonment, or other inequitable conduct of the party .
67.As the suit agreement dated 09-05-1991 covered under Ex.A1 does not specify that time is of the essence , as such , mere delay even if it spans for 23 years , it is not automatically fatal unless accompanied by other inequitable circumstances.
68.As regards the aspect of limitation , A suit for specific performance must be filed within three years under Article 54 of the Limitation Act, 1963 If no specific date is fixed for performance then the limitation period is three years from when the plaintiff has notice that performance is refused.
39
69.In the instant case , as the plaintiff remained in possession from the date of the agreement i.e., 09.05.1991 by paying the entire sale consideration amount and the cause of action first arose when the plaintiff noticed the denial by the defendant through a legal notice dated 22.07.2014 covered by Ex.A10 got issued through his counsel by asserting his right against the subject matter property by showing the same as Item No.2 of the notice schedule . In response to the same , the plaintiff got issued a legal notice under Ex.A14 on 06.07.2015 and further issued a registered notice under Ex.A7 dated 22.04.2015 to the hierarchy of revenue authorities by marking a copy of the same to the defendant as well as his counsel. Thus, until issuance of Ex.A10 legal notice by the defendant , the plaintiff did not sense any refusal from the defendant who is his own brother and the cumulative effect of the said legal correspondence between the parties under Ex.A7,A10 and A14 would give raise cause of action for the present suit and only when such refusal or denial from the defendant even after issuance of registered notice covered by Ex.A7 on 22.04.2015 and his subsequent failure to come forward to execute a regular registered sale deed has to be considered as starting point for limitation and accordingly the limitation may begin to run from that date , thereby the present suit is well with in the period of limitation from the date of notice of refusal by the defendant.
40
70.It is pertinent to note that Article 54 of the Limitation Act prescribes the period of limitation for a suit for specific performance of a contract as three years from:
(a) the date fixed for performance, or
(b) where no such date is fixed, when the plaintiff has notice that performance is refused.
71.Here , in the case at hand, the possessory agreement of sale covered by Ex.A1 dated 09-05-1991 does not stipulate a specific date for execution of the sale deed and the defendant never cause any obstruction nor denial of the possession and enjoyment of the plaintiff over the property and allowed the plaintiff to have revenue record on his name and facilitated to avail loans from the bank at the first time he had shown his denial through Ex.A10 legal notice dated 22.07.2014 , until then there is no sign of refusal or denial from the defendant . Hence, clause (b) of Article 54 governs the limitation. The time would begin to run only when the plaintiff has notice of the defendant's refusal to perform the contract. Thus , where no date is fixed for performance, limitation starts only when the plaintiff has notice of refusal. So , the refusal was first manifested in the year 2014 through Ex.A10 legal notice and later Ex.A18 public notice. Accordingly, the defendant’s conduct over more than two decades never indicated any repudiation of the agreement. On the contrary, the plaintiff continued to remain in 41 physical possession and enjoyment of the suit schedule property, paying land revenue and cultivating the land openly. Only in the year 2014 defendant issued legal notice under Ex.A10 dated 22.07.2014 for the first time, publicly repudiate the agreement by issuing a public notice in
Eenadu daily news paper under Ex.A18 on 27.06.2015 by denying the execution of the Ex.A1 agreement and asserting his own ownership. In response, the plaintiff promptly issued a reply notice Ex.A14 on 06.07.2015 , asserting his rights under Ex.A1 and filed the present suit shortly thereafter. Hence, the limitation must be reckoned from the date of refusal, i.e., June/July 2015. The suit, having been filed in 2015 itself, is therefore well within the statutory limitation of three years.
72.More over , the plaintiff was in active possession, performed his part of contract by paying full consideration and cultivating the land, while the defendant, being his elder brother, remained silent until 2015.
He cannot now be permitted to turn around and defeat the claim by raising a plea of limitation after having slept over his rights for over two decades . Since , both parties own brothers , as such , the plaintiff, relying on the implicit trust that subsisted between siblings, had no cause to apprehend that his own brother would later repudiate the transaction. The absence of a legal notice at an earlier point of time must therefore be understood not as inaction or acquiescence, but as an expression of good faith and familial reliance. The plaintiff’s silence cannot be interpreted as waiver of rights, but rather as a product of 42 fraternal trust that the defendant would honour his part of contract .
