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IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) :
KAKINADA
Present:- Ms.K.Sailaja,
Principal Civil Judge (Senior Division), Kakinada.
Friday, this the 24th day of January, 2025.
O.S.No. 256 of 20 17
Between:
Sayed Vali, S/o.Sayed Kabir, aged 47 years, Fish Business, Resident of D.No.3-12/4A, Ramakrishna Nagar, Vakalapudi Village, Kakinada Rural Mandal, East Godavari District. (Kakinada Junior Civil Judge Court Jurisdiction). .. Plaintif
And
1. Pepakayala Venkata Rao, S/o.Late Satyam, aged 62 years, Business, R/o.D.No.4-124, Meraka Street, Karapa Village, Karapa Mandal, East Godavari District. (Kakinada Junior Civil Judge Court Jurisdiction).
2. Gonela Sita Rama Krishna Tulasi Lakshmi Devi, W/o.Ramakrishna Rao, aged 68 years, R/o.D.No.70-15-17, Suresh Nagar, Kakinada. (Kakinada Junior Civil Judge
...Defendants
Court Jurisdiction).
This suit is coming on 26.11.2024 for final hearing before me in the presence of Sri.S.K.Mohiuddin, Sri.S.Aejazuddin and Smt.P.Sridevi, Advocates for the Plaintif and of Sri Bh.Subbarao, Advocate for Defendants, and having stood over for consideration till this day, this court made the following:
JUDGMENT
1.This is a suit filed by the plaintif against the defendants to a) grant a decree of Specific Performance in favour of the plaintif and against the 1st defendant directing him to execute and register a regular sale deed in favour of the plaintif in pursuance of the Possessory Sale Agreement dt.27.12.2004 in performance of the unperformed part of contract regarding the plaint schedule property and if the 1st defendant failed to perform his part of contract, to execute and register the sale deed in favour of the plaintif on behalf of the 1st defendant 2 or in the alternative to grant decree for the recovery of the entire sale consideration of Rs.5,00,000/- together with simple interest of 12% p.a. from 15.05.2005 (the date of payment of the balance of sale consideration) onwards till the date of realization, (b) grant decree of Permanent Injunction restraining the defendants Nos.1 and 2 and their henchmen and the persons claiming through them from interfering in any manner with the peaceful possession and enjoyment of the plaintif over the plaint schedule property, (c) grant costs of this suit and
(d) grant such other reliefs.
2. The case of the plaintif in brief is that the 1st defendant ofered to sell the house site for a consideration of Rs.5,00,000/-, received a sum of
Rs.4,50,000/- by way of advance and executed registered sale agreement on 27.12.2004 in favour of the plaintif, where under the 1st defendant agreed to execute a registered sale deed in favour of the plaintif upon delivering the original sale deed to the plaintif as it is not in the custody of the 1st defendant.
The 1st defendant also delivered possession of the suit schedule property to the plaintif. Subsequently on 15.05.2005 the plaintif paid a balance sale consideration of Rs.50,000/- to the 1st defendant under endorsement on the back side of the said deed, as such the plaintif has obtained the entire sale consideration of Rs.5,00,000/- and performed his part of contract. The property was mutated in the name of the plaintif, he has been paying vacant land tax to the Vakalapudi Gram Panchayat, inspite of repeated demands made by the plaintif, the 1st defendant did not turn up to execute registered sale deed in favour of plaintif or his nominees, as the 1st defendant is postponing the matter, the plaintif got issued a legal notice to 1st defendant showing his readiness in executing the sale deed. Having received the notice the 1st defendant kept quiet.
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After issuance of notice, the 1st defendant along with his sisters i.e., 2nd defendant and their henchmen started interference with the peaceful possession and enjoyment of the plaintif over the plaint schedule property.
3.The 1st defendant filed written statement, the same was adopted by the 2nd defendant. The contention of the defendants is that the suit schedule property is absolute property of the 1st defendant. The 1st defendant never agreed to sell the schedule property and never take any amount towards consideration, never executed the sale agreement in favour of the plaintif at any point of time. The plaintif is neighbouring boundary owner to the defendant. The plaintif insisted the defendants to sell the property at a lower rate, then the defendant stated that he has no need to sell the property. The plaintif being highhanded person by using his power to get the property in his name occupied the schedule property and constructed a shed. The defendants gave a police complaint against the plaintif. The plaintif has created the sale agreement in his favour and filed this false suit.
4.Based on the pleadings on both sides, the following issues are framed for the purpose of trial:
1. Whether the agreement of sale dt.27.12.2004 is true and valid?
2. Whether the agreement of sale is supported by consideration?
3. Whether the interest claimed by the plaintif is usurious?
4. Whether the plaintif is entitled for specific performance of agreement of sale dt.27.12.2004?
5. Whether the plaintif is entitled for alternative relief as prayed for?
6. Whether the plaintif is entitled for perceptual injunction as prayed for?
7. To what relief?
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5.On behalf of the plaintif, P.Ws.1 and 2 were examined, Exs.A.1 to A.5 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and
Exs.B.1 to B.10 were marked. C.W.1 was examined and Ex.C.1 was marked.
6.The counsel for the plaintif submitted written arguments. The defendants also submitted written arguments. Heard both sides.
7.The counsel for the plaintif submitted that the evidence of P.Ws.1 and 2 is corroborated with each other with respect to payment of sale consideration of Rs.4,50,000/- and balance sale consideration of Rs.50,000/-. The evidence also corroborated with regard to the delivery of the plaint schedule property. He further submitted that D.W.1 is not a trustworthy witness, he is changing version from time to time. The specific performance is a remedy where a party is compelled to fulfill its contractual obligation rather than compensating the other party monitory. The court can grant specific performance in cases involving property their monitory compensation is inadequate. Recent changes under specific relief Act make the specific performance a default remedy Sec.53-A of Transfer of Property Act protects transferring in possession of the document is an unregistered document. All the legal conditions prescribed under Section 53-A of Transfer of Property Act are fulfilled by the plaintif, as such the protection is available to the plaintif who is in possession of the plaint schedule property. The defendants took a specific plea the signatures of the 1st defendant are forged one, they have filed an application to send the disputed document and the handwriting expert was examined, he pleaded in his counter that contemporaneous signatures are not available inspite of the said request, the court has taken the signatures of the 1st defendant which are taken in the court. The expert was examined as
C.W.1 and his report was marked as Ex.C1. In his cross examination, the expert has expressed his opinion that the examination of contemporaneous signatures 5 will reflect good result informing the opinion. Though the opinion of handwriting expert can be a valuable, but it is a weak piece of evidence. The defendants are stating that the plaintif occupied the schedule property unauthorizedly, but they have not filed any suit for eviction. Without counter claim of eviction, the defendants acknowledgment of possession strengthen the plaintifs case for specific performance.
8.The counsel for the defendants submitted that Ex.A1 possessory agreement of sale is not a registered document. The plaintif is an income tax assessee. Out of Rs.5,00,000/- sale consideration, he has paid Rs.4,50,000/- on the date of alleged agreement without taking the original sale deed. If that is the case any prudent man obtain encumbrance certificate to know whether the property was alienated or mortgaged. As per the recitals of Ex.A1 sale agreement, the balance sale consideration is agreed to paid at the time of registration of sale deed. When 1st defendant brought the original sale deed, contra to the terms of agreement, the plaintif paid balance sale consideration and obtained endorsement on the back side of the sale agreement. It is also one of the suspicious circumstance. The 2nd defendant gave a police report. The plaintif is aware of police report. But suppressed the said fact, approached the court with unclean hands. The tax receipt obtained by the plaintif by influencing the panchayat officials. Without having any title mutation in the revenue records is highly absurd. The agreement of sale is antedated, the plaintif made the agreement of sale public through Ex.A3 i.e., 13 years after the date. No person can pay such huge amount without obtaining the original sale deed, the conduct of the plaintif shows that it is a forged one. Further P.W.1 did not speak about the presence and name of the scribe, it is nowhere pleaded that D.W.1 signed in the presence of attestors and scribe, the same is essential ingredient to prove 6 execution and passing of consideration under Ex.A1. Thus P.W.1 miserably failed to prove execution of Ex.A1 as contemplated under law. The plaintif miserably failed to prove Ex.A1 transaction and passing of consideration. He further submitted that specific performance of contract is an equitable relief under section 20 of the Act grant of specific performance of contract is the discretion of the court, it must be a judicial discretion. He further submitted section 53-A of
Transfer Property Act has no application possession and agreement of sale only a permissible possession. The agreement holder cannot file a suit for permanent injunction against a real owner.
