1 A.S. No.57 of 2022
IN THE COURT OF THE I ADDITIONAL DISTRICT & SESSIONS JUDGE,
SRIKAKULAM.
PRESENT: Smt K. Sreedevi, I Additional District Judge, Srikakulam.
Wednesday, the 27th day of March, 2024.
Appeal Suit No.57/2022
Between:
Kuppannagari Saibaba, S/o late Jagannadha Rao, Hindu, aged 65 years, Retired employee, R/o Kandha Street, Palakonda-532440, Parvathipuram, Manyam District.
.. Appellant /Plaintiff
And :
1. Anapu Ayyappa, S/o late Jogulu, 72 years, Hindu, Mason and Cultivation, resident of Main Road, Nagasapu Street, Palakonda- 532440, Parvathipuram Manyam District.
2. Bontu Majji Gavarayya, S/o Polayya, aged 49 years, R/o Pradhana Veedhi, Palakonda, Palakonda mandal, parvathipuram Manyam District. (Presently Jettivari Veedhi, Near Venkateswara Theatre, CARE Clinical Laboratory, Palakonda-532 440, Parvathipuram Manyam District.
3. Pakki Jeevaratnam, aged 70 years, S/o Abraham, R/o Pradhana Veedhi, Gayatri Colony, Opposite RDO Office, Palakonda-532440, Palakonda mandal, Parvathipuram Manyam District.
4. Baraatam Laxmana Murty, S/o Kanakayya, aged 73 years, R/o MM Nagar, Palakonda, Palakonda mandal, Srikakulam District (Presently R/o Flot No.101, Satya Niwas Apartments, Rella Veedhi, Srikakulam -532 001 (Post and District)
5. Baratam Ramanamma, W/o Laxmana Murty, aged 73 years, R/o 14-536, village Vadama, Palakonda mandal, Srikakulam District. (Presently R/o Flat No.101, Satya Niwas Apartments, Rella Veedhi, Srikakulam-532 001 ( Srikakulam Post and District.
.. Respondents/ Defendants
On an appeal against the decree and judgment dated 10.10.2022 in
O.S. No.73/2010 on the file of the Senior Civil Judge's Court, Rajam.
Between:
Kuppannagari Saibaba
..Plaintiff
2 A.S. No.57 of 2022
And :
1. Anapu Ayyappa
2. Bontu Majji Gavarayya
3. Pakki Jeevaratnam
4. Baraatam Laxmana Murty
5. Baratam Ramanamma
..Defendants
This appeal is coming on 21.03.2024 before me in the presence of
Sri B. Jagadeeswara Rao, Advocate for the Appellant and of Sri B.
Appalanaidu, Advocate for the respondents 4 & 5 and respondents 1 to 3 are remained exparte and the matter having stood over for consideration till this day, this court delivered the following:
J U D G E M E N T
The plaintiff filed the suit against the defendants for specific performance of the agreement of sale dated 14.03.2007 directing the defendant to execute registered sale deed in favour of the plaintiff for the plaint schedule land as per the terms entered at the time of execution of suit agreement of sale, at the costs of the plaintiff and deliver the plaint schedule land to the plaintiff and if the defendant is not willing to come forward to execute sale deed, the court may be pleased to execute registered sale deed in favour of the plaintiff as per terms of the agreement of sale or in the alternative if for any reason the court comes to the conclusion that decree for specific performance of the suit agreement of sale cannot be ordered, for refund of the amount towards sale consideration of Rs.4,75,000/- received by the defendant under the suit agreement of sale with interest at 24% per annum and damages for default and for costs of the suit.
02. For the sake of convenience, the parties would be referred to as they were arrayed before the trial court and for comprehension their brief contentions are mentioned hereunder:
3 A.S. No.57 of 2022 03.The brief averments of the plaint are that, the defendant
No.1 for his family necessity, agreed to sell the plaint schedule land to the plaintiff @ Rs.55,000/- per cent and executed agreement of sale
dated 14.03.2007 in favour of plaintiff. At the time of execution of the
agreement of sale, the defendant received Rs.75,000/- as advance of sale consideration from the plaintiff. Further, the defendant agreed to execute regular registered sale deed along with his family members who are having interest in the property by 31.08.2007 and receive the balance of sale consideration at the time of registration of sale deed. At the time of entering into sale agreement, that there is 15 feet width of “Rastha” from Panchayat road through the shares of land of Atchayya,
Latchayya and Suryanarayana who partitioned the land in S.No.4/7 of the defendant. The defendant also represented the plaintiff that the rasta is mentioned in the partition deed and will bring all the title deeds and relevant documents and demarcate the 15 feet rasta towards east by the side of channel up to panchayat road towards south before executing registered sale deed. Believing the representation of the D1 and agreed to purchase the land for the purpose of house sites plaintiff entered into agreement of sale dated 14.03.2007. Subsequently, the 1st defendant in collusion with defendant No.2 and 3 executed nominal sale deeds dated 18.10.2011, bearing No. No.2588/2011, dated 18.10.2011, bearing No.2589/2011 for the plaint schedule land. The defendants 2 and 3 cannot not get any right on the schedule land as per sale deeds, dated 18.10.2011 as the same are void and unenforceable documents.