What is legally relevant is whether there has been a clear and unequivocal denial of the agreement by the defendant, from which limitation could be computed. In the instant case, the defendant’s refusal came to light only in the month of July 2015 just before institution of the present suit , despite earlier conduct consistent with the plaintiff’s possession. Thus, the limitation must run from the date of such clear refusal, not from the date of the agreement itself. Hence, the argument of the defendant that the plaintiff failed to issue a legal notice and therefore his claim is vitiated by delay or barred by limitation is wholly misconceived and unsustainable . Accordingly, this Court finds that the conduct of the plaintiff is bona fide, consistent with lawful settled possession and enjoyment for more than two decades and that the absence of early legal notice does not prejudice his claim for specific performance. It was only in the year 2014 through legal notice dated 22.07.2014 under Ex.A10 , that a dispute arose. Until then, the defendant never refused nor objected to the plaintiff’s possession.
Therefore, there was no occasion for the plaintiff to issue a legal notice prior to that. In fact, the cause of action for filing the suit arose only after such interference. Insistence on a legal notice in such a case, where the parties are siblings, full consideration is paid, possession is enjoyed for over two decades, and land revenue records favor the plaintiff, would amount to a hyper-technical approach defeating substantive justice. The 43 spirit behind the Specific Relief Act is to be construed not merely in a rigid technical sense but in a manner that advances justice and recognizes the equity arising from performance of contract. The plaintiff has established the existence of the agreement, the passing of consideration, delivery of possession, and his continuous possession and cultivation. The only step remaining is the registration of the sale deed.
Equity and justice demand that the plaintiff should not suffer on account of mere non-registration, particularly when the defendant has enjoyed the benefit of the sale consideration and permitted possession for over two decades.
73.The another argument advanced by the defendant is that he had no absolute interest to execute a registered sale deed is inconsistent with law. Even if the property is ancestral and his sons are not parties to the agreement as well as the suit . Be it noted , even the schedule mentioned property is ancestral , the Karta can execute a sale for legal necessity . If no challenge is made, either by minor or after majority, the transaction is presumed valid. Thus , the lack of challenge within limitation validates the transaction as a matter of law. Even assuming for a moment that the property is ancestral, the counsel for the Plaintiff ( with out admitting )submits that under Hindu Law, the Karta of a Hindu
Family has the power to alienate ancestral for legal necessity or benefit of the estate. In the present case, the Defendant executed the agreement of sale voluntarily. No evidence has been brought on record 44 to show that the agreement was not for the benefit of the family or any immoral purpose and that alienation of such ancestral property by the
Karta does not require the signature of the minor coparceners, if done for family necessity. Thus , the counsel for the plaintiff would argue that the defendant having voluntarily executed the said agreement of sale on 09.05.1991 and also delivered the property to the plaintiff , cannot now resile from it on technical or unsubstantiated grounds that too with out there being any such foundation in his written statement . Such a strange argument lacks legal validity and no consequence in the eye of law . The Defendant, having voluntarily executed the agreement and taken consideration cannot deny performance merely on the basis of technical objections or by setting up a defense of minor coparcener’s non-consent.
74.The counsel for the Plaintiff submits that even assuming for the sake of argument that the Defendant’s minor son had a right to challenge the agreement, such a challenge must be exercised within the time prescribed under law. Under Article 60 of the Limitation Act, 1963, a minor (or his legal guardian on his behalf) must challenge any transfer of property made by a guardian (or family manager/Karta) within three years of attaining majority. If no such challenge is made within this limitation period, the transaction becomes final and binding, and cannot be reopened later by the minor or any party claiming through him. Thus , a minor's right to challenge alienation must be exercised within the 45 limitation period, failing which the transaction becomes conclusive and that a minor cannot indefinitely challenge a sale or transfer once the limitation under Article 60 expires after attaining majority.
75.In this case, the Plaintiff submits that the alleged minor progeny has attained majority and no steps whatsoever have been taken by him to challenge or question the said agreement of sale within the statutory period of three years from attaining majority. Accordingly, the Defendant cannot now be permitted to rely on the minor son’s rights as a defense .
Thus , the Defendant is estopped from raising a defense based on the minor son’s interest , therefore, even if the Defendant’s minor son once had a semblance of right to challenge the sale, his failure to act within the limitation period under Article 60 bars such a challenge now.