9.ISSUE Nos.1 & 2:
The plaintif filed this suit claiming that the 1st defendant executed agreement of sale in favour of the plaintif for a sale consideration of
Rs.5,00,000/-, out of the sale consideration he paid Rs.4,50,000/- by way of advance to the 1st defendant and subsequently he paid the remaining balance sale consideration. It is also the case of the plaintif that the 1st defendant delivered possession of the suit schedule property. It is also the case of the plaintif that the defendant agreed to execute a registered sale deed in favour of the plaintif on delivering the original sale deed. Contrary to the pleadings of the plaintif, the contention of the defendants is that the 1st defendant never executed agreement of sale, the plaintif who is the neighbouring owner to the 1st defendant insisted the defendants to sell the property for a low price, but he refused. Then the plaintif occupied the plaint schedule property constructed a shed and using it for rearing his goats etc.
10.There is no dispute that the suit schedule property originally belongs to 1st defendant. It is also an undisputed fact now the suit schedule property is in the possession of the plaintif. The 1st defendant in toto denied the execution of 7 agreement of sale. His contention is that there is no agreement at all in between them, but the plaintif highhandedly occupied the suit schedule property.
11.The suit is filed by the plaintif, hence the burden is on the plaintif to prove that there was an agreement between 1st defendant and plaintif, in pursuance of agreement the 1st defendant executed agreement of sale. In order to prove his case, the plaintif himself examined as P.W.1. He deposed in his evidence that the 1st defendant ofered to sell the house site for a consideration of
Rs.5,00,000/-, received Rs.4,50,000/- by way of advance and executed a possessory sale agreement dt.27.12.2004 agreed to execute a registered sale deed in his favour. Subsequently on 15.05.2005 he paid the balance sale consideration of Rs.50,000/- and the defendant made an endorsement on the back side of possessory sale agreement. Hence, he paid the entire sale consideration. Inspite of repeated demands the 1st defendant did not turn up to execute the sale deed. Apart from the evidence of P.W.1, the plaintif examined
P.W.2 who is said to be the attestor of Ex.A1 agreement of sale. P.W.2 deposed that the 1st defendant ofered to sell the suit schedule property to the plaintif, the 1st defendant received Rs.4,50,000/- by way of advance, executed a possessory sale agreement in favour of the plaintif. He was present at the time of execution of agreement of sale. Along with him Pampana Satyanarayana, Peruri Srinu, the plaintif and his father-in-law were also present. He further deposed that subsequently on 15.05.2005 the plaintif also paid the balance sale consideration.
Ex.A1 is the agreement of sale dt.27.12.2004 shows that the executant executed the agreement of sale in favour of the plaintif in respect of the suit schedule property. It is recited in Ex.A1 agreement of sale that because the title deeds are not with the executant, he could not handover and it is further recited that he could hand over whenever required by the plaintif and he got registered the suit 8 schedule property. It is further recited that the property was handed over to the purchaser on the date of execution of Ex.A1 agreement of sale. The plaintif also got marked property tax receipt. Ex.A3 is the legal notice dt.02.06.2017 issued to the defendant. Ex.A5 is photographs.
12.The 1st defendant has been examined as D.W.1. His evidence is that he did not receive Rs.4,50,000/- from the plaintif and not executed the agreement dt.27.12.2004 at any point of time, he did not receive Rs.50,000/- from the plaintif, he never delivered possession of the suit schedule property. The
Co-operative Society allotted Plot No.207, registered the same, he executed a registered gift deed as absolute owner in favour of his elder sister, dt.30.05.2005 since the date of gift he has been in possession of the suit schedule property.
Taking advantage of the age of the 2nd defendant and her husband, the plaintif highhandedly trespassed into the suit schedule property. The 2nd defendant has been examined as D.W.1. She deposed that the 1st defendant executed a registered gift deed dt.30.05.2005 bequeathing the plaint schedule property out of love and afection and delivered possession of the same. She accepted the gift deed, she has been in peaceful possession and enjoyment of the suit schedule property. The defendants got marked the gift deed said to have been executed by 1st defendant in favour of the 2nd defendant, the 1st defendant executed the gift settlement deed in respect of Plot No.207 on 30.05.2005. Ex.B2 is the sale deed in the name of the 1st defendant shows that Plot No.207 purchased by the 1st defendant. Ex.B3 is a report given by 2nd defendant dt.09.06.2017 to S.H.O. that the plaintif is interfering into the schedule property and obstructing them. Ex.B5 is letter addressed to Superintendent of Police that the plaintif occupied the site and constructed a shed using it for rearing his goats. Ex.B.6 is the Endorsement, dt.15.07.2022 from the office of the Superintendent of Police, East Godavari 9
District, Kakinada addressed to the husband of the 2nd defendant. Ex.B.7 is the office copy of the letter dt.27.02.2017 addressed by the husband of the 2nd defendant to the Superintendent of Police, Kakinada, East Godavari District.
Ex.B.8 is the Endorsement, dt.04.08.2022 received from the Superintendent of
Police, Kakinada, East Godavari District, by the son of the 2nd defendant. Ex.B9 is letter addressed by 2nd defendant to the Secretary, Gram Panchayat requesting to cancel the levy of tax and not to collect any further tax. Ex.B10 is a letter addressed to Executive Officer, Vakalapudi Gram Panchayat demanding to cancel the demand notice for the house tax from unauthorized party as it is highly irregular to issue the demand notice to a person who does not have any registered document.
13.At the instance of the defendants, Ex.A1 was sent to Forensic
Laboratory for opinion and after examination the expert gave his opinion that the person who wrote the blue enclosed signatures stamped and marked S1 to S25 did not write the red enclosed signatures similarly stamped and marked Q1 to Q3.
The expert has been examined as C.W.1 and the report was marked as Ex.C1.
The expert as C.W.1 deposed that he received one unregistered possessory agreement of sale, specimen signature of the 1st defendant and he examined all the documents and gave opinion that the person who wrote the blue enclosed signatures stamped and marked S1 to S25 did not write the red enclosed signatures similarly stamped and marked Q1 to Q3.
14.The defendants in toto denied the execution of Ex.A1 agreement of sale. The plaintif relying on Ex.A1 agreement of sale stating that it was executed by the 1st defendant. As per the recitals of Ex.A1, the possession was delivered to the plaintif under Ex.A1 agreement of sale on the date of agreement of sale. The defendants while admitting that the possession of the suit schedule property is 10 with the plaintif, they have taken a plea that the plaintif has forcibly encroached the suit schedule property. Their contention is that when they visited the suit schedule property, they found the plaintif encroached the suit schedule property, then they demanded to vacate, but the plaintif failed to vacate the suit schedule property, then they have taken steps to vacate the plaintif from the suit schedule property. The defendants got marked Ex.B3 to B10 stating that after knowing the encroachment made by the plaintif, they approached to the police, but the plaintif did not vacate the suit schedule property. As mentioned supra, when an agreement of sale is filed by the plaintif stating that it was executed by the 1st defendant and when it was denied by the executant, the burden is on the plaintif. Admittedly agreement of sale is not a compulsory attestable document.