4 A.S. No.57 of 2022
Subsequently. the defendants 1 to 3 in collusion and to defraud the plaintiff executed nominal sale deeds (1) dated 16.10.2012, bearing No.2791/2012 and (2) Dt.16.10.2012 bearing
No.2792/2012 in favour of the D4 and D5 for the plaint schedule land.
The D4 and D5 cannot get any right on the schedule land basing on sale deed dated 16.10.2012 bearing No.2791/12 and 2792/12.
Subsequent to the execution of the agreement of sale, the defendant approached the plaintiff and requested to pay an amount of
Rs.2,00,000/- towards part payment of sale consideration of the agreement of sale as the defendant is in urgent need of money for marriage of his daughter. At the request of the defendant, the plaintiff paid Rs.2,00,000/- on 07.06.2007 and the defendant received the cash towards part payment of sale consideration and executed receipt on 07.06.2007 on the back side of the agreement of sale in favour of the plaintiff for Rs.2,00,000/- and again on 10.10.2007 at request of the defendant, the plaintiff paid Rs.2,00,000/- towards part payment of sale consideration of the agreement of sale and the defendant received the amount and issued receipt dated 10.10.2007 in favour of the plaintiff for Rs.2,00,000/- . In total the defendant received an amount of Rs.4,75,000/- from the plaintiff towards part payment of sale consideration of agreement of sale dated 14.03.2007. The plaintiff on several times, approached the D1 with the balance of sale consideration and money for stamps and registration charges for registration of sale deed and requested the defendant to show the documents of title and documents relating to demarcation of 15 feet rasta. The plaintiff requested the D1 to measure the land and 5 A.S. No.57 of 2022 demarcate and show the 15 feet rasta up to Panchay at road towards south by the side of channel. But the defendant failed to show documents and did not come forward to measure the land and to demarcate rasta. The plaintiff reliably learnt that the defendant had intentionally misrepresented about the 15 feet rasta to commit plaintiff to enter into the agreement of sale.
Unless there is way as agreed, the plaintiff cannot convert into house sites and ought not to have agreed to purchase the land if there is no way of 15 feet as promised by the defendant. The defendant cheated the plaintiff by making false representations and getting into agreement of sale with an intention to have unlawful gain.
The plaintiff always ready with the balance of sale consideration and money for stamp and registration charges and requested the defendant to get ready with the required documents.
But, the defendant failed to do so and committed default. The plaintiff requested the defendant several times in person and through elders to execute registered sale deed but, the defendant having admitting his liability, postpone to execute the registered sale deed. The plaintiff is ready with the balance of sale consideration and for money to purchase stamps and registration charges. Plaintiff got issued registered notice dated 23.03.2010 and the defendant received the said notice and failed to come to execute registered sale deed. The defendant got issued reply notice, dated 02.04.2010 admitting the execution of the suit agreement of sale. The plaintiff always ready and willing to get the registered sale deed and the defendant willfully committed default and failed to execute registered sale deed in terms of 6 A.S. No.57 of 2022 agreement of sale. Hence, the plaintiff filed the suit for specific performance of agreement of sale, dated 14.03.2007 and alternative relief for refund of amount of Rs.4,75,000/- paid by the plaintiff towards advance sale consideration with interest @ 24% and for damages for default. Hence, this suit.
04.The 1st defendant filed written statement denying the averments in the plaint and further contended that the alleged agreement of sale deed dated 14.03.2007 and the particulars and the boundaries measurements stated there in are not correct. Originally the land to an extent of Ac.0.13 cents in S. No.4/7 is in the name of
Anapu Jogulu and he got four sons namely Atchayya,
Ayyappa/defendant, Latchayya and Suryanarayahna. After the death of Jogulu the said dry land was devolved to the defendants share. The said dry land is situated in NK Rajapuram village in Palakonda
Panchyat. The defendant has got three major daughters namely
Aparna, Parvathi and Lakshmi. The defendant performed their marriages. The daughters of the defendants are also share holders of the said property. The alleged agreement of sale schedule land is the ancestral property of the defendant and her daughters. The daughters of the defendant were coparcener and they are members of the undivided Hindu Joint family. The daughters of the defendant are not signed in the alleged agreement of sale dated 14.03.2007. The plaintiff never requested the defendant personally or through elders to execute registered sale deed. The alleged sale agreement, dated 14.03.2007 is void document and not binding on the defendant. The defendant gave a suitable reply, dated 02.04.2010 through his counsel for the said 7 A.S. No.57 of 2022 notice got issued by the plaintiff dated 23.03.2010. The plaintiff suppressed the true facts and filed false suit basing on the concocted and forged documents. The plaintiff came to the court with uncleaned hands and the suit itself is not maintainable under Law and it is not bonafide one and prays to dismiss the suit.