Consequently, the Defendant cannot raise this objection as a defense, and the Plaintiff is entitled to enforce the agreement of sale through specific performance. Even assuming for a moment that the suit property is ancestral and the Defendant's son was a minor at the time of the execution of the agreement of sale on 09.05.1991 , the time was elapsed for more than two decades , therefore, any right to object or set aside the sale is now time-barred. Thus , even if the minor had a right, it lapses if not exercised within three years of attaining majority. Hence, the time to challenge the transaction has lapsed and any such challenge is now barred by limitation.
46
76.Further more , as rightly argued by counsel for the plaintiff , only substantial plea of the defendant as could be seen from his written statement is that the agreement is a forgery. Which defense stand was already failed .Once the plea of forgery fails, the Defendant cannot substitute it with a new, inconsistent pleas at a belated stage. So , all such new contentions at the time of advancing arguments have no legal force as it is well-settled law that no amount of evidence or argument can be looked into or accepted on a fact that is not pleaded in the pleadings. Hence, raising a new argument beyond pleadings at the stage of final hearing is legally unfair and procedurally barred.
77.In the light of the above facts and circumstances , this court feels that it is a fit case where the discretionary relief for specific performance of agreement ought to be granted in favour of the plaintiff . Thus the issue is also answered in favour of the plaintiff and against the defendant .
Issue No 5. To what relief ?
78.In light of the foregoing discussion on the preceding issues , by considering the oral and documentary evidence , viewed from any angle , this Court is of the opinion that the plaintiff has proved his case and is entitled to specific performance of the agreement of sale dated 09-05-1991 as sought for .
47
79.In the result , the suit is decreed with costs directing the defendant to execute regular registered sale deed in terms of the suit agreement of sale dated 09-05-1991 with in 3 months from the date of this judgment , failing which the same be executed through the process of the court . Further , the defendant and his men and agents are here by restrained from interfering with the possession and enjoyment of the plaintiff over the suit schedule property by means of Permanent injunction .
Typed to my dictation, corrected and pronounced by me in the open court, this the 27th of June , 2025.
sd/- K.Narendra Reddy,
Principal Civil Judge (Junior Division),
Chilakaluripet.
Appendix of Evidence
Witnesses examined:
For plaintiff :
P.W.1: B.China Narasaiah,
PW.2 : P.Chinna Ellamma,
PW.3 : B.Poleswara Rao,
PW.4 : B.Pedda Narasimha Rao.
For defendants:
Dw.1 : B.Appaiah.
Documents marked for plaintiff:
Ex. Al is the Original Possessory Agreement of sale, dt.9.5.1991.
Ex.A2 is the Agandal for the fasily year 1423. dt. 28.4.2014.
48
Ex.A3 is the 1-B ROR namuna, dL.3.7.2015 counter singed by VRO.
Ex.A4 is the Cist receipt in respect of payments made on 14.1.2014.
Ex.A5 is the Cist receipt in respect of Payment made on 22.6.2014.
Ex.A6 is the Letter given by Chief Manager, Andhra Bank, dt.28.4.2015.
Ex.A7 is the Office copy of legal notice dt.22.4.2015.
Ex.A8 is the Original office copy of legal notice dt.4.8.2014.
Ex.A9 is the Postal receipt, dt.5.8.2014.
Ex.A10 is the reply notice, dt.22.7.2014 along with postal cover.
Ex.A11 is the Postal receipts, dt.22.4.2015.
Ex.A12 is the Postal acknowledgments
Ex.A13 is unserved returned postal cover.
Ex.A14 is the Office copy of legal notice dt.6.7.2015.
Ex.A15 is the certified copy of registered mortgage deed dated 26-06-2012 vide document No.4781/2012 executed by the plaintiff in favour of the Andhra Bank, Chilakaluripet.
Ex.A16 is the Original registered sale deed dated 13-05-1991 vide document No. 1037/1991 executed by the defendant and his sons in favour of the plaintiff.
Ex.A.17 is the original registered sale deed dated 13-08-1992 vide document No. 2157/1992 executed by Bethamcherla Koteswara Rao and his minor sons in favour of the plaintiff
Ex.A.18 is the public notice dated 27-06-2015 got published in the Guntur District Edition of Eenadu telugu daily paper on behalf of the defendant.
49
Ex.A-19 is the public notice dated 03-07-2015 got published in the Guntur District Edition of Eenadu telugu daily paper on behalf of the plaintiff.