When the agreement of sale is not a compulsory attestable document, the same can be proved by any modes i.e., by examining any of the attestor, scribe or the persons who are aware about the facts of agreement. Here in this case, the plaintif examined P.W.2 stating that he is attestor of Ex.A1 agreement of sale.
P.W.2 deposed in his evidence that he was present at the time of agreement of sale. Along with him Pampana Satyanarayana, Peruri Srinu, Plaintif, his father-in- law were present. During his cross examination he asserted that on the date of transaction i.e. on 27.12.2014, he, Pampana Satyanarayana, Srinu, the plaintif and his father-in-law were present. On the agreement of sale, the 1st defendant signed on two papers. The plaintif gave amount Rs.4,50,000/-.
15.The counsel for the plaintif contended that the evidence of P.Ws.1 and 2 corroborated with each other with regard to the execution of sale agreement. The evidence of P.Ws.1 and 2 also corroborated that an amount of
Rs.4,50,000/- paid and sale consideration of Rs.50,000/- received by the 1st defendant. D.W.1 for the first time stated in his chief examination that he gifted 11 away the suit schedule property in favour of his sister under Ex.P1, he never stated about the transaction under a document, it shows that the said document is made over document brought into with the active support for the purpose of over coming, the Ex.A1 sale deed and to escape from execution of registration of regular sale deed. D.W.2 did not state that she was put in possession of the plaint schedule property at any point of time. Though the opinion of the hand writing expert is a valuable, it is a weak piece of evidence. He relied on the following decisions.
(a)In AIR 1980 Supreme Court 531 in case between Murarilal Vs.
State of M.P. wherein their lordship held that “we are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered”.
(b)In AIR 2005 Andhra Pradeseh 180 in case between Smt.Renu
Devi Kedia Vs. Smt. Seetha Devi wherein their lordship held that “the disputed signatures are of the year 1995 and whereas the specimen signatures are of the year 2004, there is a gap of nearly nine years between the two signatures. So far as signatures of the petitioners appearing in written statement etc., there is every possibility of his disguising his style of signature so as to make them dissimilar with the disputed signatures. Since there are no contemporaneous signatures for comparison with the disputed signatures, there is no useful purpose in sending the suit documents to an expert for his opinion”.
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(c)In AIR 1960 Andhra Pradesh 359 (V 47 C 114) in case
between Vadrevu Annapurnamma Vs. Vadrevu Bhima Sankararao and
others wherein their lordship held that “there are many factors which have to be taken into consideration in effecting a comparison of the two signatures, and although a Court could apply its own eyes and its own mind to determine whether a particular signature is resembling another it would be going beyond the ordinary limits of the capacity of a Court to constitute itself as a Handwriting
Expert and try to compare the signature without all the gadgets and devices which are available to a Handwriting Expert, besides the lack of expert”.
16.The counsel for the defendants contended that the agreement of sale is a forged document. The 1st defendant has no necessity to execute document in favour of the plaintif. The plaint schedule property is absolute property of the 1st defendant and possession of the suit schedule property. The
Ex.A1 possessory agreement of sale is not a registered document, Section 47-A of schedule 1-A of Stamp Act says that the document is to be executed in a stamp paper which is equivalent to the sale deed but not 100 rupees stamp paper. The plaintif is an income tax assessee. Out of Rs.5,00,000/- he has paid Rs.4,50,000/- on the date of alleged agreement without taking the original sale deed from his vendor. As per the recitals of the agreement, the original was not available and it is with the third party if that is the case any prudent man obtained E.C., but no such E.C. was obtained. There are two registered offices at Kakinada and four
Registrar offices in and around at Kakinada, but the N.J. stamp was purchased at
Visakhapatnam. The conduct of plaintif clearly shows that Ex.A1 is not a genuine transaction and it was a forged document. As per the terms of Ex.A1 the balance to be paid at the time of registration of sale deed. Contrary to the terms of agreement, the plaintif paid the balance sale consideration on 15.05.2005 and 13 obtained the endorsement. It is also another suspicious circumstances the plaintif made public the alleged agreement of sale for the first time through a registered notice, the notice appeared to be drafted on 02.06.2017, but it was posted on 07.06.2017. The plaintif without giving any time to give reply got filed this suit. Exs.B1 to B10 filed by the defendant shows that the 2nd defendant given a police report that the plaintif trespassed into the plaint schedule property and also about execution of registered gift deed. The plaintif is aware of the police report, but suppressed the said fact in the plaint. Ex.A1 sale agreement was antedated to get over Ex.B1 registered gift deed dt.30.05.2005 executed by the 1st defendant in favour of the 2nd defendant. The defendant produced the original sale deed. Thus the plea of the plaintif that the title deed with the third parties is completely in correct. The dispute between parties arose for the first time four weeks before January, 2017 when the defendants went to suit schedule property and found the plaintif trespassed and constructed a shed in it, immediately the husband of the 2nd defendant gave a police report to the superintendent of police complaining that the plaintif trespassed into her property and rearing goats. The plaintif with a view to fabricate a document prior to Ex.B5 gift deed keep quiet till 02.06.2017 without issuing any notice. Ex.A1 is a rank forgery brought into existence by the plaintif either in the chief affidavit or in the cross examination
D.W.1 did not state that in the presence of attestors and scribe the defendant signed. P.W.1 failed to prove execution of Ex.A1. The non examination of stamp vendor is also fatal. The defendants sent Ex.A1 agreement of sale along with admitted signatures. The handwriting expert gave his detailed opinion, the evidence of C.W.1 is clear that the document is a forged document. The counsel for the defendants further submitted that the admissions of P.W.1 clearly shows that non existence of consideration. The plaintif deposed that he will file 14 documentary proof to show that he started his business from 2011, but he did not file the same. Hence adverse inference can be drawn against the plaintif for suppressing the best evidence which was available with him. As per the conditions in Ex.B2 sale deed he should alienate the site except the person who is a member of society. No prudent man having knowledge of prohibition of alienation of property and even a member obtain a written permission from the
Directors of Society. Without original sale deed or without obtaining the
Encumbrance Certificate and pay entire sale consideration clearly goes to show the rank forgery. The sale transaction is illegal and the court cannot stretch its hand to grant an equitable relief and the suit is liable to be dismissed on this ground. He draw the attention of the court to the section 23 and 56 of Indian
Contract Act, Section 16 and 20 of Specific Relief Act. He further contended that in chief affidavit or in the cross examination, P.W.1 did not state D.W.1 signed in the presence of attestors and scribe. The same is essential ingredient to prove due execution and passing of consideration. Thus P.W.1 failed to prove the execution of Ex.A1. He relied on following decisions.
(a)In case between Jonnalagadda Ravi Sankar Vs. Jakka Rama
Krishna Rao Decided on 2012 September 13 of High Court of Andhra
Pradesh wherein their lordship held that “the exercise to be undertaken under
Section 45 of the Act is somewhat typical. It is only an expert, who is conversant with the niceties of writing etc., that can express his view as to whether a particular writing or signature sent for comparison is that of the person, who is alleged to have subscribed to it. The existence of contemporaneous documents would certainly be helpful to an expert. Further, if the signatures on the depositions or the vakalat or pleadings are similar to those on the disputed document, they may also, be of help. However, it is too difficult to expect the 15 existence of contemporaneous documents or similarity between signatures on the disputed documents and those on the pleadings and vakalat. Mere absence of such helpful circumstances cannot render the whose exercise under Section 45 of the Act impossible or untenable. An expert is known for his capability to arrive at the conclusion even by taking note of the disputed writing irrespective of the time gap between the date of the sample and the date on which the disputed document was signed”.
(b)In case between Siddavarapu Abishek Paul Vs. Budala Daniel
Decided on 2023 July 28 of High Court of Andhra Pradesh wherein their lordship held that “even though there is a gap between the disputed signatures and admitted signatures, a science has been developed to compare such signatures also by taking into consideration the direction of the strokes, the speed of writing, the pattern of writing etc., therefore, it cannot be said that no useful purpose will be served by sending the document to the expert. After comparison, if the similarities of the disputed signature and the admitted signatures are very negligible, then the court can formulate its opinion with the assistance of the expert’s report and by comparing the signatures whether the report has to be accepted or not”.