05.The defendants 2 and 3 also filed written statement by denying averments in the plaint and further contended that and the averments of the plaint are not known to them about the execution of registered sale deed, so also facts that the 1st defendant and others sold the plaint schedule land to the defendants 2 and 3 and they are perfectly purchased the said property form the 1st defendant and others for a valuable consideration of rs.4,10,000/- each on 18.10.2011 vide Doc. Nos. 2588/11 and 2589/11. The D2 and D3 have got right on the schedule land through the sale deed dated 18.10.2011 vide Doc. Nos. 2588/11 and 2589/11 respectively. The said sale deeds, dated 18.10.2011 vide Doc. Nos.2588/2011 and 2589/2011 are valid documents. The property under the sale deeds,
dated 18.10.2011 has been sold away during the year 2012 after
verification of the EC in respect of the sale deeds property without any objection of the plaintiff or any other person whatsoever and there is no cause of action to the suit and the suit is not maintainable under law and prayed to dismiss the suit.
06.The defendants 4 and 5 also filed written statement by denying the averments in the plaint and further contended that 1st defendant and others sold the plaint schedule land to the defendants 2 and 3 and the defendants 2 and 3 perfectly purchased the said 8 A.S. No.57 of 2022 property from the 1st defendant and others for a valuable consideration of Rs.4,10,000/- each on 18.10.2011 vide documents Nos.2588/2011 and 2589/2011. The said sale deeds dated 18.10.2011 vide document No.2588/2011 and 2589/2011 are valid documents. The sale deeds are perfectly right and enforceable documents. The property under the sale deeds dated 18.10.2011 has been sold away during the year 2012 after verification of the EC in respect of the sale deeds property without any objection of the plaintiff or any other person whatsoever. The property under sale deeds dated 18.10.2011 vide doc.No.2588/2011 of the 2nd defendant was purchased by the 4th defendant and the property under Doc.No.2589/2011 dated 18.10.2011 of the 3rd defendant was purchased by the 5th defenadnt without any objection of the plaintiff or any other person and they are in peaceful possession and enjoyment of the same under the sale deeds dated 16.10.2012 vide Doc.No.2791/2012 and 2792/2012 respectively for a valuable consideration of Rs.4,62,000/- each and ever since they have got right over the plaint schedule property which are enforceable documents and the agreement dated 14.03.2007 is not binding upon them and prays to dismiss the suit.
07.Basing on the above pleadings, the following issues are framed by the trial court for trial:
1. Whether the plaintiff is entitled to specific performance of agreement of sale deed dated 14.03.2007 executed by the defendant as prayed for?
2. Whether the plaintiff is entitled to refund of the advance sale consideration as prayed for?
3. Whether the plaintiff is entitled to equitable relief of specific performance on the basis of concocted, fabricated and forged agreement to sale dated 14.03.2007 as pleaded by the defendant for written statement?
9 A.S. No.57 of 2022
4. To what relief?
Additional Issues:
1. Whether the agreement of sale dated 14.03.2007 is not binding upon the defendants 4 and 5 as contended by D4 and D5? 2. To what relief?
08.During the course of trial, on behalf of the plaintiff, the plaintiff himself examined as P.W.1 and P.Ws.2 to 4 were examined and
Exs.A.1 to A. 15 were marked on behalf of plaintiff. On behalf of the defendants, the 1st defendant himself examined as D.W.1 and got examined one Bevara Pydiraju as D.W.2 and 4th defendant himself examined as D.W.3 and got marked Exs.B.1 to B.6.
09. After conducting full trial, the Senior Civil Judge, Rajam gave finding that the evidence of P.Ws.1 to 4 clearly established that the execution of Ex.A.1 but, in view of the property transferred to the 3rd parties under registered documents in Exs.A.8 to A.11 decree cannot be passed for specific performance of contract directing the 1st defendant to execute regular sale deed. With the said finding, the trial court partly decreed the suit directing the 1st defendant to refund the advance amount of Rs.4,75,000/ with interest @18% p.a. from the date of execution of agreement of sale i.e., 14.03.2007 till the date of filing of the plaint i.e., 16.09.2010 with subsequent interest @12% p.a.
from the date of filing the suit till the date of decree, thereafter 6% p.a.
from the date of decree till the realization. The remaining reliefs were dismissed.
10.Aggrieved by the above said decree and judgment in O.S.
No.73/2010, dated 10.10.2022 on the file of the Senior Civil Judge's
Court, Rajam, the defendants preferred the present appeal.
10 A.S. No.57 of 2022
11.The grounds of appeal are that:
(1)The decree and judgment of the lower court is contrary to law, weight of evidence and probabilities of the case.
(2)The trial court ought to have grnted the primary relief of specific performance instead of partially decreeing the same.
(3) The trial court failed to consider the issues framed and important issues were left out of Judgment.
(4) The trial court raised hyper technical objection that why the plaintiff/ appellant did not issue legal notice to D.1 priior to 31.08.2007, as in the linked case O.S. No.72/2010 which was decided on 28.01.2022 and which is challenged in A.S. No.8/2022 and is pending before this court.