Ex.A-20 is the postal receipts
Ex.A-21 is the acknowledgment from Medarametla Nageswara Rao. Advocate, Narasaraopet dated 10-07-2015.
Ex.A-22 is the acknowledgment dated 08-07-2015 from one Kambhampati Daniel.
Ex.A-23 is the acknowledgment of the defendant dated 09-07-2015.
Ex.A24 is the Certified copy of Registered sale deed dt.8.5.2000
Documents marked for defendants: Nil.
Sd/- K.Narendra Reddy,
PCJ (J.D),
Chilakaluripet.*- 50
IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION) ,
CHILAKALURIPET
Present: Sri K.Narendra Reddy,
Principal Civil Judge, (Junior Division),
Chilakaluripet
Friday, this the 27th day of June, 2025
O.S. No. 107 of 2015.
Between:- Bethamcharla China Narasaiah, S/o Subbaiah, age 60 years, D.No.4-28, Lingamguntia Village, Chilakaturinet Mandal, Guntur District. . . . . Plaintiff.
And
Bethamcharla Appaiah S/o. Subbaiah, age 65 years, D.No. 37- 111, Purushottapatnam, Chilakaluripet . . .Defendant
This is a suit filed by the plaintiff against the defendant seeking decree for specific performance of the agreement of sale dated 9.5.1991, directing the defendants to execute a regular registered sale deed in favour of the plaintiff and further restraining the defendant and his men from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and for costs.
The plaint was presented on 22.9.2015 and filed on 28.9.2015
CAUSE OF ACTION : Cause of action arose the defendant proposed to dispose off the suit schedule property, on 9.5.1991 when the defendant had executed the possessory agreement of sale in favour of the plaintifs, inspite of repeated demands made by the plaintiff for the execution of proper and valid registered sale deed at his costs personally and through mediators, on 22.7.2014 the defendant got issued the Registered demand notice to the plaintiff to which a proper reply notice was given by the plaintiff, on 27th June, 2015 when a public notice appeared in District edition of Eenadu telugu daily on the name fo the Kambhampati daniel touching the suit schedule property was appeared, on 3.7.2015 the plaintiff got issued public notice appeared in District edition of Eenadu Telugu daily, on 6.7.2015 the plaintiff got issued a registered notice calling upon the defendant to come forward the execution of the registered sale deed touching the suit schedule property on 31.7.2015 at Kavuru village where the suit schedule property is situated, which is within the jurisdiction of the court.
51
This being a suit for specific performance of the agreement of sale, the value of the suit schedule property is at Rs.40,000/- and on which a court fee of Rs.2086/- is paid under Section 39 of A.P.C.F., and S.V. Act of 1956.
This being a suit for permanent injunction, the plaintiff valued the relief at Rs.10,000/- on which court fee of Rs.786/- is paid under Sec.26(c) of A.P.C.F. & S.V.Act.
Total court fee of Rs.2872/- . (Rs.2086/-+ Rs.786/-)
This suit came before me on 19.6.2025 for final hearing in the presence of Sri M.Upendra Rao, Advocate for plaintiff and Sri D.Chitti Babu, Advocate for defendant and upon perusing the material papers on record, having stood over for consideration till this day, this court doth order and decree as follows:-
i) that the the suit is hereby decreed with costs; directed the defendant to execute regular registered sale deed in terms of the suit agreement of sale dated 09-05-1991 with in 3 months from the date of this judgment , failing which the same be executed through the process of the court .
ii) that the defendant be and hereby restrained from interfering with the possession and enjoyment of the plaintiff over the suit schedule property by means of Permanent injunction .
iii) that the defendant do also pay to the plaintiff a sum of Rs.10,137/- towards costs of the suit and defendant do bear his own costs of Rs.Nil/- (C.M & FC not filed by the defendant).
Given under my hand and seal of the court, this the 27thday of June, 2025.
Principal Civil Judge (Junior Division),
Chilakaluripet.
52
TABLE OF COSTS
For DescriptionFor Plaintiff For Defendants
Vakalat 2-00
Plaint fee 2872-00
Process63 -00 C.M & FC not filed
Pleader fee 7000-00
Publication charges--
Writing Charges100-00
Typing Charges100-00
Total10,137-00
PCJ (J.D),
Chilakaluripet.