(c)In case between Borra Laxmi Suhasini Vs. Jangala Subhashini on 22 September, 2023 of Telangana High Court wherein their lordship held that “when there is specific denial by the petitioner- defendant that her signature was forged, it is not safe for the trial Court to come to a conclusion that it has perused the signature of the defendant on the agreement of sale dated 18.03.2016 with that of signatures of the defendant on served summons, written statement and Vakalat. The said finding is contrary to the object and purpose of
Section – 45 of the Evidence Act”.
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(d)In case between Bande Siva Shankara Srinivasa Prasad Vs.
Ravi Surya Prakash Babu and Others on 18 December, 2015 of Andhra
High Court wherein their lordship held that “It is therefore not open to the Court to refuse to entertain an application seeking comparison of disputed handwritings/signatures with admitted handwritings/ signatures on the ground of a long lapse of time between the two sets of handwritings/ signatures”.
(e)In case between Budumuru Vijayanandh Vs. Potnuru
Bhagyalakshmi on 19 July, 2004 of Andhra High Court wherein their lordship held that “But as the law stands, the Court has no power to compel a person who disputed handwriting to produce documents anterior to the litigation.
However, it is always open to the opposite party to bring another document which is admitted to have been written by the person disputing the signature. In that view of the matter, I am not able to accept the submission of the learned counsel
for the respondent that the petitioner herein may be compelled to produce the
documents on which he admits his signature”.
17.The evidence of C.W.1 shows that he examined unregistered possessory agreement of sale along with specimen signatures obtained in the open court. The counsel for the defendants has submitted that even contemporary signatures are not available, the expert report cannot be thrown out on this ground and expert can examine the disputed document, with the documents available in the court. On the other hand, the contention of the plaintif is that without having contemporary signatures, the court sent the documents to the expert, thus, the expert opinion is not genuine. A perusal of the orders passed by this court in I.A.No.260/2023 shows that while permitting the defendant to send the document for examination of expert, the court directed to produce document containing the signatures before the date of disputed 17 document. The record shows that the defendant failed to produce any document
before the court. The evidence on record shows that a document Ex.B1 is
available with the defendant, but the defendant did not chosen to produce Ex.B1 document executed by the 1st defendant in the year 2005. But is not known why the defendant did not chosen to produce the said document. However this court has sent the said documents to the expert and the expert came to a conclusion that the signatures on the two documents were not written by the same person.
18.Admittedly in this case the expert came to a conclusion that the signature on disputed document and the signature obtained in the open court were not written by the same person. In this connection, it is to be noted that
Section 39 B.S.A. (Section 45 of Indian Evidence Act) makes it clear that the opinion of handwriting expert is a relevant factor but not a conclusive proof and it requires corroboration. In the decisions filed by the defendant also their lordships categorically held that the opinion of expert is a weak piece of evidence, therefore, it requires corroboration.
19.Admittedly here in this case, except the evidence of C.W.1 and the report of expert, there is no corroborative evidence on behalf of the defendant.
Now the question is how far the court can rely the expert opinion and whether the document Ex.A1 is genuine one or not. The contention of the plaintif is that the defendant has subscribed his signature in Ex.A1 agreement of sale and received
Rs.4,50,000/-. The expert gave his opinion that the signature is not tallied to the admitted signatures. As mentioned supra, it is not safe to rely on the sole testimony of C.W.1. If we peruse the evidence of D.W.1 who is said to be executant of Ex.A1 agreement of sale, he denied the execution of Ex.A1 agreement of sale in his chief examination and in his written statement.
Surprisingly, he also denied his signature on the written statement also. It is not 18 not known why the defendant has disputed his signature on the written statement. It seems that the defendant prepared and came to court to deny the signature on any document shown to him. In this connection, it is to be noted that the witness is not a rustic witness, D.W.1 had worked in the Co-operative
Society as Staf Assistant and he is a member of building society also, thus he is well aware about the court proceedings so also well aware about the nature of the document. Thus the attitude of D.W.1 clearly goes to show that only with an intention to deny the signature on the agreement of sale, he is also denying the signature on the written statement also. Further in the written statement the defendant has contended he is the absolute owner of the suit schedule property and the property has been in possession of defendant and he has been in possession of the suit schedule property. In the written statement nowhere he disclosed about the gift deed executed in favour of the 2nd defendant and in the written statement he claimed as if he is the owner of the property. Therefore, the attitude of defendant clearly goes to show that he suppressed the material facts
before the court, apart from that he is wantonly denying the signatures on Ex.A1
and written statement. Further there is nothing on record that the plaintif possessed any documents containing the signatures of the defendant. It is not the case of the defendant that earlier some transactions in between plaintif and defendant. Even he is not relative or friend of the defendant. Unless the plaintif possesses some documents containing the signatures of the defendant, it is not possible to forge the signature of the defendant since there is no chance of knowing the nature of putting signature or manner of putting signature by the defendant. Apart from that P.W.2 is a Deputy Tahsildar who worked in a responsible post. Apart from that the D.W.1 deposed in his evidence that he has no enmity with P.W.2, thus he has no necessity to depose against the defendant.
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Further P.W.2 in his cross examination categorically deposed about his presence, presence of the attestor and scribe at the time of transaction, the mode of payment. Though he met with a lengthy cross examination in the hands of the defendant’s counsel, nothing could elicited to discredit his testimony or disbelieve his version. Therefore, from the above said circumstances we can safely held that the defendant has subscribed his signature in Ex.A1, but he is taking a false plea subsequently.
20.The counsel for the defendants has submitted that the plaintif failed to prove the existence of consideration he failed to produce documents and he failed to prove that he is having capacity to give such amount. A perusal of the cross examination of P.W.1 shows that he deposed that he paid Rs.4,50,000/- and the same is cash in his business. He is having yearly turn over of 4 to 5 crores in his business fisheries etc. He is an income tax assessee. He further deposed that he can file documentary proof to show that his businesses were started from 2011 onwards.
21.Admittedly, the plaintif did not produce any documentary proof to show that he is doing business or earning capacity. During the course of cross examination of P.W.1 the counsel for the defendants try to elicit that the plaintif has no capacity to purchase the property, but all his eforts are failed. In this connection, it is to be noted that in the written statement a plea has taken that the 1st defendant never took any amount from the plaintif, no amount was paid under sale agreement. In the entire written statement, there is no pleading that plaintif has no financial capacity to pay Rs.5,00,000/-. It is settled law that any amount of evidence beyond the pleadings cannot be taken into consideration and the party should not travel beyond their pleadings. The defendant questioned the
P.W.1 without any pleading, however he failed to succeed in his attempts.
20
Admittedly the plaintif failed to produce the documents, but here in this case unless a pleading in the written statement, the defendant cannot question the financial capacity of the plaintif.
22.The contention of the defendants is that Ex.A1 brought into existence subsequent to issuance of police report. Thus the stamp paper purchased at
Visakhapatnam though register offices are available at Kakinada. Admittedly there are Registrar offices at Kakinada, but merely because the stamp paper was purchased at Visakhapatnam, we cannot come to a conclusion that it is a created one. If the intention of the plaintif is to create a document agreement of sale, he would have created the same with the recent date. Thus there is no substance in the contention of the defendants.
23.The counsel for the defendants contended that P.Ws.1 and 2 did not depose either in the chief examination or in the cross examination, the 1st defendant signed on Ex.A1 in their presence and they witnessed the same. The scribe and attestors signed on Ex.A1 in the presence of 1st defendant and 1st defendant witnessed the same, the same is necessary to prove the execution of a document, hence, plaintif failed to prove the execution of Ex.A1.