(5) The trial court made contradicting observations in paragraph 18 and 20 of the Judgment regarding time is essence of contract. Time is essence of contract was an issue in the decided linked case O.S.
No.72/2010 but not in the present suit O.S. No.73/2010.
(6)The trial court in its judgment in several places clearly concluded that the 1st defendant certainly spoken falsehood and deliberately sold the plaint schedule property during pendency of the suit and it is hit by Section 52 of Tranfer of Property Act. When the sale transaction of schedule property to D.2 and D.3 thereafter to D.4 and D.5 hit by lis pendency and it is void as per the settled Law, the trial court ought to have declared that the sale deeds under Exs.A.8 to A.11 as illegal and ought to have decreed the suit for specific performance in favour of the plaintiff. The observation made by the trial court that the Court 11 A.S. No.57 of 2022 cannot pass the decree for specific performance of contract is not justified and is erroneous..
(7) The trial court failed to consider that the claim of appellant for primary relief of specific performance is supported by the prevailing
Law under Section48 of Transfer of Property Act.
(8)The Trial court failed to observe that D.2 and D.3 did not attend trial after filing of written statement and did not lead any evidence and did not argue their case.
(9)The trial court ignored to consider the cross examination of D.4 by plaintiff which proves that the sale transaction was fake and after filing of the suit before the Court and commencement of trial, the defendsnts managed and cheated the plaintiff.
(10)The trial court considering the alienating of the suit schedule land during pendency of suit is illegal, failed to decree the suit for specific performance.
(11)The trial court failed to appreciate the facts of the case in proper perspective and erroneously dismissed the suit in respect of relief of specific performance on agreement of sale, dated 14.03.2007.
(12)The trial court ignored the factum of acceptance of further advance even after alleged stipulated time as mentioned in Ex.A.1 and cannot found fault with the plaintiff. The trial court further ignored that acceptance of further advance after stipulated time itself is sufficient to show that there are no latches on the part of the appellant and it itself demonstrate the willingness and readiness of the plaintiff.
The necessity to issue notice to defendant as observed by the trial court would not arise.
12 A.S. No.57 of 2022 (13)The trial court failed to observe that the total amount paid to the defenant was significant supporting the case of plaintiff to pass decree in favour of the plaintiff.
(14)The trial court ought to have consider that though, the 1st defendant did not turn up for measuring the schedule property the appellant paid further advance as demanded by the defendant.
(15)The trial court having considered the fact that the time is not essence of contract erroneously found fault with the appellant that he did not issue notice to respondent within a stipulated time against the established principles of Law.
(16)The trial court failed to consider the fact that the contention of the 1st respondent has not been proved by placing the evidence and
D.W.2 is an interested witness and no credibility can be attached to his evidence.
(17) The trail court ought not to have considered that the appellant had not given any notice within time as mentioned in Ex.A.1 agreement of sale. When the trial court it self held that the time is not essence of contract and there is no necessity to give notice as observed by the trial court.
(18)The Trial court ought to have consider the fact that having failed to get the measurements of the schedule property to arrive total consideration, the plaintiff forced to issue notice to the respondent and further reply notice itself speaks the truth as to how the respondent
No.1 invaded the appellant.
(19) The trial court ought to have consider the evidence of independent witnesses examined i.e., P.Ws.2 and 3 by the appellant 13 A.S. No.57 of 2022 and ought to have decreed the suit.
(20)The trial court ought to have consider the deposition of P.W.4, who stated that he was not present at the time of Ex.A.1 agreement of sale but, he signed on it as attestor at the instance of appellant contra to evidence of D.Ws.1 and 2, who admitted the presence of P.W.4 at the time of Ex.A.1 agreement of sale.
(21)The trial court ought to have consider the evidence of P.Ws.1 and 2 are in corroboration and nothing was elicited by the D.1 to substantiate the contention.
(22)The trial court failed to consider that plaintiff has been always ready and willing to get the sale deed executed and also deposed the balance consideration of Rs.2,95,000/- payable to D.1 in the account of Hon’ble trial court on 20.05.2022.
(23)The trial court ought to have allow I.A. No.12/2022 seeking permission to prosecute the 1st defendant P.W.4 for perjury under
Section 191, 193 and 195 IPC.
(24)The trial court failed to appreciate the facts and erroneously held that the plaintiff is not entitled for specific performance.
(25)The trial court failed to appreciate the facts of the case and the evidence adduced by the appellant which clearly establish and show the factum of cause for which the plaintiff approached the Hon’ble
Court for the specific performance and the trial court is to exercise its discretion in favour of appellant in granting the relief sought for.
(26)The findings of the trial court is not based on evidence and the appreciation of evidence is not there in this case in accordance with 14 A.S. No.57 of 2022 the established principles of law as such the findings of the trial court, being unjust and illegal and is liable to be set aside.
With the above grounds, the appellants sought to allow the appeal by setting aside the decree and judgment dated, 10.10.2022 in
O.S. No.73/2010 on the file of Senior Civil Judge's Court, Rajam.
12.Now, the points for consideration are ...
1. Whether the agreement of sale deed, dated 14.03.2007 is true, valid, binding on the defendants 1 to 5 ?
2. Whether the plaintiff is entitled for specific performance of agreement of sale deed dated 14.03.2007 alleged to be executed by the defendant as prayed for ?
3. Whether the plaintiff is entitled for refund of advance sale consideration as prayed for ? ?
4. Whether the decree and judgment in O.S. No.73/2010, dated 10.10.2022 on the file of the Senior Civil Judge's Court, Rajam needs any interference of this Court ?
5. To what relief?
13.At the time of arguments both sides counsel argued by reiterating their respective contentions and evidence on record.
14.Point Nos.1 to 3: Since, these points are interrelated and to avoid repeatation, point Nos.1 to 3 are answered together.
15.It is an admitted fact that the 1st defendant is the absolute owner of the plaint schedule property.
But, the disputed facts are according to the plaintiff, the 1st defendant for his family necessities agreed to sell the plaint schedule land @ Rs.55,000/- per cent and executed agreement of sale deed, 15 A.S. No.57 of 2022
dated 14.03.2007 in favour of the plaintiff. At the time of execution of
sale agreement plaintiff paid Rs.75,000/- to the 1st defendant as advance sale consideration. The 1st defendant agreed to execute registered sale deed along with his family members, who are having interest in the property by dated 31.08.2007 and by receiving the balance sale consideration. At the time of agreement, the defendant represented the plaintiff that there is existence of 15 feet Rasta from
Panchayathi road through lands of Atchayya, Latchayya and
Suryanarayana who partitioned the land in Survey No.4/7 along with the defendant. Subsequently, the 1st defendant approached the plaintiff and requested to pay the amount of Rs.2,00,000/- towards part payment as he is in urgent need of money for marriage of his daughter on that the plaintiff paid Rs.2,00,000/- on 07.06.2007 and the defendant received the said cash towards part payment by executing receipt dated 07.06.2007 on the back side of sale agreement for Rs.2,00,000/- . Again on 10.10.2007 at the request of defendant, plaintiff paid Rs.2,00,000/- towards part payment and the defendant received amount and issued receipt dated 10.10.2007 for
Rs.2,00,000/-
On the other hand, it is the contention of the 1st defendant that the alleged suit schedule land is ancestral property of defendant and her daughters, and the daughters of the defendants are coparcener and members of undivided Hindu Joint Family. They are having 1/4th share in the said land but not signed on the alleged agreement of the sale. The defendant did not agree to sell the schedule 16 A.S. No.57 of 2022 land for their family necessities and did not receive Rs.75,000/- and did not agree to execute regular registered sale deed.
16.Since, the defendant denied the execution of sale agreement dated 14.03.2007 it is for the plaintiff to prove the execution of sale agreement dated 14.03.2007 by the defendant.
To prove the same, the plaintiff examined himself as P.W.1 and stated in his evidence by reiterating the averments in the plaint and also marked Exs.A.1 to A.14. P.W.1 stated during cross examination that he entered into the agreement after thorough verification and physically verified the schedule property. He did not issue any legal notice to D.2 and D.3. He has no acquaintance with defendant prior to transaction and defendant is residing at
Nagavamsapu street in Palakonda. Through written statement he came to know that defendant is having three brothers and suit schedule property is ancestral property of defendant. He does not know defendant blessed with 4 daughters but, through written statement he came to know that he had three daughters. One Bone
Apparao is the mediator for transaction. He did not verify any documents of defendant prior to purchase. He obtained Encumbrance
Certificate and does not know what is the total extent of Survey
No.4/7. The family expenses mentioned in plaint is to meet marriage expenses of 2nd daughter of defendant. At the time of Ex.A.1 one U.
Prabhakar, Bonu Apparao, Anapu Ramu, B. Pydiraju and the 1st defendant were present. The above four persons are attestors of
Ex.A.1. P.W.1 admitted in page 2 that there is a strike out and the contents of document were written with black ink and defendant 17 A.S. No.57 of 2022 signed with blue ink. He demanded for execution of sale deed within stipulated period i.e., on or before 31.08.2002. He did not sent entire amount to the defendant with in stipulated period to show his intention that he is ready and willing to perform his part of contract.
He paid balance sale consideration in two spells. Ex.A.1 and Ex.A.2 was scribed at the office of scribe. P.W.1 further admitted that he handed over cheque to Bonela Apparao and it is a self barer cheque.
Bonu Apparao is not the party to the suit. He sent legal notice on 23.03.2010 as per Ex.A.4. After 3 years to the agreement he sent notice to the defendant. He did not pay remaining balance sale consideration after filing the suit.