24.Ex.A1 is agreement of sale, it is not a compulsory attestable document. If the document is compulsory attestable document, when the execution is disputed by the executant, the same can be proved in the manner provided under section 67 B.S.A. corresponding to section 68 of Indian Evidence
Act. When the document is a compulsory attestable document, the propounder of the document must establish that the executant has signed or put thumb impression before the attesting witness and the attesting witness must sign in the presence of executant. But here in this case, Ex.A1 is not a compulsory attestable document, thus, the proof under section 68 of Indian Evidence Act is not required.
21
If the document is not a compulsory attestable document, the same can be proved by any other mode. Section 71 of B.S.A. (Section 72 of Indian Evidence
Act) says that an attested document not required by law to be attested may be proved as if it was unattested. Thus the agreement can be proved by examining the attestors, scribe or any other person who is familiar or who was present at the time of transaction and there is no need to examine any of the attestor to prove the agreement of sale. Therefore, no mention of the fact that the attestor witnessed that executant signed on the document and attestors subscribed their signatures in the presence of executant is immaterial. Further P.W.2 categorically deposed in his evidence that he was present at the time of execution of the said sale agreement, along with him Pampana Satyanarayana, Peruri Srinu, plaintif and his father-in-law were present. Pampana Satyanarayana signed as Witness
No.1 in the said agreement of sale. Thus the evidence of P.W.2 clearly goes to show that he witnessed the execution of Ex.A1 and the attestors attested the
Ex.A1 agreement of sale. Therefore, there is no substance in the contention of the defendant. As mentioned supra, P.Ws.1 and 2 deposed about execution of
Ex.A1 and payment of Rs.4,50,000/- under Ex.A1. P.W.2 who is the stranger to both parties asserted he was present at the time of payment of Rs.4,50,000/-.
Ofcourse, he belongs to the plaintif’s community, but simply because he belongs to plaintif’s community, it cannot be held that he is interested witness. Further there is no bar to rely on the testimony of interested witness. But his evidence must be scrutinized carefully. In this connection, it is to be noted that D.W.1 has deposed that he has no enmity with P.W.2. Apart from that P.W.2 was undergone a lengthy cross examination in the hands of the defendant counsel. But nothing could elicited to discredit the veracity of the witness or shaken the witness.
Therefore, the plaintif proved the execution of Ex.A1 agreement of sale and 22 payment of Rs.4,50,000/- made under Ex.A1 agreement of sale. Accordingly, this issue is answered.
25.Issue No.4:
It is the case of the plaintif that the defendant received
Rs.4,50,000/- under Ex.A1 agreement of sale and delivered possession of the suit schedule property. Subsequently the plaintif paid Rs.50,000/- on 15.05.2005 under an endorsement made by the defendant. Accordingly, he paid entire sale consideration of Rs.5,00,000/-. The defendant completely disputed the payment under Ex.A1 agreement of sale so also the payment made on 15.05.2005. It is the contention of the plaintif that the sale deed is not in the custody of the defendant on the date of execution of Ex.A1 agreement of sale, the 1st defendant agreed to execute a regular sale deed after delivering original sale deed. The same has been recited in Ex.A1 agreement of sale also. P.W.1 deposed in his evidence that the 1st defendant said that the sale deed is not in his custody and he will register the regular sale deed after getting the sale deed. P.W.1 further deposed that on 15.05.2005 he also paid the balance sale consideration of
Rs.50,000/- and accordingly he performed his part of contract. As per Ex.A1 the total sale consideration is Rs.5,00,000/-. Ex.A1 recitals shows that on the date of execution of Ex.A1 an amount of Rs.4,50,000/- has been paid and the defendant agreed to execute the regular sale deed and the recitals of Ex.A1 further shows that the balance amount of Rs.50,000/- is due. Thus Ex.A1 recitals shows that the terms and conditions between the parties is that the sale deed has to be executed in favour of the plaintif after getting the title deed. The plaintif has issued a notice under Ex.A3 legal notice dt.02.06.2017 that the defendant did not come forward to execute the registered sale deed he made several demands, but the 23 defendant is dragging on the matter on one pretext or other.
26.The plaintif contended that after receipt of legal notice the 1st defendant along with his sister and henchmen started interference with the peaceful possession and enjoyment of the plaintif. They are also influenced the police people. Contrary to the said pleading, the contention of the defendant is that the plaintif occupied the schedule property, the defendants gave a police report. D.W.1 in his evidence deposed that since he refused to sell the site to the plaintif, he highhandedly without any manner trespassed into the site. Then they gave a police report. After receipt of the 2nd defendant complaint, the police did not take any action against the plaintif and informed the 2nd defendant that it is a civil dispute. D.W.2 deposed in her evidence that in the month of January, 2017 she and her husband went to the suit schedule property, they found a thatched shed in the plaint schedule, then they questioned the plaintif to remove the same, then she gave a complaint to Superintendent of Police through her husband. The defendants got marked the report given to S.H.O. dt.09.06.2017.
27.Ex.B3 is the report given by the 2nd defendant that her brother gifted a site and Sayyad Vali claiming that he purchased the property and requested to take necessary action. Ex.B4 is letter from Public Information Officer to the husband of the 2nd defendant that the case filed by them in Cr.No.187/2017 was registered, later the case was referred as Civil in nature. Ex.B5 is letter addressed to Superintendent of Police that they visited the house, but found that Sayyad Vali occupied the site, he failed to produce the documents. Ex.B6 is a letter from
Superintendent of Police, Kakinada, dt.15.07.2022 that they received application from Gonela Ramakrishna on the petition submitted by him on 23.01.2017 and on 27.02.2017 and they informed that no information available regarding the petition of Gonela Ramakrishna since it was lapsed five years ago. Ex.B7 is a letter 24 addressed by the husband of 2nd plaintif that they submitted a representation on 23.01.2017 and he failed to vacate the property. Ex.B9 is the letter addressed to
Gram Panchayat by 2nd defendant to cancel the levy of tax issued in the name of the plaintif. Ex.B10 is a letter addressed to Executive Officer from son of 2nd defendant that tax demand notice to the rightful owner.
28.The defendants contention is that the plaintif occupied the schedule property and constructed a house, then they gave a police report, the police called the plaintif and admonished his behaviour. The plaintif contention is that since the defendants failed to get ready with regular sale deed, he got issued a legal notice on 02.06.2017 to the 1st defendant expressing his readiness to get a sale deed, but he kept quiet. After receipt of notice, the 1st defendant along with his sister 2nd defendant and some henchmen try to interfere into the peaceful possession and enjoyment of the plaintif. The defendant counsel contended that
Ex.A3 notice was issued after Ex.B5 report, there is nothing on record why he kept quiet till 2017 without issuing notice. Why he waited till June, 2017 when the police report was given in the month of January, 2017. P.W.1 has deposed that in the month of January, 2017 2nd defendant and her husband filed a police report that he occupied the site and an enquiry was conducted by the Sarpavaram
Police.