17.The plaintiff also examined one U. Prabhakar Rao said to be the attestor of Ex.A.2 part payment endorsement dated 07.06.2007 for Rs.2,00,000/- as P.W.2 and P.W.2 stated by corroborating the evidence of P.W.1 about the execution of Ex.A.1 and part payment made by the plaintiff and also stated that he is one of the attestor of receipt dated 07.06.2007 for Rs.2,00,000/- along with one Bonu
Apparao and B. Praveen.
During cross examination, P.W.2 stated that plaintiff is his family friend. He was present at the time of negotiations and he filed to remember the date. He did not verify on whose name the property is. He cannot say the total extent in Survey No.4/7. He does not know the academic qualifications of 1st defendant. P.W.2 further stated that the time was stipulated for remaining balance up to 31.08.2007. The plaintiff did not try to give entire remaining balance sale consideration at a time. Stamp papers were purchased in the 18 A.S. No.57 of 2022 name of Bonu Apparao. The defendant singed on document and also put his thumb impression. Ex.A.1 was executed in afternoon time.
The denomination amount under Ex.A.1 was not mentioned in the document. They did not try to verify any document pertaining to brothers of 1st defendant by name Atchayya, Latchayya and
Suryanarayana. There is no stipulation for agreement for production of partition deed by 1st defendant. After 3 months also no documents were verified. On the back side of the 1st page endorsement is strikes out and it does not contain signature of any one. There is no revenue stamp for endorsement. P.W.2 further admitted that in another agreement of sale pertaining to plaintiff he signed as attestor and O.S.
No.72/2010 is pending. It was informed by the plaintiff that he was paid Rs.2,00,000/- by way of cheque through Bone Apparao.
During cross examination by the counsel for D.2 to D.5,
P.W.2 stated that Ex.A.1 transaction was not reflected in encumbrance certificate at the time of purchasing property by D.4 and D.5, the 1st defendant did not reveal about Ex.A.1 transaction. At the time of sale transaction between D.1 and D.2, D.2 and between D.2, D.3 and D.4,
D.5, plaintiff did not make any objection. After verifying records he came to know there are no encumbrances. He denied the suggestions put to him by D.2 to D.5 counsel that D.2 to D.5 are bonafide purchasers.
18.P.W.4 by name Bonu Apparao was examined by the plaintiff by summoning through court. P.W.4 stated in his chief examination that for the last 20 years, he is doing real estate business.
Being mediator, his responsibility is to show property to both parties.
19 A.S. No.57 of 2022
On information given by D.1, he came to know about the property and prior to transaction D.1 shown his intention to alienate the property about 10 years back. He was not present at the time of discussion between plaintiff and defendant and he personally verified the schedule property but, cannot say the boudaries. Plaintiff used to deposit his commission but, he did not receive commission for entire transaction of plaintiff. He did around 5 transactions of the plaintiff, out of 5 transactions registration was done in two transactions.
Plaintiff deposited Rs.1,50,000/-in Andhra Bank, Palakonda. He did not make any endorsement on the cheque book.
During cross examination by the counsel for plaintiff,
P.W.4 stated that he made signatures whenever asked by the plaintiff at the transactions. He made several signatures at the request of plaintiff but failed to remember how many signatures were made.
P.W.4 further admitted that plaintiff has given cheque bearing No.
749741 of Syndicate Bank directing him to withdraw amounts to a tune of Rs.2,00,000/-. Accordingly, he withdraw the amount. At the time he made signatures on the back side of the cheques. Immediately after withdrawing, he handed over the amounts to plaintiff. He did not issue any legal notice to plaintiff demanding commission amount.
P.W.4 further admitted that the signature on Ex.A.1 being attestor is his signature and he was not present at the time of scribing the document. He failed to remember when he made signatures on Ex.A.1 as it is regular practice of obtaining his signature by the plaintiff after documents was prepared. Ex.A.2 contains his signature but he cannot say when he made signature on Ex.A.2. The signature on 20 A.S. No.57 of 2022
Ex.A.3 is belongs to him but he did not make signatures when receipt was prepared but later on it was brought by the plaintiff then he made signatures. He knows that Encumbrance Certificate was given by the
Sub Registrar Office and he obtained Encumbrance Certificate when plaintiff made an application in his name. The encumbrance certificate contains land details. P.W.4 further admitted that he mediated the transaction between plaintiff and D.1 by showing the land and he had acquaintance with the defendants as they are his villagers. He knows them for the last 30 years and they belongs to same community. The stamp papers of Ex.A.1 was prepared in his name prior to entering into the agreement and land was not measured. He was not present at the time of agreement. He does not know D.2 and D.3. P.W.4 further denied the suggestion put to him by the plaintiff counsel that he acted as a mediator and in the year 2011 he went to the house of D.1 along with plaintiff and made payments to him.
During cross examination by counsel for D.1, P.W.4 stated that scribe of Ex.A.1 is relative of plaintiff and in his presence no transaction was taken place. D.1 did not execute any agreement of sale and no transaction under Exs.A.2, A.3 took place before him.