29.The contention of the defendant is that after giving a report to the
Superintendent of Police the plaintif got issued legal notice. On the other hand, the contention of the plaintif is that he has got issued a notice, thereafter the defendant without issuing reply notice came to his site and try to trespass the suit schedule property. From the evidence and pleadings on record of both sides, in the year 2017 both the defendants 1 and 2 have visited the suit schedule property and there was a dispute between plaintif and defendants 1 and 2. The 25 contention of the defendants is that 2nd defendant has given a police report on 23.01.2017 to the Superintendent of Police, the police called the plaintif and admonished him, thereafter he has got issued a notice. Except Ex.B5 office copy of the letter addressed to Superintendent of Police, there is no other evidence that the report was given to Superintendent of Police on 23.01.2017. There is nothing on record that the report reached to the Superintendent of Police. The postal cover or acknowledgment is not filed by the defendant the reasons best known to the defendants. Further the endorsement under Ex.B6 given by the
Superintendent of Police shows that no information is available in Spandana
Grievance Cell. There is nothing on record that a report was given to the police on 23.01.2017. Ofcourse P.W.1 deposed in his cross examination that on 23.01.2017 a report was given by the defendants against the plaintif, but basing on a simple stray sentence or admission, it is not desirable to rely on Ex.B5 which is self serving document of the defendants. Apart from that, there is no single pleading in written statement that a report was given by the 2nd defendant against the plaintif. The written statement pleadings are silent about Ex.B1 gift deed, Ex.B3 to Ex.B10. In the written statement the 1st defendant claimed the right and title of the property as if it is his property the written statement does not disclose about Ex.B1 gift settlement deed. It is to be noted that the 2nd defendant adopted the written statement of 1st defendant. She also did not reveal Ex.B1 or Ex.B3 to Ex.B10. It is settled law that any amount of evidence introduced during the pendency of the suit or trial without pleading cannot be taken into consideration and the party cannot travel beyond his pleadings. The defendant has taken such a plea of gift deed in favour of 1st defendant or the existence of Ex.B3 to Ex.B10 only at the time of filing of chief affidavit of 2nd defendant. Ex.B3 to Ex.B10 are not produced before the examination of D.W.2 26 the reasons best known to the defendants. Therefore the documents Ex.B3 to
Ex.B10 cannot be taken into consideration as there is no such pleading in the written statement and the written statement contents shows that the 1st defendant claimed the property as if his property but he changed his version subsequently.
30.The defendants counsel contended that Specific Performance is a discretionary relief, the plaintif did not approached to the court with clean hands, hence, the plaintif is not entitled for specific performance. The counsel for the defendants has contended that the sale transaction is illegal in view of Section 23 and Section 56 of Indian Contract Act. He relied on the following decisions.
(a)In case between G.Veera Brahmam Vs. Smt.Gopalapuram
Sammakka & Anr. Andhra Pradesh High Court July 4, 2008 wherein their lordship held that “It hardly needs any mention, that in a suit for specific performance of an agreement of sale, heavy burden sets upon the plaintiff, not only to prove the execution of the agreement of sale, but also his entitlement for the relief there under. Mere proof of the agreement; does not, by itself, entail in grant of relief. The Court is required to weigh several aspects, before the decree for specific performance is passed. Even where the suit is found to be within limitation, the passage of time, and bonafides of the plaintiff, rather the absence thereof; would become important factors”.
(b)In case between Parapati Garamma (Died) By Lr. Vs.
Sidapana Ratnalamma on 28 February, 2007 of Andhra High Court
wherein their lordship held that “in a suit for Specific Performance, the parties are expected to approach the Court with clean hands while praying for the discretionary relief. Here, it is doubtful relating to the identify of the executant herself. The specific answers given by P.W.3 would create serious doubt relating 27 to the identity of the person who in fact had executed Ex.A1. When such crucial aspect itself is in controversy, this court is of the considered opinion that the evidence of P.Ws.2 and 4, the attestors, who may be otherwise interested in
P.W.1, may not improve the situation so as to strengthen the case of the plaintiff.
When that being so the reason records by the Court of first instance being convincing reasons, the reversal made by the appellate court cannot be sustained”.
(c)In case between Chodi Mahalakshmi Vs. Koppada Sathiraju and others of Andhra Pradesh High Court March 4, 2011 wherein their lordship held that “Further more, the plaintiff’s conduct is not bonafide and did not act as a prudent and reasonable man to ascertain the particulars of the loan and did not make any attempt at any time to get it discharged and also came with a false plea of payment of sale consideration which dis-entitles him for the equitable relief of specific performance”.
(d)In case between P.Prabhakara Rao Vs. Y.Venkata Mohan Rao on 21 August, 2006 of Andhra High Court wherein their lordship held that “It is stated that when the plaintiff has not approached the court with clean hands making false allegations that the said letter had been sent under certificate of posting and that an amount of Rs.6,500/- was paid on behalf of the plaintiff by the said Brahma Reddy towards part of sale consideration, the discretionary relief under the specific performance of agreement of sale cannot be granted in favour of the plaintiff”.
(e)In case between Narayanamma and Anr. Etc., Vs. Govindappa and ors. etc. on 26 September, 2019 of Supreme Court of India wherein their lordship held that “the court observed that, whichever approach is adopted, one party would succeed and the other would fail and, therefore, it is necessary 28 to enquire as to which party’s success would be less injurious to public interest.
The Court in the facts of the said case finds that if the decree was to be passed in favour of respondent No.1 (who was the plaintiff), it would be actively assisting respondent No.1 to give effect to the fraud to which he was a party and it has been held that in that sense the Court would be allowed to be used as an instrument of fraud and that is clearly and patently inconsistent with public interest”.
(f)In case between Papaiah Vs. State of Karnataka & Ors. on 23
August, 1996 of Supreme Court of India wherein their lordship held that “Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee”.
(g)In case between G.T.Girish Vs. Y.Subba Raju(D) By Lrs. on 18
January, 2022 wherein their lordship held that “the agreement to sell involved clearly terms which are impliedly prohibited by law in that the first defendant was there under to deliver title to the site and prevented from acting upon the clear obligation under law. This is a clear case at any rate wherein enforcing the agreement unambiguously results in defeating the dictate of the law. The ‘sublime’ object of the law, the very soul of it stood sacrificed at the altar of the bargain which appears to be a real estate transaction. It would, in other words, in allowing the agreement to fructify, even at the end of ten-year period of non- alienation, be a case of an agreement, which completely defeats the law for the reason already mentioned”.
(h)In case between Rukmini Devi Vs. Pawan Kumar Gupta on 23
February, 1978 of Patna High Court wherein their lordship held that “in a 29 decree for specific performance of contract, the decree must direct the original vendor and the subsequent purchaser to execute the sale deed in favour of the petitioner. If the subsequent purchaser has not been, directed to execute the sale deed in favour of the petitioner, the decree cannot be executed against him.
Hence in a case of specific performance of contract such decree must be passed in order to effect delivery of possession on the subsequent purchaser”.
31.According to the plaintif after execution of agreement of sale, the 1st defendant requested to arrange Rs.50,000/- to the plaintif on that he has arranged Rs.50,000/- on 15.05.2005, therefore, he has paid entire sale consideration. During the course of trial, the plaintif paid deficit stamp duty on
Ex.A1 transaction. The record shows that the plaintif paid stamp duty for entire consideration of Rs.5,00,000/-. A perusal of Ex.A1 document shows that there was a payment endorsement, but in this case the plaintif did not take steps to get mark the payment endorsement, dt.15.05.2005. It is for the plaintif to take steps to get mark the said document. But there is nothing on record that the plaintif made attempts to get mark the said document, but the court refused to get mark. However it is for the plaintif to get mark the payment endorsement.
Ofcourse Ex.A1 agreement of sale was marked, but the Ex.A1 agreement of sale only shows the transaction dt.27.12.2004. It is the contention of the plaintif that subsequent to Ex.A1, there was a payment transaction on 15.05.2005. Therefore, the transaction, dt.15.05.2005 was happened in a diferent date, when it is happened subsequent to Ex.A1 agreement of sale, the same has to be marked.
According to the plaintif, after payment of Rs.50,000/- on 15.05.2005, the payment consideration is completed, thus, the plaintif intending to believe the court that he has paid an amount of Rs.50,000/- on 15.05.2005. Contrary to the plaintif’s case, the defendant is strongly denying the payment dt.15.05.2005.
30
Therefore, the plaintif has to prove the same. But the plaintif did not take steps to get mark the alleged payment dt.15.05.2005. Unless the said payment endorsement is marked, the same cannot be scrutinized by the court because unmarked document cannot be looked into. It is a settled law that the unmarked document cannot be a part of document, unless the said payment endorsement is marked, the court cannot looked into the same. Therefore, the balance payment endorsement alleged by the plaintif is not proved.
32.Apart from that the transaction under Ex.A1 has taken place on 27.12.2004, it is recited in Ex.A1 agreement of sale, the vendor agreed to execute the sale deed after getting sale deed on receipt of balance sale consideration.
Ex.A1 recitals further goes to show that the 1st defendant agreed to receive the balance sale consideration on the date of registration. There is no explanation why the plaintif did not insist the 1st defendant to deliver his document on the date of payment of balance. Even if we assume that payment made under Ex.A2 is correct there is nothing on record why the plaintif did not sought for the original sale deed from the 1st defendant. In this connection, it is to be noted that it is the case of both parties that at the time of execution of Ex.A1 agreement of sale a photostat copy of the sale deed of 1st defendant was handed over to the plaintif. Except recital that the 1st defendant will hand over the document at the time of registration and the documents are not available with him, there is no clarification where the documents or in whose custody the documents by the date of Ex.A1. The plaint pleadings also not clear where the document of the 1st defendant except stating that a representation was made by the 1st defendant that he will hand over at the time of registration since the original is not available.
In this connection it is to be noted that there is a condition in Ex.B2 sale deed that the property shall not be alienated to outers without permission of co-operative 31 society. The plaintif is also well aware about the conditions mentioned in Ex.B2 as on the date of entering into contract under Ex.A1. But there is nothing on record either the plaintif or the vendor try to get any permission from
Co-operative Society to purchase the property. Thus the evidence on record clearly goes to show that the plaintif having knowledge that the property shall not be alienated to the stranger, wantonly entered into the contract. It may be one of the reason for not insisting to get a sale deed. It is to be noted that agreement of sale is not a document within the meaning of sale deed, to complete a sale transaction one must possess a registered sale deed. It is settled law that no right and title can be transferred under agreement of sale. But the plaintif did not take steps to get a sale deed immediately the reasons best known to him. As per Ex.A1, the document was executed in the year 2004. There is nothing on record from 2004 till Ex.A3 notice, the plaintif try to get a register sale deed or demanded the 1st defendant to deliver the document. If any demand is made by the plaintif is only under Ex.A3 notice.
33.However it is an admitted case of the plaintif that in the year 2017 there was a resistance from the defendant about execution of sale deed after issuance of notice under Ex.A3. It is the case of the plaintif he has issued notice under Ex.A3 on 02.06.2017. It is the own case of the plaintif that he has issued notice for the first time on 02.06.2017 before he never issued any notice. No explanation ofered by the plaintif why he has issued any legal notice till 02.06.2017. Admittedly the document Ex.A1 is on 26.12.2004. The notice has been issued on 02.06.2017. The plaintif keep quiet for a period of more than 10 years and approached before the court. Ofcourse no time is fixed for performance of the regular sale deed in Ex.A1 and as per Ex.A1 after getting the title deed, whenever required by the plaintif, the defendant has to execute the 32 sale deed.
34.The plaintif who is seeking enforcement of contract must prove that he is ready and willing to perform his part of contract. It is not sufficient to say that he is ready and willing to perform his part of contract just before filing of suit, the plaintif must prove his continuous readiness and willingness. Admittedly the limitation starts from the date when the defendant refused to perform his part of contract and the plaintif has to file the said suit within three years from the date of refusal. As per the recitals of Ex.A1, the 1st defendant has to produce the register sale deed and on his production the plaintif can sought for registration of sale deed. But there is nothing on record why the plaintif did not demand for production of the sale deed. There is no explanation why the plaintif has keep quiet for a period of more than 12 years. Ofcourse the defendant has to produce his documents, but there must be some reasonable time for performance. When the defendant failed to produce the document within the reasonable time, the plaintif has to demand the defendant for production of the sale deed. From the evidence on record it is manifest that there was a resistance from the defendant in the year 2017, then only the plaintif approached to the court. There is nothing on record that from the date of execution of Ex.A1 the plaintif expressed his willingness to perform his part of contract. Ofcourse the 1st defendant has to produce the documents, but it is to be noted that the entire sale consideration was paid as per the contention of the plaintif, but there is no explanation why he did not sought for link document immediately. There is nothing on record that the plaintif demanded the defendant for production of document and getting sale deed. The Ex.A3 notice only indicates that the plaintif was willing to perform his part of contract when he issued the notice. Though there is no specific evidence that the defendants have visited the schedule property before issuance of Ex.A3 33 notice, but there is no clarification from the plaintif why he keep quiet for a period of more than 12 years. The attitude of the plaintif clearly goes to show that he is not willing to get regular sale deed. In this connection, it is to be noted that it is an admitted case of both parties the 1st defendant acquired the property under Ex.B2 sale deed from the Co-operative Society. There is a condition in
Ex.B2 that the property shall not alienate to strangers except a member of the
Society or with the permission of the board. The evidence on record shows that though original sale deed is not supplied to the plaintif, the copy of the sale deed was supplied to the plaintif and the plaintif is aware about the terms mentioned in copy of Ex.B2 sale deed. This may be one of the reasons for the plaintif for not demanding the regular sale deed. Anyhow, there is nothing on record that the plaintif have shown his readiness to get a sale deed or eagerly waited for getting a sale deed.
35.Apart from that though Ex.A1 shows that the 1st defendant received
Rs.4,50,000/-, an endorsement was made on the back side of Ex.A1 agreement of sale, but as mentioned supra the plaintif failed to prove the balance payment made. Further the plaintif failed to prove his willingness to perform his part of contract. The plaintif seeking enforcement of contract must show his willingness and readiness to get a sale deed. But here in this case the readiness is lacking.
Therefore, the plaintif failed to prove that he is ready and wiling to perform his part of contract. Accordingly, this issue is answered against the plaintif.
36.Issue Nos.3 and 5:
The suit is filed by the plaintif seeking the relief of specific performance of contract and the plaintif also sought for alternative relief of refund of sale consideration of Rs.5,00,000/- with interest. The contention of the defendant is that the interest is excessive. In view of the discussion made supra, 34 the plaintif proved the execution of Ex.A1 agreement of sale. But the plaintif failed to prove the balance payment of Rs.50,000/-. The plaintif also failed to prove that he is entitled for specific performance of contract.
37.As mentioned supra, the plaintif proved the payment made under
Ex.A1 for Rs.4,50,000/- only. Therefore he is entitled to recover the amount from the plaintif. No doubt the limitation for recovery of amount is three years, but here in this case the specific performance of contract is declined. When a suit for specific performance is filed and the specific performance is declined, the limitation to recover money starts from the date of refusal of specific performance as per Article – 47 of Limitation Act. Thus the limitation starts from the date of refusal of specific performance, accordingly, the plaintif is entitled for recovery of amount. Though there is no proof that the plaintif paid Rs.50,000/- as mentioned supra the plaintif proved that an amount of Rs.4,50,000/- was paid towards part sale consideration. Thus he is entitled to recover the amount of Rs.4,50,000/-.
38.As far as the interest the contention of the defendant is that the interest claimed is usurious. Admittedly the transaction under Ex.A1 is not a money transaction or debt due. The transaction under Ex.A1 is a sale and amount was passed by way of consideration. There is no contract rate of interest for recovery of amount. In the plaint, the plaintif sought 12% interest from the date of transaction. The interest claimed by the plaintif is reasonable, therefore, the plaintif is entitled to alternative relief of recovery of amount Rs.4,50,000/- with 12% interest from the date of agreement of sale.
39.Issue No.6:
The plaintif sought for the relief of permanent injunction. Admittedly the possession is with the plaintif. It is the case of the plaintif that as per the terms of Ex.A1 he has been possession of the suit schedule property whereas the 35 contention of the defendant is that the plaintif has occupied the schedule property. Therefore, it is admitted case of both sides the schedule property is now in possession of the plaintif. The contention of the plaintif is that he has been in possession of the suit schedule property by virtue of Ex.A1 agreement of sale. His contention is that the transaction has taken possession under agreement of sale dt.27.12.2004 and consideration is paid. The legal conditions prescribed under section 53-A of Transfer of Property Act are fulfilled by the plaintif, as such protection is available to the plaintif who is in possession of the plaint schedule property under an unregistered agreement of sale. He relied on the following decisions.