During cross examination by counsel for D.2 to D.5, P.W.4 stated that he does not know transaction between D.1 and D.2, D.3 and does not know transaction between D.2, D.3 and D.4, D.5.
19.On the other hand, to substantiate his contention 1st defendant was examined as D.W.1 and stated in his evidence by reiterating the averments in the written statement.
21 A.S. No.57 of 2022
During cross examination, D.W.1 stated that they are four brothers by name Latchayya, Suryanarayana and Atchayya. He is an illiterate. He blessed with three female children by name Laxmi,
Aparna and Parvathi. Except Lakshmi remaining children got married.
He is thumb impressionist. The signature shown to him in written statement not belongs to him. Ex.A.8 and A.9 does not contain his signature. He does not know whether he sold schedule property under
Ex.A.8 and Ex.A.9 to D.2 and D.3. D.W.1 further admitted that thumb impression shown to him belongs to him under Ex.A.1 and the signature confronted on Ex.A.1 not belongs to him. He has been residing in Palakonda for last 80 years. He never heard the name of
Kuppannagari Jagannadha Rao. He never sold property to anybody.
He does not know the market value of the schedule property. He does not have possession of any property. He did not acquire any ancestral property. He does not know whether there are any properties in his name previously. He does not know the contents of chief affidavit that plaintiff has filed suit against him in collusion with his enemies.
During cross examination by the counsel for D.2 to D.5,
D.W.1 stated that he did not state to D.2 and D.3 about execution of agreement of sale in favour of D.1 and he does not know anything.
20.D.W.2 by name Bevara Pydiraju is the 3rd party to the proceedings and he stated in his evidence that 1st defendant is his maternal uncle and residing in his house more than 30 years. 1st defendant daughter is his wife and his wife is also one of the coparcener and co-sharer in the plaint schedule property. The 1st defendant is suffering from illhealth and mentally disordered and he 22 A.S. No.57 of 2022 does not know anything. He used to look after his welfare and used to provide medical aid. To his knowledge, 1st defendant never executed any agreement of sale to the plaintiff and the 1st defendant never received any amount from the plaintiff at any point of time. 1st defendant is illiterate person. Taking advantage of his illiteracy plaintiff filed suit against 1st defendant to grab his land unwillingly and unauthorisedly. Plaintiff prepared concocted, forged documents i.e., sale agreement dated 14.03.2007 and stamped receipt, dated 7.06.2007, 10.10.2007 with the help of his henchmen and followers of the plaintiff.
21.The above discussed evidence of P.Ws.1 to 3 categorically discloses that they have stated in their evidence that 1st defendant executed Ex.A.1 in favour of plaintiff and thereby agreed to sell plaint schedule property to the defendant by receiving advance amount of
Rs.75,000/-. P.Ws.1 to 3 also stated about the part payment made by the plaintiff under Exs.A.2 and A.3, dated 07.06.2007 and 10.10.2007.
Though, the counsel for the 1st defendant cross examined them at length nothing was elicited from their mouth contra to their evidence.
Though, P.W.4 not supported the plaintiff in his chief examination, the admissions made by P.W.4 during cross examination that he mediated transaction between plaintiff and 1st defendant by showing property to the plaintiff and had acquaintance with defendant and the signature on Ex.A.1 being attestor is belongs to him lends support to the case of plaintiff that P.W.4 acted as mediator for the transaction under Ex.A.1.
23 A.S. No.57 of 2022
22.Though, D.W.1 denied the execution of Ex.A.1, during cross examination he admitted that the thumb impression shown to him under Ex.A.1 is belongs to him. Moreover, the conduct of the 1st defendant in denying his signature in his written statement and also his signature in Exs.A.8 and A.9 also lends support to the contention of the plaintiff that the defendant has taken false defence to avoid the execution of sale deed. The evidence of D.W.2 also cannot be considered since he is son-in-law of 1st defendant. Therefore, on considering the evidence of P.Ws.1 to 3 and admissions made by P.W.1 and D.W.1 and on considering the conduct of the 1st defendant during cross examination, I inclined to consider the contention of the plaintiff that the 1st defendant executed Ex.A.1 sale agreement dated 14.03.2007 in favour of the plaintiff and also about the part payment endorsement under Exs.A.2 and A.3, dated 07.06.2007 and 10.10.2007 respectively for Rs.2,00,000/- each. Hence, Ex.A.1 is true, valid and binding on the 1st defendant.
23.It is the contention of the defendants 2 to 5 that D.2 and
D.3 purchased the plaint schedule property under sale deeds dated 18.10.2011 bearing document Nos.2588/2011 and 2589/2011 and
D.4 and D.5 purchased the schedule property under sale deeds dated 16.10.2012 under document No. 2791/2012 and 2792/2012 respectively for valuable consideration and they are the bonafide purchasers for valuable consideration as such, specific performance of agreement of sale under Ex.A.1 cannot be ordered since Ex.A.1 is not binding on them. On the other hand, it is the contention of plaintiff that D.1 to D.3 colluded together and created Exs.A.8 and A.9 sale 24 A.S. No.57 of 2022 deeds, dated 18.10.2011 and thereafter D.2 to D.5 colluded each other and created Exs.A.10 and A.11 sale deeds dated 16.10.2011 and those documents under Ex.A.8 to A.11 are sham and nominal created to have wrongful gain.