(a)In AIR 1977 Supreme Court 2425 in case between
M/s.Technicians Studio Pvt. Ltd., Vs. Smt.Lila Ghosh and another wherein their lordship held that “it is well settled that Sec.53A confers no active title on the transferee in possession, it only imposes a statutory bar on the transferor”.
(b)In AIR 1950 Supreme Court in case between Maneklal
Mansukhbhai Vs. Hormusji Samshedji Ginwalla & Sonswherein their lordship held that “A formal lease is not necessary to attract the application of
S.53-A T.P.Act. All that is required is that an agreement in writing signed by the transferor can be gathered from the evidence. The correspondence mentioned in
Ex.181 fully establishes that fact”.
(c)In AIR 2004 Supreme Court 4342 in case between Rambhau
Namdeo Gajre Vs. Narayan Bapuji Dhotra wherein their lordship held that “Protection provided under Sec.53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed 36 transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party”.
40.The counsel for the defendant submitted that the plaintif is not entitled to the benefits of Section 53-A Transfer of Property Act because it can be used as a shield but not as a sword under law.
In case between Krishnamoorthy Koundar Vs. Paramasiva
Koundar on 2 April, 1981 of Madras High Court wherein their lordship held that “it is well established that Section 53-A of the Transfer of Property Act provides for a passive equity and not for an active equity. Therefore the plaintiff cannot seek his relief of injunction in a court of law based on S.53-A of the
Transfer of Property Act though he can use S.53-A to debar the transferor who has agreed to sell the property from claiming any right in respect of that property.
It is well established that the right conferred by S.53-A is a right available to the defendant only to protect his possession on the basis of that section the defendant cannot claim any title and it merely operates as a bar to the plaintiff to ascertain his title. Though in English law the equity of part performance is an active equity, which the plaintiff in possession may enforce in an independent suit or proceeding, such as a suit for specific performance or for an injunction to restrain dispossession such equity is not available after the amendment of the
Transfer of Property Act in the year M9. In this case the plaintiff used his right under S.53-A not a shield but as a sword. Hence the plaintiff is not entitled to the injunction sought for by him”.
41.The evidence on record shows that the possession is with the plaintif. It is admitted by the defendant that now the possession is with plaintif.
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Ex.A1 recitals shows that the possession is with plaintif. The contention of the plaintif is that his right is protected under section 53-A of Transfer of Property Act.
Admittedly Section 53-A creates a right in favour of the transferee to protect his possession, but the transferee has to fulfill the conditions laid in Section 53-A
Transfer of Property Act.
42.The following conditions are required to claim a protection under section 53A of Transfer of Property Act:
(i)There must be a contract to transfer for consideration any immovable property.
(ii)The contract must be in writing, signed by the transferor, or by someone on his behalf.
(iii)The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
(iv)The transferee must in part performance of the contract take possession of the property, or of any part thereof.
(v)The transferee must have done some act in furtherance of the contract.
(vi)The transferee must have performed or be willing to perform his part of the contract.
43.Therefore, to get the benefit under section 53-A of Transfer of
Property Act, the plaintif must prove that he has done some act in furtherance of the contract and he has performed and willing to perform his part of contract.
Here in this case, the plaintif failed to prove the balance payment of amount.
Apart from that the plaintif also failed to prove that he is ready and willing to perform his part of contract. Thus the plaintif is not entitled for the protection available under section 53-A of Transfer of Property Act.
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44.In the decision cited the plaintif AIR 1977 Supreme Court 2425 in
case between M/s.Technicians Studio Pvt. Ltd., Vs. Smt.Lila Ghosh and
another, also the lordship held that the right is subject to condition that the transferee has performed or willing to performed his part of contract. In the decision cited by the plaintif in AIR 2004 Supreme Court 4342 in case between Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra also the lordship observed that the conditions of Section 53-A of Transfer of Property Act required to be fulfilled. The decision relied by the plaintif in AIR 1950 Supreme
Court in case between Maneklal Mansukhbhai Vs. Hormusji Samshedji
Ginwalla & Sons, theirlordship observed that in pursuance of the agreement, all the acts were done, but here in this case the plaintif failed to prove his readiness, thus the decision is not applicable to the present set of fact as the facts are diferent. Here in this case, the plaintif failed to prove that he is willing to perform his part of contract, thus the decisions cited by the plaintif are not helpful to the plaintif. Therefore, the plaintif cannot be protected under section 53-A of Transfer of Property Act and he is not entitled for the relief of permanent injunction.
45.Issue No.7:
In the result, the suit is decreed in part, in favour of the plaintif and against the 1st defendant in respect of alternative relief for refund of
Rs.4,50,000/-, accordingly the 1st defendant is directed to pay a sum of
Rs.4,50,000/- to the plaintif with interest at the rate of 12% p.a. from the date of agreement of sale, dt.27.12.2004 till the date of decree and thereafter at the rate of 6% p.a. from the date of decree till the date of realization on the amount of
Rs.4,50,000/-. The relief of specific performance is hereby declined.
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As far as the relief of permanent injunction, the suit is dismissed. In view of the circumstances of the case, both parties do bear their own costs.
Dictated to the Stenographer Gr.III on Type to dictation, corrected and pronounced
by me in open court on this the 24 th day of January, 2025.
Sd/- K.Sailaja
Principal Civil Judge (Senior Division)
Kakinada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff: P.W.1: Sayed Vali P.W.2: Mohammad Ismail
For Defendants: D.W.1: Pepakayala Venkata Rao D.W.2: Gonela Sita Rama Krishna Tulasi Laxmi Devi
For C.W.: C.W.1: R.B.Bhosale
DOCUMENTS MARKED
For Plaintiff:
Ex.A.1: Possessory sale agreement, dt.27.12.2004 executed by 1st defendant in favour of plaintif (marked subject to objection) Ex.A.2: Property tax receipt issued by Vakalapudi Grama Panchayath in the name of plaintif. Ex.A.3: Office copy of legal notice dt.02.06.2017 got issued by the plaintif to the defendant. Ex.A.4: Postal acknowledgment of 1st defendant. Ex.A.5: Bunch of four photographs along with C.D.
For Defendants: Ex.B.1: Registered gift deed dt.30.05.2005 vide Doc.No.6614/2005 of S.R.O. Kakinada. Ex.B.2: Registered sale deed dt.31.12.2001 vide Doc.No.8562/2001 of S.R.O. Kakinada.
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Ex.B.3: Office copy of the report given by 2nd defendant to S.H.O. Sarpavaram dt.09.06.2017. Ex.B.4: Letter dt.02.07.2022 received from the Public Information Officer, S.H.O. Sarpavaram to the husband of the 2nd defendant. Ex.B.5: Office copy of the letter dt.23.01.2017 addressed by the husband of the 2nd defendant to the Superintendent of Police, Kakinada, East Godavari District. Ex.B.6: Endorsement, dt.15.07.2022 from the office of the Superintendent of Police, East Godavari District, Kakinada addressed to the husband of the 2nd defendant. Ex.B.7: Office copy of the letter dt.27.02.2017 addressed by the husband of the 2nd defendant to the S.P., Kakinada, East Godavari District. Ex.B.8: Endorsement, dt.04.08.2022 received from the S.P., Kakinada, East Godavari District, by the son of the 2nd defendant. Ex.B.9: Office copy of the letter dt.13.03.2020 addressed by the 2nd defendant to the Secretary, Vakalapudi Gram Panchayat. Ex.B.10: Office copy of the letter dt.22.10.2021 addressed by the son of the 2nd defendant to the Executive Officer, Vakalapudi Gram Panchayat. For C.W.: Ex.C.1: Expert Report
Sd/- K.Sailaja
Prl. Civil Judge (Senior Division) Kakinada.