24.It is pertinent to mention here that when it is the contention of the defendants 2 to 5 that they are the bonafide purchaser under Exs.A.8 to A.11 respectively, it is for them to prove their contention that they are bonafide purchaser for valuable consideration. But, to prove their contention they did not come to witness box and did not adduce any kind of evidence. No doubt, mere oral evidence of defendants 2 to 5 is sufficient to shift the burden to the plaintiff to prove his contention that D.1 to D.5 were colluded together and created sale deeds under Exs.A.8 to A.11 and which are sham and nominal documents. But, the defendants 2 to 5 did not come to the witness box and did not adduce any kind of evidence.
Hence, the contention of the defendants 2 to 5 that they are bonafide purchasers for valuable consideration cannot be considered.
25.It is further contention of the 1st defendant that the plaint schedule property is his ancestral property and he got the same during partition in between himself and his brothers by name Atchayya,
Latchayya and Suryanarayana. During cross examination of P.W.1,
P.W.1 also admitted that suit schedule property is ancestral property of 1st defendant. Further, it is also an undisputed fact that 1st defendant is having three daughters by name Aparna, Parvathi and
Lakshmi. Since, the plaint schedule property is ancestral property of 25 A.S. No.57 of 2022 the 1st defendant, the daughters of the 1st defendant are also having share over the schedule property.
From the above discussed evidence on record and from the above discussion, I found that plaint schedule property is ancestral property of 1st defendant and 1st defendant got the plaint schedule property towards his share in partition between 1st defendant and his brothers by name Atchayya, Latchayya and Suryanarayana. The 1st defendant got three daughters by name Aparna, Parvathi and
Lakshmi, as such the 1st defendant and his three daughters by name
Aparna, Parvathi and Lakshmi are having equal shares over the plaint schedule property being joint family members and 1st defendant is not having absolute right over the plaint schedule property except having 1/4th share in the plaint schedule property. Though, Ex.A.1 was executed by the 1st defendant by receiving advance sale consideration of Rs.75,000/- and Rs.2,00,000/- each under Exs.A.2 and A.3 agreeing to sell the plaint schedule property, Ex.A.1 is binding on the 1st defendant in respect of his 1/4th share over plaint schedule property.
Since, the daughters of the 1st defendant who are having share over the schedule property are not parties to the Ex.A.1 sale agreement, Ex.A.1 is not binding against them and specific performance cannot be enforceable against the daughters of the 1st defendant except against the 1st defendant for his 1/4th share over plaint schedule property. Since, the specific performance cannot be granted for part of the property, the plaintiff is not entitled for specific 26 A.S. No.57 of 2022 performance of Ex.A.1 sale agreement in respect of entire plaint schedule property.
Since, the evidence of P.Ws.1 to 3 and Exs.A.1 to A.3 clearly reveals that plaintiff paid an amount of Rs.4,75,000/- to the 1st defendant, the plaintiff is entitled for refund of amount paid by him under Exs.A.1 to A.3. Hence, the plaintiff is entitled for refund of advance amount of Rs.4,75,000/- with interest @ of 18 % per annum from date of execution of agreement of sale i.e.,. 14.03.2007 till the date of filing of the plaint i.e., 16.09.2010 with subsequent interest @ 12% per annum from the date of filing of the suit till the date of decree, thereafter 6 % per annum from the date of decree till the realization.
Accordingly, point Nos.1 to 3 are answered.
26. Point No.4:
In view of my answer to point Nos.1 to 3 as I have held that the plaintiff is entitled for refund of advance amount of Rs.4,75,000/- with interest @ of 18 % per annum from date of execution of agreement of sale i.e., 14.03.2007 till the date of filing of the plaint i.e., 16.09.2010 with subsequent interest @ 12% per annum from the date of filing of the suit till the date of decree, thereafter 6 % per annum from the date of decree till the realization, the decree and judgment in
O.S. No.73/2010, dated 10.10.2022 on the file of the Senior Civil
Judge's Court, Rajam needs no interference.
29. Point No.5:
In the result, this appeal is dismissed confirming the
Decree and Judgment in O.S. No.73/2010, dated 10.10.2022 on the 27 A.S. No.57 of 2022 file of the Senior Civil Judge’s Court, Rajam. Both parties are directed to bear their respective costs.
Dictated to Stenographer Grade-II, transcribed by her, corrected
and pronounced by me, in open court, this the 27th day of March, 2024.
Sd/- K. Sreedevi
I Additional District Judge, Srikakulam.
Appendix of evidence
Witness examined
For Appellants: For Respondents:
No oral or documentary evidence is adduced on either side.
Sd/- K. Sreedevi
I Additional District Judge,
Srikakulam.